Petition for Writ of Certiorari — Bandila Shipping Inc. v. Ghotra ex rel. Ghotra

oe,

So 9% © BV B SEP 29 1997

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

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BANDILA SHIPPING INC.; PALM MARITIME S.A.; and

the M/V GRACIOUS, her Engines, Tackle, Apparel,

Furniture and Appurtenances, In Rem,

Petitioners,

V.

ERICA KAUR GHOTRA and RAVINDER SINGH

GHOTRA, minors, by SUSAN GHOTRA, their guardian

ad litem; SUSAN GHOTRA, as Administrator of the

Estate of KULDIP S. GHOTRA; AMOLAK SINGH

GHOTRA, and SARJIT KAUR GHOTRA,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

&

PETITION FOR WRIT OF CERTIORARI

S

Dawn M. ScHock

Counsel of Record

ALBERT E. Peacock III

WILuIAM J. BRIDGEN

KEESAL, YOUNG & LOGAN

A Professional Corporation

400 Oceangate

Post Office Box 1730

Long Beach, California 90801-1730

Telephone (562) 436-2000

Attorneys for Petitioners

Bandila Shipping Inc.;

Palm Maritime S.A. and the

M/V GRACIOUS, her Engines,

Tackle, Apparel, Furniture and

Appurtenances, In Rem

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 A pv

OR CALL COLLECT (402) 342-2831 6 on

QUESTION PRESENTED

Federal Rule of Civil Procedure 9(h) requires a plain-

tiff with a claim cognizable both under admiralty and

diversity jurisdiction to make an election. If the plaintiff

elects to proceed in admiralty, he or she obtains certain

benefits, including the ability to arrest and proceed

against a vessel in rem, to force the owners of the vessel to

appear without service of process on them, and to obtain

pretrial security on the claim. By electing to proceed in

admiralty, however, the plaintiff gives up the right to a

jury trial under Rule 38(e). If, on the other hand, the

plaintiff elects to proceed under diversity jurisdiction, he

or she has a right to a jury trial, but cannot reap the

benefits provided under the admiralty rules. In the Fifth

Circuit, a plaintiff who combines admiralty and diversity

claims in a single lawsuit must elect between admiralty

or diversity for the entire case, but cannot choose both. In

the Fourth Circuit and now in the Ninth Circuit, a plain-

tiff need not elect between admiralty and diversity juris-

diction but, instead, can proceed under both.

In order to resolve the split among the Circuit Courts

of Appeals and insure uniformity in maritime law, Peti-

tioners present the following issue: Is a claimant who

brings a lawsuit in rem against a vessel in admiralty,

designates that he is electing admiralty jurisdiction for

that claim under Rule 9(h), and utilizes the special pro-

cedures available only in admiralty by arresting the ves-

sel entitled to a jury trial because he annexes in personam

causes of action in diversity?

il

PARTIES’ DISCLOSURE STATEMENT

Petitioner Bandila Shipping Inc. (“Bandila”), incorpo-

rated in the Philippines, has no parent companies or

subsidiaries. The parent companies to Petitioner Palm

Maritime S.A. (“Palm”), are Nichimen Corporation, Trad-

ing House in Japan, and Mar de Gloria S.A.

lil

TABLE OF CONTENTS

Page

SOS yg 8 OR:

PARTIES’ DISCLOSURE STATEMENT.............. ii

Se A iii

BE PF OED oo ns vc cn clncsusencscsces vi

ee eu 5 ss spac uk men ws cena os l

EE ee re 1

STATUTORY PROVISIONS INVOLVED............. 2

1. Federal Rule of Civil Procedure 9(h)......... 2

ete eh, ke eek ek b 6k deka dee ces 2

pammaeeees OT Trib CASE................000055, 2

REASONS WHY THIS PETITION SHOULD BE

EN Ae le ers bo 4b ba ee be wd Cu ree es +

I. THERE IS A CONFLICT AMONG THE FIFTH,

NINTH AND FOURTH CIRCUIT COURTS OF

APPEALS AS TO WHETHER THE ASSERTION

OF DIVERSITY CLAIMS IN THE SAME COM-

PLAINT WITH AN ADMIRALTY CLAIM

REQUIRES A JURY TRIAL OF THE ENTIRE

Ee OVE Pie. beck kaw bo Gide svc cede ss es 4

A. In the Fifth Circuit Court of Appeals There

Is No Right to a Jury Trial in an Action That

Contains Both In Rem Claims in Admiralty

and In Personam Claims in Diversity...... 4

IT.

If.

iv

TABLE OF CONTENTS - Continued

Page

B. With the Decision Sought to Be Reviewed,

the Ninth Circuit Has Placed Itself in Con-

flict With the Fifth Circuit by Requiring a

Jury Trial of In Rem Claims When Combined

VUE BORER SC BROIND oon snc vienna gnsewes

C. Like the Ninth Circuit, the Fourth Circuit

Court of Appeals Requires a Jury Trial of

Admiralty Claims that Are Combined with

Ro | errr Serre Tee

REVIEW IS IMPORTANT TO MAINTAIN UNI-

FORMITY AMONG CASES INTERPRETING

THE COURTS’ ADMIRALTY JURISDICTION ..

REVIEW IS WARRANTED BECAUSE THE NINTH

CIRCUIT’S OPINION ABROGATES THE RULES

OF CIVIL PROCEDURE WHICH SEEK TO PRE-

SERVE THE TRADITION OF NONJURY TRIALS

ie aS ae te) Saree ne

A. Historically the Federal Courts Sitting in

Admiralty and Those Sitting at Law

Employed Separate Procedures............

B. The Distinctions Between Admiralty and at

Law Procedures, Including the Tradition of

Nonjury Trials in Admiralty, Were Preserved

After the 1966 Merger of the Law and Admi-

ralty Departments of the Federal Courts...

C. The Seventh Amendment Does Not Compel

A, FOES TEtOl TA Ne Gas oF ces

88 esi 8 er Per er rr err Mir ene

TABLE OF CONTENTS - Continued

Page

Pig y |) 8 > a ee eee rs oer eS App. 1

RPE ES ia 6 vi ks 03 ve8 ed ObbeeereaCkeee eee App. 27

3: et Sam et: etn: App. 30

vi

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Durden v. Exxon Corp., 803 F.2d 845 (5th Cir. 1986)

6 ENERO O SOO CCED ROHS EELS EEORAU COO MEAMATEA EERE OES 5,6

Fitzgerald v. United States Lines Co., 374 U.S. 16, 10

L.Bd.2d 720, 63 SCA. 1666 (ISGS). . .cscceccsccss 14, 15

Ghotra v. Bandila Shipping, Inc., M/V GRACIOUS,

her Engines, Tackle, Apparel, Furniture Appurte-

nances, in rem, 113 F.3d 1050 (9th Cir. 1997)........ 6

Gilmore v. Waterman Steamship Corp., 790 F.2d 1244

(Sr Che. 10GB) oo cv cccecciccegedscatasetereiaisass 5

Jose v. M/V FIR GROVE, 765 F.Supp. 1037 (D.Ore.

1991) ooo c cece cece cecucucueucueevevcueucucueeee, 13

Kearney v. Case, 12 Wall. (79 U.S.) 275, 20 L.Ed. 395

CRE o5 och i oy 058 e5 b 408 545 6b eee ke EE EEETEN TCO ES 14

Madruga v. Superior Court, 346 U.S. 556, 98 L.Ed.

290, 74 S.Ct. 296 (19GG) oc ccscccceveneteuassvevades 9

Miles v. Apex Marine, 498 U.S. 19, 112 L.Ed.2d 275,

LUE SOR. BEF CORD occa rcctcvsnanesrvdiaiedeiannes 7

T.N.T. Marine Serv. v. Weaver Shipyards, 702 F.2d

585 (5th Cir. 1983), cert. denied, 464 U.S. 847, 78

L.Ed.2d 141, 104 S.Ct. 151 (1983)........... 4, 5, 6, 13

The Sarah, 21 U.S. 391 (8 Wheat.) ................005. )

Truehart v. Blandon, 685 F.Supp. 956 (E.D. La.

1988), rev’d on other grounds, 884 F.2d 223 (5th

Cig, 1909) .cscsvseececontvvcetind savas wiaawaew 13

U.S. v. Moore, 340 U.S. 616, 95 L.Ed. 582, 71 S.Ct.

SGA (19BE) «cogs cacaccaceeescne dhe 14

Vil

TABLE OF AUTHORITIES —- Continued

Page

Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th

eines NU ag Gs Ales in ee ek Kea eae nen 7

FEDERAL STATUTES

Advisory Committee Notes to the 1966 Amend-

ment to Federal Rule of Civil Procedure 9........ 10

Amendments to the Federal Rules of Civil Procedure,

UE Ss SUE MONS ek a cad F646 kA sae 68s cee es 10

Federal Rule of Civil Procedure 9(h)............ passim

Federal Rule of Civil Procedure 38(e)......... : ti: 33

er eli es bored a pcbese ns coer Venkat ]

ee ee ID oon. 4'6 Gia Finns oe ees Ode eben eke oie 2

po ae ee ree a Ae

es ee, ES ce an cauw ea Gast abe seue sus y

MISCELLANEOUS

August, Trial by Jury in a Court of Admiralty, 13 J.

peat: &. Ge Com. BGR, TG, TOD CAGE) cos cc ccc cccccs 4

Schoenbaum, Admiralty and Maritime Law (2d Ed.

SE cones eden ceed hee eek ae Seen LeuekG x esabO dee bbb es 8

PETITION FOR WRIT OF CERTIORARI

Petitioners, BANDILA SHIPPING INC.; PALM MAR-

ITIME S.A. and the M/V GRACIOUS, her Engines, Tackle,

Apparel, Furniture and Appurtenances, In Rem, respect-

fully petition for a Writ of Certiorari to review the judg-

ment of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The decision of the Ninth Circuit Court of Appeals is

reported at 113 F. 3d 1050 (9th Cir. 1997) and is repro-

duced in the Appendix beginning at page App. 1.

The Order of the United States District Court for the

Central District of California is not reported and is repro-

duced in the Appendix beginning at page App. 27.

The Order of the Ninth Circuit Court of Appeals

denying rehearing is reproduced in the Appendix begin-

ning at page App. 30.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). The decision of the Ninth Circuit Court

of Appeals reversing in part, affirming in part, and

remanding for new trial was filed on May 13, 1997 (App.

27). Petitioners’ request for rehearing was filed on May

27, 1997 and was denied on July 1, 1997 (App. 30).

iii |

STATUTORY PROVISIONS INVOLVED

1. Federal Rule of Civil Procedure 9(h):' “A pleading

or count setting forth a claim for relief within the admi-

ralty and maritime jurisdiction that is also within the

jurisdiction of the district court on some ground may

contain a statement identifying the claim as an admiralty

or maritime claim for the purposes of Rule 14(c), 38(e),

82, and the Supplemental Rules of Certain Admiralty and

Maritime Claims. If the claim is cognizable only in admi-

ralty, it is an admiralty or maritime claim for those pur-

poses whether so identified or not.”

2. Rule 38(e): “Admiralty and Maritime Claims.

These rules shall not be construed to create a right to trial

by jury of the issues in an admiralty or maritime claim

within the meaning of Rule 9(h).”

STATEMENT OF THE CASE

This case arises from the death of Captain Kuldip

Ghotra who was killed aboard the M/V GRACIOUS

while acting as a marine surveyor in 1991. Captain

Ghotra’s survivors and estate filed a Complaint for

wrongful death, common law negligence, and breach of

warranty against Petitioner Bandila Shipping Inc. (“Ban-

dila”), the owner of the M/V GRACIOUS, and Kawasaki

Kaisen Kaisha the charterer of the vessel who settled

before trial. Diversity jurisdiction under 28 U.S.C.

§ 1332(a)(2) was alleged for these causes of action and a

jury was demanded. The Complaint also alleged an in rem

! All further statutory references are to the Federal Rules of

Civil Procedure unless otherwise noted.

renee

claim against the vessel. That cause of action was alleged

to be “an admiralty and maritime claim within the mean-

ing of Rule 9(h)” and jurisdiction was based on 28 U.S.C.

§ 1333(1). The Complaint was verified to conform to Rule

C(2) of the Federal Rules of Civil Procedure, Supplemen-

tal Rules for Admiralty and Maritime Claims (“Admiralty

Rules”).

Contemporaneous with the filing of the verified

Complaint, the Ghotras filed an ex parte application for an

order authorizing the issuance of a warrant for the arrest

of the vessel pursuant to Admiralty Rule C and Local

Admiralty Rules C and E. The vessel was arrested later

that day by U.S. Marshals. Bandila provided a letter of

undertaking in the amount of $2,250,000 to the Ghotras to

release the vessel pursuant to Admiralty Rule E(5) and

Local Admiralty Rule C.1. The letter of undertaking was

subsequently replaced by a bond. Pursuant to the terms

of the letter of undertaking, Admiralty Rule C(6) and

Local Rule C.1, Bandila filed a verified claim by owner

and thereby was forced to appear in the action by virtue

of the vessel’s in rem arrest without service of process

being perfected on it in the Philippines.

The Ghotras then filed First and Second Amended

Complaints, which again sought remedies available only

in admiralty, asserted both diversity and admiralty juris-

diction and contained jury demands.

A related lawsuit against Petitioner Palm Maritime

S.A. (“Palm”), as owner of the vessel, was consolidated

with the action against Bandila. This complaint was also

verified to comply with Admiralty Rule C(2).

—_—

The matter was tried to the Court without a jury, the

District Court having granted Petitioners’ motion to

strike the jury demand.

The Ninth Circuit Court of Appeals reversed the

District Court on this issue and remanded for a jury trial.

In doing so, the Ninth Circuit acknowledged a conflict

with the Fifth Circuit but declined to adopt that Court's

“restrictive perspective.” Finding support in a case

decided by the Fourth Circuit Court of Appeals, the

Ninth Circuit held instead that the tradition of nonjury

trials in admiralty must give way to the plaintiff's Sev-

enth Amendment right to a jury trial.

REASONS WHY THIS PETITION

SHOULD BE GRANTED

I. THERE IS A CONFLICT AMONG THE FIFTH,

NINTH AND FOURTH CIRCUIT COURTS OF

APPEALS AS TO WHETHER THE ASSERTION OF

DIVERSITY CLAIMS IN THE SAME COMPLAINT

WITH AN ADMIRALTY CLAIM REQUIRES A JURY

TRIAL OF THE ENTIRE ACTION.

A. In the Fifth Circuit Court of Appeals There Is

No Right to a Jury Trial in an Action That Con-

tains Both In Rem Claims in Admiralty and In

Personam Claims in Diversity.

In cases nearly identical to the present one, the Fifth

Circuit has refused to allow a jury trial. In T.N.T. Marine

Serv. v. Weaver Shipyards, 702 F.2d 585, 588 (5th Cir. 1983),

cert. denied, 464 U.S. 847, 78 L.Ed. 2d 141, 104 S.Ct. 151

(1983), the complaint was styled as one against

“WEAVER SHIPYARDS & DRY DOCKS, INC. in personam

and against the tug OCEAN WIND, her engines, tackle,

mere ener meet

ul

apparel, etc. in rem.” Id. at 588. The complaint alleged

diversity jurisdiction and stated that it was also a “suit

for breach of a maritime contract and for maritime tort.”

Id. at 587. Although there was no express election under

Rule 9(h), the Fifth Circuit found that this statement in

the complaint identified the claim as an admiralty claim

under Rule 9(h). Id. at 587. The Fifth Circuit found on that

basis that the plaintiff had elected to proceed in admiralty

under Rule 9(h) despite the invocation of diversity juris-

diction for its in personam claims.

Because the in rem claim was within the exclusive

admiralty jurisdiction of the District Court, the Fifth Cir-

cuit found that “there would be no right to trial by jury as

to any in rem claims brought against the vessel.” Id. at

588. Therefore, due to the existence of the in rem claim,

there was no right to a jury trial to any claim in the

action, even those based on diversity.

Thereafter, the Fifth Circuit applied the holding in

T.N.T. in Durden v. Exxon Corp., 803 F.2d 845 (5th Cir.

1986). See also, Gilmore v. Waterman Steamship Corp., 790

F.2d 1244, 1246 (5th Cir. 1986). In Durden, the complaint

was filed against the M/V SANKO PRESTIGE in rem and

against the vessel owners and operators in personam. The

complaint alleged both admiralty and diversity jurisdic-

tion and requested a jury trial. Id. at 847. As in T.N.T. no

express election was made under Rule 9(h). Nevertheless,

because the in rem claim invoked “the unique power of

the admiralty court”, the Durden court found that the

plaintiff had elected to proceed in admiralty pursuant to

Rule 9(h) and precluded a jury trial as to all claims, even

the in personam claims based on diversity. Id. at 849.

In the Fifth Circuit, therefore, the present lawsuit -

containing both exclusive admiralty and diversity claims

— would be tried to the court, not to a jury.

B. With the Decision Sought to Be Reviewed, the

Ninth Circuit Has Placed Itself in Conflict With

the Fifth Circuit by Requiring a Jury Trial of In

Rem Claims When Combined With Diversity

Claims.

The Ninth Circuit recognized its conflict with the

Fifth Circuit in the underlying decision when it stated:

... the Fifth Circuit has steadfastly restricted the

use of a jury trial on claims brought under

diversity jurisdiction where combined with in

rem admiralty claims . . . We reject such a restric-

tive perspective.

Ghotra v. Bandila Shipping, Inc., M/V GRACIOUS, her

Engines, Tackle, Apparel, Furniture, Appurtenances, in rem,

(App. 13-14).

Like the plaintiffs in T.N.T. and Durden, the Ghotras

here filed suit against both the vessel in rem and its

owners and operators in personam. Like the in personam

claims in T.N.T. and Durden, those in the underlying case

were based in diversity. Unlike the plaintiffs in the Fifth

Circuit cases discussed, however, the Ghotras expressly

elected admiralty jurisdiction under Rule 9(h) for their in

rem claim. That express election is not materially different

from the election found by the Fifth Circuit in T.N.T. and

Durden implied by the plaintiffs’ stating in rem claims. In

every material respect, therefore, the cases are the same,

thus raising a conflict among the Circuit Courts of

Appeals.

C. Like the Ninth Circuit, the Fourth Circuit Court

of Appeals Requires a Jury Trial of Admiralty

Claims that Are Combined with Diversity

Claims.

The Ninth Circuit found support for its decision

below in the Fourth Circuit’s opinion in Vodusek v.

Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995). While

that case did not involve an in rem claim, the complaint

expressly elected admiralty jurisdiction under Rule 9(h)

for claims against a non-diverse defendant. The com-

plaint also alleged claims in diversity against another

defendant. Id. at 151.

The Fourth Circuit held that a jury trial was required

for both the diversity and the admiralty claims.

Il. REVIEW IS IMPORTANT TO MAINTAIN UNI-

FORMITY AMONG CASES INTERPRETING THE

COURTS’ ADMIRALTY JURISDICTION.

The need for uniformity in the application of mar-

itime law has long been recognized by this Court. Miles v.

Apex Marine, 498 U.S. 19, 111 S. Ct. 317, 112 L.Ed.2d 275

(1990). In fact, the initial constitutional grant of jurisdic-

tion over admiralty claims to the federal courts was to

provide for “uniform rules of law for the business of

shipping, to facilitate maritime commerce, to apply uni-

form remedies for persons traveling or working on navi-

gable waters in connection with these maritime

activities.” Schoenbaum, Admiralty and Maritime Law (2d

Ed. 1994), p. 6.

The need for uniformity is particularly pronounced

in the present case because it involves the procedures for

invoking the federal courts’ admiralty jurisdiction and

abrogates certain of the Federal Rules of Civil Procedure

designed to preserve critical distinctions between admi-

ralty and general civil jurisdiction, among them, the non-

jury component in admiralty. As the law now stands, an

admiralty plaintiff in the Fifth Circuit who has a basis for

some claims in diversity must choose between the admi-

ralty jurisdiction of the federal court with its attendant

admiralty procedures such as vessel arrest and diversity

jurisdiction with its attendant right to a jury trial.

Whereas in the Ninth and Fourth Circuits, the same

plaintiff need not make that choice since he can - as the

Ghotras will now be allowed to do — both employ the

exclusive procedures of an admiralty action and obtain a

jury trial on all of his claims.

This conflict undermines the uniform application of

the maritime law.

Ill. REVIEW IS WARRANTED BECAUSE THE NINTH

CIRCUIT’S OPINION ABROGATES THE RULES

OF CIVIL PROCEDURE WHICH SEEK TO PRE-

SERVE THE TRADITION OF NONJURY TRIALS

IN ADMIRALTY ACTIONS.

A. Historically the Federal Courts Sitting in

Admiralty and Those Sitting at Law Employed

Separate, Procedures.

The significance of the jurisdictional issue posed by

the present case is best understood within the historical

context of the traditional division between courts of

admiralty and the civil courts. Prior to the enactment of

the Constitution, admiralty and law courts were separate

in the colonies. See, August, Trial by Jury in a Court of

Admiralty, 13 J. Mar. L. & Com. 149, 154, 168 (1982).

Article III, § 2 of the Constitution preserved the concept

of a separate admiralty jurisdiction by delineating the

federal courts’ powers as extending “to all Cases of admi-

ralty and maritime Jurisdiction.” U.S. Const. Art. III. The

concept of a distinct admiralty jurisdiction was then cod-

ified in 1789 in the precursor to the present-day statute

found at 28 U.S.C. § 1333, which now provides that “the

district courts . . . shall have original jurisdiction, exclu-

sive. 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... . ”2 |

During this period and prior to 1966, the same fed-

eral court sitting in admiralty and law applied very dif-

ferent rules pertaining to the procedures and remedies

available. The pronounced differences between the two

departments prompted the Court in The Sarah, 21 U.S. 391

(8 Wheat.) (1823) to note that while law and admiralty

were “vested in the same tribunal, they are as distant

from each other as if they were vested in different tribu-

nals and can no more be blended than a Court of Chan-

cery with a Court of common law.” Id. at 394.

2 While the 1789 statute was amended in 1948, that

amendment did not change its meaning. Madruga v. Superior

Court, 346 U.S. 556, 560, n. 12, 98 L.Ed. 290, 74 S.Ct. 298 (1954).

10

B. The Distinctions Between Admiralty and at

Law Procedures, Including the Tradition of

Nonjury Trials in Admiralty, Were Preserved

After the 1966 Merger of the Law and Admiralty

Departments of the Federal Courts.

In 1966 there was an attempt to blend the law and

admiralty departments of the federal courts with the

merger of the civil and admiralty rules of procedure.

Amendments to the Federal Rules Civil Procedure, 383 U.S.

1031 (1966). But while that merger was intended to sim-

plify court procedures, it explicitly was not intended to

remove all distinctions between a suit in admiralty and a

suit at law. As indicated in the Advisory Committee

Notes to the 1966 Amendment to Rule 9, “[c]ertain dis-

tinctive features of the admiralty practice must be pre-

eee

Indeed, many of the procedures distinctive to admi-

ralty cases were re-codified during the 1966 merger and

so were preserved. As explained by the Advisory Com-

mittee:

[T]here is no disposition to change the present

law as to interlocutory appeals in admiralty, or

as to the venue of suits in admiralty; and, of

course, there is no disposition to inject into the

civil practice as it now is the distinctively mar-

itime remedies (maritime attachment and gar-

nishment, actions in rem, possessory, petitory

and partition actions and limitation of liability).

Adv. Comm. Notes to Rule 9(h).

Primary among the distinctions between suits in

admiralty and cases at law which was to be preserved

after the merger was the tradition of nonjury trials in

NR tc ccna al

11

admiralty. The primacy of the intent to preserve the non-

jury distinction is evident both in the federal rules them-

selves and in the advisory committee’s explanatory notes

to those rules.

Rule 38(e) states:

Admiralty and Maritime Claims. These

rules shall not be construed to create a right to

trial by jury of the issues in an admiralty or

maritime claim within the meaning of Rule 9(h).

Rule 38(e).

Rule 9(h), in turn, allows a plaintiff with a pleading

or count that may be brought in admiralty or diversity

jurisdiction to elect admiralty jurisdiction by including “a

statement identifying the claim as an admiralty or mar-

itime claim for the purposes of Rules 14(c), 38(e), 82 and

the Supplemental Rules of Certain Admiralty and Mar-

itime Claims.” A claim that may only sound in admiralty

is an admiralty: claim for the purposes of Rule 9(h)

whether so identified or not.

The explanatory note to Rule 9(h) states:

Certain distinctive features of the admiralty

practice must be preserved for what are now

suits in admiralty. This raises the question: After

unification, when a single form of action is

established, how will the counterpart of the

present suit in admiralty be identifiable? In part

the question is easily answered. Some claims for

relief can only be suits in admiralty, either

because the admiralty jurisdiction is exclusive

or because no nonmaritime ground of federal

jurisdiction exists. Many claims, however, are

cognizable by the district courts whether

12

asserted in admiralty or in a civil action, assum-

ing 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 privi-

lege given by the saving-to-suitors clause (28

U.S.C. § 1333) or by equivalent statutory provi-

sions. .. . One of the important procedural con-

sequences 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.

It is no part of the purpose of unification to

inject a right to jury trial into those admiralty

cases in which that right is not provided by

statute. Similarly . . . there is no disposition to

inject into the civil practice as it now is the

distinctively maritime remedies (maritime

attachment and garnishment, actions in

rem, . . . ). The unified rules must therefore

provide some device for preserving the present

power of the pleader to determine whether

these historically maritime procedures shall be

applicable to his claim or not; the pleader must

be afforded some means of designating his claim

as the counterpart of the present suit in admi-

ralty, where its character as such is not clear. .

Other methods of solving the problem were

carefully explored, but the Advisory Committee

concluded that the preferable solution is to

allow the pleader who now has power to deter-

mine procedural consequences by filing a suit in

admiralty to exercise that power under unifica-

tion, for the limited instances in which pro-

cedural differences will remain, by a simple

13

statement in his pleading to the effect that the

claim is an admiralty or maritime claim.

Adv. Comm. Notes to Rule 9(h).

As the Fifth Circuit noted in T.N.T., “[n]umerous and

important consequences flow from whether a district

court treats a case as falling under admiralty or diversity

jurisdiction.” T.N.T., 702 F.2d 585, 586-87. Due to those

“numerous and important consequences” attendant to

admiralty jurisdiction, Rule 9(h) codified a choice

between admiralty and other bases of jurisdiction. By

making the Rule 9(h) election to proceed in admiralty, a

plaintiff can secure the special procedures contained in

the Supplemental Admiralty Rules. See, Rule 9(h). But in

making the Rule 9(h) election to proceed in admiralty, a

plaintiff also forgoes a trial by jury. See, Rule 38(e).

“Election . . . by its own terms implies that one

course must be chosen over another.” Jose v. M/V FIR

GROVE, 765 F.Supp. 1037, 1040 (D.Ore. 1991). See also,

Truehart v. Blandon, 685 F. Supp. 956 (E.D. La. 1988), rev'd

on other grounds, 884 F. 2d 223 (5th Cir. 1989). By allow-

ing the Ghotras to arrest the vessel in order to secure

jurisdiction over the in personam defendant and proceed

to a jury trial, the Ninth Circuit has nullified the Rule 9(h)

election.

C. The Seventh Amendment Does Not Compel A

Jury Trial in this Case.

Central to the Ninth Circuit’s reasoning in this case

was the belief that the Ghotras’ Seventh Amendment

right to a jury trial took precedence over their election

14

under Rule 9(h) to proceed in admiralty. Yet, this Court

has long held that the right to a jury trial can be waived.

U.S. v. Moore, 340 U.S. 616, 621, 95 L. Ed. 582, 71 S. Ct. 524

(1951); Kearney v. Case, 12 Wall. (79 U.S.) 275, 281, 20 L.Ed.

395 (1870).

The Ninth Circuit based its reasoning in this regard

in part on this Court’s decision in Fitzgerald v. United

States Lines Co., 374 U.S. 16, 10 L. Ed. 2d 720, 83 S. Ct.

1646 (1963). That case allowed a jury‘trial of an exclusive

admiralty claim that was combined with a Jones Act

claim based on diversity. Fitzgerald differs from the pres-

ent case in two material respects, however: the Jones Act

creates a statutory right to a jury trial — a fact not present

in the case at bar —- and the Fitzgerald opinion pre-dated

the 1966 codification of the Rule 9(h) election.

The importance of these distinctions is revealed in

the Advisory Committee Notes to Rule 9(h) which state:

It is no part of the purpose of unification to

inject a right to jury trial into those admiralty

cases in which that right is not provided by statute.

Adv. Comm. Notes to Rule 9(h) (emphasis added).

Enacted after the Fitzgerald decision, the Rule 9(h)

election sought to preserve a claimant's statutory right to

a jury. Rule 9(h), however, expressly allows the election in

cases such as the present one where no statutory right to

+ While the Ghotras’ First Amended Complaint added a

statutory claim under the Longshore and Harbor Workers

Compensation Act, that statute does not contain a provision for

a jury trial.

ENE Sin acc

15

a jury exists. Fitzgerald, therefore, does not support the

interpretation of Rule 9(h) applied by the Ninth Circuit.

The Ghotras in this case elected to proceed both in

admiralty and diversity, obtaining the benefits of both

without any of the burdens. In essence, they have been

allowed to proceed in admiralty without making any

election under Rule 9(h).

CONCLUSION

For these reasons, Petitioners request that this Court

grant this Petition for Certiorari to the Ninth Circuit

Court of Appeals.

Dated: September 29, 1997.

Respectfully submitted,

Dawn M. ScHocKk

Counsel of Record

AvBerT E. Peacock III

WILLIAM J. BRIDGEN

KEESAL, YOUNG & LOGAN

A Professional Corporation

400 Oceangate

Post Office Box 1730

Long Beach, California 90801-1730

Telephone (562) 436-2000

Attorneys for Petitioners

Bandila Shipping Inc.;

Palm Maritime S.A. and the

M/V Gracious, her Engines,

Tackle, Apparel, Furniture and

Appurtenances, In Rem

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICA KAUR GHOTRA, minor, by Susan Ghotra her

guardian ad litem; RAVINDER SINGH GHOTRA, minor,

by Susan Ghotra, his guardian ad litem; SUSAN

GHOTRA, an individual, and as administratrix of

the Estate of Kuldip S. Ghotra; AMOLAK SINGH

No. 93-56326

GHOTRA; and SARJIT KAUR GHOTRA,

Plaintiffs-Appellants,

D.C. No.

CV-91-5469-RSWL

OPINION

BANDILA SHIPPING, INC.; “M/V GRACIOUS”,

her Engines, Tackle, Apparel, Furniture and

.Appurtenances, in rem.

Defendants-Appellees,

V.

PALM MARITIME, S.A., Defendant.

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted March 7, 1996 -

Pasadena, California

Filed May 13, 1997

App. 2

Before: Harry Pregerson, Thomas G. Nelson, Circuit

Judges, and David Alan Ezra,* District Judge

Opinion by Judge Ezra

SUMMARY

COUNSEL

Michael W. Lodwick, Frank C. Brucculeri, Fisher & Porter,

Long Beach, California, for plaintiffs-appellants Erica

Kaur Ghotra and Ravinder Singh Ghotra, Minors, by

Susan Ghotra, Their Guardian Ad Litem; Susan Ghotra;

Susan Ghotra, as Administrator of the Estate of Kuldip S.

Ghotra.

Dennis M. Elber, Stolpman, Krissman, Elber, Mandel &

Katzman, Long Beach, California, for plaintiffs-appellants

Amolak Singh Ghotra and Sarjit Kaur Ghotra.

Albert E. Peacock III, Robert D. Feighner, Lisa K. Dona-

hue, Keesal, Young & Logan, Long Beach, California, for

defendants-appellees.

*Honorable David Alan Ezra, United States District Judge for

the District of Hawaii, sitting by designation.

App. 3

OPINION

EZRA, District Judge.

We decide whether the family of a marine surveyor

who died from injuries incurred aboard the M/V Gra-

cious was entitled to a jury trial on the claims brought

under the court’s diversity jurisdiction, whether they

may recover under state law for wrongful death, whether

the decedent was owed a higher standard of care than the

district court applied, and whether the family was enti-

tled to recover for predeath pain and suffering. For the

foregoing reasons, we reverse in part, affirm in part, and

remand.

I.

In September 1991, charterer Kawasaki Kisen Kaisha

(“K-Line”) through its local agent Kerr Steamship Com-

pany (“Kerr”) hired Captain Kuldip S. Ghotra (“Captain

Ghotra”), a marine surveyor, to coordinate and inspect

the progress of the hold cleaning work being done by

Mesa Services (“Mesa”) aboard the M/V Gracious. On

September 30, 1991, Captain Ghotra boarded the M/V

Gracious to inspect the cleaning and painting of Hold No.

3. In the presence of Mesa supervisor Ricardo Cervantes

(“Cervantes”), Captain Ghotra twice told Chief Mate

Roberto Guzman (“Guzman”) to go open the forward

hatch cover and then return to the port side of Hold No.

3, where they were standing. Before Guzman returned,

Captain Ghotra and Cervantes boarded a manlift/cherry-

picker and began inspecting Hold No. 3. The opening

App. 4

hatch cover became entangled with the manlift basket

and broke the safety bar around the basket. Captain

Ghotra and the basket fell to the bottom of the hold.

Captain Ghotra suffered massive internal injuries and

died shortly thereafter on the ship. Captain Ghotra’s

minor children, widow, estate and parents (“Appellants”

or “the Ghotras”) thereafter brought the instant action

against the M/V Gracious, its owner, Bandila Shipping

Inc. (“Bandila”), and the charterer K-Line.

In their original complaint filed on October 8, 1991,

the Ghotras asserted three causes of action (wrongful

death, common law negligence, and breach of warranties)

against Bandila and K-Line under the court’s diversity

jurisdiction and an in rem claim against the M/V Gra-

cious under the court’s admiralty jurisdiction. Upon Ban-

dila’s motion, the district court struck the Ghotras’

wrongful death and breach of warranties claims and gave

the Ghotras leave to amend their Complaint, which they

did twice. In their Second Amended Complaint, the

Ghotras alleged common law negligence, gross negli-

gence, and negligence under section 905(b) of the Long-

shore & Harbor Workers’ Compensation Act (“LHWCA”)

against Bandila and K-Line pursuant to the court’s diver-

sity jurisdiction, with a corresponding demand for jury

trial, and reiterated the in rem claim against the M/V

Gracious. The Ghotras also filed a separate suit alleging

common law negligence and gross negligence under the

court’s diversity jurisdiction against Palm Maritime S.A.

(“Palm”) as owner of the M/V Gracious; this action was

consolidated for trial with the action against K-Line and

Bandila.

App. 5

In pretrial motions by Bandila, Palm and the M/V

Gracious,! (collectively the “Vessel Interests”), the district

court held that the Ghotras (a) were not entitled to

recover for Captain Ghotra’s predeath pain and suffering,

and (b) were not entitled to trial by jury for the claims

brought under the court’s diversity jurisdiction. The dis-

trict court subsequently conducted a three-day bench trial

and awarded judgment to the Vessel Interests. The dis-

trict court held that Bandila and Palm were not negligent,

after finding that under the circumstances, the Vessel

Interests only owed Captain Ghotra a low degree of care.

The court entered judgment on August 26, 1993, dismiss-

ing the Second Amended Complaint with prejudice and

awarding costs to Bandila and Palm. The Ghotras filed

notice of appeal on September 15, 1993.

The following issues were presented to this court on

appeal: (1) whether the district court committed constitu-

tional and legal error in denying the Ghotras the right to

a jury trial for claims brought under the court’s diversity

jurisdiction; (2) whether the district court erred in ruling

that federal maritime law preempts California law in a

wrongful death action arising within the navigable

waters of the United States; (3) whether the district court

committed reversible error in holding the Vessel Interests

to a lower standard of care; and (4) whether the district

court erred in granting summary judgment on the

Ghotras’ claim for post-accident, predeath pain and suf-

fering based on Ninth Circuit law and facts presented to

the court.

1 The Ghotras settled with K-Line before trial and K-Line

was dismissed as a party from this suit pursuant to stipulation.

App. 6

After oral argument, this court remanded the case to

the district court for further consideration in light of the

United States Supreme Court’s recent decision in Yamaha

Motor Corp. v. Calhoun, __ U.S. __, 116 S.Ct. 619 (1996),

with the instruction to pay particular attention to the

question of whether Captain Ghotra was a seafarer within

the meaning of the LHWCA at the time of his death.

The district court, after considering the Supreme

Court’s decision in Yamaha, the briefs filed, and the

arguments of counsel, concluded that Captain Ghotra

was a seafarer for purposes of the LHWCA and that

therefore state law wrongful death remedies were pre-

empted by federal maritime law. The parties requested

permission to file supplemental briefing on the subject,

which this court granted.

Il.

Questions of law are reviewed de novo. Anderson v.

United States, 966 F.2d 487, 489 (9th Cir. 1992). The grant-

ing of summary judgment is also reviewed de novo.

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.

1995), cert. denied, __ U.S. __, 116 S.Ct. 1261 (1996);

Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130

(9th Cir. 1994); T.W. Elec. Serv., Inc. v. Pacific Elec. Con-

tractors Ass’n, 809 F.2d 626, 629 (9th Cir. 1987). Our

review is governed by the same standard used by the trial

court under Federal Rule of Civil Procedure 56(c); view-

ing the evidence in the light most favorable to the non-

moving party, we must determine whether there are any

genuine issues of material fact and whether the district

App. 7

court correctly applied the substantive law. Warren, 58

F.3d at 441; Jesinger, 24 F.3d at 1130.

Il.

The district court struck the Ghotras’ jury demand

based on its findings that (a) because federal maritime

law regarding wrongful death preempted state law, there

was no state law cause of action and thus no right to trial

by jury, and (b) because the Ghotras expressly sought

remedies under general federal maritime law in all four

causes of action, the Ghotras had no claim cognizable in

the court’s general civil jurisdiction.

Under Federal Rule of Civil Procedure 9(h), “{a]

pleading or count setting forth a claim for relief within

the admiralty and maritime jurisdiction that is also

within the jurisdiction of the district court on some other

ground may contain a statement identifying the claim as

an admiralty or maritime claim. ...” The Ghotras clearly

stated that their first, second, and fourth causes of action

were predicated on diversity jurisdiction, not admiralty.

They also specifically made a jury trial demand for each

of these three claims. The third claim is an in rem claim

against the vessel, and the Ghotras attempted to secure a

jury trial for this claim as well by requesting that the

court exercise pendent jurisdiction over the claim.

28 U.S.C. § 1333(1) provides that “[t]he 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.” The latter

clause, known as the “savings to suitors” clause, “leave[s]

App. 8

state courts ‘competent’ to adjudicate maritime causes of

action in proceedings ‘in personam,’ that is, where the

defendant is a person, not a ship or some other instru-

ment of navigation.” Madruga v. Superior Court of Cali-

fornia, 346 U.S. 556, 560-61 (1954). The savings to suitors

clause also permits the plaintiff to bring an action “at

law” in the federal district court, provided the require-

ments of diversity of citizenship and amount in contro-

versy are met. In re Chimenti, 79 F.3d 534, 537 (6th Cir.

1996) (quoting 14 Charles A. Wright, Arthur R. Miller, &

Edward H. Cooper, Federal Practice and Procedure: Juris-

diction S 3672, at 431-33 (1985)).

Therefore, a plaintiff with in personam maritime

claims has three choices: He may file suit in federal court

under the federal court’s admiralty jurisdiction, in federal

court under diversity jurisdiction if the parties are div-

erse and the amount in controversy is satisfied, or in state

court. The difference between these choices 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 diver-

sity or brought in state court. Fed. R. Civ. P. 38;? see In re

Air Disaster Near Honolulu, Hawaii, 792 F. Supp. 1541,

1546 (N.D.Cal.1990) (citations omitted). The same sub-

stantive law pertains to the claim regardless of the forum,

2 Federal Rule of Civil Procedure 38(a) provides in full:

“The right of a trial by jury as declared by the Seventh

Amendment to the Constitution or as given by a statute of the

United States shall be preserved to the parties inviolate.” 38(e)

clarifies that “These rules shall not be construed to create a right

to trial by jury of the issues in an admiralty or maritime claim

within the meaning of Rule 9(h).”

App. 9

a type of “reverse-Erie” to ensure the uniform application

of admiralty law. Offshore Logistics, Inc. v. Tallentire, 477

U.S. 207, 222 (1986); Pope & Talbot, Inc. v. Hawn, 346 US.

406 (1953); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372,

384 (1918).

Therefore, the district court mischaracterized the

issue before it. It appears that the district court believed

that because general admiralty law would be the substan-

tive law applied to the claims, the Ghotras had no claim

cognizable in the court’s general civil jurisdiction and no

claim which would give rise to a jury trial. In essence, the

district court required the Ghotras to specify the common

law basis for their claims before they could proceed with

a jury.’ This view overlooks the fact that common law

courts traditionally exercised concurrent jurisdiction over

maritime cases. See Linton v. Great Lakes Dredge & Dock

Co., 964 F.2d 1480, 1485 (5th Cir. 1992), cert. denied, 506

U.S. 975 (1992) (citing Thomas J. Schoenbaum, Admiralty

and Maritime Law S 3-13 n.2 (1987) (policy basis for

concurrent jurisdiction is that “the common law courts

had the power to hear such cases prior to the adoption of

the Constitution”)). Instead, the proper focus is on

whether the suit could have been brought at “common

law,” that is, whether the court had an independent basis

for jurisdiction and whether this was the type of claim

that historically could be broughi in state court or on the

law side of the district court. See Wilmington Trust v.

> Illustrated by footnote 1 of the district court’s order,

which found meritless the Ghotras’ attempt to characterize the

claims as common law claims by noting that under California

law, a wrongful death action is purely statutory.

App. 10

United States Dist. Ct., 934 F.2d 1026, 1029 (9th Cir. 1991)

(“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 juris-

diction. Thus at present the pleader has power to deter-

mine procedural consequences by the way in which he

exercises the classic privilege given by the saving-to-

suitors clause.” (quoting Fed. R. Civ. P. 9(h) advisory

committee’s notes to 1966 amendment)), cert. denied, 503

U.S. 966 (1992); Trentacosta v. Frontier Pac. Aircraft

Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987) (where

plaintiff has independent basis of jurisdiction for his mar-

itime claims, claims are not “cognizable only in admi-

ralty” and plaintiff’s “election to invoke jurisdiction on

the ‘law side’ of the court (as opposed to the ‘admiralty

side,’) therefore, precludes [the court from] treating his

maritime claims as admiralty claims. . .. ” (internal

citations omitted)); see also Linton, 964 F.2d at 1484, n.7

(naming several maritime remedies not available in an

action “at law”: in rem actions, actions for limitations of

liability, and other remedies excluded from “law” by

express statutory provision).

The Ghotras’ first, second, and fourth causes of

action, alleging negligence, gross negligence, and negli-

gence under section 905(b) of the LHWCA, are in per-

sonam maritime claims that could have been brought “at

common law.” Seas Shipping Co. v. Sieracki, 328 U.S. 85,

88-89 (1946) (negligence); G. Gilmore & C. Black, The Law

of Admiralty 450 (2d ed. 1975) (section 905(b) embraces in

personam claims as well as in rem claims). Diversity

jurisdiction existed and was asserted by the Ghotras as

the jurisdictional basis for these claims. Therefore, we

renee

App. 11

find the Ghotras were entitled to a jury trial on those

claims. See Craig v. Atlantic Richfield Co., 19 F.3d 472,

476 (9th Cir.) (“where a federal court has an independent

basis of jurisdiction over cases involving admiralty

claims, such as diversity of citizenship, both the defen-

dant and plaintiff have a right to demand a jury trial

under the Seventh Amendment so long as the suit is one

that could traditionally have been brought ‘at common

law.’”), cert. denied, 513 U.S. 875 (1994); Wilmington

Trust, 934 F.2d at 1029 (“The ‘savings-to-suitors’ clause

establishes the right of a party to choose whether to

proceed within the court’s admiralty jurisdiction or gen-

eral civil jurisdiction when both admiralty and non-admi-

ralty federal jurisdiction exist.”).

Even though we find that the district court struck the

Ghotras’ demand for a jury trial on an erroneous basis,

the question remains whether the assertion of an in rem

claim in the same complaint with the diversity claims

serves to preclude the right to jury trial. We conclude that

it does not.

The Seventh Amendment guarantees a jury trial in

cases at common law.4 In admiralty cases, however, the

Seventh Amendment neither requires jury trials nor for-

bids them. Fitzgerald v. United States Lines Co., 374 U.S.

16, 20 (1963). In Fitzgerald, the Supreme Court held that

where the complaint alleged a Jones Act claim, with the

* The Seventh Amendment provides in relevant part: “In

Suits at common law, where the value in controversy exceeds

twenty dollars, the right of trial by jury shall be preserved, ... ”

App. 12

accompanying statutory right to jury trial, and a mainte-

nance and cure claim, a traditional admiralty remedy,

both issues were to be tried by jury. Id. at 21. The

Supreme Court premised this decision on a finding that it

had the power and responsibility to fashion rules of

admiralty. Id. at 20. Because the separation of the action

into trial by jury for the Jones Act claim and bench trial

for the maintenance and cure claim resulted in a cumber-

some, confusing, and time consuming process, the exer-

cise of such power was proper when both claims arose

out of the same set of facts. Id. at 21. The Court con-

cluded that “[o]nly one trier of fact should be used for the

trial of what is essentially one lawsuit to settle one claim

split conceptually into separate parts because of pro-

cedural developments.” Id.

Applying the same reasoning to facts similar to the

instant case, the Fourth Circuit concluded that where the

plaintiff sued one defendant at law under diversity juris-

diction and the other defendant in admiralty because

diversity did not exist between the plaintiff and that

defendant, a jury trial on all claims was proper. Vodusek

v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995). The

defendant argued that because complete diversity did not

exist, there was no jurisdictional basis for the claims

brought “at law,” and therefore, no right to jury trial at

all. Id. at 152. The Fourth Circuit rejected this argument

as failing to recognize that the federal courts are enabled

by the Federal Rules to exercise their power in the three

historically separate departments within a single case. Id.

at 154. Reasoning that if the plaintiff had filed separate

suits, she would have had a jurisdictional basis to pro-

ceed with each, the court concluded that the fact that

Niicninemtinmeemcmcetnmienieieieiii i ia iia

App. 13

both were combined into one suit did not destroy the

existence of diversity jurisdiction. Id. at 154.

Moreover, because all the claims arose from the same

accident and the same resulting injuries, the court deter-

mined that the same considerations underlying Fitzgerald

were present; submitting both claims to the jury would

ensure that neither duplicative nor inadequate damages

were awarded and would avoid the problem of applying

principles of collateral estoppel. Id. at 153-54. The Fourth

Circuit concluded that not only was the plaintiff entitled

to jury trial on the claims brought under the court’s

diversity jurisdiction, but also that the entire case was

properly submitted to the jury. Id.

In contrast, the Fifth Circuit has steadfastly restricted

the use of a jury trial on claims brought under diversity

jurisdiction where combined with in rem admiralty

claims. In Powell v. Offshore Navigation, Inc., 644 F.2d

1063 (5th Cir.), cert. denied, 454 U.S. 972 (1981), the

plaintiff combined admiralty claims against a non-diverse

defendant and the vessel with savings-clause claims sup-

ported by diversity jurisdiction over other defendants.

Fearing “the abolition of the complete diversity require-

ment in maritime cases” and an unwarranted expansion

of the use of jury trial in maritime cases, the Fifth Circuit

concluded that the plaintiff was not entitled to a jury

trial. Id. at 1069.

Thereafter, in T.N.T. Marine Serv. v. Weaver Ship-

yards, 702 F.2d 585, 588 (5th Cir.), cert. denied, 464 U.S.

847 (1983), the Fifth Circuit held that the plaintiff had no

right to a jury where he alleged both in personam and in

rem claims. In addition to alleging diversity jurisdiction,

App. 14

the plaintiff's complaint contained a statement that “this

is also a suit for breach of maritime contract and for

maritime tort.” Id. at 587. Although the plaintiff made no

formal 9(h) election, the court concluded that the plaintiff

elected to bring the entire suit in admiralty based on the

statement in his pleading and the fact that he alleged a

claim against the vessel in rem. Id. at 587-88. As such, he

had no right to a jury. Id. at 588.

The Fifth Circuit has interpreted T.N.T. Marine to

hold that where a plaintiff asserts both admiralty and

diversity jurisdiction in the same complaint, it constitutes

an election to proceed in admiralty alone without a jury.

See Durden v. Exxon Corp., 803 F.2d 845 (5th Cir. 1986);

Gilmore v. Waterman Steamship Corp., 790 F.2d 1244,

1246 (5th Cir. 1986); Truehart v. Blandon, 685 F. Supp. 956,

959-60 (E.D.La.1988).

We reject such a restrictive perspective. The Fifth

Circuit’s reasoning unnecessarily constrains the flexibility

created by the unification of the historically separate

departments of “law” and admiralty by the Federal Rules

of Civil Procedure in 1966. Moreover, the Ninth Circuit

has previously recognized that “the non-jury component

of admiralty jurisdiction must give way to the seventh

amendment” and “that the liberal joinder rules permit

‘legal and equitable causes to be brought and resolved in

one civil action’ and preserve any statutory or constitu-

tional right to a jury trial.” Wilmington Trust, 934 F.2d at

1031. In Wilmington Trust, we held that the plaintiff's

election to proceed in admiralty did not deprive the

defendant of the right to jury trial on joined counter-

claims and noted that such a holding “may result in an

entire case being tried before a jury. This result is likely to

App. 15

occur if all claims are closely related factually.” Id. at 1032

(citing Fitzgerald, 374 U.S. at 21).

The Ghotras invoked the jurisdiction of two histori-

cally separate departments in a single action, combining

claims at law under diversity jurisdiction with an in rem

claim under admiralty jurisdiction. Under the Seventh

Amendment, the Ghotras were entitled to a jury trial on

the claims brought under the court’s diversity jurisdic-

tion. We find nothing inherently incongruous about

bringing an in rem and an in personam claim together

before the jury when the claims arise out of a single

occurrence. Although the right to jury trial in the instant

case derives from the savings to suitors clause rather than

a statutory grant such as the Jones Act, the reasoning of

Fitzgerald is equally persuasive and justifies a jury trial

over all four claims, where the in rem claim arises out of

the same factual circumstances as the other three claims.

Contrary to the Vessel Interests’ argument, such a holding

would not “completely eliminate the election required

under F.R.C.P. Rule 9(h)” or “nullify E.R.C.P. Rule 38(e) in

all maritime cases in which a separate basis for subject

matter jurisdiction could be articulated.” Appellee’s Brief

at 21-22.

In light of the fact that the Ghotras could have

brought two separate actions, one consisting of the in

personam claims brought under diversity and one consis-

ting solely of the in rem claim, which could then have

been consolidated into one action under Federal Rule of

Civil Procedure 42(a),5 we find no reason to penalize the

° Federal Rule of Civil Procedure 42(a) provides that

“[w]hen actions involving a common question of law or fact are

App. 16

Ghotras by ruling that the decision to combine the two

into one single action constituted an election to proceed

in admiralty alone without the right to jury trial. Such a

holding would run contrary to the intent of the Federal

Rules of Civil Procedure and result in a waste of judicial

resources and duplication of testimony in parallel actions.

Furthermore, because the Federal Rules contain provi-

sions designed to prevent artificially constructed diver-

sity actions that do not contain all necessary parties, we

have not “opened the floodgates” to allow jury trials in

all maritime cases. See Fed. R. Civ. P. 19. Finally, the

Ghotras clearly asserted diversity as the jurisdictional

basis for the in personam claims in each of their Com-

plaints. This is not a case where the Ghotras changed

their mind as to the jurisdictional basis in the midst of

litigation. Nor is it a case where the Ghotras utilized the

advantages of in rem procedures then turned around to

use the same claim as the basis for diversity jurisdiction.

See Jose v. M/V Fir Grove, 765 F. Supp. 1037, 1039

(D.Or.1991). We conclude therefore that the Ghotras were

entitled to a jury trial on their entire action.

The Vessel Interests maintain that any error resulting

from striking the jury demand was harmless, as the dis-

trict court was not required to resolve any factual dis-

putes. The Vessel Interests contend that the facts were

uncontroverted, and therefore this court should consider

pending before the court, it may order a joint hearing or trial of

any or all the matters in issue in the actions; it may order all the

actions consolidated; and it may make such orders concerning

proceedings therein as may tend to avoid unnecessary costs or

delay.”

App. 17

the matter as one for summary judgment. Considering,

however, that the matter proceeded to trial and that

negligence claims are generally not disposed of on sum-

mary judgment, we do not consider the matter as one for

summary judgment and instead REMAND the case to the

district court for a new trial consistent with this opinion.

We address the remaining issues, however, to provide

guidance to the district court on remand.

IV.

The district court ruled that federal maritime law

preempts California law in a wrongful death action aris-

ing within navigable waters of the United States. The

Vessel Interests argued, and the district court agreed, that

Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970)

and its progeny in the Ninth Circuit stand for the propo-

sition that federal maritime law preempts state wrongful

death statutes. See Evich v. Morris, 819 F.2d 256, 257-58

(9th Cir.), cert. denied, 484 U.S. 914 (1987); Nygaard v.

Peter Pan Seafoods, 701 F.2d 77 (9th Cir. 1983); Nelson v.

United States, 639 F.2d 469 (9th Cir. 1980). The Ghotras

argued that Moragne added the availability of a remedy

under general maritime law and that Moragne did not

terminate the application of comparable state wrongful

death statutes for deaths occurring in territorial waters.

During the pendency of this appeal, the Supreme

Court decided Yamaha Motor Corp. v. Calhoun, ___ US.

__, 116 S.Ct. 619 (1996), which held that Moragne does

not preempt application of the state wrongful death

remedies in accident cases where the decedent is not “a

seaman, longshore worker, or person otherwise engaged

App. 18

in a maritime trade.” Accordingly, we remanded the case

to the district court for the limited purpose of determin-

ing whether Captain Ghotra was a seafarer within the

meaning of the Longshore and Harbor Worker’s Compen-

sation Act.

Upon remand, the district court interpreted Yamaha

as guided by several factors: an interest in providing

adequate and uniform remedies for seamen, longshore-

men, harbor workers and others engaged in maritime

trade, an observation that Congress had already provided

wrongful death remedies to maritime workers, and a

recognition that the spirit of Moragne had been to expand

remedies rather than contract them. The district court

further understood Yamaha to be based upon the fact that

the decedent, a twelve-year-old girl killed in a jet ski

accident, was not covered by any comprehensive statu-

tory scheme and that the interests in uniformity guiding

Moragne were not operative to her set of facts.

Applying the reasoning of Yamaha, the district court

distilled the issue to whether Captain Ghotra was a “sea-

farer” or “nonseafarer” as the terms were used by the

Supreme Court. Because the parties agreed that Captain

Ghotra was not a seaman for purpose of the Jones Act,

the district court evaluated Captain Ghotra’s status solely

by reference to the LHWCA. After recognizing that the

LHWCA defines an employee as “any person engaged in

maritime employment” and provides an injured maritime

worker with two remedies, one against his employer and

one against third party vessel owners, the district court

concluded that Captain Ghotra was a seafarer within the

meaning of the LHWCA. In so holding, the district court

rejected the Ghotras’ argument that Captain Ghotra’s

App. 19

self-employed status places him outside the scope of the

LHWCA. The district court additionally noted in further

support for this conclusion that Captain Ghotra satisfied

the traditional “status” and “situs” test and reasoned that

he should be treated similarly to other marine surveyors

and workers.

We then gave the parties leave to file supplemental

briefing regarding the district court’s decision on

remand. The Ghotras contend that the district court erred

in finding Captain Ghotra a “seafarer” within the mean-

ing of the LHWCA because the LHWCA does not apply

to self-employed persons.

The Vessel Interests maintain that the district court

was correct in finding Captain Ghotra a seafarer based on

a comparison of the circumstances in Yamaha and in the

instant case. Specifically, the Vessel Interests note that

Captain Ghotra was a marine surveyor, hired by a ship-

ping company to inspect cargo holds and killed while

performing these duties, as opposed to a child on vaca-

tion killed while riding a rented recreational jet ski. The

Vessel Interests maintain that the interest in uniform

application of maritime remedies is paramount because

LHWCA S 905(b) provides the exclusive remedy for his

death. Moreover, the Vessel Interests argue that it is irrel-

evant that Captain Ghotra is self-employed and cannot

make a claim against an “employer” under § 905(a)

because the LHWCA does not exempt out self-employed

contractors, because he could make a claim against the

vessel under § 905(b), and because the LHWCA does not

set forth a minimum number of employees or require that

the employer and employee be separate entities. They

conclude that the combination of these two sections

App. 20

makes the LHWCA a “comprehensive tort recovery reg-

ime” within the meaning of Yamaha, and therefore state

remedies are inappropriate.

We agree with the district court. “Congress’ specific

aim when it enacted the original version of the LHWCA

in 1927 was ‘to fill the void created by the inability of the

States to remedy injuries on navigable waters.’ ...A

central purpose underlying the LHWCA was thus to cre-

ate ‘a uniform compensation system’ .. . ” Kollias v. D &

G Marine Maintenance, 29 F.3d 67, 74 (2nd Cir. 1994), cert.

denied, 115 S.Ct. 1092 (1995) (citations omitted). The

Ghotras urge this court to treat Captain Ghotra differ-

ently from other marine surveyors on the basis that Cap-

tain Ghotra is self-employed.

Indisputably, Captain Ghotra satisfied the status and

situs test for coverage under the LHWCA; he was killed

on a vessel on navigable waters while engaged in tradi-

tional maritime employment. See Northeast Marine Ter-

minal Co. v. Caputo, 432 U.S. 249, 265 (1977). To treat him

differently because he was self-employed would contra-

dict the overall goal of uniformity among workers doing

the same type of work and would promote unpredic-

tability among vessel owners, charterers, and others who

do not directly hire marine workers, but may ultimately

be liable to those injured in maritime employment. See

Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1137 (5th Cir.

1995) (“Uniformity and predictability are important in

admiralty.”)

Moreover, Captain Ghotra falls within the LHWCA’s

literal definition of “employee.” An “employee” is

App. 21

defined as “any person engaged in maritime employ-

ment, ... ” 33 U.S.C. S 902(3). The definition does not

include any requirement that the employee be employed

by a separate “employer” entity. The Ghotras rely upon

Crowell v. Benson, 285 U.S. 22 (1932) to require a “master-

servant” relationship for coverage under the LHWCA.

However, Crowell and the other cases cited by the

Ghotras address recovery against an employer pursuant

to the LHWCA’s remedial scheme. We do not disagree

that the requirement of a “master-servant” relationship

may be necessary to justify liability without fault against

a putative employer. However, the fact that Captain

Ghotra is unable to recover against an employer under

the instant circumstances does not take him out of the

scope of the LHWCA.

Captain Ghotra was indistinguishable from any other

person aboard the M/V Gracious. He was hired by

K-Line to perform maritime tasks; he was an “employee”

in the practical sense of the word. Moreover, he is entitled

to pursue a claim against the vessel under section 905(b)

of the Act. Given the paramount goal of uniformity and

predictability and the peculiar circumstances of this case,

we find the district court correctly found Captain Ghotra

a “seafarer” within the meaning of Yamaha and affirm the

district court’s ruling that state wrongful death remedies

are preempted by federal maritime law.

V.

The district court held that the duty of care owed to

Captain Ghotra was that of ordinary care under the cir-

cumstances. After reviewing the evidence presented at

App. 22

trial, the district court concluded that “under these cir-

cumstances, a low standard of care is applied.”

The Ghotras argue that the district court erred by

applying a lower standard of care. The Ghotras contend

that the Vessel Interests owed Captain Ghotra a duty to

exercise reasonable care under the circumstances even

though he was an independent contractor. The Ghotras

analogize this case to Cook v. Exxon Shipping Co., 762

F.2d 750, 751-52 (9th Cir. 1985), cert. denied, 475 U.S. 1047

(1986) and De Los Santos v. Scindia Steam Navigation

Co., Ltd., 598 F.2d 480 (9th Cir. 1979), aff’d, 451 U.S. 156

(1981). In Cook and De Los Santos, the Ninth Circuit held

that where injury is caused by equipment or in an area

under the direct or “active control” of the owner, the

vessel owner owes a duty of reasonable care to a long-

shoreman.

The Vessel Interests contend that the district court

did in fact apply the standard urged by the Ghotras, as

set forth in Kermarec v. Compagnie Generale Transatlan-

tique, 358 U.S. 625, 630 (1959). In Kermarec, the Supreme

Court held that “the owner of a ship in navigable waters

owes to all who are on board for purposes not inimical to

his legitimate interests the duty of exercising reasonable

care under the circumstances of each case.” 358 U.S. at

632. In Peters v. Titan Navigation Co., 857 F.2d 1342, 1344

(9th Cir. 1988), the Ninth Circuit held that the shipowners

only owed Peters, a ship repairman working on board a

vessel, “the ordinary negligence duty of reasonable care

under the circumstances.”

Kermarec and Peters set forth the proper standard to

be applied and the district court properly articulated this

App. 23

standard of care. The shipowners owed Captain Ghotra a

duty to exercise “reasonable care” under the circum-

stances. Whether the Vessel Interests met the standard of

reasonable care is a matter for the jury to determine upon

remand.

VI.

The Ghotras claim that they raised a genuine issue of

material fact precluding summary judgment on the issue

of recovery for post-injury, predeath pain and suffering.

The Ghotras proffered expert testimony from Dr. Stephen

C. Acosta that Captain Ghotra may have been conscious

for at least ten seconds after the fatal injuries, entitling

them to jury consideration of damages for predeath pain

and suffering. See Southern Pac. Co. v. Heavingham, 236

F.2d 406, 409-10 (9th Cir. 1956).

In contrast, the Vessel Interests argue that summary

judgment was appropriate here because, at best, the dece-

dent only experienced a short period of insensibility

between his fatal injury and death. St. Louis, Iron Moun-

tain, & S. Ry. Co. v. Craft, 237 U.S. 648, 655 (1915). The

Vessel Interests contend that federal courts have not gen-

erally allowed recovery for predeath pain and suffering

in cases, such as here, where death resulted from sudden

and severe accident or impact. They maintain that the

Ghotras do not meet the threshold test set forth by the

Supreme Court in Great N. Ry. Co. v. Capital Trust Co.,

242 U.S. 144 (1916) which established that the decedent

must be conscious for an “appreciable period of time”

after sustaining his injuries to allow recovery for prede-

ath pain and suffering. See also Cook v. Ross Island Sand

App. 24

& Gravel Co., 626 F.2d 746, 750 (9th Cir. 1980) (drowning

case); Heavingham, 236 F.2d at 409 (asphyxiation/burn-

ing case).

It is well-established that “pain and suffering sub-

stantially contemporaneous with death or mere incidents

to it, as also the short periods of insensibility which

sometimes intervene between fatal injuries and death,

afford no basis for a separate estimation or award of

damages” for predeath pain and suffering. Capital Trust,

242 U.S. at 147 (citing Craft, 237 U.S. at 658, 35 S.Ct. at

706). Moreover, the Ninth Circuit has held that before a

decedent’s beneficiary may recover for the decedent's

predeath pain and suffering, the beneficiary must show

“that the decedent was conscious for at least some period

of time after he suffered the injuries which resulted in his

death.” F/V Carolyn Jean, Inc. v. Schmitt, 73 F.3d 884, 885

(9th Cir. 1995) (quoting Ross Island Sand & Gravel, 626

F.2d at 749-50). In Ross Island Sand & Gravel, this court

stated that it would “not adopt a ‘stop watch’ approach to

the question of whether a decedent remained conscious

for a legally substantial period of time after he sustained

the injuries,” but that it would determine whether the

decedent remained conscious for an “appreciable length

of time” on a case by case basis. 626 F.2d at 751.

Here, eyewitness testimony and the autopsy report

indicate that Captain Ghotra was not observed to be

conscious at any time after injury and prior to death. The

eyewitnesses state that Captain Ghotra sustained massive

internal injuries and did not regain consciousness after

the accident. The only evidence in opposition is Dr.

Acosta’s declaration that it is “highly likely” that Captain

eT

App. 25

Ghotra was conscious for at least ten seconds following

the accident.

Under the facts here, ten seconds of insensible con-

sciousness does not meet the “appreciable period of time”

threshold for recovery of predeath pain and suffering

damages. See Craft, 237 U.S. at 705 (thirty-minute period

of consciousness after railroad car passed over a man’s

body and lacerated his abdomen was a case “close to the

border line” for recovery of predeath pain and suffering);

Cook, 626 F.2d at 748 (two and one-half minutes sub-

merged in water sufficient for recovery because drowning

victim experienced a period of “heightened awareness”

prior to death). There is no evidence in this case indicat-

ing that this “highly likely” period of “consciousness”

differs from the “periods of insensibility which some-

times intervene between fatal injuries and death” or that

Captain Ghotra experienced a period of “heightened

awareness” following his injuries, to make his benefici-

aries eligible to recover damages for predeath pain and

suffering. Viewed in the light most favorable to the

Ghotras, Dr. Acosta’s testimony fails to raise a genuine

issue of material fact that the victim remained conscious

for an appreciable period of time. Therefore, we affirm

the district court’s ruling on summary judgment that

damages for predeath pain and suffering are not war-

ranted in this case.

Vii.

For the foregoing reasons, we reverse the order of the

district court striking the Ghotras’ demand for jury trial,

and remand the case in accordance with the other rulings

App. 26

contained herein. The decision appealed from is

REVERSED IN PART and AFFIRMED IN PART and

REMANDED for NEW TRIAL.

App. 27

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ERICA KAUR GHOTRA, No. CV 91-5469

et al. RSWL (Sx)

Plaintiffs, ORDER

VS. (Filed Jul. 14, 1993)

BANDILA SHIPPING,

INC., et al.,

ERICA KAUR GHOTRA,

et al.,

Plaintiffs,

Vs.

PALM MARITIME S.A.,

)

)

)

)

)

)

)

)

Defendants. _)

)

)

)

)

)

)

)

)

)

Defendant.

Bandila Shipping, Inc., M/V Gracious, and Palm

Maritime S.A., Defendants in the above-captioned action,

have moved to strike Plaintiffs’ jury demand. Plaintiffs

have opposed the motion. Defendants’ motion was set for

hearing on the Court’s law and motion calendar, but was

removed for disposition on the submitted papers pur-

suant to Federal Rule of Civil Procedure 78.

Now having carefully considered all the papers sub-

mitted in support of and in opposition to the motion, the

Court hereby issues the following order:

Defendants’ motion to strike Plaintiffs’ jury demand

is GRANTED.

App. 28

Plaintiffs’ wrongful death claims are brought pur-

suant to the general federal maritime law. See Fed. R. Civ.

P. 9(h) (claim cognizable only in admiralty is an admiralty

or maritime claim whether so identified or not). In Janu-

ary 1992, this Court dismissed with prejudice Plaintiffs’

wrongful death claims brought under state law. The gen-

eral federal maritime law governs wrongful death claims

based on negligence to the exclusion of state wrongful

death statutes.! Nelson v. United States, 639 F.2d 469, 473

(9th Cir. 1980). Furthermore, Plaintiffs’ second amended

complaint expressly seeks a remedy under the general

federal maritime law in all four causes of action. See

Second Amended Complaint, at {{ 16(e), 26(e), 30, 43(e),

and 48. It follows that Plaintiffs have no claim cognizable

in the Court’s general civil jurisdiction, and the “saving-

to-suitors” clause does not apply in this case. See Wilm-

ington Trust v. United States Dist. Court, 934 F.2d 1026 (9th

Cir. 1991), cert. denied, 112 S. Ct. 1578 (1992) (stating that

“saving-to-suitors” clause applies when both admiralty

and non-admiralty federal jurisdiction exist).

Because Plaintiffs’ wrongful death claims can only be

characterized as admiralty and maritime claims, Plaintiffs

have no right to jury trial. Owens-Illinois, Inc. v. United

States Dist. Court, 698 F.2d 967, 972 (9th Cir. 1983) (citing

Waring v. Clarke, 46 U.S. 441 (1847)); Green v. Ross, 481

F.2d 102 (5th Cir. 1973) (holding survivor-claimant under

1 Plaintiffs’ attempt to characterize these claims as

“common law claims” is without merit. Under California law,

the cause of action for wrongful death is purely statutory, and

no common law cause of action exists. McLaughlin v. United

Railroads of San Francisco, 169 Cal. 494, 495 (1915); 6 B.E. Witkin,

Summary of California Law § 1196 (1988 & Supp. 1993).

App. 29

general federal maritime law has no greater right to jury

trial than his decedent). Plaintiffs do not join any claim

that gives rise to a right to jury trial with their maritime

claims. As such, Plaintiff may not properly demand a jury

trial under Federal Rule of Civil Procedure 38(b). Fed. R.

Civ. P. 38(e), 9(h).

IT IS SO ORDERED.

RONALD 5S. W. LEW

RONALD S.W. LEW

United States District Judge

DATED: July 14, 1993

CV 91-5469 RSWL (Sx) Ghotra v. Bandila Shipping, Defen-

dants’ motion to strike Plaintiffs’ jury demand

2ghotra.ord /f

App. 30

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICA KAUR GHOTRA, minor, ) No. 93-56326

by Susan Ghotra her guardian ad )

D.C. No.

litem; RAVINDER SINGH » ~ 28. i

GHOTRA, minor, by Susan ) the cee pases

Ghotra, his guardian ad litem; ORDER

SUSAN GHOTRA, and individual, (Filed

and as administratrix of the

Estate of Kuldip S. Ghotra;

AMOLAK SINGH GHOTRA; and

SARJIT KAUR GHOTRA,

July 1, 1997)

Plaintiffs-Appellants,

v.

)

)

)

)

)

)

)

)

)

BANDILA SHIPPING, INC.;

“M/V GRACIOUS”, her Engines, )

Tackle, Apparel, Furniture and )

Appurtenances, in rem. ;

)

)

)

)

)

)

Defendants-Appellees,

and

PALM MARITIME, S.A.,

Defendant.

Before: PREGERSON, T.G. NELSON, Circuit Judges, ad

EZRA,*

* Honorable David Alan Ezra, United States District Judge

for the District of Hawaii, sitting by designation.

Serene

App. 31

The panel has voted to deny appellees’ petition for

rehearing and to reject the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a

vote on whether to rehearing the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is denied and the sugges-

tion for rehearing en banc is rejected.