Supreme Court of the United States

Transcription

1 No In the Supreme Court of the United States FRANCIS & MARY MARION, CHARLES & MARY PINCKNEY, JOHN & ELIZABETH RUTLEDGE, JAMES S. THURMOND, AND ESSIE MAE WASHINGTON-WILLIAMS v. Petitioners, SALLY S SEAFOOD SHACK, INC., Respondent, On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF FOR THE PETITIONER P

2 i QUESTIONS PRESENTED 1. Whether the Limitation of Liability Act confers an independent basis for admiralty jurisdiction when the requirements of 28 U.S.C. 1333(1) (2019) are not met. 2. If this Court finds that the lower courts did not err in granting admiralty jurisdiction, whether Sally s is entitled to limit its liability pursuant to the Limitation of Liability Act.

3 ii TABLE OF CONTENTS QUESTIONS PRESENTED.i TABLE OF CONTENTS..ii TABLE OF AUTHORITIES.v OPINIONS BELOW...2 JURISDICTIONAL STATEMENTS..2 STATUTORY PROVISIONS 3 STATEMENT OF THE CASE.3 I. Statement of Facts.3 II. Statement of the Proceedings..5 SUMMARY OF ARGUMENT..8 ARGUMENT.13 I. THIS COURT SHOULD HOLD THAT 46 U.S.C DOES NOT CONFER AN INDEPENDENT BASIS OF ADMIRALTY JURISDICTION BECAUSE THIS ACT SHOULD ONLY BE APPLIED IN CASES APPLYING GENERAL ADMIRALTY JURISDICTION...13 A. The History and Purpose of the Limitation of Liability Act...13 B. The Limitation of Liability Act Does Not Provide an Independent Basis for Admiralty Jurisdiction in the Context of Claims Arising out of a Non- Maritime Tort Matter This Court should rely on Johnson which held that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction Sisson, among separate circuit court decisions, impliedly overturned Richardson This Court should adopt the rule that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction because

4 iii many circuit courts have adhered to the same rule...18 C. Sally s Does Not Qualify for Jurisdiction Pursuant to 28 U.S.C. 1333(1) Pursuant to Stewart and Lozman, a reasonable observer would not find Sally s to be a vessel that is afforded protection under the Limitation of Liability Act...23 a. Sally s is not located on a navigable waterway and thus, should not be afforded vessel status...25 b. If a vessel fails to satisfy the navigability test set forth in Foremost Ins. Co, a vessel owner may not petition to limit its liability pursuant to the Limitation of Liability Act...26 D. Sound Maritime Policy Supports the Contention that the Limitation of Liability Act Does Not Confer an Independent Basis for Admiralty Jurisdiction...27 II. SALLY S IS NOT ENTITLED TO LIMIT ITS LIABILITY UNDER THE LIMITATION OF LIABILITY ACT BECAUSE RESPONDENT ACTED WITH PRIVITY OR KNOWLEDGE OF THE IMPROPER TRAINING OF ITS EMPLOYEES, NAMELY JOHN CALHOUN 30 A. This Court Has Jurisdiction to Hear the Present Case because Petitioners Are Entitled to An Interlocutory Appeal as a Matter of Right Under 28 U.S.C. 1292(a)(3) Petitioners may bring this interlocutory appeal pursuant to 28 U.S.C. 1292(a)(3) because this case was decided in admiralty, thereby granting this Court proper jurisdiction The District Court committed reversible error by granting admiralty jurisdiction pursuant to the Limitation of Liability Act...33 B. Sally s is Not Entitled to Limit its Liability Under the Limitation of Liability Act because Sally s Acted with Privity or Knowledge of its Inadequate Training of John Calhoun Sally s privity or knowledge of its training of restaurant employees was the proximate cause of the Petitioners injuries, thereby disqualifying Respondent from limiting its liability under the Limitation of Liability

5 iv Act...34 a. Respondent negligently trained John Calhoun, and thus, acted with privity or knowledge pursuant to 46 U.S.C (b)...35 b. Respondent s omission in proper oversight establishes its privity or knowledge Policy set forth in Lewis suggests that a vessel owner s petition to limit its liability is typically denied when there are multiple claimants in order to avoid a concourse of claims...41 CONCLUSION...43 APPENDICES APPENDIX A: APPENDIX TO THE PETITION FOR CERTIORARI...A-1 APPENDIX B: STATUTORY PROVISIONS...B-1

6 v TABLE OF AUTHORITIES CASES U.S. Supreme Court American Car & Foundry Co. v. Bassert, 289 U.S. 261, 1933 AMC 749 (1933)...14 Anderson v. Nadon, 360 F.2d 53 (9th Cir. 1966)...42 Butler v. Boston & S.S.S. Co., 130 U.S. 527 (1889)...21 Coryell v. Phipps, 317 U.S. 406, 1943 AMC 18 (1943)...36, 37, 40 Craig v. Continental Ins. Co., 141 U.S. 638 (1891)...40 Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 1973 AMC 1 (1972)...17, 18, 23, 29 Foremost Ins. Co. v. Richardson, 457 U.S. 668, 1982 AMC 2253 (1982)...17, 18, 23, 29 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 1995 AMC 913 (1995)...passim Kossick v. United Fruit Co., 365 U.S. 731, 1961 AMC 833 (1961)...20 La Bourgogne, 210 U.S. 95 (1908)...36 Lake Tankers Corp. v. Henn, 354 U.S. 147, 1957 AMC 1165 (1957)...43 Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 2001 AMC 913 (2001)...41, 42

7 vi Lozman v. City of Riviera Beach, 568 U.S. 115, 2013 AMC 1 (2013)...passim Maryland Casualty Co. v. Cushing, 347 U.S. 409, 1954 AMC 837 (1954)...43 Norwich Co. v. Wright, 118 U.S. 468, 1998 AMC 2077 (1998)...27, 28 Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (C.A )...24 Richardson v. Harmon, 222 U.S. 96, 2001 AMC 1207 (1911)...passim Sisson v. Ruby, 497 U.S. 358, 1990 AMC 1801 (1990)...passim Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, 1932 AMC 503 (1932)...34, 35 Stewart v. Dutra Construction Co., 543 U.S. 481, 2005 AMC 609 (2005)...passim The Plymouth, 70 U.S. 20, 1999 AMC 2403 (1866)...25 U.S. Court of Appeals Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 1989 AMC 913 (9th Cir. 1989)...32 Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 2000 AMC 934 (4th Cir. 2000)...31 David Wright Charter Serv., Inc. v. Wright, 925 F.2d 783, 1991 AMC 2927 (4th Cir. 1991)...passim Evergreen International (USA) Corp. v. Standard Warehouse, 33 F.3d 420, 1995 AMC 635 (4th Cir. 1994)...7 Guillory v. Outboard Motor Corp., 956 F.2d 114, 1992 AMC 605 (5th Cir. 1992)...passim

8 vii Gulf Towing Co. v. Steam Tanker, Amoco New York, 648 F.2d 242, 1982 AMC 125 (5th Cir. 1981)...10, 31 Hercules Carriers, Inc. v. Claimant State of Florida Dep t of Transp., 768 F.2d 1558 (11th Cir. 1985)...38 In re Oil Spill by The Amoco Cadiz, 954 F.2d 1279, 1992 AMC 913 (7th Cir. 1992)...11, 36, 37, 38 In re Sisson, 867 F.2d 341, 1989 AMC 609 (7th Cir. 1989)...8, 17, 29 Joyce v. Joyce, 975 F.2d 379, 1993 AMC 312 (7th Cir. 1992)...37, 38 Kathriner v. UNISEA, Inc., 975 F.2d 657, 1994 AMC 2787 (9th Cir. 1992)...24 Kulack v. The Pearl Jack, 178 F.2d 154, 1950 AMC 390 (6th Cir. 1948)...38 Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1989 AMC 1521 (11th Cir. 1989)...passim Pershing Auto Rentals, Inc. v. Gaffney, 279 F.2d 546, 1960 AMC 1287 (2nd Cir. 1960)...43 Petition of H. & H. Wheel Service, Inc., 219 F.2d 904, 1955 AMC 1017 (6th Cir. 1955)...12, 38, 40 Petition of Moran Transp. Corp., 185 F.2d 386, 1951 AMC 66 (2nd Cir. 1950)...43 Petition of Wood, 230 F.2d 197, 1956 AMC 547 (2nd Cir. 1956)...43 Sea Vessel Inc. v. Reyes, 23 F.3d 345, 1994 AMC 2736 (11th Cir. 1994)...passim Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 1995 AMC 2087 (9th Cir. 1995)...passim

9 viii Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 1991 AMC 1356 (8th Cir. 1990)...passim Todd Shipyards Corp. v. Auto Transp. S.A., 763 F.2d 745, 1987 AMC 1831 (5th Cir. 1985)...31 Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1978 AMC 1786 (2d Cir. 1978)...11, 36, 41 U.S. District Courts Carter v. Allstate Ins. Co., 743 F. Supp. 2d 103, 108, 2010 AMC 2574 (D. Conn. 2010)...26, 27 Johnson v. Anderson, No. 3:06CV782 WWE, 2007 U.S. Dist. LEXIS 20467, 2007 AMC 1119 (Mar. 2, 2007)...8, 15, 16, 25 R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 327 F. Supp. 2d 664, 2004 AMC 1846 (E.D.Va. 2004)...31 Petition of Sause Bros. Ocean Towing Co., 193 F. Supp. 14, 1962 AMC 1782 (D. Or. 1960)...12, 40 STATUTES AND REGULATIONS Constitution U.S. Const. art. III, 2 cl. 1-2 (2019)...2 Federal Statutes 1 U.S.C. 3 (2019)...passim 28 U.S.C (2019)...passim 28 U.S.C. 1292(a)(3) (2019)...passim 46 U.S.C (2019)...passim

10 ix Jones Act, 46 U.S.C.A (West 2019)...24 SECONDARY SOURCES Law Reviews and Journals Arthur A. Crais Jr., The Limitation of Shipowner s Liability Act as an Independent Basis for Federal Jurisdiction?, 17 Loy. Mar. L.J. 206 (2008)...13 Amie L. Medley, Note, A Sea of Confusion: The Shipowner s Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction, 108 Mich. L. Rev. 229 (2009)...18, 27, 28 Russel G. Donaldson, Annotation, Effect on Other Proceedings of Shipowner s Petition in Admiralty for Limitation of Liability Under 46 U.S.C.A. 183, 47 A.L.R. Fed. 490 (2018)...12, 34, 41, 43 T.J. Oliver, Annotation, Application of Limitation of Liability Act to Personal Injury Action Under the Jones Act, 87 A.L.R. Fed. 2d 687 (2011)...36

11 1 No In the Supreme Court of the United States FRANCIS & MARY MARION, CHARLES & MARY PINCKNEY, JOHN & ELIZABETH RUTLEDGE, JAMES S. THURMOND, AND ESSIE MAE WASHINGTON-WILLIAMS v. Petitioners, SALLY S SEAFOOD SHACK, INC., Respondent, On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF FOR THE PETITIONER TO THE HONORABLE SUPREME COURT OF THE UNITED STATES: Petitioners, Francis & Mary Marion, Charles & Mary Pinckney, John & Elizabeth Rutledge, James S. Thurmond, and Essie Mae Washington-Williams, by counsel, respectfully submit this brief in support of their request that this Court find that the Limitation of Liability Act, 46 U.S.C (2019), does not provide an independent basis for admiralty jurisdiction. In the alternative, if this Court finds

12 2 that the Limitation of Liability Act provides an independent basis for admiralty jurisdiction, Petitioners request that this Court find that Respondents are not entitled to limit its liability in accordance with the Act. OPINIONS BELOW The opinion of the United States District Court for the District of South Carolina, dated March 13, 2017, granting Respondent s motion to limit its liability pursuant to the Limitation of Liability Act is in the Appendix to the Petition for Certiorari ( R. ) (R. at 9a-14a). The Appendix to the Petition for Certiorari is reproduced in Appendix A to the Brief for the Petitioner, see infra, p. A-1. The opinion and judgement of the United States Court of Appeals for the Fourth Circuit, dated May 7, 2018, upholding the District Court s decision that Respondent is entitled to limit its liability pursuant to the Limitation of Liability Act, and dismissing Petitioners interlocutory appeal, is in the Appendix to the Petition for Certiorari (R. at 1a-8a). JURISDICTIONAL STATEMENT This Court has admiralty jurisdiction pursuant to the Limitation Act, 46 U.S.C (2019), which suggests that limitation is a sufficiently maritime subject. Moreover, in light of the establishment of admiralty jurisdiction (R. at 13a), the United States Constitution grants this Court appellate jurisdiction over such admiralty cases. U.S. Const. art. III, 2, cl Furthermore, this Court has jurisdiction pursuant to 28 U.S.C. 1292(a)(3) (2019), which grants jurisdiction over appeals from interlocutory decrees of district courts or the judges thereof

13 3 determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (R. at 3a). STATUTORY PROVISIONS The following statutory provisions are relevant to the determination of the present action: The Limitation of Liability Act, 46 U.S.C (2019); Interlocutory Decision, 28 U.S.C. 1292(a)(3) (2019); Admiralty, Maritime and Prize Cases, 28 U.S.C. 1333(1) (2019). These provisions are set forth in Appendix B, see infra, p. B-1. STATEMENT OF THE CASE I. Statement of Facts On July 17, 2015, Petitioners Francis & Mary Marion, Charles & Mary Pinckney, John & Elizabeth Rutledge, James S. Thurmond, and Essie Mae Washington-Williams were dining at a restaurant known as Sally s Seafood Shack ( Sally s ). (R. at 10a.) Sally s is a seafood restaurant housed in a converted fishing vessel by the name of F/V Flamingo and owned by Respondent, a South Carolina corporation. (R. at 9a-10a.) Respondent converted the fishing vessel to a restaurant over ten years ago, and ever since the F/V Flamingo s conversion to a restaurant, it has been indefinitely moored on the banks of the Cooper River in Charleston, South Carolina. (R. at 10a.) Prior to its conversion to a restaurant, the F/V Flamingo was a seagoing vessel. Id. The restaurant was moored within a cofferdam which served two purposes: 1) to protect the restaurant; and 2) to ensure that the restaurant even if it were

14 4 detached from its moorings would be incapable of reaching the main navigable portion of the Cooper River. Id. Moreover, the portion of the river where Sally s was permanently moored is not considered navigable waters because those waters are presently not used, or capable of being used, as an avenue for interstate or foreign commerce. (R. at 11a.) Additionally, because of the location and nature of the cofferdam, no maritime commerce takes place inside the cofferdam where the restaurant is moored. Id. Despite the fact that the restaurant was located on a former fishing vessel, Respondent operated its restaurant business in accordance with the operations of the average seafood restaurant. Id. Furthermore, because Respondent operated its business in such a way, coupled with the reality that the restaurant was indefinitely moored to the shore, Sally s has never been engaged in maritime commerce. Id. While dining at Sally s on the evening of July 17, 2015, the Petitioners were injured as a result of an explosion in Sally s galley that caused the restaurant to sink at its anchorage. (R. at 10a.) The explosion in the galley of the restaurant occurred when Respondent s employee John Calhoun was instructed to light the gas range in the galley. (R. at 14a.) Although the Respondent claims that John Calhoun was trained in how to light the gas range and that Sally s was equipped to enable Calhoun to perform this duty, an explosion resulted when Calhoun endeavored to light the gas range. Id. After turning on the gas in the galley, Calhoun received a phone call and subsequently

15 5 exited the galley. Id. While Calhoun took the phone call, gas accumulated in the galley which triggered the explosion. Id. II. Statement of the Proceedings As a result of their injuries, the eight Petitioners filed state law tort suits against Respondent in state court between July and August of (R. at 1b). On November 5, 2015, Respondent filed a petition in the United States District Court for the District of South Carolina to limit its liability pursuant to the Limitation of Liability Act, 46 U.S.C (2019). Id. In accordance with 30511(b)(1), Respondent deposited $1, the value of the vessel and pending freight for purposes of 30505(a) with the District Court, thereby staying Petitioners state court tort actions against Respondent. (R. at 2a). Subsequently, during November of 2015, the Petitioners filed claims in Respondent s limitation proceeding. (R. at 1b). The District Court approached the limitation proceeding in two phases; Phase One of the trial, occurring between November 14 and 17, 2016, (R. at 1b), consisted of Respondent s argument that it was entitled to limitation of liability. (R. at 2a). At the close of Phase One, the District Court held that admiralty jurisdiction was established via the Limitation of Liability Act and the Respondent was ultimately permitted to limit its liability in accordance with the Act. (R. at 2a). The District Court found that the Limitation of Liability Act, 46 U.S.C (2019), provides an independent basis for admiralty jurisdiction despite the fact that the Act itself does not address jurisdiction. (R. at 11a). The court ultimately relied on the statutory interpretation that limitation is a sufficiently

16 6 maritime subject. (R. at 12a). Moreover, the court relied heavily on Richardson v. Harmon, 222 U.S. 96, 2001 AMC 1207 (1911), where the Supreme Court held the Limitation of Liability Act to confer admiralty jurisdiction over a district court hearing a non-maritime tort claim. (R. at 13a). In deciding whether the Limitation of Liability Act provides an independent basis for admiralty jurisdiction, the District Court made the preliminary determination that Sally s is, or at the time of the incident, was a vessel. (R. at 13a). The District Court reasoned, that Sally s satisfied the reasonable observer test set forth in Lozman v. City of Riviera Beach, 568 U.S. 115, 128, 2013 AMC 1, 11 (2013). Id. Lastly, the District Court held that Respondent was entitled to limit its liability because no design or neglect of the owner, nor any privity or knowledge of the owner was responsible for the restaurant sinking. (R. at 14a). Phase Two of the trial is when the court will determine Respondent s liability to Petitioners; however, this phase of the trial has not yet occurred. (R. at 2a). After the conclusion of Phase One of the trial, but prior to the scheduling of the Phase Two trial, Petitioners brought an interlocutory appeal in the United States Court of Appeals for the Fourth Circuit to challenge the District Court s holding that the Respondent is entitled to limit its liability. Id. Once at the appellate court, the court dismissed the appeal because the court found that it lacked appellate jurisdiction. (R. at 1a). Petitioners argued that

17 7 appellate jurisdiction existed because, pursuant to 28 U.S.C. 1292(a)(3) (2019), Petitioners were entitled to an interlocutory appeal (R. at 3a). In deciding whether Petitioners are entitled to an interlocutory appeal under 28 U.S.C. 1292(a)(3) (2019), the court first established that admiralty jurisdiction existed. (R. at 4a). Like the District Court, the Court of Appeals for the Fourth Circuit relied heavily on Richardson, 222 U.S. at 104, 2001 AMC at 1211, and found the Limitation of Liability Act to confer an independent basis for jurisdiction. Id. Subsequent to establishing that admiralty jurisdiction existed, the court asked in order to establish whether 1292(a)(3) furnished appellate jurisdiction under the present facts whether the District Court determined the rights and liabilities of the parties when it granted Sally s the right to limit its liability. Id. The appellate court reasoned that they must abide by the decision in Evergreen International (USA) Corp. v. Standard Warehouse, 33 F.3d 420, 1995 AMC 635 (4th Cir. 1994), and approached the case in a manner consistent with the Fifth Circuit. (R. at 6a). Ultimately, the appellate court found no appellate jurisdiction to exist in the present case because on its face, 1292(a)(3) does not provide admiralty jurisdiction when the issue of liability vel non has not yet been reached. (R. at 5a-6a). Accordingly, the appellate court dismissed Petitioners appeal. (R. at 6a). On May 14, 2018, subsequent to the appellate court s decision, Petitioners filed a petition for rehearing with the appellate court, which the court denied on June 26, (R. at 1b).

18 8 Petitioner timely petitioned for certiorari on September 4, 2018, asking this Court to consider two issues: 1) whether the Limitation of Liability Act, 46 U.S.C (2019), provides an independent basis for admiralty jurisdiction; and 2) whether the court of appeals had appellate jurisdiction under 28 U.S.C. 1292(a)(3) (2019). This court granted Petitioners petition for certiorari on December 3, (R. at 1b). SUMMARY OF ARGUMENT I. The District Court for the District of South Carolina and the Court of Appeals for the Fourth Circuit strayed from the original intention of the Limitation of Liability Act, which was to protect vessel owners by giving them the ability to limit their liability and to encourage commercial fishing. Despite the lower courts reliance on Richardson, which held that an independent basis for admiralty jurisdiction exists through the Limitation of Liability Act, this Court should rely on Johnson v. Anderson, No. 3:06CV782 WWE, 2007 U.S. Dist. LEXIS 20467, at *10, 2007 AMC 1119, 1123 (Mar. 2, 2007), where the court concluded that the Limitation of Liability Act does not purport an independent basis for admiralty jurisdiction. 222 U.S. at 106, 2001 AMC at While at the appellate level, In re Sisson, 867 F.2d 341, 350, 1989 AMC 609, 616 (7th Cir. 1989), established that the Limitation of Liability Act does not provide an independent basis for admiralty jurisdiction; once Sisson v. Ruby, 497 U.S. 358, 367, 1990 AMC 1801, 1808 (1990), reached the Supreme Court level, the court did not

19 9 assess whether the Act can provide an independent basis for jurisdiction. Moreover, by not assessing the aforementioned issue, the Supreme Court agreed with the lower court s bright line rule that, the Limitation of Liability Act does not confer an independent basis of admiralty jurisdiction. The Fourth Circuit in David Wright Charter Serv., Inc. v. Wright, followed this precedent, holding that the Limitation Act is not a source of admiralty jurisdiction.... [r]ather it is a procedure that may be invoked when general admiralty and maritime jurisdiction has been established. 925 F.2d 783, 785, 1991 AMC 2927, 2929 (4th Cir. 1991). The Fourth Circuit s decision in David Wright Charter Serv., Inc. should particularly influence this Court because this appeal arises from a decision in the Fourth Circuit. See id. It is settled, that Sally s is not located on navigable waters for purposes of establishing admiralty jurisdiction. The Fourth Circuit Court of Appeals has properly concluded with respect to the precedent set forth in the locality and maritime nexus tests that Sally s is neither on navigable waters nor is a vessel, therefore the present case cannot be brought in admiralty jurisdiction. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 1995 AMC 913, 919 (1995). Sally s is not a vessel within the meaning of 1 U.S.C. 3 (2019), because it is indefinitely moored within a cofferdam, rendering Sally s incapable of reaching a navigable waterway. Further, to a practical degree, Sally s is not a vessel under the reasonable observer test as provided in Lozman. See 568 U.S. at 121, 2013 AMC at 5. It is not possible for Sally s to transport persons or things over water because the structure is indefinitely moored on the banks of the Cooper River, and the

20 10 surrounding cofferdam ensures that Sally s cannot reach navigable waters should the restaurant detach from its moorings. See Lozman, 568 U.S. at 121, 2013 AMC at 5. This Court should hold that admiralty jurisdiction may only be granted to seagoing vessels and vessels used on lakes or rivers or in inland navigation. 46 U.S.C (2019). II. The District Court for the District of South Carolina and the Court of Appeals for the Fourth Circuit erred in granting admiralty jurisdiction through the Limitation of Liability Act, holding that the Act purports an independent basis for admiralty jurisdiction. 46 U.S.C (2019). The Limitation of Liability Act is not an independent source of admiralty jurisdiction, but instead is a procedure that may be invoked when general admiralty and maritime jurisdiction has already been established by the given facts. David Wright Charter Serv., Inc., 925 F.2d at 785, 1991 AMC 2927 at However, for the purpose of this appeal, given the lower courts error in granting admiralty jurisdiction, this Court has jurisdiction to hear the present case because Petitioners are entitled to an interlocutory appeal as a matter of right under 28 U.S.C. 1292(a)(3) (2019). Gulf Towing Co. v. Steam Tanker, Amoco New York, 648 F.2d 242, 244, 1982 AMC 125, 127 (5th Cir. 1981), held that the rights and liabilities of all parties do not need to be determined for a court to allow an interlocutory appeal in admiralty. 28 U.S.C. 1292(a)(3) (2019) should be interpreted broadly, as to provide this Court with jurisdiction to hear the present appeal. By its

21 11 own definition, 28 U.S.C. 1292(a)(3) (2019), grants the court jurisdiction over [i]nterlocutory appeals of... district courts of the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. Furthermore, the Limitation of Liability Act is only applicable in cases applying admiralty jurisdiction. 46 U.S.C (2019). Alternatively, if this Court finds that Sally s is considered a vessel with respect to the Limitation of Liability Act and ultimately confers admiralty jurisdiction, this Court should find that Respondent s neglect in training its restaurant employees was the proximate cause of the fire that injured eight patrons of the restaurant. The general limit of liability under 46 U.S.C (2019), grants limitation of liability to the owner of a vessel for any claim, debt, or liability described in subsection (b) and shall not exceed the value of the vessel and pending freight. Such claims, debts, and liabilities subject to limitation include those arising from any... act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner. 46 U.S.C (b) (2019) (emphasis added). To deny a limitation action, the court must find that the shipowner, by prior action or inaction set[s] into motion a chain of circumstances which may be a contributing cause even though not the immediate or proximate cause... In re Oil Spill by The Amoco Cadiz, 954 F.2d at 1303, 1992 AMC at 940; see also Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1158, 1978 AMC 1786, 1797 (2d Cir. 1978).

22 12 Privity or knowledge, for purposes of 46 U.S.C (2019), embraces acts of omission as well as commission. Petition of Sause Bros. Ocean Towing Co., 193 F. Supp. 14, 17, 1962 AMC 1782, 1785 (D. Or. 1960) (citing Petition of H. & H. Wheel Service, Inc., 219 F.2d 904, 914, 1955 AMC 1017, (6th Cir. 1955)). For purposes of Sally s petition to limit its liability, Respondent must not only prove that its actions regarding the adequate training of its employees were without privity or knowledge, but also, that its omissions, in the same respect, were without privity or knowledge. The savings to suitors clause provides that the district courts shall have original jurisdiction, exclusive of the courts of the States, of... any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. 28 U.S.C. 1333(1) (2019). To provide adequate remedies in cases with multiple claims exceeding the value of the limitation fund, courts today have recognized the theory that only the vessel owner benefits from the limitation; to prevent unequal remedies in cases with multiple claimants, some courts do not grant the owner the benefits of the Limitation of Liability Act. Russel G. Donaldson, Annotation, Effect on Other Proceedings of Shipowner s Petition in Admiralty for Limitation of Liability Under 46 U.S.C.A. 183, 47 A.L.R. Fed 490, 492 (2018). Respondent is not entitled to the protections of the Limitation of Liability Act because it acted with privity or knowledge in its negligent training of an employee

23 13 who caused the explosion which ultimately injured Petitioners. 46 U.S.C (b) (2019). ARGUMENT I. THIS COURT SHOULD HOLD THAT THE LIMITATION OF LIABILITY ACT DOES NOT CONFER AN INDEPENDENT BASIS OF ADMIRALTY JURISDICTION BECAUSE THIS ACT SHOULD ONLY BE APPLIED IN CASES UNDER GENERAL ADMIRALTY JURISDICTION. The Limitation of Liability Act does not confer an independent basis of admiralty jurisdiction because Sally s is not a vessel for purposes of this Act. See Lozman, 568 U.S. at 121, 2013 AMC at 5; Stewart v. Dutra Construction Co., 543 U.S. 481, 494, 2005 AMC 609, 617 (2005). The lower courts erred in finding that the Limitation of Liability Act confers an independent basis of admiralty jurisdiction for Respondent s limitation claim. The Limitation of Liability Act should be construed narrowly as to apply only to the owners of commercial vessels in navigation. Here, Sally s was indefinitely moored within a cofferdam, making it evident that Sally s was not intended for navigation; rather, Sally s was intended to be a restaurant housed in a former fishing vessel that has been out of commission for over ten years. Furthermore, this sound maritime policy is reflected in several circuit court decisions, and therefore, this Court should hold that Sally s is not a vessel subject to the Limitation of Liability Act. A. The History and Purpose of the Limitation of Liability Act. In its earliest form, dating back to a 1734 English statute, the Limitation of Liability Act limited the liability of vessel owners for their own protection in case of adversity on the high seas. Arthur A. Crais Jr., The Limitation of Shipowner s

24 14 Liability Act as an Independent Basis for Federal Jurisdiction?, 17 Loy. Mar. L.J. 206, 211 (2018). This early form of the Limitation of Liability Act was restricted in its application to vessel owners, the value of the vessel, plus any pending freight. See American Car & Foundry Co. v. Bassert, 289 U.S. 261, AMC 749 (1933). The Limitation of Liability Act was enacted in order to protect and grant advantages to United States vessel owners by giving them the ability to limit their liability and to encourage commercial fishing. See Richardson, 222 U.S. 96, 104, 2001 AMC 1207, 1211 (1911). Today, the codified statutory provisions of the Limitation of Liability Act in 46 U.S.C (2019), provide limitations to the liabilities incurred by vessel owners and carriers of goods. Specifically, provides that a vessel owner can limit its liability with respect to claims by cargo or collision, personal injury, or death that occurs without the privity or knowledge of the vessel owner, to the value of the interest in the vessel at the end of the voyage. Moreover, restricts the application of the Act to vessels on navigable waters. Notably, the Limitation of Liability Act does not offer the courts any direction on whether the Act, in itself, confers an independent basis for admiralty jurisdiction. 46 U.S.C (2019). Considering that the intent of the Limitation of Liability Act was to benefit commercial vessel owners, there have been a plethora of trial and circuit court decisions that have denied the right to limit liability to owners of recreational vessels. B. The Limitation of Liability Act Does Not Provide an Independent Basis for Admiralty Jurisdiction in the Context of Claims Arising out of a Non-Maritime Tort Matter.

25 15 In deciding the present case, the Court of Appeals for the Fourth Circuit relied on Richardson, which provided for a broad interpretation of 46 U.S.C (2019), ultimately allowing vessel owners to limit their liability for non-maritime torts. 222 U.S. at 106, 2001 AMC at The court in Richardson, noted that early versions of the Limitation of Liability Act did not allow vessel owners to limit their liability when the damage was non-maritime in nature. Id. at 102, 2001 AMC at Here, the lower courts held that general admiralty jurisdiction does not exist, and the only basis for admiralty jurisdiction is through the Limitation of Liability Act. Given that general admiralty jurisdiction does not exist, as the parties have conceded, the explosion at Sally s is therefore not a maritime tort. Although the court in Richardson, broadly interpreted the Limitation of Liability Act to find an independent basis for admiralty jurisdiction, this Court should not adhere to this decision. Id. at 103, 2001 AMC at This Court should narrowly interpret the Limitation of Liability Act to grant vessel owners an independent basis for admiralty jurisdiction only when a maritime tort has been committed. 1. This Court should rely on Johnson which held that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction. Despite the fact that the Fourth Circuit Court of Appeals agreed with Richardson in that 46 U.S.C (2019) harmonizes with the policy of limiting the owner s risk to his interest in the ship in respect of all claims arising out of the conduct of the master and crew, whether the liability be strictly maritime or from a tort non-maritime, this Court should take a narrower approach, as seen in Johnson.

26 16 Richardson, 222 U.S. at 103, 2001 AMC at 1210; Johnson, 2007 U.S. Dist. LEXIS 20467, at *9-10. The court in Johnson, held that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction because a non-maritime tort should not be afforded the same protection as a maritime tort. Johnson, 2007 U.S. Dist. LEXIS 20467, at *9-10. The petitioner in Johnson urged the court to find an independent basis for admiralty jurisdiction pursuant to Richardson, however, the court rejected this petition, concluding that the petitioner had not offered any basis for a conferral of such jurisdiction. Id. at *10. The Johnson court specifically noted that, [n]either Richardson v. Harmon nor the Extension of Admiralty Jurisdiction Act purports to provide admiralty jurisdiction for torts involving vessels that are not on navigable waters U.S. Dist. LEXIS 20467, at *10 (quoting David Wright Charter Serv., Inc, 925 F.2d at 785, 1991 AMC at 2929) (emphasis added). Similar to the court s conclusion in Johnson, this Court should reject Respondent s contention, and the lower court s ruling, that admiralty jurisdiction has been established pursuant to the Limitation of Liability Act for a non-maritime tort U.S. Dist. LEXIS 20467, at * Sisson, among other circuit court decisions, impliedly overturned Richardson. In addition to Johnson s rejection of the holding in Richardson, that the Limitation of Liability Act confers an independent basis for admiralty jurisdiction, several circuit courts have considered the issue and ruled in accordance with Johnson. The Supreme Court left the question whether the Limitation of Liability Act confers an independent basis of admiralty jurisdiction in the context of non-

27 17 maritime torts open in Sisson. 497 U.S. at , 1990 AMC at In Sisson, a fire broke out on a noncommercial vessel docked on a navigable waterway, and the court found general admiralty jurisdiction to exist, thereby entitling the vessel owner to limit its liability. Id. at 367, 1990 AMC at The court held that 28 U.S.C. 1333(1) (2019), conferred admiralty jurisdiction because the locality and maritime nexus tests were satisfied. Id.; Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675, 1982 AMC 2253, 2255 (1982); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 261, 1973 AMC 1, 11 (1972). 1 Considering that the court in Sisson, found a basis for general admiralty jurisdiction via the locality and traditional maritime activity tests, this Court should apply the same tests to the facts of the present case. See Sisson, 497 U.S. at 363, 1990 AMC at ; see also In re Sisson, 867 F.2d 341, 350, 1989 AMC 609, 616 (7th Cir. 1989) ( A proceeding under the Limitation of Liability Act will be cognizable in admiralty only when the underlying tort has a relationship to traditional maritime activity. ). The Seventh Circuit in In re Sisson held that admiralty jurisdiction for nonmaritime torts is not cognizable in admiralty because the limited liability act of Congress did not extend to any such right of action. 867 F.2d at , 1989 AMC at 609; see also Richardson, 222 U.S. at 101, 2001 AMC at Although the Supreme Court in Sisson, left the question as to whether the Limitation of Liability Act confers an independent basis of admiralty jurisdiction open, the Seventh Circuit held that the Act does not provide such jurisdiction. 497 U.S. at 363, 1990 AMC at 1 As a result of the court s conferral of admiralty jurisdiction, the court granted the vessel owner s petition to limit their liability. Sisson, 497 U.S. at , 1990 AMC at

28 ; In re Sisson, 867 F.2d at 349, 1989 AMC at 609. The Supreme Court s failure to consider whether the Limitation of Liability Act confers an independent basis for admiralty jurisdiction in Sisson, constitutes an implied overruling of the Richardson, rule that the Act provides an independent basis for jurisdiction. Sisson, 497 U.S. at 359, 1990 AMC at Sisson, spearheaded the discussion on whether the Limitation of Liability Act confers an independent basis for admiralty jurisdiction and thus, this Court should adhere to such discussion. See id. at 363, 1990 AMC at This Court should adopt the rule that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction because many circuit courts have adhered to the same rule. A recent trend among federal circuit courts hearing limitation proceedings is to deny vessel owners limitation petitions on the grounds that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction. Amie L. Medley, Note, A Sea of Confusion: The Shipowner s Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction, 108 Mich. L. Rev. 229, 232 (2009). Shipowners claims pursuant to the Limitation of Liability Act fail in the absence of satisfying the maritime nexus and locality tests set out in Executive Jet Aviation, Inc. and Foremost Ins. Co.. See Foremost Ins. Co., 457 U.S. at 675, 1982 AMC at 2255; Executive Jet Aviation, Inc., 409 U.S. at 293, 1973 AMC at 11. Stemming from Sisson, this trend was made law in Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 1991 AMC 1356 (8th Cir. 1990). In Three Buoys Houseboat Vacations U.S.A. Ltd., a service vessel struck a houseboat

29 19 causing the service vessel to sink and as a result, two of the houseboat s passengers died and another three were injured. Id. at 776, 1991 AMC The Eighth Circuit correctly held that [w]here admiralty jurisdiction fails for want of a navigable waterway, so does the reach of the Act. Thus, even if the Appellant discovered an independent basis for subject matter jurisdiction, it still would not be afforded the protection of the Act because the Act does not apply beyond navigable waterways. Id. at 780, 1991 AMC at The concept that the Limitation of Liability Act does not confer an independent basis for admiralty jurisdiction is furthered in the Fifth Circuit s decision on Guillory v. Outboard Motor Corp., 956 F.2d 114, 115, 1992 AMC 605, 605 (5th Cir. 1992). The court in Guillory, held that a vessel that suffered loss on a waterway blocked by a dam, was not entitled to the protections of the Limitation of Liability Act. Specifically, the court concluded, [t]he Limitation of Liability Act does not confer jurisdiction upon federal courts. That must come from our admiralty jurisdiction.... Suits lacking any relationship to either navigable waters or traditional maritime activity are without admiralty jurisdiction. Id. Citing decisions from the Fifth and Eighth Circuits, the Eleventh Circuit s decision on Sea Vessel Inc. v. Reyes, 23 F.3d 345, 348, 1994 AMC 2736, (11th Cir. 1994), reinforced the rule that [t]he Limitation of Liability Act does not provide an independent basis for admiralty jurisdiction. In Sea Vessel Inc., a vessel caught fire from an explosion while the vessel was dry-docked for repairs. Id. at 346, 1994 AMC at The court established admiralty jurisdiction exclusively through 28

30 20 U.S.C. 1333(1) (2019), and correctly concluded that the Limitation of Liability Act does not provide an independent basis for admiralty jurisdiction. Id. at 347, 1994 AMC The aforementioned decision was prefaced by Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1054, 1989 AMC 1521, (11th Cir. 1989), which held that a party may not base admiralty jurisdiction solely upon the Limitation Act in the absence of a significant relationship between its claim and traditional notions of maritime activity. In Lewis Charters, Inc., a vessel caught fire in a paint facility, causing another vessel in the facility to catch fire. Id. at 1047, 1989 AMC at After the court failed to confer admiralty jurisdiction via 28 U.S.C. 1333(1) (2019), the court further concluded that the Limitation of Liability Act does not provide and independent basis for admiralty jurisdiction. Id. at 1054, 1989 AMC at Furthermore, the court in Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 774, 1995 AMC 2087, (9th Cir. 1995), upheld the foregoing circuit court decisions, in holding that that it lacked admiralty jurisdiction over claims arising from incidents occurring on a non-navigable waterway. In Seven Resorts, Inc., a houseboat struck a swimmer with its propeller blade, while on a non-navigable waterway. Id. at 772, 1995 AMC at The court concluded that in order to establish admiralty jurisdiction over tort claims, the vessel at the time of the incident, must have been located on navigable waters. Id. at 774, 1995 AMC at (citing Kossick v. United Fruit Co., 365 U.S. 731, 736, 1961 AMC 833, (1961)).

31 21 Most importantly, the Fourth Circuit followed this precedent in deciding David Wright Charter Serv., Inc., 925 F.2d 783, 785, 1991 AMC 2927, 2929 (4th Cir. 1991), where the court held that the Limitation Act is not a source of admiralty jurisdiction. Rather it is a procedure that may be invoked when general admiralty and maritime jurisdiction has been established. Like Sally s, which was located in a cofferdam, the vessel in David Wright Charter Serv., Inc. was located off of a navigable waterway, in a shed, seventy-five feet from the water. Id. at 784, 1991 AMC at Furthermore, like the land-based tort claims that were asserted in David Wright Charter Serv., Inc., the explosion at Sally s occurred within a cofferdam, thereby rendering Sally s incapable of reaching a navigable waterway. Id. at 785, 1991 AMC at 2929; See Three Buoys Houseboat Vacations USA, Ltd., 921 F.2d at 780, 1991 AMC at This Fourth Circuit decision was persuaded further: It being clear, then, that the law of limited liability of shipowners is a part of our maritime code, the extent of its territorial operation (as before intimated) cannot be doubtful. It is necessarily coextensive with that of the general admiralty and maritime jurisdiction, and that by the settled law of this country extends wherever public navigation extends on sea and the great inland lakes, and the navigable waters connecting therewith. Butler v. Boston & S.S.S. Co., 130 U.S. 527, 557 (1889). As outlined in Sisson, and furthered in the above Fifth, Eighth, Ninth, Eleventh, and most importantly Fourth Circuit decisions, the Limitation of Liability Act does not confer an independent basis of admiralty jurisdiction. See Sisson, 497 U.S. at , 1990 AMC at ; Seven Resorts, Inc., 57 F.3d at 774, 1995 AMC at ; Sea Vessel Inc., 23 F.3d at 348, 1994 AMC at ; Guillory,

32 F.2d at 115, 1992 AMC at 605; David Wright Charter Serv., Inc., 925 F.2d at 785, 1991 AMC at 2929; Three Buoys Houseboat Vacations U.S.A. Ltd., 921 F.2d at 780, 1991 AMC at 1362; Lewis Charters, Inc., 871 F.2d at 1054, 1989 AMC at Moreover, the Fourth Circuit s decision in David Wright Charter Serv., Inc. should particularly influence this Court because this appeal arises from a decision in the Fourth Circuit. See 925 F.2d at 785, 1991 AMC at There are key policy reasons that urge a circuit court to uphold law that originates from within its own circuit; moreover, this Court should uphold the decision in David Wright Charter Serv., Inc., because such decision remains viable law. See id. C. Sally s Does Not Qualify for Jurisdiction Pursuant to 28 U.S.C. 1333(1). As the Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have held, the Limitation of Liability Act does not provide an independent basis for admiralty jurisdiction without a preliminary foundation of 28 U.S.C. 1333(1) (2019), admiralty jurisdiction. Vessel owners are not entitled to the protections of the Limitation of Liability Act without first establishing that their contrivance was indeed a vessel pursuant to 1 U.S.C. 3, Stewart v. Dutra Construction Co., 543 U.S. 481, 2005 AMC 609 (2005) and Lozman, 568 U.S. at 115, 2013 AMC at 1, while also satisfying the location and traditional maritime nexus tests provided in Jerome B. Grubart, Inc., 513 U.S. at 527, 1995 AMC at 913. The definition of vessel includes every description of watercraft or artificial contrivance used, or capable of being used, as a means of transportation on water. 1 U.S.C. 3; see also Stewart, 543 U.S. at 482, 2005 AMC at Moreover, a vessel

33 23 must be designed to any practical degree for carrying people or things on the water. Lozman, 568 U.S. at 125, 2013 AMC at In its pursuit of defining what constitutes navigable waters, the Supreme Court created the locality and maritime nexus requirements in the Foremost Ins, Co., and Executive Jet Aviation, Inc. decisions. See 457 U.S. at 675, 1982 AMC at 2255; 409 U.S. at 261, 1973 AMC at 11. Vessels must be on navigable waters and bear a substantial relationship to traditional maritime activity this includes the potential to disrupt maritime commerce in order to pursue a claim within admiralty jurisdiction. Jerome B. Grubart, Inc., 513 U.S. at 534, 1995 AMC at 919. The Fourth Circuit Court of Appeals has properly concluded with respect to the precedent set forth in Jerome B. Grubart, Inc. that Sally s is neither on navigable waters nor is a vessel and therefore, the present case cannot be brought in admiralty jurisdiction. See id. It is evident, as the lower courts have agreed, that Sally s does not meet any of the core requirements needed to establish admiralty jurisdiction pursuant to 28 U.S.C. 1333(1) (2019). 1. Pursuant to Stewart and Lozman, a reasonable observer would not find Sally s to be a vessel that is afforded protection under the Limitation of Liability Act. While 1 U.S.C. 3 encompasses the predominant definition of vessel, the Lozman, and Stewart, courts established that in addition to meeting the definition of 3, a structure must satisfy the reasonable observer test and not be indefinitely moored, to qualify for vessel status. See 568 U.S. at 118, 2013 AMC 3-4; 543 U.S. at 482, 2005 AMC at The court in Stewart, established that [a] watercraft is

34 24 not capable of being used for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. 543 U.S. at 482, 2005 AMC at Stewart makes a clear distinction between vessels capable of being used for maritime transport and a contrivance that has been indefinitely moored, reasoning that: A ship and its crew do not move in and out of Jones Act coverage depending on whether the ship is at anchor, docked for loading or unloading, or berthed for minor repairs, in the same way that ships taken permanently out of the water as a practical matter do not remain vessels merely because of the remote possibility that they may one day sail again. 543 U.S. at 494, 2005 AMC at 617; (citing Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 570, 1995 AMC 2038, 2047 (5th Cir. 1995) ( floating casino was no longer a vessel where it was moored to the shore in a semi-permanent or indefinite manner ); (citing Kathriner v. UNISEA, Inc., 975 F.2d 657, 660, 1994 AMC 2787, 2791 (9th Cir. 1992) ( Generally, floating structures are not classified as vessels in navigation if they re incapable of independent movement over water, are permanently moored to land, have no transportation function of any kind, and have no ability to navigate. ). The definition of vessel was narrowed further in Lozman, with the introduction of the reasonable observer test, which provides that a structure is not considered to be a vessel pursuant to 1 U.S.C. 3 unless a reasonable observer, considering the structure s physical attributes, would believe to a practical degree that the structure is able to carry people or things over water. 568 U.S. at 118, 2013 AMC 3-4. In applying the reasonable observer standard to the present case, it is not possible for

35 25 Sally s to transport persons or things over water because the structure is indefinitely moored on the banks of the Cooper River, and the surrounding cofferdam ensures that Sally s cannot reach navigable waters should the restaurant detach from its moorings. See id. at 121, 2013 AMC at 5. Ultimately, after assessing the definition of vessel provided in 1 U.S.C. 3 as well as applying the vessel analysis set forth in Stewart and Lozman, to the present facts, it is evident that Sally s is not a vessel with respect to what the Limitation of Liability Act was designed to protect. a. Sally s is not located on a navigable waterway and thus, should not be afforded vessel status. The Limitation of Liability Act applies to seagoing vessels and vessels used on lakes or rivers or in inland navigation. 46 U.S.C (2019). Preceding case law holds that the Limitation of Liability Act for the purpose of establishing admiralty jurisdiction applies solely to injuries occurring on waters considered navigable. See Johnson, 2007 U.S. Dist. LEXIS 20467, 2007 AMC 1119; Three Buoys Houseboat Vacations U.S.A. Ltd., 921 F.2d at 780, 1991 AMC at 1362; Guillory, 956 F.2d at 115, 1992 AMC at 605; Sea Vessel Inc., 23 F.3d at 348, 1994 AMC at ; Lewis Charters, Inc., 871 F.2d at 1054, 1989 AMC at ; Seven Resorts, Inc., 57 F.3d at 774, 1995 AMC at ; David Wright Charter Serv., Inc., 925 F.2d at 785, 1991 AMC at The court first addressed the issue of what constitutes a navigable water in The Plymouth, 70 U.S. 20, 35, 1999 AMC 2403, 2405 (1866), where the court held that the wrong and injury complained of must have been committed wholly upon the