Tuesday, October 11, 2016

In the recent issue of
Long Island Boating World magazine, Tim
covered legal issues that govern
whether the injured claimant in
a shark attack case falls under the same
admiralty jurisdiction
criteria applied in a boating accident lawsuit. Tim covers this in
the article,
Shark Bite Raises Maritime Law Issues...

Although they don’t know it, sharks made headlines this past
summer with a number of sightings in Long Island waters. While
it was alarming news for many swimmers, I guess it didn’t seem
like a big surprise for local residents and boaters who realize
that a number of different shark species are indigenous to this
stretch of the Atlantic. Whatever it is about them, sharks never
cease to strike in us feelings of both awe and fear.

When it comes to observing sharks, I’m content to satisfy my
curiosity by watching them in nature documentaries on television
or trying to dig up the old National Geographic magazine that
Chief Brody was grimly poring over in the movie Jaws. As a child,
I must have spent hours reading that February 1968 issue over
and over again, with its big spread of the various shark species
and that terrifying painting depicting a great white smashing its
head through the bottom of a small fishing boat off Cape Breton
Island in Canada.

For those with a stronger outdoor spirit than mine, there are
excursions where one can enter the water and observe these
magnificent creatures in their own universe. And it was one such
out-of-the-cage diving expedition on the West Coast that gave
rise to a lawsuit which examined the operation of maritime law in
such a setting. The expedition offered guests the opportunity to
get up close with makos and blue sharks. However, one of the
participants was bitten by a shark and filed a lawsuit against the
parties involved.

The guest who was bitten based her action on negligence and
held that admiralty and maritime jurisdiction was proper under
the Federal Rules of Civil Procedure. In response, the defendants
in the matter filed motions to dismiss. The federal court presiding
over the matter did not allow dismissal of the diver’s claims.

Federal courts do have the authority to hear maritime matters.
This is established in the U.S. Constitution under Article III.
Federal case law applies a two-part test to determine whether a
legal action falls under admiralty jurisdiction. The first element
hinges on locality. The second element is the relationship, or
nexus, test for showing a connection between the incident and
maritime activity. This second element is the more complex of
the two and asks whether the incident has a potentially
disruptive impact on maritime commerce and if the general
character of the activity giving rise to the incident shows a
substantial relationship to traditional maritime activity (Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)).

Here, the parties consented to magistrate judge jurisdiction. The
shark bite victim believes one of the defendants was intoxicated
during the feeding and thus improperly and negligently directed
divers, including herself, to an unsafe area. She alleges that to
feed a swimming mako shark, this defendant held the bait so that
it led a shark directly toward her. As a result of being bitten, she
says she sustained multiple severe permanent injuries and
disfigurement, as well as emotional distress.

The court determined that the locality test was met here because
the incident took place on the navigable waters of Southern
California (Executive Jet Aviation, Inc. v. City of Cleveland, Ohio,
409 U.S. 249, 255 (1972)). For the second element of the analysis,
the court felt that a scuba diver suffering an injury on navigable
waters after diving off a commercial vessel could result in the
diversion of another vessel to try to render assistance. It
provided a hypothetical of a diver being injured and needing to be
transported to shore immediately, all this occurring before other
divers had returned to the boat. Under such circumstances,
another vessel could carry the injured diver ashore for medical
care, or play retrieval boat for divers remaining in the water if the
original vessel made the dash to shore for medical care
(Strickert v. Neal, 2015 WL 7737312 (D. Haw. Nov. 30, 2015)).

We’ll have to follow this case for legal developments as they
materialize. There were other issues also addressed by the court
in this case. However, for now, the decision of the judge here
shows us that a legal action of this nature does fall within the
admiralty jurisdiction of federal courts.

United States District Court for the Southern District of California,
Specker v. Kazma, Mako Shark Diving, LLC, Yellow Charter Boat,
Inc. in personam, Cetus Specula, in rem; Case No. 15CV2567

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