Amicus Curiae Brief — Laura Smith, as Duly Appointed Representative and Independent Administrator of the Estate of Andrea Manfredi, Deceased, et al., Petitioners v. The Boeing Company, et al.

Supreme Court briefMar 11, 2025

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Text

No. 24-849

IN THE

Supreme Court of the United States

————

LAURA SMITH, as Duly Appointed Representative

of the Estate of Andrea Manfredi, et al.,

Petitioners,

THE BOEING CO., et al.,

————

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

————

BRIEF OF AMICI CURIAE LAW PROFESSORS

MARTIN DAVIES, ROBERT FORCE,

STEVEN F. FRIEDELL,

THOMAS C. GALLIGAN, JR., AND

THOMAS J. SCHOENBAUM

IN SUPPORT OF PETITIONERS

————

THEODORE M. COOPERSTEIN

Counsel of Record

THEODORE COOPERSTEIN PLLC

1888 Main Street, Suite C-203

Madison, MS 39110

(601) 397-2471

ted@appealslawyer.us

March 11, 2025

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF AMICI CURIAE ........................

REASONS FOR GRANTING THE PETITION..

The Seventh Circuit’s approach undermines core federalism principles embodied

in the Saving-to-Suitors Clause ...............

A. The historical role of the Saving-toSuitors

Clause

American

Federalism ...........................................

B. DOHSA’s Saving Clause reflects congressional

intent

preserve

Federalism ............................................

C Tenth Amendment implications of the

decision below ......................................

The Seventh Circuit’s approach contradicts

the Original Understanding of Admiralty

Jurisdiction. ..............................................

A. The Colonial and Founding Era understanding of Admiralty Jurisdiction.....

B. The

development

Maritime

Jurisdiction through history ...............

C. DOHSA’s text and history in context .

III. The decision invites jurisdictional

manipulation and forum-shopping...........

A. The new strategic advantage of

removal ................................................

B. The one-way ratchet problem .............

II.

(i)

TABLE OF CONTENTS—Continued

Page

C. Practical consequences for administration of justice ................................

IV. The Seventh Amendment implications of

the decision below warrant this Court’s

review.........................................................

A. The Seventh Amendment’s historical

test ........................................................

B. Application of the Seventh Amendment to diversity jurisdiction ..............

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

American Dredging Co. v. Miller,

510 U.S. 443 (1994) ...................................

Atl. & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd.,

369 U.S. 355 (1962) ............................... 5, 22, 23

Beacon Theatres, Inc. v. Westover,

359 U.S. 500 (1959) ................................... 19-21

Breuer v. Jim’s Concrete of Brevard, Inc.,

538 U.S. 691 (2003) ...................................

Curcuru v. Rose’s Oil Serv., Inc.,

802 N.E.2d 1032 (Mass. 2004) ..................

Curtis v. Loether,

415 U.S. 189 (1974) ...................................

DeLovio v. Boit,

7 F. Cas. 418 (C.C.D. Mass. 1815)

(No. 3,776) .................................................

Dooley v. Korean Air Lines Co., Ltd.,

524 U.S. 116 (1998) ...................................

Ferens v. John Deere Co.,

494 U.S. 516 (1990) ...................................

Fitzgerald v. U.S. Lines Co.,

374 U.S. 16 (1963) .....................................

Garrett v. Moore-McCormack Co., Inc.,

317 U.S. 239 (1942) ...................................

Ghotra v. Bandila Shipping, Inc.,

113 F.3d 1050 (9th Cir.1997)....................

TABLE OF AUTHORITIES—Continued

Page(s)

Granfinanciera, S.A. v. Nordberg,

492 U.S. 33 (1989) .....................................

Griffin v. Oceanic Contrs., Inc.,

458 U.S. 564 (1982) ...................................

Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947) ...................................

Hanna v. Plumer,

380 U.S. 460 (1965) ......................................

Holmes Grp., Inc. v. Voronado Air

Circulation Sys., Inc.,

535 U.S. 826 (2002) ...................................

Howlett v. Rose,

496 U.S. 356 (1990) ...................................

In re Lockheed Martin Corp.,

503 F.3d 351 (4th Cir. 2007) ..........................

Jennings v. Rodríguez,

583 U.S. 281 (2018) ...................................

Jerome Grubart, Inc. v. Great Lakes

Dredge & Dock Co.,

513 U.S. 527 (1995) ...................................

8, 9

Johnson v. Fankell,

520 U.S. 911 (1997) ...................................

Koch Fuels, Inc. v. Cargo of 13,000

Barrels of No. 2 Oil,

704 F.2d 1038 (8th Cir. 1983)...................

Lewis v. Lewis & Clark Marine, Inc.,

531 U.S. 438 (2001) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Madruga v. Super. Ct.,

346 U.S. 556 (1954) ...................................

N.J. Steam Nav. Co. v. Merchants’ Bank,

47 U.S (6 How.) 344 (1848) .......................

Norfolk S. Ry. Co. v. Kirby,

543 U.S. 14 (2004) .....................................

Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207 (1986) ................... 7, 10, 11, 15, 21

Panama R. Co. v. Johnson,

264 U.S. 375 (1924) ...................................

Parsons v. Bedford,

28 U.S. (3 Pet.) 433 (1830) ........................

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) ...................................

Sisson v. Ruby,

497 U.S. 358 (1990) ...................................

2, 9

Tafflin v. Leavitt,

493 U.S. 455 (1990) ...................................

Wilson v. Transocean Airlines,

121 F. Supp. 85 (N.D. Cal. 1954)..............

CONSTITUTION

U.S. Const. art. III, § 2 .................................

U.S. Const. amend. VII ....................... 1, 16, 19-22

U.S. Const. amend. X ...................................

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

28 U.S.C. § 1331 ...........................................

28 U.S.C. § 1332 ...........................................

28 U.S.C. § 1333 ............... 3, 4, 6, 7, 11, 16, 21, 22

28 U.S.C. § 1333(1) .......................................

28 U.S.C. § 1369 ........................................... 4, 17

46 U.S.C. § 30302 ......................................... 6, 12

46 U.S.C. § 30308(a) ................................. 7, 12, 21

46 U.S.C. § 30903(b) .....................................

First Judiciary Act of 1789, 1 Cong. Ch. 20,

1 Stat. 73 (1789) ............................ 1, 3, 5, 10, 11

§ 9, 1 Stat. 77 ............................................

4, 5

§ 9(a), 1 Stat. 77 ........................................

RULES

FED. R. CIV. P. 9(h) ................................. 10, 11, 16

FED. R. CIV. P. 9, Advisory Comm. Note ......

FED. R. CIV. P. 9(h), Advisory Comm. Note,

39 F.R.D. 69 (1966) ...................................

FED. R. CIV. P. 14(c) ......................................

FED. R. CIV. P. 38(a)...................................... 11, 16

FED. R. CIV. P. 38(e) ......................................

Fed. R. Civ. P. 82 ..........................................

FED. R. CIV. P. SUPP. R. A-G .........................

vii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

52 Cong. Rec. 1065 (Jan. 6, 1915) ................

Theodore M. Cooperstein, Letters of

Marque and Reprisal: the Constitutional

Law and Practice of Privateering, 40 J.

MAR. L. & COM. 221 (Apr. 2009) ...............

THE DECLARATION OF INDEPENDENCE (U.S.

1776) ..........................................................

John W. deGravelles, The Application of

State Law in a Maritime Case: A Primer

on “The Devil’s Own Mess,” 15 LOY. MAR.

L.J. 5 (Winter 2016) .......................... 4, 5, 11, 12

Steven F. Friedell, Death at Sea and the

Right to Jury Trial, 48 TUL. MAR. L.J. 165

(2024) ...................................................... 6, 13-15

GRANT GILMORE & CHARLES L. BLACK, JR.,

THE LAW OF ADMIRALTY (2d ed. 1975) ......

David W. Robertson, Admiralty and

Maritime Litigation in State Courts, 55

LA. L. REV. 685 (1995) ...............................

5, 6

David W. Robertson, Admiralty Procedure

and Jurisdiction After the 1966

Unification, 74 MICH. L. REV. 1627 (1976)

...................................................................

David W. Robertson, The Applicability of

State Law in Maritime Cases, 21 TUL.

MAR. L.J. 81 (1996) ...................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

DAVID W. ROBERTSON, STEVEN F. FRIEDELL,

& MICHAEL F. STURLEY, ADMIRALTY AND

MARITIME LAW IN THE UNITED STATES

(4th ed. 2020)................................................

THOMAS J. SCHOENBAUM, ADMIRALTY AND

MARITIME LAW (5th ed. 2011) ...................

THOMAS J. SCHOENBAUM, ADMIRALTY AND

MARITIME LAW (6th ed. 2018) .................. 3-6, 20

STEVEN L. SNELL, COURTS OF ADMIRALTY

AND THE COMMON LAW: ORIGINS OF THE

AMERICAN EXPERIMENT IN CONCURRENT

JURISDICTION (2007) ................................ 2, 3, 20

14A CHARLES ALAN WRIGHT & ARTHUR R.

MILLER,

FEDERAL

PRACTICE

AND

PROCEDURE (4th ed. 2013) ........................

INTEREST OF AMICI CURIAE 1

Amici curiae are law professors of admiralty and

maritime law. They seek to help the Court resolve

issues of admiralty and federal jurisprudence toward

preserving the right to jury trial.

Martin Davies is Niels F. Johnson Chair of Maritime

Law at Tulane University. Steven Friedell is Professor

of Law at Rutgers University. Robert Force is Niels F.

Johnson Chair of Maritime Law, Emeritus at Tulane

University. Thomas C. Galligan, Jr. is Dodson & Hooks

Endowed Chair of Maritime Law at Louisiana State

University. Thomas Schoenbaum is Harold S. Shefelman

Professor of Law at the University of Washington.

Amici support Certiorari because the issue implicates

the concurrent jurisdiction of state and federal courts

envisioned by the Framers. This case provides an ideal

opportunity to restore important constitutional principles.

REASONS FOR GRANTING THE PETITION

I. The Seventh Circuit’s approach undermines

core federalism principles embodied in

the Saving-to-Suitors Clause.

The Saving-to-Suitors Clause represents one of the

oldest and most important expressions of federalism

in American jurisprudence, dating back to the First

Judiciary Act of 1789. 1 Cong. Ch. 20, 1 Stat. 73 (1789).

Rule 37 Statement: No counsel for any party authored

this brief in whole or in part. No person or entity, with the

following exception, other than Amici and their counsel, made

monetary contributions to its preparation. Mr. Roland Pritzker,

an independent philanthropist concerned to protect Seventh

Amendment rights, contributed in part to the cost. Pursuant to

Rule 37.2, counsel for both parties received timely notice.

The Seventh Circuit’s approach significantly undermines

this federalism principle in several specific ways.

A “case-by-case” adjudication of admiralty jurisdiction

is unpredictable and lacks clarity. Sisson v. Ruby, 497

U.S. 358, 373 (1990) (Scalia, J., concurring) (“The decision

seems unfortunate as increasing complication and

uncertainty in the law without, apparently, securing

any practical gains to compensate for these disadvantages.”) (cleaned up). This criticism applies with

equal force to the Seventh Circuit’s creation of “quasiexclusive” jurisdiction wherein jury rights depend on

the forum rather than the nature of the claim.

A. The historical role of the Saving-toSuitors Clause in American Federalism

The history of American admiralty law has generally

been a story of concurrent jurisdiction. During the

Colonial era, the British Crown established separate

vice-admiralty courts that exercised mostly concurrent

jurisdiction over maritime cases with colonial

common-law courts. See STEVEN L. SNELL, COURTS OF

ADMIRALTY AND THE COMMON LAW: ORIGINS OF THE

AMERICAN EXPERIMENT IN CONCURRENT JURISDICTION

149-179 (2007) (demonstrating the wide degree of

shared jurisdiction over most maritime claims).

Plaintiffs could choose to file a claim in a viceadmiralty court or in a common law court. See id. at

205 (“Perhaps more importantly, these courts had

provided the litigants with a choice. A potential

plaintiff was able to weigh the alternatives, determining whether the opportunity to cross-examine witnesses

in open court and availability of a jury mattered more

than the speed of summary civil law procedures....”).

After independence, each State established its own

admiralty court, primarily to adjudicate prize cases. 2

See id. at 215-21. State admiralty courts and commonlaw courts soon shared jurisdiction over other

maritime matters. Id.

Desiring uniformity in substantive maritime law,

the Founders brought admiralty jurisdiction into the

federal courts. Id. at 232-71. The Constitution

consequently extends the federal judicial power “to all

Cases of admiralty and maritime Jurisdiction.” U.S.

CONST. art. III, § 2.

When Congress codified federal admiralty jurisdiction

in the Judiciary Act of 1789, it included a saving-tosuitors clause expressly providing concurrent jurisdiction over most maritime claims. Judiciary Act § 9(a),

1 Stat. 77; see SNELL, supra, at 307-312. “The intention

of the drafters of the Judiciary Act ... was to make clear

that admiralty ‘suitors’ would not be second-class

litigants in the United States. Rather admiralty

suitors should have full access to common law

remedies if they so choose.” THOMAS J. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW § 4:2, at 257 (6th ed.

2018). Today, admiralty jurisdiction lies in 28 U.S.C.

§ 1333, which states: “The 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.”

Prize cases are in rem actions deciding competing claims

to vessels and cargo seized in war. See generally Theodore M.

Cooperstein, Letters of Marque and Reprisal: the Constitutional

Law and Practice of Privateering, 40 J. MAR. L. & COM. 221

(Apr. 2009).

The Saving-to-Suitors Clause has preserved common

law jurisdiction since the First Judiciary Act. 1 Stat.

77 § 9 (“saving to suitors, in all cases, the right of a

common law remedy, where the common law is competent

to give it.”). The Clause preserved concurrent power of

state courts over maritime subjects predating the

Constitution. The clause preserved “the concurrent

remedy which had before existed.” N.J. Steam Nav. Co.

v. Merchants’ Bank, 47 U.S (6 How.) 344, 390 (1848)

(Story, J.) (“This leaves the concurrent power where it

stood at common law.”). The Court has consistently

protected this aspect of federalism over two centuries.

Today’s saving-to-suitors clause of § 1333 makes

clear that a plaintiff who can invoke a federal court’s

admiralty jurisdiction need not do so, if another basis

for jurisdiction exists. Under the saving-to-suitors

clause, plaintiff may bring a maritime claim: (1) in

federal court via admiralty jurisdiction; (2) in federal

court, under non-admiralty jurisdiction, if plaintiff

satisfies another federal jurisdictional statute basis —

diversity jurisdiction, 3 federal question jurisdiction, 4

or multiparty/multiforum jurisdiction; 5 or (3) in state

court with jurisdiction. See John W. deGravelles, The

Application of State Law in a Maritime Case: A Primer

on “The Devil’s Own Mess,” 15 LOY. MAR. L.J. 5,

9 (Winter 2016); David W. Robertson, Admiralty

Procedure and Jurisdiction After the 1966 Unification,

74 MICH. L. REV. 1627, 1628 (1976); see also, 14A

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 3672, at 534-48 & nn.4-11

(4th ed. 2013); SCHOENBAUM, supra, § 4:2, at 257;

28 U.S.C. § 1332.

28 U.S.C. § 1331.

28 U.S.C. § 1369.

GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF

ADMIRALTY § 113, at 37 & n.117 (2d ed. 1975).

“Most admiralty cases . . . are cases of concurrent

jurisdiction rather than exclusive jurisdiction.” David

W. Robertson, Admiralty and Maritime Litigation in

State Courts, 55 LA. L. REV. 685, 699 (1995). Since

1789, Congress has given federal courts “original” and

“exclusive” jurisdiction over all cases of “admiralty or

maritime jurisdiction, saving to suitors in all cases all

other remedies to which they are otherwise entitled.”

28 U.S.C. § 1333(1). This saving-to-suitors clause

preserves a plaintiff’s right to bring a maritime action

in any court of competent jurisdiction. See Atl. & Gulf

Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355,

359-60 (1962) (“Where the suit is in personam, it may

be brought either in admiralty or, under the saving

clause, in an appropriate non-maritime court by

ordinary civil action.”) (emphasis added; cleaned up);

cf. Madruga v. Super. Ct., 346 U.S. 556, 560-61 (1954).

Only four statutes create exclusive admiralty jurisdiction in federal courts. See THOMAS J. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW § 4-4, at 239-40 (5th ed.

2011); see also SCHOENBAUM, supra, § 4:2, at 258-59;

David W. ROBERTSON, STEVEN F. FRIEDELL, & MICHAEL

F. STURLEY, ADMIRALTY AND MARITIME LAW IN THE

UNITED STATES 65 (4th ed. 2020); deGravelles, supra, at

8-9 (“Congress, by statute, has conferred exclusive

admiralty jurisdiction upon the federal courts in suits

under the Limitation of Shipowners’ Liability Act, the

Ship Mortgage Act, the Suits in Admiralty Act, and the

Public Vessels Act, and for actions to foreclose preferred

ship mortgages.”) (citations omitted). These statutes

govern matters within the expertise of admiralty

courts – in rem actions against vessels and other

maritime property and the waiver of sovereign

immunity as to public vessels – warranting admiralty

jurisdiction in federal courts.

But the saving-to-suitors clause in § 1333 requires

that admiralty courts share jurisdiction with courts of

competent jurisdiction for the vast majority of

maritime actions – actions that are in personam rather

than in rem, and actions apart from suits against

public vessels or the sovereign. See SCHOENBAUM,

supra, § 4:2, at 257-58 (“Thus, the saving to suitors

clause institutes concurrent federal-state jurisdiction

over in personam admiralty actions, so that an

admiralty plaintiff in an in personam claim may

choose between filing an ordinary civil action or

bringing a ‘libel’ action in admiralty.”).

Under the saving-to-suitors clause, a plaintiff in a

maritime case has three options of where to file the

claim: (1) in federal court, under admiralty

jurisdiction; (2) in a state court, with jurisdiction over

the claim; or (3) on the “law side” of federal court, if the

plaintiff can establish federal jurisdiction on some

basis other than admiralty. See Robertson, Admiralty

and Maritime Litigation in State Courts, supra, at 699

(noting that the saving-to-suitors clause gives “the

plaintiff in most types of admiralty or maritime cases”

these options); see also, SCHOENBAUM, supra, § 4-2, at

257; Steven F. Friedell, Death at Sea and the Right to

Jury Trial, 48 TUL. MAR. L.J. 165, 166-68 (2024).

B. DOHSA’s Saving Clause reflects congressional intent to preserve Federalism

Congress enacted the Death on the High Seas Act

(DOHSA) to create a federal wrongful-death action

for survivors of decedents caused by “wrongful act,

neglect, or default occurring on the high seas.”

46 U.S.C. § 30302. Prior to DOHSA’s enactment,

considerable confusion governed the courts whether

general maritime law recognized an action for a death

at sea. DOHSA’s enactment settled that issue. In

addition to creating a cause of action for wrongful

death at sea, DOHSA contains a saving clause that

provides “[t]his chapter does not affect the law of a

State regulating the right to recover for death.”

46 U.S.C. § 30308(a).

The Seventh Circuit approach to this section of

DOHSA is novel. It was earlier understood that, if

state courts had concurrent jurisdiction to hear

DOHSA cases, then federal courts upon removal would

hear those cases “as a suit at law with right of trial by

jury.” Wilson v. Transocean Airlines, 121 F. Supp. 85, 94

(N.D. Cal. 1954).

This Court has held this is a jurisdictional saving

clause with the same effect as the saving-to-suitors

clause in 28 U.S.C. § 1333. Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 221-25 (1986). Pursuant to the

saving-to-suitors clause of § 1333 and the plain

language and statutory history of DOHSA, federal

jurisdiction of wrongful death claims under DOHSA is

concurrent, not exclusive.

Section 30308(a)’s language preserves state remedies

and reflects an intent to maintain the historic balance

between federal and state authority in maritime

matters. Tallentire recognized this provision’s “marked

similarity” to the Saving-to-Suitors Clause. 477 U.S.

at 222-23. DOHSA’s own saving clause clearly

indicates congressional intent to preserve state court

jurisdiction. 46 U.S.C § 30308(a).

The Seventh Circuit’s dismissive treatment of this

provision in a footnote, Pet. App. 14a & n.4,

contravenes congressional intent.

C. Tenth Amendment implications of the

decision below

States retain sovereignty over procedural matters in

their courts, including jury trials. The Seventh Circuit

approach creates a system where federal courts

can unilaterally extinguish rights (jury trials) that

would otherwise be available in state courts. This

development raises Tenth Amendment federalism

concerns. The opinion contradicts the principle that

there is a “deeply rooted presumption in favor of

concurrent state court jurisdiction.” Tafflin v. Leavitt,

493 U.S. 455, 458 (1990).

States have traditionally retained sovereignty over

procedural matters in their courts, including the right

to jury trials. States may establish the rules of

procedure governing litigation in their own courts.

Johnson v. Fankell, 520 U.S. 911, 919 (1997) (States

“have great latitude to establish the structure and

jurisdiction of their own courts”); Howlett v. Rose, 496

U.S. 356, 372 (1990) (same). The Seventh Circuit

opinion denies States this authority in DOHSA cases.

II. The Seventh Circuit’s approach contradicts

the Original Understanding of Admiralty

Jurisdiction.

The Seventh Circuit’s approach contradicts the

original understanding of how admiralty and common

law jurisdiction interact. Multiple Justices of the

Court have previously expressed strong concerns

about the very type of non-textual, ahistorical

approach to admiralty jurisdiction exemplified by the

Seventh Circuit decision. The “Court pursues clarity

and efficiency in other areas of federal subject-matter

jurisdiction, and it should demand no less in admiralty

and maritime law.” Jerome Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527, 555 (1995) (Thomas,

J., concurring); id. at 548 (O’Connor, J., concurring)

(Denying “that, having found admiralty jurisdiction

over a particular claim against a particular party, a

court must then exercise admiralty jurisdiction over

all the claims and parties involved in the case.

Rather, the Court should engage in the usual

supplemental jurisdiction and impleader inquiries.”)

(emphasis original).

A. The Colonial and Founding Era understanding of Admiralty Jurisdiction

Members of the Court have emphasized the Court’s

evaluation of constitutional principles and provisions

should focus on the established meaning when the

Constitution was adopted. Sisson, 497 U.S. at 375

(Scalia, J., concurring). “Vague and obscure rules may

permit judicial power to reach beyond its constitutional and statutory limits, or they may discourage

judges from hearing disputes properly before them.”

513 U.S. at 549 (Thomas, J., concurring). The Seventh

Circuit’s approach represents precisely this kind of

unwarranted expansion.

Historical evidence shows maritime plaintiffs had

genuine choice between admiralty and common law

forums. Admiralty courts excluded juries, while common

law courts used juries. The choice was not merely

procedural, but substantive — it gave maritime

litigants agency in selecting procedural protections.

The Seventh Circuit’s hybrid approach contravenes

the historical understanding of these distinct

jurisdictional realms.

The Framers were particularly concerned with

preserving jury trial rights in maritime cases. Many

colonial grievances against Britain involved the

expansion of admiralty jurisdiction to deprive colonists of

jury trials. THE DECLARATION OF INDEPENDENCE para.

20 (U.S. 1776) (“depriving us, in many Cases, of the

Benefits of Trial by Jury”).

The Saving-to-Suitors Clause was specifically

intended to preserve the right to proceed at common

law with a jury trial. DeLovio v. Boit, 7 F. Cas. 418, 444

(C.C.D. Mass. 1815) (No. 3,776) (Story, J.) (“There can

be no possible question, that the courts of common law

have acquired a concurrent jurisdiction.”).

B. The

development

Maritime

Jurisdiction through history

The 1966 unification of federal process preserved

substantive distinctions despite procedural consolidation. When the admiralty and law “sides” of federal

courts unified in 1966, there was no intent to eliminate

the substantive distinctions between admiralty and

law. In the creation of Rule 9(h), unification meant to

streamline procedure while preserving substantive

rights. The Advisory Committee Notes explicitly state

that the unification was not intended to eliminate the

“classic privilege given by the saving-to-suitors

clause.” FED. R. CIV. P. 9, Advisory Comm. Note.

Non-admiralty courts hearing saving-to-suitorsclause cases must apply the same substantive law that

admiralty courts would apply. See Garrett v. MooreMcCormack Co., Inc., 317 U.S. 239, 243 (1942).

DOHSA claims, wherever filed, call for the substantive

law of DOHSA. Tallentire made this point clear:

Stated another way, the “saving to suitors”

clause allows state courts to entertain in

personam maritime causes of action, but in

such cases the extent to which state law may

be used to remedy maritime injuries is

constrained by a so-called “reverse-Erie”

doctrine which requires that the substantive

remedies afforded by the States conform to

governing federal maritime standards.

447 U.S. 222-23.

Because DOHSA creates concurrent jurisdiction,

under the saving-to-suitors clause a DOHSA plaintiff

may choose the forum in which to pursue the claim and

thereby select the procedures that will apply. As in

Tallentire, plaintiff may file a DOHSA claim in a state

court with jurisdiction, in which case state procedural

rules apply. Or plaintiff may file the DOHSA action in

federal court. The federal court will have admiralty

jurisdiction over the claim, but if plaintiff satisfies the

requirements of a non-admiralty jurisdictional statute,

Rule 9(h) permits plaintiff to elect which procedures –

law or admiralty – will apply to the claim. If plaintiff

files a Rule 9(h) declaration, the special admiralty

procedures found in Rules 14(c), 38(e), 82, and the

Supplemental Rules will apply to the DOHSA claim.

But if plaintiff does not file a Rule 9(h) declaration and

a non-admiralty basis for federal jurisdiction exists,

the claim will proceed at law and the ordinary Federal

Rules of Civil Procedure will apply — including Rule

38(a), which preserves the right to jury trial.

As maritime expert Judge John deGravelles stated:

What is “saved” to the suitor in § 1333 is not

only the right to bring most maritime cases in

a non-admiralty or “savings clause court”

(state court or the law side of federal court),

but also the right of the litigants to utilize the

procedural differences between the federal

court in admiralty and those of the nonadmiralty or savings clause court. In other

words, each of the three courts should apply

its own procedural rules regardless of what

substantive law is applied.

deGravelles, supra, at 9 (citation omitted).

C. DOHSA’s text and history in context

The plain language of DOHSA demonstrates

Congress’s intent that admiralty jurisdiction over

DOHSA claims be concurrent, not exclusive. DOHSA

provides that “[w]hen the death of an individual is

caused by wrongful act, neglect, or default occurring

on the high seas[,] ... the personal representative of the

decedent may bring a civil action in admiralty against

the person or vessel responsible.” 46 U.S.C. § 30302

(emphasis added). By using the word “may” rather

than “must,” Congress signaled its intent to permit

maritime plaintiffs to bring their DOHSA claims as

admiralty actions or as in personam actions in courts

of competent jurisdiction. Cf. Panama R. Co. v.

Johnson, 264 U.S. 375, 383 (1924) (Jones Act language

“may, at his election, maintain an action for damages

at law,” created concurrent jurisdiction, allowing

plaintiffs to proceed in either law or admiralty).

DOHSA includes a saving clause that provides,

“[t]his chapter does not affect the law of a State

regulating the right to recover for death,” 46 U.S.C.

§ 30308(a), and creates a permissive right to proceed

in admiralty, but not a compulsory obligation to do so.

The manner in which this Court interprets

“statutory language is determined by reference to the

language itself, the specific context in which that

language is used, and the broader context of the

statute as a whole.” Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997). When Congress chooses words

ambiguous or at odds with the statute’s stated

purpose, courts must construe those words to support

that purpose, not defeat it. See Griffin v. Oceanic

Contrs., Inc., 458 U.S. 564, 571 (1982).

DOHSA contains a permissive clause creating

admiralty jurisdiction and a saving clause preserving

claimant’s rights to pursue other remedies. Congress

intended these clauses to preserve concurrent

jurisdiction over DOHSA claims. Fair reading of these

clauses refutes any reasonable contention that, when

enacting DOHSA, Congress intended to override the

presumption of concurrent admiralty jurisdiction

codified in the saving-to-suitors clause.

Legislative history supports this plain reading of

DOHSA. Congress took 20 years to enact DOHSA’s

remedy for wrongful death on the high seas. The first

bill in 1900 “would have allowed suit to recover for

wrongful death with a right of jury trial in both the

district courts in admiralty and the federal circuit

courts.” Friedell, supra, at 172. The Maritime Law

Association (“MLA”) objected to jury trials in

admiralty, and the bill failed. Id. The MLA drafted the

next bill in 1913. This bill would have created

exclusive admiralty jurisdiction, providing that suits

“shall not be maintained in the courts of any State or

Territory or in the court of the United States other

than in admiralty.” Id. This attempt at exclusive

admiralty jurisdiction failed. In 1915, the Judiciary

Committee presented a bill that reversed course and

expressly preserved concurrent jurisdiction with a

saving clause very similar to the current one. 6 The

“But nothing in this Act shall be construed to abridge the

right of suitors in the courts of any State or Territory to a remedy

given by the laws of any State or Territory in such cases.” 52 Cong.

Rec. 1065 (Jan. 6, 1915).

Judiciary Committee Chair explained that for deaths

resulting from wrongful acts on the high seas, the

saving clause gave plaintiffs the option of (i) suing in

federal court based on either admiralty or diversity or

(ii) suing in state court where the case might remain

or be tried in federal court if removed. A non-jury trial

would be mandated only if (i) the plaintiff elected to

sue in admiralty or (ii) it was an in rem proceeding. Id.

at 173. Although there were proposed amendments to

this saving clause, and the MLA weighed in with

proposed wording of its own, none of these proposals

objected to the creation of concurrent jurisdiction – or

the use of jury trials in non-admiralty courts. Id. at

174. This bill also failed.

The bill that became DOHSA emerged after the

MLA changed course to propose a bill providing a

remedy only for deaths outside state waters and

“limit[ing] its application to the Admiralty Court.” Id.

The saving provision in this proposed bill read, “That

the provisions of any State statute giving or regulating

rights of action or remedies for death shall not be

affected by this Act as to causes of action accruing

within the territorial limits of any State.” Id. MLA

sought to limit the scope of the saving clause to those

wrongful deaths occurring in state territorial waters.

This bill was introduced in 1915, but languished in

Congress during the First World War. Id.

Congress enacted DOHSA in 1920. Congress made a

crucial amendment to the saving clause, striking the

phrase “as to causes of action accruing within the

territorial limits of any State.” Id. at 175. The enacted

statute thus read: “That the provisions of any State

statute giving or regulating rights of action or

remedies for death shall not be affected by this Act.”

Id. Congressman Mann, who introduced the successful

amendment, argued that the amended bill

would not interfere in any way with rights

now granted by any State statute, whether

the cause of action accrued within the

territorial limits of the State or not. In other

words, if a man had [a] cause of action and

could get service, he could sue in a State court

and not be required to bring suit in the

Federal court.

Id.

The Tallentire Court examined this history in close

detail and expressly held that DOHSA’s saving clause

was intended to “serve as a jurisdictional saving

clause, ensuring that state courts enjoyed the right to

entertain causes of action and provide wrongful death

remedies both for accidents arising on territorial

waters and, under DOHSA, for accidents occurring

more than one marine league from shore.” 477 U.S. at

221. If this saving clause preserves concurrent state

court jurisdiction, then Congress did not subject

DOHSA cases to exclusive admiralty jurisdiction.

When admiralty jurisdiction is not exclusive, plaintiffs

retain options under the saving-to-suitors clause,

including proceeding in federal court under the civil

rules, or on removal to federal court, invoking a nonadmiralty basis of jurisdiction.

No evidence shows Congress intended to create a

novel hybrid jurisdictional scheme.

III. The

decision

invites

jurisdictional

manipulation and forum-shopping.

The Seventh Circuit incentivized defendants to remove

cases to federal court to eliminate jury trial rights.

The right to a trial by jury is a procedural right

determined by a plaintiff’s choice of forum, not a

substantive right preempted by DOHSA. The Advisory

Committee’s Notes to Rule 9(h) state that Rule 9(h)

declaration will “provide some device for preserving

the [pre-merger] power of the pleader to determine”

whether admiralty or civil law procedures will apply

to his or her claim and thereby preserve the right to a

jury trial if desired. The Note further provides:

Many claims, however, are cognizable by the

district courts whether asserted in admiralty

or in a civil action, assuming the existence of

a nonmaritime ground of jurisdiction. Thus at

present the pleader has power to determine

procedural consequences by the way in which

he exercises the classic privilege given by the

saving-to-suitors clause (28 U.S.C. § 1333) or

by equivalent statutory provisions.... One of

the important procedural consequences is

that in the civil action either party may

demand a jury trial, while in the suit in

admiralty there is no right to jury trial except

as provided by statute....

FED. R. CIV. P. 9(h), Advisory Committee Note, 39 F.R.D.

69, 75–76 (1966). In addition, Rule 38(a) emphasizes

the importance of the jury-trial right in a federal civil

action by providing that “[t]he right of trial by jury

as declared by the Seventh Amendment to the

constitution – or as provided by federal statute – is

preserved to the parties inviolate.” FED.R. CIV. P. 38(a).

A. The new strategic advantage of removal

Defendants wielding the Seventh Circuit opinion

can now eliminate jury trial rights through removal.

The decision below incentivizes defendants to remove

DOHSA cases to avoid jury trial. 7 This contradicts

the well-settled canon that removal jurisdiction should

not become a vehicle for strategic forum-shopping.

Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691,

696-97 (2003); Ferens v. John Deere Co., 494 U.S. 516,

527-28 (1990).

Boeing demanded a jury trial before changing course

to a bench trial. Pet. App. 75a. This tactic illustrates

the gamesmanship of the Seventh Circuit’s rule.

Manipulation contradicts the principle that forum

procedural differences should not determine substantive

outcomes. Hanna v. Plumer, 380 U.S. 460, 467-68 (1965).

B. The one-way ratchet problem

The Seventh Circuit created asymmetry: Plaintiffs

who choose state court find their jury trial rights

eliminated through removal; defendants preferring

bench trials guarantee it through removal.

This one-way ratchet contradicts the principle that

courts should guard against forum manipulation that

harasses the defendant or creates “inappropriate

disruption.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947). The Court has repeatedly rejected such rules

creating substantive inequities.

This concern is not hypothetical; rather it is exactly what

Boeing did in the Chandra case (consolidated below with this

case). The Chandra plaintiffs filed in State court. Boeing removed

to federal court under 28 U.S.C. § 1369. The district court ruled

plaintiffs lost their jury-trial right, and the Seventh Circuit affirmed.

“In exercising in personam jurisdiction ... a state

court may adopt such remedies, and ... attach to them

such incidents, as it sees fit so long as it does not

attempt to make changes in the substantive maritime

law.” American Dredging Co. v. Miller, 510 U.S. 443,

447 (1994). “A right is a well founded or acknowledged

claim; a remedy is the means employed to enforce a

right or redress an injury.” Lewis v. Lewis & Clark

Marine, Inc., 531 U.S. 438, 445 (2001). A saving-clause

court’s remedy is procedural, not substantive, as long

as it does not “work[] material prejudice to the

characteristic features of the general maritime law or

interfere[] with the proper harmony and uniformity of

that law.” 510 U.S. at 447 (cleaned up).

The Court emphasized that “[u]niformity of process

(beyond the rudimentary elements of procedural

fairness) is assuredly not what the law of admiralty

seeks to achieve, since it is supposed to apply in all the

courts of the world.” 510 U.S. at 453. Procedural rules

are “those whose official purposes are confined to

securing the fairness or efficiency of the litigation

process.” David W. Robertson, The Applicability of

State Law in Maritime Cases, 21 TUL. MAR. L.J. 81, 85

(1996); see also 510 U.S. at 458 (Souter, J., concurring)

(“[H]ow a given rule is characterized for purposes of

determining whether federal maritime law pre-empts

state law will turn on whether the state rule unduly

interferes with the federal interest in maintaining the

free flow of maritime commerce.”).

The right to jury trial is a rule of fairness; it neither

disrupts the free flow of maritime commerce, nor does

it interfere with the uniformity of admiralty law. It

falls on the procedural side of the substance/procedure

divide. See Lewis & Clark, 531 U.S. at 454-55 (“[T]he

[saving-to-suitors] clause extends to all means other

than proceedings in admiralty which may be employed

to enforce the right or to redress the injury involved.

Trial by jury is an obvious, but not exclusive, example

of the remedies available to suitors.”) (cleaned up); see

also Curcuru v. Rose’s Oil Serv., Inc., 802 N.E.2d 1032,

1038 (Mass. 2004) (“Use of the remedy of a jury trial

does not undermine or conflict with DOHSA or with

substantive Federal maritime law.”).

C. Practical consequences for administration of justice

Forum manipulation creates efficiency concerns that

should interest the Court. Incentivizing removal to

eliminate jury trial rights creates judicial inefficiencies. Manipulative jurisdictional practices “would

undermine the clarity and ease of administration” of

jurisdictional rules. Holmes Grp., Inc. v. Voronado Air

Circulation Sys., Inc., 535 U.S. 826, 832 (2002).

That jury availability now turns on removal status

imperils uniformity in maritime law. This contradicts

the Court’s holding that “the fundamental interest

giving rise to maritime jurisdiction is the protection of

maritime commerce” through uniform rules. Norfolk S.

Ry. Co. v. Kirby, 543 U.S. 14, 25 (2004).

The decision undermines the principle that procedural

rules should not determine substantive outcomes.

There is no reason to believe that Congress intended

to limit the applicability of the Seventh Amendment

right to a trial by jury when it enacted DOHSA.

“Maintenance of the jury as a fact-finding body is of

such importance and occupies so firm a place in our

history and jurisprudence that any seeming curtailment

of the right to a jury trial should be scrutinized with

the utmost care.” Beacon Theatres, Inc. v. Westover, 359

U.S. 500, 501 (1959) (citation omitted). When Congress

has intended to abrogate the right to a jury trial in an

admiralty action, it has done so directly and expressly.

E.g., 46 U.S.C. § 30903(b) (“A claim against the United

States or a federally-owned corporation under this

section shall be tried without a jury.”).

IV. The Seventh Amendment implications of the

decision below warrant this Court’s review.

A. The Seventh Amendment’s historical test

Jury trial rights existed for maritime matters in

1791 when pursued as common law claims. The Court

applies a historical test to determine when jury trial

rights attach. In Granfinanciera, S.A. v. Nordberg, 492

U.S. 33, 42 (1989), the Court held that the Seventh

Amendment preserves jury trial rights that existed in

1791. The historical evidence shows that maritime

plaintiffs could obtain jury trials by pursuing common

law remedies. SNELL, supra, 149-79; SCHOENBAUM,

supra § 4:2, at 257.

The Seventh Circuit eliminated this historical

choice. This approach contradicts the historical test

established in Granfinanciera.

B. Application of the Seventh Amendment

to diversity jurisdiction

Where “legal rights are to be ascertained and

determined,” the Seventh Amendment “preserve[s] the

right to jury trial as it existed in 1791.” Curtis v.

Loether, 415 U.S. 189, 193 (1974); Parsons v. Bedford,

28 U.S. (3 Pet.) 433, 446-48 (1830) (Story, J.). When

plaintiffs invoke diversity jurisdiction for DOHSA

claims, they are asserting precisely such “legal rights”

that would traditionally entitle them to jury trials.

The Beacon Theatres principle counsels preserving

jury trial rights when both admiralty and non-

admiralty bases co-exist. When both legal and equitable

claims are present, jury trial rights must be preserved.

359 U.S. at 510-11. When both admiralty and nonadmiralty bases for jurisdiction exist, the Seventh

Amendment also counsels preserving jury trial rights.

Constitutional avoidance canons suggest interpreting

DOHSA to preserve jury trial rights. Courts should

interpret statutes to “avoid serious constitutional

doubts.” Jennings v. Rodríguez, 583 U.S. 281, 296

(2018), The Seventh Circuit’s interpretation raises

constitutional doubts when eliminating jury trial

rights within the protection of the Seventh Amendment.

Maritime plaintiffs at law in saving-clause cases are

entitled to jury trial, regardless of non-DOHSA claims.

When DOHSA applies, it preempts other forms of

wrongful-death claims. See Dooley v. Korean Air Lines

Co., Ltd., 524 U.S. 116, 123 (1998); Tallentire, 477 U.S.

at 227. But DOHSA preemption is substantive, not

procedural. Both DOHSA § 7 8 and 28 U.S.C. § 1333

permit DOHSA plaintiffs to elect procedures governing

their DOHSA claim by their choice of forum. “Although

not intended to function as a substantive law saving

clause, [DOHSA] § 7 incidentally ensured that state

courts exercising concurrent jurisdiction could, as

under the ‘saving to suitors’ clause, apply such state

remedies as are not inconsistent with substantive

federal law.” 477 U.S. at 224.

Jury trials are compatible with maritime claims.

“While ... the Seventh Amendment does not require

jury trials in admiralty cases, neither that Amendment

nor any other provision of the Constitution forbids

them. Nor does any statute of Congress, or Rule of

Procedure, Civil or Admiralty, forbid jury trials in

Codified at 46 U.S.C. § 30308(a).

maritime cases.” Fitzgerald v. U.S. Lines Co., 374 U.S.

16, 20 (1963). Maritime law is a complicated amalgam

of statutory and common law rights that apply to

different actors in different circumstances. But the

saving-to-suitors clause in 28 U.S.C. § 1333 is a

constant. And in applying the saving-to-suitors clause

in other maritime contexts, the Court permits maritime

plaintiffs choice of forum, to preserve procedural remedies

of that forum — including the right to jury trial.

For example, a plaintiff who brings a maritime claim

as an in personam claim at law is entitled to a jury

trial on that claim. Ellerman, 369 U.S. at 359-60

(1962) (“[A] suit for breach of a maritime contract,

while it may be brought in admiralty, may also be

pursued in an ordinary civil action, since ... it is a suit

in personam. ... This suit being in the federal courts

by reason of diversity of citizenship carried with it, of

course, the right to trial by jury. ... [T]rial by jury is

part of the remedy.”). Ellerman held the Seventh

Amendment applies to claims that could be heard in

admiralty if a plaintiff instead elects to proceed at law

under the saving-to-suitors clause. See In re Lockheed

Martin Corp., 503 F.3d 351, 356 (4th Cir. 2007) (“Ellerman

makes it clear that the Seventh Amendment applies

to admiralty claims that are tried ‘at law’ by way of

the saving-to-suitors clause.”); Ghotra v. Bandila

Shipping, Inc., 113 F.3d 1050, 1054 (9th Cir.1997)

(“The difference between [proceeding in admiralty or

at law] is mostly procedural; of greatest significance is

that there is no right to jury trial if general admiralty

jurisdiction is invoked, while it is preserved for claims

based in diversity or brought in state court.”); Koch

Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704

F.2d 1038, 1041 (8th Cir. 1983) ( “An admiralty claim

that is also cognizable as a civil claim, however, may

be brought as an ordinary civil action. In these cases,

the right to trial by jury attaches.”).

The dispute in Ellerman raised a contract issue

suitable for a jury. Similarly, DOHSA claims raise tort

issues bearing no federal maritime interest and no

warrant for the procedures of admiralty — especially

denial of the jury trial right.

CONCLUSION

The Court should grant certiorari to restore

uniformity, prevent jurisdictional manipulation, and

protect constitutionally guaranteed rights.

Respectfully submitted,

THEODORE M. COOPERSTEIN

Counsel of Record

THEODORE COOPERSTEIN PLLC

1888 Main Street, Suite C-203

Madison, MS 39110

(601) 397-2471

ted@appealslawyer.us

Counsel for Amici Curiae

March 11, 2025

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