UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RICHMOND INDUSTRIAL CENTER, INC.,
MEMORANDUM & ORDER
Plaintiff,
IO-CV-SS86 (NGG) (CLP)
-against-

THE FERRY THE GOV. HERBERT H. LEHMAN,

~-U... I::U
her engines, boilers, tackle, apparel, furnishings, IN CLERK'S OFFIC!
appurtenances, etc. and all other necessaries, LA U.S.DISTRICTCQURTE.D.N.Y.
VIVIANA INDUSTRIES, INC., TERRACE GATE
REALTY, LLC, TAHMAZ REALTY, LLC, YASAR * MAY 13 2011 *
TAHMAZ, individually, JACK MOWBRY,
individually, and HELEN MARKIDOS, individually, BROOKLYN OFFICE

Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

Before the court is Defendant Yasar Tahmaz's motion to dismiss for lack of subject

matter jurisdiction. (Tahmaz Mot. (Docket Entry # 21).) For the reasons set forth below, the

court grants the motion.

I. BACKGROUND

On December 2,2010, Plaintiff Richmond Industrial Center, Inc. ("Richmond") filed a

Complaint against La Viviana Industries, Inc. ("La Viviana"), Jack Mowbry ("Mowbry"), Yasar

Tahmaz ("Tahmaz"), Tahmaz Realty, LLC ("Tahmaz Realty"), Terrace Gate Realty, LLC

("Terrace Gate''), and The Ferry The Gov. Herbert H Lehman (the "Ferry''), an out-of-

commission Staten Island ferry. (Compl. (Docket Entry # I).) Richmond alleges that it owns a

parcel ofland with an attached concrete pier, located at 3075 Richmond Terrace, Staten Island,

New York. (See id. ~ 9.) On April 2, 2007, Richmond sold a portion of its property to Rasay

Corp. ("Rasay"), including the concrete pier, subject to a mortgage. (Id. ~ 12.) The mortgage

included a restriction that prohibited Rasay from selling its ownership in the property without
first obtaining permission from Richmond. (llt ~ 13.) Despite this provision, Richmond alleges

that Rasay wrongfully sold the property to Terrace Gate and Tahmaz Realty in 2008-subject to

another mortgage-without first obtaining Richmond's consent. (Id. ~ 14.) After Terrace Gate

defaulted on its mortgage to Rasay, the parties engaged in state court proceedings to quiet title to

the premises. (llt mlI5-21.) Sometime during the pendency of those proceedings, Terrace Gate

and Tahmaz entered into an agreement with La Viviana to allow it to moor the Ferry to a

concrete pier on the mortgaged property. (llt, 23.) In its Original Complaint, Richmond

alleged that the Ferry was improperly moored to the pier and posed a danger to "property,

environment and life." (Id. ~ 24.)

From December 2,2010 to January 18,2011, the court presided over several conferences

among the parties regarding moving the Ferry from Richmond's pier. On December 2, 2010, the

court directed the United States, as an interested party, to file a letter with the court "detailing the

United States Coast Guard's views on the safety of the vessel, as presently moored, and steps

that may be necessary to render the vessel reasonably safe to the public." (Docket Entry Dec. 2,

2010.) On December 9,2010, the Coast Guard issued a "tow plan" under 33 C.F.R. § 160.111,

describing its views of the safety of moving the Ferry. (Tow Plan (Docket Entry # 8).)

On January 19,2011, Richmond filed an Amended Complaint adding Helen Mardikos

("Mardikos"), a lienor to the Ferry, as a defendant. (Am. Compl. (Docket Entry # 14).) On

March 20, 20 II and March 31, 20 II, Richmond filed separate motions requesting the sale of the

Ferry to Richmond and an order of dismantling so that Richmond could sell the Ferry for scrap.

(Docket Entries ## 17,20.) On April 12,2011, Tahmaz filed a motion to dismiss for lack of

subject matter jurisdiction. (Tahmaz Mot.) On April 29, 2011, the court held a status conference

to discuss several outstanding issues in the case. (Docket Entry Apr. 29,2011.) At the status

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conference, the parties alerted the court to the fact that La Viviana had sold the Ferry to a non-

party, Mothership Hotel, LLC ("Mothership Hotel"). (ld.) The court then set a briefing schedule

for responses to Talunaz's motion to dismiss. (Id.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) allows defendants to challenge the court's

subject matter jurisdiction by means of a motion to dismiss. In reviewing a motion to dismiss

under Rule 12(b)(1), courts must "accept as true all material factual allegations in the

complaint," Shipping Fin. Servo Com. V. Drakos, 140 F.3d 129,131 (2d Cir. 1998) (citation

omitted), but refrain from "drawing from the pleadings inferences favorable to the party asserting

[jurisdiction]," APWU V. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (citation omitted). In

assessing a motion to dismiss for lack of subject matter jurisdiction, "courts are permitted to look

to materials outside the pleadings." Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).

These may include "sworn affidavits from both parties, correspondence between the parties and

other relevant documents." See King's Gym Complex. Inc. v. Phila. Indem. Ins. Co., 314 F.

App'x 342, 343 (2d Cir. 2008). "A plaintiff asserting subject matter jurisdiction has the burden

of proving its existence by a preponderance of the evidence." Jordan v. Verizon Com., 391 F.

App'x 10, 12 (2d Cir. 2010).

III. DISCUSSION

A. The Extension of Admiralty Jurisdiction Act, 46 U.S.c. § 30101

The United States Constitution provides that "[t]he judicial Power shall extend ... to all

Cases of admiralty and maritime Jurisdiction." U.S. Const. art. III, § 2. Prior to 1948, federal

courts, in addressing whether a case fell within their admiralty and maritime jurisdiction, "asked

only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it

did not, admiralty jurisdiction did not exist." Jerome B. Grubart. Inc. V. Great Lakes Dredge &

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Dock Co., 513 U.S. 527, 531 (1995). This caused the peculiar problem of excluding from the

federal courts' admiralty jurisdiction cases in which ships caused damage to terrestrial property,

or vice versa. See Martin v. West, 222 U.S. 191, 197 (1911). "Thus, admiralty courts lacked

jurisdiction over, say, a claim following a ship's collision with a pier insofar as it injured the

pier, for admiralty law treated the pier as an extension of the land." Grubart, 513 U.S. at 532.

Congress sought to mend this jurisdictional leak by enacting the Extension of Admiralty

Jurisdiction Act in 1948 (the "Extension Act"), which conferred federal maritime jurisdiction to

"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." 46 U.S.C. App'x

§ 740 (1948); see also Gutierrez v. Waterman S.S. Corp., 373 U.S. 206,209 (1963) ("[T]he

Extension of Admiralty Jurisdiction Act swept [the old rule] away when it made vessels on

navigable water liable for damage or injury notwithstanding that such damage or injury be done

or consummated on land." (internal punctuation and citations omitted)). Today, the Extension

Act is codified at 46 U.S.C. § 30101.

I. Defining the Term "Vessel" Under the Extension Act

In Grubart, the Supreme Court explained that

a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C.

§ 1333(1) over a tort claim must satisfy conditions both of location and of
connection with maritime activity. A court applying the location test must
determine whether the tort occurred on navigable water or whether injury suffered
on land was caused by a vessel on navigable water. The connection test raises
two issues. A court, first, must assess the general features of the type of incident
involved to determine whether the incident has a potentially disruptive impact on
mantlme commerce. Second, a court must determine whether the general
character of the activity giving rise to the incident shows a substantial relationship
to traditional maritime activity.
513 U.S. at 534 (internal citations and punctuation omitted). Because the parties in Grubart did

not dispute the character of the barge at issue, however, the Court declined to define the term

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"vessel" under the location test. See id. at 535.

Later, in Stewart v. Dutra Constr. Co., 543 U.S. 481, 488 (2005), the Court described

"how to determine whether a watercraft is a 'vessel'" under the Longshore and Harbor Workers'

Compensation Act (the "LHWCA"). Like the Extension Act, the LHWCA uses, but does not

define, the term ''vessel.'' See 33 U.S.C. §§ 901-950. Nonetheless, the Stewart Court concluded

that though Congress "did not define the term 'vessel' in the LHWCA itself .... Congress

provided a definition elsewhere," specifically, in the Revised Statutes of 1873. 543 U.S. at 488-

89. There, for any statute passed after February 25,1871, Congress directed the courts to define

"vessel" as "every description of water-craft or other artificial contrivance used, or capable of

being used, as a means of transportation on water." 18 Stat., pt. 1, p. 1; see also Stewart, 543

U.S. at 489. This definition was later incorporated, verbatim, into the Rules of Construction Act,

at 1 U.S.C. § 3. Stewart, 543 U.S. at 489-90. Because the LHWCA was silent regarding the

definition of "vessel"; because the LHWCA was passed after February 25, 1871; and because the

context surrounding the LHWCA did not "indicate otherwise," see 1 U.S.C. § 1, the Stewart

Court concluded that the definition of "vessel" in 1 U.S.C. § 3 applied to the LHWCA. 543 U.S.

at 489-90.

Both Stewart and Grubart counsel that the definition of "vessel" in 1 U.S.C. § 3 should

apply to the Extension Act. Like the LHWCA, the Extension Act is silent regarding the

definition of "vessel" and was passed after February 25,1871. See 46 U.S.C. § 30101. And

nothing surrounding the context of the Extension Act---either its text or the history of its

enactment-indicates that another definition should apply. Cf. Stewart, 543 U.S. at 490 ("The

context surrounding the LHWCA's enactment indicates that § 3 defines the term 'vessel' for

purposes of the LHWCA" (citing 1 U.S.C. § 1)); Rowland v. Calif. Men's Colony. Unit II Men's

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Advisory Council. 506 U.S. 194, 199 (1993) ('''Context' here means the text of the Act of

Congress surrounding the word at issue, or the texts of other related congressional Acts .... "

(citing I U.S.C. § I». In addition, the Grubart Court's application of the term "vessel" implicitly

incorporated the definition found in I U.S.C. § 3. Compare Grubart, 513 U.S. at 535 ("[The

defendant] must also have done it 'by a vessel.' Even though the barge was fastened to the river

bottom and was in use as a work platform at the times in question, at other times it was used for

transportation."), with I U.S.C. § 3 ("The word 'vessel' includes every description of watercraft

or other artificial contrivance used, or capable of being used, as a means of transportation on

water."). Accordingly, the court concludes that the term "vessel" in the Extension Act means

any "watercraft or other artificial contrivance used, or capable of being used, as a means of

transportation on water." See I U.S.C. § 3.

2. "Used, or Capable of Being Used, as a Means of Transportation"

In Stewart, the Court fleshed out the meaning of "used, or capable of being used, as a

means of transportation" in § 3. 543 U.S. at 493-95. Analyzing two of its prior precedents, the

Stewart Court concluded that a watercraft was not "capable of being used as means of

transportation" if it was "not practically capable of being used to transport people, freight, or

cargo from place to place." Id. at 493. The Court noted that in Cope v. Vallette Dry-Dock Co.,

119 U.S. 625 (1887), it held that a drydock was not a "vessel" for purposes of federal admiralty

jurisdiction because it was "moored and lying at the usual place it had occupied for the past 20

years." Stewart, 543 U.S. at 493 (quoting~, 119 U.S. at 627) (internal punctuation omitted).

And in Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19 (1926),

it had found that a "wharfboat secured by cables to the mainland [where I]ocal water, electricity,

and telephone lines all ran from shore to the wharfboat" was not a "vessel" because it "was

neither taken from place to place nor used to carry freight from one place to another." Stewart,

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543 U.S. at 493 (quoting Evansville, 271 U.S. at 22) (internal punctuation omitted). This meant

that the wharfboat "was not practically capable of being used as a means of transportation." Id.

(quoting Evansville, 271 U.S. at 22) (internal punctuation omitted). In light of these cases, the

Stewart Court concluded that "[s]imply put, a watercraft is 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." I Id. at 494. Because the dredge

at issue in Stewart had "limited means of self-propulsion .... navigat[ing] short distances by

manipulating its anchors and cables," id. at 484, it was "engaged in maritime transportation" and

therefore a "vessel" under § 3. Id. at 497; see also Grubart, 513 U.S. at 535 (concluding that the

barge at issue was a "vessel" "[e]ven though the barge was fastened to the river bottom [because]

it was used for transportation."). Therefore, a watercraft is not a "vessel" for purposes of

admiralty jurisdiction if it "has been permanently moored or otherwise rendered practically

incapable of transportation or movement." See Stewart, 543 U.S. at 494.

B. Admiralty Jurisdiction over The Ferry the Governor Herbert H. Lehman

The Governor Herbert H Lehman is a Kennedy-class Staten Island Ferry that began

service in 1965. NYC DOT - Staten Island Ferrv. N.Y.C. Dep't ofTransp., http://www.nyc.gov!

htrnl!dotlhtrnllferrybuslstatfery.shtrnl (last visited May 6, 2011). While in service, it was able to

carry 3,500 passengers, serviced by 13 crew members. Id. Like its sister Kennedy-class ferries,

the Governor Herbert H Lehman was built "297 feet long, 69 feet 10 inches wide, with a draft

of 13 feet 6 inches, [having] 2,109 gross tonnage, [a] service speed of 16 knots, and 6,500

horsepower." Id. On Friday June 30, 2007, after forty-two proud years of service, the Governor

Herbert H Lehman was retired and received the traditional farewell parting salute of three blasts

1 This analysis appears to parallel the older, common law "dead ship" or "dead vessel" doctrine, which similarly
excluded from the courts' admiralty jurisdiction cases involving watercraft that were not uvessels in navigation," as
detennined by the "status of the ship." See Roper v. United States, 368 U.S. 20, 22-23 (1961).

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from the Ferry's hom. (Tahmaz Mot. Ex. A.); see also Gordon R. Newell, Pacific Steamboats

195 (1958) ("Three Blasts of the Whistle Mean Goodby.... [Ships] tendered him the traditional

parting salute of steamboat men ... three whistle blasts.") (second alteration in original). Since

approximately the end of 2007, the Ferry has been berthed at Richmond's pier. (See Tahmaz

Mot. at 2.)

Tahmaz argues that the Ferry is not within the court's admiralty jurisdiction. (ld.) To

support his claim, Tahmaz avers that the Ferry "has no crew and lies dormant and inoperable."

(Id. at 2.) Tahmaz also states that the Ferry was sold for scrap to La Viviana in 2007, and

attaches several newspaper articles about the Ferry to that effect. (Id. at 2; Exs. B, D, E.) The

current owner of the Ferry, Mothership Hotel, provides even greater proof of the Ferry's

inoperability, in the form of an affidavit signed by Jacques Guillet, the former manager of La

Viviana. It states:

[T]hroughout the period of [the Ferry's] ownership by La Viviana, the Ferry was
without a master or a crew. Its engines were disabled, having been partially
cannibalized. It had no working navigation lights, or interior lights. Indeed, it did
not even have a functioning electrical system of any kind, and was incapable of
generating any onboard power. Its main steering system was disabled. At no
time during La Viviana's ownership was the Ferry every [sic] documented with
the United States Coast Guard, nor was it subject to inspection by that service.
And throughout that time, it was never used or operated as a ferryboat, or in any
other capacity for the transportation of people or goods over water, or otherwise
made available for such work. La Viviana never hired a captain or crew for the
Ferry. At all times, the Ferry was completely disabled from engagement in such
commerce.
(Guillet Decl. (Docket Entry # 36-1) ~ 3.)

Further, the tow plan issued by the Coast Guard on December 9, 2010 under 33 C.F.R.

§ 160.11---colloquially referred to as a "Dead Ship Tow Plan," see USS Cabot CVL 28 Assoc ..

Inc. v. Josiah, No. Civ. A. 98-0154, 1998 WL 315387, at *1 (E.D. La. June 12, 1998)--also

suggests that the Ferry is "practically incapable of transportation or movement." See Stewart,

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543 U.S. at 494. The Plan required that the Ferry provide docwnentation as to whether she was

suitable for towing; be towed by two towing vessels if she was suitable-three, where wind gusts

exceeded twenty knots; and produce a surveyor's report attesting to her "water tight integrity."

(Tow Plan at I.) Nothing in the Plan suggests that the Ferry was even remotely capable of self-

propulsion or transportation in any form. See Stewart, 543 U.S. at 484 (concluding that a dredge

was a "vessel" where it had limited means of self-propulsion); Grubart, 513 U.S. at 535

(concluding that the barge at issue was a "vessel" "[e ]ven though the barge was fastened to the

river bottom [because] it was used for transportation"). Indeed, the Tow Plan suggests not just

that the Ferry is practically incapable of transportation or movement, but practically difficult to

tow.

Richmond offers little to contest these allegations, other than several unsworn and

unsupported statements that the Ferry was not originally sold for scrap to La Viviana. (PI. 's

Opp'n (Docket Entry # 32) at 2, 3, 4,15.) Richmond also attaches an article from the Daily

News, stating that La Viviana attempted to sell the Ferry on eBay as a floating attraction rather

than as scrap. (M,. (Docket Entry # 32-7) Ex. F.)

In swn, Richmond has not carried its burden of proving that the Ferry was practically

capable of transportation or movement. See Jordan, 391 F. App'x at 12 (stating that the party

asserting subject matter jurisdiction must provide its existence by a preponderance of the

evidence); Grubart, 513 U.S. at 534 (concluding that admiralty jurisdiction exists where the

watercraft was practically capable of transportation or movement). Indeed, the great weight of

the evidence before the court, from the Ferry's former and current owners and from the United

States Coast Guard, strongly suggests that the Ferry was-and still is-wholly inoperable as a

seaworthy vessel capable of transportation. Because it appears that the Ferry has been "rendered

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practically incapable of transportation or movement," the injury alleged by Richmond was not

"caused by a vessel on navigable water." See Grub!!tl, 513 U.S. at 534. As such, the Ferry fails

the location test set forth in Grubart and the court lacks admiralty jurisdiction over in the instant

action. See id.

The court recognizes that one of the purposes of the Extension Act was arguably to place

within a federal court's jurisdiction "a claim following a ship's collision with a pier insofar as it

injured the pier." See id. at 532. Nonetheless, it is clear from both Grubart and Stewart that the

Extension Act was not intended as a jurisdictional trawling net for the federal courts to capture

anything with a "genuinely salty flavor." Optimum Shipping & Trading, S.A. v. Prestige Mar.

Servs. Pte. Ltd., No. 08-cv-9533 (JSR), 2009 WL 497341, at *1 (S.D.N.Y. Feb. 26, 2009) ("[I]t

may well be that a vessel that ... neither transports goods nor people lacks the 'genuinely salty

flavor' that would otherwise favor the recognition of maritime jurisdiction." (quoting Norfolk S.

Ry. Co. v. Kirby, 543 U.S. 14,22 (2004))). Where the object causing injury on land is not a

"vessel," federal courts lack jurisdiction over the action even where facts giving rise to the claim

are associated with a traditional maritime activity. See Grubart, 513 U.S. at 534 ("[A] party

seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim

must satisfy conditions both oflocation and of connection with maritime activity") (emphasis

added). Because there is no putative basis for jurisdiction aside from admiralty, Richmond's

Amended Complaint wilJ be dismissed for lack of subject matter jurisdiction.

C, Richmond's Request for Leave to Amend Its Amended Complaint

In its Opposition, Richmond requests leave to amend its Amended Complaint in the event

the court concludes that it lacks subject matter jurisdiction over the action. (pl.s' Opp'n at 15-

17.) Despite multiple status conferences, this is the first time Richmond has raised its request to

the court. Richmond's request is denied. "Although Rule 15(a) of the Federal Rules of Civil

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Procedure provides that leave to amend 'shall be freely given when justice so requires,' it is

within the sound discretion of the district court to grant or deny leave to amend." McCarthy v.

Dun & Bradstreet Corp., 482 F.3d 184,200 (2d Cir. 2007). "A district court has discretion to

deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the

opposing party." Id. In its request, Richmond does not point to any additional facts that it could

assert to alter the conclusion that the Ferry is practically incapable of transportation. Richmond

only states that it seeks to "include the Mothership Hotel as the owner of the vessel, Vivian

Marescot, in whose name the ferry was registered with the Coast Guard and to reflect the

additional torts committed by Jacques Guillet individually." (PI.'s Opp'n at 16.) But each of

these issues is beside the point. Even ifthe court granted Richmond's request, the court would

still lack jurisdiction over this action; the Ferry would be no more capable of navigating itself

away from Richmond's pier and down the Kill van Kull. Richmond's request for leave to amend

is, therefore, futile and denied as such.

IV. CONCLUSION

Defendant Yasar Tahrnaz's Motion to Dismiss for Lack of Jurisdiction (Docket Entry

# 21) is GRANTED. Plaintiffs request for leave to amend its Complaint is DENIED. The Clerk

of Court is directed to close this case.

SO ORDERED.
s/Nicholas Garaufis

Dated: Brooklyn, New York NiCHOLAS G. GARAUtfiS""

May 12..,2011 United States District Judge

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