Text File

1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 JAMES F. LEWIS, :

4 Petitioner :

5 v. : No. 99-1331

6 LEWIS & CLARK MARINE, INC., :

7 ETC. :

8 - - - - - - - - - - - - - - - -X

9 Washington, D.C.

10 Wednesday, November 29, 2000

11 The above-entitled matter came on for oral

12 argument before the Supreme Court of the United States at

13 11:05 a.m.

14 APPEARANCES:

15 ROY C. DRIPPS, III, ESQ., Wood River, Illinois; on behalf

16 of the Petitioner.

17 JAMES V. O'BRIEN, ESQ., St. Louis, Missouri; on behalf of

18 the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 ROY C. DRIPPS, III, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 JAMES V. O'BRIEN, ESQ.

7 On behalf of the Respondent 21

8 REBUTTAL ARGUMENT OF

9 ROY C. DRIPPS, ESQ.

10 On behalf of the Petitioner 43

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1 P R O C E E D I N G S

2 (11:05 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 next in Number 1999 -- correction, 1331, James Lewis v.

5 Lewis & Clark Marine.

6 Mr. Dripps.

7 ORAL ARGUMENT OF ROY C. DRIPPS, III

8 ON BEHALF OF THE PETITIONER

9 MR. DRIPPS: Mr. Chief Justice, and may it

10 please the Court:

11 Both the Jones Act and the Limited Liability Act

12 can and should be given effect in this single-claimant

13 case, yet respondent seeks to use the Limited Liability

14 Act to destroy rights conferred by Congress on Lewis as a

15 seaman. The Jones Act incorporates the provisions of the

16 Federal Employers Liability Act guaranteeing the employee

17 a choice of a State or Federal forum. In addition, it

18 guarantees him the freedom from removal to Federal court

19 in the event he chooses a State court forum.

20 QUESTION: That's true of both the Jones Act and

21 FELA, is it?

22 MR. DRIPPS: Yes, sir, and that statutory remedy

23 is saved to Lewis by the saving to suitors clause, yet it

24 can only be preserved in this case by dissolving the

25 injunction against State court proceedings. This Court's

3

1 decision in the 1931 Langnes case held that the

2 injunction, even without stipulations, should be dissolved

3 to allow the State court suit to proceed, and that the

4 admiralty court would resume jurisdiction only in the

5 event that the State court judgment exceeded the amount of

6 the limitation fund.

7 QUESTION: Well, under what circumstances could

8 the district court exercise its discretion and not

9 dissolve the injunction and require litigation of

10 liability in Federal court?

11 MR. DRIPPS: Justice O'Connor, it would be only

12 in a multiple-claimant excess fund situation, and even

13 then under the Jones Act there might be a question with

14 regard to preserving multiple suitors claims under the

15 Jones Act, but generally in a non-Jones Act multiple-

16 claimant excess fund situation the vessel owner does have

17 the right to maintain the exclusive jurisdiction of the

18 admiralty court.

19 QUESTION: Well, what if you have excess funds,

20 multiple, and the Jones Act? Are you saying that the

21 Jones Act would prevent a liability determination in all

22 of those situations?

23 MR. DRIPPS: Not necessarily. I'm saying that

24 it's a question that potentially could be raised, but it

25 hasn't been. That's, of course, not this case. This is a

4

1 single-claimant case, and part of the court's discretion

2 at the district court level certainly was finding that it

3 could be a single-claimant case, which the district court

4 order did note in footnote 3.

5 QUESTION: Do you think that the courts and rule

6 (f) preclude a single-claimant exception?

7 MR. DRIPPS: Oh, absolutely not, Justice

8 O'Connor. I think that was made clear in the Langnes

9 case, because in the Langnes case the district court in

10 fact exonerated the vessel owner, and were that -- were

11 rule (f) to preclude dissolution of the injunction,

12 certainly the court would have simply relied on the

13 exoneration finding.

14 QUESTION: But you think that rule (f) is

15 invalid?

16 MR. DRIPPS: I do. However, and I want to make

17 this clear, the Court need not reach that issue if it

18 simply follows the Langnes analysis. The Rules Enabling

19 Act analysis only comes into play in this case if the

20 respondent's position is adopted, in that they say that we

21 have no right to go to State court. At that point, I am

22 forced to attack the rule which gives them the right to

23 have a liability and damage determination made in the

24 Federal court, which I do say is invalid as violation of

25 the rulemaking powers of this Court.

5

1 QUESTION: But it's possible to rule for you

2 here without holding that rule (f) is invalid just as a

3 matter of interpretation, isn't it?

4 MR. DRIPPS: Mr. Chief Justice, I agree

5 completely that if the Court simply follows the Langnes

6 case and says that the Jones Act allows this case to be

7 brought in State court, and that that statutory remedy is

8 preserved by the saving to suitors clause, and that the

9 injunction should be dissolved on that basis, the Court

10 need not reach the issue of the invalidity of rule (f) in

11 this case.

12 QUESTION: But it might not -- but it might not

13 go that far if you had a mass disaster and there were many

14 sailors injured and the vessel wasn't worth enough to

15 cover all the claims.

16 MR. DRIPPS: Justice Ginsburg, I think that in

17 that case the plain language of the limitation statute in

18 anything other than fire requires the vessel owner to

19 admit liability and cannot use the limitation statute as a

20 method to shift the forum and then contest liability. The

21 shipowner has a choice of one or the other in that

22 circumstance.

23 QUESTION: How does it work in practice? You

24 have a single claimant, and there's adequate, adequate

25 funds to cover the claim and it goes to the State court.

6

1 Then 6 weeks later somebody else has a slip and fall, and

2 then there's another suit. Does that make everything

3 start all over again? How does this work in -- it seems

4 to me that there's great merit to your position, but that

5 on the other hand there's going to be problems down the

6 line when you have subsequent claims, or is that maybe not

7 a problem?

8 MR. DRIPPS: Justice Kennedy, I don't believe

9 that's a problem, because normally when you have a case

10 like this you have separate or serial funds. Each time

11 the vessel owner wishes to file a limitation case there's

12 a separate valuation made, and it's a separate proceeding.

13 Now, the seaman's claims will become liens in

14 priority of the time they arise, but that's a separate

15 issue, and I --

16 QUESTION: Okay, so the priority is what solves

17 the problem, then.

18 MR. DRIPPS: Exactly. There's a priority based

19 on chronology.

20 QUESTION: And also --

21 QUESTION: A chronology of when the claim was

22 filed, or when the injury occurred?

23 MR. DRIPPS: I believe that it is of the time of

24 the judgment, except for wages, when it's a -- wages are a

25 lien that accrue as of the time --

7

1 QUESTION: Well, then I think there might be a

2 problem with successive claims. We need not get into it.

3 It's in the background, it seems to me, of the rule we

4 must make, because if we ship it all off to the State

5 court, and then there are going to be subsequent claims,

6 you might have to start the -- stop the State proceeding

7 midway.

8 MR. DRIPPS: Well, Justice Kennedy, I believe

9 that would only be a problem if the vessel owner tenders

10 the vessel to a trustee rather than posting security for

11 value, which is what was done in this case.

12 If, in fact, the vessel is turned over to a

13 trustee, though, the likelihood is that it's not going to

14 be employed by the owner, and so that owner won't be

15 allowed to have a subsequent claim, and if they post

16 security for value, I think that solves the problem,

17 because there is a fund posted, and we won't be in a

18 situation where we have competing claims for the same

19 fund. In other words, they will be different funds.

20 QUESTION: Do I understand the limitation

21 correctly? I mean, the typical use would be if you have a

22 collision and lots of people are hurt, but this is a

23 single -- this is a tripping on wire, so we know it

24 isn't -- it isn't disputed in this case, is it, that we're

25 dealing with a single-sailor accident? There was -- he

8

1 tripped over a wire on the deck.

2 MR. DRIPPS: There is no dispute concerning

3 that, Justice Ginsburg. In the motion to dissolve the

4 restraining order, which is in the joint appendix on page

5 70, and I believe it's at page 71, paragraph 6, Lewis made

6 the specific claim that this was a single-claimant

7 accident. That claim has never been rebutted or

8 contradicted by the opposing side, by the vessel owner, so

9 this is clearly a single-claimant case.

10 Now, what your question suggests then, is why

11 was this case filed, and it was filed simply as a forum-

12 shifting device.

13 QUESTION: But you sued later. Oh, you think

14 that they came in precipitously so that the forum would be

15 where they wanted it, rather than where you chose to sue?

16 MR. DRIPPS: Well, Justice Ginsburg, I wouldn't

17 use the term precipitously, but the complaint was filed on

18 March 24 of 1998. Normally, in the case of a mass

19 disaster, for example, there would be immediately a motion

20 for an injunction and a notice to potential claimants that

21 goes out. That was not done in this case until May 11, 6

22 weeks or so after the initial complaint, and it was not

23 done until after the State court case had been filed.

24 What they did was, they filed a limitation case

25 in the Federal court and then sat on it, waited to see if

9

1 Lewis was going to institute suit or not. When he did,

2 they obtained the injunction restraining prosecution of

3 the suit, and --

4 QUESTION: And their limitation proceeding was

5 filed in which court?

6 MR. DRIPPS: It was filed in the Eastern

7 District of Missouri, United States District Court for the

8 Eastern District of Missouri, across the river from

9 Madison County, Illinois.

10 QUESTION: And --

11 MR. DRIPPS: Rather than filing it in the

12 Southern District of Illinois.

13 QUESTION: There was -- seemed to be a

14 concession that if only you had asked for a jury trial

15 you'd be home free, because you can't get a jury trial in

16 admiralty and that's what the savings to suitors clause

17 saved.

18 MR. DRIPPS: And I think the Linton case from

19 the Fifth Circuit in 1992 addresses that point

20 specifically, Justice Ginsburg, and they say that the

21 saving clause saves a nonjury Jones Act case because

22 that's part of the seaman's remedy under the Jones Act.

23 The Jones Act's election language says the seaman has the

24 right to maintain an action at law or -- with or without a

25 jury and, by incorporating the Federal Employees Liability

10

1 Act, he can do it in State or Federal court.

2 QUESTION: The defendant cannot ask for a jury

3 trial in that situation?

4 MR. DRIPPS: That's true, Chief Justice. The --

5 and I think the Linton case goes on at great length to

6 discuss that, and the significance of that I think is

7 perhaps made more clear by the antiremoval provision in 28

8 U.S.C. 1445(a). The defendant cannot remove that case to

9 Federal court where he would be able to trigger the

10 Seventh Amendment and get a jury trial.

11 QUESTION: Yes, but it's one thing to say, for

12 Congress to say it can't be removed, but it seems to me

13 it's quite another, a separate thing for Congress to say

14 that the plaintiff can have a nonjury trial and the

15 defendant cannot move for a jury.

16 MR. DRIPPS: That is what the Linton case said,

17 and that point wasn't specifically brought up in the

18 briefs, although I believe this Court has addressed that

19 issue. I'd have to go outside the briefs to give you a

20 case cite.

21 QUESTION: Yes, well, it certainly isn't

22 directly involved here, is it?

23 MR. DRIPPS: No, sir. No, sir, but this Court

24 has addressed it.

25 QUESTION: Well, we said in Singer, that Singer

11

1 case, in the criminal case that the Government can move

2 for a jury trial even though the defendant doesn't want

3 one.

4 MR. DRIPPS: And in this case Congress has

5 specifically said that the injured employee has the option

6 of determining whether or not it should be a jury or

7 nonjury trial. That's what this Court said in the Panama

8 Railroad case v. Johnson, from 1920. The Linton case

9 simply followed that, and said that the fact that the

10 seaman chooses the nonjury remedy in State court does not

11 transform the case into something that is now removable

12 because it's outside the scope of the saving to suitors

13 clause.

14 And that ties in with this Court's decision in

15 the Red Cross Lines case, where it concluded that

16 statutory remedies are saved remedies, and in this case

17 Mr. Lewis is a seaman invoking his rights under the Jones

18 Act, which is a Federal statute. Accordingly, that remedy

19 is saved to him by the saving to suitors clause, and

20 Congress' decision to confer the right to select the forum

21 and the form of trial on the seaman is also saved by the

22 saving to suitors clause.

23 In contrast, the vessel-owner's rights in this

24 case have been fully protected by Lewis' stipulations.

25 We've guaranteed their right to seek the exclusive

12

1 jurisdiction of the Federal admiralty court, and in that

2 case their Federal statutory rights are fully protected,

3 but by precluding us from being able to preclude in State

4 court, they are destroying the rights that Congress has

5 conferred upon us in the Jones Act and preserved from the

6 exclusive Federal jurisdiction through the savings clause.

7 QUESTION: Well, what have you conceded with

8 respect to the limitation forum, because there'll be

9 nothing -- there'll be nothing -- the only -- this is the

10 only lawsuit, this Jones -- this is the only claim, so

11 they have a shell of an action, but there's nothing to

12 fill the shell because this case will go on in the State

13 court, there'll be a decision, there's more than enough

14 money in the till to pay the judgment, so what have you

15 conceded by letting them keep the limitation action?

16 MR. DRIPPS: Justice Ginsburg, what we've done

17 is guaranteed that their limitation action will be

18 successful. They have limited their liability. They've

19 capped their liability.

20 QUESTION: That your -- that's your concession,

21 that your claim is for less than the --

22 MR. DRIPPS: Absolutely, although -- and I don't

23 think that's necessary, though, to a resolution of the

24 case. If we look back at the Langnes case, which was a

25 Jones Act case, the Court's decision simply hinged on

13

1 applying the saving to suitors clause so that both

2 statutory doctrines could be implemented, which is what

3 I'm asking this Court to do now, rather than to pick one

4 in an effort to destroy the other, and that is the goal, I

5 think, of this case.

6 QUESTION: Well, your -- what's left of the --

7 what's in the shell, I guess, is a kind of interrorum

8 jurisdiction to, in effect to guarantee the concessions,

9 and it may never have to be -- presumably it will never

10 have to be exercised, but you're conceding that it could

11 be.

12 MR. DRIPPS: Justice Souter, that's right.

13 The -- in the event that a State court judgment would be

14 entered in excess of the limitation fund I think they have

15 an absolute right to go back into the Federal court and

16 say, wait a minute, Lewis agreed that in order to get to

17 State court his -- our liability would be capped, and at

18 that point the Federal judge would have the right to enter

19 an order limiting their liability. I don't think there's

20 any dispute about that.

21 QUESTION: All right. To keep it simple, on res

22 judicata they could simply enjoin collection beyond the

23 conceded limitation.

24 MR. DRIPPS: Sure.

25 QUESTION: Yes.

14

1 MR. DRIPPS: But they don't have the right to go

2 beyond capping their liability, which is what they're

3 seeking to do. They're seeking to shift the forum from

4 the State court, which has been guaranteed to us by

5 Congress, into the Federal court so that the liability and

6 damage determination can be made there, and that's what we

7 say is improper.

8 QUESTION: Do I correctly understand the picture

9 on this exoneration that would go on if you -- say you did

10 have a collision, would go on in the admiralty forum, that

11 the function is served by the defense that the shipowner

12 can put into the Jones Act claim that is, there was no

13 negligence here, and that is effectively what the

14 exoneration plea would do?

15 MR. DRIPPS: In some ways, Justice Ginsburg.

16 Now, if I understand the question correctly, I don't

17 believe that the exoneration rule is an incorporation of

18 Congress' allowing them a defense under the Jones Act. I

19 think that defense has to be taken in the context of the

20 statute, and they can choose to defend and require us to

21 put on our proof of negligence, but only in the context of

22 the forum grant that is given to the employee by Congress.

23 QUESTION: From the shipowner's point of view,

24 it's one thing to say the shipowner itself had no

25 involvement in the negligence, it was the other deck

15

1 hands. It's a respondeat superior situation. That's one

2 thing.

3 Another thing is, there was no negligence by

4 anybody at all, and I thought that that was the equivalent

5 of the exoneration plea, that nobody was negligent at all,

6 as distinguished from, maybe we have respondeat superior

7 liability, but we should be allowed to limit that.

8 MR. DRIPPS: That's true, that is the essence of

9 the exoneration claim, and that's what they want the

10 Federal court to decide. The two responses to that are,

11 first of all, the Langnes case from this Court essentially

12 held that the exoneration claim was not sufficient to

13 preclude dissolution of the injunction because, as I noted

14 earlier, in Langnes the district court had, in fact,

15 exonerated the vessel owner. This Court nonetheless

16 required the injunction to be dissolved and the case to go

17 back to State court.

18 QUESTION: Well, that I don't follow, because if

19 there was a determination of exoneration, that is, no

20 liability at all, not limited but no liability at all, why

21 wouldn't that have been preclusive in State court?

22 MR. DRIPPS: If it had not been reversed by this

23 Court it would have been preclusive.

24 QUESTION: Ah.

25 MR. DRIPPS: But this Court said that

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1 determination has to be made in State court and not in

2 Federal court.

3 QUESTION: What determination?

4 MR. DRIPPS: The determination of liability and

5 damage, and once it's made in State court, it is

6 preclusive of the exoneration claim in Federal court under

7 the rule of the Benefactor, which this Court decided in

8 1880.

9 QUESTION: But if the Federal court had made the

10 determination first, and that -- and hadn't been reversed,

11 then that would be preclusive.

12 MR. DRIPPS: Yes, it would, but the Court

13 reversed it because the determination should have been

14 made by the State court in the first instance rather than

15 the Federal court, and that's the essence of the Langnes

16 holding, that we're implementing the Jones Act's grant to

17 the seamen, preserved through the saving to suitors

18 clause, of the right to proceed in State court, rather

19 than be forced into Federal court by the shipowner, and

20 that holding was made without the presence of any

21 stipulations regarding res judicata, and this Court said

22 that the case will go back to State court for that

23 determination.

24 The other --

25 QUESTION: Well, that sounds like, entirely in

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1 sync with my suggestion that the defense of no negligence

2 at all, which can be put into the Jones Act proceeding, is

3 the equivalent of getting, in the Federal court,

4 exoneration.

5 MR. DRIPPS: That's absolutely true, Justice

6 Ginsburg. They have the right in State court to defend,

7 require the plaintiff to prove negligence, causation, and

8 damage. They will be getting in the State court the

9 benefit of that defense that they seek to assert in

10 Federal court.

11 They are not being deprived of any rights by

12 proceeding in State court, and their Federal right of

13 limitation will be guaranteed to them by the stipulations

14 that we filed waiving res judicata with regard to the

15 issue of limited liability and stipulating to the

16 exclusive jurisdiction of the district court to decide the

17 limitation issues. Those protect their Federal rights,

18 and their right to defend and require proof of negligence

19 and the other elements of the plaintiff's case are all

20 things they can assert in the State court.

21 The other reason that the exoneration rule

22 should not be permitted to control disposition of this

23 case and we're required to be brought into Federal court

24 is because at that point we do get into the rules enabling

25 analysis and I simply wanted to mention the Henderson case

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1 that this Court decided in 1996, which set forth four

2 factors that the Court considers in determining whether or

3 not a provision is substantive or procedural. Rule (f)

4 meets each and every one of those.

5 The Henderson Court indicated that the factors

6 are, who may sue, which is answered by rule (f)(1), which

7 says any vessel owner, on what claims, the amount of all

8 demands in conflict, tort or otherwise, rule (f)(2), for

9 what relief, exoneration, or limitation from liability

10 under rule (f)(2), and within what limitations period, not

11 later than 6 months after receipt of a written notice

12 of --

13 QUESTION: When you say it meets every test. It

14 meets every test for being procedural, is that what you're

15 saying?

16 MR. DRIPPS: For being substantive.

17 QUESTION: For being substantive?

18 MR. DRIPPS: Yes, Your Honor, and that's why I

19 say that if the Court adopts the analysis that the

20 respondent has offered, then we need to grapple with the

21 Rules Enabling Act analysis, and in that case the

22 provision of conferring a substantive right to sue by rule

23 violates the Rules Enabling Act because it conflicts with

24 the congressional statutory scheme of the Jones Act by

25 abridging or modifying Lewis' right to sue in State court

19

1 and enlarges the vessel owner's right to seek limited

2 liability in Federal court.

3 QUESTION: I'm not following your argument to

4 this extent. I thought all this came up originally not

5 because of statutes, but because of court-made doctrine in

6 admiralty, and then that doctrine gets reflected

7 eventually into rule (f). It's not a like a rule in place

8 of a statute, where I would follow your argument very

9 well, but it is taking what was, indeed, substantive law,

10 but substantive law originally made up by courts.

11 MR. DRIPPS: Well, normally, Justice Ginsburg, I

12 would agree with you that that is what the rules do. In

13 this particular case, however, this Court's decision in

14 the Benefactor specifically said that the fifty-sixth rule

15 in admiralty, which was the predecessor of current rule

16 (f), was designed to circumvent the prevailing English

17 rule requiring the vessel owner to admit liability.

18 So in fact the rule has done the opposite of

19 what you suggest. It has created a substantive right to

20 sue for a determination of liability and damage, where in

21 fact the common law, or the prevailing admiralty law,

22 required the opposite, that the vessel owner admit

23 liability, and that was the decision specifically of this

24 Court.

25 If there are no further questions, Mr. Chief

20

1 Justice, I'd like to reserve the balance of my time.

2 QUESTION: Very well, Mr. Dripps.

3 Mr. O'Brien, we'll hear from you.

4 ORAL ARGUMENT OF JAMES V. O'BRIEN

5 ON BEHALF OF THE RESPONDENT

6 MR. O'BRIEN: Mr. Chief Justice, and may it

7 please the Court:

8 The issue that is presented on certiorari grant

9 from this Court in this case is whether the district court

10 in this case abused its discretion in lifting the

11 injunction that was imposed upon the filing of the

12 limitation of liability case and allowing the claimant to

13 proceed with a nonjury case in Illinois State court, where

14 he was a single claimant in the limitation and where the

15 fund was, at least after the initial filing, deemed

16 adequate.

17 The Eighth Circuit answered this question in the

18 affirmative, and held that since the remedy sought by the

19 claimant, a nonjury trial, was already available in the

20 limitation of liability court, that there was no saved

21 remedy. In other words, there was no statutory right of

22 the claimant implicated, and therefore the Federal

23 district court in the limitation case was bound by its

24 grant of jurisdiction under Article 3, section 2 --

25 QUESTION: Well, do you think the district

21

1 court's view would have been different had the right to

2 jury trial not been given up?

3 MR. O'BRIEN: Mr. Chief Justice, our position in

4 the case, and I believe the position of the Eighth Circuit

5 was that if a jury trial had been requested, then a remedy

6 that was not available in the district court would have

7 been sought and therefore a saved remedy would have been

8 sought, and therefore the stay, assuming the single

9 claimant exception and the adequate fund exceptions were

10 met, would have been allowed to proceed in Illinois State

11 court.

12 QUESTION: So this case hinges, in your view at

13 any rate, on the fact that the plaintiff had waived the

14 right to a jury trial.

15 MR. O'BRIEN: To a large extent it does. If I

16 may --

17 QUESTION: You say that because you say, well

18 then he doesn't need the State forum because he can get a

19 nonjury trial in admiralty, but wouldn't one say equally,

20 once the Jones Act plaintiff stipulates that he's not

21 going to seek more than X amount of damages, you don't

22 need the limitation proceeding?

23 MR. O'BRIEN: Our position takes a step back,

24 and our position looks back at the original origin of the

25 single claimant exception that was set forth by this Court

22

1 in Langnes v. Green, and what we say is that we know a

2 number of things about what this Court -- what the

3 district courts have to do under the Limitation of

4 Liability Act.

5 Unlike some of the cases cited by the

6 petitioner, where there is no limitation case, we know

7 that when there's a limitation case on file there is

8 exclusive Federal jurisdiction, and we know that the

9 district courts are therefore bound to -- exclusively to

10 administer the rights of the limitation claimant and

11 all -- the limitation petitioner, excuse me, and all those

12 claimants who make claim.

13 The only way for any given claimant to exit from

14 the limitation case is if they can, for lack of a better

15 word, trump the limitation petitioner's rights to an

16 exclusive determination in the Federal court with some

17 statutory right, and in this case that would be -- the

18 source of that right would be 28 U.S.C. section 1333, the

19 saving to suitors clause.

20 Now --

21 QUESTION: I'd like to back up a little bit,

22 because I don't think I followed you that far down the

23 trail. That is, as I understand it, the whole reason for

24 being of a limitation action is so that the shipowner will

25 be able to limit the extent of his economic loss to the

23

1 value of the ship.

2 Now, once it is certain that that will in fact

3 be the case, that there is no exposure beyond the value of

4 the ship, what function does a limitation proceeding

5 save -- serve, other than to block what would ordinarily

6 be a garden-variety Jones Act case from proceeding in

7 whatever forum the sailor chooses to sue in?

8 MR. O'BRIEN: Because the Limitation of

9 Liability Act has more than just to limit liability. It

10 also has the purpose of allowing an exoneration to be

11 pursued by the shipowner and, indeed, in Langnes v. Green,

12 the seminal case that started this exception, the Court

13 was very clear, this Court was very clear that the

14 limitation court had both the power to decide exoneration

15 and limitation.

16 Now --

17 QUESTION: What provision of the limitation act

18 gives you the right to have an exoneration proceeding?

19 MR. O'BRIEN: Mr. Chief Justice, we believe that

20 the entire act construed by this Court in the Norwich v.

21 Wright case provides that right. Specifically, section

22 183, but also read in conjunction with section 185 and the

23 entire statute.

24 QUESTION: And where is that in the appendix?

25 MR. O'BRIEN: Well, the --

24

1 QUESTION: I see it's at pages 1 and 2 of the

2 petition for certiorari.

3 MR. O'BRIEN: Yes, Your Honor. Well, the

4 statute itself, of course, is in the United States Code,

5 and under section 183 of title 46 the vessel owner is

6 entitled to pursue the limitation of liability, and is --

7 QUESTION: But pursuing the limitation of

8 liability is one thing. Getting an exoneration

9 determination is another.

10 MR. O'BRIEN: Yes, sir.

11 Your Honor, going back to Norwich v. Wright,

12 this Court on at least a dozen occasions since 1871 has

13 decided that exoneration is a fundamental right under the

14 statute and is part and parcel of the limitation

15 proceeding.

16 QUESTION: Were any of those cases single-

17 claimant cases where the fund was adequate to cover the

18 injury, or were they all what one thinks of as limitation

19 case, a rather larger disaster?

20 MR. O'BRIEN: The early cases, Justice Ginsburg,

21 typically involved a petitioner limit after a judgment had

22 already been obtained in a district court. Indeed, the

23 Norwich case that is the case cited in both briefs, and

24 the original seminal case in limitation liability,

25 involved such a proceeding, and the Benefactor, the second

25

1 case after Norwich, also involved a shipowner that came in

2 after a finding of liability in the district court.

3 But when those early decisions came out

4 construing the Limitation of Liability Act, for the first

5 time -- it had been passed in 1851 -- they had to decide

6 what it meant, and there is an extended discussion in

7 Norwich v. Wright about it, and in that case this Court

8 stated that the American Limitation of Liability Act

9 represented a departure from English law, because the

10 English chancery courts, which had earlier heard

11 limitation cases in England, lacked the power to

12 investigate claims in admiralty, and therefore under

13 English admiralty law the shipowner was required to admit

14 liability.

15 In the American courts, and under the limitation

16 act as construed by this Court in Norwich v. Wright, a

17 determination not only of limitation was undertaken, but

18 also exoneration, and from that time forward --

19 QUESTION: But wasn't that only on the

20 assumption that there was jurisdiction under -- just to

21 seek limitation? As part of the proceeding they could

22 seek exoneration, but was there any case where the only

23 issue was exoneration versus liability?

24 MR. O'BRIEN: Not per se, Your Honor. Not per

25 se.

26

1 QUESTION: And the word exoneration is not in

2 the statute itself, is it?

3 MR. O'BRIEN: It is not found in the statute,

4 although it does state -- the statute does state that the

5 vessel owner's liability shall not exceed the value of the

6 vessel --

7 QUESTION: Right, but that's quite different

8 from saying it shall not exist.

9 MR. O'BRIEN: Well, it also does not deny the

10 district court -- the same statute that gives the

11 jurisdiction to decide limitation of liability does not

12 deny to the district court the ability to decide

13 exoneration.

14 QUESTION: But wouldn't all these cases fit

15 together if we simply held that in an appropriate case

16 where the limitation of liability proceeding involves

17 multiple claimants and an original intent to get more

18 than the gross value of the ship, that in such a case,

19 the -- among the things the shipowner can do is seek a

20 complete defense of a nonliability? Wouldn't all the

21 cases fit together if we just held that's where the

22 exoneration is appropriate?

23 MR. O'BRIEN: Well, certainly that's one option.

24 QUESTION: Yes.

25 MR. O'BRIEN: And I -- we would certainly urge

27

1 that on the Court, and I believe it's part of the

2 limitation act that the shipowner should be entitled to

3 seek exoneration in any case in which it seeks a

4 limitation as well.

5 QUESTION: The Norwich, for example, under the

6 Norwich was decided long before the Jones act was passed.

7 MR. O'BRIEN: Yes, Your Honor.

8 QUESTION: Do you think the Jones Act affects

9 the holding in Norwich in any way?

10 MR. O'BRIEN: We do not. It's clear that the

11 rights that the seaman has under the Jones Act are

12 subordinate to -- in general to the rights of the

13 shipowner to limit liability. In other words --

14 QUESTION: Now, why do you say that?

15 MR. O'BRIEN: Because -- for the reason that

16 it's clear that if it had been a limitation proceeding

17 with multiple claimants in a case where the claims

18 asserted exceeded the value of the vessel --

19 QUESTION: Yes, but Langnes says the single

20 claimant is different, does it not?

21 MR. O'BRIEN: Well, what -- Langnes really rests

22 upon three distinct factors. Langnes says, first you have

23 to have a limitation of liability case. Langnes says

24 second, you have to have a single claimant, and third you

25 have to have a request for a jury trial. Those, in our

28

1 view, are the three pillars upon which that case was

2 decided, and --

3 QUESTION: Do you think the request for a jury

4 trial was essential to the holding in Langnes?

5 MR. O'BRIEN: Your Honor, I do, and the reason

6 is because it's the request for a jury trial that

7 implicates a saved remedy. The request for a jury trial

8 is what implicates a right under the saving to suitors

9 clause, which in that situation exceeds the interest of

10 the vessel owner in staying in Federal court.

11 QUESTION: As I read it, you're trying -- you

12 seem to be trying to make the tail wag the dog. These

13 early cases say, well, you know, if you're in Federal

14 court, shipowner, trying to limit your liability, because

15 we've had a collision and there are 42,000 plaintiffs and

16 you've got to deal with this and just limit it to the

17 vessel, well, as long as you're there, we'll try out

18 whether you're liable at all. We'll try out exoneration.

19 The only reason we're doing that -- they didn't

20 do it in England, but the Court says -- we say, from time

21 immemorial it was done in every other country, right?

22 So --

23 MR. O'BRIEN: Yes.

24 QUESTION: So we'll do it. But if you're not

25 here, what's the point of doing it, and you're not here if

29

1 there's a single plaintiff or if there's an adequate fund.

2 I mean, the reasoning of it would seem to me to be, if

3 you're not here, and you can't get here because there's an

4 adequate fund, for example, there's no reason for us to

5 snatch the issue of liability away from the State court.

6 MR. O'BRIEN: Justice Breyer, I think it's key

7 to look at Langnes v. Green and see in that case that this

8 Court stated emphatically that the procedure under the

9 Limitation of Liability Act was to first look at

10 exoneration and then, if liability was found, to look at

11 limitation issues.

12 QUESTION: Of course that's true, provided that

13 you are properly in the Federal court limiting your

14 liability. My point is, suppose you're not, as is true

15 here, for the reason that you already have an adequate

16 fund. You have no basis to get into the Federal court if

17 there's an adequate fund. Your only basis could be that

18 we want to exonerate, but exoneration is there in case

19 you're in anyway.

20 MR. O'BRIEN: Well, let me state that

21 initially -- the initial claim filed in this case did

22 exceed the limitation fund, and so that at the time the

23 vessel owner instituted the proceeding, that was certainly

24 in play and, indeed, when the initial claim was filed --

25 QUESTION: How did you know that, because the

30

1 Federal suit was filed second. You had your limitation --

2 if I remember the chronology right, you sought limitation,

3 and then a week later the Jones Act case was started.

4 MR. O'BRIEN: The short answer is that we know

5 in this jurisdiction, where the State court suit could

6 have been brought, that tripping over a wire could lead to

7 a judgment in excess of the value of the vessel, and so

8 therefore the --

9 QUESTION: But this plaintiff --

10 MR. O'BRIEN: -- vessel owner had a good faith

11 reason for pursuing limitation.

12 QUESTION: This plaintiff hadn't made any such

13 claim then. You're basing it on other claims that were

14 made against this shipowner?

15 MR. O'BRIEN: No. I believe the vessel owner,

16 based on its experience, and based on its knowledge of the

17 situation, felt that an accident had occurred during this

18 voyage which might make its vindication under the

19 Limitation of Liability Act a realistic legal possibility,

20 and so a petition was filed.

21 There's no rule that prevents a vessel owner

22 from coming in before the claims are filed, just as

23 there's no rule that prevents a vessel owner from coming

24 in while claims are being filed or after they're filed, so

25 the timing of the filing of the limitation of liability

31

1 proceeding is really --

2 QUESTION: I brought it up in answer to your

3 assertion, we knew that he originally had a claim in

4 excess of the value of the vessel. You didn't know that

5 specifically with respect to this plaintiff.

6 MR. O'BRIEN: Well, knowing, I think, and having

7 a good faith belief that the proceeding might be in the

8 vessel owner's interest are too different things. I don't

9 think there was any way to predict the future at the time

10 the petition was filed, but certainly --

11 QUESTION: But you didn't have to make any

12 prediction a week later.

13 MR. O'BRIEN: That's true, because we shortly

14 thereafter had a claim in excess of the value of the

15 vessel.

16 QUESTION: And the prayer for relief was for in

17 excess of $450,000?

18 MR. O'BRIEN: Yes. By stipulation, I think in

19 the joint appendix at 69 the record reflects that the

20 initial claim was in excess of the value of the vessel,

21 and by stipulation --

22 QUESTION: The question really is whether that

23 did not satisfy the purposes of the limitation of

24 liability proceeding.

25 MR. O'BRIEN: Well, Justice Stevens, our

32

1 position is that once the jurisdiction of the limitation

2 code is validly invoked, which it was in this case, that

3 jurisdiction attaches, and under the Constitution and laws

4 the district court is obligated to decide all those

5 issues, and the only way to escape -- for the claimant in

6 this case to escape that jurisdiction is to point to a

7 definite statutory right that allows him to defeat Federal

8 jurisdiction.

9 Now, in this case it would be --

10 QUESTION: But the statutory right that he's

11 talking about, there's two ways to define it. One is the

12 savings to suitors clause itself is a statutory right.

13 He's entitled to invoke that, and it doesn't really say,

14 only if he's seeking a jury trial.

15 MR. O'BRIEN: That's true, and -- but we know a

16 number of things about the saving to suitors clause. We

17 know that the rights under it are not absolute, and we

18 know that because, number 1, a Jones Act claimant can have

19 his case -- excuse me. A limitation claimant, not a Jones

20 Act claimant, can have his case removed to Federal court.

21 We know that the saving to suitors clause doesn't protect

22 the right of a bank, say, to sue a lender or a debtor on a

23 first preferred ship mortgage. We know those kinds of

24 cases are committed to the Federal court and can't be

25 brought in a State court.

33

1 QUESTION: Well, what about the practical

2 advantage of a plaintiff who thinks he's going to get a

3 better verdict in Madison County, Illinois, than he will

4 in the Federal District Court for the Eastern District of

5 Missouri?

6 MR. O'BRIEN: Well, that is his right, to sue

7 where he thinks he can obtain the best verdict, unless

8 there's some kind of illegal forum-shopping going on, but

9 that really is what this case is all about.

10 QUESTION: I thought so.

11 MR. O'BRIEN: The vessel owner is entitled to

12 pursue limitation where it believes the purposes of the

13 act will be furthered, in other words, where it sees that

14 it has an opportunity to invoke exclusive Federal

15 jurisdiction to adjudicate the rights from some accident

16 occurring -- occurring during some voyage.

17 And if I may address a point from --

18 QUESTION: Do I understand you, then, that the

19 vessel owner in every case where the sailor chooses to sue

20 in State court and not ask for a jury trial the vessel

21 owner can always pick the forum instead by filing a

22 limitation proceeding?

23 MR. O'BRIEN: Unless he pursues a right, the

24 claimant pursues a right that is preserved under the

25 saving to suitors clause I would agree with that.

34

1 QUESTION: Well, what -- you told me that the

2 only thing that's preserved is jury trial, not the Jones

3 Act claim, which is what I would have thought that -- I

4 would have thought, apart from entertaining your position

5 that it's not the Jones Act claim, and the choice of forum

6 that Congress has provided, but it's only the device of

7 jury trial.

8 MR. O'BRIEN: Well, it's really -- what it is

9 is -- let me refine my comment. What I'm really saying is

10 that if the remedy is already available in the Federal

11 court, and what the Eighth Circuit decided was that if the

12 remedy's already available in the Federal court in the

13 limitation proceeding, there is no saved remedy to pursue

14 elsewhere, and so the -- I think the issue for this Court

15 is not so much jury versus nonjury in the abstract sense.

16 The question is whether or not the specific remedy

17 requested is available in the Federal court where

18 exclusive jurisdiction is found.

19 QUESTION: Well, why isn't the remedy the

20 courthouse that's closest to my home that's most

21 convenient for me? Why isn't that the remedy that is

22 saved, the ability to choose, irremovably, the venue?

23 MR. O'BRIEN: Well, the answer to that is that

24 the rights under the saving to suitors clause are not

25 absolute, and they never have been by this -- held so by

35

1 this Court or by any other Federal court. They're always

2 going to be subject --

3 QUESTION: But your position was that that

4 wasn't saved at all, because you could get a nonjury trial

5 in the admiralty forum.

6 MR. O'BRIEN: Well, I don't think the decision

7 whether or not the nonjury trial is saved or not is

8 necessary to this Court's decision, nor was it addressed

9 specifically -- in fact, it was reserved specifically by

10 the Eighth Circuit. You don't need to get that far, and

11 the reason is because under the rubric adopted by the

12 Eighth Circuit, if the remedy sought is available already

13 in the limitation court, the claimant's not allowed to go

14 back, and it was already available, i.e. a nonjury trial,

15 so the court below never needed to address whether a

16 nonjury trial was specifically a saved remedy or not, nor

17 does this Court need to decide that for --

18 QUESTION: So practically what the position

19 you're urging on us comes down to is that the Jones Act

20 plaintiff can get his choice of forum as long as he

21 insists on having a trial by jury. If he doesn't insist

22 on having a trial by jury, he doesn't preserve his right

23 to choose the forum.

24 MR. O'BRIEN: That's correct.

25 QUESTION: That's your position?

36

1 MR. O'BRIEN: That's correct.

2 QUESTION: Why would that be? I mean, let's

3 suppose that a Jones Act plaintiff does -- could go -- he

4 could get into Federal admiralty court. He could get in,

5 or he could do what he'd prefer to do, which is to file in

6 the State. Why shouldn't he be able to file in the State

7 unless there's some Federal reason that prefers the

8 Federal tribunal?

9 MR. O'BRIEN: Well, the Federal reason that

10 prefers the Federal --

11 QUESTION: No, no, I mean, you're making both

12 arguments. One argument is that there is a Federal reason

13 and the Federal reason is the exoneration, and that's

14 countered with the argument that there is no Federal

15 reason where there isn't an independent reason for being

16 in the limitation action, all right, so I'm taking the

17 other part. Let's assume there is no Federal reason. If

18 there is no Federal reason -- he has the right come in the

19 door, but there's no Federal preference. Why shouldn't he

20 be able to go to the State court?

21 MR. O'BRIEN: Well, Justice Breyer, I -- number

22 1 -- my first response is, I don't believe that's our

23 case.

24 QUESTION: All right, yes.

25 MR. O'BRIEN: We do have a Federal reason for

37

1 being here.

2 QUESTION: Okay.

3 MR. O'BRIEN: And the second response --

4 QUESTION: But if you didn't, if there were no

5 reason favoring the Federal court, then would you say,

6 give him his choice?

7 MR. O'BRIEN: Well, I suppose that would be

8 true, except that Congress has spoken to the situation

9 when they've committed limitation of liability acts to the

10 exclusive jurisdiction of the Federal courts.

11 QUESTION: Okay, but if you're prepared to go

12 that far, then the case turns on whether there is a

13 Federal reason, and the Federal reason you say is

14 exoneration, so I understand that.

15 And then I'm back to the question I had before,

16 which I'm not sure I had a satisfactory answer to totally,

17 that really what this exoneration is is the tail and it

18 follows the dog into the Federal court, and the only

19 reason it's ever there was, historically in England they

20 did this, what the courts thought were absurd, to force

21 the shipowner to give up his right to exoneration in order

22 to get in Federal court, and our court years ago said

23 that's silly, no other country does that and we're not

24 going to do it.

25 MR. O'BRIEN: Well, I would prefer to think of

38

1 exoneration not as the tail, perhaps the other set of legs

2 of the same dog. I think that the right to exonerate is

3 half of what you have under the statute. The right to

4 limit is the other half of what you have under the

5 statute, and one can't be divorced from the other. You've

6 got --

7 QUESTION: You have the statute, but it doesn't

8 appear in the statute, and what is your response to the

9 fact that if the only reference to it is in the Federal

10 rules, that's ultra vires?

11 MR. O'BRIEN: Well, my response, Justice Scalia,

12 is 130 years of decisions from this Court and others, at

13 least a half-dozen cases from this Court holding that in a

14 proceeding under the Limitation of Liability Act itself

15 now the court determines exoneration as well as

16 limitation. It would be almost impossible for this Court

17 to write exoneration out unless it were prepared to

18 overrule all those cases.

19 QUESTION: Well now, are you saying that in the

20 single-claimant, stipulated claim less than the value of

21 the vessel, we would have to overrule cases in order to

22 rule against you here?

23 MR. O'BRIEN: No.

24 QUESTION: Well, I thought that's what you just

25 did say.

39

1 MR. O'BRIEN: No. No. What I'm saying is, what

2 Langnes v. Green tells us, and what Lake -- which is the

3 single claimant exception case, and what Lake Tankers v.

4 Henn tells us, which is the multiple-claimant case, or,

5 excuse me, the adequate fund case, what those cases tell

6 us is that when the claimant seeks a jury trial that it

7 has been deprived of him in the limitation court, that

8 under those circumstances there is enough of a -- there's

9 enough rights there for that claimant to trump the

10 shipowner's right to be in Federal court, and they will

11 then allow him to go back to State court assuming that on

12 the one hand there's a single claimant, or on the other

13 hand there's an adequate fund.

14 But you can't look back at Lake Tankers v. Henn

15 or at Langnes v. Green and write out of the Court's

16 decisions the references to a jury trial being requested

17 by the plaintiff. That is what in my view was the, really

18 the moving force in those decisions that allowed those

19 plaintiffs to go back.

20 QUESTION: Well, of course, can't you just read

21 that as the -- this is a particularly strong reason for

22 vindicating the plaintiff's right to choose his own forum,

23 that in one forum he gets a jury and in the other he

24 doesn't? That makes it a very appealing case, but I don't

25 think you can necessarily deduce from that the conclusion

40

1 that he wouldn't also have a right to pick the forum of

2 his own choice without that feature.

3 MR. O'BRIEN: Justice Stevens, I don't think

4 we'd be here if the courts had routinely held that you got

5 a right to a forum. They haven't. What the courts have

6 held, this Court and the Federal courts, and what the

7 commentators have talked about for decades, is the right

8 to a remedy, and the right to a remedy does not

9 necessarily entitle him to go to a State court. It

10 entitles him to a remedy.

11 QUESTION: Well, he gets the same remedy whether

12 it's a jury trial or a bench trial. He's seeking damages.

13 That's the remedy.

14 MR. O'BRIEN: Well, the remedy, as the Court

15 stated in Shilendez v. Luckenbach, the remedy is the means

16 employed to seek the redress and in our view, and I think

17 the cases bear this out, a jury trial is a specific form

18 of remedy, a nonjury trial is another form of remedy.

19 It's the means employed, and I think that there's really

20 no question under the case law that a jury trial is in a

21 class separate from a nonjury trial as far as the saving

22 to suitors clause goes. They're different remedies. Now,

23 they both seek judgments, but in a different way.

24 If I may briefly address the rule (f) argument,

25 the position urged by petitioner that rule (f) should be

41

1 declared invalid is in our view extreme and not warranted

2 by the case law. This Court in the Henderson case did not

3 announce a general test for the determination of when a

4 Rules Enabling Act rule would be ultra vires. It instead

5 decided that rule 4 trumped the Suits in Admiralty Act

6 provision requiring forthwith service of process on the

7 basis that the rule was purely procedural.

8 But if I may, under rule (f), three of the four

9 items that petitioner urges are contained in rule (f) and

10 that mandate that it's a substantive rule are found in the

11 limitations statute itself, namely, who may sue, when they

12 may sue, and the object of the suit and so therefore, even

13 under the test that petitioner cites, rule (f) clearly

14 does not meet the standard of a substantive rule that

15 would be struck down under the Rules Enabling Act.

16 Indeed, the limitation act addresses those items.

17 And I turn again back to the original decisions

18 by this Court in the Benefactor, in the Norwich v. Wright

19 case, in which this Court had occasion to construe the act

20 and, if you follow the language closely of those decisions

21 the Court was not construing rules that it promulgated.

22 The Court was construing rules that it promulgated. The

23 Court was construing the act itself, and the original

24 admiralty rules that were promulgated by this Court in the

25 Norwich case, the original 50-some admiralty rules from

42

1 1871, were rules, but they were in themselves

2 interpretations of the act as seen by this Court, and they

3 included the right to exoneration.

4 Now, if the limitation petitioner can come into

5 court, and if he can pursue a limit -- exoneration as well

6 as limitation, then by definition the Court has exclusive

7 jurisdiction over both of those subject matters and the

8 limitation claimant, in this case the Jones Act seaman,

9 can return to State court only if he demonstrates that the

10 remedy he wants is not available in the Federal court.

11 If there are no further questions --

12 QUESTION: Thank you, Mr. O'Brien.

13 MR. O'BRIEN: Thank you, Your Honor.

14 QUESTION: Mr. Dripps, you have 6 minutes

15 remaining.

16 REBUTTAL ARGUMENT OF ROY C. DRIPPS, III

17 ON BEHALF OF THE PETITIONER

18 MR. DRIPPS: Thank you, Mr. Chief Justice.

19 Mr. O'Brien indicated that three of the four

20 items that are in rule (f) are in the statute. What he

21 neglected to mention is, as what Justice Scalia asked

22 earlier, the one that's not in the statute is the one

23 that's critical to his analysis, which is the exoneration

24 provision, and that's not in the statute.

25 Mr. O'Brien relies heavily on the Benefactor,

43

1 and I would simply refer the Court to the quote from the

2 Benefactor. It's at 103 U.S. 241. It's at page 16 of the

3 reply brief, and the Court said that hence, this Court, in

4 preparing the rules of procedure for a limitation of

5 liability, deemed it proper to allow a party seeking such

6 limitation to contest any liability whatever.

7 That is not the statement of statutory

8 construction. That is a statement of legislative intent.

9 We're adopting these rules so that the party can contest

10 the liability. Now, that is exactly what is forbidden by

11 the Rules Enabling Act, yet that is what this Court said

12 it was doing in 1880.

13 Justice Stevens and Justice Breyer both asked

14 about, in essence, whether there would be a right to a

15 pure exoneration claim in Federal court, and I do want to

16 point out that both the Fifth Circuit in the Fect v.

17 Murkowski case and the Seventh Circuit in the Joyce v.

18 Joyce case have said no, that unless there is a viable

19 claim for limitation you cannot come in and ask for

20 exoneration, and I think that is the rule that this Court

21 should adopt.

22 The Langnes decision, as Justice Stevens

23 noted --

24 QUESTION: Well, I -- go ahead. That's all

25 right.

44

1 MR. DRIPPS: -- as Justice Stevens noted does

2 not require a jury trial, but it simply said that a jury

3 trial is one aspect that makes the State court forum

4 desirable, and that's part of the Jones Act remedy to

5 allow the injured employee that option of choosing either

6 State or Federal court, and whether or not to have a jury

7 trial in either forum.

8 To get to the respondent's not-otherwise-

9 available test, this Court is going to have to say that

10 the saving clause does not protect statutory remedies,

11 particularly the statutory remedy afforded by the Jones

12 Act, which allows the employee to choose the forum that

13 the case will be tried in. That, however, is exactly what

14 the saving clause was designed to do, and that is why this

15 Court should reverse the Eighth Circuit's decision and

16 reinstate the decision of the district court dissolving

17 the injunction.

18 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Dripps.

19 The case is submitted.

20 (Whereupon, at 11:58 a.m., the case in the

21 above-entitled matter was submitted.)

22

23

24

25

45