SILVERMAN, Circuit Judge:
Abdulhalim Ali was a seaman aboard a tanker ship owned by the United States Maritime Administration, an agency of the federal government, but operated by a private company under a contract. At all material times, the ship was in navigable water. Ali alleges that the human resources director of the company operating the ship ordered the ship's captain to fire him because he is of Yemeni origin. Ali brought a civil rights lawsuit naming as defendants the H.R. director and the captain of the ship, but not the United States. We hold today, as the district court did, that the conduct complained of had such a sufficient maritime connection that the plaintiff's complaint includes at least one claim that could have been brought as a "civil action in admiralty" against the private wrongdoers, and therefore, pursuant to the Suits in Admiralty Act and the Public Vessels Act, should have been brought against the United States. These statutes, which are analogous to the Federal Torts Claim Act, waive the government's sovereign immunity in admiralty actions involving U.S. government-owned vessels, and in doing so provide the exclusive remedy for such actions. Because Abdulhalim Ali sued the H.R. director, rather than the United States, his complaint was properly dismissed for lack of jurisdiction. (The captain was never served.)
In reviewing an order dismissing a case for failure to state a claim, we "take as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor." Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.2011).
Plaintiffs Abdulhalim Ali and Mohamed Faisal Ali alleged the following: They are both Yemen-born Muslims who are now United States citizens. Both belong to the Seafarers International Union. In January 2010, Abdulhalim Ali was on the crew of the SS PETERSBURG, a vessel owned by the United States Maritime Administration, an agency of the United States Department of Transportation. Interocean American Shipping Corporation had contracted with the United States to provide civilian personnel to operate the PETERSBURG. Interocean also has a collective bargaining agreement with the union, under which Abdulhalim Ali was employed on the PETERSBURG.
Robert Rogers is a Vice President of Interocean and Director of its human resources department. On January 23, 2010, Rogers, "acting under color of law," ordered the captain of the PETERSBURG, William Bartlett, to terminate the employment of anyone on the ship "who appeared to be of Yemanese [sic] origin and/or of Arabic descent and/or a follower of Islam." In compliance with that order, Captain Bartlett fired Abdulhalim Ali and ordered him to leave the ship, which was in navigable waters, and Ali left. The following day, Mohamed Ali, who was in the union hiring hall in Oakland, California, saw a listing for a position on the PETERSBURG. His seniority in the union ranks meant that he had first choice of jobs, and he applied for the position. However, Rogers directed that Ali should not be hired, and that the job should instead be given "to another union member who was apparently not of Yemanese [sic] origin, Arabic descent and/or a follower of Islam."
Abdulhalim Ali and Mohamed Ali sued Rogers exactly two years after the date on which Abdulhalim Ali's employment was terminated, each bringing claims under 42 U.S.C. §§ 1981 and 1983. Abdulhalim Ali described his claims as being for "Wrongful Termination — Discrimination," while Mohamed Ali's claims were for "Discrimination in Contracting" and "Discrimination in Hiring." The district court dismissed the complaint for lack of subject matter jurisdiction. Noting that there was no dispute that the PETERSBURG is a "public vessel owned by the United States ... [and] operated by Interocean" as the United States' agent, the district court concluded that the plaintiffs were required, by the terms of both the Clarification Act, 50 App. U.S.C. § 1291, and the Suits in Admiralty
Abdulhalim Ali and Mohamed Ali now appeal. We have jurisdiction under 28 U.S.C. § 1291 to review the district court's final decision.
We review de novo a district court's order dismissing a case for lack of subject matter jurisdiction. Gruver v. Lesman Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007).
The SIAA waives sovereign immunity for the United States in cases where "a civil action in admiralty could be maintained" against a private person in the same situation. 46 U.S.C. § 30903(a).
The SIAA has a two-year statute of limitations. 46 U.S.C. § 30905. Further, any remedy available under the SIAA is exclusive of any other remedy "arising out of the same subject matter" that the plaintiff might bring against the individual who actually caused the harm at issue. 46 U.S.C. § 30904.
Also relevant to this case is another statutory waiver of federal sovereign immunity in the admiralty context, the Public Vessels Act ("PVA"). 46 U.S.C. §§ 31101 et seq. The PVA applies to "civil action[s] in personam in admiralty ... for damages caused by a public vessel of the United States." 46 U.S.C. § 31102(a)(1). Claims under the PVA have certain limitations that SIAA claims do not, but none that are relevant here. More importantly, the PVA makes all claims subject to the SIAA, including its statute of limitations and its exclusivity provision, except to the extent to which the two are inconsistent. 46 U.S.C. § 31103; see also Dearborn, 113 F.3d at 996-97 (noting that the SIAA's exclusivity rule is incorporated by reference into the PVA). Though some circuits interpret the term "damages" caused by a public vessel narrowly (i.e., as encompassing only physical injuries), we recently reaffirmed that the PVA includes claims arising out of the conduct of employees on a public vessel, not merely direct physical damages. See Tobar v. United States, 639 F.3d 1191, 1198 (9th Cir.2011). And despite expansive revisions to the SIAA, the Supreme Court continues to rule that any suit for damages caused by a public vessel falls under the PVA; under Tobar and predecessor cases, those damages will include contract damages. Id. Any other admiralty claim against a federally-owned vessel will fall under the SIAA. United States v. United Cont'l Tuna Corp., 425 U.S. 164, 181, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976).
The Constitution's grant of federal jurisdiction for admiralty, "codified at 28
Tort claims may sound in admiralty jurisdiction if they satisfy a test with three components showing that the claim has the requisite maritime flavor. Christensen v. Georgia-Pac. Corp., 279 F.3d 807, 814 (9th Cir.2002). The relevant tort or harm must have (1) taken place on navigable water (or a vessel on navigable water having caused an injury on land), (2) "a potentially disruptive impact on maritime commerce," and (3) a "substantial relationship to traditional maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). We look at a tort claim's general features, rather than at its minute particulars, to assess whether there is the requisite connection; thus, for instance, when a crane on a river barge flooded a tunnel, the Supreme Court spoke of "damage by a vessel in navigable water to an underwater structure," and when two girls were thrown off a Sea-Doo into San Diego's Mission Bay, the Ninth Circuit described the incident as "harm by a vessel in navigable waters to a passenger." Id. at 539, 115 S.Ct. 1043; Mission Bay Jet Sports, 570 F.3d at 1129.
As with torts, in determining whether there is admiralty jurisdiction over a given contract, the court's task is to determine whether it is adequately maritime in nature. Federal courts have admiralty jurisdiction over a contract "if its subject matter is maritime." La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir.2001) (quoting Royal Ins. Co. of America v. Pier 39 Ltd., 738 F.2d 1035, 1036 (9th Cir.1984)). The answer to the question of whether a given contract is a "maritime" contract "`depends upon ... the nature and character of the contract,' and the true criterion is whether it has `reference to maritime service or maritime transactions.'" Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 24, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)). Of particular relevance to this case, it is well settled that "a contract for hire either of a ship or of the sailors and officers to man her is within the admiralty jurisdiction." Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961).
Having outlined the general landscape (or should we say seascape?) of admiralty jurisdiction and waivers of sovereign immunity, we consider whether plaintiffs' claims are sufficiently maritime in nature that they should have been brought under the PVA and SIAA rather than against Rogers.
As noted, it is undisputed that the PETERSBURG is a "public vessel of the United States." Therefore, assuming some form of damages is involved, both
We hold that Abdulhalim Ali's allegations against Rogers establish that his claims have the requisite maritime flavor to constitute a "civil action in personam in admiralty" and be subject to the PVA and SIAA. 46 U.S.C. §§ 31102-31103. Ali alleged that the PETERSBURG's captain fired him from the ship's crew, in violation of the collective bargaining agreement, while he was aboard the ship, and while the ship was docked in navigable waters. The district court treated Ali's claims as tort claims, noting that Ali's termination from the ship's crew could potentially have disrupted the ship's activities because it was then missing a crew member; furthermore, the activity in which he was engaged, crewing a ship, is one of the most basic "traditional maritime activities" that exists. We need express no opinion as to whether Ali's discrimination claims could be considered admiralty torts. His claims under §§ 1981 and 1983 also include allegations raising a breach of contract claim. Such a claim would be indisputably maritime in nature, since Ali's contract was for employment to operate the PETERSBURG on navigable waters. See Kossick, 365 U.S. at 735, 81 S.Ct. 886.
Given that the PETERSBURG is a public vessel, and Ali's claims are based on conduct resulting from its operation, the PVA's waiver of sovereign immunity is applicable, and Ali is thus able to sue the United States. But PVA claims are also generally subject to the SIAA, and the SIAA's exclusivity provision precludes any claims arising from the same facts from being brought against any parties but the United States. See 46 U.S.C. § 30904. Consequently, Ali not only could sue the United States, if he wanted any relief, he was required to do so. See id.; see also Manuel, 50 F.3d at 1259-60. Since Ali's discrimination claim against Rogers is "a suit against an agent of the United States `by reason of the same subject matter' [it] is precluded." Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995, 997 (9th Cir. 1997) (quoting 46 U.S.C. § 30904).
Mohamed Ali also pleaded his claims under §§ 1981 and 1983. However, he was neither aboard the PETERSBURG nor yet hired to work on its crew when Rogers directed that he not be hired, for allegedly discriminatory reasons. Therefore, the harm did not take place on navigable waters as required for admiralty tort jurisdiction. However, Ali alleged that he was entitled to the benefit of his union's collective bargaining agreement and that Rogers breached this contract by a discriminatory refusal to hire him as a crew member of the PETERSBURG. Such an agreement plainly will have "reference to maritime service or maritime transactions," thereby satisfying the "true criterion" for what makes a maritime contract, and qualifying for admiralty contract jurisdiction. Norfolk S. Ry. Co., 543 U.S. at 24, 125 S.Ct. 385 (citation omitted). Although Ali's portion of the complaint pleaded claims under §§ 1981 and 1983, he could have brought a breach of contract claim in admiralty jurisdiction. Such an action would be "a civil action in admiralty [that] could be maintained," so both that claim and his discrimination claims, which "aris[e] out of the same subject matter" and are closely linked to the contract claim, are subject to the SIAA's exclusivity provision. 46 U.S.C. §§ 30903, 30904.
Neither party has argued that plaintiffs' discrimination claims could be brought as admiralty claims; therefore, we reiterate that we express no opinion on that issue. Rather, we conclude that because Abdulhalim Ali and Mohamed Ali's claims both involved a contract for employment or potential employment aboard a public vessel of the United States and have sufficient maritime connection, they were required to bring those claims against the United States. Since they sued Rogers instead, the district court correctly determined that it lacked subject matter jurisdiction over their claims.
