Independent Contractors with Seamen Status
Illustrative of the unbroken line of federal cases holding that persons working on ships for independent contractors or persons rightfully transacting business on ships can recover for damages due to shipowners' negligence are: Leathers v. Blessing, 1882, 105 U.S. 626, 26 L.Ed. 1192; The Max Morris, 1890, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; Gerrity v. The Kate Cann, D.C.1880, 2 F. 241; The Helios, D.C.1882, 12 F. 732, decision by Judge Addison Brown; Grays Harbor Stevedore Co. v. Fountain, 9 Cir., 1925, 5 F.2d 385; Tide Water Associated Oil Co. v. Richardson, 9 Cir., 1948, 169 F.2d 802; Brady v. Roosevelt S.S. Co., 1943, 317 U.S. 575, 577, 63 S.Ct. 425, 426, 87 L.Ed. 471. See also cases collected in 44 A.L.R. 1025--1034.
Removal to Federal Court
A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file
in the district court of the United States for the district and division within
which such action is pending a notice of removal signed pursuant to Rule 11 of
the Federal Rules of Civil Procedure and containing a short and plain statement
of the grounds for removal, together with a copy of all process, pleadings, and
orders served upon such defendant or defendants in such action.
Since the procedure in removal cases is now governed by the Federal Rules of Civil Procedure [Rule 81(c) ] and Federal Rules of Criminal Procedure [Rule 54(b) ], the detailed directions of the various sections with respect to such procedure were omitted as unnecessary.
1949 Acts. Subsection (b) of section 1446 of Title 28, U.S.C., as revised, has been found to create difficulty in those States, such as New York, where suit is commenced by the service of a summons and the plaintiff's initial pleading is not required to be served or filed until later.
The first paragraph of the amendment to subsection (b) corrects this situation by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff's initial pleading.
This provision, however, without more, would create further difficulty in those States, such as Kentucky, where suit is commenced by the filing of the plaintiff's initial pleading and the issuance and service of a summons without any requirement that a copy of the pleading be served upon or otherwise furnished to the defendant. Accordingly the first paragraph of the amendment provides that in such cases the petition for removal shall be filed within 20 days after the service of the summons.
The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See for example, Powers v. Chesapeake etc., Ry. Co., 169 U.S. 92.)
Plaintiff waived any objection to defendant's alleged failure to verify removal petition by not raising issue before district court. Financial Timing Publications, Inc. v. Compugraphic Corp., C.A.8 (Minn.) 1990, 893 F.2d 936.
Procedural defects in removal of action may be waived by failure to make timely objection before case proceeds to merits; however, defects going to subject matter jurisdiction of court cannot be waived and may be raised at any time. Libhart v. Santa Monica Dairy Co., C.A.9 (Cal.) 1979, 592 F.2d 1062.
Plaintiff waived timeliness of notice of removal as basis for remand where plaintiff did not serve or otherwise provide defendant with copy of original complaint more than 30 days prior to filing of notice of removal, and plaintiff failed to raise timeliness of notice of removal as basis for remand. Haisch v. Allstate Ins. Co., D.Ariz.1996, 942 F.Supp. 1245.
Notice of removal given to plaintiff's counsel four days after removal petition was filed
and 28 days after action was originally filed in state court was timely. Barrett
v. Southern Ry. Co., D.C.S.C.1975, 68 F.R.D. 413.
Jurisdictional Issues For SCUBA Cases
Borden v. Phillips, 752 So.2d 69, 72-73 (Fla.1st DCA 2000) concluded that admiralty jurisdiction did not exist and upheld a release under Florida law. In Borden, the diver surfaced and waived his hand in distress, but the captain misinterpreted the signal as an "o.k." signal and detached the emergency "tag line"--a floating rope enabling divers to pull themselves to the boat. See 752 So.2d at 71. The court held that admiralty jurisdiction was lacking over the wrongful death claim, because the activity at issue was scuba diving, not boating: [T]he decedent intentionally departed the [dive boat] to dive. This activity, scuba diving, was not dependent on his passage in the [dive boat]. Further, decedent ceased being a passenger when he entered the water. That the crew was allegedly negligent when it failed to respond to decedent's signal did not involve the operation or maintenance of the [dive boat], but was related solely to the activity of scuba diving.
In addition to Borden, the Florida state court case, two federal district courts have held there to be no admiralty jurisdiction in recreational scuba diving cases. In In re Kanoa, Inc., 872 F.Supp. 740 (D.Haw.1994), a scuba diver died when his lungs exploded from surfacing too rapidly without breathing. Although the dive began from a dive boat, the court held that admiralty jurisdiction did not exist, reasoning that the "relevant activity" was scuba diving, not boat transportation. 872 F.Supp. at 745-46. In Tancredi v. Dive Makai Charters, 823 F.Supp. 778 (D.Haw.1993), a scuba diver drowned during a dive from a dive boat. The court held that admiralty jurisdiction was lacking over plaintiff's tort claim, because the boat had "little, if any, impact on the events that transpired during Tancredi's dive that led to his death." Instead, the death was attributable to "negligent dive planning and supervision and the actions of the dive master in taking Tancredi to unsafe levels." 823 F.Supp. at 784. But see McClenahan v. Paradise Cruises, Ltd., 888 F.Supp. 120, 121-23 (D.Haw.1995) (holding that admiralty jurisdiction existed in recreational scuba-type diving case, and concluding that Kanoa, Inc. and Tancredi were overruled at least in part by Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), a Supreme Court case not involving recreational scuba diving).
Although admiralty jurisdiction has been recognized in other recreational scuba diving cases, many of those cases are distinguishable by the role played by the boat in causing the injuries. As the court did in Cutchin, 1999 AMC at 1379-81, admiralty jurisdiction was held to exist in a case involving recreational scuba diving, despite the absence of direct involvement of a boat. See Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F.Supp. 1277, 1280 (W.D.Pa.1983). Admiralty jurisdiction also existed where the dive boat crew failed to render medical assistance to a diver after reboarding the dive boat. See Sinclair v. Soniform, Inc., 935 F.2d 599, 600-02 (3d Cir.1991).(federal court has admiralty jurisdiction over claim arising from vessel's crews' failure to administer proper care for decompression sickness suffered during scuba diving excursion in navigable waters); Courtney v. Pacific Adventures, Inc., 5 F.Supp.2d 874 (D.Hi.1998)(finding that a diving accident in navigable waters had a potentially disruptive impact on maritime commerce and dive boats were engaged in activity substantially related to traditional maritime activity). See also Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1545-46 (11 Cir.1994).
Going Down On Legal Diving Issues
by Mark Ercolin
Attorney At Law
Diving is inherently dangerous.
Nature designed humans to be land creatures, and they are normally ill suited
for spending long amounts of time underwater. However, since people became interested
in exploring the sea, they have also been interested in exploring and working
below it, as well.
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