Unpublished Disposition, 899 F.2d 20 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 20 (9th Cir. 1990)

No. 89-55192.

United States Court of Appeals, Ninth Circuit.

Before DAVID R. THOMPSON and TROTT, Circuit Judges, and GRAY,**  District Judge.

MEMORANDUM*** 

SUMMARY

Appellant appeals dismissal under Federal Rules of Civil Procedure 12(b) (6) for failure to allege sufficient facts showing admiralty jurisdiction under 28 U.S.C. § 1333(1) (1982). We affirm.

STANDARD OF REVIEW

A dismissal for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b) (6) is a ruling of law and therefore reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). Review is limited to the contents of the complaint. Love v. United States, 871 F.2d 1488, 1491 (9th Cir. 1989). A court should not dismiss a complaint under the rule 'unless it appears beyond doubt that a plaintiff can prove no supporting facts that would entitle her to relief.' Id. A court takes all allegations of material fact as true and construes them in the light most favorable to the nonmoving party.

DISCUSSION

For admiralty jurisdiction to exist, the facts alleged must show that the tort has a maritime locality and bears a significant relationship to traditional maritime activities. Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 268 (1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674 (1982). The parties agree that the first requirement, a maritime situs, is met, and dispute only the second requirement, a maritime nexus.

To determine whether an alleged tort bears a significant relationship to traditional maritime activity, we consider four factors: (1) traditional concepts of the role of admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injury suffered. Owens-Illinois, Inc. v. United States Dist. Court, 698 F.2d 967, 970 (9th Cir. 1983). We weigh all four factors, none being dispositive, although the first is the most important. Harville v. Johns-Manville Prods. Corp., 731 F.2d 775, 785 (11th Cir. 1984).

Factor (1): Admiralty Law's Role

We consider whether assertion of jurisdiction would promote maritime law's goals of protection of maritime commerce, uniformity in the law governing maritime industries, and providing remedies to those who confront the hazards of maritime employment; and whether a case would involve issues within admiralty law's expertise. Solano v. Beilby, 761 F.2d 1369, 1371 (9th Cir. 1985); Myrhan v. Johns-Manville Corp., 741 F.2d 1119, 1122 (9th Cir. 1984). Admiralty law's expertise embraces navigational rules, liability for maritime disasters, protection of sailors aboard ship, liability for cargo damage, and the like. Executive Jet, 409 U.S. at 269-70.

Factor (1) militates against extension of admiralty jurisdiction to the case at bar. Appellant's welding activities do not further maritime commerce in the pertinent sense of falling "within the ambit of traditional maritime services or activities in furtherance of [maritime] commerce." Solano, 761 F.2d at 1371. The issues at bar are traditional tort issues commonly litigated in state courts, do not require the expertise of admiralty law, and do not implicate the federal interest in uniform admiralty laws. See Myrhan, 741 F.2d 1119.

Factor (2): Parties' Functions and Roles

Factor (2) strongly militates against admiralty jurisdiction because appellant, a land-based welder, was not a sailor and did not perform traditional or uniquely maritime work but instead performed tasks identical to those of land-based industry welders. See Myrhan, 741 F.2d at 1122; Harville, 731 F.2d at 785 (cited by id.) (because shipyard ship repair workers, including welders, perform tasks identical to those of land-based workers rather than those unique to maritime service or traditionally done by seamen, their role and function do not call for admiralty jurisdiction). Contrary to appellant's contention, the allegation that appellant performed the same tasks as welders who were permanently crew members is irrelevant in light of the cases' emphasis upon the actual tasks performed by a plaintiff. See Harville, 731 F.2d at 784.

Factor (3): Vehicles and Instrumentalities Involved

We consider the extent to which the instrumentalities involved in the alleged tort possess maritime attributes. Owens, 698 F.2d at 971 (tools and safety equipment used in asbestos installation, unlike navigational equipment and ship safety devices, possess few maritime attributes).

Although, as appellant argues, cranes may be the equivalent of the modern gangplank, cranes are not inherently indigenous to maritime commerce and are common to land-based construction.

Factor (4): Injury's Nature and Causation

We consider whether the injury's nature and causation have maritime connection, asking whether they are more closely affiliated with negligence arising in land-based industry generally or with negligence arising in commerce and navigation on navigable waters. Owens, 698 F.2d at 971. Although the nature and causation of appellant's injuries have some maritime connection in that they occurred when the crane dropped him into water while he was debarking, still the injuries' nature and causation are closely affiliated with malfunction of a crane in the land-based construction industry context.

CONCLUSION

Even if the crane possessed some maritime attributes and appellant's injuries have some maritime connection, the alleged tort raises traditional land tort issues implicating no uniquely maritime interest and appellant as a welder clearly does not perform uniquely maritime work. The effect of the first and second Owens factors overwhelms the effect of the third and fourth. Accordingly, the alleged tort bears no significant relationship to traditional maritime activity, no admiralty jurisdiction exists, and the one-year California statute of limitations governs and bars this suit. The district court's decision is

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

William P. Gray, U.S. District Judge for the Central District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3

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