Luera v. M/V ALBERTA

Case: 10-20002 Document: 00511403810 Page: 1 Date Filed: 03/07/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 7, 2011

No. 10-20002 Lyle W. Cayce
Clerk

MELINDA LUERA,

Plaintiff – Appellee
v.

M/V ALBERTA, Its engines, tackle, apparel, equipment, furniture,
accessories, appurtenances, etc., in rem, SAMOS SHIPPING CO. LTD., In
Personam, WHITE DOLPHIN ENTERPRISES, INC.,

Defendants – Appellants

-------------------------------------------------------------------------------------------------

MELINDA LUERA,

Plaintiff – Appellee
v.

SAMOS SHIPPING CO. LTD., In Personam

Defendant – Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before KING, STEWART, and OWEN, Circuit Judges.
KING, Circuit Judge:
Melinda Luera, a longshore worker, was injured while performing her job
duties in the Port of Houston. Luera brought claims against two vessels, in rem,
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No. 10-20002

asserting admiralty jurisdiction. In the same complaint, Luera also brought
claims against the owners and managers of those vessels, in personam, asserting
diversity jurisdiction and demanding a jury trial. The district court, over the
defendants’ objection, ordered that all of Luera’s claims, including her in rem
admiralty claims, be tried together before a jury. The defendants appeal,
arguing that Luera is not entitled to a jury trial because she has elected to
proceed under the admiralty rules by virtue of the in rem claims in her
complaint. We affirm the order of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Melinda Luera was injured while working for Cooper/T. Smith Stevedoring
Co., Inc. (“Cooper/T. Smith”) in the Port of Houston. According to her complaint,
Luera was working as a cargo checker on City Dock No. 23 on December 26,
2006, and performing stevedoring activities for the M/V VOC ROSE, which was
moored to the dock. Luera alleges that the M/V ALBERTA passed the VOC
ROSE in close proximity and at an excessive rate of speed, causing the VOC
ROSE to surge. The surge in turn caused one of the mooring lines to rupture.
The ruptured line struck Luera, and she suffered severe leg injuries.
Luera and Cooper/T. Smith sought to pursue claims for her injuries
against both vessels1 and their owners. First, Luera and Cooper/T. Smith
obtained a Letter of Undertaking for the VOC ROSE on December 29, 2006 in

1
It is a “long-standing admiralty fiction that a vessel may be assumed to be a person
for the purpose of filing a lawsuit and enforcing a judgment.” Continental Grain Co. v. The
Barge FBL-585, 364 U.S. 19, 22–23 (1960). Rules C and E of the Supplemental Rules for
Admiralty or Maritime Claims provide the procedure for suing a vessel in rem. Rule C(1)
provides that a vessel can be sued in rem only “[t]o enforce any maritime lien” and “[w]henever
a statute of the United States provides for a maritime action in rem or a proceeding analogous
thereto.” The Longshore and Harbor Workers’ Compensation Act specifically grants longshore
workers like Luera an in rem claim for the negligence of a vessel. See 33 U.S.C. § 905(b).

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No. 10-20002

the amount of $2.5 million.2 The same day, Cooper/T. Smith and its insurer, The
American Equity Underwriters, Inc. on behalf of American Longshore Mutual
Association (“American Equity”), filed a complaint in the District Court for the
Eastern District of Louisiana (“Suit 1”) against the ALBERTA, in rem; Samos
Shipping Company, the alleged owner of the ALBERTA, in personam; and their
unnamed liability insurers. The complaint requested seizure of the ALBERTA,
which was then located in the Port of New Orleans, and the sole alleged basis for
the court’s jurisdiction over all of the claims was admiralty jurisdiction under 28
U.S.C. § 1333. In lieu of seizure, a Letter of Undertaking was issued on behalf
of the ALBERTA in the amount of $2.5 million.
Luera immediately sought to intervene in Suit 1. Her intervention
complaint alleged no basis for subject matter jurisdiction for her claims against
the defendants; Luera simply adopted Cooper/T. Smith’s allegations, including
the assertion of admiralty jurisdiction, in full. No activity occurred in Suit 1 for
several months, and on August 7, 2007, the parties filed a joint motion to
transfer venue for Suit 1 to the Southern District of Texas.
On August 6, 2007, Luera filed a second complaint in the District Court
for the Southern District of Texas (“Suit 2”) against Samos Shipping, in
personam, and Reese Development, Inc., the alleged owner of the VOC ROSE,
in personam. Luera asserted diversity jurisdiction under 28 U.S.C. § 1332 as the
sole basis of subject matter jurisdiction. She also demanded a jury trial. On
November 2, 2007, Luera initiated a third action in the District Court for the
Southern District of Texas against the VOC ROSE, in rem (“Suit 3”), and,
although Luera alleged no basis for jurisdiction, the case necessarily rested in

2
“A traditional letter of undertaking provides that, in consideration of the vessel not
being seized and released on bond, the vessel owner will file a claim to the vessel and pay any
judgment rendered against the vessel even if the vessel itself is subsequently lost.” Panaconti
Shipping Co., S.A. v. M/V Ypapanti, 865 F.2d 705, 707–08 (5th Cir. 1989).

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the district court’s admiralty jurisdiction because the only claim was against a
vessel. Luera then filed a motion to consolidate the three pending cases, and on
November 12, 2007, the district court granted the motion and consolidated the
three suits into the first-filed case.
Thereafter, the parties discovered that the ALBERTA was owned by White
Dolphin Enterprises, Inc. (“White Dolphin”), and that Samos Shipping was
merely the manager. They also discovered that while Reese Development owned
the VOC ROSE, it was managed by J.P. Samartzis Marine Enterprises Co., S.A.
(“J.P. Samartzis”). White Dolpin was added to Suit 1 as owner of the ALBERTA,
and White Dolphin, Samos Shipping, and the ALBERTA then used Federal Rule
of Civil Procedure 14(c) to file a third-party complaint tendering J.P. Samartzis
to Luera as a third-party defendant in Suit 1.3
Luera then filed a motion to amend her complaint in Suit 2 to add White
Dolphin and J.P. Samartzis as in personam defendants, which the district court
granted. In response to Luera’s motion to amend, Reese Development suggested
that the district court should simplify the three consolidated cases by realigning
the parties and unifying the pleadings under the court’s admiralty jurisdiction.
In its motion Reese Development also requested that the district court strike
Luera’s jury demand in Suit 2. The district court initially granted Reese
Development’s motion in full. Relying on our prior decisions in T.N.T. Marine
Service, Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585 (5th Cir. 1983)
(per curiam), and Durden v. Exxon Corp., 803 F.2d 845 (5th Cir. 1986), the
district court held that Luera was not entitled to a jury trial because she had

3
The benefit of Rule 14(c), available only for admiralty claims, is that the original
plaintiff is “forced to assert his claims directly against the third-party defendant,” whereas
third-party practice under Rule 14(a) “does not automatically establish a direct relationship
between [the] plaintiff and the third-party defendant.” 6 CHARLES ALAN WRIGHT ET AL .,
FEDERAL PRACTICE AND PROCEDURE § 1465 (3d ed. 2010).

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elected to proceed in admiralty by asserting both admiralty and diversity as
bases for the court’s subject matter jurisdiction.
Luera moved the district court for reconsideration of its order denying her
a jury trial. Following a hearing on the matter, the district court issued a new
opinion, in which it concluded that Luera had preserved her Seventh
Amendment right to a jury trial by pleading diversity as the sole basis, rather
than an alternate basis, for the court’s jurisdiction over her claims against the
in personam defendants in Suit 2. The district court reasoned that Luera’s
single allegation regarding subject matter jurisdiction for her in personam
claims distinguished this case from our prior decisions in T.N.T. Marine and
Durden. The court unified the pleadings in the three suits and granted Luera
leave to amend her complaint to clarify that the sole asserted basis for the
court’s subject matter jurisdiction over the claims against all the in personam
defendants was diversity jurisdiction.
As a result of the district court’s order, the parties were realigned as
follows: Luera as the sole plaintiff; Cooper/T. Smith and American Equity as
intervenors with subrogation rights; Samos Shipping, in personam; White
Dolphin, in personam; the M/V ALBERTA, in rem with White Dolphin appearing
as registered owner under Rule E(8) of the Supplemental Rules for Federal
Admiralty or Maritime Claims; Reese Development, in personam; J.P.
Samartzis, in personam; and the M/V VOC ROSE, in rem with Reese
Development appearing as registered owner under Rule E(8).
Luera then filed an amended complaint against all six defendants. In a
separate “Jurisdiction” section, she asserted that the district court “has
jurisdiction over the in personam Defendants based solely upon diversity of
citizenship, 28 U.S.C. § 1332” and that the court “has jurisdiction over the in rem

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No. 10-20002

Defendants based solely upon admiralty jurisdiction, 28 U.S.C. § 1333.” 4 She
claimed damages “due to the negligence of each of the Defendants.”
The defendants requested that the district court certify its order for
appeal. Finding that its order granting Luera a jury trial on all of her claims
involved a controlling question of law as to which there was substantial ground
for difference of opinion, the district court certified its order for appeal under 28
U.S.C. § 1292(b). After we granted all defendants permission to appeal, Luera
settled her claims with Reese Development and J.P. Samartzis, the owner and
manager, respectively, of the VOC ROSE. The remaining appellants are White
Dolphin, Samos Shipping, and the ALBERTA (collectively, “Appellants”).5
II. LEAVE TO AMEND
We first address whether the district court erred in permitting Luera to
amend her complaint. Prior to the unification of the pleadings, Luera had
pleaded claims against Samos Shipping in Suit 1 under admiralty jurisdiction
by intervening in that suit. In addition, J.P. Samartzis was brought into Suit 1
under admiralty jurisdiction. But Luera’s claims against all of the in personam
defendants in Suit 2 were premised on diversity jurisdiction. Therefore,
following unification of the pleadings, but before she amended her complaint,
Luera had asserted claims against some of the defendants based on both
admiralty jurisdiction and diversity jurisdiction. As we explain below, the
import of the dual bases for the district court’s jurisdiction over these claims was
that Luera may have elected under Rule 9(h) of the Federal Rules of Civil
Procedure to proceed with all of her claims in admiralty, waiving her right to a

4
Because § 1332 and § 1333 involve subject matter jurisdiction, rather than personal
jurisdiction, we construe Luera’s statements as asserting that the district court has
jurisdiction over the claims against the defendants.
5
Cooper/T. Smith and American Equity, who were originally parties to this appeal, also
settled their claims with Luera and have been dismissed from the appeal.

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jury trial. See T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc.,
702 F.2d 585, 587–88 (5th Cir. 1983). The district court conditioned its order
granting Luera a jury trial on the filing of an amended complaint clarifying that
Luera was asserting subject matter jurisdiction for all of her in personam claims
on diversity only. Appellants argue that the district court erred in permitting
Luera to amend her complaint. We review a district court’s decision to grant or
deny a plaintiff’s request to amend her pleadings for an abuse of discretion.
Ayanbadejo v. Chertoff, 517 F.3d 273, 276 (5th Cir. 2008) (per curiam).
As a preliminary matter, Luera argues that we cannot review the district
court’s decision granting her leave to amend her complaint because the issue was
not certified for interlocutory review. Luera correctly observes that neither the
Appellants’ request for appeal nor the district court’s order certifying the case
for review addressed Luera’s request to amend her complaint. However, this
case is before us under 28 U.S.C. § 1292(b), which provides that a district court
may certify an “order” for interlocutory appeal and that we may permit “an
appeal to be taken from such order.” “Because § 1292(b) provides for review of
an order rather than review of a particular question, we are not restricted to the
questions specified by the district court but ‘may address any issue fairly
included within the certified order.’ ” Brabham v. A.G. Edwards & Sons, Inc.,
376 F.3d 377, 380 n.2 (5th Cir. 2004) (quoting Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 205 (1996)). The district court granted Luera leave to
amend her complaint in the order that it certified for interlocutory review.
Therefore, we may assess the propriety of the district court’s decision to allow
Luera to amend her complaint.
The effect of Luera’s amendment was to withdraw her Rule 9(h) election
to proceed in admiralty, if there was any, with regard to her claims against the
in personam defendants. A plaintiff’s Rule 9(h) election is subject to the liberal
standards for amending pleadings in Rule 15(a)(2), which provides that“[t]he

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court should freely give leave [to amend] when justice so requires.” We have
said that “Rule 9(h) is not a harsh rule,” T.N.T. Marine, 702 F.2d at 588, and
“[t]he pleader’s identification of his claim as an admiralty or maritime claim or
a failure to do so is not an irrevocable election,” 5A C HARLES A LAN W RIGHT &
A RTHUR R. M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 1314 (3d ed. 2004).
Provided that there is no prejudice to the court or to the defendants, a plaintiff
should be permitted to amend her complaint to change her Rule 9(h) election.
See Conti v. Sanko S.S. Co., Ltd., 912 F.2d 816, 818 (5th Cir. 1990).
Appellants argue that they were prejudiced by the amendment because
Luera “exploited” admiralty procedures before the amendment. See Brotherhood
Shipping Co., Ltd. v. St. Paul Fire & Marine Ins. Co., 985 F.2d 323, 326 (7th Cir.
1993) (doubting that leave to amend should be freely given where a plaintiff has
already “used the distinctive procedures of admiralty” because the plaintiff
should not be permitted to “have the best of both procedural worlds”). We
disagree. Luera obtained the benefit of admiralty procedures with regard to her
claims against the vessels by suing them in rem and obtaining letters of
undertaking for both vessels. But she did not, and indeed she cannot, seek to
change her Rule 9(h) election for those claims. See T.N.T. Marine, 702 F.2d at
588 (“[A]n action against a vessel in rem falls within the exclusive admiralty
jurisdiction.”). Rather, she sought to change only the election for her claims
against the in personam defendants.
For those claims, only one unique admiralty procedure had been invoked
before Luera amended her complaint. Prior to the unification of the pleadings,
Appellants used Rule 14(c) in Suit 1 to tender J.P. Samartzis to Luera as a third-
party defendant. Appellants were able to use this procedural device in Suit 1
because that suit was originally premised solely on admiralty jurisdiction.
However, soon after Appellants tendered J.P. Samartzis to Luera under Rule
14(c), Luera amended her complaint in Suit 2 to add J.P. Samartzis as a

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defendant, thereby asserting her claims directly against J.P. Samartzis.
Appellants therefore suffered no prejudice by the loss of this procedural device
available only in admiralty. Because Appellants were not prejudiced by the
amendment, we hold that the district court did not abuse its discretion in
permitting Luera to amend her complaint and withdraw any Rule 9(h) election
she may have made.
III. JURY TRIAL
Having decided that the district court did not err in permitting Luera to
amend her complaint, we now consider whether a jury trial is unavailable in this
case because Luera asserted in rem admiralty claims against two vessels in the
same complaint as her in personam claims premised on diversity jurisdiction.
A. Rule 9(h) and the Admiralty Designation
We first provide some background regarding admiralty jurisdiction and
procedures. The Constitution provides that the judicial power of the federal
courts “shall extend . . . to all Cases of admiralty and maritime Jurisdiction.”
U.S. C ONST. art. III, § 2, cl.1. Congress implemented this constitutional grant
through 28 U.S.C. § 1333(1), which provides that the district courts have original
jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction, saving
to suitors in all cases all other remedies to which they are otherwise entitled.”
This statutory grant gives federal courts jurisdiction over all admiralty and
maritime cases, regardless of the citizenship of the parties or the amount in
controversy.
Under the “saving to suitors” clause in § 1333, a plaintiff whose claim does
not fall within the exclusive admiralty jurisdiction of the federal courts may
bring her claim “at law” in state court. The saving to suitors clause also allows
a plaintiff to bring her claim “at law” under the federal court’s diversity
jurisdiction, provided the requirements for diversity and amount in controversy
are met. Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355,

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359–60 (1962); see also 14A C HARLES A LAN W RIGHT ET AL., F EDERAL P RACTICE
AND P ROCEDURE § 3672 (3d ed. 1998) (noting that a plaintiff with a claim
cognizable in admiralty and at law has three choices: she may bring her suit in
federal court under admiralty jurisdiction, in federal court under diversity
jurisdiction, or in state court).
When a plaintiff’s claim is cognizable under admiralty jurisdiction and
some other basis of federal jurisdiction, the Federal Rules of Civil Procedure
allow the plaintiff to expressly designate her claim as being in admiralty. Rule
9(h) of the Federal Rules of Civil Procedure provides:
If a claim for relief is within the admiralty or maritime jurisdiction
and also within the court’s subject-matter jurisdiction on some other
ground, the pleading may designate the claim as an admiralty or
maritime claim for purposes of Rules 14(c), 38(e), and 82, and the
Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions. A claim cognizable only in the admiralty or
maritime jurisdiction is an admiralty or maritime claim for those
purposes, whether or not so designated.
“Numerous and important consequences” flow from a plaintiff’s decision
to file her claim under the federal court’s admiralty jurisdiction or its diversity
jurisdiction. T.N.T. Marine, 702 F.2d at 586. One of the most important
consequences relates to the rules of procedure that will be applied to the case.
If a claim is pleaded under diversity jurisdiction, the rules of civil procedure will
apply, and the parties will be guaranteed, under the Seventh Amendment, a
right to have the claim tried by a jury. Atl. & Gulf Stevedores, 369 U.S. at 360.
If the claim is pleaded under admiralty jurisdiction, however, the plaintiff will
invoke “those historical procedures traditionally attached to actions in
admiralty.” Durden v. Exxon Corp., 803 F.2d 845, 849 n.10 (5th Cir. 1986). One
of the historical procedures unique to admiralty is that a suit in admiralty does
not carry with it the right to a jury trial. Waring v. Clarke, 46 U.S. 441, 460
(1847); see also Becker v. Tidewater, Inc., 405 F.3d 257, 259 (5th Cir. 2005).

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Thus, “there is no right to a jury trial where the complaint contains a statement
identifying the claim as an admiralty or maritime claim, even though diversity
jurisdiction exists as well.” T.N.T. Marine, 702 F.2d at 587.
By the plain terms of Rule 9(h), a claim cognizable only under admiralty
jurisdiction does not require a Rule 9(h) election because admiralty procedures
will automatically apply to that claim. Although Rule 9(h) appears to require an
affirmative statement from the plaintiff to invoke the admiralty rules for claims
cognizable under admiralty and some other basis of jurisdiction, we have held
that the mere assertion of admiralty jurisdiction as a dual or an alternate basis
of subject matter jurisdiction for a claim is sufficient to make a Rule 9(h) election
to proceed in admiralty for that claim. T.N.T. Marine, 702 F.2d at 587–88. In
T.N.T. Marine, the plaintiff brought an action against a vessel in rem and a dock
in personam. Id. at 588. The complaint alleged both diversity and admiralty as
alternate bases for the court’s jurisdiction without specifying whether the
plaintiff asserted a separate jurisdictional basis for each claim. Id. We held that
by the “simple statement asserting admiralty or maritime claims” the plaintiff
had elected to proceed under admiralty jurisdiction and procedures even without
an explicit reference to Rule 9(h). Id.
Similarly, in Durden v. Exxon Corp., the plaintiff, an injured seaman, filed
an action against a vessel in rem and against its owners in personam, asserting
that “the [c]ourt is vested with jurisdiction of this matter pursuant to the
provisions of Title 28 Section 1332 of the United States Code and/or the General
Maritime Law of the United States.” 803 F.2d at 850 (emphasis added) (internal
quotation marks omitted). The plaintiff later included a separate Jones Act
claim against his employer, which carries a right to trial by jury. Id. at 847. The
district court impaneled a jury to hear the case, but at the close of the plaintiff’s
evidence the court directed a verdict to the employer on the Jones Act claim,
dismissed the jury, and tried the remaining claims to the bench. Id. We held

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that the district court properly dismissed the jury because the non-Jones Act
claims were brought under the court’s admiralty jurisdiction with no right to a
jury trial. Id. at 850. Under the rule announced in T.N.T. Marine, the plaintiff’s
allegation of admiralty as an alternate basis of jurisdiction was sufficient to
make a Rule 9(h) election to proceed in admiralty for all of his claims. Id.
Following these cases, in this circuit a plaintiff who asserts admiralty
jurisdiction as a basis for the court’s subject matter jurisdiction over a claim has
automatically elected under Rule 9(h) to proceed under the admiralty rules, even
if she states that her claim is also cognizable under diversity or some other basis
of federal subject matter jurisdiction. However, we have not addressed the
specific issue presented in this case, which is whether the plaintiff automatically
makes a Rule 9(h) election to proceed under the admiralty rules when she
specifically asserts only diversity jurisdiction for one claim in the same
complaint as a separate claim cognizable only under admiralty jurisdiction.
B. Luera’s Rule 9(h) Election
After amendment, Luera’s complaint stated six distinct claims: She
asserted negligence claims against both the VOC ROSE and the ALBERTA in
rem, which are exclusively within the district court’s admiralty jurisdiction.
Luera also asserted negligence claims against Reese Development, J.P.
Samartzis, White Dolphin, and Samos Shipping, in personam, based on the
court’s diversity jurisdiction. Because Luera may only proceed in rem against
the vessels by invoking federal admiralty jurisdiction, she necessarily made a
Rule 9(h) election to proceed under the admiralty rules for her in rem claims.
See F ED. R. C IV. P. 9(h)(1) (“A claim cognizable only in the admiralty or maritime
jurisdiction is an admiralty or maritime claim for those purposes, whether or not
so designated.”). Luera is clear, however, that she does not wish to make a Rule
9(h) election to proceed under the admiralty rules for her negligence claims
against the in personam defendants. Therefore, we must determine whether

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Luera nevertheless necessarily made a Rule 9(h) election to proceed under the
admiralty rules for her in personam claims by the mere presence of the in rem
admiralty claims in her complaint.
Appellants argue that this case is controlled by our prior decisions in
Durden and T.N.T. Marine. According to Appellants, these cases establish that
when a plaintiff asserts alternative or dual bases of subject matter jurisdiction
in a complaint, and one of those bases is admiralty jurisdiction, the plaintiff
automatically makes a Rule 9(h) election to proceed in admiralty for the entire
case. However, this case is readily distinguishable from Durden and T.N.T.
Marine. In those cases, the plaintiffs had asserted both admiralty and diversity
subject matter jurisdiction for the same claim. Durden, 803 F.2d at 849; T.N.T.
Marine, 702 F.2d at 588. The plaintiffs in those cases, like Luera, could proceed
against the vessels in rem only under admiralty jurisdiction, but, unlike Luera,
the plaintiffs in Durden and T.N.T. Marine did not specifically assert diversity
as the only basis for subject matter jurisdiction over their in personam claims.
The rule flowing from Durden and T.N.T. Marine, therefore, is that a plaintiff
who fails to choose between admiralty jurisdiction and some other basis of
subject matter jurisdiction for a claim is presumed to have elected under Rule
9(h) to proceed under admiralty jurisdiction and the admiralty procedures for
that claim. That presumption is not applicable here because Luera has not
asserted alternate or dual bases of subject matter jurisdiction for her claims
against the in personam defendants. Rather, she has definitively chosen to
proceed under the district court’s diversity jurisdiction for her in personam
claims and is clear that she does not wish to elect admiralty procedures for those
claims. Therefore, Luera cannot be said to have presumptively made a Rule 9(h)
election for her in personam claims.
Appellants urge that the mere presence of in rem claim amounts to a 9(h)
election for the remainder of her claims under Durden and T.N.T. Marine.

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However, by its plain language, Rule 9(h) applies to “claims” and not to entire
cases. F ED. R. C IV. P. 9(h)(1) (“If a claim for relief is within the admiralty or
maritime jurisdiction . . . , the pleading may designate the claim as an admiralty
or maritime claim.” (emphases added)). Additionally, “[a] single case can include
both admiralty or maritime claims and nonadmiralty claims or parties.” Id.,
Advisory Committee Note (1997 Amendment). Luera clearly expressed her
intent that her claims against the in personam defendants are premised on the
district court’s diversity jurisdiction, rather than its admiralty jurisdiction, and
we therefore hold that Luera did not make a Rule 9(h) election to proceed under
the admiralty rules for those claims.
C. Consolidation and the Right to a Jury Trial
Although Luera did not make a Rule 9(h) election to proceed under the
admiralty rules for her claims against the in personam defendants, the question
remains whether her assertion of in rem admiralty claims in the same complaint
nevertheless precludes a jury trial on her in personam claims. We conclude that
the mere presence of admiralty claims in the same complaint as claims premised
on diversity jurisdiction does not preclude a jury trial.
Appellants argue that we are foreclosed by our prior decisions in T.N.T.
Marine and Durden from allowing a jury trial in this case. Other courts and
commentators have construed these decisions as creating a rule in this circuit
that the presence of an in rem admiralty claim in a complaint will preclude a
jury trial. See Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1057 (9th Cir.
1997) (“[I]n T.N.T. Marine . . . the Fifth Circuit held that the plaintiff had no
right to a jury where he alleged both in personam and in rem claims.”); Webb v.
Ensco Marine Co., 121 F. Supp. 2d 1049, 1052 (E.D. Tex. 2000) (“The crux of
Durden is that, after the court dismissed the plaintiff’s Jones Act claim, the
plaintiff’s claim against the vessel in rem ‘invoked the unique power of the
admiralty court.’ ” (quoting Durden, 803 F.2d at 849)); Hamilton v. Unicoolship,

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Ltd., No. 99 CIV 8791, 2002 WL 44139, at *3 (S.D.N.Y. Jan. 11, 2002) (“The Fifth
Circuit has not allowed jury trials on claims brought under diversity jurisdiction
combined with in rem admiralty claims.”); Steven F. Friedell, When Worlds
Collide: The In Rem Jury and Other Marvels of Modern Admiralty, 35 J. M AR.
L. & C OM. 143, 164 (2004) (“[The Fifth Circuit] has held that a plaintiff who sues
a vessel in rem and its owner in personam is not entitled to a jury even if he
alleges diversity jurisdiction in addition to admiralty jurisdiction.”).
We agree with the district court in this case that such a reading of our
prior cases is too broad. Although the court in Durden and T.N.T. Marine did
rely on the existence of an in rem claim in the complaint as a reason for holding
that a jury trial was unwarranted, the plaintiff’s inclusion of an in rem claim
was important only in the factual scenario presented in those cases. Because the
plaintiffs in those cases had pleaded alternative bases of jurisdiction for their in
personam claims, it was somewhat ambiguous whether the plaintiffs had made
a Rule 9(h) election to pursue their in personam claims in admiralty, and we
used the in rem claim as an indicator that the plaintiffs wanted to pursue all of
their claims in admiralty. If the inclusion of the in rem claims was
automatically fatal to a plaintiff’s jury trial demand, there would have been no
need for the court to consider the asserted bases for jurisdiction or the language
used by the plaintiffs in their complaints. These cases are therefore best read
as creating a rule regarding a plaintiff’s Rule 9(h) election and not a complete
prohibition on a jury trial where an in rem admiralty claim is asserted in the
same complaint as a claim that would otherwise carry a right to a jury trial.
This case is instead controlled by the Supreme Court’s decision in
Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). In Fitzgerald, a
seaman was injured while working aboard a ship. In his complaint, the plaintiff
alleged three separate claims against his employer: a negligence claim based on
the Jones Act, an unseaworthiness claim, and a maintenance and cure claim.

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Id. at 17. The Jones Act claim carried a statutory right to a jury trial, but the
unseaworthiness and maintenance and cure claims, brought under the court’s
admiralty jurisdiction, did not carry such a right. Id. The district court
impaneled a jury to hear the Jones Act and unseaworthiness claims, and the jury
found in favor of the employer on both claims. Id. The court then dismissed the
jury and decided the maintenance and cure claim itself. Id. The plaintiff
appealed, arguing that all of his claims should have been decided by the jury.
Id.
The Supreme Court held that it was error for the district court to dismiss
the jury because all of the claims ought to have been tried together to the same
fact finder. Id. at 21. The Court noted that the procedure used by the district
court, trying a portion of the case to the jury and a portion to the bench, was
commonly employed in Jones Act cases, but the Court concluded that separating
the claims was an “outdated” and “wasteful” practice. Id. at 18–20. Splitting the
claims “unduly complicates and confuses a trial, creates difficulties in applying
doctrines of res judicata and collateral estoppel, and can easily result in too
much or too little recovery.” Id. at 19. The Court held that, because the claims
arose out of one set of facts, “[o]nly one trier of fact should be used for the trial
of what is essentially one lawsuit to settle one claim split conceptually into
separate parts because of historical developments.” Id. at 21.
The Court’s decision did not rest on any right of the plaintiff to have his
admiralty claims tried by a jury:
While this Court has held that the Seventh Amendment does not
require jury trials in admiralty cases, neither that Amendment nor
any other provision of the Constitution forbids them. Nor does any
statute of Congress or Rule of Procedure, Civil or Admiralty, forbid
jury trials in maritime cases.
Id. at 20. Because there was no “statutory or constitutional obstacle” to trying
admiralty claims to a jury, the Court held that concerns of judicial efficiency and

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the fair administration of justice override the historic tradition of trying
admiralty claims to the bench. Id. at 20–21. These same concerns of inefficiency
and potential problems applying res judicata and collateral estoppel are present
whenever a claim carrying the right to a jury trial is joined with an admiralty
claim that carries no right to a jury trial.
All of the circuits that have addressed the issue have concluded that,
under Fitzgerald, admiralty claims may be tried to a jury when the parties are
entitled to a jury trial on the non-admiralty claims. Most recently, in Ghotra v.
Bandila Shipping, Inc., the Ninth Circuit faced precisely the same issue we
consider today. 113 F.3d 1050 (9th Cir. 1997). In Ghotra, the plaintiff, a marine
surveyor, was killed while inspecting a vessel. Id. at 1053. His surviving family
members brought three negligence claims premised on diversity jurisdiction
against both the owner and charterer of the ship, and an in rem claim against
the ship itself for negligence under admiralty jurisdiction. Id. The court held
that the presence of the in rem claim in the complaint did not preclude a jury
trial on the in personam negligence claims. Id. at 1057. Because the claims
arose “out of the same factual circumstances,” the court found “nothing
inherently incongruous about bringing an in rem and an in personam claim
together before the jury when the claims arise out of a single occurrence.” Id.6

6
The Ninth Circuit contemplated that the right to a jury trial might be limited in
certain circumstances. The court noted that the plaintiffs had not “changed their mind[s] as
to the jurisdictional basis in the midst of litigation.” Ghotra, 113 F.3d at 1058. In addition,
the plaintiffs had not “utilized the advantages of in rem procedures and then turned around
to use the same claim as the basis for diversity jurisdiction.” Id. Because neither of those
circumstances is present in this case, we need not address the result if either circumstance
were present here. Luera made clear from the beginning that she intended to file her in
personam claims in diversity only, preserving her Seventh Amendment right to a jury trial on
those claims. And although Luera did use admiralty procedures for her in rem claims, she did
not use the benefits of admiralty procedures for the same claim on which she now demands
a jury trial. See Haskins v. Point Towing Co., 395 F.2d 737, 741 (3d Cir. 1968) (“There is no
reason to make relinquishment of the procedural advantages of these inherent admiralty
claims . . . the price for a jury trial.”).

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The Third and Fourth Circuits have also concluded that the presence of an
admiralty claim does not defeat a plaintiff’s properly preserved right to a jury
trial. In Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995), the
Fourth Circuit held that “when the accident and injuries underlying the
plaintiff’s law and admiralty damage claims are the same, the considerations
underlying the pragmatic rule of Fitzgerald dictate its application, even when
the plaintiff has named different defendants in those claims.” Id. at 154.7 In
Blake v. Farrell Lines, Inc., 417 F.2d 264 (3d Cir. 1969), the plaintiff, an injured
longshoreman, filed a complaint alleging negligence against the shipowner under
diversity jurisdiction and demanded a jury trial. Id. at 265. The shipowner then
filed a separate suit in admiralty against the stevedoring company alleging
indemnity. Id. The district court consolidated the two suits, trying the entire
case to a jury. On appeal, the shipowners contended that the court should not
have tried the issues in the admiralty suit to the jury. Id. Relying on Fitzgerald,
the Third Circuit concluded that “if the circumstances justify such action, a
district court exercising section 1333 jurisdiction over a maritime claim may
require that the issues of fact be tried to a jury” in “closely related actions or
claims” involving “common issues of fact.” Id. at 266.

7
Part of the Fourth Circuit’s holding in Vodusek is directly contrary to our holding in
Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir. Unit A May 1981). But we find
the court’s decision no less instructive. In Vodusek, the plaintiff filed a claim against a boat’s
manufacturer in diversity and a claim against the retailer in admiralty. 71 F.3d at 151. The
court held that the admiralty claim against the nondiverse retailer did not destroy diversity
jurisdiction for the plaintiff’s claim against the diverse manufacturer. Id. at 154. We came
to the opposite conclusion in Powell, holding that “the presence of a non-diverse defendant
[sued] solely on the basis of federal admiralty jurisdiction will indeed implicate the rule of
Strawbridge v. Curtiss and thereby destroy diversity jurisdiction.” 644 F.2d at 1071. Because
complete diversity was lacking in Powell, all of the plaintiff’s claims were pleaded in admiralty
and the plaintiff had no right to a jury trial. Id. Having found that no “at law” claims were
pleaded in Powell, we did not reach the question presented in Vodusek, and in this case:
whether the existence of an admiralty claim in the same complaint as an “at law” diversity
claim bars the plaintiff’s right to a jury trial on the diversity claim.

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Despite this compelling authority, Appellants contend Fitzgerald does not
apply to this case for several reasons. First, Appellants claim that the Federal
Rules of Civil Procedure, unified with the admiralty rules in 1966, prohibit jury
trials for all admiralty claims, and that Fitzgerald did not survive the unification
of the rules. We find dubious any contention that Fitzgerald is no longer good
law because we, like many other courts, have continued to apply Fitzgerald after
the unification of the rules. Daniel v. Ergon, Inc., 892 F.2d 403, 409 (5th Cir.
1990); see also Haskins v. Point Towing Co., 395 F.2d 737, 742–43 (3d Cir. 1968)
(dismissing argument that Fitzgerald did not survive unification).
Appellants nonetheless argue that the unified federal rules essentially
provide them a right to a bench trial for admiralty claims. Rule 38(e) explains
that the unified rules “do not create a right to a jury trial on issues in a claim
that is an admiralty or maritime claim under Rule 9(h).” The Advisory
Committee Notes to the 1966 amendment of Rule 9 similarly state, “It is no part
of the purpose of unification to inject a right to jury trial into those admiralty
cases in which that right is not provided by statute.” Appellants are correct that
the unification of the civil and admiralty rules “was intended to work no change
in the general rule that admiralty claims are to be tried without a jury.” Romero
v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir. 1975). But “nothing in
Rule 38(e) or the other rules prohibits a trial by jury on joined civil and
admiralty claims.” 9 C HARLES A LAN W RIGHT & A RTHUR R. M ILLER, F EDERAL
P RACTICE AND P ROCEDURE § 2315 (3d ed. 2008). In this sense, the Court’s
observation in Fitzgerald—that no “statute of Congress or Rule of Procedure,
Civil or Admiralty, forbid[s] jury trials in maritime cases”—remains accurate.
374 U.S. at 20. Without an express prohibition on jury trials in admiralty cases,
we agree with the Court in Fitzgerald that concerns of judicial economy and the
fair administration of justice override the historic tradition of trying admiralty
claims to the bench when the claims are closely related.

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Indeed, the unified rules specifically contemplate hybrid proceedings such
as the one in this case by providing that admiralty and non-admiralty claims can
be brought together in the same action. Rule 20(a)(2) provides, “Persons—as
well as a vessel, cargo, or other property subject to admiralty process in
rem—may be joined in one action as defendants.” Appellants’ argument would
require us to construe a plaintiff’s joinder of admiralty and non-admiralty claims
under Rule 20 as an implied waiver of her right to a jury trial. To be sure, Luera
could have waived her Seventh Amendment right to a jury by pleading her in
personam claims under the district court’s admiralty jurisdiction, see T.N.T.
Marine, 702 F.2d at 588, but she did not do so in this case. We do not construe
her joinder of claims, which is allowed by the rules, as an implicit waiver of her
constitutional right to a jury trial. See F ED. R. C IV. P. 38(a) (“The right of trial
by jury as declared by the Seventh Amendment . . . is preserved to the parties
inviolate.”); see also Ghotra, 113 F.3d at 1057 (noting that the “liberal joinder
rules” permit claims to be brought in a single action while “preserv[ing] any
statutory or constitutional right to a jury trial”) (internal citation and quotation
marks omitted).
Moreover, where such claims are not joined under Rule 20 but brought in
separate suits, Rule 42(a) provides district courts with broad authority to
consolidate actions that “involve a common question of law or fact.” We find it
persuasive that Luera could, and at the outset she did, bring her in rem and in
personam claims in separate actions. With the claims pending in separate
actions, there is no question that Luera was entitled to a jury trial on her in
personam claims. We see no reason why consolidation of those claims with the
in rem admiralty claims into a single action should change the result. See
Ghotra, 113 F.3d at 1057 (“[W]e find no reason to penalize the [plaintiffs] by
ruling that the decision to combine the two [claims] into one single action

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constituted an election to proceed in admiralty alone without the right to jury
trial.”).
Second, Appellants attempt to distinguish Fitzgerald from this case on the
basis that the Court permitted a jury trial for the unseaworthiness and
maintenance and cure claims in Fitzgerald because those claims, though brought
in admiralty, could have been brought at law. Unlike the admiralty claims in
Fitzgerald, the in rem admiralty claims in this case are within the exclusive
admiralty jurisdiction of the federal courts. See T.N.T. Marine, 702 F.2d at 588.
Appellants claim that because in rem admiralty claims cannot be brought at law,
they can never be tried before a jury. We disagree with Appellants’
characterization of the claims in Fitzgerald. The in rem claims here and the in
personam claims in Fitzgerald were all based on the court’s admiralty
jurisdiction. Although the plaintiff’s unseaworthiness and maintenance and
cure claims in Fitzgerald could have been brought at law, the plaintiff pleaded
them as admiralty claims. Once the claims were within the admiralty
jurisdiction of the court, the admiralty rules applied. The Court in Fitzgerald
faced the same issue we face today: A plaintiff pleaded a claim for which she is
entitled to a jury trial and an admiralty claim that does not confer that right.
Fitzgerald is therefore not distinguishable on this basis, and we follow the
Court’s lead in permitting all of the claims to be tried to a jury where the claims
“arise out of one set of facts.” Fitzgerald, 374 U.S. at 21.
Finally, Appellants assert that the rule in Fitzgerald applies only in the
context of Jones Act claims and should not be extended to cover the claims at
issue in this case. This argument is premised on a supposed distinction between
a statutory right to a jury trial and a constitutional right to a jury trial. Any
distinction between a right to a jury in a Jones Act case and a right to a jury in
a common law case is without a difference. See Atl. & Gulf Stevedores, 369 U.S.
at 360 (“This suit being in the federal courts by reason of diversity of citizenship

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carried with it, of course, the right to trial by jury. As in cases under the Jones
Act . . . trial by jury is part of the remedy.” (internal citations omitted)). Though
Luera’s in personam claims do not come with a statutorily mandated jury trial
right, they are endowed with a constitutionally guaranteed right to a jury trial.8
Appellants fail to demonstrate why Luera’s Seventh Amendment right to a jury
trial should be given less weight than a Jones Act plaintiff’s statutory right to
a jury trial.
Furthermore, claims against a vessel in rem fall exclusively under the
federal court’s admiralty jurisdiction. Plaintiffs asserting in rem claims against
vessels have no choice but to elect to proceed under the admiralty rules for those
claims. Under Appellants’ theory, a plaintiff in Luera’s position would be left
with a Hobson’s choice: she could either plead her in personam claims together
with her in rem claims but waive her right to a jury trial, or she could preserve
her right to a jury trial by pleading her in personam claims only and forgo a
legally cognizable in rem claim. Plaintiffs should not be required to make such
a choice when a third option remains—upholding the constitutional guarantee
of a jury trial for the in personam claims.
The district court concluded that Luera’s in personam claims, premised on
diversity jurisdiction and subject to a timely jury demand, must be tried to a
jury. The court was left with two options: try the case partially to the jury and
partially to the bench, or try the entire case to the jury. As the district court
recognized, Fitzgerald counsels that when one of a plaintiff’s claims carries with
it the right to a jury trial, the remaining claims, though premised on admiralty

8
Appellants insist that Luera is not constitutionally entitled to a jury trial because the
“saving to suitors” clause in § 1333 is not triggered for her in rem claims. But the clause is
triggered for Luera’s in personam claims, and she exercised the clause by bringing her claims
in diversity rather than in admiralty. We are not willing to turn a blind eye to Luera’s right
to a jury trial under the saving to suitors clause for her in personam claims simply because the
joined in rem claims do not fall within the clause.

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jurisdiction, may also be tried to a jury “when both arise out of one set of facts.”
374 U.S. at 21; see also Blake, 417 F.2d at 266 (“[O]nly by the decision of common
issues of fact by a single trier of fact can the potential benefits of . . .
consolidation be realized fully.”). The district court, finding that all of the claims
were “based on one event, causing one set of injuries, to one victim,” held that
the claims should be tried together to the jury. We hold that, consistent with
Fitzgerald, the district court did not err by ordering that the claims should be
tried together to a jury.
To be clear, we do not hold today that a plaintiff bringing an in rem
admiralty claim, or any other claim brought under admiralty jurisdiction, has
a right to a jury trial. No statute, rule, or constitutional provision confers such
a right. But neither does any statute, rule, or constitutional provision provide
Appellants with a right to a bench trial. The practice of trying admiralty claims
to the bench is simply one of custom and tradition. That tradition cannot trump
Luera’s constitutional right to a jury trial for her non-admiralty claims, and “the
non-jury component of admiralty jurisdiction must give way to the [S]eventh
[A]mendment.” Ghotra, 113 F.3d at 1057 (internal quotation omitted).
IV. CONCLUSION
For the forgoing reasons, we AFFIRM the order of the district court.

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