U.S. District Court for the Eastern District of Louisiana, May 17, 2021
The plaintiffs alleged that the decedent, Raymond Hutchins, Jr. was exposed to asbestos while working aboard vessels owned and operated by his employer, Lykes Brothers Steamship Company from 1964 to 2006. Specifically, the plaintiffs alleged that Mr. Hutchins worked aboard several vessels built by Avondale Shipyard pursuant to its contracts with the United States Maritime Administration. The plaintiffs filed their suit in state court, and Huntington Ingalls, as successor to Avondale, removed the case to federal court pursuant to federal officer jurisdiction. The plaintiffs did not move to remand that suit. However, the plaintiffs later filed a separate action against Lykes Bros.’ alleged insurer, Continental. Continental removed the case to federal court, also asserting federal officer jurisdiction, and the plaintiffs moved to remand, arguing that the removal was untimely, that Continental failed to meet the requirements of federal officer jurisdiction and removal, and that the plaintiffs’ Jones Act unseaworthiness claims were non-removable.
As to timeliness, the plaintiffs argued that their amended petition provided Continental with notice that Mr. Hutchins worked aboard vessels built pursuant to federal officer direction while employed by Lykes, and identified such vessels. Continental argued that it was not apparent from the amended petition that the case was removable, and it was only when Continental obtained vessel status cards from their expert four months later, that it became clear that the case was removable. The court agreed, finding that the plaintiffs’ amended petition did not affirmatively reveal that the case was removable, as it did not state that Mr. Hutchins worked on a vessel built at the direction of federal officers. Rather, it only identified the ships on which Mr. Hutchins worked and stated that they were constructed at the Avondale shipyard.
On the requirements of federal officer removal, the court found that Continental’s assertion of the government contractor defense was colorable, as it specifically presented evidence that the federal government provided precise specifications for the construction of the ships at issue, that the ships complied with such specifications, and that the government knew more than it about the potential hazards associated with asbestos. Additionally, it was undisputed that Continental and Lykes Bros. qualified as “persons” for federal officer removal, and that the claims at issue in the case were related to the government’s directive as to the ships. As such, the requirements of federal officer removal were met.
Finally, with regard to the removability of the Jones Act unseaworthiness claims, the court found that while such claims are technically “non-removable” under 28 U.S.C. § 1445(a), in the face of policy considerations, and the fact that Jones Act claims are frequently litigated in federal court, the court found that § 1445(a) must give way, and permitted the removal of such claims.