William H. Rehnquist: We'll hear argument next in Number 93-762, Jerome v. Grubart, Inc., v. Great Lakes Dredge & Dock Company, and No. 93-1094 consolidated with it, City of Chicago v. the same. Mr. Barnow.
Ben Barnow: Mr. Chief Justice and may it please the Court: In furtherance of the divided argument, I intend on concentrating on nonpreemption argument issues. Mr. Rosenthal intends on concentrating on the city's preemption argument. On April 13, 1992, the Chicago Loop flooded. Thousands of persons and businesses suffered losses estimated upwards of $1 billion. This catastrophe, which has now come to be known as the Chicago Flood, resulted from two occurrences. One was the City of Chicago's failure to maintain or repair an extensive underground tunnel system under the City of Chicago. The second was the pile-driving activities which occurred on the North Branch of the Chicago River to protect the Kinzie Street Bridge, which had been completed more than 6 months earlier. The pile-driving work was performed by Great Lakes Dredge & Dock Company, the respondent here. It accomplished this work using a tractor crane positioned on top of a spud scow which had been posted into the river bed and which was being used as a stationary platform. On these facts, the Seventh Circuit, in reversing the district court, found that admiralty jurisdiction existed. In order to accomplish this, it had to do two things: 1) acting alone from the other circuits which have considered similar situations, it refused to adopt or use the totality-of-the-circumstances approach. Secondly, it misapplied the rulings of this Court. It did that by misconstruing every ingredient that this Court indicated in Sisson and the cases before it, Executive Jet, and Foremost required.
William H. Rehnquist: Didn't our Sisson decision pretty well reject totality-of-the-circumstances test which you refer to?
Ben Barnow: Not the way I read it. In footnote numbers 3 and 4, the Court recognizes that the circuits were employing the totality-of-the-circumstances test and suggested that at least for that case that the guidance formula of Sisson would be adequate guidance. It never said that no other circuit could continue to use that. However, even if it did for the facts of that particular case, where all of the activities were uniform, were the same, it left open the door as to what the case would be where the instrumentalities were involved in different activities. I would offer to the Court that in this particular case, we have myriad activities. The City of Chicago alone is engaged in at least two nonmaritime activities. One is the construction or maintenance of a bridge. The second is, is the maintenance of their underground tunnel. We then have the nonmaritime activities of all of the other instrumentalities, all of the people like Grubart and the businesses and buildings in the Chicago Loop, which are far away, none of whom were engaged in any activity which, under any argument, could be maritime.
David H. Souter: Isn't that an argument against the Extension Act? Isn't that going to be true in virtually every case in which there is, in effect, a land-based injury?
Ben Barnow: No, Your Honor, and the reason is, is that when this Court developed the nexus test it did it to find a substantial connection between the activity and traditional maritime activity. Unfortunately, and one of the other errors that the Seventh Circuit committed, was that it allowed the Admiralty Extension Act to bootstrap this Court's requirement, and skipped it. If you are to separate the Admiralty Extension Act from a nexus requirement, which this Court cannot intend, what it would be doing is, defeat its own opinion. It would take all land-based injuries and put them in a special category, and allow them to have admiralty jurisdiction without any connection to traditional maritime activity.
Anthony M. Kennedy: Incidentally, you don't question the Congress' authority to do that if it chooses?
Ben Barnow: If it chooses to do that, but I don't believe it has. It set up no independent--
Anthony M. Kennedy: Congress can define admiralty jurisdiction any way it wants, even though it's a constitutional term.
Ben Barnow: --The definition has been left open, as Your Honor is aware, and this Court has defined and determined that definition. As to how far it can go under the Commerce Clause, for instance, frankly, I'm not sure. What I do know is, is that it has not done so here.
Anthony M. Kennedy: Well, I don't think there's much problem under the Commerce Clause, but if Congress purports to be defining admiralty jurisdiction in a way differently than this Court has done, does that cause a constitutional problem with reference to the authority of the Congress to define what admiralty jurisdiction means?
Ben Barnow: Frankly, I'm not sure. If it goes too far, I suppose it might create constitutional issues. What I do know is that in this case it has not, that in the passage of the Admiralty Extension Act, it meant it as an extension of admiralty, in that it did not separate it apart from what this Court would determine to be admiralty and maritime jurisdiction.
Anthony M. Kennedy: Well, you don't raise that question in your brief. I'm not quite positive of the answer to that question. In determining Federal court jurisdiction, subject matter jurisdiction, is there any other instance where a totality-of-the-circumstances test is used, for example, diversity, Federal question jurisdiction? The entrance requirements are precise, not, you take all these ingredients and mix them together.
Ben Barnow: Well, I think the totality-of-the-circumstances approach has been used by this Court in other areas.
Ruth Bader Ginsburg: For jurisdiction, for subject matter jurisdiction?
Ben Barnow: I don't recall it in terms of a subject matter jurisdiction.
Ruth Bader Ginsburg: That's what we're talking about here, admiralty jurisdiction.
Ben Barnow: We are, but in this particular case, it merely serves the test that this Court has already developed. We are not suggesting that it substitutes for that test. The totality-of-the-circumstances answers one part of this Court's test, and therefore, it is not bigger than that whole. This Court has said that the activity from which the incident arises must have a substantial relationship to traditional maritime activity, not any relationship but a substantial relationship, and Your Honor is right with regard to an improper, perhaps imposition of a totality-of-circumstances approach at the inception, but this is not at the inception. It is merely designed to achieve the goals and guidelines and instructions that this Court has set up. All it does is answer the substantiality requirement. Let's say you did not use the totality-of-circumstances test approach. You're still using the same test. You're still using Sisson. You're still looking for the incident arising from an activity that has a substantial relationship to traditional maritime activity, and no way are you changing the jurisdictional test to determine whether or not there is admiralty jurisdiction. All you're doing is saying whether or not your test has been met. What happens if you don't do that? If you don't do that, you wind up with a case like this one. You wind up with a case where the Seventh Circuit has felt it could not ask any of the questions which go to the substantiality issue, and I would repeat that this Court has used significant, the wrong must bear a significant relationship to traditional maritime activity. Why did it do that in Executive Jet? Because the Court was tired of what it called absurd results. This case in admiralty, I propose, would be an absurd result. The suggestion that a company could come in on these facts... and Grubart's position is, there is no maritime activity. Even if one were to say that Great Lakes' work was maritime, we suggest that the totality-of-circumstances forecloses an admiralty finding under the fact that the other situations do not warrant it. But this case is not of a type designed for admiralty. You have common tort remedies. If you take the naked Sisson test and disregard a substantiality, you're realistically going to get the same kind of absurd result that this Court has encountered, and which it did not want to encounter. This Court has spent over 20-some years, starting with Executive Jet, trying to get itself out of the quagmire of these peculiar cases that come about now and then.
David H. Souter: Mr. Barnow, may I ask you to get specific in applying the third Sisson prong? It's proper under the third Sisson prong to consider, I presume, not only what Great Lakes was doing but what the City of Chicago was doing, and your argument seems to be that the City of Chicago was simply maintaining, or for that matter failing to maintain a tunnel, and there's nothing with any maritime character to maintaining a tunnel, is that basically it?
Ben Barnow: That's basically it on the point. I'm--
David H. Souter: Well, may I ask you, then, is it also proper, or isn't it also proper under Sisson, to consider the fact that the City of Chicago I presume had some role in maintaining this navigable water? Didn't the City of Chicago sort of maintain its banks, wasn't it the City of Chicago's bridge over the navigable water that was being repaired, and shouldn't these facts relating the city to the maintenance of a channel of navigable water also be considered under Sisson, and if they are, doesn't the claimed absurdity shrink somewhat?
Ben Barnow: --Well, first, I'm buoyed by the Court's use of these additional inquiries, because Sisson doesn't tell you how to make those additional inquiries. When Sisson is served by the totality-of-the-circumstances inquiry, then those types of inquiries can be made. For instance, Your Honor said, shouldn't we also take into account, or shouldn't... doesn't the Sisson test also take into account the additional activity, the activity of the City of Chicago? Where? In the literal reading, it says, one activity, but Your Honor couldn't do that. When he thought about the situation, Your Honor had to look at all of the activities, and that was recognized in Sisson. Sisson said, what are we going to do when that occurs, and all the totality-of-the-circumstances says, and all... the only thing all of these circuits have been saying is, we hear this Court's ruling, but in order to answer a very important part of it, we have to articulate these other questions, otherwise these questions really go sub rosa. The more structure you have with regard to getting to the judgment, the more likely you are to serve Sisson.
David H. Souter: Well, is your claim, then, that what the lower court did in effect was simply to isolate the activity of, the kind of common-sense way, the maritime actor and say the activities of cotort... of fellow tortfeasors simply are to be ignored? Is that the mistake that you say was made in applying Sisson?
Ben Barnow: Well, first I'm not sure that common-sense approach ever works in an uncommon problem situation, and because this is an uncommon problem, had the--
David H. Souter: Well, whether it does or not, is that what you're saying the court did, that it isolated... consistently or inconsistently with Sisson, it simply isolated the acts of one of the tortfeasors and ignored the acts of the others--
Ben Barnow: --It did--
Speaker: --or the activities of the others?
Ben Barnow: --Correct. It did that, in addition to misdefining all the ingredients. It picked the wrong incident. The Seventh Circuit said the incident was the negligent installation of pile-driving. We all know that isn't it, because this Court said, whether or not the washer and dryer was installed negligently in Sisson had nothing to do with it, but that would be the equality in that analysis. It went on to say that the--
David H. Souter: Well... I'm sorry, I just want to go back to my point. Do you argue that they misapplied Sisson in this isolation or elimination, or are you saying that they applied Sisson properly and the Sisson test therefore can never work in a case in which one of the tortfeasors allegedly at least does not bear... is not engaging in a traditional maritime activity?
Ben Barnow: --I am saying that the Seventh Circuit misapplied Sisson. I am saying that Sisson may work in a situation where one of the parties is not land-engaged, or doesn't have... or has land injury. It depends, for instance, on the nature of the maritime aspect.
David H. Souter: And could it work here, if... could you, would you make an argument that Sisson, properly applied--
Ben Barnow: I believe it--
David H. Souter: --would be an appropriate test here?
Ben Barnow: --I believe it could. I think if you properly define the incident as the breach of an underground tunnel, which it clearly is, because that is the only event that encompassed all the damages--
David H. Souter: Well, if you want to get down to that detail, isn't the incident... you say the breach, but the incident is the... in effect is the flood, is that what you're saying?
Ben Barnow: --I do not. I say the breach is the under--
David H. Souter: Well, why isn't the flood the equivalent of the fire in Sisson?
Ben Barnow: --Because it does not encompass all the damages, and if you do not encompass all the damages, you do not have the incident for the event.
David H. Souter: You mean, consequential damages like loss of business, and so on?
Ben Barnow: No. The damage from the tort. In order to define the incident--
Ruth Bader Ginsburg: Why would we look to the damages? Take the Federal Tort Claims Act, for example. What counts there is where the conduct occurred, where the allegedly negligent conduct occurred, not where the consequences of that conduct are felt.
Ben Barnow: --I appreciate that, and one of the reasons that the Court ruled the way it did in Executive Jet was it refused to engage in determining where the tort occurred with the airplane crash. That's why it got into the more substantial issues--
Ruth Bader Ginsburg: Well, why shouldn't we... why shouldn't we look to where the conduct occurred, Great Lakes conduct occurred on the river, and not where the damage occurred?
Ben Barnow: --Well, I have no problem with the Court looking to where the conduct occurred, but where the conduct occurred was on a stationary barge which had been spudded in to the river bed, which more likely is a work platform, bears more resemblance to a dock, or a derrick rig, than it does to a vessel. Grubart's position has been, is that that wasn't even a vessel, and that there is no test that is before this Court that would find admiralty jurisdiction under these facts.
William H. Rehnquist: Thank you, Mr. Barnow.
Ben Barnow: Thank you.
Speaker: Mr. Rosenthal.
Lawrence Rosenthal: Thank you, Mr. Chief Justice, and may it please the Court: Today, the Court is asked to extend admiralty jurisdiction beyond its historic boundaries, the shore and property abutting the shore, and bring it into the basements of downtown Chicago. While we think it extraordinary that there should be Federal admiralty jurisdiction over water in the basement of Marshall Fields, that is what the court of appeals managed to hold, and this morning I will press two points with respect to that holding.
Antonin Scalia: Mr. Rosenthal, before you do that, what would your position be if a ship on navigable waters slipped its moorings, drifted into a dam, caused a breach in the dam, and the dam flooded surrounding territory, causing damage?
Lawrence Rosenthal: Our view is that that would be an admiralty case.
Antonin Scalia: That would be, but this--
Lawrence Rosenthal: That would be.
Antonin Scalia: --It's the difference between a dam and a tunnel, is that--
Lawrence Rosenthal: Well, I think it quite important to start by identifying the cause of action with considerable precision, because the cause of action in this case is not how a boat was spudded down on navigable water, or anything having to do with navigation or seaworthiness. The cause of action here, to be precise, is an alleged lack of due care, when driving pilings through subsoil, for underground tunnels in the area, a cause of action that didn't arise on the water, in the water, it actually arose 15 feet underneath the bed of the river.
Speaker: --But the pilings went through the water, didn't they?
Lawrence Rosenthal: It did. It did, but the cause of action, it seems to me, Mr. Chief Justice, is garden-variety construction, tort litigation, if the cause of action is that when you're going through soil, whether it's underneath a river or not, you are supposed to exercise due care with respect to underground structures.
Antonin Scalia: What if you're a vessel doing some oil exploration in the middle of the ocean, and through some negligent activity an oil pollution occurs? Would that be maritime? That would not be maritime because oil exploration is not maritime activity, is that it?
Lawrence Rosenthal: It could well be maritime. It depends, I think--
Antonin Scalia: Oil exploration is different from pile-driving?
Lawrence Rosenthal: --Well, we have, for example, the Rodrigue case--
Antonin Scalia: Nobody sails for the purpose of sailing. You go on navigable waters for the purpose of doing something else, to drill for oil, to drive piles, whatever.
Lawrence Rosenthal: --Well, Justice Scalia, Rodrigue, for example, involved somebody on an oil derrick who was injured by defective construction equipment. That person was on navigable water in an oil rig. Nevertheless, that was held not to be within admiralty because there was no Federal maritime interest in adjudicating cases about defective construction equipment, and that's why I urge the Court to define the cause of action with some precision.
Anthony M. Kennedy: Were the workers on this barge covered by the Longshore and Harbor Workers' Compensation Act?
Lawrence Rosenthal: Well, in our view... actually I think it has been clear since 1942 that workers not engaged in maritime activities, and the 1972 amendments to the act confirm this, are not within admiralty, so--
Anthony M. Kennedy: So you would say the workers on this pile-driving barge were not within the admiralty jurisdiction?
Lawrence Rosenthal: --Well, I'm not sure what the answer to that question is, Justice Kennedy, but a court would look to a nexus inquiry, if you will. Is the activity that those workers were engaged in maritime in character?
Anthony M. Kennedy: It seems to me most unlikely that they would be found to be not within the admiralty jurisdiction.
Lawrence Rosenthal: They could well. I am willing to concede, for present purposes, that that cause of action might be within admiralty. In fact, more generally, let me concede there are many causes of action that could arise from pile-driving on navigable water that would be within admiralty and, Justice Kennedy, that could well be one, but that does not mean that every cause of action--
David H. Souter: Mr. Rosenthal, does the city have any role in maintaining the navigable water?
Lawrence Rosenthal: --The city was responsible in this case for maintaining the pilings that were near the river, and that in some sense is maintaining the river with respect to navigability.
David H. Souter: May that be considered under Sisson--
Lawrence Rosenthal: It absolutely... if the cause of action were that the city permitted pilings to be negligently placed in a navigable channel where they could injure boats, that would absolutely be an admiralty case.
David H. Souter: --Well, aren't-- --Yes, but that's narrowing... excuse me. Excuse me. I was just going to say, that would be narrowing the second of the Sisson nexus tests, wouldn't it, because the second Sisson test looks to the activity out of which the incident arose, and I presume that activity would include the maintenance of pilings as well as the driving of pilings, and hence the city would be an actor in that activity.
Lawrence Rosenthal: It would, and that's why we think the Sisson test should not be used in a case like this, because most fundamentally, unlike Sisson, this involves a case of injury on land to nonmaritime parties, Grubart, the shoe store and the other case--
David H. Souter: That just brings you right back to the Extension Act. Sure it does. That's what the Extension Act is there for.
Lawrence Rosenthal: --And the--
David H. Souter: You're in effect saying that by considering an activity of the city, which involves the maintenance of a channel of navigable waters, or water, you're getting the wrong result because it results in liability for damage which ultimately eventuated on land, but that's what the Extension Act is there for.
Lawrence Rosenthal: --Well, but the Extension Act uses a phrase, admiralty and maritime jurisdiction, which the Court has construed to require a nexus to Federal maritime interests and--
David H. Souter: Right, and the nexus includes an activity of yours involving navigable water.
Lawrence Rosenthal: --Well, but I think it's most instructive to look at the Askew and Huron Portland Cement cases. Those were vessels engaged in navigation alleged to have done injury on the shore, and yet in both those cases the Court held that that was not within admiralty jurisdiction because the Federal interests in adjudicating that cause of action were quite slight. The State interests in protecting the coast or inland property were quite substantial, and--
Sandra Day O'Connor: Well, Mr. Rosenthal, I thought what was being done here was work on so-called river dolphins, and I thought they were put in place to prevent damage to the bridge by ships in the navigable channel.
Lawrence Rosenthal: --That's correct.
Sandra Day O'Connor: And to protect both ships and bridges and to serve as aids to navigation.
Lawrence Rosenthal: That's correct, and--
Sandra Day O'Connor: And so that's a pretty close connection there--
Lawrence Rosenthal: --That's why--
Sandra Day O'Connor: --to work from a vessel on navigable waters.
Lawrence Rosenthal: --That's why we urge the Court to define the cause of action with precision, because, of course, the cause of action is not putting the pilings in a place where they interfered with navigation.
Sandra Day O'Connor: No, but you say that they were installed in a way that caused land-based injuries.
Lawrence Rosenthal: Only because of their proximity to an underground tunnel. That issue, how you take care for underground structures, is the same whether one is driving pilings on land or water.
Sandra Day O'Connor: It just seems to me it's a causation question. The activity on the navigable water caused land-based injuries.
Lawrence Rosenthal: I quite agree, but because this case is all about preempting the rights of land-based parties. After all, that's why Great Lakes invokes admiralty jurisdiction.
Sandra Day O'Connor: What if there were injuries that occurred to a ship by virtue of the piling installation and also the land-based injuries? Would you have some of them tried in State court and some in Federal, even though the essential cause of action is the same?
Lawrence Rosenthal: If the cause of action... if there is an interest in Federal adjudication of the cause of action, such as a navigational error, then all injuries should be in Federal court, land and sea, but if there is no Federal interest in a Federal adjudication of the cause of action, then we submit that, just like any other preemption case in which the court looks... as it does when it asks whether State causes of action are preempted by Federal law, it looks and says, on this cause of action, is there a Federal interest that--
William H. Rehnquist: Mr. Rosenthal, you're stressing cause of action, but Sisson said you look at the activity. It didn't say, look at the cause of action.
Lawrence Rosenthal: --Well, Sisson did not say ignore the complaint, who has sued, but we do agree that Sisson says, and this is why we think Sisson is ill suited for this case, don't look to the effects that are alleged to have followed from the action. We think in a case where what is going on is preemption of rights ordinarily governed by State law, the rights of land-based parties, there should be present a Federal interest sufficiently weighty to justify Federal adjudication.
William H. Rehnquist: Can you think of any large class of cases where the finding of admiralty jurisdiction wouldn't preempt some sort of State claim?
Lawrence Rosenthal: No. But, of course, in most cases you have parties that are engaged in maritime activities and not presumptively governed by State law. In Victory Carriers, for example, an Extension Act case, the Court began its analysis by saying, the rights of land-based parties are presumptively governed by State law, and we should proceed with caution, because of the risk of preemption. I urge the Court to exercise the same caution in this context.
Antonin Scalia: Mr. Rosenthal, you're urging us to evaluate the Federal interest in admiralty jurisdiction. It reminds me, the only other field I can think of where we do an interest analysis kind of case that comes readily to mind, anyway, is conflict of laws, where, in the past 30 years or so, interest analysis has become, in academic circles at least, a fashionable thing. It has not produced very much certainty in the law. In fact, that is a gross understatement. It has produced a great chaos in the entire field.
Lawrence Rosenthal: I urge the same kind of analysis the Court uses when it asks, is a State tort cause of action preempted by Federal law, as in Cipollone. Look at the cause of action and the relevant interests. Here, I suggest, there is no Federal interest in adjudicating this cause of action sufficient to bring admiralty jurisdiction into downtown basements.
Ruth Bader Ginsburg: Whatever label you put on it, you really are urging a choice of law analysis to determine the jurisdictional question.
Lawrence Rosenthal: Well, I am urging, I think, Justice Ginsburg, an analysis just like Cipollone or the other cases, which we know is a jurisdictional analysis. If State courts jurisdiction can be governed by conventional preemption analysis, then here, where you have land-based parties presumptively governed by State law and within the authority of the States, where there are legitimate State interests in being able to adjudicate liability for injury to person or property on land, that should also be analyzed. Is the Federal interest in navigation and seaworthiness implicated? With the Court's permission, I'll reserve the balance of my time.
Stephen G. Breyer: Well, I do have a question, actually. Why? My question is why? You say, do this very finely, but look, why do it finely? Why not do it crudely? And my... to show you what I'm thinking, sometimes admiralty jurisdiction will hurt plaintiffs like your client. Of course, it does, because they get less money. Sometimes, it will help plaintiffs. Sometimes it will hurt defendants. Sometimes it will hurt little people. Sometimes it will help little people. I don't know how it works out in balance, but I'm... so I take that out of my mind. But I'm reasonably certain what does hurt people is litigating costs, and here, as in this case, you spend an awful lot of money because there isn't a clear test. So my question is, why not have a clear test? That will help everybody. And I don't know how it works out in the wash, you know, between... but at least it will help people by making the jurisdictional thing clear, and therefore let's go crude. Let's say, for example, if it's a vessel, and it's in the water, that's the end of it... admiralty. And maybe it's a meteor, it's not really a vessel, or an airplane.
Lawrence Rosenthal: Well--
Stephen G. Breyer: But... in other... but don't answer the specific. What I'm interested in, as a practical matter, if you're trying to... as a practical matter, what's wrong with having a fairly crude, simple test that at least will tell lawyers what court they're supposed to file their paper in?
Lawrence Rosenthal: --Preemption analysis like Cipollone has been fully workable in the lower courts. This Court has not found preemption analysis too crude when it comes to a question whether a State court still has jurisdiction, and there are legitimate State interests in being able to adjudicate liability for injury to person or property on land that do deserve consideration. Thank you.
William H. Rehnquist: Thank you, Mr. Rosenthal. Mr. Roberts, we'll hear from you.
John G. Roberts, Jr.: Thank you, Mr. Chief Justice, and may it please the Court: The petitioners seek to hold Great Lakes liable for the operations of its vessel on the navigable waters of the Chicago River while that vessel was doing what vessels of its sort normally do on navigable water, maritime repair work. In this instance, replacing pilings in the river.
William H. Rehnquist: What exactly... how would you describe this vessel?
John G. Roberts, Jr.: It was a repair barge. It's lengthy, I think about 150 feet--
William H. Rehnquist: And it moves from place to place on water?
John G. Roberts, Jr.: --With a tug. It's motivated by a tug. The fact that it lacks its own motive force doesn't make it any less a vessel, as this Court held in 1903 in cases involving barges on the Erie Canal. The... a Federal statute gives Great Lakes the express right to bring an action in Federal district court to limit its liability when faced with allegations of this sort, which is what it did, and the Seventh Circuit correctly held that that claim was in admiralty. First, the incident for which petitioners seek to hold us liable, and as to which we seek to limit our liability, occurred on navigable water. It posed a threat to maritime commerce. The greatest threat to maritime commerce was, in fact, realized when the river was shut to maritime traffic for more than a month, and the incident arose from traditional maritime activity.
Ruth Bader Ginsburg: Suppose the Court were to determine... the district court... that the limitation act doesn't apply, that you don't qualify within the terms of the statute. Then what?
John G. Roberts, Jr.: Well, that's a decision on the merits that would have to be made after trial, as the Seventh Circuit ruled in an issue on which the Seventh Circuit did not--
Ruth Bader Ginsburg: But then would there be no more admiralty jurisdiction? Would the Court then--
John G. Roberts, Jr.: --No.
Ruth Bader Ginsburg: --say, case dismissed?
John G. Roberts, Jr.: It would be case dismissed on the merits, like anything else. If you assert a cause of action under Federal law and get into Federal court that way, and it turns out the facts show that it didn't arise under Federal law after trial, jurisdiction doesn't evaporate. You lose on the merits. The same with the--
Ruth Bader Ginsburg: I'm thinking of the claims coming in, the Great Lakes start this controversy, but couldn't counterclaims come into the admiralty forum?
John G. Roberts, Jr.: --Yes, and they can be adjudicated once the court has jurisdiction. It's a typical pendant jurisdiction question, whether it makes sense to retain jurisdiction of those other claims after the claim giving rise to jurisdiction has been dismissed.
Ruth Bader Ginsburg: And if the court decided it didn't make sense, would the character of those claims then change so that when you brought your suit elsewhere it would no longer be considered under maritime law?
John G. Roberts, Jr.: I think if the case were brought elsewhere it would be governed by the law in that court. Once it's been established that this is, in fact, not something within admiralty jurisdiction, the fact that it was initially and it later developed that it was not shouldn't change the character of the law that applies.
Antonin Scalia: Mr. Roberts, is it your position that the Maritime Extension Act is really not at issue here, at this stage?
John G. Roberts, Jr.: Well, the Admiralty Extension Act added to 1333 gives jurisdiction. We make an alternative argument that it gives jurisdiction standing alone, but that's an argument that the Seventh Circuit didn't have to reach. Nor would this Court if it concludes that this is within general maritime jurisdiction supplemented by the Extension Act.
Antonin Scalia: Well, would you... are you saying that the Admiralty Extension Act is just irrelevant to your case?
John G. Roberts, Jr.: No, not at all. I'm saying that... the Admiralty Extension Act, we argue, gives jurisdiction quite apart from 1333. Our main argument is 1333, supplemented by the Admiralty Extension Act, confers jurisdiction. This activity took place on navigable water.
Anthony M. Kennedy: Does the Admiralty Extension Act purport to be defining the constitutional meaning of admiralty jurisdiction?
John G. Roberts, Jr.: No. It specifies that the admiralty jurisdiction includes all cases... all cases of injury on land caused by a vessel on navigable water.
Anthony M. Kennedy: Well, then, it's construing the phrase admiralty jurisdiction, is it not?
John G. Roberts, Jr.: It's within Congress' power to modify and supplement the admiralty jurisdiction, yes.
Anthony M. Kennedy: Can it expand it?
John G. Roberts, Jr.: It can expand it within reasonable bounds, yes.
Anthony M. Kennedy: What's the authority for that proposition?
John G. Roberts, Jr.: Well, the lower courts have uniformly found the act constitutional, and Congress--
William H. Rehnquist: Well, the Genesee Chief extended admiralty and overruled the Daniel Ball, did it not?
John G. Roberts, Jr.: --It did, and Congress does it with some regularity... the Longshore and Harbor Workers Act, where, for example--
Anthony M. Kennedy: But relying on the commerce power.
John G. Roberts, Jr.: --Relying on the commerce power--
Anthony M. Kennedy: Which, of course, it has, but here it purports to be simply defining the meaning of admiralty jurisdiction.
John G. Roberts, Jr.: --It defines a category of cases that were... are arguably within admiralty jurisdiction apart from the Extension Act. The question depends, if you have a tort on navigable water and the injury occurs elsewhere, it's an academic question where that tort occurred, and what Congress did, it said, we're going to resolve that controversy by saying that the fact that injury occurred on land doesn't defeat jurisdiction.
Anthony M. Kennedy: Sisson didn't cite the Admiralty Extension Act.
John G. Roberts, Jr.: No. It noted that the act had not been raised. This Court, of course, has applied the Admiralty Extension Act in cases like Gutierrez, without raising any question as to its--
Anthony M. Kennedy: Do you think the Sisson test incorporates the Admiralty Extension Act and we can just apply the Sisson test and be faithful to what the Admiralty Extension Act says?
John G. Roberts, Jr.: --I think if you have an incident on navigable water posing a threat to maritime commerce arising from traditional maritime activity, that that could be considered within the admiralty jurisdiction apart from the Admiralty Extension Act, yes, and here--
David H. Souter: Mr. Roberts, may I get down to more specific cases and the application of Sisson here? Do you believe it is proper in considering the second of the Sisson nexus tests, the activities test, to consider the activities of the city as well as the activities of Great Lakes?
John G. Roberts, Jr.: --No, we don't, Your Honor. We think--
David H. Souter: Why not? Why do we divorce the one? They're joint tortfeasors. Their suit is joint tortfeasors.
John G. Roberts, Jr.: --The definition of the incident and the activity comes from the allegations in the complaint. They seek to hold us liable for what we did. We seek the limit our liability for what we did. The pertinent activity is what we did. The fact that there are other--
David H. Souter: Well, doesn't... doesn't... I confess I didn't pull out the complaint before argument. Doesn't the complaint also charge the city?
John G. Roberts, Jr.: --We allege in our limitation complaint, yes, that the city is liable to us for contribution and indemnity, but the existence of other contributing causes doesn't defeat admiralty jurisdiction once it's found to exist. The test in Sisson looks to a potential threat to maritime commerce.
David H. Souter: Oh, I see, the plaintiff made no claim against the city. You are the plaintiffs in this--
John G. Roberts, Jr.: We are the plaintiffs in the limitation action.
Speaker: --I'm sorry.
John G. Roberts, Jr.: Yes. We were sued by Grubart and the city and then brought the limitation action in Federal--
David H. Souter: But Grubart made no claim against the city.
John G. Roberts, Jr.: --Oh, no, they do make claims against the city.
David H. Souter: Well, then, why do you not consider the claims under the second part of the nexus test, why shouldn't the claims against the city be considered as well as the claims against you?
John G. Roberts, Jr.: Because the question before the Court is whether we, Great Lakes, may bring a petition to limit our liability in admiralty. Well, limit your liability for what?
David H. Souter: And why shouldn't... yes, why shouldn't however, the entire... the entire tort claim, including the joint character of the joint claim, be considered in making that determination?
John G. Roberts, Jr.: Because the admiralty inquiry isn't a weighing, does the admiralty interest outweigh any other interests, it asks, under Sisson, is there a potential threat to maritime commerce, is there a substantial relation--
David H. Souter: Well, but the second Sisson nexus test is a test, or an inquiry, into the character of the activities out of which the incident arose, and I presume that if a claim is brought against two joint tortfeasors, those activities include the activities of each.
John G. Roberts, Jr.: --Well, the pertinent inquiry is into the activity of the party that's seeking admiralty jurisdiction, because once they establish their right to that jurisdiction, it can't be defeated by the fact that there are other contributing factors in the case.
Antonin Scalia: Mr. Roberts, let me ask this: isn't it possible, if you have a tort caused by the negligent actions of two different people, that one of them would be suable only in admiralty and the other one would not be suable in admiralty? If you have joint... if you have dual causality, it's quite possible that the City of Chicago can't be sued in admiralty, and that the barge company must be sued in admiralty, isn't that possible?
John G. Roberts, Jr.: Yes, and then added to that, of course, admiralty's traditional liberal joinder rules, and rule 14, which allows them to bring in other parties for contribution and indemnity, but the point is--
Ruth Bader Ginsburg: Well, it's perfectly-- --Your answer indicates that you disagree with, what is it, the Maritime Law Association, that sees this entire matter as governed by maritime law. Your answer to my question, and your most recent answers, seem to me inconsistent with the argument that's made by the Maritime Law Association, that if your limitation act claim fails, if the district court should decide Great Lakes is not entitled to limit its liability, then the district court would have the option, in effect, of remanding the case to the State court, at which point you said it loses its water equality and goes over to be just an ordinary, garden variety tort suit, but the Maritime Law Association says where the claimants, Grubart, may pursue their actions under the saving to suitors clause, which would be subject to substantive maritime law, so--
John G. Roberts, Jr.: --The question of what law to apply, and this gets into the city's argument, is a different question from whether or not there is admiralty jurisdiction. The argument that admiralty jurisdiction should turn on preemption analysis, choice of law analysis, is an argument that has been made before this Court before and rejected in the context of the Romero case. There, the question was, do admiralty claims arise under Federal law under 1331, and Justice Frankfurter, writing for the Court, said no, and the main reason he gave was that if they did, we would have to look at each admiralty claim and say, does this arise under State law or under Federal law, what's the Governing law, and he said, that type of analysis is inappropriate at the jurisdictional stage, and it's just as inappropriate today as it was in 1959.
Ruth Bader Ginsburg: --But your position remains that if you lose on your limitation claim there's no more admiralty jurisdiction, there's no more maritime law governing this case.
John G. Roberts, Jr.: No. It is up to the discretion of the district court judge in that case whether to retain the claims that were brought in ancillary to the admiralty claim. In other words, we don't think there's anything necessarily admiralty about Grubart's claims against the city. We think those claims could be brought in State court. We think they can be brought in admiralty because they arise out of the same general occurrence that gave rise to this claim, and under rule 14, we're entitled to bring the city in to seek contribution and indemnity, but we're not asserting that admiralty covers those claims. The issue is, can we bring our action, given to us under Federal law, to limit our liability in admiralty, and the question then becomes, in defining the activity, liability for what, and the liability is for what they say we did, our negligent conduct on the river while we were engaged in traditional maritime repair work. If the activity of the pleasure yacht in Sisson, tied up at the dock doing nothing, is traditional maritime activity, then surely the activities of this commercial vessel out on the navigable waters, plying its trade for hire, are as well.
Ruth Bader Ginsburg: So your picture is that the Grubart claimants should remain in State court with their lawsuits, they just sit there, till the district court decides the limitation question. If no limitation, then those ordinary tort claims go forward in State court.
John G. Roberts, Jr.: The claimants are in the admiralty case under rule 14, and the city is brought in. Therefore, the city must defend its claims, Grubart's claims against the city under rule 14 practice, but if... taking the whole thing from the beginning, if the Grubarts had just sued the city, that's not an admiralty case because it didn't arise out of maritime activity, didn't occur on navigable waters.
Ruth Bader Ginsburg: I'm picturing Grubart and all the others suing Great Lakes as well as the city.
John G. Roberts, Jr.: Then the claim--
Ruth Bader Ginsburg: In the State court, if your limitation claim fails, then you are as vulnerable as the city to an ordinary tort suit, in State court?
John G. Roberts, Jr.: --Well, the... it could be, depending on how the district judge in admiralty exercises his discretion under rule 14 to retain the cases after the determination of a failure of the liability claim or, the limitation claim, or to remand those to State court.
Ruth Bader Ginsburg: If he chose to retain them, they would be governed by State law, not maritime law?
John G. Roberts, Jr.: It's a separate choice of law inquiry that doesn't... on which jurisdiction doesn't turn. We don't know yet. The allegations against us, and against the city, for that matter, run the gamut. We drove the pilings in the wrong location. We didn't pull up the old ones well enough before driving the new ones. We drove the new ones in too deeply. We failed to discover the tunnel. Whether Federal law or State law governs any of those claims is an issue that can't be decided at the jurisdictional stage. It's easy to imagine the desirability of a uniform Federal rule about the location of pilings. It's easy to imagine the desirability of a uniform Federal rule about how deeply they're driven. Vessels are lied against them both deliberately and inadvertently all the time. Jurisdiction doesn't turn on that, because to make jurisdiction turn on it would require us to answer the question, what actually caused this incident, and Sisson tells us jurisdiction doesn't turn on such an inquiry into the merits. What does it turn on? Whether the incident occurred on navigable waters, as this did, whether it poses a threat to maritime commerce, as this did, and whether it arose out of traditional maritime activity, as this plainly did. This is the strongest case for traditional maritime activity to come before this Court since it first articulated the nexus test in Executive Jet. For the first time, we have a commercial vessel. For the first time, we have navigable water actually used by commercial traffic, and for the first time, we have the actual conduct of commercial activity. Foremost, two tiny pleasure boats in an area not used by commercial traffic, Sisson, a pleasure yacht at a recreational marina, yet in each case this Court found admiralty jurisdiction because of the potential threat to maritime commerce and the substantial relation to maritime commerce. The case for jurisdiction is that much stronger here, where you have actual maritime commerce involved and directly affected. Now, the answer that what's involved is pile-driving is a red herring. They say pile-driving is a common activity, takes place on land all the time, rules are developed to deal with it. Well, the transportation of goods from point A to point B is also something that takes place on land all the time and as to which rules have been developed, but when it takes place on navigable water, you're in admiralty. The same is true with respect to marine construction. There are whole fleets of vessels designed for marine construction work, just like there are vessels designed for carrying cargo, people, for fishing, salvage, towing, rescue, ice-breaking, and when the marine construction vessels are out on the navigable waters plying their trade, they are as involved in traditional maritime activity, maritime commerce, the core of this Court's admiralty jurisdiction, to as great an extent as any of those other vessels are. Now, there's... the petitioner's answer to the Admiralty Extension Act is to rewrite it. It's worth recalling what it says: the admiralty and maritime jurisdiction shall extend to and include all cases... all cases... of damage or injury to person or property caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. Now, they read that as if Congress meant to say the jurisdiction shall extend to some cases of injury on land caused by a vessel on navigable waters. Those were the injuries within the reach of the vessel and reasonably contemporaneous with the negligent conduct giving rise to it, but those qualifications are found nowhere in the language of the statute or in its legislative history. Congress knows how to write a statute like that if it wants to. That's what it did in the Longshore and Harbor Workers Act. It said jurisdiction extends to the dock, to the water, to the pier... a laundry list of things near the shore. That's not the approach it took in the Admiralty Extension Act, and--
Antonin Scalia: Well, the word caused requires some limitation. I mean, you acknowledge that there has to be some limitation of proximity of cause.
John G. Roberts, Jr.: --Jurisdiction goes hand-in-glove with liability. If it is a reasonable allegation of cause sufficient to give rise to liability, or trial, it triggers jurisdiction. That's a system that makes perfect sense. Under petitioner's approach you'd have jurisdiction stopping short of liability. They say we caused this for purposes of liability, but they want to say we didn't cause it for purposes of the Admiralty Extension Act. The symmetry should be maintained.
Ruth Bader Ginsburg: If you... you at... one part of your argument disassociates jurisdiction from choice of law. If you're right about admiralty jurisdiction, does it follow that the Workman rule of concern to the City of Chicago applies as well?
John G. Roberts, Jr.: Well, we think it does.
Ruth Bader Ginsburg: It follows like the night the day, once you get jurisdiction, that the choice of law will be the maritime rule?
John G. Roberts, Jr.: It doesn't follow night from day. It's a separate question, but we think because of the need for uniformity at the basis of admiralty jurisdiction, the Workman rule does apply. Now, that's something that can be debated once jurisdiction is established, but like everything else--
Ruth Bader Ginsburg: But you... so you concede that there would be a choice in the admiralty forum, a choice possibly of State law rather than maritime law.
John G. Roberts, Jr.: --We think it is a separate question. We think the question has already been answered by this Court in Workman, but it wasn't answered as a jurisdictional question, it was answered as a choice-of-law question. This is the rule that applies in admiralty. The city can argue there should be a different rule, that Workman for whatever reason ought to be overruled, but they're two separate questions, choice of law, and jurisdiction. That's the teaching of Erie Railroad v. Tompkins in the diversity area.
Ruth Bader Ginsburg: Except maritime jurisdiction is a little different, isn't it? In admiralty, the choice of law to a large extent, if you have jurisdiction you apply maritime law, is that not so?
John G. Roberts, Jr.: Yes, to a large extent, but not on every issue.
Ruth Bader Ginsburg: It's quite different from diversity, where you have Federal jurisdiction but you apply State law.
John G. Roberts, Jr.: Well, the number of areas in which State law apply are many. The Court listed some of them in Romero, and it dealt with another one just last term in American Dredging. It's an admiralty case in State court under the savings to suitors clause, but the question was, what law applies on forum non conveniens, State or Federal, and the difficult analysis in that case that gave rise to four different opinions is as good a reason not to adopt a choice-of-law rule for jurisdiction as can be imagined. It's the reason Justice Frankfurter gave in Romero. Choice-of-law questions are delicate, sensitive, require a complex weighing of interest. Look what they ask the district court--
Ruth Bader Ginsburg: I thought those rules, the Romero type rules, were kind of gap-filling rules consistent with the admiralty rules, not which do you pick when they are different.
John G. Roberts, Jr.: --Not what you pick when they're different, no, but the question is, if there's no rule to apply, do you apply State law, or do you devise a uniform Federal rule of maritime law, and what the city says is, you can only have jurisdiction if it's going to be a uniform rule. On what question? It's too early. Look what they ask a district court judge to do. A complaint lands on his desk. The district court judge apparently must decide, what are the dispositive legal issues going to be in this case? Then he or she must employ a choice-of-law analysis to decide whether Federal law is going to govern those dispositive issues or State law and then, finally, if it turns out, as will often be the case, there are more than one dispositive issue that might come up, apparently the judge has to weigh those governed by Federal law against those governed by State law, and somehow decide which interest predominates. All that to decide jurisdiction, to decide whether this case can proceed past the threshold step.
Antonin Scalia: Mr. Roberts, you've been talking about applying State law. I guess there is this difference between admiralty and diversity jurisdictions, that in admiralty it's a Federal rule that's always applied, is it not, although the Federal law may look to State law--
John G. Roberts, Jr.: Well, the State law--
Antonin Scalia: --for the rule of decision, whereas in diversity cases it is not really Federal... it is really State law that is being applied as State law, whereas in admiralty it is State law as applied as a rule of Federal decision.
John G. Roberts, Jr.: --Well, except in some instances, for example, the State law can provide the cause of action, the wrongful death cases, before the passage of legislation by Congress.
Antonin Scalia: But that's not what you're talking about here.
John G. Roberts, Jr.: No. This is a rule of decision, and again, we don't know what the dispositive issues are going to be, because we don't know what caused this incident. Is it because we drove the pilings allegedly in the wrong location? Admiralty will have a lot to say... Federal uniform rules, a lot to say where pilings should be in navigable water. Is it because we drove the pilings too deeply? Admiralty will have a lot to say about that, too. Maybe State law will govern, but vessels come up against the pilings all the time, and perhaps a uniform Federal rule would be appropriate. That's not the sort of decision that is made at the preliminary jurisdictional stage. Instead, you look at more... the inquiry is, as the Seventh Circuit said, more structured. Did this incident occur on navigable waters? Yes. Did it pose a threat to maritime commerce? That's not seriously disputed. Did it arise from traditional maritime activity? This case involved the hiring of a vessel to perform services on navigable water, not freakish services, but what these vessels do, what they're designed to do all the time, maritime repair work, repair work that was directly related to navigation. Keep in mind, what I've been maintaining is this activity is itself traditional maritime activity. All that the test requires is that it be substantially related to that. These pilings protect vessels as well as bridges from the dangers of allisions. They serve as fulcrums in the tight channels such as underneath the Kinzie Street Bridge to turn barge traffic by being towed by tugboats. They operate as channel markers if they're in the right location, as to which Federal admiralty law will have something to say, and by protecting the drawbridge they protect maritime commerce, because, of course, if the drawbridge didn't work, the commerce couldn't get through. The relation to maritime commerce here is as strong as in any case to come before this Court since Executive Jet. Looking at the injury, taking into account, as they say, the totality of the circumstances, and focusing on where the injury occurred, is, in our view, inconsistent with the Admiralty Extension Act. It means that in two identical cases, one in which the injury is felt on navigable water, and the other in which the injury is felt on land, there will be jurisdiction in the former but not in the latter, despite the clear direction from Congress to the contrary. The test they propose, a totality of the circumstances, seven-factor, policy-based balancing test, is wholly unsuited to the jurisdictional inquiry. Jurisdictional rules need to be clear, precise, easy to apply, and lead to predictable results. Totality-of-the-circumstances balancing tests are by their nature vague, indeterminate, manipulable, and lead to different results, depending on who does the balancing, a particular concern in jurisdictional cases, because, of course, any appellate court must look at the question of jurisdiction sua sponte and reevaluate it as a matter of law. The Sisson test is more structured, it is more focused, it limits the activities that are pertinent, it doesn't look at injured parties, what they were doing, it focuses on what took place on navigable water. We have in this case an incident on navigable water that closed the Chicago River for more than a month. It arose from traditional maritime activity. The conclusion of the Seventh Circuit that that case was within admiralty was correct, and should be affirmed.
William H. Rehnquist: Thank you, Mr. Roberts. Mr. Rosenthal, you have 1 minute remaining.
Lawrence Rosenthal: Mr. Roberts discussed many causes of action except the one that is actually before the Court, because this is the first time that this Court is asked to put any cause of action arising further inland than the reach of the vessel and its appurtenances into admiralty. The Extension Act does not put every cause of action arising from ship-to-shore injury into admiralty. Huron Portland Cement and Askew would have to be overruled, and there would be serious constitutional questions about the validity of the Extension Act if no nexus to Federal interests in maritime commerce were required. We read the Extension Act as it was read in the Askew case to require a preemption-based analysis. There is, indeed, no such thing as an admiralty case that does not provide for the displacement of State law with Federal law. As this Court said in the East River Steamship case, with admiralty jurisdiction comes the application of substantive maritime law. Admiralty jurisdiction is--
Speaker: --Which may sometimes refer to State law, however.
Lawrence Rosenthal: --That's correct, and it's up to Federal district courts, not State legislatures, to decide what rule, and whenever there is an applicable Federal rule, that Federal rule will always trump State law. That is why I say, Justice Scalia, admiralty jurisdiction is inherently preempted, and the test we urge is the preemption test this Court already uses when it asks whether State courts have lost jurisdiction. Thank you.
William H. Rehnquist: Thank you, Mr. Rosenthal. The case is submitted.