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 The Disappearing Act: Removal Jurisdiction
of an Admiralty Claim
Steven E Friedelr

I. INTRODUCTION ............................................................................... 75
II. THE CONVENTIONAL WISDOM ..................................................... 81
A. TheRomero Dicta................................................................ 81
B. Juwis&dctionalBoxes ................................ 85
C StatutoryPolicy..................................................................... 89
III. JURY TRiAL .................................................................................... 93
IV FRAMEWORK FOR CHANGE ............................................................ 96
V CONCLUSION ............................................... 98

I. INTRODUCTION

In the past forty years the United States Supreme Court has upset
several assumptions about admiralty law. In the area of wrongful death,'
procedure,2 tort,3 and contract,4 it has taken bold steps to fashion admiralty

* Professor of Law, Rutgers University (Camden). I am very grateful to Allan Stein

and David Robertson for their thoughtful comments on an earlier draft.
1. The Court took the bold step of creating a right to wrongful death "under the general
maritime law for death caused by violation of maritime duties" in Momgne v States Marine
Lines, Inc., 398 U.S. 375, 409, 1970 AMC 967, 993 (1970), guided in part by Congress's actions
in creating such actions in related contexts. The Court surprised many by cutting back on this
remedy in a series of cases, beginning with Mobil Oil Co. v Higginbotham,436 U.S. 618, 625,
1978 AMC 1059, 1065 (1978), where it held that the Moragne action did not apply to the high
seas as this would conflict with the Death on the High Seas Act. In Miles v Apex Marine Corp.,
498 U.S. 19, 23-24, 1991 AMC 1, 3-4 (1990), the Court ruled that although the Moragneremedy
applied in case of a seaman's death in territorial waters, the measure of damages could not be
higher than that available under the Jones Act. In Yamaha Motor Corp., USA. v Calhoun, 516
U.S. 199, 214-15, 1996 AMC 305, 316-17 (1996), the Court held that even if Moragneapplied to
a death of a nonseafarer, it was not intended to prevent states from providing a greater remedy.
More recently, in Dooley v KoreanAir Lines Co., 524 U.S. 116, 123-24, 1998 AMC 1940, 1944-
45 (1998), the Court held that a minor survival provision in the Death on the High Seas Act
prevented federal courts from creating any additional survival right.
2. Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 21, 1963 AMC 1093, 1097 (1963) (arguing
that since Congress has created a right to jury trial in Jones Act cases, when a plaintiff joins a
Jones Act claim with a claim for unseaworthiness and maintenance and cure, the entire case
should be tried by the jury).
3. United States v. Reliable Transfer Co., 421 U.S. 397, 410, 1975 AMC 541, 551 (1975)
(finding no congressional opposition to adopting a rule of pure comparative fault in collision);
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 669, 1982 AMC 2253, 2254 (1982) (holding it
 TULANE MARITIME LAW JOURNAL [Vol. 30

law in ways that were often contrary to the views of lower courts and
commentators. Many of the Court's decisions have shown that the Court
believes it owes strict fidelity not just to acts of Congress5 but also to
policies attributable to those acts.' One problem not adequately addressed
by the modem Court is that of removal of an admiralty claim from state
court to federal court. In this area the conventional view adopted by lower
courts and commentators is directly opposed to the governing statute and
limits the federal court's role in resolving maritime disputes.
To understand the impact that removal has on admiralty practice, it is
necessary to provide some background on special features of admiralty
jurisdiction. Article III of the Constitution provides that the "judicial
Power shall extend ... to all Cases of admiralty and maritime
Jurisdiction."7 Congress has vested the district courts with this
jurisdiction while also guaranteeing plaintiffs the right to pursue most
admiralty cases in state court.8 It has done so by providing 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."'9 Regardless of which court hears the case, the
substantive law will be the same.' Although substantive law is seen as a

would be consistent with congressional policy to extend admiralty jurisdiction to collision

between pleasure craft on navigable waters).
4. Norfolk S. Ry. v. Kirby, 125 S. Ct. 385, 392, 2004 AMC 2705, 2710 (2004) (holding
that multimodal contract is maritime if maritime portion is not incidental); Exxon Corp. v. Cent.
Gulf Lines, 500 U.S. 603, 604, 1991 AMC 1817, 1821 (1991) (holding that agency contract is
maritime).
5. E.g., Mobil Oil,436 U.S. at 605, 1978 AMC at 1065; Dooley, 524 U.S. at 123-24,
1998 AMC at 1944-45; Stewart v. Dutra Constr. Co., 125 S.Ct. 1118 (2005) (applying general
statutory definition of "vessel" to Longshore and Harbor Workers' Compensation Act); see also
Griffin v. Ocean Contractors, Inc., 458 U.S. 564, 570, 1982 AMC 2377, 2381-82 (1982) (finding
that federal courts have no discretion to depart from literal enforcement of statute on penalty
wages resulting in penalty of more than $300,000 for withholding $412.50 in wages).
6. See, e.g., Miles,498 U.S. at 23-24, 1991 AMC at 3-4; ForemostIns. Co., 437 U.S. at
676, 1991 AMC at 2259-60; Eitzgemla 374 U.S at 21, 1963 AMC at 1097. Another theme has
been the Court's recognition that the central purpose of admiralty jurisdiction is the federal
interest in protecting maritime commerce. See, e.g., Norfolk S.Ry, 125 S.Ct. at 392, 2004 AMC
at 2700; Exxon Cop., 500 U.S. at 608, 1991 AMC at 1821; ForemostIns., 457 U.S. at 675, 1982
AMC at 2259.
7. U.S. CONST. art. III, § 2.
8. Federal and state courts have concurrent jurisdiction of maritime disputes as long as
the suit is in personam. Madruga v. Superior Court, 346 U.S. 556, 560-61, 1954 AMC 405, 409
(1954). Except in forfeiture cases brought by a State or local law enforcement, suits in rem can
only be brought in federal court. C.J. Hendry Co. v. Moore, 318 U.S. 133 (1942).
9. 28 U.S.C. § 1333(1) (2000).
10. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 1986 AMC 2113, 2116
(1986); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953). But see David W Robertson,
Displacement of State Law by FederalMantne Law, 26 J. MAR. L. & COM. 325, 333 (1995)
2006] REMO VAL JURISDICTION

species of federal common law," the Supreme Court held in Romero v

InternationalTerminal Operating Co.' 2 that claims based on substantive
law are not federal question claims. Although state law can sometimes be
used to supplement the federal common law that is at the core of
admiralty law, the courts have struggled to find a rule for determining
when this can be done. 3 The Supreme Court's most recent
pronouncement suggests that state law will only be applied if it would not
defeat a federal interest or "undermine the uniformity of general maritime
law."'" If a plaintiff sues in federal court and if the federal court's only
basis for subject matter jurisdiction is admiralty, then certain admiralty
procedures will be applied." If the federal court has admiralty jurisdiction
and some other basis for jurisdiction, such as diversity, then the plaintiff
may elect to have those special admiralty procedures applied.'6 One of
those admiralty procedures is the lack of jury trial.'7 Hence, the plaintiff
controls whether a jury trial will be possible. A plaintiff who does not
want a jury trial can sue in federal court and designate the claim as an

(suggesting that state courts should be allowed to apply state law more readily than federal
courts).
11. See, e.g.,Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 214-15, 1996 AMC
305, 316-17 (1996).
12. 358 U.S. 354, 373, 1959 AMC 832, 846 (1959).
13. As the Supreme Court observed, "It would be idle to pretend that the line separating
permissible from impermissible state regulation is readily discernible in our admiralty
jurisprudence, or indeed is even entirely consistent within our admiralty jurisprudence." Am.
Dredging Co. v. Miller, 510 U.S. 443,452, 1994 AMC 913,920 (1994).
14. Norfolk S. Ry. v. Kirby, 125 S.Ct. 385, 395-96, 2004 AMC 2705, 2714 (2004). For
decades the jurisprudence in this area was centered on the continued meaning of Southern Pacific
Co. v Jensen; 244 U.S. 205, 215-16, 1996 AMC 2076, 2083-84 (1917). However two of the
Court's recent cases, Yamaha and Kirby, did not even mention Jensen, and the opinions in
American Dredging Co. v Miller, 510 U.S. 443, 458, 1994 AMC 913, 924-25 (1994), limited
Jensen and cast doubt on its continued validity. In Jensen, the Court famously declared:
And plainly, we think, no such legislation is valid if it contravenes the essential purpose
expressed by an act of Congress, or works material prejudice to the characteristic
features of the general maritime law, or interferes with the proper harmony and
uniformity of that law in its international and interstate relations.
244 U.S. at 216, 1996 AMC at 2084. Khby may not be a good indicator of where the Court is
headed, as the sides did not identify any state interest at stake. Yamaha may also be a special case
as the Court took a narrow view of the issue in that case.
15. FED. R. Ctv.P 9(h). The admiralty procedures consist of a procedure by which a
defendant can assert that a third-party defendant is directly liable to the plaintiff (Rule 14 (c)); a
rule specifying that the Federal Rules of Civil Procedure do not create a jury trial right for
maritime claims (Rule 38(e)); a rule that there is no venue restriction (Rule 82); and rules for
handling maritime attachment and garnishment (Rule B); actions in rem (Rule C); possessory,
petitory, and partition actions (Rule D), and actions for exoneration from or limitation of liability
(Rule F).
16. FED. R. Civ. P.9(h).
17. See FED. R. Ci. P.38(e).
 TULANE MARJTIME LAW JOURNAL [Vol. 30

admiralty claim even if the federal court has diversity or federal question
jurisdiction. A plaintiff who wants a jury trial can do so either by suing in
state court or, if the federal court has some basis of jurisdiction besides
admiralty, by suing in federal court and not designating the claim as a
maritime claim.18
The plaintiff who brings an admiralty claim in state court will often
find that the choice of forum is frustrated by the defendant's removal to
federal court. This might threaten the right to a jury trial if admiralty is
the only basis of the federal court's jurisdiction. Removal is governed
solely by statute. In pertinent part 28 U.S.C. § 1441(a)-(b) provides:
(a) Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is
pending ....
(b) Any civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution, treaties or
laws of the United States shall be removable without regard to the
citizenship or residence of the parties. Any other such action shall be
removable only if none of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is
brought.
Under these subsections, the defendant or defendants can remove an
action to federal court in two types of situations. If the case is within the
federal court's federal question jurisdiction, then it can be removed
regardless of the citizenship or residence of the parties. Any other civil
action in which the district court has original jurisdiction can be removed
only if the defendants are not citizens of the state where the suit was
brought.
The contention of this Article is that admiralty claims should be
removable whenever the defendants are not from the forum state.
Admiralty claims filed in state court are civil actions that fall within the
federal court's original jurisdiction. Because they are not federal question
cases, they should be removable only if none of the defendants are
citizens of the forum state.
The conventional wisdom is that if a plaintiff properly brings an
admiralty claim in state court, the defendant cannot properly remove it to
federal court if the only basis for the federal court's subject matter

18. See FED. R. Civ. P. 9(h), 1966 Amendment to Advisory Committee Notes.
2006] REMO VAL JURISDICTION 79

jurisdiction is admiralty.'9 That is, even though the federal court has
original jurisdiction over an admiralty claim, the case cannot be removed
from state court unless the federal court would have some other basis of
jurisdiction, such as diversity or federal question jurisdiction. The
arguments supporting this view vary, sometimes relying on the "saving to
suitors" clause that preserves the right of a plaintiff in an admiralty case to
pursue its nonmaritime law remedies,"° which is a concern that "removal
to admiralty" will destroy the plaintiff's right to a jury trial,-' or a
misplaced reliance on dicta in a Supreme Court case.22 The conventional
wisdom is inconsistent with the removal statute and is based on an

19. See, e.g., Oklahoma v. Magnolia Marine Transp. Co., 359 E3d 1237, 1241, 2004
AMC 491, 495 (10th Cir. 2004); U.S. Express Lines v. Higgins, 281 E3d 383, 390, 2002 AMC
823, 828-29 (3d Cir. 2002); Morris v. Princess Cruises, Inc., 236 E3d 1061, 1068-69, 2001 AMC
804, 811-12 (9th Cir. 2001); In re Chimenti, 79 E3d 534, 537, 1996 AMC 2288, 2290 (6th Cir.
1996); Servis v. Hiller Sys., Inc., 54 E3d 203, 206-07, 1995 AMC 2477, 2481 (4th Cir. 1995); In
re Dutile, 935 E2d 61, 63, 1991 AMC 2979, 2982 (5th Cir. 1991); ROBERT FORCE, ADMIRALTY
AND MARITIME LAW 19-20 (2004); 29 MOORE'S FEDERAL PRACTICE § 704[2][e] (3d ed. 2004);
14A CHARLES A. WRIGHT, ARTHUR R. MILLER& EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE 357 (3d ed. 1998); Kenneth G. Engerrand, Removal and Remand ofAdmiralty Suits,
21 TUL. MAR. L.J. 383, 392 (1997); David J. Sharpe, Removal to Admiralty Revisited, 22 J. MAR.
L. & CoM. 485, 491-92 (1991) [hereinafter Sharpe, Removal to Admiralty Revisitea]; Note,
Removal toAdmiraly, 69 YALE L.J. 442-43 (1960).
There has been little judicial dissent from this view. Prior to the decision in Romero a few
decisions allowed removal on the theory that admiralty claims were federal question claims.
Wunderlich v. Netherlands Ins. Co., 125 E Supp. 877, 879-80 (S.D.N.Y 1954); Compania
Maritima Ador, S.A. v. N.H. Fire Ins. Co., 120 F Supp. 577, 578-79 (S.D.N.Y. 1944). In Davis v
Matson Navigation Co., 143 E Supp. 537, 537-38 (N.D. Cal. 1956), Judge Oliver Carter ruled
that admiralty claims were removable under 28 U.S.C. § 1441(a) because the federal court has
original jurisdiction of admiralty claims. A year later, however, Judge Carter revised his view,
holding that 28 U.S.C. § 1441(b) must also be satisfied. Crawford v. E. Asiatic Co., 156 E Supp.
571, 572-73 (N.D. Cal. 1957). He held that in-state defendants could not remove. Id; see also
Yangming Marine Transp. Corp. v. Electri-Flex Co., 682 E Supp 368, 373 (N.D. I11. 1987)
(criticizing the doctrine); Joshua M. Morse, III, Removal of Saving Clause Suits as CivilActions
Withn the OriginalJurisdictionof the DistrictCourts,4 MAR. LAW. 197, 214 (1979) (arguing that
a saving clause provides for an exception to removal, but also suggesting that courts should allow
the removal and transfer of admiralty claims to the "law side" of the federal court).
Several writers have noted the difficulty of squaring the conventional view with the statute
or have suggested that the statute be amended to "clarify" its intent. See 14A WRIGHT, MILLER &
COOPER, supra note 19, at 363, 367; THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW
103 n.13 (4th ed. 2004); George Rutherglen, The Federal Rules for Admiralty and Maritime
Cases: A Verdict of Quiescent Yeais, 27 J. MAR. L. & CoM. 581, 590 (1996) ("This longstanding
doctrine does not fit very well with the literal terms of the removal statute."); David J. Sharpe,
Admiralty Procedure, 31 J. MAR. L. & COM. 217, 234 (2000) (suggesting a "clarifying
amendment" that would "encourage defendants to stop torturing §§ 1441(a) and (b) to support
removal to admiralty, an effort that has never succeeded"); Note, supra, at 451 (suggesting an
amendment to § 1441 to preclude removal to admiralty).
20. See infia text accompanying note 76.
21. See infra text accompanying note 82.
22. See infri text accompanying notes 27-34.
 TULANE MARITIME LA WJOURNAL [Vol. 30

outmoded conception of admiralty jurisdiction, one that confuses

jurisdiction with procedure.
One reason that the conventional view has survived so long is that it
usually provides a result consistent with the statute. The statute only
requires that the defendants be from out of state, and when this is true
there will usually be diversity jurisdiction. However, there are two types
of instances in which the removal statute is satisfied and where diversity
jurisdiction is lacking: when one plaintiff and one defendant are both
aliens or are from the same nonforum state, and when the amount in
controversy is insufficient for purposes of diversity jurisdiction. In these
situations the conventional view bars removal despite satisfaction of the
statute's requirements."
The courts' refusal to allow removal unless there is some basis of
original jurisdiction besides admiralty seems to be based in part on an
outdated assumption that an "admiralty court" or the "admiralty side" of a
federal court cannot employ a jury. Although it is true that a jury does not
ordinarily try a case originally brought in a federal court if the only basis
of jurisdiction is admiralty,24 the practice is not based on any provision of
the Constitution or any statute." Federal courts are able to use juries if
provided for by statute or if justice so requires. 6 However, federal courts
in the interest of justice ought to provide the plaintiff with a right to jury
trial when the defendant has properly removed an action in which the
plaintiff had a right under the "saving to suitors" clause to demand a jury
in state court.
In Part I, this Article will discuss the rationales that courts and
commentators have offered for the view that removal of an admiralty
claim is not permissible if admiralty is the only basis of federal

23. See Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 87 E3d 150, 153, 1996 AMC 2296,
2298-99 (5th Cir. 1996) (holding that a suit between two Texas companies in Louisiana state court
can be removed only because there is another basis of jurisdiction besides admiralty); Pate v.
Standard Dredging Corp., 193 E2d 498, 502, 1952 AMC 287, 292 (5th Cir. 1952) (ruling that the
amount in controversy must be satisfied to allow removal); Auerbach v. Tow Boat U.S., 303 F
Supp. 2d 538, 541, 2004 AMC 370, 372 (D.N.J. 2004) (same); Becker v. Crounse Corp., 822 E
Supp. 386, 390, 1993 AMC 2597, 2600 (WD. Ky. 1993) (same); Hite v. Norwegian Caribbean
Lines, 551 E Supp. 390, 393 (E.D. Mich. 1982) (same); J.J. Ryan & Sons Inc. v. Cont'l Ins. Co.,
369 F. Supp. 692, 695, 1974 AMC 644, 647 (D.S.C. 1974) (same); Ross v. Pac. S.S. Co., 272 F.
538, 538 (D. Ore. 1921) (same).
24. See FED. R. Civ. P 9(h), 38(e).
25. Fitzgerald v. U.S. Lines Co., 374 U.S. 16,20, 1963 AMC 1093, 1096-97 (1963).
26. Id. Congress has provided for juries in certain admiralty cases arising on lakes. 28
U.S.C. § 1873 (2001). Although some maintain that this only creates a right to an advisory jury,
no one disputes the power of Congress to create the right to a common law jury in an admiralty
case. Steven F. Friedell, When Worlds Collide.- The In Rem Jury andOtherMarvels ofModern
Admiraty, 35 J. MAR. L. & CoM. 143, 160 (2004).
20061 REMO VAL JURISDICTION

jurisdiction. It will demonstrate that the conventional wisdom is wrong,

and it will show that the removal statute allows nonforum state defendants
to remove an action even when the only basis of the federal court's
jurisdiction is admiralty. Part III of this Article will contend that a right of
jury trial exists in removed cases where the defendant properly removed
an action to federal court. Part IV will examine the issues that need to be
debated if Congress were to revise the removal statute.

II. THE CONVENTIONAL WISDOM

A. The Romero Dicta
A large part of the conventional wisdom on this topic is derived from
dicta in Justice Frankfurter's opinion in Romero v InternationalTerminal
OperatingCO. In Romero the Supreme Court held that admiralty claims
are not federal question claims even when substantive federal judge-made
law provides the rule of decision." Justice Frankfurter offered several
arguments to support the holding." One argument was that if the court
ruled otherwise, "saving-clause actions would then be freely removable."3
In a footnote the Court quoted the first sentence of 28 U.S.C. § 1441(b),
which makes federal question claims removable without regard to the
citizenship or residence of the parties.3' Although some might read this
dicta to mean that admiralty cases are not removable unless there is also
diversity or federal question jurisdiction, Romero neither so holds nor
necessarily implies. Rather, Romero should be read to mean that
admiralty cases brought in state court are nonremovable if some or all of
the defendants are from the forum state. Under Romero if a particular
admiralty action does not involve a federal question, then it would follow
that the second sentence of 28 U.S.C. § 1441(b) applies. The action
would be removable if none of the defendants is a citizen of the state
where the action is brought.

27. 358 U.S. 354, 1959 AMC 832 (1959). The Court has recently reaffirmed these dicta.
See, e.g., Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455, 2001 AMC 913, 925 (2001).
The issue in Lewis was whether the vessel owner could by filing a petition for exoneration or
limitation in federal court restrain an action in state court even though the claimant stipulated that
damages in the state action would not exceed the limitation fund where the plaintiff did not seek a
jury trial in the state action. Id.The Court held that the state action must not be enjoined. Id.It
reasoned that jury trial was but one right saved to suitors. Id.The Court reiterated Romero's
point that if admiralty cases were treated as federal question cases it would defeat the claimant's
choice of forum. Id For further discussion of Lewis, see infa text accompanying note 93.
28. 358 U.S. at 373, 1959 AMC at 846.
29. Id.at 380, 1959 AMC at 852.
30. Id at 371-72, 1959 AMC at 846.
31. Id.at 372, 1959 AMC at 846.
 TULANE MARITIME LA WJOURNAL [Vol. 30

Other dicta in Romero may also be thought to preclude removal of

an admiralty action. The Court observed that prior to 1875 federal courts
lacked federal question jurisdiction. 32 The Court then stated, "Except in
diversity cases, maritime litigation brought in state courts could not be
removed to the federal courts."33 Again, in a footnote, the Court
explained: "The removal provisions of the original Judiciary Act of 1789,
1 Stat. 79, conferred a limited removal jurisdiction, not including cases of
admiralty and maritime jurisdiction. In none of the statutes enacted since
that time have saving-clause cases been made removable." 34 It is true that
the 1789 act permitted removal only of certain land disputes and of suits
brought against an alien or by a citizen of the forum state against a citizen
of another state, where the amount in controversy exceeded $500."5
However, it would be going too far to suggest, as the Court's footnote
quoted above implies, that saving-clause cases have not been removable. 6
As the text of the opinion implied, the original Judiciary Act authorized
removal of saving-clause cases if diversity jurisdiction was present or if
suit was brought against an alien. Moreover, subsequent revisions of the
removal statute have broadened its scope. Under 28 U.S.C. § 1441(a)
and (b), the defendants in any nonfederal question case can remove
provided they are not citizens of the state where the suit is brought. Since
Romero excludes admiralty cases from being considered federal question
cases unless a federal statute provides the rule of decision, maritime cases
that satisfy the requirements of § 1441(b) must be removable. If a federal

32. Id. at 363, 1959 AMC at 839.

33. Id.
34. Id at 363 n. 16, 1959 AMC at 839 n. 16 (emphasis added).
35. 1 Stat. 79-80 (1789).
36. But see Harbor Boating Club v. Red Star Towing & Transp. Co., 179 E Supp. 755,
756-57 (E.D.N.Y. 1960) (stating on the basis of Romero that .'saving clause' actions are not
removable under 28 U.S.C.A. § 1441 because otherwise the historic option of a maritime suitor to
pursue his common-law remedy in either the State or Federal forum would be eliminated").
37. The removal statutes have apparently permitted removal of an admiralty claim by a
nonforum defendant since 1911. See 36 Stat. 1094 (1911). Section 28 of the Judiciary Act of
1911 provided for removal of federal question cases and then provided:
Any other suit of a civil nature, at law or in equity, of which the district courts of the
United States are given jurisdiction by this title, and which are now pending or which
may hereafter be brought, in any State court, may be removed into the district court of
the United States for the proper district by the defendant or defendants therein, being
non-residents of that State.
The phrase "at law or in equity" does not exclude suits that involve admiralty law. The phrase
refers to the status of the claim in the state court. Since any maritime claim brought in a state
court is a suit at law or equity, and since the federal district courts have jurisdiction under their
admiralty jurisdiction, it would follow that the 1911 Act authorized removal of an admiralty claim
provided the defendant was not a resident of the forum state. See Brainard Currie, The Silver Oar
andAll That: A Study ofthe Romero Case, 27 U. CHI. L. REv. 1, 16 n.57 (1959).
2006] REMO VAL JURISDICTION 83

question is raised in a maritime case, the first sentence of § 1441(b)

makes the claim removable without regard to citizenship of the parties. If
no federal statute is involved and if the defendant is not from the state
where suit is brought, the action ought to be removable. The second
sentence of § 1441(b) does not require the presence of diversity
jurisdiction. It only requires that the defendant not be a citizen of the
forum state. When diversity jurisdiction is lacking, this requirement will
be satisfied in two situations: where the defendant is from a different
state than where suit is brought but the amount in controversy is too low
for diversity jurisdiction or where the plaintiff and defendant are from the
same nonforum state.
What was the evil that Justice Frankfurter sought to forestall by
making sure that saving-clause cases not be made "freely removable"
under the first sentence of 28 U.S.C. § 1441(b)? His concern was that
removal of saving-clause cases had the potential to remove all admiralty
cases from state court.38 In Justice Frankfurter's view, this would interfere
with the role that state courts and state law play in maritime affairs. The
concern, which seems exaggerated even in the context of Romero, has
even less relevance to the problem of removal being discussed in this

38. As Justice Frankfurter expressed it:

By making maritime cases removable to the federal courts it would make
considerable inroads into the traditionally exercised concurrent jurisdiction of the state
courts in admiralty matters-a jurisdiction which it was the unquestioned aim of the
saving clause of 1789 to preserve.... The role of the States in the development of
maritime law is a role whose significance is rooted in the Judiciary Act of 1789 and the
decisions of this Court....
Although the corpus of admiralty law is federal in the sense that it derives from
the implications of Article III evolved by the courts, to claim that all enforced rights
pertaining to matters maritime are rooted in federal law is a destructive
oversimplification of the highly intricate interplay of the States and the National
Government in their regulation of maritime commerce. It is true that state law must
yield to the needs of a uniform federal maritime law when this Court finds inroads on a
harmonious system. But this limitation still leaves the States a wide scope .... "In the
field of maritime contracts" this Court has said, "as in that of maritime torts, the
National Government has left much regulatory power in the States." Thus, if one thing
is clear it is that the source of law in saving-clause actions cannot be described in
absolute terms. Maritime law is not a monistic system. The State and Federal
Governments jointly exert regulatory powers today as they have played joint roles in the
development of maritime law throughout our history. This sharing of competence in
one aspect of our federalism has been traditionally embodied in the saving clause of the
Act of 1789. Here, as is so often true in our federal system, allocations of jurisdiction
have been carefully wrought to correspond to the realities of power and interest and
national policy. To give a novel sweep to the Act would disrupt traditional maritime
policies and quite gratuitously disturb a complementary, historic interacting federal-
state relationship.
358 U.S. at 372-75, 1959 AMC at 846-48 (footnote omitted).
 TULANE MARITIME LA WJOURNAL [Vol. 30

Article. Contrary to Justice Frankfurter's assumption, the saving-to-

suitors clause does not create a right of states to try admiralty cases. It
preserves a right of plaintiffs to bring an admiralty case in state court
provided they sue in personam.39 Even if all admiralty claims brought in
state court were removable, this would not mean that all such actions
would be removed. Perhaps Justice Frankfurter thought that defendants
would remove to avoid a jury trial in state court. That concern can be met,
however, by recognizing that the right to jury trial survives removal. The
failure to take this step seems to be rooted in a belief that removal of an
admiralty claim must be to the "admiralty side" of the federal court when
the only basis for federal jurisdiction is admiralty. As this Article will
show in the next Part, this confuses issues of jurisdiction with issues of
procedure.
Of more serious concern is the Romero court's recognition that state
courts will be more receptive than federal courts to applying state law."
Over time this may influence federal courts in applying state law. Perhaps
this is part of what Frankfurter meant when he spoke of the "highly
intricate interplay of the States and the National Government in their
regulation of maritime commerce."' The concern suggests caution in
changing any rule that allocates authority between federal and state
courts. There are, however, several countervailing factors. First, state and
federal courts are required to apply the same law to admiralty cases, be it
federal or state law in origin.42 Second, the litigants can be expected to
litigate the choice-of-law issue fully. Third, the conventional view already
deprives state courts of jurisdiction in many cases and has not caused a
serious impairment of the role played by state law. As David Robertson
has shown, the Supreme Court's admiralty jurisprudence indicates that the
Court is not more likely than a state court to displace state law. 3 Although
some suspect that lower federal courts are more likely to displace state
law," one cannot be certain.45 In any event, the only change advocated by

39. Madruga v. Superior Court, 346 U.S. 556, 560-61, 1954 AMC 405,409 (1954).
40. For example, following the Supreme Court's pronouncement that there was no
wrongful death recovery under the general maritime law, in The Harrisburg,119 U.S. 199, 213-14
(1886), state courts were the first to use state wrongful death statutes to allow recovery. SeeAm.
Steamboat Co. v. Chase, 83 U.S. (16 Wall.) 522, 533 (1872). It was almost fifty years before the
Supreme Court allowed wrongful death actions based on state law to be brought on the
"admiralty side" of the federal court. SeeW Fuel Co. v. Garcia, 257 U.S. 233 (1921).
41. 358 U.S. at 373, 1959 AMC at 847.
42. See sources cited supranote 10.
43. David W Robertson, TheApplicability ofState Law in Maritime CasesAferYamaha
Motor Corp. v. Calhoun, 21 TUL. MAR. L.J. 81, 95-96 (1996).
44. Id.at 95.
2006] REMO VAL JURISDICTION

this Article is that out-of-state defendants should be able to remove in the

relatively small range of cases where diversity jurisdiction is lacking.
Consequently state courts would retain jurisdiction in a large number of
cases and hence would retain most of their ability to affect the content of
maritime law.
The issue here is much narrower that the one confronted in Romero.
In Romero the issue was whether admiralty claims were within the federal
question jurisdiction of the federal courts." If they were, then such claims
would be removable without regard to the citizenship of the defendant
under 28 U.S.C. § 1441(a) and the first sentence of § 1441(b). The issue
addressed in this Article is whether admiralty claims which meet the
requirements of § 1441(a) and the second sentence of § 1441(b) but do
not involve diversity jurisdiction ought to be removable. Under the
second sentence of § 1441(b), claims involving an in-state defendant
could not be properly removed. Therefore, even if Frankfurter's concern
for erosion of state legislative and judicial authority in admiralty matters
has validity, little such erosion will occur if this Article's view of the law is
adopted. Moreover, if one thinks that state courts' authority in maritime
matters ought to trump the defendant's right to remove, the proper place to
lodge that concern is with Congress, not the federal judiciary.

B. Jwis&ctonalBoxes
Some of the objections to allowing removal of an admiralty claim
under § 1441 are based on a peculiar conception of the nature of
admiralty jurisdiction. It has been said, for example, that admiralty suits
are not "civil actions" within the meaning of § 144 1, that a federal court
lacks admiralty jurisdiction over the removal of a common law case, 41 or

45. A good example is Palumbo v Boston Tow Boat Co., N.E.2d 546, 547 (1986), where
the state court applied federal law so as to deny a restaurant recovery for pure economic harm that
occurred after a vessel struck and damaged a bridge even though state law would have allowed
the claim. A case going the other way in federal court is BallardSlipping Co. v Beach Shellfish,
32 E3d 623, 631, 1994 AMC 2705, 2718 (1st Cir. 1994), where the federal court applied state law
to allow recovery for pure economic loss caused by vessel's oil pollution. There are certainly
cases that go the other way. Compare Green v. Indus. Helicopters, Inc., 593 So. 2d 634, 636,
1992 AMC 1426, 1427 (La. 1992) (applying strict liability state law), with Green v. Vermilion
Corp., 144 E3d 332, 340-41, 1998 AMC 2328, 2339-40 (5th Cir. 1998) (ruling that general
maritime law preempts state worker's compensation statute). But see Brockington v. Certified
Elec., Inc., 903 E2d 1523, 1532 (11 th Cir. 1990), cert.denied,498 U.S. 1026 (1991) (holding that
state worker's compensation statute controls).
46. 358 U.S. at 359, 1949 AMC at 836.
47. Id. One can support the argument by noting that 28 U.S.C. § 1333 uses the term
"civil case" whereas the term "civil action" is used in both 28 U.S.C. §§ 1331 and 1332 (2001).
48. J. Aron & Co. v. Chown, 894 E Supp. 697, 697, 1996 AMC 194, 194 (S.D.N.Y
1995); Alleman v. Bunge Corp., 756 E2d 344, 345-46 (5th Cir. 1984) (holding that removal can
86 TULANE MARITIME LA WJOURNAL [Vol. 30

that federal district courts having admiralty jurisdiction have no authority

to use common law remedies.49 Although other scholars have refuted
these arguments," the arguments have their basis in a common
misperception of admiralty jurisdiction. Going back to the beginning of
the country, courts have used the terms "admiralty side" or "admiralty
court" to refer either to the admiralty jurisdiction of the federal court, the
procedure of a federal court having such jurisdiction, or to the law applied
in maritime cases.' Congress has perpetuated this misconception by
providing that certain maritime claims be pursued either "at law"52 or "in
admiralty."53 The effect of not separating the issues of subject matter

only be to a federal diversity court because it could not destroy plaintiff's right to bring action in a
common law court).
49. Paduano v. Yamashita Kisen Kabushiki Kaisha, 221 E2d 615, 621 (2d Cir. 1955)
(Dimock, J., concurring).
50. 14A WRIGHT, MILLER & COOPER, supra note 19, at 357. The term "civil action"
refers to the entirety of the case filed in state court. Flores v. Long, 926 F Supp. 166, 168
(D.N.M. 1995); see supra note 37 and accompanying text. Part of the difficulty with the term
"civil" is that it is used in many senses: as distinguished from "common law" as distinguished
from "criminal" or as distinguished from "admiralty." See DAVID W ROBERTSON, STEVEN F.
FRIEDELL & MICHAEL E STURLEY, ADMIRALTY AND MARITIME LAW IN THE UNITED STATES 91 n.4
(2001). Courts have not relied on this argument to justify the conventional view, perhaps out of
concern that it might prevent the removal of all saving clause cases even where there is some
other basis of federal jurisdiction. See 14A WRIGHT, MILLER& COOPER, supm note 19, at 357.
The argument that federal courts having admiralty jurisdiction cannot provide a common
law remedy is easily countered. Federal courts having admiralty jurisdiction have long allowed
suits in personam, the principal common law remedy saved to suitors in state court. See Madruga
v. Superior Court, 346 U.S. 556, 560-61, 1954 AMC 405,409 (1954).
51. E.g., Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 529 (1938) (stating that "admiralty
courts have traditionally interpreted rules" for seaman liberally); see also W Fuel Co. v. Garcia,
257 U.S. 233, 241-42 (1921) (finding that "inferior federal courts on the admiralty side" have
enforced state wrongful death statutes; and holding that state laws that modify rule applied by
"admiralty courts" can be enforced); N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding
Co., 249 U.S. 119, 126 (1919) ("Neither in jurisdiction nor in the method of procedure are our
admiralty courts dependent alone upon the theory of implied hypothecation."); The Eclipse, 135
U.S. 599, 608 (1890) ("While the court of admiralty exercises its jurisdiction upon equitable
principles, it has not the characteristic powers of a court of equity."); The Lottawanna, 88 U.S.
558, 582-83, 1996 AMC 2372, 2386 (1874) (distinguishing an admiralty court from a court of
equity); The Confiscation Cases, 87 U.S. 92, 107 (1873) (distinguishing "proceedings in
admiralty" which permit allegations in the alternative from those in"common-law courts"); The
Sarah, 21 U.S. (8 Wheat.) 391, 394 (1823) ("Although the two jurisdictions are vested in the same
tribunal, they are as distinct from each other as if they were vested in different tribunals, and can
no more be blended, than a Court of Chancery with a Court of Common law."); Talbot v. Jansen, 3
U.S. (3 Dall.) 133 (1795) (discussing libel filed on the "Admiralty side").
52. The Jones Act, 46 U.S.C. app. § 688(a) (2005) (allowing plaintiff to elect to sue "at
law").
53. Death on the High Seas Act, 46 U.S.C. app. § 761(a) (stating plaintiff "may maintain
a suit for damages in the district courts of the United States, in admiralty"); see Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 400 n.14, 1970 AMC 967, 986-87 n.14 (1970) (noting that
courts have construed the Death on the High Seas Act as placing exclusive jurisdiction on the
"admiralty side" of the federal courts).
2006] REMO VAL JURISDICTION

jurisdiction, procedure, and substantive law has led some to think about
an admiralty court as though such a thing existed." Such thinking has led
to all sorts of mischief, including dismissal for failure to file on the
"wrong side" of the federal court," denial of a jury trial to an impleaded
party because the original plaintiff designated its claim as maritime,"6 or a
tortured reading of statutes modifying the admiralty law. 7
In analyzing the removal problem, some have characterized the
problem as whether there can be removal to "admiralty." 8 Because it is
assumed that jury trials are unavailable on the "admiralty side" or in an
"admiralty court," writers have tried to construe the removal statute as
precluding removal when the only basis of the federal court's jurisdiction
is admiralty. 9 Once the notion of an "admiralty court" becomes reified,
one is led to believe that actions in such a court are not civil actions or that
such a court is incapable of providing a common law remedy such as a
right to jury trial.
The key to understanding this problem is to separate issues of
procedure from those of subject matter jurisdiction and choice of law.
Federal district courts have several bases of jurisdiction, one of them
being admiralty. If a case meets the requirements for admiralty
jurisdiction it can be brought in the federal court or in state court. If there
is more than one basis of federal jurisdiction, such as diversity or federal
question, then the Federal Rules of Civil Procedure(FRCP) give the
plaintiff a device for determining whether certain special rules of
procedure will apply to each claim brought by the plaintiff.' Whether the
case is heard in federal or state court, the same substantive law will be
applied.6'
The question of whether a federal district court may honor a request
for jury trial is governed by the Seventh Amendment, by statutes, and by

54. As Brainard Currie observed, "[I]t is only with a wrench that one is able to remind
oneself that the 'separate admiralty court' is just the United States district court." Brainard
Currie, 26 U. CH1. L. REV. 686, 690 (1959) (reviewing GRANT GILMORE & CHARLES BLACK, JR.,
TIE LAW OF ADMIRALTY (1957) (book review)).
55. E.g., Cunard S.S. Co. v. Smith, 255 Fed. 846, 848-49 (2d Cir. 1918); Stamp v. Union
Stevedoring Co., 11 E2d 172, 174 (E.D. Pa. 1925); seeCurrie, supa note 37, at 27-40.
56. Harrison v. Flota Mercante Grancolombia, S.A., 577 F.2d 968, 987, 1979 AMC 824,
850 (5th Cir. 1978); seeFriedell, supranote 26, at 161.
57. Pan. R.R. Co. v. Johnson, 264 U.S. 375, 389-90 (1924).
58. E.g., E. Steel & Metal Co. v. Hartford Fire Ins. Co., 376 E Supp. 763, 764-65, 1974
AMC 1701, 1702-03 (D. Conn. 1974) (holding that removal is not permitted to the "admiralty
side"); Note, supra note 19, at 442-43.
59. E.g., 29 MooRE's FEDERAL PRACTICE, supra note 19, § 704[2][e]; Note, supra note
19, at 442-43.
60. FED. R. Civ P 9(h).
61. See sources cited supranote 10.
 TULANE MARITIME LA WJOURNAL [Vol. 30

the rules of procedure. Beyond that, courts can require that cases be tried
to a jury if doing so is in the interest of justice." There is nothing in the
removal statute that precludes removal in the event it would result in the
loss of the right to jury trial. However, the grant of admiralty jurisdiction
does not preclude trial by jury.
Ordinarily, if a federal district court's only basis for jurisdiction is
admiralty, the court will not use a jury as required by Rules 9(h) and 38(e)
of the FRCP. If more than one basis of federal jurisdiction exists and the
plaintiff does not designate the claim as a maritime claim for purposes of
Rule 9(h), then the case can be tried to a jury if that right is protected by
the Seventh Amendment or by a statute.63 The proper inquiry, therefore, is
not whether "removal to admiralty" is proper, but a two-step inquiry: is
removal to federal court permitted and, if so, whether the federal rules of
procedure allow or preclude a jury trial. As this Article has shown, the
removal statute allows for removal to federal court when the only basis of
jurisdiction is admiralty, provided the defendant is not from the forum
state. Part III of this Article will explore whether a jury trial is permitted
when such an action is removed.
One argument supporting the conventional view is that it is so rooted
in history and tradition that "one feels it almost impious to contemplate"
any change.' This is an odd argument. It essentially concedes that
neither the statute nor policy justifies the rule, but that courts must
continue to abide by it for no other reason than its long existence. It
seems rather that history is entitled to a vote, but not a veto. If the history
reveals some sound policy based on either commercial necessity or
governmental need, it should carry weight as a proxy for those values.
However, to the extent that this history was based on a mistaken and now
discarded view of admiralty jurisdiction, it ought to be discounted and the
issue reexamined in terms of policy." For too long federal courts having

62. See Fitzgerald v. U.S. Lines, 374 U.S. 16, 21, 1963 AMC 1093, 1097 (1963); infM
note 88 and accompanying text.
63. FED. R. Civ.P. 38(a).
64. 14A WRIGHT, MILLER & COOPER, supa note 19, at 357 (quoting Charles L. Black, Jr.,
Admiralty Jurisdicton: Citque and Suggestions,50 COLUM. L. REv. 259, 260 (1950)). Black
was referring to the 1948 revision of the grant of admiralty jurisdiction. The irony is that Black
thought the limitations placed by the courts on removal of an admiralty claim to be bad policy.
BLACK, supiv at 267-69, 276. Contrary to the position taken in this Article, however, Black
thought that other than in personal injury cases, all admiralty cases ought to be removable to the
federal district court "sitting in admiralty,' that is, without a jury.
65. As Charles Black observed:
The coverage of the term "cases of admiralty and maritime jurisdiction" has been
delimited, not on the basis of clear practical relation of the included or excluded cases
to the business of navigation and transport, but on the basis of considerations of
2006] REMO VAL JURISDICTION

admiralty jurisdiction thought themselves to be incapable of providing

equitable relief. 6 Their jurisdiction over torts was thought to include all
torts occurring on navigable waters and exclude everything else."
Maritime contracts excluded agency contracts, including contracts to
procure insurance, fuels or other necessities. 8 These and other vestiges of
history have finally been discarded as being inconsistent with the purpose
of admiralty jurisdiction-the federal interest in maritime commerce.69
Nor is the removal issue unique in that it involves the allocation of power
between federal and state courts. The expansion of federal jurisdiction
and of the remedies available in federal court also involve the
displacement of state law and limit the need to seek redress in state court.

C StatutoryPolicy
In their treatise, Professors Wright, Miller, and Cooper admit that the
requirements of the removal statute appear to be satisfied when the only
basis of federal jurisdiction is admiralty and none of the defendants are
from the forum state." Nonetheless they support the conventional rule by
saying,
Absent diversity, however, it simply does not make any sense to make
removal of a saving-clause case turn on whether one of the defendants is a

historical accident, "location" of concepts, metaphysical rather than practical

conclusions as to what "concerns" what, etc. On such a foundation, of course, nothing
perfect can be built. Even so, the next step is rather less defensible on grounds of
policy.
Black, supra note 64, at 266.
66. See The Eclipse, 135 U.S. 599, 608 (1890); Black, supm note 64, at 265; 1 BENEDICT
ON ADMIRALTY § 126 (Steven E Friedell ed., 7th ed. 2004).
67. E.g., London Guar. & Accident Co. v. Indus. Accident Comm'n, 279 U.S. 109, 123-
24(1929).
68. Mintum v. Maynard, 58 U.S. 477, 477 (1853).
69. See Foremost hIs., 457 U.S. at 669, 1982 AMC at 2254 (arguing that order to be
maritime a tort must have a substantial connection to traditional maritime activity); Admiralty
Extension Act of 1948, 62 Stat. 496, 46 U.S.C. § 740 (2001) (extending admiralty jurisdiction to
torts caused by a vessel on navigable waters even if injury occurs on land); Exxon Corp. v. Cent.
Gulf Lines, 500 U.S. 603, 613, 1991 AMC 1817, 1824 (1991) (agency contracts are maritime);
Farrell Lines, Inc. v. Ceres Terms., 161 F.3d 115, 116-17, 1999 AMC 305, 307 (2d Cir. 1998)
(equitable relief in admiralty case); Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned
Sailing Vessel, 640 E2d 560, 570, 1981 AMC 1857, 1870-71 (5th Cir. 1981) (injunction of rival
salvor); Pino v. Protection Mar. Ins. Co., 599 E2d 10, 16, 1979 AMC 2459, 2467 (1st Cir.), cert.
denied, 444 U.S. 900 (1979) (injunction of maritime tort). Professor Black was a major
proponent of this view. See Black, supra note 64, at 261 ("[T]he leading reason for the
establishment and maintenance of admiralty jurisdiction is the national interest in a uniform
judicial supervision of the maritime industry.").
70. 14A WRIGHT, MILLER & COOPER, supr note 19, at 363, 367.
 TULANE MARITIME LA WJOURAAL [Vol. 30

citizen of the forum state. The fortuity of citizenship is totally irrelevant to

the policy factors germane to the removal question under discussion.
In addition, if the removal of saving-clause cases were allowed simply
on the ground that the case could have been brought in a federal court as an
admiralty claim under Section 1333, the result would be either 1) that the
federal court would have to treat it as an admiralty claim, thereby defeating
the purposes underlying the availability of a law remedy under the saving-
to-suitors clause, or 2) that the federal court would adjudicate what is a
maritime case as if it were one at law, thereby defeating the purpose sought
to be achieved in Romero in nondiversity cases, but only when none of the
defendants is a citizen of the state. Neither of these alternatives is
attractive.7
These arguments are not persuasive reasons for ignoring the
language of the removal statute. Although Congress could have provided
that removal would be limited to either federal question or diversity cases,
it did not do so. It instead allowed removal of "any" action other than
federal question cases in which the defendants are from out of state. The
removal statute thus permits out-of-state defendants to remove admiralty
cases even when diversity jurisdiction is lacking. Diversity jurisdiction
might not exist either because the amount incontroversy is too low or
because some of the plaintiffs and some of the defendants are from the
same state. There is a federal interest in providing the out-of-state
defendants a choice of forum in each of these circumstances. There is a
risk of bias against the out-of-state defendant even when the amount in
controversy is too low or when only some of the plaintiffs and defendants
are from different states. Also, even when the parties are from the same
nonforum state, juries may be overly sympathetic to the plaintiff,
especially if they feel that an out-of-state defendant will bear the loss.
Beyond these concerns, there is a federal interest in having admiralty
cases tried in a federal court. Although none of these interests standing
alone warrants removal, Congress might have thought that the
combination of protecting out-of-state defendants from bias and
promoting maritime commerce is enough.
Even if the current system for removal of admiralty claims is not
ideal, it is not the role of courts to substitute their judgment for that of
Congress. As Professors Wright, Miller and Cooper note elsewhere, "The
right to remove a case from a state to a federal court is purely statutory."72
Congress could limit removal to cases where there is more than one basis

71. Id at 367.
72. Idat 285.
2006] REMO VAL JURISDICTION

of federal jurisdiction. But it has not done so, and courts have no warrant
to impose that requirement in admiralty cases.73
The supposed oddity of allowing only out-of-state defendants to
remove admiralty claims pales when compared to other features of
removal jurisdiction. For example claims under the Federal Employers
Liability Act (FELA) and Jones Act are not removable, but other personal
injury claims including claims for unseaworthiness and maintenance and
cure are removable." More generally, there is no complete congruity
between the federal court's original jurisdiction and its jurisdiction upon
removal. Congress has chosen to make some claims removable even
though they could not be brought directly in federal court; it has chosen to
make other claims nonremovable even though they could be brought in
federal court. 5 It is therefore not so strange that the removal statute
allows only out-of-state defendants to remove an admiralty case to federal
court even though all admiralty claims are within the federal court's
original jurisdiction.
Some might argue that the conventional view is a compromise
between two conflicting statutes, the removal statute and saving-to-suitors
clause. Although courts have not made the argument in so many words,
many have relied on the saving-to-suitors clause in support of the
conventional view,76 and at least one court has argued that it would have
been odd for Congress to dilute the plaintiff's rights under the saving

73. Without a trace of irony, the Fifth Circuit wrote: "As we construe the plain language
of § 1441(b), read hm conjunction with Romero, Congress simply has not supplied the district
courts with removal jurisdiction of admiralty claims absent diversity. We have no power to create
such jurisdiction where Congress has not acted." In re Dutile, 935 F.2d 61, 63, 1991 AMC 2979,
2982 (5th Cir. 1991) (emphasis added). The question ought to have been whether the court had
the power to defeat such jurisdiction where Congress has acted.
74. Usually an injured seaman will join claims under the Jones Act with those for
unseaworthiness and maintenance and cure. The nonstatutory claims will then not be removable.
However, where the shipowner is not the employer, the seaman's only claim against the shipowner
will be for unseaworthiness and maintenance and cure. Mahramas v. Am. Exp. Isbrandtsen Lines,
475 E2d 165, 170, 1973 AMC 587, 593 (2d Cir. 1973).
75. 14B WRIGHT, MILLER & COOPER, supra note 19, § 3721, at 302-03.
76. E.g., In re Chimenti, 79 F.3d 534, 537, 1996 AMC 2288, 2290 (6th Cir. 1996);
Pierpoint v. Barnes, 94 E3d 813, 820 (2d Cir. 1996); Auerbach v. Tow Boat U.S., 303 E Supp. 2d
538, 542-43, 2004 AMC 370, 373-74 (D.N.J. 2004); J.J. Ryan & Sons, Inc. v. Cont'l Ins. Co., 369
E Supp. 692, 697-98, 1974 AMC 644, 651 (D.S.C. 1974); Chambers-Liberty Counties
Navigation Dist. v. Parker Bros. & Co., 263 E Supp. 602, 607 (S.D. Tex. 1967); Hill v. United
Fruit Co., 149 E Supp. 470, 471 (N.D. Cal. 1957); cf Poirrier v. Nicklos Drilling Co., 648 F.2d
1063, 1066, 1982 AMC 1514 (5th Cir. Unit A 1981) (AMC reporter summarizing case) ("The
'saving to suitors' clause does no more than preserve the right of maritime suitors to pursue
nonmaritime remedies. It does not guarantee them a nonfederal forum, or limit the right of
defendants to remove such actions to federal court where there exists some basis for federal
jurisdiction other than admiralty:').
 TULANE MARITIME LA WJOURNAL [Vol. 30

clause by allowing state cases to be removed." One difficulty with this

argument is that this view of the saving clause would prevent the removal
of any admiralty claim, even those supported by diversity or federal
question jurisdiction."8 Another weakness with the argument is that there
is nothing in the saving clause to suggest that it forbids removal. It only
allows the plaintiff an initial choice of forum. As the Supreme Court
observed long ago: "The saving clause was inserted, probably, from
abundant caution, lest the exclusive terms in which the power is conferred
on the District Courts might be deemed to have taken away the concurrent
remedy which had before existed. 79 This leaves the concurrent power
where it stood at common law.
A greater weakness is that the removal statute requires that any
exceptions to removal must be "expressly provided."8 Congress has made
such express exceptions for a few types of actions, but has not done so for
admiralty claims generally.' There is therefore no need to make a
compromise between the removal statute and the saving clause. They are
not in conflict. The saving clause preserves a right to select state court as
the initial forum; the removal statute applies when the defendants are not
from the forum state.
Some have suggested that the central problem with removing
admiralty claims is the potential loss ofjury trial." That problem needs to
be addressed head-on, not by the indirect method of denying removal. As
suggested in the next Part of this Article, federal courts can overcome this
difficulty by providing a jury in appropriate cases.

77. Paduano v.Yamashita Kisen Kabushiki Kaisha, 221 F2d 615, 621 (2d Cir. 1955).
78. See id at 619 n. 15 (stating that Congress has diluted the plaintiff's option of suing in
state court by permitting removal in diversity cases).
79. N.J. Steam Navigation Co. v. Merchants' Bank, 47 U.S. (6 How.) 344, 390 (1848).
80. 28 U.S.C. § 1441(a) (2001); seesources cited supranote 18.
81. See 28 U.S.C. § 1445 (providing exceptions for FELA actions, certain claims for
cargo damage against rail and motor carriers unless the amount in controversy exceeds $10,000,
claims under state workman's compensations statutes, and certain claims under the Violence
Against Women Act of 1994). Because the Jones Act incorporates the FELA, Jones Act claims
are not removable. See sources cited infia note 106.
82. E.g., Suissa v. Am. Exp. Lines, Inc., 507 E2d 1343, 1346 n.7 (2d Cir. 1974); Scurlock
v. Am. President Lines, 162 F. Supp. 78, 82 (N.D. Cal. 1958); Rutherglen, supra note 19, at 590
("[The doctrine's] justification ...depends on protecting the plaintiff's right to jury trial."); 29
MOORE'S FEDERAL PRACTICE, supra note 19, § 704.04(2)(e) ("[T]he strong federal policy favoring
jury trials keeps federal courts from easily accepting removal to admiralty that takes away the
right of jury trial in a state-court action."); ROBERT FORCE & A.N. YIANNOPOULOS, ADMIRALTY
AND MARITIME LAW: CASES, NOTES AND TEXT 1-127 (1997); see SCHOENBAUM, supra note 19, at
118 (lst ed. 1987).
2006] REMO VAL JURISDICTION

III. JURY TRIAL

As we have seen the removal statue on its face permits removal of
any maritime claim when all defendants are from out of state. It is also
clear that a plaintiff suing in state court on a maritime claim has the right
under the saving-to-suitors clause to demand a jury where that remedy is
available at common law." What effect does an out-of-state defendant's
removal of the action have on that right? Prior to the merger of the rules
of civil procedure with the rules of admiralty procedure in 1966, the issue
was framed in terms of whether there could be removal to the "admiralty
side" of the federal court.' After 1966 the issue must be framed in terms
of what those rules require, what they permit, and what they prohibit.
Under Rule 81 of the FRCP, the federal procedural rules apply to a case
that has been removed. Those rules include Rule 9(h). When the only
basis of jurisdiction is admiralty, Rule 9(h) directs that the claims are
maritime claims for purposes of the rules. That in turn implicates Rule
38(e), which provides that the rules of procedure "shall not be construed
to create a right to trial by jury of the issues in an admiralty or maritime
claim."
It might be objected that the saving-to-suitors clause guarantees a
right to jury only in state court. Once the case has been removed, the
FRCP and other provisions of federal law govern.85 If there is more than
one ground of federal jurisdiction, then the jury trial right survives
removal because Rule 9(h) would command that such an action be treated
as involving nonmaritime claims.86 However, if the only basis of federal
jurisdiction is admiralty, then it would be argued that the claim must be
treated as a maritime claim under Rule 9(h).
The difficulty with this view is that Rule 9(h) does not require that
admiralty claims be tried without juries; it merely makes Rule 3 8(e) apply,
and that rule in turn only provides that the rules themselves do not create a
right to jury trial of an admiralty claim. As some courts have recognized,
Rule 38(e) does not prohibit a federal court from having a jury hear a

83. Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438,454, 2001 AMC 913,925 (2001).
84. Crawford v. E. Asiatic Co., 156 F. Supp. 571, 573 (N.D. Cal. 1957) (suggesting that
removal would be to the district court's law side if there was diversity of citizenship); Scurlock v.
Am. President Lines, 162 F. Supp. 78, 82 (N.D. Cal. 1958) (transferring removed case to the civil
docket); see Note, supra note 19, at 449.
85. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70,
415 U.S. 423,438 (1974). ButseeArizona v. Manypenny, 451 U.S. 232,249 (1981) (finding that
when state prosecution of federal officer is removed to federal court, state may appeal an adverse
judgment under federal statute allowing appeal of final order if state law authorizes such review).
86. Boddon v. Osgood, 879 F.2d 184, 186, 1989 AMC 2312, 2314 (5th Cir. 1989).
 TULANE MARITIME LAW JOURAAL [Vol. 30

maritime claim." These courts allow a jury when a maritime claim is

joined with a nonmaritime claim. Even prior to promulgation of Rule
9(h), the Supreme Court decided in Fitzgeraldv UnitedStates Lines Co."
that if a plaintiff so demands, juries must try the general maritime claims
of unseaworthiness and maintenance and cure when brought together with
a claim under the Jones Act. The ruling was not required by the
Constitution, a statute, or procedural rule, but by the Court's exercise of its
power in the absence of direction from Congress to fashion controlling
rules of admiralty law." Fitzgerald has continued to be good law
following the merger of the rules of admiralty procedure with those of
civil procedure," and it demonstrates the inherent power of the federal
court to provide a jury in admiralty cases where necessary to prevent an
injustice.
Far from precluding a jury trial, Rule 38(a) provides, "The right of
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." Even though neither the Seventh Amendment nor the saving-
to-suitors clause requires a jury trial when a maritime case is removed, the
policy of preserving the power of the plaintiff to determine whether a
maritime case will be triable by jury ought to be respected. This policy is
reflected in Rule 9(h) itself, which preserves to the plaintiff the power to
determine whether a maritime case that is within the federal jurisdiction
on more than one ground will be triable to a jury. The saving-to-suitors
clause embodies the same policy. Under it, even if the only basis for
federal jurisdiction is admiralty, the plaintiff can obtain a jury trial by
bringing the case in state court. There is no policy for allowing the
removal of such a case to strip the plaintiff of that historic right.

87. Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1057, 1997 AMC 1936, 1944 (9th
Cir. 1997), cert denicc 522 U.S. 1107 (1998); Haskins v. Point Towing Co., 395 E2d 737, 740,
1968 AMC 1193, 1197 (3d Cir. 1968).
88. 374 U.S. 16, 21, 1963 AMC 1093, 1097 (1963); cf Cunningham v. Bethlehem Steel
Co., 231 E Supp. 934, 937 (S.D.N.Y 1964). In Cunningham, which was decided before the
merger of the admiralty and civil rules, some crewmen died while at sea but it was uncertain if
their deaths occurred on the high seas or in territorial waters. Cunningham, 231 E Supp. at 936.
Their estates sued in state court based on the Death on the High Seas Act, various state wrongful
death statutes and state survival statutes. Id.There was no diversity jurisdiction. Id The
defendant removed to federal court based on the federal question jurisdiction created by the Death
on the High Seas Act, and the clerk placed it on the civil (nonadmiralty) docket. Id.The court
transferred the action to the "admiralty side" but held that if it were later determined that the
federal wrongful death statute did not apply, the court could either remand to state court "or it
may afford the plaintiffs ajury trial on their saving to suitors clause claims." Id. at 937.
89. Ftzgeral4 374 U.S. at 20, 1963 AMC at 1096-97.
90. See Friedell, supra note 26, at 157 n.90 (collecting cases).
2006] REMO VAL JURISDICTION

The FRCP take pains to preserve the right to jury trial of a removed
action even if an express demand for jury trial was not required by the
state where the action was originally filed.9' In short, a plaintiff who has a
right to jury trial in state court does not waive that right when the case is
removed. The only question is whether Congress meant to confer on the
defendant the power to force a plaintiff against its will into a nonjury
forum by removing the case to federal court. Given the strong historical
support for juries, courts should not interpret the removal statute as
granting that power. Courts have recognized as much when they remand
admiralty actions to state court under the conventional view that there is
no removal "into admiralty."9' The conventional view preserved the
plaintiff's jury demand at the expense of trampling over the removal
statute. It would be preferable to provide a jury trial in federal court,
thereby according each side its essential right-the plaintiff's right to jury
and the defendant's right to remove.
Some might object that saving-to-suitors clause saves more than a
right to jury trial. It saves all other common-law remedies including the
right to bring an in personam action in state court. In support of this
argument one might cite a recent Supreme Court case, Lewis v Lewis &
Clark Marine, Inc.,3 which held that even when a plaintiff in state court
does not demand a jury, the defendant shipowner could not automatically
defeat the plaintiff's choice of forum by filing a petition to limit liability
in federal court. Although normally the federal courts, which have
exclusive jurisdiction to hear limitation actions, will enjoin state actions,
they will not do so where the state-court plaintiff stipulates that the
damages in the state court proceeding will not exceed the amount of the
limitation fund. " The United States Court of Appeals for the Eighth
Circuit in Lewis ruled in favor of the shipowner, reasoning that in the
absence of a jury trial demand there was no right under the saving-to-
suitors clause that would be harmed by enjoining the state court action. It
held that neither the right to sue in state court nor the right to pursue an in
personam remedy were protected by the saving-to-suitors clause. "5 The
Supreme Court reversed, saying, "Trial by jury is an obvious, but not
exclusive, example of the remedies available to suitors," and that the

91. FED. R. Civ. P. 81(c); see 29 MOORE'S FEDERAL PRACTICE, supra note 19,
§ 704.04[1][vi].
92. See 29 MOORE's FEDERAL PRACTICE, supranote 19, § 704.04[21[e].
93. 531 U.S. 438,455,2001 AMC 913, 925 (2001).
94. See Lake Tankers Corp. v. Henn, 354 U.S. 147, 152, 1957 AMC 1165, 1169 (1957);
Langnes v. Green, 282 U.S. 531, 543, 1931 AMC 511, 520 (1931).
95. Lewis & Clark Marine Inc. v. Lewis, 196 E3d 900, 908-09, 2000 AMC 305, 313-14
(8th Cir. 1999).
 TULANE MARITIME LA WJOURNAL [Vol. 30

shipowner's "arguments to limit and enumerate the saved remedies under

the saving to suitors clause must fail in view of the consistent recognition
by Congress and this Court that both state and federal courts may be
proper forums for adjudicating claims such as petitioners."96
Lewis is not contrary to the position of this Article. Lewis involved
a petition to limit liability, not an attempt to remove." A petition to limit
liability in federal court is not necessarily inconsistent with allowing a
concurrent action in state court under the saving-to-suitors clause. The
courts have a long history of accommodating both statutory rights." By
contrast, a defendant's notice of removal defeats the plaintiff's choice of
forum. That is the primary purpose of removal. One cannot reasonably
argue that the saving-to-suitors clause trumps the defendant's right to
remove, for if that were so there would be no basis for allowing removal
even when there was diversity or federal question jurisdiction."

V FRAMEWORK FOR CHANGE

The solution to the removal problem in admiralty depends in part on

the purpose served by the grant of admiralty jurisdiction and the saving-
to-suitors clause. Much has changed since the late eighteenth and
nineteenth centuries. At that time states not only had concurrent judicial
jurisdiction over most admiralty claims, they had the power to apply their
own laws within their courts.'" Also, federal courts having only admiralty
jurisdiction had no power to provide equitable relief. In that climate, it
was more sensible to take a limited view of the power of defendants to

96. 531 U.S. at 454-55, 2000 AMC at 925.

97. Indeed removal would have been precluded in that case because the state court
proceeding was under the Jones Act, which Congress has made nonremovable. Id.at 455, 2000
AMC at 925; see also infra note 106 and accompanying text.
98. See Lake Tankers, 354 U.S. at 152, 1957 AMC at 1169; Langnes, 282 U.S. at 543,
1931 AMC at 520.
99. 14A WRIGHT, MILLER & COOPER, supm note 19, at 364-65. The contrary view is that
if a case is removed, the conflict must be resolved in favor of the saving-to-suitors clause.
Professor Sharpe has written:
Where two courts have concurrent jurisdiction of a theory of claim, and where the
plaintiff has chosen a proper state court in which to commence the action, the
defendant's preference is an insufficient reason to remove the case to a federal court
that is no more than equally proper. In this view, jury trial in the state court under the
saving clause trumps non-jury trial in federal admiralty.
Sharpe, Removal to Admimity Revisiteg supra note 19, at 491 (footnote omitted). Aside from
reifying the notion of a federal admiralty court, this view undermines the removal statute which is
premised on the view that defendant's ought to have the power to remove cases even though the
plaintiff initiated action in a proper state court.
100. E..g., The Hamilton, 207 U.S. 398, 404 (1907); Belden v. Chase, 150 U.S. 674, 688
(1893). See generallyDAVID ROBERTSON, ADMIRALTY AND FEDERALISM 148 (1970).
2006] 6REMO VAL JURISDICTION

remove admiralty cases to federal court. Removal would not only change
the forum but might also change the law applied, and when equitable
relief was sought, would have defeated the plaintiff's claim on
jurisdictional grounds.
That is not the situation today. Federal courts today can provide
equitable relief even though the case is solely within its admiralty
jurisdiction.' Although the Court has indicated that admiralty
jurisdiction will not necessarily displace state law' 2 and that it will seek to
accommodate state interests, 3 the choice of jurisdiction, state or federal,
will not play the critical role that it played in the nineteenth century.
Theoretically, the substantive law will not vary depending on the choice of
forum, and in practice federal and state courts seem to adhere to this
principle."
Although federal courts play a critical role in administering
admiralty law,"' state courts often provide plaintiffs a convenient forum
and access to a jury in most cases where a money judgment is sought.
Because states also have an interest in the resolution of maritime disputes,
it is appropriate that plaintiff have the option of suing in state court. The
saving-to-suitors clause thus serves an important role, albeit a different
one from the one it served in the nineteenth century.
Is there any reason to treat the maritime defendant differently from
other defendants when it comes to the issue of removal? Maritime cases
lie somewhere between federal question cases and diversity cases.
Defendants in federal question cases are allowed to remove without
regard to citizenship to make sure that federal courts can vindicate the
federal interest involved. In diversity cases, only out-of-state defendants
can remove because state law will govern the case and the only federal
interest is to reduce the potential unfairness to the out-of-state defendant.
In admiralty cases, as we have seen, although both the states and the
federal government have a potential interest in the law to be applied, the
federal interest must not be defeated and uniformity must not be
undermined. That is a vague standard, and the solution to the removal

101. See sources cited supra note 10.

102. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545, 1995
AMC 913, 927 (1995).
103. Norfolk S. Ry. v. Kirby, 125 S. Ct. 385, 395, 2004 AMC 2705, 2713 (2004).
104. See supra notes 43-45 and accompanying text.
105. It is only in federal court that one can sue vessels in rem, which is vitally important to
preserve the assets necessary to satisfy a claim. The Moses Taylor, 71 U.S. (4 Wall.) 411, 431
(1866). Moreover, federal courts may have personal jurisdiction in situations where no state court
would be capable of hearing the case. See Nissho Iwai Corp. v. MN Star Sapphire, 1996 AMC
509, 513 (S.D. Tex. 1995).
 TULANE MARITIME LA WJOURNAL [Vol. 30

question depends to some extent on the role that state law is allowed to
play in maritime matters. If state law is to continue to play a secondary
role, or if its role is to be even further limited, Congress could justifiably
treat admiralty cases like federal question cases for removal purposes.
It might be wiser, however, to distinguish between the types of cases.
Congress has provided that a seaman's personal injury claim under the
Jones Act will not be removable,' °6 even though the Jones Act preempts
state law from being applied' 7 and even though the Jones Act allows the
plaintiff to seek a jury trial in federal court.' 8 It might be wise to apply
this rule to all claims for personal injury. By contrast, commercial cases
are closer to the core of the federal interest, and it might be wise to make
all such cases removable without regard to the citizenship of the parties.' 9
There is also a greater federal interest when a maritime case involves a
foreign party or an international voyage, and it might make sense to allow
removal of all such cases to federal court. If Congress were to consider
the matter carefully, it might decide to amend the statute in one of these
ways or even to amend the statute to codify the conventional
interpretation of the current system. The choice for reform is up to
Congress, however, not the courts.

V CONCLUSION

The rule that precludes removal where the only basis of federal
jurisdiction is admiralty is well entrenched. Although others have
expressed mild misgivings, there has been no serious challenge to the rule
in many years. The consistent practice of the lower courts makes one
cautious to suggest an alternative approach. However, the statute is clear
in its command. The statute as written is not lacking in sense. It allows
out-of-state defendants to remove an admiralty claim even in the absence
of diversity or some other basis of federal jurisdiction. The statutory
scheme is at least as sensible as the current practice of allowing removal
of an admiralty claim only when some other basis of jurisdiction exists.
It seems that the conventional view is the product of two factors.
One factor is the conception of the federal court consisting in part of an
"admiralty court" or an "admiralty side." This has led to the belief that
there can be no removal to that court or that side. The other factor is the

106. 28 U.S.C. § 1445(a) makes FELA claims nonremovable, and this is deemed to be
incorporated into the Jones Act. 46 U.S.C. app. § 688(a) (2001); Pate v. Standard Dredging Co.,
193 F2d 498, 1952 AMC 287 (5th Cir. 1952).
107. See Lindgren v. United States, 281 U.S. 38, 45 (1930).
108. Pan. R.R. Co. v. Johnson, 264 U.S. 375,383 (1924).
109. See Black, supianote 64, at 276.
2006] REMO VAL JURISDICTION 99

fear that removal based only on admiralty jurisdiction will entail a nonjury
trial. Each of these factors is false. The federal court is a single entity and
is capable of providing a jury trial to a removed case.
The position advocated in this Article will not satisfy everyone.
Some will object simply because it challenges a long held tradition.
Others will object because it defeats the plaintiff's choice of forum. Yet
others who seek removal to defeat the plaintiff's jury demand will be
disappointed because this Article suggests that federal courts provide the
plaintiff with a right to jury when the case has been properly removed.
Nor does this Article suggest that the position advocated here is the best
possible scheme. It is, however, the scheme that satisfies the demands of
the removal statute while preserving the historic right to jury trial.