*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 46 U.S.C. §§ 741-52.

2 28 U.S.C. §§ 1346(b), 2671-2680.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30384

Summary Calendar

_____________________

JAMES C. BARNES, JR.,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Eastern District of Louisiana

(96-CV-1764-1)

_______________________________________________________

September 17, 1997

Before REAVLEY, KING and DAVIS, Circuit Judges.

REAVLEY, Circuit Judge:*

James Barnes appeals the dismissal of his suit against the

United States brought under the Suits in Admiralty Act (SAA)1 and

the Federal Tort Claims Act (FTCA).2 The district court

dismissed the suit for lack of jurisdiction. We affirm.
2

In 1987 the Coast Guard issued Barnes a five-year license to

operate a vessel of up to 300 tons. In 1990, the license was

upgraded or “endorsed” to allow him to operate vessels of up to

500 tons. Barnes believed that the 1990 endorsement gave him a

license with a term of five years running from the date of the

endorsement, so at the end of 1994 he applied for routine renewal

of his license. The Coast Guard explained that the license had

expired in 1992, charged him in an administrative proceeding with

operating without a license, and eventually issued him a warning.

Barnes claims that the Coast Guard negligently failed to

follow its own regulations and renew his license, and negligently

misrepresented to him that the 500-ton license had a five-year

term running from the date of the 1990 endorsement. As a result

of this alleged negligence, Barnes was, according to his

complaint, forced to reapply for a license, “a process which

required approximately a year of study and testing. During this

period of time, he was for all practical purposes unemployed.”

The district court properly dismissed the FTCA claim because

no formal rejecton was received from the Coast Guard and Barnes

did not wait the full six months, after the filing of his claim,

to file suit in federal court under the FTCA, as that Act
3 See 28 U.S.C. § 2675(a); Gregory v. Mitchell, 634 F.2d

199, 203-04 (5th Cir. 1981).

4 Id. 

5 E.g., Martin v. Miller, 65 F.3d 434, 438 (5th Cir. 1995).

6 46 U.S.C. § 742.

7 Trautman v. Buck Steber, Inc., 693 F.2d 440, 444-45 (5th

Cir. 1982) (quoting 46 U.S.C. § 742).

3

requires.3 The district court therefore lacked jurisdiction to

hear the claim.4

The remaining question is whether the district court had

admiralty jurisdiction over the SAA claim. As we have explained,

the SAA does not create any new substantive rights.5 By its

terms it allows suit against the United States where “a

proceeding in admiralty could be maintained” against a private

party.6 Hence, it waives sovereign immunity of the United States

for claims that are otherwise within the admiralty jurisdiction

of the federal courts. Stated another way, it “merely provides a

jurisdictional hook upon which to hang a traditional admiralty

claim. . . . [I]f appellant’s claims are ones which would fall

under general admiralty jurisdiction ‘if a private person or

property were involved’ then, by way of [the SAA], the United

States has waived sovereign immunity as to those claims.”7

This case falls within the federal district court’s

admiralty jurisdiction if a two-part test is met. “[T]he court’s

admiralty jurisdiction will attach in tort cases if the alleged
8 Kuehne & Nagel (AG & Co.) v. Geosource, Inc., 874 F.2d

283, 288 (5th Cir. 1989) (emphasis in original); see also

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249,

268 (1972).

9 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

513 U.S. 527, 534 (1995).

4

wrong occurs on navigable waters (situs) and bears a significant

relationship to traditional maritime activity (nexus).”8 The

Supreme Court has described the first component of the two-part

test -- the situs or locality test -- as calling on the court to

“determine whether the tort occurred on navigable water or

whether injury suffered on land was caused by a vessel on

navigable water.”9

We agree with the district court that the situs test is not

met. The alleged wrongful conduct and consequences of that

conduct occurred on land. The processing of Barnes’ license

applications was a land-based activity. Barnes conceded that the

Coast Guard’s alleged negligent misrepresentation took place on

land. The injuries Barnes suffered -- loss of income,

unemployment, administrative proceedings and warning from the

Coast Guard, and retesting and reapplication for a new license --

were essentially land-based as well.

We have recognized that land-based activities which

“directly produced a major injury on navigable waters,” as where

a gun was fired on land and injured a plaintiff on a vessel, can
10 Kuehne & Nagel, 874 F.2d at 289.

11 Id. 

5

confer admiralty jurisdiction.10 Again, however, we agree with

the district court that the injury here cannot fairly be

described as occurring on navigable waters. The injury, if any,

was imposed on land, and some consequences followed while

plaintiff intended to be afloat.

The most analogous Fifth Circuit case we find in Kuehne &

Nagel. Plaintiff Kuehne & Nagel contracted with an affiliate of

defendant Geosource to transport cargo on land and sea from

Europe to the Middle East. When the cargo could not be unloaded

in Turkey as planned, Kuehne & Nagel sued Geosource, claiming

that Geosource had fraudulently induced Kuehne & Nagel to

contract with its affiliate, and claiming damages consisting of

the costs of making alternative arrangements to transport the

cargo. We concluded that “the injury, if any, that occurred on

navigable waters was too remote from the tortious act to meet the

situs requirement for admiralty jurisdiction,” reasoning that the

alleged misrepresentations inducing the contracts had occurred on

land and that “the misrepresentations had their desired ‘effect’

on land when they prompted Kuehne & Nagel to sign the contracts

of affreightment.”11 The facts of our case are of course quite

different, but employing similar reasoning, the alleged

misrepresentation occurred on land, and the effect of the alleged
12 512 F.2d 4 (1st Cir. 1975).

13 Id. at 8-9.

14 Id. at 9.

6

misrepresentation occurred on land as well, when Barnes did not

apply for a renewal of his license in 1992 and was forced to

secure a new license. 

Barnes cites us to Carroll v. Protection Maritime Ins. Co.12

In that case the plaintiffs, seamen and fishermen, had brought

personal injury claims and claimed the defendant insurance

companies had then tortiously interfered with plaintiffs’

contractual and advantageous business relations, by notifying

vessel owners that the insurers would not insure the plaintiffs

or would only insure them at high premiums. The plaintiffs

claimed that as a result of this “blacklisting” they were

terminated from their jobs and could not obtain new jobs. The

First Circuit held that the tortious interference claims were

within the district court’s admiralty jurisdiction. It reasoned

that the impact of the defendants’ actions “was felt in the

operations of the affected vessels at sea,” and that “[t]he tort

alleged in this case seems to us so interwoven with present and

potential maritime contractual relationships -- traditional

concerns of admiralty -- as to fall within that jurisdiction.”13

The court described its ruling as recognizing an “exception to

the locality test.”14
15 Kuehne & Nagel, 874 F.2d at 289. See also J. Lauritzen

A/S v. Dashwood Shipping, Ltd., 65 F.3d 139, 143 (9th Cir. 1995)

(following Kuehne & Nagle, declining to follow Carroll, and

describing Carroll as against the great weight of case law.)

7

Whether or not Carroll is distinguishable on its facts, it

is not the law of this circuit. Kuehne & Nagel declined to

follow Carroll, and disagreed with Carroll to the extent it holds

that “a party to a contract with strong maritime implications”

need not also “satisfy Executive Jet’s situs requirement when

seeking to predicate jurisdiction on a maritime tort.”15

AFFIRMED.