              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         ____________________

                              No. 91-4908
                         ____________________



DONALD GREGORY LINTON,

                                                 Plaintiff-Appellant,

                                versus

GREAT LAKES DREDGE & DOCK COMPANY
and STEAMSHIP MUTUAL UNDERWRITING
ASSOCIATION (BERMUDA) LTD.,

                                                 Defendants-Appellees.

__________________________________________________________________

      Appeal from the United States District Court for the
                  Western District of Louisiana

__________________________________________________________________
                       ( June 22, 1992 )

Before POLITZ, Chief Judge, REAVLEY, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     This case is an interlocutory appeal of the district court's

denial of Linton's motion to remand the case to state court.      The

district court based its denial of remand on grounds that the

federal court had exclusive admiralty jurisdiction over Linton's

Jones Act and general maritime claims because he had elected,

pursuant to a Louisiana statute, to try those claims to a judge

instead of a jury.   For the reasons discussed below, the order of

the district court is reversed and the district court is directed

to remand the case to the state court.
                                I

     On January 9, 1989, Donald Gregory Linton (Linton) and his

wife, Telitha Linton, filed this suit in Louisiana state court

against his employer, Great Lakes Dredge and Dock Company, seeking

damages for personal injuries suffered while working as a seaman on

the CONICAL, a dredge owned by Great Lakes.   The suit was grounded

on general maritime law and the Jones Act, 46 U.S.C. § 688.

Linton's Fourth Supplemental and Amending Petition filed in state

court designated his suit as "an admiralty or general maritime law

claim" pursuant to LA. CODE CIV. PROC. ANN. art. 1732(6).1

     The essence of this case is the effect of such a designation.

According to Linton, the designation is purely procedural:       it

simply allows the plaintiff the option of having his case tried to

a Louisiana judge instead of a jury.   Great Lakes cites language in

the legislative history that indicates its purpose is to allow

Louisiana law to track federal law.2     It argues that an article

     1
      LA. CODE CIV. PROC. ANN. art 1732(6) (West 1990) provides:
          A trial by jury shall not be available in:
               (6)    A suit on an admiralty or
               general maritime claim under federal
               law that is brought in state court
               under a federal "saving to suitors"
               clause,   if   the   plaintiff   has
               designated that suit as an admiralty
               or general maritime claim.
     Id.
     2
      "[I]n federal court if you file your admiralty action under
the Jones Act, you, as the plaintiff or as the complainant, have
the option of electing whether or not to have a trial by jury. In
state court, if you file that same action using the saving to
suitors clause invoking your federal maritime jurisdiction ... you




                               -2-
1732(6) designation is the same as a Rule 9(h)3 designation under

the Federal Rules of Civil Procedure: it withdraws Linton's claims

"at law" under the "saving to suitors" clause and invokes the

exclusive admiralty jurisdiction of the federal courts.    On this

basis, and pursuant to 28 U.S.C. § 1441,4 Great Lakes removed the

suit to federal district court.   Linton promptly moved to remand

pursuant to 28 U.S.C. 1447(c) contending that the case had been

improvidently removed and that the district court lacked "the

jurisdiction alleged by defendant."   Following denial of Linton's



may be entitled to the jury if you ask for it, others say it
doesn't matter, if the defendant asks for it we may have a jury
trial. So all I'm trying to do is track exactly the federal rules
of procedure in essence saying you as the complainant or the seaman
have the right to control the actions of whether or not you want a
jury trial or not." Heinhuis v. Venture Assoc., Inc., 558 So.2d
1244, 1246 (La.App. 1 Cir.), writ den., 559 So.2d 1369 (La.),
motion den., writ den., 559 So.2d 1385 (La. 1990) (citing remarks
of Rep. Hunt Downer (sponsor of bill inserting paragraph (6) into
article 1732) before La. House Civil Law & Procedure Committee,
May 10, 1988).
     3
      Rule 9(h) reads in pertinent part:
     A pleading or count setting forth a claim for relief
     within the admiralty and maritime jurisdiction that is
     also within the jurisdiction of the district court on
     some other ground may contain a statement identifying the
     claim as an admiralty or maritime claim for the purposes
     of Rules 14(c), 38(e), 82, and the Supplemental Rules for
     Certain Admiralty and Maritime Claims.
FED. R. CIV. P. 9(h). Rule 38(e) states "[t]hese rules shall not
be construed to create a right to trial by jury . . . in an
admiralty or maritime claim within . . . Rule 9(h)." FED. R. CIV.
P. 38(e).
         4
      "[A]ny 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 ... to the district court of the
United States." 28 U.S.C. 1441(a).




                               -3-
motions to remand and for reconsideration, the district court again

denied remand, holding that by virtue of Linton's designation of

his claim as an "admiralty or general maritime claim," the federal

court had exclusive jurisdiction in admiralty.     Linton v. Great

Lakes Dredge & Dock Co., No. 90-1780, Amended Ruling at 3 (W.D.La.

1990).   The court also certified the order in accordance with the

provisions of 28 U.S.C. § 1292(b).    Linton timely petitioned this

court for permission to appeal, which was granted, and this appeal

followed.

                                 II

     Our discretionary grant of an appeal in this case limits us to

the sole question of the propriety of the district court's refusal

to remand this case to the Louisiana court.      See 16 CHARLES A.

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3929 at 143 (1977)

(scope of issues open to court of appeals is closely limited to the

order appealed from)(hereinafter Wright & Miller). This refusal is

subject to appellate review.   See, e.g., In re Dutile, 935 F.2d 61,

62 (5th Cir. 1991) (court granted application for writ of mandamus

after district court refused to certify appeal of order denying

motion to remand).   Although it might appear that a plain reading

of 28 U.S.C. § 1445(a) (Jones Act cases filed in state court are

not removable) decides this case, we have nevertheless held that

this statutory bar to removal may be waived by the plaintiff.

Lirette v. N. L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir. 1987).

If, as Great Lakes argues, Linton's article 1732(6) election




                                -4-
amounted to election of an exclusive federal admiralty remedy, then

that election was also a waiver of the bar to removal and we may

not say that this case simply was not removable in the first

instance.     We, therefore, turn to examine the merits of the

district court's refusal to remand this case.            In examining the

nature of these claims, we point out that Linton presents both

general maritime and Jones Act claims.         Each stems from different

historical roots and, thus, we must consider them separately

because     these   different     origins     bear    directly       upon   the

jurisdictional significance of a maritime plaintiff's election of

a non-jury trial.

                                      III

     We turn first to consider whether the general maritime claims

asserted by Linton fall within the exclusive admiralty jurisdiction

of the federal court if tried to the bench rather than to a jury.

We begin by observing that one of the grants of judicial power in

the Constitution     is   of   "all   Cases   of   admiralty   and    maritime

Jurisdiction."      U.S. CONST. art. III, § 2.           The 1st Congress

implemented this grant in the following words:

     [T]he district courts . . . shall also have exclusive
     original cognizance of all civil causes of admiralty and
     maritime jurisdiction . . . saving to suitors, in all
     cases, the right of a common law remedy, where the common
     law is competent to give it.5

     5
      The current version of the statute provides:

            The district courts shall have original
            jurisdiction, exclusive of the courts of the




                                      -5-
Section 9 of the Judiciary Act of 1789 (cited in GRANT GILMORE &

CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 1-9 (2d ed. 1975)

(hereinafter Gilmore & Black); 14 Wright & Miller § 3671 at 408.

Putting aside the complex question of just what fell within the

"admiralty and maritime jurisdiction," it became clear as the case

law evolved that

     a suitor who holds an in personam claim, which might be
     enforced by suit in personam in admiralty, may also bring
     suit, at his election, in the `common law' court--that
     is, by ordinary civil action in state court, or in
     federal court without reference to `admiralty,' given
     diversity of citizenship and the requisite jurisdictional
     amount.

Gilmore & Black § 1-13; see also THOMAS J. SCHOENBAUM, ADMIRALTY

AND MARITIME LAW § 3-13 (1987) (hereinafter Schoenbaum) ("Since the

common law is competent in all cases where the suit is in personam,

a plaintiff in such causes may elect either to proceed in admiralty

or to bring an ordinary civil action, either at law in state court



          States, of:
          (1) Any civil case of admiralty or maritime
          jurisdiction, saving to suitors in all cases
          all other remedies to which they are otherwise
          entitled.

28 U.S.C. § 1333. The "saving to suitors" clause was changed by a
1948 revision of the statute. The Revision Notes state that "[t]he
substituted language is simpler and more expressive of the original
intent of Congress and is in conformity with Rule 2 of the Federal
Rules of Civil Procedure abolishing the distinction between law and
equity." Id.      Gilmore and Black are critical of this comment,
saying:    "[I]t seems unnecessary to comment on the claim of
`simplicity.' As far as the `intent of Congress' goes, it seems
. . . best to let the courts be the judges of that . . . [or] at
least to codify . . . the main effect of the judicial decisions,
which was to exclude the state courts from in rem suits."




                               -6-
or in a federal district court under federal diversity jurisdiction

(or some other basis of federal jurisdiction).").6

     Shortly after the War Between the States, the Supreme Court

held that the in rem remedy was within the exclusive jurisdiction

of the federal courts and that the states were not permitted such

proceedings.7   This holding was based on the premise that the in

rem suit was not a "common law remedy."   The Moses Taylor, 71 U.S.

(4 Wall.) 411, 431 (1867); The Hine v. Trevor, 71 U.S. (4 Wall.)

555, 571 (1867); Gilmore & Black § 1-13.    There was, however, no

perceived bar to in personam suits in state courts.     Schoenbaum

states that the policy basis for concurrent jurisdiction is that

         6
      In a much simplified analysis, we can classify admiralty
claims as follows: 1) in personam, in which the defendant is a
"person" (including corporations) and in which collection of a
judgment involves tracing assets, garnishing them, etc. with all
the attendant difficulties of collection; 2) in rem, in which a
"vessel" (or other property) is the defendant and in which a
judgment becomes a lien on the vessel (or other property) and may
be enforced and collected by sale of the vessel (or other
property), a sale which conveys title "good against the world."
Gilmore & Black § 1-12.
     7
      Furthermore, an action in rem is not available in an action
"at law" in federal court. See, e.g., 14 Wright & Miller § 3672
("[I]n rem jurisdiction . . . is unavailable in actions at law in
either the state or federal courts.) In support of its argument
that Linton's article 1732(6) election removed the protection of
the "saving to suitors" clause, Great Lakes correctly points out
that "an in rem action is but one of the numerous admiralty
remedies not available in an action `at law'; state courts do not
have concurrent jurisdiction over actions for limitations of
liability or [various named statutes]." The counter to this point
is, however, that in each of those instances the exclusive
jurisdiction of the federal court is established by specific
congressional action.    The in rem--in personam distinction in
respect to federal jurisdiction, in contrast, has developed through
more than 100 years of case law.




                               -7-
"the common law courts had the power to hear such cases prior to

the adoption of the Constitution."             Schoenbaum § 3-13 n.2.          He

points    out   that   "[c]oncurrent      jurisdiction   is    statutory,     not

constitutional, based upon the saving to suitors clause."8                    Id.

Although the common law courts were allowed by Congress (by means

of the "saving to suitors" clause) to continue to provide common

law remedies, the substantive law applied had to be the general

maritime law, as modified by Congressional action.                 Chelentis v.

Luckenbach S.S. Co., 247 U.S. 372, 384 (1918); see, e.g., Pizani v.

M/V Cotton Blossom, 669 F.2d 1084, 1087-89, 1088 n.2 (5th Cir.

1982) (in personam judgment of liability affirmed; damage award

based on state and common law reversed and remanded for application

of maritime rule).      Remedies created by state statute could not be

enforced by actions brought in state court under the "saving to

suitors" clause if the

        legislation ... contravenes the essential purpose
        expressed by an act of Congress or works material
        prejudice to the characteristic features of the general
        maritime law or interferes with the proper harmony and
        uniformity of that law in its international and
        interstate relations.

Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917). However,

if state legislation passes this test, or a common law right is

widely recognized,       it   may   be    enforced,   even    by   invoking   the

    8
     Schoenbaum also points out that state law attachment, whereby
a defendant's interest in property is seized to guarantee the
defendant's appearance in court or seized and sold to satisfy a
judgment, is "also saved to suitors under the saving clause."
Schoenbaum, § 3-13 n.2.




                                         -8-
admiralty jurisdiction of the federal courts.                14 Wright & Miller

§ 3672.9

                                      A

     In its Amended Ruling, the district court refused to remand

this case:

     The defendants argue that once [the article 1732(6)]
     designation was made, the plaintiffs effectively withdrew
     their request for a remedy under the saving to suitors
     clause and asserted an action within the exclusive
     federal admiralty jurisdiction, making the case removable
     pursuant to 28 U.S.C. § 1441. In view of the historical
     federal interest in creating a uniform body of maritime
     law, this court agrees.        By making the Louisiana
     statutory counterpart of what is essentially a Rule 9(h)
     declaration . . . the plaintiff essentially seeks a
     remedy in admiralty [which] the common law is not
     competent to give but which lies within the maritime
     jurisdiction reserved exclusively to the federal
     sovereign.

Linton v. Great Lakes Dredge & Dock Co., Amended Ruling at 3.

     In breaking down further the district court holding, we can

correspond its rationale to the arguments that are being made

before us today. The Lintons' designation by which they "withdrew"

their claim under the saving to suitors clause and "asserted an

action     within   the   exclusive    federal       admiralty    jurisdiction"

corresponds    with   Great   Lakes'      argument    that    Linton's   article

1732(6) designation amounted to an election of an admiralty claim

within the exclusive federal jurisdiction.                The district court


     9
      Wright and Miller cites the widespread use prior to                1970 of
state wrongful death statutes to allow recovery within that              state's
navigable waters even though the general federal maritime                law did
not provide such a right to recovery. 14 Wright & Miller                 § 3672.




                                      -9-
referred to article 1732(6) as the Louisiana "equivalent" of Fed.

R. Civ. P. 9(h).      We take this statement to mean only that the

district judge was concluding that a choice of a non-jury trial of

a maritime matter in state court would impermissibly create an

admiralty docket in state court.          This expression of the issue is,

for our purposes today, only another way of saying that the choice

of a non-jury trial of a maritime matter automatically transforms

that matter into a true admiralty case over which the federal court

has exclusive jurisdiction.

     Further,   the    district     court's     statement     concerning     the

inability of the common law to provide a non-jury remedy under the

"saving to suitors" clause and the attendant exclusive federal

jurisdiction,       accords with the arguments by Great Lakes and

Amicus, Maritime Overseas Corp., that a jury trial is such an

essential part of any "common law remedy" that, if dispensed with,

whatever   remedy    remains   is   not    a   remedy   the   common   law   "is

competent to give."10




     10
       Great Lakes also argues that article 1732(6) is an attempt
by Louisiana to create "an admiralty side of state court which can
have no constitutional foundation." We address this argument later
in this opinion.     See infra nn.12, 13 and surrounding text.
Amicus, Maritime Overseas Corp. (Amicus or Maritime), presents
Supremacy Clause and Seventh Amendment arguments that were not
presented below. We will not consider those arguments here for the
first time.




                                    -10-
                                  B

      In considering what we will denominate the "election" and

"saving to suitors" arguments made against article 1732(6), we

first examine the "saving to suitors" argument--that only jury

trials are saved.    Title 28 U.S.C. § 1333 no longer "saves to

suitors" only a common law remedy.      It now specifically saves "all

other remedies to which they are otherwise entitled."          Gilmore &

Black states that "this quite unnecessary change in phraseology

. . . might imperil those decisions which . . . exclude state

courts from entertaining in rem proceedings." Gilmore & Black § 1-

13.   The professors then argue that Madruga v. Superior Court, 346

U.S. 556 (1954), "intimates that, by main force, the new language

will be taken to mean the same thing as the old."11      Id.   They point

out that the meaning of the revised language was not resolved by

Madruga and that, in fact, the question as to whether the "saving

to suitors" clause was expanded remains open.      Id.     The Revision

Note states that the revised language "is in conformity with . . .

[the abolition of] the distinction between law and equity."           28

U.S.C. § 1333 Revision Notes.

      Madruga affirmed the partition sale of a ship by a state

court.   346 U.S. at 562, 564.   The Court determined that not only

was such a sale within the admiralty jurisdiction of the federal


         11
         "We take it that this change in no way narrowed the
jurisdiction of the state courts under the original 1789 Act."
Madruga v. Superior Court, 346 U.S. 556, 560 n.12 (1954).




                                 -11-
courts, id. at 560, but also that the "saving to suitors" clause

gave the state court concurrent jurisdiction of the disputed in

personam partition action.      Id.   The Court stated:

      "Aside from its inability to provide a remedy in rem for
      a maritime cause of action, this Court has said that a
      state, `having concurrent jurisdiction, is free to adopt
      such remedies, and to attach to them such incidents, as
      it sees fit' so long as it does not attempt to make
      changes in the `substantive maritime law.'"

Madruga, 346 U.S. at 561 (citing Red Cross Line v. Atlantic Fruit

Co., 264 U.S. 109, 124 (1924)).       Red Cross Line had specifically

stated that:

      The "right of a common-law remedy," so saved to suitors,
      does not . . . include attempted changes by the states in
      the substantive admiralty law, but it does include all
      means other than proceedings in admiralty which may be
      employed to enforce the right or redress the injury
      involved.    It includes remedies in pais, as well as
      proceedings in court; judicial remedies conferred by
      statute, as well as those existing at the common law;
      remedies in equity, as well as those enforceable in a
      court of law. Knapp, S. & Co. v. McCaffrey, 177 U.S.
      638, 644 . . . [1900]; Rounds v. Cloverport Foundry &
      Mach. Co., 237 U.S. 303 . . . [1915]. A state may not
      provide a remedy in rem for any cause of action within
      the admiralty jurisdiction. The Hine v. Trevor, 4 Wall.
      555 . . . [1867]; The Glide, 167 U.S. 606, . . . [1897].
      But otherwise, the state, having concurrent jurisdiction,
      is free to adopt such remedies, and to attach to them
      such incidents, as it sees fit.

Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124 (1924).        We

conclude, therefore, that a non-jury trial in state court is not,

in   and   of   itself,   offensive   to   the   general   maritime   law.

Furthermore, a statutory provision for a non-jury trial, in and of

itself (absent any pretense at in rem proceedings), does not

constitute an attempt to create "an admiralty side of state court




                                  -12-
which can have no constitutional foundation."12                  We think that,

particularly in view of the revised wording of the "saving to

suitors" clause, the Supreme Court cases do not require a jury

trial as an element of a "saving to suitors" remedy.                       Stated

differently, a maritime non-jury action is not necessarily outside

the "saving to suitors" clause and within the exclusive admiralty

jurisdiction of the federal courts.13

                                           C

       We next examine the "election" argument in which Great Lakes

argues that Linton, by designating his claim as an "admiralty and

general     maritime"      claim    under       article   1732(6),   necessarily

"elected," albeit unwittingly, to pursue his cause of action as a

Rule    9(h)        "admiralty"    claim       within   the   exclusive   federal

jurisdiction.          This argument has been correctly addressed in

Pellegrin v. International Independent Towing, No. 88-5255, slip

op. at 3-4 (E.D. La. March 6, 1989) in which the court stated:


       12
      We do not address arguments that the Louisiana courts have
held that a jury trial is guaranteed by Louisiana law.         This
argument was not made below and constituted no basis for the ruling
of the district court. It is properly presented in Louisiana's
courts.
               13
            In a case involving in personam negligence and
unseaworthiness claims by the widow of a Sieracki seaman, the Court
stated that "Louisiana courts have broad jurisdiction of admiralty
cases such as this and have frequently exercised it. [I]t is the
duty of the Louisiana courts to adjudicate this case." Jackson v.
Lykes Bros. S.S. Co., 386 U.S. 731, 735 (1967). Although the case
does not address the jury trial question, it does emphasize the
concurrent jurisdiction of state and federal courts over in
personam admiralty claims.




                                       -13-
     [W]hile the plaintiff's designation significantly
affects state court procedure, it has no effect on state
court (or federal removal) jurisdiction. Generally . .
. a plaintiff may elect to bring a maritime in personam
action (1) "in admiralty," or (2) "at law." E.g., 28
U.S.C. § 1333; Leon v. Galceran, 78 U.S. (11 Wall.) 185,
191 (1871).
     If the plaintiff elects to proceed "in admiralty,"
not only must he sue in federal court . . . but he must
also designate his federal claim as "an admiralty and
maritime claim" under Federal Rule of Civil Procedure
9(h). . . . Procedurally, the "9(h)" claim is tried
before the court, not before a jury. See Fed. R. Civ. P.
38(e).
     On the other hand, if the plaintiff elects to
proceed "at law," he has two options. First, he could
sue on the "law side" of the federal court (i.e., without
a "Rule 9(h)" designation) if there exists an
independent,   nonadmiralty    basis   of   jurisdiction.
Procedurally, the "law" claim could be tried by a jury.
See U.S. Const. amend. VII; Fed. R. Civ. P. 38(a).
Second, plaintiff could sue "at law" in state court.
Procedurally, whether he, or the defendant, would have a
right to trial by jury would depend on state civil
procedure.    In Louisiana, the governing procedural
provision is [article 1732(6) and under that provision]
the defendant has no right to a jury trial if plaintiff
designates his claim as an "admiralty or maritime" claim.
[citation omitted.]
     This procedural consequence is the sole effect of an
article 1732(6) designation; it has no jurisdictional
significance. The designation simply cannot transform
the basis of state court jurisdiction from "law"
jurisdiction to "admiralty" jurisdiction . . ..Because
admiralty jurisdiction is exclusively federal, a true
"admiralty" claim is never cognizable in state court; no
"designation" or state procedure can alter this. E.g.,
The HINE v. Trevor, 71 U.S. (4 Wall.) 555 (1866)
(Supremacy Clause prohibits true "admiralty" claims in
state court).




                          -14-
Id.14    As noted above, only in rem admiralty claims (and certain

statutory actions) are within the exclusive federal jurisdiction.

Obviously the election under Louisiana law of a non-jury trial does

not, alone, convert an in personam action at law to an in rem

action in admiralty.

                                        D

        Great Lakes next gives a constitutional twist to its argument

that the "saving to suitors" clause applies only to actions tried

to a jury:         Because the "saving to suitors" clause, protecting

actions at common law, is an act of Congress, the Seventh Amendment

right to a jury trial in common law actions follows any maritime

action "at law" under that clause.            The abolition of that right by

a state means, therefore, that the action becomes one outside the

"saving      to   suitors"   clause   and     within   the   exclusive   federal

admiralty jurisdiction even though not an in rem action.

        Our holding above, to the effect that the "saving to suitors"

clause, as amended and as interpreted by the Supreme Court, "saves"

both    jury      and   non-jury   actions    effectively     applies    to   this

        14
       It is argued that the election of a non-jury trial is not
solely "procedural" but that the Louisiana courts have said that
article 1732(6) is "substantive" and affects a "fundamental" right
to jury trial guaranteed by Louisiana law. This argument may be
correct but the place for it is Louisiana's courts.       See supra
n.12. Assuming that the article 1732(6) designation is not merely
procedural, we still cannot say the article presently affects the
substantive maritime law:     it provides a "means other than a
proceeding in admiralty which may be employed to enforce the right
or redress the injury involved," but does not alter the seaman's
rights or redress available in connection with the injury sustained
in maritime employment.    Red Cross Line, 264 U.S. at 124.




                                       -15-
argument.     Nevertheless, we point out that the argument that

Congress's creation of a federal right creates an appurtenant

Seventh Amendment guarantee was rejected long ago by the Supreme

Court when it affirmed a Federal Employer's Liability Act judgment

based on a jury verdict, permitted by Minnesota law, that was

rendered by 10 of a 12 person jury.        Minneapolis & S. L. R.R. Co.

v. Bombolis, 241 U.S. 211, 216 (1916).              Although the Seventh

Amendment requires a unanimous verdict, the Court made clear "that

the 7th Amendment applies only to proceedings in courts of the

United States, and does not in any manner whatever govern or

regulate trials by jury in state courts, or the standards which

must be applied concerning the same."        Id. at 217.15

                                    E

     In sum, we see no reason why Linton may not pursue his

maritime claims (considered alone and separately from his Jones Act

claim) in Louisiana's courts under the "saving to suitors" clause

regardless of the fact that those courts may or may not provide

trial    before   a   jury.   Whether    Linton's   maritime   claims   are

removable, then, depends on factors other than his election of a


        15
       We note that Amicus, Maritime Overseas Corp., argues that
article 1732(6) violates the Fourteenth Amendment's equal
protection clause "by denying [admiralty and maritime defendants]
the jury trial right [Louisiana] affords defendants in analogous
negligence and wrongful death cases arising under state law." This
argument was not raised in the court below and is presented here
for the first time.     This argument deserves full briefing and
adversary presentation. In any event, we will not decide the issue
now.




                                  -16-
non-jury trial, including, but not limited to, the citizenship of

the parties, the amount in controversy, etc.         See, e.g., In re

Dutile, 935 F.2d 61, 62-63 (5th Cir. 1991) ("admiralty and maritime

claims may be removed to federal court only by non-forum defendants

and only where there is complete diversity of citizenship").      For

the reasons set forth below, we find that Linton's maritime claims

are not removable in this case.

                                  IV

     We next examine this appeal as it relates separately to the

Jones Act claim: Whether the non-jury designation of this claim in

state court characterizes it as an admiralty case within the

exclusive federal jurisdiction.16      We turn first to review briefly

the relevant background of the Jones Act.

                                  A




     16
       Great Lakes also argues that its right to a jury trial in
state court is guaranteed by the Seventh Amendment because the
Jones Act is a federal law to which the right to trial by jury
otherwise attaches. For the same reasons set out in analysis of
this argument in connection with Linton's maritime claims, we
reject it. The Seventh Amendment "applies only to proceedings in
courts of the United States, and does not in any manner whatever
govern or regulate trials by jury in state courts, or the standards
which must be applied concerning the same."     Minneapolis & S. L.
R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916). Furthermore, we
have previously made it clear that only when a Jones Act claim is
brought in federal court, under the "saving to suitors" clause, and
based on diversity jurisdiction, does the Seventh Amendment give
the defendant the right to elect a jury trial. Rachal v. Ingram
Corp., 795 F.2d 1210, 1213, 1215-16, 1216 n.8 (5th Cir. 1986).
Otherwise, "the Jones Act gives only the seaman-plaintiff the right
to choose a jury trial." Id. at 1215 (emphasis ours).




                               -17-
      Before passage of the Jones Act, a seaman could not recover

for injuries caused by "the negligence of the master, or any member

of the crew" although recovery was permitted for the seaman's

injuries caused by unseaworthiness of the vessel, as well as for

maintenance and cure.     The Osceola, 189 U.S. 158, 175 (1903).          In

1920, Congress passed the Jones Act which "in substance provided

that a seaman injured in the course of his employment by the

negligence of owner, master or fellow crew members could recover

damages for his injuries."     Gilmore & Black § 6-3.        The Jones Act

thus broadened   the    remedies   of   a   seaman   by   incorporating   by

reference the Federal Employers' Liability Acts (FELA).           Id. § 6-

26.   "Under FELA any employee of an interstate carrier by rail may

recover damages from the carrier for injury or death [resulting

from the negligence of any of its officers, agents or employees, or

from any defect in equipment.]"     Id.17    The Act currently provides:

      Any seaman who shall suffer personal injury in the course
      of his employment may, at his election, maintain an
      action for damages at law, with the right of trial by
      jury, and in such action all statutes of the United
      States modifying or extending the common-law right or
      remedy in cases of personal injury to railway employees
      shall apply; . . . .

46 U.S.C. § 688(a).




      17
      FELA removed contributory negligence as a bar to recovery,
but allowed a reduction of recovery based on the employee's
comparative negligence. Gilmore & Black § 6-26. Assumption of
risk as a defense was also eliminated in certain circumstances.
Id.




                                   -18-
     Thus the Jones Act provided the seaman an alternative ("at his

election"), which is "an action for damages at law, with the right

of trial by jury." Although the Jones Act does not expressly state

the fact that the antecedent right implicit in the statute is that

of a trial in admiralty, the Supreme Court has said "the statute

leaves the injured seaman free . . . to assert his right of action

. . . on the admiralty side of the court.    On that side the isssues

will be tried by the court, but if he sues on the common law side

there will be a right of trial by jury."    Panama R. Co. v. Johnson,

264 U.S. 375, 391 (1924).   This court has said "[a] seaman having

a Jones Act remedy may elect the remedy of a suit in admiralty or

civil action at law."   Doucet v. Wheless Drilling Co., 467 F.2d

336, 339 (5th Cir. 1972) (citing Panama R. Co. v. Johnson, 264 U.S.

375 . . . (1924)); Balado v. Lykes Bros. S.S. Co., 179 F.2d 943,

945 (2d Cir. 1950); McCarthy v American Eastern Corp., 175 F.2d

724, 726 (3d Cir.), cert. denied, 338 U.S. 868 . . . (1949).

                                 B

     Great Lakes argues, as it does with respect to the general

maritime claim, that by designating his claim as an "admiralty and

maritime claim" and, thus, electing a non-jury trial in a Jones Act

case in state court, Linton necessarily has chosen to proceed

within the exclusive admiralty jurisdiction of the federal court.

Great Lakes essentially argues that Linton's choices for trial of

his Jones Act claim are exclusive:    either 1) an admiralty trial,

available only in federal court because, pursuant to Article III of




                               -19-
the Constitution, there can be no state admiralty docket, or 2) an

action at law, which must be tried to a jury, available in state or

federal court.

  We have explained the seaman-plaintiff's choice when he sues in

federal court as follows:

     [T]he Jones Act gives only the seaman-plaintiff the right
     to chose a jury trial. With certain exceptions that are
     not involved here [limitation actions], a plaintiff has
     the right to select either an admiralty or a legal forum
     under the saving to suitors clause. The Federal Rules
     preserve this right by allowing the plaintiff to
     designate his action as one in admiralty or to treat it
     as a civil action.

Rachal v. Ingram Corp., 795 F.2d 1210, 1215 (5th Cir. 1986)

(citations omitted).   The statute makes it clear that the right to

an "action for damages at law" protects the seaman's "right of

trial by jury."   Rachal, 795 F.2d at 1213, 1215; see 46 U.S.C. §

688(a) ("with the right of trial by jury"); Bailey v. Central

Vermont Ry., 319 U.S. 350, 354 (1943) ("`[t]he right to trial by

jury is part and parcel of the remedy afforded railroad workers

under the . . . Act'"); Dice v. Akron, C. & Y. R.R., 342 U.S. 359,

360, 363 (1952)(same).

     Rachal, in speaking of actions in federal court, further

states:   "In a nondiversity action under the Jones Act . . . the

seaman, on proper request, is entitled to a jury trial only by

virtue of the Jones Act statutory grant."   Rachal, 795 F.2d at 1213

(citing Fitzgerald v. United States Lines, 374 U.S. 16, 21 (1963)).

As we pointed out in that case, "when the initial complaint was




                               -20-
filed [under    federal     question   (non-diversity)   jurisdiction     in

federal court] and the plaintiff chose a civil action, the only

right to a jury trial belonged to the plaintiff under the Jones

Act."    Id.   at   1217.     The   seaman-plaintiff,    however,   is   not

compelled by the Jones Act to request a jury if he choses to try

his Jones Act claim in a civil action--it is simply a right that he

possesses, and not the defendant.

      Thus, the Jones Act plaintiff can elect a non-jury trial in

federal court either 1) by electing to sue in admiralty or 2) by

grounding his suit on federal question jurisdiction, i.e.,               the

Jones Act, and not requesting a jury.          There is, therefore, no

Article III bar to a non-jury trial of a Jones Act claim in an

action at law. Therefore, we see no Article III, Seventh Amendment

or federal statutory bar that denies the Jones Act plaintiff in

state court the right to a non-jury trial if state procedure allows

it.

      We may also reach the same conclusion--that there is no

federal bar to a state non-jury Jones Act action--by applying the

saving to suitors clause.      As the Supreme Court and our authority

have observed, federal jurisdiction in admiralty over a Jones Act

claim may be asserted under 28 U.S.C. § 1333.      See Panama R. Co. v.

Johnson, 264 U.S. 375, 391 (1924) (seaman may assert Jones Act

right of action on admiralty side of federal court).            This same

statute "sav[es] to suitors in all cases all other remedies to

which they are otherwise entitled."        28 U.S.C. § 1333(1).      As we




                                    -21-
have explained above, there is no bar in the "saving to suitors"

clause to a non-jury trial at law.                Louisiana's statute allowing

a   non-jury   trial    of     a    maritime     claim     provides,   therefore,   a

"remed[y] to which [Linton is] otherwise entitled" under that

clause.   We, thus, conclude that the Jones Act allows the injured

seaman to elect a non-jury trial in an action "at law" in a state

court, and such election does not, without more, convert the action

to one in admiralty.

                                           C

      We next consider whether Linton waived the statutory bar to

removal of Jones Act cases when he designated his case as a non-

jury admiralty matter under the Louisiana statute.                       28 U.S.C. §

1445.   Based on our analysis of Great Lakes' "election" argument,

above, our analysis of the "election" argument in connection with

Linton's "maritime" claim, set out in the text at III, C, supra,

and our analysis of Great Lakes' Seventh Amendment argument, we

conclude that the simple election of a non-jury trial by means of

designating    his     Jones       Act   claim   as   an    "admiralty    or   general

maritime claim" did not automatically place Linton's case in the

exclusive admiralty jurisdiction of the federal courts. Therefore,

Linton's election of a non-jury trial in state court of a Jones Act

claim did not amount to a waiver of the statutory bar to removal of

Jones Act cases from state courts.               28 U.S.C. § 1445.         This Jones

Act case was not removable in the first instance.                        Id.   Neither

were the associated maritime claims removable in this case because




                                          -22-
they are not "separate and independent claims." 28 U.S.C. 1441(c);

Pate v. Standard Dredging Corp., 193 F.2d 498, 501 (5th Cir. 1952).

                                    V

     Finally we note that the district court, in part, based its

refusal to remand on "the historical federal interest in creating

a uniform body of maritime law."         Linton v. Great Lakes Dredge &

Dock Co., No. 90-1780, Amended Ruling at 3 (W.D.La. 1990).           In this

instance, Louisiana's article 1732(6) has no effect on the body of

maritime law (including the Jones Act) and does not violate the

strictures of Jensen.        As noted in the discussion above, in

personam   admiralty   actions    have    been   within     the   concurrent

jurisdiction of state and federal courts for some 200 years.            The

substantive federal admiralty law has been and remains applicable

to such actions, including those affected by Louisiana's article

1732(6).   There is no need to make a portion of such in personam

actions removable to federal court in order to maintain the desired

uniformity of admiralty law.

                                    VI

     We sum up:    A non-jury trial in state court is not, in and of

itself, offensive to the general maritime law, and--absent any

pretense at in rem proceedings--does not constitute an attempt to

create an admiralty side of state court.         In view of the revised

wording of   the   "saving   to   suitors"   clause   and    Supreme   Court

authority, a jury trial is not a required element of a "saving to

suitors" remedy. Stated differently, a maritime non-jury action is




                                   -23-
not necessarily outside the "saving to suitors" clause and within

the exclusive admiralty jurisdiction of the federal courts.

      Furthermore, "an article 1732(6) designation . . . has no

jurisdictional        significance.        The    designation    simply    cannot

transform      the    basis   of   state   court    jurisdiction    from    `law'

jurisdiction         to   `admiralty'   jurisdiction."            Pellegrin    v.

International Independent Towing, No. 88-5255, slip op. at 3-4

(E.D. La. March 6, 1989).             The net effect of Linton's article

1732(6) election is solely that his maritime and Jones Act claims

will be tried to the bench and not to a jury.             This result does not

cause those claims to fall out of the "saving to suitors" clause

and into the exclusive federal admiralty jurisdiction. Nor does it

amount to an abandonment of the plaintiff's right to file an action

"at law" in state court and become an election to pursue an

exclusive federal admiralty remedy.

     As   to    Great     Lakes'   argument      that   the   Seventh   Amendment

guarantees a jury trial in any "saving to suitors" action in state

court, we have found that the "saving to suitors" clause "saves"

both jury and non-jury actions.            More to the point, the argument

that a federal right has an appurtenant Seventh Amendment guarantee

applicable to state court proceedings was rejected long ago by the

Supreme Court.        Minneapolis & S. L. R.R. Co. v. Bombolis, 241 U.S.

211, 216 (1916).

     With respect to Great Lakes' Jones Act arguments:                    We hold

there is no Seventh Amendment or federal statutory bar that denies




                                        -24-
the Jones Act plaintiff in state court the right to elect a non-

jury trial.     We also hold that the election of a non-jury trial in

state   court    by    a    Jones   Act    plaintiff    does    not,     of   itself,

automatically force the case into the exclusive federal admiralty

jurisdiction.

       There is no need to make in personam actions affected by

Louisiana's article 1732(6) removable to federal court in order to

maintain the desired uniformity of admiralty law.                   We reject the

district court's conclusion to that effect.

       The judgment of the district court denying remand was error;

this    case    is    not    within       the    exclusive     federal    admiralty

jurisdiction and is not otherwise removable.                 The decision of the

court below is REVERSED and the case REMANDED with direction to

remand to the state court.

                     REVERSED WITH DIRECTION TO REMAND TO STATE COURT.




                                          -25-
