Ghotra by Ghotra v. Bandila Shipping, Inc.

• Citation: 113 F.3d 1050
• Decision Date: 13 May 1997
• Docket Number: No. 93-56326,93-56326
• Parties: , 37 Fed.R.Serv.3d 1001, 97 Cal. Daily Op. Serv. 3567, 97 Daily Journal D.A.R. 6113 Erica Kaur GHOTRA, minor, by Susan GHOTRA her guardian ad litem; Ravinder Singh Ghotra, minor, by Susan Ghotra, his guardian ad litem; Susan Ghotra, an individual, and as administratrix of the Estate of Kuldip S. Ghotra; Amolak Singh Ghotra; and Sarjit Kaur Ghotra, Plaintiffs-Appellants, v. BANDILA SHIPPING, INC.; "M/V Gracious", her Engines, Tackle, Apparel, Furniture and Appurtenances, in rem. Defendants-Appellees, v. PALM MARITIME, S.A., Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1050

113 F.3d 1050

1997 A.M.C. 1936, 37 Fed.R.Serv.3d 1001,

97 Cal. Daily Op. Serv. 3567,

97 Daily Journal D.A.R. 6113

Erica Kaur GHOTRA, minor, by Susan GHOTRA her guardian ad

litem; Ravinder Singh Ghotra, minor, by Susan Ghotra, his

guardian ad litem; Susan Ghotra, an individual, and as

administratrix of the Estate of Kuldip S. Ghotra; Amolak

Singh Ghotra; and Sarjit Kaur Ghotra, Plaintiffs-Appellants, v. BANDILA SHIPPING, INC.; "M/V Gracious", her Engines,

Tackle, Apparel, Furniture and Appurtenances, in

rem. Defendants-Appellees, v. PALM MARITIME, S.A., Defendant.

No. 93-56326.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1996.

Decided May 13, 1997.

Michael W. Lodwick, Fisher & Porter, Long Beach, California, for plaintiffs-appellants Erica Kaur Ghotra and Ravinder Singh Ghotra, Minors, by Susan Ghotra, Their Guardian Ad Litem; Susan Ghotra; Susan Ghotra, as Administrator of the Estate of Kuldip S. Ghotra.

Dennis M. Elber, Stolpman, Krissman, Elber, Mandel & Katzman, Long Beach, California, for plaintiffs-appellants Amolak Singh Ghotra and Sarjit Kaur Ghotra.

Albert E. Peacock III, Robert D. Feighner, Lisa K. Donahue, Keesal, Young & Logan, Long Beach, California, for defendants-appellees.

Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-91-5469-RSWL.

Before: PREGERSON, T.G. NELSON, Circuit Judges, and EZRA, ^* District Judge.

OPINION

DAVID ALAN EZRA, District Judge.

We decide whether the family of a marine surveyor who died from injuries incurred aboard the M/V Gracious was entitled to a jury trial on the claims brought under the court's diversity jurisdiction, whether they may recover under state law for wrongful death, whether the decedent was owed a higher standard of care than the district court applied, and whether the family was entitled to recover for predeath pain and suffering. For the foregoing reasons, we reverse in part, affirm in part, and remand.

I.

In September 1991, charterer Kawasaki Kisen Kaisha ("K-Line") through its local agent Kerr Steamship Company ("Kerr") hired Captain Kuldip S. Ghotra ("Captain Ghotra"), a marine surveyor, to coordinate and inspect the progress of the hold cleaning work being done by Mesa Services ("Mesa") aboard the M/V Gracious. On September 30, 1991, Captain Ghotra boarded the M/V Gracious to inspect the cleaning and painting of Hold No. 3. In the presence of Mesa supervisor Ricardo Cervantes ("Cervantes"), Captain Ghotra twice told Chief Mate Roberto Guzman ("Guzman") to go open the forward hatch cover and then return to the port side of Hold No. 3, where they were standing. Before Guzman returned, Captain Ghotra and Cervantes boarded a manlift/cherry-picker and began inspecting Hold No. 3. The opening hatch cover became entangled with the manlift basket and broke the safety bar around the basket. Captain Ghotra and the basket fell to the bottom of the hold. Captain Ghotra suffered massive internal injuries and died shortly thereafter on the ship. Captain Ghotra's minor children, widow, estate and parents ("Appellants" or "the Ghotras") thereafter brought the instant action against the M/V Gracious, its owner, Bandila Shipping Inc. ("Bandila"), and the charterer K-Line.

In their original complaint filed on October 8, 1991, the Ghotras asserted three causes of action (wrongful death, common law negligence, and breach of warranties) against Bandila and K-Line under the court's diversity jurisdiction and an in rem claim against the M/V Gracious under the court's admiralty jurisdiction. Upon Bandila's motion, the district court struck the Ghotras' wrongful death and breach of warranties claims and gave the Ghotras leave to amend their Complaint, which they did twice. In their Second Amended Complaint, the Ghotras alleged common law negligence, gross negligence, and negligence under section 905(b) of the Longshore & Harbor Workers' Compensation Act ("LHWCA") against Bandila and K-Line pursuant to the court's diversity jurisdiction, with a corresponding demand for jury trial, and reiterated the in rem claim against the M/V Gracious. The Ghotras also filed a separate suit alleging common law negligence and gross negligence under the court's diversity jurisdiction against Palm Maritime S.A. ("Palm") as owner of the M/V Gracious; this action was consolidated for trial with the action against K-Line and Bandila.

In pretrial motions by Bandila, Palm and the M/V Gracious, ¹ (collectively the "Vessel Interests"), the district court held that the Ghotras (a) were not entitled to recover for Captain Ghotra's predeath pain and suffering, and (b) were not entitled to trial by jury for the claims brought under the court's diversity jurisdiction. The district court subsequently conducted a three-day bench trial and awarded judgment to the Vessel Interests. The district court held that Bandila and Palm were not negligent, after finding that under the circumstances, the Vessel Interests only owed Captain Ghotra a low degree of care. The court entered judgment on August 26, 1993, dismissing the Second Amended Complaint with prejudice and awarding costs to Bandila and Palm. The Ghotras filed notice of appeal on September 15, 1993.

The following issues were presented to this court on appeal: (1) whether the district court committed constitutional and legal error in denying the Ghotras the right to a jury trial for claims brought under the court's diversity jurisdiction; (2) whether the district court erred in ruling that federal maritime law preempts California law in a wrongful death action arising within the navigable waters of the United States; (3) whether the district court committed reversible error in holding the Vessel Interests to a lower standard of care; and (4) whether the district court erred in granting summary judgment on the Ghotras' claim for post-accident, predeath pain and suffering based on Ninth Circuit law and facts presented to the court.

After oral argument, this court remanded the case to the district court for further consideration in light of the United States Supreme Court's recent decision in Yamaha Motor Corp. v. Calhoun, --- U.S. ----, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), with the instruction to pay particular attention to the question of whether Captain Ghotra was a seafarer within the meaning of the LHWCA at the time of his death.

The district court, after considering the Supreme Court's decision in Yamaha, the briefs filed, and the arguments of counsel, concluded that Captain Ghotra was a seafarer for purposes of the LHWCA and that therefore state law wrongful death remedies were preempted by federal maritime law. The parties requested permission to file supplemental briefing on the subject, which this court granted.

II.

Questions of law are reviewed de novo. Anderson v. United States, 966 F.2d 487, 489 (9th Cir.1992). The granting of summary judgment is also reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir.1987). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c); viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Warren, 58 F.3d at 441; Jesinger, 24 F.3d at 1130.

III.

The district court struck the Ghotras' jury demand based on its findings that (a) because federal maritime law regarding wrongful death preempted state law, there was no state law cause of action and thus no right to trial by jury, and (b) because the Ghotras expressly sought remedies under general federal maritime law in all four causes of action, the Ghotras had no claim cognizable in the court's general civil jurisdiction.

Under Federal Rule of Civil Procedure 9(h), "[a] pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim...." The Ghotras clearly stated that their first, second, and fourth causes of action were predicated on diversity jurisdiction, not admiralty. They also specifically made a jury trial demand for each of these three claims. The third claim is an in rem claim against the vessel, and the Ghotras attempted to secure a jury trial for this claim as well by requesting that the court exercise pendent jurisdiction over the claim.

28 U.S.C. § 1333(1) provides that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." The latter clause, known as the "savings to suitors" clause, "leave[s] 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." Madruga v. Superior Court of California, 346 U.S. 556, 560-61, 74 S.Ct. 298, 301, 98 L.Ed. 290 (1954). The savings to suitors clause also permits the plaintiff to bring an action "at law" in the federal district court, provided the requirements of diversity of citizenship and amount in controversy are met. In re Chimenti, 79 F.3d 534, 537 (6th Cir.1996) (quoting 14 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3672, at 431-33 (1985)).

Therefore, a plaintiff with in personam maritime claims has three choices: He may file suit in...