Forgetting the Wards of the Admiralty: How Rule 9(h) Elections Can Set Seamen Adrift in the Courts

Comment by Meghan E. Marchetti

Many attorneys, and the vast majority of lay people, have no clear conception of maritime law. One of the notable idiosyncrasies of maritime law is the absence of a right to a jury trial in an admiralty case.  Although the Seventh Amendment preserves the right to a jury trial in “[s]uits at common law,” admiralty cases fall into a distinct and separate category and are subject to a separate set of rules.  Therefore, when a plaintiff has a claim that could be heard in a federal district court based on either admiralty jurisdiction or some other federal jurisdictional basis, the plaintiff may choose whether he wishes to proceed in admiralty with a bench trial or at common law with the option of a jury trial. Such a choice is referred to as a Rule 9(h) election, referring to Rule 9(h) of the Federal Rules of Civil Procedure.  Currently, there is a circuit split as to whether a plaintiff’s Rule 9(h) election should control an entire proceeding, including all counterclaims and crossclaims.  The United States Courts of Appeals for the Fifth and Eleventh Circuits and various district courts, comprising the majority view, have articulated that a plaintiff’s Rule 9(h) election should control an entire proceeding and trump a defendant’s right to a jury trial on any counterclaims arising out of the same set of facts.  Conversely, the United States Courts of Appeals for the Fourth and Ninth Circuits have adopted the minority approach that a plaintiff’s Rule 9(h) election to proceed in admiralty should not trump a defendant’s constitutional right to a jury trial on counterclaims for which an alternate source of federal jurisdiction exists.

When seamen are parties to the action, there are pitfalls associated with both the majority and minority approaches. The majority approach both encourages a race to the courthouse and also ignores the traditional admiralty policy that courts should serve to protect seamen.  If a plaintiff’s Rule 9(h) election controls an entire proceeding, then a defendant-seaman with a Jones Act counterclaim (a remedy created by Congress to protect seamen) is denied his statutory right to a jury trial on that counterclaim.  Similarly, the minority approach also fails to adequately address the policy goal of protecting seamen.  Under the minority rule, a plaintiff-seaman with a Jones Act claim against his employer who elects to proceed in admiralty with a bench trial could see his Rule 9(h) election trumped by the employer’s constitutional right to a jury trial on a counterclaim asserted “at law.”

This Comment proposes that the more prudent approach to resolving whether a plaintiff’s Rule 9(h) election should control an entire proceeding, in light of the strong admiralty policy goal of protecting seamen, would be to adopt a totality of the circumstances approach and give greater consideration to a seaman’s election, rather than simply applying the prevailing rule of the jurisdiction.

About the Author

J.D. candidate 2015, Tulane University Law School; B.A. 2011, Harvard University.


89 Tul. L. Rev. 1281 (2015)