Although they don’t know it, sharks made headlines this past summer with a number of sightings in Long Island waters. While it was alarming news for many swimmers, I guess it didn’t seem like a big surprise for local residents and boaters who realize that a number of different shark species are indigenous to this stretch of the Atlantic. Whatever it is about them, sharks never cease to strike in us feelings of both awe and fear.
When it comes to observing sharks, I’m content to satisfy my curiosity by watching them in nature documentaries on television or trying to dig up the old National Geographic magazine that Chief Brody was grimly poring over in the movie Jaws. As a child, I must have spent hours reading that February 1968 issue over and over again, with its big spread of the various shark species and that terrifying painting depicting a great white smashing its head through the bottom of a small fishing boat off Cape Breton Island in Canada.
For those with a stronger outdoor spirit than mine, there are excursions where one can enter the water and observe these magnificent creatures in their own universe. And it was one such out-of-the-cage diving expedition on the West Coast that gave rise to a lawsuit which examined the operation of maritime law in such a setting. The expedition offered guests the opportunity to get up close with makos and blue sharks. However, one of the participants was bitten by a shark and filed a lawsuit against the parties involved.
The guest who was bitten based her action on negligence and held that admiralty and maritime jurisdiction was proper under the Federal Rules of Civil Procedure. In response, the defendants in the matter filed motions to dismiss. The federal court presiding over the matter did not allow dismissal of the diver’s claims.
Federal courts do have the authority to hear maritime matters. This is established in the U.S. Constitution under Article III. Federal case law applies a two-part test to determine whether a legal action falls under admiralty jurisdiction. The first element hinges on locality. The second element is the relationship, or nexus, test for showing a connection between the incident and maritime activity. This second element is the more complex of the two and asks whether the incident has a potentially disruptive impact on maritime commerce and if the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity (Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)).
Here, the parties consented to magistrate judge jurisdiction. The shark bite victim believes one of the defendants was intoxicated during the feeding and thus improperly and negligently directed divers, including herself, to an unsafe area. She alleges that to feed a swimming mako shark, this defendant held the bait so that it led a shark directly toward her. As a result of being bitten, she says she sustained multiple severe permanent injuries and disfigurement, as well as emotional distress.
The court determined that the locality test was met here because the incident took place on the navigable waters of Southern California (Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 255 (1972)). For the second element of the analysis, the court felt that a scuba diver suffering an injury on navigable waters after diving off a commercial vessel could result in the diversion of another vessel to try to render assistance. It provided a hypothetical of a diver being injured and needing to be transported to shore immediately, all this occurring before other divers had returned to the boat. Under such circumstances, another vessel could carry the injured diver ashore for medical care, or play retrieval boat for divers remaining in the water if the original vessel made the dash to shore for medical care (Strickert v. Neal, 2015 WL 7737312 (D. Haw. Nov. 30, 2015)).
We’ll have to follow this case for legal developments as they materialize. There were other issues also addressed by the court in this case. However, for now, the decision of the judge here shows us that a legal action of this nature does fall within the admiralty jurisdiction of federal courts.
United States District Court for the Southern District of California, Specker v. Kazma, Mako Shark Diving, LLC, Yellow Charter Boat, Inc. in personam, Cetus Specula, in rem; Case No. 15CV2567