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.”

Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana

Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development.  On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room.  After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury.  In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel.  The trial court agreed with Plaintiff and the State appealed.

Louisiana’s Third Circuit first addressed causation.  The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.”  The Third Circuit recognized that a seaman need only present “slight evidence” that her injuries were caused by her employer’s negligence in order to reach the jury (and avoid summary judgment).  Here, Plaintiff presented sufficient evidence to avoid summary judgment:

In a transcript attached to her opposition to the State’s summary judgment motion, Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on which she slipped.  She further testified that she was cleaning according to operational instructions.  In contrast, the State alleges she created the condition of soapy water mixed with oil through her own act of mopping.  Therefore, there exists a genuine issue of material fact as to causation.

As for liability, the Third Circuit determined that summary judgment should not have been granted in Plaintiff’s favor.   Plaintiff submitted that the vessel’s engine leaked oil, that its propeller shaft leaked water, and that the vessel had “poor flooring conditions.”   But the “presence of oil does not satisfy the legal standard for demonstrating Jones Act negligence as set forth above.”  Here, the jury must determine whether the dangerous condition was caused by the State’s negligence, or whether, as the State argued, Plaintiff caused the dangerous condition herself.

Thibodeaux v. State, DOTD, 13-893 (La. App. 3 Cir. 3/12/14); — So. 3d —-.

Happy Mardi Gras! Laissez Les Bons Temps Rouler!

Today is Fat Tuesday!  If you have not been to New Orleans for Mardi Gras, you should put the trip on your bucket list.  It is a time of camaraderie, revelry and carousal.  There are weeks of parades, but the biggest parades start the Thursday before Mardi Gras.  There are family areas for the parades as well as not-so-family areas.  There are king cakes, costumes, and coconuts.  There are beads, doubloons, and shoes.

I think Chris Rose described Mardi Gras in great fashion in his book 1 Dead in Attic:

To encapsulate the notion of Mardi Gras as nothing more than a big drunk is to take the simple and stupid way out, and I, for one, am getting tired of staying stuck on simple and stupid.

Mardi Gras is not a parade.  Mardi Gras is not girls flashing on French Quarter balconies.  Mardi Gras is not an alcoholic binge.

Mardi Gras is bars and restaurants changing out all the CD’s in their jukeboxes to Professor Longhair and the Neville Brothers, and it is annual front-porch crawfish boils hours before the parades so your stomach and attitude reach a state of grace, and it is returning to the same street corner, year after year, and standing next to the same people, year after year–people whose names you may or may not even know but you’ve watched their kids grow up in this public tableau and when they’re not there, you wonder:  Where are those guys this year?

It is dressing your dog in a stupid costume and cheering when the marching bands go crazy and clapping and saluting the military bands when they crisply snap to.

Now that part, more than ever.

It’s mad piano professors converging on our city from all over the world and banging the 88′s until dawn and laughing at the hairy-shouldered men in dresses too tight and stalking the Indians under Claiborne overpass and thrilling the years you find them and lamenting the years you don’t and promising yourself you will next year.

It’s wearing frightful color combination in public and rolling your eyes at the guy in your office who–like clockwork, year after year–denies that he got the baby in the king cake and now someone else has to pony up the ten bucks for the next one.

Mardi Gras is the love of life.  It is the harmonic convergence of our food, our music, our creativity, our eccentricity, our neighborhoods, and our joy of living.  All at once.

Finally, for those of you who may be curious about the parades, I leave you with a video from the 2013 Endymion parade and a video from the 2011 Rex parade, both of which I found on YouTube.  Now, Laissez Les Bons Temps Rouler!

Krewe of Endymion:

Krewe of Rex:

Offshore Sandblaster/Painter was a Jones Act Seaman

Plaintiff worked for a company which performed both onshore and offshore sandblasting and painting.  His employer contracted with a third party to undertake the sandblasting and painting of an offshore platform.  Plaintiff and his crew worked on this project for two-and-a-half months.  During that time, Plaintiff slept and ate on board theM/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform.  Plaintiff was also injured on the vessel: he fell as he was exiting the wheelhouse.  After a trial, the jury determined that Plaintiff was a Jones Act seaman, and he awarded maintenance and cure totaling $8,580.00 and $9,754.00 respectively.

The first question presented to Louisiana’s Third Circuit was whether Plaintiff was a Jones Act seaman.  As for the legal backdrop, the court simply quoted four (4) pages of the Supreme Court’s decision in Chandris, Inc. v. Latsis, 515 U.S. 347, 368-72 (1995).  From there, the Third Circuit noted that the only evidence presented to the jury regarding Plaintiff’s seaman status was Plaintiff’s testimony.  Taken as a whole, the court found no manifest error in the jury’s finding that Plaintiff was a Jones Act seaman.

Jones v. Howard McCall, Inc., — So. 3d —- (La. App. 3 Cir. 2012).