Understanding the Nonremovability of Maritime Cases: Lessons Learned from “Original Intent”

Article by Robert Force

For many years, I was puzzled by the “saving to suitors” clause in the admiralty jurisdictional provision of 28 U.S.C. § 1333.  It seems to give with one hand, “[t]he [federal] district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction,” but it takes away with the other hand by “saving to suitors in all cases all other remedies to which they are otherwise entitled.”  How can jurisdiction be “exclusive of the courts of the States” and yet reserve to suitors other remedies, including remedies in state courts?  So I thought I would try to resolve this enigma for myself.  After some preliminary research, I had an epiphany.  I learned that in Colonial times, certain cases, such as seamen’s wage cases or claims by ship repairers, could be brought either in a court of vice admiralty or in a Colonial court at the option of the plaintiff.  After independence was gained and the ratification of the Articles of Confederation, such suits could be brought in a state common law court or in a state’s admiralty court, again at the option of the plaintiff.  At this point, I stopped because in my research I discovered a book, Courts of Admiralty and the Common Law: Origins of the American Experiment in Concurrent Jurisdiction, written by a lawyer named Steven L. Snell and published in 2007.  His research is exhaustive, and it demonstrates conclusively that the present situation in most cases that would satisfy the criteria for federal admiralty jurisdiction, whereby a plaintiff who seeks an in personam remedy has the option of filing suit either in a federal court or in a state court, is not accidental and has clear and deep historical roots.  I am not necessarily a fan of original intent espoused by some jurists and scholars. In regard to the policy, intent, and meaning of the “saving to suitors” clause, however, I think that approach provides the clearest meaning of that phrase. That conclusion is not merely of historical interest, but as I shall demonstrate, provides the answer to an important question in the area of removal that has recently arisen.


89 Tul. L. Rev. 1019 (2015)