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WUNDERLICH v. NETHERLANDS INS. CO.

November 19, 1954

Martin WUNDERLICH, Plaintiff,
v.
NETHERLANDS INSURANCE CO., Commercial Union Assurance Company, Limited, Insurance Company of North America, Aetna Insurance Company of Hartford, Home Insurance Company of New York and Altantic Mutual Insurance Company, Defendants



The opinion of the court was delivered by: WEINFELD

Plaintiff moves pursuant to 28 U.S.C. § 1447 to remand this action to the Supreme Court of the State of New York, from whence it was removed on the joint petition of all defendants.

Plaintiff seeks to recover damages for breach of three separate policies of marine insurance issued on a sea-going vessel, under which each of the six defendants assumed a fractional share of liability. The assured vessel was en route from Belize, Honduras, to Galveston, Texas when the alleged damage occurred.

The complaint asserts a separate cause of action against each defendant which in each instance is in excess of $ 3,000.

 The plaintiff is a citizen of California. Two of the defendants are citizens of the State of New York. The remaining four are either citizens of other states or subjects of other nations. Plaintiff contends that since two of the defendants are citizens of New York, the state in which the action was originally brought, there was no right of removal under 28 U.S.C. § 1441(b). The defendants on the other hand, relying upon the same section, urge that removal was proper since the claim asserted arises under the Constitution or laws of the United States.

 Section 1441(b) reads as follows:

 
'Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'

 Thus, the question posed is whether or not this Court has original jurisdiction of this action under 28 U.S.C. § 1331:

 
' Federal question; amount in controversy. The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $ 3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States. June 25, 1948, c. 646, 62 Stat. 930.'

 These policies of marine insurance are maritime contracts, and hence the rights and liabilities of the parties thereunder are governed by the rules of maritime law even though the proceeding was instituted in a common law court. *fn1" But the question of whether a suit under the general maritime law is one arising under Article III, Section 2 of the Constitution *fn2" and hence governed by 28 U.S.C. § 1331, has been the subject of considerable judicial dispute. The Courts of Appeals for the First and Third Circuits have reached opposite results *fn3" and the Supreme Court has not as yet ruled on the question. *fn4" Within this circuit disagreement also exists among those of my colleagues who have had occasion to consider the question. *fn5"

 With the law in this unsettled state, and with the opposing views fully discussed in Jordine v. Walling, 3 Cir., 185 F.2d 662 and Doucette v. Vincent, 1 Cir., 194 F.2d 834, I do not feel that an extended discussion of the authorities would serve any useful purpose. In the absence of a ruling by our own Court of Appeals, I am persuaded that Judge Magruder's opinion in Doucette v. Vincent, supra, correctly states the law. *fn6" After a careful review of the authorities, he held that claims under the general maritime law arise under the Constitution within the meaning of 28 U.S.C. § 1331. *fn7"

 Since the claim arises under the Constitution, and the amount in controversy between the plaintiff and each defendant exceeds $ 3,000, the case meets the original jurisdiction requirements of Section 1331 and is subject to removal under 28 U.S.C. § 1441(b). But plaintiff insists that the action is non-removable in any event by reason of the saving to suitors clause, 28 U.S.C. § 1333, which now provides:

 
'The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
 
'(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to ...

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