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Maritime Law

The Difficulty and Confusion Surrounding Removing Maritime Cases to Federal Court

Michael Orlando | June 1, 2002

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An oil rig platform out at sea

Michael Orlando helps clear up the confusion and provides some cases to consult when confronted with removal in an admiralty context of separate and independent claims or causes of action.

This article will complete the discussion of the general removal statute 28 U.S.C. § 1441. Please see my prior article on section (a) and (b) of the statute. In this article we will discuss section (c), which is equally confusing and difficult in its interpretation and application. Statute 28 U.S.C. § 1441(c) permits removal of separate and independent federal claims and causes of action. On first reading, the statute seems straightforward:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by Section 1331 [federal question] of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein or, in its discretion, may remand all matters in which State law predominates.

As noted by the Fifth Circuit Court of Appeals in Texas v Walker, 142 F3d 813, 816 (5th Cir 1998), "Section 1441(c) is difficult to interpret . . . ." In discussing the removal statute generally in the admiralty context, Michol O'Connor in her Practice Guide and Annotated Federal Rules of Civil Procedure and Evidence, 2002, states "This area is extremely confusing." p. 172 § 6.5. This article will attempt to bring into focus the issues and provide some cases to consult when confronted with removal in an admiralty context relating to separate and independent claims or causes of action.

"Separate and Independent Claims"

Let's begin by looking at what is meant by the phrase "separate and independent claims or causes of action." Generally, that means the federal claim must be distinct from the nonremovable claim. The U.S. Supreme Court has stated, "Where there is a single wrong to the plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under Section 1441(c)." [American Fire & Casualty Company v Finn, 341 U.S. 6, 14, 71 S Ct 534, 540, 95 Lawyers Ed. 2d 702 (1951).]

The Fifth Circuit in the Walker case interpreted this to mean that in a case "involving the violation of a single primary right or wherein a party seeks redress for one legal wrong cannot contain separate and independent claims, despite multiple theories of liability against multiple defendants." [142 F2d at 817.] Put more basically, this has been construed to mean that claims are not to be considered separate and independent when they involve substantially the same facts or transactions.

Typically, those claims arise in the context of third-party complaints, but they can arise in counterclaims and cross-claims, as well. Generally, a defendant may not use Section 1441(c) to remove a case to federal court based on either federal defenses or on a counterclaim based on federal law. (The Walker case, however, is an example of when a counterclaim may be separate and independent.)

In an admiralty setting, a classic example of how this issue arises is when a defendant files a third-party complaint for contractual indemnity, and a third-party defendant removes the case to federal court alleging the third-party complaint raises separate and independent claims from those raised by the plaintiff in the main case. Reinforcing the notion that Section 1441(c) is a notoriously difficult statute to interpret, there is a circuit split on whether a third-party defendant may remove a case at all. The Fifth Circuit allows removal by third-party defendants. See In re Wilson Industries, 886 F2d 93 (5th Cir 1989). District courts in New York and Illinois have denied such a right. 1

In Re Wilson

Two cases illustrate the issues. The first and the most simple is the case of In Re Wilson Industries. That case involved a suit by a worker on an offshore drilling rig who claimed personal injuries from a fall. The plaintiff sued in state court. He sued Union Oil, among others. Union Oil filed a third-party complaint against Wilson Industries claiming tort based indemnity, i.e., that Wilson was directly responsible to the plaintiff for the plaintiff's injuries.

Wilson removed the case to federal court, claiming that the third-party complaint stated a cause of action under OCSLA, 43 U.S.C. § 1349(b)(1) and that it could have been filed originally in federal court under federal question jurisdiction, 28 U.S.C. § 1331. The Fifth Circuit took a very simple approach in its analysis in holding that a tort-based indemnity claim was not separate and independent under Section 1441(c) because the essence of the third-party complaint was that the third-party defendant caused the plaintiff's injuries, which was the same type of claim as was involved in the main case.

The court distinguished this tort based indemnity claim from the contractual indemnity claim that was the basis in Carl Heck Engineers, Inc. v Lafourche Parish Police Jury, 622 F2d 133 (5th Cir 1980). The Wilson Industries court would have allowed the removal had the third-party complaint been based on contractual indemnity rather than tort based indemnity. 2

Rivas v Energy Partners

Another case that is instructive is Rivas v Energy Partners, 2000 WL 127290 (ED La 2000), but for different reasons. Rivas is at the opposite end of the spectrum in terms of its complexity of analysis. In keeping with what was noted at the outset of this paper, Judge Duval of the Eastern District of Louisiana states at the beginning of the discussion of the Section 1441 issues: "While the jurisprudence concerning the interplay of OCSLA and maritime claims is plentiful, unanswered questions and confusion abound."

In Rivas, at issue was the removal of the Outer Continental Shelf Lands Act (OCSLA) claims and maritime claims. Rivas did not involve removal of a third-party claim, but it is nevertheless instructive on the mechanics of § 1441(c). The plaintiff in Rivas was injured when he was being transferred from a fixed offshore oil platform on the Outer Continental Shelf to a supply vessel. He sued the owner of the fixed platform for negligence arising from operations on the platform, and he sued the vessel owner for negligence relating to operation of the vessel.

The court found that Rivas's claims against the owner of the fixed platform were governed solely by OCSLA and that the court had federal question subject matter jurisdiction over the claim because adjacent state law applied as surrogate federal law. As to the claim against the vessel owner, the court found that claim was governed by general maritime law. There was no diversity of citizenship between the parties.

The defendants removed the case to federal court based on OCSLA. The plaintiff argued that his general maritime law claim trumped the OCSLA claim, that there was no diversity of citizenship that would make the maritime claim removable, and that there was a local defendant, making the claim nonremovable under 28 U.S.C. § 1441(b).

The defendants argued that OCSLA vested the court with removal jurisdiction under 28 U.S.C. § 1441(b), despite plaintiff's general maritime claim and the savings to suitors clause. Alternatively, the defendants argued that even if the court did not have removal jurisdiction under 28 U.S.C. § 1441(b), the maritime claim was removable under 28 U.S.C. § 1441(c) because it was joined with, and was separate and independent from, an otherwise removable claim (the OCSLA claim).

The court, citing Hufnagel v Omega Service Industries, Inc., 182 F3d 340 (5th Cir 1999), and Tennessee Gas Pipeline v Houston Casualty Ins. Co., 87 F3d 150 (5th Cir 1996), found that the plaintiff's general maritime claim was not removable pursuant to 28 U.S.C. § 1441(b), as it was a maritime claim (not a federal question), and both defendants had principal places of business in Louisiana where suit was filed.

The court also noted that the case before it was distinguishable from Hufnagel and Tennessee Gas Pipeline in that in the case before it, OCSLA and maritime law overlapped. (In Hufnagel, the claims were solely state law claims which were made surrogate federal law under OCSLA, and in Tennessee Gas Pipeline, the claims were solely maritime claims). The court in Rivas specifically stated that the Fifth Circuit had never held that where OCSLA and general maritime law overlap, the case is removable without regard to citizenship.

The court in Rivas also stated that "[a]lthough the Fifth Circuit has suggested in dicta that when OCSLA claims and maritime claims overlap, the congressional intent of OCSLA might support removal under the first sentence of § 1441(b), [i.e., based on federal question alone], this court will not make that leap." [Id. at *5.] The general maritime law claim against the vessel owner was not removable because there was no diversity of citizenship in Rivas.

The court in Rivas went on to evaluate the applicability of removal under 28 U.S.C. § 1441(c). The court explained that if the plaintiff's claim against the vessel owner was maritime, and no other doctrinal basis existed for removal of that claim, then the propriety of the removal of the entire case had to be analyzed under 28 U.S.C. § 1441(c) which governs the removal of federal question claims which are joined with nonremovable claims. Section 1441(c) provides that the federal question claim must be separate and independent from the nonremovable claims.

In Rivas the defendants argued that the OCSLA federal question claim and the maritime claim were separate and independent. The court, however, determined that the plaintiff's federal question OCSLA claim and maritime claim were not separate and independent as they arose out of the same transactions/facts, citing the American Fire case. Accordingly, the case was not removable under section 1441(c), and the plaintiff's motion to remand was granted.

In sum, in Rivas there were federal question claims under OCSLA because the adjacent state law became surrogate federal law, and there were overlapping maritime claims. It turns out the case was not removable under 1441(c) because the claims arose out of the same facts.

When applied to a third-party defendant, this rule requires that the defendant/third-party plaintiff's federal claims against the removing third-party defendant be "separate and independent" from the plaintiff's claims against the original defendant. To support removal based on federal question jurisdiction, the third-party defendant must allege facts from which the court could conclude (1) that the third-party claims are "separate and independent" obligations; and (2) that a federal court would have had federal question jurisdiction over the dispute between the third-party plaintiff and third-party defendant if the action had been brought separately.

Both need to be patently obvious and beyond dispute. Gray areas in either factor will most certainly lead to a remand back to state court. Due principally to the fact that much of maritime law is judge-made, seldom are there issues that do not have gray areas. Couple that with the fact that courts struggle in the first instance to interpret the general removal statute and you have several layers of confusion added to the mix.


Having been involved very recently in two cases in which removal was attempted pursuant to Section 1441(c) in maritime/OCSLA contexts, I can attest to the complexity and confusion that surrounds the law in this area. 3

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1 Birmingham, Underwood, Barron, Wright & White v Luckenbach Steamship Company, 208 F Supp 544 (SD NY 1962); Halloway v Gamble-Skogmo, Inc., 274 F Supp 321 (ND Ill 1967).
2 See also Eyak Native Village v Exxon Corp., 25 F3d 773 (9th Cir 1994), where the court dealt with some very difficult issues concerning certain classes of claims for damages being separate and independent from others. In Eyak, the court decided that the trust plaintiff's claims for damages to the natural resources out of the Exxon Valdez spill were separate and distinct from the class actions of individuals who were seeking compensatory damages for separate recoveries.
3 See, Michael C. Massengale, Note, Riotous Uncertainty: A Quarrel with the "Commentators Rule" Against Section 1441(c) Removal for Counterclaim, Cross-Claim, and Third-Party Defendants, 75 Texas Law Review 659 (1997). For a discussion of the split in the federal circuits, See 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3724, at 388-393 (1985 and Supp. 1997).