Petition for Writ of Certiorari — International Longshoremen's Ass'n, Local 1414 v. Ward

85° 049 | Supreme Court, U

LS | FILED

ry OCT 15 Wes

ie eaeee _ | JOSEPH F. SPANIOL,

CLERK

Supreme Court of the Ynited ‘States

Ocroser Term, 1985

INTERNATIONAL LONGSHOREMEN’s Association, AFL-CIO,

Loca 1414, and InrernationaL Lone: ZOREMEN’S

Association, AFL-CIO,

Petitioners,

Vv.

Jounny Wasp,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH OIROUIT

PETITION FOR A WRIT OF CERTIORARI

ooo II —————— — — — ——{—[T——[L[{{{T*{T*T[*—[—[—[—[——>——[{[==

Tomas W. GiEason

90 Broad Street, 6th Floor

New York, New York 10004

(212) 425-3240

Fanrrnecton & Assor, P.C.

P.O. Box 9378

Savannah, Georgia 31412

Attorneys for Petitioners

:

oad

a

Hit Ba to aes oly

Question Presented for Review

1. Does the claim of an injured longshoreman under the

Longshoremen’s and Harbor Workers’ Compensation Act,

29 U.S.C. §§905(b), 933 arise under the laws of the United

States within the meaning of 28 U.S.C. §1441(b), so as to

be removable to federal court without regard to the citizen-

ship of the parties?

il

TABLE OF CONTENTS

PAGE

Question Presented for Review ~.....22..............ceceseeseseeseos i

TRUS. OF DT ROTIIIOG fies eieeeneenen iii

Ge Spain sep neeabiinnh Maeno cee deter cfs. Shari tllalss CRI 1

SUTIRIMID ~ Soi sinning ahem 2

SDbenSabOe VOICE aise ccsctcinsssa ic <caeceaseeedeiadeneanennnan 2

Statement of 106. OAG6 ...ukisntiniaeneeen 3

Reasons for Granting the Writ 20022... 6

1. The Case Presents an Important Question as

to Whether §905(b) of the Longshoremen’s and

Harbor Workers’ Compensation Act Arises

Under the Laws of the United States .............. 6

2. The Court Should Grant Certiorari to Resolve

a Conflict Among the Circuits as to the Ques-

tion of Whether a Claim Brought Under

§905(b) of the Longshoremen’s and Harbor

Workers’ Compensation Act Arises Under the

Laws of the United States ... .............ecceseeeseeoes 9

Cle RII i 10

Apprenpix A—

Opinion of Court of Appeals 22.0... ene la

AprenpDiIx B—

Order of District Court dated April 23, 1985 ........ 5a

Appendix O—

Order of District Court dated May 21, 1985 .......... 7a

lil

TaBLE oF AUTHORITIES

Cases: PAGE

Bynum v. Patterson Truck Lines, Inc., 655 F.2d 643

(5th Cir. 1981) 9

Griffith v. Wheeling Pittsburgh Steel Corp., 610 F.2d

116 (3d Cir. 1979), vacated on other grounds sub

nom. American Commercial Lines, Inc. v. Griffith,

451 U.S. 965 (1981) 9

L&C Marine Transport, Ltd. v. Ward, 755 F.2d 1427

(11th Cir. 1985) 4

London v. M.S. Fire Insurance Co., 531 F.2d 257 (5th

Cir. 1976) ms ad 5n

Northeast Marine Terminal Co v. Caputo, 432 U.S. 249,

(1977) 6

Russell v. Atlantic € Gulf Stevedores, 625 F.2d 71 (5th

Cir. 1980) - ee

Scindia Steam Navigation Co. v. Lauro De Los Santos,

CE sian sicanapeansentnienaiennbiimauban 7,8,9

Thermton Products, Inc. v. Hermansdorfer, 423 U.S.

336 (1976) 5n

Statutes:

SERRE Sy Fare NCIS ORES ay ORTON SRC 2

a sanesnienetbabnaiion 5

cai senlsnamnicinchinnain 3, 5, 8

28 U.S.C. §1447(c) ; Soamicia Goalie 5n

I csaeecienemansitns 5n

ta Oa Oe a ici cce castes wsndenencenbbinsicbedlinbaiiesibesite 6

Nee oo aseushesuwasuniunesininensica passim

iv

Te TEE, CI i siciesiendetprsiicninicnipinacarecieipp iindcipgtinmiaiiinninta

33 U.S.C. §923 .............. i S

OF Ta MITE ison icinscicneshchiittenampnnaieasitntianaceeh diigeeeencbeiaecl

OS UE Sie ORS ask ite a ilk

Other Authorities:

Employment Standards Administration, Annual Sta-

tistical Report; December 1984, January 1985 ..........

IN THE

Supreme Court of the United States

Octoser Term, 1985

INTERNATIONAL LONGSHOREMEN’s Association, AFL-CIO,

Locat 1414, and InrernationaL LONGSHOREMEN’S

Association, AFL-CIO,

Petitioners,

v.

JoHNNY Warp,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Petitioners, International Longshoremen’s Association,

AFL-CIO (ILA), and its Local 1414, pray that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Eleventh Circuit entered in the

above-entitled case on July 18, 1985.

Opinions Below

The opinion of the court of appeals is reproduced as

Appendix A to this petition (la-4a). The opinions of the

district court are reproduced as Appendix B and Appendix

C to this petition (5a-6a, 7a-13a).

Jurisdiction

The judgment of the court of appeals was entered on

July 18, 1985. The jurisdiction of this court is invoked

under 28 U.S.C. §1254(1).

Statutes Involved

Section 5(b) of the Longshoremen’s and Harbor Workers’

Compensation Act, as amended, 33 U.S.C. §905(b).

In the event of injury to a person covered under this

Act caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover dam-

ages by reason thereof, may bring an action against

such vessel as a third party in accordance with the

provisions of section 33 of this Act [833 USCS §933],

and the employer shall not -be liable to the vessel for

such damages directly or indirectly and any agree-

ments or warranties to the contrary shall be void. If

such person was employed by the vessel to provide

stevedoring services, no such action shall be permitted

if the injury was caused by the negligence of persons

engaged in providing stevedoring services to the ves-

sel. If such person was employed to provide ship-

building, repairing, or breaking services and such per-

son’s employer was the owner, owner pro hac vice,

agent, operator, or charterer of the vessel, no such ac-

tion shall be permitted, in whole or in part or directly

or indirectly, against the injured person’s employer

(in any capacity, including as the vessel’s owner, owner

pro hac vice, ugent, operator, or charterer) or against

the employees of the employer. The liability of the

vessel under this subsection shall not be based upon

the warranty of seaworthiness or a breach thereof at

the time the injury occurred. The remedy provided in

this subsection shall be exclusive of all other remedies

3

against the vessel except remedies available under this

Act.

28 U.S.C. §1441(b).

Any civil action of which the district courts have

original jurisdiction founded on a claim or right aris-

ing under the Constitution, treaties or laws of the

United States shall be removable without regard to

the citizenship or residence of the parties. Any other

such action shall be removable only if none of the

parties in interest properly joined and served as de-

fendants is a citizen of the State in which such action

is brought.

Statement of the Case

Respondent Johnny Ward is a longshoreman who was

seriously injured while working aboard the vessel M/V

Oswego Planter. Ward instituted suit in the State Court

of Chatham County, Georgia seeking personal injury and

other compensatory damages under the provisions of the

Longshoremen’s and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. §§905(b), 933 and Georgia State

Law.’ Ward named as defendants Firestone Tire & Rubber

Co., the parent company of the owner of the vessel, Oswego

Latex Carrier Corp., Georgia Ports Authority, which op-

erates the port facilities, and the Savannah Maritime As-

sociation, a multiemployer bargaining association repre-

senting longshore employees in the Port. Ward also joined

as defendants Petitioners Local 1414, International Long-

shoremen’s Association, and the International Longshore-

men’s Association, AFL-CIO (“TLA”), the international

union with which Local 1414 is affiliated.

1 Ward’s wife brought an action for loss of consortium and other

damages.

4

Both actions were removed to the United States District

Court for the Southern District of Georgia, Savannah Divi-

sion by a removal petition filed by the ILA on June 17,

1983. At the time that the actions were removed to the

district court, there was also pending before United States

District Court Judge Edenfield an action for exoneration

from or limitation of liability which had been filed by the

owners and charterers of the Oswege ‘enter. The action

for exoneration or limitation had been Sled pursuant to

the Limitation of Liability Act, 46 U.S.C. §282, et seg. The

removed actions were assigned to Judge Edenfield as cases

related to the pending limitation action.

Judge Edenfield proceeded first to a trial of the limita-

tion action. Ward and his wife appeared as claimants in

the limitation case and sought to prove that the vessel

owner and charterer were negligent. In his findings of

fact after trial, Judge Edenfield rejected Ward’s claims.

The court found instead that the accident resulted directly

from the operational negligence of Ward and his fellow

employees, who failed to use the proper equipment while

lowering the boom of the ship. Judge Edenfield’s findings

were affirmed in all respects by the United States Court of

Appeals for the Eleventh Circuit. L&€C Marine Transport,

Ltd. v. Ward, 755 F.2d 1427 (11th Cir. 1985).

Although the Wards had previously. moved to remand

both actions to the state court, Judge Edenfield did not

rule on the motion for remand until after the affirmance

by the Eleventh Circuit in the limitation proceeding.? By

order dated April 29, 1985, Judge Edenfield denied remand

holding that an action under the LHWCA “arises under

2 Under 46 U.S.C. §185, if the shipowner tenders a bond equal

in value te the owner’s interest in the vessel and freight, “all

claims and proceedings against the owner with respect to the

matter in question will cease.” Judge Edenfield apparently relied

on §185 as authority for deferring consideration of the remand

motion until after affirmance by this court in the limitation pro-

ceeding. See Appendix C at 9a-10a.

5

the laws of the United States” and is thus removable under

28 U.S.C. §1441(b). Appendix B at 6a. However, on May

21, 1985, while a motion for summary judgment was penc-

ing, the court sua sponte vacated its prior order and re-

manded the two actions. The basis for the court’s decision

was not that the case had been improvidently removed or

that the court was without jurisdiction, but rather that

the removal would result in plaintiff's being denied a jury

trial:

Persons bringing such common law actions in state

court would be entitled to a trial by jury. In that

connection, according to the explicit mandate of Con-

gress in the “saving to suitors clause,” plaintiffs must

not be thwarted in their attempt to employ their com-

mon law remedies in state court, where a trial by jury

may be obtained.

Appendix C at 13a.

The ILA, Local 1414, ILA and Savannah Maritime As-

sociation petitioned the United States Court of Appeals

for the Eleventh Circuit for a Writ of Mandamus direct-

ing the district court to vacate its order of remand, and to

proceed with the merits of the case.* The Eleventh Circuit

denied the petition, finding that plaintiffs actions were es-

sentially common law maritime negligence actions and, as

such, under the “saving to suitors clause” of 28 U.S.C.

§1333(1), the plaintiffs could pursue the common law

remedy. The court rejected petitioners’ contention that

the 1972 amendments to the LHWCA created a federal

cause of action, arising under the laws of the United States

within the meaning of 28 U.S.C. §1441(b), so as to be re-

8 While 28 U.S.C. §1447(d) provides that an order remanding

a case to a state court is not reviewable, the Supreme Court has

imposed an important limitation on this provision. In Thermton

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), this Court

held that mandamus is available to review remand orders which

are based on grounds other than those provided in §1447(c). See

oe v. M.S. Fire Insurance Co., 531 F.2d 257 (5th Cir.

).

6

movable without regard to the citizenship of the parties.

Appendix A at 3a. It held that the district court’s remand,

was proper.

Petitioners now seek a writ of certiorari to review that

order.

Reasons for Granting the Writ

1. The Case Presents an Important Question as to Whether

§905(b) of the Longshoremen’s and Harbor Workers’

Compersation Act Arises Under the Laws of the United

States.

The writ requested herein should issue because the cen-

tral question presented, namely whether an LHWCA claim

is properly removable to the district court, is of critical

concern to both management and labor in the longshore

industry.

Despite efforts by labor and management to improve

the safety of longshore operations, the large number of

injuries and compensation claims led Congress to enact

the 1972 amendments to the LHWCA. 33 U.S.C. §901, et

seq., as amended. For the fiscal year 1984, the number of

claims brought under the LHWCA totaled 152,073. In the

calendar year 1983 alone, $320,408,600.00 in compensation

and medical benefits was paid out for claims brought under

the LHWCA. Employment Standards Administration, An-

nual Statistical Report: December 1984 at p. 3, January,

1985 at p. 1. Under the 1972 amendments, Congress has

provided both an administrative and a judicial remedy to

claimants. While Section 5(b) provides injured claimants

with a judicial remedy, 33 U.S.C. §905(b), contested com-

pensation claims are also heard by a federally appointed

administrative law judge -nd reviewed by a three-member

Benefits Review Board (“BRB”). The BRB’s decisions

are reviewable in the court of appeals. 33 U.S.C. §$919, 923.

See Northeast Marine Terminal Co. v. Caputo, 432 U.S.

249, 254n.3 (1977). This provision for a dual remedy un--

7

derscores the extent and seriousness of the task of ad-

ministering compensation for injury claims brought under

the LHWCA.

In defining the standard of care applicable to defen-

dants in $905(b) actions, a critical question is presented

as to whether §905(b) is a federal cause of action and,

thus, whether §905(b) claims are removable to federal

court. In Scindia Steam Navigation Co. v. Lauro De Los

Santos, 451 U.S. 156 (1981), this Court was called upon

for the first time to consider the nature of an action under

§905(b).

In Scindia, a longshoreman injured by a defective winch

commenced an action under §905(b) against the vessel

owner. The district court, relying on §§343 and 343A of

the Restatement of Torts, granted summary judgment for

the vessel.‘ The district court was of the view that the

vessel could not foresee that the longshoreman would con-

tinue cargo operations, « »spite knowledge of the dangerous

winch. Id. at 162. Thus, the district court in effect ruled

that the longshoreman was contributorily negligent or as-

sumed the risk of injury. The U.S. Court of Appeals for

the Ninth Circuit reversed the granting of summary judg-

ment to the vessel. In the opinion of the court of appeals,

§§343 and 343A of the Restatement were improper mea-

sures of the shipowner’s liability for negligence under

§905(b) because those sections incorporated notions of

contributory negligence and assumption of the risk that

were inapplicable under the maritime law. According to

the Ninth Circuit, the shipowner could be liable if it failed

to exercise reasonable care to protect the longshoremen

against danger. Id. at 163.

Although this Court affirmed the reversal of summary

judgment, it disagreed with the Court of Appeals as to

*Under §§343 and 343A of the Restatement, an owner of land

is not liable to invitees for harm caused by known dangers, unless

he should expect that the invitee will not discover the danger or

will not protect himself aaginst it. Id. at i61n.

8

the applicable standard of care. The Court stated that the

shipowner had no general duty by way of supervision or

inspection to discover dangerous conditions that develop

during cargo operations. Id. at 172.2 The Court stated

that the definition of the vessel’s negligence was to be re-

solved “through the application of accepted principles of

tort law and the ordinary process of litigation.” However,

the Court found that the legislative history to $905(b) is

unequivocal that, “questions arising in §905(b) cases shall

be determined as a matter of Federal law.” Id. at 165n.

(Emphasis supplied).

Thus, while a federal court may look to established

principles of tort law in deciding LHWCA cases, it is

clear from Scindia that the law which will be created under

§905 is federal law. The Eleventh Circuit’s ruling that

the 1972 amendments to the LHWCA did not create a

federal statutory cause of action for negligence so as to

make removal proper as a federal question under 28 U.S.C.

§1441(b) is clearly inconsistent with Scindia. This court

must resolve this inconsistency, in order to effectuate the

Congressional intent that the federal courts develop and

apply a uniform federal law of negligence in §905(b) cases.

Accordingly, this Court should grant certiorari to re-

solve the important question as to whether a claim brought

under §905(b) of the LHWCA arises under the laws of

the United States.

° However, the Court was of the view that once the shipowner

learns that a dangerous condition exists, there are circumstances

in which he will have a duty to act. Id. at 176.

9

2. The Court Should Grant Certiorari to Resolve a Conflict

Among the Circuits as to the Question of Whether a Claim

Brought Under §905(b) of the Longshoremen’s and Har-

bor Workers’ Compensation Act Arises Under the Laws of

the United States.

Notwithstanding the recent authoritative pronouncement

from this Court in Scindia Steam Navigation Co. v. Lauro

De Los Santos, supra, that §905(b) of the LHWCA estab-

lishes a new federal statutcry cause of action, there exists

a conflict between the Fifth and Third Circuits as to the

federal nature of the statutory remedy. The Eleventh Cir-

cuit has now entered the conflict with its decision below.

The law in the Fifth Cireuit is that §905(b) of the

LHW CA did not create a new federal cause of action for

third party negligence but merely preserved the existing

right of an injured worker to recover damages from third

parties in accord with nonstatutory negligence principles.

Bynum v. Patterson Truck Lines, Inc., 655 F.2d 643 (5th

Cir. 1981) ; Russell v. Atlantic & Gulf Stevedores, 625 F.2d

71 (5th Cir. 1980).

The Third Circuit has taken a position in direct conflict

to the Fifth Circuit’s. Griffith v. Wheeling Pittsburgh Steel

Corp., 610 F.2d 116 (3d Cir. 1979), vacated on other grounds

sub nom. American Commercial Lines, Inc. v. Griffith, 451

U.S. 965 (1981). In applying the standard of care imposed

on vessel owners in §905(b) actions, that court recognized

that Congress, in amending the statute in 1972, intended

common-law negligence principles to be applied on a uni-

form national basis. Jd. at 123. As stated by the court:

[Federal courts may develop on a case by case basis

a uniform federal law of negligence, referring for

guidance to the land-based standards of care estab-

lished in the Restatement (Second) of Torts whenever

such reference accords with the Congressional intent

and is helpful to decision of the case at hand.

Id. at 126.

10

Consistent with this Court’s reasoning in Scindia, the

Third Circuit has made it clear that the law which will be

created under $905(b) is federal law. The significance of

the conflicting treatment of §4905(b) claims as federal or

non-federal statutory causes of action is highlighted by

the plethora of claims brought under this statute and the

millions paid out annually in compensating those claims.

Unless this Court makes a definitive ruling as to the fed-

eral nature of the statute, the conflict among the federal

courts will continue and the Congressional goal for a uni-

form federal law of negligence will be frustrated.

This Court should grant certiorari to resolve the con-

flict among the cireuits and to provide guidance to the

federal judiciary as to whether §905(b) of the LHWCA

arises under the laws of the United States.

CONCLUSION

For the foregoing reasons, Petitioners pray that a writ

of certiorari be issued to review the order of the United

States Court of Appeals for the Eleventh Circuit in this

case.

Dated: October 15, 1985

Respectfully submitted,

Tuomas W. Gizason

90 Broad Street, 6th Floor

New York, New York 10004

(212) 425-3240

Firrmcton & Assor, P.C.

P.O. Box 9378

Savannah, Georgia 31412

Attorneys for Petitioners

Of Counsel:

Cuarues R. GoLipspure

Mavra R. Canin

APPENDIX

Appendix A

Opinion of Court of Appeals

IN THE

UNITED STATES COURT OF APPEALS

For tHe ELEvENTH Circuit

No. 85-8425

Iy Be:

IntesnatTionaL LONGSHOREMEN’s Association, AFL-CIO,

Locan 1414, Internationa, LoNGsHOREMEN’s ASSOCIATION

AFL-CIO, and Savannan Marrrime Association,

Petitioners.

ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES

DISTRICT FOR THE SOUTHERN DISTRICT OF GEORGIA

(July 18, 1985)

Before Vance, Henperson and Cuark, Circuit Judges.

By THE Court:

The petition for a Writ of Mandamus directing the Dis-

trict Court to vacate its remand order is Dentep. The

listrict court has remanded two negligence actions orig-

mally brought in the State Court of Chatham County,

Georgia by plaintiffs Johnny Ward and Linda Ward. as

la

2a

Appendix A—Opinion of Court of Appeals

husband and wife, seeking personal injury and other com-

pensatory damages under the provisions of the Longshore-

men’s and Harbor Worker’s Compensation Act, 33 U.S.C.

§ 905(b), and relevant state law. These two actions were

removed to federal court along with another action brought

by certain defendants seeking exoneration or limitation of

liability pursuant to the Limitation of Liability Act, 46

U.S.C. § 282, et seg. A bond was tendered in the limita-

tion of liability proceeding, and an injunction was entered

staying all other proceedings, including the above-refer-

enced state court actions.

Upon the conclusion of the limitation of liability pro-

ceeding the district court remanded the previously en-

joined negligence actions to the state court for proceedings

on the merits. In its remand order the district court did

not invoke the terms of 28 U.S.C. § 1447(c}, which pro-

vides that the district court shall remand a case if it was

“removed improvidently and without jurisdiction.” Rather,

the district court stated, “plaintiffs initially brought their

claims in state court, and asserted individually their right

to trial by jury, the Court is without power under the

‘saving to suitors clause’ to deny them this right in the

federal forum.”

Orders remanding a case to the state court are not re-

viewable on appeal or otherwise. 28 U.S.C. § 1447(d). A

very narrow exception to this rule was created by the

Supreme Court in Thermtron Products, Inc. v. Hermans-

dorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976),

where the Court held that a writ of mandamus could issue

where a district judge remanded a properly removed case

on grounds he had no authority to consider under 4 1447(c).

Our review of the district court order and the case sub

judice leads us to conclude that the district court remanded

the cause based upon the jurisdictional grounds stated in

§ 1447(c). First, we note that the failure by the district

3a

Appendix A—Opinion of Court of Appeals

court to track the specific language of 4 1447(c¢) is not fatal

to the validity of the order. Division of Archives, History

and Records Management, Departmeni of State v. Austin,

729 F.2d 1292, 1293 (11th Cir. 1984). In re Weaver, 610

F.2d 335, 337 (5th Cir. 1980). Moreover, this court has

interpreted Thermtron “to be strictly limited to those

cases in which a district court has clearly not relied upon

§ 1447(c) in ordering a remand.” In re Weaver, 610 F.2d

at 337.

Here, the district court based its remand order upon

28 U.S.C. § 1333(1), the “saving to suitors clause,” which

gives the federal courts exclusive jurisdiction over mari-

time matters, except in the case where the claimant has

a viable v>mmon law remedy and opts to pursue that route.

The two actions filed by plaintiffs in state court were es-

sentially common law maritime negligence actions. Peti-

tioners/defendants on appeal here allege that the 1972

amendments to the Longshoremen’s and Harbor Worker’s

Compensation Act created a federal maritime negligence

action, making removal proper as a federal question under

§ 1441(b). Both commentators and courts have rejected

this analysis and found that removal of “savings clause”

cases, which are based upon common law maritime negli-

gence, is improper absent diversity of citizenship. See

Armstrong v. Alabama Power Co., 667 F.2d 1385, 1388

(11th Cir. 1982) ‘“[U]nder the reasoning of Romero, [v.

International Terminal Operating Co., 358 U.S. 354, 79

S.Ct. 468, 3 L.Ed.2d 368 (1959)] a federal district court

should not accept the removal of a saving clause case solely

because of its general maritime nature: the maritime

nature simply does not provide a ground for federal juris-

diction.”). See also Giacona v. Capricorn Shipping Co.,

394 F. Supp. 1189 (S.D. Tex. 1975); 14 C. Wright, A.

Miller & E. Cooper, Federal Practice and Procedure § 3674

(1985).

4a

Appendix A—Opinion of Court of Appeals

Clearly, the above reasoning was the basis of the dis-

trict court’s remand, making the remand jurisdictionally

based and within the bounds of § 1447(c). Having found

that the district court’s remand order was based on grounds

specified in § 1447(c) our review abruptly ends, for “Con-

gress immunized from all forms of appellate review any

remand order issued on the grounds specified in § 1447(c),

whether or not that order might be deemed erroneous by

an appellate court.” Thermtron, 423 U.S. at 351, 96 S.Ct.

at 593.

The petition for Writ of Mandamus is Dexmo.

Sa

Annendix B

Order of District Court dated April 23, 1985

UNITED STATES DISTRICT COURT

Soutnern District or Grorora

SavannaH Drvision

Civil Action No. CV 483-228

JoHNNY Wakrp,

Plainiiff,

Vv.

Firestone Tire anp Rusper Co., A Corporation, Osweco

Latex Carrer Corporation, M/V Oswrco PLantsr,

Grorcra Ports AutHority, InrernatTionaL LonesHoRE-

MEN’s Association, Loca, 1414 or THE INTERNATIONAL

LonGsHOREMEN’s Association, SavANNAH Maritime As-

SOCIATION,

Defendants.

Civil Action No. CV 483-229

Linpa Warp,

Plaintiff,

Vv.

Freestone Tree anp Russer Co., A Corporation, Oswreo

Latex Carrier Corporation, M/V Osweco P.Lantsr,

Grorcia Ports Avutuority, InrernatTionaL LonosHore-

MEN’s Association, Loca, 1414 or THE INTERNATIONAL

LonesHoREMEN’s AssoctaTion, SavaNNaH Maritime As-

SOCIATION,

Defendants.

6a

Appendix B—Order of District Court dated April 23, 1985

OrDER

Before the Court are motions by plaintiffs Johnny and

Linda Ward to remand the above cases to the Superior

Court of Chatham County, Georgia. The sole basis for

plaintiffs’ motions is their claim that these actions do not

arise under the laws of the United States within the mean-

ing of the removal statute, 28 U.S.C. §1441(b). The actions

were originally filed in the Superior Court of Chatham

County to recover for personal injuries sustained by plain-

tiff Johnny Ward while he was working as a longshoreman

aboard the vessel M/V Osweco Puianter. The action by

plaintiff Linda Ward is a derivative suit to recover for

loss of services caused by the injuries to her husband. The

Court is well familiar with the facts of this case, having

conducted an extensive trial in a limitation of liability ac-

tion brought by the owner of the vessel. In the matter of

L.£C. Marine Transport Ltd., Civil Action No. CV 481-476,

aff'd No. 84-8303 (11th Cir. 1985).

Although plaintiffs seek to characterize their actions as

arising solely under Georgia law, it is well settled that

the 1972 amendments to the Longshoremen and Harbor

Workers Compensation Act created a new federal cause

of action for injuries sustained during the course of mari-

time employment. 33 U.S.C. §902; Griffith v. Wheeling

Pittsburgh Steel Corp., 610 F.2d 116, 129 (3rd Cir. 1979).

Thus, 33 U.S.C. §905 provides the injured longshoreman

with both a judicial and an administrative remedy against

his employer. Under 33 U.S.C. §933, the longshoreman

may also commence an action against a third party who

may be responsible for the injury. These actions clearly

arise under the laws of the United States. Accordingly,

plaintiffs’ motions to remand these actious are in all re-

spects denied.

So Orperep, this 23rd day of April, 1955.

/s/ B. Avant EpenFiecp

Judge, United States District Court,

Southern District of Georgia

7a

Appendix C

Order of District Court dated May 21, 1985

IN THE

UNITED STATES DISTRICT COURT

For tHe SoutHern District or GEoRGIA

SavannaH Division

CV 483-197

JoHNNY Warp,

Plaintiff,

Vs.

L. & C. Marrne Transport, Lrv., Firestone Tire & Russer

Co., Osweco Latex Carrrer Corp., and Marre Trans-

port Linzs, Inc.,

Defendants.

CV 483-198

Lixpa Warp,

Plaintiff,

vs.

L. & C. Marntne Transport, Lrp., Firestone Tire & Ruspper

Co., Osweco Latex Carrier Corp., and Marine Trans-

port Livgs, Ixc.,

Defendants.

8a

Appendiz C—Order of District Court dated May 21, 1985

CV 483-228

JoHNNY Wasp,

Plaintiff,

vs.

Firestone Trre anp Russer Co., A Corporation, OswEco

Latex Carrer Corporation, M/V Osweco PLaNnTsr,

Grorcia Ports AutHority, IntrernationaL LonGsHoRE-

MEN’s Association, Locan 1414 or tHe INTERNATIONAL

LoNGSHOREMEN’s AssociaTION, Sava.tNaH Maritime As-

SOCIATION,

Defendants.

and

CV483-229

Linpa Warp,

Plaintiff,

Vs.

Freestone Tree anpD Russer Co., A Corporation, OswEeco

Latex Carrrer Corporation, M/V Osweco PLanTEr,

Grorcia Ports Aut ~or:ty, InrernatTionaL LonGsHORE-

“MEN’s AssocraTion, Locan 1414 or THE INTERNATIONAL

LoNGSHOREMEN’s AssociaTion, SavannaH Maritime As-

SOCIATION,

Defendants.

OrvDER

Pending before this Court are four actions concerning

claims by plaintiffs Johhny Ward and Linda Ward, as

husband and wife, for personal injury and other com-

9a

Appendiz C—Order of District Court dated May 21, 1985

pensatory damages asserted under the provisions of the

Longshoremen’s and Harbor Worker’s Compensation Act,

33 U.S.C. § 905(b), and relevant state law. These actions

arose out of injuries sustained by Johnny Ward when he

was struck by a flailing steel cable while attempting to rig

a cargo boom on board the vessel Oswego Planter. Two

of the four actions, specifically styled Johnny Ward v.

Firestone Tire ard Rubber Co., a corporation, Oswego

Latex Carrier Corporation, M/V Oswego Planter, Georgia

Ports Authority, International Longshoremen [sic] Asso-

ciation, Local 1414 of the International Longshoremen [sic]

Association, Savannah Maritime Association, Civil Action

No. 483-228, and Linda Ward against the same defendants,

Civil Action No. 483-229, were removed to this Court from

the State Court of Chatham County, Georgia by a petition

filed on June 17, 1983. Also pending before the Court on

that date was an action for exoneration from or limitation

of liability filed on October 29, 1981, pursuant to the Limi-

tation of Liability Act, 46 U.S.C. § 282, et seg. This latter

ection was brought by plaintiffs owners and charterers of

the vessel Oswego Planter, specifically, L. & C. Marine

Transport Ltd., as owner of the vessel on which Johnny

Ward sustained personal injury while employed as a long-

shoreman, and Oswego Latex Carrier Corporation, as op-

erator of the vessel Oswego Planter, and Firestone Tire &

Rubber Company, as stockholder of L. & C., for the purpose

of assuring that the liability for any damage attributable

to the incident complained of in the state court actions, if

found to have been occasioned without the privity or knowl-

edge of the shipowner, would not exceed the value of the

vessel Oswego Planter, together with her pending freight

at the time of the incident.

According to provisions of the Limitation of Liability

Act, if at the time the complaint is filed, the shipowner

tenders to the court either a bond equal in value to the

owner’s interest in the vessel and freight, or that interest

10a

Appendia C—Order of District Court dated May 21, 1985

itself, “all claims and proceedings against the owner with

respect to the matter in question will cease.” 46 U.S.C.

§ 185. In the instant case, a bond was tendered, and an

injunction was entered staying all other proceedings, in-

cluding the above referenced state court actions.

On May 25, 1983, plaintiffs Johnny Ward and Linda

Ward filed their individual claims in the limitation pro-

ceeding. These remaining two of the four actions referred

to previously are styled Johnny Ward v. L. & C. Marine

Transport, Ltd., Firestone Tire & Rubber Company, Os-

wego Latex Carrier Corporation, and Marine Transport

Lines, Inc., Civil Action No. 483-197, and Linda Ward

against the same defendants, Civil Action No. 483-198.

A non-jury trial of the limitation of liability action was

commenced on January 30, 1984. Following the close of

evidence on February 1, 1984, the Court granted plaintiffs’

motion for involuntary dismissal with respect to Firestone

Tire & Rubber Company and Marine Transport Lines,

Inc., on the finding that claimants Johnny and Linda Ward

failed to present sufficient evidence for the Court to pierce

the corporate veils of the two parent companies so as to

impose upon them liability that allegedly existed on the

part of the subsidiary corporations. Moreover, by an Order

entered on March 23, 1984, the Court found in favor of

the remaining plaintiffs in toto, thereby exonerating them

from any charge of negligence or claim of liability arising

from the incident at issue. The claimants appealed this

ruling, including the grant of the motion for involuntary

dismissal of Firestore and Marine Transport. The Eleventh

Circuit affirmed this Court’s decision as to all issues by

L. & C. Marine Transport, Ltd., 755 F.2d 1457 (11th Cir.

1985). Accordingly, the Ward’s claims in the limitation

proceeding, namely, Civil Actions 483-198 ard 483-197, have

been adjudicated and found to be without merit.

At the same time, the two state court actions referred

to previously as having been removed to this Court on June

lla

Appendix C—Order of District Court dated May 21, 1985

17, 1983, were affected by the limitation of liability pro-

ceeding, as each of the four plaintiffs in the limitation ac-

tion either were exonerated from liability or involuntarily

dismissed from any claims arising from the incident at

issue. These pending actions still contain unresolved issues

of liability, however, notwithstanding the Court’s Order of

exoneration or involuntary dismissal of the vessel’s owners

and charterers, because such Order did not rule out the

possibility that the remaining parties named as defendants

in the state court actions acted negligently, and that such

negligence proximately caused the incident at issue. Those

remaining defendants include the International Longshore-

men [sic] Association, Local 1414 of the International Long-

shoremen [sic] Association, and the Savannah Maritime

Association.’

The Wards individually requested remand of these ac-

tions to the State Court of Chatham County, Georgia, by

motions filed on June 27, 1982. Plaintiffs by their motions

allege that their individual causes of action arise out of

personal injuries sustained by a longshoreman, and the

suits were instituted purposefully in a state court with

demands for jury trials; plaintiffs contend that according

to controlling decisions, such actions cannot be removed

to federal court, citing Calderola v. Eckeru, 332 U.S. 155

(1947); Giaconi v. Capricorn Shipping Company, 394 F.

Supp. 1189 (S.D.Tex. 1975); Rain v. Compania Maritime

Belge S.A., 318 F. Supp. 319 (S.D.N.Y. 1970). Defendants

responded to this motion by contending, essentially, that

the 1972 amendments to the Longshoremen’s and Harbor

Worker’s Compensation Act, which is the statutory basis

for plaintiff husband’s claim, created a new federal cause

1Georgia Ports Authority also was named as a defendant in

the state court actions; however, it has been represented to this

Court both orally by counsel for plaintiffs and by lack of pleading

on behalf of this defendant that it was dismissed from these ac-

tions prior to their removal to this Court.

12a

Appendia C—Order of District Court dated May 21, 1985

of action “arising under” the laws of the United States,

thereby according jurisdiction on this Court.’

The Court having knowledge of the facts underlying

this dispute, as a consequence of having tried the limita-

tion of liability action, sought to exercise judicial economy

by maintaining and resolving the outstanding issues in

these actions in the forum in which they were pending

following their removal. Accordingly, the Court entered

an Order on April 29, 1985 denying plaintiffs’ motions for

remand to the state court. However, upon sua sponte

reconsideration, the Court hereby finds it necessary to

vacate that Order and remand these actions, for the fol-

lowing reasons.

First, the Court recognizes that district courts have

original jurisdiction, exclusive of the state courts, in “[a]ny

civil case of admiralty or maritime jurisdiction, saving to

suitors im all cases all other remedies to which they are

otherwice entitled.” 28 U.S.C. § 1333 (emphasis added).

It is not disputed that plaintiff husband’s claim is mari-

time in nature, and therefore concerns a subject accorded

federal jurisdiction. Essentially, however, plaintiffs seek

damages resulting from the alleged negligence of the

named parties, and for plaintiff wife’s consequential loss

of consortium. Significantly, for purposes of the “saving

to suiters” clause, the “tort action for negligence was not

derived from a federal statute [, as defendants contena,]

2 As an incidental matter, the Court reminds tle parties that

removal jurisdiction is purely derivative of state court jurisdic-

tion. Minnesota v. United States, 305 U.S. 382, 389 (1939). “Where

the state court lacks jurisdiction of the subject matter or of the

parties, the federal court acquires none, although in a like suit

originally brought in a federai court it would have had jurisdic-

tion.” Id. (citations omitted) ; McRory v. Hobart Bros. Co., Inc.,

732 F.2d 1533, 1535 (11th Cir. 1984). Accordingly, whether a

federal court has exclusive jurisdiction to entertain a particular

claim is not a proper issue for defendants to raise in response

to a motion for remand.

13a

Appendia C—Order of District Court dated May 21, 1985

but from the general maritime law,” Giacona v. Capricorn

Shipping Co., 394 F. Supp. 1189, 1191 (S.D.Tex. 1975),

and the loss of consortium claim is merely a derivative of

it, under state law. Clark v. Wright, 137 Ga. App. 720, 722

(1976). Negligence asserted under general maritime law

and loss of consortium asserted under state law are com-

mon law remedies, rather than causes of action “arising

under” the Constitution, laws, or treaties of the United

States.

Persons bringing such common law actions in state court

would be entitled to a trial by jury. In that connection,

according to the explicit mandate of Congress in the “sav-

ing to suitors clause,” plaintiffs must not be thwarted in

their attempt to employ their common law remedies in

state court, where a trial by jury may be obtained. Lake

Tankers Corp. v. Henn, 354 U.S. 147, 153 (1956).

Thus, because plaintiffs initially brought their claims

in state court, and asserted individually their right to

trial by jury, the Court is without power under the “saving

to suitors clause” to deny them this right in the federal

forum. See Bynum v. Patterson Truck Lines, Inc., 655 F.2d

643, 644 (5th Cir. Unit A 1981) (in a claim filed in federal

court under 33 U.S.C. §905(b) and based on maritime

jurisdiction, there is no right to a jury trial).

Accordingly, the Clerk of this Court is instructed to

vacate the Court’s Order entered on April 29, 1985, and

remand these actions, namely, Civil Actions 483-228 and

483-229, to the State Court of Chatham County, Georgia.

The Clerk is further instructed to dismiss Civil Actions

483-198 and 483-197, with prejudice.

So Ornperep, this 21 day of May, 1985.

/s/ B. Avant EpENFIELD

Judge, United States District Court

Southern District of Georgia