644 F.2d 1063 (5th Cir. 1981), 80-3132, Powell v. Offshore Navigation, Inc.

Docket Nº:80-3132
Citation:644 F.2d 1063
Party Name:Tyrone POWELL, Plaintiff-Appellant, v. OFFSHORE NAVIGATION, INC., etc., et al., Defendants-Appellees.
Case Date:May 11, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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644 F.2d 1063 (5th Cir. 1981)

Tyrone POWELL, Plaintiff-Appellant,


OFFSHORE NAVIGATION, INC., etc., et al., Defendants-Appellees.

No. 80-3132

Unit A

United States Court of Appeals, Fifth Circuit

May 11, 1981

John P. Keegan, New Orleans, La., for plaintiff-appellant.

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Terriberry, Carroll, Yancey & Farrell, John A. Bolles, New Orleans, La., for Atlas Offshore Boat Ser. and Old Reliable Fire.

Adams & Reese, James E. Blazek, New Orleans, La., for American Home Assurance Co.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert M. Contois, Jr., New Orleans, La., for Texaco, Inc.

Courtenay, Forstall & Grace, Thomas J. Grace, New Orleans, La., for Home Insurance Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This appeal arises from a judgment in favor of defendants in a maritime action based on negligence and unseaworthiness. The primary issue is the district court's denial of the plaintiff's request for trial by jury, which request was based on the plaintiff's assertion of diversity jurisdiction as an alternative to federal admiralty jurisdiction. We hold that diversity jurisdiction did not lie because of the absence of complete diversity between the plaintiff and all of the defendants, and that this defect was not remedied by the plaintiff's assertion of admiralty jurisdiction over the non-diverse defendant. We affirm the judgment of the district court in favor of the defendants.


Tyrone Powell, an employee of the Department of the Interior, filed suit in August 1976 in the United States District Court for the Eastern District of Louisiana seeking compensation for personal injuries allegedly sustained as a result of his consumption of contaminated drinking water aboard a private vessel hired by the Department of the Interior to perform geological survey work in the Gulf of Mexico. Powell's suit was based solely on the unseaworthiness of the vessel and on the negligence of certain in personam defendants. In his original complaint, Powell named as defendants the M/V DRACO, the vessel on which the injury occurred; Atlas Offshore Boat Service, Inc. (Atlas), the owner of the vessel; and Offshore Navigation, Inc. (Offshore), the charterer of the vessel. Powell sought jurisdiction pursuant to 28 U.S.C. § 1391(b) and (c) (1976) and "the General Maritime Laws," 1 and asserted the applicability of Federal Rule of Civil Procedure 9(h), 2 thereby identifying his action as an admiralty claim for purposes of the federal rules. Powell also requested a trial by jury.

The defendants responded by moving, inter alia, to strike Powell's request for a jury trial. They argued that no right to trial by jury exists with respect to claims brought under federal admiralty jurisdiction, and that Powell had by his Rule 9(h) request specifically invoked such jurisdiction. These contentions of the defendants were clearly correct. See Harrison v. Flota Mercante Grancolombiana S. A., 577 F.2d 968, 985-88 (5th Cir. 1978); Romero v. Bethlehem Steel Corp., 515 F.2d 1249 (5th Cir. 1975). Moreover, we note that jurisdiction could not have been established on any basis other than admiralty on the facts stated in the original complaint. Diversity jurisdiction

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would not lie because Powell was a citizen of Louisiana and both Atlas and Offshore were asserted to be Louisiana corporations; and, since Powell's complaint stated only maritime claims, his case could not be heard under the general federal question jurisdiction of 28 U.S.C. § 1331. Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). Accordingly the district court granted the defendants' motion to strike Powell's request for a jury trial, but at the same time granted a motion by Powell to amend his complaint so as to assert a basis for diversity jurisdiction.

Powell thereupon filed an amended complaint in which he named three diverse defendants in addition to the nondiverse defendants named in the original complaint: Texaco, Inc., the manufacturer of a coating used on the inside of the vessel's water tanks; Old Reliable Fire Insurance Co. (Old Reliable), Atlas's insurer; and American Home Assurance Co. (American Home), Offshore's insurer. Powell asserted that these three defendants were all foreign corporations, and also amended his complaint to assert that Offshore was a foreign corporation. An assertion in the original complaint that Atlas was a Louisiana corporation was not changed. Powell then invoked the diversity jurisdiction of the court, 28 U.S.C. § 1332, with respect to his claims against the diverse defendants (Offshore, Texaco, Old Reliable and American Home), and the admiralty jurisdiction of the court, 28 U.S.C. § 1333, with respect to the nondiverse defendants (Atlas and the M/V DRACO). 3 Powell again requested a jury trial, but this time only with respect to the diversity defendants. He argued, in brief, that his claim against these defendants arose at common law and was therefore excepted from exclusive federal jurisdiction over maritime claims by the "saving-to-suitors" clause of section 1333; 4 Powell contended that his suit against the diverse defendants could therefore be brought in federal court by virtue of diversity jurisdiction, in which case the usual rule denying the right to jury trial in admiralty cases would not apply.

No party has disputed Powell's contention that a plaintiff asserting a maritime claim arising under the common law and brought in federal court by virtue of its diversity jurisdiction may indeed be tried by a jury. Although the substance of such a claim is generally no different from the merits of a maritime claim brought at admiralty in a federal court, 5 a common law claim heard under the court's diversity jurisdiction is nevertheless beyond the reach of

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the admiralty rule restricting the right to trial by jury. This confusing distinction arises from the existence of alternative admiralty and non-admiralty remedies in in personam actions which fall within the scope of section 1333. As Professors Gilmore and Black succinctly explain:

The Judiciary Act of 1789, it will be recalled, while bestowing "exclusive" admiralty jurisdiction on the District Courts, saved "to suitors, in all cases, the right of a common law remedy where the common law is competent to give it." (now codified at 28 U.S.C. § 1333; see supra note 4 for revised version now in force) ...

Summarily, the result of the cases is that a suitor who holds an in personam claim, which might be enforced by suit in personam in admiralty, may also bring suit, at his election, in the "common law" court that is, by ordinary civil action in state court, or in federal court without reference to "admiralty," given diversity of citizenship and the requisite jurisdictional amount.

G. Gilmore & C. Black, Jr., The Law of Admiralty § 1-13 at 37 (1975). See 7A J. Moore & A. Pelaez, Moore's Federal Practice P .210 (1979). Since a federal court exercising its diversity jurisdiction to hear an in personam maritime claim is sitting as a common law court, the parties in a diversity action may assert their right to trial by jury despite the limitations associated with actions in admiralty. A. & G. Stevedores v. Ellerman Lines, Ltd., 369 U.S. 355, 360, 82 S.Ct. 780, 784, 7 L.Ed.2d 798 (1962). Powell's in personam claims, which are based on the defendants' alleged negligence and on the vessel's alleged lack of seaworthiness, may of course be brought in state common law courts as well as in federal admiralty courts. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 88-89, 66 S.Ct. 872, 874, 90 L.Ed. 1099 (1946). Therefore Powell was entitled to a jury trial if he could invoke the diversity jurisdiction of the district court to hear his maritime claims at law.

The difficulty with Powell's assertion of diversity jurisdiction is the apparent absence of complete diversity in this case, for Powell has named at least one defendant (Atlas) which is a citizen of the same state as is Powell. The rule of Strawbridge v. Curtiss, 3 Cranch (7 U.S.) 267, 2 L.Ed. 435 (1806), bars diversity actions where any defendant is a citizen of the same state as is the plaintiff. This ancient rule rests on...

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