Duncan & Sevin recently was successful in a motion in front of Judge Kurt Engelhardt of the Eastern District of Louisiana in which Judge Engelhardt allowed removal of the plaintiff’s general maritime law claims (i.e., maintenance and cure and unseaworthiness) based on the recent amendment to the removal statute by Jurisdiction and Venue Clarification Act of 2011. Judge Engelhardt was apparently persuaded by the reasoning contained in the recent cases of Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772 (S.D. Tex. 5/13/2013) and Wells v. Abe’s Boat Rentals Inc., No. 13-1112, 2013 WL 3110322, (S.D. Tex. 6/18/13), and Bridges v. Phillips 66 Co., 2013 WL 6092803 (M.D. La. 11/19/2013).
Ryan and Wells are recent decisions out of the federal court for the Southern District of Texas and Bridges is a recent decision out of the Middle District of Louisiana. In all these cases, the courts allowed removal of general maritime law claims due to the language of the recently amended removal state, 28 U.S.C. § 1441(b). Traditionally, federal courts disallowed removal of general maritime law claims due to the language of the (pre-amendment) removal statute, 28 U.S.C. § 1441(b). Under the prior version of 28 U.S.C. § 1441(b), actions that were not “founded on a claim or right under the Constitution, treaties or laws of the United States,” such as claims arising under general maritime law, were removable only if no defendant was a citizen of the State in which the action was brought. However, Congress recently passed the Jurisdiction and Venue Clarification Act of 2011, which amended 28 U.S.C. § 1441. Under the new version of 28 U.S.C. § 1441, subsection (b) was deleted. The amended version of 28 U.S.C. § 1441 allows removal of all claims that fall within the federal court’s original jurisdiction without any other caveats or restrictions. Under the clear and unambiguous language of amended § 1441, claims under general maritime law fall within a federal district court’s original jurisdiction and are therefore removable.
As noted by Judge Engelhardt’s decision, Jones Act claims remain non-removable by statute. While the general maritime law claims for unseaworthiness and maintenance and cure remain in federal court, amended 28 U.S.C. § 1441 requires the court to sever and remand the non-removable Jones Act claim. This is obviously not ideal, and it remains to be seen what the courts will do with regard to stays and res judicata with two almost identical claims proceeding in parallel.
We believe this to be a positive new development in the litigation of maritime claims. We anticipate the 5th Circuit will weigh in on this issue eventually, but the clear language of the amended removal statute supports the interpretation and reasoning of Judge Engelhardt and the decisions of Ryan, Wells and Bridges. Any general maritime law claims brought in state court, including: maintenance and cure, unseaworthiness, damages due to a vessel allision or collision, personal injury to a non-seaman, etc. will likely be removable to federal court. This also means that any claims for punitive damages for failure to pay maintenance and cure or for unseaworthiness will also be able to heard in federal court rather than state court as long as the action is timely removed.
Jeffrey Siemann and Harry Morse are the attorneys in this matter and wrote this post.