# Petition for Writ of Certiorari — International Longshoremen's Ass'n, Local 1414 v. Ward > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0898%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 1008 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0898%3A1. Public record. Not legal advice.