Giacona v. Capricorn Shipping Co., Civ. A. No. 74-H-983

• Decision Date: 30 May 1975
• Docket Number: 74-H-1079.,Civ. A. No. 74-H-983
• Citation: 394 F. Supp. 1189
• Parties: Jack GIACONA v. CAPRICORN SHIPPING CO. Ronnie W. EDDINS v. CHARENTE STEAMSHIP CO. et al.
• Court: U.S. District Court — Southern District of Texas

394 F. Supp. 1189

Jack GIACONA v. CAPRICORN SHIPPING CO.

Ronnie W. EDDINS v. CHARENTE STEAMSHIP CO. et al.

Civ. A. Nos. 74-H-983, 74-H-1079.

United States District Court, S. D. Texas, Houston Division.

May 30, 1975.

Richard L. Reedy, Powell, Tucker, Kain & Reedy, Houston, Tex., for plaintiff in Civ.A. No. 74-H-983.

Kenneth D. Kuykendall, Houston, Tex., for defendant in Civ.A. No. 74-H-983.

Gus Kolius, Jamail & Gano, Houston, Tex., for plaintiff.

James L. Walker, Fulbright & Jaworski, Houston, Tex., for Intervenor Texas Employers Insurance Assn.

Ben L. Reynolds, Royston, Rayzor, Cook & Vickery, Jack R. Martin, Martin & Sperry, Houston, Tex., for defendant.

MEMORANDUM AND ORDER

SINGLETON, District Judge.

In each of the above-styled-and-numbered cases, the plaintiffs have brought on their motion to remand the case to the state court in which each was filed. Since both cases present identical questions of law, this order will serve for both.

Each plaintiff is a longshoreman injured after the effective date of the 1972 amendments to the Longshoremen's and Harborworkers' Act, 33 U.S.C. §§ 901-950. Each sued the shipowner, alleging negligence, in state court, thus taking advantage of the saving to suitors clause of the Judiciary Act of 1789¹ which was codified as 28 U.S.C. § 1333.²

The defendants removed the actions based upon their contention that the 1972 amendments to the Longshoremen's Act, specifically § 905(b),³ created a new federal cause of action "arising under the . . . laws of the United States," and thus freely removable pursuant to 28 U.S.C. § 1441.

In order to fully treat the question presented, it is necessary to review the interplay of admiralty jurisdiction and federal "arising under" jurisdiction, 28 U.S.C. § 1331.

The Federal Judiciary Act of 1789 gave to federal courts exclusive jurisdiction over maritime matters, except insofar as it gave to "suitors" the option of pursuing a common-law remedy (now worded "all other remedies") "where the common law is competent to give it" (now worded "remedies to which they are otherwise entitled"). To understand exactly what this means, it must be remembered that in a case in which there is concurrent admiralty and civil-law jurisdiction there are three potential forums in which a case may be heard: (1) federal admiralty, (2) federal civil, and (3) state civil. In an admiralty case the plaintiff has to choose. The choice is usually between federal admiralty and state civil, but if the plaintiff can show either of the prerequisites for regular civil jurisdiction in a federal court, i. e. diversity or federal question arising under a statute of the United States, and jurisdictional amount, then he also has the choice of bringing the suit in federal court on the civil side of the docket.

As we will see, when a case is brought in state civil court and it can satisfy one of the two civil jurisdictional bases in federal court, then pursuant to 28 U.S.C. § 1441 the defendant can remove the cause to federal court. But, if the cause has no federal statutory or diversity jurisdictional basis it cannot be removed from state to federal court. 1A Moore's Federal Practice ¶ 0.1673.-1 at 372-375.

To view the problem in another way, there are three potential sources of federal jurisdiction in article III of the Constitution: admiralty (cf. 28 U.S.C. § 1333); diversity (cf. 28 U.S.C. § 1332); and "arising under" the Constitution, laws, and treaties of the United States (cf. 28 U.S.C. § 1331). Diversity jurisdiction does not concern us here because in neither case is there diversity jurisdiction.

However, in both cases there is no question that there is maritime jurisdiction; both plaintiffs are longshoremen injured on navigable waters through the alleged negligence of the shipowner. Traditionally, the longshoreman has had a cause of action against the shipowner under general maritime law, if the accident occurred on navigable water, as would any person "on board for purposes not inimical to the shipowner's legitimate interests,"⁴ who is injured on navigable waters through the negligence of the shipowner. Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192 (1882); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914) in which the proposition is presumed; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Sieracki v. Seas Shipping Co., 149 F.2d 98 (3d Cir. 1945), aff'd, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).

The longshoreman's maritime negligence cause of action was recognized long before the Longshoremen's Act was passed and existed quite independent of that Act. Nor was it affected by the Supreme Court's Sieracki opinion which extended to the longshoreman seamen's status so that he could reap the benefits of the unseaworthiness doctrine. As a practical matter, however, between the Sieracki decision and the 1972 amendments any in-depth treatment of this doctrine in the longshoreman's case was unnecessary because the broader unseaworthiness doctrine was so much easier to prove.

Maritime negligence is derived from the "general maritime law," but there are two sources of maritime law as applied in this country. The two components of federal maritime law are the applicable acts of Congress and the "general maritime law" recognized as "self-evident" at the time of the adoption of the Constitution and later by the maritime courts of the United States, cf. discussion in Gilmore and Black, ADMIRALTY (1st ed.) § 1-16 at 40-42. That the federal longshoremen's compensation statute, 33 U.S.C. §§ 901-950, is such an "applicable" act of Congress is undisputed. However, as we have seen, the longshoreman's traditional maritime tort action for negligence was not derived from a federal statute but from the general maritime law. A traditional maritime negligence claim, as distinguished from a statutory maritime claim cannot be one "arising under" the Constitution, laws or treaties of the United States. For that reason it cannot be removed under 28 U.S.C. § 1441. Romero v. International Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).

Federal statutory maritime laws, however, not only confer admiralty jurisdiction, pursuant to 28 U.S.C. § 1333 but also "arising under" jurisdiction, pursuant to 28 U.S.C. § 1331. For that reason, barring some statutory prohibition to the contrary,⁵ if a federal statutory admiralty cause of action can satisfy the jurisdictional amount of § 1331 it can be removed from a state court to a federal court pursuant to § 1441(b). Cf. discussion J. Moore, Federal Practice ¶ 0.1673.-3 at 378-379.

The two cases before the court can be successfully removed only if by the 1972 amendments to the Longshoremen's Act Congress intended to abrogate the traditional maritime remedy and to establish in its place, for longshoremen, an entirely new cause of action which "arises under" the laws of the United States.

No sure intention is shown by either the language of the statute or the legislative history to replace the longshoreman's traditional maritime negligence cause of action with a new federal statutory cause of action. The Congress was obviously concerned with doing away with the unseaworthiness remedy which Sieracki had given to the longshoreman. Just as clearly it is evident that the Congress wished to preserve for the longshoreman his negligence remedy. Because historically the unseaworthiness and negligence remedies were so closely associated in cases brought after Sieracki, the Committee obviously felt it necessary to clearly spell out its intentions. Those intentions were to preserve the preexisting negligence remedy, but with clearly congressionally defined standards; no language or history indicates that Congress intended to create a remedy to replace the one already in existence.

The defendants have two bases for their arguments to the contrary. One is a sentence appearing in U. S. Code Congressional and Administrative News 1972, p. 4705: "Finally, the Committee does not intend that the negligence remedy authorized by the bill shall be applied differently in different ports depending on the law of the State in which the port may be located." Thereafter the Committee expresses its intention that the traditional admiralty concepts of comparative negligence be preserved and assumption of the risk not be applied. One could dispute the precise meaning of the sentence quoted, but the Committee, clearly, is not establishing anything thereby. Comparative negligence and no assumption of the risk are established principles in maritime law. Furthermore, the maritime standard is applied no matter which court turns out to be the forum. Chelentis v. Luckenbach S.S. Co., Inc., 247 U.S. 372, 384, 38 S.Ct. 501, 62 L.Ed. 1171 (1918).

Defendants' major argument is that the new standards of negligence set out in the statute differ from the old maritime standards of negligence so drastically that Congress must be creating a new cause of action. The drastic change it is argued is that the new standard allows the shipowners duty of reasonable care to be delegable to others as it is at common law whereas the old negligence cases for maritime tort held the duty of reasonable care was nondelegable. Defendants' assertion is that because the Committee repeatedly describes the duty to the longshoreman in terms comparable to a land-based third party, the Congress intended to create a new cause of action, since cases describing the prior maritime negligence used different standards. Defendants quote extensively from the Committee legislative history:

Accordingly, the Committee has concluded that, given the improvement in compensation benefits which this bill would provide, it would be fairer to all concerned and fully consistent with the objective of protecting the health and safety of employees who

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