On April 13, 2021, the SEACOR Power, a 234-foot lift boat, encountered a powerful thunderstorm after departing Port Fourchon, Louisiana. The localized severe weather event produced heavy rain, 2- to 4-foot seas, and winds in excess of 80 knots. As the crew of the SEACOR Power attempted to lower the vessel’s legs to the sea floor to ride out the storm, the vessel capsized, resulting in multiple casualties.
How Private Entities Qualify for Federal Officer Jurisdiction
In April 2024, personal representatives of the SEACOR Power’s crew members filed suit against the American Bureau of Shipping (“ABS”) and related companies in Texas state court asserting personal injury and wrongful death claims. In response, ABS filed for the removal of the case to the Southern District of Texas under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The plaintiffs moved to remand back to state court, and the district court granted their motion. After an unsuccessful motion to reconsider, ABS appealed the remand decision to the U.S. Fifth Circuit.
The federal officer removal statute grants federal jurisdiction over a claim against a nongovernmental defendant “acting under” the direction of the United States through one of its agencies or officers. To be eligible for federal officer jurisdiction, a defendant must meet four criteria:
- the defendant’s federal defense must be colorable;
- the defendant must be a “person” within the meaning of the statute;
- the defendant must have acted under direction of a federal officer; and
- the charged conduct is connected or associated with actions taken pursuant to the directions of a federal officer.
A private entity can generally satisfy these elements if it can show that it acted to assist or carry out the duties assigned to it by a federal officer exercising control over the entity.
How ABS Met the Federal Officer Standard
ABS is a unique entity. ABS serves as a classification society, setting safety and design standards for ships and marine-related facilities, but it also inspects ships and other facilities for compliance with United States laws and commercial standards. As part of its inspection program, ABS serves the U.S. Coast Guard (“USCG”) as a “Recognized Organization.” This means that the USCG has delegated authority to ABS to perform mandatory vessel inspections on its behalf. The relationship between the USCG and ABS is memorialized in a written agreement titled “Agreement Governing the Delegation of Statutory Certification and Services for United States of America Flag Ships.”
With respect to the SEACOR Power, ABS provided classification and technical services for the vessel, including reviewing plans and documentation during its design and construction, surveying the vessel, and supervising critical testing. In their suit, the plaintiffs alleged that ABS failed “to ensure the vessel met necessary stability requirements.”
In its decision on appeal, the U.S. Fifth Circuit found that given its special relationship with the USCG, ABS met the criteria for federal officer jurisdiction for several reasons. ABS performs duties, including performing vessel inspections and issuing inspection certificates, that by law the USCG would otherwise have to do itself. The USCG maintains “comprehensive and targeted oversight” over the ABS through a specific office setup exclusively for that purpose. Numerous statutes and regulations expressly charge ABS with the performance of duties on behalf of the USCG.
The USCG has also adopted detailed regulations with respect to “Recognized Organizations,” including ABS, defining their scope of responsibility. Given all of these ties between ABS and the USCG, which existed at the time relevant to the SEACOR Power casualty, the U.S. Fifth Circuit found that ABS satisfied the standard for “acting under” the direction of a federal officer, and ABS had properly invoked federal officer jurisdiction with respect to the claims of the plaintiffs.
Other Private Entities May Also Qualify for Federal Officer Jurisdiction
ABS is a highly specialized organization that the USCG relies on to perform important regulatory functions, but ABS is not entirely unique in this regard. The USCG partners with private entities in a number of areas to accomplish tasks on its behalf, including Subchapter M compliance, mariner training, and maritime security. With respect to these and other areas where the USCG deputizes private entities to perform regulatory functions, the possible exercise of federal officer jurisdiction should be considered in the event of a casualty or dispute.
Daniel Stanton is a member of Kean Miller’s Offshore Energy & Marine group. He has more than a decade of experience litigating complex and catastrophic accident and injury cases in federal and state courts in Louisiana, Texas, Alabama, and North Carolina.