Hutchinson v. M/V Mol Endurance

• Decision Date: 21 September 2011
• Docket Number: Case No. CV410-247
• Citation: Hutchinson v. M/V Mol Endurance, Case No. CV410-247 (S.D. Ga. Sep 21, 2011)
• Parties: SAMUEL G. HUTCHINSON, III and MARILYN HUTCHINSON Plaintiff, v. M/V MOL ENDURANCE (IN REM), LUNAR RIVER LINE, S A. NEW ASIAN SHIPPING COMPANY, LTD. And MITSUI O.S.K. LINES, Defendants.
• Court: U.S. District Court — Southern District of Georgia

SAMUEL G. HUTCHINSON, III and MARILYN HUTCHINSONPlaintiff,

v.M/V MOL ENDURANCE (IN REM), LUNAR RIVER LINE, S A. NEWASIAN SHIPPING COMPANY, LTD. And MITSUI O.S.K. LINES, Defendants.

Case No. CV410-247

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

Dated: September 21, 2011

ORDER

Before the Court is the defendants' motion to denyplaintiffs a trial by jury in this admiralty case.Doc. 43.Thrusting this Court once more into the murky waters¹ that it found itself in Miles v. M/V HANSA CALEDONIA, 245 F. Supp. 2d 1261(S.D. Ga.2002), defendants argue that by pleading jury and non-jury claims in their "admiralty" complaint, plaintiffs have forfeited their jury trial rights.Id.;doc. 53 at 2-3.Plaintiffs oppose and, for good measure, seek leave to amend their complaint.Docs. 49, 50 & 57.Defendants reply that it is too late, in thatplaintiffs have reaped the benefits of Admiralty jurisdiction and thus cannot "have their cake and eat it too," rendering any amendment a futility.Doc. 53at 5-6; doc. 54 at 3, 4-6.Thus, the Court must resolve the "denial" motion before it can reach the "amend" motion.

I.BACKGROUND

Invoking admiralty, diversity, in rem and in personam jurisdiction, plus the Longshore and Harbor Workers' Compensation Act(LHWCA), 33 U.S.C. § 905(b) and "Georgia law,"Samuel G. Hutchinson, III brought this action against a vessel, its owner, and others for his personal injuries.Doc. 29at 1;id. at 2¶ 3;id. at 3¶15;id. at 6¶ 31.He was working as a longshoreman at a Georgia port when, while untying the ship's mooring line from a dock, someone started to reel the line in.This tightened the line so fast that it struck and thus severely injured him.Id. at 5¶ 22;see also doc. 49 at 2.Claiming loss of consortium, his wife joins him as co-plaintiff, doc. 29 at 7¶ 36;id. at 9(Count Five);see also doc. 50 at 1-2, but for convenience the Court will refer only to Samuel.

In his first amended complaint Hutchinson complied (as he did with his original complaint, doc. 1) with this district's Local AdmiraltyRule7(a) by inserting "(IN ADMIRALTY)" just below his complaint's caption.²Doc. 29at 1.And, he invoked Fed. R. Civ. P. 9(h)³ in suing in rem the vessel itself, the M/V Mol Endurance.Doc. 29at 2¶ 3("Said vessel is subject to attachment and arrest, and [is] liable for all damages IN REM, which will or may be awarded to [him].28 U.S.C. § 1331;F.R.C.P. § 9(h).").

Under his complaint's introductory section, he has pled diversity jurisdiction under 28 U.S.C. § 1332 to pursue damages exceeding$100,000, and alleges diversity of citizenship between himself and all defendants.Doc. 29 ¶¶ 1-15.In "Count One"(¶¶ 16-31), he alleges that the vessel was negligent under 33 U.S.C. § 905(b)(his LHWCA claim).Id. at 3-6.He concludes that count by alleging that he"brings this action against the vessel M/V MOL ENDURANCE IN REM and against the . . . corporate defendants⁴ pursuant to the general maritime laws of the United States and under Georgia law to the extent applicable, all as allowed and contemplated pursuant to [33 U.S.C] § 905(b))."Id. at 6¶ 31(emphasis and footnote added).

In Count Two, subtitled "(Complaint In Rem)," Hutchinson alleges that the vessel was negligent and proximately caused his injuries, doc. 29 at 6¶ 33, and he further alleges that this claim "sounds in admiralty" per 28 U.S.C. § 1331(the "admiralty" jurisdiction statute).Doc. 29at 7¶ 28.In Count Three he sues three of the "in personam"corporate defendants"under the general maritime laws for all damages proximately caused by said negligent acts and omissions as referencedabove."Id. at 8¶ 42(emphasis added).Under Count Four he sues the vessel's manager for safety code violations but specifies no jurisdictional or capacity basis.Id.¶¶ 43-45.Finally, Count Five presents his "Loss of Consortium" count against "the vessel and the Defendants" but specifies no jurisdictional or capacity basis.It is immediately followed by his "WHEREFORE" clause, which demands a "trial by jury to the extent allowed by law. ..."Id. at 9¶ 49.He then seeks an in rem judgment against the vessel, and an in personam judgment against the remaining defendants.Id. at 9-10.His (Counts One & Two)"vessel-only" claims, then, sound in admiralty, for which he has elected his non-jury right (this is unnecessary, since he has no jury trial right on them anyway) under Rule 9(h).And he is less than pellucid about whether he wants a jury trial on his remaining (Counts Three-Five) claims.

II.ANALYSIS

This area of law has evolved chaotically, as detailed by one legal encyclopedist, 9 WRIGHT & MILLER: FEDERAL PRAC. & PROC.§ 2315(2011), who then concludes:

It would be difficult to defend the fortuitous and irrational pattern just described.It leads to elaborate and learned argument on whether a particular claim is "at law" or "in admiralty," an issuethat "wakes echoes in the deepest metaphysics of admiralty," when "the real core of the jurisdictional controversy is whether a few more seamen can have their suits for damages passed on by federal juries instead of judges."

Id.(footnotes omitted).Nevertheless, a survey of the case law presents some bright lines:

[T]here is no protected right to a jury trial in an admiralty dispute.Beiswenger Enterprises Corp. v. Carletta, 86 F.3d 1032, 1037(11th Cir.1996)("... as in all admiralty cases, there is no right to a jury trial.");Fed. R. Civ. P. 38(e)("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).").However, the savings to suitors clause of 28 U.S.C. § 1333[(vesting federal courts with exclusive admiralty jurisdiction)] protects "the right of a common law remedy where the common law is competent to give it."Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 443, 121 S. Ct. 993, 148 L. Ed. 2d 931(2001)(internal citation omitted).Therefore, if a case sounding in both admiralty and common law arises from a single incident in which in personam jurisdiction is alleged, the plaintiff can choose between filing the complaint in state court based on in personam jurisdiction, in federal court based on the applicable jurisdiction, or in federal court pursuant to Rule 9(h) of the Federal Rules of Civil Procedures.St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1187(11th Cir.2009).

Se. Marine, LLC v. Motor Yacht OCEAN CLUB, 2010 WL 2540701 at * 1(M.D. Fla.Jun. 21, 2010).

But what if the plaintiff wants to, as did the plaintiff if Miles, try some claims to the bench and others to a jury?Here Hutchinson never does say whether he wants to try his case that way, as opposed to a jurytrial on all claims against all defendants.See docs. 1, 29, 49, 50, 57;compareJohnson v. Venezuelan Line S. S. Co., 314 F. Supp. 1403(E.D. La.1970)(Longshoreman's widow, who, alleging diversity of citizenship, sued owners of vessel in personam for longshoreman's death that occurred when he was struck by loaded cargo sling while he was working on wharf, was entitled to the jury trial that she sought on all claims against vessel and its owners, though she had also filed libel in rem against vessel alleging unseaworthiness).

What is certain, however, is that this case"sound[s] in both admiralty and common law [and] arises from a single incident in which in personam jurisdiction is alleged,"Se. Marine, LLC, 2010 WL 2540701 at * 1, and unlike other cases where the allegations are so vague that courts simply deem an election in admiralty to have been made,⁵ thatcannot be said to be the case here.Hutchinson placed his Rule 9(h) election only at the tail end of his complaint's introductory paragraph's in rem, LHWCA allegation against the vessel, for which he otherwise held no jury trial right.Doc. 29at 2¶ 3;Luera, 635 F.3d at 189;see alsoIn re Ms Madeleine Schiffahrtsgesellschaft mbH & Co., 2009 WL 3296668 at * 10(S.D. Fla.Jun. 8, 2009)("the LHWCA "does not provide a right to trial by jury.This is in contrast with a statute like the Jones Act, 46 U.S.C. § 688, that does provide for a jury trial.");1 ADMIRALTY & MAR. LAW§ 7-10 (5th ed. 2011).

He thus did not invoke the rule for his entire case.In fact, in ¶ 15he invoked diversity jurisdiction and general (presumably Georgia if not "common" law) negligence claims against "all"defendants, thus triggering the "at law"(jury trial right) side of this Court.Yet, in the remainder of his complaint he either expressly invoked admiralty jurisdiction (or "general maritime law") or remained silent on the topic(Counts Four and Five).At the same time, his "Wherefore" clause demands a jury trial "to the extent allowed by law."Doc. 29at 9.

Defendants insist that all that translates to forfeiture of his jury trial rights: "[B]y bringing the claim in rem against a vessel and thereby invoking the Court's exclusive admiralty jurisdiction, and by taking advantage of the special in rem procedures available only in admiralty in order to obtain security for their claim, [Hutchinson] waived any right to a jury trial in this case."Doc. 43at 2.They rely on this Court's treatment of the issue in Miles.⁶Doc. 53at 2-3.

In Miles, however, the Court did not focus on the fact that Rule 9(h) is claim-specific.Luera, 635 F.3d at 189(Rule 9(h)"applies to 'claims' and not to entire cases.").And after Milesthe Eleventh Circuit ruled that if a claim can be pled in admiralty and non-admiralty, yet isnot pled in admiralty, then by default it is preservationally deemed a non-admiralty claim.Murphy v. Florida Keys Elec. Co-op. Ass'n, Inc., 329 F.3d 1311, 1319-20(11th Cir.2003);Harris v. Flow Intern. Corp., 2007 WL 3011267 at * 1(M.D. Fla.Oct. 12, 2007).This dovetails with the Ninth Circuit's approach:

"If [Plaintiff] wants the admiralty rules to apply, the plaintiff or other party asserting a claim needs to include a statement in the pleadings

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