this Court previously has held, under District of Columbia law any interference with contract must be an "improper" interference, that is, one that is not legally justified. Curaflex Health Services, Inc. v. Bruni, 899 F. Supp. at 695. IDP has failed to plead any conduct by OPIC that was improper under the PCA and thus has failed to state a claim.
Even if defendants had stated a claim for tortious interference, this Court lacks subject matter jurisdiction over Gemini's claim. While IDP's claims all sound in recoupment, Gemini's claim is for money damages. Gemini concedes that the Federal Tort Claims Act expressly does not authorize suits against the United States for tortious interference with contract. 28 U.S.C. § 2680(h). It argues, however, that its tortious interference claim is a maritime claim with respect to which the United States has waived sovereign immunity under the Suits in Admiralty Act ("SAA"), 46 U.S.C. §§ 741-752. It maintains that the VMA, a contract between Gemini and YFC to manage the vessels leased by YFC at sea, is a maritime contract and that tortious interference with a maritime contract necessarily is a maritime tort under the SAA for which the United States may be sued. OPIC counters that because the alleged interference with the VMA took place on land and not on navigable waters, the SAA does not apply.
The Ninth Circuit's decision in J. Lauritzen A/S v. Dashwood Shipping, Ltd., 65 F.3d 139 (9th Cir. 1995), disposes of the issue. While there has been some debate in the courts and in the literature over whether it is sufficient to establish admiralty jurisdiction if a land-based tort has a direct effect on maritime concerns or whether the tort itself must take place on navigable waters, the Ninth Circuit concluded, in factual circumstances similar to these, that the test for admiralty jurisdiction under the SAA requires both that the injury occur on navigable waters and that the activity have a connection to maritime commerce. J. Lauritzen A/S v. Dashwood Shipping, Ltd., 65 F.3d at 143; see Grubart v. Great Lakes Dredge & Dock, 513 U.S. 527, 130 L. Ed. 2d 1024, 115 S. Ct. 1043, 1048 (1995); cf. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 254, 261, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972). As in Lauritzen, the parties here agree that the contract at issue had a substantial connection to maritime commerce and that its breach had an effect at sea. Like the Ninth Circuit, however, this Court concludes that admiralty jurisdiction is lacking where the tort occurs, as the parties concede it did here, solely on land. See Kuehne & Nagel v. Geosource, Inc., 874 F.2d 283, 289-90 (5th Cir. 1989). The contractual relations in Lauritzen were quite similar to those at issue in this case, and the Court sees no reason to depart from the Ninth Circuit's analysis. The government not having waived sovereign immunity for such torts, either in the Federal Tort Claims Act or in the SAA, the Court concludes that it lacks jurisdiction over Gemini's claim for tortious interference with contract.
In reaching this conclusion, the Court necessarily rejects the "impact test" adopted by the First Circuit in Carroll v. Protection Maritime Ins. Co., 512 F.2d 4 (1st Cir. 1975). There is no controlling law in this Circuit, since the Court does not read ( Canadian Transport Co. v. United States, 430 F. Supp. 1168 (D.D.C. 1977), or Judge Robb's opinion for the Court of Appeals affirming it in Canadian Transport Co. v. United States, 214 U.S. App. D.C. 138, 663 F.2d 1081 (D.C. Cir. 1981), as reaching or deciding, either expressly or implicitly, the question posed here.
For all of the foregoing reasons, the Court will grant OPIC's motion to dismiss Counts One, Two, Three and Five for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P., and Count Five, as it relates to Gemini, for lack of subject matter jurisdiction under Rule 12(b)(1), Fed. R. Civ. P. Count Four, alleging breach of the covenant of good faith and fair dealing, will not be dismissed. Accordingly, it is hereby
ORDERED that OPIC's motion to dismiss is GRANTED in part and DENIED in part. Counts One, Two, Three and Five of the counterclaim are DISMISSED.
PAUL L. FRIEDMAN
United States District Judge