William J. Brennan, Jr.

“ I cannot see how it fits with the 'realities of power and interest and national policy' to say that there is federal jurisdiction at common law over federally defined maritime causes of action only if there is diversity of citizenship among the parties involved in them.
The Court next argues that a holding to the contrary of its own will produce venue problems, and will in fact be unduly restrictive toward plaintiffs in their choice of forums. ”

“ It can readily be admitted that a suit 'in admiralty' is not the same thing as a suit 'at law.' But this is not to say that a suit involving a maritime cause of action cannot be the subject of a suit 'at law' in the federal courts. Obviously Saving Clause actions brought on the law side of the federal court, with diversity of citizenship present, are actions 'at law.' In fact, the grant of diversity jurisdiction in the 1875 Act was in the very same terms as the grant of the 'arising under' jurisdiction ”

“ Obviously what we have here, once the Court's view of § 1331 is accepted, and as claims are presented which can survive summary judgment, is not a problem in pendent jurisdiction but a glaring problem in judicial administration and in the separation of functions between judge and jury. Crew members' maritime tort suits almost invariably urge claims under the Jones Act and under the general maritime law for breach of the duty to maintain a seaworthy vessel. ”

“ In its broadest permissible interpretation, the dictum only means that the fact that the Constitution creates admiralty jurisdiction does not make all admiralty cases cases arising under the Constitution. [12] But Marshall's opinion does not say that an action seeking remedial relief of a sort which the common law is competent to give, and in which the plaintiff's right to recover is rooted in federal law, ceases to be a suit arising under the laws of the United States merely because it is of a maritime nature. ”

“ It is thus clear that any argument that § 1333 is an exclusive grant of jurisdiction would be false to the history of enactments allocating the judicial power of the United States. The fact that, in a diversity case under § 1332, the claimant is free to proceed on the law side of the federal court to enforce rights created by the federal maritime law, Seas Shipping Co. ”

“ Here a plaintiff comes into court desiring that his claims be adjudicated strictly according to the common law and disclaiming federal jurisdiction in admiralty. In short, he desires that a common-law jury pass upon his claims. If the federal courts do not have such jurisdiction over all his claims, there are state courts which do, and he may well prefer them in that event. ”

“ The Court envisions various unfortunate results, from a practical standpoint, that would ensue from a holding on the jurisdictional issue under § 1331 contrary to its own. I shall comment briefly on its arguments.
It is first argued that the recognition of jurisdiction under § 1331 would, combined with the removal provisions of § 1441 (b) of the Judicial Code, operate to destroy the competence of the States in maritime matters altogether. ”

“ There is no mystic overlaw to which even the United States must bow.'
The sovereign power which determines the rules of substantive law governing maritime claims of the sort which petitioner asserts here is federal power, speaking through Congress as in the case of the Jones Act, 46 U.S.C.A. § 688, or through this Court in the case of judicially defined causes of action. ”

“ But one reading the discussion of the consequences this will have for plaintiffs is apt to forget (for the Court does not inform him) that defendants in maritime actions are most likely to be corporations (particularly in personal injury litigation, the sort of case we have at bar) and that § 1391 (c) declares that the residence of a corporation for venue purposes is any district where it is incorporated or any district in which it is licensed to do, or actually doing business. ”

“ It is true that early in our history maritime law was thought to be an international law merchant which was impartially administered by the several maritime nations of the world. This concept was expressed by Chief Justice Marshall's language in American Ins. Co. v. Canter, 1 Pet. 511, 545-546, 7 L.Ed. 242: 'A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself ”

“ It would be productive of extraordinary problems if the two elements of the claim are presented to different triers of fact at the same time, as would be one consequence of holding that there was no jurisdiction at law of any sort over unseaworthiness claims where diversity of citizenship was absent. ”

“ With corporate venue so widely defined, it will be a rare plaintiff (and a rarer personal injury plaintiff, for seamen and longshoremen are apt to live near where their employers carry on business, or where the vessel owners their employers serve do business) who can take much advantage from the fact that he can sue in the district of his own residence in an action based solely on diversity and not otherwise. And of course, the existence of proper venue at his own residence does not mean the plaintiff can sue the defendants there ”

“ Everyone recognizes that this is the case in a maritime matter in which the parties are of diverse citizenship. I see no reason why it should not be true here of Romero's general maritime law claims against his employer.
It appears also to be clear that even before 1875 Marshall's opinion was not thought of as creating a situation in which it was impossible to say that there were maritime cases that could be also attributed to other categories of federal jurisdiction. Long before Congress contemplated the jurisdictional grant of 1875, this Court in Taylor v. ”

“ Cf. Jenkins v. Roderick, D.C., 156 F.Supp. 299, 304-306. Should an advisory jury (with the same membership, doubtless, as the 'mandatory' one hearing the Jones Act claim) hear the unseaworthiness claim? ”