The Removal of the Ancient Mariner - Reprising a Sea-Change in Admiralty Law

by Baker Donelson
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                                                                    Full fathom five thy father lies, 
                                                                    Of his bones are coral made, 
                                                                    Those are pearls that were his eyes, 
                                                                    Nothing of him that doth fade, 
                                                                    But doth suffer a sea-change, 
                                                                    into something rich and strange, 
                                                                    Sea-nymphs hourly ring his knell, 
                                                                    Ding-dong.
                                                                    Hark! now I hear them, ding-dong, bell.

            William Shakespeare, The Tempest

            As originally discussed in a recent post on Striding the Quarterdeck (December 9, 2013), amendments to 28 U.S.C. §1441 have effected a sea-change in admiralty procedure by ostensibly allowing removal of general maritime law (GML) claims on a federal question basis, notwithstanding the Savings to Suitors Clause and the long line of jurisprudence under Romero espousing the proposition that GML claims do not "arise under" the Constitution or law of the United States. The jurisprudential trend affirming removal of GML claims under the revised version of §1441, which began with Judge Gray Miller's decision in Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D. Tex. 2013), has continued, suggesting that this sea-change may in fact ring the knell of the old Romero non-removability rule.

            At the time of the original post, Judge Sim Lake in Perio v. Titan Mar., LLC, 2013 WL 5563711 (S.D. Tex. Oct. 8, 2013) had expressed doubt, based in large  part on the long-standing rule against removability of GML claims, about whether the amended §1441 should have the effect Judge Miller suggested in Ryan. As such, Judge Lake invited additional briefing from the parties on the remand issue.

            After considering the additional briefing, Judge Lake refused to grant the plaintiff's motion to remand.  By way of background, the Texas plaintiff in Perio was injured during salvage operations on the grounded vessel M/V OCEAN BREEZE off Chile, and sued his Texas employer (T&T Salvage) and its foreign joint venturer (Titan) in Texas state court. After the case had been removed on the basis of diversity via Titan's argument that T&T Salvage was improperly joined insofar as it was comp immune, the plaintiff moved for remand and argued (for the first time) that he was a longshoreman with viable claims against T&T (for failing to secure LHWCA coverage) and Titan. In turn, T&T Salvage argued that the LHWCA did not apply because the incident occurred in foreign waters (and because it had LHWCA coverage); more importantly, however, Titan argued that the only possible claim plaintiff could be bringing was for a GML tort, and thus removal was proper under the amended version of §1441.

            Given this factual background, Judge Lake held that the substantive nature of the plaintiff's claims - i.e. whether or not they were truly GML claims - was uncertain at the threshold stage of the pleadings, and thus denied remand:

[T]he question of whether maritime law applies is not always conclusively answered at the removal stage of a lawsuit. There may be insufficient factual development at that time to determine either the cause of the incident or the general character of the activity giving rise to it. Much of the parties' briefing has focused on factual allegations concerning the events giving rise to Perio's injuries and how those facts bear on the applicability of general maritime law in this case. . . . The court is of the opinion that a motion to remand is not the appropriate vehicle for resolution of these disputed factual issues. Accordingly, the parties may file motions for summary judgment in accordance with the court's Docket Control Order of October 4, 2013, and the court will reconsider its subject matter jurisdiction at that time.

Case No. 13-1754, Rec. Doc. 29, pp.4-5 (S.D. Tex. Dec. 17, 2013). Of course, the practical effect of this ruling is that - even if the court eventually finds that it lacks jurisdiction - it will only be after the parties have vetted the substantive merits of the case, such that remand at that point may be a practical waste of time. In other words, Judge Lake's ruling, albeit indirectly, validates the sea-change begun by Judge Miller.

            Likewise, since the original post, other federal courts in Louisiana and Texas have followed Judge Miller's lead. For example, Judge Engelhardt in Tilley v. American Tugs, Inc., Case No. 13-6104, Rec. Doc. 11 (E.D. La. Jan. 16, 2014) expressly relied on Judge Miller's Ryan opinion and its progeny to deny remand of a Jones Act and maintenance and cure claim (which had been combined with GML claims against other defendants besides the plaintiff's employer). This result - namely the effective removal of an otherwise statutorily non-removable Jones Act claim when it has been combined with GML claims is at odds with the result in the Wells case (both discussed in the prior post), the latter of which severed and remanded the Jones Act claims while retaining the GML claims against non-employer defendants. That said, Judge Engelhardt noted that "[s]hould [p]laintiff. . . advise the Court that he desires to have only his Jones Act claim severed and remanded to state court, pursuant to 28 U.S.C. §1441(c)(2), such limited relief shall be granted." Thus, the Tilley court has left the door open to the Wells result, but the plaintiff will have to decide whether a two-fron/t dispute is preferable to just staying in federal court.

            The upshot of this result, therefore, is that Jones Act claims - which are normally expressly non-removable under federal statute - may effectively be subject to removal as a practical matter when combined with GML claims. Moreover, Judge Engelhardt's ruling may even have gone a step further than this. The decision express states that plaintiff may only seek severance and remand of his Jones Act claims, but says nothing in this regard about his separate maintenance and cure claims (which the Court took pains to distinguish from his Jones Act claims in the ruling's opening paragraph). Thus, the Tilley decision arguably contemplates a scenario in which a seaman's Jones Act claim could be severed for proceedings in state court, separate and independent from his maintenance and cure claims against his employer, as well as GML tort claims against other defendants, all related to the same underlying incident.

            In fact, this result has been directly adopted by the Southern District of Texas in Andrews v. Aramark U.S. Offshore Services, LLC, Case No. 13-2681, Rec. Doc. 22 (S.D. Tex. Jan. 3, 2014) (Atlas, J.). Very simply put, Judge Atlas relied on the amended version of §1441 and "sever[ed] the [plaintiff's] Jones Act claim and remand[ed it to state court, [but] retain[ed] the general maritime claim for maintenance and cure."

            Moreover, this result bears implications for another recent landmark change in the GML adopted in October by the Fifth Circuit.  In its controversial decision in McBride v. Estis Well Serv., L.L.C., 731 F.3d 505 (5th Cir. 2013), the Fifth Circuit overturned decades of well-established GML jurisprudence and held that although a Jones Act seaman cannot seek punitive damages under the Jones Act, he has a GML claim for punitive damages via the historically separate and distinct GML cause of action for unseaworthiness. As a result, under Ryan and its progeny, and particularly the results in Tilley and Andrews, if a seaman combines his Jones Act claim with an unseaworthiness and maintenance and cure claim - which is virtually always the case - the unseaworthiness/punitive damage claim and the maintenance and cure claim should be freely removable, even if the Jones Act claim is ultimately severed and remanded.

            As is apparent from these recent decisions issued since the original "Removal of the Ancient Mariner" post, the Ryan decision and its progeny constitute a growing and developing body of jurisprudence that will no doubt continue to morph as more defendants become aware of this shift, and continue removing (under §1441) what have always been non-removable cases. Likewise, plaintiffs have already begun responding to this sea-change by seeking appellate review. See, e.g., Bridges v. Phillips 66 Co., Case No. 13-477, Rec. Doc. 49 (M.D. La. Nov. 19, 2013) (motion for certification for interlocutory appeal regarding denial of motion to remand). Ultimately, it will be the Fifth Circuit (or perhaps the United States Supreme Court) that will determine whether the Ryan sea-change has truly sounded the ding-dong knell for non-removability of GML claims - and, perhaps effectively in many cases, Jones Act claims as well.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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