552
Thomas, J., concurring in judgment
the rule. In addition to examining situs, Foremost required federal courts to ask whether the tort bore a significant relationship to maritime commerce, and whether the accident had a potential disruptive impact on maritime commerce. 457 U. S., at 673-675. The lower courts adopted different approaches as they sought to apply Foremost's alteration of the Executive Jet test. See Sisson, 497 U. S., at 365, n. 4 (citing cases).
Sisson then affirmed the inherent vagueness of the Foremost test. Sisson involved a marina fire that was caused by a faulty washer/dryer unit on a pleasure yacht. The fire destroyed the yacht and damaged several vessels in addition to the marina. In finding admiralty jurisdiction, the Court held that the federal judicial power would extend to such cases only if: (1) in addition to situs, (2) the "incident" poses a potential hazard to maritime commerce, and (3) the "activity" giving rise to the incident bears a substantial relationship to traditional maritime activity. 497 U. S., at 362-364. The traditional situs test also would have sustained a finding of jurisdiction because the fire started on board a vessel on the waterways. Thus, what was once a simple question— did the tort occur on the navigable waters—had become a complicated, multifactor analysis.
The disruption and confusion created by the Foremost-Sisson approach is evident from the post-Sisson decisions of the lower courts and from the majority opinion itself. Faced with the task of determining what is an "incident" or "activity" for Sisson purposes, the Fourth, Fifth, and Ninth Circuits simply reverted to the multifactor test they had employed before Sisson. See Price v. Price, 929 F. 2d 131, 135-136 (CA4 1991); Coats v. Penrod Drilling Corp., 5 F. 3d 877, 885-886 (CA5 1993); Delta Country Ventures, Inc. v. Magana, 986 F. 2d 1260, 1263 (CA9 1993). The District Court's opinion in this action is typical: While nodding to Sisson, the court focused its entire attention on a totality-ofthe-circumstances test, which includes factors such as "the
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