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A navigation chart through wrongful death in admiralty.

I. WRONGFUL DEATH--A STORM BREWS

The course charted by the Supreme Court in the area of wrongful death in maritime law is not for the wary or faint of heart. Only experienced maritime attorneys should navigate through the myriad twists and turns as it is a course filled with shoals, sandbars, and detritus. But, even a seasoned admiralty attorney should be cautious of the contradictory directions given by the Court.

When the Supreme Court of the United States decided Moragne v. States Marine Lines, Inc., (1) and overruled The Harrisburg, (2) it did so to bring more uniformity to maritime law for deaths in territorial waters, to erase anomalies which arose when a death occurred either in territorial waters, and to align existing maritime law with modern U.S. maritime law. The court recognized that the basis on which The Harrisburg was decided was no longer sound and was even based on an English rule which was never adopted here, the felony merger doctrine which barred a wrongful death in common law and hence under general maritime law at that time. (3) The law of wrongful death had evolved to the point that all states had enacted wrongful death legislation, and in 1920, even Congress enacted two statutes for wrongful death in the maritime context: 1) The Death on the High Seas Act (DOHSA) which provided a right and remedy for the certain beneficiaries of anyone killed on the high seas as a result of the fault (strict liability including unseaworthiness) or negligence of a vessel owner; and 2) the Jones Act which created a right and remedy for the beneficiaries of seamen to recover for wrongful death when caused by the negligence of the employer. (4) The Supreme Court was prompted by the curious anomalies created by these legislative developments over the nearly one hundred years since its decision in The Harrisburg.

The Court identified three inconsistencies created by adherence to that case. First, "whenever the rule of The Harrisburg holds sway: within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed." (5) Second, "identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit--since a claim under the Death on the High Seas Act may be founded on unseaworthiness, see Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4 (1958)--but not within the territorial waters of a State whose local statute excludes unseaworthiness claims." (6) And third, "the 'strangest' anomaly is that a true seaman--that is, a member of a ship's company, covered by the Jones Act--is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute." (7)

In its attempt to erase these inconsistencies, the Court overruled The Harrisburg and acknowledged that the breach of a duty imposed by maritime law which caused death gives rise to an action for wrongful death whether caused by unseaworthiness. (8) The decedent in Moragne was not a Jones Act seaman; rather, he was a longshore worker killed due the unseaworthiness of the vessel. (9) At the time Moragne was decided and prior to the enactment of the 1972 Amendments to the Longshore and Harbor Workers' Compensation Act ("LHWCA"), a longshore worker was a putative seaman under Seas Shipping Company v. Sieracki. (10) Mr. Moragne was killed in the territorial waters of Florida. (11) Though the state wrongful death act could be used to supplement maritime law, the Florida statute did not recognize breach of the warranty of seaworthiness as a basis for recovery under its wrongful death statute. (12) The Supreme Court, however, left open the question of which beneficiaries may recover, suggesting that courts could look to DOHSA, the Jones Act, and LHWCA and also left open other "subsidiary issues ... such as particular questions of the measure of damages," (13) which may arise. Courts could look to DOHSA and "numerous state wrongful-death acts" for analogy. (14)

DOHSA explicitly limits damages to pecuniary damages only for wrongful death on the high seas. Though such an explicit limitation is not present in the Jones Act, it incorporates the provisions of Federal Employers Liability Act ("FELA") and carries with it limitations resulting from judicial gloss. The Supreme Court in Michigan Railroad Company v. Vreeland, addressed the damages allowed for wrongful death under FELA and held that only pecuniary damages were allowed. (15) Loss of society and companionship are not susceptible to pecuniary valuation. (16) However, loss of services of the husband, wife, or child along with "care, counsel, training and education" a parent may give to a child are capable of pecuniary valuation as they "can be supplied by the service of another for compensation." (17)

The Supreme Court encountered the question of whether the new wrongful death action in admiralty allowed the recovery of nonpecuniary damages in Sea-Land Services v. Gaudet, (18) only four years after its decision in Moragne. Again, the decedent, who settled his personal injury case and then passed away as a result of the injuries, was a longshore worker. (19) The dependent spouse brought suit for wrongful death seeking to recover not only for the loss of support (to the extent it was not included in any settlement) but also damages for loss of love and affection, society, care, attention, companionship, comfort, and protection. (20) A majority of the Court upheld the right of the dependent spouse to recover these nonpecuniary damages despite a strong dissent which argued that the case conflicted with Mellon v. Goodyear (21,22)

If beneficiaries of putative seamen, Sieracki seamen, such as the decedents in Moragne and Gaudet could recover nonpecuniary damages for wrongful death under general maritime law, then were nonpecuniary damages available to seamen under the judicially created maritime wrongful death right of action? Four years after the decision in Gaudet, the Supreme Court had to decide this issue for a seaman killed in a helicopter crash on the high seas, in Mobile Oil Corp. v. Higginbotham. (23) DOHSA explicitly limits recovery to pecuniary damages. (24) But, could the general maritime wrongful death action of Moragne supplement DOHSA? In Higginbotham, the Supreme Court held that the courts could not expand the limits of financial recovery beyond those expressly limited by an act of Congress and denied recovery for nonpecuniary damages when a death occurs on the high seas. (25)

Higginbotham, however, did not address whether the beneficiaries of a Jones Act seaman could, nonetheless, recover nonpecuniary damages for death resulting from the unseaworthiness of a vessel in territorial waters. Prior to Moragne, the only wrongful death remedy available for the death of a seaman in territorial waters was the Jones Act. This act, however, in addition to a right and remedy for personal injury also creates a cause of action for wrongful death, but only against the employer and only when caused by the negligence of the employer. (26) Where the death of a seaman occurred in territorial waters and was proximately caused by the breach of the warranty of seaworthiness, maritime law provided no right or remedy. This is one of the anomalies that the Supreme Court noted in Moragne (27) and presumably intended to cure.

The issue was squarely presented to the Court in Miles v. Apex Marine Corp. (28) The non-dependent mother of a seaman who was stabbed to death by a co-worker sued to recover nonpecuniary damages, loss of society, and loss of love and affection. (29) It stood to reason that if a putative seaman who was owed the warranty of seaworthiness could recover such damages, then certainly a seaman, a ward of the court and to whom the court extends special solicitude, could, too. (30) Adhering to its deference to acts of Congress expressed in Higginbotham, the Court upheld the U.S. Court of Appeals for the Fifth Circuit and denied recovery for nonpecuniary damages for the death of a seaman in territorial waters when proximately caused by the unseaworthiness of the vessel. (31) Though the Moragne wrongful death right of action for breach of maritime duty extends to a seaman, (32) and as nonpecuniary damages such as loss of society and loss of love and affection are precluded by the Jones Act, such damages are precluded under the general maritime law for a seaman killed in territorial waters under the Moragne right of action for wrongful death. When Congress passed the Jones Act, it carried over with it the hoary judicial gloss of FELA. (33) "It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence." (34)

The Court explicitly limited the holding of Gaudet to its facts. (35) Thus, though seaman are wards of the court, their beneficiaries are limited to recovering only pecuniary damages when the death was caused by the breach of the warranty of seaworthiness, a duty imposed by general maritime law. The right of action created by Moragne merely creates the right for wrongful death of a seaman due to unseaworthiness in territorial waters, but no additional damages. (36) Thus, the anomaly the Court apparently intended to cure was resurrected by limiting the damages available for the wrongful death of a seaman in territorial waters caused by unseaworthiness. (37)

What damages may be recovered for wrongful death in state territorial waters, is also open to debate. A state wrongful death act may be used to supplement the general maritime law for a death occurring in territorial waters as DOHSA applies exclusively to the high seas. (38) In Yamaha, the parents of a twelve-year-old child sought to recover not only nonpecuniary damages, but also punitive damages when the child was killed using a jet ski manufactured by Yamaha in territorial waters of Puerto Rico. (39) The Court held that DOHSA does not displace state wrongful death statutes for deaths occurring in territorial waters. (40)

II. MIXED DIRECTIONS: SEAFARER--NONSEAFARER

The Court has given ambiguous if not inconsistent directions to the maritime bar regarding who may supplement the general maritime Law wrongful death right with a state right of action and the attendant damages allowed by state law. The Court in Yamaha created some confusion when it coined the new term "nonseafarers." (41) The Court seems to exclude from this new group not only Jones Act seamen and longshore workers but also any "person otherwise engaged in a maritime trade." (42) Yet, the Court later defines the term more restrictively: "By 'nonseafarers,' we mean persons who are neither seamen covered by the Jones Act, 46 U.S.C. App. [section] 688 (1988 ed.), nor longshore workers covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. [section] 901 et seq." (43) Are commercial fishermen not otherwise engaged in a maritime trade? The answer to this question may depend on the venue of the action.

A federal court in North Carolina applied the more expansive language in Yamaha to deny recovery of nonpecuniary damages in the death of a commercial shrimper in territorial waters as a result of the negligence of a third party. (44) The court asked the logical question: If a seaman killed in territorial waters due to the negligence of the employer is barred from recovering nonpecuniary damages, then what is the reasoning for allowing recovery of nonpecuniary damages for the death of a seafarer caused by the negligence of a third party? In other words, should a seafarer, that is one who is engaged in a maritime trade such as a commercial shrimper, be entitled to recover greater damages than a seaman? Yet, in Trinh ex rel Tran v. Dufrene Boats, Inc., (45) where a commercial fisherman was killed due to the negligence of a third party in territorial waters, the Louisiana Court of Appeal for the First Circuit allowed the beneficiaries of a commercial fisherman to supplement maritime law with the state wrongful death statute affirming an award for nonpecuniary damages. (46) The Louisiana Supreme Court and the Supreme Court of the Unites States denied writs of certiorari. (47) Whether this new class of nonseafarers excludes only Jones Act seaman and longshore workers or includes those otherwise engaged in a maritime trade remains unanswered. It would appear logical to steer a steady course and deny such recovery as the trial court did. Yet, the answer is hardly free from doubt.

III. NONPECUNIARY AND PUNITIVE DAMAGES--PORT, STARBOARD, OR STEADY AS SHE GOES?

The maritime bar is further challenged by the Supreme Court's acknowledgment that punitive damages may be recovered under general maritime Law in Exxon Shipping Co. v. Baker. (48), Commercial fishermen who sought economic damages also sought and recovered punitive damages. (49) After reviewing the historical basis of punitive damages back to the Code of Hammurabi, the Court stated: "Regardless of the alternative rationales over the years, the consensus today is that punitives are aimed not at compensation but principally at retribution and deterring harmful conduct." (50) Punitive damages have the twin goal to show an example and to punish. (51) Hence, the claimants may recover. (52) A year later, in Atlantic Sounding, Inc. v. Townsend, (53) the Court sanctioned the award of punitive damages for the refusal to pay maintenance and cure. The Court dismissed the argument of the defendant employer/shipowner Atlantic Sounding that based on the reasoning of Miles, damages under the Jones Act and DOHSA are limited to pecuniary damages, and therefore, damages for refusal or callous disregard to pay maintenance and cure are also limited to pecuniary damages. (54) In so doing, the Court reasoned that because maintenance and cure existed prior to the Jones Act and DOHSA; is a remedy separate and apart from the rights conferred by either statute; and is unaffected by either act, punitive damages could thus be recovered in an action for maintenance and cure. (55)

By sanctioning the recovery of punitive damages under general maritime law, a storm is brewing in the application of not only the holding in Exxon but also as a result of Townsend. It stands to reason that if commercial fishermen can recover punitive damages for their economic losses, then any breach of a maritime duty should also allow the injured party to recover punitive damages. A passenger on a vessel injured as a result of the gross negligence of the vessel owner/operator should thus not be barred from recovering punitive damages. A tort regardless of whether the damage is an economic loss or a personal injury should logically permit the injured party to recover the same types of damages. The United States District Court for the Western District of Washington reached this very conclusion. (56)

But, does the same hold true for a seaman? Does the reasoning of Miles and its limitation of nonpecuniary damages still apply to injury to a seaman, or does the rationale and holding of Townsend dictate a contrary result? With the reasoning of Townsend in its arsenal, the plaintiff in Barrette u. Jubilee Fisheries, Inc. maintained that the rationale employed by the Supreme Court in Townsend and the distinction drawn with Miles applied also to injuries caused by the breach of the warranty of seaworthiness which, like maintenance and cure, was a remedy pre-existing the Jones Act and DOHSA. (57) Like maintenance and cure it is also owed by the vessel. (58) The Jones Act, including its FELA judicial gloss, merely created a negligence remedy for a seaman where none previously existed. (59) Congress did not intend to modify, change or alter the preexisting maritime duty to provide a seaworthy vessel when it enacted the Jones Act. (60) Hence, the limitation on recovery to pecuniary damages did not apply to injuries resulting from the unseaworthiness of the vessel due to gross negligence. (61) Also, applying the reasoning of Townsend to injuries caused by breach of the warranty of seaworthiness and gross negligence, nonpecuniary damages for a derivative claim of loss of consortium of the spouse were also not prohibited and thus could be recovered. (62)

"Because unseaworthiness was a well-established cause of action prior to the enactment of the Jones Act, nothing in the Jones Act displaces such a claim nor limits the remedies available therein. As such, the Court finds that the Jones Act does not preclude recovery for Mrs. Barrette's loss of consortium claim." (63)

Contrary to the above reasoning, the U.S. Court of Appeals for the Eighth Circuit in a post-Townsend opinion denied recovery for loss of consortium for the spouse of a passenger injured in a pleasure craft off the shore of Grand Cayman on the basis that loss of consortium did not pre-exist the Jones Act or DOHSA and was not entrenched in maritime law. (64)
   Applying the Townsend approach here, we conclude that there is no
   well-established admiralty rule, as there is with respect to
   punitive damages, authorizing loss-of-consortium damages as a
   general matter.... (65)

   Loss-of-consortium damages were not definitively recognized under
   general maritime law in any context until 1974, when the Supreme
   Court held in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94
   S. Ct. 806, 39 L. Ed. 2d 9 (1974), that a wife could recover such
   damages for the wrongful death of her husband, a longshoreman
   killed in state territorial waters. Six years later, in American
   Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S. Ct. 1673, 64 L.
   Ed. 2d 284 (1980), the Court extended Gaudet to personal injury
   actions, holding that "general maritime law authorizes the wife of
   a harbor worker injured nonfatally aboard a vessel in state
   territorial waters to maintain an action for damages for the loss
   of her husband's society." (66)


Considering the policies established by Congress in the Jones Act and DOHSA, the court denied recovery and pointed out the anomalies such recovery would create:
   First, the spouses of those injured nonfatally beyond state
   territorial waters would be treated differently than the spouses of
   those injured fatally....

   Second, if the spouses of injured nonseafarers like Doyle could
   recover loss-of-consortium damages on claims of negligence, then
   their rights under general maritime law would be greater than the
   rights of the spouses of injured seamen under the Jones Act. (67)


The rationale of the Eighth Circuit seems to be a logical approach, but, until the Supreme Court resolves this issue, it is debatable.

IV. MORE MIXED SIGNALS

The Supreme Court in Moragne intended to end the various anomalies created by the haphazard development and application of state law to fill the lacunae in federal maritime law for wrongful death. Yet, subsequent decisions of the Supreme Court as well as Courts of Appeal have created new incongruities which defy any logical course or development:

1. If the breach of the warranty of seaworthiness is a right which generates a claim for nonpecuniary as well as punitive damages, then a Jones Act seaman injured as a result of that breach, whether in state territorial waters or on the high seas, may recover both nonpecuniary and punitive damages, but he may not if killed by the same breach of duty regardless of the location.

2. Beneficiaries of a commercial fisherman killed in state territorial waters may supplement a general maritime law claim for wrongful death with a state wrongful death statute to recover nonpecuniary damages and presumably punitive damages, but a Jones Act seaman killed due to the same negligent conduct may not.

3. Beneficiaries of longshore workers may recover nonpecuniary damages under the general maritime law Moragne action for negligence or breach of a maritime duty. But, beneficiaries of a Jones Act seaman killed as a result of the same tort are limited to pecuniary damages only.

4. Nonseafarers may supplement a claim for wrongful death under general maritime law with a state wrongful death statute and recover non-pecuniary as well as punitive damages. Again, beneficiaries of Jones Act seaman may not.

5. Parties suffering economic damages as a result of a maritime event may recover punitive damages for the gross negligence of the shipowner. Yet, beneficiaries of Jones Act seaman killed as a result of the same tort and gross negligence may recover only pecuniary damages.

6. Parties asserting a claim for grossly negligent breach of a maritime contract may recover punitive damages. Yet, if that gross negligence also results in death to a seaman, no exemplary or punitive damages may follow such grossly negligent conduct.

That a party making a claim for economic damages can recover more than any one killed as a result or arising out of the same acts of gross negligence in any system defies any reason or justification. Any attempt to do so is sheer sophistry and rationalization. Yet, the chaotic evolution of the law regarding maritime wrongful death as developed by the Supreme Court leads to this ineluctable conclusion. The courts cannot place the blame on the legislative branch as it is the courts which have created these inexplicable inconsistencies. (68)

The following chart is not absolute, particularly in light of the more recent developments since Townsend and continually evolving lower court decisions which are hardly consistent at this time. However, we do hope it assists the experienced proctor as well as those just venturing on their first voyage to set a course and to avoid some of the navigational hazards which may be encountered.

V. THE MATRIX EXPLAINED

The following chart was developed by my students under my supervision in a course I designed as a result of the BP Oil Spill on April 20, 2010, entitled "Rights, Remedies and Damages in a Maritime Disaster." I thought it would assist the students in understanding the perplexing area of wrongful death and also engage them personally in developing the matrix. When I mentioned this project to fellow admiralty practitioners, they were intrigued by the idea; some even said their past attempts were fruitless and wondered if it were even possible. My students have demonstrated, I believe, to the contrary, and that this assignment though difficult, was not an insurmountable task.

In order to bring some semblance of order to this area of law claimants had to be distinguished by a class or group--Jones Act seamen, the seafarer using the broader definition in Yamaha, (69) and the nonseafarer, in the first column. The next column in the matrix considers the location of the death--state waters versus high seas as expansively defined under DOHSA. (70) Following that we establish the source of the right, statutory or judicial, and whether the basis is negligence or the warranty of seaworthiness. The fourth column defines who has the right of action, usually the personal representative, and then we state the source of the beneficiary status as this may differ depending on the right. For example, beneficiaries under the Jones Act are more limited than under DOHSA and presumably under general maritime law.

We considered that it would also be a practical to define the likely defendants. The Jones Act is solely a negligence right and remedy against the employer of the seaman, but DOHSA71 and the general maritime law, as well as any state wrongful death action, may be brought against any negligent party. The remedy for each right of action is also cited in relation to each particular class of claimants as remedies may vary between claimants for the same right of action. This is particularly true for seamen who are afforded the warranty of seaworthiness while passengers, seafarers (i.e., longshoremen) do not have this ancient maritime remedy.

In the end, we have sought to bring order to the damages which may be recovered for the corresponding right of action and remedy. There is a footnote in every box in the matrix citing the particular statutory or jurisprudential support for each box. This will naturally change in time as the maritime bar processes the most recent developments in the area of damages as a result of Exxon Shipping Co. v. Baker (72) and the Townsend (73) decisions. We trust that this matrix will assist the bar to steer a course through these certainly difficult, if not treacherous, waters. Future developments will naturally also require some tacking and likely change in course. But, until the courts signal a more defined route, we set sail with the information available and our journey continues.

I wish to thank and am deeply indebted to the students who participated in the course, Rights, Remedies and Damages in a Maritime Disaster and enthusiastically embarked on this expedition. In particular, I am most grateful for the work of Ethan Zubic who designed the Matrix. I would also like to thank Jason Elam and Taylor Stone who dedicated time after the course was completed to further research. All of these former students, now practicing attorneys, however, were instrumental in the final product. I merely served as a look out to help them along.

(1.) 398 U.S. 375 (1970).

(2.) 119 U.S. 199(1886).

(3.) See Morange, 398 U.S. at 382-90.

(4.) Id. at 390.

(5.) Id. at 395.

(6.) Id.

(7.) Id. at 395-96.

(8.) Morange, 398 U.S. at 409.

(9.) Id. at 375.

(10.) Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946).

(11.) Morange, 398 U.S. at 376.

(12.) Id. at 377.

(13.) Id. at 408.

(14.) Id.

(15.) Mich. R.R. Co. v. Vreeland, 227 U.S. 59 (1912). "A pecuniary loss or damage must be one which can be measured by some standard." Id. at 71.

(16.) Id.

(17.) Id.

(18.) 414 U.S. 573 (1974).

(19.) Id.

(20.) Id. at 585.

(21.) 277 U.S. 335 (1928).

(22.) Gaudet, 414 U.S. at 598. The dissent on the precedent of Mellon maintained that the settlement of the personal injury suit precluded an action for wrongful death. Id. at 611-12. The majority, however, distinguished the two causes of action and who has the right of action. Id. at 581-83. Where a party is injured and subsequently dies from those injuries the personal right of action is a survival action which may be brought by the personal representative of the decedent. Id. at 578. The wrongful death action is a separate and distinct right which may be brought by beneficiaries, generally the dependent spouse, children or other dependents for loss of support and in most states loss of society, love and affection. Id.

(23.) 436 U.S. 618 (1978).

(24.) Id. at 623.

(25.) Id. at 626.

(26.) Id. at 630 n.11.

(27.) Moragne v. States Marine Lines, Inc., 398 U.S. 375, 395-96 (1970).

(28.) 498 U.S. 19 (1990).

(29.) Id. at 21-26.

(30.) See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 529 (1938); Moragne, 398 U.S. at 387; see also Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823).

(31.) Miles, 498 U.S. at 37.

(32.) Id. at 30 ("[W]e today make explicit that there is a general maritime cause of action for the wrongful death of a seaman, adopting the reasoning of the unanimous and carefully crafted opinion in Moragne.").

(33.) Id. at 32-33.

(34.) Id.

(35.) Id. at 32 ("The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen").

(36.) Miles, 498 U.S. at 30.

(37.) In 2001, the Supreme Court extended the Moragne right of action to include the negligence remedy in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811 (2001). However, this benefits only non-seamen as the Jones Act is a negligence remedy by definition.

(38.) Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 215 (1996) (the high seas are those three or more nautical miles from shore).

(39.) Id. at 202.

(40.) Id. at 215-16. See also Hurd v. United Sates, 134 F. Supp. 2d 745 (D.S.C. 2001), aff'd, 34 F. App'x 77 (4th Cir. 2002) (allowing parents of teenagers killed in territorial waters due to the negligence of the U.S. Coast Guard to supplement the general maritime Law with the state statute to recover nonpecuniary damages).

(41.) Yamaha, 516 U.S. at 205.

(42.) Id. at 202.

(43.) Id. at 205 n.2.

(44.) In re Goose Creek Trawlers Inc., 972 F. Supp. 946 (E.D.N.C. 1997).

(45.) 6 So. 3d 830 (1st Cir. La. App); writ denied, So. 3d 166 (La. 2009); cert, denied Dufrene Boats, Inc. v. Nga Trinh, 130 S. Ct. 228 (2009).

(46.) Id.

(47.) Trinh v. Dufrene Boats, Inc. 5 So. 3d 166 (La. 2009); Dufrene Boats, Inc. v. Nga Trinh, 130 S. Ct. 228 (2009).

(48.) 554 U.S. 471 (2008).

(49.) Id. As an exception to the proprietary interest rule for economic damages, the Fifth Circuit expanded the class of claimants to include commercial fishermen. State of Louisiana v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985).

(50.) Exxon, 554 U.S. at 492.

(51.) Id. at 493.

(52.) The applicable statute in Exxon, the Clean Water Act, did not prohibit or eliminate punitive damages.

(53.) 557 U.S. 404 (2009).

(54.) Id. at 405-06.

(55.) Id.

(56.) Barrette v. Jubilee Fisheries, Inc., No. C10-01206 MJP, 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011).

(57.) Id. at *4.

(58.) Id. at *5-6.

(59.) See id. at *6.

(60.) See id. at *5-6.

(61.) Barrette, U.S. Dist. LEXIS 89514, at *4.

(62.) Id.

(63.) Id. at *18. One decision from the U.S. District Court for the Western District of Louisiana raised the question of whether changes made to the Jones Act in 2006 charted a new course for the recovery of punitive damages under that act but quickly ends the journey dismissing the punitive damage claim under both the Jones Act and general maritime law in a suit for wrongful death of one worker on a rig and the injuries to others in state territorial waters. Magistrate Hanna felt bound by prior Fifth Circuit precedent. McBride v. Estis Well Serv., LLC, 872 F. Supp. 2d 511, 51416 (W.D. La. 2012).

(64.) Doyle v. Graske, 579 F.3d 898, 908 (8th Cir. 2009).

(65.) Id. at 906.

(66.) Id. (quoting Am. Export Lines, Inc. v. Alvez, 446 U.S. 274, 276 (1980) (plurality opinion)) (citing Am. Export Lines, Inc., 446 U.S. at 286 (Powell, J., concurring)).

(67.) Id. at 907.

(68.) By the same token, the related claim, the survival action, is almost as confused and confusing.

(69.) Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996).

(70.) 46 U.S.C. [section][section] 30104-08 (2012).

(71.) 46 U.S.C. [section][section] 30104-08 (2012).

(72.) 554 U.S. 471 (2008).

(73.) 557 U.S. 404 (2009).

Jason Elam, Taylor Stone, Ethan Zubic, Casey Hirsch, Andrew Joyner, and Eric Schumaker *

Introduction by

Arthur A. Crais, Jr.**

* These students participated in the first offering of the course, Rights, Remedies and Damages in a Maritime Disaster taught in the Spring of 2010 at Loyola University New Orleans College of Law and are the joint authors of the Matrix.

** B.A. with honors, Tulane University, J.D. Tulane University, Visiting Adjunct Professor, Loyola University New Orleans College of Law.
Wrongful Death

JONES ACT       Location   Source of Right        Who has the Right
SEAMAN
                Territorial Waters

                           Jones Act              Personal
                                                  Representative (2)

                           GML                    Personal
                           Unseaworthiness (4)    Representative (4)

                           GML Negligence (5)     Personal
                                                  Representative (4)

                High Seas

                           Jones Act              Personal
                           (negligence) (1)       Representative (2)

                           DOHSA (negligence &    Personal
                           unseaworthiness) (7)   Representative (7)

                           Foreign Territorial    Personal
                           Waters (8)             Representative (7)

                           GML Negligence (4,5)   Personal
                                                  Representative (4)

SEAFARER (10)   Location   Source of Right        Who has the Right

                Territorial Waters

                           State Wrongful Death   Personal
                           Statute (11)           Representative (12)

                           GML Negligence (13)    Personal
                                                  Representative (4)

                High Seas

                           DOHSA (7)              Personal
                                                  Representative (7)

                           GML Negligence (4,5)   Personal
                                                  Representative (4)

                           Foreign Territorial    Personal
                           Waters (8)             Representative (17)

NON-            Location   Source of Right        Who has the Right
SEAFARER (10)

                Territorial Waters

                           State Wrongful Death   See State Wrongful
                           Statute (11)           Death Statute (12)

                           GML Negligence (4,5)   Personal
                                                  Representative (4)

                High Seas

                           DOHSA (7)              Personal
                                                  Representative (7)

                           Foreign Territorial    Personal
                           Waters (8)             Representative (17)

                           GML (4,5)              Personal
                                                  Representative (4)

Wrongful Death

JONES ACT       Location   Beneficiaries          Defendant
SEAMAN
                Territorial Waters

                           Jones Act (2)          Employer (1)

                           Same as Jones Act      Vessel Owner (4)
                           and DOHSA for
                           uniformity (4)

                           Same as Jones Act      Other Third
                           and DOHSA for          Parties (4,5,15)
                           uniformity (4)

                High Seas

                           Jones Act (2)          Employer (1)

                           DOHSA (7,14)           Vessel Owner; Other
                                                  Third Parties (7,19)

                           DOHSA/Foreign          Employer, Vessel
                           Law (8)                Owner, Other Third
                                                  Parties (7,17)

                           Jones Act (2) and      Other Third
                           DOHSA (7)              Parties (4,5,19)

SEAFARER (10)   Location   Beneficiaries          Defendant

                Territorial Waters

                           State Law (11,12)      Maritime Torfeasor
                           or GML (4)             (4,5,19)

                           GML (4)/Jones          Maritime Torfeasor
                           Act (2)/DOHSA (7)      (4,5,19)

                High Seas

                           DOHSA (7,14)           Maritime
                                                  Torfeasor (7)

                           Same as DOHSA for      Maritime
                           uniformity (4,7)       Torfeasor (4,5,19)

                           DOHSA/Foreign          Employer, Vessel
                           Law (4,17)             Owner, Other Third
                                                  Parties (17)

NON-            Location   Beneficiaries          Defendant
SEAFARER (10)

                Territorial Waters

                           See State Wrongful     Maritime
                           Death Statute (12)     Torfeasor (12)

                           GML (4)                Maritime
                                                  Torfeasor (5)

                High Seas

                           DOHSA (7)              Maritime
                                                  Torfeasor (7)

                           DOHSA/Foreign          Employer, Vessel
                           Law (17)               Owner, Other Third
                                                  Parties (17)

                           Same as DOHSA for      Maritime
                           uniformity (4,7)       Torfeasor (5,19)

Wrongful Death

JONES ACT       Location   Remedies               Damages
SEAMAN
                Territorial Waters

                           Negligence (1)         Pecuniary Only (3)

                           Unseaworthiness (3)    Pecuniary Only (3)

                           Negligence: Strict     Pecuniary Only (3)
                           Liability; Product
                           Liability (4,5)

                High Seas

                           Negligence (1)         Pecuniary Only (6)

                           Unseaworthiness;       Pecuniary
                           Strict Liability;      Only (7,16)
                           Product
                           Liability (7)

                           Negligence; Strict     Pecuniary Only (17)
                           Liability; Product
                           Liability (17)

                           Negligence, Strict     Pecuniary Only (9)
                           Liability; Product
                           Liability (5,19)

SEAFARER (10)   Location   Remedies               Damages

                Territorial Waters

                           State Law (11,12)      State Law (11,12)

                           Negligence: Strict     Pecuniary &
                           Liability Product      Nonpecunary (4,5,20)
                           Liability (4,5)

                High Seas

                           Negligence: Strict     Pecuniary Only (15)
                           Liability Product
                           Liability (7)

                           Negligence: Strict     Pecuniary Only (16)
                           Liability Product
                           Liability (4,5)

                           Negligence; Strict     Pecuniary Only (17)
                           Liability; Product
                           Liability (17)

NON-            Location   Remedies               Damages
SEAFARER (10)

                Territorial Waters

                           See State Wrongful     See State Wrongful
                           Death Statute (12)     Death Statute (12)

                           Negligence; Strict     Pecuniary Only (18)
                           Liability; Product
                           Liability (4,5)

                High Seas

                           Negligence; Strict     Pecuniary
                           Liability; Product     Only (7,16)
                           Liability (7)

                           Negligence; Strict     Pecuniary Only (17)
                           Liability; Product
                           Liability (17)

                           Negligence (4,5,19)    Pecuniary Only (18)

(1.) 46 U.S.C. [section] 30104 (2012).

(2.) 45 U.S.C. [section] 51 (2012) (FELA) (One class primes the
other, to the exclusion of the next: Spouse/children;
parents/siblings; dependent relatives).

(3.) Miles v. Apex Marine Corp., 498 U.S. 19 (1990). However, in
light of Atlantic Sounding v. Townsend. 557 U.S. 404 (2009),
whether non-pecuniary damages (Barrette v. Jubilee Fisheries, Inc.,
No. C10-01206 MJP, 2011 WL 3516061 (W.D. Wash. Aug. 11, 2011)) and
punitive damages (Wagner v. Kona Blue Water Farms, LLC. 2010 AMC
2469 (D. Haw. 2009)) may be recovered for breach of warranty of
seaworthiness is yet an open question.

(4.) Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).

(5.) Gabarick v. Laurin Maritime (Am.) Inc., 623 F. Supp. 2d 741
(E.D. La. 2009).

(6.) Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59 (1913).

(7.) 46 U.S.C. [section] 30302 (2012) (negligence and
unseaworthiness) (dependents are inclusive: Spouse, children,
parents, siblings, dependent relatives).

(8.) 46 U.S.C. [section] 30306 (2012).

(9.) Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978): Offshore
Logistics, Inc. v. Tallent ire, All U.S. 207 (1986).

(10.) Expansive definition of "non-seafarer" refers to those not
covered by the Jones Act or the LHWCA. Yamaha Motor Corp. v.
Calhoun, 516 U.S. 199 (1996) (therefore, only LHWCA claimants would
be considered seafarers under this definition). An expansive
definition of seafarer includes those covered by LHWCA, commercial
fishermen, oystermen, dive boat owners, and anyone making a living
by the sea.

(11.) 46 U.S.C. [section] 30308 (2012).

(12.) Dependent on particular state wrongful death statute.

(13.) Moragne v. States Marine Lines, Inc.. 398 U.S. 375 (1970);
Yamaha Motor Corp. v. Calhoun. 516 U.S. 199 (1996); Trinh v.
Dufrene Boats. Inc.. 2008 CA 0824 (La. App. Ct. 1/22/09); 6 So. 3d
830.

(14.) Including foster children and illegitimate children. See Civil
v. Waterman S.S. Corp.. 217 F.2d 94 (2d Cir. 1954).

(15.) 46 U.S.C. [section] 30303 (2012).

(16.) Commercial Aviation Exception. 46 U.S.C. [section] 30307 (2012).
Whether Higginbotham, 436 U.S. 618. and Tallentire. 477 U.S. 207,
remain viable is an open question.

(17.) 46 U.S.C. [section] 30306 (2012) (also dependent on the laws of
the nation state).

(18.) The reasoning in Atlantic Sounding Co. v. Townsend, 557 U.S. 404
(2009), when applied in this situation leaves open the question
whether a non-seafarer killed in state territorial waters can
recover punitive damages under the Moragne wrongful death cause of
action. See Lobegeiger v. Celebrity Cruises, Inc.. 869 F. Supp. 2d
1356 (S.D. Fla. 2011).

(19.) Trinh. 6 So. 3d 830: Stepski v. M/V Norasia Alya. No.
10-1756-cv, 2010 U.S. Dist. LEXIS 16602 (S.D.N.Y. Jan. 14, 2010).

(20.) Sea-Land Services, Inc v. Gaudet, 414 U.S. 573 (1974). In light
of Townsend, 557 U.S. 404, whether punitive damages may also be
recovered is unresolved.
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Author:Elam, Jason; Stone, Taylor; Zubic, Ethan; Hirsch, Casey; Joyner, Andrew; Schumaker, Eric; Crais, Art
Publication:Loyola Maritime Law Journal
Date:Mar 22, 2013
Words:6293
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