Maritime Cases: State or Federal Court?
By John Merriam
When filing most maritime injury and wage cases, there is a choice of forum between state and federal court. 28 U.S.C. § 1333, the Savings to Suitors Clause. There are exceptions, however, when federal court is mandatory for actions involving seamen and fishermen. For example, actions against the vessel itself, in rem, are generally available only in federal court. On the other hand, injuries to seamen aboard the Washington State Ferries have to be brought in state court. RCW 47.60.210. (A challenge to the venue requirement of RCW 47.60.210 is beyond the scope of this article.)
The theme of this article is the suggestion that smaller cases are better brought in state court rather than in U.S. District Court. However, one should proceed with caution for the reasons discussed, in part, herein.
In most counties in western Washington, the Mandatory Arbitration Rules (MAR) apply to cases where the client would be satisfied with $35,000.00 (plus attorney fees and costs, if applicable) or less. RCW Chap. 7.06. For cases where the client would be satisfied with $10,000.00 or less, at least initially, the Superior Courts in the state system are definitely recommended. RCW 4.84.250 et. seq. State district courts should also be considered if $25,000.00 or less is sought. (David Richdale, co- chairman of WSTLA's Product Liability section, made a cameo appearance at the November meeting of the Maritime Law section. David made the astute observation that the state district courts were an excellent alternative to MAR proceedings for those practitioners sick and tired of defendants that routinely demand trial de novo following an arbitration award for the plaintiff).
The drawbacks to filing a case in state rather than federal court are numerous: federal judges, in general, have a greater familiarity with seamen's cases. On the motion calendar or at trial, many Superior Court judges are hearing the first maritime case of their entire career. Longer briefing is generally required in state court to educate the judges on the special solicitude shown seamen by the law. Lists of potential arbitrators rarely include attorneys knowledgeable about the maritime law.
A particular drawback to filing a maritime case for an injured plaintiff in state rather than federal court is made out by the situation of an out-of-state seaman with a relatively small claim. Even though the fishing companies in this area recruit their employees from all over the country, the Jones Act and/or contracts of employment limit jurisdiction to courts in Washington, or sometimes Alaska. 46 U.S.C. § 688(a) (jurisdiction where defendant resides or has principal place of business). That means that your out-of-state client is at risk for being responsible for the expense involved in coming back to this area to have plaintiff's deposition and medical exam taken, to say nothing of the trial or arbitration itself. It would seem that the equities favor that either the fishing company defendant bear part of all of the expense of deposing the plaintiff, or that a deposition be taken by telephone; rather than the usual situation where, if someone brings a lawsuit in this state he/she is required to return for those procedures required under the civil rules. Not having a great amount of exposure to the wardship theory, Superior Court judges seem locked into the rule, as in garden-variety traffic accidents, that the plaintiff must return to the forum where he or she has chosen to file suit at his/her own expense. This writer has never been successful in obtaining a protective order to require a telephone deposition or to otherwise lessen the financial impact to the plaintiff in such a situation in Superior Court. The writer has never attempted a similar motion in federal court where, it is suggested, the chances for success may be greater.
If the intent is to file in state court, one should be circumspect in regard to the sending of a demand letter before filing suit, especially depending upon the identity of opposing counsel or the law firm that will be representing the claims adjuster. A relatively recent fad showing up in the maritime defense bar is one of filing a federal declaratory judgment action under 28 U.S.C. § 2201 et. seq. Defense counsel may try to beat you to the punch by filing a declaratory action in federal court prior to filing and service in Superior Court.
By the same token, one is well advised to forego Superior Court when complicated issues are involved -- in cases of whatever size -- such as breaking a release the plaintiff may have signed before consulting counsel. These type of cases are better brought in federal court where the level of expertise seems to be greater in the maritime field.
Lastly, for cases involving wages (both earned and unearned) it is suggested that there is a better chance for attorney fees in state, rather than federal court. Lex fori. Victrix S.S. Co., S.A. v. Salem Dry Carqo, A.B., 825 F.2d 709 (2nd Cir. 1987). An analysis of this issue is beyond the scope of this article. Also beyond the scope of this article is whether or not the defendant may demand a jury trial in state court. In federal court that choice is reserved to the injured seaman. 46 U.S.C. § 688; Johnson v. Venezuelan Line S.S. Co., 314 F. Supp. 1403 (E.D. La. 1970).
Finally, and again beyond the scope of this article, is the dichotomy between in rem and in personam procedures under 46 U.S.C. § 10601 et. seq. What is the statute of limitations in that situation? See, e.q. Greene v. Pacific King Fisheries, 1993 A.M.C. 2578 (W.D. Wash. 1993).
In sum, it is here suggested that maritime injury and wage cases are better filed in state court if involving claims of $35,000.00 or less -- especially if your client would be willing to make a statutory offer of settlement under RCW 4.84.250 et. seq.
John Merriam is chairman of the Maritime Law section and specializes in the representation of seamen and fishermen in wage and injury cases.