The opinion of the court was delivered by: POLLACK
The plaintiff moves to remand this suit to the State Court. It was removed to this Court on the claim of two of the defendants that the laws of the United States and the requisite amount were in controversy.
This is a maritime matter. In removing the case to this Court the petitioning defendants relied on the notion that a maritime matter bottoms federal question jurisdiction and further that such a matter is removable without regard to citizenship of the parties. 28 U.S.C. § 1441. However, the law is to the contrary; such a matter is not one arising under the Constitution, treaties or laws of the United States; it is one of which the district courts do have original jurisdiction but it is removable only if none of the defendants properly joined is a citizen of the State in which the action is brought. 28 U.S.C. § 1441(b), second sentence.
1. The nature of the suit
The plaintiff insured the vessel S.S. SAN PATRICK under a marine policy of indemnity and excess coverage. On or about December 18, 1964, the vessel en route from Vancouver, B.C. to Yokohama ran aground near Ulak Island in the Aleutians due to weather conditions and unknown causes, resulting in the loss of the crew, the vessel and the cargo. This suit is by the insurer for a declaratory judgment to determine the rights of the parties to the contract of marine insurance involved herein. The plaintiff contends that it is under no duty either to defend the assureds in any action against them by reason of the loss or to indemnify them against liability therefor.
The plaintiff insurance company is a New York corporation.
There are five defendants, four of whom are named in the policy as assureds, respectively, the owner of the vessel, Manor Investment Co., Inc.; the agent of the owner, Westland Marine Corporation; the operator, Mercantile Navigation Co. Ltd.; and the mortgagee, Mitsubishi Bank, Ltd. The fifth defendant is Despard & Co. which is named in the policy as the payee for distribution of the insurance payable.
Of the five defendants, only two, Westland and Despard are citizens of New York, the remaining defendants are not citizens of New York in which the action was initially brought.
A maritime or admiralty case does not arise under the Constitution or laws of the United States; such cases do not raise a federal question. Romero v. International Terminal Operating Co., 358 U.S. 354, 367, 371-372, 378, 79 S. Ct. 468, 3 L. Ed. 2d 368, reh. den. 359 U.S. 962, 79 S. Ct. 795, 3 L. Ed. 2d 769 (1959). See also Karakatsanis v. Conquestador Cia. Nav., S.A., 247 F. Supp. 423, 426 (S.D.N.Y.1965); Harrisville Co. v. Home Insurance Company et al., 129 F. Supp. 300 (S.D.N.Y.1954).
Federal jurisdiction in admiralty and maritime matters is granted to district courts by statute, 28 U.S.C. § 1333. The state courts have concurrent jurisdiction in admiralty and maritime cases under a saving clause contained in the same statute which provides that:
"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 which they are otherwise entitled."
In Matter of Arbitration between Victorias Milling Co., Inc. and Hugo Neu Corp., 196 F. Supp. 64 (S.D.N.Y.1961) this Court, in granting a ...