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SUPERIOR FISH CO. v. ROYAL GLOBE INS. CO.

September 9, 1981

SUPERIOR FISH CO., INC.
v.
ROYAL GLOBE INSURANCE CO. and JUGOLINIJA and INSURANCE COMPANY OF NORTH AMERICA



The opinion of the court was delivered by: LUONGO

 LUONGO, J.

 SEPTEMBER 9, 1981

 Plaintiff, Superior Fish Co., Inc. (Superior Fish), initially brought this removed action in the Philadelphia Court of Common Pleas seeking to recover damages for the value of a shipment of eels which spoiled while being transported from Glassboro, New Jersey, to Trieste, Italy. Named as defendants are Royal Globe Insurance Company (Royal Globe), which issued an insurance policy to plaintiff allegedly covering this loss; Jugolinija, the Yugoslav organization which operates the ship that transported the eels to Trieste; and Insurance Company of North America (INA), the insurer of Burgmeyer Brothers, Inc., the firm that transported the eels from Glassboro to Baltimore, Maryland, where they were loaded upon ship. Plaintiff proceeded directly against INA because Burgmeyer is currently involved in bankruptcy proceedings and cannot be sued because of the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362.

 INA has filed a motion to dismiss for failure to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6), on the ground that plaintiff does not have a right of direct action against it as a matter of law. Upon initial consideration of that motion I noted that there appeared to be no independent grounds of subject matter jurisdiction over plaintiff's claim against INA and that, therefore, there were serious questions as to whether there was removal jurisdiction in this case. 28 U.S.C. § 1441. After an informal in-chambers conference the parties *fn1" submitted memoranda of law on the related issues of removal and subject matter jurisdiction. After consideration of these memoranda I conclude that there is no removal jurisdiction in this court and the entire case will be remanded to the Philadelphia Court of Common Pleas. 28 U.S.C. § 1447.

 The jurisdictional problems in this case are caused by the fact that INA and plaintiff are both citizens of Pennsylvania and plaintiff's claim against INA is a state law claim based either on Pennsylvania's direct action statute, 40 P.S. § 117, or on a theory that it is a third-party beneficiary of the insurance contract between INA and Burgmeyer. *fn2" Accordingly, no independent grounds of original subject matter jurisdiction over the claims against INA are present. The parties supporting jurisdiction in this case, Jugolinija and Royal Globe, assert that, despite the absence of independent grounds of jurisdiction over the claims against INA, jurisdiction is proper because the provisions of the general removal statute, 28 U.S.C. § 1441, have been satisfied.

 The removal statute provides:

 
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
 
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
 
(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

 The removal petition filed by Jugolinija and Royal Globe *fn3" states that removal of this case is pursuant to § 1441(b). Specifically, they assert that "plaintiff's complaint sets forth a claim or cause of action against the petitioners of which this Court has original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States within the meaning of 28 U.S.C. § 1441(b), in that the allegations of the Complaint constitute an Admiralty and Maritime claim under the meaning of Rule 9(h) of the Federal Rules of Civil Procedure and are within the Admiralty and Maritime jurisdiction of the United States and of this Honorable Court." (Petition for Removal P3). Apparently the removing defendants contend that plaintiff's claims against them are maritime because they stem from the ocean transport of the eels. Although not stated in their petition, Royal Globe and Jugolinija now also contend that the claims against Royal Globe and Jugolinija are separate and independent from the claim against INA and that, therefore, removal is also proper under § 1441(c).

 I. § 1441(b)

 It is now well settled that maritime claims, as such, are not claims that arise under the "Constitution, treaties or laws of the United States." Romero v. International Terminal Operating Company, 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1958). In Romero the Court considered the scope of the "arising under" clause of the general federal question jurisdiction statute, 28 U.S.C. § 1331. However, its holding that maritime claims are not encompassed within § 1331, is equally applicable to the "arising under" clause of 28 U.S.C. § 1441(b). Eastern Steel & Metal Company v. Hartford Fire Insurance Company, 376 F. Supp. 763, 765 (D. Conn. 1974). The rationale underlying the Court's decision in Romero was that if maritime claims "arose under" the laws of the United States, defendants, by use of the removal statute, could eviscerate the traditional choice of maritime plaintiffs to elect a state law forum and remedy under the "savings to suitors clause" of the admiralty jurisdiction statute. 28 U.S.C. § 1333. *fn4" Writing for the Court, Justice Frankfurter stated:


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