Removal of a General Maritime Claim

A recent amendment to the widely-utilized removal statute, 28 U.S.C § 1441, now allows for removal of a general maritime law claim to federal court absent diversity of citizenship between the parties. And, the amendment doesn’t stop there- even with the inclusion of a Jones Act claim [statutorily non-removable thanks to 46 U.S.C. § 30104 and 28 U.S.C. § 1445(a)], a general maritime claim can now proceed to be heard in a federal court.

Prior to January 1, 2012, the removal statute only allowed for removal of a general maritime claim if diversity of citizenship was present between the parties. As it was written, the statute permitted removal of claims over which the district court had original jurisdiction,1 except as otherwise expressly provided by Act of Congress.” Such an Act was found in Section (b) of the statute, which limited removal to claims “founded on a claim or right under the Constitution, treaties or laws of the United States.” 28 U.S.C. § 1441(b) (West 2006). Though district courts historically have had original jurisdiction over general maritime law claims, such claims were not founded on a claim or right under the Constitution, treaties, or laws of the United States. They were, therefore, ineligible for removal pursuant to the statute, unless there was an independent basis for removal, such as diversity of citizenship.

Cue the amendment to 28 U.S.C § 1441. Congress removed the limitation provision which permitted removal only for claims “founded on a claim or right under the Constitution, treaties or laws of the United States. The only remaining limitation placed on removal was the criterion in Section (a) requiring the removed claim to be one which the district court had original jurisdiction, which according to 28 U.S.C. § 1333, includes any civil action of admiralty or maritime jurisdiction. So whether it was intentional or not, the amendment eliminated the statutory barrier to removal of general maritime law claims that didn’t have parties with diverse citizenship.

Courts within the purview of the 5th Circuit have already embraced the possibilities associated with the amendment. For instance, in the leading case of Ryan v. Hercules Offshore, Inc., 2013 WL 1967315 (S.D. Tex. May 13, 2013), Judge Miller allowed for, and agreed with, removal of the plaintiff’s general maritime law negligence claims based specifically on the amendment’s unambiguous language. His ruling has been followed by a growing line of cases, including Wells v. Abe’s Boat Rentals, Inc., 2013 U.S. Dist. LEXIS 85534 (S.D. Tex. June 18, 2013), which permitted removal of a general maritime law claim despite the inclusion of a non-removable Jones Act claim. The District Court for the Southern District of Texas was careful to instruct, however, that after removal, the district court “shall sever [the non-removable claims] and shall remand the severed claims to the State court from which the action was removed.” See also Bridges v. Phillips 66 Co., 2013 U.S. Dist. LEXIS 164146 (M.D. La. Nov. 18, 2013).

Despite the recent cases and decisions stemming from Texas and Louisiana courts, the amendment still stands vulnerable to interpretation. For now, however, one can safely and confidently pursue removal of general maritime claims, even in the presence of non-removable Jones Act claims.


1 Under 28 U.S.C. § 1333, district courts “have original jurisdiction, exclusive of the courts of the States, of . . . any civil action of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are entitled.”

Plaintiff-Seaman Can’t Recover Emotional Damages For Witnessing Injury To Someone Else

Plaintiff worked as a vessel repair supervisor at his employer’s shipyard facility.   His primary responsibility was the maintenance and repair of Employer’s life boats.  He spent roughly 70% of his time aboard those vessels.  The other 30% of the time, Plaintiff worked in the shipyard’s fabrication shop or operating a land-based crane.  It was during his land-based maintenance duties that Plaintiff was injured by a falling crane that crashed into a nearby building.   Plaintiff sustained a broken left foot, a severely broken right foot, and an abdominal hernia.  To make matters worse, Plaintiff’s cousin’s husband (another employee at the shipyard) was crushed by the crane and killed.  After a three-day trial, a jury concluded that Claimant was a Jones Act seaman, that Employer was negligent, and that Claimant was entitled to $2,400,000 in damages, which included $1,000,000 for past and future mental pain and suffering.

Employer appealed, challenging inter alia the jury’s determination that Plaintiff was a Jones Act seaman.  Specifically, Employer argued that Plaintiff was a land-based repairman who should be compensated under the Longshore and Harbor Workers’ Compensation Act, as opposed to a seaman who should be compensated under the Jones Act.  The Fifth Circuit disagreed, finding that Plaintiff satisfied the two-prong seaman test:

Though the Jones Act does not define “seaman,” Congress has elsewhere defined it as the “master or member of a crew of any vessel.”  To determine if a worker is a seaman or member of a vessel’s crew, the Supreme Court has established a two-prong test: “First, ‘an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission.’  Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.’”  Importantly, an individual can still qualify for seaman status even if he divides his time among multiple vessels under common ownership or control.  The relevant question is whether, in the course of his current job, he substantially contributes to the vessels’ functions and maintains a substantial connection with the fleet.”

Here, Plaintiff’s work was the ship’s work.  His employment duties focused on Employer’s vessels.  Plus, he did the ship’s work a substantial period of time.  Previously, the Supreme Court “endorsed” the Fifth Circuit’s general rule of thumb that “[a] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Here, Plaintiff spent 70% of his time working on Employer’s fleet of lift-boats, thus satisfying the “substantial in duration” inquiry.  Accordingly, Plaintiff was a seaman.

Nevertheless, Employer was successful with one important aspect of the claim: the availability of emotional damages for Plaintiff as a result of the death of Plaintiff’s relative.  After the trial, the jury awarded Plaintiff $1,000,000 for emotional suffering, but the Jones Act “does not indiscriminately permit compensation for emotional damages resulting from the death of another person.”  While Plaintiff may be entitled to emotional damages if he was in the zone of danger, Plaintiff was not entitled to emotional damages for the harm that happened to someone else, let alone a distant relative:

As described by the Supreme Court, the zone of danger test allows a Jones Act plaintiff “to recover for emotional injury caused by fear of physical injury to himself.”  More tellingly, the . . . Court explicitly rejected the relative bystander test, which would have permitted certain relatives to recover for emotional damages caused by witnessing an injury to someone else.  As our own court has previously recognized, it would be a “major departure from the existing jurisprudence” to “allow recovery for injuries resulting not from physical trauma, or the fear of physical trauma, to the plaintiff but from witnessing a ‘bad sight,’ i.e., harm to another.”

Several other considerations bolster this conclusion.  If multiple people witness an injury to someone else, it would be arbitrary to award emotional damages for seeing that person’s injury only to those people who also happened to suffer an injury at the same time.  Moreover, the Jones Act only extends an action to recover for the death of a seaman to his immediate family.  It would thus be inconsistent with the Jones Act’s wrongful death provision to permit anyone else to recover for the negligent death of a coworker.

Accordingly, the Fifth Circuit vacated the jury’s award and remanded for a new trial on damages.  The court could not discern to what extent the jury’s findings compensated Plaintiff for the emotional damages he suffered as a result of his relative’s death.

Naquin v. Elevating Boats, L.L.C., — F.3d —- (5th Cir. 2014).

Note: Take a moment to read Judge Jones’ dissent.  Here’s the conclusion: “With all respect to the majority, I would hold that [Plaintiff] is not entitled to seaman status and, therefore, reverse the district court’s ruling that [Employer] was liable under the Jones Act.”

Failing to Participate in Proceedings Justified Dismissal With Prejudice

Plaintiffs, Atlantic Sounding and Weeks Marine, filed a declaratory judgment action seeking a declaration that they did not owe Maurice Fendlason, an injured seaman-employee, maintenance and cure benefits.  Fendlason answered and filed a counterclaim for damages, as well as maintenance and cure.  But then Fendlason’s participation in his case stopped.  He failed to appear for proceedings, failed to comply with court orders, failed to attend multiple scheduled depositions, and failed to participate with his (original) attorney.  After four months of these shenanigans, Plaintiffs filed a motion to dismiss.  The district court offered Fendlason an opportunity to show cause why his case should not be dismissed, but Fendlason failed to appear for the hearing.  Accordingly, the district court dismissed Fendlason’s action with prejudice.

The Fifth Circuit affirmed, even though alternative lesser sanctions were available.  Fendlason’s actions showed a “clear record of delay or contumacious conduct” sufficient to warrant dismissal.  He was given multiple opportunities to avoid dismissal, and he failed to take advantage of either.  Here, the “district court did not abuse its discretion when, after adequate warning, it dismissed the action with prejudice.

Atlantic Sounding Co., Inc. v. Fendlason, No. 13-30885 (5th Cir. Feb. 14, 2014).

5th Circuit Rules That Offshore Floating Oil and Gas Platform Moored on the OCS Floor Is Not a Vessel and Not Subject to Maritime Lien

A recent “unpublished”  decision from the U.S. Fifth Circuit addressed the issue of whether a maritime lien can attach to on offshore floating production platform.  In Warrior Energy Services Corp. v. ATP Titan M/V, Action No. 13-30587 (5 Cir. 2014), several oilfield contractors, Warrior and others, contracted with ATP Oil & Gas to provide certain services and supplies to the ATP TITAN M/V (”TITAN”), a floating oil and gas production facility owned by ATP Titan, LLC.  The TITAN is moored on the Outer Continental Shelf, miles offshore from Louisiana.

ATP Oil & Gas filed for bankruptcy and did not pay the contractors for their services.  Warrior and the other contractors then filed a USDC action against platform owner ATP Titan and asserted a maritime lien against the TITAN.  ATP Titan filed a motion to dismiss the USDC action as well as the maritime lien on the basis the TITAN was not a vessel and the court lacked jurisdiction.  Warrior et al conceded that its claims before the court were dependent upon the TITAN’s status as a vessel.  On motion for summary judgment, Judge Sara Vance ruled the TITAN was not a vessel and she dismissed the contractors’ lawsuit on jurisdictional grounds.

Addressing the issue of vessel status, the 5th Circuit panel looked to the U.S. Supreme Court’s vessel status decisions in Stewart v. Dutra and Lozman v. City of Riviera Beach. The dispositive question was whether the TITAN’s “use as a watercraft as a means of transportation on water is a practical possibility or merely a theoretical one.” (citing Dutra). The court went on to note that the TITAN is moored to the OCS floor by 12 mooring chains connected to 12 anchor piles imbedded over 200 feet into the seafloor. It is further immobilized by “an oil and gas production infrastructure”.  The TITAN has not been moved since it was installed in 2010 and it has no means of self-propulsion, apart from the ability to reposition itself within a 200 foot range by manipulating its mooring lines.  Moreover, moving the TITAN would require 12 months of preparation, at least 15 weeks for its execution and would cost more than $70-million.  Based on these factors, the 5th Circuit ruled that the TITAN was not practically capable of transportation on water and, therefore, as a matter of law, was not a vessel.

Editor’s Note: The contractors complained to the 5th Circuit that Judge Vance relied on its unpublished opinion in a similar case: Mendez v. Anadarko Petroleum Corp.  By way of a footnote, the panel acknowledged that Mendez was not “controlling precedent” but could be cites as “persuasive authority” given its factual similarity with the subject ATP case.