This is a consolidated case in which various plaintiffs alleged asbestos exposure while working as merchant mariners aboard many different vessels and employers. Each plaintiff also served on at least one Navy ship. The plaintiffs sued their former employers in Louisiana state court under the Jones Act and general maritime law. The defendants removed to federal court, and the district court remanded. The 5th Circuit held that remand was proper.
The defendants argued for removal under the Federal Officer Removal Statute, in which actions against any officer of the United States may be removed. The plaintiffs alleged primarily failure to warn, failure to train, and failure to adopt procedures for the safe installation and removal of asbestos claims. Although the civilian operators of the Navy-owned vessels (Federal Officer defendants) were dismissed, and the defendants argued that the Federal Officer defendants acted pursuant to federal authority when they contracted with the Navy to operate naval ships with civilians, the appellate court’s analysis proceeded as if the Federal Officer defendants had not been dismissed.
The defendants must have showed they acted pursuant to a federal officer’s directions and that a causal nexus existed between their actions under color of federal office and the plaintiffs’ claims. They argued that the operation of Naval ships with civilians created the causal nexus. In support, the defendants provided a contract governing the relationship between the government and one federal officer defendant, and provided evidence that the vessels operated by the other federal officer defendants were Navy-owned.
The appellate court focused on the nature of the plaintiffs’ allegations, which concerned vessel operation, not design. Apart from ownership, the defendants failed to show that the government exercised continuing oversight over operations aboard ship. The 5th Circuit stated: “What little evidence there is suggests the Federal Officer Defendants operated the vessels in a largely independent fashion and, at a minimum, were free to adopt the safety measures the plaintiffs now allege would have prevented their injuries.”
The appellate court refused to consider defendants’ claim that the district court did not analyze the general unseaworthiness claims – that the work environment was intrinsically unsafe – because this argument was not raised until this appeal.