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

by Baker Donelson

                                                                    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, 
                                                                    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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.