Proprietors of Union Wharf v. Prock Marine Company Attorneys
for Plaintiff: George Burns, Esq. James Monteleone, Esq.
Bernstein Shur Sawyer & Nelson
Attorney for Defendant: William Welte, Esq. Welte & Welte
ORDER ON DEFENDANT'S MOTION TO DISMISS
Prock Marine Company has filed a Motion to Dismiss aimed at
Count II of the Complaint filed by Plaintiff Proprietors of
Union Wharf Plaintiff opposes the Motion. The court elects to
decide the Motion without oral argument. &M.R. Civ. P.
case, Plaintiff alleges that it is a corporation that owns
the Union Wharf in Portland. Plaintiff claims that Defendant
is liable for defects in the Defendant's design and
construction of a berthing facility at Union Wharf.
Plaintiffs initial Complaint and its First Amended Complaint
assert four common law counts and a statutory count. The
latter count, Count II, alleges violations of the Maine
Deceptive Trade Practices Act, 10 M.R.S. §§ 1210
et seq. ["the Act"], includes a demand for
attorney fees, which are available under the Act. Defendant
has denied liability in its answer.
Motion to Dismiss asserts that Count II, and specifically any
claim for an award of attorney fees or punitive damages under
the Act, should be dismissed because the pertinent provisions
of the Act are inconsistent with the federal admiralty law
framework that governs this case. Plaintiffs opposition
asserts that, even assuming Plaintiffs claims sound in
maritime law or admiralty, this court can exercise
jurisdiction under the "saving to suitors" clause
in the federal admiralty jurisdiction statute. See
28 U.S.C. § 1333. Defendant's reply memorandum
responds that the issue raised by Defendant's Motion to
Dismiss is not an issue of jurisdiction, but rather a
contends that, because Plaintiffs claims relate to damage or
loss to a wharf for vessels in navigable waters, federal
admiralty law applies. If it does, then any rules of state
law and state statutes, such as the Act, must give way to the
extent they are in conflict with federal admiralty law.
See Offshore Logistics, Inc. v. Tallentire, 477 U.S.
207, 223, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986).
opposition appears to accept the premise that admiralty law
applies, but the court's own research suggests that the
applicability of admiralty law is by no means a given.
tort claim to be within admiralty jurisdiction, the alleged
injury or damage needs to have been caused by a vessel on
navigable waters, or at least involve a vessel in some way.
See Admiralty Extension Act, 46 U.S.C. § 30101.
"Piers and docks [are] deemed extensions of land for
purposes of determining admiralty jurisdiction, and so
injuries inflicted to or on them [are] not compensable under
the maritime law." Victory Carriers, Inc. v.
Law, 404 U.S. 202, 206-07, 92 S.Ct. 418, 30 L.Ed.2d 383
(1971) (internal quotes and ellipses omitted). On its face,
Plaintiffs claim is for damage to or deterioration of a pier
or dock, not caused by or involving any vessel, so,
considered as a tort claim, it does not trigger the
application of admiralty law.
has not asserted any breach of contract claim, but if
Plaintiffs claim involves a "maritime contract, "
admiralty law might still apply. However, even assuming that
Defendant performed work on Plaintiffs pier under one or more
contracts, it is not clear that the contract or contracts
would be deemed "maritime contracts" subject to the
law of admiralty.
boundaries of admiralty jurisdiction over contracts - as
opposed to torts or crimes - being conceptual rather than
spatial, have always been difficult to draw."
Kossick v. United Fruit Co., 365 U.S. 731, 735, 81
S.Ct. 886, 6 L.Ed.2d 56 (1961). Whether a contract
is governed by maritime law is a fact-specific determination,
focused mainly on the connection between the subject matter
of the contract and maritime service or shipping. See
Norfolk & Southern Railway Co. v. Kirby, 543 U.S.
14, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).
that there is or was a contract or contracts for Defendant to
construct or repair Plaintiffs wharf, contracts for the
construction or repair of a wharf or pier do not necessarily
qualify as maritime contracts. As one court has noted,
It could hardly be contended that a contract for building or
repairing a wharf is embraced in the class of contracts
denominated maritime, any more than it could (and not with as
much propriety) be contended that a contract to build a ship
is a maritime contract; and it has been expressly held by the
Supreme Court of the United States that a contract for
building a ship is not of a maritime character, and therefore
not within the admiralty jurisdiction. The only contracts
relating to wharves that are of a maritime character are