Nonseafarers: the classification of self-employed commercial fishermen.
Thuan Tran and his family moved to New Iberia, Louisiana, in March of 2004. (1) Mr. Tran was a self-employed commercial crab fisherman. (2) He bought a boat, then, he and his wife began preparing it for commercial crabbing. (3) Slightly over a month after moving, Mr. Tran went to work, but did not return home. (4) A tugboat that was pushing six barges struck his boat while in the Intracoastal Waterway. (5) As a result, the boat sank and Mr. Tran drowned. (6) Authorities discovered Mr. Tran's body two days later. (7) His wife, individually and on behalf of their two children, brought a wrongful death action under the general maritime law against Dufrene Boats, the tug owner, in which she sought non-pecuniary damages. (8)
Dufrene argued that Mr. Tran was a seafarer, therefore Louisiana's wrongful death statute, which provides for recovery of non-pecuniary damages, was inapplicable. (9) The court correctly held that Mr. Tran was a nonseafarer. (10) Moreover, since he was a nonseafarer and there was nothing in the general maritime law that precludes Louisiana's wrongful death law from supplementing the general maritime law for nonseafarers, Mr. Tran's family could recover non-pecuniary damages pursuant to Louisiana's wrongful death laws. (11) The family's recovery was realized because the court correctly construed the United States Supreme Court's definition of a "nonseafarer." (12)
The term "nonseafarer" has created much unwarranted confusion, such as whether the term includes a self-employed commercial fisherman. In Yamaha Motor Corp., U.S.A. v. Calhoun, (13) the Supreme Court gave two conflicting explanations of the term "nonseafarer," one of which is more encompassing than the other. (14) Whether a person is classified as a "nonseafarer" is important because it may impact which remedial laws apply and what types of damages are available in maritime wrongful death cases. (15)
This comment suggests that a "nonseafarer" is one who cannot seek a remedy under either the Jones Act or the Longshore and Harbor Workers' Compensation Act. (16) This definition is consistent with the intent of both Congress and the United States Supreme Court. (17) Moreover, because these persons are not subject to any comprehensive federal statutory scheme, courts are free to supplement the general maritime law with state wrongful death laws, including those that allow recovery of non-pecuniary damages.
This comment focuses on the definition of a "non-seafarer" under Yamaha. Thus, the discussion is limited to maritime wrongful death law. Section II analyzes the sources of maritime law that give rise to a wrongful death cause of action. Next, Section III explores the intricacies of the historical development of the wrongful death cause of action under the general maritime law. Finally, Section IV compares and contrasts the divergent definitions of "seafarer" given in Yamaha and explains why self-employed commercial fishermen are nonseafarers.
II. SOURCES OF MARITIME LAW
Maritime law is a product of both federal statutes and the general federal maritime law, which is developed by federal courts sitting in admiralty jurisdiction. (18) A federal court has admiralty jurisdiction over a tort when the Grubart three-part test is satisfied, which is when the case involves an incident that occurs on a navigable waterway, bears a substantial relationship to a traditional maritime activity, and has the capability of disrupting maritime commerce. (19) State courts, by virtue of the "savings to suitors" clause of the admiralty statute, (20) may hear in personam actions that fall within admiralty jurisdiction if the remedy sought is one available at common law. (21) When a state court is competent to hear a maritime claim, the applicable law is the general maritime law because the claim is cognizable in admiralty jurisdiction. (22) Because the general maritime law was developed through case law, it often has "gaps" in it. To remedy these shortfalls, courts may use state law as "gap-fillers" to supplement the general maritime law. (23)
Generally, one may bring a maritime wrongful death claim pursuant to one or more of the four primary theories of recovery. (24) These theories consist of three popular federal statutes, the Jones Act, (25) the Longshore and Harbor Workers' Compensation Act (LHWCA), (26) and the Death on the High Seas Act (DOHSA), (27) as well as the general maritime law. (28) Depending on the nature and location of the injury, each of these theories of recovery will establish varying causes of action, remedies, and measures of damages. (29)
The Jones Act applies exclusively to "seamen," (30) meaning a person who contributes to a vessel's function and who has a substantial association to a vessel or identifiable group of vessels in navigation in regard to its duration and nature. (31) It creates a cause of action for the decedent's representative against the decedent's former employer when the employee's death results from the employer's negligence. (32) To recover under the Jones Act, the plaintiff must prove both his status as a seaman at the time of injury and that the defendant was his employer. (33) Since the Jones Act creates a cause of action for wrongful death based on negligence, it preempts any state wrongful death law, regardless of whether the state law remedy is based on negligence or unseaworthiness. (34) Moreover, recovery under the Jones Act is limited to pecuniary damages. (35)
The LHWCA, like other workers' compensation schemes, provides guaranteed compensation benifits to injured or deceased longshoremen in lieu of tort damages and regardless of fault. (36) The purpose of the statute is to compensate employees for economic losses. (37) The prima facie elements of recovery under the LHWCA are that the plaintiff was an "employee" of the defendant whose injury arose out of his employment and the injury or death must have occurred on a navigable waterway of the United States or in adjoining areas used in loading, unloading, repairing, or building certain vessels. (38) A longshoreman's representative may bring suit against a vessel for its negligence resulting in the longshoreman's death. (39) A longshoreman's representative may also bring a wrongful death suit against a non-vessel third party under the general maritime law if the fatal injury occurred in state waters or under DOHSA if it occurred on the high seas. (40)
DOHSA creates a cause of action for the decedent's representative against the person or vessel responsible in the event of a death caused by a "wrongful act, neglect, or default" that occurs on the high seas, which is beyond three nautical miles of the United States shoreline. (41) DOHSA applies whether the decedent dies on the high seas or on shore at a later time, so long as the incident giving rise to the death occurred on the high seas. (42) In contrast to the Jones Act and the LHWCA, DOHSA does not require the decedent to have been a seaman or employee hired for maritime work. (43) When DOHSA applies, it preempts remedies otherwise provided under both state wrongful death law and the general maritime law. (44) Additionally, recovery under DOHSA is limited to pecuniary damages. (45)
The general maritime law's wrongful death action is limited in its applicability when applied to seamen and longshoremen. Jones Act seamen may use it as a supplemental remedy for unseaworthiness in a suit against their former employers. (46) Seamen may also bring a wrongful death negligence claim under the general maritime law against third parties, an cause of action for which the Jones Act does not provide. (47) Representatives of longshoremen may not assert a wrongful death claim under the general maritime law against the former employer, because the exclusive remedy for such claims is under the LHWCA; however, longshoremen may assert a wrongful death claim under general maritime law against non-vessel third parties. (48) Representatives of other persons killed in state territorial waters may also bring a wrongful death claim under the general maritime law for a breach of maritime duties. (49) Additionally, state wrongful death laws may supplement the general maritime law if the decedent is a nonseafarer. (50)
Jurists must look to the general maritime law when analyzing the death of a self-employed commercial fisherman who is killed on territorial waters like Mr. Tran. Neither the Jones Act nor LHWCA provide coverage for Mr. Tran because he is neither a seaman nor a longshoreman, respectively. Additionally, his claim would not fall under DOHSA because his injury or death did not occurr on the high seas. (51) To better understand the current law on maritime wrongful death, one must consider the historical development of this area of the law.
III. HISTORICAL DEVELOPMENT OF WRONGFUL DEATH UNDER THE GENERAL MARITIME LAW
Wrongful death law in maritime matters began to develop in the United States in 1886, with the Supreme Court's decision in The Harrisburg. (52) The law has, at times, been less than clear and consistent, as explained in this section. However, wrongful death under the general maritime law has become less variable as later United States Supreme Court decisions have been more consistent with each other. This section explores the development of the wrongful death cause of action under the general maritime law, some of the inconsistencies, and how those inconsistencies have been resolved. Also, this section discusses rationales in key decisions. Section IV uses these rationales to show why the United States Supreme Court intends for a self-employed commercial fisherman to be classified as a "nonseafarer."
A. FROM THE HARRISBURG TO MORAGNE
In The Harrisburg, the Court held that the general maritime law does not recognize a wrongful death cause of action for the representatives of a person who was killed on the high seas or in state waters if no federal statute creates such a cause of action. (53) Thereafter, and in the absence of an applicable federal law, courts used various state wrongful death statutes to provide a remedy for maritime deaths. (54)
In a dual effort to fill the gap of missing federal remedies for deaths that fall within federal admiralty jurisdiction and to achieve uniformity in applying a wrongful death remedy, Congress passed DOHSA in 1920. (55) Later that year, it also passed the Jones Act. (56) Therefore, after 1920 there was statutorily based wrongful death recovery both for any person killed on the high seas and for seamen, regardless of where the seaman's death occurred. (57) However, because no applicable federal statute in regard to non-seamen killed in state territorial waters existed, there was still a gaping hole in the maritime wrongful death law. As a result, courts continued using state wrongful death statutes to provide survivors of non-seamen killed in territorial waters with a wrongful death remedy. (58) Then, in 1927, Congress passed the LHWCA to protect longshoremen by giving them the right to claim workers' compensation benefits from their employers for injuries or deaths arising out of their employment. (59)
During that time, the law had three prevalent incongruities. First, within state territorial waters, unseaworthiness gave rise to liability if a person was injured, but not if the injury resulted in death. (60) The Harrisburg rule gave employers incentives to favor employee death over employee injury because an employer faced less liability if an employee died than if an injured employee survived. (61) Second, a breach of the duty to provide a seaworthy ship that results in death beyond territorial waters gave rise to a wrongful death claim under DOHSA, but not if the death occurred in state waters where the state law did not impose a duty of seaworthiness. (62) Third, a Jones Act seaman had no remedy for a death caused by unseaworthiness that occurred in territorial waters. (63) However, longshoremen, at that point in time, were owed a duty of seaworthiness because longshoremen performed work traditionally done by seamen. (64) Thus, when a state law recognized the duty of seaworthiness, the longshoreman had a remedy for the wrongful death. (65)
In Moragne v. States Marine Lines, Inc., the U.S. Supreme Court overruled The Harrisburg and created a wrongful death cause of action in the general maritime law. (66) In Moragne, a longshoreman was killed while working aboard a vessel that was on a navigable waterway within the State of Florida. (67) His representative brought suit seeking damages for wrongful death and for the decedent's pain and suffering prior to his death. (68) The defendant argued that the general maritime law recognized no cause of action for a wrongful death that occurred within a state's territorial waters and that Florida's wrongful death statute was inapplicable because it did not impose a duty of seaworthiness upon the defendants. (69) The Court rejected these arguments and created a general maritime remedy for non-seamen killed in territorial waters. (70)
The Court likely intended for Moragne to be interpreted consistently with both DOHSA and the Jones Act, meaning Moragne applies only in territorial waters and not in cases of seamen against their employers. (71) Moreover, the Court concluded that Congress did not intend to preempt state death statutes when it enacted DOHSA. (72) Thus, the Court intended that the new cause of action, created in Moragne, would not preempt state wrongful death laws that create liability where Moragne creates liability. (73)
B. FROM MORAGNE TO PRESENT
In Moragne, the Court left several issues to be resolved by the lower courts or the "judicial mill" as the Court referred to them. (74) In particular, concerning the issue of damages, the lower courts agreed on one point stemming from Moragne, that pecuniary damages available in wrongful death recovery under DOHSA and the Jones Act were also available in a wrongful death action under the general maritime law. (75) However, the "judicial mill" turned out differing opinions concerning the measure of damages and whether non-pecuniary damages were recoverable. (76) Because the Moragne Court pointed to the federal maritime death statutes, DOHSA, the Jones Act, and the varying state wrongful death laws as guidance for measuring damages, the lower courts went in divergent directions. (77)
Some courts mistakenly took the Court's demand for uniformity to mean uniformity in both liability and the type of damages. These courts drew on DOHSA and the Jones Act as analogies in measuring damages and barred recovery of non-pecuniary damages for a wrongful death claim under the general maritime law in the name of uniformity. (78) For instance, in Green v. Ross, the court, in keeping with Moragne's thrust of uniformity, held that the plaintiffs qualified as beneficiaries under Moragne because they would have qualified as beneficiaries under DOHSA. (79) The court used DOHSA as the sole guiding post. Likewise, the court found that recovery for loss of consortium and companionship are "inimical to the maritime law" and, therefore, not recoverable under in a wrongful death action under general maritime law. (80)
Other courts took the Court's uniformity cue to mean uniformity only in liability. These courts correctly concluded that Moragne provided the bare bones and that they are to be fleshed out by the various state wrongful death statutes, most of which allowed for non-pecuniary damages. (81) These courts generally reasoned that if there is no directly applicable federal statute, then there is no conflict between state and federal law. (82) For instance, in Greene v. Vantage Steamship Corp., the court concluded that Moragne mandated uniformity in regard to liability, but that DOHSA was not controlling in the determination of damages. (83) The court then held that the plaintiff could recover non-pecuniary damage notwithstanding DOHSA's preclusion of such damages. (84) In other words, the defendant was liable under Moragne even though the defendant may not have been liable under Florida's state law. Furthermore, since Moragne does not require uniformity in regard to what damages are available, courts are free to supplement the general maritime law with state wrongful death laws that allow recovery of various damages.
To make matters more confusing, the U.S. Supreme Court later decided two cases that did little to clarify the law in this area. In Sea-Land Services, Inc., v. Gaudet, the Court held that the beneficiaries of a longshoreman killed in state waters could recover non-pecuniary damages under the general maritime law. (85) However, the Court left open two questions. First, does Gaudet apply to deaths on the high seas? And second, does Gaudet apply to a Jones Act seaman?
The first question was answered in 1978, when the Court decided Mobile Oil Corp. v. Higginbotham. (86) There, the Court held that the application of Gaudet is limited to state waters. (87) The second question was answered by the Court's decision in Miles v. Apex Marine Corp., where the Court held that Gaudet applied only to longshoremen killed in territorial waters. (88) Miles established that a uniform rule regarding wrongful death actions, the unavailability of non-pecuniary damages, would apply to seamen, whether the claim is brought under the Jones Act, DOHSA, or the general maritime law. (89) However, it was not until Yamaha, that the Court had considered the remedies available to the beneficiaries of non-seafarers killed in territorial waters.
In 1996, the Supreme Court decided Yamaha, which involved a twelve year-old child, Natalie Calhoun, who was killed on a jet ski on navigable waters in Puerto Rico. (90) Her representatives sought non-pecuniary damages in their wrongful death claim under Pennsylvania's wrongful death statute. (91) The defendant, Yamaha, contended that Calhoun could only recover under the general maritime law, meaning state wrongful death laws were preempted and that, accordingly, recovery was limited to pecuniary damages. (92) The Court held that state wrongful death laws might apply where they are not displaced by the general maritime law, such as when a nonseafarer is killed in territorial waters. (93) The following section analyzes the conflicting definitions of "nonseafarer" given by the Court.
IV. SELF-EMPLOYED COMMERCIAL FISHERMEN ARE NOT SEAFARERS
The remedies available for a death in territorial waters depend on whether state wrongful death laws can supplement the general maritime law. When the decedent is classified as a nonseafarer, state law may apply, including state law remedies. (94) A self-employed commercial fisherman, such as a crabber, shrimper, or oysterman, is a nonseafarer because, like Mr. Tran, he is not covered by a comprehensive federal remedial scheme such as the Jones Act, the LHWCA, or DOHSA. Thus, the Supreme Court intends for state remedies to remain applicable to those persons. (95)
In Yamaha, the Court framed the question presented as follows: "Does the federal maritime claim for wrongful death recognized in Moragne supply the exclusive remedy in cases involving the deaths of nonseafarers (footnote omitted) in territorial waters?" (96) The clearest indication that a self-employed commercial fisherman is a nonseafarer is the plain language of the Court's definition of "nonseafarer," which is articulated in footnote two in Yamaha. (97) There, the Court stated "By 'nonseafarer,' we mean persons who are neither seamen covered by the Jones Act (citation omitted), nor longshore workers covered by the Longshore and Harbor Workers' Compensation Act (citation omitted)." (98)
The alternative, and misused, definition of a nonseafarer comes from a statement in the second paragraph of the Yamaha opinion's introduction. (99) There, the Court said, "Traditionally, state remedies have been applied in ... maritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade." (100) Some courts have misinterpreted the phrase "person otherwise engaged in a maritime trade" and concluded that commercial fishing is by its very nature a maritime trade. (101)
For example, in In re Goose Creek Trawlers, Inc., the court held that a self-employed commercial shrimper who was killed in North Carolina territorial waters was a seafarer, and as such could not recover non pecuniary damages because Moragne preempts state wrongful death law. (102) The court based its conclusion on the phrase "person otherwise engaged in a maritime trade" in the introductory statement of the Yamaha opinion. (103) However, this construction is flawed. It is a statement of a historical fact. Hence the sentence begins with "[traditionally." The definition of "nonseafarer" in footnote two is much more direct and specific. If the Court intended for the introductory statement to define the Court's interpretation of a seafarer, the later and more precise definition would be rendered useless.
One cannot discount the significance of the definition provided in footnote two simply because it was not included in the body of the opinion. The constitutional law doctrine of strict scrutiny evolved from footnote four in United States v. Carotene Products Co. (104) Strict scrutiny did not become law until it was first applied in Korematsu v. United States, (105) but the point remains that footnotes often carry great weight.
Interpretation of the term "nonseafarer" should be guided by the doctrine of ejusdem generis. Ejusdem genris is used to interpret terms in both contracts and statutes. (106) The rule states that where terms are inconsistent, the more specific term prevails over the more general term. (107) Considering the Court's ambiguity in the introductory statement of the Yamaha opinion, using ejusdem generis as a construction guide leads to the conclusion that the later, more specific definition prevails over the former. Footnote two speaks directly to the meaning of "nonseafarer," whereas, one must deduce the meaning from the introductory statement in the second paragraph.
Moreover, in light of the more specific definition that the Court provides in footnote two, it is likely that in using the phrase "person otherwise engaged in a maritime trade," it meant a maritime worker such as any of the maritime workers enumerated in the LHWCA as an "employee," which is defined as any "harbor-worker including a ship repairman, shipbuilder, and ship-breaker...." (108) Such a construction is consistent with the Supreme Court's intentions, given that an element of seafarer classification is satisfying the requisite employment status. Hence, to be covered by the Jones Act or LHWCA, one must be an employee.
Additionally, defining a "nonseafarer" as one not covered by either the Jones Act or LHWCA is consistent with the historical development of maritime wrongful death law and congressional intent. Congress has not legislated on the issue of non-maritime employees killed in territorial waters. (109) In the case of a self-employed commercial fisherman, only DOHSA could conceivably be extended to cover a death in territorial waters because both the Jones Act and LHWCA require that the decedent have been employed by the defendant at the time of the fatal injury. (110) Yet, Congress did not extend DOHSA and the U.S. Supreme Court, in light of the legislative history, concluded that Congress intended for it to apply exclusively to deaths on the high seas. (111) Because Congress has refused to enact legislation directly applicable to anyone other than those covered under the Jones Act or LHWCA who is killed in territorial waters, the courts must look to doctrine.
Moragne created a cause of action in the general maritime law for wrongful death. (112) Just as Congress, when it enacted DOHSA, wanted to leave unaffected the state remedies for deaths in territorial waters, (113) Moragne is intended to be a "gap-filler" for when non-seamen are killed on territorial waters, and the state remedy is inadequate to provide recovery. Thus, the court did not intend for it to preempt state law remedies, but to apply when the state law provided less protection than Moragne. (114) This is evidenced by the Court's articulations that Moragne would apply where DOHSA does not (115) and that courts should look to state wrongful death laws for guidance on supplemental issues, such as the measure of damages. (116)
Thus, the Moragne wrongful death remedy is intended to be another arrow in the quiver, not a new weapon. While it may be argued that uniformity will never be achieved if state wrongful death laws apply, uniformity is achieved by allowing litigants to recover for a wrongful death claim under the general maritime law where the state law is inadequate. Hence, the Court's thrust of uniformity in Moragne is for uniformity in liability, not the measure of damages.
Consider Green v. Vantage Steamship, Corp., discussed supra, where the court held that because no federal law was controlling on the issue of measure of damages for a maritime death in state waters, there was no conflict between the application of state law and the federal maritime law. (117) The court, in Greene, correctly construed Southern Pacific Co. v. Jensen as barring the application of state law when it would directly conflict with the federal maritime law. (118) Additionally, the court examined DOHSA's legislative history and concluded that it was not Congress' intent to have uniform wrongful death law in both state waters and on the high seas. (119) It reasoned that Congress expressly declined to include state territorial waters in the Act and Congress, for many years, had allowed states to put forth wrongful death laws that were diverse and often more liberal than DOHSA. (120) Therefore, Moragne requires uniformity only in liability and courts may supplement the general maritime law with state wrongful death laws when the decedent is a nonseafarer.
The most pragmatic definition of a "nonseafarer" would be one who is neither a seaman under the Jones Act nor a maritime worker under the LHWCA. It is the more workable definition with definable limits. First, since the Court gave inconsistent definitions in Yamaha, the more specific definition of "nonseafarer" should prevail over the more general definition. The Court likely meant for a "person otherwise engaged in a maritime trade" to be one who is covered by a comprehensive federal statutory scheme.
Second, Congress has shown its intent by refusing to legislate in regard to nonseafarers killed in territorial waters, considering that it has legislated in regard to those killed on the high seas and maritime employees killed in state waters. If Congress wanted the same law to apply to all death cases that fall within admiralty jurisdiction, it would have extended DOHSA to territorial waters. Moreover, uniformity is left unimpaired by the application of state law when it does not conflict with the federal maritime law. The Court intended for Moragne to create uniformity in regard to liability, not damages.
The comprehensive federal statutes do not cover a self-employed commercial fisherman and uniformity in maritime law is threatened only by misusing the term "nonseafarer." Thus, it is only logical for courts to adopt the Court's definition set out in footnote two of Yamaha, under which a self-employed commercial fisherman, like Mr. Tran, would be classified as a "nonseafarer."
(1.) Trinh ex rel. Tran v. Dufrene Boats, Inc., 08-0824, p. 2 (La. App. 1 Cir. 1/22/09); 6 So. 3d 830, 834.
(6.) Trinh ex rel. Tran v. Dufrene Boats, Inc., 08-0824, p. 2 (La. App. 1 Cir. 1/22/09); 6 So. 3d 830, 834.
(8.) Id. Pecuniary damages are those that can be accurately determined, such as loss wages or medical expenses. Non-pecuniary damages are those that cannot be determined by any known rule, but must be estimated by the court or jury, such as damages for pain and suffering. L.W. Pomerene Co. v. White, 97 N.W. 232, 234 (Neb. 1903).
(9.) Id. at 835. One Louisiana wrongful death statute provides, in pertinent part, "If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death: The surviving spouse and child or children of the deceased, or either the spouse or the child or children." LA. CIV. CODE ANN. art. 2315.2 (A)(1) (2010).
(10.) See Trinh, 6 So. 3d at 842.
(11.) Id. at 843.
(12.) Trinh ex rel. Tran v. Dufrene Boats, Inc., 08-0824, p. 2 (La. App. 1 Cir. 1/22/09); 6 So. 3d 830, 842.
(13.) 516 U.S. 199 (1996). [Hereinafter cited as Yamaha], For a more detailed discussion of Yamaha, see infra Part III.
(14.) For a discussion on the conflicting definitions of a "seafarer," see infra Part IV.
(15.) If the fisherman is a nonseafarer, the Yamaha exception applies. Hence, the court may supplement the general maritime law with state wrongful death law, which may allow for recovery of non-pecuniary damages. THOMAS J. SHOENBAUM, ADMIRALTY AND MARITIME LAW 430 (4th ed. 2004) [hereinafter cited as SHOENBAUM].
(16.) For discussions on both the Jones Act and the LHWCA, see infra Part II.
(17.) Congress did not intend for federal law to apply deaths that occur on territorial waters. Additionally, the U.S. Supreme Court intended for state remedies to remain applicable to deaths that occur on state waters. See infra Part IV.
(18.) Admiralty jurisdiction is expressly conferred upon the judiciary in Article III of the U.S. Constitution. However, Congress may limit the judiciary's authority over such cases however it sees fit. See U.S. Const, art. Ill [section] 2, cl. 1 U.S. Const, art. III [section] 2, cl. 1. Moreover, Congress may also revise and supplement admiralty law so long as it acts within the limits of the Constitution. See Panama R.R. Co. v. Johnson, 264 U.S. 375, 378 (1924). The general maritime law of today has developed from the maritime jurisprudence of the federal courts. THOMAS J. SHOENBAUM, ADMIRALTY AND MARITIME LAW 105 (3d ed. 2001).
(19.) Jerome B. Grubart, Inc. v. Great Lakes Dredge and Dock Co., 513 U.S. 527 (1995).
(20.) 28 U.S.C. [section] 1333 (2006). The "savings to suitors" clause allows a suitor to sue in a state court when the common law is competent to give the remedy even though a federal court would have jurisdiction over the claim. Thus, it is the common law remedy that is saved. See Leon v. Galceran, 78 U.S. 185, 191 (1871).
(21.) 28 U.S.C. [section] 1333 (1) (2006). See also Madruga v. Superior Court of State of Cal. ex re!. San Diego County, 346 U.S. 556, 560 (1954).
(22.) Moragne v. States Marine Lines, Inc., 398 U.S. 375, 378 (1970).
(23.) American Dredging Co. v. Miller, 510 U.S. 443 510 U.S. 443, 447 (1994). Federal law would preempt the state law "gap-filler" if applying the state law would conflict between the state law and federal law or if applying the state law would disrupt the harmony and uniformity of the general maritime law. Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917). See also Shoenbaum, supra note 15, at 430.
(24.) Louis G. Spencer, In re Goose Creek Trawlers, Inc.: Wards of the Court? With Friends Like These, Who Needs Enemies? Exploring the Nature of the Yamaha Exception, 22 TUL. MAR. L.J. 693, 694 (1998).
(25.) 46 U.S.C. [section] 30104(2006).
(26.) 33 U.S.C. [section] 901 (2006).
(27.) 46 U.S.C. [section] 30302 (2006).
(28.) Spencer, supra note 24, at 694-95.
(29.) Id. See generally SHOENBAUM, supra note 15, at 427-441.
(30.) 46 U.S.C. [section] 30104 (2006). For a more in depth discussion on the Jones Act, see Joseph R. Moore, Punitive Damages for Maritime Work Related Injuries, 8 LOY. Mar. L. J. 197, 213-22 (2010).
(31.) Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997).
(32.) See SHOENBAUM, supra note 15, at 438.
(33.) Tran v. Captain Glyn, Inc., 909 F. Supp. 727, 732 (D. Haw. 1995).
(34.) Gillespie v. United States Steel Corp., 379 U.S. 148, 154 (1964). The implied warranty of seaworthiness is the vessel owner's non-delegable duty to provide a ship that is reasonably fit for its intended use. See Morales v. Galveston, 370 U.S. 165 (1962).
(35.) Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990).
(36.) 33 U.S.C. [section] 904 (2006) (providing that LHWCA's remedial measures apply regardless of fault). A "longshoreman" is an employee hired mainly to load, unload, refit, and repair vessels. Norton v. Warner Co., 321 U.S. 565, 570 (1944); for a more detailed discussion concerning the LHWCA, see generally David F. Walker, Choat v. Kawasaki Motors Corp.: The Alabama Supreme Court's Journey Through the Murkey Waters of Maritime Wrongful Death Remedies, 47 Ala. L. Rev. 929(1996).
(37.) Metro. Stevedore Co. v. Rambo, 515 U.S. 291, 296 (1995). The death benefits paid by the employer include reasonable funeral expenses, spousal benefits, and compensation to dependent children. See SHOENBAUM, supra note 15, at 439.
(38.) 33 U.S.C. [section] 902(3) (2006). In order to recover, the claimant, or the decedent in a death case, must have been engaged in maritime employment, which may include "any longshoreman or other person engaged in longshoring operations and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker...." Id.
(39.) 33 U.S.C. [section] 905(b) (2006).
(40.) See generally Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).
(41.) 46 U.S.C. [section] 30302 (2006). See also Motts v. MW Green Wave, 210 F.3d 565, 569-70 (5th Cir. 2000). For a more detailed discussion of DOHSA, see generally Walker, supra note 36.
(42.) Motts, 210 F.3d at 569.
(43.) See generally Green v. Ross, 338 F. Supp. 365 (S.D. Fla. 1972) (allowing a diver, who is not considered a seaman, to recover under these Acts when he was fatally wounded by a negligently operated speedboat).
(44.) Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222 (1986) (providing that if Congress wanted to make remedies available under the laws of other sovereign when in conflict with DOHSA, it could do so expressly). Mobile Oil Corp. v. Higginbotham, 436 U.S. 618, 62325 (1978) (providing that courts may not supplement DOHSA's death remedies with damages or remedies otherwise available under general maritime law or state wrongful death statutes).
(45.) Tallentire, All U.S. at 232.
(46.) SHOENBAUM, supra note 15, at 435. See also Miles v. Apex Marine Corp., 498 U.S. 19, 26, 30(1990).
(47.) SHOENBAUM, supra note 15, at 435.
(48.) See Purnell v. Nomed Shipping B.V., 801 F.2d 152, 155-57 (3d Cir. 1986).
(49.) Norfolk Shipping & Drydock Corp. v. Garris, 532 U.S. 811,813 (2001).
(50.) Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 202 (1996).
(51.) See In re Goose Creek Trawlers, Inc., 972 F.Supp. 946 (E.D.N.C. 1997); Trinh ex rel. Tran v. Dufrene Boats, Inc., 08-0824 (La. App. 1 Cir. 1/22/09); 6 So. 3d 830; In re Stone Energy Corp., No. Civ. A. 02-2969, 2003 WL 21730621 (E.D. La. July 24, 2003).
(52.) 119 U.S. 199(1886).
(53.) Id. at 213.
(54.) Donald C. Radcliff, Damages Available in Personal Injury Claims After Miles, Yamaha, and Amtrack, 23 TUL. MAR. L.J. 383, 395 (1999).
(55.) Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401 (1970). DOHSA applies to anyone who is killed on the high seas, which is water that is beyond three nautical miles from the shoreline of the United States, regardless of seaman status.
(56.) Radcliff, supra note 54, at 395. The Jones Act applies to seamen regardless of whether the injury occurs on the high seas or in state territorial waters.
(57.) Frederick W. Swaim, Jr., Requiem for Moragne: The New Uniformity, 7 LOY. MAR. L.J. 171 (2009). A claim may be made under the Jones Act if the seaman dies on land, so long as the fatal injury occurs on a navigable waterway.
(58.) Id. The rationale of allowing state statutes that provided for a wrongful death action to supplement the general maritime law was that state law reigns over a state's territorial waters, but did not apply beyond the state's boundaries. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 393-94 n. 10 (1970).
(59.) Moragne, 398 U.S. at 394 n. 11.
(60.) Id. at 395.
(61.) Joseph R. Moore, Punitive Damages for Maritime Work Related Injuries, 8 LOY. MAR. L. J. 197, 212 (2010).
(62.) Moragne, 398 U.S. at 395.
(63.) Id. at 395-96.
(64.) See id. As a result of the 1972 Amendments to the LHWCA, the duty of seaworthiness does not extend to longshoremen. SHOENBAUM, supra note 15, at 300. See also Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946).
(65.) SHOENBAUM, supra note 15, at 300.
(66.) 398 U.S. 375, 409 (1970).
(67.) Id. at 376.
(70.) Id. at 409.
(71.) See Swaim, supra note 57, at 186.
(72.) Moragne v. States Marine Lines, Inc., 398 U.S. 375, 398-400 (1970).
(74.) Id. at 408 (stating that if any supplemental issues, such as the measure of damages, need further developing, the lower courts may look to both DOHSA and state wrongful death statutes for guidance).
(75.) Swaim, supra note 57, at 191.
(77.) Moragne, 398 U.S. at 408.
(78.) See Canal Barge Co. v. Griffith, 480 F.2d 11 (5th Cir. 1973); United States Steel Corp. v. Lamb, 436 F.2d 1256, 1278-79 (6th Cir. 1970); Smith v. Olsen & Ugedstad, 324 F. Supp. 578 (E.D. Mich. 1971). Courts following this rationale also looked to the general maritime law for guidance in classifying a particular element of damages as pecuniary or non-pecuniary. See Lamb, 436 F.2d at 1278-79.
(79.) 338 F. Supp. 365 (S.D. Fla. 1972).
(80.) Id. at 367.
(81.) See Swaim, supra note 57, at 190.
(82.) See Dennis v. Central Gulf Steamship Corp., 453 F.2d 137, 140 (5th Cir. 1972); see also Greene v. Vantage Steamship Corp., 466 F.2d 159, 164 (4th Cir. 1972).
(83.) 466 F.2d 159, 165 (4th Cir. 1972).
(84.) Id. at 167.
(85.) 414 U.S. 573, 584(1974).
(86.) 436 U.S. 618 (1978). Higginbotham involved a longshoreman that was killed in territorial waters.
(87.) Id. at 623.
(88.) 498 U.S. 19, 31-32 (1990).
(89.) See id. at 33.
(90.) 516 U.S. 199, 201-02 (1990).
(91.) Id. at 202.
(92.) Id. at 203. For a discussion on the prohibition of recovery of non-pecuniary damages for a maritime wrongful death, see supra Part II.
(93.) Yamaha, 516 U.S. at 202.
(94.) Id. at 202.
(95.) See Spencer, supra note 24, at 701-02.
(96.) Yamaha, 516 U.S. at 205.
(97.) Id at 205 n.2.
(99.) See In re Goose Creek Trawlers, Inc., 972 F. Supp. 946 (E.D.N.C. 1997); Savoie v. Chevron Texaco, 2005 WL 2036740 (E.D.La. July 22, 2005); In re Stone Energy Corp., 2003 WL 21730621 (E.D. La. July 24, 2003). This so-called definition will be referred to as the "introductory statement" because it is more of a statement than a definition.
(100.) Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 196, 202 (1996).
(101.) See generally In re Goose Creek Trawlers, Inc., supra note 99, at 950; Savoie, supra note 99, at 3-4.
(102.) In re Goose Creek Trawlers, Inc., 972 F. Supp. 946, 950 (E.D.N.C. 1997).
(104.) 304 U.S. 144, 153 n.4 (1938). For a more in depth discussion concerning the doctrine of strict scrutiny, see generally Richard FI. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267 (2007).
(105.) 323 U.S. 214(1944).
(106.) See CSX Transp., Inc. v. Alabama Dep't of Revenue, 131 S. Ct. 1101, 1113 (2011); Hoy v. Incorporated Village of Bayville, 2011 WL 679907, at *10 (E.D.N.Y. Feb. 25. 2011).
(107.) CSX, 131 S. Ct. at 1113.
(108.) 33 U.S.C. [section] 902(3) (2006); see also Spencer, supra note 24, at 701.
(109.) See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 196, 215 (1996); see also Miles v. Apex Marine Corp., 498 U.S. 19, 31 (1990).
(110.) See Spencer, supra note 24, at 694-95.
(111.) 46 U.S.C. [section] 30302 (2006). Moragne v. States Marine Lines, Inc., 398 U.S. 375, 397-98 (1970); see also Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573, 587-88 (1974); Motts v. M/V Green Wave, 210 F.3d 565, 569-70 (5th Cir. 2000).
(112.) Moragne, 398 U.S. at 409.
(113.) Id. at 397-98; see also Tungus v. Skovgaard, 358 U.S. 588, 598(1959).
(114.) See Moragne, 398 U.S. at 397-98; see also Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 196, 215-16(1996).
(115.) Moragne, 398 U.S. at 402.
(116.) Id. at 408.
(117.) 466 F.2d 159, 165 (4th Cir. 1972).
(118.) Swaim, supra note 57, at 191-92. See also Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Jensen may be best known for explicating the constitutional requirement of uniformity in the maritime law. Id. at 216.
(119.) Greene, 466 F.2d at 167-68.
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|Author:||Krielow, Kendall J.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Mar 22, 2011|
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