VII. PRACTICE AND PROCEDURE G. Removal and Remand - Maritime Lawyer Hawaii
   

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Recent Personal Injury and Car Accident News


An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).



 

 

JONES ACT - TABLE OF CONTENTS

The Jones Act

VII. PRACTICE AND PROCEDURE G. Removal and Remand

596. Generally

Claim under the Jones Act (46 USCS Appx § 688) is not subject to removal from state court to federal court, even in the event of diversity of the parties. Lewis v Lewis & Clark Marine, Inc. (2001) 531 US 438, 148 L Ed 2d 931, 121 S Ct 993, 69 USLW 4129, 14 FLW Fed S 85, 2001 CDOS 1483, 2001 Colo J C A R 992, 2001 Daily Journal DAR 1877.

When seaman has elected to bring his 46 USCS Appx § 688 action in state court, cause is not removable to Federal court. Pate v Standard Dredging Corp. (1952, CA5 Tex) 193 F2d 498; Beckwith v American President Lines, Ltd. (1946, DC Cal) 68 F Supp 353; Rodich v American Barge Lines, Inc. (1947, DC Mo) 71 F Supp 549; Gutierrez v Pacific Tankers, Inc. (1948, DC Tex) 81 F Supp 278; Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662; Stokes v Victory Carriers, Inc. (1983, ED Pa) 577 F Supp 9; Keegan v Sterling (1985, SD Fla) 610 F Supp 789.

Libelant under Jones Act (46 USCS Appx § 688) has choice of forum and of jury trial, and no one else can change or remove action elsewhere. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.

Actions under 46 USCS Appx § 688 are non-removable. Preston v Grant Advertising, Inc. (1967, CA5 Fla) 375 F2d 439.

Jones Act claim filed in state court is not removable despite independent basis of federal jurisdiction unless Jones Act claim is joined with separate and independent claim that is within court's federal question jurisdiction. Hopkins v Dolphin Titan Int'l, Inc. (1992, CA5 La) 976 F2d 924.

Plaintiff sufficiently alleged Jones Act claim to trigger non-removability where it alleged that decedent was seaman, he was injured in course of employment, and he was borrowed servant of defendants. Lackey v Atlantic Richfield Co. (1993, CA5 Tex) 980 F2d 332, withdrawn by publisher, reported at (CA5 Tex) 24 FR Serv 3d 776 and substituted op (CA5 Tex) 983 F2d 620, reh, en banc, den (CA5) 1993 US App LEXIS 4580.

On removal of action begun in state court complaint must show that defendant has principal office within district of suit or that he was resident of that district. Martis v Luckenbach S. S. Co. (1923, DC NY) 295 F 569.

Suit brought under 46 USCS Appx § 688 in state court by personal representative of seaman, for injuries resulting in seaman's death, is not removable. Reyes v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 299 F 957.

Action in state court by seaman to recover damages for contracting tuberculosis, resulting from furnishing of improper living quarters on vessel, was based on negligence, and action being in personam it could not be removed to federal court. Cameron v American Mail Line, Ltd. (1934, DC Wash) 5 F Supp 939, 1934 AMC 201.

When seaman brings action for maintenance and cure, Jones Act -46 USCS Appx § 688- negligence, and unseaworthiness, he is seeking relief for single wrong and where seaman has only received one physical injury, and only relief he seeks is compensation for damages resulting from that injury, removal is not warranted. Skaw v Lady Pacific, Inc. (1983, DC Alaska) 577 F Supp 2.

Removal of action under Jones Act (46 USCS Appx. § 688) from state court upon defendant's filing for Chapter 11 bankruptcy was improper because actions commenced in state court under Jones Act are not subject to removal under 28 USCS § 1452, even though Bankruptcy Court would have had original jurisdiction over complaint under either Jones Act itself or under title 11; 28 USCS § 157 does not divest state courts of jurisdiction over personal injury claims pending before them. Kinder v Wisconsin Barge Line, Inc. (1986, ED Mo) 69 BR 11.

Notice of removal of case filed under 46 USCS Appx § 688, but within 30 days of time that defendant learned that plaintiff could not establish Jones Act claim, was timely. Walker v Nabors Offshore Drilling, Inc. (2000, ED La) 91 F Supp 2d 907.


597. Relation to removal provision of 28 USCS § 1445

Suit filed under Jones Act is not removable pursuant to 28 USCS § 1441 even assuming that plaintiff, by unintentionally naming but not serving vessel itself, created in rem claim; admiralty and general maritime claims are removable only if none of parties in interest is citizen of state in which action is brought. Re Dutile (1991, CA5 La) 935 F2d 61.

Statutory prohibition against removal of suits by railroad employees (28 USCS § 1445(a)) is one conferring or regulating right of action and as such applicable to suit by seaman under 46 USCS Appx § 688. McKee v Merritt-Chapman & Scott Corp. (1956, DC Ill) 144 F Supp 423.

28 USCS § 1445(a), which prohibits removal from state court of FELA actions, is made applicable to Jones Act cases by 46 USCS Appx § 688, which incorporates into Jones Act all statutes regulating FELA suits. Sawyer v Federal Barge Lines, Inc. (1982, SD Ill) 577 F Supp 37.


598. What constitutes separate and distinct actions

Injured seaman who brought complaint alleging negligence under Jones Act (46 USCS Appx § 688), and unseaworthiness under general maritime law, and also sought maintenance and cure, will not be allowed to remove entire action pursuant to 28 USCS § 1441(c), since maintenance and cure claim is not sufficiently distinct from Jones Act claim arising out of same set of operative facts to warrant removal. Gonsalves v Amoco Shipping Co. (1984, CA2 NY) 733 F2d 1020.

Maintenance and cure claims arising from single injury are not sufficiently separate and distinct for removal purposes. Addison v Gulf Coast Contracting Services, Inc. (1984, CA5 Miss) 744 F2d 494.

Removal of seaman's suit under Jones Act was improvidently granted because Jones Act incorporates provisions of Federal Employers' Liability Act (45 USCS § § 51 et seq.) prohibiting removal of cases instituted in state court and Longshoremen's claim is not a separate and independent claim since all claims arise out of a single wrong. Alajoki v Inland Steel Co. (1985, ED Mich) 635 F Supp 398.

In Jones Act suit (46 USCS Appx § 688), plaintiffs' direct state action against defendants' insurer is not separate and independent from claim against defendant, and may not be removed to federal court. Symoenides v Cosmar Compania Naviera, S. A. (1980, MD La) 494 F Supp 240.


599. Circumstances under which removable

In suit by wife of deceased seaman claiming damages under Jones Act and punitive damages for procuring her release through overreaching, release claim is not removable to federal court. Aquafaith Shipping, Ltd. v Jarillas (1992, CA5 La) 963 F2d 806.

Action under 46 USCS Appx § 688 for injuries resulting solely from unseaworthiness of vessel is removable to federal court. Petterson v Hobbs, Wall & Co. (1924, DC Cal) 300 F 811, 1924 AMC 327; Keefe v Matson Nav. Co. (1930, DC Wash) 46 F2d 123, 1931 AMC 426.

Defendants, against whom cause of action based on common law is joined with another defendant against whom cause of action exists under 46 USCS Appx § 688, were entitled to removal on ground of separable controversy. Schotis v North Coast Stevedoring Co. (1927, DC Wash) 24 F2d 591, 1928 AMC 92.

Action for assault was not within 46 USCS Appx § 688 prohibition against removal. Anderson v W. R. Grace & Co. (1929, DC NY) 38 F2d 889, 1930 AMC 113.

Action for death of seaman brought against owner of vessel and charterer was separable controversy and properly removed from state court to federal court and was not subject to remand to state court. Gardiner v Agwilines (1939, DC NY) 29 F Supp 348, 1939 AMC 1535.

Although defendant steamship company had service agreement with United States whereunder it procured master and members of crew for United States, injured seaman could not maintain action under 46 USCS Appx § 688 against defendant inasmuch as defendant did not man vessel and was not seaman's employer; hence, provision against removal in 45 USCS § 56, incorporated into 46 USCS Appx § 688, did not apply to seaman's action, and diversity of citizenship and jurisdictional amount existing, action was properly removed from state court to federal District Court. Baker v Moore-McCormack Lines (1944, DC Cal) 57 F Supp 207.

Contractual maintenance and cure claim is separate and distinct from Jones Act negligence claim for removal purposes. Howard v Transworld Drilling Co. (1984, WD La) 592 F Supp 1305.


600. Waiver of removal objections

Participation in every phase of District Court action without reservation or objection to removal of Jones Act action from state court does not constitute waiver since federal courts are without jurisdiction of such actions filed in state courts. Lirette v N.L. Sperry Sun, Inc. (1987, CA5 La) 810 F2d 533.

When Jones Act plaintiff who has selected state forum fails to object to removal of action to district court with subject matter jurisdiction and participates in conduct of action, district court may determine whether such actions amount to waiver of plaintiff's right to invoke 28 USCS § 1445(a). Lirette v N.L. Sperry Sun, Inc. (1987, CA5 La) 820 F2d 116.

"Jurisdiction" means "venue," and "principal office" means "head office" and action brought in United States district court in New York state should be dismissed after its removal from state court in New York; removal did not constitute general appearance waiver. Caceres v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 299 F 968; Atianza v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 299 F 975.

Fact that seaman's complaint for personal injuries included contractual wage claim did not act as waiver of plaintiffs' right to nonremoval. Goetz v Interlake S.S. Co. (1931, DC NY) 47 F2d 753; Beckwith v American President Lines, Ltd. (1946, DC Cal) 68 F Supp 353.

28 USCS § 1445 provides, indirectly, for nonremovability of 46 USCS Appx § 688 suits; failure of plaintiff to object to removal has no relevance. Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662.


601. Motion to remand

Mere allegation in motion to remand that cause is predicated on 46 USCS Appx § 688 is not enough to require district court to remand case to state court where action was originally brought. Preston v Grant Advertising, Inc. (1967, CA5 Fla) 375 F2d 439.

Subject matter jurisdiction of maintenance and cure claim is determined at time removal petition is filed, not at time of remand to state court. Addison v Gulf Coast Contracting Services, Inc. (1984, CA5 Miss) 744 F2d 494.

Where issues upon which removability of action under 46 USCS Appx § 688 appear from record to rest upon undisputed facts and documents, such issues may be resolved as matter of law; at least court can, on motion to remand, inquire far enough into factual issue to ascertain whether requisites of cause of action under 46 USCS Appx § 688 are present or whether, jurisdictionally, plaintiff is bound by 46 USCS Appx § 741 or other laws. Steele v American South African Line (1945, DC Cal) 62 F Supp 636.

Administratrix of estate of deceased deckhand commenced 46 USCS Appx § 688 action in state court for damages for wrongful death alleged to have resulted from negligence of defendant while deceased was employed on tug; when action was removed to federal court on ground of diversity of citizenship, plaintiff's motion to remand to state court was sustained since federal court was without jurisdiction. Rodich v American Barge Lines, Inc. (1947, DC Mo) 71 F Supp 549.

46 USCS Appx § 688 action removed improvidently and without jurisdiction will be remanded to state court. Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662.

Where plaintiff has filed state court action for injuries sustained in course of employment and has asserted cause of action under Jones Act (46 USCS Appx § 688), federal court determining motion to remand filed after defendant has removed case to federal court examines plaintiff's pleadings as they stood at time removal petition was filed; in absence of any issue of fraudulent attempt to evade removal, court determining whether cause of action under Jones Act has been alleged is limited to review of plaintiff's pleadings. Hollis v Halter Marine, Inc. (1984, ED La) 595 F Supp 827.

JONES ACT - TABLE OF CONTENTS


 

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Jones Act maritime law and seaman cases

STATUTE'S LANGUAGE

CASE LAW


I. IN GENERAL

A. General Principles

B. Other Remedies

1. Traditional Maritime
Remedies

2. Federal Law Remedies

3 Remedies by State Law

C. Foreign Involvement

1. In General

2. Place of Injury

3. Flag or Ownership
of Vessel

a. In General

b. Foreign Ownership

c. Foreign Vessels
with American Interests

4. Nationality of Seaman

5. Other Factors



II. PERSONS ABLE
TO RECOVER

A. Seamen

1. General Principles

a. In General

b. Status as Seaman

2. "Vessel in Navigation"

a. In General

b. Status of Vessel

c. Particular Vessels

3. Particular Seamen

B. Representatives of
Seamen



III. EMPLOYMENT

A. In General

B. Particular Entities
as Employers

C. In Course of
Employment



IV. NEGLIGENCE

A. In General

B. Vicarious Liability

1. In General

2 Particular Acts of Crew

C. Circumstances of
Injury

1. Assault

a. In General

b. Assaults Among Crew
& Officers

2. Improper Supervision

a. In General

b. Particular Acts

3. Medical Care

4. Particular Properties
of Vessel & Dock

5. Other Circumstances



V. DEFENSES

A. Seaman's Conduct

1. Comparative
Negligence

2. Assumption of Risk

3. Particular
Circumstances

B. Release

C. Limitations of Actions

1. Statutory Limitations

2. Laches

D. Collateral Estoppel
& Res Judicata

E. Limitation of Liability

F. Other Defenses



VI. DAMAGES

A. In General

B. Damages for Injury

1. Elements of Damages

2 Award Deductions

C. Wrongful Death

1. Elements of Damages

2. Computation of Award



VII. PRACTICE &
PROCEDURE

A. State Court Actions

B. Jurisdiction

1. In General

2. Bases of Jurisdiction

C. Venue

1. In General

2. Bases of Venue

3 Forum Non Conveniens

D. Election of Remedies

1. In General

2. Particular Remedies

E. Institution of Action

F. Pleadings and Motions

1. Complaint

2. Answer

3. Motions

G. Removal and Remand

H. Discovery

I. Jury

1. Right To Jury Trial

2. Submission of Issues

J. Evidence

1. In General

2. Plaintiff's Burden
of Proof

3. Defendant's Burden

4. Admissibility

K. Appeal and Review

L. Settlement

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