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The Removal of the Ancient Mariner - The Developing Jurisprudence Allowing Removal of General Maritime Law Claims under the Recent Amendments to 28 U.S.C. §1441(b)


The Removal of the Ancient Mariner - The Developing Jurisprudence Allowing Removal of General Maritime Law Claims under the Recent Amendments to 28 U.S.C. §1441(b)

December 9, 2013 2:15 PM | Posted by Hannan, Christopher | Print this page

Day after day, day after day,
We stuck, nor breath nor motion;
As idle as a painted ship
Upon a painted ocean.

Samuel Coleridge, The Rime of the Ancient Mariner

After nearly half a century of being "stuck" in state courts under the saving-to-suitors clause and the Supreme Court's decision in  Romero v. Int'l Terminal Operating Co., 358 U.S. 354 (1959), the non-removal albatross may have fallen from the neck of maritime defendants under a developing line of cases from the Southern District of Texas in the wake of the recent 2011 amendments (effective January, 2012) to the removal statute (28 U.S.C. §1441).

Historically under Romero, "[i]t was well-established that maritime claims d[id] not aris[e] under the Constitution, treaties or laws of the United States' for purposes of federal question and removal jurisdiction." Tenn. Gas Pipeline v. Hous. Cas. Ins., 87 F.3d 150, 153 (5th Cir.1996) (Romero and In re Dutile, 935 F.2d 61, 63 (5th Cir.1991)).  In short, a general maritime law claim did not present a "federal question" for purposes of removal. From a procedural standpoint, the Romero decision noted if maritime law claims were considered "federal questions," they would be freely removable under the former version of 28 U.S.C. § 1441(b), which "would make considerable inroads into the traditionally exercised concurrent jurisdiction of the state courts in admiralty matters—a jurisdiction which it was the unquestioned aim of the saving clause of 1789 to preserve." Romero, 358 U.S. at 372.

This analysis derived and developed from the prior version of the removal statute, which provided as follows:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. §1441 (version effective until January 1, 2012) (emphasis added).  Under this language, and the Romero Court's analysis, the Fifth Circuit consistently held that general maritime law claims are non-removable based on the following logic:

  • while federal courts do have original jurisdiction over general maritime law claims under Article III as contemplated by (former) §1441(a), those claims are not "founded on a claim or a right under the Constitution, treaties or laws of the United States" as contemplated by §1444(b);
  • As a result, because this "founded on" clause of (former) §1444(b) constitutes a statement of law "otherwise expressly provided by Act of Congress" as contemplated by §1444(a), that clause of (former) §1444(b) is a statutory bar to removal of genera maritime law claims.  Simply put, the opening clause of (former) §1444(b) constituted a statutory bar to removal of general maritime law claims as contemplated by the "otherwise expressly provided" clause of (former) §1444(a).

See, e.g., Dutile, 935 F.2d at 62 et seq.

Critically, however, the statutory bases of this non-removal rule were fundamentally altered by the recent 2011 amendments to the removal statute.  Specifically the new text of §1444(b) no longer includes the preliminary "otherwise expressly provided" provision and specifically limits itself to diversity-based removals:

(a) Generally.—Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(b) Removal based on diversity of citizenship.—(1) In determining whether a civil action is removal on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) [i.e. diversity removal] of this title may not be removed if any of the parties in interest properly joined and served as defendant is a citizen of the State in which such action is brought.

28 U.S.C. §1441 (version effective after January 1, 2012) (emphasis added).

Recently, a line of cases from the Southern District of Texas has expressly - and with very simple, compelling logic - recognized this fundamental change in the language of the removal statute and upheld removal of general maritime law claims.

The leading case is Judge Gray Miller's decision in Ryan v. Hercules Offshore, Inc., 2013 WL 1967315 (S.D. Tex. May 13, 2013), which involved a claim in Texas state court by a non-seaman contract employee injured on a jack-up rig off the coast of Nigeria.  The defendants (contractor, rig owner, and others) removed the case to federal court on the basis that the plaintiff's general maritime law negligence claims were removable under the amended version of the removal statute.  Judge Miller agreed and summarized his conclusion as follows:

When Congress amended section 1441, it left the reference in section 1441(a) to cases in which courts have “original” jurisdiction being removable unless prohibited by an act of Congress. However, it deleted the text in section 1441(b) upon which courts in the Fifth Circuit relied as being an “Act of Congress” that precluded removal of cases that did not meet the other requirements of section 1441(b). The new version of section 1441(b) speaks solely to cases that are removed on the basis of diversity of citizenship.

* * *

While it is possible that Congress did not intend for the changes to section 1441 to be substantive, it nevertheless made substantial changes to the text of section 1441(b). The new statute does not contain any ambiguous language.

* * *

Plaintiffs argue that maritime claims cannot be removed pursuant to section 1441(a) because they do not arise under the Constitution, treaties or laws of the United States.  However, neither the prior version nor the new version of section 1441(a) refers to claims that arise under the Constitution, treaties or laws of the United States. This reference was found in the previous version of section 1441(b). Both versions of section 1441(a) refer to original jurisdiction, and federal district courts have “original jurisdiction” over “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1).

Judge Miller's ruling has been followed virtually wholesale by Judge Lee Rosenthal in Wells v. Abe's Boat Rentals Inc., 2013 WL 3110322 (S.D. Tex. June 18, 2013).

Nonetheless, at least one judge in the Southern District of Texas has expressed concern - notwithstanding Judge Miller's analysis - about overturning the long line of post-Romero jurisprudence precluding removal of general maritime law claims.  Specifically, Judge Sim Lake, after recognizing the compelling nature of Judge Miller's ruling in Ryan, has nonetheless noted trepidation about sanctioning wholesale the removal of general maritime law claims:

Mindful of the long-recognized goal of preserving an ancient body of maritime remedies, both substantive and procedural, and of the Supreme Court's reluctance to define the scope of the remedies preserved by the savings to suitors clause, it is unclear to the court whether the saving to suitors clause contained in 28 U.S.C. § 1333 is an Act of Congress that would proscribe removal on the basis of the federal courts' original admiralty jurisdiction. Given the nature and stage of this action, resolution of this issue may be necessary to a determination of the propriety of remand. Because the current state of the record does not lend itself to the resolution of this issue, the court will require additional briefing by the parties.

Perio v. Titan Mar., LLC, 2013 WL 5563711 (S.D. Tex. Oct. 8, 2013).  In response, Plaintiff in Perio has filed a supplemental motion to remand, which remains pending.

Most recently, the Middle District of Louisiana - via a magistrate's report and recommendation (R&R), ultimately adopted by the district court - has followed Ryan and Wells in allowing removal of general maritime law claims involving alleged historic asbestos exposure on drilling rigs in the seventies and eighties.  See Bridges v. Phillips 66 Co., Case No. 13-477, Rec. Docs. 33 and 47 (M.D. La. Nov. 19, 2013).  Significantly, the Bridges case involve general maritime law claims against one group of defendants and Jones Act claims against another group of defendants.  The magistrate's R&R recognized that even though the general maritime law claims were removable under Ryan and Wells, the Jones Act claims were statutorily non-removable under 46 U.S.C. §30104 and 28 U.S.C. §1445(a); however, because the R&R was not actually a ruling on Plaintiff's motion to remand, the R&R held that it was premature to consider any request for severance and remand of the non-removable Jones Act claims from the removable general maritime law claims.  However, the district court simply adopted the R&R wholesale and without further analysis, and therefore no ruling on the severance/remand of the Jones Act claims has occurred.  Notably, Judge Rosenthal's ruling in Wells, which likewise involved both general maritime law and Jones Act claims, severed and remanded the Jones Act claims but retained jurisdiction over general maritime law claims against the non-Jones Act defendants.

Thus, while the non-removal albatross has been cut free by two federal judges in Texas and one in Louisiana, at least one judge in Texas remains concerned about the potentially historic shift in the jurisdictional treatment of general maritime law claims adopted by Judge Miller.  This line of cases will no doubt continue to develop as defendants become aware of this shift, and continue removing what have always been non-removable cases under the new version of the removal statute.  Ultimately, it will be the Fifth Circuit - or perhaps the United States Supreme Court -that will determine whether Judge Miller's analysis is correct.