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Admiralty jury trials reconsidered.


        THE OCSLA


As the new Constitutional form of government of the United States began to take shape in 1789, the month of September brought the appointments of Alexander Hamilton as he first Secretary of the Treasury, Thomas Jefferson as the first Secretary of State, Edmund Randolph as the first Attorney General, and John Jay as the first Chief Justice of the Supreme Court. On consecutive days in that month, Congress enacted the Judiciary Act of 1789 (1) and proposed the Bill of Rights.

In contrast (2) to the Articles of Confederation, which conferred limited judicial authority (3) to the United States, Article III of the Constitution provides:
   The judicial Power shall extend to all Cases, in Law and
   Equity, arising under this Constitution, the Laws of the
   United States, and Treaties made, or which shall be
   made, under their Authority;--to all Cases affecting
   Ambassadors, other public Ministers and Consuls;--to all
   Cases of admiralty and maritime Jurisdiction;--to
   Controversies to which the United States shall be a
   Party;--to Controversies between two or more States;--between
   a State and Citizens of another State;-between
   Citizens of different States;-between Citizens of the same
   State claiming Lands under Grants of different States,
   and between a State, or the Citizens thereof, and foreign
   States, Citizens or Subjects. (4)

The Judiciary Act of 1789 conferred jurisdiction on the federal judiciary from the Constitutional grant, and, with respect to admiralty cases, provided:
   That the district courts ... shall also have exclusive
   original cognizance of all civil causes of admiralty and
   maritime jurisdiction, including all seizures under laws of
   impost, navigation or trade of the United States, where
   the seizures are made, on waters which are navigable
   from the sea by vessels of ten or more tons burthen,
   within their respective districts as well as upon the high
   seas; saving to suitors, in all cases, the right of a common
   law remedy, where the common law is competent to give it
   ... (5)

The Act also provided: "And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." (6)

The day after Congress passed the Judiciary Act of 1789, it agreed upon a Bill of Rights, which included the Seventh Amendment:
   In Suits at common law, where the value in controversy
   shall exceed twenty dollars, the right of trial by jury shall
   be preserved, and no fact tried by a jury, shall be
   otherwise re-examined in any Court of the United States,
   than according to the rule of the common law. (7)

The Supreme Court discussed the reach of the Seventh Amendment in Parsons u. Bedford. (8) Writing for the Court, Justice Story noted that "[o]ne of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases." (9) The incorporation of the right to a jury trial by amendment to the Constitution and its recognition by the constitutions of every state led Justice Story to declare its importance as a fundamental guarantee of the rights and liberties of the people." (10) Reasoning that the Constitution extended the judicial power "'to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,' etc. and to all cases of admiralty and maritime jurisdiction," (11) Justice Story stated: "The phrase 'common law,' found in [the Seventh Amendment] is used in contradistinction to equity, and admiralty, and maritime jurisprudence." (12) Justice Story recognized that "[i]t is well known that in civil causes, in courts of equity and admiralty, juries do not intervene ..." (13) Consequently, he concluded that "the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." (14)


The effect of the Saving-to-Suitors Clause in the grant of admiralty jurisdiction to the federal courts has engendered considerable attention from the Supreme Court. The Moses Taylor (15) arose out of a contract to transport a passenger to San Francisco that resulted in a suit against the vessel. A passenger brought "a proceeding against the vessel" in the court of a justice of the peace in San Francisco pursuant to a California statute that authorized actions directly against vessels. (16) The agent for the vessel denied that the state court had jurisdiction on the ground that the federal courts had exclusive jurisdiction over the action against the vessel. (17) The passenger asserted that the jurisdiction of the federal courts over admiralty and maritime actions was not exclusive as a result of the Saving-to-Suitors Clause. (18) Thus, the issue presented to the Court was whether the action against the Moses Taylor was exclusive to admiralty or whether it was a common-law remedy that was saved to the passenger. (19) To answer the question, Justice Field first discussed the admiralty jurisdiction of the federal courts pursuant to the Judiciary Act of 1789:
   It has been made exclusive by Congress, and that is
   sufficient, even if we should admit that in the absence of
   its legislation the State courts might have taken
   cognizance of these causes. But there are many weighty
   reasons why it was so declared. 'The admiralty
   jurisdiction,' says Mr. Justice Story, 'naturally connects
   itself, on the one hand, with our diplomatic relations and
   the duties to foreign nations and their subjects; and, on
   the other hand, with the great interests of navigation and
   commerce, foreign and domestic. There is, then, a peculiar
   wisdom in giving to the national government a
   jurisdiction of this sort which cannot be yielded, except for
   the general good, and which multiplies the securities for
   the public peace abroad, and gives to commerce and
   navigation the most encouraging support at home.' (20)

Justice Field explained the meaning of the Saving-to-Suitors Clause: "It is not a remedy in the common-law courts which is saved, but a common-law remedy." (21) Applying that reasoning to the remedy being sought against the Moses Taylor, Justice Field concluded: "A proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law; it is a proceeding under the civil law. When used in the common-law courts, it is given by statute." (22) As such, it was "not within the saving clause" and the California court did not have jurisdiction. (23)

The Supreme Court reiterated its analysis of the Saving-to-Suitors Clause in The Hine v. Trevor. (24) The case arose out of a collision between the Hine and the Sunshine on the Mississippi River near St. Louis. (25) The owners of the Sunshine seized the Hine in a suit in Iowa state court to enforce a lien created by an Iowa statue. (26) When the Iowa state courts denied the jurisdictional defenses presented by the Hine, (27) the Supreme Court noted:
   Nearly all the States--perhaps all whose territories are
   penetrated or bounded by rivers capable of floating a
   steamboat--have statutes authorizing their courts, by
   proceedings in rem, to enforce contracts or redress torts,
   which, if they had the same relation to the sea that they
   have to the waters of those rivers, would be conceded to be
   the subjects of admiralty jurisdiction. (28)

Construing the terms of the Judiciary Act of 1789, the Court stated:
   It must be taken, therefore, as the settled law of this
   court, that wherever the District Courts of the United
   States have original cognizance of admiralty causes, by
   virtue of the act of 1789, that cognizance is exclusive, and
   no other court, state or national, can exercise it with the
   exception always of such concurrent remedy as is given by
   the common law. (29)

The Court added: "If the facts of the case before us in this record constitute a cause of admiralty cognizance, then the remedy, by a direct proceeding against the vessel, belonged to the Federal courts alone, and was excluded from the State tribunals." (30)

Although the court's interpretation of the grant of admiralty jurisdiction led "unavoidably to the conclusion, that the State courts of Iowa acted without jurisdiction; that the law of that State attempting to confer this jurisdiction is void ..." (31) the owners of the Sunshine argued that the Iowa statute fell within the Saving-to-Suitors Clause. (32) The Court answered: "But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common-law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding in rem." (33) The Court distinguished the Iowa remedy invoked in The Hine from actions initiated against an owner, such as attachments, which the Court considered to be saved by the Saving-to-Suitors Clause. (34)

In conclusion, the Court in The Hine did not believe that "it could have been the intention of Congress, by the [Saving-to-Suitors Clause], to give the suitor all such remedies as might afterwards be enacted by State statutes." (35) Such an intent would defeat the exclusive jurisdiction provision because it "would have enabled the States to make the jurisdiction of their courts concurrent in all causes, by simply providing a statutory remedy for all cases." (36)

Libels filed in the City Court of Mobile asserting liens under Alabama law gave the Supreme Court the opportunity to discuss the Saving-to-Suitors Clause in The Belfast. (37) The parties disputed whether exclusive jurisdiction was vested in the federal courts or whether the state courts had concurrent jurisdiction under the Saving-to-Suitors Clause. (38) The parties did not contest that "[w]herever a maritime lien arises the injured party may pursue his remedy, whether for a breach of a maritime contract or for a marine tort, by a suit in rem, or by a suit in personam, at his election." (39) Although injured or damaged parties "are entitled to proceed in rem in the admiralty court to enforce the lien ... they are not compelled to do so, as they may waive the lien and bring their suit in personam against the master and owners, as they are also liable as well as the vessel." (40) However, the libellants in The Belfast argued "that the State courts have concurrent jurisdiction to afford the parties the same remedies in all such cases." (41)

The Court found "[n]o warrant" for the argument presented by the libellants either in the Saving-to-Suitors Clause or "in any other part of the fundamental regulation of our judicial system." (42) After quoting the language of the Saving-to-Suitors Clause, the Court stated: "Nothing is said about a concurrent jurisdiction in a State court or in any other court...." (43) Moreover, as there was diversity of citizenship between the parties, (44) the Court stated that "the injured party may pursue the common law remedy here described and saved, in the Circuit Court of the district as well as in the States courts." (45) Although the suitor could elect to pursue a common-law remedy in the state court or federal court at law if a common-law remedy were available, the Court stated: "Common-law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusively in the District Courts." (46)

Carefully examining the language of the Saving-to-Suitors Clause, the Court described the remedy that was saved: "It is to suitors, and not to the State courts, nor to the Circuit Courts of the United States." (47) Thus, Congress allowed a "party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy." (48) The Court added:
   Properly construed, a party under that provision may
   proceed in rem in the admiralty, or he may bring a suit in
   personam in the same jurisdiction, or he may elect not to
   go into admiralty at all, and may resort to his common
   law remedy in the State courts or in the Circuit Court of
   the United States, if he can make proper parties to give
   that court jurisdiction of his case. (49)

As the "jurisdiction exercised by the State court was of the precise character which is exclusive in the District Courts of the United States sitting in admiralty," (50) the Court ordered the libels filed in the state court be dismissed. (51)

The Supreme Court has addressed whether a remedy is saved to suitors in contexts other than admiralty's exclusive in rem proceeding. For example, in Rounds u. Cloverport Foundry & Machine Co., (52) Cloverport brought suit against the owners of a vessel in a Kentucky state court seeking to recover for work and materials furnished pursuant to a contract to repair and rebuild the vessel. (53) Cloverport attached the vessel pursuant to a Kentucky statute that provided a hen on watercraft for work and supplies. (54) In upholding the jurisdiction of the Kentucky state court, the Supreme Court distinguished the case of an in personam action with an "auxiliary attachment against the vessel," (55) from an in rem proceeding, stating: "Actions in personam with a concurrent attachment to afford security for the payment of a personal judgment are in a different category." (56) The Court added:
   And this is so not only in the case of an attachment
   against the property of the defendant generally, but also
   where it runs specifically against the vessel under a state
   statute providing for a lien, if it be found that the
   attachment was auxiliary to the remedy in personam. (51)

As the suit involved an in personam action in the state court, it was a common-law remedy, which the common law was competent to give." (58)

The Supreme Court addressed the extent to which in personam actions that impact vessels are saved to suitors in Madruga v. Superior Court. (59) Eight individuals who owned 85% of a vessel brought suit in California state court against the individual who owned the remaining 15% of the vessel, seeking sale and partition of the vessel pursuant to a California statute. (60) After determining "that the power of admiralty, as Congress and the courts have developed it over the years, is broad enough for United States district courts to order vessels sold for partition," (61) the Court addressed the issue whether the state court had concurrent jurisdiction pursuant to the Saving-to-Suitors Clause to order sale and partition. (62)

Reviewing its Saving-to-Suitors Clause decisions, the Court drew the distinction between in rem actions and in personam actions:
   Admiralty's jurisdiction is "exclusive" only as to those
   maritime causes of action begun and carried on as
   proceedings in rem, that is, where a vessel or thing is
   itself treated as the offender and made the defendant by
   name or description in order to enforce a lien. It is this
   kind of an in rem proceeding which state courts cannot
   entertain. But the jurisdictional act does leave state
   courts "competent" to adjudicate maritime causes of
   action in proceedings "in personam," that is, where the
   defendant is a person not a ship or some other instrument
   of navigation. (63)

The partition action in Madruga did not present the features of an in rem action because "[t]he plaintiffs' quarrel was with their co-owner, not with the ship." (64) As the partition action only affected the interests of the parties to the litigation and did not "affect the interests of others in the world at large, as it would if this were a proceeding in rem to enforce a lien," (65) the common law, in the California court, was "'competent' to give this partition remedy." (66)

In summary, the Saving-to-Suitors Clause of the Admiralty Jurisdiction Statute does not guarantee jurisdiction or save a remedy in a common-law court. It preserves the right of maritime suitors to assert a common-law remedy. Suitors may elect to bring an in rem action, which is not saved to suitors and can only be brought within the admiralty jurisdiction of the federal courts. Alternatively, suitors may elect to assert common-law remedies either in federal court under its admiralty jurisdiction, in federal court under a different jurisdictional basis, or in state court. If a court has jurisdiction over an admiralty matter, it '"is free to adopt such remedies, and to attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.'" (67) Thus, where the suitor is able to "employ her common-law remedy in the state court ... she may obtain trial by jury." (68)


Prior to 1966, federal courts could hear maritime claims on their admiralty side, subject to the Admiralty Rules, or on their common-law side, subject to the Federal Rules of Civil Procedure. (69) Separate sides of the court were eliminated when the rules were unified in 1966, and admiralty claims were incorporated into the "one form of action--the civil action." (70) While the separation between the sides of the court was eliminated, the uniqueness of admiralty practice was not entirely shelved as the Advisory Committee noted: "Certain distinctive features of the admiralty practice must be preserved for what are now suits in admiralty." (71) The Committee added that "[o]ne of the important procedural consequences is that in the civil action either party may demand a jury trial, while in the suit in admiralty there is no right to jury trial except as provided by statute." (72) In order to preserve the admiralty features, pleaders were given the option by Rule 9(h) to designate a claim for relief "as an admiralty and maritime claim for the purposes of' several special admiralty rules. (73) Admiralty's traditional procedure for resolving claims without a jury was therefore preserved by the addition of a subsection to Rule 38: "These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h)." (74) The Committee cautioned: "It is no part of the purpose of unification to inject a right to jury trial into those admiralty cases in which that right is not governed by statute." (75)

Besides admiralty jurisdiction, the federal courts are also granted original jurisdiction over other claims, such as those with diversity of citizenship (76) and those involving federal questions. (77) Although the merger in 1966 of the Admiralty Rules and civil rules has converted admiralty libels into civil actions, that merger did not change the court's power with respect to common-law remedies, as admiralty courts already had the right to grant common-law remedies prior to the unification. (78) Federal courts may hear maritime cases under their admiralty jurisdiction, or, alternatively, under another grant of original jurisdiction, pursuant to the Saving-to-Suitors Clause, if the provisions of that jurisdictional grant are met.

At times, a maritime action may be coupled with other claims that give rise to multiple grounds of federal jurisdiction. In these situations, questions arise as to whether a party should seek a jury trial as opposed to a bench trial and whether or not a jury trial may be available. These issues are further complicated when Congress adds a statutory action, such as the Jones Act, to the remedies afforded by the general maritime law. (79)

Although the general maritime law affords crewmembers remedies of indemnity for injuries caused by the unseaworthiness of a vessel and maintenance and cure, the crewmember was not afforded a remedy by the general maritime law for the negligence of the master or fellow crewmember. (80) Congress established that negligence remedy in the Jones Act: "A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer." (81)

The Supreme Court addressed Constitutional issues presented by the Jones Act in Panama R.R. v. Johnson, (82) Andrew Johnson, a seaman who was injured while ascending a ladder on a vessel returning from an Ecuadorian port, brought an action "on the common-law side of a District Court of the United States," seeking to recover under the Jones Act. (83) After the jury rendered a verdict in favor of Johnson, (84) the defendant argued to the Supreme Court that the Jones Act unconstitutionally conflicted with the Constitution's grant of judicial power over admiralty cases to the federal courts.'" (85)

To answer the defendant's constitutional challenge, the Court explained that the intent of the grant of admiralty jurisdiction was to place the subject "under national control." (86) Although the grant of jurisdiction did not contain an "express grant of legislative power over the substantive law," (87) as the maritime law had "become the law of the United States," it was "subject to power in Congress to alter, qualify or supplement it as experience or changing conditions might require." (88) Despite the "wide discretion" given to Congress, (89) the Court cited two limitations on Congress' power to modify the general maritime law:
   One is that there are boundaries to the maritime law and admiralty
   jurisdiction which inhere in those subjects and cannot be altered
   by legislation, as by excluding a thing falling clearly within them
   or including a thing falling clearly without. Another is that the
   spirit and purpose of the constitutional provision require that the
   enactments--when not relating to matters whose existence or
   influence is confined to a more restricted field ...--shall be
   coextensive with and operate uniformly in the whole of the United
   States. (90)

The defendant asserted that the creation of a negligence remedy at law for seamen would effectively withdraw the seaman's maritime causes of action "from the reach of the maritime law and the admiralty jurisdiction, and ... have it determined according to the principles of a different system applicable to a distinct and irrelevant field...." (91) The Court recognized that there was support in the language of the statute for the defendant's argument that "even if the statute brings those rules into that law, it is still invalid in that it restricts the enforcement of right founded on them to actions at law, and thereby encroaches on the admiralty jurisdiction intended by the Constitution," (92) which the Court admitted would present a "grave question ... respecting its constitutional validity." (93) However, the Court did not interpret the statute as withdrawing seamen's injury claims "from the reach and operation of the maritime law" when the language was "[r]ightly understood." (94) The Court read the Jones Act as creating a negligence remedy that could be enforced either in admiralty or at law. (95) The Court recognized that the statute afforded a right to a jury trial, but the Court believed that the right to a jury trial extended only to the situation where the negligence claim was brought at law and not when it was brought in admiralty: (96)
   In this view the statute leaves the injured seaman free under the
   general law--sections 24 (par. 3) and 256 (par. 3) of the Judicial
   Code--to assert his right of action under the new rules on the
   admiralty side of the court. On that side the issues will be tried
   by the court, but if he sues on the common-law side there will be a
   right of trial by jury. So construed, the statute does not encroach
   on the admiralty jurisdiction intended by the Constitution, but
   permits that jurisdiction to be invoked and exercised as it has
   been from the beginning. (97)

The ruling that the seaman may elect to pursue a Jones Act negligence claim on the admiralty side of the court without a jury or on the common-law side of the court with a jury did not address the procedural ramifications that the election of a jury for the Jones Act claim would have on the seaman's traditional maritime rights to recover maintenance and cure and for breach of the warranty of seaworthiness. In Fitzgerald v. United States Lines Co., (98) the seaman brought an action in federal court in New York to recover for injuries sustained on the defendant's ship, alleging negligence, unseaworthiness, and failure to provide maintenance and cure. (99) The seaman demanded a jury trial on all issues, and the court granted a jury trial for the negligence and unseaworthiness actions but not for the maintenance and cure claim. (100) The jury found in favor of the defendant on the negligence and unseaworthiness actions, and the judge awarded $224 for maintenance and cure to the seaman. (101) The seaman appealed, seeking a jury trial on the maintenance and cure claim. (102)

While noting "that the Seventh Amendment does not require jury trials in admiralty cases," (103) the Court stated that "neither that Amendment nor any other provision of the Constitution forbids" a jury trial. (104) Similarly, the Court found no statute or procedural rule that would forbid a jury trial in an admiralty case. (105) In support of a single fact finder, the Court reasoned: "Requiring a seaman to split up his lawsuit, submitting part of it to a jury and part to a judge, unduly complicates and confuses a trial, creates difficulties in applying doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery." (106) Consequently, the Court concluded: "Only one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments." (107) As the seaman demanded a jury on his Jones Act claim, he was entitled to a jury trial on his maintenance and cure claim arising "out of one set of facts." (108)

Although "the Jones Act gives only the seaman-plaintiff the right to choose a jury trial," (109) both the plaintiff and defendant have the right to demand a jury trial when the suit is premised on another ground for federal jurisdiction, (110) such as diversity of citizenship. (111) However, after the unification of the admiralty and civil rules in 1966, when there are multiple grounds for jurisdiction that include admiralty, the plaintiff is given the right to designate (112) whether the claims are brought within the admiralty jurisdiction for purposes of admiralty rules that "do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim." (113) In Romero v. Bethlehem Steel Corp, the Fifth Circuit discussed the effect of pleading of claims as admiralty and maritime claims on the plaintiffs demand for a jury trial. (114)

Edward J. Romero brought an action in federal court against three defendants seeking to recover for injuries sustained on a vessel. (115) The first paragraph of his complaint stated: "Complainant alleges a cause of action based upon negligence in accord with general maritime law and a second cause of action on the grounds of unseaworthiness in accord with Rule 9(h) of the Federal Rules of Civil Procedure." (116) The second paragraph alleged that the defendants were "corporations 'organized and existing under the laws of a State other than Louisiana;'" the third paragraph stated that "the amount in controversy exceeds ten thousand dollars;" and the prayer demanded "A TRIAL BY JURY." (117) The pre-trial order stated that jurisdiction was based on admiralty and maritime jurisdiction as well as diversity of citizenship, (118) but the order noted the disagreement over the effect of the jurisdictional pleading:
   The parties are in dispute as to whether the case is on the jury or
   non-jury docket. The plaintiff asserts that it is a jury case.
   Defendants contend that since it was filed under 9(h) that it is a
   non-jury case. This matter will have to be resolved by the Court.

When the case was tried to the court and judgment was entered in favor of the defendants, Romero asserted on appeal "that the district judge erroneously denied him the right to trial by jury." (120)

The Fifth Circuit began by stating that "[t]he unification of the admiralty and civil rules in 1966 was intended to work no change in the general rule that admiralty claims are to be tried without a jury." (121) The court explained the procedure when there are multiple bases for jurisdiction:
   Fed. R. Civ. P. 9(h) serves only as a device by which the pleader
   may claim the special benefits of admiralty procedures and
   remedies, including a nonjury trial, when the pleadings show that
   both admiralty and some other basis of federal jurisdiction exist.
   Of course, an action for personal injury cognizable in admiralty
   may also be brought, assuming the existence of some independent
   jurisdictional base like diversity of citizenship, as a civil suit
   pursuant to the "savings to suitors" clause of 28 U.S.C. [section]
   1333. In these civil suits the plaintiff is entitled to a jury
   trial "in accordance with the principles governing civil actions
   generally." (122)

Romero contended that the addition of diversity as a basis for jurisdiction acted as a withdrawal of the 9(h) designation, (123) but the court rejected the argument as "the 9(h) designation is necessary only when alternative grounds are pleaded." (124) Romero's reaffirmation of the diversity allegation was not a "request, implied or express, to amend his complaint by withdrawing the 9(h) designation." (125) Alternatively, Romero argued that the reference to Rule 9(h) "applied only to one of two separate causes of action. That is, the complaint alleged one cause of action based upon diversity and one cause of action in admiralty." (126) Thus, Romero claimed that he was entitled to a jury on his diversity action and admiralty claim based on the considerations enunciated by the Supreme Court in Fitzgerald. (127) The Fifth Circuit was "inclined to agree with the district judge's evident belief that appellant's 9(h) designation applied to both causes of action assuming that two claims so closely related factually are properly termed separate causes of action." (128) The court added that in any event it did not consider Fitzgerald to be controlling in this case:
      Likewise, even were we to concede that appellant had alleged both
   an admiralty action and a civil action based upon diversity, we
   would not reverse the district judge's decision to try the case
   without a jury. Fitzgerald and the cases following it are not
   controlling here for this reason: because diversity was arguably
   present at least with regard to Trident, Romero could have obtained
   a jury trial on all claims simply by omitting or withdrawing the
   9(h) designation in his complaint and bringing his entire suit as a
   civil action. Yet, he persistently refused to seek an amendment
   aimed at withdrawing the admiralty identification. (129)

Consequently, the result of Romero's 9(h) designation was that the "case was properly tried without a jury." (130)

While Edward Romero did not succeed in obtaining a jury trial, his final argument bore fruit for Melinda Luera in Luera v. M/V Alberta. (131) Luera sustained an injury while working as a cargo checker in the Port of Houston when a mooring line ruptured and struck her leg. (132) She and her employer brought multiple suits in different federal courts against the vessel whose line ruptured, a second vessel that allegedly passed in close proximity at an excessive rate of speed causing the first vessel to surge, and the owners and managers of the two vessels. (133) After the suits were consolidated, Luera filed an amended complaint against all of the vessels, owners, and managers, pleading different grounds of jurisdiction for the in rem and in personam claims: (134)
   In a separate "Jurisdiction" section, she asserted that the
   district court "has jurisdiction over the in personam Defendants
   based solely upon diversity of citizenship, 28 U.S.C. [section]
   1332" and that the court "has jurisdiction over the in rem
   Defendants based solely upon admiralty jurisdiction, 28 U.S.C.
   [section] 1333." She claimed damages "due to the negligence of each
   of the Defendants." (135)

Concluding that Luera's pleading of diversity as the sole basis for her in personam actions "had preserved her Seventh Amendment right to a jury trial," (136) the district court held that Luera was entitled to a jury trial on all of her claims. (137) The issue presented to the Fifth Circuit was "whether a jury trial is unavailable in this case because Luera asserted in rem admiralty claims against two vessels in the same complaint as her in personam claims premised on diversity jurisdiction." (138)

After reviewing its cases addressing Rule 9(h) designations, (139) the court summarized their holdings with respect to the issue presented by Luera's pleadings:
      Following these cases, in this circuit a plaintiff who asserts
   admiralty jurisdiction as a basis for the court's subject matter
   jurisdiction over a claim has automatically elected under Rule 9(h)
   to proceed under the admiralty rules, even if she states that her
   claim is also cognizable under diversity or some other basis of
   federal subject matter jurisdiction. However, we have not addressed
   the specific issue presented in this case, which is whether the
   plaintiff automatically makes a Rule 9(h) election to proceed under
   the admiralty rules when she specifically asserts only diversity
   jurisdiction for one claim in the same complaint as a separate
   claim cognizable only under admiralty jurisdiction. (140)

The Fifth Circuit distinguished the cases where the plaintiff alleged admiralty and diversity jurisdiction for the same claim, stating "that a plaintiff who fails to choose between admiralty jurisdiction and some other basis of jurisdiction for a claim is presumed to have elected under Rule 9(h) to proceed under admiralty jurisdiction and the admiralty procedures for that claim." (141) As Luera did "not assert alternate or dual bases of subject matter jurisdiction for her claims against the in personam defendants," and elected "to proceed under the district court's diversity jurisdiction for her in personam claims," the court reasoned that "Luera cannot be said to have presumptively made a Rule 9(h) election for her in personam claims." (142)

The court then addressed the issue "whether her assertion of in rem admiralty claims in the same complaint nevertheless precludes a jury trial on her in personam claims." (143) The court cited Fitzgerald as the controlling authority on the issue. (144) The court described the reasoning in Fitzgerald: "Because there was no 'statutory or constitutional obstacle' to trying admiralty claims to a jury, the Court held that concerns of judicial efficiency and the fair administration of justice override the historic tradition of trying admiralty claims to the bench." (145) The Fifth Circuit rejected the arguments that "Fitzgerald did not survive the unification of the rules" (146) and that Rule 38(e) essentially affords "a right to a bench trial for admiralty claims." (147) While "Rule 38(e) explains that the unified rules 'do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h),'" (148) that is different than forbidding jury trials in admiralty cases. The court stated: "Without an express prohibition on jury trials in admiralty cases, we agree with the Court in Fitzgerald that concerns of judicial economy and the fair administration of justice override the historic tradition of trying admiralty claims to the bench when the claims are closely related." (149) In affirming the district court's holding that all of Luera's claims, in rem and in personam, should be submitted to a jury, the court concluded:
      To be clear, we do not hold today that a plaintiff
   bringing an in rem admiralty claim, or any other claim
   brought under admiralty jurisdiction, has a right to a jury
   trial. No statute, rule, or constitutional provision confers
   such a right. But neither does any statute, rule, or
   constitutional provision provide Appellants with a right to
   a bench trial. The practice of trying admiralty claims to
   the bench is simply one of custom and tradition. That
   tradition cannot trump Luera's constitutional right to a
   jury trial for her non-admiralty claims, and "the non-jury
   component of admiralty jurisdiction must give way to the
   [S]eventh [A]mendment." (150)


A. Introduction to Removal of Admiralty Claims

The federal courts have had removal jurisdiction over certain cases brought in state court since the original Judiciary Act of 1789. (151) In its current form the removal jurisdiction of the federal courts extends to: "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction...." (152) The Fifth Circuit has described the breadth of this provision: "Unless, therefore, there is an express declaration by Congress to the contrary, all types of civil actions, in which there is concurrent original jurisdiction in both federal and state courts, are removable." (153) Admiralty suits fall within the literal requirements for removal under the Removal Statute because admiralty claims can satisfy the language of one or more grounds for original federal jurisdiction. However, determining when and how admiralty claims may be removed has resulted in decisions that belie the straightforward language of the Removal Statute.

Part of the confusion with respect to removal of admiralty claims has resulted from the different citizenship requirements contained in the Removal Statute. Until recently the Removal Statute contained the following citizenship requirement:
      Any civil action of which the district courts have
   original jurisdiction founded on a claim or right arising
   under the Constitution, treaties or laws of the United
   States shall be removable without regard to the
   citizenship or residence of the parties. Any other such
   action shall be removable only if none of the parties in
   interest properly joined and served as defendants is a
   citizen of the State in which such action is brought. (154)

Thus, for removal on any basis other than the "arising under" provision, it was necessary that none of the defendants be citizens of the state where the action was brought.

The Removal Statute has been amended to retain the removal jurisdiction of all cases in which there is original jurisdiction in federal court, but to substitute a new citizenship provision in subsection (b):

(a) Generally.--Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(b) Removal Based on Diversity of Citizenship.--(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332 (a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded. (2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (155)

The amended version of the Removal Statute provides a citizenship requirement only for removal of cases based on diversity of citizenship, as the Fifth Circuit recognized: "Thus, it is clear that the citizenship requirement in [section] 1441(b) only applies when a case is removed on the basis of diversity jurisdiction." (156) Consequently, the plain language of the Removal Statute provides that cases premised on jurisdictional grants other than diversity, such as the Admiralty Jurisdiction Statute, the statute conferring jurisdiction for actions arising under an Act of Congress regulating commerce, the OCSLA, and DOHSA, should be removable by defendants regardless of their citizenship.
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Title Annotation:I. Admiralty and the Courts through IV. Jury Trials in Maritime Cases Removed to Federal Court A. Introduction to Removal of Admiralty Claims, p. 73-100
Author:Engerrand, Kenneth G.
Publication:Loyola Maritime Law Journal
Date:Dec 22, 2013
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