Dewayne Gregoire said he was injured in a slip-and-fall accident while working as a tankerman on Enterprise Marine Services’ vessel, Marie.
Like many injured seafarers, he chose to file a claim in state court, in this case the 32nd Judicial District Court for the Parish of Terrebonne, La.
As attorney Marissa Henderson observed in an article on the case posted on the website of her firm Ventker Warman Henderson, “Ask maritime plaintiffs’ attorneys which forum they would rather be in, and they’ll say state court nine times out of 10. In state court, they get a jury. In federal court on an admiralty matter, they have a judge only deciding the case.”
In his suit against Enterprise and its insurer, Gregoire said he was injured as a result of the unseaworthiness of the vessel, and negligence under the Jones Act and general maritime law. He said he was entitled to maintenance and cure. And he accused the defendants of failing to preserve evidence.
Enterprise removed the suit to federal court, and Gregoire sought to remand the case to state court relying on 28 U.S. Code, Sections 1441 and 1333.
In the past, plaintiffs have been able to rely on getting state court forums due to the “savings to suitors” clause in §1333, originally, Section 9 of the 1789 Judiciary Act.
That 1789 law granted federal district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.” But it also included a clause, “saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”
Fast forward to the Federal Courts Jurisdiction and Venue Clarification Act of 2011 which revised §1441.
Enterprise asserted because Gregoire’s Jones Act claim is joined with other claims which are removable, the Jones Act claims were also removable to federal court. It said §1441(b) no longer prohibits removal of general maritime law claims except with “other caveats or restrictions” and those claims “fall within the federal court’s original jurisdiction,” making them removable under §1441(a).
Enterprise added that even if the court supported Gregoire in finding the Jones Act claim remains non-removable, the other claims could be heard in federal court.
In his decision (Gregoire v. Enterprise Marine Services. E.D. Louisiana. No. 14-840. Aug. 6, 2014) Judge Stanwood R. Duval Jr. noted there is a split among courts as to whether the 2011 amendments “affected the prior precedent on admiralty removal jurisdiction.”
Duval said “Congress has not given any indication that it intended to make substantive changes to removal of admiralty matters, and the Fifth Circuit has not indicated otherwise.”
He said recent district court opinions are split as to whether the 2011 amendments affected prior precedent to the removal statute.
The seminal decision is Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D.Tex. May 13, 2013), which found that because of the 2011 amendments “general maritime law claims have become removable.”
Enterprise’s argument in this case “incorporates the same logic,” Duval said.
While some district courts have followed the reasoning in Ryan v. Hercules, Duval concluded “it is precisely ‘the statutory grant of admiralty jurisdiction, 28 U.S.C. §1333, and more than 200 years of precedent interpreting this grant’ rather than the 2011 amendment to the removal statute that determine the removability of Gregoire’s claims. In short, general maritime law claims are not now removable—nor have they ever been—without an independent basis of jurisdiction other than 28 U.S.C. §1333, and defendants may not elude the non-removable nature of Jones Act claims when such claims are asserted in conjunction with general maritime law claims under §1441(c).”
In a note to American Shipper, Henderson said “the Gregoire opinion amounts to a primer on the historical bases for admiralty jurisdiction in federal courts. Gregoire is a useful reference because admiralty jurisdiction can be difficult to grasp. For example, a contract to build, buy, or sell a vessel does not fall under admiralty jurisdiction, but a contract to repair, dock, or charter a vessel does.”
She said “Gregoire essentially closed the door on removal in an important maritime court, the Eastern District of Louisiana.”
Henderson believes “any court addressing the issue anew after Gregoire would likely take notice of it and find its reasoning compelling. Indeed, many in the maritime legal community feel that the latter part of 2014 turned the tide on the removal question, with the trend settling against removal.”
With district courts divided, might this be an issue that would make it eventually to the Supreme Court?
Henderson noted “the issue of removal is a tricky one to appeal because it is not a ‘final’ decision subject to appeal. Interlocutory decisions such as deciding to remove to federal court or remand back to state court are not immediately appealable. So the issue may make it to a federal appeals court after judgment has been decided in Gregoire or another case, but the issue may also peter out at the federal trial courts.
“Only if the federal appeals courts split on the issue will the Supreme Court generally take notice. So while I think the Supreme Court should weigh in on the issue, the issue is procedurally difficult to appeal,” she added.
American Shipper asked Henderson if the removal question comes up in other types of maritime cases outside personal injury, and she said “I’m not sure that it does. Most non-personal injury maritime disputes are filed already in federal court, especially when the federal courts’ exclusive admiralty jurisdiction or a federal statue is needed to get relief, such as with cargo disputes, maritime liens, and vessel arrests.”
She said litigants may try to use the arguments started by the Ryan v. Hercules case to try to remove non-personal injury maritime cases filed in state court (such as maritime contracts), “but they would face an uphill battle after the argument has lost so much ground in cases such as Gregoire and several others.”
This column was published in the March 2015 issue of American Shipper.