In accordance with Fed. R. Civ. P. 9(h), invoking the admiralty jurisdiction requires an identification of the claim as one in admiralty.  Fed. R. Civ. P. 9(h) provides, in part, that the amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Fed. R. Civ. P. 15.  Pursuant to Fed. R. Civ. P. 15(a), when a party seeks to amend a pleading, leave shall be freely given when justice so requires.[i]

The identification of a claim under Fed. R. Civ. P. 9(h), or the failure to identify a claim under Fed. R. Civ. P. 9(h), is not an irrevocable election.[ii]  There are circumstances in which a party cannot revoke a choice under Fed. R. Civ. P. 9(h) once made if this will prejudice the other party.  Prejudice will be found if the electing party has already invoked any of those special rules and procedures available in admiralty.  Once a plaintiff has invoked the admiralty jurisdiction to take advantage of the interlocutory appeal of 28 U.S.C.S. § 1292(a)(3), this choice is irrevocable for that claim.  It would clearly prejudice the other side to allow such revocation.[iii]

[i] Subaru Distribs. Corp. v. Gen Ship Corp., 167 F.R.D. 342 (D. Mass. 1996)

[ii] Gonzalez v. M/V Destiny Pan., 203 F.R.D. 673 (S.D. Fla. 2001)

[iii] Foulk v. Donjon Marine Co., 182 F.R.D. 465 (D.N.J. 1998)