PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 16-1772

____________

IN THE MATTER OF THE COMPLAINT OF 

CHRISTOPHER COLUMBIS, LLC, (t/a BEN FRANKLIN 

YACHT), AS OWNER OF THE VESSEL 

BEN FRANKLIN YACHT, 

FOR EXONERATION FROM OR 

LIMITATION OF LIABILITY 

Christopher Columbus, LLC,

Appellant

____________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-14-cv-00214)

District Judge: Honorable Edward G. Smith

____________
2

Argued March 7, 2017

Before: HARDIMAN, KRAUSE, Circuit Judges, and 

STENGEL, Chief District Judge.

*

(Filed: September 25, 2017)

Daniel H. Wooster [Argued]

Michael B. McCauley

Palmer Biezup & Henderson LLP

190 N. Independence Mall West, Suite 401

Philadelphia, PA 19106

Counsel for Appellant

Stanley B. Gruber [Argued]

Freedman & Lorry, P.C.

1601 Market Street, Suite 1500

Philadelphia, PA 19103

Michael T. van der Veen

Law Offices of Michael T. van der Veen

1219 Spruce Street

Philadelphia, PA 19107

Counsel for Appellee Michael Bocchino

 

* The Honorable Lawrence F. Stengel, United States 

District Court for the Eastern District of Pennsylvania, sitting 

by designation. The Honorable Lawrence F. Stengel assumed 

Chief Judge status on August 1, 2017.
3

William J. Fox

1219 Spruce Street

Philadelphia, PA 19107

Counsel for Appellees James McHugh, Evan Medwid 

and Alexander Morella

____________

OPINION OF THE COURT

____________

STENGEL, Chief District Judge.

Christopher Columbus, LLC appeals the District 

Court’s dismissal of its limitation action, brought pursuant to 

the Limitation of Vessel Owner’s Liability Act, 46 U.S.C. § 

30511. Christopher Columbus filed this action after Appellee 

Michael Bocchino filed a negligence lawsuit against it in the 

Philadelphia Court of Common Pleas. Both of these actions

arise out of a drunken brawl which erupted among passengers 

who were enjoying a cruise on the Delaware River onboard the 

vessel Ben Franklin Yacht. Following a hearing on the issue of 

subject-matter jurisdiction in the limitation action, the District 

Court found that maritime jurisdiction was lacking and 

dismissed the limitation action. For the reasons that follow, we 

find there is maritime jurisdiction over the dispute, and we will 

therefore vacate the District Court’s dismissal of the limitation 

action. 

I Background

Christopher Columbus owns and operates the passenger 

vessel “Ben Franklin Yacht,” which provides cruise services 
4

on the Delaware River.1 The Ben Franklin Yacht, which is over 

eighty feet long and has three passenger decks, departs from 

and docks at Pier 24, located at 401 North Columbus 

Boulevard in Philadelphia, Pennsylvania. Pier 24 is located just 

north of the Ben Franklin Bridge and is adjacent to the main 

shipping channel of the Delaware River.

Bocchino was a patron on a cruise on the Ben Franklin 

Yacht on May 3, 2013. Bocchino was apparently “assaulted on 

the vessel and/or in the parking lot near the dock where the Ben 

Franklin Yacht was moored by ‘unknown patrons of the cruise 

and/or agents, servant[s], workmen and/or employees’” of 

Christopher Columbus. App. 47a. Bocchino filed a complaint 

against the Ben Franklin Yacht and others in the Court of 

Common Pleas for Philadelphia County, alleging claims for 

negligence, negligent infliction of emotional distress, assault, 

and punitive damages. Christopher Columbus then filed its 

Complaint for Exoneration From or Limitation of Liability in 

federal court (“the limitation action”). Bocchino and three 

additional passengers on the May 3, 2013 cruise asserted 

claims in the limitation action, alleging that (1) while 

passengers for hire on the Ben Franklin Yacht, they were 

assaulted and injured by fellow passengers,2and (2) the 

vessel’s crewmembers caused these injuries by providing 

 

1 The Ben Franklin Yacht is documented by the United 

States Coast Guard to carry paying passengers on cruises.

2 Bocchino claimed to have been assaulted while aboard 

the vessel and in the parking lot on the pier, while the other 

three claimants alleged that they were assaulted on the vessel.
5

inadequate security and overserving alcohol to passengers. The 

claimants asserted that the assaults began while they were still 

onboard the vessel and while the vessel was in the process of 

berthing at Pier 24. 

While cross-motions for summary judgment were 

pending, the District Court sua sponte ordered argument and 

invited briefing on the issue of subject-matter jurisdiction.

After hearing oral argument, the District Court determined that 

the test for maritime jurisdiction had not been met and 

dismissed the limitation action for lack of subject-matter 

jurisdiction. For the reasons discussed below, we will reverse.

II Jurisdiction and Standard of Review

We have jurisdiction over this appeal under 28 U.S.C. § 

1291. We review de novo a district court’s determination of its

own admiralty jurisdiction.

3 Hargus v. Ferocious & 

 

3This appeal comes to us in a somewhat unusual posture 

for a determination of admiralty jurisdiction. It is more often 

the case that the question of whether admiralty jurisdiction 

applies to a particular dispute is raised at the outset, and is 

therefore answered on the basis of the allegations in the 

pleadings. See, e.g., Maher Terminals, LLC v. Port Auth. of 

N.Y. & N.J., 805 F.3d 98, 104 (3d Cir. 2015). At the initial 

stages of litigation in this case, both sides agreed that there was 

subject-matter jurisdiction. It was only later, after the District 

Court had been presented with the parties’ summary judgment 

motions and their competing sets of disputed facts taken from

a developed evidentiary record, that the District Court 

questioned whether there was admiralty jurisdiction in this 

case. The nature of the “attack” on jurisdiction was, therefore, 

factual rather than facial. See, e.g., Constitution Party of Pa. v. 
6

Impetuous, LLC, 840 F.3d 133, 135 (3d Cir. 2016) (citing 

Maher Terminals, LLC v. Port Auth. of N.Y. & N.J., 805 F.3d 

98, 104 (3d Cir. 2015) and Sinclair v. Soniform, Inc., 935 F.2d 

599, 601 (3d Cir. 1991)). 

III Discussion

Christopher Columbus raises three principal arguments 

on appeal, but we address only the first:

4 whether the District 

 

Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (distinguishing facial 

attacks on jurisdiction from factual attacks). Thus, while the 

issue did not arise in the context of a motion to dismiss, it is 

akin to a factual attack which “is an argument that there is no 

subject matter jurisdiction because the facts of the case—and 

here the District Court may look beyond the pleadings to 

ascertain the facts—do not support the asserted jurisdiction.”

Id. Accordingly, when assessing our subject-matter 

jurisdiction over Christopher Columbus’s limitation action, we 

rely on the undisputed facts drawn from the summary judgment 

record. See id. (discussing “the standard of review applicable 

to a factual attack, in which a court may weigh and ‘consider 

evidence outside the pleadings.’”) (quoting Gould Elecs. Inc.

v. United States, 220 F.3d 169, 176 (3d Cir. 2000)); see also

Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268 

(3d Cir. 2016) (explaining that a factual attack on subjectmatter jurisdiction “strips the plaintiff of the protections and 

factual deference provided under 12(b)(6) review.”) (citing 

Davis v. Wells Fargo, 824 F.3d 333, 348–50 (3d Cir. 2016)).

4 Because we find that the test for admiralty jurisdiction 

pursuant to 28 U.S.C. § 1333(1) is satisfied, we need not 

address Christopher Columbus’s second and third issues on 

appeal: that the District Court erred in finding that the 
7

Court erred in finding that the alleged incident aboard the Ben 

Franklin Yacht had insufficient potential to disrupt maritime 

commerce, and that therefore admiralty jurisdiction pursuant 

to 28 U.S.C. § 1333(1) was lacking. Appellee Michael 

Bocchino did not file a cross-appeal, so we do not address his 

contention that the District Court erred in dismissing his 

summary judgment motion as moot.5

 

Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 30101(a), 

did not confer an independent basis for jurisdiction; and that

the District Court erred in finding that the Limitation of Vessel 

Owner’s Liability Act, 46 U.S.C. § 30501, et seq., did not 

confer an independent basis for jurisdiction. 

5 Bocchino asserts that the entirety of the District 

Court’s Dismissal Order is now before us for review because 

Christopher Columbus did not limit its Notice of Appeal to the 

portion of the Order dismissing the case for lack of subjectmatter jurisdiction. He therefore urges us to consider whether 

his motion for summary judgment should have been granted,

instead of being denied as moot, in light of what he contends 

are undisputed facts showing that he is entitled to summary 

judgment in the limitation action, so that he may then proceed 

in state court with his negligence action.

We have previously said that “an appellee may, without 

taking a cross-appeal, support the judgment as entered through 

any matter appearing in the record, though his argument may 

attack the lower court’s reasoning or bring forth a matter 

overlooked or ignored by the court.” EF Operating Corp. v. 

Am. Bldgs., 993 F.2d 1046, 1048 (3d Cir. 1993) (citations 

omitted). 
8

Under the United States Constitution, the federal courts 

have the power to hear “all Cases of admiralty and maritime 

Jurisdiction.” U.S. Const. art. III, § 2, cl. 1. Congress codified 

that jurisdiction at 28 U.S.C. § 1333(1), which provides that 

federal district courts have original jurisdiction over “[a]ny 

civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 

1333(1). As noted in our recent decision in Hargus v. 

Ferocious & Impetuous, LLC, “[t]he fundamental interest 

 

Here, Bocchino does not seek to support the District 

Court’s decision to dismiss for lack of subject-matter 

jurisdiction, or its denial of the summary judgment motions as 

moot, through alternative grounds. Instead, he seeks to have 

his summary judgment motion granted on the merits, so that 

the limitation action can be dismissed and the case can be

remanded to state court for a jury trial. In other words, he asks 

that, if we reverse the District Court on the issue of subjectmatter jurisdiction, we decide the merits of his summary 

judgment motion in his favor. Seeking this form of relief, in 

light of the procedural history of this case, requires a crossappeal. See EF Operating Corp., 993 F.2d at 1048–49

(reasoning that “[a] grant of summary judgment and a 

dismissal for lack of personal jurisdiction . . . are wholly 

different forms of relief. The latter is a dismissal without 

prejudice, whereas the former is a ruling on the merits which if 

affirmed would have preclusive effect” and holding that a 

cross-appeal was required) (citation omitted). Accordingly, 

because Bocchino did not file a cross-appeal, we will not 

consider in the first instance his argument that summary 

judgment should have been entered in his favor, and leave it to 

the District Court to address the merits of that motion on 

remand. 
9

giving rise to maritime jurisdiction is ‘the protection of 

maritime commerce.’” 840 F.3d at 136 (quoting Sisson v. 

Ruby, 497 U.S. 358, 367 (1990) (citation omitted)).

With respect to maritime tort claims, the test for 

determining admiralty jurisdiction concerns both the incident’s 

location and its connection with maritime activity:

When a party seeks to invoke federal admiralty 

jurisdiction over a tort claim, the claim “must 

satisfy conditions both of location and of 

connection with maritime activity.” Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock 

Co., 513 U.S. 527, 534 (1995)). The location 

aspect is satisfied if “the tort occurred on 

navigable water” or the “injury suffered on land 

was caused by a vessel on navigable water.” Id.

The connection aspect is a conjunctive two-part 

inquiry. First, we “must ‘assess the general 

features of the type of incident involved’ to 

determine whether the incident has ‘a potentially 

disruptive impact on maritime commerce.’” Id.

(quoting Sisson v. Ruby, 497 U.S. 358, 363, 364 

n.2 (1990)). Second, we “must determine 

whether ‘the general character’ of the ‘activity 

giving rise to the incident’ shows a ‘substantial 

relationship to traditional maritime activity.’” Id.

(quoting Sisson, 497 U.S. at 364 n.2, 365). 

Federal admiralty jurisdiction is only proper 

when the location test and both prongs of the 

connection test are satisfied. Id.

Hargus, 840 F.3d at 136.
10

As Bocchino concedes, the location aspect of the 

jurisdictional test is satisfied because the alleged tort occurred 

on the Delaware River. Bocchino also concedes that the second 

part of the connection test is satisfied, because carrying 

passengers for hire on a vessel on navigable waters is 

substantially related to traditional maritime activity. Thus, our 

analysis of whether there is admiralty jurisdiction in this case

is focused on the first part of the connection test: an assessment 

of the general features of the incident, and whether such an 

incident has the potential to disrupt maritime commerce.

The United States Supreme Court has instructed courts 

to “assess the general features of the type of incident involved 

to determine whether such an incident is likely to disrupt 

commercial activity.” Sisson, 497 U.S. at 363. Such an

assessment “turns . . . on a description of the incident at an 

intermediate level of possible generality.” Jerome B. Grubart, 

Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 538 

(1995). As discussed in our decision in Hargus, Sisson and 

Grubart provide illustrative examples of how the specific

factual details of an incident may be distilled into a description 

of the general character of that incident. 

In Sisson, a fire started in the washer/dryer area of a 

pleasure yacht docked at a marina on Lake Michigan, which 

destroyed the yacht and damaged several other vessels as well 

as the marina. 497 U.S. at 360. For connection test purposes, 

the Court described the incident as “a fire that began on a 

noncommercial vessel at a marina located on a navigable 
11

waterway.”6Id. at 362. In Grubart, the Court considered an 

incident where “flooding [of basements in downtown Chicago 

allegedly] resulted from events several months earlier, when . 

. . Great Lakes Dredge and Dock Company had used a crane, 

sitting on a barge in the river next to a bridge, to drive piles 

into the riverbed above the tunnel.” Grubart, 513 U.S. at 529.

There, the Court described the incident as “damage by a vessel 

in navigable water to an underwater structure.” Id. at 539. 

Our own maritime tort jurisprudence is also instructive

when crafting “general features” descriptions for purposes of 

applying the connection test to a particular set of facts. For 

example, in Neely v. Club Med Management Services, Inc., we 

considered a scenario where a scuba-diving instructor and 

vessel crewmember was injured after being hit by a dive boat’s 

propellers while she was out with resort patrons. 63 F.3d 166, 

170 (3d Cir. 1995) (en banc). The description we chose for 

purposes of determining jurisdiction was “damage by a vessel 

in navigable water to [a seaman].” Id. at 179 (alteration in 

original). Most recently, in Hargus, we were presented with a 

case where the captain of the vessel One Love threw an empty 

insulated coffee cup from the beach that hit a passenger

standing on the One Love, which at the time was anchored in 

knee-deep water approximately twenty-five feet away. 

Hargus, 840 F.3d at 134–35. We described that activity as 

“throwing a small inert object from land at an individual 

onboard an anchored vessel.” Id. at 137.

 

6

In a subsequent case, the Court referred to the incident 

in Sisson as “the burning of docked boats at a marina on 

navigable waters.” Grubart, 513 U.S. at 533–34.
12

In formulating a general features description in this 

case, we are mindful of the Supreme Court’s caution to avoid 

descriptions that are “too general” such that they cannot be 

useful in comparing cases, or descriptions that are overly 

specific such that they would ignore an incident’s capacity to 

have an effect on maritime commerce. See Grubart, 513 U.S. 

at 538–39 (discussing the incident in Sisson and observing that 

“[t]o speak of the incident as ‘fire’ would have been too general 

to differentiate cases; at the other extreme, to have described 

the fire as damaging nothing but pleasure boats and their tieup facilities would have ignored, among other things, the 

capacity of pleasure boats to endanger commercial shipping 

that happened to be nearby.”). Rather, we must look at the facts 

of this case and formulate a description that will enable us to 

determine “whether the incident could be seen within a class 

of incidents that posed more than a fanciful risk to commercial 

shipping.” Id. at 539. Applying these principles, we hold that 

the incident at issue here is best described as “an altercation 

between passengers on a boat in the process of docking.”

7

 

7 Taking the disputed and undisputed facts into account, 

the District Court concluded that “the fight, if one occurred, 

erupted toward the end of the cruise.” App. 9a–10a. The degree 

to which the Ben Franklin Yacht had completed docking was 

unclear as a result of conflicting deposition testimony from 

crewmembers and the claimants. The District Court 

specifically noted the following factual disputes: whether the 

vessel was docking or docked when the altercation occurred; 

the magnitude of the altercation and the total number of 

passengers involved, which was allegedly as many as forty to 

forty-five passengers; whether and when members of the crew 

became involved in resolving the altercation; and whether 

passengers left the vessel on their own or with the assistance of 
13

Describing the incident this way captures the general nature of 

the tort and its attendant circumstances without being too 

generic or too specific.8 Grubart, 513 U.S. at 538–39. 

 

the vessel’s employees and crew. Thus, although it is not 

possible to ascertain the location of the vessel relative to the 

pier on the summary judgment record before us, such a precise 

determination is unnecessary to resolve the question of subject 

matter jurisdiction. For purposes of crafting a general features 

description to which the connection test may be applied, we 

need only state that the vessel was “in the process of docking”

while the altercation was occurring. 

8 After reviewing and comparing the witnesses’ 

recollections and setting forth the parties’ respective versions 

of the disputed facts based on the summary judgment record, 

the District Court concluded that the incident “should be 

described as something like a physical altercation among 

recreational passengers on board a vessel that is in the

immediate process of docking.” App. 23a. We respectfully 

disagree with the District Court’s formulation of a general 

features description, as it is too specific in the following three 

ways: first, a verbal altercation arising at an inopportune time

could be as distracting to the crew as a physical altercation; 

second, the fact that the passengers are “recreational” is not a 

determinative factor for admiralty jurisdiction, so long as the 

activity underlying the incident has a “substantial relationship 

to a ‘traditional maritime activity,’” Sisson, 497 U.S. at 365; 

and third, the “immediacy” of the Ben Franklin Yacht’s 

docking at the time the altercation started is not clear from the 

record. For these reasons, we have chosen the slightly more 

generalized description set forth above.
14

Having crafted our description of the general features of 

the incident in this case, we must now “ascertain ‘whether the 

incident could be seen within a class of incidents that posed 

more than a fanciful risk to commercial shipping.’” Hargus, 

840 F.3d at 136 (quoting Grubart, 513 U.S. at 539). We turn 

to the first prong of the connection test, which “requires us to 

assess the ‘potential’ disruptive effects that the type of incident 

involved could have on maritime commerce, not whether the 

particular incident at hand actually disrupted maritime 

commerce.” Id. at 136 (quoting Grubart, 513 U.S. at 538–39).

A brief review of our discussion in Hargus illustrates the type

of factors to consider when assessing an incident’s potential to 

disrupt maritime commerce.

In Hargus, we discussed Tandon v. Captain’s Cove 

Marina of Bridgeport, Inc., a Second Circuit case which 

involved an injury to passengers that did not have the potential 

to disrupt maritime commerce. Hargus, 840 F.3d at 137 (citing 

Tandon, 752 F.3d 239, 249 (2d Cir. 2014)). The Second Circuit

described the general features of the incident as “a physical 

altercation among recreational visitors on and around a 

permanent dock surrounded by navigable water.” Tandon, 752 

F.3d at 249. The court found that the incident did not have the 

potential to disrupt maritime commerce because it 

“threaten[ed] only its participants,” could not “create any 

obstruction to the free passage of commercial ships along 

navigable waterways” or “lead to a disruption in the course of 

the waterway itself,” and could not “immediately damage 

nearby commercial vessels.” Id. In addition, because the 

incident did not occur at sea, it “could not ‘distract the crew 

from their duties, endangering the safety of the vessel and 

risking collision with others on the same waterway,’” nor could 

it “force the vessel ‘to divert from its course to obtain medical 
15

care for the injured person,’” who “was not ‘employed in 

maritime commerce.’” Hargus, 840 F.3d at 137 (quoting 

Tandon, 752 F.3d at 250). The Second Circuit was careful to 

note that “the class of incidents we consider here includes only 

fights on permanent docks . . . . This type of incident does not 

pose the same risks to maritime commerce as a fistfight 

occurring on a vessel on navigable water.” Tandon, 752 F.3d 

at 250. This was so, in part because “[a] fight on a vessel may 

distract the crew from their duties, endangering the safety of 

the vessel and risking collision with others on the same 

waterway.” Id. 

Similar assessments in this case lead us to conclude that 

an altercation between passengers on a boat in the process of 

docking has the potential to disrupt maritime commerce.

Although the record is unclear about the location of the vessel 

when the fight broke out, how many people were involved in 

the fight, and the crew’s involvement, if any, in stopping the 

fight, there are numerous scenarios that could result from a 

passenger altercation, each of which poses more than a fanciful 

risk to maritime commerce. First, this type of incident has the 

potential to distract the captain or crew during the docking 

procedure, which could have resulted in the vessel crashing 

into or in some way colliding with the pier, causing damage to 

the vessel or to the pier. Depending on the degree of damage 

to the pier, it could be rendered unusable. Second, a mishap 

during docking also has the potential to cause injuries to 

passengers or the crew, the latter of which could leave the 

vessel unable to dock at the pier. Such injuries could require a 

rescue of those on board, which might then lead to a Coast 

Guard investigation. Finally, if the crew was sufficiently 

sidetracked by the altercation and unable to execute the 

docking maneuver, the vessel could be forced back out on the 
16

waterway with a veritable riot among the passengers. That

would certainly be distracting to the captain and crew, and also 

pose a risk to nearby vessels. Any of these outcomes were 

possible, and all have the potential to disrupt maritime 

commerce.

Bocchino’s argument to the contrary is not persuasive. 

He asserts that, due to the nature of the finger pier where the 

Ben Franklin Yacht docks, the vessel was not in open waters 

during the altercation, and thus could not encounter other 

vessels or block their navigation, cause a disruption on the 

waterway, or cause any immediate damage to other vessels 

while docking because it was in an isolated location. This 

argument has two flaws. First, it depends in part on the overlyspecific “general features” description Bocchino proposes, 

which characterizes Pier 24 as an “isolated location.” Bocchino 

Br. 18 n.4. Second, it focuses on what did not actually happen 

to the Ben Franklin Yacht as a result of the altercation taking 

place while the vessel was in the process of docking, rather 

than what could have happened. As previously stated, the 

connection test requires us to “assess the ‘potential’ disruptive 

effects that the type of incident involved could have on 

maritime commerce, not whether the particular incident at 

hand actually disrupted maritime commerce.” Hargus, 840 

F.3d at 136 (emphases added) (citing Grubart, 513 U.S. at 

538–39); see also Tandon, 752 F.3d at 252 n.8 (noting that, to 

the extent that the parties arguing in favor of maritime 

jurisdiction rested their argument “on specific aspects of the 

incident that actually occurred, [that argument] clearly fails, 

because our analysis looks only to the general type of incident 

at issue rather than particular facts about that incident.”) (citing 

Grubart, 513 U.S. at 538). Had the altercation distracted the 

crew or required their intervention during the docking 
17

process—two very real possibilities—any damage to the vessel 

or the pier that may have resulted could easily have caused a 

disruption to maritime commerce.

9 Hence, our conclusion that 

the first prong of the connection test is met. As the other 

aspects of the location and connection tests are satisfied, we

therefore hold that admiralty jurisdiction is appropriate in this 

case. 

* * *

For the reasons stated, we will reverse the judgment of 

the District Court and vacate its dismissal of the limitation 

action. This case is remanded for further proceedings 

consistent with this opinion.

 

9 We respectfully disagree with the District Court’s 

assessment that, based on its view that the Ben Franklin Yacht 

was in the immediate process of docking when the altercation 

started, the risk of disrupting maritime commerce was merely 

fanciful. The general features of this type of incident, which 

are what we must consider for purposes of determining 

jurisdiction, demonstrate that there is a potential for an 

altercation between passengers on a boat in the process of 

docking to disrupt maritime commerce, and that the potential 

for disruption to maritime commerce is more than fanciful.