By Sean T. McLaughlin

Pursuant to 28 U.S.C. § 1333, federal courts have original subject matter jurisdiction over general maritime law claims. However, 28 U.S.C. § 1333(1), commonly known as the “savings to suitors clause,” preserves a plaintiff’s right to instead file a general maritime law action in state court. Until recently, a defendant sued in state court for a general maritime law claim could not remove the case to federal court unless an independent basis of subject matter jurisdiction existed (such as diversity). See Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F. 3d 150 (5th Cir. 1996). As explained below, several district courts have concluded that recent revisions to the removal statute, 28 U.S.C. § 1441, have changed this rule and now allow general maritime law claims to be removed to federal court without an independent basis of subject matter jurisdiction.

The basis for the U.S. Fifth Circuit’s prohibition against removal of a general maritime law claim unless an alternative basis of subject matter existed was the provision contained in the then-current version of 28 U.S.C. § 1441(b) which stated that “any civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” The U.S. Fifth Circuit concluded that this portion of the then-current version of 28 U.S.C. § 1441(b) – combined with the U.S. Supreme Court’s holding in Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), that general maritime law claims do not “arise under the Constitution, laws, or treaties of the United States” – precluded the removal of general maritime law claims unless an independent basis of subject matter jurisdiction existed.

In 2011, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act (“VCA”) and extensively revised 28 U.S.C. § 1441. The new version of the statute removed the limiting language (“….founded on a claim or right under the Constitution, treaties or laws of the United States….”), discussed above:

Prior Version of 28 U.S.C. § 1441
Any civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.

New Version of 28 U.S.C. § 1441
….Except as otherwise expressly provided by an 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….

Several district courts have applied the new version of 28 U.S.C. § 1441 and concluded that general maritime law claims are now removable without an independent basis of subject matter jurisdiction. Ryan v. Hercules Offshore, Inc., –F. Supp. 2d.–, 2013 WL 1967315 (S.D. Tex. May 13, 2013); Wells v. Abe’s Boat Rentals Inc., 2013 WL 3110322 (S.D. Tex. June 18, 2013); Perio v. Titan Maritime, LLC, 2013 WL 5563711 (S.D. Tex. Oct. 8, 2013).

Several consequences of allowing the removal of general maritime law claims remain unsettled. For instance, a Jones Act claim is non-removable by federal statute. 28 U.S.C.A. 1445(a); McKee v. Merritt-Chapman & Scott Corp., 144 F. Supp. 423 (N.D. Ill. Sept. 19, 1956). If a Jones Act claim (non-removable) and a general maritime law claim (arguably removable under the new version of 28 U.S.C. § 1441) are both asserted in a state court petition, what happens? Under the old version of 28 U.S.C. § 1441, the federal court was directed to determine whether the two claims were “separate and independent” and then make a decision on whether to remand both claims back to the state court. The new version of 28 U.S.C. § 1441 does not contain such a directive. Instead, the statute appears to direct the district court to keep the removable claim and sever the non-removable claim and remand it to state court. This is the interpretation adopted by the Southern District of Texas. Wells v. Abe’s Boat Rentals Inc., 2013 WL 3110322 (S.D. Tex. June 18, 2013). This rule effectively doubles the litigation – one lawsuit is litigated in state court, and one lawsuit is litigated in federal court – and raises additional questions involving judicial efficiency, res judicata, and fault allocation that the courts have not yet addressed.

Because of the newness of the statute and the uncertainties described above, it is likely that the U.S. Fifth Circuit will be forced to re-address the removability of general maritime law claims. Until that time, a defendant to a general maritime law claim in state court should consider removing the case to federal court.