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.”

Florida Court Strikes Award of Attorney’s Fees to a Seaman Under Florida’s Offer of Judgment Statute

Plaintiff worked for Employer and made a claim for Jones Act negligence, failure to treat, maintenance and cure, unearned wages and unseaworthiness.  Prior to trial, Plaintiff served an offer of judgment on Employer.  Employer objected to the propriety of the offer of judgment and moved to strike.  Nonetheless, following a trial on the merits, a jury found in favor of Plaintiff and awarded attorney’s fees and costs pursuant to the state’s offer of judgment laws.  Employer appealed.

The sole issue on appeal was whether the award of attorney’s fees was permissible.  The Court of Appeal determined that it was not, as such an award under Florida’s offer of judgment statute conflicts with maritime law.  The Court,  thus, overruled the state court on the award of attorney’s fees, and receded from prior precedent finding the contrary.

In doing so, the Court of Appeal noted that federal maritime law follows the American Rule with respect to awards of attorney’s fees.  Under the American Rule, attorney’s fees are permitted only when 1) there is an exception provided for under federal statute, 2) there is an enforceable contractual obligation providing for fees, or 3) the non-prevailing party engaged in bad-faith.

The Court noted that state courts could entertain maritime causes of action, but that state law may only supplement federal maritime law if the state law does not conflict with federal law or interfere with uniformity.

Citing to First Circuit, Third Circuit, and Fifth Circuit decisions, the Florida Court of Appeal noted that application of state fee-shifting statutes such as the Florida offer of judgment statute, conflicts with maritime law and violates the important principle of uniformity.  The Florida Court of Appeal, therefore, declined to uphold the lower court’s award of attorney fees to a seaman under Florida’s offer of judgment laws.

Royal Caribbean Cruises, Ltd. v. Cox, — So.3d —- (Fla. 3d DCA 2014)

Reporting a Marine Casualty: When is it Necessary?

Since 1986 those in the maritime industry have been required by law to submit to the US Coast Guard a Report of Marine Casualty, commonly known as a “2692,” when a marine casualty or accident occurs.  The regulations broadly define “marine casualty or accident” in order to capture a wide variety of occurrences. These occurrences provide the Coast Guard with the appropriate authority and jurisdictional latitude to investigate a wide range of occurrences irrespective of reporting requirements.  These occurrences include both commercial and recreational vessel activities.  Casualty reporting criteria for state registered vessels is found in 33 CFR Part 173 and  for federally registered vessels in 46 CFR Part 4.

Historically, the Coast Guard has relied upon the language found in Part 4 to assist regulated industry stakeholders in determining if an occurrence is a reportable marine casualty.  Information and data collected by the Coast Guard during marine casualty investigation are used by a wide audience for many purposes from enforcement of laws to enhancement of prevention activities (i.e. safety alerts and standards).  However, since inception there has been confusion in the industry as to when exactly submission of a 2692 report is necessary.  This becomes problematic for those in the maritime industry since civil penalties can be levied against the vessel owner/operator should the Coast Guard later conclude that a report should have been submitted when none was.

The Coast Guard has finally officially recognized that in order to achieve consistency and to assist industry time has come to address the problem.  The Coast Guard has issued a Notice of Availability and Request for Comments (Notice) on January 14, 2014 on a draft Navigation and Vessel Inspection Circular to provide guidance for the identification and reporting of marine casualties and provide clear policy interpretations to facilitate compliance with marine casualty reporting requirements.  79 Fed. Reg. 2466 (January 14, 2014).  The Notice is available at http://www.gpo/fdsys/pkg/FR-2012-01-14/pdf/2014-00443.pdf.  The draft NVIC is available at http://www.regulations.gov/#!documentDetail;D=USCG-2013-1047-0002.  Specifically, the draft NVIC assists responsible parties in the proper evaluation of occurrences that constitute a reportable marine casualty and subsequently require action by both Coast Guard and Industry.

The NVIC contains the existing regulations and provides amplifying information to assist reporting parties to determine whether an occurrence is a reportable marine casualty.

The proposed interpretations are extensive and comprehensive and cannot be reviewed in the space of this article.  They are helpful and are an improvement to the regulations as they presently exist.  For instance, the regs currently state that an injury needs to be reported if it “requires professional medical treatment (treatment beyond first aid).  In an attempt to provide clarification the suggested interpretation suggests that such is damage or harm caused to the structure or function of the body as a result of an outside physical agent or force.  The Coast Guard considers injuries and illnesses as separate types of occurrences.  As such, damage or harm caused by illness, including but not limited to communicable illness, food poisoning, heart attack, stroke or other pre-existing medical condition is not considered an injury and does not fall within the definition of the regulation.  To assist in determination of what constitutes “professional medical treatment” the Coast Guard has adopted the definitions of medical treatment and first aid established by OSHA in 29 CFR 1904.7(b)(5) as well as the explanation regarding medical treatment provided therein.  This regulation can be viewed online at www.ecfr.cov.

Those with a stake in this should take time to read the NVIC and referenced OSHA regs.  With this clarification comes the recognition that the Coast Guard is increasing its expectations of industry and will step up enforcement of its reporting requirements.

International Safe Container Act

The International Safe Container Act (ISCA, 46 U.S.C. 80501-80509), signed into law in 1977, details the requirements for application and compliance with the International Convention for Safe Containers signed in 1972 in Geneva.  The Convention was motivated by the need to maintain a “high level of safety of human life in the handling, stacking and transporting of containers, to facilitate international container transport and the recognition of the advantage of formal, uniform common international safety requirements.

The Act applies to an owner of a container used in international transport if the owner is domiciled or has its principal office in the United States.  The Act provides the United States Coast Guard with authority to examine and inspect containers used in international transport not only to make sure that they are sound, but also to ensure that they are in compliance with the Federal Hazardous Materials Transportation Law (49 U.S.C. 5101-5127) and ISCA.  The Act authorizes the Coast Guard to issue a detention order removing or excluding a container from service until the owner shows that the container meets the standards of the Convention.  It may also require the container to be moved to another location for repair or other disposition.  It may require unloading and special handling necessary to ensure safety.  (The Coast Guard is charged with inspection of general cargo to ensure hazardous materials are not being shipped illegally as undeclared hazardous materials are a leading cause of transportation accidents.)  The order will remain in effect until the container is found to be in compliance with the standards of the convention or is permanently removed from service. The owner of a container involved in such an action is required to reimburse or pay for the expenses arising from issuance of the detention order.

Additionally, the owner who has been notified of a detention order and fails to take reasonable and prompt action to prevent or stop a container subject to an order from being moved is liable for a civil penalty of not more than $5000 per day for each such container moved.  Each day the container remains in service in violation of the order is a separate offense.   The owner does have the right to appeal and seek review of the order.  The Coast Guard will then appoint an independent surveyor to inspect the container.  Once the survey is reviewed the Coast Guard may affirm, set aside or modify the order. It should be noted that the owner is liable for the costs incident to the petition for review including the cost of the survey and any other costs incident to or resulting from the detention.

Importantly, the Act also provides whistle blower protection to employees who bring to the attention of their employers containers in violation of the standards, and specifically states that any retaliatory act against a person is strictly prohibited and the employer may not discharge or discriminate against an employee because the employee has reported the existence of an unsafe container or a violation of a regulation found in the Act.  The employee alleging to have been the victim of retaliatory acts must file his complaint with the Secretary of Labor within sixty days of the violation.  After investigation, if the Secretary finds there has been a violation, he may bring a civil action in federal court to restrain the wrongful conduct and order “appropriate relief, including reinstatement and back pay.”  This could include payment of attorney’s fees and costs.  Retaliatory acts can include assigning to undesirable shifts, demoting, disciplining, intimidating, reducing hours or pay, or reassignment.