87 F.3d 150 | 5th Cir. | 1996
Lead Opinion
An ocean-going vessel, in the tow of a tug whose helmsman was reading a novel, abided with a platform secured to the outer continental shelf some 35 miles off the coast of Louisiana. The platform owner filed suit in state court against a non-diverse insurer of the tug, contending both that the abision gave rise to a federal maritime claim that was “saved to suitors” under 28 U.S.C. § 1333, and that the Louisiana direct action statute gave it the right to proceed against the insurer directly. The insurer removed the case, asserting that the federal courts had federal question jurisdiction because the suit arose under the Outer Continental Shelf Lands Act (OCSLA).
Tennessee Gas Pipeline Company (Tennessee Gas or appellant), a citizen of Texas, owned and operated a fixed platform in West Cameron Block 192, on the outer continental shelf approximately 35 miles off the coast of Louisiana. On September 23, 1992, the barge Iron Mike, in the tow of the tug M/V Gulf Miss, abided with the platform, substantially damaging it and disrupting its operation for a considerable length of time. Houston Casualty Company (HCC or appellee), also a citizen of Texas, is an insurer of the several entities which owned, operated, or chartered the MW Gulf Miss (collectively Tidewater).
Following the abision, Tennessee Gas sued HCC in the state direct action suit at issue in this appeal. Tennessee Gas admits forthrightly that it attempted to craft its lawsuit to avoid federal removal jurisdiction. First, in order to defeat diversity jurisdiction, and as allowed under Louisiana law, Tennessee Gas sued only HCC, even though HCC underwrote only 4% of the risk covered under Tidewater’s insurance policy. And second, Tennessee Gas tried to defeat federal question jurisdiction by asserting only a general maritime claim saved to suitors under 28 U.S.C. § 1333,
But even assuming that Tennessee Gas has defeated diversity jurisdiction and that its well-pleaded complaint asserts a maritime claim that is saved to suitors, we nevertheless have removal jurisdiction.
A. Anchored Law
HCC, the removing party, bears the burden of demonstrating the propriety of removal
(a) Except as otherwise expressly provided by Act of Congress, any civb action*153 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.
It is well-established that maritime claims do not “aris[e] under the Constitution, treaties or laws of the United States” for purposes of federal question and removal jurisdiction.
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.7
In this case OCSLA provides an alternative basis for original jurisdiction.
B. OCSLA Original Jurisdiction
OCSLA declares that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition. .. .”
One purpose of OCSLA was to define the law applicable to the seabed, subsoil, and fixed structures on the OCS.
While OCSLA was intended to apply to the full range of disputes that might occur on the OCS, it was not intended to displace general maritime law. This is clear from both the statute itself and holdings of this court. According to the statute, “this sub-chapter shall be construed in such a manner that the character of the waters above the outer Continental Shelf as high seas and the right to navigation and fishing therein shall not be affected.”
OCSLA not only defines the law applicable to the OCS, but also grants federal courts jurisdiction over disputes occurring there. The jurisdictional grant, contained in 43 U.S.C. § 1349(b)(1), is very broad. With exceptions not relevant here, the statute provides that
the district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with (A) any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals, or (B) the cancellation, suspension, or termination of a lease or permit under this subchapter.
We have no difficulty in deciding that § 1349 grants original jurisdiction in federal court over Tennessee Gas’s claim. The statute does not define the term “operation.” However, this court has defined “operation” to be “the doing of some physical act.”
It is clear that the operation involves “exploration, development, or production” of minerals on the OCS. These terms denote respectively the processes involved in searching for minerals on the OCS;
But did the accident “arise out of, or in connection with” Tennessee Gas’s operation on the OCS? In Recar v. CNG Producing Co., we applied a “but for” test under § 1349 to resolve whether a dispute “arises out of, or in connection with” an operation, thus granting the federal courts subject matter jurisdiction.
In our case it is clear there would have been no accident but for Tennessee Gas’s operation on the OCS. Tennessee Gas argues that the dispute “arose out of’ a navigational error, and not an operation on the OCS. But there would have been no navigational error but for the existence of the platform and Tennessee Gas’s extractive activities. Tennessee Gas also argues that the platform itself did nothing to cause the accident, so that the controversy is not connected with any physical act constituting an operation. This contention is meritless. The undeniable fact is that there would not have been an accident had Tennessee Gas not built its platform to extract minerals from the OCS. Jurisdiction therefore exists under OCSLA.
Our conclusion that OCSLA confers original jurisdiction over this suit is unaffected by the maritime nature of the underlying claim. In Recar we considered whether OCSLA conferred subject matter jurisdiction over the plaintiffs action to recover damages for injuries sustained on the OCS. The plaintiff argued that OCSLA did not confer jurisdiction because of the maritime nature of the case. We held that the district court may have both admiralty and OCSLA jurisdiction.
C. Removal of Maritime Claims Under OCSLA
Our conclusion that OCSLA vests the federal courts with original subject matter jurisdiction over this ease establishes that removal is proper under 28 U.S.C. § 1441(a). We go to § 1441(b) and encounter a problem in deciding whether we have removal jurisdiction under the first sentence.
The question under the first sentence of § 1441(b) is whether the district court has “original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States.”
Two of our eases may be read to support removal of general maritime claims under the first sentence of § 1441(b) when original jurisdiction is conferred by OCSLA. The first is Sea Robin. In that ease, Amoco filed suit against Sea Robin in Louisiana state court, alleging that Sea Robin breached a take-or-pay contract to buy natural gas Amoco produced on the OCS. Sea Robin removed, and we held that removal was proper because “this controversy is within federal
The second case is Recar, which concerned the court’s original, not removal, jurisdiction. In that case, we held that we had original jurisdiction under OCSLA (43 U.S.C. § 1349) over a personal injury claim, even if maritime law eventually provided the substantive law in the case.
Two district court cases are on point. In Walsh v. Seagull Energy Corp.,
In our ease, unlike in Walsh and Fogleman, removal is consistent with the second sentence of § 1441(b) — HCC is a citizen of the state of Texas, but suit was brought in Louisiana. We recognize that it may be a distortion of the legal scheme to decide this case on the citizenship of HCC. Given the national interests that prompted Congress to pass OCSLA and grant broad jurisdiction under 43 U.S.C. § 1349, Congress arguably intended to vest the federal courts with the power to hear any case involving the OCS, even on removal, without regard to citizenship.
Perhaps congressional intent under OCS-LA may have supported removal under the first sentence of § 1441(b), though the language of that sentence might not carry the intent; while the language of the second sentence supports removal, though the purpose of the sentence (diversity) is arguably irrelevant to our case. We need not resolve this conundrum, however, for removal is consistent with the second sentence of § 1441(b), if not the first.
For the foregoing reasons, we AFFIRM the judgment of the district court denying remand to state court, and remand the case to the district court for further proceedings.
AFFIRMED.
. 43 U.S.C. § 1331, etseq.
. See 28 U.S.C. § 1292(b).
. 28 U.S.C. § 1333 states:
The 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....
. Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961).
. Romero v. International Terminal Operating Co., 358 U.S. 354, 377-79, 79 S.Ct. 468, 483, 3 L.Ed.2d 368 (1959) (holding, inter alia, that federal courts do not have federal question jurisdiction over general maritime claims because such claims do not "arise under the Constitution, treaties, or laws of the United States" within the meaning of 28 U.S.C. § 1331); In re Dutile, 935 F.2d 61, 63 (5th Cir.1991) (holding that saving clause claims cannot be removed under 28 U.S.C. § 1441(b) on the sole basis that the maritime claim presents a federal question).
. See, e.g., Poirrier v. Nicklos Drilling Co., 648 F.2d 1063, 1066 (5th Cir.1981) (permitting removal of a maritime claim where diversity jurisdiction exists); Williams v. M/V Sonora, 985 F.2d 808 (5th Cir.1993) (permitting removal of a maritime claim where jurisdiction is proper under the Federal Sovereign Immunities Act).
.Poirrier, 648 F.2d at 1066.
. 43 U.S.C. § 1332(1).
. 43 U.S.C. § 1332(3).
. 43 U.S.C. § 1333(a)(1) (providing that mineral leases on the outer continental shelf shall be maintained or issued only under the provisions of OCSLA).
. Rodrigue v. Aetna Cas. And Sur. Co., 395 U.S. 352, 355-56, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969).
. 43 U.S.C. § 1333.
. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479-81, 101 S.Ct. 2870, 2876, 69 L.Ed.2d 784 (1981); 43 U.S.C. § 1333(a)(2).
. Rodrigue, 395 U.S. at 357-58, 360-66, 89 S.Ct. at 1838, 1840-42.
. 43 U.S.C. § 1332(2).
. 43 U.S.C. § 1333(f) is entitled "Provisions as nonexclusive,” and states:
The specific application by this section of certain provisions of law to the subsoil and seabed of the outer Continental Shelf and the artificial islands, installations, and other devices referred to in subsection (a) of this section or to acts or offenses occurring on committed thereon shall not give rise to any inference that the application to such islands and structures, acts, or offenses of any other provision of law is not intended.
. See, e.g., Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992) (for OCSLA to apply, federal maritime law must not apply of its own force); Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1229 (5th Cir.1985) ("[W]here admiralty and OCSLA jurisdiction overlap, the case is governed by maritime law.”); Smith v. Pan Air Corp., 684 F.2d 1102, 1110 n. 26 (5th Cir.1982) (assuming that admiralty jurisdiction is lacking if the substantive law applicable is OCSLA-imposed state law).
. Amoco Production Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1207 (5th Cir.1988).
. 26 F.3d 563 (5th Cir.1994).
. Id. at 567-68.
. 43 U.S.C. § 1331 (k).
. 43 U.S.C. § 1331(0.
. 43 U.S.C. § 1331(m).
. 853 F.2d 367, 369 (5th Cir.1988) (adopting under § 1349 the but-for test this court has applied under § 1333(b)(2) to determine whether the death of an employee occurred "as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing or transporting” the natural resources of the OCS).
. EP Operating, 26 F.3d at 569 (quoting Fluor Ocean Servs., Inc. v. Rucker Co., 341 F.Supp. 757, 760 (E.D.La.1972)).
. Recar, 853 F.2d at 369.
. 28 U.S.C. § 1441(b).
. Sea Robin, 844 F.2d at 1210.
. Recar, 853 F.2d at 369.
. Id. (emphasis added).
. 836 F.Supp. 411 (S.D.Tex. 1993).
. 747 F.Supp. 348 (E.D.La. 1990).
. See Walsh, 836 F.Supp. at 417-18; Fogleman, 747 F.Supp. at 355-56.
. See Walsh, 836 F.Supp. at 417; Fogleman, 747 F.Supp. at 350, 356.
Concurrence Opinion
specially concurring:
I concur, but in doing so I simply observe that the majority’s discussion of the applicability of the first sentence of 28 U.S.C. § 1441(b) to claims over which we have original jurisdiction under 43 U.S.C. § 1349, Slip Op., at 4202-4203, is unnecessary to decide this case, and thus constitutes only dicta.
