Jury instructions - personal injury, maritime employees - Judge Hornby - 2008 July 10
Maritime Personal Injury
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TULANE UNIVERSITY LAW SCHOOL SUMMER SESSION RHODES, GREECE 2016 MARITIME PERSONAL INJURY Honorable John W. deGravelles United States District Judge Louisiana Middle District 777 Florida Street Suite 355 Baton Rouge, LA 70801 Telephone: 225/389-3568 LA Bar Roll No.: 4808
Transcript of Maritime Personal Injury
TULANE UNIVERSITYLAW SCHOOL
SUMMER SESSIONRHODES, GREECE
2016
MARITIME PERSONALINJURY
Honorable John W. deGravellesUnited States District Judge
Louisiana Middle District777 Florida Street
Suite 355Baton Rouge, LA 70801
Telephone: 225/389-3568LA Bar Roll No.: 4808
MARITIME TORTS:THE LAW OF SEAMEN, MARITIME PERSONAL INJURY AND DEATH
Table of Contents
I. INTRODUCTION/OVERVIEW
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Historical Roots and Development of Maritime Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Overview of Remedies in American Maritime Tort Law. . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Maritime Jurisdiction Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Article III, §§ 1 and 2, United States Constitution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
28 U.S.C. § 1333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Jurisdiction and Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
American Dredging Company v. Miller, 114 S.Ct. 981 (1994). . . . . . . . . . . . . . . . . . . . . 3
3. Maritime Tort Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
46 U.S.C. § 740. Admiralty Extension Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,115 S.Ct. 1043 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. SEAMAN STATUS
A. "Vessel". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Lozeman v. City of Riviera Beach, Florida, 133 S. Ct. 735 (2013). . . . . . . . . . . . . . . . . . . . . . . 13
B. Photographs and Diagrams of Various Kinds of Drillingand Related Vessels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. "Fleet of Vessels". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Harbor Tug and Barge Co. v. Papai, 117 S.Ct. 1538 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
i
Wisner v. Professional Divers of New Orleans, 731 So.2d 200 (La. 1999).. . . . . . . . . . . . . . . . 27
D. "In Navigation". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Desper v. Starved Rock Ferry Co., 72 S.Ct. 216 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995), Section III only.. . . . . . . . . . . . . . . . . . . . . . . . 32
E. Significant Employment Relationship with Vessel orFleet of Vessels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
F. Contributing to Function of Vessel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
McDermott Int'l., Inc. v. Wilander, 111 S.Ct. 807 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
G. "Pseudo-Seaman" or Seaman Pro Hac Vice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
III. SEAMEN'S REMEDIES
A. Introduction/Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
The Osceola, 23 S.Ct. 483 (1903). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
B. Maintenance and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Koistinen v. American Export Lines, Inc., 194 Misc. 942; 83 N.Y.S.2d 297;1948 N.Y. Misc. LEXIS 3334 (1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Notes: Injuries on Land and “Service of the Ship”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Jefferson v. Baywater Drilling, LLC, 2015 WL 365526 (E.D. La. 2015). . . . . . . . . . . . . . . . . . 52
Johnson v. Cenac Towing, Inc., 544 F. 3d 296 (5 Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 56th
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Farrell v. United States, 69 S.Ct. 707 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Vella v. Ford Motor Co., 95 S.Ct. 1381 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ii
Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009).. . . . . . . . . . . . . . . . . . . . . . . 64
C. Unseaworthiness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Mitchell v. Trawler Racer, Inc., 80 S.Ct. 926 (1960).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Usner v. Luckenbach Overseas Corp., 91 S.Ct. 514 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
D. Jones Act - Substance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
The Jones Act, 46 U.S.C. §§ 30104-30106 (formerly 46 U.S.C. § 688). . . . . . . . . . . . . . . . . . . . 80
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Ferguson v. Moore-McCormack Lines, Inc., 77 S.Ct. 457 (1957). . . . . . . . . . . . . . . . . . . . . . . 80
Kernan v. American Dredging Co., 78 S.Ct. 394 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5 Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . 84th
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
IV. TORT REMEDIES UNDER LHWCA
A. Status Under LHWCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
33 USC § 902(1) - (3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
33 USC § 903 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
33 USC § 905 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
33 USC § 933(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Northeast Marine Terminal Co., Inc. v. Caputo, 97 S.Ct. 2348 (1977). . . . . . . . . . . . . . . . . . . 92
Director, Office of Workers' Compensation Programs, United States Departmentof Labor v. Perini North River Associates, 103 S.Ct. 634 (1983). . . . . . . . . . . . . . . . . . . . . . . . 98
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
iii
B. Tort Remedies Under LHWCA Against Vessel Owner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
33 USC § 905(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Seas Shipping Co., Inc. v. Sieracki, 66 S.Ct. 872 (1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Scindia Steam Navigation Co., Ltd. v. De Los Santos, 101 S.Ct. 1614 (1981). . . . . . . . . . . . . 109
C. Tort Remedies Under LHWCA Against Employer Which Is Vessel Owner. . . . . . . . . . . . 115
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Pichoff v. Bisso Towboat Co., Inc., 748 F.2d 300 (5 Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . 116th
D. Tort Remedies Under LHWCA Against Third Persons.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
33 U.S.C. § 933(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
E. Miscellaneous Issues Under LHWCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Note: Contribution and Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
V. PLATFORM AND OTHER WORKERS
A. Outer Continental Shelf Lands Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
33 U.S.C. § 1333(a), (d) and (f) Laws and Regulations Governing Lands. . . . . . . . . . . . . . . . . 120
B. Platform Workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Rodrigue v. Aetna Casualty and Surety Co., 89 S.Ct. 1835 (1969).. . . . . . . . . . . . . . . . . . . . . 121
Alleman v. Omni Energy Services Corp., 580 F.3d 280 (5 Cir. 2009).. . . . . . . . . . . . . . . . . . 125th
33 U.S.C. § 1333(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Note: RE: Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012). . . . . . . . . . . 127
33 U.S.C. § 1349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
C. "Other" Workers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Green v. Vermilion Corp., 144 F.3d 332 (5 Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128th
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VI. GENERAL MARITIME TORT LAW
A. Negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Kermarec v. Compagnie Generale Transatlantique, 79 S.Ct. 406 (1959). . . . . . . . . . . . . . . . 134
B. Products Liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
East River Steamship Corp. v. TransAmerica Delaval, Inc., 106 S.Ct. 2295 (1986). . . . . . . . 136
VII. MARITIME DEATH ACTIONS
A. Introduction/Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
B. Death on the High Seas Act (46 U.S.C. §§ 30302 - 30308,formerly 46 U.S.C. §§ 761-766). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Offshore Logistics, Inc. v. Tallentire, 106 S.Ct. 2485 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . 143
Note: Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Mobil Oil Corp. v. Higginbotham, 98 S.Ct. 2010 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
C. Jones Act Wrongful Death Cause of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
D. General Maritime Causes of Action for Wrongful Death. . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Moragne v. States Marine Lines, Inc., 90 S.Ct. 1772 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . 150
Miles v. Apex Marine Corp., 110 S.Ct. 1295 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
E. Application of State Death Actions in Maritime Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Yamaha Motor Corp. U.S.A. v. Calhoun, 116 S.Ct. 619 (1996). . . . . . . . . . . . . . . . . . . . . . . . 156
v
VIII. DAMAGES
A. Special Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Exxon Shipping Company v. Baker, 128 S.Ct. 2605 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Cooper Stevedoring Co., Inc. v. Fritz Kopke, Inc., 94 S.Ct. 2174 (1974). . . . . . . . . . . . . . . . . 180
Edmonds v. Compagnie Generale Transatlantique, 99 S.Ct. 2753 (1979).. . . . . . . . . . . . . . . 183
McDermott, Inc. v. AmClyde, 114 S.Ct. 1461 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
28 U.S.C. § 1961 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
IX. PROCEDURAL QUESTIONS
A. Federal vs. State Court; “Saving to Suitors”; Rule 9(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
28 U.S.C. § 1333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
B. Jury Trial; FRCP Rule 9(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Rule 9(h). Pleading Special Matters - Admiralty and Maritime Claims. . . . . . . . . . . . . . . . . . . 191
Fitzgerald v. United States Lines Co., 83 S.Ct. 1646 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . 192
C. Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Bourgeois v. Weber Marine, LLC, 2015 WL 235240 (M.D. La. 2015). . . . . . . . . . . . . . . . . . . 193
46 U.S.C. § 763a. Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
X. PUTTING IT ALL TOGETHER
deGravelles, John W. and J. Neale deGravelles, “THE DEEPWATER HORIZON RIG DISASTER: ISSUES
OF PERSONAL INJURY AND DEATH,” Tulane Law Review, Volume 85, Number 4, March 2011, 1075. . 199
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TULANE LAW SCHOOL - RHODOS IMaritime Personal Injury and Death
May-June, 2016READING ASSIGNMENTS
Day 1, Monday, May 23, 2016(for Day 2, Tuesday, May 24, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-17
Day 2, Tuesday, May 24, 2016(for Day 3, Wednesday, May 25, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-33
Day 3, Wednesday, May 25, 2016(for Day 4, Thursday, May 26, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-51
Day 4, Thursday, May 26, 2016(for Day 5, Friday, May 27, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52-73
Day 5, Friday, May 27, 2016(for Day 6, Monday, May 30, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-92
Day 6, Monday, May 30, 2016(for Day 7, Tuesday, May 31, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93-114
Day 7, Tuesday, May 31, 2016(for Day 8, Wednesday, June 1, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115-133
Day 8, Wednesday, June 1, 2016(for Day 9, Thursday, June 2, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134-152
Day 9, Thursday, June 2, 2016 (for Day 10, Friday, June 3, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152-159
Day 10, Friday, June 3, 2016(for Day 11, Monday, June 6, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159-180
Day 11, Monday, June 6, 2016(for Day 12, Tuesday, June 7, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180-198
Day 12, Tuesday, June 7, 2016(for Day 13, Wednesday, June 8, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Day 13, Wednesday, June 8, 2016(for Day 14, Thursday, June 9, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXAM - Friday, June 10, 2016
NOTE
All materials reproduced from MARITIME LAW DESKBOOK by Charles M. Davis are reprinted withpermission of Compass Publishing Company, Seattle, WA.
All quoted text accompanying photographs of drilling rigs and platforms is reprinted with permission ofthe Petroleum Extension Service (PETEX), The University of Texas at Austin, Austin, TX.
MARITIME TORTS:THE LAW OF SEAMEN,
MARITIME PERSONAL INJURY AND DEATH
I. INTRODUCTION/OVERVIEW
A. Introduction
1. Historical Roots and Development of Maritime Law
Legal historians believe that a highly developed system of maritime law existed in ancient times andcentered around the basin of the Mediterranean Sea. "In the Hellenistic period, the island of Rhodes and theCity of Alexandria were noted centers of maritime activity and law. The Greek maritime law was basedupon constantly recurring customs and transactions between buyers, sellers, shipowners, crews andbankers."1
The Rhodian Sea Code is one of the earliest maritime codes. Some scholars contend that despite itsname, the Rhodian Sea Code was of Byzantine, not Rhodian, origin. While there may not have been a2
codification of maritime law by the Rhodians, scholars agree that Rhodes was a great maritime center andits influence in the area of maritime law was great. "It is interesting that those who compiled the Byzantinemaritime code in the eighth century A.D. felt impelled to name it after Rhodes to add to its authority."3
Special courts sat in Mediterranean port towns to judge disputes arising among seafaring people. Thejudgments in individual cases were eventually recorded and customary rules were codified. One of these4
codes was the Laws of Oleron which were introduced into England by Richard I upon his return from theHoly Land. This is of special importance to maritime students in the United States since much of our5
maritime law is derived from English law.
Admiralty courts originated in England during the reign of Edward III. The Admiral was the highestranking naval officer whose authority came directly from the sovereign. The original jurisdiction of theAdmiral was of a disciplinary nature over the crews of the vessels under his command. This jurisdiction wasexpanded to include torts and offenses on the high seas and in ports within the ebb and flow of the tide, as
Thomas J. Schoenbaum, ADMIRALTY AND MARITIME LAW, 4 Ed., Vol. 1, pp. 3-41 th
(West, A Thomson Business, St. Paul, MN 2004).
Id. at 4-5.2
Id. at 6.3
Grant Gilmore, Charles L. Black, Jr., THE LAW OF ADMIRALTY, 2 Ed., p. 5 (The4 nd
Foundation Press, Inc., Mineola, NY 1975).
Robert Force, Martin J. Norris, THE LAW OF SEAMEN, 5 Ed., Vol. 1, p. 1-3 (West, A5 th
Thomson Business, St. Paul, MN 2003).
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well as over contracts within the Laws of Oleron.6
In the United States, the drafters of the Constitution felt there should be a system of nationaladmiralty courts and extended the judicial power of the United States to "all cases of admiralty and maritimejurisdiction."7
2. Overview of Remedies in American Maritime Tort Law
Maritime law has developed over the years to keep pace with the expansion of industry andcommerce in areas involving navigable waters. Particularly important in this regard has been the virtualexplosion of exploration and development of oil and gas on the sea bottoms off the coast of this continentand navigable waters in other areas of the world. From a time when maritime law was concerned primarilywith traditional "blue water" vessels, the seaman who "manned, reffed and steered" them as well as thelongshoremen who loaded and offloaded them, much of today's grist of maritime courts concerns theresolution of disputes growing from the injuries and deaths of a wide variety of workers who in many casesbear scant resemblance to the traditional blue water seaman.
Maritime personal injury law has always provided a remedy for non-workers such as passengers andinvitees injured aboard vessels. The law with respect to this class of plaintiffs is fairly straightforward:general maritime law which, in many instances, mirrors the common law. Hence such familiar concepts asthe duty to act with reasonable care, pure comparative negligence, and even the law of strict productsliability as it has been developed in common law courts are very much a part of the general maritime lawas it governs such non-workers. However, such cases are relatively few when compared to the judicial effortspent sifting and sorting various kinds of workers and determining the appropriate law which should applyto each.
The lines which have been drawn to distinguish between the various types of workers are often ill-defined. The remedies provided are often dramatically different depending upon which side of this line amaritime worker is ultimately found to fall. Much of the substance of maritime law and thus much of theinformation found in these course materials concerns itself with the status of maritime workers and the testswhich have developed (and continue to develop) to determine the status of these workers. Is the potentialplaintiff a seaman, a longshoreman, a platform worker, a land-based worker, a "pseudo-seaman"? What lawapplies to each? There is perhaps no other area of the law where status determination is so difficult and sooutcome-determinative. The maritime lawyer must avoid becoming lost at sea in these often turbulentwaters, and these materials will hopefully help in the charting of an accurate course to safe port.
In doing so, these materials will address maritime jurisdiction and the foundation for the maritimetort law, as well as the major statutory and jurisprudential remedies given to the various classes of maritimetort litigants. These include remedies available to seamen: the right to maintenance and cure, the right torecover for injuries caused by an unseaworthy vessel, the Jones Act and various wage remedies. Tort andworkers' compensation remedies afforded offshore platform workers, longshoremen, ship repairers and otherkinds of maritime workers, as well as the tort remedies available to non-workers will also be covered. Thedefenses available to maritime defendants will be reviewed, as will procedural and practice pointers
Id. at 1-4.6
U.S. Constitution Art. III § 2.7
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applicable to all maritime litigants.
B. Jurisdiction
1. Maritime Jurisdiction Generally
Article III.
Section. 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferiorCourts as the Congress may from time to time ordain and establish....
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Lawsof the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affectingAmbassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; toControversies to which the United States shall be a Party; to Controversies between two or more States; between aState and Citizens of another State; between Citizens of different States; between Citizens of the same State claimingLands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens orSubjects. * * *
28 U.S.C.A. § 1333
§ 1333. Admiralty, maritime and prize cases
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 whichthey are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
2. Jurisdiction and Choice of Law
114 S.Ct. 981
AMERICAN DREDGING COMPANYv.
William Robert MILLER.No. 91-1950.
Argued Nov. 9, 1993.Decided Feb. 23, 1994.
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether, in admiralty casesfiled in a state court under the Jones Act, 46 U.S.C.App. §688, and the "saving to suitors clause," 28 U.S.C. § 1333(1),federal law pre-empts state law regarding the doctrine offorum non conveniens.
IRespondent William Robert Miller, a resident ofMississippi, moved to Pennsylvania to seek employment in1987. He was hired by petitioner American DredgingCompany, a Pennsylvania corporation with its principalplace of business in New Jersey, to work as a seaman aboardthe MV John R., a tug operating on the Delaware River. Inthe course of that employment respondent was injured. After receiving medical treatment in Pennsylvania and NewYork, he returned to Mississippi where he continued to betreated by local physicians.
On December 1, 1989, respondent filed this action in theCivil District Court for the Parish of Orleans, Louisiana. He sought relief under the Jones Act, which authorizes aseaman who suffers personal injury "in the course of hisemployment" to bring "an action for damages at law," 46U.S.C.App. § 688(a), and over which state and federal
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courts have concurrent jurisdiction. See Engel v.Davenport, 271 U.S. 33, 37, 46 S.Ct. 410, 412, 70 L.Ed. 813(1926). Respondent also requested relief under generalmaritime law for unseaworthiness, for wages, and formaintenance and cure. See McAllister v. MagnoliaPetroleum Co., 357 U.S. 221, 224, 78 S.Ct. 1201, 1203, 2L.Ed.2d 1272 (1958) (setting forth means of recoveryavailable to injured seaman).
The trial court granted petitioner's motion to dismiss theaction under the doctrine of forum non conveniens, holdingthat it was bound to apply that doctrine by federal maritimelaw. The Louisiana Court of Appeal for the Fourth Districtaffirmed. 580 So.2d 1091 (1991). The Supreme Court ofLouisiana reversed, holding that Article 123(C) of theLouisiana Code of Civil Procedure, which renders thedoctrine of forum non conveniens unavailable in Jones Actand maritime law cases brought in Louisiana state courts, isnot preempted by federal maritime law. 595 So.2d 615(1992). American Dredging Company filed a petition for awrit of certiorari, which we granted. 507 U.S. 1028, 113S.Ct. 1840, 123 L.Ed.2d 466 (1993).
II
The Constitution provides that the federal judicial power "shall extend ... to all Cases of admiralty and maritimeJurisdiction." U.S. Const., Art. III, § 2, cl. 1. Federal-courtjurisdiction over such cases, however, has never beenentirely exclusive. The Judiciary Act of 1789 provided:
"That the district courts shall have, exclusively of thecourts of the several States ... exclusive originalcognizance of all civil causes of admiralty and maritimejurisdiction ... within their respective districts as well asupon the high seas; saving to suitors, in all cases, theright of a common law remedy, where the common law iscompetent to give it. " § 9, 1 Stat. 76-77 (emphasisadded).
The emphasized language is known as the "saving to suitorsclause." This provision has its modern expression at 28U.S.C. § 1333(1), which reads (with emphasis added):
"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 whichthey are otherwise entitled. "
We have held it to be the consequence of exclusive federaljurisdiction that state courts "may not provide a remedy inrem for any cause of action within the admiraltyjurisdiction." Red Cross Line v. Atlantic Fruit Co., 264 U.S.109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582 (1924). An inrem suit against a vessel is, we have said, distinctively anadmiralty proceeding, and is hence within the exclusive
province of the federal courts. The Moses Taylor, 4 Wall.411, 431, 18 L.Ed. 397 (1867). In exercising in personamjurisdiction, however, a state court may " 'adopt suchremedies, and ... attach to them such incidents, as it sees fit'so long as it does not attempt to make changes in the'substantive maritime law.' " Madruga v. Superior Court ofCal., County of San Diego, 346 U.S. 556, 561, 74 S.Ct. 298,301, 98 L.Ed. 290 (1954) (quoting Red Cross Line, supra,264 U.S., at 124, 44 S.Ct., at 277). That proviso is violatedwhen the state remedy "works material prejudice to thecharacteristic features of the general maritime law orinterferes with the proper harmony and uniformity of thatlaw in its international and interstate relations." SouthernPacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529,61 L.Ed. 1086 (1917). The issue before us here is whetherthe doctrine of forum non conveniens is either a"characteristic feature" of admiralty or a doctrine whoseuniform application is necessary to maintain the "properharmony" of maritime law. We think it is neither.
A
Under the federal doctrine of forum non conveniens, "whenan alternative forum has jurisdiction to hear [a] case, andwhen trial in the chosen forum would 'establish ...oppressiveness and vexation to a defendant ... out of allproportion to plaintiff's convenience,' or when the 'chosenforum [is] inappropriate because of considerations affectingthe court's own administrative and legal problems,' the courtmay, in the exercise of its sound discretion, dismiss thecase," even if jurisdiction and proper venue are established. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct.252, 258, 70 L.Ed.2d 419 (1981) (quoting Koster v.(American) Lumbermens Mut. Casualty Co., 330 U.S. 518,524, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947)).
* * *In sum, the doctrine of forum non conveniens neitheroriginated in admiralty nor has exclusive application there. To the contrary, it is and has long been a doctrine of generalapplication. Louisiana's refusal to apply forum nonconveniens does not, therefore, work "material prejudice to[a] characteristic featur[e] of the general maritime law." Southern Pacific Co. v. Jensen, 244 U.S., at 216, 37 S.Ct.,at 529.
B.
Petitioner correctly points out that the decision here underreview produces disuniformity. As the Fifth Circuit notedin Ikospentakis v. Thalassic S. S. Agency, 915 F.2d 176, 179(1990), maritime defendants "have access to a forum nonconveniens defense in federal court that is not presentlyrecognized in Louisiana state courts." We must thereforeconsider whether Louisiana's rule "interferes with the properharmony and uniformity" of maritime law, Southern PacificCo. v. Jensen, supra, 244 U.S., at 216, 37 S.Ct., at 529.
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In The Lottawanna, 21 Wall. 558, 575, 22 L.Ed. 654 (1875),Justice Bradley, writing for the Court, said of the Article IIIprovision extending federal judicial power "to all Cases ofadmiralty and maritime Jurisdiction":
"One thing ... is unquestionable; the Constitution musthave referred to a system of law coextensive with, andoperating uniformly in, the whole country. It certainlycould not have been the intention to place the rules andlimits of maritime law under the disposal and regulationof the several States, as that would have defeated theuniformity and consistency at which the Constitutionaimed on all subjects of a commercial character affectingthe intercourse of the States with each other or withforeign states."
By reason of this principle, we disallowed in Jensen theapplication of state workers' compensation statutes toinjuries covered by the admiralty jurisdiction. Later, inKnickerbocker Ice Co. v. Stewart, 253 U.S. 149, 163-164,40 S.Ct. 438, 441, 64 L.Ed. 834 (1920), we held that noteven Congress itself could permit such application andthereby sanction destruction of the constitutionallyprescribed uniformity. We have also relied on theuniformity principle to hold that a State may not require thata maritime contract be in writing where admiralty lawregards oral contracts as valid, Kossick v. United Fruit Co.,365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961).
The requirement of uniformity is not, however, absolute. As Jensen itself recognized: "[I]t would be difficult, if notimpossible, to define with exactness just how far the generalmaritime law may be changed, modified, or affected by statelegislation. That this may be done to some extent cannot bedenied." 244 U.S., at 216, 37 S.Ct., at 529. A later casedescribes to what breadth this "some extent" extends:
"It is true that state law must yield to the needs of auniform federal maritime law when this Court findsinroads on a harmonious system [,] [b]ut this limitationstill leaves the States a wide scope. State-created liensare enforced in admiralty. State remedies for wrongfuldeath and state statutes providing for the survival ofactions ... have been upheld when applied to maritimecauses of action.... State rules for the partition and sale ofships, state laws governing the specific performance ofarbitration agreements, state laws regulating the effect ofa breach of warranty under contracts of maritimeinsurance--all these laws and others have been acceptedas rules of decision in admiralty cases, even, at times,when they conflicted with a rule of maritime law whichdid not require uniformity." Romero v. InternationalTerminal Operating Co., 358 U.S. 354, 373-374, 79 S.Ct.468, 480- 481, 3 L.Ed.2d 368 (1959) (footnotes omitted).
It would be idle to pretend that the line separatingpermissible from impermissible state regulation is readily
discernible in our admiralty jurisprudence, or indeed is evenentirely consistent within our admiralty jurisprudence.Compare Kossick, supra (state law cannot require provisionof maritime contract to be in writing), with Wilburn BoatCo. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368,99 L.Ed. 337 (1955) (state law can determine effect ofbreach of warranty in marine insurance policy). Happily, itis unnecessary to wrestle with that difficulty today. Wherever the boundaries of permissible state regulation maylie, they do not invalidate state rejection of forum nonconveniens, which is in two respects quite dissimilar fromany other matter that our opinions have held to be governedby federal admiralty law: it is procedural rather thansubstantive, and it is most unlikely to produce uniformresults.
* * *The judgment of the Supreme Court of Louisiana isAffirmed.
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3. Maritime Tort Jurisdiction
46 App. U.S.C.A. § 740
§ 740. Extension of admiralty and maritime jurisdiction; libel in rem or in personam; exclusive remedy;waiting period
The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury,to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done orconsummated on land.
In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practiceobtaining in cases where the injury or damage has been done and consummated on navigable water: Provided, Thatas to any suit against the United States for damage or injury done or consummated on land by a vessel on navigablewaters, the Public Vessels Act or Suits in Admiralty Act, as appropriate, shall constitute the exclusive remedy for allcauses of action arising after June 19, 1948, and for all causes of action where suit has not been hitherto filed underthe Federal Tort Claims Act: Provided further, That no suit shall be filed against the United States until there shallhave expired a period of six months after the claim has been presented in writing to the Federal agency owning oroperating the vessel causing the injury or damage.
115 S.Ct. 1043
JEROME B. GRUBART, INC.v.
GREAT LAKES DREDGE & DOCK COMPANY
CITY OF CHICAGOv.
GREAT LAKES DREDGE & DOCK COMPANYNos. 93-762, 93-1094.
Argued Oct. 12, 1994.Decided Feb. 22, 1995.
SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, andGINSBURG, JJ., joined. O'CONNOR, J., filed a concurringopinion, post, p. 1055. THOMAS, J., filed an opinionconcurring in the judgment, in which SCALIA, J., joined,post, p. 1055. STEVENS and BREYER, JJ., took no partin the decision of the cases.
On April 13, 1992, water from the Chicago River pouredinto a freight tunnel running under the river and thence intothe basements of buildings in the downtown Chicago Loop. Allegedly, the flooding resulted from events several monthsearlier, when respondent Great Lakes Dredge and DockCompany had used a crane, sitting on a barge in the rivernext to a bridge, to drive piles into the riverbed above thetunnel. The issue before us is whether a court of the UnitedStates has admiralty jurisdiction to determine and limit theextent of Great Lakes's tort liability. We hold this suit to bewithin federal admiralty jurisdiction.
I.
The complaint, together with affidavits subject to noobjection, alleges the following facts. In 1990, Great Lakesbid on a contract with petitioner city of Chicago to replacewooden pilings clustered around the piers of several bridgesspanning the Chicago River, a navigable waterway withinthe meaning of The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed.999 (1871). See Escanaba Co. v. Chicago, 107 U.S. 678,683, 2 S.Ct. 185, 188-189, 27 L.Ed. 442 (1883). The pilings(called dolphins) keep ships from bumping into the piers andso protect both. After winning the contract, Great Lakescarried out the work with two barges towed by a tug. Onebarge carried pilings; the other carried a crane that pulledout old pilings and helped drive in new ones.
In August and September 1991, Great Lakes replaced thepilings around the piers projecting into the river andsupporting the Kinzie Street Bridge. After towing thecrane-carrying barge into position near one of the piers,Great Lakes's employees secured the barge to the riverbedwith spuds, or long metal legs that project down from thebarge and anchor it. The workers then used the crane onthe barge to pull up old pilings, stow them on the otherbarge, and drive new pilings into the riverbed around thepiers. About seven months later, an eddy formed in theriver near the bridge as the collapsing walls or ceiling of afreight tunnel running under the river opened the tunnel toriver water, which flowed through to flood buildings in theLoop.
After the flood, many of the victims brought actions in statecourt against Great Lakes and the city of Chicago, claimingthat in the course of replacing the pilings Great Lakes hadnegligently weakened the tunnel structure, which Chicago
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(its owner) had not properly maintained. Great Lakes thenbrought this lawsuit in the United States District Court,invoking federal admiralty jurisdiction. Count I of thecomplaint seeks the protection of the Limitation of VesselOwner's Liability Act (Limitation Act), 46 U.S.C.App. §181 et seq., a statute that would, in effect, permit theadmiralty court to decide whether Great Lakes committed atort and, if so, to limit Great Lakes's liability to the value ofthe vessels (the tug and two barges) involved if the tort wascommitted "without the privity or knowledge" of the vessels'owner, 46 U.S.C.App. § 183(a). Counts II and III of GreatLakes's complaint ask for indemnity and contribution fromthe city for any resulting loss to Great Lakes.
The city, joined by petitioner Jerome B. Grubart, Inc., oneof the state-court plaintiffs, filed a motion to dismiss thissuit for lack of admiralty jurisdiction. Fed.Rule Civ.Proc.12(b)(1). The District Court granted the motion, the SeventhCircuit reversed, Great Lakes Dredge & Dock Co. v.Chicago, 3 F.3d 225 (1993), and we granted certiorari, 510U.S. 1108, 114 S.Ct. 1047, 127 L.Ed.2d 370 (1994). Wenow affirm.
II.
The parties do not dispute the Seventh Circuit's conclusionthat jurisdiction as to Counts II and III (indemnity andcontribution) hinges on jurisdiction over the Count I claim. See 3 F.3d, at 231, n. 9; see also 28 U.S.C. § 1367 (1988ed., Supp. V) (supplemental jurisdiction); Fed.RulesCiv.Proc. 14(a) and (c) (impleader of third parties). Thus,the issue is simply whether or not a federal admiralty courthas jurisdiction over claims that Great Lakes's faultyreplacement work caused the flood damage.
A.
A federal court's authority to hear cases in admiralty flowsinitially from the Constitution, which "extend[s]" federaljudicial power "to all Cases of admiralty and maritimeJurisdiction." U.S. Const., Art. III, § 2. Congress hasembodied that power in a statute giving federal districtcourts "original jurisdiction ... of ... [a]ny civil case ofadmiralty or maritime jurisdiction...." 28 U.S.C. § 1333(1).
The traditional test for admiralty tort jurisdiction asked onlywhether the tort occurred on navigable waters. If it did,admiralty jurisdiction followed; if it did not, admiraltyjurisdiction did not exist. See, e.g., Thomas v. Lane, 23F.Cas. 957, 960 (No. 13902) (CC Me. 1813) (Story, J., onCircuit). This ostensibly simple locality test wascomplicated by the rule that the injury had to be "wholly"sustained on navigable waters for the tort to be withinadmiralty. The Plymouth, 3 Wall. 20, 34, 18 L.Ed. 125(1866) (no jurisdiction over tort action brought by the ownerof warehouse destroyed in a fire that started on board a shipdocked nearby). Thus, admiralty courts lacked jurisdiction
over, say, a claim following a ship's collision with a pierinsofar as it injured the pier, for admiralty law treated thepier as an extension of the land. Martin v. West, 222 U.S.191, 197, 32 S.Ct. 42, 43, 56 L.Ed. 159 (1911); ClevelandTerminal & Valley R. Co. v. Cleveland S.S. Co., 208 U.S.316, 319, 28 S.Ct. 414, 415, 52 L.Ed. 508 (1908).
This latter rule was changed in 1948, however, whenCongress enacted the Extension of Admiralty JurisdictionAct, 62 Stat. 496. The Act provided that
"[t]he admiralty and maritime jurisdiction of the UnitedStates shall extend to and include all cases of damage orinjury, to person or property, caused by a vessel onnavigable water, notwithstanding that such damage orinjury be done or consummated on land." 46 U.S.C.App.§ 740.
The purpose of the Act was to end concern over thesometimes confusing line between land and water, byinvesting admiralty with jurisdiction over "all cases" wherethe injury was caused by a ship or other vessel on navigablewater, even if such injury occurred on land. See, e.g.,Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 209-210,83 S.Ct. 1185, 1187-1188, 10 L.Ed.2d 297 (1963); Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 260,93 S.Ct. 493, 500-501, 34 L.Ed.2d 454 (1972).
After this congressional modification to gather the odd caseinto admiralty, the jurisdictional rule was qualified again inthree decisions of this Court aimed at keeping a differentclass of odd cases out. In the first case, Executive Jet,supra, tort claims arose out of the wreck of an airplane thatcollided with a flock of birds just after takeoff on a domesticflight and fell into the navigable waters of Lake Erie. Weheld that admiralty lacked jurisdiction to consider theclaims. We wrote that "a purely mechanical application ofthe locality test" was not always "sensible" or "consonantwith the purposes of maritime law," id., at 261, 93 S.Ct., at501, as when (for example) the literal and universalapplication of the locality rule would require admiraltycourts to adjudicate tort disputes between collidingswimmers, id., at 255, 93 S.Ct., at 498. We held that"claims arising from airplane accidents are not cognizablein admiralty" despite the location of the harm, unless "thewrong bear[s] a significant relationship to traditionalmaritime activity." Id., at 268, 93 S.Ct., at 504.
The second decision, Foremost Ins. Co. v. Richardson, 457U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), dealt withtort claims arising out of the collision of two pleasure boatsin a navigable river estuary. We held that admiralty courtshad jurisdiction, id., at 677, 102 S.Ct., at 2659, even thoughjurisdiction existed only if "the wrong" had "a significantconnection with traditional maritime activity," id., at 674,102 S.Ct., at 2658. We conceded that pleasure boatsthemselves had little to do with the maritime commerce
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lying at the heart of the admiralty court's basic work, id., at674-675, 102 S.Ct., at 2658-2659, but we nonetheless foundthe necessary relationship in
"[t]he potential disruptive impact [upon maritimecommerce] of a collision between boats on navigablewaters, when coupled with the traditional concern thatadmiralty law holds for navigation ...," id., at 675, 102S.Ct., at 2658.
In the most recent of the trilogy, Sisson v. Ruby, 497 U.S.358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), we held thata federal admiralty court had jurisdiction over tort claimsarising when a fire, caused by a defective washer/dryeraboard a pleasure boat docked at a marina, burned the boat,other boats docked nearby, and the marina itself. Id., at 367,110 S.Ct., at 2898. We elaborated on the enquiryexemplified in Executive Jet and Foremost by focusing ontwo points to determine the relationship of a claim to theobjectives of admiralty jurisdiction. We noted, first, thatthe incident causing the harm, the burning of docked boatsat a marina on navigable waters, was of a sort "likely todisrupt [maritime] commercial activity." 497 U.S., at 363,110 S.Ct., at 2896. Second, we found a "substantialrelationship" with "traditional maritime activity" in the kindof activity from which the incident arose, "the storage andmaintenance of a vessel ... on navigable waters." Id., at365-367, 110 S.Ct., at 2897-2898.
After Sisson, then, a party seeking to invoke federaladmiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) overa tort claim must satisfy conditions both of location and ofconnection with maritime activity. A court applying thelocation test must determine whether the tort occurred onnavigable water or whether injury suffered on land wascaused by a vessel on navigable water. 46 U.S.C.App. §740. The connection test raises two issues. A court, first,must "assess the general features of the type of incidentinvolved," 497 U.S., at 363, 110 S.Ct., at 2896, to determinewhether the incident has "a potentially disruptive impact onmaritime commerce," id., at 364, n. 2, 110 S.Ct., at 2896, n.2. Second, a court must determine whether "the generalcharacter" of the "activity giving rise to the incident" showsa "substantial relationship to traditional maritime activity." Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.We now apply the tests to the facts of this suit.
B.
The location test is, of course, readily satisfied. If GreatLakes caused the flood, it must have done so by weakeningthe structure of the tunnel while it drove in new pilings orremoved old ones around the bridge piers. The weakeningpresumably took place as Great Lakes's workers lifted andreplaced the pilings with a crane that sat on a barge stationedin the Chicago River. The place in the river where the bargesat, and from which workers directed the crane, is in the
"navigable waters of the United States." Escanaba Co., 107U.S., at 683, 2 S.Ct., at 188-189. Thus, if Great Lakescommitted a tort, it must have done it while on navigablewaters.
It must also have done it "by a vessel." Even though thebarge was fastened to the river bottom and was in use as awork platform at the times in question, at other times it wasused for transportation. See 3 F.3d, at 229. Petitioners donot here seriously dispute the conclusion of each courtbelow that the Great Lakes barge is, for admiralty tortpurposes, a "vessel." The fact that the pile driving wasdone with a crane makes no difference under the locationtest, given the maritime law that ordinarily treats an"appurtenance" attached to a vessel in navigable waters aspart of the vessel itself. See, e.g., Victory Carriers, Inc. v.Law, 404 U.S. 202, 210-211, 92 S.Ct. 418, 424-425, 30L.Ed.2d 383 (1971); Gutierrez, 373 U.S., at 209-210, 83S.Ct., at 1187-1188.
Because the injuries suffered by Grubart and the other floodvictims were caused by a vessel on navigable water, thelocation enquiry would seem to be at an end,"notwithstanding that such damage or injury [was] done orconsummated on land." 46 U.S.C.App. § 740. BothGrubart and Chicago nonetheless ask us to subject theExtension Act to limitations not apparent from its text.While they concede that the Act refers to "all cases ofdamage or injury," they argue that "all" must not meanliterally every such case, no matter how great the distancebetween the vessel's tortious activity and the resulting harm. They contend that, to be within the Act, the damage mustbe close in time and space to the activity that caused it: thatit must occur "reasonably contemporaneously" with thenegligent conduct and no "farther from navigable watersthan the reach of the vessel, its appurtenances and cargo." Brief for Petitioner in No. 93-1094, p. 45 (City Brief). Forauthority, they point to this Court's statement in Gutierrez,supra, that jurisdiction is present when the "impact" of thetortious activity "is felt ashore at a time and place notremote from the wrongful act." Id., at 210, 83 S.Ct., at1188.
The demerits of this argument lie not only in its want oftextual support for its nonremoteness rule, but in itsdisregard of a less stringent but familiar proximity conditiontied to the language of the statute. The Act uses the phrase"caused by," which more than one Court of Appeals hasread as requiring what tort law has traditionally called"proximate causation." See, e.g., Pryor v. AmericanPresident Lines, 520 F.2d 974, 979 (CA4 1975), cert.denied, 423 U.S. 1055, 96 S.Ct. 787, 46 L.Ed.2d 644 (1976); Adams v. Harris County, 452 F.2d 994, 996-997 (CA51971), cert. denied, 406 U.S. 968, 92 S.Ct. 2414, 32 L.Ed.2d667 (1972). This classic tort notion normally eliminates thebizarre, cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339,162 N.E. 99 (1928), and its use should obviate not only the
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complication but even the need for further temporal orspatial limitations. Nor is reliance on familiar proximatecausation inconsistent with Gutierrez, which used itsnonremote language, not to announce a special test, butsimply to distinguish its own facts (the victim havingslipped on beans spilling from cargo containers beingunloaded from a ship) from what the Court called "[v]ariousfar-fetched hypotheticals," such as injury to someoneslipping on beans that continue to leak from the containersafter they had been shipped from Puerto Rico to awarehouse in Denver. 373 U.S., at 210, 83 S.Ct., at 1188. See also Victory Carriers, supra, 404 U.S., at 210-211, 92S.Ct., at 424-425.
The city responds by saying that, as a practical matter, theuse of proximate cause as a limiting jurisdictional principlewould undesirably force an admiralty court to investigatethe merits of the dispute at the outset of a case when itdetermined jurisdiction. The argument, of course, assumesthat the truth of jurisdictional allegations must always bedetermined with finality at the threshold of litigation, butthat assumption is erroneous. Normal practice permits aparty to establish jurisdiction at the outset of a case bymeans of a nonfrivolous assertion of jurisdictional elements,see, e.g., Bray v. Alexandria Women's Health Clinic, 506U.S. 263, 285, 113 S.Ct. 753, 768, 122 L.Ed.2d 34 (1993); Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90L.Ed. 939 (1946), and any litigation of a contestedsubject-matter jurisdictional fact issue occurs incomparatively summary procedure before a judge alone (asdistinct from litigation of the same fact issue as an elementof the cause of action, if the claim survives the jurisdictionalobjection). See 2A J. Moore & J. Lucas, Moore's FederalPractice ¶ 12.07[2.--1] (2d ed. 1994); 5A C. Wright & A.Miller, Federal Practice and Procedure § 1350 (2d ed. 1990). There is no reason why this should not be just as true forproximate causation as it is for the maritime nature of thetortfeasor's activity giving rise to the incident. See Sisson,497 U.S., at 365, 110 S.Ct., at 2897. There is no need orjustification, then, for imposing an additional nonremotenesshurdle in the name of jurisdiction.
C.
We now turn to the maritime connection enquiries, the firstbeing whether the incident involved was of a sort with thepotential to disrupt maritime commerce. In Sisson, wedescribed the features of the incident in general terms as "afire on a vessel docked at a marina on navigable waters," id.,at 363, 110 S.Ct., at 2896, and determined that such anincident "plainly satisf[ied]" the first maritime connectionrequirement, ibid., because the fire could have "spread tonearby commercial vessels or ma[d]e the marinainaccessible to such vessels" and therefore "[c]ertainly" hada "potentially disruptive impact on maritime commerce," id.,at 362, 110 S.Ct., at 2896. We noted that this first prongwent to potential effects, not to the "particular facts of the
incident," noting that in both Executive Jet and Foremost wehad focused not on the specific facts at hand but on whetherthe "general features" of the incident were "likely to disruptcommercial activity." 497 U.S., at 363, 110 S.Ct., at 2896.
The first Sisson test turns, then, on a description of theincident at an intermediate level of possible generality. Tospeak of the incident as "fire" would have been too generalto differentiate cases; at the other extreme, to havedescribed the fire as damaging nothing but pleasure boatsand their tie-up facilities would have ignored, among otherthings, the capacity of pleasure boats to endangercommercial shipping that happened to be nearby. Werejected both extremes and instead asked whether theincident could be seen within a class of incidents that posedmore than a fanciful risk to commercial shipping.
Following Sisson, the "general features" of the incident atissue here may be described as damage by a vessel innavigable water to an underwater structure. Socharacterized, there is little question that this is the kind ofincident that has a "potentially disruptive impact onmaritime commerce." As it actually turned out in this suit,damaging a structure beneath the riverbed could lead to adisruption in the water course itself, App. 33 (eddy formedabove the leak); and, again as it actually happened,damaging a structure so situated could lead to restrictions onthe navigational use of the waterway during required repairs. See Pet. for Cert. in No. 93-1094, p. 22a (District Courtfound that after the flood "[t]he river remained closed forover a month," "[r]iver traffic ceased, several commuterferries were stranded, and many barges could not enter theriver system ... because the river level was lowered to aidrepair efforts"). Cf. Pennzoil Producing Co. v. OffshoreExpress, Inc., 943 F.2d 1465 (CA5 1991) (admiralty suitwhen vessel struck and ruptured gas pipeline and gasexploded); Marathon Pipe Line Co. v. Drilling RigRowan/Odessa, 761 F.2d 229, 233 (CA5 1985) (admiraltyjurisdiction when vessel struck pipeline, "a fixed structureon the seabed"); Orange Beach Water, Sewer, and FireProtection Authority v. M/V Alva, 680 F.2d 1374 (CA111982) (admiralty suit when vessel struck underwaterpipeline).
In the second Sisson enquiry, we look to whether the generalcharacter of the activity giving rise to the incident shows asubstantial relationship to traditional maritime activity. Weask whether a tortfeasor's activity, commercial ornoncommercial, on navigable waters is so closely related toactivity traditionally subject to admiralty law that thereasons for applying special admiralty rules would apply inthe suit at hand. Navigation of boats in navigable watersclearly falls within the substantial relationship, Foremost,457 U.S., at 675, 102 S.Ct., at 2658-2659; storing them ata marina on navigable waters is close enough, Sisson, supra,497 U.S., at 367, 110 S.Ct., at 2898; whereas in flying anairplane over the water, Executive Jet, 409 U.S., at 270-271,
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93 S.Ct., at 505-506, as in swimming, id., at 255-256, 93S.Ct., at 498-499, the relationship is too attenuated.
On like reasoning, the "activity giving rise to the incident"in this suit, Sisson, supra, 497 U.S., at 364, 110 S.Ct., at2897, should be characterized as repair or maintenance workon a navigable waterway performed from a vessel.Described in this way, there is no question that the activityis substantially related to traditional maritime activity, forbarges and similar vessels have traditionally been engagedin repair work similar to what Great Lakes contracted toperform here. See, e.g., Shea v. Rev-Lyn Contracting Co.,868 F.2d 515, 518 (CA1 1989) (bridge repair bycrane-carrying barge); Nelson v. United States, 639 F.2d469, 472 (CA9 1980) (Kennedy, J.) (repair of wavesuppressor from a barge); In re New York Dock Co., 61F.2d 777 (CA2 1932) (pile driving from crane-carryingbarge in connection with the building of a dock); In re P.Sanford Ross, Inc., 196 F. 921, 923-924 (EDNY 1912) (piledriving from crane-carrying barge close to water's edge),rev'd on other grounds, 204 F. 248 (CA2 1913); cf. In reThe V-14813, 65 F.2d 789, 790 (CA5 1933) ("There aremany cases holding that a dredge, or a barge with a piledriver, employed on navigable waters, is subject to maritimejurisdiction ... § 7.54"); Lawrence v. Flatboat, 84 F. 200(SD Ala.1897) (pile driving from crane-carrying barge inconnection with the erection of bulkheads), aff'd sub nom.Southern Log Cart & Supply Co. v. Lawrence, 86 F. 907(CA5 1898).
The city argues, to the contrary, that a proper application ofthe activity prong of Sisson would consider the city's ownalleged failure at properly maintaining and operating thetunnel system that runs under the river. City Brief 48-49. If this asserted proximate cause of the flood victims'injuries were considered, the city submits, its failure toresemble any traditional maritime activity would take thissuit out of admiralty.
The city misreads Sisson, however, which did not considerthe activities of the washer/dryer manufacturer, who waspossibly an additional tortfeasor, and whose activities werehardly maritime; the activities of Sisson, the boat owner,supplied the necessary substantial relationship to traditionalmaritime activity. Likewise, in Foremost, we said that"[b]ecause the 'wrong' here involves the negligent operationof a vessel on navigable waters, we believe that it has asufficient nexus to traditional maritime activity to sustainadmiralty jurisdiction...." 457 U.S., at 674, 102 S.Ct. at2658. By using the word "involves," we made it clear thatwe need to look only to whether one of the arguablyproximate causes of the incident originated in the maritimeactivity of a tortfeasor: as long as one of the putativetortfeasors was engaged in traditional maritime activity theallegedly wrongful activity will "involve" such traditionalmaritime activity and will meet the second nexus prong. Thus, even if we were to identify the "activity giving rise to
the incident" as including the acts of the city as well asGreat Lakes, admiralty jurisdiction would neverthelessattach. That result would be true to Sisson 's requirement ofa "substantial relationship" between the "activity giving riseto the incident" and traditional maritime activity. Sisson didnot require, as the city in effect asserts, that there be acomplete identity between the two. The substantialrelationship test is satisfied when at least one allegedtortfeasor was engaging in activity substantially related totraditional maritime activity and such activity is claimed tohave been a proximate cause of the incident.
Petitioners also argue that we might get a different resultsimply by characterizing the "activity" in question at adifferent level of generality, perhaps as "repair andmaintenance," or as "pile driving near a bridge." The cityis, of course, correct that a tortfeasor's activity can bedescribed at a sufficiently high level of generality toeliminate any hint of maritime connection, and if that wereproperly done Sisson would bar assertion of admiraltyjurisdiction. But to suggest that such hypergeneralizationought to be the rule would convert Sisson into a vehicle foreliminating admiralty jurisdiction. Although there isinevitably some play in the joints in selecting the right levelof generality when applying the Sisson test, the inevitableimprecision is not an excuse for whimsy. The test turns onthe comparison of traditional maritime activity to thearguably maritime character of the tortfeasor's activity in agiven case; the comparison would merely be frustrated byeliminating the maritime aspect of the tortfeasor's activityfrom consideration.
Grubart makes an additional claim that Sisson is being giventoo expansive a reading. If the activity at issue here isconsidered maritime related, it argues, then virtually "everyactivity involving a vessel on navigable waters" would be "atraditional maritime activity sufficient to invoke maritimejurisdiction." Grubart Brief 6. But this is not fatalcriticism. This Court has not proposed any radicalalteration of the traditional criteria for invoking admiraltyjurisdiction in tort cases, but has simply followed the lead ofthe lower federal courts in rejecting a location rule so rigidas to extend admiralty to a case involving an airplane, not avessel, engaged in an activity far removed from anythingtraditionally maritime. See Executive Jet, 409 U.S., at268-274, 93 S.Ct., at 504-506; see also Peytavin v.Government Employees Ins. Co., 453 F.2d 1121, 1127 (CA51972) (no jurisdiction over claim for personal injury bymotorist who was rear-ended while waiting for a ferry on afloating pontoon serving as the ferry's landing); Chapmanv. Grosse Pointe Farms, 385 F.2d 962 (CA6 1967) (noadmiralty jurisdiction over claim of swimmer who injuredhimself when diving off pier into shallow but navigablewater). In the cases after Executive Jet, the Court stressedthe need for a maritime connection, but found one in thenavigation or berthing of pleasure boats, despite the factsthat the pleasure boat activity took place near shore, where
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States have a strong interest in applying their own tort law,or was not on all fours with the maritime shipping andcommerce that has traditionally made up the business ofmost maritime courts. Sisson, 497 U.S., at 367, 110 S.Ct.,at 2898; Foremost, 457 U.S., at 675, 102 S.Ct., at2658-2659. Although we agree with petitioners that thesecases do not say that every tort involving a vessel onnavigable waters falls within the scope of admiraltyjurisdiction no matter what, they do show that ordinarily thatwill be so.
III.
Perhaps recognizing the difficulty of escaping the case law,petitioners ask us to change it. In cases "involving landbased parties and injuries," the city would have us adopt acondition of jurisdiction that
"the totality of the circumstances reflects a federal interestin protecting maritime commerce sufficiently weighty tojustify shifting what would otherwise be state-courtlitigation into federal court under the federal law ofadmiralty." City Brief 32.
Grubart and the city say that the Fifth Circuit has applied asomewhat similar "four-factor test" looking to "the functionsand roles of the parties; the types of vehicles andinstrumentalities involved; the causation and the type ofinjury; and traditional concepts of the role of admiraltylaw." Kelly v. Smith, 485 F.2d 520, 525 (CA5 1973); seealso Molett v. Penrod Drilling Co., 826 F.2d 1419, 1426(CA5 1987) (adding three more factors: the "impact of theevent on maritime shipping and commerce"; "thedesirability of a uniform national rule to apply to suchmatters"; and "the need for admiralty 'expertise' in the trialand decision of the case"), cert. denied sub nom.Columbus-McKinnon, Inc. v. Gearench, Inc., 493 U.S. 1003,110 S.Ct. 563, 107 L.Ed.2d 558 (1989). Although theypoint out that Sisson disapproved the use of four-factor orseven-factor tests "where all the relevant entities areengaged in similar types of activity," this rule implicitly leftthe matter open for cases like this one, where most of thevictims, and one of the tortfeasors, are based on land. See497 U.S., at 365, n. 3, 110 S.Ct. at 2897 ("Different issuesmay be raised by a case in which one of the instrumentalitiesis engaged in a traditional maritime activity, but the other isnot"). The city argues that there is a good reason why caseslike this one should get different treatment. Since the basicrationale for federal admiralty jurisdiction is "protection ofmaritime commerce through uniform rules of decision," theproposed jurisdictional test would improve on Sisson inlimiting the scope of admiralty jurisdiction more exactly toits rationale. A multiple factor test would minimize, if noteliminate, the awkward possibility that federal admiraltyrules or procedures will govern a case, to the disadvantageof state law, when admiralty's purpose does not require it. Cf. Foremost, supra, at 677-686, 102 S.Ct., at 2659- 2664
(Powell, J., dissenting).
Although the arguments are not frivolous, they do notpersuade. It is worth recalling that the Sisson tests areaimed at the same objectives invoked to support a newmultifactor test, the elimination of admiralty jurisdictionwhere the rationale for the jurisdiction does not support it. If the tort produces no potential threat to maritimecommerce or occurs during activity lacking a substantialrelationship to traditional maritime activity, Sisson assumesthat the objectives of admiralty jurisdiction probably do notrequire its exercise, even if the location test is satisfied. If,however, the Sisson tests are also satisfied, it is not apparentwhy the need for admiralty jurisdiction in aid of maritimecommerce somehow becomes less acute merely becauseland-based parties happen to be involved. CertainlyCongress did not think a land-based party necessarilydiluted the need for admiralty jurisdiction or it would havekept its hands off the primitive location test.
Of course, one could claim it to be odd that under Sisson aland-based party (or more than one) may be subject toadmiralty jurisdiction, but it would appear no less odd underthe city's test that a maritime tortfeasor in the mosttraditional mould might be subject to state common-lawjurisdiction. Other things being equal, it is not evident whythe first supposed anomaly is worse than the second. Butother things are not even equal. As noted just above, Congress has already made thejudgment, in the Extension Act, that a land-based victimmay properly be subject to admiralty jurisdiction. Surely aland-based joint tortfeasor has no claim to supposedly morefavorable treatment.
Nor are these the only objections to the city's position. Contrary to what the city suggests, City Brief 10, 14-15,25-26, 30, exercise of federal admiralty jurisdiction does notresult in automatic displacement of state law. It is true that,"[w]ith admiralty jurisdiction comes the application ofsubstantive admiralty law." East River S.S. Corp. v.Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S.Ct.2295, 2298-2299, 90 L.Ed.2d 865 (1986). But, tocharacterize that law, as the city apparently does, as "federalrules of decision," City Brief 15, is
"a destructive oversimplification of the highly intricateinterplay of the States and the National Government intheir regulation of maritime commerce. It is true thatstate law must yield to the needs of a uniform federalmaritime law when this Court finds inroads on aharmonious system. But this limitation still leaves theStates a wide scope." Romero v. International TerminalOperating Co., 358 U.S. 354, 373, 79 S.Ct. 468, 480-481,3 L.Ed.2d 368 (1959) (footnote omitted).
See East River, supra, at 864-865, 106 S.Ct., at 2298-2299("Drawn from state and federal sources, the general
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maritime law is an amalgam of traditional common-lawrules, modifications of those rules, and newly created rules"(footnote omitted)). Thus, the city's proposal tosynchronize the jurisdictional enquiry with the test fordetermining the applicable substantive law would discard afundamental feature of admiralty law, that federal admiraltycourts sometimes do apply state law. See, e.g., AmericanDredging Co. v. Miller, 510 U.S. 443, 451-452, 114 S.Ct.981, 987, 127 L.Ed.2d 285 (1994); see also 1 S. Friedell,Benedict on Admiralty § 112, p. 7-49 (7th ed. 1994).
Finally, on top of these objections going to the city'spremises there is added a most powerful one based on thepractical consequences of adopting a multifactor test. Although the existing case law tempers the locality test withthe added requirements looking to potential harm andtraditional activity, it reflects customary practice in seeingjurisdiction as the norm when the tort originates with avessel in navigable waters, and in treating departure fromthe locality principle as the exception. For better or worse,the case law has thus carved out the approximate shape ofadmiralty jurisdiction in a way that admiralty lawyersunderstand reasonably well. As against this approach, sofamiliar and relatively easy, the proposed four- orseven-factor test would be hard to apply, jettisoning relativepredictability for the open-ended rough-and-tumble offactors, inviting complex argument in a trial court and avirtually inevitable appeal.
Consider, for example, just one of the factors under thecity's test, requiring a district court at the beginning of everypurported admiralty case to determine the source (state orfederal) of the applicable substantive law. The difficulty ofdoing that was an important reason why this Court inRomero, supra, was unable to hold that maritime claims fellwithin the scope of the federal-question-jurisdiction statute,28 U.S.C. § 1331. 358 U.S., at 375-376, 79 S.Ct., at481-482 ("[s]ound judicial policy does not encourage asituation which necessitates constant adjudication of theboundaries of state and federal competence"). That concernapplies just as strongly to cases invoking a district court'sadmiralty jurisdiction under 28 U.S.C. § 1333, under whichthe jurisdictional enquiry for maritime torts has traditionallybeen quite uncomplicated.
Reasons of practice, then, are as weighty as reasons oftheory for rejecting the city's call to adopt a multifactor testfor admiralty jurisdiction for the benefit of land-basedparties to a tort action.
Accordingly, we conclude that the Court of Appealscorrectly held that the District Court had admiraltyjurisdiction over the respondent Great Lakes's LimitationAct suit. The judgment of the Court of Appeals isAffirmed.
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II. SEAMAN STATUS
A. "Vessel"
133 S.Ct. 735Supreme Court of the United States
Fane LOZMAN, Petitionerv.
The CITY OF RIVIERA BEACH, FLORIDA
No. 11–626. | Argued Oct. 1, 2012. | Decided Jan. 15, 2013.
BREYER, J., delivered the opinion of the Court, in whichROBERTS, C.J., and SCALIA, THOMAS, GINSBURG,ALITO, and KAGAN, JJ., joined. SOTOMAYOR, J., fileda dissenting opinion, in which KENNEDY, J., joined.
The Rules of Construction Act defines a “vessel” asincluding “every description of watercraft or other artificialcontrivance used, or capable of being used, as a means oftransportation on water.” 1 U.S.C. § 3. The question beforeus is whether petitioner's floating home (which is notself-propelled) falls within the terms of that definition.
In answering that question we focus primarily upon thephrase “capable of being used.” This term encompasses“practical” possibilities, not “merely ... theoretical” ones.Stewart v. Dutra Constr. Co., 543 U.S. 481, 496, 125 S.Ct.1118, 160 L.Ed.2d 932 (2005). We believe that a reasonableobserver, looking to the home's physical characteristics andactivities, would not consider it to be designed to anypractical degree for carrying people or things on water. Andwe consequently conclude that the floating home is not a“vessel.”
I.
In 2002 Fane Lozman, petitioner, bought a 60–foot by12–foot floating home. App. 37, 71. The home consisted ofa house-like plywood structure with French doors on threesides. Id., at 38, 44. It contained a sitting room, bedroom,closet, bathroom, and kitchen, along with a stairway leadingto a second level with office space. Id., at 45–66. An emptybilge space underneath the main floor kept it afloat. Id., at38. (See Appendix, infra, for a photograph.) After buyingthe floating home, Lozman had it towed about 200 miles toNorth Bay Village, Florida, where he moored it and thentwice more had it towed between nearby marinas. In 2006Lozman had the home towed a further 70 miles to a marinaowned by the city of Riviera Beach (City), respondent,where he kept it docked. Brief for Respondent 5.
After various disputes with Lozman and unsuccessful effortsto evict him from the marina, the City brought this federaladmiralty lawsuit in rem against the floating home. It soughta maritime lien for dockage fees and damages for trespass.
See Federal Maritime Lien Act, 46 U.S.C. § 31342(authorizing federal maritime lien against vessel to collectdebts owed for the provision of “necessaries to a vessel”);28 U.S.C. § 1333(1) (civil admiralty jurisdiction). See alsoLeon v. Galceran, 11 Wall. 185, 20 L.Ed. 74 (1871); TheRock Island Bridge, 6 Wall. 213, 215, 18 L.Ed. 753 (1867).
Lozman, acting pro se, asked the District Court to dismissthe suit on the ground that the court lacked admiraltyjurisdiction. See 2 Record, Doc. 64. After summaryjudgment proceedings, the court found that the floatinghome was a “vessel” and concluded that admiraltyjurisdiction was consequently proper. Pet. for Cert. 42a. Thejudge then conducted a bench trial on the merits andawarded the City $3,039.88 for dockage along with $1 innominal damages for trespass. Id., at 49a.
On appeal the Eleventh Circuit affirmed. Riviera Beach v.That Certain Unnamed Gray, Two–Story VesselApproximately Fifty–Seven Feet in Length, 649 F.3d 1259(2011). It agreed with the District Court that the home wasa “vessel.” In its view, the home was “capable” ofmovement over water and the owner's subjective intent to*740 remain moored “indefinitely” at a dock could not showthe contrary. Id., at 1267–1269.
Lozman sought certiorari. In light of uncertainty among theCircuits about application of the term “capable” we grantedhis petition. Compare De La Rosa v. St. Charles GamingCo., 474 F.3d 185, 187 (C.A.5 2006) (structure is not a“vessel” where “physically,” but only “theoretical[ly],”“capable of sailing,” and owner intends to moor itindefinitely as floating casino), with Board of Comm'rs ofOrleans Levee Dist. v. M/V Belle of Orleans, 535 F.3d1299, 1311–1312 (C.A.11 2008) (structure is a “vessel”where capable of moving over water under tow, “albeit toher detriment,” despite intent to moor indefinitely). See also649 F.3d, at 1267 (rejecting views of Circuits that “ ‘focuson the intent of the shipowner’ ”).
II.
At the outset we consider one threshold matter. The DistrictCourt ordered the floating home sold to satisfy the City'sjudgment. The City bought the home at public auction andsubsequently had it destroyed. And, after the parties filedtheir merits briefs, we ordered further briefing on thequestion of mootness in light of the home's destruction. 567U.S. ––––, 132 S.Ct. 1543, 182 L.Ed.2d 160 (2012). Theparties now have pointed out that, prior to the home's sale,the District Court ordered the City to post a $25,000 bond“to secure Mr. Lozman's value in the vessel.” 1 Record,
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Doc. 20, p. 2. The bond ensures that Lozman can obtainmonetary relief if he ultimately prevails. We consequentlyagree with the parties that the case is not moot.
III.
A.
We focus primarily upon the statutory phrase “capable ofbeing used ... as a means of transportation on water.” 1U.S.C. § 3. The Court of Appeals found that the home was“capable” of transportation because it could float, it couldproceed under tow, and its shore connections (power cable,water hose, “practically incapable of transportation ormovement.”) 649 F.3d, at 1266 (quoting Belle of Orleans,supra, at 1312, in turn quoting Stewart, 543 U.S., at 494,125 S.Ct. 1118). At least for argument's sake we agree withthe Court of Appeals about the last-mentioned point, namelythat Lozman's shore connections did not “ ‘render’ ” thehome “ ‘practically incapable of transportation.’ ” Butunlike the Eleventh Circuit, we do not find theseconsiderations (even when combined with the home's othercharacteristics) sufficient to show that Lozman's home wasa “vessel.”
The Court of Appeals recognized that it had applied the term“capable” broadly. 649 F.3d, at 1266. Indeed, it pointed withapproval to language in an earlier case, Burks v. AmericanRiver Transp. Co., 679 F.2d 69 (C.A.5 1982), in which theFifth Circuit said:
“ ‘No doubt the three men in a tub wouldalso fit within our definition, and oneprobably could make a convincing casefor Jonah inside the whale.’ ” 649 F.3d, at1269 (brackets omitted) (quoting Burks,supra, at 75).
But the Eleventh Circuit's interpretation is too broad. Notevery floating structure is a “vessel.” To state the obvious,a wooden washtub, a plastic dishpan, a swimming platformon pontoons, a large fishing net, a door taken off its hinges,or Pinocchio (when inside the whale) are not “vessels,” evenif they are “artificial contrivance[s]” capable of floating,moving under tow, and incidentally carrying even afair-sized item or two when they do so. Rather, the statuteapplies to an “artificial contrivance ... capable of being used... as a means of transportation on water.” 1 U.S.C. § 3(emphasis added). “[T]ransportation” involves the“conveyance (of things or persons) from one place toanother.” 18 Oxford English Dictionary 424 (2d ed. 1989)(OED). Accord, N. Webster, An American Dictionary of theEnglish Language 1406 (C. Goodrich & N. Porter eds.1873) (“[t]he act of transporting, carrying, or conveyingfrom one place to another”). And we must apply thisdefinition in a “practical,” not a “theoretical,” way. Stewart,supra, at 496, 125 S.Ct. 1118. Consequently, in our view a
structure does not fall within the scope of this statutoryphrase unless a reasonable observer, looking to the home'sphysical characteristics and activities, would consider itdesigned to a practical degree for carrying people or thingsover water. B.
Though our criterion is general, the facts of this caseillustrate more specifically what we have in mind. But forthe fact that it floats, nothing about Lozman's home suggeststhat it was designed to any practical degree to transportpersons or things over water. It had no rudder or othersteering mechanism. 649 F.3d, at 1269. Its hull was unraked,ibid., and it had a rectangular bottom 10 inches below thewater. Brief for Petitioner 27; App. 37. It had no specialcapacity to generate or store electricity but could obtain thatutility only through ongoing connections with the land. Id.,at 40. Its small rooms looked like ordinary nonmaritimeliving quarters. And those inside those rooms looked outupon the world, not through watertight portholes, butthrough French doors or ordinary windows. Id., at 44–66.
Although lack of self-propulsion is not dispositive, e.g., TheRobert W. Parsons, 191 U.S. 17, 31, 24 S.Ct. 8, 48 L.Ed. 73(1903), it may be a relevant physical characteristic. AndLozman's home differs significantly from an ordinaryhouseboat in that it has no ability to propel itself. Cf. 33CFR § 173.3 (2012) (“Houseboat means a motorized vessel... designed primarily for multi-purpose accommodationspaces with low freeboard and little or no foredeck orcockpit” (emphasis added)). Lozman's home was able totravel over water only by being towed. Prior to its arrest,that home's travel by tow over water took place on only fouroccasions over a period of seven years. Supra, at 739. Andwhen the home was towed a significant distance in 2006, thetowing company had a second boat follow behind to preventthe home from swinging dangerously from side to side. App.104.
The home has no other feature that might suggest a designto transport over water anything other than its ownfurnishings and related personal effects. In a word, we canfind nothing about the home that could lead a reasonableobserver to consider it designed to a practical degree for“transportation on water.”
C.
Our view of the statute is consistent with its text, precedent,and relevant purposes. For one thing, the statute's language,read naturally, lends itself to that interpretation. We concedethat the statute uses the word “every,” referring to “everydescription of watercraft or other artificial contrivance.” 1U.S.C. § 3 (emphasis added). But the term “contrivance”refers to “something contrived for, or employed incontriving to effect a purpose.” 3 OED 850 (def.7). The term
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“craft” explains that purpose as “water carriage andtransport.” Id., at 1104 (def.V(9)(b)) (defining “craft” as a“vesse[l] ... for” that purpose). The addition of the word“water” to “craft,” yielding the term “watercraft,” *742emphasizes the point. And the next few words, “used, orcapable of being used, as a means of transportation onwater,” drive the point home.
For another thing, the bulk of precedent supports ourconclusion. In Evansville & Bowling Green Packet Co. v.Chero Cola Bottling Co., 271 U.S. 19, 46 S.Ct. 379, 70L.Ed. 805 (1926), the Court held that a wharfboat was not a“vessel.” The wharfboat floated next to a dock; it was usedto transfer cargo from ship to dock and ship to ship; and itwas connected to the dock with cables, utility lines, and aramp. Id., at 21, 46 S.Ct. 379. At the same time, it wascapable of being towed. And it was towed each winter to aharbor to avoid river ice. Id., at 20–21, 46 S.Ct. 379. TheCourt reasoned that, despite the annual movement undertow, the wharfboat “was not used to carry freight from oneplace to another,” nor did it “encounter perils of navigationto which craft used for transportation are exposed.” Id., at22, 46 S.Ct. 379. (See Appendix, infra, for photograph of aperiod wharfboat).
The Court's reasoning in Stewart also supports ourconclusion. We there considered the application of thestatutory definition to a dredge. 543 U.S., at 494, 125 S.Ct.1118. The dredge was “a massive floating platform” fromwhich a suspended clamshell bucket would “remov[e] siltfrom the ocean floor,” depositing it “onto one of two scows”floating alongside the dredge. Id., at 484, 125 S.Ct. 1118.Like more traditional “seagoing vessels,” the dredge had,e.g., “a captain and crew, navigational lights, ballast tanks,and a crew dining area.” Ibid. Unlike more ordinary vessels,it could navigate only by “manipulating its anchors andcables” or by being towed. Ibid. Nonetheless it did move. Infact it moved over water “every couple of hours.” Id., at485, 125 S.Ct. 1118.
We held that the dredge was a “vessel.” We wrote that § 3'sdefinition “merely codified the meaning that the term‘vessel’ had acquired in general maritime law.” Id., at 490,125 S.Ct. 1118. We added that the question of the“watercraft's use ‘as a means of transportation on water’ is... practical,” and not “merely ... theoretical.” Id., at 496, 125S.Ct. 1118. And we pointed to cases holding that dredgesordinarily “served a waterborne transportation function,”namely that “in performing their work they carriedmachinery, equipment, and crew over water.” Id., at491–492, 125 S.Ct. 1118 (citing, e.g., Butler v. Ellis, 45F.2d 951, 955 (C.A.4 1930)).
As the Court of Appeals pointed out, in Stewart we alsowrote that § 3 “does not require that a watercraft be usedprimarily for that [transportation] purpose,” 543 U.S., at495, 125 S.Ct. 1118; that a “watercraft need not be in
motion to qualify as a vessel,” ibid.; and that a structure mayqualify as a vessel even if attached—but not “permanently”attached—to the land or ocean floor. Id., at 493–494, 125S.Ct. 1118. We did not take these statements, however, asimplying a universal set of sufficient conditions forapplication of the definition. Rather, they say, and theymean, that the statutory definition may (or may not)apply—not that it automatically must apply—where astructure has some other primary purpose, where it isstationary at relevant times, and where it is attached—butnot permanently attached—to land.
After all, a washtub is normally not a “vessel” though itdoes not have water transportation as its primary purpose, itmay be stationary much of the time, and it might beattached—but not permanently attached—to land. More tothe point, water transportation was not the primary purposeof either Stewart 's dredge or Evansville 's wharfboat;neither structure *743 was “in motion” at relevant times;and both were sometimes attached (though not permanentlyattached) to the ocean bottom or to land. NonethelessStewart ' s dredge fell within the statute's definition whileEvansville 's wharfboat did not.
The basic difference, we believe, is that the dredge wasregularly, but not primarily, used (and designed in part to beused) to transport workers and equipment over water whilethe wharfboat was not designed (to any practical degree) toserve a transportation function and did not do so. CompareCope v. Vallette Dry–Dock Co., 119 U.S. 625, 7 S.Ct. 336,30 L.Ed. 501 (1887) (floating drydock not a “vessel”because permanently fixed to wharf), with Jerome B.Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.527, 535, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (bargesometimes attached to river bottom to use as a workplatform remains a “vessel” when “at other times it wasused for transportation”). See also ibid. (citing Great LakesDredge & Dock Co. v. Chicago, 3 F.3d 225, 229 (C.A.71993) (“[A] craft is a ‘vessel’ if its purpose is to somereasonable degree ‘the transportation of passengers, cargo,or equipment from place to place across navigable waters'”)); Cope, supra, at 630, 7 S.Ct. 336 (describing“hopper-barge,” as potentially a “vessel” because it is a“navigable structure[,] used for the purpose oftransportation”); cf. 1 Benedict on Admiralty § 164, p. 10–6(7th rev. ed.2012) (maritime jurisdiction proper if “the craftis a navigable structure intended for maritimetransportation”).
Lower court cases also tend, on balance, to support ourconclusion. See, e.g., Bernard v. Binnings Constr. Co., 741F.2d 824, 828, n. 13, 832, n. 25 (C.A.5 1984) (work puntlacking features objectively indicating a transportationfunction not a “vessel,” for “our decisions make clear thatthe mere capacity to float or move across navigable watersdoes not necessarily make a structure a vessel”); Ruddimanv. A Scow Platform, 38 F. 158 (S.D.N.Y.1889) (scow,
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though “capable of being towed ... though not without somedifficulty, from its clumsy structure” just a floating box, nota “vessel,” because “it was not designed or used for thepurpose of navigation,” not engaged “in the transportationof persons or cargo,” and had “no motive power, no rudder,no sails”). See also 1 T. Schoenbaum, Admiralty andMaritime Law § 3–6, p. 155 (5th ed.2011) (courts havefound that “floating dry-dock[s],” “floating platforms,barges, or rafts used for construction or repair of piers,docks, bridges, pipelines and other” similar facilities are not“vessels”); E. Benedict, American Admiralty § 215, p. 116(3d rev. ed. 1898) (defining “vessel” as a “ ‘machineadapted to transportation over rivers, seas, and oceans' ”).
We recognize that some lower court opinions can be read asendorsing the “anything that floats” approach. See MiamiRiver Boat Yard, Inc. v. 60' Houseboat, 390 F.2d 596, 597(C.A.5 1968) (so-called “houseboat” lackingself-propulsion); Sea Village Marina, LLC v. A 1980Carlcraft Houseboat, No. 09–3292, 2009 WL 3379923,*5–*6 (D.N.J., Oct. 19, 2009) (following Miami River BoatYard ); Hudson Harbor 79th Street Boat Basin, Inc. v. SeaCasa, 469 F.Supp. 987, 989 (S.D.N.Y.1979) (same). Cf.Holmes v. Atlantic Sounding Co., 437 F.3d 441 (C.A.52006) (floating dormitory); Summerlin v. Massman Constr.Co., 199 F.2d 715 (C.A.4 1952) (derrick anchored in theriver engaged in building a bridge is a vessel). For thereasons we have stated, we find such an approachinappropriate and inconsistent with our precedents.
Further, our examination of the purposes of major federalmaritime statutes reveals little reason to classify floatinghomes as “vessels.” Admiralty law, for example, providesspecial attachment procedures lest a vessel avoid liability bysailing away. 46 U.S.C. §§ 31341–31343 (2006 ed. andSupp. IV). Liability statutes such as the Jones Act recognizethat sailors face the special “ ‘perils of the sea.’ ” Chandris,Inc. v. Latsis, 515 U.S. 347, 354, 373, 115 S.Ct. 2172, 132L.Ed.2d 314 (1995) (referring to “ ‘vessel[s] in navigation’”). Certain admiralty tort doctrines can encourageshipowners to engage in port-related commerce. E.g., 46U.S.C. § 30505; Executive Jet Aviation, Inc. v. Cleveland,409 U.S. 249, 269–270, 93 S.Ct. 493, 34 L.Ed.2d 454(1972). And maritime safety statutes subject vessels to U.S.Coast Guard inspections. E.g., 46 U.S.C. § 3301.
Lozman, however, cannot easily escape liability by sailingaway in his home. He faces no special sea dangers. He doesnot significantly engage in port-related commerce. And theSolicitor General tells us that to adopt a version of the“anything that floats” test would place unnecessary andundesirable inspection burdens upon the Coast Guard. Brieffor United States as Amicus Curiae 29, n. 11.
Finally, our conclusion is consistent with state laws in Stateswhere floating home owners have congregated in
communities. See Brief for Seattle Floating HomesAssociation et al. as Amici Curiae 1. A Washington Stateenvironmental statute, for example, defines a floating home(for regulatory purposes) as “a single-family dwelling unitconstructed on a float, that is moored, anchored, orotherwise secured in waters, and is not a vessel, even thoughit may be capable of being towed.” Wash. Rev.Code Ann.§ 90.58.270(5)(b)(ii) (Supp.2012). A California statutedefines a floating home (for tax purposes) as “a floatingstructure” that is “designed and built to be used, or ismodified to be used, as a stationary waterborne residentialdwelling,” and which (unlike a typical houseboat), has noindependent power generation, and is dependent on shoreutilities. Cal. Health & Safety Code Ann. § 18075.55(d)(West 2006). These States, we are told, treat structures thatmeet their “floating home” definitions like ordinaryland-based homes rather than like vessels. Brief for SeattleFloating Homes Association 2. Consistency of interpretationof related state and federal laws is a virtue in that it helps tocreate simplicity making the law easier to understand and tofollow for lawyers and for nonlawyers alike. And thatconsideration here supports our conclusion.
D.
The City and supporting amici make several importantarguments that warrant our response. First, they argueagainst use of any purpose-based test lest we introduce into“vessel” determinations a subjective element—namely, theowner's intent. That element, they say, is often“unverifiable” and too easily manipulated. Its introductionwould “foment unpredictability and invite gamesmanship.”Brief for Respondent 33.
We agree with the City about the need to eliminate theconsideration of evidence of subjective intent. But wecannot agree that the need requires abandonment of allcriteria based on “purpose.” Cf. Stewart, 543 U.S., at 495,125 S.Ct. 1118 (discussing transportation purpose). Indeed,it is difficult, if not impossible, to determine the use of ahuman “contrivance” without some consideration of humanpurposes. At the same time, we have sought to avoidsubjective elements, such as owner's intent, by permittingconsideration only of objective evidence of a waterbornetransportation purpose. That is why we have referred to theviews of a reasonable observer. Supra, at 739. And it is whywe have looked to the physical *745 attributes and behaviorof the structure, as objective manifestations of any relevantpurpose, and not to the subjective intent of the owner. Supra,at 741 – 742. We note that various admiralty treatises referto the use of purpose-based tests without any suggestion thatadministration of those tests has introduced too muchsubjectivity into the vessel-determination process. 1Benedict on Admiralty § 164; 1 Admiralty and MaritimeLaw § 3–6.
Second, the City, with support of amici, argues against the
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use of criteria that are too abstract, complex, or open-ended.Brief for Respondent 28–29. A court's jurisdiction, e.g.,admiralty jurisdiction, may turn on application of the term“vessel.” And jurisdictional tests, often applied at the outsetof a case, should be “as simple as possible.” Hertz Corp. v.Friend, 559 U.S. 77, ––––, 130 S.Ct. 1181, 1186, 175L.Ed.2d 1029 (2010).
We agree with the last-mentioned sentiment. And we alsounderstand that our approach is neither perfectly precise noralways determinative. Satisfaction of a design-based orpurpose-related criterion, for example, is not alwayssufficient for application of the statutory word “vessel.” Acraft whose physical characteristics and activitiesobjectively evidence a waterborne transportation purpose orfunction may still be rendered a nonvessel by later physicalalterations. For example, an owner might take a structurethat is otherwise a vessel (even the Queen Mary) andconnect it permanently to the land for use, say, as a hotel.See Stewart, supra, at 493–494, 125 S.Ct. 1118. Further,changes over time may produce a new form, i.e., a newlydesigned structure—in which case it may be the new designthat is relevant. See Kathriner v. Unisea, Inc., 975 F.2d 657,660 (C.A.9 1992) (floating processing plant was no longera vessel where a “large opening [had been] cut into herhull”).
Nor is satisfaction of the criterion always a necessarycondition, see Part IV, infra. It is conceivable that an ownermight actually use a floating structure not designed to anypractical degree for transportation as, say, a ferry boat,regularly transporting goods and persons over water.
Nonetheless, we believe the criterion we have used, takentogether with our example of its application here, shouldoffer guidance in a significant number of borderline caseswhere “capacity” to transport over water is in doubt.Moreover, borderline cases will always exist; they requirea method for resolution; we believe the method we haveused is workable; and, unlike, say, an “anything that floats”test, it is consistent with statutory text, purpose, andprecedent. Nor do we believe that the dissent's approachwould prove any more workable. For example, the dissentsuggests a relevant distinction between an owner's “clothesand personal effects” and “large appliances (like an oven ora refrigerator).” Post, at 752 (opinion of SOTOMAYOR, J.).But a transportation function need not turn on the size of theitems in question, and we believe the line between itemsbeing transported from place to place (e.g., cargo) and itemsthat are mere appurtenances is the one more likely to berelevant. Cf. Benedict, American Admiralty § 222, at 121(“A ship is usually described as consisting of the ship, hertackle, apparel, and furniture ...”).
Finally, the dissent and the Solicitor General (as amicus forLozman) argue that a remand is warranted for furtherfactfinding. See post, at 753 – 755; Brief for United States
as Amicus Curiae 29–31. But neither the City nor Lozmanmakes such a request. Brief for Respondent 18, 49, 52. Andthe only potentially relevant *746 factual dispute the dissentpoints to is that the home suffered serious damage during atow. Post, at 753 – 754. But this would add support to ourultimate conclusion that this floating home was not a vessel.We consequently see nothing to be gained by a remand. IV[9] Although we have focused on the phrase “capable ofbeing used” for transportation over water, the statute alsoincludes as a “vessel” a structure that is actually “used” forthat transportation. 1 U.S.C. § 3 (emphasis added). And theCity argues that, irrespective of its design, Lozman's floatinghome was actually so used. Brief for Respondent 32. We arenot persuaded by its argument.
We are willing to assume for argument's sake thatsometimes it is possible actually to use for watertransportation a structure that is in no practical way designedfor that purpose. See supra, at 744 – 745. But even so, theCity cannot show the actual use for which it argues.Lozman's floating home moved only under tow. Before itsarrest, it moved significant distances only twice in sevenyears. And when it moved, it carried, not passengers orcargo, but at the very most (giving the benefit of any factualambiguity to the City) only its own furnishings, its owner'spersonal effects, and personnel present to assure the home'ssafety. 649 F.3d, at 1268; Brief for Respondent 32; Tr. ofOral Arg. 37–38. This is far too little actual “use” to bringthe floating home within the terms of the statute. SeeEvansville, 271 U.S., at 20–21, 46 S.Ct. 379 (wharfboat nota “vessel” even though “[e]ach winter” it “was towed to [a]harbor to protect it from ice”); see also Roper v. UnitedStates, 368 U.S. 20, 23, 82 S.Ct. 5, 7 L.Ed.2d 1 (1961)(“Unlike a barge, the S.S. Harry Lane was not moved inorder to transport commodities from one location toanother”). See also supra, at 741 – 744. VFor these reasons, the judgment of the Court of Appeals isreversed.
It is so ordered.
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B. Photographs and Diagrams of Various Kinds of Drilling and Related Vessels
Inland Barge Rigs
“In marshes, where ‘the water is too muddy to drink and too wet to plow’ (that is, where thewater is very shallow, and the soil is not firm enough to support a land rig), inland barge rigs are oftenused to drill both wildcat and development wells. As the name implies, the drilling equipment isinstalled on a flat-bottomed barge. When moved from one location to another, the barge floats and istowed by boats. When at the location, the barge is submerged to rest on bottom, and pilings are drivendeep into the soil to keep it immobile.
“Because rigs have to go where the oil is, and because oil is not particular as to where it resides,some method of transportation has to be devised. The method may be nothing more complex than alarge flatbed truck, or it may be as intriguing as a giant helicopter with several tons of rig componentsdangling unceremoniously beneath it. Where there’s oil or gas, there’s a way to get a rig to it.”
Offshore Drilling
“Getting ready to drill offshore varies with the type of rig. For example, rigging up a platform rigis mainly a matter of assembly. Usually, a standard derrick is used, so it will be assembled piece bypiece. Living quarters, storage spaces, and other equipment are lifted by barge-mounted cranes.
“Mobile offshore rigs require less rig-up time than platforms because most of the equipment isalready in place and assembled. Floaters, such as semisubmersibles and drill ships, simply have to beanchored ono location, and drilling operations can begin. Incidentally, some floats are not anchored;instead, dynamic positioning is utilized to keep the rig on station (in a position more or less directly overthe spot on the seafloor where the hole is to be drilled). Using sonar, computers, and, in some cases,artificial orbiting satellites to direct large motor-drive propellers called thrusters, the floater’s position ismaintained within a few degrees over the hole.”
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Drillships
“A drill ship is [...] a floater. Essentially, a drill ship is shaped just like any ocean-going ship;however, drilling equipment (and other modifications) make a drill ship distinctive. Drill ships are themost mobile of rigs and are often used to drill wildcat wells in deep, remote waters, far from land.”
“When a mobile rig makes a discovery (determined by drilling a well or several wells to confirmthat significant quantities of oil or gas exist in a reservoir), development wells must be drilled. To drilldevelopment wells, an offshore platform must be built and erected at a suitable site in the waters overthe reservoir. Platforms can be extremely large – so large that they are for the most part built on land,then floated and towed out to the site. This is the only time that a platform is mobile. For, once at thelocation, it is firmly pinned to the seafloor with pilings, which are driven very deep into the soil onbottom. Huge cranes, mounted on barges, are employed to hoist the drilling equipment into place on theplatform. When made ready for drilling, several wells are drilled from a single platform without movingit.”
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Jackup Rigs
“A jackup rig is built so that it floats when being moved to the location. Once at the site, hugelegs are cranked down until they contact the seafloor. Then the hull is raised or “jacked up” on the samelegs to raise the hull and drilling deck above the water’s surface. Jackup rigs are limited to drilling inwater depths of up to 350 feet.”
Three-legged Jackup Rig
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Semisubmersibles
“A semisubmersible rig” * * * has two or more hulls upon which the rig floats as it is beingtowed to the location. (Some rigs of this type are capable of being used as either submersibles orsemisubmersibles.) However, once on location the hulls are designed so that, when flooded, they do notsettle to the bottom. In contrast they submerge only to a depth a little below the water’s surface. Inreality, a semisubmersible (or simply, ‘semi’) floats but not on the water’s surface. Where the weathercan be stormy, semisubmersibles are often selected because of their excellent stability in rough, deepseas.”
Production Systems
Fixed Platforms
Steel Jacket Style Platform
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Concrete gravity-based structures
Floating Production Systems
Semisubmersible Platform
Tension-leg Platform (TLP)
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Spar Platform
Ship-shaped FPSO
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C. "Fleet of Vessels"
117 S.Ct. 1538
HARBOR TUG AND BARGE COMPANYv.
John PAPAI et ux.No. 95-1621
Argued Jan. 13, 1997Decided May 12, 1997
KENNEDY, J., delivered the opinion of the Court, inwhich REHNQUIST, C.J., and O'CONNOR, SCALIA,SOUTER, and THOMAS, JJ., joined. STEVENS, J., fileda dissenting opinion, in which GINSBURG andBREYER, JJ., joined, post, p. 1543.
Adjudication to determine whether a maritime employeeis a seaman under the Jones Act, 46 U.S.C.App. § 688(a),or a maritime employee covered by the Longshore andHarbor Workers' Compensation Act (LHWCA), 44 Stat.(pt. 2) 1424, as amended, 33 U.S.C. § 901 et seq.,continues to be of concern in our system. The distinctionbetween the two mutually exclusive categories can bedifficult to implement, and many cases turn on theirspecific facts.
The Court of Appeals for the Ninth Circuit held in thiscase that there was a jury question as to whether aninjured worker was a Jones Act seaman. Granting theemployer's petition for a writ of certiorari, we brought twoquestions before us. The first is whether anadministrative ruling in favor of the employee on hisclaim of coverage under the LHWCA bars his claim ofseaman status in the Jones Act suit he wishes to pursue indistrict court. The second is whether this record wouldpermit a reasonable jury to conclude the employee is aJones Act seaman. We resolve the second question in theemployer's favor and, as it is dispositive of the case, wedo not reach the first.
On the question of seaman status, there is an issue ofsignificance beyond the facts of this case. Our statementin an earlier case that a worker may establish seamanstatus based on the substantiality of his connection to "anidentifiable group of ... vessels" in navigation, seeChandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct.2172, 2189-2190, 132 L.Ed.2d 314 (1995), has beensubject to differing interpretations, and we seek to provideclarification.
I.
Respondent John Papai was painting the housing structureof the tug Pt. Barrow when a ladder he was on moved, healleges, causing him to fall and injure his knee. App. 50.
Petitioner Harbor Tug & Barge Co., the tug's operator, hadhired Papai to do the painting work. Id., at 44. A primecoat of paint had been applied and it was Papai's task toapply the finish coat. Id., at 45. There was no vesselcaptain on board and Papai reported to the port captain, whohad a dockside office. Id., at 36-37. The employment wasexpected to begin and end the same day, id., at 35, 48, andPapai was not going to sail with the vessel after he finishedpainting, id., at 51. Papai had been employed by HarborTug on 12 previous occasions in the 2 ½ months before hisinjury.
Papai received his jobs with Harbor Tug through the InlandBoatman's Union (IBU) hiring hall. He had been gettingjobs with various vessels through the hiring hall for about 21/4 years. All the jobs were short term. The longest lastedabout 40 days and most were for 3 days or under. Id., at 29,34. In a deposition, Papai described the work as comingunder three headings: maintenance, longshoring, anddeckhand. Id., at 30-32. Papai said maintenance workinvolved chipping rust and painting aboard docked vessels. Id., at 30, 34-35. Longshoring work required helping todischarge vessels. Id., at 31. Deckhand work involvedmanning the lines on- and off-board vessels while theydocked or undocked. Id., at 30. As for the assignments heobtained through the hiring hall over 2 1/4 years, most ofthem, says Papai, involved deckhand work. Id., at 34.
After his alleged injury aboard the Pt. Barrow, Papai suedHarbor Tug in the United States District Court for theNorthern District of California, claiming negligence underthe Jones Act and unseaworthiness under general maritimelaw, in addition to other causes of action. His wife joined asa plaintiff, claiming loss of consortium. Harbor Tug sought summary judgment on Papai's Jones Actand unseaworthiness claims, contending he was not aseaman and so could not prevail on either claim. TheDistrict Court granted Harbor Tug's motion and later deniedPapai's motion for reconsideration. After our decisions inMcDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct.807, 112 L.Ed.2d 866 (1991), and Southwest Marine, Inc. v.Gizoni, 502 U.S. 81, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991),the District Court granted a motion by Harbor Tug "toconfirm" the earlier summary adjudication of Papai'snonseaman status. The District Court reasoned, under a testsince superseded, see Chandris, supra, that Papai was not aseaman within the meaning of the Jones Act or the generalmaritime law, because "he did not have a 'more or lesspermanent connection' with the vessel on which he wasinjured nor did he perform substantial work on the vesselsufficient for seaman status." App. to Pet. for Cert. 27a.
The Court of Appeals for the Ninth Circuit reversed andremanded for a trial of Papai's seaman status and hiscorresponding Jones Act and unseaworthiness claims.
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Based on our decision in Chandris, the court described therelevant inquiry as "not whether plaintiff had a permanentconnection with the vessel [but] whether plaintiff'srelationship with a vessel (or a group of vessels) wassubstantial in terms of duration and nature, which requiresconsideration of the total circumstances of his employment." 67 F.3d 203, 206 (1995). A majority of the panel believed itwould be reasonable for a jury to conclude the employeesatisfied that test. In the majority's view, "[i]f the type ofwork a maritime worker customarily performs would entitlehim to seaman status if performed for a single employer, theworker should not be deprived of that status simply becausethe industry operates under a daily assignment rather than apermanent employment system." Ibid. The majority alsosaid the "circumstance" that Papai had worked for HarborTug on 12 occasions during the 2 ½ months before hisinjury "may in itself provide a sufficient connection" toHarbor Tug's vessels to establish seaman status. Ibid.
Judge Poole dissented from the majority's holding that therewas a triable issue as to Papai's seaman status. Herecognized that Chandris held out the possibility of being aseaman without a substantial connection to a particularvessel in navigation, provided one nevertheless had therequired connection to " 'an identifiable group of suchvessels.' " 67 F.3d, at 209 (quoting 515 U.S., at 368, 115S.Ct., at 2179). Judge Poole said, however, it would be amistake to view Chandris as holding that, for seaman-statuspurposes, a "group may be identified simply as those vesselson which a sailor sails, not just those of a particularemployer or controlling entity.... Th[e majority's holding]renders the 'identifiable group' or 'fleet' requirement anullity." 67 F.3d, at 209 (citation omitted). Judge Poolealso noted that the majority's position conflicted with that ofthe Fifth Circuit (en banc) and of a Third Circuit panel. Ibid. (citing Barrett v. Chevron, U. S. A., Inc., 781 F.2d1067 (C.A.5 1986) (en banc); Reeves v. Mobile Dredging& Pumping Co., 26 F.3d 1247 (C.A.3 1994)); see alsoJohnson v. Continental Grain Co., 58 F.3d 1232 (C.A.81995); but see Fisher v. Nichols, 81 F.3d 319, 323 (C.A.21996) (rejecting common ownership or controlrequirement).
We granted certiorari, 518 U.S. 1055, 117 S.Ct. 36, 135L.Ed.2d 1127 (1996), and now reverse.
II.
The LHWCA, a maritime workers' compensation scheme,excludes from its coverage "a master or member of a crewof any vessel," 33 U.S.C. § 902(3)(G). These masters andcrewmembers are the seamen entitled to sue for damagesunder the Jones Act. Chandris, 515 U.S., at 355-358, 115S.Ct., at 2183. In other words, the LHWCA and the JonesAct are "mutually exclusive." Id., at 355-356, 115 S.Ct., at2183.
Our recent cases explain the proper inquiry to determineseaman status. We need not restate that doctrinaldevelopment, see id., at 355- 368, 115 S.Ct., at 2183-2190;Wilander, supra, at 341-354, 111 S.Ct., at 810-817, toresolve Papai's claim. It suffices to cite Chandris, whichheld, in pertinent part:
"[T]he essential requirements for seaman status aretwofold. First, ... an employee's duties must contribut[e]to the function of the vessel or to the accomplishment ofits mission.... "Second, and most important for our purposes here, aseaman must have a connection to a vessel in navigation(or to an identifiable group of such vessels) that issubstantial in terms of both its duration and its nature."515 U.S., at 368, 115 S.Ct., at 2190 (citations and internalquotation marks omitted).
The seaman inquiry is a mixed question of law and fact, andit often will be inappropriate to take the question from thejury. Nevertheless, "summary judgment or a directedverdict is mandated where the facts and the law willreasonably support only one conclusion." Wilander, supra,at 356, 111 S.Ct., at 818; see also Chandris, 515 U.S., at368-369, 115 S.Ct., at 2189- 2190.
Harbor Tug does not dispute that it would be reasonable fora jury to conclude Papai's duties aboard the Pt. Barrow (orany other vessel he worked on through the IBU hiring hall)contributed to the function of the vessel or theaccomplishment of its mission, satisfying Chandris ' firststandard. Nor does Harbor Tug dispute that a reasonablejury could conclude that the Pt. Barrow or other vesselsPapai worked on were in navigation. The result, as willoften be the case, is that seaman status turns on the part ofChandris ' second standard which requires the employee toshow "a connection to a vessel in navigation (or to anidentifiable group of such vessels) that is substantial interms of both its duration and its nature." Id., at 368, 115S.Ct., at 2190. We explained the rule as follows:
"The fundamental purpose of th[e] substantial connectionrequirement is to give full effect to the remedial schemecreated by Congress and to separate the sea-basedmaritime employees who are entitled to Jones Actprotection from those land-based workers who have onlya transitory or sporadic connection with a vessel innavigation, and therefore whose employment does notregularly expose them to the perils of the sea." Ibid.
For the substantial connection requirement to serve itspurpose, the inquiry into the nature of the employee'sconnection to the vessel must concentrate on whether theemployee's duties take him to sea. This will give substanceto the inquiry both as to the duration and nature of theemployee's connection to the vessel and be helpful indistinguishing land-based from sea- based employees.
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Papai argues, and the Court of Appeals majority held, thatPapai meets Chandris ' second test based on hisemployments with the various vessels he worked on throughthe IBU hiring hall in the 2 1/4 years before his injury,vessels owned, it appears, by three different employers notlinked by any common ownership or control, App. 38. Healso did longshoring work through the hiring hall, id., at 31,and it appears this was for still other employers, id., at 38.As noted above, Papai testified at his deposition that themajority of his work during this period was deckhand work. According to Papai, this satisfies Chandris because thegroup of vessels Papai worked on through the IBU hiringhall constitutes "an identifiable group of ... vessels" to whichhe has a "substantial connection." 515 U.S., at 368, 115S.Ct., at 2190.
The Court of Appeals for the Fifth Circuit was the first tohold that a worker could qualify as a seaman based on hisconnection to a group of vessels rather than a particular one. In Braniff v. Jackson Ave.-Gretna Ferry, Inc., 280 F.2d 523(1960), the court held the employer was not entitled tosummary judgment on the seaman-status question where anemployee's job was to perform maintenance work on theemployer's fleet of ferry boats, often while the boats wererunning: "The usual thing, of course, is for a person to havea Jones Act seaman status in relation to a particular vessel. But there is nothing about this ... concept to limit itmechanically to a single ship." Id., at 528. There is "noinsurmountable difficulty," the court explained, in findingseaman status based on the employee's relationship to"several specific vessels"--"an identifiable fleet"--asopposed to a single one. Ibid.
We, in turn, adverted to the group of vessels concept inChandris. We described it as a rule "allow[ing] seamanstatus for those workers who had the requisite connectionwith an 'identifiable fleet' of vessels, a finite group ofvessels under common ownership or control." 515 U.S., at366, 115 S.Ct., at 2189. The majority in the Court ofAppeals did not discuss our description of the group ofvessels concept as requiring common ownership or control,nor did it discuss other Courts of Appeals cases applying theconcept, see, e.g., Reeves v. Mobile Dredging & PumpingCo., 26 F.3d, at 1258. The court pointed to this statementfrom Chandris: "[W]e see no reason to limit the seamanstatus inquiry ... exclusively to an examination of the overallcourse of a worker's service with a particular employer." 515 U.S., at 371- 372, 115 S.Ct., at 2191. It interpreted thisto mean "it may be necessary to examine the workperformed by the employee while employed by differentemployers during the relevant time period." 67 F.3d, at 206. The court did not define what it meant by "the relevant timeperiod." In any event, the context of our statement inChandris makes clear our meaning, which is that theemployee's prior work history with a particular employermay not affect the seaman inquiry if the employee wasinjured on a new assignment with the same employer, an
assignment with different "essential duties" from hisprevious ones. 515 U.S., at 371, 115 S.Ct., at 2191. InChandris, the words "particular employer" give emphasis tothe point that the inquiry into the nature of the employee'sduties for seaman-status purposes may concentrate on anarrower, not broader, period than the employee's entirecourse of employment with his current employer. Therewas no suggestion of a need to examine the nature of anemployee's duties with prior employers. See also id., at367, 115 S.Ct., at 2189 ("Since Barrett [v. Chevron, U.S.A.,Inc., 781 F.2d 1067 (C.A.5 1986) (en banc) ], the FifthCircuit consistently has analyzed the problem [ofdetermining seaman status] in terms of the percentage ofwork performed on vessels for the employer in question"). The Court of Appeals majority interpreted the words"particular employer" outside the limited discussion inwhich we used them and, as a result, gave the phrase ameaning opposite from what the context requires.
The Court of Appeals stressed that various of Papai'semployers had "join[ed] together to obtain a common laborpool on which they draw by means of a union hiring hall." 67 F.3d, at 206; see also id., at 206, n. 3 (suggesting thatthis case involves a "group of vessels [that] havecollectively agreed to obtain employees" from a hiring hall). There is no evidence in the record that the contract HarborTug had with the IBU about employing deckhands (IBUDeckhands Agreement) was negotiated by a multiemployerbargaining group, and, even if it had been, that would notaffect the result here. There was no showing that the groupof vessels the court sought to identify were subject tounitary ownership or control in any aspect of their businessor operation. So far as the record shows, each employerwas free to hire, assign, and direct workers for whatevertasks and time period they each determined, limited, at most,by the IBU Deckhands Agreement. In deciding whetherthere is an identifiable group of vessels of relevance for aJones Act seaman-status determination, the question iswhether the vessels are subject to common ownership orcontrol. The requisite link is not established by the mereuse of the same hiring hall which draws from the same poolof employees.
Considering prior employments with independent employersin making the seaman-status inquiry would undermine "theinterests of employers and maritime workers alike in beingable to predict who will be covered by the Jones Act (and,perhaps more importantly for purposes of the employers'workers' compensation obligations, who will be covered bythe LHWCA) before a particular work day begins." Chandris, supra, at 363, 115 S.Ct., at 2187. There would beno principled basis for limiting which prior employments areconsidered for determining seaman status. The Court ofAppeals spoke of a "relevant time period" but, as notedabove, it did not define this term. Since the substantialconnection standard is often, as here, the determinativeelement of the seaman inquiry, it must be given workable
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and practical confines. When the inquiry further turns onwhether the employee has a substantial connection to anidentifiable group of vessels, common ownership or controlis essential for this purpose.
Papai contends his various employers through the hiring hallwould have been able to predict his status as a seaman underthe Jones Act based on the seagoing nature of some of theduties he could have been hired to perform consistent withhis classification as a "qualified deckhand" under the IBUDeckhands Agreement. By the terms of the agreement,Papai was qualified as a "satisfactory helmsman andlookout," for example, and he could have been hired to servea vessel while it was underway, in which case his dutieswould have included "conduct[ing] a check of the engineroom status a minimum of two (2) times each watch ... forvessel safety reasons." App. 77. In South Chicago Coal &Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed.732 (1940), we rejected a claim to seaman status groundedon the employee's job title, which also happened to be"deckhand." "The question," we said, "concerns his actualduties." Id., at 260, 60 S.Ct., at 549. See also NortheastMarine Terminal Co. v. Caputo, 432 U.S. 249, 268, n. 30,97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977) (reasoning thatemployee's membership in longshoremen's union was, initself, irrelevant to whether employee was covered by theLHWCA, as fact of union membership was unrelated to thepurposes of the LHWCA's coverage provisions). Thequestion is what connection the employee had in actual factto vessel operations, not what a union agreement says. Papai was qualified under the IBU Deckhands Agreement toperform non- seagoing work in addition to the seagoingduties described above. His actual duty on the Pt. Barrowthroughout the employment in question did not include anyseagoing activity; he was hired for one day to paint thevessel at dockside and he was not going to sail with thevessel after he finished painting it. App. 44, 48, 51. Thisis not a case where the employee was hired to performseagoing work during the employment in question, howeverbrief, and we need not consider here the consequences ofsuch an employment. The IBU Deckhands Agreement givesno reason to assume that any particular percentage of Papai'swork would be of a seagoing nature, subjecting him to theperils of the sea. In these circumstances, the unionagreement does not advance the accuracy of theseaman-status inquiry.
Papai argues he qualifies as a seaman if we consider his 12prior employments with Harbor Tug over the 2 ½ monthsbefore his injury. Papai testified at his deposition that heworked aboard the Pt. Barrow on three or four occasionsbefore the day he was injured, the most recent of which wasmore than a week earlier. Id., at 35, 44. Each of theseengagements involved only maintenance work while the tugwas docked. Id., at 34-35. The nature of Papai'sconnection to the Pt. Barrow was no more substantial forseaman- status purposes by virtue of these engagements than
the one during which he was injured. Papai does notidentify with specificity what he did for Harbor Tug theother eight or nine times he worked for the company in the2 ½ months before his injury. The closest he comes is hisdeposition testimony that 70 percent of his work over the 21/4 years before his injury was deckhand work. Id., at 34. Coupled with the fact that none of Papai's work aboard thePt. Barrow was of a seagoing nature, it would not bereasonable to infer from Papai's testimony that his recentengagements with Harbor Tug involved work of a seagoingnature. In any event, these discrete engagements wereseparate from the one in question, which was the sort of"transitory or sporadic" connection to a vessel or group ofvessels that, as we explained in Chandris, does not qualifyone for seaman status. 515 U.S., at 368, 115 S.Ct., at 2190.
Jones Act coverage is confined to seamen, those workerswho face regular exposure to the perils of the sea. Animportant part of the test for determining who is a seamanis whether the injured worker seeking coverage has asubstantial connection to a vessel or a fleet of vessels, andthe latter concept requires a requisite degree of commonownership or control. The substantial connection test isimportant in distinguishing between sea- and land-basedemployment, for land-based employment is inconsistentwith Jones Act coverage. This was the holding inChandris, and we adhere to it here. The only connection areasonable jury could identify among the vessels Papaiworked aboard is that each hired some of its employeesfrom the same union hiring hall from which Papai was hired. That is not sufficient to establish seaman status under thegroup of vessels concept. Papai had the burden at summaryjudgment to "set forth specific facts showing that there is agenuine issue for trial." Fed. Rule Civ. Proc. 56(e). Hefailed to meet it. The Court of Appeals erred in holdingotherwise. Its judgment is reversed.
It is so ordered.
731 So.2d 200
Douglas WISNERv.
PROFESSIONAL DIVERS OF NEW ORLEANSNo. 98-C-1755.
March 2, 1999.
TRAYLOR, JusticeCALOGERO, C.J., concurring.KNOLL, Justice, concurring
We granted this writ to determine if a commercial diver,whose employment placed him on vessels for ninety percentof his work life, is a seaman and thus entitled to Jones Actcoverage. After reviewing the record and applicable law,we reverse the lower courts' finding and hold that Jones Act
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coverage should not be withheld based upon the fact that thevessels upon which a diver works are not under hisemployer's common ownership and control. Because acommercial diver's duties continuously subject him to theperils of the sea, plaintiff is properly classified as a JonesAct seaman.
FACTS AND PROCEDURAL HISTORY
On January 15, 1994, Douglas C. Wisner (Wisner), acommercial diver by trade, was employed by ProfessionalDivers of New Orleans, Inc. (PDNO) installing anodes onplatforms and repairing pipelines while working aboardExxon's fixed platform seventy-three in the West Deltaregion of the Gulf of Mexico. However, approximatelytwenty-one hours after making a dive of 165 feet, Wisnerbegan to feel light headed and out of breath. On January16, 1994, Wisner was flown to shore and subsequentlysought medical attention at Jo Ellen Smith Regional MedicalCenter in New Orleans. After receiving hyperbarictreatment, Wisner was admitted to the hospital and latertreated for tachycardia, which developed while he was in thehospital.
Wisner worked for PDNO as a diver from November 1992until January 1994. In the course of his employment, Wisnerwas assigned to numerous jobs, ten percent (10%) of whichrequired him to work off of fixed platforms and ninetypercent (90%) of which required him to work from vessels. With the exception of the job at issue, Wisner slept and ateon the vessels from which he was diving. Wisner workedon approximately fourteen different vessels owned **2 bytwelve different companies while employed by PDNO.
In May 1994, Wisner filed his original petition alleging thathe was a Jones Act seaman employed by PDNO at the timeof his injury. PDNO then moved for summary judgment,alleging that Wisner was not a Jones Act seaman, but rather,a maritime worker who should be compensated under theLongshore and Harbor Workers Compensation Act. Thetrial court found that Wisner did not have a substantialconnection to a vessel or fleet of vessels under some degreeof common ownership or control and thus granted PDNOsummary judgment, which was later affirmed by the courtof appeal. Because we find Wisner faced regular exposureto the perils of the sea as a Jones Act seaman, we nowreverse.
LAW AND DISCUSSION
A major body of seaman status law developed in the Courtof Appeals for the Fifth Circuit in the wake of Offshore Co.v. Robison, 266 F.2d 769 (5th Cir.1959). See, Chandris,Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d314 (1995). At the time of his injury, Robison was an oilworker permanently assigned to a drilling rig mounted on abarge in the Gulf of Mexico. In sustaining the jury's award
of damages to Robison under the Jones Act, the court heldas follows:
[T]here is an evidentiary basis for a Jones Act case to goto the jury: (1) if there is evidence that the injuredworkman was assigned permanently to a vessel ... orperformed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or theduties which he performed contributed to the function ofthe vessel or the accomplishment of its mission, or to theoperation or welfare of the vessel in terms of itsmaintenance during its movement or during anchorage forits future trips. Offshore Co. v. Robison, 266 F.2d at 779(footnote omitted).
The first prong of the Robison test has both a permanencyrequirement and a substantiality requirement. In order tofulfill the permanency requirement, a claimant must have"more than a transitory connection" with a vessel or aspecific group of vessels. Davis v. Hill Engineering, Inc.,549 F.2d 314, 326 (5th Cir.1977); Bertrand v. InternationalMooring & Marine, Inc., 700 F.2d 240 (5th Cir.1983), cert.denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212(1984). The court's focus in this regard is "meant to denyseaman's status to those who come aboard a vessel for anisolated piece of work, not to deprive a person whose dutiesare truly navigational of Jones Act rights merely because heserves aboard a vessel for a relatively short period of time."Porche v. Gulf Mississippi Marine Corp., 390 F.Supp. 624,631 (E.D.La. 1975); Bertrand v. International Mooring &Marine, Inc., 700 F.2d at 247; Buras v. Commercial Testing& Eng'g Co., 736 F.2d 307, 310 (5th Cir.1984). The FifthCircuit Court of Appeal has specifically noted that thisrequirement should not be given a "wooden application,"Brown v. ITT Rayonier, Inc., 497 F.2d 234, 237 (5thCir.1974), and has characterized the permanencyrequirement as being "more frequently an analytical startingpoint than a self-executing formula." Brown v. ITTRayonier, Inc., 497 F.2d at 237; Buras v. CommercialTesting & Eng'g Co., 736 F.2d at 310. For a claimant tosatisfy the substantial work requirement of Robison, "it mustbe shown that he performed a significant part of his workaboard the vessel with at least some degree of regularity andcontinuity." Barrios v. Engine & Gas Compressor Services,Inc., 669 F.2d 350, 353 (5th Cir.1982); Bertrand v.International Mooring & Marine, Inc., 700 F.2d at 246. Since Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5thCir.1986), the Fifth Circuit has consistently analyzed theproblem in terms of the percentage of work performed onvessels for the employer in question, and has declined tofind seaman status where the employee spends less than 30percent of his time aboard ship. Chandris, Inc. v. Latsis,515 U.S. 347, 115 S.Ct. 2172, 2189, 132 L.Ed.2d 314(1995). The substantial connection requirement may beused to distinguish between sea-based employees andland-based employees, as land-based employment isinconsistent with Jones Act coverage. Harbor Tug & Barge
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Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 1542-43, 137L.Ed.2d 800 (1997).
The second prong of the Robison two-part test fordetermining seaman status under the Jones Act, that anemployee's duties must contribute to the function of thevessel or to the accomplishment of its mission, is easily met. The United States Supreme Court has noted in bothMcDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct.807, 817, 112 L.Ed.2d 866, and Chandris that it is notnecessary that a seaman aid in navigation or contribute tothe transportation of the vessel. Rather, a seaman must bedoing the ship's work. Chandris, Inc. v. Latsis, 115 S.Ct. at2184. Although this element is not disputed in the case athand, seaman status is not so easily deciphered, as thejurisprudential interpretation of a seaman encompassesseveral factors, none of which is conclusive. See, e.g.,Bertrand v. International Mooring & Marine, Inc., 700 F.2dat 246 (while the fact that a claimant's work places him onseveral different vessels does not preclude seaman status, itis relevant in making that determination).
The principle developed in Bertrand and Buras, thatdetermination of seaman status should not be controlled byan employer's chartering arrangement, was later used inWallace v. Oceaneering Int'l, 727 F.2d 427 (5 th Cir.1984),to hold that a commercial diver has the legal protections ofa seaman when a substantial part of his duties are performedon vessels. See, Bertrand v. International Mooring &Marine, Inc., 700 F.2d at 245; Buras v. Commercial Testing& Eng'g Co., 736 F.2d at 312. The Bertrand court foundJones Act coverage should not be withheld because thevessels are not under the employer's common ownership orcontrol, when claimants are continuously subjected to theperils of the sea and engaged in classical seaman's work. Bertrand v. International Mooring & Marine, Inc., 700 F.2dat 245. The Fifth Circuit specifically held that, in light ofthe purposes of the Jones Act, employers will not be allowedto deny Jones Act coverage to seamen by arrangementswith third parties regarding a vessel's operation or by themanner in which work is assigned. Id. With theseprinciples in mind, the Wallace court found a commercialdiver, who was employed with a diving service contractorfor only several days at the time of his accident, to be aseaman. The court specifically held:
A diver's work necessarily involves exposure to numerousmarine perils, and is inherently maritime because it cannotbe done on land. It is not, like so many offshore fieldoccupations, an art developed in land work and transposedto a maritime setting. Oil field divers who regularlyspend days or weeks at a time working, eating, andsleeping on vessels are exposed to the same hazards asother seamen. Moreover, when a diver descends fromthe surface, braving darkness, temperature, lack ofoxygen, and high pressures, he embarks on a marinevoyage in which his body is now the vessel. Before he
can complete his assigned task, he must successfullynavigate the seas. Wallace v. Oceaneering Int'l, 727 F.2dat 436. (citations omitted)
After thirty-three years of silence, the United StatesSupreme Court in McDermott Int'l, Inc. v. Wilander, 498U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991),considered the question of seaman status and affirmed theRobison requirement that a worker's duties must contributeto the function of the vessel or the accomplishment of itsmission. Wilson L. Maloz, III, Harbor Tug & Barge Co. v.Papai: The United States Supreme Court Takes a FleetingGlance at Jones Act Seaman Status, 72 Tul. L.Rev. 2227(1998). However, Wilander did not provide a completedefinition of "seaman" in that it did not address thepermanent connection aspect of the Robison test; it simplystated that an "employment-related connection" wasrequired. Id. at 2231. The Supreme Court followedWilander with a ruling in Chandris, Inc. v. Latsis, 515 U.S.347, 115 S.Ct. 2172, 132 L.Ed.2d 314, that solidified the testfor determining seaman status. In addition to affirmingWilander, the court stated that a seaman's connection to avessel in navigation, or to a group of such vessels, must besubstantial in terms of both its duration and its nature. Thepurpose of this provision was to ensure Jones Act coverageto true seamen, while precluding land-based workers whohave only a transitory or sporadic connection to a vessel innavigation and, therefore, whose employment does notregularly expose them to the perils of the sea. Chandris,Inc. v. Latsis, 115 S.Ct. at 2190. The Chandris courtpoignantly stated that in defining the prerequisites for JonesAct coverage, one should focus upon the essence of what itmeans to be a seaman rather than allowing jurisprudential"tests" to obscure such a finding. In so doing, the courtrecommended that the total circumstances of an individual'semployment be considered, as the ultimate inquiry iswhether the worker in question is a member of the vessel'screw or simply a land-based employee who happens to beworking on the vessel at a given time. Chandris, Inc. v.Latsis, 115 S.Ct. at 2190-91.
The United States Supreme Court most recently exploredthe boundaries of Jones Act coverage in Harbor Tug &Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137L.Ed.2d 800 (1997). Relying on the principles set forth inChandris, the court noted that a requisite degree of commonownership or control is required when determining if aninjured worker has a substantial connection to a group ofvessels. Harbor Tug & Barge Co. v. Papai, 117 S.Ct. at1541. However, it is contended, as found in Papai, that asubstantial connection to a vessel or fleet of vessels is a partof the test for determining who is a seaman. Harbor Tug &Barge Co. v. Papai, 117 S.Ct. at 1542-43. This view isshared with the United States Supreme Court which foundthat "the total circumstances of an individual's employmentmust be weighed to determine whether he had a sufficientrelation to the navigation of vessels and the perils attendant
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thereon." Chandris, Inc. v. Latsis, 115 S.Ct. at 2190 citingWallace v. Oceaneering Int'l, 727 F.2d at 432.
Papai and Chandris dictate that when we determine whetherthe nature of Wisner's connection to vessels in navigation issubstantial, we should focus on whether Wisner's dutieswere primarily sea- based activities. Harbor Tug & BargeCo. v. Papai, 117 S.Ct. at 1540; Chandris, Inc. v. Latsis, 115S.Ct. at 2190-91; Cabral v. Healy Tibbits Builders, Inc.,118 F.3d 1363, 1366 (9th Cir.1997). In both cases, theSupreme Court emphasized that the purpose of thesubstantial connection test is to separate land-based workerswho do not face the perils of the sea from sea-based workerswhose duties necessarily require them to face those risks. Id. In sum, the formulations or "tests" employed by thevarious courts are simply different ways to arrive at thesame basic point: the Jones Act remedy is reserved forsea-based maritime employees whose work regularlyexposes them to "the special hazards and disadvantages towhich they who go to sea in ships are subjected." Chandris,Inc. v. Latsis, 115 S.Ct. at 2190 citing Seas Shipping Co. v.Sieracki, 328 U.S. 85, 104, 66 S.Ct. 872, 882, 90 L.Ed. 1099(1946) (Stone, C.J., dissenting).
CONCLUSION
After a thorough consideration of the law and the "totalcircumstances" surrounding Wisner's employment withPDNO, this court holds that Wisner is a seaman under theJones Act. Particularly persuasive is the fact that Wisner'swork as a commercial diver placed him on vessels for ninetypercent of his work-life with PDNO, during which time heslept and ate on such vessels. However, it is the inherentlymaritime nature of the tasks performed and perils faced byWisner as a commercial diver, perhaps the most precariouswork at sea, and not the fortuity of his tenure on variousvessels, that makes Wisner a seaman. Wallace v.Oceaneering Int'l, 727 F.2d at 436. We reverse the trialcourt and court of appeal's finding of summary judgment infavor of PDNO, and hereby remand this case to the trialcourt for further proceedings consistent with this opinion.
D. "In Navigation"
72 S.Ct. 216
DESPERv.
STARVED ROCK FERRY CO.No. 231.
Argued Dec. 6, 1951Decided Jan. 2, 1952
Mr. Justice JACKSON delivered the opinion of the Court.Mr. Justice BLACK and Mr. Justice DOUGLAS dissent, andwould affirm the judgment of the District Court.
Petitioner brought suit under the Jones Act to recoverdamages for the death of her intestate son from injuriessustained during the course of his employment by respondent. The Court of Appeals for the Seventh Circuit reversed thejudgment of the District Court entered on a jury's verdict inpetitioner's favor. This Court granted certiorari.
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Respondent operates a small fleet of sightseeing motorboatson the Illinois River in the vicinity of Starved Rock. Theboats are navigated under Coast Guard regulations bypersonnel licensed by the Department of Commerce.Operations are necessarily restricted to summer months. Each fall the boats are beached and put up on blocks for thewinter. In the spring each is overhauled before beinglaunched for the season. The decedent, Thomas J. Desper,Jr., was first employed by respondent in April, 1947, to helpprepare the boats for their seasonal launching. In June ofthe same year he acquired the necessary operator's licensefrom the Department of Commerce and, for the remainderof that season, he was employed as a boat operator. Whenthe season closed, he helped take the boats out of the waterand block them up for the winter. His employmentterminated December 19, 1947.
Desper was re-employed March 15, 1948. There wastestimony that he was then engaged for the season and wasto resume his operator's duties when the boats were back inthe water. For the time being, however, he was put tocleaning, painting, and waterproofing the boats, preparingthem for navigation. On the date of the accident, April 26th,the boats were still blocked up on land. Several men,Desper among them, were on board a moored barge,maintained by respondent as a machine shop, warehouse,waiting room and ticket office, engaged in painting lifepreservers for use on the boats. One man was working ona fire extinguisher. It exploded, killing him and Desper.
The Jones Act confers a cause of action on 'any seaman.' Inopposition to petitioner's suit under the Act, respondentcontended that Desper, at the time of his death, was not a'seaman' within the meaning of the Act. Whether he wassuch a 'seaman' is the critical issue in the case which reachedthis Court.
* * *The next question is whether, without reference to this 1939Amendment, decedent was a 'seaman' at the time of hisdeath. The many cases turning upon the question whetheran individual was a 'seaman' demonstrate that the matterdepends largely on the facts of the particular case and theactivity in which he was engaged at the time of injury. Thefacts in this case are unique. The work in which thedecedent was engaged at the time of his death quite clearlywas not that usually done by a 'seaman.' The boats were notafloat and had neither captain nor crew. They wereundergoing seasonal repairs, the work being of the kind that,in the case of larger vessels, would customarily be done byexclusively shore-based personnel. For a number of reasonsthe ships might not be launched, or he might not operateone. To be sure, he was a probable navigator in the nearfuture, but the law does not cover probable or expectantseamen but seamen in being. It is our conclusion that whileengaged in such seasonal repair work Desper was not a'seaman' within the purview of the Jones Act. The distinct
nature of the work is emphasized by the fact that there was novessel engaged in navigation at the time of the decedent'sdeath. All had been 'laid up for the winter'. Hawn v.American S.S. Co., 2 Cir., 107 F.2d 999, 1000; cf. SenecaWashed Gravel Corp. v. McManigal, 2 Cir., 65 F.2d 779,780. In the words of the court in Antus v. Interocean S.S.Co., 6 Cir., 108 F.2d 185, 187, where it was held that onewho had been a member of a ship's crew and was injuredwhile preparing it for winter quarters could not maintain aJones Act suit for his injuries: 'The fact that he had been, orexpected in the future to be, a seaman does not rendermaritime work which was not maritime in its nature.'
Both petitioner and respondent filed applications with theIndustrial Commission of Illinois seeking the benefitsprovided by the Workmen's Compensation Act of that State. S.H.A. ch. 48, s 138 et seq. The Commission rendered anaward in petitioner's favor, but she states that she has takenan appeal to the appropriate state court on the ground that theCommission was 'without jurisdiction.' She does not specifywhy she thinks so, but we surmise that her reason is to avoidconflict with her contention that exclusive jurisdiction in thepremises is vested in the federal courts by the Jones Act. Wedo not understand her to have taken the position that if theJones Act is not applicable the Longshoremen's and HarborWorkers' Compensation Act is, and that the stateCommission, therefore, is without jurisdiction in any event. The question of the applicability of the Longshoremen's Actdoes not appear from the record to have been raised by eitherparty in the courts below. Neither has raised it in this Court. We, therefore, find it inappropriate to resolve the conflict, ifany, between the Illinois Compensation Act and theLongshoremen's and Harbor Workers' Compensation Act. Cf.Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524,61 L.Ed. 1086; Parker v. Motor Boat Sales, 314 U.S. 244, 62S.Ct. 221. 86 L.Ed. 184; Davis v. Department of Labor, 317U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246.
We think the court below properly disposed of the questionpresented. Accordingly, its judgment is affirmed.
Affirmed.
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115 S.Ct. 2172
CHANDRIS, INC., et al., Petitioners,v.
Antonios LATSIS.
No. 94-325
Argued Feb. 21, 1995Decided June 14, 1995
[INTRODUCTION: The U.S. Supreme Court wascalled upon to clarify what employment-relatedconnection to a vessel in navigation is necessary for amaritime worker to qualify as a seaman under theJones Act. In other words, the Court determined whatrelationship a worker must have to the vessel,regardless of specific tasks the worker undertakes, inorder to be considered a Jones Act seaman.
[Latsis began working for Chandris in May 1989 as asalaried superintendent engineer. He was responsiblefor maintaining and updating electronic andcommunications equipment on Chandris’ fleet ofvessels – six passenger cruise ships. Each of Chandris’ships carried between 12 and 14 engineers who wereassigned permanently to that vessel. Latsis was one oftwo supervising engineers based at Chandris’ Miamioffice. His duties were to be performed on all the shipsin the fleet and included overseeing the vessels’engineering departments – which required him to takevoyages – and planning and directing shipmaintenance from the shore. At trial, Latsis claimed hespent 72% of his time at sea, but his immediatesupervisor testified it was closer to 10%.
[On May 14, 1989, Latsis began a voyage on the S.S.Galileo to plan for an upcoming renovation of thatvessel. He developed a problem with his right eye onthe day of departure and saw the ship’s doctor thatvery day. The doctor suspected a detached retina butdid not follow standard medical procedure, whichwould have been to direct Latsis to see anophthalmologist on an emergency basis. Instead, herecommended that Latsis see an eye specialist inBermuda two days later. He had no prompt medicalcare during the voyage. When he saw a doctor inBermuda, the diagnosis was a detached retina and heunderwent surgery there to reattach his retina. Thesurgery was considered to be successful, but Latsis lost75% of the vision in his right eye.
[Part of this opinion questions whether the time Latsisspent with the vessel while it was being repaired shouldbe counted toward a determination of his seaman status,and this issue in turn involved the preliminary questionof whether, at the time the vessel was removed fromnavigation, it had lost its status as a “vessel.”
[The following is an excerpt from the Court’s opinionin Chandris, supra, on the issue of vessel status.]
“* * * III
One final issue remains for our determination: whether theDistrict Court erred in instructing the jurors that, "[i]ndetermining whether Mr. Latsis performed a substantial partof his work on the vessel, [they could] not consider the periodof time the Galileo was in drydock in Germany, becauseduring that time period she was out of navigation." We agreewith the Court of Appeals that it did.
The foregoing discussion establishes that, to qualify as aseaman under the Jones Act, a maritime employee must havea substantial employment-related connection to a vessel innavigation. See Wilander, supra, at 354-355, 111 S.Ct., at817. Of course, any time Latsis spent with the Galileo whilethe ship was out of navigation could not count as time spentat sea for purposes of that inquiry, and it would have beenappropriate for the District Court to make this clear to thejury. Yet the underlying inquiry whether a vessel is or is not"in navigation" for Jones Act purposes is a fact- intensivequestion that is normally for the jury and not the court todecide. See Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734,2 L.Ed.2d 754 (1958) (per curiam ); 2 M. Norris, Law ofSeamen § 30.13, p. 363 (4th ed. 1985) ("Whether the vesselis in navigation presents a question of fact to be determinedby the trier of the facts. When the case is tried to a jury thefact question should be left to their consideration if sufficientevidence has been presented to provide the basis for juryconsideration"). Removing the issue from the jury'sconsideration is only appropriate where the facts and the lawwill reasonably support only one conclusion, Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 250-251, 106 S.Ct. 2505,2511, 91 L.Ed.2d 202 (1986), and the colloquy between thecourt and counsel does not indicate that the District Courtmade any such findings before overruling respondent'sobjection to the drydock instruction. See Tr. 432. Basedupon the record before us, we think the court failedadequately to justify its decision to remove the questionwhether the Galileo was "in navigation" while inBremerhaven from the jury.
Under our precedent and the law prevailing in the Circuits, itis generally accepted that "a vessel does not cease to be avessel when she is not voyaging, but is at anchor, berthed, or
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at dockside," DiGiovanni v. Traylor Bros., Inc., 959 F.2d1119, 1121 (CA1) (en banc), cert. denied, 506 U.S. 827,113 S.Ct. 87, 121 L.Ed.2d 50 (1992), even when the vesselis undergoing repairs. See Butler, supra, at 271, 78 S.Ct., at734; Senko, 352 U.S., at 373, 77 S.Ct., at 417; Norris,supra, at 364 ("[A] vessel is in navigation ... when it returnsfrom a voyage and is taken to a drydock or shipyard toundergo repairs in preparation to making another trip, andlikewise a vessel is in navigation, although moored to adock, if it remains in readiness for another voyage"(footnotes omitted)). At some point, however, repairsbecome sufficiently significant that the vessel can no longerbe considered in navigation. In West v. United States, 361U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959), we held thata shoreside worker was not entitled to recover forunseaworthiness because the vessel on which he was injuredwas undergoing an overhaul for the purpose of making herseaworthy and therefore had been withdrawn fromnavigation. We explained that, in such cases, "the focusshould be upon the status of the ship, the pattern of therepairs, and the extensive nature of the work contracted tobe done." Id., at 122, 80 S.Ct., at 192. See also United N.Y.and N.J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613,79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Desper, 342 U.S., at191, 72 S.Ct., at 218. The general rule among the Courts ofAppeals is that vessels undergoing repairs or spending arelatively short period of time in drydock are still consideredto be "in navigation" whereas ships being transformedthrough "major" overhauls or renovations are not. See Bull,6 U.S.F.Mar.L.J., at 582-584 (collecting cases).
Obviously, while the distinction at issue here is one ofdegree, the prevailing view is that "major renovations cantake a ship out of navigation, even though its use before andafter the work will be the same." McKinley v. All AlaskanSeafoods, Inc., 980 F.2d 567, 570 (CA9 1992). Our reviewof the record in this case uncovered relatively little evidencebearing on the Galileo 's status during the repairs, and evenless discussion of the question by the District Court. On theone hand, the work on the Chandris vessel took only aboutsix months, which seems to be a relatively short period oftime for important repairs on oceangoing vessels. Cf. id.,at 571 (17-month- long project involving major structuralchanges took the vessel out of navigation); Wixom v.Boland Marine & Manufacturing Co., 614 F.2d 956 (CA51980) (similar 3-year project); see also Senko, supra, at373, 77 S.Ct., at 417 (noting that "[e]ven a transoceanic linermay be confined to berth for lengthy periods, and whilethere the ship is kept in repair by its 'crew' "-- and that"[t]here can be no doubt that a member of its crew would becovered by the Jones Act during this period, even though theship was never in transit during his employment"). On theother hand, Latsis' own description of the work performedsuggests that the modifications to the vessel were actuallyquite significant, including the removal of the ship's bottomplates and propellers, the addition of bow thrusters, overhaulof the main engines, reconstruction of the boilers, and
renovations of the cabins and other passenger areas of theship. See App. 93-94. On these facts, which are similar tothose in McKinley, it is possible that Chandris could beentitled to partial summary judgment or a directed verdictconcerning whether the Galileo remained in navigation whilein drydock; the record, however, contains no stipulations orfindings by the District Court to justify its conclusion that themodifications to the Galileo were sufficiently extensive toremove the vessel from navigation as a matter of law. Onthat basis, we agree with the Court of Appeals that theDistrict Court's drydock instruction was erroneous.
Even if the District Court had been justified in directing averdict on the question whether the Galileo remained innavigation while in Bremerhaven, we think that the court'scharge to the jury swept too broadly. Instead of simplynoting the appropriate legal conclusion and instructing thejury not to consider the time Latsis spent with the vessel indrydock as time spent with a vessel in navigation, the DistrictCourt appears to have prohibited the jury from consideringLatsis' stay in Bremerhaven for any purpose. In our view,Latsis' activities while the vessel was in drydock are at leastmarginally relevant to the underlying inquiry (whether Latsiswas a seaman and not a land-based maritime employee). Naturally, the jury would be free to draw several inferencesfrom Latsis' work during the conversion, not all of whichwould be in his favor. But the choice among suchpermissible inferences should have been left to the jury, andwe think the District Court's broadly worded instructionimproperly deprived the jury of that opportunity byforbidding the consideration of Latsis' time in Bremerhavenat all. * * *”
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E. Significant Employment Relationship with Vessel or Fleet of Vessels
115 S.Ct. 2172
CHANDRIS, INC.v.
LATSIS
No. 94-325
Argued Feb. 21, 1995.Decided June 14, 1995.
O'CONNOR, J., delivered the opinion of the Court, in whichREHNQUIST, C.J., and SCALIA, KENNEDY, SOUTER,and GINSBURG, JJ., joined. STEVENS, J., filed an opinionconcurring in the judgment, in which THOMAS andBREYER, JJ., joined.
This case asks us to clarify what "employment-relatedconnection to a vessel in navigation," McDermott Int'l, Inc.v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 817, 112L.Ed.2d 866 (1991), is necessary for a maritime worker toqualify as a seaman under the Jones Act, 46 U.S.C.App. §688(a). In Wilander, we addressed the type of activities thata seaman must perform and held that, under the Jones Act,a seaman's job need not be limited to transportation-relatedfunctions that directly aid in the vessel's navigation. We nowdetermine what relationship a worker must have to thevessel, regardless of the specific tasks the workerundertakes, in order to obtain seaman status.
I
In May 1989, respondent Antonios Latsis was employed bypetitioner Chandris, Inc., as a salaried superintendentengineer. Latsis was responsible for maintaining andupdating the electronic and communications equipment onChandris' fleet of vessels, which consisted of six passengercruise ships. Each ship in the Chandris fleet carried between12 and 14 engineers who were assigned permanently to thatvessel. Latsis, on the other hand, was one of twosupervising engineers based at Chandris' Miami office; hisduties ran to the entire fleet and included not onlyoverseeing the vessels' engineering departments, whichrequired him to take a number of voyages, but also planningand directing ship maintenance from the shore. Latsisclaimed at trial that he spent 72 percent of his time at sea,App. 58; his immediate supervisor testified that theappropriate figure was closer to 10 percent, id., at 180.
On May 14, 1989, Latsis sailed for Bermuda aboard the S.S.Galileo to plan for an upcoming renovation of the ship,which was one of the older vessels in the Chandris fleet. Latsis developed a problem with his right eye on the day ofdeparture, and he saw the ship's doctor as the Galileo leftport. The doctor diagnosed a suspected detached retina but
failed to follow standard medical procedure, which wouldhave been to direct Latsis to see an ophthalmologist on anemergency basis. Instead, the ship's doctor recommendedthat Latsis relax until he could see an eye specialist whenthe Galileo arrived in Bermuda two days later. No attemptwas made to transport Latsis ashore for prompt medical careby means of a pilot vessel or helicopter during the 11 hoursit took the ship to reach the open sea from Baltimore, andLatsis received no further medical care until after the shiparrived in Bermuda. In Bermuda, a doctor diagnosed adetached retina and recommended immediate hospitalizationand surgery. Although the operation was a partial success,Latsis lost 75 percent of his vision in his right eye.
* * *In October 1991, Latsis filed suit in the United StatesDistrict Court for the Southern District of New York seekingcompensatory damages under the Jones Act, 46 U.S.C.App.§ 688, for the negligence of the ship's doctor that resulted inthe significant loss of sight in Latsis' right eye. The JonesAct provides, in pertinent part, that "[a]ny seaman who shallsuffer personal injury in the course of his employment may,at his election, maintain an action for damages at law, withthe right of trial by jury...." * * *.
We granted certiorari, 513 U.S. 945, 115 S.Ct. 354, 130L.Ed.2d 309 (1994), to resolve the continuing conflictamong the Courts of Appeals regarding the appropriaterequirements for seaman status under the Jones Act.
The Jones Act provides a cause of action in negligence for"any seaman" injured "in the course of his employment." 46U.S.C.App. § 688(a). Under general maritime lawprevailing prior to the statute's enactment, seamen wereentitled to "maintenance and cure" from their employer forinjuries incurred "in the service of the ship" and to recoverdamages from the vessel's owner for "injuries received byseamen in consequence of the unseaworthiness of the ship,"but they were "not allowed to recover an indemnity for thenegligence of the master, or any member of the crew." TheOsceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760(1903); see also Cortes v. Baltimore Insular Line, Inc., 287U.S. 367, 370-371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932). Congress enacted the Jones Act in 1920 to remove the barto suit for negligence articulated in The Osceola, therebycompleting the trilogy of heightened legal protections(unavailable to other maritime workers) that seamen receivebecause of their exposure to the "perils of the sea." See G.Gilmore & C. Black, Law of Admiralty § 6-21, pp. 328-329(2d ed. 1975); Robertson, A New Approach to DeterminingSeaman Status, 64 Texas L.Rev. 79 (1985) (hereinafterRobertson). Justice Story identified this animating purposebehind the legal regime governing maritime injuries whenhe observed that seamen "are emphatically the wards of theadmiralty" because they "are by the peculiarity of their lives
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liable to sudden sickness from change of climate, exposureto perils, and exhausting labour." Harden v. Gordon, 11F.Cas. 480, 485, 483 (No. 6,047) (CC Me.1823). Similarly,we stated in Wilander that "[t]raditional seamen's remedies... have been 'universally recognized as ... growing out of thestatus of the seaman and his peculiar relationship to thevessel, and as a feature of the maritime law compensating oroffsetting the special hazards and disadvantages to whichthey who go down to sea in ships are subjected.' " 498 U.S.,at 354, 111 S.Ct., at 817 (quoting Seas Shipping Co. v.Sieracki, 328 U.S. 85, 104, 66 S.Ct. 872, 882, 90 L.Ed. 1099(1946) (Stone, C.J., dissenting)).
The Jones Act, however, does not define the term "seaman"and therefore leaves to the courts the determination ofexactly which maritime workers are entitled to admiralty'sspecial protection. Early on, we concluded that Congressintended the term to have its established meaning under thegeneral maritime law at the time the Jones Act was enacted. See Warner v. Goltra, 293 U.S. 155, 159, 55 S.Ct. 46, 48,79 L.Ed. 254 (1934). In Warner, we stated that "a seamanis a mariner of any degree, one who lives his life upon thesea." Id., at 157, 55 S.Ct., at 47. Similarly, in Norton v.Warner Co., 321 U.S. 565, 572, 64 S.Ct. 747, 751, 88 L.Ed.931 (1944), we suggested that " 'every one is entitled to theprivilege of a seaman who, like seamen, at all timescontributes to the labors about the operation and welfare ofthe ship when she is upon a voyage' " (quoting The BuenaVentura, 243 F. 797, 799 (SDNY 1916)).
Congress provided some content for the Jones Actrequirement in 1927 when it enacted the Longshore andHarbor Workers' Compensation Act (LHWCA), whichprovides scheduled compensation (and the exclusiveremedy) for injury to a broad range of land-based maritimeworkers but which also explicitly excludes from its coverage"a master or member of a crew of any vessel." 44 Stat.(part 2) 1424, as amended, 33 U.S.C. § 902(3)(G). As theCourt has stated on several occasions, the Jones Act and theLHWCA are mutually exclusive compensation regimes: "'master or member of a crew' is a refinement of the term'seaman' in the Jones Act; it excludes from LHWCAcoverage those properly covered under the Jones Act." Wilander, 498 U.S., at 347, 111 S.Ct., at 813. Indeed, "it isodd but true that the key requirement for Jones Act coveragenow appears in another statute." Ibid. Injured workers whofall under neither category may still recover under anapplicable state workers' compensation scheme or, inadmiralty, under general maritime tort principles (which areadmittedly less generous than the Jones Act's protections). See Cheavens, Terminal Workers' Injury and Death Claims,64 Tulane L.Rev. 361, 364-365 (1989).
Despite the LHWCA language, drawing the distinctionbetween those maritime workers who should qualify asseamen and those who should not has proved to be adifficult task and the source of much litigation--particularly
because "the myriad circumstances in which men go uponthe water confront courts not with discrete classes ofmaritime employees, but rather with a spectrum rangingfrom the blue-water seaman to the land-basedlongshoreman." Brown v. ITT Rayonier, Inc., 497 F.2d 234,236 (CA5 1974). The federal courts have struggled overthe years to articulate generally applicable criteria todistinguish among the many varieties of maritime workers,often developing detailed multipronged tests for seamanstatus. Since the 1950's, this Court largely has leftdefinition of the Jones Act's scope to the lower courts.Unfortunately, as a result, "[t]he perils of the sea, whichmariners suffer and shipowners insure against, have mettheir match in the perils of judicial review." Gilmore &Black, supra, § 6-1, at 272. Or, as one court paraphrasedDiderot in reference to this body of law: " 'We have madea labyrinth and got lost in it. We must find our way out.'"Johnson v. John F. Beasley Constr. Co., 742 F.2d 1054,1060 (CA7 1984), cert. denied, 469 U.S. 1211 (1985); see9 Oeuvres Complètes de Diderot, 203 (J. Assézat ed. 1875).
A.
In Wilander, decided in 1991, the Court attempted for thefirst time in 33 years to clarify the definition of a "seaman"under the Jones Act. Jon Wilander was injured whileassigned as a foreman supervising the sandblasting andpainting of various fixtures and piping on oil drillingplatforms in the Persian Gulf. His employer claimed thathe could not qualify as a seaman because he did not aid inthe navigation function of the vessels on which he served. Emphasizing that the question presented was narrow, weconsidered whether the term "seaman" is limited to onlythose maritime workers who aid in a vessel's navigation.
After surveying the history of an "aid in navigation"requirement under both the Jones Act and general maritimelaw, we concluded that "all those with that 'peculiarrelationship to the vessel' are covered under the Jones Act,regardless of the particular job they perform," 498 U.S., at354, 111 S.Ct., at 817, and that "the better rule is to define'master or member of a crew' under the LHWCA, andtherefore 'seaman' under the Jones Act, solely in terms of theemployee's connection to a vessel in navigation," ibid. Thus, we held that, although "[i]t is not necessary that aseaman aid in navigation or contribute to the transportationof the vessel, ... a seaman must be doing the ship's work." Id., at 355, 111 S.Ct., at 817. We explained that "[t]he keyto seaman status is employment- related connection to avessel in navigation," and that, although "[w]e are not calledupon here to define this connection in all details, ... webelieve the requirement that an employee's duties must'contribut[e] to the function of the vessel or to theaccomplishment of its mission' captures well an importantrequirement of seaman status." Ibid.
Beyond dispensing with the "aid to navigation" requirement,
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however, Wilander did not consider the requisiteconnection to a vessel in any detail and therefore failed toend the prevailing confusion regarding seaman status.
B.
Respondent urges us to find our way out of the Jones Act"labyrinth" by focusing on the seemingly activity-basedpolicy underlying the statute (the protection of those whoare exposed to the perils of the sea), and to conclude thatanyone working on board a vessel for the duration of a"voyage" in furtherance of the vessel's mission has thenecessary employment-related connection to qualify as aseaman. Brief for Respondent 12-17. Such an approach,however, would run counter to our prior decisions and ourunderstanding of the remedial scheme Congress hasestablished for injured maritime workers. A brief survey ofthe Jones Act's tortured history makes clear that we mustreject the initial appeal of such a "voyage" test andundertake the more difficult task of developing astatus-based standard that, although it determines Jones Actcoverage without regard to the precise activity in which theworker is engaged at the time of the injury, nevertheless bestfurthers the Jones Act's remedial goals.
Our Jones Act cases establish several basic principlesregarding the definition of a seaman. First, "[w]hetherunder the Jones Act or general maritime law, seamen do notinclude land-based workers." Wilander, supra, at 348, 111S.Ct., at 814; see also Allbritton, Seaman Status inWilander 's Wake, 68 Tulane L.Rev. 373, 387 (1994). * * *Through the LHWCA, therefore, Congress "explicitlyden[ied] a right of recovery under the Jones Act to maritimeworkers not members of a crew who are injured on board avessel." Swanson, supra, at 6, 66 S.Ct., at 871. And thisrecognition process culminated in Wilander with the Court'sstatement that, "[w]ith the passage of the LHWCA,Congress established a clear distinction between land-basedand sea-based maritime workers. The latter, who owe theirallegiance to a vessel and not solely to a land-basedemployer, are seamen." 498 U.S., at 347, 111 S.Ct., at 813.
In addition to recognizing a fundamental distinction betweenland-based and sea-based maritime employees, our casesalso emphasize that Jones Act coverage, like the jurisdictionof admiralty over causes of action for maintenance and curefor injuries received in the course of a seaman'semployment, depends "not on the place where the injury isinflicted ... but on the nature of the seaman's service, hisstatus as a member of the vessel, and his relationship as suchto the vessel and its operation in navigable waters." Swanson, supra, at 4, 66 S.Ct., at 871. Thus, maritimeworkers who obtain seaman status do not lose thatprotection automatically when on shore and may recoverunder the Jones Act whenever they are injured in the serviceof a vessel, regardless of whether the injury occurs on or offthe ship. In O'Donnell v. Great Lakes Dredge & Dock Co.,
318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943), the Courtheld a shipowner liable for injuries caused to a seaman by afellow crew member while the former was on shorerepairing a conduit that was a part of the vessel and that wasused for discharging the ship's cargo. We explained: "Theright of recovery in the Jones Act is given to the seaman assuch, and, as in the case of maintenance and cure, theadmiralty jurisdiction over the suit depends not on the placewhere the injury is inflicted but on the nature of the serviceand its relationship to the operation of the vessel plying innavigable waters." Id., at 42-43, 63 S.Ct., at 492. Similarly,the Court in Swanson emphasized that the LHWCA "leavesunaffected the rights of members of the crew of a vessel torecover under the Jones Act when injured while pursuingtheir maritime employment whether on board ... or onshore." 328 U.S., at 7-8, 66 S.Ct., at 872. See also Braenv. Pfeifer Oil Transp. Co., 361 U.S. 129, 131-132, 80 S.Ct.247, 249, 4 L.Ed.2d 191 (1959).
Our LHWCA cases also recognize the converse: Land-based maritime workers injured while on a vessel innavigation remain covered by the LHWCA, which expresslyprovides compensation for injuries to certain workersengaged in "maritime employment" that are incurred "uponthe navigable waters of the United States," 33 U.S.C. §903(a). Thus, in Director, Office of Workers'Compensation Programs v. Perini North River Associates,459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983), weheld that a worker injured while "working on a barge inactual navigable waters" of the Hudson River, id., at 300, n.4, 103 S.Ct., at 638, n. 4, could be compensated under theLHWCA, id., at 324, 103 S.Ct., at 651. See also Parker v.Motor Boat Sales, Inc., 314 U.S. 244, 244-245, 62 S.Ct.221, 222, 86 L.Ed. 184 (1941) (upholding LHWCAcoverage for a worker testing outboard motors who "wasdrowned when a motor boat in which he was ridingcapsized"). These decisions, which reflect our longstandingview of the LHWCA's scope, indicate that a maritimeworker does not become a "member of a crew" as soon as avessel leaves the dock.
It is therefore well settled after decades of judicialinterpretation that the Jones Act inquiry is fundamentallystatus based: Land-based maritime workers do not becomeseamen because they happen to be working on board avessel when they are injured, and seamen do not lose JonesAct protection when the course of their service to a vesseltakes them ashore. In spite of this background, respondentand Justice STEVENS suggest that any maritime workerwho is assigned to a vessel for the duration of a voyage--andwhose duties contribute to the vessel's mission--should beclassified as a seaman for purposes of injuries incurredduring that voyage. See Brief for Respondent 14; post, at2194 (opinion concurring in judgment). Under such a"voyage test," which relies principally upon this Court'sstatements that the Jones Act was designed to protectmaritime workers who are exposed to the "special hazards"
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and "particular perils" characteristic of work on vessels atsea, see, e.g., Wilander, supra, at 354, 111 S.Ct., at 817, theworker's activities at the time of the injury would becontrolling.
* * * A "voyage test" would conflict with our priorunderstanding of the Jones Act as fundamentally statusbased, granting the negligence cause of action to thosemaritime workers who form the ship's company. Swanson, supra, at 4-5, 66 S.Ct., at 871; O'Donnell, supra, at 42-43,63 S.Ct., at 492.
* * ** * * In evaluating the employment-related connection of amaritime worker to a vessel in navigation, courts should notemploy "a 'snapshot' test for seaman status, inspecting onlythe situation as it exists at the instant of injury; a moreenduring relationship is contemplated in the jurisprudence." Easley, supra, at 5. Thus, a worker may not oscillate backand forth between Jones Act coverage and other remediesdepending on the activity in which the worker was engagedwhile injured. Reeves v. Mobile Dredging & Pumping Co.,26 F.3d 1247, 1256 (CA3 1994). Unlike JusticeSTEVENS, see post, at 2194, we do not believe that anymaritime worker on a ship at sea as part of his employmentis automatically a member of the crew of the vessel withinthe meaning of the statutory terms. * * *
To say that our cases have recognized a distinction betweenland-based and sea-based maritime workers that precludesapplication of a voyage test for seaman status, however, isnot to say that a maritime employee must work only onboard a vessel to qualify as a seaman under the Jones Act. In Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct.486, 116 L.Ed.2d 405 (1991), decided only a few monthsafter Wilander, we concluded that a worker's status as a shiprepairman, one of the enumerated occupations encompassedwithin the term "employee" under the LHWCA, 33 U.S.C.§ 902(3), did not necessarily restrict the worker to a remedyunder that statute. We explained that, "[w]hile in somecases a ship repairman may lack the requisite connection toa vessel in navigation to qualify for seaman status, ... not allship repairmen lack the requisite connection as a matter oflaw. This is so because '[i]t is not the employee's particularjob that is determinative, but the employee's connection toa vessel.' " Gizoni, supra, at 89, 112 S.Ct., at 492 (quotingWilander, 498 U.S., at 354, 111 S.Ct., at 817) (footnoteomitted). Thus, we concluded, the Jones Act remedy maybe available to maritime workers who are employed by ashipyard and who spend a portion of their time working onshore but spend the rest of their time at sea.
Beyond these basic themes, which are sufficient to forecloserespondent's principal argument, our cases are largely silentas to the precise relationship a maritime worker must bear toa vessel in order to come within the Jones Act's ambit. Wehave, until now, left to the lower federal courts the task of
developing appropriate criteria to distinguish the "ship'scompany" from those members of the maritime communitywhose employment is essentially land based.
C.
The Court of Appeals for the First Circuit was apparentlythe first to develop a generally applicable test for seamanstatus. In Carumbo v. Cape Cod S.S. Co., 123 F.2d 991(1941), the court retained the pre-Swanson view that "theword 'seaman' under the Jones Act [did] not mean the samething as 'member of a crew' under the [LHWCA]," 123 F.2d,at 994. It concluded that "one who does any sort of workaboard a ship in navigation is a 'seaman' within the meaningof the Jones Act." Id., at 995. To the phrase "member of acrew," on the other hand, the court gave a more restrictivemeaning. The court adopted three elements to define thephrase that had been used at various times in prior cases,holding that "[t]he requirements that the ship be innavigation; that there be a more or less permanentconnection with the ship; and that the worker be aboardprimarily to aid in navigation appear to us to be the essentialand decisive elements of the definition of a 'member of acrew.' " Ibid. Cf. Senko, supra, at 375, 77 S.Ct., at 418(Harlan, J., dissenting) ("According to past decisions, to bea 'member of a crew' an individual must have someconnection, more or less permanent, with a ship and a ship'scompany"). Once it became clear that the phrase "master ormember of a crew" from the LHWCA is coextensive withthe term "seaman" in the Jones Act, courts accepted theCarumbo formulation of master or member of a crew in theJones Act context. See Boyd v. Ford Motor Co., 948 F.2d283 (CA6 1991); Estate of Wenzel v. Seaward MarineServices, Inc., 709 F.2d 1326, 1327 (CA9 1983); Whittington v. Sewer Constr. Co., 541 F.2d 427, 436 (CA41976); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d31, 36 (CA3 1975), cert. denied, 423 U.S. 1054, 96 S.Ct.785, 46 L.Ed.2d 643 (1976); McKie v. Diamond MarineCo., 204 F.2d 132, 136 (CA5 1953). The Court of Appealsfor the Second Circuit initially was among the jurisdictionsto adopt the Carumbo formulation as the basis of its seamanstatus inquiry, see Salgado v. M.J. Rudolph Corp., 514 F.2d,at 755, but that court took the instant case as an opportunityto modify the traditional test somewhat (replacing the "moreor less permanent connection" prong with a requirement thatthe connection be "substantial in terms of its (a) durationand (b) nature"), 20 F.3d, at 57.
The second major body of seaman status law developed inthe Court of Appeals for the Fifth Circuit, which has asubstantial Jones Act caseload, in the wake of Offshore Co.v. Robison, 266 F.2d 769 (CA5 1959). At the time of hisinjury, Robison was an oil worker permanently assigned toa drilling rig mounted on a barge in the Gulf of Mexico. Insustaining the jury's award of damages to Robison under theJones Act, the court abandoned the aid in navigationrequirement of the traditional test and held as follows:
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"[T]here is an evidentiary basis for a Jones Act case to goto the jury: (1) if there is evidence that the injuredworkman was assigned permanently to a vessel ... orperformed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or theduties which he performed contributed to the function ofthe vessel or to the accomplishment of its mission, or tothe operation or welfare of the vessel in terms of itsmaintenance during its movement or during anchorage forits future trips." Id., at 779 (footnote omitted).
Soon after Robison, the Fifth Circuit modified the test toallow seaman status for those workers who had the requisiteconnection with an "identifiable fleet" of vessels, a finitegroup of vessels under common ownership or control. Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523,528 (1960). See also Barrett, 781 F.2d, at 1074; Bertrandv. International Mooring & Marine, Inc., 700 F.2d 240(CA5 1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79L.Ed.2d 212 (1984). The modified Robison formulation,which replaced the Carumbo version as the definitive testfor seaman status in the Fifth Circuit, has been highlyinfluential in other courts as well. See Robertson 95; Miller v. Patton-Tully Transp. Co., 851 F.2d 202, 204 (CA81988); Caruso v. Sterling Yacht & Shipbuilders, Inc., 828F.2d 14, 15 (CA11 1987); Bennett v. Perini Corp., 510 F.2d114, 115 (CA1 1975).
While the Carumbo and Robison approaches may not seemall that different at first glance, subsequent developments inthe Fifth Circuit's Jones Act jurisprudence added a strictlytemporal gloss to the Jones Act inquiry. Under Barrett v.Chevron, U.S.A., Inc., supra, if an employee's regular dutiesrequire him to divide his time between vessel and land, hisstatus as a crew member is determined "in the context of hisentire employment" with his current employer. Id., at 1075. See also Allbritton, 68 Tulane L.Rev., at 386; Longmire,610 F.2d, at 1347 (explaining that a worker's seaman status"should be addressed with reference to the nature andlocation of his occupation taken as a whole"). In Barrett,the court noted that the worker "performed seventy to eightypercent of his work on platforms and no more than twentyto thirty percent of his work on vessels" and then concludedthat, "[b]ecause he did not perform a substantial portion ofhis work aboard a vessel or fleet of vessels, he failed toestablish that he was a member of the crew of a vessel." 781 F.2d, at 1076. Since Barrett, the Fifth Circuitconsistently has analyzed the problem in terms of thepercentage of work performed on vessels for the employerin question--and has declined to find seaman status wherethe employee spent less than 30 percent of his time aboardship. * * *
* * *
D.
From this background emerge the essential contours of the"employment-related connection to a vessel in navigation,"Wilander, 498 U.S., at 355, 111 S.Ct., at 817, required foran employee to qualify as a seaman under the Jones Act. We have said that, in giving effect to the term "seaman," ourconcern must be "to define the meaning for the purpose ofa particular statute" and that its use in the Jones Act "mustbe read in the light of the mischief to be corrected and theend to be attained." Warner, 293 U.S., at 158, 55 S.Ct., at48. Giving effect to those guiding principles, we think thatthe essential requirements for seaman status are twofold. First, as we emphasized in Wilander, "an employee's dutiesmust 'contribut[e] to the function of the vessel or to theaccomplishment of its mission.' " 498 U.S., at 355, 111S.Ct., at 817 (quoting Robison, 266 F.2d, at 779). TheJones Act's protections, like the other admiralty protectionsfor seamen, only extend to those maritime employees whodo the ship's work. But this threshold requirement is verybroad: "All who work at sea in the service of a ship" areeligible for seaman status. 498 U.S., at 354, 111 S.Ct., at817.
Second, and most important for our purposes here, a seamanmust have a connection to a vessel in navigation (or to anidentifiable group of such vessels) that is substantial interms of both its duration and its nature. The fundamentalpurpose of this substantial connection requirement is to givefull effect to the remedial scheme created by Congress andto separate the sea-based maritime employees who areentitled to Jones Act protection from those land-basedworkers who have only a transitory or sporadic connectionto a vessel in navigation, and therefore whose employmentdoes not regularly expose them to the perils of the sea. See1B A. Jenner, Benedict on Admiralty § 11a, pp. 2-10.1 to2-11 (7th ed. 1994) ("If it can be shown that the employeeperformed a significant part of his work on board the vesselon which he was injured, with at least some degree ofregularity and continuity, the test for seaman status will besatisfied" (footnote omitted)). This requirement thereforedetermines which maritime employees in Wilander 's broadcategory of persons eligible for seaman status because theyare "doing the ship's work," 498 U.S., at 355, 111 S.Ct., at817, are in fact entitled to the benefits conferred uponseamen by the Jones Act because they have the requisiteemployment-related connection to a vessel in navigation.
* * *In defining the prerequisites for Jones Act coverage, wethink it preferable to focus upon the essence of what itmeans to be a seaman and to eschew the temptation to createdetailed tests to effectuate the congressional purpose, teststhat tend to become ends in and of themselves. Theprincipal formulations employed by the Courts of Appeals--"more or less permanent assignment" or "connection to avessel that is substantial in terms of its duration andnature"--are simply different ways of getting at the same
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basic point: The Jones Act remedy is reserved for sea-basedmaritime employees whose work regularly exposes them to"the special hazards and disadvantages to which they whogo down to sea in ships are subjected." Sieracki, 328 U.S.,at 104, 66 S.Ct., at 882 (Stone, C.J., dissenting). Indeed, itis difficult to discern major substantive differences in thelanguage of the two phrases. In our view, "the totalcircumstances of an individual's employment must beweighed to determine whether he had a sufficient relation tothe navigation of vessels and the perils attendant thereon." Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 (CA51984). The duration of a worker's connection to a vesseland the nature of the worker's activities, taken together,determine whether a maritime employee is a seamanbecause the ultimate inquiry is whether the worker inquestion is a member of the vessel's crew or simply aland-based employee who happens to be working on thevessel at a given time.
Although we adopt the centerpiece of the formulation usedby the Court of Appeals in this case--that a seaman musthave a connection with a vessel in navigation that issubstantial in both duration and nature--we should point outhow our understanding of the import of that language maybe different in some respects from that of the court below. The Court of Appeals suggested that its test for seamanstatus "does not unequivocally require a Jones Act seamanto be substantially connected to a vessel" in terms of time ifthe worker performs important work on board on a steady,although not necessarily on a temporally significant, basis. 20 F.3d, at 53. Perhaps giving effect to this intuition, orperhaps reacting to the temporal gloss placed on the Robisonlanguage by later Fifth Circuit decisions, the court phrasedits standard at one point as requiring a jury to find that aJones Act plaintiff's contribution to the function of thevessel was substantial in terms of its duration or nature. 20F.3d, at 57. It is not clear which version ("duration ornature" as opposed to "duration and nature") the Court ofAppeals intended to adopt for the substantial connectionrequirement--or indeed whether the court saw a significantdifference between the two. Nevertheless, we think it isimportant that a seaman's connection to a vessel in fact besubstantial in both respects.
We agree with the Court of Appeals that seaman status isnot merely a temporal concept, but we also believe that itnecessarily includes a temporal element. A maritime workerwho spends only a small fraction of his working time onboard a vessel is fundamentally land based and therefore nota member of the vessel's crew, regardless of what his dutiesare. Naturally, substantiality in this context is determinedby reference to the period covered by the Jones Actplaintiff's maritime employment, rather than by someabsolute measure. Generally, the Fifth Circuit seems tohave identified an appropriate rule of thumb for the ordinarycase: A worker who spends less than about 30 percent ofhis time in the service of a vessel in navigation should not
qualify as a seaman under the Jones Act. This figure ofcourse serves as no more than a guideline established byyears of experience, and departure from it will certainly bejustified in appropriate cases. As we have said, "[t]heinquiry into seaman status is of necessity fact specific; itwill depend on the nature of the vessel and the employee'sprecise relation to it." Wilander, 498 U.S., at 356, 111S.Ct., at 818. Nevertheless, we believe that courts,employers, and maritime workers can all benefit fromreference to these general principles. And where undisputedfacts reveal that a maritime worker has a clearly inadequatetemporal connection to vessels in navigation, the court maytake the question from the jury by granting summaryjudgment or a directed verdict. See, e.g., Palmer, 930 F.2d,at 439.
On the other hand, we see no reason to limit the seamanstatus inquiry, as petitioners contend, exclusively to anexamination of the overall course of a worker's service witha particular employer. Brief for Petitioners 14-15. When amaritime worker's basic assignment changes, his seamanstatus may change as well. See Barrett, 781 F.2d, at 1077(Rubin, J., dissenting) ("An assignment to work as a crewmember, like the voyage of a vessel, may be brief, and theRobison test is applicable in deciding the worker's statusduring any such employment"); Longmire, 610 F.2d, at1347, n. 6. For example, we can imagine situations inwhich someone who had worked for years in an employer'sshoreside headquarters is then reassigned to a ship in aclassic seaman's job that involves a regular and continuous,rather than intermittent, commitment of the worker's laborto the function of a vessel. Such a person should not bedenied seaman status if injured shortly after thereassignment, just as someone actually transferred to a deskjob in the company's office and injured in the hallwayshould not be entitled to claim seaman status on the basis ofprior service at sea. If a maritime employee receives a newwork assignment in which his essential duties are changed,he is entitled to have the assessment of the substantiality ofhis vessel-related work made on the basis of his activities inhis new position. See Cheavens, 64 Tulane L.Rev., at389-390. Thus, nothing in our opinion forecloses Jones Actcoverage, in appropriate cases, for Justice STEVENS'paradigmatic maritime worker injured while reassigned to "alengthy voyage on the high seas," post, at 2198. While ourapproach maintains the status-based inquiry this Court'searlier cases contemplate, we recognize that seaman statusalso should not be some immutable characteristic thatmaritime workers who spend only a portion of their time atsea can never attain.
III.
One final issue remains for our determination: whether theDistrict Court erred in instructing the jurors that, "[i]ndetermining whether Mr. Latsis performed a substantial partof his work on the vessel, [they could] not consider the
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period of time the Galileo was in drydock in Germany,because during that time period she was out of navigation."We agree with the Court of Appeals that it did.
The foregoing discussion establishes that, to qualify as aseaman under the Jones Act, a maritime employee musthave a substantial employment-related connection to avessel in navigation. See Wilander, supra, at 354-355, 111S.Ct., at 817. Of course, any time Latsis spent with theGalileo while the ship was out of navigation could not countas time spent at sea for purposes of that inquiry, and itwould have been appropriate for the District Court to makethis clear to the jury. Yet the underlying inquiry whether avessel is or is not "in navigation" for Jones Act purposes isa fact- intensive question that is normally for the jury andnot the court to decide. See Butler v. Whiteman, 356 U.S.271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958) (per curiam ); 2M. Norris, Law of Seamen § 30.13, p. 363 (4th ed. 1985)("Whether the vessel is in navigation presents a question offact to be determined by the trier of the facts. When thecase is tried to a jury the fact question should be left to theirconsideration if sufficient evidence has been presented toprovide the basis for jury consideration"). Removing theissue from the jury's consideration is only appropriate wherethe facts and the law will reasonably support only oneconclusion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250-251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), andthe colloquy between the court and counsel does not indicatethat the District Court made any such findings beforeoverruling respondent's objection to the drydock instruction. See Tr. 432. Based upon the record before us, we think thecourt failed adequately to justify its decision to remove thequestion whether the Galileo was "in navigation" while inBremerhaven from the jury.
Under our precedent and the law prevailing in the Circuits,it is generally accepted that "a vessel does not cease to be avessel when she is not voyaging, but is at anchor, berthed,or at dockside," DiGiovanni v. Traylor Bros., Inc., 959 F.2d1119, 1121 (CA1) (en banc), cert. denied, 506 U.S. 827,113 S.Ct. 87, 121 L.Ed.2d 50 (1992), even when the vesselis undergoing repairs. See Butler, supra, at 271, 78 S.Ct., at734; Senko, 352 U.S., at 373, 77 S.Ct., at 417; Norris,supra, at 364 ("[A] vessel is in navigation ... when it returnsfrom a voyage and is taken to a drydock or shipyard toundergo repairs in preparation to making another trip, andlikewise a vessel is in navigation, although moored to adock, if it remains in readiness for another voyage"(footnotes omitted)). At some point, however, repairsbecome sufficiently significant that the vessel can no longerbe considered in navigation. In West v. United States, 361U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959), we held thata shoreside worker was not entitled to recover forunseaworthiness because the vessel on which he was injuredwas undergoing an overhaul for the purpose of making herseaworthy and therefore had been withdrawn fromnavigation. We explained that, in such cases, "the focus
should be upon the status of the ship, the pattern of therepairs, and the extensive nature of the work contracted tobe done." Id., at 122, 80 S.Ct., at 192. See also United N.Y.and N.J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613,79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Desper, 342 U.S., at191, 72 S.Ct., at 218. The general rule among the Courts ofAppeals is that vessels undergoing repairs or spending arelatively short period of time in drydock are still consideredto be "in navigation" whereas ships being transformedthrough "major" overhauls or renovations are not. See Bull,6 U.S.F.Mar.L.J., at 582-584 (collecting cases).
Obviously, while the distinction at issue here is one ofdegree, the prevailing view is that "major renovations cantake a ship out of navigation, even though its use before andafter the work will be the same." McKinley v. All AlaskanSeafoods, Inc., 980 F.2d 567, 570 (CA9 1992). Our reviewof the record in this case uncovered relatively little evidencebearing on the Galileo 's status during the repairs, and evenless discussion of the question by the District Court. On theone hand, the work on the Chandris vessel took only aboutsix months, which seems to be a relatively short period oftime for important repairs on oceangoing vessels. Cf. id.,at 571 (17-month- long project involving major structuralchanges took the vessel out of navigation); Wixom v.Boland Marine & Manufacturing Co., 614 F.2d 956 (CA51980) (similar 3-year project); see also Senko, supra, at373, 77 S.Ct., at 417 (noting that "[e]ven a transoceanic linermay be confined to berth for lengthy periods, and whilethere the ship is kept in repair by its 'crew' "-- and that"[t]here can be no doubt that a member of its crew would becovered by the Jones Act during this period, even though theship was never in transit during his employment"). On theother hand, Latsis' own description of the work performedsuggests that the modifications to the vessel were actuallyquite significant, including the removal of the ship's bottomplates and propellers, the addition of bow thrusters, overhaulof the main engines, reconstruction of the boilers, andrenovations of the cabins and other passenger areas of theship. See App. 93-94. On these facts, which are similar tothose in McKinley, it is possible that Chandris could beentitled to partial summary judgment or a directed verdictconcerning whether the Galileo remained in navigationwhile in drydock; the record, however, contains nostipulations or findings by the District Court to justify itsconclusion that the modifications to the Galileo weresufficiently extensive to remove the vessel from navigationas a matter of law. On that basis, we agree with the Courtof Appeals that the District Court's drydock instruction waserroneous.
Even if the District Court had been justified in directing averdict on the question whether the Galileo remained innavigation while in Bremerhaven, we think that the court'scharge to the jury swept too broadly. Instead of simplynoting the appropriate legal conclusion and instructing thejury not to consider the time Latsis spent with the vessel in
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drydock as time spent with a vessel in navigation, theDistrict Court appears to have prohibited the jury fromconsidering Latsis' stay in Bremerhaven for any purpose. In our view, Latsis' activities while the vessel was indrydock are at least marginally relevant to the underlyinginquiry (whether Latsis was a seaman and not a land-basedmaritime employee). Naturally, the jury would be free todraw several inferences from Latsis' work during theconversion, not all of which would be in his favor. But thechoice among such permissible inferences should have beenleft to the jury, and we think the District Court's broadlyworded instruction improperly deprived the jury of thatopportunity by forbidding the consideration of Latsis' timein Bremerhaven at all.
IV.
Under the Jones Act, "[i]f reasonable persons, applying theproper legal standard, could differ as to whether theemployee was a 'member of a crew,' it is a question for thejury." Wilander, 498 U.S., at 356, 111 S.Ct., at 818. Onthe facts of this case, given that essential points are indispute, reasonable factfinders could disagree as to whetherLatsis was a seaman. Because the question whether theGalileo remained "in navigation" while in drydock shouldhave been submitted to the jury, and because the decision onthat issue might affect the outcome of the ultimate seamanstatus inquiry, we affirm the judgment of the Court ofAppeals remanding the case to the District Court for a newtrial.
On remand, the District Court should charge the jury in amanner consistent with our holding that the"employment-related connection to a vessel in navigation"necessary to qualify as a seaman under the Jones Act, id., at355, 111 S.Ct., at 817, comprises two basic elements: Theworker's duties must contribute to the function of the vesselor to the accomplishment of its mission, and the workermust have a connection to a vessel in navigation (or anidentifiable group of vessels) that is substantial in terms ofboth its duration and its nature. As to the latter point, thecourt should emphasize that the Jones Act was intended toprotect sea-based maritime workers, who owe theirallegiance to a vessel, and not land-based employees, whodo not. By instructing juries in Jones Act cases accordingly, courtscan give proper effect to the remedial scheme Congress hascreated for injured maritime workers.
It is so ordered.
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F. Contributing to Function of Vessel
111 S.Ct. 807
McDERMOTT INTERNATIONAL, INC.v.
WILANDERNo. 89-1474
Argued Dec. 3, 1990.Decided Feb. 19, 1991.
O'CONNOR, J., delivered the opinion for a unanimousCourt.
The question in this case is whether one must aid in thenavigation of a vessel in order to qualify as a "seaman"under the Jones Act, 46 U.S.C.App. § 688.
I
Jon Wilander worked for McDermott International, Inc., asa paint foreman. His duties consisted primarily ofsupervising the sandblasting and painting of various fixturesand piping located on oil drilling platforms in the PersianGulf. On July 4, 1983, Wilander was inspecting a pipe onone such platform when a bolt serving as a plug in the pipeblew out under pressure, striking Wilander in the head. Atthe time, Wilander was assigned to the American-flag vesselM/V Gates Tide, a "paint boat" chartered to McDermott thatcontained equipment used in sandblasting and painting theplatforms.
Wilander sued McDermott in the United States DistrictCourt for the Western District of Louisiana, seekingrecovery under the Jones Act for McDermott's negligencerelated to the accident. McDermott moved for summaryjudgment, alleging that, as a matter of law, Wilander wasnot a "seaman" under the Jones Act, and therefore notentitled to recovery. The District Court denied the motion. App. 19. In a bifurcated trial, the jury first determinedWilander's status as a seaman. By special interrogatory, thejury found that Wilander was either permanently assignedto, or performed a substantial amount of work aboard, theGates Tide, and that the performance of his dutiescontributed to the function of the Gates Tide or to theaccomplishment of its mission, thereby satisfying the test forseaman status established in Offshore Co. v. Robison, 266F.2d 769 (CA5 1959). App. to Pet. for Cert. 16-17. TheDistrict Court denied McDermott's motion for judgmentbased on the jury findings. Id., at 10-16.
The case then proceeded to trial on the issues of liability anddamages. The jury found that McDermott's negligence wasthe primary cause of Wilander's injuries, but that Wilanderhad been 25% contributorily negligent. The jury awardedWilander $337,500. The District Court denied McDermott's
motion for judgment notwithstanding the verdict, id., at19-21, and both parties appealed.
The United States Court of Appeals for the Fifth Circuitaffirmed the determination of seaman status, findingsufficient evidence to support the jury's finding under theRobison test. 887 F.2d 88, 90 (1989). McDermott asked thecourt to reject the Robison requirement that a seaman"contribut[e] to the function of the vessel or to theaccomplishment of its mission," Robison, supra, at 779, infavor of the more stringent requirement of Johnson v. JohnF. Beasley Construction Co., 742 F.2d 1054 (CA7 1984).In that case, the Court of Appeals for the SeventhCircuit--relying on cases from this Court requiring that aseaman aid in the navigation of a vessel--held that seamanstatus under the Jones Act may be conferred only onemployees who make "a significant contribution to themaintenance, operation, or welfare of the transportationfunction of the vessel." Id., at 1063 (emphasis added).
The Fifth Circuit here concluded that Wilander would notmeet the requirements of the Johnson test, but reaffirmedthe rule in Robison and held that Wilander was a "seaman"under the Jones Act. 887 F.2d, at 90-91. We grantedcertiorari, 496 U.S. 935, 110 S.Ct. 3212, 110 L.Ed.2d 660(1990), to resolve the conflict between the Robison andJohnson tests on the issue of the transportation/navigationfunction requirement, and now affirm.
II
A
* * *
The Jones Act does not define "seaman."
* * * In the absence of contrary indication, we assume thatwhen a statute uses such a term, Congress intended it tohave its established meaning. See Morissette v. UnitedStates, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288(1952); Gilbert v. United States, 370 U.S. 650, 658, 82S.Ct. 1399, 1403, 8 L.Ed.2d 750 (1962). Our first task,therefore, is to determine who was a seaman under thegeneral maritime law when Congress passed the Jones Act.
B
Since the first Judiciary Act, federal courts have determinedwho is eligible for various seamen's benefits under generalmaritime law. Prior to the Jones Act, these benefits includedthe tort remedies outlined in The Osceola and a lien againstthe ship for wages. See generally Gilmore & Black, supra,at 35-36, 281; The John G. Stevens, 170 U.S. 113, 119, 18S.Ct. 544, 546, 42 L.Ed. 969 (1898); The Osceola, supra,
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189 U.S. at 175, 23 S.Ct., at 487. Certain early cases limitedseaman status to those who aided in the navigation of theship. The narrow rule was that a seaman-- sometimesreferred to as a mariner--must actually navigate: "[T]hepersons engaged on board of her must have been possessedof some skill in navigation. They must have been able to'hand, reef and steer,' the ordinary test of seamanship." TheCanton, 5 F.Cas. 29, 30 (No. 2,388) (D.Mass.1858). Seealso Gurney v. Crockett, 11 F.Cas. 123, 124 (No. 5,874)(SDNY 1849).
Notwithstanding the aid in navigation doctrine, federalcourts throughout the last century consistently awardedseamen's benefits to those whose work on board ship did notdirect the vessel. Firemen, engineers, carpenters, and cooksall were considered seamen. See, e.g., Wilson v. The Ohio,30 F.Cas. 149 (No. 17,825) (ED Pa.1834) (firemen); Allenv. Hallet, 1 F.Cas. 472 (No. 223) (SDNY 1849) (cook);Sageman v. The Brandywine, 21 F.Cas. 149 (No. 12,216)(D.Mich.1852) (female cook); The Sultana, 23 F.Cas. 379(No. 13,602) (D.Mich.1857) (clerk). See generally M.Norris, Law of Seamen § 2.3 (4th ed. 1985); Engerrand &Bale, Seaman Status Reconsidered, 24 S.Tex.L.J. 431,432-433 (1983).
Some courts attempted to classify these seamen under abroad conception of aid in navigation that included thosewho aided in navigation indirectly by supporting thoseresponsible for moving the vessel: “[T]he services renderedmust be necessary, or, at least, contribute to the preservationof the vessel, or of those whose labour and skill areemployed to navigate her.” Trainer v. The Superior, 24F.Cas. 130, 131 (No. 14,136) (ED Pa.1834). This fictionworked for cooks and carpenters--who fed those whonavigated and kept the ship in repair--but what of a cooperwhose job it was to make barrels to aid in whaling? As earlyas 1832, Justice Story, sitting on circuit, held that "[a]'cooper' is a seaman in contemplation of law, although hehas peculiar duties on board of the ship." United States v.Thompson, 28 F.Cas. 102 (No. 16,492) (CC Mass.1832).Justice Story made no reference to navigation in declaringit established that: "A cook and steward are seamen in thesense of the maritime law, although they have peculiarduties assigned them. So a pilot, a surgeon, a ship-carpenter,and a boatswain, are deemed seamen, entitled to sue in theadmiralty." Ibid.
By the middle of the 19th century, the leading admiraltytreatise noted the wide variety of those eligible for seamen'sbenefits: "Masters, mates, sailors, surveyors, carpenters,coopers, stewards, cooks, cabin boys, kitchen boys,engineers, pilots, firemen, deck hands, waiters,--women aswell as men,--are mariners." E. Benedict, AmericanAdmiralty § 278, p. 158 (1850). Benedict concluded thatAmerican admiralty courts did not require that seamen havea connection to navigation. "The term mariner includes allpersons employed on board ships and vessels during the
voyage to assist in their navigation and preservation, or topromote the purposes of the voyage." Ibid. (emphasisadded). Moreover, Benedict explained, this was the betterrule; admiralty courts throughout the world had longrecognized that seamen's benefits were properly extended toall those who worked on board vessels in furtherance of themyriad purposes for which ships set to sea:
"It is universally conceded that the general principles oflaw must be applied to new kinds of property, as theyspring into existence in the progress of society, accordingto their nature and incidents, and the common sense of thecommunity. In the early periods of maritime commerce,when the oar was the great agent of propulsion, vesselswere entirely unlike those of modern times--and eachnation and period has had its peculiar agents of commerceand navigation adapted to its own wants and its ownwaters, and the names and descriptions of ships andvessels are without number. Under the class of marinersin the armed ship are embraced the officers and privatesof a little army. In the whale ship, the sealing vessel--thecodfishing and herring fishing vessel--the lumbervessel--the freighting vessel--the passenger vessel--thereare other functions besides these of mere navigation, andthey are performed by men who know nothing ofseamanship--and in the great invention of modern times,the steamboat, an entirely new set of operatives, areemployed, yet at all times and in all countries, all thepersons who have been necessarily or properly employedin a vessel as co-labourers to the great purpose of thevoyage, have, by the law, been clothed with the legalrights of mariners--no matter what might be their sex,character, station or profession." Id., § 241, pp. 133-134.
By the late 19th and early 20th centuries, federal courtsabandoned the navigation test altogether, including in theclass of seamen those who worked on board and maintainedallegiance to the ship, but who performed more specializedfunctions having no relation to navigation. The crucialelement in these cases was something akin to Benedict's"great purpose of the voyage." Thus, in holding that afisherman, a chambermaid, and a waiter were all entitled toseamen's benefits, then-Judge Brown, later the author of TheOsceola, eschewed reference to navigation: "[A]ll handsemployed upon a vessel, except the master, are entitled to a[seaman's lien for wages] if their services are in furtheranceof the main object of the enterprise in which she isengaged." The Minna, 11 F. 759, 760 (ED Mich.1882).Judge Learned Hand rejected a navigation test explicitly inawarding seamen's benefits to a bartender: "As I can see inprinciple no reason why there should be an artificiallimitation of rights to those engaged in the navigation of theship, to the exclusion of others who equally further thepurposes of her voyage, ... I shall decide that the libelant hasa lien for his wages as bartender." The J.S. Warden, 175 F.314, 315 (SDNY 1910). In Miller v. The Maggie P., 32 F.300, 301 (ED Mo.1887), the court explained that the rule
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that maritime employment must be tied to navigation hadbeen "pronounced to be inadmissible and indecisive by laterdecisions." See also The Ocean Spray, 18 F.Cas. 558,560-561 (No. 10,412) (D Ore.1876) (sealers andinterpreters; citing Benedict, supra ); The Carrier Dove, 97F. 111, 112 (CA1 1899) (fisherman); United States v.Atlantic Transport Co., 188 F. 42 (CA2 1911) (horseman);The Virginia Belle, 204 F. 692, 693-694 (ED Va. 1913)(engineer who assisted in fishing); The Baron Napier, 249F. 126 (CA4 1918) (muleteer). See generally Norris, Law ofSeamen § 2.3; Engerrand & Bale, 24 S.Tex.L.J., at 434-435,and nn. 29-30. An 1883 treatise declared: "All personsemployed on a vessel to assist in the main purpose of thevoyage are mariners, and included under the name ofseamen." M. Cohen, Admiralty 239.
We believe it settled at the time of The Osceola and thepassage of the Jones Act that general maritime law did notrequire that a seaman aid in navigation. It was onlynecessary that a person be employed on board a vessel infurtherance of its purpose. We conclude therefore that, at thetime of its passage, the Jones Act established no requirementthat a seaman aid in navigation. Our voyage is not over,however.
C
As had the lower federal courts before the Jones Act, thisCourt continued to construe "seaman" broadly after theJones Act. In International Stevedoring Co. v. Haverty, 272U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926), the Court heldthat a stevedore is a "seaman" covered under the Act whenengaged in maritime employment. Haverty was a longshoreworker injured while stowing freight in the hold of a dockedvessel. The Court recognized that "as the word iscommonly used, stevedores are not 'seamen.' " Id., at 52, 47S.Ct., at 19. "But words are flexible.... We cannot believethat Congress willingly would have allowed the protectionto men engaged upon the same maritime duties to vary withthe accident of their being employed by a stevedore ratherthan by the ship." Ibid.
Congress would, and did, however. Within six months of thedecision in Haverty, Congress passed the Longshore andHarbor Workers' Compensation Act (LHWCA), 44 Stat.(part 2) 1424, as amended, 33 U.S.C. §§ 901- 950. The Actprovides recovery for injury to a broad range of land-basedmaritime workers, but explicitly excludes from its coverage"a master or member of a crew of any vessel." 33 U.S.C. §902(3)(G). This Court recognized the distinction, albeitbelatedly, in Swanson v. Marra Brothers, Inc., 328 U.S. 1,66 S.Ct. 869, 90 L.Ed. 1045 (1946), concluding that theJones Act and the LHWCA are mutually exclusive. TheLHWCA provides relief for land-based maritime workers,and the Jones Act is restricted to "a master or member of acrew of any vessel": "We must take it that the effect of theseprovisions of the [LHWCA] is to confine the benefits of the
Jones Act to the members of the crew of a vessel plying innavigable waters and to substitute for the right of recoveryrecognized by the Haverty case only such rights tocompensation as are given by the [LHWCA]." Id., at 7, 66S.Ct., at 872. "[M]aster or member of a crew" is arefinement of the term "seaman" in the Jones Act; itexcludes from LHWCA coverage those properly coveredunder the Jones Act. Thus, it is odd but true that the keyrequirement for Jones Act coverage now appears in anotherstatute.
With the passage of the LHWCA, Congress established aclear distinction between land-based and sea-based maritimeworkers. The latter, who owe their allegiance to a vessel andnot solely to a land-based employer, are seamen. Ironically,on the same day that the Court decided Swanson it handeddown Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct.872, 90 L.Ed. 1099 (1946). With reasoning remarkablysimilar to that in Haverty, the Court extended to a stevedorethe traditional seamen's remedy of unseaworthiness in thosecases where the stevedore "is doing a seaman's work andincurring a seaman's hazards." 328 U.S., at 99, 66 S.Ct., at880. It took Congress a bit longer to react this time. In1972, Congress amended the LHWCA to bar longshore andharbor workers from recovery for breach of the duty ofseaworthiness. See 86 Stat. 1263, 33 U.S.C. § 905(b); Milesv. Apex Marine Corp., 498 U.S. 19, 28, 111 S.Ct. 317, 323,112 L.Ed.2d 275 (1990). Whether under the Jones Act orgeneral maritime law, seamen do not include land-basedworkers.
The LHWCA does not change the rule that a seaman neednot aid in navigation. "Member of a crew" and "seaman"are closely related terms. Indeed, the two were often usedinterchangeably in general maritime cases. See, e.g., TheOsceola, 189 U.S., at 175, 23 S.Ct., at 487; The BuenaVentura, 243 F. 797, 799 (SDNY 1916). There is nothing inthese cases, or the LHWCA, to indicate that members of acrew are required to navigate. The "member of a crew"exception in the LHWCA overrules Haverty; "master ormember of a crew" restates who a "seaman" under the JonesAct is supposed to be: a sea-based maritime employee.
III
The source of the conflict we resolve today is this Court'sinconsistent use of an aid in navigation requirement. Theinconsistency arose during the 19 years that passed betweenthe enactment of the LHWCA in 1927 and the decision inSwanson in 1946--19 years during which the Court did notrecognize the mutual exclusivity of the LHWCA and theJones Act.
* * *
IV
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We think the time has come to jettison the aid in navigationlanguage. That language, which had long been rejected byadmiralty courts under general maritime law, and by thisCourt in Warner, a Jones Act case, slipped back in throughan interpretation of the LHWCA at a time when theLHWCA had nothing to do with the Jones Act.
We now recognize that the LHWCA is one of a pair ofmutually exclusive remedial statutes that distinguishbetween land-based and sea-based maritime employees. TheLHWCA restricted the definition of "seaman" in the JonesAct only to the extent that "seaman" had been taken toinclude land-based employees. There is no indication in theJones Act, the LHWCA, or elsewhere, that Congress hasexcluded from Jones Act remedies those traditional seamenwho owe allegiance to a vessel at sea, but who do not aid innavigation.
In his dissent in Sieracki, Chief Justice Stone chastised theCourt for failing to recognize the distinct nature ofland-based and sea-based employment. Traditional seamen'sremedies, he explained, have been "universally recognizedas ... growing out of the status of the seaman and hispeculiar relationship to the vessel, and as a feature of themaritime law compensating or offsetting the special hazardsand disadvantages to which they who go down to sea inships are subjected." 328 U.S., at 104, 66 S.Ct., at 882. It isthis distinction that Congress recognized in the LHWCAand the Jones Act. See id., at 106, 66 S.Ct., at 882; Swansonv. Marra Brothers, Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed.1045 (1946). It also explains why all those with that"peculiar relationship to the vessel" are covered under theJones Act, regardless of the particular job they perform.
We believe the better rule is to define "master or member ofa crew" under the LHWCA, and therefore "seaman" underthe Jones Act, solely in terms of the employee's connectionto a vessel in navigation. This rule best explains our caselaw and is consistent with the pre-Jones Act interpretationof "seaman" and Congress' land-based/sea-based distinction.All who work at sea in the service of a ship face thoseparticular perils to which the protection of maritime law,statutory as well as decisional, is directed. See generallyRobertson, A New Approach to Determining Seaman Status,64 Texas L.Rev. 79 (1985). It is not the employee'sparticular job that is determinative, but the employee'sconnection to a vessel.
Shortly after Butler, our last decision in this area, the Courtof Appeals for the Fifth Circuit attempted to decipher thisCourt's seaman status cases. See Offshore Co. v. Robison,266 F.2d 769 (1959). The Fifth Circuit correctly determinedthat, regardless of its language, this Court was no longerrequiring that seamen aid in navigation. Id., at 776. As partof its test for seaman status, Robison requires that aseaman's duties "contribut[e] to the function of the vessel orto the accomplishment of its mission." Id., at 779.
The key to seaman status is employment-related connectionto a vessel in navigation. We are not called upon here todefine this connection in all details, but we hold that anecessary element of the connection is that a seamanperform the work of a vessel. See Maryland Casualty Co. v.Lawson, 94 F.2d 190, 192 (CA5 1938) ("There is implied adefinite and permanent connection with the vessel, anobligation to forward her enterprise"), cited approvingly inNorton, 321 U.S., at 573, 64 S.Ct., at 751. In this regard, webelieve the requirement that an employee's duties must"contribut[e] to the function of the vessel or to theaccomplishment of its mission" captures well an importantrequirement of seaman status. It is not necessary that aseaman aid in navigation or contribute to the transportationof the vessel, but a seaman must be doing the ship's work.
V
Jon Wilander was injured while assigned to the Gates Tideas a paint foreman. He did not aid in the navigation ortransportation of the vessel. The jury found, however, thatWilander contributed to the more general function ormission of the Gates Tide, and subsequently found that hewas a "seaman" under the Jones Act. McDermott argues thatthe question should not have been given to the jury. Thecompany contends that, as a matter of law, Wilander is notentitled to Jones Act protection because he did not aid innavigation by furthering the transportation of the GatesTide.
We have said that seaman status under the Jones Act is aquestion of fact for the jury. In Bassett, an LHWCA case,the Court held that Congress had given to the deputycommissioner, an administrative officer, the authority todetermine who is a "member of a crew" under the LHWCA.309 U.S., at 257-258, 60 S.Ct., at 547-548. If there isevidence to support the deputy commissioner's finding, it isconclusive. Ibid.In Senko, we applied the same rule tofindings by the jury in Jones Act cases. 352 U.S., at 374, 77S.Ct., at 417. "[A] jury's decision is final if it has areasonable basis." Ibid. We are not asked here to reconsiderthis rule, but we note that the question of who is a "memberof a crew," and therefore who is a "seaman," is bettercharacterized as a mixed question of law and fact. When theunderlying facts are established, and the rule of law isundisputed, the issue is whether the facts meet the statutorystandard. See Pullman- Standard v. Swint, 456 U.S. 273,289, n. 19, 102 S.Ct. 1781, 1790, n. 19, 72 L.Ed.2d 66(1982) (defining a mixed question).
It is for the court to define the statutory standard. "Memberof a crew" and "seaman" are statutory terms; theirinterpretation is a question of law. The jury finds the factsand, in these cases, applies the legal standard, but the courtmust not abdicate its duty to determine if there is areasonable basis to support the jury's conclusion. Ifreasonable persons, applying the proper legal standard,
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could differ as to whether the employee was a "member ofa crew," it is a question for the jury. See Anderson v. LibertyLobby, Inc., 477 U.S. 242, 250-251, 106 S.Ct. 2505,2511-2512, 91 L.Ed.2d 202 (1986). In many cases, thiswill be true. The inquiry into seaman status is of necessityfact specific; it will depend on the nature of the vessel andthe employee's precise relation to it. See Desper v. StarvedRock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218, 96L.Ed. 205 (1952) ("The many cases turning upon thequestion whether an individual was a "seaman" demonstratethat the matter depends largely on the facts of the particularcase and the activity in which he was engaged at the time ofinjury"). Nonetheless, summary judgment or a directedverdict is mandated where the facts and the law willreasonably support only one conclusion. Anderson, supra,477 U.S., at 248, 250-251, 106 S.Ct., at 2510, 2511-2512.
The question presented here is narrow. We are not asked todetermine if the jury could reasonably have found thatWilander had a sufficient connection to the Gates Tide to bea "seaman" under the Jones Act. We are not even askedwhether the jury reasonably found that Wilander advancedthe function or mission of the Gates Tide. We are asked onlyif Wilander should be precluded from seaman status becausehe did not perform transportation-related functions on boardthe Gates Tide. Our answer is no. Accordingly, thejudgment of the Court of Appeals is
Affirmed.
G. "Pseudo-Seaman" or Seaman Pro Hac Vice
Note
In Seas Shipping Corp. v. Sieracki, 328 U.S. 85, 1946 AMC 698 (1948), the U.S. Supreme Court held thatlongshoremen were entitled to a seaworthy vessel and, like true seamen, could sue the vessel owner for injuries causedby an unseaworthy condition. The basis for that decision was the Supreme Court's conclusion that longshoremen andharbor workers are exposed to many of the same risks suffered by regular members of a vessel's crew and therefore,to this extent at least, are entitled to the benefit of the unseaworthiness doctrine previously reserved for true seamenalone. Such longshoremen became known as "Sieracki Seamen."
The 1972 amendments to the Longshore and Harbor Workers Compensation Act abolished the Sierackiunseaworthiness remedy for persons covered under the LHWCA. 33 U.S.C. § 905(b); Director, Office of Workers'Compensation Programs, U.S. Department of Labor v. Perini north River Association, 459 U.S. 297, 103 S.Ct. 634,74 L.Ed.2d 465, 1983 AMC 609 (1983), at 459 U.S. 313.
A split in authorities has developed on the question whether the Sieracki seaman doctrine continues to existfor those who, while not true seamen, are nonetheless exposed to risks similar to those suffered by true seamen butwho are not covered under the LHWCA and therefore not subject to the specific abolition of the unseaworthinessremedy. See Green v. Vermilion Corp., 144 F.3d 332 (5 Cir. 1998); Aparicio v. THE SWAN LAKE, 643 F.2D 1109,th
1114 (5 Cir. 1981); Cormier v. Oceanic Contractors, Inc., 696 F.2d 1112 (5 Cir. 983); Coates v. Penrod Drillingth th
Corp., 785 F.Supp. 614, 622-624 (S.D. Ms. 1992); Jacobs v. Northern King Shipping Co., 1998 WL 13655 (E.D.La. 1/15/98). Other courts have held that the 1972 amendments to the LHWCA abolished the "Sieracki Seaman"doctrine completely. See, e.g., Normile v. Maritime Co. of the Philippines, 643 F.2d 1380, 1381-1382 (9 Cir. 1981);th
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see also, Charles M. Davis, MARITIME LAW DESK BOOK (Compass Publishing Co. 2010), at p. 214.
III. SEAMEN'S REMEDIES
A. Introduction/Overview
23 S.Ct. 483
THE OSCEOLANo. 98
Argued December 2, 1902Decided March 2, 1903
Mr. Justice Brown delivered the opinion of the court.
* * *Upon a full review, however, of English and Americanauthorities upon these questions, we think the law may beconsidered as settled upon the following propositions:
1. That the vessel and her owners are liable, in case aseaman falls sick, or is wounded, in the service of the ship,to the extent of his maintenance and cure, and to his wages,at least so long as the voyage is continued.
2. That the vessel and her owner are, both by English andAmerican law, liable to an indemnity for injuries receivedby seamen in consequence of the unseaworthiness of theship, or a failure to supply and keep in order the properappliances appurtenant to the ship.
3. That all the members of the crew, except, perhaps, themaster, are, as between themselves, fellow servants, andhence seamen cannot recover for injuries sustained throughthe negligence of another member of the crew beyond theexpense of his maintenance and cure.
4. That the seaman is not allowed to recover an indemnityfor the negligence of the master, or any member of the crew,but is entitled to maintenance and cure, whether the injurieswere received by negligence or accident.
It will be observed in these cases that a departure has beenmade from the Continental Codes in allowing an indemnitybeyond the expense of maintenance and cure in cases arisingfrom unseaworthiness. This departure originated in Englandin the merchants' shipping act of 1876 ... and in this country,in a general consensus of opinion among the circuit anddistrict courts, that an exception should be made from thegeneral principle before obtaining, in favor of seamensuffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine byany contrary decision of our own.
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B. Maintenance and Cure
194 Misc. 942; 83 N.Y.S.2d 297; 1948 N.Y. Misc.LEXIS 3334
City Court, City of New York, Trial Term, NewYork County
KOISTINENv.
AMERICAN EXPORT LINES, Inc.
May 26, 1948
CARLIN, Justice
The plaintiff, a seaman, rated as a fireman andwatertender, on the S. S. John N. Robins, was injuredwhile on shore leave in the port of Split, Yugoslavia, onFebruary 3rd, 1946; he went ashore about noon; in theexercise of a seaman's wonted privilege he resorted toa tavern where he drank one glass of wine like to ourfamiliar port; thereafter in the course of a walk abouttown he visited another liquid dispensary where hequaffed two glasses of a similar vintage; there he met awoman whose blandishments, prevailing over his bettersense, lured him to her room for purposes notparticularly platonic; while there 'consideration like anangel came and whipped the offending Adam out ofhim'; the woman scorned was unappeased by hiscontrition and vociferously remonstrated unless herunregarded charms were requited by an accretion of'dinner' (phonetically put); the court erroneouslyinterpreted the word as showing that the woman had acarnivorous frenzy which could only be soothed by thesucculent sirloin provided at the plaintiff's expense; butit was explained to denote a pecuniary not agastronomic dun; she then essayed to relieve hispockets of their monetary content but without thesuccess of the Lady that's known as Lou in Service'sSpell of the Yukon where the man from the creeks,unlike plaintiff, was not on his toes to repel thepeculation; completely thwarted the woman lockedplaintiff in her room whereupon he proceeded to kickthe door while he clamored for exit; not thuspersuasive, he went to the window which was about sixto eight feet above the ground and while therecontemplating departure he was quickened to resolutionby the sudden appearance of a man who formidablyloomed at the lintels; thus, tossed between the horns ofa most dire dilemma to wit, the man in the doorway andthe window, the plaintiff eyeing the one with the dullerpoint, elected the latter means of egress undoubtedly atthe time laboring under the supposition that he wasabout to be as roughly used as the other man in abadger game; parenthetically it may be observed that it
is a matter of speculation for contemporarycommentators as well as for discussion by the delegatesto U.N. how the refinements of that pastime came topenetrate the ferruginous arras of Yugoslavia especiallyas the diversion is reputed to be of strictly capitalisticAmerican origin. So the plaintiff thus confronted leapedfrom the window and sustained injuries whichhospitalized him in Yugoslavia and the United States;during the extensive period of his incapacitation hiswages and hospital bills were paid by defendant; theonly question confronting the court is his claim formaintenance over a period of thirty-six days. Thedefendant resists the claim on the foregoing factscontending that it is founded in immorality; it furtherdefends against the claim on the ground that during allthe times involved in this action the United States andnot the defendant was the owner of the ship and,therefore, was exclusively liable in the event plaintiffhad a claim. It appears that defendant managed andoperated the ship under the usual General AgencyAgreement with the government; it further appears thatplaintiff, when he signed the shipping articles andsubsequently, neither knew nor was told that he wasworking for the United States; the only intimation ofdefendant's General Agency Agreement with thegovernment was contained on the front page of theshipping articles which was not displayed nor explainedto the plaintiff when he signed as a crew member;according to the testimony of the master a facsimile ofthe front page of the articles was posted on the bulletinboard in the crew's mess; this plaintiff denies;presupposing that such was the fact it is hard toconceive how such publication would have beenenlightening to plaintiff who testified he could neitherread nor write English; the difficulty in following histestimony given in broken English without the aid of aninterpreter corroborated his ignorance of our language;so that presupposing that the record of the government'sownership was posted on the bulletin board it couldhardly come to the knowledge of plaintiff unless he wasactually so informed; the master on his testimonyestablished that he neither read nor was asked to read toplaintiff the shipping articles and that he did not revealto plaintiff that, as a member of the crew, he was anemployee of the United States; the master furthertestified that the crew was procured from the MaritimeUnion in New York which supplied seamen ondefendant's call; that defendant paid the crew; that anydisputes regarding its wages were taken up by themaster with the representative of the union who in turnwould discuss it with defendant; that all the ship'sbusiness was reported by the master to the defendant. Without presently passing upon whether thecircumstances under which plaintiff met with hisinjuries entitle him to recover maintenance suffice it to
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observe that the defendant cannot defeat the right torecovery merely by establishing that it managed andoperated the ship under a General Agency Agreementwith the government as owner (Hust v. Moore-McCormack Lines, Inc., 328 U.S. 707, 66 S.Ct. 1218,90 L.Ed. 1534; Lewis v. United States Nav. Co., Inc.,D.C., 57 F.Supp. 652; The Anna Howard Shaw (Warrenv. United States et al.), D.C., 75 F.Supp. 210; Healey v.Sprague S.S. Co., 191 Misc. 164, 76 N.Y.S.2d 564,Steuer, J.; as appears from the facts of the instant casethe plaintiff was not apprized of defendant's status asagent for the government, as principal, therefore,plaintiff without knowledge or disclosure of the agencyagreement cannot be deprived thereby of his rights as aseaman against the defendant, as agent of anundisclosed principal. Horan v. Hughes, D.C., 129 F.248, affirmed 2 Cir., 129 F. 1005; Brady v. RooseveltS.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471;Lewis v. United States Nav. Co., Inc., supra; Yancey v.United States et al., D.C., 77 F.Supp. 600, 1948 A.M.C.317. From the foregoing authorities the court concludesthat defendant may not defeat plaintiff's cause of actionmerely on the ground that it was not the owner of theship. This brings us to a consideration of the peculiarcircumstances under which plaintiff met with hisinjuries; do they militate against the recovery ofmaintenance from the defendant? No authority with ananalogous state of facts was cited by either side; thedefendant contends that as the plaintiff did notaccompany the woman to her room for heavenlycontemplation his leap from the window was taintedwith his original immoral intent and, therefore, he is notentitled to sue for maintenance. While it is true thatthere was a gross degree of culpability in the originalpurpose of the plaintiff for which he went to thewoman's room it cannot be consistently argued thatplaintiff, having abandoned that purpose beforeconsummation and having sought to conserve his safetyas well as the life of a good sailor, was acting incontinuance of the initial immoral intent; in the court'sopinion the proximate cause of plaintiff's leap from thewindow was not his original intent but was theconcurrence of the locked door from which he soughtegress and the subsequent looming thereat of the manwith the menacing mien; the expedition of plaintiff'sviolent fear outran the pauser, reason, causing him inthe exercise of an erroneous judgment to jump ratherthan drop to the ground which undoubtedly would havebeen a safer means in view of the comparatively shortspace he had to negotiate for escape. Under thecircumstances the window was the only solutionpresented to plaintiff in his emergency; at least hecannot be condemned for so conjecturing despite hisstarting on the wrong moral foot in the first instance;again the ticklish situation which confronted plaintiffimmediately before his leap was not a reasonablyforeseeable consequence of his original intention. It
may be argued that the foregoing pronouncement isobiter dicta but the court holds that it is consistent withthe law enunciated by more respectable authority; asheretofore intimated no case cited in the briefs of eitherside squares analogously in its facts with thosepresented to the court in this case; though of novelimpression it does not fall without well definedprinciples found in the decisions. In Ellis v. AmericanHawaiian S.S. Co., 9 Cir., 165 F.2d 999, a seaman onshore leave was not found to be definitely intoxicatedfrom the consumption of three bottles of beer and hisdiving into a swimming pool was not construed aswillful or gross misconduct; nor does the court find inthe present case that the drinking of three glasses ofwine rendered plaintiff intoxicated; nor did his jumpfrom the window denote inebriation; to hold otherwisewould argue strongly against his ability to choose themeans of escape and would indict him for an error ofjudgment which is not the law against one who choosesin an emergency one means of safety when anothermight have been more conducive to that end. SeeMaguire v. Barrett, 223 N.Y. 49, 55, 119 N.E. 79, 80;Lewis v. Long Island R. R. Co., 162 N.Y. 52, 62, 56N.E. 548, 551; Laidlaw v. Sage, 158 N.Y. 73, 89, 90, 52 N.E. 679, 684, 685, 44 L.R.A. 216. Peculiarly theplaintiff chose the only means of escape even though itresulted in his injuries; had he elected to go out the doorwith the threatening man, there barring the way, hisinjuries reasonably might have been more dire andserious than those sustained by his jump from thewindow; at least he's still alive. In the Anna HowardShaw case, supra, the seaman is held to be entitled tomaintenance unless his injury resulted from some wilfulmisbehavior or deliberate act of indiscretion; grossnegligence according to the rule of this case woulddeprive the seaman of maintenance. As appears fromthe foregoing it may be argued that plaintiff's immoralindiscretion first put him in the woman's room but it didnot impel him to jump from the window; that wasoccasioned by the barred door with the man thereatmenacingly looming; nor did the Anna Howard Shawcase hold that the seaman on shore leave was sointoxicated as to constitute wilful misbehaviorprejudicial to his right to maintenance and cure.Quoting from the Anna Howard Shaw case, supra, 75F.Supp. at page 213 which cited Aguilar v. StandardOil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87L.Ed. 1107 it is said 'A seaman, injured in the service ofhis ship, is entitled to maintenance at its expense. * ** 'Only some wilful misbehavior or deliberate act ofindiscretion suffices to deprive' him of maintenance, the'traditional instances' being 'venereal disease andinjuries received as a result of intoxication.' See alsoNowery v. Smith, D.C., 69 F.Supp. 755, affirmed 3 Cir.,1947, 161 F.2d 732; Moss v. Alaska Packers Ass'n, 70Cal.App.2d Supp. 857, 160 P.2d 224. In Boulton v.Moore, C.C., 14 F. 922, 926, the court said regarding
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seamen 'As 'wards' of the court, they are treated withthe tenderness of a guardian' and consistent with thatprinciple is the decision in Aguilar v. Standard Oil Co.of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 934, 87L.Ed. 1107, 1943 A.M.C. 451, in holding that theshipowner is liable for maintenance and cure to aseaman the court said 'Only some wilful misbehavior ordeliberate act of indiscretion suffices to deprive theseaman of his protection. *** The traditional instancesare venereal disease and injuries received as a result ofintoxication, though on occasion the latter has beenqualified in recognition of a classic predisposition ofsailors ashore. Other recent cases however disclose atendency to expand these traditional exceptions'. Inother words the courts have been liberal in their attitudetoward seamen who receive injuries on shore leavethrough their notorious penchants not stemming fromintoxication or deliberate acts of indiscretion; neither isestablished in the present case under the facts adduced.The plaintiff in the court's opinion is entitled to recover.The question remaining is how much; cases have beencited which have variously held a range formaintenance between $ 2.50 to $ 4.00 a day; this courtin the case of Proctor v. Sword Line, Inc., -- Misc. --, 83 N.Y.S.2d 288, held that $5.20 a day was areasonable allowance for maintenance; considering thecosts of living and lodging under the standardsprevailing in the recent times involved in this claimwhich differ no whit from those obtaining now, thecourt adheres to its prior determination that $5.20 a dayis a fair and reasonable allowance for maintenance.Motions by defendant upon which decision wasreserved to dismiss the complaint are denied withexceptions to defendant. Judgment for plaintiff againstdefendant for $187.20 for thirty-six days ofmaintenance at $5.20 a day. As findings of fact andconclusions of law were waived at the trial let the clerkenter judgment accordingly. Ten days' stay and thirtydays to make a case is granted defendant after serviceupon its attorneys of the judgment herein with notice ofentry. Exhibits may be had at chambers.
Notes: Injuries on Land and "Service of the Ship"
Blue water seaman: shore leave vs. vacation
"Shore leave consisting of brief periods ashore in home or foreign ports in the course of a voyage, or perhapseven before a voyage begins or after it has terminated, is no doubt, a usual, traditional, and perhaps essential incidentof a seaman's employment. Furthermore, during such leave the seaman in a sense is in the service of his ship, for, wesuppose he could be called back on board, if he could be found, to cope with any shipboard emergency which mightarise in port. But protracted vacations are not of 'elemental necessity in the sailing of ships, a part of the business asold as the art.' They are not traditional in maritime employment; they are the product of modern collective bargainingagreements now generally common both to sea and ashore. And, during vacation periods we cannot assume that theseaman is answerable to the call of duty; and hence in a sense is in the service of the ship." Haskell v. Socony MobilOil Co., 237 F.2d 707, 710 (1 Cir. 1956).st
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Commuter seaman
Gilmore & Black in THE LAW OF ADMIRALTY 292 (2 ed. 1975) have observed that the extension ofnd
the maintenance and cure remedy to shore leave raises questions in cases involving "commuter seamen," those wholive at home and commute to work or who serve for a fixed period of time on a vessel and are then on shore for aperiod of time fixed or otherwise. An example of the former would be a seaman employed on a ferry boat that crossedthe Mississippi River going back and forth between the east bank of New Orleans to the west bank – a voyage thattook but a few minutes. The latter are illustrated by offshore workers who often work a 7-day shift on a drillingplatform and then are on shore for their seven days off, or persons who work rotating shifts, that is they work a shifton a vessel until a particular job is finished and then they are on shore until their turn comes up to work another shift.
The Fifth Circuit has stated that there are two factors to be considered in the "commuter seaman" situation:(1) whether or not the seaman was on authorized shore leave when injured, and (2) whether or not the seaman wasanswerable to the call of duty. Shore leave status in the traditional sense refers to the seaman "... who, as a necessaryincident of irregular shipboard employment, was authorized to go ashore from time to time and place to place fordiversion and relax from the routine of the ship. [N]ot only did the shipowner's business separate such a seaman fromhis usual places of association, but also, since he was not replaced while he was ashore, he remained at all timessubject to his shipping articles and recallable at the will of his master. * * * Not so for this offshore worker in the oilindustry. Sellers employment was arranged into definite, equal periods on shore and on the rig. He was subjected tono foreign or irregular accommodations. Such a worker was to a large extent able to maintain the home life ofordinary shore dwellers. A separate crewman regularly replaced him and recall was not contemplated under anyordinary circumstances." Sellers v. Dixilyn Corp., 433 F.2d 446, 448 (5 Cir. 1970).th
In another case the Fifth Circuit discussed in some detail the meaning of "in the service of the ship" in thecontext of a land-based injury: "The determination of whether a seaman is 'in the service of the vessel' and 'answerableto the call of duty' at the time of the accident depends on the particular facts and circumstances of each case.Nevertheless, it is clear as a matter of law that the seaman's answerability to the 'call of duty' imports at the very leastsome binding obligations on the part of the seaman to serve. * * * The fact that a seaman is 'answerable to the callof duty' imports a legal obligation both on the part of the seaman, enforceable by the shipowner, and on the part ofthe vessel, to pay him and provide maintenance and cure in terms of illness or injury, enforceable by the seaman incourts of admiralty. It is because the seaman remains bound to the vessel that the vessel and the shipowner arecorrespondingly obligated to him for maintenance and cure in case of injury. These reciprocal obligations determinean individual's status as a seaman, and whether the seaman is in the service of his vessel." Baker v. Ocean Systems,Inc., 454 F.2d 379, 384-85 (5 Cir. 1972). The court found that an employee who worked a rotating shift was notth
"answerable to the call of duty" during the periods when he was "off shift."
Note
At what point does a seaman cease to be "in the service of the ship"? In Robair v. Penrod Drilling Corp., 720So.2d 130 (La.App. 4 Cir. 1998), a seaman left the drilling rig on which he was employed at the end of his seven-dayshift. While walking home, he was struck by a car and injured. The seaman sued his employer for maintenance andcure and damages for Jones Act negligence and unseaworthiness, based on the employer's failure to provide a safemeans of egress from the vessel. The appellate court affirmed summary judgment in the employer's favor on thegrounds that the seaman was not "in the service of the ship" or in the course and scope of his employment when hewas walking home from his shift; the seaman was neither on authorized shore leave nor was he "answerable to thecall of duty." The court further declined to find the employer negligent for failing to provide the seaman withtransportation all the way back to his home; bringing him from the rig to the dock fulfilled the employer's duty.
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2015 WL 365526 (E.D. La. 2015)
JEFFERSONv.
BAYWATER DRILLING, LLC
January 27, 2015
MORGAN, Judge
*1This is a maritime action for the recovery for maintenanceand cure. Plaintiff alleges he developed a disabling skincondition on July 16, 2014, while working as a seamanaboard the IDB CAILLOU.1 Plaintiff subsequently filed suitagainst his employer—Baywater Drilling, LLC—seekingmaintenance and cure, compensatory damages, punitivedamages, and attorneys' fees. The questions presented are(1) whether Plaintiff is entitled to maintenance and cure,and, if so, (2) whether the denial of benefits wasunreasonable or willful and wanton.
This case was tried before the undersigned without a jury.Having considered the evidence admitted at trial and thearguments of counsel, the Court announces its Findings ofFact and Conclusions of Law pursuant to Federal Rule ofCivil Procedure 52. To the extent a finding of factconstitutes a conclusion of law, the Court adopts it as such.To the extent a conclusion of law constitutes a finding offact, the Court adopts it as such.
FINDINGS OF FACT
I. The Injury and Subsequent Hospitalization
1. Plaintiff is a seaman employed by Defendant as aroustabout aboard the IDB CAILLOU.
2. Plaintiff's most recent assignment was a six-week hitchscheduled to begin on July 16, 2014.
3. On the morning of July 15, 2014, Plaintiff was visitingwith friends at a Shell gas station in Columbia, Mississippi,when he received a call from his sister, Roseita Jefferson.Ms. Jefferson informed Plaintiff that her truck was notrunning properly. Ms. Jefferson brought the truck to theShell station. In order to fix the truck, Plaintiff rented toolsfrom an auto parts store about one block from the Shellstation. Plaintiff walked to and from the auto parts store atleast twice. Plaintiff did not experience any physicaldiscomfort during this time.
4. After fixing his sister's truck, Plaintiff ran an errand andthen went to his sister's house to pack and get ready for hishitch.
5. Plaintiff returned to the Shell station at approximately
7:30 p.m. to await his ride to work—Marcus Grinstead(“Grinstead”). Grinstead arrived at approximately 10:30p.m. Plaintiff was not in any physical discomfort at thistime, nor did Grinstead observe any signs of discomfort.
6. Plaintiff and Grinstead drove together to Defendant's dockin Intracostal City, Louisiana. At some point during theirfour-hour drive, the two stopped so that Plaintiff coulddrive. Plaintiff drove the rest of the way to Intracostal City.He did not experience any pain during the trip or whiledriving.
7. Plaintiff and Grinstead arrived in Intracostal city atapproximately 2:15 a.m. on July 16, 2014. They boarded acrew boat thirty minutes later along with several othercoworkers.
8. The crew boat arrived at the IDB CAILLOU atapproximately 3:15 a.m.
9. After unpacking his things and changing into workclothes, Plaintiff ate breakfast and then attended a safetymeeting.
10. Plaintiff began his daily work around 6:15 a.m. Heemptied trashcans until summoned by his immediatesupervisor, Kenneth Pitre (“Pitre”). Pitre requested thatPlaintiff help service two cranes. Plaintiff's tasks includedchecking the integrity of the cables and pullies, and carryingaround a large set of shackles and a pair of pliers. Plaintiffcompleted his tasks without incident and went to lunch atabout 10:30 a.m.
*2 11. Following a 20–minute lunch break, Plaintiff relievedthe roughnecks on the drill floor and helped “trip” pipes.While working on the drill floor, Plaintiff began toexperience an intense burning sensation in his feet. Plaintiffleft the drill floor at approximately 1:00 p.m. and went to thechange room. Plaintiff removed his boots and socks. His feetwere badly blistered.
12. Plaintiff subsequently contacted Pitre. Pitre met Plaintiffin the workroom and told him to soak his feet in ice water.Plaintiff soaked his feet for about 35 minutes, after which hewas summoned through the PA system to return to the rigfloor. Plaintiff worked for about 30 minutes and then soughtPitre again. Plaintiff complained that his feet still hurt. Pitreordered Plaintiff to leave the rig floor and to clean things onthe first floor of the vessel. Plaintiff performed these tasksuntil approximately 6:00 p.m. Plaintiff then returned to thechange room to soak his feet.
13. While in the change room, Plaintiff was approached byJimmy Varnes (“Varnes”), the Health, Safety, andEnvironment coordinator for Defendant. Varnes observedwhat he described as “nasty” and “open” blisters onPlaintiff's feet, ankles, arm, and fingers. Varnes took
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pictures of Plaintiff's blisters and left the change roombriefly. Varnes returned with a message from his boss:Plaintiff must leave the IDB CAILLOU because he has openwounds. Plaintiff requested to remain at the vessel overnightand explained that he had not scheduled a ride home fromIntracoastal City. Varnes insisted that Plaintiff leaveimmediately. Varnes packed Plaintiff's bags and placedthem in the crew boat.
14. By this time, Plaintiff was in so much pain that he wasunable to walk. Plaintiff was carried by hand to the crewboat. The crew boat departed for Intracoastal City withPlaintiff, Varnes, and two wireline workers.
15. Plaintiff called his friend Darryl Stetney (“Stetney”) torequest a ride from Intracoastal City. Stetney reluctantlyagreed to make the four-hour drive from Columbia,Mississippi.
16. The crewboat arrived at Intracoastal City atapproximately 9:30 p.m. Plaintiff was carried to the shoreand placed on a tree stump. Plaintiff was then loaded intothe truck of the wireline workers. The wireline workersvolunteered to drive Plaintiff to Lafayette, Louisiana.
17. Plaintiff notified Stetney that he was being taken toLafayette.
18. The wireline workers deposited Plaintiff at a Racetracgas station in Lafayette some time in the middle of the night.Plaintiff was unable to stand while waiting for Stetney so helay on the sidewalk alone, writhing in pain. Plaintiff feltscared and vulnerable.
19. Stetney arrived at approximately 1:30 a.m. on July 17,2014. Alarmed at Plaintiff's dire physical condition, Stetneycarried Plaintiff to his truck and immediately called anambulance.
20. The ambulance transported Plaintiff to Lafayette GeneralHospital (“Lafayette General”). Plaintiff was eventuallydiagnosed with SJS. The etiology of Plaintiff's SJS ispresently unknown.
*3 21. Upon learning that Plaintiff was receiving treatmenti n L a f a y e t t e G e n e r a l , R y n e M a l c o l m(“Malcolm”)—Defendant's Human ResourcesManager—dispatched Jerald Landry (“Landry”) to thehospital. Landry is a claims adjuster with American ClaimsServices. His job is to ascertain basic information aboutinjured personnel, including the purpose of their visit to thehospital and the circumstances surrounding the injury.Landry also attempts to obtain a signed medicalauthorization. Landry does not interview doctors, reviewmedical records, or make medical determinations.
22. Landry identified himself to Plaintiff as a representative
of Defendant. Plaintiff signed a medical authorization.Landry then began asking non-medical questions aboutPlaintiff's past, including his criminal record andemployment history. On the advice of one of thenurses—who felt Landry was needlessly harassing herpatient—Plaintiff revoked his medical authorization. Landrywas then asked to leave.
23. Landry reported to Defendant that he did not obtain anymedical records or medical authorization.
II. Maintenance and Cure
24. Plaintiff was released from Lafayette General on July25, 2014. He continued to treat at various medical facilitiesand eventually underwent debridement surgery on his hands,feet, and left forearm. Plaintiff received further treatmentafter the surgery. He treated with Dr. Oswalt on October 17,2014, November 3, 2014, and December 15, 2014. A fourthappointment is scheduled for January, 2015.
25. Following his release from Lafayette General, Plaintiffmoved in with his sister, Roseita Jefferson, and her youngerdaughter. Pursuant to this arrangement, Plaintiff was to paythe household bills, including groceries, cable, light and gas.Those bills totaled approximately $700 per month, or $23.33per day.
26. The parties have stipulated that Plaintiff will reachmaximum possible cure on January 30, 2015 and that histotal cure amounts to $84,961.55.
27. The parties have not agreed on the amount of anymaintenance award.
III. Defendant's Maintenance and Cure Investigation
28. Malcolm performed the maintenance and cureinvestigation for Defendant.
29. Malcolm telephoned Plaintiff on July 17, 2014. Afterspeaking with Plaintiff, Malcolm contacted AmericanClaims Services and learned the claims adjuster had beenasked to leave the hospital. Malcolm then spoke with otheremployees of Defendant who worked with Plaintiff on July16, 2014. Finally, Malcolm reviewed incident reportscompleted in connection with Plaintiff's complaints.
30. Malcolm ultimately concluded Plaintiff's injuries werecaused by a pre-existing condition related to herpes or areaction to the medicine he allegedly brought aboard theIDB CAILLOU.
31. Malcolm orally reported this conclusion to hisimmediate boss—Lisa Williams (“Williams”)—on July 17,2014.
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32. There was no further investigation of Plaintiff's claims.
*4 33. Defendant did not review Plaintiff's medical records.
34. Defendant did not request that Plaintiff be tested forherpes or that any tests be done to establish a connectionbetween Plaintiff's SJS and the medication he allegedlybrought to work.
CONCLUSIONS OF LAW
1. Subject matter jurisdiction is proper under 28 U.S.C. §1333, which vests federal district courts with originaljurisdiction over maritime claims.
2. Maintenance and cure is a contractual form ofcompensation afforded to seamen who become ill or injuredwhile in service of a vessel. It is not necessary for theseaman to show his injuries were “sustained because of, orwhile engaged in, activities required by his employment.”So broad is the shipowner's obligation that it extends evento injuries pre-existing employment, provided that thoseinjuries are aggravated or become manifest while theseaman is in service of the vessel. Any doubts as to ashipowner's liability for maintenance and cure are resolvedin favor of the seaman.
3. The defenses to maintenance and cure are “few andnarrowly applied.” “Only some wilful misbehavior ordeliberate act of indiscretion suffices to deprive the seamanof his protection.” Such misconduct includes intoxication,venereal disease, and the willful concealment of apre-existing medical condition.
4. Defendant explicitly disclaimed any such defense at trial.Instead, the denial of maintenance and cure is based onDefendant's contention that Plaintiff's injuries were manifestprior to his service of the vessel.
5. It is undisputed that Plaintiff suffered from severe,debilitating blisters while servicing the IDB CAILLOU.Even if those blisters were manifest (in some form) prior toPlaintiff's anticipated hitch, Plaintiff's condition significantlyworsened while he was “subject to the call of duty as aseaman, and earning wages as such.”
6. Plaintiff is owed maintenance and cure. The Court mustnow determine quantum.
7. The right to maintenance and cure terminates when theseaman reaches “maximum possible cure,” i.e., “where it isprobable that further treatment will result in no bettermentof the seaman's condition.” Plaintiff will reach maximumpossible cure on January 30, 2015.
8. “Maintenance” is a per diem living allowance paid when
a seaman is outside the hospital and has not yet reachedmaximum possible cure.“Cure” involves the payment oftherapeutic, medical, and hospital expenses until the plaintiffreaches maximum possible cure.
9. Maintenance payments cover the reasonable cost of foodand lodging. The seaman's burden to establish the value ofmaintenance is “feather light,” and his own testimonyregarding the reasonable cost of room and board in hiscommunity is sufficient to sustain an award.
10. The Fifth Circuit has set forth a three-part test fordetermining the amount of a maintenance award. First, acourt estimates the plaintiff's actual costs of food andlodging, and the reasonable cost of food and lodging for asingle seaman in the plaintiff's locality. The court thencompares those costs to each other. When actual expensesexceed reasonable expenses, the court should awardreasonable expenses. Conversely, when reasonable expensesexceed actual expenses, ordinarily the court should awardactual expenses. But if the latter scenario obtains, the courtproceeds to the third step and inquires whether the plaintiff'sactual expenses are inadequate to provide him withreasonable food and lodging. When actual expenses areinadequate, the court should award reasonable expenses.
*5 11. As discussed above, Plaintiff has satisfied his“feather light” burden of proving actual expenses in theamount of $23.33 per day.
12. Having determined actual expenses, the Court must nowestimate reasonable expenses. In making this estimate, theCourt may consider a variety of factors including “actualcosts, evidence of reasonable costs in the locality or region,union contracts stipulating a rate of maintenance or per diempayments for shoreside food or lodging while in the serviceof a vessel, and maintenance rates awarded in other casesfor seamen in the same region.” Where, as here, the seamandoes not present evidence of reasonable expenses, “a courtmay take judicial notice of the prevailing rate in thedistrict.” Courts in the Eastern District of Louisiana haveapproved maintenance rates ranging from $30 to $40 perday.
13. The Court finds that a maintenance award of $40 per dayis appropriate in this case.
14. Plaintiff's actual expenses are $23.33 per day but hisreasonable expenses are $40 per day. In thisscenario—where reasonable expenses exceed actualexpenses—a maintenance award should generally notexceed actual expenses. The Court finds, however, that noreasonable seaman could live on $23.33 per day.Accordingly, Plaintiff is entitled to recover maintenance atthe rate of $40 per day.
15. Plaintiff is owed maintenance from the date he left the
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vessel, July 16, 2014, to the date of maximum cure, January30, 2015,33 less any days spent in the hospital. Plaintiff washospitalized for a total of 12 days. Accordingly, Plaintiff isowed maintenance for 186 days. At a rate of $40 per day,Plaintiff is entitled to a total maintenance award of $7,920.
16. The parties have stipulated to a cure amount of $84,961.
17. Defendant's total maintenance and cure obligation is$92,881.
18. In addition to a maintenance and cure payment, Plaintiffalso seeks compensatory damages, punitive damages, andattorneys' fees. The damages recoverable for the denial ofmaintenance and cure fall on an “escalating scale ofliability.” A shipowner is entitled to investigate and requirecorroboration of a claim for maintenance and cure beforecommencing payment.“If, after investigating, the shipownerunreasonably rejects the claim,” the owner is liable forcompensatory damages. If the denial was not onlyunreasonable but “callous and recalcitrant, arbitrary andcapricious, or willful, callous and persistent,” the shipowneris also liable for punitive damages and attorneys' fees.
19. Although each case is evaluated on its facts, “it is clearthat laxness in investigating a claim that would have beenfound to be meritorious will subject a shipowner to liabilityfor attorney's fees and punitive damages.”
20. The investigation in this case was impermissibly lax,consisting primarily of Malcolm's conversation withPlaintiff, his conversations with Plaintiff's co-workers, andhis review of incident reports. From these sources ofinformation, Malcolm concluded that Plaintiff's injurieswere caused by a pre-existing condition related to herpes ora reaction to the medicine he allegedly brought aboard theIDB CAILLOU.
*6 21. There is no evidence that Malcolm or any otherrepresentative of Defendant reviewed Plaintiff's medicalrecords or talked to his treating physicians. Defendant didnot offer any medical opinion at trial to support Malcolm'stheory of causation. In fact, Defendant did not order anytests to confirm that Plaintiff had contracted herpes or thathis injuries were caused by ingesting medication. Instead,Defendant made a medical determination without medicalevidence.
22. The denial of maintenance and cure was arbitrary andcapricious.
23. Plaintiff is entitled to compensatory damages, punitivedamages, and attorneys' fees.
24. Under the general maritime law, compensatory damagesare those “that have resulted from the failure to pay, such asthe aggravation of the seaman's condition, determined by the
usual principles applied in tort cases to measurecompensatory damages.”
25. Based on the evidence presented at trial, Plaintiff isentitled to compensatory damages in the amount of $10,000.
26. As a general rule in maritime cases, punitive damages“should not exceed the amount of compensatory reliefawarded.” The Court finds that an award of $10,000 is asufficient sanction for Defendant's arbitrary and capriciousdenial of maintenance and cure.
27. The Court also finds that an award of attorneys' fees andcosts is appropriate for a case that never should have beentried in the first place. Plaintiff shall file a motion before themagistrate judge to determine quantum within ten days ofthe entry of this Order.
28. The final issue is whether prejudgment interest shouldbe awarded. “It is generally accepted that, under maritimelaw, the award of prejudgment interest is ‘well-nighautomatic.’ “ The trial court has discretion to denyprejudgment interest “only where peculiar circumstanceswould make such an award inequitable.” Peculiarcircumstances may be found “where plaintiff improperlydelayed resolution of the action, where a genuine disputeover a good faith claim exists in a mutual fault setting,where some equitable doctrine cautions against the award,or where the damages award was substantially less than theamount claimed by plaintiff.”
29. There are no such peculiar circumstances in this case.Accordingly, the Court will award prejudgment interestfrom the date of loss, which, in this case, is the date Plaintiffleft the IDB CAILLOU—June 16, 2014.
30. Admiralty courts “may look to state law and otherreasonable guideposts” to determine the rate of prejudgmentinterest. The Louisiana judicial interest rate in 2014 was4.00%. Accordingly, prejudgment interest will accrue at thatrate.
CONCLUSION
Plaintiff suffered severe and debilitating injury whileservicing the IDB CAILLOU. Rather than arrange treatmentfor those injuries, Defendant banished Plaintiff from thevessel without warning. Lacking the physical capability tocare of himself, Plaintiff was forced to rely on the charity ofthe two wireline workers. But that charity only went so far,and Plaintiff endured hours of mental and physical agonyoutside and alone until rescued by Stetney in the middle ofthe night. Defendant's callous disregard for Plaintiff'swell-being is further demonstrated by the deficientmaintenance and cure “investigation.” This investigationwas impermissibly lax under any reasonable standard. TheCourt finds an award of punitive damages is necessary to
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ensure the next worker who falls ill aboard one ofDefendant's vessels receives the treatment he deserves, as aseaman and as a human being.
*7 Plaintiff is entitled to maintenance and cure in theamount of $92,881.55, compensatory damages in theamount of $10,000, and punitive damages in the amount of$10,000. Accordingly, the Court will enter judgment infavor of Plaintiff for $112,881.55, with prejudgment interestat 4.00% from June 16, 2014. Post-judgment interest willaccrue at the judicial rate. Once the Court has determinedthe appropriate quantum of attorneys' fees, a separatejudgment will be entered with identical interest rates.
______________________________________________
544 F.3d 296
JOHNSONv.
CENAC TOWING, INC.No. 07-30113
Sept. 24, 2008
EDITH H. JONES, Chief Judge.
Leroy Johnson ("Johnson") sustained injuries while workingas a seaman for Cenac Towing, Inc. ("Cenac"). He suedCenac in federal court for negligence under the Jones Act,unseaworthiness, and maintenance and cure benefits.Following a bench trial, the district court deniedmaintenance and cure because Johnson willfully concealedhis preexisting physical problems from Cenac, but the courtawarded him damages under the Jones Act. Cenac appeals.We must vacate and remand for further consideration ofJohnson's possible contributory negligence, but otherwiseaffirm the court's rulings.
BACKGROUNDJohnson worked as a tankerman for Cenac from May 2003to May 2004 and from May 2005 to December 2005. Beforeeach period of employment with Cenac, he filled out anemployment application and underwent a pre-employmentphysical examination. On both his 2003 and 2005applications, he indicated that he had never suffered anyon-the-job injuries and that he did not have any physicalconditions which might interfere with or hinder his jobperformance. For Cenac's pre-employment physicals,Johnson completed medical history questionnaires in whichhe indicated that he had never hurt his back and neverreceived disability compensation. He did acknowledge thathe had undergone surgery, but only for a shoulder injury in1987.
Johnson's answers on his applications and questionnaireswere not truthful. Before he applied to work for Cenac, hehad been twice injured while working for other offshorecompanies. In 1994, Johnson injured his neck and back in anon-the-job accident, which left him disabled for at least tenmonths. He underwent neck surgery almost a year later as aresult of the accident. In 2001, Johnson injured his backagain in an on-the-job accident and was disabled for aboutthirteen months. He received steroid injections to treat hisback injury and experienced other ongoing urologicalproblems as a result of the accident. After each accident,Johnson obtained compensation benefits, sued his employer,and collected damages. He intentionally concealed all ofthese prior accidents, injuries, and claims from Cenac duringthe hiring process. The doctor who administered Johnson'stwo physical examinations on behalf of Cenac stated thathad he known of Johnson's prior work-related accidents, hewould not have approved him for employment because ofthe "possibility of further endangering himself in any kindof way ... in this case his neck and his back and to try toprotect others around him."
On December 14, 2005, Johnson injured his back againwhile working as a tankerman aboard a Cenac vessel thatwas towing barges near Mobile, Alabama. Johnson andcoworker Louis Celestine were carrying a 175-poundcross-over hose aboard one of the barges when Celestinetripped and dropped his part of the load. Suddenly bearinga heavier weight, Johnson exclaimed that he had hurt hisback. He immediately reported the accident and his injury tothe crew.
For several months, Johnson was treated for low back painand urological problems. The district court found that theseinjuries resulted from an aggravation of Johnson'spre-existing back condition stemming from his 2001accident. Johnson incurred $38,095.80 in medical expenses.Some of the expenses inexplicably were paid by the BlueCross Blue Shield group health insurance plan that Cenacoffers to cover only employees' non-work-related injuries.Cenac pays one hundred percent of its employees' insurancepremiums for the plan.
Johnson filed suit against Cenac for negligence under theJones Act, 46 U.S.C. § 30104, unseaworthiness undergeneral maritime law, and maintenance and cure. Cenaccountered that Johnson was not entitled to recover eitherdamages or maintenance and cure because he willfullyconcealed his prior injuries during Cenac's hiring process.At a minimum, it asserted, any damages awarded to Johnsonshould be reduced because the concealment rendered himcontributorily negligent. Cenac also argued that if Johnsonwere awarded damages for past medical expenses, thecompany should receive a set-off for the health insurancepayments made by the Blue Cross plan, which it establishedand fully funded.
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After a two day bench trial, the district court deniedmaintenance and cure; awarded judgment as a matter of lawfor Cenac on unseaworthiness; found Cenac entirely at faultfor Johnson's injuries; awarded Johnson $130,226 in JonesAct damages, including all past medical expenses; and ruledthat payments made by Blue Cross were a collateral sourcenot subject to set-off against Johnson's award. On appeal,Cenac argues that the district court erred in (1) holding thatJohnson's intentional concealment of material medical factsdid not bar his Jones Act negligence claim; (2) finding thatJohnson was not contributorily negligent for concealing hisprior injuries; and (3) denying its request to deduct healthinsurance payments Johnson received from his damageaward for past medical expenses.
DISCUSSIONA. McCorpen Defense and the Jones Act
Generally, an employer "must pay maintenance and cure toany seaman who becomes ill or suffers an injury while in theservice of the vessel, regardless of whether either party wasnegligent." Bertram v. Freeport McMoran, Inc., 35 F.3d1008, 1012 (5th Cir.1994) (internal quotation marksomitted). An employer, however, is allowed to rely oncertain legal defenses to deny a claim for maintenance andcure. Brown v. Parker Drilling Offshore Corp., 410 F.3d166, 171 (5th Cir.2005) (citing McCorpen v. Cent. Gulf S.S.Corp., 396 F.2d 547 (5th Cir.1968)). Among these, theMcCorpen defense applies when an injured seaman has"willfully concealed from his employer a preexistingmedical condition." Id. To establish a McCorpen defense, anemployer must show that the seaman intentionallymisrepresented or concealed medical facts; thenon-disclosed facts were material to the employer's decisionto hire the seaman; and a connection exists between thewithheld information and the injury complained of in thelawsuit. Id.
In this case, the district court found that all three elements ofthe McCorpen defense were satisfied and accordinglydenied recovery for maintenance and cure. Cenac arguedthat its McCorpen defense should also bar Johnson's claimunder the Jones Act, which holds an employer liable to aseamen for injuries "resulting in whole or in part from thenegligence" of the employer or its employees or agents. 45U.S.C. § 51; Gautreaux v. Scurlock Marine, Inc., 107 F.3d331, 335 (5th Cir.1997) (en banc). But the district courtdisagreed, stating that "the existence of the McCorpendefense does not automatically taint a Jones Act claim."
Cenac continues to urge that the McCorpen defense shouldextend to "any damages sought by a seaman for only theaggravation of his prior and intentionally concealed medicalcondition." This legal argument, which we review de novoon appeal, is foreclosed by precedent. The Supreme Court'sdecision in Still v. Norfolk & Western Railway Co., 368 U.S.35, 82 S.Ct. 148, 7 L.Ed.2d 103 (1961), makes clear that a
"seaman ... is not barred from suit under the Jones Actbecause he conceals a material fact in applying foremployment." Gypsum Carrier, Inc. v. Handelsman, 307F.2d 525, 530 (9th Cir.1962); Still, 368 U.S. at 35, 82 S.Ct.at 149 (holding that a railroad cannot "escape" liabilityunder FELA "by proving that an [injured] employee ... hasobtained his job by making false representations upon whichthe railroad rightfully relied in hiring him"). The districtcourt correctly concluded that McCorpen does not bar aJones Act claim.
B. Contributory Negligence and the Jones Act
Although the McCorpen rule is not applicable to a Jones Actnegligence claim, contributory negligence is an affirmativedefense that diminishes recovery in proportion to theseaman's fault. 45 U.S.C. § 53; see Norfolk Southern Ry. Co.v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 802, 166 L.Ed.2d638 (2007). To establish that a seaman is contributorilynegligent, an employer must prove negligence andcausation. See Sorrell, 127 S.Ct. at 807;see also Gautreaux,107 F.3d at 338.
A seaman is negligent if he fails to act with ordinaryprudence under the circumstances. See Gautreaux, 107 F.3dat 339. "The circumstances of a seaman's employmentinclude not only his reliance on his employer to provide asafe work environment but also his own experience,training, or education. The reasonable person standard,therefore, [in] a Jones Act negligence action becomes one ofthe reasonable seaman in like circumstances." Id. (emphasisin original). The standard of causation in Jones Act cases isnot demanding. FN4. See, e.g., Gautreaux, 107 F.3d at 335("[T]he Supreme Court [has] used the term 'slightest' todescribe the reduced standard of causation between theemployer's negligence and the employee's injury in FELA§ 51 cases."). To establish causation, an employer mustshow that a seaman's negligence "played any part, even theslightest, in producing the injury." Chisholm v. SabineTowing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.1982)(citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506,77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)). See also Sorrell,127 S.Ct. at 802 (holding that the same causation standardapplies to employer negligence and employee contributorynegligence in FELA cases). Even under the Jones Act,however, a party must establish more than mere "but for"causation. See Gavagan v. United States, 955 F.2d 1016,1019-20 (5th Cir.1992) ("The negligence must be a 'legalcause' of the injury.").
FN4. In Sorrell, Justice Souter, joined by JusticesScalia and Alito, argues in a concurring opinionthat the standard of causation in FELA cases, andthus Jones Act cases, is not more "relaxed" than intort litigation generally. Sorrell, 127 S.Ct. at809-12 (Souter, J., concurring). He contends thatthis "relaxed" causation standard stems from a
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misunderstanding of Rogers v. Missouri Pacific R.Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1L.Ed.2d 493 (1957). Id. at 809. To correct thatmisunderstanding, Justice Souter provides adetailed analysis of Rogers and related casesshowing that it was not intended "to water downthe common law requirement of proximate cause"in FELA cases. Id. at 811.
The district court held that Johnson was not contributorilynegligent for willfully concealing his previous injuriesduring Cenac's employment application process. The courtcited Brown v. Parker Drilling Offshore Corp., supra, as theFifth Circuit's confirmation "that the existence of theMcCorpen defense does not automatically taint a Jones Actclaim." The court then rejected Cenac's "argument that if notfor Johnson's misrepresentations, this accident would nothave happened." It found that the "condition of Johnson'sback and neck did not contribute to causing the accident,"and the fact that Johnson sustained on-the-job injuries threeyears before his December 2005 accident did not make himcontributorily negligent.
In a bench tried admiralty case, a district court's findingsconcerning negligence and causation are findings of factreviewable by this court only for clear error. See Gavagan,955 F.2d at 1019. We entertain a strong presumption that thecourt's findings must be sustained even though this courtmight have weighed the evidence differently. This said, thecourt's decision on contributory negligence, which is fullyparaphrased above, is hard to square with its recitation offacts elsewhere in the opinion. The district court found thatJohnson's low-back pain caused by the 2005 accident was"an aggravation of a pre-existing back condition stemmingfrom his 2001 maritime accident." Both injuries, as the courtnoted, affected his L5-S1 intervertebral disc. Going further,in its discussion of the McCorpen defense, the court founda clear connection, a "causal link," between Johnson'spreemployment misrepresentations to Cenac and his currentinjury.
It is likely true, as the court found, that Johnson's weakenedback did not cause Celestine to drop the 175-pound hosethey were both carrying. But it also seems likely thatJohnson would never have been employed by Cenac had herevealed the previous injuries, and, having misrepresentedhimself onto the payroll, he set himself up for the sort ofaggravating injury found by the district court. Both thiscourt and the Supreme Court have previously considered thecontributory negligence ramifications of preemploymentdeception. In Still, the Supreme Court reversed andremanded for trial after rejecting the proposition that aconcealed preemployment physical defect bars FELA reliefas a matter of law. Still, 368 U.S. at 46, 82 S.Ct. at 154-55.Nevertheless, the Court noted the relevance, in appropriatecircumstances, of such a pre-existing condition toascertaining
whether the injury complained of was caused by therailroad's negligence "in whole or in part" by tending toshow either that the worker was not injured by therailroad at all, if injured, the railroad was not responsiblefor the full extent of the injury, or that damages should bediminished by the jury for contributory negligence.
Still, 368 U.S. at 46 n. 14, 82 S.Ct. at 154 n. 14. Similarly,in Savoie v. Otto Candies, Inc., 692 F.2d 363, 372 (5thCir.1982), this court upheld a finding of contributorynegligence on the part of a seaman who
knowingly exposes himself to conditions of employmentwhile aware of an illness or disability which makes thoseconditions unsafe to him, or where a seaman has thepossibility of securing relief from unsafe conditions byinforming his superiors of them, but continues to workwithout doing so ....
See also Gavagan v. United States, 955 F.2d 1016 (5thCir.1992) (upholding one hundred percent contributorynegligence of seaman who concealed from his prospectivemaritime employer the limited use of his hand due tosurgery and proceeded to re-injure it while trying to open avalve on a tanker).
From these cases, it appears that contributory negligencemay be found where a seaman has concealed materialinformation about a pre-existing injury or physical conditionfrom his employer; exposes his body to a risk of reinjury oraggravation of the condition; and then suffers reinjury oraggravation injury. In this case, we are unsure whether thecourt fully analyzed the potential for contributorynegligence, because of the tension between its findings of(a) no causal connection between Johnson's employmentmisrepresentations and the accident, and (b) the "causallink" between the misrepresentations and Johnson's injury.Moreover, at another point in its opinion, the court observesthat Johnson performed heavy labor for over a year forCenac without suffering an injury. This fact may amelioratethe tension, although it seems somewhat inconsistent withthe "causal link" finding. We do not instruct how the courtshould ultimately rule on whether Cenac has provedJohnson's causative contributory negligence in deliberatelyexposing himself to heavy labor with a weakened back, butwe must remand for the court to reevaluate its findings onthis issue. * * *
CONCLUSIONFor the reasons stated, the judgment of the district court isVACATED and REMANDED with instructions.
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Notes
Contracts for maintenance and cure
What effect, if any, should a court give to the rate of maintenance which has been fixed in a collectivebargaining agreement between a seaman's union and a shipowner? The Ninth Circuit has held that the rate is bindingon the seaman despite the district court's determination that the amount is inadequate to obtain food and lodging.Gardiner v. Sea-Land Service, Inc., 786 F.2d 943 (9 Cir.), cert. den., 479 U.S. 924 (1986). This approach wasth
followed in Macedo v. F/V Paul & Michelle, 868 F.2d 519 (1 Cir. 1989) and Al-Zawakari v. American Steamshipst
Co., 871 F.2d 585 (6 Cir. 1989). In contrast, the Third Circuit has held that a seaman may challenge the rateth
stipulated in the collective bargaining agreement. Barnes v. Andover Co., L.P. 900 F.2d 630 (3 Cir. 1990). See also,rd
Allen v. United States, 1987 AMC 2571 (E.D. La. 1986).
Disability and health care plans
Does an employer satisfy its legal obligation to pay maintenance when it establishes a disability plan pursuantto a collective bargaining agreement? The answer seems to depend upon whether the "benefits" are regarded as a formof "deferred compensation." Shaw v. Ohio River Co., 526 F.2d 193 (1975) or as a substitute for maintenance, Thomasv. Humble Oil & Refinning Co., 420 F.2d 793, 794 (4 Cir. 1970) (where the collective bargaining agreement clearlyth
provided that" "Maintenance shall not be paid concurrently with payments under the Disability Benefits Plan...."Benefits which are regarded as deferred compensation are not considered to be payment of maintenance.
As to cure, it appears that an employer incurs no further obligation to pay for medical treatment which hasalready been paid by a welfare plan or by health insurance such as Blue Cross, pursuant to a collective bargainingagreement. The courts seem to have distinguished Jones Act and similar actions and rejected the appliation of the so-called "collateral source" rule. "[A] vessel owner's duty to provide maintenance and cure arises independently of anyconsiderations of fault and without regard to whether or not the seaman's disability is causally related to hisemployment. Whatever justification there may be for the collateral source rule in situations where liability is basedon fault, there is no perceivable basis for applying it to the no-fault obligation to furnish maintenance and cure. Shawv. Ohio River Co., 526 F.2d 193, 301 (3 Cir. 1975). See also, Al-Zawakari v. American Steamship Co., 871 F.2drd
585 (6 Cir. 1989).th
Public health hospitals
In 1981, Congress enacted the Omnibus Budget Reconciliation Act, Pub. L. No. 97-35, 95 Stat. 357 (1981),a comprehensive appropriations bill that adjusted the eligibility requirements and amounts budgeted for a largenumber of federal programs. Among its other provisions, the Act ordered the closure and transfer to nonfederal controlof the Public Health hospitals and clinics. Section 986 of the Act terminated the right of outpatient seamen to obtainfree medical care in the facilities after October 1, 1981, while Section 988 allowed continued free care for a maximumof one additional year for in-patient seamen hospitalized prior to October 1, 1981. In Jones v. Reagan, 748 F.2d 1331(9 Cir. 1984), permanently disabled seamen filed suit challenging the validity of the sections of the Omnibus Budgetth
Reconciliation Act of 1981 that terminated a seaman's right to free medical care in government facilities. The courtheld that the Act did not unconstitutionally deprive seamen of any right. A summary judgment for the governmentwas affirmed on appeal.
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69 S.Ct. 707
FARRELLv.
UNITED STATES et al.No. 267
Argued Jan. 14, 1949Decided April 4, 1949
Mr. Justice JACKSON delivered the opinion of the Court.
Petitioner, a seaman, brought suit in admiralty to recoverdamages under the Jones Act, 46 U.S.C. § 688, andmaintenance, cure and wages under maritime law. The issueof negligence was decided against him by both courts belowand the claim is abandoned here. Petition for certiorari toreview other issues was granted. 335 U.S. 869, 69 S.Ct.165.
I. Maintenance and Cure.
The facts which occasion maintenance and cure for thisseaman are not in dispute. The claimant, 22 years of ageand in good health, was a member of the Merchant Marine. He was in the service of the S.S. James E. Haviland, amerchant vessel owned and operated by the United States asa cargo and troopship. On February 5, 1944, she wasdocked at Palermo, Sicily, and Farrell was granted shoreleave which required his return to the ship by 6 p.m. of thesame day. He overstayed his leave and about eight o'clockbegan, in rain and darkness, to make his way to the ship. Hebecame lost and was misdirected to the wrong gate, bywhich he entered the shore-front area about a mile fromwhere the ship lay moored. The area generally was blackedout but petitioner's companion, forty or fifty feet away, sawhim fall over a guard chain into a drydock which was lightedsufficiently for night work then in progress. Farrell wasgrievously injured.
He was treated without expense to himself in variousgovernment hospitals until June 30, 1944, when he wasdischarged at Norfolk, Virginia, as completely disabled. Heis totally and permanently blind and suffers post- traumaticconvulsions which probably will become more frequent andare without possibility of further cure. From time to time hewill require some medical care to ease attacks of headachesand epilepic convulsions. The court below concluded thatthe duty of a shipowner to furnish maintenance and curedoes not extend beyond the time when the maximum curepossible has been effected. Petitioner contends that he isentitled to maintenance as long as he is disabled, which inthis case is for life.
Admittedly there is no authority in any statute or Americanadmiralty decisions for the proposition that he is entitled tomaintenance for life. But an argument is based upon the
ancient authority of Cleirac, Jugmens d'Oleron, Arts. 6 and7 and notes by Cleirac; Consolato del Mare, cc. 182, 137; 2Pard Coll.Mar. 152; to which American authorities havepaid considerable respect. See Story, Circuit Justice, in Reedv. Canfield, 20 Fed.Cas. pages 426, 429, No. 11,641. Atranslation of the note relied upon reads:
'If in defending himself or fighting against an enemy orcorsairs, a mariner is maimed, or disabled to serve on boarda ship for the rest of his life, besides the charge of his cure,he shall be maintained as long as he lives at the cost of theship and cargo. Vide the Hanseatic Law, Art. 35.'
Article 35 of the Laws of the Hanse Towns referred to reads:
'Art. XXXV. The seamen are obliged to defend their shipagainst rovers, on pain of losing their wages; and if they arewounded, they shall be healed and cured at the generalcharge of the concerned in a common average. If anyone ofthem is maimed and disabled he shall be maintained as longas he lives by a like average.'
We need not elaborate upon the meanings or weight to begiven to these medieval pronouncements of maritime law. As they show, they were written when pirates were notoperatic characters but were real-life perils of the sea. Whenthey bore down on a ship, all was lost unless the seamanwould hazard life and limb in desperate defense. If theysaved the ship and cargo, it was something in the nature ofsalvage and for their sacrifice in the effort a contribution onprinciples of average may have been justly due. Perhapsmore than humanitarian considerations, inducement to standby the ship generated the doctrine that saving the ship andher cargo from pirates entitles the seaman to lifelongmaintenance if he is disabled in the struggle.
But construe the old-time law with what liberality we will,it cannot be made to cover the facts of this case. This shipwas not beset but was snug at berth in a harbor that hadcapitulated to the United States and her allied forces sixmonths before. No sea rovers, pirates or corsairs appearedto have menaced her. It is true that the ship was engaged inwarlike operations and was a legitimate target for enemyaircraft or naval vessels, which made her service a war risk,but at that time and place no enemy attack was in progressor imminent. Even if we pass all this and assume the shipalways to have been in potential danger and in need ofdefense, this seaman at the time of his injury had taken leaveof her and he is in no position to claim that he was asacrifice to her salvation. Far from helping to man the shipat the moment, he was unable to find her; he was lost ashoreand not able adequately to take care of himself. Howeverpatriotic his motive in enlisting in the service and howeverready he may have been to risk himself for his country, wecan find no rational basis for awarding lifetime maintenanceagainst the ship on the theory that he was wounded ormaimed while defending her against enemies.
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It is claimed, however, even if the basis for a lifetime awarddoes not exist, that he is entitled to maintenance and curebeyond the period allowed by the courts below. This isbased largely upon statements in the opinion of the Court inCalmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S.Ct.651, 654, 82 L.Ed. 993. There the question as stated by theCourt was whether the duty of a shipowner to providemaintenance and cure for a seaman falling ill of an incurabledisease while in its employ, extends to the payment of alump-sum award sufficient to defray the cost of maintenanceand cure for the remainder of his life. The Court laid asidecases where incapacity is caused by the employment andsaid, 'We can find no basis for saying that, if the diseaseproves to be incurable, the duty extends beyond a fair timeafter the voyage in which to effect such improvement in theseaman's condition as reasonably may be expected to resultfrom nursing, care, and medical treatment. This wouldsatisfy such demands of policy as underlie the imposition ofthe obligation. Beyond this we think there is no duty, at leastwhere the illness is not caused by the seaman's service.'
It is claimed that when the Court reserved or disclaimed anyjudgment as to cases where the incapacity is caused 'by theemployment' or 'by the seaman's service' it recognized orcreated such cases as a separate class for a different measureof maintenance and cure. We think no such distinctionexists or was premised in the Calmar case. In Aguilar v.Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930,932, 87 L.Ed. 1107, the Court pointed out that logically andhistorically the duty of maintenance and cure derives froma seaman's dependence on his ship, not from his individualdeserts, and arises from his disability, not from anyone'sfault. We there refused to look to the personal nature of theseaman's activity at the moment of injury to determine hisright to award. Aside from gross misconduct orinsubordination, what the seaman is doing and why the howhe sustains injury does not affect his right to maintenanceand cure, however decisive it may be as to claims forindemnity or for damages for negligence. He must, ofcourse, at the time be 'in the service of the ship,' by which ismeant that he must be generally answerable to its call toduty rather than actually in performance of routine tasks orspecific orders.
It has been the merit of the seaman's right to maintenanceand cure that it is go inclusive as to be relatively simple, andcan be understood and administered without technicalconsiderations. It has few exceptions or conditions to stircontentions, cause delays, and invite litigation. The seamancould forfeit the right only be conduct, whose wrongfulquality even simple men of the calling wouldrecognize--insubordination, disobedience to orders, andgross misconduct. On the other hand, the Master knew hemust maintain and care for even the erring and carelessseaman, much as a parent would a child. For any purposeto introduce a graduation of rights and duties based on somerelative proximity of the activity at time of injury to the
'employment' or the 'service of the ship,' would alter thebasis and be out of harmony with the spirit and function ofthe doctrine and would open the door to the litigiousnesswhich has made the landman's remedy so often a promise tothe ear to be broken to the hope.
Nor is it at all clear to us what this particular litigant couldgain from introduction of the distinction for whichcontention is made. It we should concede that largermeasure of maintenance is due those whose injury is causedby the nature of their employment, it would seem farfetchedto hold it applicable here. Claimant was disobedient to hisorders and for his personal purposes overstayed his shoreleave. His fall into a drydock that was sufficiently lightedfor workmen to be carrying on repairs to a ship therein wasdue to no negligence but his own. These matters have notbeen invoked to forfeit or reduce his usual seaman's right,but it is difficult to see how such circumstances wouldwarrant enlargement of it. We hold that he is entitled to theusual measure of maintenance and cure at the ship'sexpense, no less and no more, and turn to ascertainment ofits bounds.
The law of the sea is in a peculiar sense an international law,but application of its specific rules depends upon acceptanceby the United States. The problem of the sick or injuredseaman has concerned every maritime country and, in 1936,the General Conference of the International LaborOrganization at Genevasubmitted a draft convention to theUnited States and other states. It was ratified by the Senateand was proclaimed by the President as effective for theUnited States on October 29, 1939. 54 Stat. 1693. Article 4,paragraph 1 thereof provides: 'The shipowner shall be liableto defray the expense of medical care and maintenance untilthe sick or injured person has been cured, or until thesickness or incapacity has been declared of a permanentcharacter.'
While enactment of this general rule by Congress wouldseem controlling, it is not amiss to point out that thelimitation thus imposed was in accordance with theunderstanding of those familiar with the laws of the sea andsympathetic with the seaman's problems.
The Department of Labor issued a summary of theConvention containing the following on this subject: 'Theshipowner is required to furnish medical care andmaintenance, including board and lodging, until the disabledperson has been cured or the disability has been declaredpermanent.' Robinson, Admiralty, p. 300.
Representatives of the organized seamen have recognizedand advised Congress of this traditional limitation onmaintenance and cure. When Congress has had underconsideration substitution of a system of workmen'scompensation on the principles of the Longshoremen's andHarbor Workers' Compensation Act, 44 Stat. 1424, as
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amended, 33 U.S.C. ss 901--950, 33 U.S.C.A. ss 901--950,organized seamen, as we have heretofore noted, havesteadfastly opposed the change. Hust v. Moore-McCormackLines, 328 U.S. 707, 715, 66 S.Ct. 1218, 1222, 90 L.Ed.1534. In doing so the legal representative of one maritimeunion advised the Committee on Merchant Marine of theHouse of Representatives that maintenance extended during'(a) the period that a seaman receives treatment at a hospital,either as an inpatient or an out-patient; and (b) during aperiod of convalescence, and until the maximum cure isobtained.' Another representative, after defining it to includehospitalization, said, 'In addition, a seaman is entitled torecover maintenance while outside of the hospital until hisphysical condition becomes fixed.'
That the duty of the ship to maintain and care for the seamanafter the end of the voyage only until he was so far cured aspossible, seems to have seen the doctrine of the Americanadmiralty courts prior to the adoption of the Convention byCongress, despite occasional ambiguity of language orreservation as to possible situations not before the court. Ithas been the rule of admiralty courts since the Convention.
Maintenance and cure is not the only recourse of the injuredseaman. In an appropriate case he may obtain indemnity orcompensation for injury due to negligence orunseaworthiness and may recover, by trial before court andjury, damages for partial or total disability. Butmaintenance and cure is more certain if more limited in itsbenefits. It does not hold a ship to permanent liability for apension, neither does it give a lump-sum payment to offsetdisability based on some conception of expectancy of life.Indeed the custom of providing maintenance and cure inkind and concurrently with its need has had the advantage ofremoving its benefits from danger of being wasted by theproverbial improvidence of its beneficiaries. TheGovernment does not contend that if Farrell receives futuretreatment of a curative nature he may not recover in a newproceeding the amount expended for such treatment and formaintenance while receiving it.
The need of this seaman for permanent help is great and hisplight most unfortunate. But as the evidence has affordedno basis for supplying that need by finding negligence,neither does the case afford a basis for distortion of thedoctrine of maintenance and cure. This seaman was in theservice of the United States and extraordinary measures ofrelief while not impossible are not properly addressed to thecourts.
II. Wages.
The two courts below have held the petitioner entitled towages until the completion of the voyage at the port of NewYork on March 28, 1944. The petitioner contends that hehas a right to wages for twelve months from December 16,1943, the date he joined the vessel. The articles of the
Haviland, signed by petitioner, were on a printed formwhich left a vacant space subject to the following footnote:'Here the nature of the voyage is to be described and theplaces named at which the ship is to touch; or if that cannotbe done, the general nature and probable length of thevoyage is to be stated, and the port or country at which thevoyage is to terminate.' The Haviland's articles, for securityreasons during the war, did not describe the voyage in suchterms but provided, 'from the port of Philadelphia, to a pointin the Atlantic Ocean to the eastward of Philadelphia andthence to such ports and places in any part of the world asthe Master may direct or as may be ordered or directed bythe United States Government or any department,commission or agency thereof * * * and back to a final portof discharge in the United States, for a term of time notexceeding 12 (twelve) calendar months.' It is not questionedthat the general custom in ships, other than the coastwisetrade, is to sign on for a voyage rather than for a fixedperiod. But it is contended that the last clause of thiscontract obligated the petitioner to serve for twelve calendarmonths, irrespective of the termination of the voyage, andtherefore gave him the right to wages for a similar period.The contract is not an uncommon form and complied withwar-time requirements as to voyage contracts. We think, inthe light of the custom of the industry and the condition ofthe times, there is nothing ambiguous about it and that itobligated the petitioner only for the voyage on which theship was engaged when he signed on and that, when itterminated at a port of discharge in the United States, hecould not have been required to reimbark for a secondvoyage. The twelve-month period appears as a limitationupon the duration of the voyage and not as a stated period ofemployment. We think the court below made no error indetermining the wages.
For the reasons set forth, the judgment is affirmed.
Affirmed.
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95 S.Ct. 1381
VELLAv.
FORD MOTOR COMPANYNo. 73--1994
Argued Feb. 18--19, 1975Decided April 15, 1975
Mr. Justice BRENNAN delivered the opinion of theCourt.
We granted certiorari in this case limited to the questionwhether a shipowner's duty to furnish an injured seamanmaintenance and cure continues from the date the seamanleaves the ship to the date when a medical diagnosis is madethat the seaman's injury was permanent immediately afterhis accident and therefore incurable. 419 U.S. 894, 95 S.Ct.171, 42 L.Ed.2d 138 (1974).
Petitioner was a seaman aboard respondent's Great Lakesvessel, S.S. Robert S. McNamara. He was discharged andleft the ship on June 29, 1968. Thereafter he filed this suit inthe District Court for the Eastern District of Michigan,Southern Division, based on a claim that on April 4, 1968,while replacing a lower engineroom deck plate, he slippedand fell on the oily floor plate causing his head to suffer asevere blow when it struck an electrical box. The complaintincluded a count, among others, for maintenance and cure.The medical testimony at the trial was that petitionersuffered from a vestibular disorder defined as damage to thebalancing mechanism of the inner ear. The testimony ofrespondent's medical witness, Dr. Heil, an otolaryngologist,supplied the only medical diagnosis as to the time when thedisorder became permanent and not susceptible of curativetreatment. Dr. Heil testified on April 27, 1972, that he hadrecently examined petitioner. He conceded that *3 a severeblow to the head, such as alleged by petitioner, could havecaused the disorder. He said, however, that the disorder isnot a condition that can be cured by treatment. The juryawarded petitioner maintenance and cure in the amount of$5,848. Respondent moved for a judgment notwithstandingthe verdict on the ground that the award was not within thepermissible scope of maintenance and cure. The DistrictCourt denied the motion and stated: 'While it is true thatmaintenance and cure is not available for a sickness declaredto be permanent, it is also true that maintenance and curecontinues until such time as the incapacity is declared to bepermanent.' App. 20a. The Court of Appeals for the SixthCircuit reversed without a published opinion, 495 F.2d 1374(1974). The Court of Appeals held that 'once the seamanreaches 'maximum medical recovery,' the shipowner'sobligation to provide maintenance and cure ceases,' App.28a, and since '(t)he record in this case does not permit aninference other than that (petitioner's) condition waspermanent immediately after the accident,' id., at 29a, the
District Court's holding impermissibly extended theshipowner's obligation.
We disagree with the Court of Appeals and thereforereverse. The shipowner's ancient duty to providemaintenance and cure for the seaman who becomes ill or isinjured while in the service of the ship derives from the'unique hazards (which) attend the work of seamen,' andfosters the 'combined object of encouraging marinecommerce and assuring the well- being of seamen.' Aguilarv. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 932,87 L.Ed. 1107 (1943). To further that 'combined object' wehave held that the duty arises irrespective of the absence ofshipowner negligence and indeed irrespective of whether theillness or injury is suffered in the course of the seaman'semployment. Calmar S.S. Corp. v. Taylor, 303 U.S. 525,527, 58 S.Ct. 651, 652, 82 L.Ed. 993 (1938). And, '(s)obroad is the shipowner's obligation . . . negligence or actsshort of culpable misconduct on the seaman's part will notrelieve (the shipowner) of the responsibility.' Aguilar v.Standard Oil Co., supra, at 730--731, 63 S.Ct., at 934. Thus,the breadth and inclusiveness of the shipowner's duty assureits easy and ready administration for '(i)t has few exceptionsor conditions to stir contentions, cause delays, and invitelitigations.' Farrell v. United States, 336 U.S. 511, 516, 69S.Ct. 707, 710, 93 L.Ed. 850 (1949).
Denial of maintenance and cure when the seaman's injury,though in fact permanent immediately after the accident, isnot medically diagnosed as permanent until long after itsoccurrence would obviously disserve and frustrate the'combined object of encouraging marine commerce andassuring the well-being of seamen.' A shipowner mightwithhold vitally necessary maintenance and cure on thebelief, however well or poorly founded, that the seaman'sinjury is permanent and incurable. Or the seaman, if paidmaintenance and cure by the shipowner, might be requiredto reimburse the payments, if it is later determined that theinjury was permanent immediately after the accident. Thusuncertainty would displace the essential certainty ofprotection against the ravages of illness and injury thatencourages seamen to undertake their hazardous calling.Moreover, easy and ready administration of the shipowner'sduty would seriously suffer from the introduction ofcomplexities and uncertainty that could 'stir contentions,cause delays, and invite litigations.'
The Shipowners' Liability Convention, made effective forthe United States on October 29, 1939, Farrell v. UnitedStates, supra, at 517, 69 S.Ct. at 710, buttresses ourconclusion that the District Court correctly held that'maintenance and cure continues until such time as theincapacity is declared to be permanent.' That holding tracksthe wording of Art. 4, 1, of the convention which provides:'The shipowner shall be liable to defray the expense ofmedical care and maintenance until the sick or injuredperson has been cured, or until the sickness or incapacity
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has been declared of a permanent character.' 54 Stat. 1696.(Emphasis supplied.) The aim of the convention 'was not tochange materially American standards but to equalizeoperating costs by raising the standards of member nationsto the American level.' *6 Warren v. United States, 340 U.S.523, 527, 71 S.Ct. 432, 435, 95 L.Ed. 503 (1951). Thus Art.4, 1, is declaratory of a longstanding tradition respecting thescope of the shipowner's duty to furnish injured seamenmaintenance and cure, Farrell v. United States, supra, 336U.S. at 518, 69 S.Ct. at 710, and therefore the DistrictCourt's interpretation was correct.
The judgment of the Court of Appeals is reversed, and thecase is remanded for further proceedings consistent with thisopinion.
Reversed and remanded.
129 S.Ct. 2561
ATLANTIC SOUNDING CO., INC.v.TOWNSEND
THOMAS, J., delivered the opinion of the Court, in whichSTEVENS, SOUTER, GINSBURG, and BREYER, JJ.,joined.
ALITO, J., filed a dissenting opinion, in which ROBERTS,C. J., and SCALIA and KENNEDY, JJ., joined.
THOMAS, J.
The question presented by this case is whether an injuredseaman may recover punitive damages for his employer'swillful failure to pay maintenance and cure. Petitionersargue that under Miles v. Apex Marine Corp., 498 U.S. 19,111 S.Ct. 317, 112 L.Ed.2d 275 (1990), seamen may recoveronly those damages available under the Jones Act, 46U.S.C. § 30104. We disagree. Historically, punitivedamages have been available and awarded in generalmaritime actions, including some in maintenance and cure.We find that nothing in Miles or the Jones Act eliminatesthat availability.
I
Respondent Edgar L. Townsend was a crew member of theMotor Tug Thomas. After falling on the steel deck of thetugboat and injuring his arm and shoulder, respondentclaimed that petitioner Atlantic Sounding,FN1 the owner ofthe tugboat, advised him that it would not providemaintenance and cure. See 496 F.3d 1282, 1283 (C.A.112007). “A claim for maintenance and cure concerns thevessel owner's obligation to provide food, lodging, andmedical services to a seaman injured while serving the
ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438,441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001).
FN1. Atlantic Sounding Co., Inc., is a wholly ownedsubsidiary of Weeks Marine, Inc., the other petitioner in thiscase.
Petitioners thereafter filed an action for declaratory reliefregarding their obligations with respect to maintenance andcure. Respondent filed his own suit under the Jones Act andgeneral maritime law, alleging negligence, unseaworthiness,arbitrary and willful failure to pay maintenance and cure,and wrongful termination. In addition, respondent filedsimilar counterclaims in the declaratory judgment action,seeking punitive damages for the denial of maintenance andcure. The District Court consolidated the cases. See 496F.3d, at 1283-1284.Petitioners moved to dismiss respondent's punitive damagesclaim. The District Court denied the motion, holding that itwas bound by the determination in Hines v. J.A. LaPorte,Inc., 820 F.2d 1187, 1189 (C.A.11 1987)(per curiam), thatpunitive damages were available in an action formaintenance and cure. The court, however, agreed to certifythe question for interlocutory appeal. See 496 F.3d, at 1284.The United States Court of Appeals for the Eleventh Circuitagreed with the District Court that Hines controlled and heldthat respondent could pursue his punitive damages claim forthe willful withholding of maintenance and cure. 496 F.3d,at 1285-1286. The decision conflicted with those of otherCourts of Appeals, see, e.g., Guevara v. Maritime OverseasCorp., 59 F.3d 1496 (C.A.5 1995) (en banc); Glynn v. RoyAl Boat Management Corp., 57 F.3d 1495 (C.A.9 1995),and we granted certiorari, 555 U.S. ----, 129 S.Ct. 490, 172L.Ed.2d 355 (2008).
II
Respondent claims that he is entitled to seek punitivedamages as a result of petitioners' alleged breach of their“maintenance and cure” duty under general maritime law.We find no legal obstacle to his doing so.
A
Punitive damages have long been an available remedy atcommon law for wanton, willful, or outrageous conduct.Under English law during the colonial era, juries wereaccorded broad discretion to award damages as they saw fit.See, e.g., Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng.Rep. 994 (C.P. 1676) (“[I]n civil actions the plaintiff is torecover by way of compensation for the damages he hathsustained, and the jury are the proper judges thereof”(emphasis in original)); 1 T. Sedgwick, Measure ofDamages § 349, p. 688 (9th ed.1912) (hereinafter Sedgwick)(“Until comparatively recent times juries were as arbitraryjudges of the amount of damages as of the facts”). Thecommon-law view “was that ‘in cases where the amount of
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damages was uncertain[,] their assessment was a matter sopeculiarly within the province of the jury that the Courtshould not alter it.’ ” Feltner v. Columbia PicturesTelevision, Inc., 523 U.S. 340, 353, 118 S.Ct. 1279, 140L.Ed.2d 438 (1998) (quoting Dimick v. Schiedt, 293 U.S.474, 480, 55 S.Ct. 296, 79 L.Ed. 603 (1935); alteration inoriginal).
The jury's broad discretion to set damages included theauthority to award punitive damages when thecircumstances of the case warranted. Just before theratification of the Constitution, Lord Chief Justice Prattexplained that “a jury ha[s] it in [its] power to give damagesfor more than the injury received. Damages are designed notonly as a satisfaction to the injured person, but likewise asa punishment to the guilty, to deter from any suchproceeding for the future, and as a proof of the detestationof the jury to the action itself.” Wilkes v. Wood, Lofft 1,18-19, 98 Eng. Rep. 489, 498-499 (C.P. 1763); see alsoPacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 25, 111S.Ct. 1032, 113 L.Ed.2d 1 (1991) (SCALIA, J., concurringin judgment) (“[P]unitive or ‘exemplary’ damages have longbeen a part of Anglo-American law”); Huckle v. Money, 2Wils. 205, 207, 95 Eng. Rep. 768, 769 (C.P. 1763)(declining to grant a new trial because the jury “ha[s] doneright in giving exemplary damages”).
American courts have likewise permitted punitive damagesawards in appropriate cases since at least 1784. See,e.g.,Genay v. Norris, 1 S.C.L. 6, 7, 1784 WL 26 (C.P. andGen. Sess. 1784) (approving award of “very exemplarydamages” because spiking wine represented a “very wantonoutrage”); Coryell v. Colbaugh, 1 N.J.L. 77, 1791 WL 380(1791) (concluding that a breach of promise of marriage was“of the most atrocious and dishonourable nature” andsupported “damages for example's sake, to prevent suchoffences in future” (emphasis in original)). Although someStates elected not to allow juries to make such awards, thevast majority permitted them. See 1 Sedgwick §§ 352, 354,at 694, 700. By the middle of the 19th century, “punitivedamages were undoubtedly an established part of theAmerican common law of torts [and] no particularprocedures were deemed necessary to circumscribe a jury'sdiscretion regarding the award of such damages, or theiramount.” Haslip, supra, at 26-27, 111 S.Ct. 1032 (SCALIA,J., concurring in judgment).
This Court has also found the award of punitive damages tobe authorized as a matter of common-law doctrine. In Dayv. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852), forexample, the Court recognized the “well-establishedprinciple of the common law, that in actions of trespass andall actions on the case for torts, a jury may inflict what arecalled exemplary, punitive, or vindictive damages upon adefendant ... .” Id., at 371; see also Philadelphia, W., & B.R.Co. v. Quigley, 21 How. 202, 214, 16 L.Ed. 73 (1859)(“Whenever the injury complained of has been inflicted
maliciously or wantonly, and with circumstances ofcontumely or indignity, the jury are not limited to theascertainment of a simple compensation for the wrongcommitted against the aggrieved person”); Barry v.Edmunds, 116 U.S. 550, 562, 6 S.Ct. 501, 29 L.Ed. 729(1886) (“[A]ccording to the settled law of this court, [aplaintiff] might show himself, by proof of thecircumstances, to be entitled to exemplary damagescalculated to vindicate his right and protect it against futuresimilar invasions”).
B
The general rule that punitive damages were available atcommon law extended to claims arising under federalmaritime law. See Lake Shore & Michigan Southern R. Co.v. Prentice, 147 U.S. 101, 108, 13 S.Ct. 261, 37 L.Ed. 97(1893) (“[C]ourts of admiralty ... proceed, in cases of tort,upon the same principles as courts of common law, inallowing exemplary damages ...”). One of this Court's firstcases indicating that punitive damages were availableinvolved an action for marine trespass. See The AmiableNancy, 3 Wheat. 546, 4 L.Ed. 456 (1818). In the course ofdeciding whether to uphold the jury's award, Justice Story,writing for the Court, recognized that punitive damages arean available maritime remedy under the propercircumstances. Although the Court found that the particularfacts of the case did not warrant such an award against thenamed defendants, it explained that “if this were a suitagainst the original wrong-doers, it might be proper to ...visit upon them in the shape of exemplary damages, theproper punishment which belongs to such lawlessmisconduct.” Id., at 558; see also Barry,supra, at 563, 6S.Ct. 501 (“In The Amiable Nancy, which was the case ofa marine tort, Mr. Justice Story spoke of exemplary damagesas ‘the proper punishment which belongs to ... lawlessmisconduct’ ” (citation omitted)).
The lower federal courts followed suit, finding that punitivedamages were available in maritime actions for tortious actsof a particularly egregious nature. See, e.g., McGuire v. TheGolden Gate, 16 F. Cas. 141, 143 (No. 8,815) (CC ND Cal.1856) (“In an action against the perpetrator of the wrong, theaggrieved party would be entitled to recover not only actualdamages but exemplary,-such as would vindicate hiswrongs, and teach the tort feasor the necessity of reform”);Ralston v. The State Rights, 20 F. Cas. 201, 210 (No.11,540) (DC ED Pa. 1836) (“[I]t is not legally correct ... tosay that a court cannot give exemplary damages, in a caselike the present, against the owners of a vessel”); BostonMfg. Co. v. Fiske, 3 F. Cas. 957 (No. 1,681) (CC Mass.1820) (Story, J.) (“In cases of marine torts, or illegalcaptures, it is far from being uncommon in the admiralty toallow costs and expences, and to mulct the offending parties,even in exemplary damages, where the nature of the caserequires it”). In short, prior to enactment of the Jones Act in1920, “maritime jurisprudence was replete with judicial
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statements approving punitive damages, especially on behalfof passengers and seamen.” Robertson, Punitive Damagesin American Maritime Law, 28 J. Mar. L. & Comm. 73, 115(1997) (hereinafter Robertson); see also 2 Sedgwick § 599b,at 1156 (“Exemplary damages are awarded in Admiralty, asin other jurisdictions”); 2 J. Sutherland, Law of Damages §392, p. 1272 (4th ed. 1916) (“As a rule a court of equity willnot award [punitive] damages, but courts of admiralty will...” (footnote omitted)).FN2
FN2. Although punitive damages awards were rarely upheldon judicial review, but see Roza v. Smith, 65 F. 592,596-597 (DC ND Cal. 1895); Gallagher v. The Yankee, 9 F.Cas. 1091, 1093 (No. 5,196) (DC ND Cal. 1859), that factdoes not draw into question the basic understanding thatpunitive damages were considered an available maritimeremedy. Indeed, in several cases in which a judgmentawarding punitive damage awards was overturned onappeal, the reversal was based on unrelated grounds. See,e.g., The Margharita, 140 F. 820, 824 (C.A.5 1905); PacificPacking & Nav. Co. v. Fielding, 136 F. 577, 580 (C.A.91905); Latchtimacker v. Jacksonville Towing & WreckingCo., 181 F. 276, 278 (C.C.S.D.Fla1910).
C
Nothing in maritime law undermines the applicability of thisgeneral rule in the maintenance and cure context. See G.Gilmore & C. Black, Law of Admiralty § 6-13, p. 312 (2ded.1975) (hereinafter Gilmore & Black) (explaining that aseaman denied maintenance and cure “has a free option toclaim damages (including punitive damages) under a generalmaritime law count”); Robertson 163 (concluding thatbreach of maintenance and cure is one of the particular tortsfor which general maritime law would most likely permitthe awarding of punitive damages “assuming ... the requisitelevel of blameworthiness”). Indeed, the legal obligation toprovide maintenance and cure dates back centuries as anaspect of general maritime law, and the failure of a seaman'semployers to provide him with adequate medical care wasthe basis for awarding punitive damages in cases decided asearly as the 1800's.
The right to receive maintenance and cure was firstrecognized in this country in two lower court decisionsauthored by Justice Story. See Harden v. Gordon, 11 F. Cas.480 (No. 6,047) (CC Me. 1823); Reed v. Canfield, 20 F.Cas. 426 (No. 11,641) (CC Mass. 1832). According toJustice Story, this common-law obligation to seamen wasjustified on humanitarian and economic grounds: “If someprovision be not made for [seamen] in sickness at theexpense of the ship, they must often in foreign ports sufferthe accumulated evils of disease, and poverty, andsometimes perish from the want of suitable nourishment .... [T]he merchant himself derives an ultimate benefit[because i]t encourages seamen to engage in perilousvoyages with more promptitude, and at lower wages.”
Harden, supra, at 483; see also Reed, supra, at 429 (“Theseaman is to be cured at the expense of the ship, of thesickness or injury sustained in the ship's service”).
This Court has since registered its agreement with thesedecisions. “Upon a full review ... of English and Americanauthorities,” the Court concluded that “the vessel and herowners are liable, in case a seaman falls sick, or is wounded,in the service of the ship, to the extent of his maintenanceand cure, and to his wages, at least so long as the voyage iscontinued.” The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483,47 L.Ed. 760 (1903). Decisions following The Osceola haveexplained that in addition to wages, “maintenance” includesfood and lodging at the expense of their ship, and “cure”refers to medical treatment. Lewis, 531 U.S., at 441, 121S.Ct. 993; see also Gilmore & Black § 6-12, at 267-268(describing “maintenance and cure” as including medicalexpenses, a living allowance, and unearned wages).
In addition, the failure of a vessel owner to provide propermedical care for seamen has provided the impetus fordamages awards that appear to contain at least somepunitive element. For example, in The City of Carlisle, 39F. 807 (DC Ore. 1889), the court added $1,000 to itsdamages award to compensate an apprentice seaman for“gross neglect and cruel maltreatment of the [seaman] sincehis injury.” Id., at 809, 817. The court reviewed theindignities to which the apprentice had been subjected as herecovered without any serious medical attention, see id., at810-812, and explained that “if owners do not wish to bemulct in damages for such misconduct, they should becareful to select men worthy to command their vessels andfit to be trusted with the safety and welfare of their crews,and particularly apprentice boys.” Id., at 817; see also TheTroop, 118 F. 769, 770-771, 773 (D.C.Wash.1902)(explaining that $4,000 was a reasonable award because thecaptain's “failure to observe the dictates of humanity” andobtain prompt medical care for an injured seamanconstituted a “monstrous wrong”).FN3
FN3. Although these cases do not refer to “punitive” or“exemplary” damages, scholars have characterized theawards authorized by these decisions as such. See Robertson103-105; Edelman, Guevara v. Maritime Overseas Corp.:Opposing the Decision, 20 Tulane Mar. L.J. 349, 351, andn. 22 (1996).
D
The settled legal principles discussed above establish threepoints central to resolving this case. First, punitive damageshave long been available at common law. Second, thecommon-law tradition of punitive damages extends tomaritime claims.FN4 And third, there is no evidence thatclaims for maintenance and cure were excluded from thisgeneral admiralty rule. Instead, the pre-Jones Act evidenceindicates that punitive damages remain available for such
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claims under the appropriate factual circumstances. As aresult, respondent is entitled to pursue punitive damagesunless Congress has enacted legislation departing from thiscommon-law understanding. As explained below, it has not.
FN4. The dissent correctly notes that the handful of earlycases involving maintenance and cure, by themselves, donot definitively resolve the question of punitive damagesavailability in such cases. See post, at 2578 - 2579 (opinionof ALITO, J.). However, it neglects to acknowledge that thegeneral common-law rule made punitive damages availablein maritime actions. See supra, at 2567 - 2568. Nor does thedissent explain why maintenance and cure actions should beexcepted from this general rule. It is because of this rule,and the fact that these early cases support-rather thanrefute-its application to maintenance and cure actions, seesupra, at 2568 - 2569, that the pre-Jones Act evidencesupports the conclusion that punitive damages wereavailable at common law where the denial of maintenanceand cure involved wanton, willful, or outrageous conduct.
III
A
The only statute that could serve as a basis for overturningthe common-law rule in this case is the Jones Act. Congressenacted the Jones Act primarily to overrule The Osceola,supra, in which this Court prohibited a seaman or his familyfrom recovering for injuries or death suffered due to hisemployers' negligence. To this end, the statute provides inrelevant part:
“A seaman injured in the course of employment or, if theseaman dies from the injury, the personal representative ofthe seaman may elect to bring a civil action at law, with theright of trial by jury, against the employer. Laws of theUnited States regulating recovery for personal injury to, ordeath of, a railway employee apply to an action under thissection.” 46 U.S.C. § 30104(a) (incorporating the FederalEmployers' Liability Act, 45 U.S.C. §§ 51-60).
The Jones Act thus created a statutory cause of action fornegligence, but it did not eliminate pre-existing remediesavailable to seamen for the separate common-law cause ofaction based on a seaman's right to maintenance and cure.Section 30104 bestows upon the injured seaman the right to“elect” to bring a Jones Act claim, thereby indicating achoice of actions for seamen-not an exclusive remedy. SeeFunk & Wagnalls New Standard Dictionary of the EnglishLanguage 798 (1913) (defining “elect” as “[t]o make choiceof”); 1 Bouvier's Law Dictionary 979 (8th ed.1914)(defining “election” as “[c]hoice; selection”). Because thethen-accepted remedies for injured seamen arose fromgeneral maritime law, see The Osceola, supra, at 175, 23S.Ct. 483, it necessarily follows that Congress wasenvisioning the continued availability of those common-law
causes of action. See Chandris, Inc. v. Latsis, 515 U.S. 347,354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (“Congressenacted the Jones Act in 1920 to remove the bar to suit fornegligence articulated in The Osceola, thereby completingthe trilogy of heightened legal protections [includingmaintenance and cure] that seamen receive because of theirexposure to the perils of the sea” (internal quotation marksomitted)); Stewart v. Dutra Constr. Co., 543 U.S. 481, 487,125 S.Ct. 1118, 160 L.Ed.2d 932 (2005) (describing theJones Act as “remov[ing] this bar to negligence suits byseamen”). If the Jones Act had been the only remainingremedy available to injured seamen, there would have beenno election to make.
In addition, the only statutory restrictions expresslyaddressing general maritime claims for maintenance andcure were enacted long after the passage of the Jones Act.They limit its availability for two discrete classes of people:foreign workers on offshore oil and mineral productionfacilities, see § 503(a)(2), 96 Stat.1955, codified at 46U.S.C. § 30105(b), and sailing school students andinstructors, § 204, 96 Stat. 1589, codified at 46 U.S.C. §50504(b). These provisions indicate that “Congress knowshow to” restrict the traditional remedy of maintenance andcure “when it wants to.” Omni Capital Int'l, Ltd. v. RudolfWolff & Co., 484 U.S. 97, 106, 108 S.Ct. 404, 98 L.Ed.2d415 (1987). Thus, nothing in the statutory scheme formaritime recovery restricts the availability of punitivedamages for maintenance and cure for those, likerespondent, who are not precluded from asserting thegeneral maritime claim.
Further supporting this interpretation of the Jones Act, thisCourt has consistently recognized that the Act “wasremedial, for the benefit and protection of seamen who arepeculiarly the wards of admiralty. Its purpose was to enlargethat protection, not to narrow it.” The Arizona v. Anelich,298 U.S. 110, 123, 56 S.Ct. 707, 80 L.Ed. 1075 (1936); seealso American Export Lines, Inc. v. Alvez, 446 U.S. 274,282, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) (pluralityopinion) (declining to “read the Jones Act as sweeping asidegeneral maritime law remedies”); O'Donnell v. Great LakesDredge & Dock Co., 318 U.S. 36, 43, 63 S.Ct. 488, 87 L.Ed.596 (1943) (“It follows that the Jones Act, in extending aright of recovery to the seaman injured while in the serviceof his vessel by negligence, has done no more thansupplement the remedy of maintenance and cure ...”);Pacific S.S. Co. v. Peterson, 278 U.S. 130, 134, 138-139, 49S.Ct. 75, 73 L.Ed. 220 (1928) (holding that the Jones Act“was not intended to restrict in any way the long-establishedright of a seaman to maintenance, cure and wages”).
Not only have our decisions repeatedly observed that theJones Act preserves common-law causes of action such asmaintenance and cure, but our case law also supports theview that punitive damages awards, in particular, remain
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available in maintenance and cure actions after the Act'spassage. In Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct.997, 8 L.Ed.2d 88 (1962), for example, the Court permittedthe recovery of attorney's fees for the “callous” and “willfuland persistent” refusal to pay maintenance and cure. Id., at529-531, 82 S.Ct. 997. In fact, even the Vaughan dissenters,who believed that such fees were generally unavailable,agreed that a seaman “would be entitled to exemplarydamages in accord with traditional concepts of the law ofdamages” where a “shipowner's refusal to pay maintenancestemmed from a wanton and intentional disregard of thelegal rights of the seaman.” Id., at 540, 82 S.Ct. 997(opinion of Stewart, J.); see also Fiske, 3 F. Cas., at 957(Story, J.) (arguing that counsel fees are awardable in“[c]ourts of admiralty ... not technically as costs, but uponthe same principles, as they are often allowed damages incases of torts, by courts of common law, as a recompensefor injuries sustained, as exemplary damages, or as aremuneration for expences incurred, or losses sustained, bythe misconduct of the other party”).FN5
FN5. In the wake of Vaughan, a number of lower courtsexpressly held that punitive damages can be recovered forthe denial of maintenance and cure. See, e.g., Hines v. J.A.LaPorte, Inc., 820 F.2d 1187, 1189 (C.A.11 1987)(percuriam) (upholding punitive damages award of $5,000 foran “arbitrary and bad faith breach of the duty to furnishmaintenance and cure”); Robinson v. Pocahontas, Inc., 477F.2d 1048, 1049-1052 (C.A.1 1973) (affirming punitivedamages award of $10,000 which was based, in part, on thedefendant's initial withholding of maintenance and cure onthe pretext that the seaman had been fired for cause).
Nothing in the text of the Jones Act or this Court's decisionsissued in the wake of its enactment undermines thecontinued existence of the common-law cause of actionproviding recovery for the delayed or improper provision ofmaintenance and cure. Petitioners do not deny theavailability of punitive damages in general maritime law, oridentify any cases establishing that such damages werehistorically unavailable for breach of the duty ofmaintenance and cure. The plain language of the Jones Act,then, does not provide the punitive damages bar thatpetitioners seek.
B
Petitioners nonetheless argue that the availability of punitivedamages in this case is controlled by the Jones Act becauseof this Court's decision in Miles, 498 U.S. 19, 111 S.Ct. 317,112 L.Ed.2d 275; see also post, at 2577 - 2578 (opinion ofALITO, J.). In Miles, petitioners argue, the Court limitedrecovery in maritime cases involving death or personalinjury to the remedies available under the Jones Act and theDeath on the High Seas Act (DOHSA), 46 U.S.C. §§30301-30306.FN6 Petitioners' reading of Miles is far toobroad.
FN6. DOHSA applies only to individuals killed (not merelyinjured) by conduct on the high seas. See 46 U.S.C. §30302. Because this case involves injuries to a seaman, andnot death on the high seas, DOHSA is not relevant.
Miles does not address either maintenance and cure actionsin general or the availability of punitive damages for suchactions. The decision instead grapples with the entirelydifferent question whether general maritime law shouldprovide a cause of action for wrongful death based onunseaworthiness. By providing a remedy for wrongful deathsuffered on the high seas or in territorial waters, the JonesAct and DOHSA displaced a general maritime rule thatdenied any recovery for wrongful death. See Miles, 498U.S., at 23-34, 111 S.Ct. 317. This Court, therefore, wascalled upon in Miles to decide whether these new statutessupported an expansion of the relief available underpre-existing general maritime law to harmonize it with acause of action created by statute.
The Court in Miles first concluded that the “unanimouslegislative judgment behind the Jones Act, DOHSA, and themany state statutes” authorizing maritime wrongful-deathactions, supported the recognition of a general maritimeaction for wrongful death of a seaman. Id., at 24, 111 S.Ct.317 (discussing Moragne v. States Marine Lines, Inc., 398U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), whichoverruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30L.Ed. 358 (1886)). Congress had chosen to limit, however,the damages available for wrongful-death actions under theJones Act and DOHSA, such that damages were notstatutorily available for loss of society or lost futureearnings. See Miles, 498 U.S., at 21, 31-32, 111 S.Ct. 317.The Court thus concluded that Congress' judgment mustcontrol the availability of remedies for wrongful-deathactions brought under general maritime law, id., at 32-36,111 S.Ct. 317.
The reasoning of Miles remains sound. As the Court in thatcase explained, “[w]e no longer live in an era when seamenand their loved ones must look primarily to the courts as asource of substantive legal protection from injury and death;Congress and the States have legislated extensively in theseareas.” Id., at 27, 111 S.Ct. 317. Furthermore, it was onlybecause of congressional action that a general federal causeof action for wrongful death on the high seas and interritorial waters even existed; until then, there was nogeneral common-law doctrine providing for such an action.As a result, to determine the remedies available under thecommon-law wrongful-death action, “an admiralty courtshould look primarily to these legislative enactments forpolicy guidance.” Ibid. It would have been illegitimate tocreate common-law remedies that exceeded those remediesstatutorily available under the Jones Act and DOHSA. Seeid., at 36, 111 S.Ct. 317 (“We will not create, under ouradmiralty powers, a remedy ... that goes well beyond thelimits of Congress' ordered system of recovery for seamen's
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injury and death”).
But application of that principle here does not lead to theoutcome suggested by petitioners or the dissent. See post, at2575 - 2576. Unlike the situation presented in Miles, boththe general maritime cause of action (maintenance and cure)and the remedy (punitive damages) were well establishedbefore the passage of the Jones Act. See supra, at 2566 -2569. Also unlike the facts presented by Miles, the JonesAct does not address maintenance and cure or itsremedy.FN7 It is therefore possible to adhere to thetraditional understanding of maritime actions and remedieswithout abridging or violating the Jones Act; unlikewrongful-death actions, this traditional understanding is nota matter to which “Congress has spoken directly.” SeeMiles, supra, at 31, 111 S.Ct. 317 (citing Mobil Oil Corp. v.Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56L.Ed.2d 581 (1978)). Indeed, the Miles Court itselfacknowledged that “[t]he Jones Act evinces no generalhostility to recovery under maritime law,” 498 U.S., at 29,111 S.Ct. 317, and noted that statutory remedy limitations“would not necessarily deter us, if recovery ... were moreconsistent with the general principles of maritime tort law.”Id., at 35, 111 S.Ct. 317. The availability of punitivedamages for maintenance and cure actions is entirelyfaithful to these “general principles of maritime tort law,”and no statute casts doubt on their availability under generalmaritime law.
FN7. Respondent's claim is not affected by the statutoryamendments to the Jones Act that limit maintenance andcure recovery in cases involving foreign workers onoffshore oil and mineral production facilities, see 46 U.S.C.§ 30105, or sailing school students and instructors, § 50504.See supra, at 2570.
Moreover, petitioners' contention that Miles precludes anyaction or remedy for personal injury beyond that madeavailable under the Jones Act was directly rejected by thisCourt in Norfolk Shipbuilding & Drydock Corp. v. Garris,532 U.S. 811, 818, 121 S.Ct. 1927, 150 L.Ed.2d 34 (2001).That case involved the death of a harbor worker. Ibid. There,the Court recognized a maritime cause of action forwrongful death attributable to negligence although neitherthe Jones Act (which applies only to seamen) nor DOHSA(which does not cover territorial waters) provided such aremedy. Id., at 817-818, 121 S.Ct. 1927. The Courtacknowledged that “it will be the better course, in manycases that assert new claims beyond what those statutes haveseen fit to allow, to leave further development to Congress.”Id., at 820, 121 S.Ct. 1927. But the Court concluded that thecause of action at issue there was “new only in the mosttechnical sense” because “[t]he general maritime law hasrecognized the tort of negligence for more than a century,and it has been clear since Moragne that breaches of amaritime duty are actionable when they cause death, aswhen they cause injury.” Ibid. The Court thus found that
“Congress's occupation of this field is not yet so extensiveas to preclude us from recognizing what is already logicallycompelled by our precedents.” Ibid.
Because Miles presented no barrier to this endorsement ofa previously unrecognized maritime cause of action fornegligent wrongful death, we see no legitimate basis for acontrary conclusion in the present case. Like negligence,“[t]he general maritime law has recognized ... for more thana century” the duty of maintenance and cure and the generalavailability of punitive damages. See Garris, supra, at 820,121 S.Ct. 1927; see also supra, at 2566 - 2569. And becauserespondent does not ask this Court to alter statutory text or“expand” the general principles of maritime tort law, Milesdoes not require us to eliminate the general maritime remedyof punitive damages for the willful or wanton failure tocomply with the duty to pay maintenance and cure. “Weassume that Congress is aware of existing law when itpasses legislation,” Miles, supra, at 32, 111 S.Ct. 317, andthe available history suggests that punitive damages were anestablished part of the maritime law in 1920, see supra, at2567 - 2569.FN8
FN8. In light of the Court's decision in Norfolk Shipbuilding& Drydock Corp. v. Garris, 532 U.S. 811, 818, 121 S.Ct.1927, 150 L.Ed.2d 34 (2001), our reading of Miles cannot,as the dissent contends, represent an “abrup[t]” change ofcourse. See post, at 2575.
It remains true, of course, that “[a]dmiralty is not created ina vacuum; legislation has always served as an importantsource of both common law and admiralty principles.”Miles, supra, at 24, 111 S.Ct. 317. And it also is true that thenegligent denial of maintenance and cure may also be thesubject of a Jones Act claim. See Cortes v. Baltimore InsularLine, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932).FN9 But the fact that seamen commonly seek to recoverunder the Jones Act for the wrongful withholding ofmaintenance and cure does not mean that the Jones Actprovides the only remedy for maintenance and cure claims.Indeed, contrary to petitioners' view that the Jones Actreplaced in their entirety the remedies available at commonlaw for maintenance and cure, the Cortes decision explicitlyacknowledged a seaman's right to choose amongoverlapping statutory and common-law remedies for injuriessustained by the denial of maintenance and cure. See 287U.S., at 374-375, 53 S.Ct. 173 (A seaman's “cause of actionfor personal injury created by the statute may haveoverlapped his cause of action for breach of the maritimeduty of maintenance and cure .... In such circumstances itwas his privilege, in so far as the causes of action coveredthe same ground, to sue indifferently on any one of them”).FN10
FN9. For those maintenance and cure claims that do notinvolve personal injury (and thus cannot be asserted underthe Jones Act), the dissent argues that punitive damages
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should be barred because such claims are based in contract,not tort. See post, at 2579. But the right of maintenance andcure “was firmly established in the maritime law long beforerecognition of the distinction between tort and contract.”O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36,42, 63 S.Ct. 488, 87 L.Ed. 596 (1943). Although the righthas been described as incident to contract, it cannot bemodified or waived. See Cortes v. Baltimore Insular Line,Inc., 287 U.S. 367, 372, 53 S.Ct. 173, 77 L.Ed. 368 (1932).
FN10. The fact that, in some cases, a violation of the duty ofmaintenance and cure may also give rise to a Jones Actclaim, see post, at 2576 (opinion of ALITO, J.), issignificant only in that it requires admiralty courts to ensureagainst double recovery. See Fitzgerald v. United StatesLines Co., 374 U.S. 16, 18-19, 83 S.Ct. 1646, 10 L.Ed.2d720 (1963) (authorizing a jury trial when a maintenance andcure claim is joined with a Jones Act claim because,“[r]equiring a seaman to split up his lawsuit, submitting partof it to a jury and part to a judge ... can easily result in toomuch or too little recovery”). Thus, a court may take stepsto ensure that any award of damages for lost wages in aJones Act negligence claim is offset by the amount of lostwages awarded as part of a recovery of maintenance andcure. See, e.g., Petition of Oskar Tiedemann & Co., 367F.2d 498, 505, n. 6 (C.A.3 1966); Crooks v. United States,459 F.2d 631, 633 (C.A.9 1972).
As this Court has repeatedly explained, “remedies fornegligence, unseaworthiness, and maintenance and curehave different origins and may on occasion call forapplication of slightly different principles and procedures.”Fitzgerald v. United States Lines Co., 374 U.S. 16, 18, 83S.Ct. 1646, 10 L.Ed.2d 720 (1963); see also Peterson, 278U.S., at 138, 139, 49 S.Ct. 75 (emphasizing that a seaman'saction for maintenance and cure is “independent” and“cumulative” from other claims such as negligence and thatthe maintenance and cure right is “in no sense inconsistentwith, or an alternative of, the right to recover compensatorydamages [under the Jones Act]”). See also Gilmore & Black§ 6-23, at 342 (“It is unquestioned law that both the JonesAct and the unseaworthiness remedies are additional tomaintenance and cure: the seaman may have maintenanceand cure and also one of the other two”). The laudable questfor uniformity in admiralty does not require the narrowingof available damages to the lowest common denominatorapproved by Congress for distinct causes of action.FN11Although “Congress ... is free to say this much and nomore,” Miles, 498 U.S., at 24, 111 S.Ct. 317 (internalquotation marks omitted), we will not attribute words toCongress that it has not written.
FN11. Although this Court has recognized that it maychange maritime law in its operation as an admiralty court,see Edmonds v. Compagnie Generale Transatlantique, 443U.S. 256, 271, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979),petitioners have not asked the Court to do so in this case or
pointed to any serious anomalies, with respect to the JonesAct or otherwise, that our holding may create. Nor havepetitioners argued that the size of punitive damages awardsin maintenance and cure cases necessitates a recovery cap,which the Court has elsewhere imposed. See ExxonShipping Co. v. Baker, 554 U.S. ----, ----, 128 S.Ct. 2605,2634, 171 L.Ed.2d 570 (2008) (imposing apunitive-to-compensatory ratio of 1:1). We do not decidethese issues.
IV
Because punitive damages have long been an acceptedremedy under general maritime law, and because nothing inthe Jones Act altered this understanding, such damages forthe willful and wanton disregard of the maintenance andcure obligation should remain available in the appropriatecase as a matter of general maritime law.FN12 Limitingrecovery for maintenance and cure to whatever is permittedby the Jones Act would give greater pre-emptive effect tothe Act than is required by its text, Miles, or any of thisCourt's other decisions interpreting the statute. For thesereasons, we affirm the judgment of the Court of Appeals andremand the case for further proceedings consistent with thisopinion.
FN12. Because we hold that Miles does not render the JonesAct's damages provision determinative of respondent'sremedies, we do not address the dissent's argument that theJones Act, by incorporating the provisions of the FederalEmployers' Liability Act, see 46 U.S.C. § 30104(a),prohibits the recovery of punitive damages in actions underthat statute. See post, at 2576 - 2578.
It is so ordered.
Justice ALITO, with whom THE CHIEF JUSTICE, JusticeSCALIA, and Justice KENNEDY join, dissenting.
In Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317,112 L.Ed.2d 275 (1990), this Court provided a workableframework for analyzing the relief available on claims undergeneral maritime law. Today, the Court abruptly changescourse. I would apply the analytical framework adopted inMiles, and I therefore respectfully dissent.
I
In order to understand our decision in Miles, it is necessaryto appreciate the nature of the authority that the Miles Courtwas exercising. The Constitution, by extending the judicialpower of the United States to admiralty and maritime cases,impliedly empowered this Court to continue thedevelopment of maritime law “in the manner of a commonlaw court.” Exxon Shipping Co. v. Baker, 554 U.S. ----, ----,128 S.Ct. 2605, 2619, 171 L.Ed.2d 570 (2008); see alsoRomero v. International Terminal Operating Co., 358 U.S.
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354, 360-361, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). In Miles,this Court explained how that authority should be exercisedin an era in which statutory law has become dominant.
Miles presented two questions regarding the scope of reliefpermitted under general maritime law, the first of which waswhether damages for loss of society may be recovered on ageneral maritime law wrongful-death claim. In order toanswer this question, the Court looked to the Death on theHigh Seas Act, 46 U.S.C. § 30301 et seq., and the Jones Act46 U.S.C. § 30101 et seq., both of which created newstatutory wrongful-death claims. Because the relief availableon these statutory claims does not include damages for lossof society, the Court concluded that it should not permitsuch damages on a wrongful-death claim brought undergeneral maritime law. The Court explained:
“We no longer live in an era when seamen and their lovedones must look primarily to the courts as a source ofsubstantive legal protection from injury and death; Congressand the States have legislated extensively in these areas. Inthis era, an admiralty court should look primarily to theselegislative enactments for policy guidance.” 498 U.S., at 27,111 S.Ct. 317 (emphasis added).
The Court took a similar approach in answering the secondquestion in Miles-whether damages for loss of futureincome should be available in a general maritime lawsurvival action. The Court noted that “[t]here are indeedstrong policy arguments for allowing such recovery” andthat “admiralty courts have always shown a specialsolicitude for the welfare of seamen and their families.” Id.,at 35-36, 111 S.Ct. 317. But because the Jones Act survivalprovision “limits recovery to losses suffered during thedecedent's lifetime,” the Court held that a similar limitationshould apply under general maritime law. Id., at 36, 111S.Ct. 317.
Miles thus instructs that, in exercising our authority todevelop general maritime law, we should be guidedprimarily by the policy choices reflected in statutes creatingclosely related claims. Endorsing what has been termed aprinciple of uniformity, Miles teaches that if a form of reliefis not available on a statutory claim, we should be reluctantto permit such relief on a similar claim brought undergeneral maritime law.
II
A
The type of maintenance and cure claim that is most likelyto include a request for punitive damages is a claim that aseaman suffered personal injury as a result of the willfulrefusal to provide maintenance and cure. Such a claim maybe brought under general maritime law. See Cortes v.Baltimore Insular Line, Inc., 287 U.S. 367, 374, 53 S.Ct.
173, 77 L.Ed. 368 (1932) (recognizing that a seaman maysue under general maritime law to recover for personalinjury resulting from the denial of maintenance and cure).And a similar claim may also be maintained under the JonesAct. See, e.g., Guevara v. Maritime Overseas Corp., 59 F.3d1496, 1499-1500 (C.A.5 1995) (en banc); G. Gilmore & C.Black, Law of Admiralty § 6-13, p. 311 (2d ed.1975). To besure, a seaman asserting a Jones Act claim must show thathis employer was negligent, ibid., while a seamanproceeding under general maritime law may recovercompensatory damages without establishing fault, id., at310. But because the prevailing rule in American courtsdoes not permit punitive damages without a showing offault, see Exxon Shipping, supra, at 2573, n. 2, 128 S.Ct.2605, it appears that any personal injury maintenance andcure claim in which punitive damages might be awardedcould be brought equally under either general maritime lawor the Jones Act. The Miles uniformity therefore weighsstrongly in favor of a rule that applies uniformly undergeneral maritime law and the Jones Act. I therefore turn tothe question whether punitive damages may be awardedunder the Jones Act.
B
Enacted in 1920, the Jones Act, 46 U.S.C. §§30104-30105(b), makes applicable to seamen thesubstantive recovery provisions of the Federal EmployersLiability Act (FELA), 45 U.S.C. § 51 et seq., which becamelaw in 1908. FELA, in turn, “recites only that employersshall be liable in ‘damages' for the injury or death of oneprotected under the Act.” Miles, supra, at 32, 111 S.Ct. 31(citing 45 U.S.C. § 51).
Prior to the enactment of the Jones Act, however, this Courthad decided several cases that explored the damagesallowed under FELA. In Michigan Central R. Co. v.Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913),the Court dealt primarily with the damages that may berecovered under FELA's wrongful-death provision, but theCourt also discussed the damages available in the case ofinjury. The Court noted that if the worker in that case hadnot died from his injuries, “he might have recovered suchdamages as would have compensated him for his expense,loss of time, suffering and diminished earning power.” Id.,at 65, 33 S.Ct. 192. Two years later, in St. Louis, I.M. &S.R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160(1915), the Court reiterated that an injured worker mayrecover only compensatory damages. Addressing thedamages available to a party bringing a survival claim, theCourt explained that the party may recover only thosedamages that had accrued to the worker at the time of hisdeath and was thus limited to “such damages as will bereasonably compensatory for the loss and suffering of theinjured person while he lived.” Id., at 658, 35 S.Ct. 704. Seealso ibid. (damages “confined to the [the worker's] personalloss and suffering before he died”); Miller v. American
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President Lines, Ltd., 989 F.2d 1450, 1457 (C.A.6), cert.denied, 510 U.S. 915, 114 S.Ct. 304, 126 L.Ed.2d 252(1993) ( “It has been the unanimous judgment of the courtssince before the enactment of the Jones Act that punitivedamages are not recoverable under [FELA] ).”
When Congress incorporated FELA unaltered into the JonesAct, Congress must have intended to incorporate FELA'slimitation on damages as well. Miles, 498 U.S., at 32, 111S.Ct. 317. “We assume that Congress is aware of existinglaw when it passes legislation.” Ibid. (citing Cannon v.University of Chicago, 441 U.S. 677, 696-697, 99 S.Ct.1946, 60 L.Ed.2d 560 (1979)). It is therefore reasonable toassume that only compensatory damages may be recoveredunder the Jones Act. See Pacific S.S. Co. v. Peterson, 278U.S. 130, 136-139, 49 S.Ct. 75, 73 L.Ed. 220 (1928) (underthe Jones Act, a seaman may “recover compensatorydamages for injuries caused by the negligence”). And underMiles' reasoning-at least in the absence of someexceptionally strong countervailing considerations-the ruleshould be the same when a seaman sues under generalmaritime law for personal injury resulting from the denial ofmaintenance and cure.
III
In reaching the opposite conclusion, the Court reasons that:punitive damages were available on maintenance and cureclaims prior to the enactment of the Jones Act and that theJones Act was not intended to trim the relief available onsuch general maritime law claims. This reasoning is flawed.
A
First, the Court proceeds as if the question here werewhether the Jones Act was meant to preclude generalmaritime law claims and remedies. See ante, at 2569 - 2570(Jones Act does not “overtur[n]” or “eliminate pre-existingremedies available to seamen”); ante, at 2570 (Jones Act“preserves common-law causes of action”); ante, at 2573(Miles does not “preclud[e]” all claims and remedies beyondthat made available under the Jones Act). Miles explicitlyrejected that argument. See 498 U.S., at 29, 111 S.Ct. 317.But just because the Jones Act was not meant to precludegeneral maritime claims or remedies, it does not follow thatthe Jones Act was meant to stop the development of generalmaritime law by the courts. The Jones Act is significantbecause it created a statutory claim that is indistinguishablefor present purposes from a general maritime lawmaintenance and cure claim based on personal injury andbecause this statutory claim does not permit the recovery ofpunitive damages. “Congress, in the exercise of itslegislative powers, is free to say ‘this much and no more,’ ”and “an admiralty court should look primarily to theselegislative enactments for policy guidance.” Miles,supra, at24, 27, 111 S.Ct. 317. This policy embodied in the JonesAct thus constitutes a powerful argument in favor of the
development of a similar rule under general maritime law.
B
That brings me to the Court's claim that the availability ofpunitive damages was established before the Jones Act waspassed. If punitive damages were a widely recognized andregularly employed feature of maintenance and cure claimsduring the pre-Jones Act era, I would not rule out thepossibility that this history might be sufficient to outweighthe Miles uniformity principle. But a search for cases inwhich punitive damages were awarded for the willful denialof maintenance of cure-in an era when seamen were oftentreated with shocking callousness-yields very little.Although American courts have entertained maintenanceand cure suits since the early 19th century, the Court pointsto only two reported cases- The City of Carlisle, 39 F. 807(DC Ore. 1889), and The Troop, 118 F. 769(D.C.Wash.1902)-that, as the Court carefully puts it,“appear to contain at least some punitive element.” Ante, at2569.
The Court's choice of words is well advised, for it is noteven clear that punitive damages were recovered in thesetwo obscure cases. In The City of Carlisle, a 16-year-oldapprentice suffered a fractured skull. The captain refused toput ashore. Given little care, the apprentice spent the nextsix or seven weeks in his bunk, wracked with pain, and wasthen compelled to work 12 hours a day for the remainingthree months of the voyage. Upon landing, the captain madeno arrangements for care and did not pay for the apprentice'sbrain surgery. The apprentice received an award of $1,000;that may include some “punitive element,” but it seemslikely that much if not all of that sum representedcompensation for the apprentice's months of agony and thelingering effects of his injury.
The Court's second case, The Troop, supra, involvedsimilarly brutal treatment. The seaman fell from a mast andfractured an arm and a leg while his ship was six miles fromits port of departure. Refusing to return to port, the captainsubjected the seaman to maltreatment for the remainder ofthe 36-day voyage. As a result, he was required to undergopainful surgery, and his injuries permanently prevented himfrom returning to work as a mariner. He received anundifferentiated award of $4,000, and while the court wassharply critical of the captain's conduct, it is far from clearthat the award did not consist entirely of compensatorydamages for medical expenses, lost future income, and painand suffering.
In addition to the two cases cited by the Court, respondentand an amicus claim that punitive damages were awarded ina few additional cases. See Brief for Respondent 13; Brieffor Amicus Curiae American Assn. of Justice as AmicusCuriae 10-11. Of these cases, The Margharita, 140 F. 820(C.A.5 1905), is perhaps the most supportive. There, the
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court explained that its award of $1,500 would not only“compensate the seaman for his unnecessary and unmeritedsuffering” but would “emphasize the importance of humaneand correct judgment under the circumstances on the part ofthe master.” Id., at 827. While the court's reference to themessage that the award embodied suggests that the awardwas in part punitive, it is also possible that the referencesimply represented a restatement of one of the traditionalrationales for maintenance and cure, i.e., that it served theeconomic interests of shipowners and the general interestsof the country by making service as a seaman moreattractive. See Harden v. Gordon, 11 F. Cas. 480, 485 (No.6,047) (CC Me. 1823).
The remaining cases contain harsh criticism of the seamen'streatment but do not identify any portion of the award aspunitive. See The Rolph, 293 F. 269 (N.D.Cal.1923), aff'd,299 F. 52 (C.A.9 1924) (undifferentiated award of $10,000for a seaman rendered blind in both eyes); Tomlinsonv.Hewett, 24 F. Cas. 29, 32 (No. 14,087) (DC Cal. 1872).
In sum, the search for maintenance and cure cases in whichpunitive damages were awarded yields strikingly slimresults. The cases found are insufficient in number, clarity,and prominence to justify departure from the Milesuniformity principle.
IV
There is one remaining question in this case, namely,whether punitive damages are permitted when a seamanasserts a general maritime law maintenance and cure claimthat is not based on personal injury. In Cortes, 287 U.S., at371, 53 S.Ct. 173, the Court explained that the duty tofurnish maintenance and cure “is one annexed to theemployment.... Contractual it is in the sense that it has itssource in a relation which is contractual in origin, but, giventhe relation, no agreement is competent to abrogate theincident.” The duty is thus essentially quasicontractual, andtherefore, in those instances in which the seaman does notsuffer personal injury, recovery should be governed by thelaw of quasi-contract. See Restatement (Second) ofContracts §§ 4b, 12f (1979); Restatement of Restitution §§113-114 (1936); 1 D. Dobbs, Law of Remedies § 4.2(3), pp580 (2d ed.1993). Thus, an award of punitive damages is notappropriate. See also Guevara, 59 F.3d, at 1513.
* * *
For these reasons, I would hold that punitive damages arenot available in a case such as this, and I would thereforereverse the decision of the Court of Appeals.
C. UnseaworthinessNotes
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The warranty of seaworthinessThe seaworthiness doctrine imposes on the vessel owner or bareboat charterer (owner pro hac vice),
but not a time or voyage charterer, an absolute and nondelegable duty to provide a vessel that is fit for itsintended purpose (i.e., the voyage).1. Only a seaman has an action for unseaworthiness; maritime workers do not. The seaman test is thesame as under the Jones Act. Some courts have allowed "pseudo-seamen" the benefit of the unseaworthinessremedy. See Note on pseudo-seamen, page 65.2. The duty to provide a seaworthy vessel is intended to cover:
A. All parts of a vessel and its operation (hull, appliances, appurtenances, geat and equipment).B. Manpower - either an incompetent or inadequate master, crew member or crew may render
the vessel unseaworthy.3. No distinction is made between conditions which are permanent and those that are transitory whendetermining whether the vessel is seaworthy.4. Unseaworthiness is not fault-based.5. Negligent conduct may create an unseaworthy condition, but as stated in #4 above, the seaman neednot prove that the unseaworthy condition resulted from the shipowner's negligence.6. The test for an unseaworthy condition is whether the vessel, equipment, or appurtenances were"reasonably fit for their intended use." The Osceola, 189 U.S. 158 (1902).Illustrative cases
The following cases illustrate how the courts have applied the unseaworthiness test. It is importantto note that the "standard of care is not perfection, but reasonable fitness...." Mitchell v. Trawler Racer,Inc., 362 U.S. 539 (1960). There is no warranty to provide an accident-free ship; thus, not every injury willresult in a viable claim for unseaworthiness.1. Vessel and its equipment
A. In Johnson v. Offshore Exp., Inc., 345 F.2d 1247 (5 Cir. 1983), the court held that failureth
of the vessel to provide adequate equipment which a short seaman could use to reach an upper bunk in fourto six-foot seas constituted unseaworthiness. "Unseaworthiness can be manifested by an unsafe method ofwork, such as the failure by a shipowner to provide adequate equipment for the performance of an assignedtask."
B. In Jordan v. United States Lines, Inc., 738 F.2d 48 (1 Cir. 1984), the Court found that ast
defective valve did not make the vessel unseaworthy when the evidence indicated that the valves werenonetheless reasonably fit for their intended use. The valve in question contained an automatic shutofffeature which did not activate and the seaman was scalded with steam. The court reasoned that a jury couldconclude that the automatic valve was necessary to maintain boiler pressure, not to act as a safety device.This conclusion is supported by the fact that the valve also possessed a manual cutoff feature.
C. In Hubbard v. Faros Fisheries, Inc., 626 F.2d 196 (1 Cir. 1980), a winch operator on ast
fishing boat experienced a heart attack when he attempted to force a jammed spooling mechanism. Thedefendant argued that even though the spooler was defective, the winch was still reasonably fit for itsintended purpose, since a safer alternative method could have been used to operate the machinery. The courtrefused to alter a jury finding of unseaworthiness, holding that this was a question of fact proper for jurydecision.
D. In Allen v. Seacoast Products, Inc., 623 F.2d 355 (5 Cir. 1980), a nylon mooring line wasth
used to move a vessel during an attempted salvage operation. When tension was placed on the line, itsnapped like a rubber band, striking and injuring a member of the crew. The court held that "misuse of evennon-defective, otherwise seaworthy equipment may nevertheless create an unseaworthy condition." Normaluse of the line was for mooring purposes, not for tying two vessel fifty feet apart in open, turbulent waters.
E. In Thibodeaux v. Rowan Drilling Co., 314 F.Supp. 543 (W.D. La. 1969), a roughneck
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employed aboard a submersible drilling barge was injured when a set of tongs with worn grooves slippedoff a drilling pipe and struck him in the chest. The court held the vessel unseaworthy on the ground that thefailure of a piece of equipment under proper and expected use is a sufficient predicate for a finding ofunseaworthiness.
F. When one is injured in the course of repairing a known defective condition, liability forunseaworthiness does not ensue. Neither does the shipowner, under these circumstances, have the duty tofurnish a safe place to work. The shipowner is not the covenantor of an accident-free vessel.
i. For example, in Spinks v. Chevron Oil Co., 546 F.2d 675 (5 Cir. 1977), the courtth
found that the plaintiff seaman who fell and was injured while applying soapy solution the deck of thedrilling barge while within the normal scope of his duties, the soapy condition of the deck was not anunseaworthy condition.
ii. However, in McCoy v. United States, 689 F.2d 1196 (4 Cir. 1982), the plaintiffth
seaman was ordered to main turbines and fans in the engine room. One fan leaked a large amount of oil andwater, which plaintiff reported to the chief mate. In a separate incident, plaintiff was ordered to repair aburnt fuel line; in order to do so he had to lie down in the oil and water. While walking across the floor toget some equipment, plaintiff slipped and was injured. The court found both the oil leak and the burnt fuelline rendered the vessel unseaworthy, holding that a seaman cannot be faulted for recognizing his job isdangerous and doing it anyway, unless he deliberately spurns safe alternatives provided for him.
G. In Snow v. Boat Dianne Lynn, Inc., 664 F.Supp. 20 (D. Me. 1987), an alternator protrudedinto the engine room of the vessel. A marine surveyor recommended that a protective guard be installedaround the alternator and its moving belts. The captain of the vessel had instructed the plaintiff seaman toinstall such a guard, but plaintiff did not do so. Plaintiff was injured when his pant leg got caught in themachinery. The court found the vessel to be unseaworthy, stating that the seaman's comparative negligencedoes not defeat the seaman's right to recovery under the doctrine of unseaworthiness except where theunseaworthy condition is entirely the seaman's own fault (i.e., the seaman has created the hazard that causesthe injury). If, as in this case, the hazard is an existing condition of the vessel, the exception does not apply.2. Manpower
A. In Boudoin v. Lykes Brothers Steamship Co., 348 U.S. 336 (1955), the court held that thewarranty of seaworthiness extends to the crew as well as to the ship and its gear. The plaintiff's injury wasinflicted by a drunk and disorderly crewmate. The court distinguished the incident from the normal behaviorof men at sea on the basis that the aggressor seaman had a proclivity for assault and was therefore as ormore dangerous than a defective piece of equipment.
B. For additional examples of manpower unseaworthiness, see Comeaux v. T.L. James & Co.,Inc., 666 F.2d 294 (5 Cir. 1982) (insufficient number of crew members and one crew memberth
inexperienced and blind in one eye); Morel v. Sabine Towing & Trans. Co., 507 F.Supp. 949 (E.D. Tex.1981) (lack of adequate personnel and medicla care); and Kratzer v. Capital Marine Supply, Inc., 490F.Supp. 222 (M.D. La. 1980) (inadequate and incompetent crew).3. Transitory conditions
A. In Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1959), the plaintiff slipped on a railtemporarily covered with slime and fish gurry. The court held that liability exists for transitory unseaworthyconditions in the same manner as for permanent conditions.
B. In Joyce v. Atlantic Richfield Co., 651 F.2d 676 (10 Cir. 1981), the plaintiff slipped onth
steps coated with mist and a thin film of cleaning solvent. The court, citing favorably Dunlap v. G&CTowing, Inc., 613 F.2d 493 (4 Cir. 1980), held that the mere presence of a slippery film does notth
necessarily constitute unseaworthiness. Only when the film renders the work area unfit for its intended usedoes liability attach. Thus, the court held that it would not reverse a jury finding that the work area was
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seaworthy because of the presence of safety features designed to prevent slipping.4. Operational negligence
In Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971), the plaintiff was injured as a resultof the negligent actions of a co-worker, and attempted to recover under the unseaworthy vessel doctrine.The court held that a vessel becomes unseaworthy as a result of a condition of the vessel, its appurtenances,cargo or crew, not because of the individual, isolated negligent act of the plaintiff's co-worker. The lattertype of action is covered by negligence law and, to rule otherwise "would be to subvert the fundamentaldistinction between unseaworthiness and negligence...."5. Cargo handling and containers
A. An improper method of handling cargo may amount to a finding of unseaworthiness.B. When a shipowner accepts cargo in a faulty container or allows a container to become faulty,
he assumes responsibility for injuries that this may cause to seamen on or about the ship.C. The warranty of fitness does not extend to the cargo itself. Most of the cases in this category
have involved injuries to longshoremen. At one time the United States Supreme Court held in SeasShipping Co. v. Sieracki, 328 U.S. 35 (1946) that certain activities performed by longshoremen in loadingand unloading vessels had in past times been performed by seamen. Therefore, these longshoremen wheninjured during the performance of these duties were entitled to the benefit of the warranty of seaworthiness.A longshoreman who was entitled to bring an action for injuries based on unseaworthiness was called a"Sieracki seaman." A Sieracki seaman was not a Jones Act seaman and could not bring an action againsthsi employer for negligence under the Jones Act. He did not have an action for maintenance and cure.Congress has expressly overruled the holding of the Sieracki case. Currently a longshoreman does not havea right to sue a vessel or vessel owner for unseaworthiness. No warranty of seaworthiness is extended tolongshoremen. There is no such thing today as a Sieracki seaman. The older cases involving longshoremenare primarily or historical interest. A longshoreman, however, may have an action against a shipowner fornegligence under § 905(b) of the Longshore and Harbor Workers Compensation Act, discussed infra. Seealso, Section II(H) supra, on "pseudo-seamen."
6. Violation of safety statutes and regulationsA. Unseaworthiness per se can result from a statutory or regulatory violation. Smith v. Trans-
World Drilling Co., 772 F.2d 157 (5 Cir. 1985); Brown v. Lykes Brothers SS Co., Inc., 484 F.2d 61 (5th th
Cir. 1973).B. In order to take advantage of the per se benefit, the plaintiff must establish proximate cause
(see discussion Note, Elements of the cause of action, infra).C. In Manning v. M/V "Sea Road", 417 F.2d 603 (5 Cir. 1969), the court held the vesselth
unseaworthy per se as a result of the violation of several longshoreman's regulations. But see Tallmon v.Toko Kaium K.K. Kobe, 273 F.Supp. 452 (D. Ore. 1967) (violation of OSHA regulations does not rendervessel per se unseaworthy, but they are admissible as evidence on the issue of unseaworthiness.Elements of the cause of action1. The plaintiff must allege a breach of the warranty of seaworthiness.2. The seaman must suffer personal injury or death as a result of the breach (cause in fact). This meansthat the unseaworthy condition must have played a substantial part in bringing about or actually causing theinjury.3. Plaintiff must show that the unseaworthy condition was the proximate cause of the seaman's injuryor death. Proximate causation is satisfied when the plaintiff shows that the injury was either a direct resultor a reasonably probable consequence of the unseaworthiness.Defenses1. The fact that the defendant exercised due care to make the vessel seaworthy is no defense. Mahnich
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v. Southern SS Co., 321 U.S. 96 (1944); Joyce v. Atlantic Richfield Co., 651 F.2d 676 (10 Cir. 1981).th
2. The fact that the defendant had no notice, knowledge or opportunity to correct the defect will notact as a defense to an unseaworthiness claim. Joyce, supra, at 676; Allen v. Seacoast Products, Inc., 623F.2d 355 (5 Cir. 1980).th
Right of action1. In personam - as against the owner or charterer (the person who had operational control of the shipat the time the condition was created or the accident occurred).2. In rem - against the vessel.Damages1. Loss of wages2. Loss of future earning capacity3. Pain and suffering, mental anguish4. Medical expenses, past and future; any other "condition"-related expenses5. Loss of society (on behalf of spouse) - Cf. Miles v. Apex Corp., infra.6. Punitive damages - Cf. Miles v. Apex Corp., infra.7. Pre-judgment interestForum1. Federal court
A. In Law - based on 28 U.S.C. § 1332: there must be complete diversity; the amount incontroversy must exceed $75,000; right to trial by jury.
B. In Admiralty - based on 28 U.S.C. § 1333; no jurisdictional amount required; no right to trialby jury.2. State court
In Law - based on 28 U.S.C. § 1333, "saving to suitors" provision; right to jury trial if provided bystate law.Joinder of claims1. If a seaman has a claim for both unseaworthiness and Jones Act negligence, he must join both claimsin a single proceeding. Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927).2. When this occurs and a jury trial has been elected, both claims must be submitted to the jury.Fitzgerald v. U.S. Lines Co., 374 U.S. 16 (1943).
80 S.Ct. 926MITCHELL
v.TRAWLER RACER, INC.
No. 176Argued Jan. 21, 1960
Decided May 16, 1960Mr. Justice STEWART delivered the opinion of the Court.
The petitioner was a member of the crew of the Bostonfishing trawler Racer, owned and operated by therespondent. On April 1, 1957, the vessel returned to herhome port from a 10-day voyage to the North Atlanticfishing grounds, loaded with a catch of fish and fish spawn. After working that morning with his fellow crew membersin unloading the spawn, the petitioner changed his clothesand came on deck to go ashore. He made his way to the sideof the vessel which abutted the dock, and in accord withrecognized custom stepped onto the ship's rail in order toreach a ladder attached to the pier. He was injured when hisfoot slipped off the rail as he grasped the ladder.
To recover for his injuries he filed this action for damagesin a complaint containing three counts: the first under theJones Act, 46 U.S.C.A. s 688, alleging negligence; thesecond alleging unseaworthiness; and the third formaintenance and cure. At the trial there was evidence toshow that the ship's rail where the petitioner had lost hisfooting was covered for a distance of 10 or 12 feet withslime and fish gurry, apparently remaining there from theearlier unloading operations.The district judge instructed the jury that in order to allowrecovery upon either the negligence or unseaworthinesscount, they must find that the slime and gurry had been onthe ship's rail for a period of time long enough for therespondent to have learned about it and to have removed it.Counsel for the petitioner requested that the trial judgedistinguish between negligence and unseaworthiness in thisrespect, and specifically requested him to instruct the jurythat notice was not a necessary element in proving liabilitybased upon unseaworthiness of the vessel. This request wasdenied. The jury awarded the petitioner maintenance andcure, but found for the respondent shipowner on both the
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negligence and unseaworthiness counts.An appeal was taken upon the sole ground that the districtjudge had been in error in instructing the jury thatconstructive notice was necessary to support liability forunseaworthiness. The Court of Appeals affirmed, holdingthat at least with respect to 'an unseaworthy condition whicharises only during the progress of the voyage,' theshipowner's obligation 'is merely to see that reasonable careis used under the circumstances * * * incident to thecorrection of the newly arisen defect.' 265 F.2d 426, 432.Certiorari was granted, 361 U.S. 808, 80 S.Ct. 70, 4 L.Ed.2d57, to consider a question of maritime law upon which theCourts of Appeals have expressed differing views. CompareCookingham v. United States, 3 Cir., 184 F.2d 213, withJohnson Line v. Maloney, 9 Cir., 243 F.2d 293, andPoignant v. United States, 2 Cir., 225 F.2d 595.In its present posture this case thus presents the single issuewhether with respect to so-called 'transitory'unseaworthiness the shipowner's liability is limited byconcepts of common-law negligence. There are here noproblems, such as have recently engaged the Court'sattention, with respect to the petitioner's status as a 'seaman.' Cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct.872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S.406, 74 S.Ct. 202, 98 L.Ed. 143; United New York and NewJersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79S.Ct. 517, 3 L.Ed.2d 541, or as to the status of the vesselitself. Cf. West v. United States, 361 U.S. 118, 80 S.Ct.189, 4 L.Ed.2d 161. The Racer was in active maritimeoperation, and the petitioner was a member of her crew.
* * *The first reference in this Court to the shipowner'sobligation to furnish a seaworthy ship as explicitly unrelatedto the standard of ordinary care in a personal injury caseappears in Carlisle Packing Co. v. Sandanger, 259 U.S. 255,42 S.Ct. 475, 66 L.Ed. 927. There it was said 'we think thetrial court might have told the jury that without regard tonegligence the vessel was unseaworthy when she left thedock * * * and that if thus unseaworthy and one of the crewreceived damage as the direct result thereof, he was entitledto recover compensatory damages.' 259 U.S. at page 259, 42S.Ct. at page 477. This characterization of unseaworthinessas unrelated to negligence was probably not necessary to thedecision in that case, where the respondent's injuries hadclearly in fact been caused by failure to exercise ordinarycare (putting gasoline in a can labeled 'coal oil' andneglecting to provide the vessel with life preservers). Yetthere is no reason to suppose that the Court's language wasinadvertent.During the two decades that followed the Carlisle decisionthere came to be a general acceptance of the view that TheOsceola had enunciated a concept of absolute liability forunseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness wassubstantial. See, Gilmore and Black, The Law of Admiralty(1957), p. 316. And the standard texts accepted that theory
of liability without question. See Benedict, The Law ofAmerican Admiralty (6th Ed., 1940), Vol. I, s 83; Robinson,Admiralty Law (1939), p. 303 et seq. Perhaps the clearestexpression appeared in Judge Augustus Hand's opinion inThe H. A. Scandrett, 2 Cir., 87 F.2d 708:
'In our opinion the libelant had a right of indemnity forinjuries arising from an unseaworthy ship even thoughthere was no means of anticipating trouble. 'The ship is not freed from liability by mere due diligenceto render her seaworthy as may be the case under theHarter Act (46 U.S.C.A. ss 190--195) where loss resultsfrom faults in navigation, but under the maritime lawthere is an absolute obligation to provide a seaworthyvessel and, in default thereof, liability follows for anyinjuries caused by breach of the obligation.' 87 F.2d atpage 711.
In 1944 this Court decided Mahnich v. Southern S.S. Co.,321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. While it is possibleto take a narrow view of the precise holding in that case, thefact is that Mahnich stands as a landmark in thedevelopment of admiralty law. Chief Justice Stone's opinionin that case gave an unqualified stamp of solid authority tothe view that The Osceola was correctly to be understood asholding that the duty to provide a seaworthy ship dependsnot at all upon the negligence of the shipowner or his agents. Moreover, the dissent in Mahnich accepted this reading ofThe Osceola and claimed no more than that the injury inMahnich was not properly attributable to unseaworthiness. See 321 U.S. at pages 105--113, 64 S.Ct. at pages 460--463.In Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872,90 L.Ed. 1099, the Court effectively scotched any doubtsthat might have lingered after Mahnich as to the nature ofthe shipowner's duty to provide a seaworthy vessel. Thecharacter of the duty, said the Court, is 'absolute.' 'It isessentially a species of liability without fault, analogous toother well known instances in our law. Derived from andshaped to meet the hazards which performing the serviceimposes, the liability is neither limited by conceptions ofnegligence nor contractual in character. * * * It is a form ofabsolute duty owing to all within the range of itshumanitarian policy.' 328 U.S. at pages 94--95, 66 S.Ct. atpage 877. The dissenting opinion agreed as to the nature ofthe shipowner's duty. '(D)ue diligence of the owner,' it said,'does not relieve him from this obligation.' 328 U.S. at page104, 66 S.Ct. at page 822.
* * *There is no suggestion in any of the decisions that the dutyis less onerous with respect to an unseaworthy conditionarising after the vessel leaves her home port, or that the dutyis any less with respect to an unseaworthy condition whichmay be only temporary. Of particular relevance here isAlaska Steamship Co. v. Petterson, supra. In that case theCourt affirmed a judgment holding the shipowner liable forinjuries caused by defective equipment temporarily broughton board by an independent contractor over which the ownerhad no control. That decision is thus specific authority forthe proposition that the shipowner's actual or constructive
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knowledge of the unseaworthy condition is not essential tohis liability. That decision also effectively disposes of thesuggestion that liability for a temporary unseaworthycondition is different from the liability that attaches whenthe condition is permanent.There is ample room for argument, in the light of history, asto how the law of unseaworthiness should have or couldhave developed. Such theories might be made to fill avolume of logic. But, in view of the decisions in this Courtover the last 15 years, we can find no room for argument asto what the law is. What has evolved is a completedivorcement of unseaworthiness liability from concepts ofnegligence. To hold otherwise now would be to erase morethan just a page of history.What has been said is not to suggest that the owner isobligated to furnish an accident-free ship. The duty isabsolute, but it is a duty only to furnish a vessel andappurtenances reasonably fit for their intended use. Thestandard is not perfection, but reasonable fitness; not a shipthat will weather every conceivable storm or withstandevery imaginable peril of the sea, but a vessel reasonablysuitable for her intended service. Boudoin v. Lykes Bros.S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354.The judgment must be reversed, and the case remanded tothe District Court for a new trial on the issue ofunseaworthiness.Reversed and remanded.
91 S.Ct. 514USNER
v.LUCKENBACH OVERSEAS CORP.
No. 47.Argued Nov. 18, 1970Decided Jan. 25, 1971
Rehearing Denied April 5, 1971Mr. Justice STEWART delivered the opinion of the Court.The petitioner, a longshoreman employed by an independentstevedoring contractor, was injured while engaged with hisfellow employees in loading cargo aboard the S. S. Edgar F.Luckenbach. He brought this action for damages against therespondents, the owner and the charterer of the ship, in afederal district court, alleging that his injuries had beencaused by the ship's unseaworthiness.
In the course of pretrial proceedings thecircumstances under which the petitioner had been injuredwere fully disclosed, and they are not in dispute. On the dayin question the ship lay moored to a dock in New Orleans,Louisiana, receiving cargo from a barge positionedalongside. The loading operations were being performed bythe petitioner and his fellow longshoremen under thedirection of their employer. Some of the men were on theship, operating the port winch and boom at the No. 2 hatch. The petitioner and others were on the barge, where their jobwas to 'break out' the bundles of cargo by securing them toa sling attached to the fall each time it was lowered from the
ship's boom by the winch operator. The loading operationshad been proceeding in this manner for some time, untilupon one occasion the winch operator did not lower the fallfar enough. Finding the sling beyond his reach, thepetitioner motioned to the flagman standing on the deck ofthe ship to direct the winch operator to lower the fall farther. The winch operator then lowered the fall, but he lowered ittoo far and too fast. The sling struck the petitioner,knocking him to the deck of the barge and causing hisinjuries. Neither before nor after this occurrence was anydifficulty experienced with the winch, boom, fall, sling, orany other equipment or appurtenance of the ship or hercargo.The respondents moved for summary judgment in theDistrict Court, upon the ground that a single negligent act bya fellow longshoreman could not render the shipunseaworthy. The District Court denied the motion, butgranted the respondents leave to take an interlocutory appealunder 28 U.S.C. s 1292(b).The United States Court of Appeals for the Fifth Circuitallowed the appeal and, reversing the District Court,directed that the respondents' motion for summary judgmentbe granted. 413 F.2d 984. It was the appellate court's viewthat "(i)nstant unseaworthiness' resulting from 'operationalnegligence' of the stevedoring contractor is not a basis forrecovery by an injured longshoreman.' 413 F.2d, at985--986. We granted certiorari, 397 U.S. 933, 90 S.Ct.940, 25 L.Ed.2d 114, because of a conflict among thecircuits on the basic issue presented.The development in admiralty law of the doctrine ofunseaworthiness as a predicate for a shipowner's liability forpersonal injuries or death has been fully chronicledelsewhere, and it would serve no useful purpose to repeatthe details of that development here.
* * *A major burden of the Court's decisions spelling out thenature and scope of the cause of action for unseaworthinesshas been insistence upon the point that it is a remedyseparate from, independent of, and additional to other claimsagainst the shipowner, whether created by statute or undergeneral maritime law. More specifically, the Court hasrepeatedly taken pains to point out that liability based uponunseaworthiness is wholly distinct from liability based uponnegligence. The reason, of course, is that unseaworthinessis a condition, and how that condition came intobeing--whether by negligence or otherwise--is quiteirrelevant to the owner's liability for personal injuriesresulting from it.We had occasion to emphasize this basic distinction againin Mitchell v. Trawler Racer, 362 U.S. 539, 80 S.Ct. 926. There the unseaworthy condition causing the plaintiff'sinjury was a ship's rail made slippery by the presence of fishgurry and slime.
* * *Trawler Racer involved the defective condition of a physicalpart of the ship itself. But our cases have held that the scopeof unseaworthiness is by no means so limited. A vessel's
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condition of unseaworthiness might arise from any numberof circumstances. Her gear might be defective, herappurtenances in disrepair, her crew unfit. The number ofmen assigned to perform a shipboard task might beinsufficient. The method of loading her cargo, or the mannerof its stowage, might be improper. For any of these reasons,or others, a vessel might not be reasonably fit for herintended service.What caused the petitioner's injuries in the present case,however, was not the condition of the ship, herappurtenances, her cargo, or her crew, but the isolated,personal negligent act of the petitioner's fellowlongshoreman. To hold that this individual act ofnegligence rendered the ship unseaworthy would be tosubvert the fundamental distinction betweenunseaworthiness and negligence that we have sopainstakingly and repeatedly emphasized in our decisions.In Trawler Racer, supra, there existed a condition ofunseaworthiness, and we held it was error to require afinding of negligent conduct in order to hold the shipownerliable. The case before us presents the other side of thesame coin. For it would be equally erroneous here, whereno condition of unseaworthiness existed, to hold theshipowner liable for a third party's single and whollyunforeseeable act of negligence. The judgment of the Courtof Appeals is affirmed.
D. Jones Act - SubstanceTHE JONES ACT46 U.S.C. §§ 30104-30106,formerly46 App. U.S.C.A. § 688§ 30104. Personal injury to or death of seaman(a) CAUSE OF ACTION.–A seaman injured in the course of employment or, if the seaman dies from the injury, thepersonal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, againstthe employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employeeapply to an action under this section.(b) VENUE.–An action under this section shall be brought in the judicial district in which the employer resides orthe employer’s principal office is located.”Former § 688. “(a) Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain anaction for damages at law, with the right of trial by jury, ... and in case of death of any seaman as a result of any suchpersonal injury the personal representative of such seaman may maintain an action for damages at law with the rightof trial by jury ....”Note
The Jones Act negligence cause of action is supplemented by the "statutes of the United Statesmodifying or extending the common law right[s] or remed[ies] in cases of personal injury to railwayemployees," i.e., the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq.
77 S.Ct. 457FERGUSON
v.MOORE-McCORMACK LINES
No. 59Argued Dec. 10, 1956Decided Feb. 25, 1957
Mr. Justice DOUGLAS announced the judgment of the
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Court and an opinion in which The CHIEF JUSTICE, Mr.Justice CLARK and Mr. Justice BRENNAN join.Petitioner was injured in 1950 while serving as a secondbaker on respondent's passenger ship Brazil. Among hisduties he was required to fill orders of the ship's waiters forice cream. On the day of the accident, he had received anorder from a ship's waiter for 12 portions of ice cream. When he got half way down in the two-and-one-half-gallonice-cream container from which he was filling these orders,the ice cream was so hard that it could not be removed withthe hemispherical scoop with which he had been furnished.Petitioner undertook to remove the ice cream with a sharpbutcher knife kept nearby, grasping the handle and chippingat the hard ice cream. The knife struck a spot in the icecream which was so hard that his hand slipped down ontothe blade of the knife, resulting in the loss of two fingers ofhis right hand.Petitioner brought this suit under the Jones Act, 41 Stat.1007, 46 U.S.C. s 688, 46 U.S.C.A. s 688, to recover for hisinjuries which were alleged to be the result of respondent'snegligence. At the close of petitioner's case, respondent'smotion for a directed verdict was denied. Respondentoffered no evidence. After the jury returned a verdict of$17,500 for the petitioner, respondent moved to set aside theverdict. This motion was also denied and judgment enteredfor the petitioner in accordance with the jury verdict. TheCourt of Appeals reversed, holding that it was 'not withinthe realm of reasonable foreseeability' that petitioner woulduse the knife to chip the frozen ice cream. 228 F.2d 891,892. We granted certiorari. 351 U.S. 936, 76 S.Ct. 835, 100L.Ed. 1464.We conclude that there was sufficient evidence to take to thejury the question whether respondent was negligent infailing to furnish petitioner with an adequate tool with whichto perform his task.Petitioner testified that the hard ice cream could have beenloosened safely with an ice chipper. He had used such aninstrument for that purpose on other ships. He was not,however, furnished such an instrument. There was evidencethat the scoop with which he had been furnished was totallyinadequate to remove ice cream of the consistency of thatwhich he had to serve. And, there was evidence that itsextremely hard consistency was produced by the failure ofanother member of the crew to transfer it from the deepfreeze to a tempering chest in sufficient time to allow all ofit to become disposable by means of the scoop when thetime came for it to be served. There was no showing thatany device was close at hand which would have safelyperformed the task. Finally, there was evidence thatpetitioner had been instructed to give the waiters promptservice.Respondent urges that it was not reasonably foreseeable thatpetitioner would utilize the knife to loosen the ice cream. But the jury, which plays a pre- eminent role in these JonesAct cases, Jacob v. City of New York, 315 U.S. 752, 62S.Ct. 854, 88 L.Ed. 1166; Schulz v. Pennsylvania R. Co.,350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668, could conclude
that petitioner had been furnished no safe tool to perform histask. It was not necessary that respondent be in a positionto foresee the exact chain of circumstances which actuallyled to the accident. The jury was instructed that it mightconsider whether respondent could have anticipated that aknife would be used to get out the ice cream. On thisrecord, fair-minded men could conclude that respondentshould have foreseen that petitioner might be tempted to usea knife to perform his task with dispatch, since no adequateimplement was furnished him. See Schulz v. PennsylvaniaR. Co., 350 U.S. 523, 526, 76 S.Ct. 608, 610, 100 L.Ed. 668. Since the standard of liability under the Jones Act is thatestablished by Congress under the Federal Employers'Liability Act, 45 U.S.C.A. s 51 et seq., what we said inRogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct.443, is relevant here:
'Under this statute the test of a jury case is simply whetherthe proofs justify with reason the conclusion thatemployer negligence played any part, even the slightest,in producing the injury or death for which damages aresought.'
Because the jury could have so concluded, the Court ofAppeals erred in holding that respondent's motion for adirected verdict should have been granted. 'Courts shouldnot assume that in determining these questions of negligencejuries will fall short of a fair performance of theirconstitutional function.' Wilkerson v. McCarthy, 336 U.S.53, 62, 69 S.Ct. 413, 418, 93 L.Ed. 497.Reversed.
78 S.Ct. 394KERNAN
v.AMERICAN DREDGING COMPANY, as Owner of
THE Tug ARTHUR N. HERRON, In the Matterof the Petition for Exoneration From or Limitation of
Liability.No. 34
Argued Nov. 21, 1957Decided Feb. 3, 1958
Mr. Justice BRENNAN delivered the opinion of the Court.
In this ... proceeding ..., the District Court for the EasternDistrict of Pennsylvania denied the petitioner's claim fordamages filed on behalf of the widow and other dependentsof a seaman who lost his life on respondent's tug in a firecaused by the violation of a navigation rule. 141 F.Supp.582. The Court of Appeals for the Third Circuit affirmed.235 F.2d 618, rehearing denied, 235 F.2d 619. We grantedcertiorari. 352 U.S. 965, 77 S.Ct. 356, 1 L.Ed.2d 320.The seaman lost his life on the tug Arthur N. Herron, which,on the night of November 18, 1952, while towing a scow onthe Schuylkill River in Philadelphia, caught fire when anopen-flame kerosene lamp on the deck of the scow ignitedhighly inflammable vapors lying above an extensiveaccumulation of petroleum products spread over the surfaceof the river. Several oil refineries and facilities for oil
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storage, and for loading and unloading petroleum products,are located along the banks of the Schuylkill River. Thetrial court found that the lamp was not more than three feetabove the water. Maintaining the lamp at a height of lessthan eight feet violated a navigation rule promulgated by theCommandant of the United States Coast Guard. The trialcourt found that the vapor would not have been ignited if thelamp had been carried at the required height.The District Court held that the violation of the rule 'whether* * * (it) be called negligence or be said to make the flotillaunseaworthy,' did not impose liability because 'the CoastGuard regulation had to do solely with navigation and wasintended for the prevention of collisions, and for no otherpurpose. In the present case there was no collision and nofault of navigation. True, the origin of the fire can be tracedto the violation of the regulation, but the question is notcausation but whether the violation of the regulation, ofitself, imposes liability.' 141 F.Supp. at page 585.The petitioner also urges that, since the violation of the rulerequiring the lights to be eight feet above the water resultedin a defect or insufficiency in the flotilla's lightingequipment which in fact caused the seaman's death, liabilitywas created without regard to negligence under the line ofdecisions of this Court in actions under the FELA basedupon violations of either the Safety Appliance Acts or theBoiler Inspection Act. That line of decisions interpreted theclause of s 1 of the FELA, 45 U.S.C. s 51, 45 U.S.C.A. s 51,which imposes liability on the employer 'by reason of anydefect or insufficiency, due to its negligence, in its cars,engines, appliances, machinery, track, roadbed, works,boats, wharves, or other equipment.' The cases hold thatunder this clause, a defect resulting from a violation ofeither statute which causes the injury or death of anemployee creates liability without regard to negligence. SanAntonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 484, 36S.Ct. 626, 629, 60 L.Ed. 1110. Here the defect orinsufficiency in the flotilla's lighting equipment due to aviolation of the statute resulted in the death of the seaman. The question for our decision is whether, in the absence ofany showing of negligence, the Jones Act--which in termsincorporates the provisions of the FELA--permits recoveryfor the death of a seaman resulting from a violation of astatutory duty. We hold that it does.In denying the claim the lower courts relied upon theirviews of general tort doctrine.... In the railroad and shippingindustries, however, the FELA and Jones Act provide theframework for determining liability for industrial accidents. But instead of a detailed statute codifying common-lawprinciples, Congress saw fit to enact a statute of the mostgeneral terms, thus leaving in large measure to the courts theduty of fashioning remedies for injured employees in amanner analogous to the development of tort remedies atcommon law. But it is clear that the general congressionalintent was to provide liberal recovery for injured workers,Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508--510,77 S.Ct. 443, 449--450, 1 L.Ed.2d 493, and it is also clearthat Congress intended the creation of no static remedy, but
one which would be developed and enlarged to meetchanging conditions and changing concepts of industry'sduty toward its workers.The FELA and the Jones Act impose upon the employer theduty of paying damages when injury to the worker is caused,in whole or in part, by the employer's fault. This fault mayconsist of a breach of the duty of care, analogous but by nomeans identical to the general common-law duty, or of abreach of some statutory duty. The tort doctrine which thelower courts applied imposes liability for violation of astatutory duty only where the injury is one which the statutewas designed to prevent. However, this Court has repeatedlyrefused to apply such a limiting doctrine in FELA cases. InFELA cases based upon violations of the Safety ApplianceActs or the Boiler Inspection Act, the Court has held that aviolation of either statute creates liability under FELA if theresulting defect or insufficiency in equipment contributes infact to the death or injury in suit, without regard to whetherthe injury flowing from the breach was the injury the statutesought to prevent. Since it appears in this case that thedefect or insufficiency of the flotilla's lighting equipmentresulting from the violation of 33 U.S.C. § 157, ... actuallycaused the seaman's death, this principle governs andcompels a result in favor of the petitioner's claim.
* * *The decisive question in this case, then, is whether theprinciples developed in this line of FELA cases permitrecovery for violation of this navigation statute or arelimited as the dissenting opinion would have it, to casesinvolving the Safety Appliance and Boiler Inspection Acts.Our attention is directed to the provisions of s 4 of theFELA, which makes reference to 'any statute enacted for thesafety of employees * * *;' and it is urged that this phrase,in some unexplained manner, creates a special relationshipbetween the FELA and the Safety Appliance and BoilerInspection Acts. Several answers may be given to thiscontention.First, § 4 relates entirely to the defense of assumption ofrisk, abolishing this defense where the injury was caused bythe employer's negligence or by 'violation * * * of anystatute enacted for the safety of employees * * *.' It is § 1 ofthe FELA which creates the cause of action and this section,on its face, is barren of any suggestion that injuries causedby violation of any statute are to be treated specially. Informulating the rule that violation of the Safety Applianceand Boiler Inspection Acts creates liability for resultinginjuries without proof of negligence, the Court relied onjudicially evolved principles designed to carry out thegeneral congressional purpose of providing appropriateremedies for injuries incurred by railroad employees. ForCongress, in 1908, did not crystallize the application of theAct by enacting specific rules to guide the courts. Rather,by using generalized language, it created only a frameworkwithin which the courts were left to evolve, much in themanner of the common law, a system of principlesproviding compensation for injuries to employees consistentwith the changing realities of employment in the railroad
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industry.Second, it is argued that the Safety Appliance and BoilerInspection Acts are special safety statutes and thus mayeasily be assimilated to the FELA under generalcommon-law principles. But there is no magic in the word'safety.' In the cases we have discussed it was regarded asirrelevant that the defects in the appliances did not disablethem from performing their intended safety function. Forinstance, in Gotschall the coupling defect parting the carsresulted in the automatic setting of the emergency brakes asa safety measure. In Coray the train stopped due to theoperation of the very safety mechanism required by thestatute. In Urie the defect in the sanders which caused sandto come into the locomotive cabs in no wise impaired thedesigned safety function of the sanders--to provide sand fortraction. We think that the irrelevance of the safety aspectin these cases demonstrates that the basis of liability is aviolation of statutory duty without regard to whether theinjury flowing from the violation was the injury the statutesought to guard against. It must therefore be concluded thatthe nature of the Acts violated is not a controllingconsideration; the basis of liability is the FELA.The courts, in developing the FELA with a view to adjustingequitably between the worker and his corporate employerthe risks inherent in the railroad industry, have plainlyrejected many of the refined distinctions necessary incommon-law tort doctrine for the purpose of allocating risksbetween persons who are more nearly on an equal footing asto financial capacity and ability to avoid the hazardsinvolved. Among the refinements developed by thecommon law for the purpose of limiting the risk of liabilityarising from wrongful conduct is the rule that violation of astatutory duty creates liability only when the statute wasintended to protect those in the position of the plaintiff fromthe type of injury in fact incurred. This limiting approachhas long been discarded from the FELA. Instead, the theoryof the FELA is that where the employer's conduct falls shortof the high standard required of him by this Act, and hisfault, in whole or in part, causes injury, liability ensues. And this result follows whether the fault is a violation of astatutory duty or the more general duty of acting with care,for the employer owes the employee, as much as the duty ofacting with care, the duty of complying with his statutoryobligations.We find no difficulty in applying these principles, developedunder the FELA, to the present action under the Jones Act,for the latter Act expressly provides for seamen the cause ofaction--and consequently the entire judicially developeddoctrine of liability--granted to railroad workers by theFELA. The deceased seaman here was in a positionperfectly analogous to that of the railroad workers allowedrecovery in the line of cases we have discussed, and theprinciples governing those cases clearly should apply here. The judgment of the Court of Appeals is reversed withdirection to remand to the District Court for furtherproceedings not inconsistent with this opinion. Reversed.
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NoteProof of causation
Plaintiff need not show that the negligence of the employer is the sole cause of his injuries. Gajewski v.United States, 540 F.Supp. 381 (S.D. N.Y. 19820. Moreover, plaintiff need not proe proximate cause in thetraditional sense. See Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959). For a case in which nocausation was found, see Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547 (5 Cir. 1987).th
107 F.3d 331GAUTREAUX
v.SCURLOCK MARINE, INC.
Nos. 95-30250, 95-30272Feb. 28, 1997
DUHÉ, Circuit Judge
Defendant-Appellant Scurlock Marine, Inc. moves this EnBanc Court to consider whether seamen, in Jones Actnegligence cases, are bound to a standard of ordinaryprudence in the exercise of care for their own safety, orwhether they are bound to a lesser duty of slight care. Onappeal to a panel of this Court, Scurlock Marine hadassigned as error, inter alia, the district court's instructionsto the jury charging that seamen were bound only to a dutyof slight care for their own safety. The panel deniedScurlock Marine relief on this point because the juryinstructions were consistent with what the panel consideredwas the settled law of this Circuit. Gautreaux v. ScurlockMarine, Inc., 84 F.3d 776, 780-81 (5th Cir.1996). A reviewof our Jones Act case law reveals, however, that this "settledlaw" obtains from doubtful parentage. We thus nowoverrule cases contrary to the principles embraced in thisopinion and AFFIRM in part, VACATE in part andREMAND for further proceedings as to comparative faultconsistent with our decision today.
BACKGROUND
Archie Scurlock, as President and owner of ScurlockMarine, Inc., ("Scurlock Marine") purchased the M/VBROOKE LYNN in May, 1993, and retained LanceOrgeron as her first and permanent captain. Scurlock hiredCharles Gautreaux as the BROOKE LYNN's relief captainin October, 1993. Gautreaux was qualified for the position,having worked as a tanker man since the early 1980s andhaving recently earned a United States Coast Guard master'slicense.
The BROOKE LYNN is a standard inland push boat,equipped with two towing winches on her bow, which areused to secure lines joining the BROOKE LYNN to thebarges in her tow. The starboard side winch is hydraulic,and the port side winch is electric. Upon being hired,Gautreaux was taken to the BROOKE LYNN and instructedon her operation by Archie Scurlock. Orgeron tookGautreaux on a tour of the vessel, showing him her layoutand familiarizing him with her equipment. Orgeron showed
Gautreaux the manual crank handle that accompanied theport side electric winch and told him that it was to be usedto override the electric switches on the winch if they failed. Orgeron explained that, if the winch became "bound up"and failed to engage by use of the electric ignition switch,the manual crank should be attached to the winch motor andturned a few times to "unbind" the winch, and then theelectric ignition switch should be used to try to engage thewinch. Neither Scurlock nor Orgeron told Gautreaux thatif he needed to use the manual crank handle to unbind thewinch, he should not leave it on the winch motor whenattempting to engage the winch by use of the electricignition switch.
About four months after he was hired, Gautreaux, serving ascaptain of the BROOKE LYNN, relieved the tanker man onduty and began off loading of the barge in tow. As thebarge discharged its cargo, it began to rise in the water,eventually causing the towing wires to become taut.Noticing this, Gautreaux attempted to relieve the tension inthe wires by unwinding them from the winches. He releasedthe starboard wire first, which caused that side of theBROOKE LYNN to drop and the port side towing wire tobecome even tighter. Gautreaux then attempted to releasethe port side wire, but the electric winch would not work. He attached the manual crank to the winch motor, and beganturning the crank while simultaneously pressing the electricignition switch. When the motor started, the manual crankhandle flew off and struck Gautreaux on the right side of hisface, crushing his right eye and inflicting other severeinjuries.
Gautreaux sued Scurlock Marine, alleging that his injurieswere caused by its negligence and the unseaworthiness ofthe BROOKE LYNN. Gautreaux's primary complaint wasthat Scurlock Marine failed to properly train him in the useand operation of the electric towing winch and its manualcrank handle, thereby not providing him a safe place towork. Scurlock Marine answered and sought exonerationfrom or limitation of its liability. After a two-day trial, thejury returned a verdict in favor of Gautreaux on his JonesAct negligence claim, but found the BROOKE LYNNseaworthy. The jury apportioned fault 95% to ScurlockMarine and 5% to Gautreaux and awarded a total of$854,000 in damages.[FN2]
FN2. The jury's award was:Past and future pain and sufferingand disability $300,000
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Past lost wages 24,000Future lost wages 500,000Future medical expenses 30,000 -------- Total $854,000 --------The district court entered judgment for Gautreaux for$811,300. By separate order, the district court deniedScurlock Marine's petition for limitation of liability. Scurlock Marine moved in the alternative for judgment as amatter of law, for new trial, or to alter, amend, or remit thejudgment. The district court denied these motions,conditioning its denial of Scurlock Marine's motion for newtrial on Gautreaux's acceptance of a remittitur. Gautreauxaccepted the remittitur, and the district court entered anamended judgment for $736,925 for Gautreaux.
On appeal to this Court, Scurlock Marine argued, inter alia,that in its instructions regarding contributory negligence, thedistrict court erred by charging the jury that a Jones Actseaman need exercise only "slight care" for his own safety. Scurlock Marine maintained that the standard to whichGautreaux, and all seamen, should be held is that of areasonably prudent person exercising ordinary or due careunder like circumstances. Accordingly, Scurlock Marineurged this Court to abandon the slight care standard in JonesAct cases, contending the standard "has evolved from thisCourt's blind adherence to an incorrect statement of thelaw." Gautreaux, 84 F.3d at 781 n. 7. The panelacknowledged that the viability of the slight care standardhas recently been questioned but considered it the settledlaw of this Circuit. It thus refused to hold that the districtcourt erred in giving the "slight care" instruction, noting that"settled law of this Circuit, such as the slight care standardin a Jones Act case, can only be changed, absent action bythe United States Supreme Court, by this Court sitting enbanc." Id. The panel accordingly affirmed the districtcourt's judgment and this en banc rehearing followed.
STANDARD OF REVIEW
While trial courts are accorded substantial latitude informulating jury instructions, "we must reverse when wehave a substantial doubt that the jury has been fairly guidedin its deliberations." Bode v. Pan American World Airways,Inc., 786 F.2d 669, 672 (5th Cir.1986) (internal quotationsand citation omitted); see also Mooney v. Aramco Servs.Co., 54 F.3d 1207, 1216 (5th Cir.1995).
DISCUSSION
The district court's instruction, consistent with the FifthCircuit's Pattern Jury Instructions, informed the jurors that"[i]n determining whether the plaintiff was contributorily
negligent, you must bear in mind that a Jones Act seamandoes not have a duty to use ordinary care under thecircumstances for his own safety. A Jones Act seaman isobliged to exercise only slight care under the circumstancesfor his own safety at the time of the accident." ScurlockMarine asserts that this charge is defective, maintaining thathistorically, Jones Act seamen had been expressly bound toa standard of ordinary prudence under like circumstances. Insupport of its contention, Scurlock Marine cites earlySupreme Court opinions to illustrate that the phrase "slightnegligence" or "slight care" stood not for the duty of careowed by employers and employees, as the phrase is nowunderstood, but for that quantum of evidence necessary tosustain a jury verdict on review. The duty of care owed byboth parties, Scurlock Marine contends, had always been,and should remain, that of the reasonable person.
We acknowledge there is much confusion in this Circuit asto the proper standard of care by which juries shouldmeasure a plaintiff's duty under the Jones Act to protecthimself. While some courts have instructed juries that aplaintiff's duty is only one of slight care, as did the districtcourt in the instant case, others charge that the duty is one ofordinary prudence. Admittedly, this Court has been less thanclear in its articulation of the proper standard of care towhich seamen are bound. We granted this en bancrehearing to eliminate the uncertainty and to considerreturning, as Scurlock Marine requests, to the reasonableperson standard.
A. The Development of the Slight Care, or SlightNegligence, Standard
The language chosen by Congress to determine theresponsibility of both employers and employees under theJones Act is simple and direct. Nothing in the statuteindicates that Congress intended to hold Jones Actemployees to a standard of slight duty of care in the exerciseof concern for their own safety. Below, we explain thestatutory scheme and Supreme Court precedent interpretingit before we illustrate our departure from their clearmandates.
1. The Statutory Scheme and Supreme Court Precedent
Under the Jones Act, seamen are afforded rights parallel tothose of railway employees under the Federal Employers'Liability Act ("FELA"). 46 U.S.C. § 688. Section 51 of theFELA provides, in pertinent part, that "[e]very commoncarrier by railroad ... shall be liable in damages ... for suchinjury or death resulting in whole or in part from thenegligence of any of the officers, agents, or employees ofsuch carrier." 45 U.S.C. § 51 (emphasis added). A seamanis entitled to recovery under the Jones Act, therefore, if hisemployer's negligence is the cause, in whole or in part, ofhis injury. In their earlier articulations of § 51 liability,courts had replaced the phrase "in whole or in part" with the
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adjective "slightest." In Rogers v. Missouri Pacific R. Co.,352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957),the Supreme Court used the term "slightest" to describe thereduced standard of causation between the employer'snegligence and the employee's injury in FELA § 51 cases.In Ferguson v. Moore-McCormack Lines, Inc., 352 U.S.521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957), theCourt applied the same standard to a Jones Act case,writing, " 'Under this statute the test of a jury case is simplywhether the proofs justify with reason the conclusion thatemployer negligence played any part, even the slightest, inproducing the injury or death for which damages are sought.'" (quoting Rogers, 352 U.S. at 506, 77 S.Ct. at 448).
Nothing in these cases, then, supports the proposition thatthe duty of care owed is slight. Rather, the phrase "inwhole or in part" as set forth in the statute, or, as it has cometo be known, "slightest," modifies only the causation prongof the inquiry. The phrase does not also modify the word"negligence." The duty of care owed, therefore, undernormal rules of statutory construction, retains the usual andfamiliar definition of ordinary prudence. See Texas FoodIndus. Assoc. v. United States Dept. of Agriculture, 81 F.3d578, 582 (5th Cir.1996) (stating it is a "cardinal canon ofstatutory construction ... that [in interpreting a statute,] thewords of a statute will be given their plain meaning").
Despite the clarity of the Supreme Court's decisions, theword "slightest," used initially to refer to the quantum ofevidence of an employer's breach of duty necessary tosustain a jury verdict, soon took on a different referent.Once the Supreme Court had reduced the statutory language"in whole or in part" to "any part, even the slightest," it wasnot long before our court further reduced the phrase "anypart, even the slightest" to a shorthand expression of "slightnegligence" or "slight evidence of negligence." Thereafterwe used the phrase "slight negligence" uncritically. JusticeFrankfurter's comment on the (mis)use of the phrase"assumption of the risk" in FELA actions aptly applies toour discussion today: "A phrase begins life as a literaryexpression; its felicity leads to its lazy repetition; andrepetition soon establishes it as a legal formula,undiscriminatingly used to express different and sometimescontradictory ideas." Tiller v. Atlantic Coast Line R. Co.,318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610 (1943)(Frankfurter, J., concurring). The same holds true of ouruse of the phrase "slight negligence" or "slight care" inJones Act negligence cases.
Guided by the Supreme Court, we had initially employedthe phrase "slight negligence" as a shorthand expression forthe standard by which we measure, in our review of a juryverdict, the sufficiency of evidence establishing a causal linkbetween an employer's negligence and a seaman's injury. Significantly, an employer's duty of care always remainedthat of ordinary negligence. Soon, however, we beganusing the phrase "slight negligence" to refer not only to the
sufficiency of the evidence inquiry but also to that duty ofcare Jones Act employers owed to their employees. Aplaintiff, therefore, could now reach the jury not only with"slight evidence" of his employer's negligence, but also withslight evidence of his employer having been only "slightlynegligent." Once we had characterized the phrase "slightnegligence" as shorthand to depict a duty of care owed by anemployer to its employee, it was not long before we alsoused the phrase to represent the plaintiff's duty of care toprotect himself from work-related injuries. We did so byrephrasing "slight negligence" to "slight care."
Historically, then, Jones Act employers and seamen wereexpressly bound to a standard of ordinary prudence; whenthe phrase "slight negligence" came to stand for the duty ofcare owed by employers and employees, however,employers were understood to be held to a higher degree ofpersonal responsibility as to their employees, andplaintiff-seamen were understood to be held to a lowerdegree of personal responsibility for themselves. We holdthat the historical interpretation always should have been,and should now be, applied in this Circuit. We offer thefollowing survey of our case law, however, to illustrate justhow we devolved from the Supreme Court'spronouncements in Rogers and Ferguson to our "settledlaw" today.
2. Our Departure from the Standard of Reasonable Care
In Page v. St. Louis Southwestern Railway Co., 349 F.2d820, 823 (5th Cir.1965), we kept the standards fordetermining duty of care and causation distinct when weclarified that in FELA cases, the traditional standard fordetermining negligence applied:
As to both attack or defense, there are two commonelements, (1) negligence, i.e., the standard of care, and (2)causation, i.e., the relation of the negligence to the injury. So far as negligence is concerned, that standard is thesame--ordinary prudence--for both Employee andRailroad alike.
In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (enbanc), however, the standards became more nebulous. Wemisinterpreted Rogers 's "any part, even the slightest"language to refer not to the evidence necessary to support ajury verdict, but to an employer's duty of care. Weconcluded that "[s]light negligence, necessary to support an[sic] FELA action, is defined as 'a failure to exercise greatcare,' and that burden of proof, obviously, is much less thanthe burden required to sustain recovery in ordinarynegligence actions." Id. at 371. Thus, in Boeing, webroadened the scope of a FELA--and by implication JonesAct--action insofar as we exposed employers to a higherdegree of care and thus more liability than they otherwisewould be exposed to in ordinary negligence actions.
In the following years, we vacillated considerably in our
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pronunciations of the proper standard of care. In Perry v.Morgan Guaranty Trust Co. of New York, 528 F.2d 1378(5th Cir.1976), we did not follow Boeing 's articulation of anemployer's duty, applying instead the traditional standard ofthat of a reasonable person. In Perry, the defendantappealed the district court's judgment for the plaintiff,maintaining that the court's finding of Jones Act liabilitywas unsupported by the evidence. We acknowledged thatthe amount of evidence required to support a jury verdictwas slight, and held that an employer was guided by a dutyof reasonable care. Perry, a case involving solely the issueof sufficiency of the evidence, was therefore properlydecided under the Supreme Court's decisions in Rogers andFerguson. In Davis v. Hill Engineering, Inc., 549 F.2d 314(5th Cir.1977), overruled on other grounds, 688 F.2d 280(5th Cir.1982), however, we regressed. Although we heldthat a finding of Jones Act liability could be sustained uponevidence of only "the slightest negligence," in the very nextsentence, we affirmed the district court's use of thereasonable person standard in determining Jones Actliability. Id. at 329. Interestingly, we cited Sanford Bros.Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir.1969) andPerry to support our holding that evidence of only theslightest negligence would suffice. Id. As noted, however,Perry, dealt solely with the issue of causation and did notadopt Boeing 's "slight negligence" standard. Moreover,Sanford Bros., which has often been cited erroneously as theprogenitor of our "slight negligence" standard, neitherapplied the "slight negligence" standard of care normentioned it in the course of its opinion, as the caseconcerned only the causation prong of the inquiry. That wemis-cited these cases, which both dealt solely with whetherthe evidence of the employer's negligence supported the juryverdict of Jones Act liability, demonstrates our earlypredilection to confuse the standard for sufficiency of theevidence and the standard of care a Jones Act employerowes to his employees.
Later, in Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741(5th Cir.1978), modified on other grounds, 606 F.2d 524(5th Cir.1979) (en banc), cert. denied, 446 U.S. 956, 100S.Ct. 2927, 64 L.Ed.2d 815 (1980), we reverted back to ourstatement in Perry and held that a Jones Act employer isnegligent "only if he fails to use reasonable care to maintaina reasonably safe place to work." We appear to haveswitched courses again, however, in Allen v. SeacoastProducts, Inc., 623 F.2d 355, 361 (5th Cir.1980), in whichwe held that "[t]he remedial nature of the Jones Act and itsimposition of a higher standard of care on employers resultsin liability upon the showing of only 'slight negligence.' "(citing Davis v. Hill Engineering, Inc., 549 F.2d 314, 329(5th Cir.1977)). Thereafter, we backtracked from thisposition to other prior ones when we explicitly stated that"the same general negligence ('ordinary prudence') andcausation standards apply to both employer and employee inFederal Employers' Liability Act (and, by extension, JonesAct) cases." Gavagan v. United States, 955 F.2d 1016, 1019
n. 7 (5th Cir.1992).
Our decisions imputing to Jones Act employers a higherduty of care than that imposed on all other employers stretchthe Supreme Court's decisions in Rogers and Ferguson quitefar. Our decisions discussing an employee's duty of carestretch farther. In Spinks v. Chevron Oil Co., 507 F.2d 216(5th Cir.1975), clarified on other grounds, 546 F.2d 675(5th Cir.1977), we not only reaffirmed the high standard ofcare to which we had bound Jones Act employers, but wealso announced that a seaman-employee owes only a slightduty to protect himself. We stated, "The duty owed by anemployer to a seaman is so broad that it encompasses theduty to provide a safe place to work. By comparison, theseaman's duty to protect himself ... is slight." Id. at 223(internal citations omitted).
Spinks, however, was not the definitive word on the issue. Just as we had done for the standard of care to be applied tomaritime employers, we vacillated--often in the sameopinion--as to the duty a seaman owed to look after his ownsafety, describing this duty as one of both reasonablenessand slight care. For example, in Bobb v. Modern Products,Inc., 648 F.2d 1051, 1057 (5th Cir.1981), we held that "theseaman has some duty to use reasonable care, even thoughthat duty is slight." Similarly, in Ceja v. Mike Hooks, Inc.,690 F.2d 1191, 1193 (5th Cir.1982), we wrote:
In contrast to the broad duty imposed upon a vessel ownerto supply a safe work place, the seaman's duty to protecthimself is slight. Although the seaman has a duty to usereasonable care, this duty is tempered by the realities ofmaritime employment "which have been deemed ... toplace large responsibility for his safety on the owner."
(citations omitted). One year later, in Thezan v. MaritimeOverseas Corp., 708 F.2d 175 (5th Cir.1983), cert. denied,464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984), werelied on Bobb to define a seaman's duty of care, butneglected to include Bobb 's element of "reasonableness" inour definition. We held that "[w]hile the seaman's duty toprotect himself is slight, the duty does exist." Id. at 180. Within the same paragraph, however, we did point out thatalthough a seaman generally owes no duty to find the safestway to perform his work, "where it is shown that thereexisted a safe alternative available of which he knew orshould have known, a seaman's course of action can beproperly considered in determining whether he wasnegligent." Id. at 181 (emphasis added). Our design inThezan may have been to continue holding seamen to astandard of ordinary prudence, but we failed to clearlyarticulate that intention. See also Shipman v. Central GulfLines, Inc., 709 F.2d 383, 386 (5th Cir.1983) (perpetuatingthe ambiguity).
We were quite explicit, however, in Brooks v. Great LakesDredge-Dock Co., 754 F.2d 536 (5th Cir.1984), modified onother grounds, 754 F.2d 539 (5th Cir.1985), when we
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expressly rejected any definition of a seaman's duty of carethat sounded in ordinary prudence. We held that the districtcourt erred by instructing the jury that the injured party hada duty of ordinary care for his own safety and emphasized,somewhat erroneously, that "[t]his court ... has consistentlyheld that under the Jones Act, a seaman's duty to protecthimself is not ordinary care, but slight care." Id. at 538. Brooks 's explicit proclamation did not last. Our clearwaters were made murky in Pickle v. International OilfieldDivers, Inc., 791 F.2d 1237, 1240 (5th Cir.1986), cert.denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989(1987), when we reinserted the element of "reasonableness"in our definition of the standard to which seamen are boundand held that the plaintiff's "duty to protect himself is onlya slight duty to use reasonable care." Again, we raiseGavagan to illustrate that, in 1992, we came full circle fromwhere we began in Page when we stated in rather explicitterms that the standards of reasonable care guide the dutiesof both employers and employees under the Jones Act.Gavagan, 955 F.2d at 1019 n. 7.
B. Ordinary Prudence
The above survey of our decisions shows the confused startand the diverted path leading to the "settled law" in thisCircuit that a Jones Act employer is bound by agreater-than-ordinary standard of care towards its employeesand that a seaman owes only a slight duty to look after hisown safety. We agree with the Third Circuit that nothing inthe text or structure of the FELA-Jones Act legislationsuggests that the standard of care to be attributed to either anemployer or an employee is anything different than ordinaryprudence under the circumstances. Fashauer v. New JerseyTransit Rail Operations, Inc., 57 F.3d 1269, 1283 (3dCir.1995). In addressing a seaman's duty to act withreasonable care, the Third Circuit reasoned:
By its very terms, the FELA provides that "the damagesshall be diminished by the jury in proportion to theamount of negligence attributable to such employee." 45U.S.C. § 53. The statute does not distinguish betweendegrees of negligence; the statute does not say that theplaintiff only has a slight duty of care. Under the statute,a plaintiff's recovery is reduced to the extent that he isnegligent and that such negligence is responsible for theinjury. In such a situation, one must assume thatCongress intended its words to mean what they ordinarilyare taken to mean--a person is negligent if he or she failsto act as an ordinarily prudent person would act in similarcircumstances. Such a reading also is in accord with theFELA's pure comparative negligence scheme; and toadopt [plaintiff's] argument would be to abandon the cleardictate of the statute in favor of a policy decision to favoremployees over employers.
Id.; see also Tiller v. Atlantic Coast Line R. Co., 318 U.S.54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610 (1943) (holding that
"the employer's liability is to be determined under thegeneral rule which defines negligence as the lack of due careunder the circumstances; or the failure to do what areasonable and prudent man would ordinarily have doneunder the circumstances of the situation"). Our sistercircuits have similarly held. See, e.g., Smith v. Tow BoatServ. & Management, Inc., 66 F.3d 336 (9th Cir.1995)(unpublished) (rejecting "slight care" standard); see alsoKarvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 &n. 2 (2d Cir.1986), cert. denied, 481 U.S. 1015, 107 S.Ct.1891, 95 L.Ed.2d 498 (1987), (approving jury instructioninforming that both employer and employee under Jones Actare charged with duty of reasonable care under thecircumstances); Ybarra v. Burlington N., Inc., 689 F.2d147, 150 (8th Cir.1982) (approving jury instruction thatrailroad has duty to exercise reasonable care for protectionof employees); Joyce v. Atlantic Richfield Co., 651 F.2d676, 681 (10th Cir.1981) (defining negligence as failure touse reasonable care).
We find further support for our position in Supreme Courtprecedent. In Urie v. Thompson, 337 U.S. 163, 174, 69S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949), the Courtemphasized that the term "negligence" is to be defined "bythe common law principles as established and applied in thefederal courts." (internal quotations and citation omitted). Although the Court's discussion refers specifically to § 51"negligence," it would defy logic not to extend thisreasoning to the term as used in § 53, which discusses aplaintiff's contributory negligence. See also ConsolidatedRail Corp. v. Gottshall, 512 U.S. 532, 542-44, 114 S.Ct.2396, 2404, 129 L.Ed.2d 427 (1994) (holding that commonlaw principles are entitled to great weight in FELA analysisunless expressly rejected in text of statute).
A seaman, then, is obligated under the Jones Act to act withordinary prudence under the circumstances. Thecircumstances of a seaman's employment include not onlyhis reliance on his employer to provide a safe workenvironment but also his own experience, training, oreducation. The reasonable person standard, therefore, anda Jones Act negligence action becomes one of thereasonable seaman in like circumstances. To holdotherwise would unjustly reward unreasonable conduct andwould fault seamen only for their gross negligence, whichwas not the contemplation of Congress. See Robert Force,Allocation of Risk and Standard of Care Under the JonesAct: "Slight Negligence," "Slight Care"?, 25 J. Mar. L. &Com. 1, 31 (1994).
By ascribing to seamen a slight duty of care to protectthemselves from the negligence of their employers, Spinksand its progeny, specifically Brooks, are repugnant to theprinciples we espouse today and are therefore overruled. Moreover, by attributing to Jones Act employers a higherduty of care than that required under ordinary negligence,Allen and its progeny repudiate the reasonable person
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standard and are also overruled.
CONCLUSION
In light of the foregoing discussion about the appropriatestandards of care that should guide employers andemployees under the Jones Act, we hold that the jurors inthe instant case were improperly instructed as to Gautreaux'sduty to exercise care for his own safety. We, however,express no opinion as to the proper apportionment of faultbetween the two parties.
We accordingly AFFIRM the district court's determinationof the amount of damages, VACATE the district court'sjudgment as to comparative fault and REMAND forproceedings to determine the comparative fault (if any) ofthe plaintiff and apportionment of the damages consistentwith this opinion. In all other respects, we reinstate thepanel's opinion.
AFFIRMED IN PART, VACATED IN PART, andREMANDED.
Notes
In the wake of Gautreaux, the Louisiana Supreme Court addressed the standard of conduct owed by aJones Act seaman and his employer in Vendetto v. Sonat Offshore Drilling Co., 755 So.2d 474 (La. 1999).Plaintiff was a mechanic on a drilling vessel owned and operated by his employer. He was injured while liftingtools during a maintenance procedure which he had seen performed (and in which he had assisted) several timesbefore. Plaintiff alleged that his employer had been negligent in failing to properly train him to do the lifting andin failing to properly supervise the maintenance operation.
While not bound by the Fifth Circuit's decision in Gautreaux, the Louisiana Supreme Court accepted theFifth Circuit's reasoning, agreeing that, "[i]n a Jones Act case, the court should determine the negligence of theemployer according to the standard of a reasonable employer under like circumstances, and should determine thecontributory negligence of the seaman according to the standard of a reasonable man under like circumstances."Vendetto, supra, at 479. The court found that there was nothing inherently dangerous in the lifting process usedby the plaintiff, which exposed him to nothing more than "an ordinary [hazard] recognized by ordinary workers."Id. at 480. As such, the court found that the employer's failure to instruct and supervise the plaintiff was not JonesAct negligence, since the plaintiff admitted that he knew how to safely perform the lifting.
Who is the employer?
For determination of the question of who is the employer of an injures seaman, see Wheatley v. Gladden,660 F.2d 1024 (4 Cir. 1981):th
"The trial court also held that Wheatley could not recover on his Jones Act claim and his'maintenance and cure' claim against Gladden because each required an employer/employeerelationship which was absent in this case as a matter of law."
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It is true that an employer/employee relationship is a necessary antecedent to a Jones Act negligenceclaim. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783 (1949), and to a 'maintenance and cure' claim.Cortez v. Baltimore Insular Line, 287 U.S. 365, 371 (1932). The existence of such an employer/employeerelationship must be determined under maritime law, United States v. Webb, Inc., 397 U.S. 179 (1970). Theburden of proof is on the seaman to establish the employment relationship. Among the factors to be considered indetermining whether a party is an employer are the degree of control exercised over the details of the operation,the amount of supervision, the amount of investment in the operation, the method of payment and the parties'understanding of the relationship. United States v. Webb, Inc., supra; Kirkconnell v. United States, 347 F.2d 260(Ct. Cl. 1965). The resolution of the issue is normally a factual one within the province of a jury. The Norland,101 F.2d 967 (9 Cir. 1939); Claussen v. Gulf Oil Corp., 136 F.Supp. 110 (W.D. Pa. 1955).th
Borrowed servant doctrine
A person may be a member of the crew of a vessel, and therefore a Jones Act seaman, even though he isemployed by an independent contractor rather than the shipowner. In such a case, the seaman is a borrowedservant of the shipowner and the shipowner occupies the position of an employer under the Jones Act. In Ruiz v.Shell Oil Co., 413 F.2d 310, 312-13 (5 Cir. 1969), the court suggested nine factors to be evaluated whenth
determining whether an injured worker is a Jones Act seaman as a borrowed servant or a longshoreman entitled tobenefits under LHWCA. These are:
1. Who has control over the employee and work he is performing, beyond mere suggestion ofdetails or cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding or meeting of the minds between the original and theborrowed employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished the tools and place for performance?
7. Was the new employment over a period of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
The borrowed servant doctrine is also important for purposes of LHWCA. See West v. Kerr-McGeeCorp., 765 F.2d 526 (5 Cir. 1985).th
Seamen’s Rights Against Third Parties
In suits against persons other than his employer, a seaman has the same rights against negligent thirdpersons as anyone else. If a seaman is aboard his employer's vessel and is injured when another vessel negligentlycollides with the one on which he is aboard, he may bring an action for negligence under the general maritimewhich has always provided a remedy in case of collision. The action may be brought in federal court in admiraltyor at law if there is diversity of citizenship. It may be brought in state court under saving to suitors. Damagesrecoverable are those permitted under general maritime law and are enumerated in the discussion of
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unseaworthiness, supra.
IV. TORT REMEDIES UNDER LHWCA
A. Status Under LHWCA
Coverage of the Longshore and Harbor Workers’ Compensation Act (LHWCA): “Employees” and“Navigable Waters of the United States”
33 USC § 902§ 902. Definitions
When used in this Act--
(1) The term "person" means individual, partnership, corporation, or association.
(2) The term "injury" means accidental injury or death arising out of and in the course of employment, andsuch occupational disease or infection as arises naturally out of such employment or as naturally orunavoidably results from such accidental injury, and includes an injury caused by the willful act of a thirdperson directed against an employee because of his employment.
(3) The term "employee" means any person engaged in maritime employment, including any longshoreman orother person engaged in longshoring operations, and any harbor-worker including a ship repairman,shipbuilder, and ship-breaker, but such term does not include--
(A) individuals employed exclusively to perform office clerical, secretarial, security, or dataprocessing work;
(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
(C) individuals employed by a marina and who are not engaged in construction, replacement, orexpansion of such marina (except for routine maintenance);
(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doingbusiness on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normallyperformed by employees of that employer under this Act;
(E) acquaculture workers;
(F) individuals employed to build any recreational vessel under sixty-five feet in length, or individualsemployed to repair any recreational vessel, or to dismantle any part of a recreational vessel in connection withthe repair of such vessel;
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tonsnet;
if individuals described in clauses (A) through (F) are subject to coverage under a State workers' compensationlaw. * * *
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33 USC § 903§ 903. Coverage
(a) Disability or death; injuries occurring upon navigable waters of United StatesExcept as otherwise provided in this section, compensation shall be payable under this chapter inrespect of disability or death of an employee, but only if the disability or death results from an injuryoccurring upon the navigable waters of the United States (including any adjoining pier, wharf, drydock, terminal, building way, marine railway, or other adjoining area customarily used by anemployer in loading, unloading, repairing, dismantling, or building a vessel).***
33 USC § 905§ 905. Exclusiveness of liability
***(b) Negligence of vesselIn the event of injury to a person covered under this chapter caused by the negligence of a vessel,then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring anaction against such vessel as a third party in accordance with the provisions of section 933 of thistitle, and the employer shall not be liable to the vessel for such damages directly or indirectly and anyagreements or warranties to the contrary shall be void. If such person was employed by the vessel toprovide stevedoring services, no such action shall be permitted if the injury was caused by thenegligence of persons engaged in providing stevedoring services to the vessel. If such person wasemployed to provide shipbuilding, repairing, or breaking services and such person's employer was theowner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall bepermitted, in whole or in part or directly or indirectly, against the injured person's employer (in anycapacity, including as the vessel's owner, owner pro hac vice, agent, operator, or charterer) or againstthe employees of the employer. The liability of the vessel under this subsection shall not be basedupon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedyprovided in this subsection shall be exclusive of all other remedies against the vessel except remediesavailable under this chapter.***
33 USC § 933§ 933. Compensation for injuries where third persons are liable
(a) Election of remediesIf on account of a disability or death for which compensation is payable under this chapter the personentitled to such compensation determines that some person other than the employer or a person orpersons in his employ is liable in damages, he need not elect whether to receive such compensation orto recover damages against such third person.***
97 S.Ct. 2348
NORTHEAST MARINE TERMINAL COMPANY,INC.
v.CAPUTO
INTERNATIONAL TERMINAL OPERATINGCOMPANY, INC.
v.BLUNDO
Nos. 76-444 and 76-454
Argued April 18, 1977
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Decided June 17, 1977 Mr. Justice MARSHALL delivered the opinion of theCourt.
In 1972 Congress amended the Longshoremen's andHarbor Workers' Compensation Act (LHWCA or Act),33 U.S.C. s 901 et seq., in substantial part to "extend(the Act's) coverage to protect additional workers."S.Rep.No.92-1125, p. 1 (1972) (hereinafter S.Rep.). Inthese consolidated cases we must determine whetherrespondents Caputo and Blundo, injured while workingon the New York City waterfront, are entitled tocompensation. To answer that question we mustdetermine the reach of the 1972 Amendments.
The sections of the Act relevant to these cases are theones providing "coverage" and defining "employee."They provide, with italics to indicate the material addedin 1972:
"Compensation shall be payable . . . in respectof disability or death of an employee but only ifthe disability or death results from an injuryoccurring upon the navigable waters of theUnited States (including any adjoining pier,wharf, dry dock, terminal, building way,marine railway, or other adjoining areacustomarily used by an employer in loading,unloading, repairing, or building a vessel ). . .." 33 U.S.C. s 903(a) (1970 ed., Supp. V).
"The term 'employee' means any personengaged in maritime employment, includingany longshoreman or other person engaged inlongshoring operations, and any harborworkerincluding a ship repairman, shipbuilder, andshipbreaker, but such term does not include amaster or member of a crew of any vessel, orany person engaged by the master to load orunload or repair any small vessel undereighteen tons net." 33 U.S.C. s 902(3) (1970ed., Supp. V).
Specifically at issue here is whether respondents Caputoand Blundo were "employees" within the meaning ofthe Act and whether the injuries they sustained occurredon the "navigable waters of the United States."
IAt the time of his injury respondent Carmelo Blundo hadbeen employed for five years as a "checker" by petitionerInternational Terminal Operating Co. (ITO) at its facilityin Brooklyn, N.Y., known as the 21st Street Pier. As achecker he was responsible for checking and recordingcargo as it was loaded onto or unloaded from vessels,barges, or containers. Blundo was assigned his tasks at the
beginning of each day and until he arrived at the terminalhe did not know whether he would be working on a shipor on shore. He was reassigned during the day if hecompleted the task to which he was assigned initially.App. 63-39, 112.
On January 8, 1974, ITO assigned Blundo to check cargobeing "stripped" or removed from a container on the 19thStreet side of the pier. The container Blundo was checkinghad been taken off a vessel at another pier facility outsideof Brooklyn and brought overland unopened by anindependent trucking company to the 21st Street Pier. Itwas Blundo's job to break the seal that had been placed onthe container in a foreign port and show it to United StatesCustoms Agents. After the seal was broken, Blundo wasto check the contents of the container against a manifestsheet describing the cargo, the consignees, and the ship on,and port from which, the cargo had been transported. Hewas to mark each item of cargo with an identifyingnumber. After the checking, the cargo was to be placed onpallets, sorted according to consignees, and put in abonded warehouse pending customs inspection. Blundowas injured as he was marking the cargo stripped from thecontainer, when he slipped on some ice on the pier. Id., at69-74, 86-90.
Blundo sought compensation under the LHWCA. TheAdministrative Law Judge concluded that Blundo satisfiedthe coverage requirements of the Act and the BenefitsReview Board (BRB) affirmed.
Respondent Ralph Caputo was a member of a regularlongshoring "gang" that worked for Pittston StevedoringCo. When his gang was not needed, Caputo went to thewaterfront hiring hall, where he was hired by the day byother stevedoring companies or terminal operators withwork available. He had been hired on some occasions byNortheast Stevedoring Co. to work as a member of astevedore gang on ships at the 39th Street Pier inBrooklyn; on other occasions he had been hired bypetitioner Northeast Marine Terminal Co., Inc.(Northeast), for work in its terminal operations at the samelocation. App. 8-10, 14-16.
On April 16, 1973, Caputo was hired by Northeast to workas a "terminal labor(er)." App. to Pet. for Cert. in No.76-444, p. 48a; App. 8, 14. A terminal laborer may beassigned to load and unload containers, lighters, barges,and trucks. Id., at 8; Brief for Petitioners in No. 76-444, p.4. When he arrived at the terminal, Caputo was assigned,along with a checker and forklift driver, to helpconsignees' truckmen load their trucks with cargo that hadbeen discharged from ships at Northeast's terminal. Caputowas injured while rolling a dolly loaded with cheese intoa consignee's truck. App. 27-40.
The Administrative Law Judge found that Caputo satisfied
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the requirements of the Act and awarded himcompensation. The BRB affirmed.
The employers in both cases filed petitions to review thedecisions and the Court of Appeals for the Second Circuitconsolidated the cases. After thorough consideration of thelanguage, history, and purposes of the 1972 Amendments,the court held, one judge dissenting, that the injuries ofboth respondents were compensable under the LHWCA.In view of the conflict over the coverage afforded by the1972 Amendments, we granted certiorari to consider bothcases. 429 U.S. 998, 97 S.Ct. 522, 50 L.Ed.2d 607 (1976).We affirm
IICongress enacted the LHWCA in 1927, 44 Stat. 1424,after this Court had thwarted the efforts of the States andof Congress to provide compensation for maritimeworkers injured on navigable waters through statecompensation programs. In 1917, the Court, in SouthernPacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed.1086, held that the States were without power to extend aworkmen's compensation remedy to longshoremen injuredon the gangplank between a ship and a pier. The decisionleft longshoremen injured on the seaward side of a pierwithout a compensation remedy while longshoremeninjured on the pier were protected by state compensationActs. State Industrial Comm'n v. Nordenholt Corp., 259U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922). Dissatisfiedwith the gap in coverage thus created, and recognizing thatthe amphibious nature of longshoremen's work made itdesirable to have "one law to cover their wholeemployment, whether directly part of the process ofloading or unloading a ship or not," Congress sought toauthorize States to apply their compensation statutes toinjuries seaward of the Jensen line. Its attempts to allowsuch uniform state systems, however, were struck down asunlawful delegations of congressional power. Washingtonv. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68L.Ed. 646 (1924); Knickerbocker Ice Co. v. Stewart, 253U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920). Finally,convinced that the only way to provide workmen'scompensation for longshoremen and harborworkersinjured on navigable waters was to enact a federal system,Congress, in 1927, passed the LHWCA.
The Act was, in a sense, a typical workmen'scompensation system, compensating an employee forinjuries "arising out of and in the course of employment."But it was designed simply to be a gapfiller to fill the voidcreated by the inability of the States to remedy injuries onnavigable waters. Thus, it provided coverage only forinjuries occurring "upon the navigable waters of theUnited States" and permitted compensation awards only"if recovery . . . through workmen's compensationproceedings (could) not validly be provided by state law."
Congress' initial apprehension of the difficulties inherentin the existence of two compensation systems for injuriessustained by amphibious workers proved to be wellfounded. The courts spent the next 45 years trying toascertain the respective spheres of coverage of the stateand federal systems. As two commentators described it,"the relationship between (LHWCA) and the otherwiseapplicable State Compensation Act (was) shrouded inimpenetrable confusion." G. Gilmore & C. Black, Law ofAdmiralty 409 (2d ed. 1975) (Gilmore). It is unnecessaryto examine in detail the Court's efforts to dispel theconfusion. Suffice it to say that while the Court permittedrecovery under state remedies in particular situationsseaward of the Jensen line, see, e. g., Davis v. Departmentof Labor and Industries of Washington, 317 U.S. 249, 63S.Ct. 225, 87 L.Ed. 246 (1942), the Court made it clearthat federal coverage stopped at the water's edge.Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90S.Ct. 347, 24 L.Ed.2d 371 (1969).
In Nacirema Operating Co., supra, the Court held that theAct did not cover longshoremen killed or injured on a pierwhile attaching cargo to ships' cranes for loading onto theships, even though coverage might have existed had themen been hurled into the water by the accident, MarineStevedoring Corp. v. Oosting, 238 F.Supp. 78 (ED Va.1965), aff'd, 398 F.2d 900 (CA4 1968) (en banc), or beeninjured on the deck of the ship while performing part ofthe same operation, Calbeck v. Travelers Ins. Co., 370U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). Thedissent protested the incongruity and unfairness of havingcoverage determined by "where the body falls" and arguedthat the Act was "status oriented, reaching all injuriessustained by longshoremen in the course of theiremployment." 396 U.S., at 224, 90 S.Ct., at 354 (Douglas,J., dissenting). The majority, however, did not agree.
"There is much to be said for uniform treatmentof longshoremen injured while loading orunloading a ship. But even construing the(Extension of Admiralty Jurisdiction Act of1948, 46 U.S.C. s 740,) to amend theLongshoremen's Act would not effect this result,since longshoremen injured on a pier bypier-based equipment would still remain outsidethe Act. And construing the Longshoremen's Actto coincide with the limits of admiraltyjurisdiction whatever they may be and howeverthey may change simply replaces one line withanother whose uncertain contours can onlyperpetuate on the landward wide of the Jensenline, the same confusion that previously existedon the seaward side. While we have no doubt thatCongress had the power to choose either of thesepaths in defining the coverage of itscompensation remedy, the plain fact is that itchose instead the line in Jensen separating water
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from land at the edge of the pier. The invitationto move that line landward must be addressed toCongress, not to this Court." Id., at 223-224, 90S.Ct., at 354."
In 1972, Congress moved the line.
The 1972 Amendments were the first significant effort toreform the 1927 Act and the judicial gloss that had beenattached to it. The main concern of the 1972 Amendmentswas not with the scope of coverage but withaccommodating the desires of three interested groups: (1)shipowners who were discontented with the decisionsallowing many maritime workers to use the doctrine of"seaworthiness" to recover full damages from shipownersregardless of fault; (2) employers of the longshoremenwho, under another judicially created doctrine, could berequired to indemnify shipowners and thereby lose thebenefit of the intended exclusivity of the compensationremedy; and (3) workers who wanted to improve thebenefit schedule deemed inadequate by all parties.Congress sought to meet these desires by "specificallyeliminating suits against vessels brought for injuries tolongshoremen under the doctrine of seaworthiness andoutlawing indemnification actions and 'hold harmless' orindemnity agreements(; continuing) to allow suits againstvessels or other third parties for negligence(; and raising)benefits to a level commensurate with present day salariesand with the needs of injured workers whose sole supportwill be payments under the Act." S.Rep. 5.
In increasing the benefits, however, Congress recognizedthat the disparity between the federal compensation ratesand the significantly lower state rates would exacerbatethe harshness of the already unpopular Jensen line. It alsorealized that modern technology had moved much of thelongshoreman's work onto the land so that if coveragewere not extended, there would be many workers whowould be relegated to what Congress deemed clearlyinadequate state compensation systems. As both theSenate and House Reports stated:
"(C)overage of the present Act stops at thewater's edge; injuries occurring on land arecovered by State Workmen's Compensation laws.The result is a disparity in benefits payable fordeath or disability for the same type of injurydepending on which side of the water's edge andin which State the accident occurs.
"To make matters worse, most State Workmen'sCompensation laws provide benefits which areinadequate. . . .
"It is apparent that if the Federal benefit structureembodied in (the) Committee bill is enacted,there would be a substantial disparity in benefits
payable to a permanently disabled longshoreman,depending on which side of the water's edge theaccident occurred, if State laws are permitted tocontinue to apply to injuries occurring on land. Itis also to be noted that with the advent of moderncargo-handling techniques, such ascontainerization and the use of LASH-typevessels, more of the longshoreman's work isperformed on land than heretofore."
To remedy these problems, Congress extended thecoverage shoreward. It broadened the definition of"navigable waters of the United States" to include "anyadjoining pier, wharf, dry dock, terminal, building way,marine railway, or other adjoining area customarily usedby an employer in loading, unloading, repairing, orbuilding a vessel." At the same time, Congress amendedthe definition of the persons covered by the Act.Previously, so long as a work-related injury occurred onnavigable waters and the injured worker was not a memberof a narrowly defined class, the worker would be eligiblefor federal compensation provided that his or her employerhad at least one employee engaged in maritimeemployment. It was not necessary that the injuredemployee be so employed. Pennsylvania Railroad Co. v.O'Rourke, 344 U.S. 334, 340-342, 73 S.Ct. 302, 305-306,97 L.Ed. 367 (1953). But with the definition of "navigablewaters" expanded by the 1972 Amendments to includesuch a large geographical area, it became necessary todescribe affirmatively the class of workers Congressdesired to compensate. It therefore added the requirementthat the injured worker be "engaged in maritimeemployment," which it defined to include "anylongshoreman or other person engaged in longshoringoperations, and any harborworker including a shiprepairman, shipbuilder, and shipbreaker, but . . . not . . . amaster or member of a crew of any vessel, or any personengaged by the master to load or unload or repair anysmall vessel under eighteen tons net." 33 U.S.C. s 902(3)(1970 ed., Supp. V).
The 1972 Amendments thus changed what had beenessentially only a "situs" test of eligibility forcompensation to one looking to both the "situs" of theinjury and the "status" of the injured. We must nowdetermine whether respondents Caputo and Blundosatisfied these requirements.
IIIWe turn first to the question whether Caputo and Blundosatisfied the "status" test that is, whether they were"engaged in maritime employment" and therefore"employees" at the time of their injuries. The question ismade difficult by the failure of Congress to define therelevant terms "maritime employment," "longshoremen,""longshoring operations" in either the text of the Act or itslegislative history.
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The closest Congress came to defining the key terms is the"typical example" of shoreward coverage provided in theCommittee Reports. The example clearly indicates anintent to cover those workers involved in the essentialelements of unloading a vessel taking cargo out of thehold, moving it away from the ship's side, and carrying itimmediately to a storage or holding area. The examplealso makes it clear that persons who are on the situs butare not engaged in the overall process of loading andunloading vessels are not covered. Thus, employees suchas truckdrivers, whose responsibility on the waterfront isessentially to pick up or deliver cargo unloaded from ordestined for maritime transportation are not covered. Alsoexcluded are employees who perform purely clerical tasksand are not engaged in the handling of cargo. But whilethe example is useful for identifying the outer bounds ofwho is clearly excluded and who is clearly included, itdoes not speak to all situations. In particular, it is silent onthe question of coverage for those people, such as Caputoand Blundo, who are injured while on the situs, see PartIV, infra, and engaged in the handling of cargo as it movesbetween sea and land transportation after its immediateunloading.
Nevertheless, we are not without guidance in resolvingthat question. The language of the 1972 Amendments isbroad and suggests that we should take an expansive viewof the extended coverage. Indeed, such a construction isappropriate for this remedial legislation. The Act "must beliberally construed in conformance with its purpose, andin a way which avoids harsh and incongruous results."Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 92, 98L.Ed. 5 (1953). Consideration of the purposes behind thebroadened coverage reveals a clear intent to reach personssuch as Blundo and Caputo.
One of the primary motivations for Congress' decision toextend the coverage shoreward was the recognition that"the advent of modern cargo-handling techniques" hadmoved much of the longshoremen's work off the vesseland onto land. S.Rep. 13; H.R.Rep. 10, U.S.Code Cong. &Admin.News 1972, p. 4707. Noted specifically was theimpact of containerization. Unlike traditional break-bulkcargo handling, in which each item of cargo must behandled separately and stored individually in the hold ofthe ship as it waits in port, containerization permits thetime-consuming work of stowage and unstowage to beperformed on land in the absence of the vessel. The use ofcontainerized ships has reduced the costly time the vesselmust be in port and the amount of manpower required toget the cargo onto the vessel. In effect, the operation ofloading and unloading has been moved shoreward; thecontainer is a modern substitute for the hold of the vessel.As Judge Friendly observed below, "(s)tripping acontainer . . . is the functional equivalent of sorting cargodischarged from a ship; stuffing a container is part of theloading of the ship even though it is performed on shore
and not in the ship's cargo holds." Pittston StevedoringCorp. v. Dellaventura, 544 F.2d 35, 53 (CA2 1976).Congress' intent to adapt the LHWCA to moderncargo-handling techniques clearly indicates that thesetasks, heretofore done on board ship, are included in thecategory of "longshoring operations."
It is therefore apparent that respondent Blundo was astatutory "employee" when he slipped on the ice. His jobwas to check and mark items of cargo as they wereunloaded from a container. This task is clearly an integralpart of the unloading process as altered by the advent ofcontainerization and was intended to be reached by theAmendments. Indeed, the Committee Reports explicitlystate: "(C)heckers, for example, who are directly involvedin the loading or unloading functions are covered by thenew amendment." S.Rep. 13; H.R.R. Rep. 11, U.S.CodeCong. & Admin.News 1972, p. 4708. We thus have nodoubt that Blundo satisfied the status test.
The congressional desire to accommodate the Act tomodern technological changes is not relevant to Caputo'scase, since he was injured in the old-fashioned process ofputting goods already unloaded from a ship or containerinto a delivery truck. Another dominant theme underlyingthe 1972 Amendments, however, assists us in analyzingCaputo's status. Congress wanted a "uniformcompensation system to apply to employees who wouldotherwise be covered by this Act for part of their activity."S.Rep. 13; H.R.Rep. 10-11, U.S.Code Cong. &Admin.News 1972, p. 4708. It wanted a system that didnot depend on the "fortuitous circumstance of whether theinjury (to the longshoreman) occurred on land or overwater." S.Rep. 13; H.R.Rep. 10, U.S.Code Cong. &Admin.News 1972, p. 4708. It therefore extended the situsto encompass the waterfront areas where the overallloading and unloading process occurs. It is the view of therespondent Director of the OWCP that a uniform systemmust reach "all physical cargo handling activity anywherewithin an area meeting the situs (test)." Brief for FederalRespondent 20. "(M)aritime employment," in his view,"include(s) all physical tasks performed on the waterfront,and particularly those tasks necessary to transfer cargobetween land and water transportation." Id., at 25. Underthis theory, it is clear that the Act would cover someonewho, like Caputo, was engaged in the final steps ofmoving cargo from maritime to land transportation:putting it in the consignee's truck.
We need not decide, however, whether the congressionaldesire for uniformity supports the Director's view andentitles everyone performing a task such as Caputo's tobenefits under the Act. It is clear, at a minimum, that whensomeone like Caputo performs such a task, he is to becovered. The Act focuses primarily on occupationslongshoreman, harbor worker, ship repairman, shipbuilder,shipbreaker. Both the text and the history demonstrate a
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desire to provide continuous coverage throughout theiremployment to these amphibious workers who, withoutthe 1972 Amendments, would be covered only for part oftheir activity. It seems clear, therefore, that when Congresssaid it wanted to cover "longshoremen," it had in mindpersons whose employment is such that they spend at leastsome of their time in indisputably longshoring operationsand who, without the 1972 Amendments, would becovered for only part of their activity.
That Caputo is such a person is readily apparent. As amember of a regular stevedoring gang, he participated oneither the pier or the ship in the stowage and unloading ofcargo. On the day of his injury he had been hired bypetitioner Northeast as a terminal laborer. In that capacity,he could have been assigned to any one of a number oftasks necessary to the transfer of cargo between land andmaritime transportation, including stuffing and strippingcontainers, loading and discharging lighters and barges,and loading and unloading trucks. App. 8. Not only did hehave no idea when he set out in the morning which ofthese tasks he might be assigned, but in fact hisassignment could have changed during the day. Thus, hadCaputo avoided injury and completed loading theconsignee's truck on the day of the accident, he then couldhave been assigned to unload a lighter. Id., at 24. Since itis clear that he would have been covered while unloadingsuch a vessel, to exclude him from the Act's coverage inthe morning but include him in the afternoon would be torevitalize the shifting and fortuitous coverage thatCongress intended to eliminate. Petitioners and the NASseek to avoid these results by proposing a so-called "pointof rest" theory. The term "point of rest" is claimed to be aterm of art in the industry that denotes the point where thestevedoring operation ends (or, in the case of loading,begins) and the terminal operation function begins (orends, in the case of loading). Brief for Petitioner in No.76-454, p. 9. See, n. 4, supra. Petitioners contend that the"maritime employment of longshoremen" includes only"the stevedoring activity of the longshore gang (and thosedirectly involved with the gang) which, in the case ofunloading, takes cargo out of the hold of the vessel, movesit away from the ship's side, and carries it to its point ofrest on the pier or in a terminal shed." Brief for Petitionerin No. 76-454, p. 9. Since Caputo and Blundo werehandling cargo that had already reached its first point ofrest, petitioners argue they are not to be covered.
This contention that Congress intended to use the point ofrest as the decisive factor in the "status" determination hasseveral fatal weaknesses. First, the term "point of rest"nowhere appears in the Act or in the legislative history. Itis difficult to understand why, if Congress intended to stopcoverage at this point, it never used the term. The absenceof a term that is claimed to be so well known in theindustry is both conspicuous and telling.
But it is not simply the term's unexplained absence thatundermines petitioners' theory. More fundamentally, thetheory is simply too restrictive, failing to accommodateeither the language or the intent of the 1972 Amendments.The operations petitioners would cover clearly are"longshoring operations" and are appropriately covered bythe Act. But petitioners fail to give effect to the obviousdesire to cover longshoremen whether or not theirparticular task at the moment of injury is clearly a"longshoring operation." The theory does not comportwith the Act's focus on occupations and its desire foruniformity. As the First Circuit noted: "The evil of the oldAct was that it bifurcated coverage for essentially the sameemployment. The point-of-rest approach would seem toresult in the same sort of bifurcation, since the sameemployee engaged in an activity beyond the point of restwould cease to be covered." Stockman v. John T. Clark &Son of Boston, Inc., 539 F.2d 264, 275 (1976). In addition,the theory fails to accommodate the intent to cover thoselongshoring operations that modern technology had movedonto the land. Coverage that stops at the point of restexcludes those engaged in loading and unloading themodern functional equivalents of the hold of the ship. Aswe have indicated, Congress clearly intended to coversuch operations.
The only support petitioners can find for their theory is thefact that it is consistent with the "typical example" givenin the Committee Reports. See n. 27, supra. But as wehave already indicated, supra, at 2358- 2359, the exampleis equally consistent with a broader view of coverage.Consistency with an illustrative example is clearly notenough to overcome the overwhelming evidence againstthe theory.
In view of all this, it is not surprising that the "point ofrest" limitation has been rejected by all but one of theCircuits that have considered it and by virtually all thecommentators. We too reject it. A theory that nowhereappears in the Act, that was never mentioned by Congressduring the legislative process, that does not comport withCongress' intent, and that restricts the coverage of aremedial Act designed to extend coverage is incapable ofdefeating our conclusion that Blundo and Caputo are"employees.
IV Having established that respondents Blundo and Caputosatisfied the "status" test for coverage under the Act, weconsider now whether their injuries occurred on a covered"situs" "the navigable waters of the United States(including any adjoining pier, wharf, dry dock, terminal,building way, marine railway, or other adjoining areacustomarily used by an employer in loading, unloading,repairing or building a vessel)."
There is no dispute with respect to Caputo. The truck he
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was helping to load was parked inside the terminal area.As petitioner Northeast correctly concedes, this situs"unquestionably met the requirements of s 3(a) of the Act,. . . because the terminal adjoins navigable waters of theUnited States and parts of the terminal are used in loadingand unloading ships." Brief for Petitioners in No. 76-444,p. 3 n. 1.
Blundo's injury was sustained while he was checking acontainer being stripped on a pier located within a facilityknown as the 21st Street Pier. The fenced-in facility waslocated on the water and ran between 19th and 21stStreets. It included two "finger-piers." The pier on the21st Street end was used to berth ships for purposes ofloading and unloading them. The one on the 19th Streetend was used only for stripping and stuffing containersand storage. See the Administrative Law Judge's decisionin Pet. for Cert. App. in No. 76-454, pp. 52a-53a. Blundowas working on this latter pier.
Petitioner ITO argues that Blundo was not on a coveredsitus because the 19th Street Pier was not "customarilyused by an employer for loading (or) unloading . . . avessel." The Court of Appeals labeled this argument"halfhearted" and dismissed it in a footnote. 544 F.2d, at51 n. 19. We agree that the argument does not meritextended discussion.
First, we agree with the court below that it is not at allclear that the phrase "customarily used" was intended tomodify more than the immediately preceding phrase "otherareas." We note that the sponsor of the bill in the House,Representative Daniels, described this section as"expand(ing) the coverage which was limited to the shipin the present law, to the piers, wharves, and terminals."118 Cong.Rec. 36381 (1972). There was little concernwith respect to how these facilities were used.
Second, even if we assume that the phrase should be readto modify the preceding terms, we agree with the BRB andthe Court of Appeals that Blundo satisfied the situs test inthe same way that Caputo did by working in an "adjoining. . . terminal . . . customarily used . . . in loading (and)unloading." The entire terminal facility adjoined the waterand one of its two finger-piers clearly was used for loadingand unloading vessels.
Accordingly, we conclude that when Congress sought toexpand the situs to avoid anomalies inherent in a systemthat drew lines at the water's edge, it intended to includean area such as the one at issue here. Accord, Stockman v.John T. Clark & Son of Boston, Inc., 539 F.2d, at 271-272;I. T. O. Corp. of Baltimore v. BRB, 529 F.2d 1080,1083-1084 (CA4 1975), modified en banc, 542 F.2d 903(1976).
Since we find that both Caputo and Blundo satisfied the
status and the situs tests, we affirm.
It is so ordered.
103 S.Ct. 634
DIRECTOR, OFFICE OFWORKERS' COMPENSATIONPROGRAMS, UNITED STATES
DEPARTMENT OF LABORv.
PERINI NORTH RIVER ASSOCIATESNo. 81-897
Argued Oct. 4, 1982Decided Jan. 11, 1983
Justice O’CONNOR delivered the opinion of the Court.Justice Rehnquist filed opinion concurring in thejudgment and Justice Stevens dissented and filedopinion; they are omitted..
In 1972, Congress amended the Longshoremen's andHarbor Workers' Compensation Act, 44 Stat. 1424, asamended, 86 Stat. 1251, 33 U.S.C. § 901, et seq.,(hereinafter LHWCA or Act). Before 1972, LHWCAcoverage extended only to injuries sustained on the actual"navigable waters of the United States (including any drydock)." 44 Stat. 1426. As part of its 1972 amendment ofthe Act, Congress expanded the "navigable waters" situsto include certain adjoining land areas, § 3(a), 33 U.S.C.§ 903(a) (1978). At the same time, Congress added astatus requirement that employees covered by the Actmust be "engaged in maritime employment" within themeaning of § 2(3) of the Act. We granted certiorari in thiscase to consider whether a marine construction worker,who was injured while performing his job upon actualnavigable waters, and who would have been covered bythe Act before 1972, is "engaged in maritimeemployment" and thus covered by the amended Act. Wehold that the worker is "engaged in maritime employment"for purposes of coverage under the amended LHWCA.Accordingly, we reverse the decision below.
IThe facts are not in dispute. Respondent Perini NorthRiver Associates ("Perini") contracted to build thefoundation of a sewage treatment plant that extendsapproximately 700 feet over the Hudson River between135th and 145th Streets in Manhattan. The projectrequired that Perini place large, hollow circular pipescalled caissons in the river, down to embedded rock, fillthe caissons with concrete, connect the caissons togetherabove the water with concrete beams, and place precastconcrete slabs on the beams. The caissons were deliveredby rail to the shore, where they were loaded onto supplybarges and towed across the river to await unloading and
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installation.
The injured worker, Raymond Churchill, was an employeeof Perini in charge of all work performed on a cargo bargeused to unload caissons and other materials from thesupply barges and to set caissons in position for insertioninto the embedded rock. Churchill was on the deck of thecargo barge giving directions to a crane operator engagedin unloading a caisson from a supply barge when a lineused to keep the caissons in position snapped and struckChurchill. He sustained injuries to his head, leg, andthumb.
Churchill filed a claim for compensation under theLHWCA. Perini denied that Churchill was covered bythe Act, and after a formal hearing pursuant to § 19 of theAct, 33 U.S.C. § 919, an Administrative Law Judgedetermined that Churchill was not "engaged in maritimeemployment" under § 2(3) of the Act because his joblacked "some relationship to navigation and commerce onthe navigable waters." Petn., at 31a. Churchill and theDirector, Office of Workers' Compensation Programs("Director") appealed to the Benefits Review Board,pursuant to § 21(b)(3) of the Act, 33 U.S.C. § 921(b)(3).The Board affirmed the Administrative Law Judge's denialof coverage, on the theory that marine constructionworkers involved in building facilities not ultimately usedin navigation or commerce upon navigable waters are notengaged in "maritime employment." Petn., at 13a. OneBoard Member dissented, arguing that "all injuriessustained in the course of employment by employees over'navigable waters' as that term was defined prior to the1972 Amendments, are covered under the [amended] Act." Petn., at 17a.
Churchill then sought review of the Board's decision in theSecond Circuit Court of Appeals, under § 21(c) of the Act,33 U.S.C. § 921(c). The Director participated asrespondent, and filed a brief in support of Churchill'sposition. The Second Circuit denied Churchill's petition,relying on its decision in Fusco v. Perini North RiverAssociates, 622 F.2d 1111 (1980), cert. denied, 449 U.S.1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981). According tothe Second Circuit, Churchill was not in "maritimeemployment" because his employment lacked a "'significant relationship to navigation or to commerce onnavigable waters.' " Churchill v. Perini North RiverAssociates, 652 F.2d 255, 256 n. 1 (CA2 1981). TheDirector now seeks review of the Second Circuit denial ofChurchill's petition. The Director agrees with the positiontaken by the dissenting member of the Benefits ReviewBoard: the LHWCA does not require that an employeeshow that his employment possesses a "significantrelationship to navigation or commerce," where, as here,the employee is injured while working upon the actualnavigable waters in the course of his employment, andwould have been covered under the pre-1972 LHWCA.
IIBefore we consider whether Churchill is covered by theAct, we must address Perini's threshold contention that theDirector does not have standing to seek review of thedecision below. According to Perini, the Director's onlyinterest in this case is in furthering a differentinterpretation of the Act than the one rendered by theAdministrative Law Judge, the Benefits Review Board,and the Court of Appeals.
Perini's claim ignores the procedural posture in which thiscase comes before the Court. That posture makes itunnecessary for us to consider whether the Director, as theagency official "responsible for the administration andenforcement" of the Act, has standing as an aggrievedparty to seek review of the decision below. The Directoris not alone in arguing that Churchill is covered under theLHWCA. Churchill, the injured employee, is before theCourt as well. He has filed a brief in support of theDirector's request for a writ of certiorari, and a briefaddressing the merits of his claim, in which he presents thesame arguments presented by the Director. But, for somereason that is not entirely clear, Churchill has not electedto seek review as a petitioner, and by virtue of the rules ofthis Court, he is considered a party respondent. It is in thisprocedural context that Perini's challenge to Article IIIstanding must be considered. Perini concedes that theDirector was a proper party respondent before the Court ofAppeals in this litigation. As party respondent below, theDirector is entitled under 28 U.S.C. § 1254(1) to petitionfor a writ of certiorari. Although the Director hasstatutory authority to seek review in this Court, he may nothave Article III standing to argue the merits of Churchill'sclaim because the Director's presence does not guaranteethe existence of a justiciable controversy with respect tothe merits of Churchill's coverage under LHWCA.However, the Director's petition makes Churchill anautomatic respondent under our Rule 19.6, and in thatcapacity, Churchill "may seek reversal of the judgment ofthe Court of Appeals on any ground urged in that court."O'Bannon v. Town Court Nursing Center, 447 U.S. 773,783-84 n. 14, 100 S.Ct. 2467, 2474-2475 n. 14, 65 L.Ed.2d506 (1980). The director's petition, filed under 28 U.S.C.§ 1254(1), brings Churchill before this Court, and there isno doubt that Churchill, as the injured employee, has asufficient interest in this question to give him standing tourge our consideration of the merits of the Second Circuitdecision.
The constitutional dimension of standing theory requires,at the very least, that there be an "actual injury redressableby the court." Simon v. Eastern Kentucky Welfare RightsOrg., 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d450 (1976). This requirement is meant "to assure that thelegal questions presented to the court will be resolved, notin the rarified atmosphere of a debating society, but in aconcrete factual context conducive to a realistic
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appreciation of the consequences of judicial action," aswell as to assure "an actual factual setting in which thelitigant asserts a claim of injury in fact." Valley ForgeChristian College v. Americans United for Separation ofChurch and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758,70 L.Ed.2d 700 (1982).The presence of Churchill as aparty respondent arguing for his coverage under the Actassures that an admittedly justiciable controversy is nowbefore the Court.
IIIThe question of Churchill's coverage is an issue ofstatutory construction and legislative intent. For reasonsthat we explain below, there is no doubt that Churchill, asa marine construction worker injured upon actualnavigable waters in the course of his employment uponthose waters, would have been covered by LHWCA beforeCongress amended it in 1972. In deciding whetherCongress intended to restrict the scope of coverage byadding the § 2(3) status requirement, we must consider thescope of coverage under the pre-1972 Act and our casesconstruing the relevant portions of that Act. We must thenfocus on the legislative history and purposes of the 1972amendments to the LHWCA to determine their effect onpre-existing coverage.
ABeginning with our decision in Southern Pacific Co. v.Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917),we held that there were certain circumstances in whichstates could not, consistently with Article III, Section 2 ofthe Constitution, provide compensation to injuredmaritime workers. If the employment of an injured workerwas determined to have no "direct relation" to navigationor commerce, and "the operation of local law [would not]materially affect" the uniformity of maritime law, then theemployment would be characterized as "maritime butlocal," and the state could provide a compensation remedy.Grant Smith-Porter v. Rohde, 257 U.S. 469, 477, 42 S.Ct.157, 158, 66 L.Ed. 321 (1922). See also Western FuelCo. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66L.Ed. 210 (1921). If the employment could not becharacterized as "maritime but local," then the injuredemployee would be left without a compensation remedy.
After several unsuccessful attempts to permit statecompensation remedies to apply to injured maritimeworkers whose employment was not local, Congresspassed the LHWCA in 1927, 44 Stat. 1424. Under theoriginal statutory scheme, a worker had to satisfy fiveprimary conditions in order to be covered under the Act. First, the worker had to satisfy the "negative" definitionof "employee" contained in § 2(3) of the 1927 Act in thathe could not be a "master or member of a crew of anyvessel, nor any person engaged by the master to load orunload or repair any small vessel under eighteen tons net." 44 Stat. 1424. Second, the worker had to suffer an
"injury" defined by § 2(2) as "accidental injury or deatharising out of and in the course of employment ...." 44Stat. 1424. Third, the worker had to be employed by astatutory "employer," defined by § 2(4) as "an employerany of whose employees are employed in maritimeemployment, in whole or in part, upon the navigablewaters of the United States (including any dry dock)." 44Stat. 1424. Fourth, the worker had to meet a "situs"requirement contained in § 3(a) of the Act that limitedcoverage to workers whose "disability or death resultsfrom an injury occurring upon the navigable waters of theUnited States (including any dry dock)." 44 Stat. 1426.Fifth, § 3(a) precluded federal compensation unless"recovery for the disability or death through workmen'scompensation proceedings may not validly be provided byState law." 44 Stat. 1426.
Federal compensation under the LHWCA did not initiallyextend to all maritime employees injured on the navigablewaters in the course of their employment. As mentioned,§ 3(a) of the 1927 Act permitted federal compensationonly if compensation "may not validly be provided byState law." 44 Stat. 1426. This language was interpretedto exclude from LHWCA coverage those employeeswhose employment was "maritime but local." See, e.g.,Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed.598 (1932). Application of the "maritime but local"doctrine required case-by-case determinations, and aworker was often required to make a perilous jurisdictional"guess" as to which of two mutually exclusivecompensation schemes was applicable to cover his injury. Employers faced uncertainty as to whether theircontributions to a state insurance fund would be sufficientto protect them from liability.
In Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct.225, 87 L.Ed. 246 (1942), this Court recognized thatdespite its many cases involving the "maritime but local"doctrine, it had "been unable to give any guiding, definiterule to determine the extent of state power in advance oflitigation ...." Id., at 253, 63 S.Ct., at 227. Employeesand employers alike were thrust on "[t]he horns of ajurisdictional dilemma." Id., at 255, 63 S.Ct., at 228.Davis involved an employee who was injured whiledismantling a bridge from a standing position on a barge.We upheld the application of the state compensation lawin Davis not because the employee was engaged in"maritime but local" employment, but because we viewedthe case as in a "twilight zone" of concurrent jurisdictionwhere LHWCA coverage was available and where theapplicability of state law was difficult to determine. Weheld that doubt concerning the applicability of statecompensation acts was to be resolved in favor of theconstitutionality of the state remedy. Relying in part onDavis, the Court in Calbeck v. Travelers Insurance Co.,370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962),created further overlap between federal and state coverage
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for injured maritime workers. In Calbeck, we held thatthe LHWCA was "designed to ensure that a compensationremedy existed for all injuries sustained by employees [ofstatutory employers] on navigable waters, and to avoiduncertainty as to the source, state or federal, of thatremedy." Id., at 124, 82 S.Ct., at 1202. Our examination inCalbeck of the "complete legislative history" of the 1927LHWCA revealed that Congress did not intend toincorporate the "maritime but local" doctrine in the Act. Id., at 120, 82 S.Ct., at 1200. "Congress used the phrase'if recovery ... may not validly be provided by State law' ina sense consistent with the delineation of coverage asreaching injuries occurring on navigable waters." Id., at126, 82 S.Ct., at 1203.
Before 1972, there was little litigation concerning whetheran employee was "in maritime employment" for purposesof being the employee of a statutory employer: "Workerswho are not seamen but who nevertheless suffer injury onnavigable waters are no doubt (or so the courts have beenwilling to assume) engaged in 'maritime employment.' " G.Gilmore & C. Black, The Law of Admiralty 428 (2d ed.1975). One case in which we did discuss the maritimeemployment requirement was Parker v. Motor Boat Sales,Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941). InParker, the injured worker, hired as a janitor, wasdrowned while riding in one of his employer's motor boatskeeping lookout for hidden objects under the water. Whenthe employee's beneficiary sought LHWCA compensation,the employer argued that the employment was " 'so localin character' " that the State could validly have provided aremedy, and the § 3(a) language ("if recovery ... may notvalidly be provided by State law") precluded federal relief. Id., at 246, 62 S.Ct., at 223. A unanimous Court rejectedthe employer's argument, and held that the employee wasengaged in maritime employment and that LHWCAcoverage extended to an employee injured on thenavigable waters in the course of his employment, withoutany further inquiry whether the injured worker'semployment had a direct relation to navigation orcommerce. In abolishing the "jurisdictional dilemma"created by the "maritime but local" doctrine, Calbeckrelied heavily on Parker, see 370 U.S., at 127-128, 82S.Ct., at 1203-1204.
It becomes clear from this discussion that the 1927 Act, asinterpreted by Parker, Davis, and Calbeck, providedcoverage to those employees of statutory "employers,"injured while working upon navigable waters in the courseof their employment. Indeed, the consistent interpretationgiven to LHWCA before 1972 by the Director, the deputycommissioners, the courts, and the commentators was that(except for those workers specifically excepted in thestatute), any worker injured upon navigable waters in thecourse of employment was "covered ... without anyinquiry into what he was doing (or supposed to be doing)at the time of his injury." G. Gilmore & C. Black, supra,
at 429-430. As a marine construction worker required towork upon navigable waters, and injured while performinghis duties on navigable waters, there can be no doubt thatChurchill would have been covered under the 1927LHWCA.
BIn its "first significant effort to reform the 1927 Act andthe judicial gloss that had been attached to it," Congressamended the LHWCA in 1972. 44 Stat. 1424, asamended, 86 Stat. 1251, 33 U.S.C. § 901 et seq. Northeast Marine Terminal Co., supra, 432 U.S. at 261,97 S.Ct., at 2356. The purposes of the 1972 amendmentswere to raise the amount of compensation available underthe LHWCA, to extend coverage of the Act to includecertain contiguous land areas, to eliminate thelongshoremen's strict-liability seaworthiness remedyagainst shipowners, to eliminate shipowner's claims forindemnification from stevedores, and to promulgatecertain administrative reforms. See S.Rep. No. 92-1125,at 1 (1972) (hereinafter S.Rep.); H.Rep. No. 92-1441(1972) (hereinafter H.Rep.), U.S.Code Cong. &Admin.News 1972, p. 4698.
For purposes of the present inquiry, the important changeseffected by the 1972 amendments concerned the definitionof "employee" in § 2(3), 33 U.S.C. § 902(3), and thedescription of coverage in § 3(a), 33 U.S.C. § 903(a). These amended sections provide:
"The term 'employee' means any person engagedin maritime employment, including anylongshoreman or other person engaged inlongshoring operations, and any harborworkerincluding a ship repairman, shipbuilder, andshipbreaker, but such term does not include amaster or member of a crew of any vessel, or anyperson engaged by the master to load or unloador repair any small vessel under eighteen tonsnet." Section 2(3), 33 U.S.C. § 902(3).
"Compensation shall be payable under thischapter in respect of disability or death of anemployee, but only if the disability or deathresults from an injury occurring upon thenavigable waters of the United States (includingany adjoining pier, wharf, dry dock, terminal,building way, marine railway, or other adjoiningarea customarily used by an employer in loading,unloading, repairing, or building a vessel)...." Section 3(a), 33 U.S.C. § 903(a).
"The 1972 Amendments thus changed what hadbeen essentially only a 'situs' test of eligibility forcompensation to one looking to both the 'situs' ofthe injury and the 'status' of the injured." Northeast Marine Terminal Co., supra, 432 U.S.
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at 264-265, 97 S.Ct., at 2357-2358. Inexpanding the covered situs in § 3(a), Congressalso removed the requirement, present in § 3(a)of the 1927 Act, that federal compensation wouldbe available only if recovery "may not validly beprovided by State law." The definition of "injury"remained the same, and the definition of"employer" was changed to reflect the newdefinition of "employee" in § 2(3).
"Injury" is defined in § 2(2), 33 U.S.C. § 902(2), as"accidental injury or death arising out of and in the courseof employment, and such occupational disease or infectionas arises naturally out of such employment or as naturallyor unavoidably results from such accidental injury, andincludes an injury caused by the willful act of a thirdperson directed against an employee because of hisemployment."
The Director and Churchill claim that when Congressadded the status requirement in § 3(a), providing that acovered employee must be "engaged in maritimeemployment," it intended to restrict or define the scope ofthe increased coverage provided by the expanded situsprovision in § 3(a), but that Congress had no intention toexclude from coverage workers, like Churchill, who wereinjured upon actual navigable waters, i.e., navigablewaters as previously defined, in the course of theiremployment upon those waters.
According to Perini, Congress intended to overrulelegislatively this Court's decision in Calbeck, and thestatus requirement was added to ensure that both thelandward coverage and seaward coverage would dependon the nature of the employee's duties at the time he wasinjured. Perini's theory, adopted by the court below, isthat all coverage under the amended LHWCA requiresemployment having a "significant relationship tonavigation or commerce on navigable waters." Periniargues further that Churchill cannot meet the status testbecause he was injured while working on the constructionof a foundation for a sewage treatment plant--an activitynot typically associated with navigation or commerce onnavigable waters.
We agree with the Director and Churchill. We are unableto find any congressional intent to withdraw coverage ofthe LHWCA from those workers injured on navigablewaters in the course of their employment, and who wouldhave been covered by the Act before 1972. As we havelong held, "This Act must be liberally construed inconformance with its purpose, and in a way which avoidsharsh and incongruous results." Voris v. Eikel, 346 U.S.328, 333, 74 S.Ct. 88, 91, 98 L.Ed. 5 (1953). See alsoBaltimore & Philadelphia Steamboat Co. v. Norton, 284U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed.2d 366 (1932); Northeast Marine Terminal Co., supra, 432 U.S. at 268,
97 S.Ct., at 2359.
It is necessary to consider the context in which the 1972amendments were passed, especially as that context relatesdirectly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of theLHWCA to all employees injured upon navigable watersin the course of their employment, LHWCA coverage stillstopped at the water's edge--a line of demarcationestablished by Jensen. In Nacirema Operating Co. v.Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371(1969), we held that the LHWCA did not extend tolongshoremen whose injuries occurred on the pier attachedto the land. We recognized that there was much to be saidfor the uniform treatment of longshoremen irrespective ofwhether they were performing their duties upon thenavigable waters (in which case they would be coveredunder Calbeck ), or whether they were performing thosesame duties on a pier. We concluded, however, thatalthough Congress could exercise its authority to coverland-based maritime activity, "[t]he invitation to move that[Jensen ] line landward must be addressed to Congress,not to this Court." Id., at 224, 90 S.Ct., at 354. SeeVictory Carriers, Inc. v. Law, 404 U.S. 202, 216, 92 S.Ct.418, 427, 30 L.Ed.2d 383 (1971).
"Congress responded with the Longshoremen's and HarborWorkers' Compensation Act Amendments of 1972 (1972Act)." P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 73, 100S.Ct. 328, 332, 62 L.Ed.2d 225 (1979). The 1972amendments were enacted after committees in both theHouse and Senate prepared full reports that summarizedthe general purposes of the legislation and contained ananalysis of the changes proposed for each section. SeeS.Rep., supra; H.Rep., supra. These legislative reportsindicate clearly that Congress intended to "extendcoverage to protect additional workers." S.Rep., at 1(emphasis added). Although the legislative historysurrounding the addition of the status requirement is not asclear as that concerning the reasons for the extended situs,it is clear that "with the definition of 'navigable waters'expanded by the 1972 Amendments to include such a largegeographical area, it became necessary to describeaffirmatively the class of workers Congress desired tocompensate." Northeast Marine Terminal Co., supra, 432U.S., at 264, 97 S.Ct., at 2357. This necessity gave rise tothe status requirement: "The Committee does not intendto cover employees who are not engaged in loading,unloading, repairing, or building a vessel, just becausethey are injured in an area adjoining navigable waters usedfor such activity." S.Rep., at 13; H.Rep., at 11, U.S.CodeCong. & Admin.News 1972, p. 4708. This commentindicates that Congress intended the status requirement todefine the scope of the extended landward coverage.
There is nothing in these comments, or anywhere else inthe legislative reports, to suggest, as Perini claims, that
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Congress intended the status language to require that anemployee injured upon the navigable waters in the courseof his employment had to show that his employmentpossessed a direct (or substantial) relation to navigation orcommerce in order to be covered. Congress wasconcerned with injuries on land, and assumed that injuriesoccurring on the actual navigable waters were covered,and would remain covered. In discussing the added statusrequirement, the Senate report states explicitly that the"maritime employment" requirement in section 3(a) wasnot meant "to exclude other employees traditionallycovered." S.Rep., at 16. We may presume "that our electedrepresentatives, like other citizens, know the law," Cannonv. University of Chicago, 441 U.S. 677, 696-697, 99 S.Ct.1946, 1957-1958, 60 L.Ed.2d 560 (1979), and that theiruse of "employees traditionally covered" was intended torefer to those employees included in the scope of coverageunder Parker, Davis, and Calbeck.
Other aspects of the statutory scheme support ourunderstanding of the "maritime employment" statusrequirement. Congress removed from § 3(a) therequirement that, as a prerequisite to federal coverage,there can be no valid recovery under state law. As wenoted in our discussion in section A, supra, the continueduse of the "maritime but local" doctrine occurred afterpassage of the 1927 Act because the original coveragesection contained this requirement that Congress explicitlydeleted in 1972. Surely, if Congress wished to repealCalbeck and other cases legislatively, it would do so byclear language and not by removing from the statute theexact phrase that Calbeck found was responsible forcontinued emphasis on the "maritime but local" doctrine.
Congressional intent to adhere to Calbeck is also indicatedby the fact that the legislative reports clearly identifiedthose decisions that Congress wished to overrule by the1972 amendments. As mentioned above, the 1972amendments had other purposes apart from an expansionof coverage to shoreside areas. Two other purposesinvolved the elimination of a strict liabilityunseaworthiness remedy against a vessel owner affordedto longshoremen by Seas Shipping Co. v. Sieracki, 328U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and anindemnity claim against the stevedore by the vessel ownerafforded by Ryan Stevedoring Co. v. Pan-AtlanticSteamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed.133 (1956). The legislative reports explicitly identifiedthese decisions as intended to be overruled legislatively bythe 1972 amendments. See S.Rep., at 8-12; H.Rep., at4-8. It is, therefore, highly unlikely that Congress wouldhave intended to return to the "jurisdictional monstrosity"that Calbeck sought to lay to rest without at least someindication of its intent to do so.
In considering the scope of the status test as applied toland-based employees in Northeast Marine Terminal Co.,
we rejected the "point of rest" theory proposed by theemployer, under which landward coverage under the 1972amendments would include only the portion of theunloading process that takes place before longshoremenplace the cargo onto the dock. We reasoned that the "pointof rest" concept is "[a] theory that nowhere appears in theAct, that was never mentioned by Congress during thelegislative process, that does not comport with Congress'intent, and that restricts coverage of a remedial Actdesigned to extend coverage ...." The absence of theconcept, "claimed to be so well known in the industry isboth conspicuous and telling." 432 U.S., at 278-279, 275,97 S.Ct., at 2365, 2363. In the same sense, the absence ofeven the slightest congressional allusion to the "maritimebut local" doctrine, a concept that plagued maritimecompensation law for over forty years and that would havethe effect of restricting coverage in the face ofcongressional intent not to "exclude other employeestraditionally covered," is equally conspicuous and telling.
Finally, we note that our conclusion concerning thecontinued coverage of employees injured on actualnavigable waters in the course of their employment isconsistent with, and supported by, our recent decision inSun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct.2432, 65 L.Ed.2d 458 (1980). In Sun Ship, the issue beforethe Court was whether extended shoreside coverage underthe 1972 amendments had the effect of displacingconcurrent state remedies for landward injuries. After areview of the development of the "maritime but local"doctrine, and review of certain portions of the legislativehistory of the 1972 amendments, we conclude that thoseamendments were not intended to resurrect the dilemma,created by mutually exclusive spheres of jurisdiction, thatCalbeck and Davis eliminated. Our reasoning was based,in part, on the removal by Congress of the language in the1927 Act that made federal compensation available ifrecovery could not validly be provided by state law:"[T]he deletion of that language in 1972--if it indicatesanything--may logically only imply acquiescence inCalbeck [ ]...." Id., at 721, 100 S.Ct., at 2436.
Sun Ship held that with respect to land-based injuries, "theextension of federal jurisdiction supplements, rather thansupplants, state compensation law." Id., at 720, 100 S.Ct.,at 2436. If we were to hold that the addition of the statusrequirement was meant to exclude from coverage someemployees injured on the actual navigable waters in thecourse of their employment, a most peculiar result wouldfollow. Concurrent jurisdiction will exist with respect tothe class of employees to whom Congress extendedprotection in 1972, while employees "traditionallycovered" before 1972 would be faced with a hazardouspre-Davis choice of two exclusive jurisdictions fromwhich to seek compensation. Such an anomalous resultcould not have been intended by Congress. We also notethat a return to exclusive spheres of jurisdiction for
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workers injured upon the actual navigable waters would beinconsistent with express congressional desire to extendLHWCA jurisdiction landward in light of the inadequacyof most state compensation systems. See S.Rep., at 12; H.Rep., at 10.
In holding that we can find no congressional intent toaffect adversely the pre-1972 coverage afforded toworkers injured upon the actual navigable waters in thecourse of their employment, we emphasize that we in noway hold that Congress meant for such employees toreceive LHWCA coverage merely by meeting the situstest, and without any regard to the "maritime employment"language. We hold only that when a worker is injured onthe actual navigable waters in the course of hisemployment on those waters, he satisfies the statusrequirement in § 2(3), and is covered under the LHWCA,providing, of course, that he is the employee of a statutory"employer," and is not excluded by any other provision ofthe Act. We consider these employees to be "engaged inmaritime employment" not simply because they areinjured in a historically maritime locale, but because theyare required to perform their employment duties uponnavigable waters.
IVIn conclusion, we are unable to find anything in thelegislative history or in the 1972 amendments themselvesthat indicate that Congress intended to withdraw coveragefrom employees injured on the navigable waters in thecourse of their employment as that coverage existed beforethe 1972 amendments. On the contrary, the legislativehistory indicates that Congress did not intend to "excludeother employees traditionally covered." Moreover,Congress explicitly deleted the language from § 3(a) thatwe found in Calbeck to be responsible for the"jurisdictional dilemma" caused by two mutually exclusivespheres of jurisdiction over maritime injuries. Accordingly, the decision of the Court of Appeals ishereby reversed, and the case is remanded to the Court ofAppeals for further proceedings consistent with thisopinion.
It is so ordered.
Note
In Bienvenu v. Texaco, Inc., 165 F.3d 901 (5 Cir. 1999), the Fifth Circuit held that a workerth
injured in the course and scope of his employment who is only “transiently and fortuitously” onnavigable waters is NOT a maritime worker. However, on the facts of the case, the court held that theplaintiff was covered under the LHWCA because he performed a “not insubstantial” amount of his dutieson navigable waters.
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B. Tort Remedies Under LHWCA Against Vessel Owner
33 USC § 905§ 905. Exclusiveness of liability
* * *(b) Negligence of vessel. In the event of injury to a person covered under this Act caused by the negligence of avessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an actionagainst such vessel as a third party in accordance with the provisions of section 33 of this Act [33 USC § 933], andthe employer shall not be liable to the vessel for such damages directly or indirectly and any agreements orwarranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services,no such action shall be permitted if the injury was caused by the negligence of persons engaged in providingstevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breakingservices and such person's employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel,no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person's employer(in any capacity, including as the vessel's owner, owner pro hac vice, agent, operator, or charterer) or against theemployees of the employer. The liability of the vessel under this subsection shall not be based upon the warrantyof seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shallbe exclusive of all other remedies against the vessel except remedies available under this Act.
* * *
66 S.Ct. 872
SEAS SHIPPING CO., Inc.,v.
SIERACKINo. 365
Argued Jan. 3, 1946Decided April 22, 1946
Mr. Justice RUTLEDGE delivered the opinion of theCourt. Mr. Chief Justice STONE, Mr. JusticeFRANKFURTER, and Mr. Justice BURTON,dissenting, which is omitted.
The principal question is whether the obligation ofseaworthiness, traditionally owed by an owner of a ship toseamen, extends to a stevedore injured while workingaboard the ship.
Sieracki was employed by an independent stevedoringcompany which was under contract to petitioner to load itsship, the S. S. Robin Sherwood. On December 23, 1942,he was on the vessel loading cargo. The which heoperated was controlled by a ten-ton boom at number fivehatch. One part of a freight car had been lowered into thehold. The second part weighed about eight tons. While itwas being put down the shackle supporting the boombroke at its crown, causing the boom and tackle to fall andinjure respondent.
He sued petitioner and two other companies. These werethe Bethlehem Steel Company, to which the MaritimeCommission had awarded the contract for constructing theship, and Bethlehem Sparrow's Point, Inc., which had builtpart of the ship under agreement with the steel company. The District Court found that the shackle had broken as theresult of a defect which had occurred in its forging. TheBethlehem companies had purchased this equipment fromanother concern. Nevertheless the court held they werenegligent in not having tested it adequately beforeinstalling it. But the court considered petitioner to be underno such obligation to test and therefore not negligent.Accordingly, it gave judgment against the two Bethlehemcompanies but in favor of petitioner. 57 F.Supp. 724.
The Circuit Court of Appeals reversed as to petitioner. 149F.2d 98, 102. Accepting the District Court's conclusionthat it was not negligent, the Court of Appeals was of theopinion that respondent should recover for the ship's lackof seaworthiness. The opinion emphasized that thedecision was novel, noting 'statements and assumptionseach way.' Because of the novelty and importance of thequestion we granted certiorari. 326 U.S. 700, 66 S.Ct. 58.
The finding that the ship was unseaworthy is not disputed.Petitioner says, first, that the doctrine of unseaworthinessis peculiar to admiralty and cannot be applied in a suitbrought on the law side of the court. It also urges that inany event the liability may not be extended properly to thebenefit of stevedores and longshoremen. And finally
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petitioner argues that if the doctrine is properly soapplicable, its liability is only secondary to that of theBethlehem companies which both courts found to benegligent; and therefore petitioner, the nonnegligentdefendant, should not be held 'jointly' liable with thenegligent ones.
At the outset we may dismiss the first contention. It isnow well settled that a right peculiar to the law ofadmiralty may be enforced either by a suit in admiralty orby one on the law side of the court. Carlisle Packing Co.v. Sandager, 259 U.S. 255, 259, 42 S.Ct. 475, 476, 66L.Ed. 927; Garrett v. Moore-McCormack Co., 317 U.S.239, 243, 244, 63 S.Ct. 246, 249, 250, 87 L.Ed. 239;Rhones v. Socony-Vacuum Oil Co., 37 F.Supp. 616.
Equally unavailable is the contention concerning thesecondary character of petitioner's liability. That liability,if it exists, not only sounds in tort, but rests upon anentirely different basis from that upon which recovery hasbeen had against the Bethlehem companies. Such aliability therefore would be not joint but several and thejudgment of the Court of Appeals obviously went on thisview. Moreover the contention necessarily affects theBethlehem companies, at any rate in relation to possibleclaim of indemnity by petitioner. They have not beennamed as respondents here or served in accordance withRule 38(3), 28 U.S.C.A. following section 354. Consequently we are precluded from making anydetermination concerning their rights or liabilities, withrelation either to petitioner or to respondent.
The nub of real controversy lies in the question whetherthe shipowner's obligation of seaworthiness extends tolongshoremen injured while doing the ship's work aboardbut employed by an independent stevedoring contractorwhom the owner has hired to load or unload the ship.
There could be no question of petitioner's liability forrespondent's injuries, incurred as they were here, if he hadbeen in petitioner's employ rather than hired by thestevedoring company. That an owner is liable toindemnify a seaman for an injury caused by theunseaworthiness of the vessel or its appurtenant appliancesand equipment has been settled law in this country eversince The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed.760. Mahnich v. Southern S.S. Co., 321 U.S. 96, 99, 64S.Ct. 455, 457, 88 L.Ed. 561, and authorities cited. Andthe liability applies as well when the ship is moored at adock as when it is at sea. See, e.g., The Edith Godden,D.C., 23 F. 43; Johnson & Co. v. Johansen, 5 Cir., 86 F.886; The Waco, D.C., 3 F.2d 476.
Petitioner insists, however, that the obligation flows from,and is circumscribed by the existence of, the contractbetween the owner of the vessel and the seaman. Accordingly, since there was no such contract here, it says
respondent cannot recover. Respondent is equallyinsistent that the owner cannot slough off liability to thosewho do the vessel's work by bringing an intermediarycontracting employer between himself and those workers. In respondent's view the liability is an incident of themaritime service rendered, not merely of the immediatecontractual relation of employment, and has its roots in therisks that service places upon maritime workers and in thepolicy of the law to secure them indemnity against suchhazards.
Obviously the norm of the liability has been historicallyand still is the case of the seaman under contract with thevessel's owner. This is because the work of maritimeservice has been done largely by such persons. But it doesnot follow necessarily from this fact that the liability eitherarose exclusively from the existence of a contractualrelation or is confined to situations in which one exists.
The origins are perhaps unascertainable. But that fact initself may be some evidence that contract alone is neitherthe sole source of the liability nor its ultimate boundary.For to assume this would be at once to project ideas ofcontract backward into centuries governed more largelythan our own by notions of status, and to exclude from theprotection all who do the work of the sea without benefitof contract with the owner. It may be doubted, forexample, that he has ever been able to escape liability toimpressed seamen, in whose cases to speak of 'contract'would only rationalize a responsibility imposed regardlessof consensual relationship. And it would hardly seemconsistent with the obligation's benevolent purposes thatthe owner might nullify it by the device of having all whoman the ship hired by others willing to furnish men forsuch service at sea or ashore.
It is true that the liability for unseaworthiness is often saidto be an incident of the seaman's contract. But in allinstances which have come to our attention this has beenin situations where such a contract existed. Necessarily insuch a setting the statement could have no reference to anyissue over liability in the absence of such a contractualrelation. Its function rather has been to refute othersuggested restrictions which might be held to apply on thefacts. Most often perhaps these have been limitationsarising from the erroneous idea that the liability is foundedin negligence and therefore may be defeated by thecommon-law defenses of contributory negligence,assumption of risk and the fellow servant rule. Mahnichv. Southern S.S. Co., supra; cf. Carlisle Packing Co. v.Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927..
Because rationalizing the liability as one attached by lawto the relation of shipowner and seaman, where this resultsfrom contract, may have been thought useful to negativethe importation of those common-law tort limitations doesnot mean, however, that the liability is itself contractual or
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that it may not extend to situations where the ship's workis done by others not in such an immediate relation ofemployment to the owner. That the liability may not beeither so founded or so limited would seem indicated bythe stress the cases uniformly place upon its relation, bothin character and in scope, to the hazards of marine servicewhich unseaworthiness places on the men who perform it. These, together with their helplessness to ward off suchperils and the harshness of forcing them to shoulder alonethe resulting personal disability and loss, have beenthought to justify and to require putting their burden, in sofar as it is measurable in money, upon the Ownerregardless of his fault. Those risks are avoidable by theowner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, todistribute the loss in the shipping community whichreceives the service and should bear its cost.
These and other considerations arising from the hazardswhich maritime service places upon men who perform it,rather than any consensual basis of responsibility, havebeen the paramount influences dictating the shipowner'sliability for unseaworthiness as well as its absolutecharacter. It is essentially a species of liability withoutfault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards whichperforming the service imposes, the liability is neitherlimited by conceptions of negligence nor contractual incharacter. Mahnich v. Southern S.S. Co., supra; AtlanticTransport Co. of West Virginia v. Imbrovek, 234 U.S. 52,34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.,N.S., 1157;Carlisle Packing Co. v. Sandanger, supra. It is a form ofabsolute duty owing to all within the range of itshumanitarian policy.
On principle we agree with the Court of Appeals that thispolicy is not confined to seamen who perform the ship'sservice under immediate hire to the owner, but extends tothose who render it with his consent or by hisarrangement. All the considerations which gave birth tothe liability and have shaped its absolute character dictatethat the owner should not be free to nullify it by parcellingout his operations to intermediary employers whose solebusiness is to take over portions of the ship's work or byother devices which would strip the men performing itsservice of their historic protection. The risks themselvesarise from and are incident in fact to the service, notmerely to the contract pursuant to which it is done. Thebrunt of loss cast upon the worker and his dependents isthe same, and is as inevitable, whether his pay comesdirectly from the shipowner or only indirectly throughanother with whom he arranges to have it done. The latterordinarily has neither right nor opportunity to discover orremove the cause of the peril and it is doubtful, therefore,that he owes to his employees, with respect to thesehazards, the employer's ordinary duty to furnish a safeplace to work, unless perhaps in cases where the perils are
obvious or his own action creates them. If not, no suchobligation exists unless it rests upon the owner of the ship. Moreover, his ability to distribute the loss over theindustry is not lessened by the fact that the men who dothe work are employed and furnished by another. Historically the work of loading and unloading is the workof the ship's service, performed until recent times bymembers of the crew. Florez v. The Scotia, D.C., 35 F.916; The Gilbert Knapp, D.C., 37 F. 209, 210; TheSeguranca, D.C., 58 F. 908, 909. That the owner seeks tohave it done with the advantages of more modern divisionsof labor does not minimize the worker's hazard and shouldnot nullify his protection.
In Atlantic Transport Co. of West Virginia v. Imbrovek,234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.N.S.,1157, the stevedoring company was held liable to itsemployee for negligence in failing to furnish a safe placeto work. This consisted in its failure to secure properly abeam which supported hatch covers removed by it in theloading process. The libelant joined the shipowner withthe stevedoring contractor, both being represented by thesame proctors and advocates. The stevedoring companyacquitted the shipowner and the libel was dismissed as toit. The case, in view of these circumstances, is notauthority for the view that the stevedoring company isliable to the stevedore, under the employer's obligation tofurnish a safe working place, for the hazards securedagainst by the shipowner's obligation of seaworthiness. Itholds only that the stevedoring company is liable for itsown negligence.
It has frequently been said that a shipowner owes tostevedores the duty of providing a safe place to work, see,e.g., The Joseph B. Thomas, 9 Cir., 86 F. 658, 660; TheNo. 34, 2 Cir., 25 F.2d 602, 604, but cf. Willis v. LykeBros. S.S. Co., 5 Cir., 23 F.2d 488, 489, although the dutyhas at times been qualified by statements that it does notextend to latent defects that 'a reasonable inspection by theshipowner or his agents would not (disclose).' Wholey v.British & Foreign S.S. Co., D.C., 158 F. 379, 380,affirmed 2 Cir., 171 F. 399.
Every consideration, therefore, giving rise to the liabilityand shaping its character bespeaks inclusion of menintermediately employed to do this work, save only thatwhich is relevant to consent as a basis for responsibility. We do not think this is the ultimate basis of the liabilitywhere the seaman hired by the vessel does the work. It isonly the source of the relation which furnishes theoccasion for the liability, attached by law to performanceof the service, to come into play. Not the owner's consentto liability, but his consent to performance of the servicedefines its boundary. That this is given by contract withthe worker's employer rather than with the worker himselfdoes not defeat the responsibility.
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Accordingly we think the Court of Appeals correctly heldthat the liability arises as an incident, not merely of theseaman's contract, but of performing the ship's servicewith the owner's consent. For this view, in addition to thestated considerations of principle, the court rightly foundsupport in the trend and policy of this Court's decisions,especially in International Stevedoring Co. v. Haverty, 272U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157; Atlantic Transport Co.of West Virginia v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733,58 L.Ed. 1208, 51 L.R.A.N.S., 1157, and Uravic v. F.Jarka Co., 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312.
The Haverty case is of special importance. The Court ofAppeals said, with reference to its bearing and that of theImbrovek decision: 'And so an injury to a stevedore comeswithin the classification of a marine tort. AtlanticTransport Co. of West Virginia v. Imbrovek, 234 U.S. 52,34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.N.S., 1157. Itseems, therefore, that when a man is performing a functionessential to maritime service on board a ship the fortuitouscircumstances of his employment by the shipowner or astevedoring contractor should not determine the measureof his rights. This is the very basis on which the Jones Actwas held applicable to give redress to an injured stevedorein International Stevedoring Co. v. Haverty * * *.' 3 Cir.,149 F.2d 98, 101.
The conclusions are sound, notwithstanding the cases aredistinguishable in their specific rulings. From that fact itdoes not follow that either those rulings or the groundsupon which they went are irrelevant or without force forour problem. It is true that negligence was the basis ofrecovery in both cases and that in each the stevedoringcontractor was held responsible. But it was of the gist ofthe jurisdictional question present by the libel in Imbrovekthat stevedores injured while working aboard the ship,though not employed by its owner, are within thetraditional protections afforded to seamen by admiraltyand that 'the fortuitous circumstance' of their employmentby one other than the owner to do the ship's work not onlydid not remove them from those protections, but broughttheir employers within the protection of the liability tosupply them.
The same underlying considerations were controlling inthe Haverty decision, although the liability asserted aroseunder an Act of Congress and the Court cast its ruling interms of legislative intent. The only fulcrum for its actionwas the statute's undefined use of the term 'seamen' inconferring the right of recovery under the FederalEmployers' Liability Act, 45 U.S.C.A. s 51 et seq., for theemployer's negligence. 41 Stat. 988, 1007, 46 U.S.C.A. s688. Recognizing that for most purposes 'stevedores arenot 'seamen," and relying upon Imbrovek, the Court againstressed that 'the work upon which the plaintiff wasengaged was a maritime service formerly rendered by theship's crew,' and that the statute's policy was to afford
compensation for injuries 'as properly part of the cost ofthe business,' that is, of the maritime service rendered,rather than by the capricious circumstance of employment'by a stevedore rather than by the ship.' And the Uravicdecision rejected an equally capricious discriminationbased upon the nationality of the vessel's flag.
Running through all of these cases, therefore, to sustainthe stevedore's recovery is a common core of policy whichhas been controlling, although the specific issue has variedfrom a question of admiralty jurisdiction to one ofcoverage under statutory liability within the admiraltyfield. It is that for injuries incurred while working onboard the ship in navigable waters the stevedore is entitledto the seaman's traditional and statutory protections,regardless of the fact that he is employed immediately byanother than the owner. For these purposes he is, in short,a seaman because he is doing a seaman's work andincurring a seaman's hazards. Moreover, to make thepolicy effective, his employer is brought within theliability which is peculiar to the employment relation tothe extent that and because he also undertakes the serviceof the ship.
It would be anomalous if such a policy, effective to controlsuch issues, were less effective when the question issimply whether the stevedore is entitled to the traditionalsecurities afforded by the law of the sea to men who do theship's work. Nor does it follow from the fact that thestevedore gains protections against his employerappropriate to the employment relation as such, that heloses or never acquires against the shipowner theprotections, not peculiar to that relation, which the lawimposes as incidental to the performance of that service.Among these is the obligation of seaworthiness. It ispeculiarly and exclusively the obligation of the owner. Itis one he cannot delegate. By the same token it is one hecannot contract away as to any workman within the scopeof its policy. As we have said, he is at liberty to conducthis business by securing the advantages of specializationin labor and skill brought about by modern divisions oflabor. He is not at liberty by doing this to discard histraditional responsibilities. That the law permits him tosubstitute others for responsibilities peculiar to theemployment relation does not mean that he can thusescape the duty it imposes of more general scope. Toallow this would be, in substantial effect, to convert theancient liability for maritime tort into a purely contractualresponsibility. This we are not free to do.
it remains to consider one other argument, namely, that theHaverty decision has been overruled, in effect, by theenactment of the Longshoremen and Harbor Workers'Compensation Act of March 4, 1927, 44 Stat. 1424, 33U.S.C. s 901 et seq., 33 U.S.C.A. s 901 et seq., andtherefore the effect of that decision as furnishing anysupport for including longshoremen within the owner's
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obligation of seaworthiness has been nullified. Theargument is that by giving longshoremen the rights ofcompensation afforded by that Act against the employerand making them exclusive, Congress had withdrawn fromthem not only the protections gained by virtue of theMerchant Marine Act of 1920 under the Haverty decision,but also all other protections relating to personal injurywhich otherwise might be available to them under thegeneral maritime law. In other words, it is claimed thatthe remedies afforded by the Longshoremen's legislationare exclusive of all other remedies for injuries incurredaboard ship, whether against the employer or others.
This view cannot be accepted. Apart from the fact that theUravic decision was rendered by a unanimous Court somethree years after the Longshoremen's and Harbor Workers'Act was adopted, with a like result in Jamison v.Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082,the compelling answer is that Congress by that Act notonly did not purport to make the stevedore's remedy forcompensation against his employer exclusive of remediesagainst others. It expressly reserved to the stevedore aright of election to proceed against third personsresponsible for his injury and in case of his election toreceive compensation, it provided for assignment of hisrights against third persons to his employer, binding thelatter to remit to him any excess of the recovery over thecompensation, expenses of recovery, etc.
We may take it therefore that Congress intended theremedy of compensation to be exclusive as against theemployer. See Swanson v. Marra Brothers, Inc., No. 405,328 U.S. 1, 66 S.Ct. 869; 33 U.S.C. s 905, 33 U.S.C.A. s905. But we cannot assume, in face of the Act's explicitprovisions, that it intended this remedy to nullify or affectothers against third persons. Exactly the opposite is true. The legislation therefore did not nullify any right of thelongshoreman against the owner of the ship, exceptpossibly in the instance, presumably rare, where he may behired by the owner. The statute had no purpose or effectto alter the stevedore's rights as against any but hisemployer alone. Beyond that consequence, moreover, wethink it had none to alter either the basic policy or therationalization of the Haverty decision. Because therecovery under the Merchant Marine Act of 1920 waslimited to the employer, the necessary effect of theLongshoremen's and Harbor Workers' Act, likewise solimited, was to substitute its remedy for that providedunder the preexisting legislation and the Haverty decision'sconstruction of it. There was none to nullify the basic andgenerally applicable policy of that decision or to affect thevalidity of its foundations in other applications.
It may be added that, beyond the applicability of thoseconsiderations to sustain the stevedore's right of recoveryfor breach of the owner's obligation of seaworthiness, areothers to support the statutory policy of giving his
employer recovery over against the owner when the latter'sbreach of duty casts upon the employer the burden ofpaying compensation. These may furnish additionalreason for our conclusion. With them however we are notimmediately concerned.
The judgment is affirmed.
Affirmed.
101 S.Ct. 1614
SCINDIA STEAM NAVIGATION CO., LTD.v.
Lauro DE LOS SANTOSNo. 79-512
Argued Dec. 1, 1980Decided April 21, 1981
Justice WHITE delivered the opinion of the Court. JusticePowell, with whom Justice Rehnquist joined, filed aconcurring opinion; it is omitted. Justice Brennan, withwhom Justice Marshall and Justice Blackmun joined, fileda concurring opinion; it also is omitted.
Respondent Santos, a longshoreman and an employee ofrespondent Seattle Stevedore Co., was injured while hewas helping load the M/S Jalaratna, a vessel owned bypetitioner Scindia Steam Navigation Co., Ltd. He laterbrought an action against Scindia pursuant to § 5(b) of theLongshoremen's and Harbor Workers' Compensation Act(Act), as amended in 1972,which, as set forth in 33 U.S.C.§ 905(b), provides in relevant part as follows:
"In the event of injury to a person covered under thischapter caused by the negligence of a vessel, then suchperson, or anyone otherwise entitled to recover damagesby reason thereof, may bring an action against suchvessel as a third party in accordance with the provisionsof section 933 of this title, and the employer shall not beliable to the vessel for such damages directly orindirectly and any agreements or warranties to thecontrary shall be void.... The liability of the vessel underthis subsection shall not be based upon the warranty ofseaworthiness or a breach thereof at the time the injuryoccurred. The remedy provided in this subsection shallbe exclusive of all other remedies against the vesselexcept remedies available under this chapter."
The District Court granted petitioner's motion forsummary judgment; the Court of Appeals, disagreeingwith the District Court on both the facts and the law,
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reversed and remanded for further proceedings. 598 F.2d480 (CA9 1979). We granted certiorari, 446 U.S. 934,100 S.Ct. 2150, 64 L.Ed.2d 786, because the Courts ofAppeals are in considerable disagreement as to themeaning and application of § 905(b).
IFor present purposes, we take the facts from the opinion ofthe Court of Appeals, which properly viewed the case inthe light most favorable to Santos, against whom summaryjudgment had been granted.
On December 10, 1972, Seattle Stevedore Co., pursuant toits undertaking with Scindia, was engaged in loading acargo of wheat into a hold of the M/S Jalaratna. Awinch, part of the ship's gear, was being used to lowerwooden pallets, each containing seventy 50-pound sacksof wheat, into the hold. Because of the location of thewinch controls, the longshoreman operator relied on thehatch tender, another longshoreman , to signal him whento start and stop the winch while lowering a pallet of sacksinto the hold. Santos and three other longshoremen werein the hold. Their task was to remove sacks of wheat fromthe pallet and properly stow them.
On the day of the accident, as it had for the two previousdays, the braking mechanism of the winch wasmalfunctioning in that it would not quickly stop thedescent of a loaded pallet, which would continue to dropfor several feet before coming to a stop. At the timeimportant here, while a pallet was being lowered, the hatchtender signaled the winch operator to stop the descent ofthe load. The brake was applied, but the pallet did notstop before striking a pallet jack with some force andspilling about half the sacks of wheat from the pallet. Thehatch tender signaled the operator to raise the pallet about15 feet and, believing that the remaining sacks on thepallet were secure enough not to fall, permitted Santos andthe other men to clear away the spilled sacks then lyingbelow in the hold. Some minutes later, however, moresacks fell from the pallet, striking and injuring Santos. There was dispute as to whether the additional sacks fellbecause the suspended pallet was swinging back and forthor because while the pallet was suspended the brakingmechanism slipped on three or four occasions, each timerequiring the operator to raise it again, thus working loosethe additional sacks that fell on Santos.
Relying on the legislative history of the 1972 Amendmentsto the Act, the District Court held that the negligencestandards governing the longshoreman's action against ashipowner under § 905(b) are best expressed inRestatement (Second) of Torts §§ 343 and 343A (1965),which purport to state the prevailing or preferred rulesgoverning the liability of a possessor of land to an invitee.Under these land-based negligence standards, the DistrictCourt thought
"a shipowner is not liable for dangerous conditionscreated by the stevedore's negligence while thestevedore [is] in exclusive control over the manner andarea of the work ..., nor is the shipowner under a duty towarn the stevedore or his employees of dangers or openand obvious defects which are known to the stevedoreor his employees or which are so obvious and apparentthat they may reasonably be expected to discover them." 1976 A.M.C. 2583, 2585.
Based on the admissions of the parties and the depositionsavailable to the court, the District Court concluded (1) thatthere was no dispute that the premises were in theexclusive control of Seattle during the loading operationand that (2) even if Scindia knew or should have known ofthe defective winch, the condition of the winch "was openand obvious to the plaintiff" and "the fact that plaintiffundertook his actions free from any direction by thedefendant while recognizing that the circumstances wereso dangerous, is such that the defendant cannot be heldliable as a matter of law." Id., at 2586-2587. In addition,the District Court found that "the alleged defectivecondition of the winch had only a remote cause-in-factrelationship to plaintiff's accident and could not have beenthe proximate cause thereof as a matter of law." Id., at2587. Hence, summary judgment was granted.
Reversing, the Court of Appeals disagreed with theDistrict Court and with other Courts of Appeals withrespect to the applicable law. Sections 343 and 343A ofthe Restatement were improper measures of theshipowner's liability for negligence under § 905(b)because those sections in effect incorporated notions ofcontributory negligence and assumption of risk that wereinapplicable under the maritime law. Instead, the Courtof Appeals declared the controlling standard under §905(b) to be the following:
"A vessel is subject to liability for injuries tolongshoremen working on or near the vessel caused byconditions on the vessel if, but only if, the shipowner "(a) knows of, or by the exercise of reasonable carewould discover, the condition, and should realize that itinvolves an unreasonable risk of harm to suchlongshoremen, and "(b) the shipowner fails to exercise reasonable careunder the circumstances to protect the longshoremenagainst the danger." 598 F.2d, at 485.
Under this standard, Scindia's duty to inspect did not endeven if the vessel was turned over to the stevedore in safecondition. If conditions dangerous to the longshoremensubsequently developed, in light of the vessel's practicalopportunities to discover the dangers and remedy them,failure to do so could be negligence on its part.
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Under the Court of Appeals' view of the law there wereseveral material facts in dispute that were for a jury toresolve: whether the shipowner knew or should haveknown of the defective winch; whether Seattle was inexclusive control of the loading in the sense that onlySeattle could have repaired the winch; whether thedefective operation of the winch had caused the initialspillage of the sacks, thus necessitating a cleanup, or hadlater been the proximate cause of the additional sacksfalling from the pallet and injuring Santos. Accordingly,the Court of Appeals set aside the judgment of the DistrictCourt and remanded for further proceedings.
IIInitially, we must briefly revisit the 1972 Amendments tothe Act. Prior to 1972, a longshoreman injured whileloading or unloading a ship could receive compensationpayments and also have judgment against the shipownerif the injury was caused by the ship's unseaworthiness ornegligence. Seas Shipping Co. v. Sieracki, 328 U.S. 85,66 S.Ct. 872, 90 L.Ed. 1099 (1946). Proof ofunseaworthiness required no proof of fault on the part ofthe shipowner other than an unsafe, injury-causingcondition on the vessel. This was true even though thecondition was caused, created, or brought into play by thestevedore or its employees. In the latter event, theshipowner could recover over against a stevedore forbreach of express or implied warranty to handle the cargoin a reasonably safe manner. Ryan Stevedoring Co. v.Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100L.Ed. 133 (1956).
The 1972 Amendments, particularly by adding § 905(b),radically changed this scheme of things. Thecompensation payments due the longshoreman from thestevedore for injuries incurred in the course of hisemployment were substantially increased; thelongshoreman's right to recover for unseaworthiness wasabolished; his right to recover from the shipowner fornegligence was preserved in § 905(b), which provided astatutory negligence action against the ship; and thestevedore's obligation to indemnify the shipowner if thelatter was held liable to the longshoreman was abolished.
Section 905(b) did not specify the acts or omissions of thevessel that would constitute negligence. In light of thedifferences among the lower federal courts as to theconstruction and application of § 905(b), neither can it besaid that the legislative history, which has been analyzedand reanalyzed in the course of these cases, furnishes sureguidance for construing § 905(b). Much was left to beresolved through the "application of accepted principles oftort law and the ordinary process of litigation." Rep., p.11.
IIIWe held in Marine Terminals v. Burnside Shipping Co.,
394 U.S. 404, 415, 89 S.Ct. 1144, 1150, 22 L.Ed.2d 371(1969), that the vessel owes to the stevedore and hislongshoremen employees the duty of exercising due care"under the circumstances." This duty extends at least toexercising ordinary care under the circumstances to havethe ship and its equipment in such condition that an expertand experienced stevedore will be able by the exercise ofreasonable care to carry on its cargo operations withreasonable safety to persons and property, and to warningthe stevedore of any hazards on the ship or with respect toits equipment that are known to the vessel or should beknown to it in the exercise of reasonable care, that wouldlikely be encountered by the stevedore in the course of hiscargo operations and that are not known by the stevedoreand would not be obvious to or anticipated by him ifreasonably competent in the performance of his work. Id.,at 416, n. 18, 89 S.Ct., at 1151. The shipowner thus hasa duty with respect to the condition of the ship's gear,equipment, tools, and work space to be used in thestevedoring operations; and if he fails at least to warn thestevedore of hidden danger which would have been knownto him in the exercise of reasonable care, he has breachedhis duty and is liable if his negligence causes injury to alongshoreman. Petitioner concedes as much. Brief forPetitioner 20-21. It is also accepted that the vessel may beliable if it actively involves itself in the cargo operationsand negligently injures a longshoreman or if it fails toexercise due care to avoid exposing longshoremen to harmfrom hazards they may encounter in areas, or fromequipment, under the active control of the vessel duringthe stevedoring operation.
The parties, however, like the District Court and the Courtof Appeals, are in sharp disagreement as to the vessel'sduty under § 905(b) once the stevedore's cargo operationshave begun. Scindia contends that the shipowner has noduty to supervise or inspect the stevedore's cargooperations or to take reasonable care to discover dangerousconditions that develop or come to light during the loadingor unloading. Scindia also submits that even if the vessellearns of the hazard, it has no duty to correct it and isentitled as a matter of law to rely on the stevedore toprotect his employees from injury. This is true, Scindiaargues, even though the hazard is an obviously defectiveship's winch being used by the stevedore and hislongshoremen employees, and even if the winch wasdefective when the stevedore came aboard and the vesselis charged with knowledge of the condition. Respondents,on the other hand, defend the view of the Court of Appealsthat the vessel is subject to a continuing duty to usereasonable care to discover dangerous conditions exposinglongshoremen to unreasonable risk of harm and to exercisereasonable care under the circumstances to protect them.We are unable to agree wholly with either of thesesubmissions.
Considering first the position of the Court of Appeals, we
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cannot agree that the vessel's duty to the longshoremanrequires the shipowner to inspect or supervise thestevedoring operation. Congress intended to make thevessel answerable for its own negligence and to terminateits automatic, faultless responsibility for conditions causedby the negligence or other defaults of the stevedore. Cases holding the vessel liable on the ground that it owednondelegable duties to protect the longshoremen frominjury were rejected. It would be inconsistent with the Actto hold, nevertheless, that the shipowner has a continuingduty to take reasonable steps to discover and correctdangerous conditions that develop during the loading orunloading process. Such an approach would repeatedlyresult in holding the shipowner solely liable for conditionsthat are attributable to the stevedore, rather than the ship. True, the liability would be cast in terms of negligencerather than unseaworthiness, but the result would be muchthe same. "[C]reation of a shipowner's duty to oversee thestevedore's activity and insure the safety of longshoremenwould ... saddle the shipowner with precisely the sort ofnondelegable duty that Congress sought to eliminate byamending section 905(b)." Hurst v. Triad Shipping Co.,554 F.2d 1237, 1249-1250, n. 35 (CA3 1977); Evans v.S.S. "Campeche," 639 F.2d 848, 856 (CA2 1981).
As a general matter, the shipowner may rely on thestevedore to avoid exposing the longshoremen tounreasonable hazards. Section 41 of the Act, 33 U.S.C.§ 941, requires the stevedore, the longshoremen'semployer, to provide a "reasonably safe" place to workand to take such safeguards with respect to equipment andworking conditions as the Secretary of Labor maydetermine to be necessary to avoid injury tolongshoremen. The ship is not the common employer ofthe longshoremen and owes no such statutory duty tothem. Furthermore, as our cases indicate, the stevedorenormally warrants to discharge his duties in aworkman-like manner; and although the 1972Amendments relieved the stevedore of his duty toindemnify the shipowner for damages paid tolongshoremen for injuries caused by the stevedore's breachof warranty, they did not otherwise disturb the contractualundertaking of the stevedore nor the rightful expectationof the vessel that the stevedore would perform his taskproperly without supervision by the ship.
The approach of the indemnity cases in this Court,beginning with Ryan Stevedoring Co. v. Pan-Atlantic S.S.Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956),was that the stevedore was in the best position to avoidaccidents during cargo operations and that the shipownercould rely on the stevedore's warranty to performcompetently. In Italia Societa v. Oregon Stevedoring Co.,376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964), forexample, the vessel was found liable for injuries to alongshoreman caused by an unseaworthy condition arisingwhen the stevedore, without negligence, supplied
defective equipment used in handling the cargo. We heldthe vessel entitled to recover over against the stevedore,saying:
"Oregon, a specialist in stevedoring, was hired to loadand unload the petitioner's vessels and to supply theordinary equipment necessary for these operations. Thedefective rope which created the condition ofunseaworthiness on the vessel and rendered theshipowner liable to the stevedore's employee wassupplied by Oregon, and the stevedoring operations inthe course of which the longshoreman was injured werein the hands of the employees of Oregon. Not only didthe agreement between the shipowner place control ofthe operations on the stevedore company, but Oregonwas also charged under the contract with the supervisionof these operations. Although none of these factorsaffect the shipowner's primary liability to the injuredemployee of Oregon, since its duty to supply aseaworthy vessel is strict and nondelegable, and extendsto those who perform the unloading and loading portionof the ship's work, Seas Shipping Co. v. Sieracki, 328U.S. 85 [66 S.Ct. 872, 90 L.Ed. 1099], cf. Pope &Talbot v. Hawn, 346 U.S. 406 [74 S.Ct. 202, 98 L.Ed.143], they demonstrate that Oregon was in a far betterposition than the shipowner to avoid the accident. Theshipowner defers to the qualification of the stevedoringcontractor in the selection and use of equipment andrelies on the competency of the stevedore company." Id., at 322-323, 84 S.Ct., at 752-753.
The 1972 Amendments foreclosed indemnity of theshipowner by the stevedore in § 905(b) cases; but theyalso rejected the notion of a nondelegable duty on theshipowner to provide a safe place to work and did notundermine the justifiable expectations of the vessel thatthe stevedore would perform with reasonable competenceand see to the safety of the cargo operations.
We are of the view that absent contract provision, positivelaw, or custom to the contrary--none of which has beencited to us in this case--the shipowner has no general dutyby way of supervision or inspection to exercise reasonablecare to discover dangerous conditions that develop withinthe confines of the cargo operations that are assigned tothe stevedore. The necessary consequence is that theshipowner is not liable to the longshoremen for injuriescaused by dangers unknown to the owner and about whichhe had no duty to inform himself. This conclusion isplainly consistent with the congressional intent toforeclose the faultless liability of the shipowner based ona theory of unseaworthiness or nondelegable duty. Theshipowner, within limits, is entitled to rely on thestevedore, and owes no duty to the longshoremen toinspect or supervise the cargo operations. To the extentthat the judgment of the Court of Appeals rested on acontrary view, we disagree.
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IVWe arrive at the more difficult and recurring issueinvolved in this case: What are the shipowner's dutieswhen he learns that an apparently dangerous conditionexists or has developed in the cargo operation, which isknown to the stevedore and which may cause injury to thelongshoreman? Must the owner take some action? Scindia and the District Court would have it that the vesselis entitled to rely on the expertise and responsibility of thestevedore and is not liable for injuries caused by dangersknown by or obvious to the stevedore, who, if he fails totake proper precautions, is necessarily the sole andproximate cause of the injury. There is arguable supportfor this position in our cases.
In Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct.445, 3 L.Ed. 413 (1959), a ship's winch had been set byship's officers to shut off the current at twice the safeworking load of the unloading gear. The gear partedwhen subjected to undue strain because of the negligenceof the stevedore. The Court held the ship unseaworthy. Consistent with past cases, the Court declared that thelongshoremen's protection against unseaworthiness"imposes a duty which the owner of the vessel cannotdelegate," a duty which, as to appliances, "does not endwith supplying them; he must keep them in order." Theshipowner "is not relieved of these responsibilities byturning control of the loading or unloading of the ship overto a stevedoring company." Id., at 427, 79 S.Ct., at 447. The Court, nevertheless, permitted the ship to recover overfrom the stevedore "since the negligence of the stevedores... brought the unseaworthiness of the vessel into play ...." Id., at 429, 79 S.Ct., at 448.
In Crumady, the Court declared that "those acting for thevessel owner" had adjusted the winch "in a way that madeit unsafe and dangerous for the work at hand." Id., at 427,79 S.Ct., at 447. It thus appeared that the vessel had atleast been negligent, yet it was entitled to shift its entireliability to the stevedore because it was entitled to rely onthe stevedore's undertaking to perform in a workmanlikemanner. Arguably, Scindia should likewise be justified inexpecting Seattle to perform its undertaking and shouldtherefore have no duty or responsibility with respect to theship's winch, which, if defective, was obviously so andwhich the stevedore continued to use.
The court below rejected this position, holding that if thevessel should realize that the condition presents anunreasonable risk of harm, it is liable if it "fails to exercisereasonable care under the circumstances" to protect thelongshoremen. The court did not suggest how torecognize an "unreasonable risk" of harm from an obviousdanger or suggest what reasonable care under thecircumstances might be.
The Court of Appeals for the Second Circuit, whiledisagreeing with the duty-to-inspect thesis of the Court ofAppeals in the present case, has also rejected this position,ruling that although the shipowner is normally entitled torely on the stevedore to guard against hazards to itsemployees, "there may be circumstances in which it wouldnot be reasonable for the shipowner to assume that thestevedore will correct the problem." Evans v. S.S."Campeche," 639 F.2d, at 856. As that court sees it, mereknowledge of the danger would not be sufficient in itselfto fasten such a duty on the shipowner, but if theshipowner should anticipate that the stevedore will not orcannot correct the danger and that the longshoremencannot avoid it, then the shipowner's duty is triggered totake steps, reasonable in the circumstances, to eliminate orneutralize the hazard. We are presently unprepared toagree that the shipowner has precisely the duty describedby the Court of Appeals for the Second Circuit, but for thereasons that follow we agree that there are circumstancesin which the shipowner has a duty to act where the dangerto longshoremen arises from the malfunctioning of theship's gear being used in the cargo operations.
On the facts posited here, for two days prior to theaccident, it had been apparent to those working with thewinch that this equipment was malfunctioning. Even so,whether it could be safely used or whether it posed anunreasonable risk of harm to Santos or other longshoremenwas a matter of judgment committed to the stevedore inthe first instance. The malfunctioning being obvious andSeattle having continued to use it, Scindia submits that ifit was aware of the condition or was charged withknowledge of it, it was nevertheless entitled to assume thatSeattle, the specialist in loading and unloading, consideredthe equipment reasonably safe and was entitled to rely onthat judgment.
Yet it is quite possible, it seems to us, that Seattle'sjudgment in this respect was so obviously improvident thatScindia, if it knew of the defect and that Seattle wascontinuing to use it, should have realized the winchpresented an unreasonable risk of harm to thelongshoremen, and that in such circumstances it had a dutyto intervene and repair the ship's winch. The same wouldbe true if the defect existed from the outset and Scindiamust be deemed to have been aware of is condition.
As we have indicated, the legal duties placed on thestevedore and the vessel's justifiable expectations thatthose duties will be performed are relevant in determiningwhether the shipowner has breached its duty. The trialcourt, and where appropriate the jury, should thus be madeaware of the scope of the stevedore's duty under thepositive law. But an equally necessary inquiry is whetherthe pertinent statutes, regulations, or custom place orassume a continuing duty on the vessel to repair defectiveship's gear being used by the stevedore in the cargo
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operation.
The statutory duty of the stevedore under § 941 to providea safe place to work has been implemented by the Safetyand Health Regulations for Longshoring. 29 CFR §1918.1 et seq. (1980). Subpart F of these regulations, §1918.51 et seq., deals with the use of the ship's gear by thestevedore. Section 1918.51(b) provides that "[a]nycomponent of cargo handling gear ... which is visiblyunsafe shall not be used until made safe." In addition, §1918.53, dealing with cargo winches, provides that "[a]nydefect or malfunction of winches shall be reportedimmediately to the officer in charge of the vessel," §1918.53(a)(5); that in the case of electrical winches"[w]hen the electromagnetic or other service brake isunable to hold the load, the winch shall not be used," §1918.53(c)(1); and that "[e]mployees shall not bepermitted to tamper with or adjust electric controlcircuits," § 1918.53(c)(2). Even in the absence of otherstatutory or regulatory law placing on the shipowner theobligation to repair a defective winch, a possible inferencefrom the provisions already described is that when adefective winch is discovered, it should not be repaired bythe stevedore but should be reported to and repaired by theshipowner. If this is the case, the situation comes downto this: If Scindia was aware that the winch wasmalfunctioning to some degree, and if there was a juryissue as to whether it was so unsafe that the stevedoreshould have ceased using it, could the jury also have foundthat the winch was so clearly unsafe that Scindia shouldhave intervened and stopped the loading operation untilthe winch was serviceable?
We raise these questions but do not answer them, sincethey are for the trial court in the first instance and sinceneither the trial nor appellate courts need deal with themunless there is sufficient evidence to submit to the juryeither that the shipowner was aware of sufficient facts toconclude that the winch was not in proper order, or thatthe winch was defective when cargo operations began andthat Scindia was chargeable with knowledge of itscondition. The District Court concluded that there was notriable issue of fact as to whether the shipowner knew orshould have known of the alleged condition of the winch. The Court of Appeals read the record quite differently,ruling that there was a disputed material fact, which theDistrict Court should not itself have resolved, with respectto the shipowner's actual or constructive knowledge of thecondition of the winch. To the extent that this conclusionwas based on the Court of Appeals' erroneous view thatthe vessel should have known the facts because of its dutyto inspect the stevedore's cargo handling operation, it wasinfirm. But as we understand the opinion below, theCourt of Appeals held that there was a triable issue as towhether the shipowner had actual knowledge of the failurein the winch's braking mechanism or was chargeable withknowledge because the winch was defective from the
outset. Based on our own examination of the record, weagree with the Court of Appeals in this respect and with itsconclusion that the District Court erred in grantingsummary judgment. The case should be returned to theDistrict Court and, if necessary, tried to a jury underappropriate instructions.
Accordingly, we affirm the judgment of the Court ofAppeals and remand the case to that court for furtherproceedings consistent with this opinion.
So ordered.
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C. Tort Remedies Under LHWCA Against Employer Which Is Vessel Owner
Notes
The land-based employer as shipowner
Certain land-based employers, such as stevedores and ship repairers, own or operate vessels inthe course of their business. In such cases, the question arises whether the liability of the land-basedemployer is limited to the payment of benefits under the LHWCA or whether the injured employee maysue his employer in his capacity as shipowner for damages under the general maritime law. The problemis the same when a shipowner chooses to undertake certain operations, such as stevedoring or shiprepairing, instead of engaging the services of an independent contractor. See Smith v. M/V Captain Fred,546 F.2d 119, 1977 AMC 353 (5 Cir. 1977); Fanetti v. Hellenic Lines, Ltd., 678 F.2d 424, 1982 AMCth
1521 (2 Cir. 1982). They are, in essence, wearing two hats: one as shipowner and the other as longshorend
employer.
In Reed v. Yaka, 373 U.S. 410, 1963 AMC 1373 (1963), a longshoreman filed a libel in remagainst the steamship Yaka to recover for injuries he sustained due to the unseaworthiness of the vesselin the process of loading operations. The shipowner impleaded plaintiff’s land-based employer, who wasthe bareboat charterer of the Yaka, and thus, in the eyes of the maritime law, the ship’s owner pro hacvice, alleging that the employer’s negligence was the sole cause of the injury. The Supreme Courtdeclared that a bareboat charterer as owner pro hac vice incurs the liabilities of a shipowner. The courtheld that the plaintiff was not barred by the Longshoremen’s Act from relying on his employer’s liabilityas shipowner in order to support his libel in rem against the vessel.
The 1972 amendments to the LHWCA eliminated the unseaworthiness action that an employeecovered by the Act had against a shipowner. 33 U.S.C. § 905(b). However, the question arose whethera land-based employee of an independent contractor could still have a negligence action against hisemployer under § 905(b) if the employer was also shipowner or owner pro hac vice.
The Supreme Court resolved this question in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S.523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983), stating as follows:
Most longshoremen who load and unload ships are employed by independent stevedores, who havecontracted with the vessel owners to provide such services. In this case, however, the respondentlongshoreman was employed directly by the petitioner vessel owner. Under § 4 of the Act, a longshoremanwho is injured in the course of his employment is entitled to a specified amount of compensation from hisemployer, whether or not the injury was caused by the employer's negligence. Section 5(a) of the Actappears to make that liability exclusive. It reads, "The liability of an employer prescribed in § 4 of this actshall be exclusive and in place of all other liability of such an employer to the employee...." 44 Stat. 1426,33 U.S.C. § 905(a). Since the petitioner was the respondent's employer and paid him benefits pursuant to§ 4 of the Act, it contends that § 5(a) absolves it of all other responsibility for damages.
Although petitioner's contention is, indeed, supported by the plain language of § 5(a), it is undermined bythe plain language of § 5(b). The first sentence of § 5(b) authorizes a longshoreman whose injury is causedby the negligence of a vessel to bring a separate action against such a vessel as a third party. Thus, in thetypical tripartite situation, the longshoreman is not only guaranteed the statutory compensation from hisemployer; he may also recover tort damages if he can prove negligence by the vessel. The second sentenceof § 5(b) makes it clear that such a separate action is authorized against the vessel even when there is noindependent stevedore and the longshoreman is employed directly by the vessel owner. That sentence
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provides, "If such person was employed by the vessel to provide stevedoring services, no such action shallbe permitted if the injury was caused by the negligence of persons engaged in providing stevedoringservices to the vessel." If § 5(a) had been intended to bar all negligence suits against owner-employers, therewould have been no need to put an additional sentence in § 5(b) barring suits against owner-employers forinjuries caused by fellow servants.
The history of the Act further refutes petitioner's contention that § 5(a) of the Act bars respondent's suitunder § 5(b). Prior to 1972, this Court had construed the Act to authorize a longshoreman employed directlyby the vessel to obtain a recovery from his employer in excess of the statutory schedule, even though § 5of the Act contained the same exclusive liability language as today. Reed v. The Yaka, 373 U.S. 410, 83S.Ct. 1349, 10 L.Ed.2d 448 (1963); Jackson v. Lykes Brothers Steamship Co., 386 U.S. 731, 87 S.Ct. 1419,18 L.Ed.2d 488 (1967). Although the 1972 Amendments changed the character of the longshoreman's actionagainst the vessel by substituting negligence for unseaworthiness as the basis for liability, Congress clearlyintended to preserve the rights of longshoremen employed by the vessel to maintain such an action.
Vessel negligence
The question of whether a longshoreman’s injuries are attributed to the negligence of hisemployer in his capacity as shipowner or in his capacity as land-based employer is not always easy todetermine. In White v. Cooper/T. Smith Corp., 690 F.Supp. 534 (E.D. La. 1988), a longshoreman injuredin two separate accidents brought suit against his employer in his capacity as shipowner, and his wifejoined in the suit seeking recovery for loss of consortium. The court ruled as a matter of law that underthe facts alleged in the petition with respect to the first accident, there was no vessel negligence. In thefirst incident plaintiff slipped while working on a mooring buoy after he had left his employer’s vessel.As to the second accident, however, the court found that the petition stated sufficient facts to engage theliability of the employer under § 905(b), that is, in its capacity as shipowner. In this incident, plaintiffwas injured on his employer’s vessel while turning its steering wheel. The court found that the firstincident lacked “vessel negligence,” but there was a material fact in issue with respect to “vesselnegligence” as to the second incident. The court also held that when an action under § 905(b) is availableto a longshoreman, his spouse may institute an action for loss of consortium.
748 F.2d 300
PICHOFFv.
BISSO TOWBOAT CO., INC.No. 83-3547
Dec. 10, 1984
PATRICK E. HIGGINBOTHAM, Circuit Judge
Bisso Towboat Company appeals from a judgmentrendered against it in favor of its employee, Lee Pichoff,for injuries Pichoff suffered while repairing Bisso's boat. Pichoff cross-appeals from the denial of his motion foradditur. We affirm.
IBisso operated a tugboat service and boat repair yard inNew Orleans. In late 1980, it made plans to expand itsbusiness by starting a launch service to ferry crews and
supplies from Burnside, Louisiana to ships anchoredoffshore. Bisso hired Pichoff in September of 1980 toprocure old vessels to be reconditioned for the launchservice, and to manage the service once it began.
Between October 1980 and February 1981, Pichoff locatedtwo crewboats for Bisso, and supervised theirreconditioning in Bisso's repair yard. In February of1981, Pichoff located a third boat, the GEMINI, whichBisso purchased. Unlike the first two, the GEMINI wassupposedly ready for immediate use withoutreconditioning. On February 7, though, while steamingtoward the launch dock, the GEMINI broke down and wastowed to Bisso's repair yard.
On February 8, Pichoff reported to Milton Lange toreceive a work assignment. Lange was Bisso's generalmanager, and was in charge of all operations at the NewOrleans yard, such as purchasing and personnel, as well assupervising Bisso's tugboat and repair operations. Langeassigned Pichoff to find out what was wrong with the
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GEMINI. During the day, Pichoff and a coworker,Serpas, made various repairs to the vessel while itremained in the water. On February 9, Serpas reported toLange that one of the fuel tanks was leaking. Lange toldPichoff to locate and repair the leak.
The fuel tanks on the GEMINI were located in the bilge,which had no permanent lighting. Pichoff asked Langefor a "drop light"--a light bulb and enclosure that could behooked to the walls or ceiling of the bilge. Lange toldPichoff to ask two other yard workers for a drop light. When Pichoff reported that no drop light could be found,Lange gave Pichoff a flashlight and told him to "get downthere and hurry up." Serpas testified that "Captain Ed"Slattern, a Bisso shareholder, was "getting on" Lange"about the boat not being ready"; the trial court found asa fact that Lange "was anxious to get the vessel to theBurnside terminal for a job that was scheduled tocommence the next day."
Pichoff discovered a leak in the port fuel tank. Whileshining his flashlight on the leak, he stepped backward,slipped in a pool of diesel fuel on the bilge floor, fell, andinjured his back.
Pichoff sued Bisso under the Jones Act, general maritimelaw, and the Longshoremen's and Harbor Workers'Compensation Act, but later voluntarily dismissed theJones Act and general maritime law claims. After abench trial, the court filed Findings of Fact andConclusions of Law. It concluded that
Bisso was negligent in failing to provide Pichoff withadequate lighting ... Had Bisso provided a drop light,Pichoff would likely have [not injured himself.] It was foreseeable that Pichoff would need a drop lightto provide greater illumination and to free his handswhile he inspected the compartment. Bisso wasnegligent in ordering Pichoff to conduct a hurriedinspection without one.
It also held that an employee could file an LHWCA suit"against his employer qua vessel owner" to recoverdamages caused by the vessel's negligence.
The court awarded damages of $212,734.95. Of thisamount, $28,500 represented Pichoff's future wages forone year, based on the court's finding that Pichoff wouldundergo back surgery within three months after trial, andwould be able to resume work nine months after thesurgery. After Bisso appealed the court's liability holding,Pichoff filed a motion for additur to cover wages lostduring the pendency of the appeal. The court deniedPichoff's motion, and he cross-appealed.
IISection 905(b) of the LHWCA allows a person covered by
the Act to sue for damages caused by the negligence of avessel. Such an action is permissible even if the vesselowner is also the plaintiff's employer, and would otherwisebe immune from suit under § 905(a). Jones & LaughlinSteel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541,2547-48, 76 L.Ed.2d 768 (1983). Section 905(b),however, expressly provides:
If [plaintiff] was employed by the vessel to provideshipbuilding or repair services, no such action shall bepermitted if the injury was caused by the negligence ofpersons engaged in providing shipbuilding or repairservices to the vessel.
Bisso contends that it was negligent as a vessel repairer,not as an owner. See Pfeifer, 103 S.Ct. at 2547 n. 6; Chiasson v. Rogers Terminal & Shipping Corp., 679 F.2d410, 415 (5th Cir.1982). It claims that Lange's failure togive Pichoff a drop light was an act performed in thecourse of the ongoing repair of the GEMINI, and thatLange was therefore a "person engaged in providing repairservices" under § 905(b). As the trial court found,however, Lange was negligent in two ways: "failing toprovide Pichoff with adequate lighting," and "orderingPichoff to conduct a hurried inspection" without a light. (Emphasis added.) Although providing adequate lightingfor bilge repairs may be a duty of a repairer, not an owner,Lange acted in haste solely because he was a supervisor incharge of Bisso's overall operations, and had Bisso'scorporate interests as a vessel charterer in mind. Thissecond aspect of Lange's negligence is chargeable to Bissoas owner, and prevents Bisso from enjoying LHWCAimmunity.
In Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d789 (2d Cir.1979), the Second Circuit considered anargument similar to the one Bisso presses here. In Smith,a vessel owner was charged with negligently causing thedeath of its repairer-employee during a repair missionsupervised by the vessel owner's president. The districtcourt had held that because the president was participatingin the repair operation, he was a fellow repairer, and thatthe vessel owner was immune from suit for his negligentomissions. The Second Circuit reversed on the ground thatthe district court's analysis "did not entail sufficientscrutiny of the particular negligent acts that were found tohave been committed." 604 F.2d at 796. As the courtexplained, even during repair or longshoring operations,"supervisory personnel in particular will continue to fulfilltheir general duties as agents of the shipowner, and thenegligent discharge of these responsibilities can still resultin liability to the vessel." Id. at 796 n. 5.
When Lange told Pichoff to hurry up, he was fulfilling aduty as an agent of the shipowner. Slattern had made itclear to him that Bisso was about to lose money if it couldnot provide a boat to a customer the next day; Lange's
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order to Pichoff was guided by this corporate concern. Itis not uncommon for vessel owners to be found negligentfor insisting, as Lange did, that workers perform their jobshurriedly despite unsafe working conditions. See, e.g.,Lubrano v. Royal Netherlands Steamship Co., 572 F.2d364 (2d Cir.1978) (ship's crew negligent for orderinglongshoremen to keep working despite slippery decks); Offshore Logistics Services, Inc. v. Mutual Marine Office,Inc., 462 F.Supp. 485 (E.D.La.1978) (owner negligent inordering use of small, fast boat rather than large, slow onedespite heavy seas).
The line between owner and repairer is dull and elusive, atbest. Fortunately, the Congress has for future cases endedthis sometimes pretentious distinction. Aided in our taskby intuition and common sense, we conclude here that thedistrict court's call was rational and defensible. Lange'snegligence was at least partly in his capacity asrepresentative of the vessel owner, rather than his capacityas repair supervisor. The judgment against Bisso is thuspermissible under § 905(b).
IIIPichoff claims that he should have been awarded futurewages from the date of trial until nine months after thejudgment becomes executory. He argues that he cannotafford the surgery that will allow him to return to workuntil he receives his damages award, that this appeal hasprevented him from collecting that sum, and that the trialcourt thus erred in denying his motion for additur.
The trial court's decision not to increase the quantum ofdamages it awarded for future wages is subject to reviewonly for abuse of discretion. See Thezan v. MaritimeOverseas Corp., 708 F.2d 175, 182-83 (5th Cir.1983),cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d189 (1984). The court here had no control overcontingencies such as when Pichoff's surgery would occur,and was under no duty to adjust its award to reflectpost-trial events. Its denial of Pichoff's motion for additurwas not an abuse of discretion.
AFFIRMED.
D. Tort Remedies Under LHWCA Against Third Persons
§ 933. Compensation for injuries where third persons are liable(a) Election of remedies
If on account of a disability or death for which compensation is payable under this chapter the person entitled tosuch compensation determines that some person other than the employer or a person or persons in his employ isliable in damages, he need not elect whether to receive such compensation or to recover damages against such thirdperson.
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E. Miscellaneous Issues Under LHWCA
Note: Contribution and Indemnity
Section 5 (33 U.S.C. § 905 of the LHWCA) originally provided:
The liability of an employer prescribed in section 4 [for compensation] shall be exclusive and in place ofall other liability of such employer to the employee, his legal representative, husband or wife, parents,dependents, next of kin, and any one otherwise entitled to recover damages from such employer at law or
in admiralty on account of such injury or death. (Emphases added.)
Nevertheless, before 1972 the Supreme Court had imposed tort liability on the land-basedemployer of a longshoreman or harbor worker in two situations: (a) when a longshoreman or harborworker injured aboard a ship recovered damages from the shipowner and the shipowner brought a suitfor indemnity or contribution against the land-based employer; and (b) when the land-based employeralso qualified as an owner pro hac vice of a vessel.
Frequently a longshoreman or harbor worker is injured in circumstances implicating the liabilityof a person other than his land-based employer. For example, the injuries sustained by a longshoremanmay have been caused, in whole or in part, by the negligence of a shipowner. If the shipowner is solelyliable under principles of tort law, the injured longshoreman or harbor worker may receive compensationunder the LHWCA from his employer and sue the shipowner for damages. The employer of the injuredworker may also sue the third-party tortfeasor to recover the payments made to the employee underLHWCA. This suit for indemnity may be based on a statutory assignment under 33 U.S.C. § 933 or onthe general maritime law. For a discussion of actions for indemnity, as distinguished from actions forcontribution, see Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 1969 AMC745 (1969). There, an employer brought an action against a shipowner claiming indemnity for paymentsmade to an injured employee under the LHWCA on the ground that the injury had been caused by thenegligence of the shipowner. The court held that the employer was not limited to the right of subrogationunder the LHWCA but could maintain a direct action against the vessel for indemnity.
If the longshoreman or harbor worker is injured through the concurrent fault of his employer anda third party, questions arise as to the liability of each party toward the injured worker and toward eachother. Matters become more complex when the liability of one party is based on negligence or productsliability, whereas the liability of the other party is limited to benefits under the LHWCA.
In Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 1952 AMC 1 (1952),a ship repairman employed by Haenn was injured aboard a vessel belonging to Halcyon and brought suitagainst Halcyon for negligence and unseaworthiness. Halcyon impleaded Haenn and the jury found thatplaintiff’s injuries were attributable 75% to the fault of Haenn and 25% to the fault of Halcyon. Beforethe Supreme Court, Halcyon claimed contribution in proportion to the fault of each defendant. Haenn,however, maintained that there is no contribution among joint tortfeasors under the general maritime lawin cases other than collisions, and the Court agreed. As a result, an injured longshoreman was able torecover his entire loss from the shipowner in an action based on negligence and unseaworthiness, andthe shipowner had no recourse against the employer of the longshoreman, even if the injury had beenproximately caused by the fault of the employer. The liability of the employer was limited to thatestablished by the LHWCA. In Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 1974 AMC537 (1974), a case governed by the law as it existed prior to the 1972 amendments to the LHWCA, the
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Supreme Court restricted the Halcyon case to its own facts. The Court held that the general maritime lawprovided a rule for contribution among joint tortfeasors in cases other than collisions and in which theemployer could not claim exclusive liability under the LHWCA. Thus, in a suit by an injuredlongshoreman against a shipowner and a third-party stevedore (other than plaintiff’s employer), the Courtallowed contribution between joint tortfeasors. For an action for contribution against the United Statesfor injuries compensable under the Federal Employees Compensation Act, see Gallini v. Jetco, Inc., 514F.2d 949, 1975 AMC 681 (2 Cir. 1975).nd
Subsequently, however, the Supreme Court held that a right to contribution or indemnity, thoughnonexistent under tort theory, may be based on the breach of an express or implied warranty ofworkmanlike service when the unseaworthiness of the vessel was produced by the fault of the contractingstevedoring company. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Co., 350 U.S. 124 (1956)[implied warranty]. Further, in Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376U.S. 315, 1964 AMC 1075 (1964), the Supreme Court found breach of warranty where equipmentfurnished by the stevedore failed because of a latent defect. In the framework of the tripartite relationshipamong a longshoreman, his employer, and the shipowner, these decisions meant that the liability of theemployer was no longer exclusively governed by the LHWCA. Instead, liability for the payment ofdamages ultimately rested entirely on the employer, even if the injuries had been caused to a large extentby the fault of the shipowner.
Then the 1972 amendments to the LHWCA were enacted. According to the provisions of 33U.S.C. § 905(b) a shipowner may not recover damages he has paid to a longshoreman from thelongshoreman’s employer under any theory of warranty, express or implied, in tort or in contract. Itshould be noted, however, that the 1972 amendments to the LHWCA do not affect the applicability ofthe warranty of workmanlike services to persons other than employers of longshoremen and harborworkers. See Stevens v. East-West Towing Co., 649 F.2d 1104, 1982 AMC 2820 (5 Cir. 1981) [charterth
party]; Leckelt v. Superior Oil Co., 608 F.2d 592 (5 Cir. 1979) [vessel manufacture]; Fairmontth
Shipping Corp. v. Chevron Int’l. Oil Co., 511 F.2d 1252 (5 Cir. 1979) [towage]. Thus, pre-1972th
decisions extending the Ryan doctrine to a variety of maritime contracts continue to be valid. See, e.g.,Parfact v. Jahneke Service, Inc., 484 F.2d 296, 1974 AMC 1892 (5 Cir. 1973) [diesel dredge repairth
contract]; Whizenant v. Brewster-Bartle Offshore Co., 446 F.2d 394, 1970 AMC 1713 (4 Cir. 1969)th
[towage]; Lusich v. Bloomfield Steamship Co., 355 F.2d 770, 1966 AMC 191 (5 Cir. 1966) [shipth
repair] ; United States v. Tug Manzanilla, 310 F.2d 210, 1963 AMC 365 (9 Cir. 1062) [towage];th
McWilliams Blue Line, Inc. v. Esso Standard Oil Co., 245 F.2d 34, 1957 AMC 1213 (2 Cir. 1957)nd
[towage]. But see General Construction Co. v. Umpqua River Navigation Co., 458 F.2d 1136, 1972AMC 1615 (9 Cir. 1972) [dredging contract].th
V. PLATFORM AND OTHER WORKERS
A. Outer Continental Shelf Lands Act
OUTER CONTINENTAL SHELF LANDS ACT33 U.S.C. § 1333. Laws and regulations governing lands
(a) Constitution and United States laws; laws of adjacent States; publication of projected State lines;international boundary disputes; restriction on State taxation and jurisdiction
(1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the
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subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and otherdevices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose ofexploring for, developing, or producing resources therefrom, or any such installation or other device (otherthan a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outerContinental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however,That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions ofthis subchapter.
(2)(A) To the extent that they are applicable and not inconsistent with this subchapter or with other Federallaws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of eachadjacent State, now in effect or hereafter adopted, amended, or repealed are declared to be the law of theUnited States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands andfixed structures erected thereon, which would be within the area of the State if its boundaries were extendedseaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in theFederal Register such projected lines extending seaward and defining each such area. All of such applicablelaws shall be administered and enforced by the appropriate officers and courts of the United States. Statetaxation laws shall not apply to the outer Continental Shelf.
* * *(d) Coast Guard regulations; marking of artificial islands, installations, and other devices; failure ofowner suitably to mark according to regulations
(1) The Secretary of the Department in which the Coast Guard is operating shall have authority to promulgateand enforce such reasonable regulations with respect to lights and other warning devices, safety equipment,and other matters relating to the promotion of safety of life and property on the artificial islands, installations,and other devices referred to in subsection (a) of this section or on the waters adjacent thereto, as he may deemnecessary.
(2) The Secretary of the Department in which the Coast Guard is operating may mark for the protection ofnavigation any artificial island, installation, or other device referred to in subsection (a) of this sectionwhenever the owner has failed suitably to mark such island, installation, or other device in accordance withregulations issued under this subchapter, and the owner shall pay the cost of such marking.
* * *(f) Provisions as nonexclusive
The specific application by this section of certain provisions of law to the subsoil and seabed of the outerContinental Shelf and the artificial islands, installations, and other devices referred to in subsection (a) of thissection or to acts or offenses occurring or committed thereon shall not give rise to any inference that theapplication to such islands and structures, acts, or offenses of any other provision of law is not intended.
B. Platform Workers
89 S.Ct. 1835
RODRIGUEv.
AETNA CASUALTY AND SURETY COMPANYNo. 436
Argued Feb. 25, 1969Decided June 9, 1969
Mr. Justice WHITE delivered the opinion of the Court.
This case involves two men, Dore and Rodrigue, who mettheir deaths on artificial island drilling rigs located on theouter Continental Shelf off the Louisiana coast. Eachman's family brought suit for wrongful death in thefederal courts both under the Death on the High Seas Act,41 Stat. 537, 46 U.S.C. s 761 et seq. (hereinafter 'Seas
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Act'), and under Louisiana law assertedly made applicableby the Outer Continental Shelf Lands Act, 67 Stat. 462, 43U.S.C. s 1331 et seq. (hereinafter 'Lands Act'). Eachfamily's suit was separately heard and decided in theDistrict Courts and in the Court of Appeals below. In bothcases the Court of Appeals for the Fifth Circuit, affirmingthe District Courts, held that the Seas Act was theexclusive remedy for these deaths. Petitioners soughtcertiorari, claiming that they are entitled to an additionalremedy under the state law adopted by the Lands Act.
In the Dore case, the decedent was working on a cranemounted on the artificial island and being used to unloada barge. As the crane lifted a load from the barge to placeit on the artificial island, the crane collapsed and toppledover onto the barge, killing the worker. His widow andher three children brought a single action in the UnitedStates District Court for the Western District of Louisiana,alleging their own and the decedent's residency inLouisiana and the negligence of the firms whichmanufactured, installed, and serviced the crane. The suitwas brought under the 'General Maritime Laws, the Deathon the High Seas Act, * * * Article 2315 of the (LouisianaCode) and under the other laws of the United States andthe State of Louisiana.' It claimed $670,000 in damages tothe family plaintiffs for loss of their husband and father,including pecuniary and psychic losses. On motion forsummary judgment as to all claims but that under the SeasAct, the District Judge determined that the latter wasplaintiffs' only remedy, removed the case to the admiraltyside of the court, and thus limited the plaintiffs' recoveryto pecuniary loss. The state statute would have allowedrecovery for additional elements of damage. The DistrictJudge certified the question pursuant to Federal Rule ofCivil Procedure 54(b), and the Court of Appeals for theFifth Circuit affirmed. 391 F.2d 671.
In the Rodrigue case, the decedent was performing a teston a drill pipe. He was high on the derrick rising abovethe artificial island, and fell from it to his death on thefloor of the structure. His widow and two childrenbrought three actions in the District Court for the EasternDistrict of Louisiana. One was an admiralty action underthe Seas Act; the other two were civil actions respectivelyagainst the owner and insurer of the drill rig, and theowner of the stationary platform. The civil actions werebrought under the Lands Act and Article 2315 of theLouisiana Revised Civil Code. The trial court consolidatedthe two civil actions and dismissed the insurer, who hadbeen made a party to one of the civil actions pursuant tothe Louisiana direct-action statute. La.Rev.Stat.Ann. s22:655. No reason was assigned for the dismissal, but theground urged in the motion was that the accident did notoccur within the State of Louisiana, so that Louisiana lawdid not apply. Consistently with this, the District Judgedismissed the consolidated civil action before trial, on theground that the Seas Act provided a remedy and that under
such circumstances the Lands Act would not make theinconsistent state remedy applicable. The admiralty action proceeded to trial and judgment of $75,000, 266 F.Supp.1, which is not now before us. On appeal of the dismissalof the civil actions, the Court of Appeals for the FifthCircuit affirmed the District Court per curiam, citing itsdecision in the Dore case almost two months before. 395F.2d 216.
Certiorari was granted in both cases, 393 U.S. 932, 89S.Ct. 295, 21 L.Ed.2d 268 (1968), and they were arguedtogether here. In light of the principles of traditionaladmiralty law, the Seas Act, and the Lands Act, we holdthat petitioners' remedy is under the Lands Act andLouisiana law. The Lands Act makes it clear that federallaw, supplemented by state law of the adjacent State, is tobe applied to these artificial islands as though they werefederal enclaves in an upland State. This approach wasdeliberately taken in lieu of treating the structures asvessels, to which admiralty law supplemented by the lawof the jurisdiction of the vessel's owner would apply. TheHamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264(1907). This was done in part because men working onthese islands are closely tied to the adjacent State, towhich they often commute and on which their familieslive, unlike transitory seamen to whom a more generalizedadmiralty law is appropriate. Since the Seas Act does notapply of its own force under admiralty principles, andsince the Lands Act deliberately eschewed the applicationof admiralty principles to these novel structures, Louisianalaw is not ousted by the Seas Act, and under the Lands Actit is made applicable.
I.The purpose of the Lands Act was to define a body of lawapplicable to the seabed, the subsoil, and the fixedstructures such as those in question here on the outerContinental Shelf. That this law was to be federal law ofthe United States, applying state law only as federal lawand then only when not inconsistent with applicablefederal law, is made clear by the language of the Act.Section 3 makes it the 'policy of the United States' that theaffected areas 'appertain to the United States and aresubject to its jurisdiction, control, and power ofdisposition.' Section 4 makes the 'Constitution and lawsand civil and political jurisdiction of the United States'apply 'to the same extent as if the outer Continental Shelfwere an area of exclusive Federal jurisdiction locatedwithin a State.' Since federal law, because of its limitedfunction in a federal system, might be inadequate to copewith the full range of potential legal problems, the Actsupplemented gaps in the federal law with state lawthrough the 'adoption of State law as the law of the UnitedStates.' Under s 4, the adjacent State's laws were made'the law of the United States for (the relevant subsoil andseabed) and artificial islands and fixed structures erected
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thereon,' but only to 'the extent that they are applicable andnot inconsistent with * * * other Federal laws.'
It is evident from this that federal law is 'exclusive' in itsregulation of this area, and that state law is adopted onlyas surrogate federal law. The Senate Report on the billreferred to the 'precise unequivocal language' of 'theprovision for the adoption of State laws as Federal law,'and referred to the applicable body of law as consisting ofthe Constitution and laws of the United States, theregulations of the Secretary of the Interior, and finally thelaws of the adjacent States 'adopted as Federal law andmade applicable to supplement existing Federal law andregulations.' S.Rep. No. 411 of the Committee on Interiorand Insular Affairs, 83d Cong., 1st Sess., 11 (1953).
It was the Senate Committee which first introduced thepresent provision adopting state law, and in its reportexplaining the introduction it asserted: 'Paragraph (2)adopts State law as Federal law, to be used when Federalstatutes or regulations of the Secretary of the Interior areinapplicable.' Id., at 23. This language makes it clear thatstate law could be used to fill federal voids. And in theconference report, the House managers of the bill notedthat laws of adjacent States which are not inconsistent withfederal law 'are adopted as the laws of the United Statesfor those particular areas.' H.R.Conf.Rep. No. 1031, 83dCong., 1st Sess., 12 (1953).
The principles that federal law should prevail, and thatstate law should be applied only as federal law and thenonly when no inconsistent federal law applied, wereadopted by a Congress in which full debate hadunderscored the issue. Senator Cordon, in presenting theLands Act to the Senate, noted that the problem addressedby the committee had been raised by 'the fact that the fulldevelopment of the estimated values in the shelf area willrequire the efforts and the physical presence of thousandsof workers on fixed structures in the shelf area. Industrialaccidents, accidental death, peace, and order' presentproblems requiring a body of law for their solution. Since'as every Member of the Senate knows, the Federal Codewas never designed to be a complete body of law in and ofitself,' the committee decided that state law would have tobe referred to in some instances. 99 Cong.Rec.6962--6963. As Senator Anderson, a member of theconference committee, put it: 'The real point is * * * thatthe language in section 4 provides that Federal laws andregulations shall be applicable in the area, but that wherethere is a void, the State law may be applicable * * *.' 99Cong.Rec. 7164. Senator Cordon noted that this view was'entirely correct' and added that: 'These laws, by the termsof the act, are enacted as Federal law.'
The opponents of the Act realized full well that state lawwas being used only to supplement federal law, andSenator Long introduced an amendment to the Act which
would have made 'the laws of such State applicable to thenewly acquired area, and * * * the officials of such State(the agents empowered) to enforce the laws of the State inthe newly acquired area.' In arguing for his amendment,Senator Long asserted that '(i)t is even more important thatState law should apply on the artificial islands than onnatural islands * * *.' But the amendment was rejected. See 99 Cong.Rec. 7232--7236. This legislative historybuttresses the Court of Appeals' finding that in view of theinconsistencies between the state law and the Seas Act, theSeas Act remedy would be exclusive if it applied.
II.However, for federal law to oust adopted state law federallaw must first apply. The court below assumed that theSeas Act did apply, since the island was located more thana marine league off the Louisiana coast. But that is notenough to make the Seas Act applicable. The Actredresses only those deaths stemming from wrongfulactions or omissions 'occurring on the high seas,' and thesecases involve a series of events on artificial islands. Moreover, the islands were not erected primarily asnavigational aids, and the accidents here bore no relationto any such function. Admiralty jurisdiction has not beenconstrued to extend to accidents on piers, jetties, bridges,or even ramps or railways running into the sea. To theextent that it has been applied to fixed structurescompletely surrounded by water, this has usually involvedcollision with a ship and has been explained by the use ofthe structure solely or principally as a navigational aid. Butwhen the damage is caused by a vessel admitted inadmiralty jurisdiction, the Admiralty Extension Act wouldnow make available the admiralty remedy in any event.
The accidents in question here involved no collision witha vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, it was an island,albeit an artificial one, and the accidents had no moreconnection with the ordinary stuff of admiralty than doaccidents on piers. Indeed, the Court has specifically heldthat drilling platforms are not within admiraltyjurisdiction. Phoenix Construction Co. v. The SteamerPoughkeepsie, 212 U.S. 558, 29 S.Ct. 687, 53 L.Ed. 651,affirming 162 F. 494 (D.C.1908). There a ship damageda structure 'composed of various lengths of wrought ironpipe surrounded by a platform on the surface.' Citing thesame cases on which the lower court had relied, this Courtaffirmed its conclusion that jurisdiction was lacking sincethe 'project which the libellant was engaged in is not evensuggestive of maritime affairs. It was supplying water toa city and the mere fact of the means being carried underthe bed of a river, with extensions through the river to thesurface, did not create any maritime right, nor was it inany sense an aid to navigation, which was thedistinguishing feature of The Blackheath.' 162 F., at 496. In these circumstances, the Seas Act--which provides anaction in admiralty--clearly would not apply under
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conventional admiralty principles and, since the Lands Actprovides an alternative federal remedy through adoptedstate law, there is no reason to assume that Congressintended to extent those principles to create an admiraltyremedy here. And if the Congress had made the 1920Seas Act applicable, ousting inconsistent state law, theartificial island worker would be entitled to far lesscomprehensive remedies in many cases than he is now.
Even if the admiralty law would have applied to the deathsoccurring in these cases under traditional principles, thelegislative history shows that Congress did not intend thatresult. First, Congress assumed that the admiralty lawwould not apply unless Congress made it apply, and thenCongress decided not to make it apply. The legislativehistory of the Lands Act makes it clear that thesestructures were to be treated as island or as federalenclaves within a landlocked State, not as vessels.
In introducing the bill to the Senate, Senator Cordonexplained its inception as follows:
'The committee first attempted to provide housekeepinglaw for the outer shelf by applying to the structuresnecessary for the removal of the minerals in the areaunder the maritime law of the United States. This wasfirst attempted by incorporating by reference theadmiralty statutes. This solution at first seemed to be areasonably complete answer * * * inasmuch as thedrilling platforms would have been treated as vessels. Maritime law, which applies to American vessels,would have applied under that theory to the structuresthemselves.
'However, further consideration clearly showed that thisapproach was not an adequate and complete answer tothe problem. The so-called social laws necessary forprotection of the workers and their families would notapply. I refer to such things as unemployment laws,industrial-accident laws, fair-labor-standard laws, and soforth. * * * '(Ultimately, instead,) the whole body ofFederal law (was made applicable) to the area (as wellas state law where necessary). Thus, the legal situationis comparable to that in the areas owned by the FederalGovernment under the exclusive jurisdiction of theFederal Government and lying within the boundaries ofa State in the uplands.' 99 Cong.Rec. 6963.
Similarly, Senator Ellender asserted that in the first draftit 'was sought to treat the platforms or artificial islandscreated in the water as ships' but now the 'islands are madesubject to our domestic law' instead so as to be 'treated justas though they were islands created by nature, insofar asthe application of our domestic laws is concerned.' 99Cong.Rec. 7235.
The House bill, H.R. 5134, had made federal law
applicable, but also provided that the not 'inconsistent * ** laws of each coastal State which so provides shall beapplicable,' at least if adopted by the Secretary of theInterior. H.R.Rep. No. 413, 83d Cong., 1st Sess., 4, 8--9(1953). The Senate bill, as it read before committeeamendments, provided instead that acts 'on any structure(other than a vessel)' located on the Continental Shelf forexploring or exploiting its resources 'shall be deemed tohave occurred or been committed aboard a vessel of theUnited States on the high seas and shall be adjudicated ** * according to the laws relating to such acts * * * onvessels of the United States on the high seas.' When theSenate bill was reported from committee, this section hadbeen replaced by the present language, omitting entirelyany reference to treating the islands as though they werevessels.
Careful scrutiny of the hearings which were the basis foreliminating from the Lands Act the treatment of artificialislands as vessels convinces us that the motivation for thischange, together with the adoption of state law assurrogate federal law, was the view that maritime law wasinapposite to these fixed structures. See generallyHearings before the Senate Committee on Interior andInsular Affairs, 83d Cong., 1st Sess., on S. 1901 (1953)(hereafter Hearings). One theme running throughout thehearings was the close relationship between the workerson the island and the adjoining States. Objections wererepeatedly voiced to application of maritime law and withit the admiralty principle that the law of the State of theowner of the artificial island 'vessel' is used forsupplementation. On the other hand, federal enforcementof the law in this area was insisted upon by theDepartment of Justice, and there was substantial doubtwhether state law and jurisdiction could or should beextended to the structures. A federal solution was thoughtnecessary.
The committee was aware that it had the power to treatactivity on these artificial islands as though it occurredaboard ship. Jones v. United States, 137 U.S. 202, 11S.Ct. 80, 34 L.Ed. 691 (1890); Hearings 511--512;Extension of Admiralty Act of 1948, 62 Stat. 496, 46U.S.C. s 740; see United States v. Matson Nav. Co., 201F.2d 610 (C.A.9th Cir. 1952); cf. Gutierrez v. WatermanS.S. Corp., 373 U.S. 206, 209, 83 S.Ct. 1185, 1188, 10L.Ed.2d 297 (1963). And the very decision to do so in theinitial bill recognized that if it were not adopted explicitly,maritime law simply would not apply to these stationarystructures not erected as navigational aids. Moreover, thecommittee was acutely aware of the inaptness of admiraltylaw. The bill applied the same law to the seabed andsubsoil as well as to the artificial islands, and admiraltylaw was obviously unsuited to that task.
Although the Assistant Attorney General, Office of LegalCounsel, persisted to the end in his claim that admiralty
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law should apply, and that with it should be incorporatedthe law of the State of the island's owner, this viewobviously did not prevail. Instead, a compromiseemerged. The administration's opposition to committingthese areas solely to the jurisdiction of state courts, statesubstantive law, and state law enforcement was recognizedin that the applicable law was made federal lawenforceable by federal officials in federal courts. But thespecial relationship between the men working on theseartificial islands and the adjacent shore to which theycommute to visit their families was also recognized bydropping the treatment of these structures as 'vessels' andinstead, over the objections of the administration that theseislands were not really located within a State, the bill wasamended to treat them 'as if (they) were (in) an area ofexclusive Federal jurisdiction located within a State.' Statelaw became federal law federally enforced.
In view of all this, and the disclosure by Senator Cordonto the Senate upon introduction of the bill that theadmiralty or maritime approach of the original bill hadbeen abandoned, it is apparent that the Congress decidedthat these artificial islands, though surrounded by the highseas, were not themselves to be considered withinmaritime jurisdiction. Thus the admiralty action under theSeas Act no more applies to these accidents actuallyoccurring on the islands than it would to accidentsoccurring in an upland federal enclave or on a naturalisland to which admiralty jurisdiction had not beenspecifically extended. At a minimum, the legislativehistory shows that accidents on these structures, whichunder maritime principles would be no more undermaritime jurisdiction than accidents on a wharf locatedabove navigable waters, were not changed in character bythe Lands Act.
Since the inapplicability of the Seas Act removes anyobstacle to the application of state law by incorporation asfederal law through the Lands Act, the decisions below arereversed and the causes remanded for proceedingsconsistent with this opinion.
It is so ordered.
Reversed and remanded.
580 F.3d 280
United States Court of AppealsFifth Circuit
Thomas J. ALLEMAN, Etc.v.
OMNI ENERGY SERVICES CORPORATION
No. 08-30086Aug. 21, 2009
EDITH BROWN CLEMENT, Circuit Judge:
The petition for rehearing is DENIED in part andGRANTED in part as reflected in the substitute opinionfiled today. We withdraw our previous opinion andsubstitute the following:
In this appeal, we must determine difficult questions ofapplicable law following a tragic helicopter accident in theGulf of Mexico. The two key issues before us are (1)whether a contract for helicopter services to oil platformsis by its nature a maritime contract, and (2) where to drawthe line between the Outer Continental Shelf Lands Act(“OCSLA”) and the Death on the High Seas Act(“DOHSA”). Bert Hollier (“Hollier”) and other passengersof the helicopter sued the company that operated thehelicopter, Omni Energy Services Corp. (“Omni”); Omnithen sought indemnity from W&T Offshore, Inc.(“W&T”), which operated the oil platform and hadcontracted with Omni to fly employees to its platforms.The district court granted * * * partial summary judgmentin favor of Omni, finding that DOHSA applied to Hollier'stort claims because the death occurred after Hollier fellinto the ocean and floated there for more than two hours.We * * * reverse and remand on the DOHSA issue.
FACTS AND PROCEEDINGS
Pursuant to the letter agreement, on December 17, 2004,an Omni helicopter piloted by Omni employee ErnieSmith was flying three W&T subcontractors betweenW&T offshore platforms. Smith was landing the helicopteron the helipad, but a boat landing stored on or near thehelipad made it impossible for the passengers to exit.Smith then attempted to move the helicopter, but in doingso, the main rotor struck the boat landing. The helicopterskidded around the helipad, then fell into the Gulf ofMexico. Passengers Thomas Alleman and Mark Parkerwere injured. The third passenger, Hollier, floated in thewater for two hours and died of a heart attack while hewas being rescued.
In the district court, several cases were combined to createthis consolidated action. On several cross-motions forsummary judgment, the district court held that * * *Hollier's tort claims are governed under DOHSA, notOCSLA.
* * * Hollier's heirs ... appeal, arguing that OCSLA shouldgovern Hollier's tort claims.
* * *
DISCUSSION
OCSLA extends the laws and jurisdiction of the United
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States to the seabed and artificial islands on the outerContinental Shelf, including offshore platforms. 43 U.S.C.§ 1333(a)(1). The laws of the adjacent state also apply, tothe extent they are not inconsistent with federal law. Id. §1333(a)(2)(A). The state adjacent to the W&T platforminvolved in the helicopter accident is Louisiana, soLouisiana law would apply if OCSLA governs.... * * *
We use a three-part test to determine whether OCSLAapplies:
(1) The controversy must arise on a situs covered byOCSLA (i.e. the subsoil, seabed, or artific[i]al structurespermanently or temporarily attached thereto). (2) Federalmaritime law must not apply of its own force. (3) The statelaw must not be inconsistent with Federal law.
Union Tex. Petroleum Corp. v. PLT Eng'g, Inc., 895 F.2d1043, 1047 (5th Cir.1990). The parties do not dispute thatthe controversy arose on an offshore platform and thatLouisiana law is consistent with federal law. * * *FN1
FN1. As no appeal was taken on theseissues, we express no opinion as towhether parts 1 and 3 of the test wereactually met in this case.FN2. The contract contains a choice oflaw provision stating that maritime lawwill govern, but parties cannot chooseto be governed by maritime law whenOCSLA applies. See TexacoExploration & Prod., Inc. v. AmClydeEngineered Prods. Co., Inc., 448 F.3d760, 772 & n. 8 (5th Cir.2006).
* * *B. Tort Claims
The district court held that DOHSA governed Hollier's tortclaims. DOHSA provides a right of action for any deathoccurring on the high seas beyond a marine league fromthe shore, or, in the case of a commercial aviationaccident, more than 12 nautical miles from shore. See 46U.S.C. § 761 (2000). OCSLA applies to accidentsFN3
“actually occurring” on oil platforms, Rodrigue v. AetnaCas. & Sur. Co., 395 U.S. 352, 366, 89 S.Ct. 1835, 23L.Ed.2d 360 (1969), and applies state law as surrogatefederal law on those platforms. 43 U.S.C. § 1333.
FN3. DOHSA was amended in October2006. See 46 U.S.C. § 30301. Becausethe events at issue in this case occurredin 2004, we apply the version ofDOHSA that was in effect at the time.
“[I]n Rodrigue, the Court held that an admiralty actionunder DOHSA does not apply to accidents ‘actually
occurring’ on these artificial islands, and that DOHSAtherefore does not preclude the application of state law asadopted federal law through OCSLA to wrongful deathactions arising from accidents on offshore platforms.”Tallentire, 477 U.S. at 217-18, 106 S.Ct. 2485 (citingRodrigue, 395 U.S. at 366, 89 S.Ct. 1835). This is because“Congress did not intend ... that these island-platforms bewithin admiralty's jurisdiction.” In re Dearborn MarineServ., Inc., 499 F.2d 263, 272-73 (5th Cir.1974).
The helicopter was attempting to land on the deck of theoil platform; the pilot then tried to reposition it, and in sodoing hit a boat landing; after hitting the helipad andspinning wildly, the helicopter fell into the sea with itsoccupants. This accident “actually occurred” on the oilplatform itself and OSCLA therefore applies. It does notimpact our analysis that Hollier fell into the sea after theaccident occurred on the platform. See Smith v. Pan AirCorp., 684 F.2d 1102, 1110 (5th Cir.1982) (“[W]e haveapplied OCSLA and, consequently, state law, to incidentsin which platform workers who were the victims of tortsoriginating on these artificial islands were not actuallyinjured or killed until they fell, jumped, or were pushedinto the surrounding seas.”); Dearborn, 499 F.2d at 273FN4
(“Congress did not intend that application of state lawnecessarily should cease at the physical boundaries of theplatform. The same concerns may be equally applicable toaccidents fortuitously consummated in the surroundingsea.”).
FN4. Smith applied maritime law to ahelicopter pilot's tort claims for ahelicopter crash that occurred over thehigh seas. 684 F.2d at 1112. In Smith, aplatform crane and its crane ballextended out over the Gulf of Mexico;the helicopter collided with the craneball and crashed into the Gulf. Id. at1105. Smith relied on two facts to findmaritime jurisdiction: (1) that theaccident occurred on or over the highseas, rather than on the platform, and(2) that the decedent was a helicopterpilot engaged in a maritime-typefunction, rather than a platform worker.See id. at 1105, 1110-11. Neither ofthese facts are present in this case,where the accident occurred on, orslightly over, the platform itself, andwhere the victim was a platformworker, rather than the helicopter pilot.
CONCLUSION
We AFFIRM the district court's grant of partial summaryjudgment in favor of W&T finding that OCSLA applies tothe contractual indemnity and contribution claims. We
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REVERSE the district court's grant of partial summaryjudgment in favor of Omni finding that DOHSA governsHollier's tort claims, and REMAND this case to the districtcourt for further proceedings consistent with this opinion.
OUTER CONTINENTAL SHELF LANDS ACT
33 U.S.C. § 1333. Laws and regulations governing lands
* * *(b) Longshore and Harbor Workers' Compensation Act applicable; definitions
With respect to disability or death of an employee resulting from any injury occurring as the result of operationsconducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transportingby pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outerContinental Shelf, compensation shall be payable under the provisions of the Longshore and Harbor Workers'Compensation Act [33 U.S.C.A. § 901 et seq.]. For the purposes of the extension of the provisions of theLongshore and Harbor Workers' Compensation Act under this section--
(1) the term "employee" does not include a master or member of a crew of any vessel, or an officer or employeeof the United States or any agency thereof or of any State or foreign government, or of any political subdivisionthereof;
(2) the term "employer" means an employer any of whose employees are employed in such operations; and(3) theterm "United States" when used in a geographical sense includes the outer Continental Shelf and artificial islandsand fixed structures thereon.
Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680, 2012 WL 75045 (Jan. 11, 2012)
The OSCLA extends the provisions of the LHWCA to the “disability or death of an employee resultingfrom any injury as a result of operations conducted on the Outer Continental Shelf.” Id. at 687. Courts were spliton the interpretation of this provision until the Supreme Court’s recent decision in Pacific Operators Offshore, LLPv. Valladolid. Id. Therein, the Court affirmed the Ninth Circuit’s interpretation of this provision, holding that theclaimant must establish a “substantial nexus” between the injury and extractive operations on the shelf to qualifyfor workers’ compensation benefits under OCSLA. Id. at 691. The injured employee must “establish a significantcausal link between the injury that he suffered and his employer’s on-OCS operations conducted for the purposeof extracting natural resources from the OCS. The Court stated this would be a fact-specific inquiry, although itexpected “employees injured while performing tasks on the OCS will regularly satisfy the test.” Id. at 691.
Additionally, the Court stated there is no indication in the text of OCSLA to exclude OCS workers fromLWHCA coverage when they are also eligible for state benefits. Id. at 689.33 U.S.C. § 1349. Citizens suits, jurisdiction and judicial review
* * *(b) Jurisdiction and venue of actions
(1) Except as provided in subsection (c) of this section, the district courts of the United States shall havejurisdiction of cases and controversies arising out of, or in connection with (A) any operation conducted on theouter Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil andseabed of the outer Continental Shelf, or which involves rights to such minerals, or (B) the cancellation,suspension, or termination of a lease or permit under this subchapter. Proceedings with respect to any such case
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or controversy may be instituted in the judicial district in which any defendant resides or may be found, or in thejudicial district of the State nearest the place the cause of action arose.
C. “Other” Workers
144 F.3d 332
GREENv.
VERMILION CORPORATIONNo. 97-30782
June 18, 1998
PATRICK E. HIGGINBOTHAM, Circuit Judge
We are called to interpret a heretofore unconstruedprovision of the Longshore and Harbor WorkersCompensation Act, viz., the "club/camp" exclusiondelineated at 33 U.S.C. § 902(3)(B). Our reading of thestatute and its legislative history compels us to concludethat Green falls into the category of employees for whichCongress drafted the "club/camp" exception. WeAFFIRM the judgment of the district court denyingLHWCA coverage to Green. We REVERSE thejudgment of the district court dismissing Green's generalmaritime negligence and unseaworthiness claims andREMAND for further proceedings.
IThe Vermilion Corporation employed Green at a "duckcamp" it operated pursuant to its contract with the BayouClub. The camp is located on marsh land near a privatecanal off a bayou. Besides a duck camp, Vermilion usesthe post as a "headquarters" for its operations in this area,which include harvesting and selling alligator eggs,trapping and selling alligators, fur trapping, shrimping, andrice farming.
During duck season, which is approximately three monthslong, Green worked as both a cook and watchman at thecamp. During the rest of the year, Green served as awatchman, performed general maintenance on the campand usually cooked a lunch meal for any Vermilionemployees working in the area. Green worked only at thecamp and was required to stay there from Monday at 8:00a.m. to noon on Friday, except for duck season when hishours were longer. Green got to the camp via a boat andusually brought a week's worth of groceries with him onMonday morning. Green also occasionally assisted inmooring and unloading supply boats that docked at thecamp.
On May 10, 1994, Lee Guidry, a Vermilion employee, waspiloting THE M/V GADWALL, a vessel under eighteen
tons net. Guidry radioed Green at the camp and askedhim to assist in tying up the vessel and in unloadingsupplies and equipment. While mooring the vessel, Greenboarded THE M/V GADWALL, slipped and fell on thedeck. Green sustained injuries to his neck and back.
Green filed suit against Vermilion alleging claims underthe LHWCA and general maritime law for negligence andunseaworthiness. The district court first grantedVermilion's motion for summary judgment dismissingGreen's LHWCA claim because Green fell under the"vessel under eighteen tons net" employee exception. Then, after further briefing by the parties, the district courtgranted Vermilion's motion for summary judgment andreconsideration, holding that Green was excluded fromLHWCA coverage by the "club/camp" employeeexception. The district court dismissed the remainder ofGreen's claims on the grounds that the Louisiana Worker'sCompensation Act was his exclusive remedy.
Green timely appealed the district court's judgments. Wehave jurisdiction under 28 U.S.C. § 1291.
IIThis court reviews a grant of summary judgment de novoapplying the same standard as did the district court. Dawkins v. Sears Roebuck & Co., 109 F.3d 241, 242 (5thCir.1997).
In order to qualify for coverage under the LHWCA, aworker must pass both a situs and a status test. Directorv. Perini North River Assocs., 459 U.S. 297, 314, 103S.Ct. 634, 645, 74 L.Ed.2d 465 (1983). Green satisfiesthe situs test since he was injured upon navigable waters. See id. With respect to the status test, we will assumearguendo that Green was engaged in "maritimeemployment", see 33 U.S.C. § 902(3); Randall v. ChevronU.S.A., Inc., 13 F.3d 888, 897 (5th Cir.), cert. denied, 513U.S. 994, 115 S.Ct. 498, 130 L.Ed.2d 408 (1994), since wethink it clear that he falls within the "club/camp" exclusionfrom LHWCA coverage.
There are exceptions to the term "employee" under theLHWCA. See 33 U.S.C. § 902(3)(A)-(H). In particular,§ 902(3)(B) provides:
The term "employee" means any person engaged inmaritime employment, ... but such term does notinclude-- ....
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(B) individuals employed by a club, camp, recreationaloperation, museum, or retail outlet; .... if individuals described in clauses (A) through (F) aresubject to coverage under a State workers' compensationlaw. Id.
Interpretation of this provision is an issue of firstimpression in this circuit.
The district court held that Green fell within the"club/camp" exclusion because he performed all of hisduties at the duck camp. The lower court foundunpersuasive Green's argument that he was employed "by"the Vermillion Corporation, not a camp, since thatconstruction of § 902(3)(B) renders the exceptionmeaningless in today's world of business organizations.
Green repeats this argument to us. Green contends thatinterpretation of § 902(3)(B) is controlled by the nature ofthe employer's business and not the employee's activities.For support, Green points to the House Documentaccompanying the 1984 Amendments that added the"club/camp" exception to the LHWCA. The HouseDocument states that the "exclusions from the definitionof 'employee' contained in the amendments ... are intendedto be narrowly construed" and that paragraph (B) excludesemployees "because of the nature of the employingenterprise, as opposed to the exclusions in paragraph [ (A)], which are based on the nature of the work which theemployee is performing." H.R.Doc. No. 98-570, Part I98th Cong., 2nd Sess. 1984 U.S.C.C.A.N. (98 Stat. 1639)2734, 2736. Because Vermillion is involved in sundrybusiness ventures, including maritime activities, Greenclaims that his employer was a multi-faceted corporation,not a "camp."
"As with any statutory question, we begin with thelanguage of the statute." In re Greenway, 71 F.3d 1177,1179 (5th Cir.), cert. denied, 517 U.S. 1244, 116 S.Ct.2499, 135 L.Ed.2d 191 (1996). Green makes much ofCongress's use of "by" in the statute and notes thatCongress did not use the phrase "employed at a club [or]camp." Contrary to Green, we do not think that the word"by" bears such weight. Rather, the key words in theprovision are those designating the concerns theemployees of which are excluded from LHWCA coverage(e.g., club, camp, restaurant, museum). Under this focus,it is evident that Green worked exclusively to further anoperation which comports with the plain meaning of theterms "camp" and "club." The Vermillion facilities hadall the trappings of a typical southern Louisiana huntingcamp. See R. Vol. 2 at 281. Though it used the campthroughout the year, the primary reason Vermillionmaintained the facility was to fulfill its contractualobligation to the Bayou Club to provide a duck camp forthe waterfowl hunting season. In fact, a Vermilion officer
testified that but for the lease to the Bayou Club,Vermillion would not have conducted any of its operationsfrom this site and would not have had any need for Green'sservices. See R. Vol. 2 at 287-88. Since Green wasemployed solely to render services to promote andmaintain a duck camp, we hold that he is excluded fromLHWCA coverage under § 902(3)(B).
Green's reliance upon the legislative history of the 1984Amendments does not alter our conclusion. UnlikeGreen, we do not believe that in construing the"club/camp" exception, we are limited to considering onlythe nature of the employer's enterprise. The HouseDocument to which Green refers expressly states thatbusinesses falling under paragraph (B) may haveemployees that should remain covered under the Act"because of the nature of the work which they do, or thenature of the hazards to which they are exposed."H.R.Doc. No. 98-570, Part I 98th Cong., 2nd Sess. 1984U.S.C.C.A.N. (98 Stat. 1639) 2737. By the same token,we believe the opposite is true-- clubs and camps mayemploy individuals who should not be covered under theLHWCA because their job responsibilities do not, or onlyminutely, involve maritime activities and they are notexposed to hazards associated with traditional maritimeactivities. The record reflects that Green's duties were tobe a cook, watchman, and general repairman of the campbuildings. We do not consider Green to be an employeefor which LHWCA benefits were intended.
IIIEven if he is not entitled to LHWCA benefits, Greenargues that the district court erred in dismissing his generalmaritime claims against Vermilion for negligence andunseaworthiness. Vermilion disagrees based on its beliefthat the Louisiana Workers' Compensation Act is Green'sexclusive remedy.
AThe first step in our analysis of this issue is to determinewhether there is admiralty jurisdiction. Admiraltyjurisdiction requires that the tort have a maritime localityand that "the facts and circumstances of the claim mustbear a significant relationship to traditional maritimeactivity." Thibodaux v. Atlantic Richfield Co., 580 F.2d841, 846 n. 14 (5th Cir.1978), cert. denied, 442 U.S. 909,99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). The situs test ismet because Green was injured while on navigable waters. See Kelly v. Smith, 485 F.2d 520, 525 (5th Cir.1973), cert.denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558(1974). To determine whether there is a sufficient nexusto maritime activity, we examine four factors: thefunctions and roles of the parties; the types of vehiclesand instrumentalities involved; the causation and the typeof injury; and traditional concepts of the role of admiraltylaw. See Kelly, 485 F.2d at 525. In applying this test, wehave noted that "[a]dmiralty has traditionally been
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concerned with furnishing remedies for those injuredwhile traveling navigable waters", id. at 526, and that "therelationship to traditional maritime activity required forthe invocation of admiralty jurisdiction" may be presentthough "the threshold requirement of maritimeemployment necessary to establish coverage under theLHWCA" may not be met. Thibodaux, 580 F.2d at 846.
Applying the four factors, we find that Green was injuredin the course of his employment while performing thetraditional maritime activity of mooring a vessel; Vermilion owned the vessel on which Green fell; thevehicle involved was a vessel routinely employed onnavigable waters; the alleged cause of Green's injury wasan unkept deck; Green's injury was not uncommon in themaritime context; and "upholding maritime jurisdictiondoes not stretch or distort long evolved principles ofmaritime law," Kelly, 485 F.2d at 526, since federal courtshave long recognized unseaworthiness and generalmaritime negligence claims. These facts provide asufficient nexus to maritime activity for us to assertadmiralty jurisdiction over this case. See King v.Universal Elec. Constr., 799 F.2d 1073, 1075 (5thCir.1986); Thibodaux, 580 F.2d at 846 n. 14; Kelly,485F.2d at 526.
BWith respect to the merits, we note that an earlier panel ofthis court was "squarely presented with the issue ofwhether an exclusive remedy provision in a stateworkmen's compensation statute can operate to deprive aparty of a cause of action afforded by federal maritimelaw." Thibodaux, 580 F.2d at 846. The panel in that caseconcluded that relevant Supreme Court and Fifth Circuitprecedent made "it clear that an exclusive remedyprovision in a state workmen's compensation law cannotbe applied when it will conflict with maritime policy andundermine substantive rights afforded by federal maritimelaw." Id. at 847. Thus, the court specifically held that"the exclusive remedy provision of the LouisianaWorkmen's Compensation Act" does not preclude aplaintiff from pursuing a claim for wrongful deathoccasioned in state territorial waters since the SupremeCourt had expressly recognized such a suit underadmiralty jurisdiction. Id. at 847; see also Moragne v.States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26L.Ed.2d 339 (1970) (creating wrongful death claim inadmiralty law). A later panel of this court strengthenedThibodaux by holding that irrespective of whether thedefendant in the maritime tort suit is the plaintiff's"statutory employer," like in Thibodaux, or his "actualemployer," federal maritime law overrides the exclusiveremedy provision of the Louisiana Workers'Compensation Act in each case. See King, 799 F.2d at1074.
The Eleventh Circuit appears to have charted a differentcourse as it barred a plaintiff from asserting a negligenceclaim under general maritime law where an exclusivityprovision of a state workers' compensation schemeapplied. See Brockington v. Certified Elec., Inc., 903 F.2d1523, 1533 (11th Cir.1990), cert. denied, 498 U.S. 1026,111 S.Ct. 676, 112 L.Ed.2d 668 (1991). That circuitdistinguishes Thibodaux and King on the grounds that theyapply only to wrongful death actions, a tort for which theSupreme Court expressly recognized admiralty jurisdictionin order to provide national uniformity. We are notpersuaded that the Eleventh Circuit ruling conflicts withour precedent with respect to a plaintiff's ability to asserta unseaworthiness claim in the face of an exclusiveremedy provision of a state workers' compensation statute.
Though Thibodaux and King involved wrongful deathclaims, their holdings were based on the Supreme Court'spronouncement that " '[w]hile states may sometimessupplement federal maritime policies, a state may notdeprive a person of any substantial admiralty rights asdefined in controlling acts of Congress or by interpretativedecisions of this Court.' " Thibodaux, 580 F.2d at 846(quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406,409-10, 74 S.Ct. 202, 205, 98 L.Ed. 143 (1953)). As theEleventh Circuit admitted in Brockington, the SupremeCourt has expressly authorized a claim forunseaworthiness in admiralty jurisdiction. See SeasShipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90L.Ed. 1099 (1946); Brockington, 903 F.2d at 1531. Thatunseaworthiness is a "right peculiar to the law ofadmiralty" allowed the Brockington court to distinguishthis court's opinion in Brown v. ITT Rayonier, Inc., 497F.2d 234 (5th Cir.1974), which "disregard[ed] the stateworker's compensation statute in favor of permitting anaction in general maritime law," from the case before it inwhich the plaintiff was asserting a negligence claim. Brockington, 903 F.2d at 1531. Since both the wrongfuldeath claim alleged in Thibodaux and King and theunseaworthiness claim asserted here and in Brown tracetheir lineage to Supreme Court explications of admiraltylaw, we see no reason to give one more preemptive forcethan the other. With this principle, we think the EleventhCircuit would agree. Thus, following the principlesestablished in Thibodaux and King, we hold that theexclusive remedy provision of the Louisiana Workers'Compensation Act does not preclude Green from assertinghis claim for unseaworthiness.
Our holding is supported by the history of the LHWCAand its treatment of Sieracki claims. In enacting the 1972Amendments to the LHWCA, Congress increased thestatutory benefits to longshoremen in exchange for thetermination of their claims for breach of the warranty ofseaworthiness. See 33 U.S.C. § 905(a); Aparicio v. SwanLake, 643 F.2d 1109, 1117 (5th Cir.1981). We have held,however, that longshoremen who are not entitled to
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LHWCA benefits may still pursue their general maritimeclaims against the vessel owner because they did notreceive the benefits of the bargain of the 1972Amendments. See id. at 1118 (recognizing "pockets ofSieracki seamen remaining after the 1972 amendments" tothe LHWCA); Cormier v. Oceanic Contractors, Inc., 696F.2d 1112, 1113 (5th Cir.) (Higginbotham, J.) (followingAparicio that § 905 "did not deny the warranty ofseaworthiness to workers not covered by the LHWCA"),cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94(1983). Vermilion seeks to distinguish these cases on theground that they did not involve a situation, like in theinstant case, where the longshoreman was entitled tobenefits under a state workers' compensation schemewhich made the state compensation benefits theemployee's exclusive remedy against his employer,including any claim under a dual capacity theory. SeeLa.Rev.Stat. § 23:1032(A) (Supp.1998).
We find Vermillion's distinction nebulous. Though Greenis entitled to seek relief under the Louisiana Workers'Compensation Act, that option is not exclusive. See SunShip, Inc. v. Pennsylvania, 447 U.S. 715, 722, 100 S.Ct.2432, 2437-38, 65 L.Ed.2d 458 (1980) (finding concurrentfederal and state jurisdiction for maritime employeescovered by both the LHWCA and a state workers'compensation scheme). The 1972 Amendments to theLHWCA, "which Congress enacted to abolish the Sierackiremedy, [do] not apply to maritime workers who are notwithin the coverage of the LHWCA." Aparicio, 643 F.2dat 1116. Where the LHWCA does not apply, we refuse toexpose maritime workers to the variegated state workers'compensation schemes, especially where Congress hasexpressly found that "most State Workmen'sCompensation laws provide benefits which areinadequate." H.R.Doc. 92-1441, 92th Cong., 2nd Sess.1972 U.S.C.C.A.N. 4698, 4707; see also Sun Ship, 447U.S. at 723 n. 5, 100 S.Ct. at 2438 n. 5. Green maypursue his Sieracki claim against Vermillion despite theavailability of relief under the Louisiana Workers'Compensation Act.
This court's decision in Kent v. Shell Oil Co., 286 F.2d 746(5th Cir.1961), does not require a contrary result. In thatcase, Kent, a truck driver who performed all of his jobduties on land, was injured while unloading pipe from atruck onto a barge. See id. at 748-49. Kent did not pleador allege a claim of unseaworthiness until he requested ajury instruction on this theory of liability. See id. at749-50. The appellate court affirmed the district court'srefusal to instruct the jury on seaworthiness. See id. at750. Though one of the reasons for its decision was thepresence of the exclusive remedy provision of theLouisiana Workers' Compensation Act, see id. at 751-52,we think Kent is factually and legally distinct from thecase at bar.
In Kent, the court gave special significance to the fact thatKent was solely a land-based worker who did not performany maritime activity and was injured on land. See id. at751. The court analyzed the case as one involving a landtort and controlled by local law. See id. Given the weaknexus between the facts and circumstances of Kent's claimwith traditional maritime activity, we doubt if admiraltyjurisdiction would even lie in such a case under our currentprecedent. See Kelly, 485 F.2d at 525-26. In addition, noevidence supported Kent's unseaworthiness claim. SeeKent, 286 F.2d at 752-53. Here, admiralty jurisdictionlies as Green was injured upon navigable waters whileperforming the traditional maritime activity of mooring avessel in preparation for unloading cargo. Green alsopresented evidence suggesting that the deck of the vesselwas in disrepair. We limit Kent, a pre-Kelly case, to itsfacts and do not ascribe to it the power to foreclose theassertion of an unseaworthiness claim where a stateworkers' compensation scheme purports to be a plaintiff'sexclusive remedy.
CWe next turn to whether Green may assert his generalmaritime negligence claim against Vermilion, hisemployer, despite the exclusivity provision of theLouisiana Workers' Compensation Act. We examineGreen's general maritime negligence claim separately fromhis unseaworthiness claim. A general maritime negligenceclaim has a Supreme Court heritage, see Leathers v.Blessing, 105 U.S. (15 Otto) 626, 26 L.Ed. 1192 (1881)(recognizing general maritime negligence claim); Pope &Talbot, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (same),but is not as unique to admiralty law as unseaworthiness.See 1 Thomas J. Schoenbaum, Admiralty and MaritimeLaw § 5-2 to § 5-4 (2d ed. 1994) (discussing fundamentalnegligence concepts in maritime context); see also Cox v.Esso Shipping Co., 247 F.2d 629, 637 (5th Cir.1957)(delineating differences between unseaworthiness andgeneral maritime negligence claims). In addition, stateshave a greater interest in overriding negligence claims ofan employee against his employer via its workers'compensation statute than a claim of unseaworthinesssince states enacted employment compensation schemesto preclude precisely these types of suits. See Ellis v.Normal Life, 638 So.2d 422, 426-27 (La.Ct.App.1994).
We begin our discussion by noting that the Supreme Courtadmittedly has been "unable to give any guiding, definiterule to determine the extent of state power" in themaritime field with respect to providing remedies toinjured workers. Davis v. Department of Labor, 317 U.S.249, 253, 63 S.Ct. 225, 227, 87 L.Ed. 246 (1942); see alsoHahn v. Ross Island Sand & Gravel Co., 358 U.S. 272,274, 79 S.Ct. 266, 268, 3 L.Ed.2d 292 (1959) (Stewart, J.,dissenting) (observing the Supreme Court's struggle withharmonizing federal and state compensation schemes inthe maritime area); Southern Pac. Co. v. Jensen, 244 U.S.
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205, 216, 37 S.Ct. 524, 529, 61 L.Ed. 1086 (1916) ( "[I]twould be difficult, if not impossible, to define withexactness just how far the general maritime law may bechanged, modified, or affected by state legislation."). There are conflicting lines deciding the force to be givenan exclusive remedy provision of a state workers'compensation statute in the maritime context. See Davis,317 U.S. at 253, 63 S.Ct. at 227 (listing cases).
One line of cases unequivocally holds that state workers'compensation statutes can not preclude an employee fromasserting a general maritime negligence claim against hisemployer for injuries sustained on navigable waters duringthe course of his employment. See Southern Pac., 244U.S. at 217, 37 S.Ct. at 529 (holding the New YorkWorkers' Compensation Act unconstitutional to the extentit bars an employee from alleging a general maritimenegligence claim against his employer); Clyde S.S. Co. v.Walker, 244 U.S. 255, 257, 37 S.Ct. 545, 61 L.Ed. 1116(1917) (following Jensen ); Knickerbocker Ice Co. v.Stewart, 253 U.S. 149, 163-64, 40 S.Ct. 438, 441, 64 L.Ed.834 (1920) (striking down Congress's first attempt topermit application of state workers' compensation schemesin maritime field because Congress may not delegate itspower to alter, amend, or revise the maritime law to thestates); Washington v. W.C. Dawson & Co., 264 U.S. 219,227-28, 44 S.Ct. 302, 305-06, 68 L.Ed. 646 (1924)(invalidating Congress's second attempt to incorporatestate workers' compensation statutes into federal maritimelaw); Gonsalves v. Morse Dry Dock & Repair Co., 266U.S. 171, 172, 45 S.Ct. 39, 39, 69 L.Ed. 228 (1924)(approving assertion of general maritime negligence claimby employee against his employer); Robins Dry Dock &Repair Co. v. Dahl, 266 U.S. 449, 457, 45 S.Ct. 157, 69L.Ed. 372 (1924) (finding erroneous a jury instructionwhich permitted the jury to consider state law indetermining whether employer was negligent because"[t]he rights and liabilities of the parties arose out of anddepended upon the general maritime law and could not beenlarged or impaired by the state statute"); Northern Coal& Dock Co. v. Strand, 278 U.S. 142, 147, 49 S.Ct. 88, 90,73 L.Ed. 232 (1928) (reversing judgment awarding stateworkers' compensation benefits to widow of deceasedstevedore because only federal maritime law may provideremedies); John Baizley Iron Works v. Span, 281 U.S.222, 230-32, 50 S.Ct. 306, 307-08, 74 L.Ed. 819 (1930)(denying workers' compensation benefits to shiprepairman injured upon navigable waters since state lawmay not modify rights under admiralty law); Employers'Liab. Assurance Corp. v. Cook, 281 U.S. 233, 236, 50S.Ct. 308, 309, 74 L.Ed. 823 (1930) (precluding stateworkers' compensation award because "State lacked powerto prescribe the rights and liabilities of the parties growingout of the accident"); Nogueira v. New York, New Haven& Hartford R.R. Co., 281 U.S. 128, 138, 50 S.Ct. 303,306, 74 L.Ed. 754 (1930) (commenting that "had thepetitioner been engaged in intrastate commerce, his case
still would have been within the maritime jurisdiction ofthe Federal courts, and he would have been denied thebenefits of the state compensation law"); Spencer Kellogg& Sons, Inc. v. Hicks, 285 U.S. 502, 513, 52 S.Ct. 450,453, 76 L.Ed. 903 (1932) ("The workmen's compensationlaw of New Jersey, the purpose of which was to supersedethe common law redress in tort cases and statutory rightsconsequent upon death by wrongful act, and to substitutea commuted compensation for injury or death of anemployee, irrespective of fault, is not applicable to theinjuries and deaths under consideration.").
This line of precedent is itself supported by cases refusingto subordinate federal admiralty principles to the dictatesof state law. See e.g., The Key City, 81 U.S. (14 Wall.)653, 660, 20 L.Ed. 896 (1871) (stating that doctrine oflaches, not state statutes of limitations, apply to suitsenforcing maritime liens); Workman v. City of New York,179 U.S. 552, 560, 21 S.Ct. 212, 215, 45 L.Ed. 314 (1900)("[I]t becomes manifest that the decisions of this courtoverthrow the assumption that the local law or decisionsof a State can deprive of all rights to relief, in a case whereredress is afforded by the maritime law and is sought to beavailed of in a cause of action maritime in its nature anddepending in a court of admiralty of the United States."); Atlantic Transp. Co. v. Imbrovek, 234 U.S. 52, 61-63, 34S.Ct. 733, 735-36, 58 L.Ed. 1208 (1914) (recognizingadmiralty jurisdiction over stevedore's negligence claimagainst employer for injuries sustained while on navigablewaters); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372,382, 38 S.Ct. 501, 503, 62 L.Ed. 1171 (1918) ("[N]o Statehas power to abolish the well recognized maritime ruleconcerning measure of recovery and substitute therefor thefull indemnity rule of the common law."); Union Fish Co.v. Erickson, 248 U.S. 308, 312-14, 39 S.Ct. 112, 113, 63L.Ed. 261 (1919) (refusing to void maritime contract forfailure to comply with state statutes of frauds); Kossick v.United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 894, 6L.Ed.2d 56 (1961) (same).
Other cases run directly contrary to the authorities supraas they purport to hold that the exclusive remedy provisionof a state workers' compensation statute precludes anemployee from asserting a general maritime negligenceclaim against his employer. See Grant Smith-Porter Co.v. Rohde, 257 U.S. 469, 477, 42 S.Ct. 157, 158-59, 66L.Ed. 321 (1922) (enforcing exclusive remedy provisionof state workers' compensation statute so as to bar anymaritime claim); State Indus. Comm'n v. NordenholtCorp., 259 U.S. 263, 276, 42 S.Ct. 473, 475, 66 L.Ed. 933(1922) (affirming award of workers' compensation benefitsto widow of longshoremen killed while unloading a vesselon navigable waters because employment contract was notmaritime in nature); Millers' Indem. Underwriters v.Braud, 270 U.S. 59, 64-65, 46 S.Ct. 194, 195, 70 L.Ed.470 (1926) (concluding that state workers' compensationstatute's "exclusive features abrogate the right to resort to
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the admiralty court which otherwise would exist"); T.Smith & Son, Inc. v. Taylor, 276 U.S. 179, 181, 48 S.Ct.228, 229, 72 L.Ed. 520 (1928) (Louisiana workers'compensation law provided the exclusive remedy becausethe longshoreman was killed while standing on land andnot on navigable waters); Alaska Packers' Assoc. v.Industrial Accident Comm'n, 276 U.S. 467, 468-69, 48S.Ct. 346, 346- 47, 72 L.Ed. 656 (1928) (affirming awardof workers' compensation benefits as employee's soleremedy against employer); Sultan Ry. & Timber Co. v.Department of Labor & Indus., 277 U.S. 135, 137, 48S.Ct. 505, 506, 72 L.Ed. 820 (1928) (rejectingconstitutional attack on workers' compensation statuterequiring companies engaged in maritime activities to payinto state fund); P.J. Carlin Constr. Co. v. Heaney, 299U.S. 41, 44, 57 S.Ct. 75, 76, 81 L.Ed. 27 (1936) (refusingto allow general maritime law claim where workers'compensation statute applied).
Though there is an apparent rift in precedent, the SupremeCourt harmonized its cases on the grounds that the stateworkers' compensation statutes could only apply where themaritime tort involved matters of local concern which hadremote or no relation to navigation or maritime commerce.See Baizley, 281 U.S. at 230-31, 50 S.Ct. at 307-08;Perini, 459 U.S. at 306, 103 S.Ct. at 641 (tracing historyof "maritime but local" doctrine). In fact, the constanttheme of these Supreme Court opinions is that theuniformity of admiralty law must be preserved and thatstate law may be applied only where it works no "materialprejudice to the essential features of the general maritimelaw." Baizley, 281 U.S. at 230, 50 S.Ct. at 307. Thatuniformity is not to be sacrificed to accommodate statelaw is a fundamental premise of admiralty jurisdiction. See Grant Gilmore & Charles L. Black, Jr., The Law ofAdmiralty § 6-58 to § 6-61 (2d Ed. 1975). In one of itsearliest pronouncements on the interplay between federaland state law in the maritime context, the Supreme Courtstated:
One thing, however, is unquestionable; the Constitutionmust have referred to a system of law coextensive with,and operating uniformly in, the whole country. Itcertainly could not have been the intention to place therules and limits of maritime law under the disposal andregulation of the several States, as that would havedefeated the uniformity and consistency at which theConstitution aimed on all subjects of a commercialcharacter affecting the intercourse of the States witheach other or with foreign states.
The Lottawanna, 88 U.S. (21 Wall.) 558, 575, 22 L.Ed.654 (1874). This is not to say that state law may play nopart in the maritime arena; rather, the flip side of thisprinciple is that "[w]ith respect to maritime torts ... theState may modify or supplement the maritime law ... whenthe state action is not hostile to the characteristic features
of the maritime law or inconsistent with federallegislation." Just v. Chambers, 312 U.S. 383, 388, 61S.Ct. 687, 691, 85 L.Ed. 903 (1941). For example, priorto its decision in Moragne, the Supreme Court consistentlygave effect to state statutes providing a wrongful deathaction to the representatives of maritime workers killedduring the course of employment. See id. at 388-89, 61S.Ct. at 691-92; see also Wilburn Boat Co. v. Fireman'sFund Ins. Co., 348 U.S. 310, 321, 75 S.Ct. 368, 374-75, 99L.Ed. 337 (1955) (leaving the regulation of marineinsurance to the states).
Our review of the Supreme Court's admiraltyjurisprudence assures us of the soundness of our earlierholdings in Thibodaux and King. As we noted supra,Thibodaux 's holding was driven by the Supreme Court'sdecision in Pope which iterated the supremacy of federaladmiralty rights over state law mandates where uniformityconcerns were present. See Thibodaux, 580 F.2d at 846. Contrary to the Eleventh Circuit's view, see Brockington,903 F.2d at 1531, we do not read Thibodaux and King tobe limited to wrongful death actions. We see noprincipled basis for distinguishing between an employee'snegligence claim against his employer for wrongful deathand an employee's negligence claim against his employerwhere the injury stops short of a fatality. The key factoris maintaining uniformity in admiralty law and preservingthe rights granted to maritime workers, not the degree ofharm the worker suffers. An action for negligence haslong been a vestige of general maritime law; subjecting itto the ebbs and flows of state legislation would disrupt theessential features of admiralty law. See Stanley Morrison,Workmen's Compensation and the Maritime Law, 38 YaleL.J. 472, 496 (1929). Fidelity to the Supreme Court's andour own precedent requires that we hold that the exclusiveremedy provision of the Louisiana Workers' CompensationAct does not preclude Green from asserting his generalmaritime negligence claim against Vermilion for thenon-fatal injuries he sustained during the course of hisemployment while upon navigable waters.
IVThe judgment of the district court denying GreenLHWCA benefits is AFFIRMED. The judgment of thedistrict court dismissing Green's unseaworthiness andgeneral maritime negligence claims is REVERSED. WeREMAND for proceedings not inconsistent with thisopinion.
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VI. GENERAL MARITIME TORT LAW
A. Negligence
79 S.Ct. 406
KERMARECv.
COMPAGNIE GENERALE TRANSATLANTIQUENo. 22
Argued Nov. 13, 1958Decided Feb. 24, 1959
Mr. Justice STEWART delivered the opinion of the Court.
On November 24, 1948, the respondent's vessel, the S. S.Oregon, was berthed at a pier in the North River, NewYork City. About noon on that day Joseph Kermarec cameaboard to visit Henry Yves, a member of the ship's crew. The purpose of the visit was entirely personal, to pay asocial call upon Yves and to give him a package to bedelivered to a mutual friend in France. In accordance withcustomary practice permitting crew members to entertainguests aboard the vessel, Yves had obtained a pass fromthe executive officer authorizing Kermarec to comeaboard. As he started to leave the ship several hours later,Kermarec fell and was injured while descending astairway.
On the theory that his fall had been caused by thedefective manner in which a canvas runner had beentacked to the stairway, Kermarec brought an action forpersonal injuries in the District Court for the SouthernDistrict of New York, alleging unseaworthiness of thevessel and negligence on the part of its crew. Federaljurisdiction was invoked by reason of the diversecitizenship of the parties, and a jury trial was demanded.
The district judge was of the view that the substantive lawof New York was applicable. Accordingly, he eliminatedthe unseaworthiness claim from the case and instructed thejury that Kermarec was 'a gratuitous licensee' who couldrecover only if the defendant had failed to warn him of adangerous condition within its actual knowledge, and onlyif Kermarec himself had been entirely free of contributorynegligence.
The jury returned a verdict in Kermarec's favor. Subsequently the trial court granted a motion to set theverdict aside and dismiss the complaint, ruling that therehad been a complete failure of proof that the shipownerhad actually known that the stairway was in a dangerousor defective condition. A divided Court of Appealsaffirmed. The opinion of that court does not make clear
whether affirmance was based upon agreement with thetrial judge that New York law was applicable, or upon adetermination that the controlling legal principles wouldin any event be no different under maritime law. 245 F.2d175. Certiorari was granted to examine both of theseissues. 355 U.S. 902, 78 S.Ct. 335, 2 L.Ed.2d 259.
The District Court was in error in ruling that the governinglaw in this case was that of the State of New York.Kermarec was injured aboard a ship upon navigablewaters. It was there that the conduct of which hecomplained occurred. The legal rights and liabilitiesarising from that conduct were therefore within the fullreach of the admiralty jurisdiction and measurable by thestandards of maritime law. See The Plymouth, 3 Wall. 20,18 L.Ed. 125; Philadelphia, Wilmington and BaltimoreRailroad Co. v. Philadelphia and Havre de Grace SteamTugboat Co., 23 How. 209, 215, 16 L.Ed. 433; TheCommerce, 1 Black 574, 579, 17 L.Ed. 107; The RockIsland Bridge, 6 Wall. 213, 215, 18 L.Ed. 753; TheBelfast, 7 Wall. 624, 640, 19 L.Ed. 266; Leathers v.Blessing, 105 U.S. 626, 630, 26 L.Ed. 1192; The AdmiralPeoples, 295 U.S. 649, 651, 55 S.Ct. 885, 886, 79 L.Ed.1633. If this action had been brought in a state court,reference to admiralty law would have been necessary todetermine the rights and liabilities of the parties. CarlislePacking Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct.475, 476, 66 L.Ed. 927. Where the plaintiff exercises theright conferred by diversity of citizenship to choose afederal forum, the result is no different, even though heexercises the further right to a jury trial. Whatever doubtmay once have existed on that score was effectively laidto rest by Pope & Talbot, Inc., v. Hawn, 346 U.S. 406,410--411, 74 S.Ct. 202, 204, 98 L.Ed. 143. It thusbecomes necessary to consider whether prejudice resultedfrom the court's application of the substantive law of NewYork.
In instructing the jury that contributory negligence onKermarec's part would operate as a complete bar torecovery, the district judge was clearly in error. The juryshould have been told instead that Kermarec's contributorynegligence was to be considered only in mitigation ofdamages. The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34L.Ed. 586; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406,408--409, 74 S.Ct. 202, 204. It is equally clear, however,that this error did not prejudice Kermarec. By returning averdict in his favor, the jury necessarily found thatKermarec had not in fact been guilty of contributorynegligence 'even in the slightest degree.'
The district judge refused to submit the issue of
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unseaworthiness to the jury for the reason that an actionfor unseaworthiness is unknown to the common law ofNew York. Although the basis for its action wasinappropriate, the court was correct in eliminating theunseaworthiness claim from this case. Kermarec was nota member of the ship's company, nor of that broadenedclass of workmen to whom the admiralty law has latterlyextended the absolute right to a seaworthy ship. SeeMahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455,88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85,66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v.Hawn, 346 U.S. 406, 74 S.Ct. 202. Kermarec was aboardnot to perform ship's work, but simply to visit a friend.
It is apparent, therefore, that prejudicial error occurred inthis case only if the maritime law imposed upon theshipowner a standard of care higher than the duty whichthe district judge found owing to a gratuitous licensesunder the law of New York. If, in other words, theshipowner owed Kermarec the duty of exercising ordinarycare, then upon this record Kermarec was entitled tojudgment, the jury having resolved the factual issues in hisfavor under instructions less favorable to him than shouldhave been given. Stated broadly, the decisive issue is thuswhether admiralty recognizes the same distinctionsbetween an invitee and a licensee as does the commonlaw.
It is a settled principle of maritime law that a shipownerowes the duty of exercising reasonable care towards thoselawfully aboard the vessel who are not members of thecrew. Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192;The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586;The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79L.Ed. 1633. But this Court has never determined whethera different and lower standard of care is demanded if theship's visitor is a person to whom the label 'licensee' canbe attached. The issue must be decided in the performanceof the Court's function in declaring the general maritimelaw, free from inappropriate common-law concepts. TheLottawanna, 21 Wall. 558, 22 L.Ed. 654; The Max Morris,137 U.S. 1, 11 S.Ct. 29.
The distinctions which the common law draws betweenlicensee and invitee were inherited from a culture deeplyrooted to the land, a culture which traced many of itsstandards to a heritage of feudalism. In an effort to dojustice in an industrialized urban society, with its complexeconomic and individual relationships, moderncommon-law courts have found it necessary to formulateincreasingly subtle verbal refinements, to createsubclassifications among traditional common-lawcategories, and to delineate fine gradations in the standardsof care which the landowner owes to each. Yet evenwithin a single jurisdiction, the classifications andsubclassifications bred by the common law have producedconfusion and conflict. As new distinctions have been
spawned, older ones have become obscured. Through thissemantic morass the common law has moved, unevenlyand with hesitation, towards 'imposing on owners andoccupiers a single duty of reasonable care in all thecircumstances.'
For the admiralty law at this late date to import suchconceptual distinctions would be foreign to its traditions ofsimplicity and practicality. The Lottawanna, 21 Wall. 558,at page 575, 22 L.Ed. 654. The incorporation of suchconcepts appears particularly unwarranted when it isremembered that they originated under a legal system inwhich status depended almost entirely upon the nature ofthe individual's estate with respect to real property, a legalsystem in that respect entirely alien to the law of the sea.We hold that the owner of a ship in navigable waters owesto all who are on board for purposes not inimical to hislegitimate interests the duty of exercising reasonable careunder the circumstances of each case. It follows that in thepresent case the judgment must be vacated and the caseremanded to the District Court with instructions toreinstate the jury verdict and enter judgment accordingly.
It is so ordered.
Judgment vacated and case remanded with instructions.
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B. Products Liability
106 S.Ct. 2295
EAST RIVER STEAMSHIP CORP.v.
TRANSAMERICA DELAVAL, INC.No. 84-1726
Argued Jan. 21, 1986Decided June 16, 1986
Justice BLACKMUN delivered the opinion of theCourt.
In this admiralty case, we must decide whether a causeof action in tort is stated when a defective productpurchased in a commercial transaction malfunctions,injuring only the product itself and causing purelyeconomic loss. The case requires us to considerpreliminarily whether admiralty law, which alreadyrecognizes a general theory of liability for negligence,also incorporates principles of products liability,including strict liability. Then, charting a coursebetween products liability and contract law, we mustdetermine whether injury to a product itself is the kindof harm that should be protected by products liability orleft entirely to the law of contracts.
IIn 1969, Seatrain Shipbuilding Corp. (Shipbuilding), awholly owned subsidiary of Seatrain Lines, Inc.(Seatrain), announced it would build the fouroil-transporting supertankers in issue--the T.T.Stuyvesant, T.T. Williamsburgh, T.T. Brooklyn, andT.T. Bay Ridge. Each tanker was constructed pursuantto a contract in which a separate wholly ownedsubsidiary of Seatrain engaged Shipbuilding.Shipbuilding in turn contracted with respondent, nowknown as Transamerica Delaval Inc. (Delaval), todesign, manufacture, and supervise the installation ofturbines (costing $1.4 million each, see App. 163) thatwould be the main propulsion units for the 225,000-ton,$125 million, ibid., supertankers. When each ship wascompleted, its title was transferred from the contractingsubsidiary to a trust company (as trustee for an owner),which in turn chartered the ship to one of the petitioners,also subsidiaries of Seatrain. Queensway Tankers, Inc.,chartered the Stuyvesant; Kingsway Tankers, Inc.,chartered the Williamsburgh; East River SteamshipCorp. chartered the Brooklyn; and Richmond Tankers,Inc., chartered the Bay Ridge. Each petitioner operatedunder a bareboat charter, by which it took full control ofthe ship for 20 or 22 years as though it owned it, withthe obligation afterwards to return the ship to the realowner. See G. Gilmore & C. Black, Admiralty §§ 4-1,4-22 (2d ed. 1975). Each charterer assumed
responsibility for the cost of any repairs to the ships. Tr. of Oral Arg. 11, 16-17, 35.
The Stuyvesant sailed on its maiden voyage in late July1977. On December 11 of that year, as the ship wasabout to enter the Port of Valdez, Alaska, steam beganto escape from the casing of the high-pressure turbine. That problem was temporarily resolved by repairs, butbefore long, while the ship was encountering a severestorm in the Gulf of Alaska, the high-pressure turbinemalfunctioned. The ship, though lacking its normalpower, was able to continue on its journey to Panamaand then San Francisco. In January 1978, anexamination of the high-pressure turbine revealed thatthe first-stage steam reversing ring virtually haddisintegrated and had caused additional damage to otherparts of the turbine. The damaged part was replacedwith a part from the Bay Ridge, which was then underconstruction. In April 1978, the ship again was repaired,this time with a part from the Brooklyn. Finally, inAugust, the ship was permanently and satisfactorilyrepaired with a ring newly designed and manufacturedby Delaval.
The Brooklyn and the Williamsburgh were put intoservice in late 1973 and late 1974, respectively. In 1978,as a result of the Stuyvesant's problems, they wereinspected while in port. Those inspections revealedsimilar turbine damage. Temporary repairs were made,and newly designed parts were installed as permanentrepairs that summer.
When the Bay Ridge was completed in early 1979, itcontained the newly designed parts and thus neverexperienced the high-pressure turbine problems thatplagued the other three ships. Nonetheless, thecomplaint appears to claim damages as a result ofdeterioration of the Bay Ridge's ring that was installedin the Stuyvesant while the Bay Ridge was underconstruction. In addition, the Bay Ridge experienced aunique problem. In 1980, when the ship was on itsmaiden voyage, the engine began to vibrate with afrequency that increased even after speed was reduced. It turned out that the astern guardian valve, locatedbetween the high-pressure and low-pressure turbines,had been installed backwards. Because of that error,steam entered the low-pressure turbine and damaged it. After repairs, the Bay Ridge resumed its travels.
IIThe charterers' second amended complaint, filed in theUnited States District Court for the District of NewJersey, invokes admiralty jurisdiction. It contains fivecounts alleging tortious conduct on the part ofrespondent Delaval and seeks an aggregate of more than
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$8 million in damages for the cost of repairing the shipsand for income lost while the ships were out of service. The first four counts, read liberally, allege that Delavalis strictly liable for the design defects in thehigh-pressure turbines of the Stuyvesant, theWilliamsburgh, the Brooklyn, and the Bay Ridge,respectively. The fifth count alleges that Delaval, as partof the manufacturing process, negligently supervised theinstallation of the astern guardian valve on the BayRidge. The initial complaint also had listed Seatrain andShipbuilding as plaintiffs and had alleged breach ofcontract and warranty as well as tort claims. But afterDelaval interposed a statute of limitations defense, thecomplaint was amended and the charterers alonebrought the suit in tort. The nonrenewed claims weredismissed with prejudice by the District Court. Delavalthen moved for summary judgment, contending that thecharterers' actions were not cognizable in tort.
The District Court granted summary judgment forDelaval, and the Court of Appeals for the Third Circuit,sitting en banc, affirmed. East River S.S. Corp. v.Delaval Turbine, Inc., 752 F.2d 903 (1985). The Courtof Appeals held that damage solely to a defectiveproduct is actionable in tort if the defect creates anunreasonable risk of harm to persons or property otherthan the product itself, and harm materializes. Disappointments over the product's quality, on the otherhand, are protected by warranty law. Id., at 908,909-910. The charterers were dissatisfied with productquality: the defects involved gradual and unnoticeddeterioration of the turbines' component parts, and theonly risk created was that the turbines would operate ata lower capacity. Id., at 909. See Pennsylvania GlassSand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165,1169-1170 (CA3 1981).Therefore, neither thenegligence claim nor the strict-liability claim wascognizable.
Judge Garth concurred on "grounds somewhatdifferent," 752 F.2d, at 910, and Judge Becker, joinedby Judge Higginbotham, concurred in part and dissentedin part. Id., at 913. Although Judge Garth agreed withthe majority's analysis on the merits, he found nostrict-liability claim presented because the charterershad failed to allege unreasonable danger ordemonstrable injury.
Judge Becker largely agreed with the majority'sapproach, but would permit recovery for a "near miss,"where the risk existed but no calamity occurred. He feltthat the first count, concerning the Stuyvesant, stated acause of action in tort. The exposure of the ship to asevere storm when the ship was unable to operate at fullpower due to the defective part created an unreasonablerisk of harm.
We granted certiorari to resolve a conflict among theCourts of Appeals sitting in admiralty. 474 U.S. 814,106 S.Ct. 56, 88 L.Ed.2d 45 (1985).
III A
Initially, we conclude that the fourth count should havebeen dismissed because Richmond Tankers, Inc., thecharterer of the Bay Ridge, lacks standing to bring aclaim relating to the defective ring that was removedfrom the Bay Ridge when it was still under construction. The ring was installed in the Stuyvesant where itremained until April 1978, when it was removed due todisintegration. Richmond did not charter the Bay Ridgeuntil May 1979, after the ship was completed with anewly designed, nondefective, high-pressure turbine. See Plaintiffs' Answers to First Set of Interrogatories ofDefendants, No. 42. Richmond therefore can allege nocognizable injury. Warth v. Seldin, 422 U.S. 490, 501,95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Richmond, of course, has standing to bring the claimraised in the fifth count, as the damage from the reverseinstallation of the astern guardian valve allegedlyoccurred after Richmond chartered the Bay Ridge.
BThe torts alleged in the first, second, third, and fifthcounts clearly fall within the admiralty jurisdiction. The claims satisfy the traditional "locality"requirement--that the wrong must have occurred on thehigh seas or navigable waters. See, e.g., The Plymouth,3 Wall. 20, 35-36, 18 L.Ed. 125 (1866). The first andfifth counts allege that the injury to the Stuyvesant'shigh-pressure turbine and the Bay Ridge's low-pressureturbine occurred while the ships were sailing on the highseas. The damage to the Williamsburgh and theBrooklyn, alleged in the second and third counts,occurred at sea, and was discovered in port, also amaritime locale. See Southern S.S. Co. v. NLRB, 316U.S. 31, 41, 62 S.Ct. 886, 891, 86 L.Ed. 1246 (1942).
When torts have occurred on navigable waters withinthe United States, the Court has imposed an additionalrequirement of a "maritime nexus"--that the wrong mustbear "a significant relationship to traditional maritimeactivity." See Executive Jet Aviation, Inc. v. Cleveland,409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454(1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668,102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). We need notreach the question whether a maritime nexus also mustbe established when a tort occurs on the high seas. Were there such a requirement, it clearly was met here,for these ships were engaged in maritime commerce, aprimary concern of admiralty law.
C
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With admiralty jurisdiction comes the application ofsubstantive admiralty law. See Executive Jet Aviation,409 U.S., at 255, 93 S.Ct., at 498. Absent a relevantstatute, the general maritime law, as developed by thejudiciary, applies. United States v. Reliable TransferCo., 421 U.S. 397, 409, 95 S.Ct. 1708, 1714, 44 L.Ed.2d251 (1975); Knickerbocker Ice Co. v. Stewart, 253 U.S.149, 160-161, 40 S.Ct. 438, 440, 64 L.Ed. 834 (1920). Drawn from state and federal sources, the generalmaritime law is an amalgam of traditional common-lawrules, modifications of those rules, and newly createdrules. See Kermarec v. Compagnie GeneraleTransatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 409,3 L.Ed.2d 550 (1959); Romero v. International TerminalOperating Co., 358 U.S. 354, 373-375, 79 S.Ct. 468,480-481, 3 L.Ed.2d 368 (1959). This Court hasdeveloped a body of maritime tort principles, see, e.g.,Kermarec, supra, 358 U.S., at 632, 79 S.Ct., at 410; seegenerally Currie, Federalism and the Admiralty: "TheDevil's Own Mess," 1960 S.Ct.Rev. 158, 164, and isnow asked to incorporate products-liability concepts,long a part of the common law of torts, into the generalmaritime law. See Igneri v. Cie. de TransportsOceaniques, 323 F.2d 257, 260 (CA2 1963), cert.denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969(1964).
The Courts of Appeals sitting in admiraltyoverwhelmingly have adopted concepts of productsliability, based both on negligence, Sieracki v. SeasShipping Co., 149 F.2d 98, 99-100 (CA3 1945), aff'd onother grounds, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099(1946), and on strict liability, Pan-Alaska Fisheries, Inc.v. Marine Constr. & Design Co., 565 F.2d 1129, 1135(CA9 1977) (adopting Restatement (Second) of Torts §402A (1965)). Indeed, the Court of Appeals for theThird Circuit previously had stated that the questionwhether principles of strict products liability are part ofmaritime law "is no longer seriously contested." OceanBarge Transport Co. v. Hess Oil Virgin Islands Corp.,726 F.2d 121, 123 (1984) (citing cases).
We join the Courts of Appeals in recognizing productsliability, including strict liability, as part of the generalmaritime law. This Court's precedents relating toinjuries of maritime workers long have pointed in thatdirection. See Seas Shipping Co. v. Sieracki, 328 U.S.85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946) (strictliability for unseaworthiness); Italia Societa per Azionidi Navigazione v. Oregon Stevedoring Co., 376 U.S.315, 322, 84 S.Ct. 748, 752, 11 L.Ed.2d 732 (1964)(strict liability for breach of implied warranty ofworkmanlike service). The Court's rationale in thosecases--that strict liability should be imposed on the partybest able to protect persons from hazardousequipment--is equally applicable when the claims arebased on products liability. Compare Sieracki, 328
U.S., at 93-94, 66 S.Ct., at 876-877, with Escola v. CocaCola Bottling Co. of Fresno, 24 Cal.2d 453, 462, 150P.2d 436, 441 (1944) (concurring opinion). And to theextent that products actions are based on negligence,they are grounded in principles already incorporatedinto the general maritime law. See Kermarec v.Compagnie Generale Transatlantique, 358 U.S., at 632,79 S.Ct., at 410. Our incorporation of products liabilityinto maritime law, however, is only the thresholddetermination to the main issue in this case.
IVProducts liability grew out of a public policy judgmentthat people need more protection from dangerousproducts than is afforded by the law of warranty. SeeSeely v. White Motor Co., 63 Cal.2d 9, 15, 45 Cal.Rptr.17, 21, 403 P.2d 145, 149 (1965). It is clear, however,that if this development were allowed to progress toofar, contract law would drown in a sea of tort. See G.Gilmore, The Death of Contract 87-94 (1974). We mustdetermine whether a commercial product injuring itselfis the kind of harm against which public policy requiresmanufacturers to protect, independent of any contractualobligation.
AThe paradigmatic products-liability action is one wherea product "reasonably certain to place life and limb inperil," distributed without reinspection, causes bodilyinjury. See, e.g., MacPherson v. Buick Motor Co., 217N.Y. 382, 389, 111 N.E. 1050, 1051, 1053 (1916). Themanufacturer is liable whether or not it is negligentbecause "public policy demands that responsibility befixed wherever it will most effectively reduce thehazards to life and health inherent in defective productsthat reach the market." Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d, at 462, 150 P.2d, at 441(opinion concurring in judgment).
For similar reasons of safety, the manufacturer's duty ofcare was broadened to include protection againstproperty damage. See Marsh Wood Products Co. v.Babcock & Wilcox Co., 207 Wis. 209, 226, 240 N.W.392, 399 (1932); Genesee County Patrons Fire ReliefAssn. v. L. Sonneborn Sons, Inc., 263 N.Y. 463,469-473, 189 N.E. 551, 553-555 (1934). Such damageis considered so akin to personal injury that the two aretreated alike. See Seely v. White Motor Co., 63 Cal.2d,at 19, 45 Cal.Rptr., at 24, 403 P.2d, at 152.
In the traditional "property damage" cases, the defectiveproduct damages other property. In this case, there wasno damage to "other" property. Rather, the first, second,and third counts allege that each supertanker'sdefectively designed turbine components damaged onlythe turbine itself. Since each turbine was supplied byDelaval as an integrated package, see App. 162-163,
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each is properly regarded as a single unit. "Since all butthe very simplest of machines have component parts, [acontrary] holding would require a finding of 'propertydamage' in virtually every case where a productdamages itself. Such a holding would eliminate thedistinction between warranty and strict productsliability." Northern Power & Engineering Corp. v.Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska1981). The fifth count also alleges injury to the productitself. Before the high-pressure and low-pressureturbines could become an operational propulsionsystem, they were connected to piping and valves underthe supervision of Delaval personnel. See App. 78,162-163, 181. Delaval's supervisory obligations werepart of its manufacturing agreement. The fifth countthus can best be read to allege that Delaval's negligentmanufacture of the propulsion system--by allowing theinstallation in reverse of the astern guardianvalve--damaged the propulsion system. Cf. Lewis v.Timco, Inc., 736 F.2d 163, 165-166 (CA5 1984).Obviously, damage to a product itself has certainattributes of a products-liability claim. But the injurysuffered--the failure of the product to functionproperly--is the essence of a warranty action, throughwhich a contracting party can seek to recoup the benefitof its bargain.
BThe intriguing question whether injury to a productitself may be brought in tort has spawned a variety ofanswers. At one end of the spectrum, the case thatcreated the majority land-based approach, Seely v. WhiteMotor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145(1965) (defective truck), held that preserving a properrole for the law of warranty precludes imposing tortliability if a defective product causes purely monetaryharm. See also Jones & Laughlin Steel Corp. v.Johns-Manville Sales Corp., 626 F.2d 280, 287, and n.13 (CA3 1980) (citing cases).
The issue also is of concern in the area of conflict oflaws. See R. Weintraub, Commentary on the Conflictof Laws § 6.29 (2nd ed. 1980).
At the other end of the spectrum is the minorityland-based approach, whose progenitor, Santor v. A &M Karagheusian, Inc., 44 N.J. 52, 66-67, 207 A.2d 305,312-313 (1965) (marred carpeting), held that amanufacturer's duty to make nondefective productsencompassed injury to the product itself, whether or notthe defect created an unreasonable risk of harm. See alsoLaCrosse v. Schubert, Schroeder & Associates, Inc., 72Wis.2d 38, 44-45, 240 N.W.2d 124, 127-128 (1976). The courts adopting this approach, including themajority of the Courts of Appeals sitting in admiraltythat have considered the issue, e.g., Emerson G.M.Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468 (CA9
1984), find that the safety and insurance rationalesbehind strict liability apply equally where the losses arepurely economic. These courts reject the Seely approachbecause they find it arbitrary that economic losses arerecoverable if a plaintiff suffers bodily injury orproperty damage, but not if a product injures itself. They also find no inherent difference between economicloss and personal injury or property damage, because allare proximately caused by the defendant's conduct.Further, they believe recovery for economic loss wouldnot lead to unlimited liability because they think amanufacturer can predict and insure against productfailure. See Emerson G.M. Diesel, Inc. v. AlaskanEnterprise, 732 F.2d, at 1474.
Between the two poles fall a number of cases that wouldpermit a products-liability action under certaincircumstances when a product injures only itself. Thesecases attempt to differentiate between "the disappointedusers ... and the endangered ones," Russell v. FordMotor Co., 281 Or. 587, 595, 575 P.2d 1383, 1387(1978), and permit only the latter to sue in tort. Thedetermination has been said to turn on the nature of thedefect, the type of risk, and the manner in which theinjury arose. See Pennsylvania Glass Sand Corp. v.Caterpillar Tractor Co., 652 F.2d, at 1173 (relied on bythe Court of Appeals in this case). The Alaska SupremeCourt allows a tort action if the defective productcreates a situation potentially dangerous to persons orother property, and loss occurs as a proximate result ofthat danger and under dangerous circumstances. Northern Power & Engineering Corp. v. CaterpillarTractor Co., 623 P.2d 324, 329 (1981).
We find the intermediate and minority land-basedpositions unsatisfactory. The intermediate positions,which essentially turn on the degree of risk, are tooindeterminate to enable manufacturers easily to structuretheir business behavior. Nor do we find persuasive adistinction that rests on the manner in which the productis injured. We realize that the damage may bequalitative, occurring through gradual deterioration orinternal breakage. Or it may be calamitous. CompareMorrow v. New Moon Homes, Inc., 548 P.2d 279(Alaska 1976), with Cloud v. Kit Mfg. Co., 563 P.2d248, 251 (Alaska 1977). But either way, since bydefinition no person or other property is damaged, theresulting loss is purely economic. Even when the harmto the product itself occurs through an abrupt,accident-like event, the resulting loss due to repair costs,decreased value, and lost profits is essentially the failureof the purchaser to receive the benefit of itsbargain--traditionally the core concern of contract law. See E. Farnsworth, Contracts § 12.8, pp. 839-840(1982).
We also decline to adopt the minority land-based view
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espoused by Santor and Emerson. Such cases raiselegitimate questions about the theories behind restrictingproducts liability, but we believe that the countervailingarguments are more powerful. The minority view failsto account for the need to keep products liability andcontract law in separate spheres and to maintain arealistic limitation on damages.
CExercising traditional discretion in admiralty, see Pope& Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct.202, 204, 98 L.Ed. 143 (1953), we adopt an approachsimilar to Seely and hold that a manufacturer in acommercial relationship has no duty under either anegligence or strict products-liability theory to preventa product from injuring itself.
"The distinction that the law has drawn between tortrecovery for physical injuries and warranty recovery foreconomic loss is not arbitrary and does not rest on the'luck' of one plaintiff in having an accident causingphysical injury. The distinction rests, rather, on anunderstanding of the nature of the responsibility amanufacturer must undertake in distributing hisproducts." Seely v. White Motor Co., 63 Cal.2d, at 18,45 Cal.Rptr., at 23, 403 P.2d, at 151. When a productinjures only itself the reasons for imposing a tort dutyare weak and those for leaving the party to itscontractual remedies are strong.
The tort concern with safety is reduced when an injuryis only to the product itself. When a person is injured,the "cost of an injury and the loss of time or health maybe an overwhelming misfortune," and one the person isnot prepared to meet. Escola v. Coca Cola Bottling Co.,24 Cal.2d, at 462, 150 P.2d, at 441 (opinion concurringin judgment). In contrast, when a product injures itself,the commercial user stands to lose the value of theproduct, risks the displeasure of its customers who findthat the product does not meet their needs, or, as in thiscase, experiences increased costs in performing aservice. Losses like these can be insured. See 10A G.Couch, Cyclopedia of Insurance Law §§ 42:385-42:401,42:414-417 (2d ed. 1982); 7 E. Benedict, Admiralty,Form No. 1.16-7, p. 1-239 (7th ed. 1985); 5A J.Appleman & J. Appleman, Insurance Law and Practice§ 3252 (1970). Society need not presume that acustomer needs special protection. The increased costto the public that would result from holding amanufacturer liable in tort for injury to the product itselfis not justified. Cf. United States v. Carroll TowingCo., 159 F.2d 169, 173 (CA2 1947).
Damage to a product itself is most naturally understoodas a warranty claim. Such damage means simply thatthe product has not met the customer's expectations, or,in other words, that the customer has received
"insufficient product value." See J. White and R.Summers, Uniform Commercial Code 406 (2d ed.1980). The maintenance of product value and qualityis precisely the purpose of express and impliedwarranties. See UCC § 2-313 (express warranty), §2-314 (implied warranty of merchantability), and §2-315 (warranty of fitness for a particular purpose). Therefore, a claim of a nonworking product can bebrought as a breach-of-warranty action. Or, if thecustomer prefers, it can reject the product or revoke itsacceptance and sue for breach of contract. See UCC §§2-601, 2-608, 2-612.
Contract law, and the law of warranty in particular, iswell suited to commercial controversies of the sortinvolved in this case because the parties may set theterms of their own agreements. The manufacturer canrestrict its liability, within limits, by disclaimingwarranties or limiting remedies. See UCC §§ 2-316,2-719. In exchange, the purchaser pays less for theproduct. Since a commercial situation generally doesnot involve large disparities in bargaining power, cf.Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161A.2d 69 (1960), we see no reason to intrude into theparties' allocation of the risk.
While giving recognition to the manufacturer's bargain,warranty law sufficiently protects the purchaser byallowing it to obtain the benefit of its bargain. SeeWhite & Summers, supra, ch. 10. The expectationdamages available in warranty for purely economic lossgive a plaintiff the full benefit of its bargain bycompensating for forgone business opportunities. SeeFuller & Perdue, The Reliance Interest in ContractDamages: 1, 46 Yale L.J. 52, 60-63 (1936); R. Posner,Economic Analysis of Law § 4.8 (3d ed. 1986). Recovery on a warranty theory would give thecharterers their repair costs and lost profits, and wouldplace them in the position they would have been in hadthe turbines functioned properly. See Hawkins v.McGee, 84 N.H. 114, 146 A. 641 1929). Thus, boththe nature of the injury and the resulting damagesindicate it is more natural to think of injury to a productitself in terms of warranty.
A warranty action also has a built-in limitation onliability, whereas a tort action could subject themanufacturer to damages of an indefinite amount. Thelimitation in a contract action comes from the agreementof the parties and the requirement that consequentialdamages, such as lost profits, be a foreseeable result ofthe breach. See Hadley v. Baxendale, 9 Ex. 341, 156Eng.Rep. 145 (1854). In a warranty action where theloss is purely economic, the limitation derives from therequirements of foreseeability and of privity, which isstill generally enforced for such claims in a commercialsetting. See UCC § 2-715; White & Summers, supra, at
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389, 396, 406-410.
In products-liability law, where there is a duty to thepublic generally, foreseeability is an inadequate brake. Cf. Kinsman Transit Co. v. City of Buffalo, 388 F.2d821 (CA2 1968). See also Perlman, Interference withContract and Other Economic Expectancies: A Clash ofTort and Contract Doctrine, 49 U.Chi.L.Rev. 61, 71-72(1982). Permitting recovery for all foreseeable claimsfor purely economic loss could make a manufacturerliable for vast sums. It would be difficult for amanufacturer to take into account the expectations ofpersons downstream who may encounter its product. Inthis case, for example, if the charterers--already one stepremoved from the transaction--were permitted torecover their economic losses, then the companies thatsubchartered the ships might claim their economiclosses from the delays, and the charterers' customersalso might claim their economic losses, and so on. "Thelaw does not spread its protection so far." Robins DryDock & Repair Co. v. Flint, 275 U.S. 303, 309, 48 S.Ct.134, 135, 72 L.Ed. 290 (1927).
And to the extent that courts try to limit purelyeconomic damages in tort, they do so by relying on a farmurkier line, one that negates the charterers' contentionthat permitting such recovery under a products-liabilitytheory enables admiralty courts to avoid difficult linedrawing. Cf. Ultramares Corp. v. Touche, 255 N.Y.170, 174 N.E. 441 (1931); Louisiana ex rel. Guste v.M/V Testbank, 752 F.2d 1019, 1046-1052 (CA5 1985)(en banc) (dissenting opinion), cert. pending sub nom.White v. Testbank, No. 84-1808.
DFor the first three counts, the defective turbinecomponents allegedly injured only the turbinesthemselves. Therefore, a strict products-liability theoryof recovery is unavailable to the charterers. Anywarranty claims would be subject to Delaval'slimitation, both in time and scope, of its warrantyliability. App. 78-79. The record indicates that Seatrainand Delaval reached a settlement agreement. Deposition of Stephen Russell, p. 32. We were informedthat these charterers could not have asserted thewarranty claims. See Tr. of Oral Arg. 36. Even so, thecharterers should be left to the terms of their bargains,which explicitly allocated the cost of repairs.
In the charterers' agreements with the owners, thecharterers took the ships in "as is" condition, afterinspection, and assumed full responsibility for them,including responsibility for maintenance and repairs andfor obtaining certain forms of insurance. Id., at 11,16-17, 35; App. 86, 88, 99, 101, 112, 114, 125-126,127. In a separate agreement between each chartererand Seatrain, Seatrain agreed to guarantee certain
payments and covenants by each charterer to the owner. Id., at 142-156. The contractual responsibilities thuswere clearly laid out. There is no reason to extricate theparties from their bargain.
Similarly, in the fifth count, alleging the reverseinstallation of the astern guardian valve, the only harmwas to the propulsion system itself rather than topersons or other property. Even assuming that Delaval'ssupervision was negligent, as we must on this summaryjudgment motion, Delaval owed no duty under aproducts-liability theory based on negligence to avoidcausing purely economic loss. Cf. Flintkote Co. v.Dravo Corp., 678 F.2d 942 (CA11 1982); S.M. Wilson& Co. v. Smith International, Inc., 587 F.2d 1363 (CA91978). Thus, whether stated in negligence or strictliability, no products-liability claim lies in admiraltywhen the only injury claimed is economic loss.
While we hold that the fourth count should have beendismissed, we affirm the entry of judgment for Delaval.
It is so ordered.
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VII. MARITIME DEATH ACTIONS
A. Introduction/Overview
There are four possible sources of wrongful death law applicable in a maritime setting: (1) thegeneral maritime law of wrongful death; (2) the Jones Act; (3) Death on the High Seas Act, and (4) statedeath actions (made applicable through either the Outer Continental Shelf Lands Act or through the“maritime but local” doctrine). Determining which law applies involves a sometimes bewilderinganalysis of the status of the decedent, the locus of the wrongful conduct which killed the decedent, andinterplay between the various actions.
B. Death on the High Seas Act (46 U.S.C. §§ 30301 - 30308, formerly 46 U.S.C. §§ 761-766)
Death on the High Seas Act (DOHSA)46 U.S.C. §§ 30301 - 30308(formerly 46 U.S.C. §§ 761-766)
§ 30302. Cause of action
When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond3 nautical miles from the shore of the United States, the personal representative of the decedent may bring a civilaction in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of thedecedent's spouse, parent, child, or dependent relative.
§ 30303. Amount and apportionment of recovery
‘The recovery in an action under this chapter [46 USCS §§ 30301 et seq.] shall be a fair compensation for thepecuniary loss sustained by the individuals for whose benefit the action is brought. The court shall apportion therecovery among those individuals in proportion to the loss each has sustained.
§ 30304. Contributory negligence
In an action under this chapter [46 USCS §§ 30301 et seq.], contributory negligence of the decedent is not a barto recovery. The court shall consider the degree of negligence of the decedent and reduce the recovery accordingly.
§ 30305. Death of plaintiff in pending action
If a civil action in admiralty is pending in a court of the United States to recover for personal injury caused bywrongful act, neglect, or default described in section 30302 of this title [46 USCS § 30302], and the individual diesduring the action as a result of the wrongful act, neglect, or default, the personal representative of the decedent maybe substituted as the plaintiff and the action may proceed under this chapter [46 USCS §§ 30301 et seq.] for therecovery authorized by this chapter [46 USCS §§ 30301 et seq.].
§ 30306. Foreign cause of action
When a cause of action exists under the law of a foreign country for death by wrongful act, neglect, or default onthe high seas, a civil action in admiralty may be brought in a court of the United States based on the foreign causeof action, without abatement of the amount for which recovery is authorized.
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§ 30307. Commercial aviation accidents
(a) Definition. In this section, the term ‘nonpecuniary damages’ means damages for loss of care, comfort, andcompanionship.
(b) Beyond 12 nautical miles. In an action under this chapter [46 USCS §§ 30301 et seq.], if the death resultedfrom a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of theUnited States, additional compensation is recoverable for nonpecuniary damages, but punitive damages are notrecoverable.
(c) Within 12 nautical miles. This chapter [46 USCS §§ 30301 et seq.] does not apply if the death resulted froma commercial aviation accident occurring on the high seas 12 nautical miles or less from the shore of the UnitedStates.
§ 30308. Nonapplication
(a) State law. This chapter [46 USCS §§ 30301 et seq.] does not affect the law of a State regulating the right torecover for death.
(b) Internal waters. This chapter [46 USCS §§ 30301 et seq.] does not apply to the Great Lakes or waters withinthe territorial limits of a State.”
Note
The death of any person occurring beyond a marine league [three miles] from the shore of any state orin foreign territorial waters. It is the situs of the accident where tortious conduct impacts decedent thatis controlling, not where decedent died. Bergen v. F/V St. Patrick, 816 F.2d 1345 (7 Cir. 1987). Theth
action may be based on any tort theory: intentional tort, negligence, strict products liability. As will beseen infra the Jones Act creates both a wrongful death and survival action on behalf of dependents ofJones Act seamen against the seaman’s employer based on negligence. In such situations, suit must bebrought under the Jones Act and not under DOHSA. A DOHSA suit for the death of a seaman may bebrought for breach of warranty of unseaworthiness. Bodden v. American Offshore, Inc., 681 F.2d 319 (5th
Cir. 1982).
106 S.Ct. 2485
OFFSHORE LOGISTICS, INC.v.
TALLENTIRENo. 85-202
Argued Feb. 24, 1986Decided June 23, 1986
O'CONNOR, J., delivered the opinion of the Court, inwhich BURGER, C.J., and WHITE, BLACKMUN, andREHNQUIST, JJ., joined, and in Part III of whichBRENNAN, MARSHALL, POWELL, and STEVENS,JJ., joined. POWELL, J., filed an opinion concurring inpart and dissenting in part, in which BRENNAN,MARSHALL, and STEVENS, JJ., joined, post.
Concurring and dissenting opinions omitted.
Respondents' husbands were killed when petitioner AirLogistic's helicopter, in which the decedents weretraveling, crashed into the high seas. The issue presentedis whether the Death on the High Seas Act (DOHSA), 41Stat. 537, 46 U.S.C. § 761 et seq., provides the exclusiveremedy by which respondents may recover againstpetitioner for the wrongful death of their husbands, orwhether they may also recover the measure of damagesprovided by the Louisiana wrongful death statute,La.Civ.Code Ann., Art. 2315 (West Supp.1986), applyingeither of its own force or as surrogate federal law underthe Outer Continental Shelf Lands Act (OCSLA), 67 Stat.462, as amended, 43 U.S.C. § 1331 et seq.
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IThe husbands of respondents Corrine Taylor and BethTallentire worked on drilling platforms in the Gulf ofMexico, off the coast of Louisiana. On August 6, 1980,respondents' husbands were killed while being transportedin a helicopter owned and operated by petitioner AirLogistics (hereafter petitioner), a Division of OffshoreLogistics, Inc., from a drilling platform to Houma,Louisiana. The crash occurred approximately 35 milesoff the coast of Louisiana, well over the 3-mile limit thatseparates Louisiana's territorial waters from the high seasfor purposes of DOHSA.
Respondents each filed wrongful death suits in UnitedStates District Court, raising claims under DOHSA,OCSLA, and the law of Louisiana. These actions werelater consolidated in the Eastern District of Louisiana. Upon petitioner's pretrial motion for partial summaryjudgment, the District Court ruled that DOHSA providesthe exclusive remedy for death on the high seas, and ittherefore dismissed respondents' claims based upon theLouisiana wrongful death statute. Petitioner admittedliability and the trial was limited to the question ofdamages. Because DOHSA limits recovery to "fair andjust compensation for ... pecuniary loss," the DistrictCourt's awards to respondents did not include damages fornonpecuniary losses. 46 U.S.C. § 762.
Respondents appealed the District Court's dismissal oftheir OCSLA and state law wrongful death claims,contending that they were entitled to nonpecuniarydamages under the Louisiana wrongful death statute. SeeLa.Civ.Code Ann., Art. 2315(B) (West Supp.1986)(permitting recovery for both pecuniary and nonpecuniarydamages, "includ[ing] loss of consortium, service, andsociety"). They argued that the Louisiana statute appliedto this helicopter crash on the high seas, either of its ownforce by virtue of the saving provision in § 7 of DOHSA,46 U.S.C. § 767, or as adopted federal law throughOCSLA. See 43 U.S.C. § 1333(a)(2)(A). The Court ofAppeals for the Fifth Circuit reversed the District Court'sdenial of benefits recoverable under Louisiana law, withone judge specially concurring and another judgedissenting. See 754 F.2d 1274 (CA5 1985).
* * *Because the Fifth Circuit's decision creates the potentialfor disunity in the administration of wrongful deathremedies for causes of action arising from accidents on thehigh seas and is in conflict with the prevailing view inother courts that DOHSA pre-empts state law wrongfuldeath statutes in the area of its operation, we grantedcertiorari. 474 U.S. 816, 106 S.Ct. 60, 88 L.Ed.2d 48(1985). We now hold that neither OCSLA nor DOHSArequires or permits the application of Louisiana law in thiscase, and accordingly reverse the judgment of the Court ofAppeals for the Fifth Circuit.
II* * *
In 1920, Congress enacted DOHSA, in which it finallyrepudiated the rule of The Harrisburg for maritime deathsoccurring beyond state territorial waters by providing fora federal maritime remedy for wrongful deaths more thanthree miles from shore. DOHSA limits the class ofbeneficiaries to the decedent's "wife, husband, parent,child, or dependent relative," 46 U.S.C. § 761, establishesa 3-year statute of limitations period, § 763a, allows a suitfiled by the victim to continue as a wrongful death actionif the victim dies of his injuries while suit is pending, §765, provides that contributory negligence will not barrecovery, § 766, and declares that "recovery ... shall be afair and just compensation for the pecuniary loss sustainedby the persons for whose benefit the suit is brought...." §762.
* * *
IIIAs explained above, DOHSA is intended to provide amaritime remedy for deaths stemming from wrongful actsor omissions "occurring on the high seas." 46 U.S.C. §761. OCSLA, by contrast, provides an essentiallynonmaritime remedy and controls only on "the subsoil andseabed of the outer Continental Shelf, and artificial islandsand fixed structures" erected thereon. 43 U.S.C. §1333(a)(2)(A). By its terms, OCSLA must be "construedin such a manner that the character of the waters above theouter Continental Shelf as high seas ... shall not beaffected." § 1332(2). Within the area covered byOCSLA, federal law controls but the law of the adjacentState is adopted as surrogate federal law to the extent thatit is not inconsistent with applicable federal laws orregulations. § 1333(a)(2)(A).
The intent behind OCSLA was to treat the artificialstructures covered by the Act as upland islands or asfederal enclaves within a landlocked State, and not asvessels, for purposes of defining the applicable lawbecause maritime law was deemed inapposite to thesefixed structures. See Rodrigue v. Aetna Casualty &Surety Co.,395 U.S. 352, 361-366, 89 S.Ct. 1835, 1840-1842, 23 L.Ed.2d 360 (1969). This Court endorsed thecongressional assumption that admiralty law generallywould not apply to the lands and structures covered byOCSLA in Rodrigue, noting that accidents on the artificialislands covered by OCSLA "had no more connection withthe ordinary stuff of admiralty than do accidents on piers." Id., at 360, 89 S.Ct., at 1839- 1840. See also Herb'sWelding, Inc. v. Gray, 470 U.S. 414, 422, 105 S.Ct. 1421,1426, 84 L.Ed.2d 406 (1985). Thus, in Rodrigue, theCourt held that an admiralty action under DOHSA doesnot apply to accidents "actually occurring" on theseartificial islands, and that DOHSA therefore does notpreclude the application of state law as adopted federal
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law through OCSLA to wrongful death actions arisingfrom accidents on offshore platforms. Rodrigue v. AetnaCasualty Co., supra, 395 U.S., at 366, 89 S.Ct., at 1842.
Respondents argue that because the decedents wereplatform workers being transported from work to themainland, OCSLA, not DOHSA, governs their cause ofaction.
* * *We do not interpret § 4 of OCSLA, 43 U.S.C. § 1333, torequire or permit us to extend the coverage of the statuteto the platform workers in this case who were killed milesaway from the platform and on the high seas simplybecause they were platform workers. Congressdetermined that the general scope of OCSLA's coverage,like the operation of DOHSA's remedies, would bedetermined principally by locale, not by the status of theindividual injured or killed.
* * *In the circumstances presented, then, the conclusion isinescapable that the remedies afforded by DOHSA, notOCSLA, govern this action. Thus, respondents maysecure the nonpecuniary damages made available byLouisiana's wrongful death statute only if it is found thatDOHSA preserves, or does not pre-empt, state remedieson the high seas.
IVRespondents argue that the first sentence of § 7 ofDOHSA was intended to ensure the applicability of statewrongful death statutes to deaths on the high seas. Weconclude that that provision will not bear respondents'reading when evaluated in light of the language of the Actas a whole, the legislative history of § 7, the congressionalpurposes underlying the Act, and the importance ofuniformity of admiralty law. See Mastro Plastics Corp.v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed.309 (1956) (" 'In expounding a statute, we must not beguided by a single sentence or member of a sentence, butlook to the provisions of the whole law, and to its objectand policy' ") (quoting United States v. Heirs of Boisdoré,8 How. 113, 122, 12 L.Ed. 1009 (1849)). Thesereferences persuade us that the first sentence of § 7 wasintended only to serve as a jurisdictional saving clause,ensuring that state courts enjoyed the right to entertaincauses of action and provide wrongful death remedies bothfor accidents arising on territorial waters and, underDOHSA, for accidents occurring more than one marineleague from shore.
The first sentence of § 7 of DOHSA, as originally drafted,provided that "the provisions of any State statute giving orregulating rights of action or remedies for death shall notbe affected by this act as to causes of action accruingwithin the territorial limits of any State." See 59
Cong.Rec. 4482 (1920). During the House debate,Representative Mann proposed an amendment deleting thewords "as to causes of action accruing within the territoriallimits of any state." Although at first blush the languageof the amended § 7 seems to support respondents' position,a closer comparison of the language of § 7, both beforeand after its amendment, with the language of § 4 of theAct belies respondents' facial argument.
* * *In sum, the language of § 7 and its legislative history, aswell as the congressional purposes underlying DOHSA,mandate that § 7 be read not as an endorsement of theapplication of state wrongful death statutes to the highseas, but rather as a jurisdictional saving clause. Viewedin this light, § 7 serves not to destroy the uniformity ofwrongful death remedies on the high seas but to facilitatethe effective and just administration of those remedies. The recognition of concurrent state jurisdiction to hearDOHSA actions makes available to DOHSA beneficiariesa convenient forum for the decision of their wrongfuldeath claims. See Note, Admiralty: Death on the HighSeas by Wrongful Act, 47 Cornell L.Q. 632, 638 (1962)(hereinafter Note). Because the resolution of DOHSAclaims does not normally require the expertise thatadmiralty courts bring to bear, DOHSA actions are clearlywithin the competence of state courts to adjudicate. SeeALI Study, at 237; Note, at 637. Also, the availability ofconcurrent jurisdiction prevents disunity in the provisionof forums to survivors of those killed on the high seas; itensures that if a seaman and a passenger are killed at seain the same accident, the beneficiaries of both are able tochoose the forum in which they prefer to proceed. SeeEngel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed.813 (1926) (state and federal courts have concurrentjurisdiction over Jones Act claims). See also ALI Study§ 1316(b), at 237; Note, at 638. Cf. also Gulf OffshoreCo. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69L.Ed.2d 784 (1981) (recognizing state courts' concurrentjurisdiction over OCSLA claims).
Once it is determined that § 7 acts as a jurisdictionalsaving clause, and not as a guarantee of the applicabilityof state substantive law to wrongful deaths on the highseas, the conclusion that the state statutes are pre-emptedby DOHSA where it applies is inevitable. As we held inHigginbotham, Congress has "struck the balance for us" indetermining that survivors should be restricted to therecovery of their pecuniary losses, and when DOHSA"does speak directly to a question, the courts are not freeto 'supplement' Congress' answer so thoroughly that theAct becomes meaningless." 436 U.S., at 625, 98 S.Ct., at2015.
Admittedly, in the circumstances of this case, therecognition of a state damages remedy for loss of societywould bring respondents' DOHSA recovery into line with
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the damages available to a beneficiary of a federalMoragne maritime cause of action arising from a death onterritorial waters. See Sea-Land Services, Inc. v. Gaudet,414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) (holdingthat awards under the general federal maritime cause ofaction for wrongful death could include compensation forloss of society). However, the questionable practicalsignificance of this difference in recovery, see Mobil OilCorp. v. Higginbotham, supra, 436 U.S., at 624, and n. 20,98 S.Ct., at 2014, and n. 20 is far overshadowed by thepotential for serious conflicts between DOHSA and statesubstantive law in such areas as limitations periods,classes of beneficiaries, and the definition of potentialdefenses. We defer to Congress' purpose in making auniform provision for recovery for wrongful deaths on thehigh seas, an area where the federal interests are primary.
The judgment of the Court of Appeals for the Fifth Circuitis reversed, and the case is remanded for furtherproceedings consistent with this opinion.
It is so ordered.
Note: Jury Trial
Is there a possibility for a jury trial in a suit under DOHSA? In Friedman v. Mitsubishi AircraftInternational, Inc., 678 F.Supp. 1064 (S.D. N.Y. 1988), an aircraft crashed on the high seas and plaintiffmoved for a trial by jury. The motion was grounded on the theory that DOHSA was inapplicable in theabsence of a traditional maritime activity and, in the alternative, if DOHSA was applicable, on theassertion that Section 7 of DOHSA preserves the right to a jury trial, especially when diversityjurisdiction exists. The court denied the motion. In the opinion of the court, DOHSA provides theexclusive remedy for all deaths on the high seas, regardless of any traditional maritime activity, andsubstantive state wrongful death remedies are preempted outside the territorial waters of a state. “Itfollows, therefore,” the court concluded, that “since DOHSA provides a remedy in admiralty, admiraltyprinciples are applicable and a DOHSA plaintiff has no right to a jury trial of wrongful death claims.”
Is the right to a jury trial a “substantive” remedy or a part of procedural law? If Section 7 ofDOHSA is a jurisdictional saving clause that preserves the jurisdiction of a state court to hear DOHSAclaims, what prevents the state court from granting a motion for a jury trial? See Favaloro v. S.S. GoldenGate, 687 F.Supp. 475 (N.D. Cal. 1987); In re Korean Airlines Disaster of September 1, 1983, 704F.Supp. 1135 (Dist. Col. 1988), aff’d in part, 932 F.2d 1475 (D.C. Cir. 1991).
98 S.Ct. 1772
MOBIL OIL CORPORATIONv.
HIGGINBOTHAM
No. 76-1726
Argued Jan. 10, 11, 1978Decided June 5, 1978
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Mr. Justice STEVENS delivered the opinion of theCourt.
Mr. Justice Marshall, dissented and filed opinion inwhich Mr. Justice Blackmun joined.
This case involves death on the high seas. The question iswhether, in addition to the damages authorized by federalstatute, a decedent's survivors may also recover damagesunder general maritime law. The United States Court ofAppeals for the Fifth Circuit, disagreeing with the FirstCircuit, held that survivors may recover for their "loss ofsociety," as well as for their pecuniary loss. We reverse.
Petitioner used a helicopter in connection with its oildrilling operations in the Gulf of Mexico about 100 milesfrom the Louisiana shore. On August 15, 1967, thehelicopter crashed outside Louisiana's territorial waters,killing the pilot and three passengers. In a suit brought bythe passengers' widows, in their representative capacities,the District Court accepted admiralty jurisdiction andfound that the deaths were caused by petitioner'snegligence. The court awarded damages equal to thepecuniary losses suffered by the families of twopassengers. Although the court valued the two families'loss of society at $100,000 and $155,000, it held that thelaw did not authorize recovery for this loss. The Court ofAppeals reversed, holding that the plaintiffs were entitledto claim damages for loss of society. We granted certiorarilimited to this issue. 434 U.S. 816, 98 S.Ct. 54, 54 L.Ed.2d72.
IIn 1877, the steamer Harrisburg collided with a schoonerin Massachusetts coastal waters. The schooner sank, andits first officer drowned. Some five years later, his widowbrought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy forwrongful death in the absence of an applicable state orfederal statute. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140,30 L.Ed. 358. Thereafter, suits arising out of maritimefatalities were founded by necessity on statewrongful-death statutes. See, e. g., The Hamilton, 207 U.S.398, 28 S.Ct. 133, 52 L.Ed. 264.
In 1920, Congress repudiated the rule of The Harrisburgfor maritime deaths occurring beyond the territorial watersof any State. It passed the Death on the High Seas Act(hereinafter sometimes DOHSA), creating a remedy inadmiralty for wrongful deaths more than three miles fromshore. This Act limits the class of beneficiaries to thedecedent's "wife, husband, parent, child, or dependentrelative," establishes a two-year period of limitations,allows suits filed by the victim to continue aswrongful-death actions if the victim dies of his injurieswhile suit is pending, and provides that contributorynegligence will not bar recovery. With respect to damages,
the statute declares: "The recovery . . . shall be a fair andjust compensation for the pecuniary loss sustained by thepersons for whose benefit the suit is brought . . . ."
In the half century between 1920 and 1970, deaths on thehigh seas gave rise to federal suits under DOHSA, whilethose in territorial waters were largely governed by statewrongful-death statutes. DOHSA brought a measure ofuniformity and predictability to the law on the high seas,but in territorial waters, where The Harrisburg made statelaw the only source of a wrongful-death remedy, thecontinuing impact of that decision produced uncertainty and incongruity. The reasoning of The Harrisburg, whichwas dubious at best in 1886, became less and lesssatisfactory as the years passed.
In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90S.Ct. 1772, 26 L.Ed.2d 339, the Court held that a federalremedy for wrongful death does exist under generalmaritime law. The case concerned a death in Florida'sterritorial waters. The defendant argued that Congress, bylimiting DOHSA to the high seas, had evidenced an intentto preclude federal judicial remedies in territorial waters.The Court concluded, however, that the reason Congressconfined DOHSA to the high seas was to prevent the Actfrom abrogating, by its own force, the state remedies thenavailable in state waters. Id., at 400, 90 S.Ct., at 1787.
In Moragne the Court left various subsidiary questionsconcerning the nonstatutory death remedy--such as theschedule of beneficiaries and the limitations period--for"further sifting through the lower courts in futurelitigation." Id., at 408, 90 S.Ct., at 1792. A few yearslater, in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573,94 S.Ct. 806, 39 L.Ed.2d 9, the Court confronted some ofthese questions. Among the issues addressed in Gaudetwas the measure of survivors' damages. The Court heldthat awards could include compensation for loss of supportand services, for funeral expenses, and for loss of society,but not for mental anguish or grief. Id., at 583-591, 94S.Ct., at 814-818. The Court recognized that DOHSA,which compensates only for pecuniary losses, did notallow awards for loss of society. But the accident inGaudet, like that in Moragne, took place in territorialwaters, where DOHSA does not apply. The Court chosenot to adopt DOHSA's pecuniary-loss standard; instead itfollowed the "clear majority of States" and "thehumanitarian policy of the maritime law," both of whichfavored recovery for loss of society. 414 U.S., at 587-588,94 S.Ct., at 816. In sum, the Court made a policydetermination in Gaudet which differed from the choicemade by Congress when it enacted the Death on the HighSeas Act.
IIThe Gaudet opinion was broadly written. It did not state
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that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replaceentirely the Death on the High Seas Act. Its holding,however, applies only to coastal waters. We thereforemust now decide which measure of damages to apply in adeath action arising on the high seas--the rule chosen byCongress in 1920 or the rule chosen by this Court inGaudet.
As the divergence of views among the States discloses,there are valid arguments both for and against allowingrecovery for loss of society. Courts denying recovery citetwo reasons: (1) that the loss is "not capable ofmeasurement by any material or pecuniary standard," and(2) than an award for the loss "would obviously includeelements of passion, sympathy and similar matters ofimproper character." 1 S. Speiser, Recovery for WrongfulDeath, § 3:49 (2d ed. 1975). Courts allowing the awardcounter: (1) that the loss is real, however intangible it maybe, and (2) that problems of measurement should notjustify denying all relief. See generally Sea-LandServices, Inc. v. Gaudet, supra, at 588-590, 94 S.Ct., at816-817.
In this case, however, we need not pause to evaluate theopposing policy arguments. Congress has struck thebalance for us. It has limited survivors to recovery oftheir pecuniary losses. Respondents argue that Congressdoes not have the last word on this issue--that admiraltycourts have traditionally undertaken to supplementmaritime statutes and that such a step is necessary in thiscase to preserve the uniformity of maritime law. Neitherargument is decisive.
We recognize today, as we did in Moragne, the value ofuniformity, but a ruling that DOHSA governswrongful-death recoveries on the high seas poses only aminor threat to the uniformity of maritime law. Damagesaside, none of the issues on which DOHSA is explicit havebeen settled to the contrary by this Court in eitherMoragne or Gaudet. Nor are other disparities likely todevelop. As Moragne itself implied, DOHSA should bethe courts' primary guide as they refine the nonstatutorydeath remedy, both because of the interest in uniformityand because Congress' considered judgment has greatforce in its own right. It is true that the measure ofdamages in coastal waters will differ from that on the highseas, but even if this difference proves significant, a desirefor uniformity cannot override the statute.
We realize that, because Congress has never enacted acomprehensive maritime code, admiralty courts have oftenbeen called upon to supplement maritime statutes. TheDeath on the High Seas Act, however, announcesCongress' considered judgment on such issues as thebeneficiaries, the limitations period, contributorynegligence, survival, and damages. See nn. 6-10, supra.
The Act does not address every issue of wrongful-deathlaw, see e. g., n. 15, supra, but when it does speak directlyto a question, the courts are not free to "supplement"Congress' answer so thoroughly that the Act becomesmeaningless.
In Moragne, the Court recognized a wrongful-deathremedy that supplements federal statutory remedies. Butthat holding depended on our conclusion that Congresswithheld a statutory remedy in coastal waters in order toencourage and preserve supplemental remedies. 398 U.S.,at 397- 398, 90 S.Ct., at 1785-1786. Congress did not limitDOHSA beneficiaries to recovery of their pecuniary lossesin order to encourage the creation of nonpecuniarysupplements. See generally Barbe v. Drummond, 507F.2d 794, 801 n. 10 (CA1 1974); Wilson v. TransoceanAirlines, 121 F.Supp. 85 (ND Cal.1954). There is a basicdifference between filling a gap left by Congress' silenceand rewriting rules that Congress has affirmatively andspecifically enacted. In the area covered by the statute, itwould be no more appropriate to prescribe a differentmeasure of damages than to prescribe a different statute oflimitations, or a different class of beneficiaries. Perhapsthe wisdom we possess today would enable us to do abetter job of repudiating The Harrisburg than Congressdid in 1920, but even if that be true, we have no authorityto substitute our views for those expressed by Congress ina duly enacted statute.
Accordingly, the judgment of the Court of Appeals isreversed, and the case is remanded for further proceedingsconsistent with this opinion.
It is so ordered.
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Note
In Jacobs v. Northern King Shipping Co., 180 F.3d 713 (5 Cir. 1999), the Fifth Circuit held thatth
DOHSA is the exclusive remedy for damages due to a death on the high seas. Applying the SupremeCourt’s ruling in Dooley v. Korean Airlines, 524 U.S. 116, 118 S.Ct. 1890, 141 L.Ed.2d 102 (1998), thecourt concluded that the exclusive remedy under DOHSA could not be supplemented to allow forrecovery of the decedent’s pre-death pain and suffering through a survival action under either the generalmaritime law or state statute.
C. Jones Act Wrongful Death Cause of Action
Note
1. Seamen: Jones Act and joinder of claims
a. The beneficiaries are ranked in a preclusive order, whereby a higher listed classtakes to the exclusion of later-ranked classes. The Jones Act classes are: (1) spouse and children; (2)parents; (3) dependent next-of-kin.
b. Recovery may be had only for pecuniary loss. Note, however, that Jones Actbeneficiaries may also bring a survival action for the conscious pain and suffering suffered by thedecedent during the time he was alive after being injured.
c. The Jones Act action is not restricted to deaths occurring on the high seas, as isDOHSA. It is applicable regardless of where the death occurs: on the high seas, in state territorial waters,or even on the land as long as the elements of the Jones Act claim are satisfied.
2. Whenever a Jones Act claim for death which occurred on the high seas is brought, it maybe joined to a DOHSA action against the employer based on a claim for unseaworthiness, but no recoveryfor loss of society is permitted. Miles v. Apex Marine Corp., 111 S.Ct. 317 (1990).
If a jury trial is elected (under the Jones Act), both claims must be submitted to the jury.
3. Seaman’s claims
a. The personal representative of a seaman may bring a Moragne wrongful deathaction against a defendant who is not his employer.
b. Suit may be brought against the seaman’s employer based on a breach of thewarranty of seaworthiness.
c. Because the Jones Act specifically provides a seaman with an action for negligenceregardless of where death occurs, suit against the seaman’s employer for wrongful death due tonegligence in territorial waters must be brought under the Jones Act, not under Moragne.
(1) This precludes recovery of damages for loss of consortium and society insuits based solely on negligence where the death occurred in territorial waters. Miles, supra.
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(2) Note that a Jones Act negligence action may be joined with a generalmaritime claim for unseaworthiness under Moragne, but this still does not allow recovery for loss ofconsortium and society. Miles, supra.
D. General Maritime Causes of Action for Wrongful Death
90 S.Ct. 1772
MORAGNEv.
STATES MARINE LINES, INC.No. 175
Argued March 4, 1970Decided June 15, 1970
Mr. Justice HARLAN delivered the opinion of theCourt.
We brought this case here to consider whether TheHarrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, inwhich this Court held in 1886 that maritime law doesnot afford a cause of action for wrongful death, shouldany longer be regarded as acceptable law.
The complaint sets forth that Edward Moragne, alongshoreman, was killed while working aboard thevessel Palmetto State in navigable waters within theState of Florida. Petitioner, as his widow andrepresentative of his estate, brought this suit in a statecourt against respondent States Marine Lines, Inc., theowner of the Vessel, to recover damages for wrongfuldeath and for the pain and suffering experienced by thedecedent prior to his death. The claims were predicatedupon both negligence and the unseaworthiness of thevessel.
* * *I
The Court's opinion in The Harrisburg acknowledgedthat the result reached had little justification except inprimitive English legal history--a history far removedfrom the American law of remedies for maritime deaths.
* * *II
We need not, however, pronounce a verdict on whetherThe Harrisburg, when decided, was a correctextrapolation of the principles of decisional law then inexistence. A development of major significance hasintervened, making clear that the rule against recoveryfor wrongful death is sharply out of keeping with thepolicies of modern American maritime law. Thisdevelopment is the wholesale abandonment of the rulein most of the area where it once held sway, quiteevidently prompted by the same sense of the rule'sinjustice that generated so much criticism of its originalpromulgation.
* * *In the United States, every State today has enacted awrongful-death statute. See Smith, supra, 44 N.C.L.Rev.402. The Congress has created actions for wrongfuldeaths of railroad employees, Federal Employers'Liability Act, 45 U.S.C. ss 51--59; of merchant seamen,Jones Act, 46 U.S.C. s 688; and of persons on the highseas, Death on the High Seas Act, 46 U.S.C. ss 761,762. Congress has also, in the Federal Tort Claims Act,28 U.S.C. s 1346(b), made the United States subject toliability in certain circumstances for negligently causedwrongful death to the same extent as a private person.See, e.g., Richards v. United States, 369 U.S. 1, 82 S.Ct.585, 7 L.Ed.2d 492 (1962).
These numerous and broadly applicable statutes, takenas a whole, make it clear that there is no present publicpolicy against allowing recovery for wrongful death.The statutes evidence a wide rejection by thelegislatures of whatever justifications may once haveexisted for a general refusal to allow such recovery. Thislegislative establishment of policy carries significancebeyond the particular scope of each of the statutesinvolved. The policy thus established has become itselfa part of our law, to be given its appropriate weight notonly in matters of statutory construction but also inthose of decisional law.
* * *III
Our undertaking, therefore, is to determine whetherCongress has given such a direction in its legislationgranting remedies for wrongful deaths in portions of themaritime domain. We find that Congress has given noaffirmative indication of an intent to preclude thejudicial allowance of a remedy for wrongful death topersons in the situation of this petitioner.
From the date of The Harrisburg until 1920, there wasno remedy for death on the high seas caused by breachof one of the duties imposed by federal maritime law.For deaths within state territorial waters, the federal lawaccommodated the humane policies of statewrongful-death statutes by allowing recovery wheneveran applicable state statute favored such recoveryCongress acted in 1920 to furnish the remedy denied bythe courts for deaths beyond the jurisdiction of anyState, by passing two landmark statutes. The first ofthese was the Death on the High Seas Act, 41 Stat. 537,46 U.S.C. s 761 et seq....
* * *
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The second statute was the Jones Act, 41 Stat. 1007, 46U.S.C. s 688, which, by extending to seamen theprotections of the Federal Employers' Liability Act,provided a right of recovery against their employers fornegligence resulting in injury or death. This rightfollows from the seaman's employment status and is notlimited to injury or death occurring on the high seas.
The United States, participating as amicus curiae,contended at oral argument that these statutes, ifconstrued to forbid recognition of a general maritimeremedy for wrongful death within territorial waters,would perpetuate three anomalies of present law. Thefirst of these is simply the discrepancy producedwhenever the rule of The Harrisburg holds sway: withinterritorial waters, identical conduct violating federal law(here the furnishing of an unseaworthy vessel) producesliability if the victim is merely injured, but frequentlynot if he is killed. As we have concluded, such adistinction is not compatible with the general policies offederal maritime law.
The second incongruity is that identical breaches of theduty to provide a seaworthy ship, resulting in death,produce liability outside the three-mile limit--since aclaim under the Death on the High Seas Act may befounded on unseaworthiness, see Kernan v. AmericanDredging Co., 355 U.S. 426, 430 n. 4, 78 S.Ct. 394,397, 2 L.Ed.2d 382 (1958)--but not within the territorialwaters of a State whose local statute excludesunseaworthiness claims. The United States argues thatsince the substantive duty is federal, and federalmaritime jurisdiction covers navigable waters withinand without the three-mile limit, no rational policysupports this distinction in the availability of a remedy.
The third, and assertedly the 'strangest' anomaly is thata true seaman--that is, a member of a ship's company,covered by the Jones Act--is provided no remedy fordeath caused by unseaworthiness within territorialwaters, while a longshoreman, to whom the duty ofseaworthiness was extended only because he performswork traditionally done by seamen, does have such aremedy when allowed by a state statute.
There is much force to the United States' argument thatthese distinctions are so lacking in any apparentjustification that we should not, in the absence ofcompelling evidence, presume that Congressaffirmatively intended to freeze them into maritime law.There should be no presumption that Congress hasremoved this Court's traditional responsibility tovindicate the policies of maritime law by ceding thatfunction exclusively to the States. However, respondentsargue that an intent to do just that is manifested by theportions of the Death on the High Seas Act quotedabove.
* * *Read in light of the state of maritime law in 1920, webelieve this legislative history indicates that Congressintended to ensure the continued availability of aremedy, historically provided by the States, for deathsin territorial waters; its failure to extend the Act to coversuch deaths primarily reflected the lack of necessity forcoverage by a federal statute, rather than an affirmativedesire to insulate such deaths from the benefits of anyfederal remedy that might be available independently ofthe Act. The void that existed in maritime law up until1920 was the absence of any remedy for wrongful deathon the high seas. Congress, in acting to fill that void,legislated only to the three-mile limit because that wasthe extent of the problem. The express provision thatstate remedies in territorial waters were not disturbed bythe Act ensured that Congress' solution of one problemwould not create another by inviting the courts to findthat the Act pre-empted the entire field, destroying thestate remedies that had previously existed.
The beneficiaries of persons meeting death on territorialwaters did not suffer at that time from being excludedfrom the coverage of the Act. To the contrary, the stateremedies that were left undisturbed not only werefamiliar but also may actually have been more generousthan the remedy provided by the new Act....
* * *We conclude that the Death on the High Seas Act wasnot intended to preclude the availability of a remedyfor wrongful death under general maritime law insituations not covered by the Act. Because the refusalof maritime law to provide such a remedy appears tobe jurisprudentially unsound and to have producedserious confusion and hardship, that refusal shouldcease unless there are substantial countervailingfactors that dictate adherence to The Harrisburgsimply as a matter of stare decisis. We now turn to aconsideration of those factors.
* * *IV
* * *V
* * *The one aspect of a claim for wrongful death that has noprecise counterpart in the established law governingnonfatal injuries is the determination of the beneficiarieswho are entitled to recover. General maritime law,which denied any recovery for wrongful death, found noneed to specify which dependents should receive suchrecovery. On this question, petitioner and the UnitedStates argue that we may look for guidance to theexpressions of Congress, which has spoken on thissubject in the Death on the High Seas Act, the JonesAct, and the Longshoremen's and Harbor Workers'Compensation Act. Though very similar, each of theseprovisions differs slightly in the naming of dependent
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relatives who may recover and in the priority given totheir claims.
The United States contends that, of the three, theprovision that should be borrowed for wrongful-deathactions under general maritime law is that of the Deathon the High Seas Act. It is the congressional enactmentthat deals specifically and exclusively with actions forwrongful death, and that simply provides a remedy--fordeaths on the high seas--for breaches of the dutiesimposed by general maritime law. In contrast, thebeneficiary provisions of the Jones Act are applicableonly to a specific class of actions--claims by seamenagainst their employers--based on violations of thespecial standard of negligence that has been imposedunder the Federal Employers' Liability Act. Thatstandard appears to be unlike any imposed by generalmaritime law. Further, although the Longshoremen's andHarbor Workers' Compensation Act is applicable tolongshoremen such as petitioner's late husband, itsprinciples of recovery are wholly foreign to those ofgeneral maritime law--like most workmen'scompensation laws, it deals only with theresponsibilities of employers for death or injury to theiremployees, and provides standardized amounts ofcompensation regardless of fault on the part of theemployer.
The only one of these statutes that applies not just to aclass of workers but to any 'person,' and that basesliability on conduct violative of general maritime law, isthe Death on the High Seas Act. The borrowing of itsschedule of beneficiaries, argues the United States, willnot only effectuate the expressed congressionalpreferences in this area but will also promote uniformityby ensuring that the beneficiaries will be the same foridentical torts, rather than varying with the employmentstatus of the decedent. There is no occasion, accordingto this argument, to borrow from the law of the relevantcoastal State, since the underlying duties to beeffectuated are entirely federal and Congress hasexpressed its preference of beneficiaries for violationsof maritime law.
We do not determine this issue now, for we think itsfinal resolution should await further sifting through thelower courts in future litigation. For present purposeswe conclude only that its existence affords no sufficientreason for not coming to grips with The Harrisburg. Ifstill other subsidiary issues should require resolution,such as particular questions of the measure of damages,the courts will not be without persuasive analogy forguidance. Both the Death on the High Seas Act and thenumerous state wrongful-death acts have beenimplemented with success for decades. The experiencethus built up counsels that a suit for wrongful deathraises no problems unlike those that have long been grist
for the judicial mill.* * *
We accordingly overrule The Harrisburg, had hold thatan action does lie under general maritime law for deathcaused by violation of maritime duties. The judgment ofthe Court of Appeals is reversed, and the case isremanded to that court for further proceedingsconsistent with this opinion. It is so ordered.
Reversed and remanded.
110 S.Ct. 1295
MILESv.
APEX MARINE CORPORATIONNo. 89-1158
Argued Oct. 3, 1990Decided Nov. 6, 1990
O'CONNOR, J., delivered the opinion of the Court, inwhich all other Members joined, except SOUTER, J.,who took no part in the consideration or decision of thecase.
We decide whether the parent of a seaman who diedfrom injuries incurred aboard respondents' vessel mayrecover under general maritime law for loss of society,and whether a claim for the seaman's lost futureearnings survives his death.
ILudwick Torregano was a seaman aboard the vesselM/V Archon. On the evening of July 18, 1984, CliffordMelrose, a fellow crew member, stabbed Torreganorepeatedly, killing him. At the time, the ship wasdocked in the harbor of Vancouver, Washington.
Mercedel Miles, Torregano's mother and administratrixof his estate, sued Apex Marine Corporation andWestchester Marine Shipping Company, the vessel'soperators, Archon Marine Company, the charterer, andAeron Marine Company, the Archon's owner(collectively Apex), in the United States District Courtfor the Eastern District of Louisiana. Miles allegednegligence under the Jones Act, 41 Stat. 1007, asamended, 46 U.S.C.App. § 688, for failure to preventthe assault on her son, and breach of the warranty ofseaworthiness under general maritime law for hiring acrew member unfit to serve. She sought compensationfor loss of support and services and loss of societyresulting from the death of her son, punitive damages,and compensation to the estate for Torregano's pain andsuffering prior to his death and for his lost futureincome.
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At trial, the District Court granted Apex's motion tostrike the claim for punitive damages, ruled that theestate could not recover Torregano's lost future income,and denied Miles' motion for a directed verdict as tonegligence and unseaworthiness. The court instructedthe jury that Miles could not recover damages for loss ofsociety if they found that she was not financiallydependent on her son.
The jury found that Apex was negligent and thatTorregano was 7% contributorily negligent in causinghis death, but that the ship was seaworthy. Afterdiscounting for Torregano's contributory negligence, thejury awarded Miles $7,254 for the loss of support andservices of her son and awarded the estate $130,200 forTorregano's pain and suffering. The jury also foundthat Miles was not financially dependent on her son andtherefore not entitled to damages for loss of society. The District Court denied both parties' motions forjudgment notwithstanding the verdict and enteredjudgment accordingly.
The United States Court of Appeals for the Fifth Circuitaffirmed in part, reversed in part, and remanded. 882F.2d 976 (1989). The court affirmed the judgment ofnegligence on the part of Apex, but held that there wasinsufficient evidence to support the contributorynegligence finding. Id., at 983-985. Miles wastherefore entitled to the full measure of $7,800 for lossof support and services, and the estate was entitled to$140,000 for Torregano's pain and suffering. The courtalso found that Melrose's extraordinarily violentdisposition demonstrated that he was unfit and thereforethat the Archon was unseaworthy as a matter of law. Id., at 983. Because this ruling revived Miles' generalmaritime claim, the court considered two questionsconcerning the scope of damages under generalmaritime law. The court reaffirmed *23 its priordecision in Sistrunk v. Circle Bar Drilling Co., 770 F.2d455 (1985), holding that a nondependent parent may notrecover for loss of society in a general maritimewrongful death action. 882 F.2d, at 989. It also heldthat general maritime law does not permit a survivalaction for decedent's lost future earnings. Id., at 987.
We granted Miles' petition for certiorari on these twoissues, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 472(1990), and now affirm the judgment of the Court ofAppeals.
IIWe rely primarily on Moragne v. States Marine Lines,Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339(1970).
* * *III
* * *The Jones Act provides an action in negligence for thedeath or injury of a seaman. It thereby overruled TheOsceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760(1903), which established that seamen could recoverunder general maritime law for injuries resulting fromunseaworthiness, but not negligence. The Jones Actevinces no general hostility to recovery under maritimelaw. It does not disturb seamen's general maritimeclaims for injuries resulting from unseaworthiness,Pacific S.S. Co. v. Peterson, 278 U.S. 130, 139, 49 S.Ct.75, 78, 73 L.Ed. 220 (1928), and it does not preclude therecovery for wrongful death due to unseaworthinesscreated by its companion statute, DOHSA. Kernan v.American Dredging Co., 355 U.S. 426, 430, n. 4, 78S.Ct. 394, 397, n. 4, 2 L.Ed.2d 382 (1958). Rather, theJones Act establishes a uniform system of seamen's tortlaw parallel to that available to employees of interstaterailway carriers under FELA. As the Court concludedin Moragne, the extension of the DOHSA wrongfuldeath action to territorial waters furthers rather thanhinders uniformity in the exercise of admiraltyjurisdiction. Moragne, supra, 398 U.S., at 396, n. 12,90 S.Ct., at 1785, n. 12.
There is also little question that Moragne intended tocreate a general maritime wrongful death actionapplicable beyond the situation of longshoremen. Forone thing, Moragne explicitly overruled The Harrisburg.Moragne, supra, 398 U.S., at 409, 90 S.Ct., at 1792. The Harrisburg involved a true seaman. TheHarrisburg, 119 U.S., at 200, 7 S.Ct., at 141. Inaddition, all three of the "anomalies" to which theMoragne cause of action was directed involved seamen. The "strangest" anomaly--that recovery was availablefor the wrongful death in territorial waters of alongshoreman, but not a true seaman--could only beremedied if the Moragne wrongful death actionextended to seamen. It would be strange indeed werewe to read Moragne as not addressing a problem that inlarge part motivated its result. If there has been anydoubt about the matter, we today make explicit thatthere is a general maritime cause of action for thewrongful death of a seaman, adopting the reasoning ofthe unanimous and carefully crafted opinion inMoragne.
IVMoragne did not set forth the scope of the damagesrecoverable under the maritime wrongful death action. The Court first considered that question in Sea-LandServices, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39L.Ed.2d 9 (1974). Respondent brought a generalmaritime action to recover for the wrongful death of herhusband, a longshoreman. The Court held that adependent plaintiff in a maritime wrongful death actioncould recover for the pecuniary losses of support,
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services, and funeral expenses, as well as for thenonpecuniary loss of society suffered as the result of thedeath. Id., at 591, 94 S.Ct., at 818. Gaudet involved thedeath of a longshoreman in territorial waters.Consequently, the Court had no need to consider thepreclusive effect of DOHSA for deaths on the high seasor the Jones Act for deaths of true seamen.
We considered DOHSA in Mobil Oil Corp. v.Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d581 (1978). That case involved death on the high seasand, like Gaudet, presented the question of loss ofsociety damages in a maritime wrongful death action. The Court began by recognizing that Gaudet, althoughbroadly written, applied only in territorial waters andtherefore did not decide the precise question presented. 436 U.S., at 622-623, 98 S.Ct., at 2013-2014. Congressmade the decision for us. DOHSA, by its terms, limitsrecoverable damages in wrongful death suits to"pecuniary loss sustained by the persons for whosebenefit the suit is brought." 46 U.S.C.App. § 762(emphasis added). This explicit limitation foreclosesrecovery for non-pecuniary loss, such as loss of society,in a general maritime action.
Respondents argued that admiralty courts havetraditionally undertaken to supplement maritimestatutes. The Court's answer in Higginbotham is fullyconsistent with those principles we have here derivedfrom Moragne: Congress has spoken directly to thequestion of recoverable damages on the high seas, and"when it does speak directly to a question, the courts arenot free to 'supplement' Congress' answer so thoroughlythat the Act becomes meaningless." Higginbotham,supra, at 625, 98 S.Ct., at 2015. Moragne involved gapfilling in an area left open by statute; supplementationwas entirely appropriate. But in an "area covered bythe statute, it would be no more appropriate to prescribea different measure of damages than to prescribe adifferent statute of limitations, or a different class ofbeneficiaries." Higginbotham, supra, at 625, 98 S.Ct., at2015.
The logic of Higginbotham controls our decision here. The holding of Gaudet applies only in territorial waters,and it applies only to longshoremen. Gaudet did notconsider the preclusive effect of the Jones Act for deathsof true seamen. We do so now.
Unlike DOHSA, the Jones Act does not explicitly limitdamages to any particular form. Enacted in 1920, theJones Act makes applicable to seamen the substantiverecovery provisions of the older FELA. See 46U.S.C.App. § 688. FELA recites only that employersshall be liable in "damages" for the injury or death ofone protected under the Act. 45 U.S.C. § 51. InMichigan Central R. Co. v. Vreeland, 227 U.S. 59, 33
S.Ct. 192, 57 L.Ed. 417 (1913), however, the Courtexplained that the language of the FELA wrongful deathprovision is essentially identical to that of LordCampbell's Act, 9 & 10 Vict. ch. 93 (1846), the firstwrongful death statute. Lord Campbell's Act also didnot limit explicitly the "damages" to be recovered, butthat Act and the many state statutes that followed itconsistently had been interpreted as providing recoveryonly for pecuniary loss. Vreeland, 227 U.S., at 69-71,33 S.Ct., at 195-196. The Court so construed FELA. Ibid.
When Congress passed the Jones Act, the Vreelandgloss on FELA, and the hoary tradition behind it, werewell established. Incorporating FELA unaltered intothe Jones Act, Congress must have intended toincorporate the pecuniary limitation on damages as well. We assume that Congress is aware of existing lawwhen it passes legislation. See Cannon v. University ofChicago, 441 U.S. 677, 696-697, 99 S.Ct. 1946, 1957,60 L.Ed.2d 560 (1979). There is no recovery for loss ofsociety in a Jones Act wrongful death action.
The Jones Act also precludes recovery for loss ofsociety in this case. The Jones Act applies when aseaman has been killed as a result of negligence, and itlimits recovery to pecuniary loss. The general maritimeclaim here alleged that Torregano had been killed as aresult of the unseaworthiness of the vessel. It would beinconsistent with our place in the constitutional schemewere we to sanction more expansive remedies in ajudicially created cause of action in which liability iswithout fault than Congress has allowed in cases ofdeath resulting from negligence. We must concludethat there is no recovery for loss of society in a generalmaritime action for the wrongful death of a Jones Actseaman.
Our decision also remedies an anomaly we created inHigginbotham. Respondents in that case warned thatthe elimination of loss of society damages for wrongfuldeaths on the high seas would create an unwarrantedinconsistency between deaths in territorial waters, whereloss of society was available under Gaudet, and deathson the high seas. We recognized the value ofuniformity, but concluded that a concern for consistencycould not override the statute. Higginbotham, supra,436 U.S., at 624, 98 S.Ct., at 2014. Today we restorea uniform rule applicable to all actions for the wrongfuldeath of a seaman, whether under DOHSA, the JonesAct, or general maritime law.
VWe next must decide whether, in a general maritimeaction surviving the death of a seaman, the estate canrecover decedent's lost future earnings. Undertraditional maritime law, as under common law, there is
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no right of survival; a seaman's personal cause of actiondoes not survive the seaman's death. Cortes v.Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53S.Ct. 173, 174, 77 L.Ed. 368 (1932); Romero v.International Terminal Operating Co., 358 U.S. 354,373, 79 S.Ct. 468, 480, 3 L.Ed.2d 368 (1959); Gillespie,379 U.S., at 157, 85 S.Ct., at 313-314.
Congress and the States have changed the rule in manyinstances. The Jones Act, through its incorporation ofFELA, provides that a seaman's right of action forinjuries due to negligence survives to the seaman'spersonal representative. See 45 U.S.C. § 59; Gillespie,supra, at 157, 85 S.Ct., at 313. Most States havesurvival statutes applicable to tort actions generally, see1 S. Speiser, Recovery for Wrongful Death 2d § 3.2(1975 and Supp.1989), 2 id., §§ 14.1, 14.3, App. A, andadmiralty courts have applied these state statutes inmany instances to preserve suits for injury at sea. See,e.g., Just v. Chambers, 312 U.S. 383, 391, 61 S.Ct. 687,693, 85 L.Ed. 903 (1941). See also Kernan v. American Dredging Co., 355 U.S., at 430, n. 4, 78 S.Ct., at 397, n.4; Kossick v. United Fruit Co., 365 U.S. 731, 739, 81S.Ct. 886, 892, 6 L.Ed.2d 56 (1961); Gillespie, supra,379 U.S., at 157, 85 S.Ct., at 313-314; Comment,Application of State Survival Statutes in MaritimeCauses, 60 Colum.L.Rev. 534, 535, n. 11 (1960); Nagy,The General Maritime Law Survival Action: What arethe Elements of Recoverable Damages?, 9 U.Haw.L.Rev. 5, 27 (1987). Where these state statutes do notapply, however, or where there is no state survivalstatute, there is no survival of unseaworthiness claimsabsent a change in the traditional maritime rule.
Several Courts of Appeals have relied on Moragne tohold that there is a general maritime right of survival. See Spiller v. Thomas M. Lowe, Jr., & Assocs., Inc., 466F.2d 903, 909 (CA8 1972); Barbe v. Drummond, 507F.2d 794, 799-800 (CA1 1974); Law v. Sea DrillingCorp., 523 F.2d 793, 795 (CA5 1975); Evich v.Connelly, 759 F.2d 1432, 1434 (CA9 1985). As we havenoted, Moragne found that congressional and stateabrogation of the maritime rule against wrongful deathactions demonstrated a strong policy judgment, to whichthe Court deferred. Moragne, 398 U.S., at 388-393, 90S.Ct., at 1781-1784. Following this reasoning, thelower courts have looked to the Jones Act and the manystate survival statutes and concluded that theseenactments dictate a change in the general maritime ruleagainst survival. See, e.g., Spiller, supra, at 909; Barbe,supra, at 799-800, and n. 6.
Miles argues that we should follow the Courts ofAppeals and recognize a general maritime survival right. Apex urges us to reaffirm the traditional maritime ruleand overrule these decisions. We decline to address theissue, because its resolution is unnecessary to our
decision on the narrow question presented: whether theincome decedent would have earned but for his death isrecoverable. We hold that it is not.
Recovery of lost future income in a survival suit will, inmany instances, be duplicative of recovery bydependents for loss of support in a wrongful deathaction; the support dependents lose as a result of aseaman's death would have come from the seaman'sfuture earnings.
* * *The Jones Act/FELA survival provision limits recoveryto losses suffered during the decedent's lifetime. See 45U.S.C. § 59. This was the established rule under FELAwhen Congress passed the Jones Act, incorporatingFELA, see St. Louis, I.M. & S.R. Co., supra, 237 U.S.,at 658, 35 S.Ct., at 706, and it is the rule under the JonesAct. See Van Beeck, supra, 300 U.S., at 347, 57 S.Ct.,at 454-455. Congress has limited the survival right forseamen's injuries resulting from negligence. As withloss of society in wrongful death actions, this foreclosesmore expansive remedies in a general maritime actionfounded on strict liability. We will not create, under ouradmiralty powers, a remedy that is disfavored by a clearmajority of the States and that goes well beyond thelimits of Congress' ordered system of recovery forseamen's injury and death. Because Torregano's estatecannot recover for his lost future income under theJones Act, it cannot do so under general maritime law.
VICognizant of the constitutional relationship betweenthe courts and Congress, we today act in accordancewith the uniform plan of maritime tort law Congresscreated in DOHSA and the Jones Act. We hold thatthere is a general maritime cause of action for thewrongful death of a seaman, but that damagesrecoverable in such an action do not include loss ofsociety. We also hold that a general maritimesurvival action cannot include recovery for decedent'slost future earnings. Accordingly, the judgment of theCourt of Appeals is
Affirmed.
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NoteSome federal courts have used the Miles analysis to deny recovery for loss of consortium in
personal injury cases not resulting in death. See Murray v. Bertucci Constr. Co., 985 F.2d 127 (5 Cir.th
1992).
E. Application of State Death Actions in Maritime Cases
116 S.Ct. 619
YAMAHA MOTOR CORPORATION, U.S.A.v.
CALHOUNNo. 94-1387
Argued Oct. 31, 1995Decided Jan. 9, 1996
Justice GINSBURG delivered the opinion of the Court.
Twelve-year-old Natalie Calhoun was killed in a jet skiaccident on July 6, 1989. At the time of her death, shewas vacationing with family friends at a beach-front resortin Puerto Rico. Alleging that the jet ski was defectivelydesigned or made, Natalie's parents sought to recoverfrom the manufacturer pursuant to state survival andwrongful-death statutes. The manufacturer contended thatstate remedies could not be applied because Natalie diedon navigable waters; federal, judge-declared maritimelaw, the manufacturer urged, controlled to the exclusion ofstate law.
Traditionally, state remedies have been applied in accidentcases of this order--maritime wrongful-death cases inwhich no federal statute specifies the appropriate relief andthe decedent was not a seaman, longshore worker, orperson otherwise engaged in a maritime trade. We hold,in accord with the United States Court of Appeals for theThird Circuit, that state remedies remain applicable insuch cases and have not been displaced by the federalmaritime wrongful-death action recognized in Moragne v.States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26L.Ed.2d 339 (1970).
I* * *
The Calhouns, individually and in their capacities asadministrators of their daughter's estate, sued Yamaha inthe United States District Court for the Eastern District ofPennsylvania. Invoking Pennsylvania's wrongful- deathand survival statutes, 42 Pa. Cons.Stat. §§ 8301-8302(1982 and Supp.1995), the Calhouns asserted several basesfor recovery (including negligence, strict liability, andbreach of implied warranties), and sought damages for lostfuture earnings, loss of society, loss of support andservices, and funeral expenses, as well as punitivedamages. They grounded federal jurisdiction on both
diversity of citizenship, 28 U.S.C. § 1332 and admiralty,28 U.S.C. § 1333.
* * *We therefore proceed to the issue on which certiorari wasgranted: Does the federal maritime claim for wrongfuldeath recognized in Moragne supply the exclusive remedyin cases involving the deaths of nonseafarers in territorialwaters?
IIIBecause this case involves a watercraft collision onnavigable waters, it falls within admiralty's domain. SeeSisson v. Ruby, 497 U.S. 358, 361-367, 110 S.Ct. 2892,2895-2898, 111 L.Ed.2d 292 (1990); Foremost Ins. Co. v.Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 2659, 73L.Ed.2d 300 (1982). "With admiralty jurisdiction," wehave often said, "comes the application of substantiveadmiralty law." East River S.S. Corp. v. TransamericaDelaval Inc., 476 U.S. 858, 864, 106 S.Ct. 2295,2298-2299, 90 L.Ed.2d 865 (1986). The exercise ofadmiralty jurisdiction, however, "does not result inautomatic displacement of state law." Jerome B. Grubart,Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,545, 115 S.Ct. 1043, 1054, 130 L.Ed.2d 1024 (1995).Indeed, prior to Moragne, federal admiralty courtsroutinely applied state wrongful-death and survivalstatutes in maritime accident cases. The question before usis whether Moragne should be read to stop that practice.
Our review of maritime wrongful-death law begins withThe Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358(1886), where we held that the general maritime law (aspecies of judge-made federal common law) did not afforda cause of action for wrongful death. The HarrisburgCourt said that wrongful-death actions are statutory andmay not be created by judicial decree.***
Federal admiralty courts tempered the harshness of TheHarrisburg 's rule by allowing recovery under statewrongful-death statutes. See, e.g., The Hamilton, 207U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907); The City ofNorwalk, 55 F. 98 (S.D.N.Y.1893). We reaffirmed thispractice in Western Fuel Co. v. Garcia, 257 U.S. 233, 42S.Ct. 89, 66 L.Ed. 210 (1921), by holding that California'swrongful-death statute governed a suit brought by thewidow of a maritime worker killed in that State's territorialwaters. * * * On similar reasoning, we also held that statesurvival statutes may be applied in cases arising out ofaccidents in territorial waters. See Just v. Chambers, 312
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U.S. 383, 391-392, 61 S.Ct. 687, 692-693, 85 L.Ed. 903(1941).
State wrongful-death statutes proved an adequatesupplement to federal maritime law, until a series of thisCourt's decisions transformed the maritime doctrine ofunseaworthiness into a strict-liability rule. Prior to 1944,unseaworthiness "was an obscure and relatively littleused" liability standard, largely because "a shipowner'sduty at that time was only to use due diligence to providea seaworthy ship." Miles v. Apex Marine Corp., 498 U.S.19, 25, 111 S.Ct. 317, 322, 112 L.Ed.2d 275 (1990)(internal quotation marks omitted). See also Moragne,398 U.S., at 398-399, 90 S.Ct., at 1786- 1787. Mahnich v.Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561(1944), however, notably expanded a shipowner's liabilityto injured seamen by imposing a nondelegable duty "tofurnish a vessel and appurtenances reasonably fit for theirintended use." Mitchell v. Trawler Racer, Inc., 362 U.S.539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). Theduty imposed was absolute; failure to supply a safe shipresulted in liability "irrespective of fault and irrespectiveof the intervening negligence of crew members." Miles,498 U.S., at 25, 111 S.Ct., at 322. The unseaworthinessdoctrine thus became a "species of liability without fault,"Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct.872, 877, 90 L.Ed. 1099 (1946), and soon eclipsedordinary negligence as the primary basis of recovery whena seafarer was injured or killed. Miles, 498 U.S., at 25-26,111 S.Ct., at 321-322.
The disparity between the unseaworthiness doctrine'sstrict-liability standard and negligence-based statewrongful-death statutes figured prominently in ourlandmark Moragne decision. Petsonella Moragne, thewidow of a longshore worker killed in Florida's territorialwaters, brought suit under Florida's wrongful-death andsurvival statutes, alleging both negligence andunseaworthiness. The District Court dismissed the claimfor wrongful death based on unseaworthiness, citing thisCourt's decision in The Tungus v. Skovgaard, 358 U.S.588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959). There, a sharplydivided Court held that "when admiralty adopts a State'sright of action for wrongful death, it must enforce the rightas an integrated whole, with whatever conditions andlimitations the creating State has attached." Id., at 592, 79S.Ct., at 506. Thus, in wrongful-death actions involvingfatalities in territorial waters, state statutes provided thestandard of liability as well as the remedial regime.Because the Florida Supreme Court had previously heldthat Florida's wrongful-death statute did not encompassunseaworthiness as a basis of liability, the Court ofAppeals affirmed the dismissal of Moragne'sunseaworthiness claim. See Moragne, 398 U.S., at 377, 90S.Ct., at 1775-1776.
The Court acknowledged in Moragne that The Tungus had
led to considerable uncertainty over the role state lawshould play in remedying deaths in territorial waters, butconcluded that "the primary source of the confusion is notto be found in The Tungus, but in The Harrisburg. " 398U.S., at 378, 90 S.Ct., at 1776. Upon reexamining thesoundness of The Harrisburg, we decided that its holding,"somewhat dubious even when rendered, is such anunjustifiable anomaly in the present maritime law that itshould no longer be followed." 398 U.S., at 378, 90 S.Ct.,at 1776. Accordingly, the Court overruled The Harrisburgand held that an action "lie [s] under general maritime lawfor death caused by violation of maritime duties." 398U.S., at 409, 90 S.Ct., at 1792.
IVYamaha argues that Moragne--despite its focus on"maritime duties" owed to maritime workers--covers thewaters, creating a uniform federal maritime remedy for alldeaths occurring in state territorial waters, and ousting allpreviously available state remedies. In Yamaha's view,state remedies can no longer supplement general maritimelaw (as they routinely did before Moragne), becauseMoragne launched a solitary federal scheme. Yamaha'sreading of Moragne is not without force; in severalcontexts, we have recognized that vindication of maritimepolicies demanded uniform adherence to a federal rule ofdecision, with no leeway for variation or supplementationby state law. See, e.g., Kossick v. United Fruit Co., 365U.S. 731, 742, 81 S.Ct. 886, 894, 6 L.Ed.2d 56 (1961)(federal maritime rule validating oral contracts precludedapplication of state Statute of Frauds); Pope & Talbot,Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 204-205,98 L.Ed. 143 (1953) (admiralty's comparative negligencerule barred application of state contributory negligencerule); Garrett v. Moore-McCormack Co., 317 U.S. 239,248-249, 63 S.Ct. 246, 252-253, 87 L.Ed. 239 (1942)(federal maritime rule allocating burden of proof displacedconflicting state rule). In addition, Yamaha correctlypoints out that uniformity concerns informed our decisionin Moragne.
The uniformity concerns that prompted us to overrule TheHarrisburg, however, were of a different order than thoseinvoked by Yamaha. Moragne did not reexamine thesoundness of The Harrisburg out of concern that statemonetary awards in maritime wrongful-death cases wereexcessive, or that variations in the remedies afforded bythe States threatened to interfere with the harmoniousoperation of maritime law. Variations of this sort hadlong been deemed compatible with federal maritimeinterests. See Western Fuel, 257 U.S., at 242, 42 S.Ct., at90-91. The uniformity concern that drove our decision inMoragne related, instead, to the availability ofunseaworthiness as a basis of liability.
By 1970, when Moragne was decided, claims premised onunseaworthiness had become "the principal vehicle for
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recovery" by seamen and other maritime workers injuredor killed in the course of their employment. Moragne, 398U.S., at 399, 90 S.Ct., at 1786-1787. But with TheHarrisburg in place, troubling anomalies had developedthat many times precluded the survivors of maritimeworkers from recovering for deaths caused by anunseaworthy vessel. The Moragne Court identified threeanomalies and concluded they could no longer betolerated.
First, the Court noted that "within territorial waters,identical conduct violating federal law (here the furnishingof an unseaworthy vessel) produces liability if the victimis merely injured, but frequently not if he is killed." 398U.S., at 395, 90 S.Ct., at 1785. This occurred because innonfatal injury cases, state substantive liability standardswere superseded by federal maritime law, see Kermarec v.Compagnie Generale Transatlantique, 358 U.S. 625, 628,79 S.Ct. 406, 408-409, 3 L.Ed.2d 550 (1959); Pope &Talbot, 346 U.S., at 409, 74 S.Ct., at 204-205, whichprovided for maritime worker recovery based onunseaworthiness. But if the same worker met death in theterritorial waters of a State whose wrongful-death statutedid not encompass unseaworthiness (as was the case inMoragne itself), the survivors could not proceed under thatgenerous standard of liability. See The Tungus, 358 U.S.,at 592-593, 79 S.Ct., at 506-507.
Second, we explained in Moragne that "identical breachesof the duty to provide a seaworthy ship, resulting in death,produce liability outside the three-mile limit ... but notwithin the territorial waters of a State whose local statuteexcludes unseaworthiness claims." 398 U.S., at 395, 90S.Ct., at 1785. This occurred because survivors of amaritime worker killed on the high seas could sue forwrongful death under the Death on the High Seas Act(DOHSA), 46 U.S.C.App. § 761 et seq. (1988 ed.), whichencompasses unseaworthiness as a basis of liability. Moragne, 398 U.S., at 395, 90 S.Ct., at 1784- 1785 (citingKernan v. American Dredging Co., 355 U.S. 426, 430, n.4, 78 S.Ct. 394, 397 n. 4, 2 L.Ed.2d 382 (1958)).
Finally, we pointed out that "a true seaman [a member ofa ship's company] ... is provided no remedy for deathcaused by unseaworthiness within territorial waters, whilea longshoreman, to whom the duty of seaworthiness wasextended only because he performs work traditionallydone by seamen, does have such a remedy when allowedby a state statute." 398 U.S., at 395-396, 90 S.Ct., at 1785. This anomaly stemmed from the Court's rulings inLindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74L.Ed. 686 (1930), and Gillespie v. United States SteelCorp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964),that the Jones Act, 46 U.S.C.App. § 688 (1988 ed.), whichprovides only a negligence-based claim for the wrongfuldeath of seamen, precludes any state remedy, even oneaccommodating unseaworthiness. As a result, at the time
Moragne was decided, the survivors of a longshore workerkilled in the territorial waters of a State whosewrongful-death statute incorporated unseaworthiness couldsue under that theory, but the survivors of a similarlysituated seaman could not.
The anomalies described in Moragne relate to ships andthe workers who serve them, and to a distinctly maritimesubstantive concept--the unseaworthiness doctrine. TheCourt surely meant to "assure uniform vindication offederal policies," 398 U.S., at 401, 90 S.Ct., at 1788, withrespect to the matters it examined. The law as itdeveloped under The Harrisburg had forced on the Statesmore than they could bear--the task of "provid[ing] thesole remedy" in cases that did not involve "traditionalcommon-law concepts," but "concepts peculiar tomaritime law." 398 U.S., at 401, n. 15, 90 S.Ct., at 1788,n. 15 (internal quotation marks omitted). Discarding TheHarrisburg and declaring a wrongful-death right of actionunder general maritime law, the Court concluded, would"remov[e] the tensions and discrepancies" occasioned bythe need "to accommodate state remedial statutes toexclusively maritime substantive concepts." 398 U.S., at401, 90 S.Ct., at 1788.
Moragne, in sum, centered on the extension of relief, noton the contraction of remedies. The decision recalled that" 'it better becomes the humane and liberal character ofproceedings in admiralty to give than to withhold theremedy, when not required to withhold it by establishedand inflexible rules.' " Id., at 387, 90 S.Ct., at 1781(quoting The Sea Gull, 21 F.Cas. 909, 910 (C.C.Md.1865)(Chase, C. J.)). The Court tied Petsonella Moragne's pleabased on the unseaworthiness of the vessel to a federalright-of-action anchor, but notably left in place thenegligence claim she had stated under Florida's law. See398 U.S., at 376-377, 90 S.Ct. at 1775-1776.
* * *When Congress has prescribed a comprehensive tortrecovery regime to be uniformly applied, there is, we havegenerally recognized, no cause for enlargement of thedamages statutorily provided. See Miles, 498 U.S., at30-36, 111 S.Ct., at 324-328 (Jones Act, rather thangeneral maritime law, determines damages recoverable inaction for wrongful death of seamen); Offshore Logistics,Inc. v. Tallentire, 477 U.S. 207, 232, 106 S.Ct. 2485,2499, 91 L.Ed.2d 174 (1986) (DOHSA, which limitsdamages to pecuniary losses, may not be supplemented bynonpecuniary damages under a state wrongful-deathstatute); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618,624-625, 98 S.Ct. 2010, 2014-2015, 56 L.Ed.2d 581(1978) (DOHSA precludes damages for loss of societyunder general maritime law). But Congress has notprescribed remedies for the wrongful deaths ofnonseafarers in territorial waters. See Miles, 498 U.S., at31, 111 S.Ct., at 325. There is, however, a relevantcongressional disposition. Section 7 of DOHSA states:
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"The provisions of any State statute giving or regulatingrights of action or remedies for death shall not be affectedby this chapter." 46 U.S.C.App. § 767. This statement,by its terms, simply stops DOHSA from displacing statelaw in territorial waters. See Miles, 498 U.S., at 25, 111S.Ct., at 321-322; Tallentire, 477 U.S., at 224-225, 106S.Ct., at 2495-2496; Moragne, 398 U.S., at 397-398, 90S.Ct., at 1785-1786. Taking into account what Congresssought to achieve, we preserve the application of statestatutes to deaths within territorial waters.* * *For the reasons stated, we hold that the damages availablefor the jet ski death of Natalie Calhoun are properlygoverned by state law. The judgment of the Court ofAppeals for the Third Circuit is accordingly
Affirmed.
VIII. DAMAGES
A. Special Issues
128 S.Ct. 2605, 2008 A.M.C. 1521
EXXON SHIPPING COMPANYv.BAKERNo. 07-219
Argued Feb. 27, 2008Decided June 25, 2008
SOUTER, J., delivered the opinion of the Court, in whichROBERTS, C.J., and SCALIA, KENNEDY, andTHOMAS, JJ., joined, and in which STEVENS,GINSBURG, and BREYER, JJ., joined, as to Parts I, II,and III. SCALIA, J., filed a concurring opinion, in whichTHOMAS, J., joined. STEVENS, J., GINSBURG, J., andBREYER, J., filed opinions concurring in part anddissenting in part. ALITO, J., took no part in theconsideration or decision of the case.
SOUTER, J.
There are three questions of maritime law before us:whether a shipowner may be liable for punitive damageswithout acquiescence in the actions causing harm, whetherpunitive damages have been barred implicitly by federalstatutory law making no provision for them, and whetherthe award of $2.5 billion in this case is greater thanmaritime law should allow in the circumstances. We areequally divided on the owner's derivative liability, andhold that the federal statutory law does not bar a punitiveaward on top of damages for economic loss, but that theaward here should be limited to an amount equal tocompensatory damages.
IOn March 24, 1989, the supertanker Exxon Valdezgrounded on Bligh Reef off the Alaskan coast, fracturingits hull and spilling millions of gallons of crude oil intoPrince William Sound. The owner, petitioner ExxonShipping Co. (now SeaRiver Maritime, Inc.), and itsowner, petitioner Exxon Mobil Corp. (collectively,Exxon), have settled state and federal claims forenvironmental damage, with payments exceeding $1billion, and this action by respondent Baker and others,including commercial fishermen and native Alaskans, wasbrought for economic losses to individuals dependent onPrince William Sound for their livelihoods.
AThe tanker was over 900 feet long and was used by Exxonto carry crude oil from the end of the Trans-AlaskaPipeline in Valdez, Alaska, to the lower 48 States. On thenight of the spill it was carrying 53 million gallons ofcrude oil, or over a million barrels. Its captain was oneJoseph Hazelwood, who had completed a 28-day alcoholtreatment program while employed by Exxon, as hissuperiors knew, but dropped out of a prescribed follow-upprogram and stopped going to Alcoholics Anonymousmeetings. According to the District Court, “[t]here wasevidence presented to the jury that after Hazelwood wasreleased from [residential treatment], he drank in bars,parking lots, apartments, airports, airplanes, restaurants,hotels, at various ports, and aboard Exxon tankers.” In reExxon Valdez, No. A89-0095-CV, Order No. 265(D.Alaska, Jan. 27, 1995), p. 5, App. F to Pet. for Cert.255a-256a (hereinafter Order 265). The jury also heardcontested testimony that Hazelwood drank with Exxon
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officials and that members of the Exxon managementknew of his relapse. See ibid. Although Exxon had a clearpolicy prohibiting employees from serving onboard withinfour hours of consuming alcohol, see In re Exxon Valdez,270 F.3d 1215, 1238 (C.A.9 2001), Exxon presented noevidence that it monitored Hazelwood after his return toduty or considered giving him a shoreside assignment, seeOrder 265, p. 5, supra, at 256a. Witnesses testified thatbefore the Valdez left port on the night of the disaster,Hazelwood downed at least five double vodkas in thewaterfront bars of Valdez, an intake of about 15 ounces of80-proof alcohol, enough “that a non-alcoholic would havepassed out.” 270 F.3d, at 1236.
The ship sailed at 9:12 p.m. on March 23, 1989, guided bya state-licensed pilot for the first leg out, through theValdez Narrows. At 11:20 p.m., Hazelwood took activecontrol and, owing to poor conditions in the outboundshipping lane, radioed the Coast Guard for permission tomove east across the inbound lane to a less icy path. Underthe conditions, this was a standard move, which the lastoutbound tanker had also taken, and the Coast Guardcleared the Valdez to cross the inbound lane. The tankeraccordingly steered east toward clearer waters, but themove put it in the path of an underwater reef off BlighIsland, thus requiring a turn back west into the shippinglane around Busby Light, north of the reef.
Two minutes before the required turn, however,Hazelwood left the bridge and went down to his cabin inorder, he said, to do paperwork. This decision wasinexplicable. There was expert testimony that, even if theirpresence is not strictly necessary, captains simply do notquit the bridge during maneuvers like this, and nopaperwork could have justified it. And in fact the evidencewas that Hazelwood's presence was required, both becausethere should have been two officers on the bridge at alltimes and his departure left only one, and because he wasthe only person on the entire ship licensed to navigate thispart of Prince William Sound. To make matters worse,before going below Hazelwood put the tanker on autopilot,speeding it up, making the turn trickier, and any mistakeharder to correct.
As Hazelwood left, he instructed the remaining officer,third mate Joseph Cousins, to move the tanker back intothe shipping lane once it came abeam of Busby Light.Cousins, unlicensed to navigate in those waters, was leftalone with helmsman Robert Kagan, a nonofficer. Forreasons that remain a mystery, they failed to make the turnat Busby Light, and a later emergency maneuver attemptedby Cousins came too late. The tanker ran aground on BlighReef, tearing the hull open and spilling 11 million gallonsof crude oil into Prince William Sound.
After Hazelwood returned to the bridge and reported thegrounding to the Coast Guard, he tried but failed to rock
the Valdez off the reef, a maneuver which could havespilled more oil and caused the ship to founder. TheFN1
Coast Guard's nearly immediate response included a bloodtest of Hazelwood (the validity of which Exxon disputes)showing a blood-alcohol level of .061 eleven hours afterthe spill. Supp.App. 307sa. Experts testified that to havethis much alcohol in his bloodstream so long after theaccident, Hazelwood at the time of the spill must have hada blood-alcohol level of around .241, Order 265, p. 5,supra, at 256a, three times the legal limit for driving inmost States.
FN1. As it turned out, the tanker survived theaccident and remained in Exxon's fleet, which itsubsequently transferred to a wholly ownedsubsidiary, SeaRiver Maritime, Inc. The Valdez“was renamed several times, finally to theSeaRiver Mediterranean, [and] carried oilbetween the Persian Gulf and Japan, Singapore,and Australia for 12 years. ... In 2002, the shipwas pulled from service and ‘laid up’ off aforeign port (just where the owners won't say)and prepared for retirement, although, accordingto some reports, the vessel continues in serviceunder a foreign flag.” Exxon Valdez SpillAnniversary Marked, 30 Oil Spill IntelligenceReport 2 (Mar. 29, 2007).
In the aftermath of the disaster, Exxon spent around $2.1billion in cleanup efforts. The United States charged thecompany with criminal violations of the Clean Water Act,33 U.S.C. §§ 1311(a) and 1319(c)(1); the Refuse Act of1899, 33 U.S.C. §§ 407 and 411; the Migratory BirdTreaty Act, 16 U.S.C. §§ 703 and 707(a); the Ports andWaterways Safety Act, 33 U.S.C. § 1232(b)(1); and theDangerous Cargo Act, 46 U.S.C. § 3718(b). Exxonpleaded guilty to violations of the Clean Water Act, theRefuse Act, and the Migratory Bird Treaty Act and agreedto pay a $150 million fine, later reduced to $25 millionplus restitution of $100 million. A civil action by theUnited States and the State of Alaska for environmentalharms ended with a consent decree for Exxon to pay atleast $900 million toward restoring natural resources, andit paid another $303 million in voluntary settlements withfishermen, property owners, and other private parties.
BThe remaining civil cases were consolidated into this oneagainst Exxon, Hazelwood, and others. The District Courtfor the District of Alaska divided the plaintiffs seekingcompensatory damages into three classes: commercialfishermen, Native Alaskans, and landowners. At Exxon'sbehest, the court also certified a mandatory class of allplaintiffs seeking punitive damages, whose number topped32,000. Respondents here, to whom we will refer as Bakerfor convenience, are members of that class.
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For the purposes of the case, Exxon stipulated to itsnegligence in the Valdez disaster and its ensuing liabilityfor compensatory damages. The court designed the trialaccordingly: Phase I considered Exxon and Hazelwood'srecklessness and thus their potential for punitive liability;Phase II set compensatory damages for commercialfishermen and Native Alaskans; and Phase III determinedthe amount of punitive damages for which Hazelwood andExxon were each liable. (A contemplated Phase IV, settingcompensation for still other plaintiffs, was obviated bysettlement.)
In Phase I, the jury heard extensive testimony aboutHazelwood's alcoholism and his conduct on the night ofthe spill, as well as conflicting testimony about Exxonofficials' knowledge of Hazelwood's backslide. At theclose of Phase I, the Court instructed the jury in part that
“[a] corporation is responsible for the reckless acts ofthose employees who are employed in a managerialcapacity while acting in the scope of their employment.The reckless act or omission of a managerial officer oremployee of a corporation, in the course and scope ofthe performance of his duties, is held in law to be thereckless act or omission of the corporation.” App. K toPet. for Cert. 301a.
The Court went on that “[a]n employee of a corporation isemployed in a managerial capacity if the employeesupervises other employees and has responsibility for, andauthority over, a particular aspect of the corporation'sbusiness.” Ibid. Exxon did not dispute that Hazelwood wasa managerial employee under this definition, see App. G,id., at 264a, n. 8, and the jury found both Hazelwood andExxon reckless and thus potentially liable for punitivedamages, App. L, id., at 303a.FN2
FN2. The jury was not asked to consider thepossibility of any degree of fault beyond therange of reckless conduct. The record sent up tous shows that some thought was given to a trialplan that would have authorized jury findings asto greater degrees of culpability, see App. 164,but that plan was not adopted, whatever thereason; Baker does not argue this was error.
In Phase II the jury awarded $287 million in compensatorydamages to the commercial fishermen. After the Courtdeducted released claims, settlements, and other payments,the balance outstanding was $19,590,257. Meanwhile,most of the Native Alaskan class had settled theircompensatory claims for $20 million, and those who optedout of that settlement ultimately settled for a total ofaround $2.6 million.
In Phase III, the jury heard about Exxon's management'sacts and omissions arguably relevant to the spill. See App.
1291-1320, 1353-1367. At the close of evidence, the courtinstructed the jurors on the purposes of punitive damages,emphasizing that they were designed not to providecompensatory relief but to punish and deter thedefendants. See App. to Brief in Opposition 12a-14a. Thecourt charged the jury to consider the reprehensibility ofthe defendants' conduct, their financial condition, themagnitude of the harm, and any mitigating facts. Id., at15a. The jury awarded $5,000 in punitive damages againstHazelwood and $5 billion against Exxon.
On appeal, the Court of Appeals for the Ninth Circuitupheld the Phase I jury instruction on corporate liabilityfor acts of managerial agents under Circuit precedent. SeeIn re Exxon Valdez, 270 F.3d, at 1236 (citing ProtectusAlpha Nav. Co. v. North Pacific Grain Growers, Inc., 767F.2d 1379 (C.A.9 1985)). With respect to the size of thepunitive damages award, however, the Circuit remandedtwice for adjustments in light of this Court's due processcases before ultimately itself remitting the award to $2.5billion. See 270 F.3d, at 1246-1247,472 F.3d 600, 601,625 (2006)(per curiam), and 490 F.3d 1066, 1068 (2007).
We granted certiorari to consider whether maritime lawallows corporate liability for punitive damages on the basisof the acts of managerial agents, whether the Clean WaterAct (CWA), 86 Stat. 816, 33 U.S.C. § 1251 et seq. (2000ed. and Supp. V), forecloses the award of punitivedamages in maritime spill cases, and whether the punitivedamages awarded against Exxon in this case wereexcessive as a matter of maritime common law. 552 U.S.----, 128 S.Ct. 492, 169 L.Ed.2d 337 (2007). We nowvacate and remand.
IIOn the first question, Exxon says that it was error toinstruct the jury that a corporation “is responsible for thereckless acts of ... employees ... in a managerial capacitywhile acting in the scope of their employment.” App.FN3
K to Pet. for Cert. 301a. The Courts of Appeals have spliton this issue, and the company relies primarily on twoFN4
cases, The Amiable Nancy, 3 Wheat. 546, 4 L.Ed. 456(1818), and Lake Shore & Michigan Southern R. Co. v.Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893),to argue that this Court's precedents are clear that punitivedamages are not available against a shipowner for ashipmaster's recklessness. The former was a suit inadmiralty against the owners of The Scourge, a privateerwhose officers and crew boarded and plundered a neutralship, The Amiable Nancy. In upholding an award ofcompensatory damages, Justice Story observed that,
FN3. Baker emphasizes that the Phase I juryinstructions also allowed the jury to find Exxonindependently reckless, and that the evidence forfixing Exxon's punitive liability at Phase IIIrevolved around the recklessness of company
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officials in supervising Hazelwood and enforcingExxon's alcohol policies. Thus, Baker argues, itis entirely possible that the jury found Exxonreckless in its own right, and in no waypredicated its liability for punitive damages onExxon's responsibility for Hazelwood's conduct.Brief for Respondents 36-39.
The fact remains, however, that the jury was notrequired to state the basis of Exxon'srecklessness, and the basis for the finding couldhave been Exxon's own recklessness or justHazelwood's. Any error in instructing on thelatter ground cannot be overlooked, because“when it is impossible to know, in view of thegeneral verdict returned whether the juryimposed liability on a permissible or animpermissible ground, the judgment must bereversed and the case remanded.” GreenbeltCooperative Publishing Assn., Inc. v. Bresler,398 U.S. 6, 11, 90 S.Ct. 1537, 26 L.Ed.2d 6(1970) (internal quotation marks omitted).
FN4. Compare Protectus Alpha Nav. Co. v.North Pacific Grain Growers, Inc., 767 F.2d1379, 1386 (C.A.9 1985) (adopting Restatement(Second) of Torts rule), with CEH, Inc. v. F/VSeafarer, 70 F.3d 694, 705 (C.A.1 1995); In re P& E Boat Rentals, Inc., 872 F.2d 642, 652 (C.A.51989); United States Steel Corp. v. Fuhrman, 407F.2d 1143, 1148 (C.A.6 1969).
“if this were a suit against the original wrong-doers, itmight be proper to ... visit upon them in the shape ofexemplary damages, the proper punishment which belongsto such lawless misconduct. But it is to be considered, thatthis is a suit against the owners of the privateer, uponwhom the law has, from motives of policy, devolved aresponsibility for the conduct of the officers and crewemployed by them, and yet, from the nature of the service,they can scarcely ever be able to secure to themselves anadequate indemnity in cases of loss. They are innocent ofthe demerit of this transaction, having neither directed it,nor countenanced it, nor participated in it in the slightestdegree. Under such circumstances, we are of opinion, thatthey are bound to repair all the real injuries and personalwrongs sustained by the libellants, but they are not boundto the extent of vindictive damages.” The Amiable Nancy,supra, at 558-559 (emphasis in original).Exxon takes this statement as a rule barring punitiveliability against shipowners for actions by underlings not“directed,” “countenanced,” or “participated in” by theowners.
Exxon further claims that the Court confirmed this rule inLake Shore, supra, a railway case in which the Courtrelied on The Amiable Nancy to announce, as a matter of
pre-Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82L.Ed. 1188 (1938), general common law, that “[t]hough[a] principal is liable to make compensation for[intentional torts] by his agent, he is not liable to bepunished by exemplary damages for an intent in which hedid not participate.” 147 U.S., at 110, 13 S.Ct. 261.Because maritime law remains federal common law, andbecause the Court has never revisited the issue, Exxonargues that Lake Shore endures as sound evidence ofmaritime law. And even if the rule of Amiable Nancy andLake Shore does not control, Exxon urges the Court to fallback to a modern-day variant adopted in the context ofTitle VII of the Civil Rights Act of 1964 in Kolstad v.American Dental Assn., 527 U.S. 526, 544, 119 S.Ct.2118, 144 L.Ed.2d 494 (1999), that employers are notsubject to punitive damages for discriminatory conduct bytheir managerial employees if they can show that theymaintained and enforced good-faith antidiscriminationpolicies.
Baker supports the Ninth Circuit in upholding theinstruction, as it did on the authority of Protectus AlphaNav. Co., 767 F.2d 1379, which followed the Restatementrule recognizing corporate liability in punitive damages forreckless acts of managerial employees, see 4 Restatement(Second) of Torts § 909(c) (1977) (hereinafterRestatement). Baker says that The Amiable Nancy offersnothing but dictum, because punitive damages were not atissue, and that Lake Shore merely rejected companyliability for the acts of a railroad conductor, while sayingnothing about liability for agents higher up the ladder, likeship captains. He also makes the broader points that theopinion was criticized for failing to reflect the majorityrule of its own time, not to mention its conflict with therespondeat superior rule in the overwhelming share ofland-based jurisdictions today. Baker argues that themaritime rule should conform to modern land-basedcommon law, where a majority of States allow punitivedamages for the conduct of any employee, and most othersfollow the Restatement, imposing liability for managerialagents.
The Court is equally divided on this question, and “[i]f thejudges are divided, the reversal cannot be had, for no ordercan be made.” Durant v. Essex Co., 7 Wall. 107, 112, 19L.Ed. 154 (1869). We therefore leave the Ninth Circuit'sopinion undisturbed in this respect, though it should gowithout saying that the disposition here is not precedentialon the derivative liability question. See, e.g., Neil v.Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 34 L.Ed.2d 401(1972); Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80S.Ct. 1463, 4 L.Ed.2d 1708 (1960) (opinion of Brennan,J.).
III Exxon next says that, whatever the availability ofmaritime punitive damages at common law, the CWA
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preempts them. Baker responds with both procedural andmerits arguments, and although we do not dispose of theissue on procedure, a short foray into its history isworthwhile as a cautionary tale.
At the pretrial stage, the District Court controlled a floodof motions by an order staying them for any purposeexcept discovery. The court ultimately adopted acase-management plan allowing receipt of seven specificsummary judgment motions already scheduled, andrequiring a party with additional motions to obtain thecourt's leave. One of the motions scheduled soughtsummary judgment for Exxon on the ground that theTrans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43U.S.C. §§ 1651-1656, displaced maritime common lawand foreclosed the availability of punitive damages. TheDistrict Court denied the motion.
After the jury returned the Phase III punitive-damagesverdict on September 16, 1994, the parties stipulated thatall post-trial Federal Rules of Civil Procedure 50 and 59motions would be filed by September 30, and the court soordered. App. 1410-1411. Exxon filed 11 of them,including several seeking a new trial or judgment as amatter of law on one ground or another going to thepunitive damages award, all of which were denied alongwith the rest. On October 23, 1995, almost 13 months afterthe stipulated motions deadline, Exxon moved for theDistrict Court to suspend the motions stay, App. to Briefin Opposition 28a-29a, to allow it to file a “Motion andRenewed Motion ... for Judgment on Punitive DamagesClaims” under Rules 49(a) and 58(2) and, “to the extentthey may be applicable, pursuant to Rules 50(b), 56(b),56(d), 59(a), and 59(e),” App. to Brief in OppositionN5
30a-31a. Exxon's accompanying memorandum assertedthat two recent cases, Glynn v. Roy Al Boat ManagementCorp., 57 F.3d 1495 (C.A.9 1995), and Guevara v.Maritime Overseas Corp., 59 F.3d 1496 (C.A.5 1995),suggested that the rule of maritime punitive damages wasdisplaced by federal statutes, including the CWA. OnNovember 2, 1995, the District Court summarily deniedExxon's request to file the motion, App. to Brief inOpposition 35a, and in January 1996 (following thesettlement of the Phase IV compensatory claims) the courtentered final judgment.
FN5. Most of the rules under which Exxonsought relief are inapplicable on their face. SeeFed. Rules Civ. Proc. 49(a), 56(b), (d), and 58(2).Rules 50 and 59 are less inapt: they allow,respectively, entry of judgment as a matter of lawand alteration or amendment of the judgment. (Atoral argument, counsel for Exxon ultimatelycharacterized the motion as one under Rule 50.Tr. of Oral Arg. 25.)
But to say that Rules 50 and 59 are less inapt
than the other Rules is a long way from sayingthey are apt. A motion under Rule 50(b) is notallowed unless the movant sought relief onsimilar grounds under Rule 50(a) before the casewas submitted to the jury. See Rule 50(b); seealso, e.g.,Zachar v. Lee, 363 F.3d 70, 73-74(C.A.1 2004); 9B C. Wright & A. Miller, FederalPractice and Procedure § 2537, pp. 603-604 (3ded.2008). Rule 59(e) permits a court to alter oramend a judgment, but it “may not be used torelitigate old matters, or to raise arguments orpresent evidence that could have been raisedprior to the entry of judgment.” 11 C. Wright &A. Miller, Federal Practice and Procedure §2810.1, pp. 127-128 (2d ed.1995) (footnotesomitted). Where Exxon has been unable todemonstrate that any rule supported the motion,we need not choose the best of the worst, andrisk implying that this last-minute motion wasappropriate under any rule. Suffice it to say that,whatever type of motion it was supposed to be, itwas very, very late.
Exxon renewed the CWA preemption argument before theNinth Circuit. The Court of Appeals recognized thatExxon had raised the CWA argument for the first time 13months after the Phase III verdict, but decided that theclaim “should not be treated as waived,” because Exxonhad “consistently argued statutory preemption” throughoutthe litigation, and the question was of “massive ...significance” given the “ambiguous circumstances” of thecase. 270 F.3d, at 1229. On the merits, the Circuit heldthat the CWA did not preempt maritime common law onpunitive damages. Id., at 1230.
Although we agree with the Ninth Circuit's conclusion, itsreasons for reaching it do not hold up. First, the reason thecourt thought that the CWA issue was not in fact waivedwas that Exxon had alleged other statutory grounds forpreemption from the outset of the trial. But that is notenough. It is true that “[o]nce a federal claim is properlypresented, a party can make any argument in support ofthat claim; parties are not limited to the precise argumentsthey made below.” Yee v. Escondido, 503 U.S. 519, 534,112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). But this principlestops well short of legitimizing Exxon's untimely motion.If “statutory preemption” were a sufficient claim to giveExxon license to rely on newly cited statutes anytime itwished, a litigant could add new constitutional claims ashe went along, simply because he had “consistentlyargued” that a challenged regulation was unconstitutional.See id., at 533, 112 S.Ct. 1522 (rejecting substantive dueprocess claim by takings petitioners who failed to preserveit below); Browning-Ferris Industries of Vt., Inc. v. KelcoDisposal, Inc., 492 U.S. 257, 277, n. 23, 109 S.Ct. 2909,106 L.Ed.2d 219 (1989) (rejecting due process claim byEighth-Amendment petitioners).
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That said, the motion still addressed the Circuit'sdiscretion, to which the “massive” significance of thequestion and the “ambiguous circumstances” of the casewere said to be relevant. 270 F.3d, at 1229. “It is thegeneral rule, of course, that a federal appellate court doesnot consider an issue not passed upon below,” Singleton v.Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826(1976), when to deviate from this rule being a matter “leftprimarily to the discretion of the courts of appeals, to beexercised on the facts of individual cases,” id., at 121, 96S.Ct. 2868. We have previously stopped short of stating ageneral principle to contain appellate courts' discretion,see ibid., and we exercise the same restraint today.FN6
FN6. We do have to say, though, that the Courtof Appeals gave short shrift to the DistrictCourt's commendable management of thisgargantuan litigation, and if the case turned onthe propriety of the Circuit's decision to reach thepreemption issue we would take up the claim thatit exceeded its discretion. Instead, we will onlysay that to the extent the Ninth Circuit impliedthat the unusual circumstances of this case calledfor an exception to regular practice, we think therecord points the other way.
Of course the Court of Appeals was correct thatthe case was complex and significant, so muchso, in fact, that the District Court was fairlyrequired to divide it into four phases, to overseea punitive-damages class of 32,000 people, andto manage a motions industry that threatened tohalt progress completely. But the complexity ofa case does not eliminate the value of waiver andforfeiture rules, which ensure that parties candetermine when an issue is out of the case, andthat litigation remains, to the extent possible, anorderly progression. “The reason for the rules isnot that litigation is a game, like golf, witharbitrary rules to test the skill of the players.Rather, litigation is a ‘winnowing process,’ andthe procedures for preserving or waiving issuesare part of the machinery by which courts narrowwhat remains to be decided.” Poliquin v. GardenWay, Inc., 989 F.2d 527, 531 (C.A.1 1993)(Boudin, J.) (citation omitted). The DistrictCourt's sensible efforts to impose order upon theissues in play and the progress of the trialdeserve our respect.
As to the merits, we agree with the Ninth Circuit thatExxon's late-raised CWA claim should fail. There are twoways to construe Exxon's argument that the CWA'spenalties for water pollution, see 33 U.S.C. § 1321 (2000ed. and Supp. V), preempt the common lawpunitive-damages remedies at issue here. The companycould be saying that any tort action predicated on an oil
spill is preempted unless § 1321 expressly preserves it.Section 1321(b) protects “the navigable waters of theUnited States, adjoining shorelines, ... [and] naturalresources” of the United States, subject to a saving clausereserving “obligations ... under any provision of law fordamages to any publicly owned or privately ownedproperty resulting from a discharge of any oil,” § 1321(o).Exxon could be arguing that, because the saving clausemakes no mention of preserving punitive damages foreconomic loss, they are preempted. But so, of course,would a number of other categories of damages awardsthat Exxon did not claim were preempted. If Exxon werecorrect here, there would be preemption of provisions forcompensatory damages for thwarting economic activity or,for that matter, compensatory damages for physical,personal injury from oil spills or other water pollution. Butwe find it too hard to conclude that a statute expresslygeared to protecting “water,” “shorelines,” and “naturalresources” was intended to eliminate sub silentio oilcompanies' common law duties to refrain from injuring thebodies and livelihoods of private individuals.
Perhaps on account of its overbreadth, Exxon disclaimstaking this position, admitting that the CWA does notdisplace compensatory remedies for consequences ofwater pollution, even those for economic harms. See, e.g.,Reply Brief for Petitioners 15-16. This concession,however, leaves Exxon with the equally untenable claimthat the CWA somehow preempts punitive damages, butnot compensatory damages, for economic loss. Butnothing in the statutory text points to fragmenting therecovery scheme this way, and we have rejected similarattempts to sever remedies from their causes of action. SeeSilkwood v. Kerr-McGee Corp., 464 U.S. 238, 255-256,104 S.Ct. 615, 78 L.Ed.2d 443 (1984). All in all, we see noclear indication of congressional intent to occupy theentire field of pollution remedies, see, e.g., United Statesv. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d245 (1993) (“In order to abrogate a common-law principle,the statute must speak directly to the question addressedby the common law” (internal quotation marks omitted));nor for that matter do we perceive that punitive damagesfor private harms will have any frustrating effect on theCWA remedial scheme, which would point topreemption.FN7
FN7. In this respect, this case differs from twoinvoked by Exxon, Middlesex County SewerageAuthority v. National Sea Clammers Assn., 453U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981),and Milwaukee v. Illinois, 451 U.S. 304, 101S.Ct. 1784, 68 L.Ed.2d 114 (1981), whereplaintiffs' common law nuisance claimsamounted to arguments for effluent-dischargestandards different from those provided by theCWA. Here, Baker's private claims for economicinjury do not threaten similar interference with
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federal regulatory goals with respect to “water,”“shorelines,” or “natural resources.”
IVFinally, Exxon raises an issue of first impression aboutpunitive damages in maritime law, which falls within afederal court's jurisdiction to decide in the manner of acommon law court, subject to the authority of Congress tolegislate otherwise if it disagrees with the judicial result.See U.S. Const., Art. III, § 2, cl. 1; see, e.g., Edmonds v.Compagnie Generale Transatlantique, 443 U.S. 256, 259,99 S.Ct. 2753, 61 L.Ed.2d 521 (1979) (“Admiralty law isjudge-made law to a great extent”); Romero v.International Terminal Operating Co., 358 U.S. 354,360-361, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)(constitutional grant “empowered the federal courts ... tocontinue the development of [maritime] law”). In additionto its resistance to derivative liability for punitive damagesand its preemption claim already disposed of, Exxonchallenges the size of the remaining $2.5 billion punitivedamages award. Other than its preemption argument, itdoes not offer a legal ground for concluding that maritimelaw should never award punitive damages, or that noneshould be awarded in this case, but it does argue that thisaward exceeds the bounds justified by the punitivedamages goal of deterring reckless (or worse) behaviorand the consequently heightened threat of harm. The claimgoes to our understanding of the place of punishment inmodern civil law and reasonable standards of process inadministering punitive law, subjects that call for startingwith a brief account of the history behind today's punitivedamages.
AThe modern Anglo-American doctrine of punitivedamages dates back at least to 1763, when a pair ofdecisions by the Court of Common Pleas recognized theavailability of damages “for more than the injuryreceived.” Wilkes v. Wood, Lofft 1, 18, 98 Eng. Rep. 489,498 (1763) (Lord Chief Justice Pratt). In Wilkes v. Wood,one of the foundations of the Fourth Amendment,exemplary damages awarded against the Secretary ofState, responsible for an unlawful search of John Wilkes'spapers, were a spectacular £4,000. See generally Boyd v.United States, 116 U.S. 616, 626, 6 S.Ct. 524, 29 L.Ed.746 (1886). And in Huckle v. Money, 2 Wils. 205,206-207, 95 Eng. Rep. 768, 768-769 (K.B.1763), the samejudge who is recorded in Wilkes gave an opinionupholding a jury's award of £300 (against a governmentofficer again) although “if the jury had been confined bytheir oath to consider the mere personal injury only,perhaps [£20] damages would have been thought damagessufficient.”
Awarding damages beyond the compensatory was not,however, a wholly novel idea even then, legal codes fromancient times through the Middle Ages having called for
multiple damages for certain especially harmful acts. See,e.g., Code of Hammurabi § 8 (R. Harper ed.1904) (tenfoldpenalty for stealing the goat of a freed man); Statute ofGloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66(treble damages for waste). But punitive damages were acommon law innovation untethered to strict numericalmultipliers, and the doctrine promptly crossed the Atlantic,see, e.g.,Genay v. Norris, 1 S.C.L. 6, 7 (1784); Coryell v.Colbaugh, 1 N.J.L. 77 (1791), to become widely acceptedin American courts by the middle of the 19th century, see,e.g.,Day v. Woodworth, 13 How. 363, 371, 14 L.Ed. 181(1852).
BEarly common law cases offered various rationales forpunitive-damages awards, which were then generallydubbed “exemplary,” implying that these verdicts werejustified as punishment for extraordinary wrongdoing, asin Wilkes's case. Sometimes, though, the extraordinaryelement emphasized was the damages award itself, thepunishment being “for example's sake,” Tullidge v. Wade,3 Wils. 18, 19, 95 Eng. Rep. 909 (K.B.1769) (Lord ChiefJustice Wilmot), “to deter from any such proceeding forthe future,” Wilkes, supra, at 19, 98 Eng. Rep., at 498-499.See also Coryell, supra, at 77 (instructing the jury “to givedamages for example's sake, to prevent such offences in[the] future”).
A third historical justification, which showed up in someof the early cases, has been noted by recent commentators,and that was the need “to compensate for intangibleinjuries, compensation which was not otherwise availableunder the narrow conception of compensatory damagesprevalent at the time.” Cooper Industries, Inc. v.FN8
Leatherman Tool Group, Inc., 532 U.S. 424, 437-438, n.11, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (citing, interalia, Note, Exemplary Damages in the Law of Torts, 70Harv. L.Rev. 517 (1957)). But see Sebok, What DidPunitive Damages Do? 78 Chi.-Kent L.Rev. 163, 204(2003) (arguing that “punitive damages have never servedthe compensatory function attributed to them by the Courtin Cooper ”). As the century progressed, and “the types ofcompensatory damages available to plaintiffs ...broadened,” Cooper Industries, supra, at 437, n. 11, 121S.Ct. 1678, the consequence was that American courtstended to speak of punitive damages as separate anddistinct from compensatory damages, see, e.g.,Day, supra,at 371 (punitive damages “hav[e] in view the enormity of[the] offence rather than the measure of compensation tothe plaintiff”). See generally 1 L. Schlueter, PunitiveDamages §§ 1.3(C)-(D), 1.4(A) (5th ed.2005) (hereinafterSchlueter) (describing the “almost total eclipse of thecompensatory function” in the decades following the1830s).
FN8. Indeed, at least one 19th-century treatise
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writer asserted that there was “no doctrine ofauthentically ‘punitive’ damages” and that“judgments that ostensibly included punitivedamages [were] in reality no more than fullcompensation.” Pacific Mut. Life Ins. Co. v.Haslip, 499 U.S. 1, 25, 111 S.Ct. 1032, 113L.Ed.2d 1 (1991) (SCALIA, J., concurring injudgment) (citing 2 S. Greenleaf, Law ofEvidence 235, n. 2 (13th ed. 1876)). “This view,”however, “was not widely shared.” Haslip,supra, at 25, 111 S.Ct. 1032 (SCALIA, J.,concurring in judgment) (citing other prominent19th-century treatises). Whatever the actualimportance of the subterfuge for compensationmay have been, it declined.
Regardless of the alternative rationales over the years, theconsensus today is that punitives are aimed not atcompensation but principally at retribution and deterringharmful conduct. This consensus informs the doctrineFN9
in most modern American jurisdictions, where juries arecustomarily instructed on twin goals of punitive awards.See, e.g., Cal. Jury Instr., Civil, No. 14.72.2 (2008) (“Youmust now determine whether you should award punitivedamages against defendant[s] ... for the sake of exampleand by way of punishment”); N.Y. Pattern Jury Instr.,Civil, No. 2:278 (2007) (“The purpose of punitivedamages is not to compensate the plaintiff but to punishthe defendant ... and thereby to discourage the defendant... from acting in a similar way in the future”). Theprevailing rule in American courts also limits punitivedamages to cases of what the Court in Day, supra, at 371,spoke of as “enormity,” where a defendant's conduct is“outrageous,” 4 Restatement § 908(2), owing to “grossnegligence,” “willful, wanton, and reckless indifferencefor the rights of others,” or behavior even more deplorable,1 Schlueter § 9.3(A).FN10
FN9. See, e.g.,Moskovitz v. Mount Sinai MedicalCenter, 69 Ohio St.3d 638, 651, 635 N.E.2d 331,343 (1994) (“The purpose of punitive damages isnot to compensate a plaintiff, but to punish anddeter certain conduct”); Hamilton DevelopmentCo. v. Broad Rock Club, Inc., 248 Va. 40, 45,445 S.E.2d 140, 143 (1994) (same); Loitz v.Remington Arms Co., 138 Ill.2d 404, 414, 150Ill.Dec. 510, 563 N.E.2d 397, 401 (1990) (same);Green Oil Co. v. Hornsby, 539 So.2d 218, 222(Ala.1989) (same); Masaki v. General MotorsCorp., 71 Haw. 1, 6, 780 P.2d 566, 570 (1989)(same); see also Cooper Industries, Inc. v.Leatherman Tool Group, Inc., 532 U.S. 424, 432,121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)(punitive damages are “intended to punish thedefendant and to deter future wrongdoing”);State Farm Mut. Automobile Ins. Co. v.Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513,
155 L.Ed.2d 585 (2003) (“[P]unitive damages ...are aimed at deterrence and retribution”); 4Restatement § 908, Comment a.
FN10. These standards are from the torts context;different standards apply to other causes ofaction.
Under the umbrellas of punishment and its aim ofdeterrence, degrees of relative blameworthiness areapparent. Reckless conduct is not intentional or malicious,nor is it necessarily callous toward the risk of harmingothers, as opposed to unheedful of it. See, e.g., 2Restatement § 500, Comment a, pp. 587-588 (1964)(“Recklessness may consist of either of two different typesof conduct. In one the actor knows, or has reason to know... of facts which create a high degree of risk of ... harm toanother, and deliberately proceeds to act, or to fail to act,in conscious disregard of, or indifference to, that risk. Inthe other the actor has such knowledge, or reason to know,of the facts, but does not realize or appreciate the highdegree of risk involved, although a reasonable man in hisposition would do so”). Action taken or omitted in orderto augment profit represents an enhanced degree ofpunishable culpability, as of course does willful ormalicious action, taken with a purpose to injure. See 4 id.,§ 908, Comment e, p. 466 (1979) (“In determining theamount of punitive damages, ... the trier of fact canproperly consider not merely the act itself but all thecircumstances including the motives of the wrongdoer...”); cf. Alaska Stat. § 09.17.020(g) (2006) (higherstatutory limit applies where conduct was motivated byfinancial gain and its adverse consequences were knownto the defendant); Ark.Code Ann. § 16-55-208(b) (2005)(statutory limit does not apply where the defendantintentionally pursued a course of conduct for the purposeof causing injury or damage).
Regardless of culpability, however, heavier punitiveawards have been thought to be justifiable whenwrongdoing is hard to detect (increasing chances of gettingaway with it), see, e.g.,BMW of North America, Inc. v.Gore, 517 U.S. 559, 582, 116 S.Ct. 1589, 134 L.Ed.2d 809(1996) (“A higher ratio may also be justified in cases inwhich the injury is hard to detect”), or when the value ofinjury and the corresponding compensatory award aresmall (providing low incentives to sue), see, e.g.,ibid.(“[L]ow awards of compensatory damages may properlysupport a higher ratio ... if, for example, a particularlyegregious act has resulted in only a small amount ofeconomic damages”); 4 Restatement § 908, Comment c,p. 465 (“Thus an award of nominal damages ... is enoughto support a further award of punitive damages, when atort, ... is committed for an outrageous purpose, but nosignificant harm has resulted”). And, with a broadlyanalogous object, some regulatory schemes provide bystatute for multiple recovery in order to induce private
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litigation to supplement official enforcement that mightfall short if unaided. See, e.g.,Reiter v. Sonotone Corp.,442 U.S. 330, 344, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)(discussing antitrust treble damages).
CState regulation of punitive damages varies. A few Statesaward them rarely, or not at all. Nebraska bars punitivedamages entirely, on state constitutional grounds. See,e.g., Distinctive Printing and Packaging Co. v. Cox, 232Neb. 846, 857, 443 N.W.2d 566, 574 (1989)(per curiam).Four others permit punitive damages only when authorizedby statute: Louisiana, Massachusetts, and Washington asa matter of common law, and New Hampshire by statutecodifying common law tradition. See Ross v. Conoco,2002-0299, p. 14 (La.10/15/02), 828 So.2d 546,555;Flesner v. Technical Communications Corp., 410Mass. 805, 813, 575 N.E.2d 1107, 1112 (1991); FisherProperties v. Arden-Mayfair, Inc., 106 Wash.2d 826, 852,726 P.2d 8, 23 (1986); N.H.Rev.Stat. Ann. § 507:16(1997); see also Fay v. Parker, 53 N.H. 342, 382 (1872).Michigan courts recognize only exemplary damagessupportable as compensatory, rather than truly punitive,see Peisner v. Detroit Free Press, Inc., 104 Mich.App. 59,68, 304 N.W.2d 814, 817 (1981), while Connecticut courtshave limited what they call punitive recovery to the“expenses of bringing the legal action, including attorney'sfees, less taxable costs,” Larsen Chelsey Realty Co. v.Larsen, 232 Conn. 480, 517, n. 38, 656 A.2d 1009, 1029,n. 38 (1995).
As for procedure, in most American jurisdictions theamount of the punitive award is generally determined bya jury in the first instance, and that “determination is thenreviewed by trial and appellate courts to ensure that it isreasonable.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S.1, 15, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991); see alsoHonda Motor Co. v. Oberg, 512 U.S. 415, 421-426, 114S.Ct. 2331, 129 L.Ed.2d 336 (1994). Many States haveFN11
gone further by imposing statutory limits on punitiveawards, in the form of absolute monetary caps, see, e.g.,Va.Code Ann. § 8.01-38.1 (Lexis 2007) ($350,000 cap),a maximum ratio of punitive to compensatory damages,see, e.g.,Ohio Rev.Code Ann. § 2315.21(D)(2)(a) (Lexis2001) (2:1 ratio in most tort cases), or, frequently, somecombination of the two, see, e.g., Alaska Stat. §09.17.020(f) (2006) (greater of 3:1 ratio or $500,000 inmost actions). The States that rely on a multiplier haveadopted a variety of ratios, ranging from 5:1 to 1:1.FN12
FN11. A like procedure was followed in thiscase, without objection.
FN12. See, e.g.,Mo.Rev.Stat. Ann. § 510.265(1)(Vernon Supp.2008) (greater of 5:1 or $500,000in most cases); Ala.Code §§ 6-11-21(a), (d)(2005) (greater of 3:1 or $1.5 million in most
personal injury suits, and 3:1 or $500,000 in mostother actions); N.D. Cent.Code Ann. §32-03.2-11(4) (Supp.2007) (greater of 2:1 or$250 ,000) ; Colo .Rev .Sta t . Ann. §13-21-102(1)(a) (2007) (1:1).
Oklahoma has a graduated scheme, with thelimit on the punitive award turning on thenature of the defendant's conduct. See Okla.Stat., Tit. 23, § 9.1(B) (West 2001) (greater of1:1 or $100,000 in cases involving “recklessdisregard”); § 9.1(C) (greater of 2:1, $500,000,or the financial benefit derived by thedefendant, in cases of intentional andmalicious conduct); § 9.1(D) (no limit wherethe conduct is intentional, malicious, and lifethreatening).
Despite these limitations, punitive damages overall arehigher and more frequent in the United States than they areanywhere else. See, e.g., Gotanda, Punitive Damages: AComparative Analysis, 42 Colum. J. Transnat'l L. 391, 421(2004); 2 Schlueter § 22.0. In England and Wales,punitive, or exemplary, damages are available only foroppressive, arbitrary, or unconstitutional action bygovernment servants; injuries designed by the defendantto yield a larger profit than the likely cost of compensatorydamages; and conduct for which punitive damages areexpressly authorized by statute. Rookes v. Barnard, [1964]1 All E.R. 367, 410-411 (H.L.). Even in the circumstanceswhere punitive damages are allowed, they are subject tostrict, judicially imposed guidelines. The Court of Appealin Thompson v. Commissioner of Police of Metropolis,[1998] Q.B. 498, 518, said that a ratio of more than threetimes the amount of compensatory damages will rarely beappropriate; awards of less than £5,000 are likelyunnecessary; awards of £ 25,000 should be exceptional;and £50,000 should be considered the top.
For further contrast with American practice, Canada andAustralia allow exemplary damages for outrageousconduct, but awards are considered extraordinary andrarely issue. See 2 Schlueter §§ 22.1(B), (D).Noncompensatory damages are not part of the civil-codetradition and thus unavailable in such countries as France,Germany, Austria, and Switzerland. See id., §§22.2(A)-(C), (E). And some legal systems not only declineto recognize punitive damages themselves but refuse toenforce foreign punitive judgments as contrary to publicpolicy. See, e.g., Gotanda, Charting DevelopmentsConcerning Punitive Damages: Is the Tide Changing? 45Colum. J. Transnat'l L. 507, 514, 518, 528 (2007) (notingrefusals to enforce judgments by Japanese, Italian, andGerman courts, positing that such refusals may be on thedecline, but concluding, “American parties should notanticipate smooth sailing when seeking to have a domesticpunitive damages award recognized and enforced in other
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countries”).
DAmerican punitive damages have been the target ofaudible criticism in recent decades, see, e.g., Note,Developments, The Paths of Civil Litigation, 113 Harv.L.Rev. 1783, 1784-1788 (2000) (surveying criticism), butthe most recent studies tend to undercut much of it, see id.,at 1787-1788. A survey of the literature reveals thatdiscretion to award punitive damages has notmass-produced runaway awards, and although somestudies show the dollar amounts of punitive-damagesawards growing over time, even in real terms, by mostFN13
accounts the median ratio of punitive to compensatoryawards has remained less than 1:1. Nor do the dataFN14
substantiate a marked increase in the percentage of caseswith punitive awards over the past several decades.FN15
The figures thus show an overall restraint and suggest thatin many instances a high ratio of punitive to compensatorydamages is substantially greater than necessary to punishor deter.
FN13. See, e.g., RAND Institute for CivilJustice, D. Hensler & E. Moller, Trends inPunitive Damages, table 2 (Mar.1995) (findingan increase in median awards between the early1980s and the early 1990s in San Francisco andCook Counties); Moller, Pace, & Carroll,Punitive Damages in Financial Injury JuryVerdicts, 28 J. Legal Studies 283, 307 (1999)(hereinafter Financial Injury Jury Verdicts)(studying jury verdicts in “Financial Injury”cases in six States and Cook County, Illinois, andfinding a marked increase in the median awardbetween the late 1980s and the early 1990s); M.Peterson, S. Sarma, & M. Shanley, PunitiveDamages: Empirical Findings 15 (RANDInstitute for Civil Justice 1987) (hereinafterPunitive Damages: Empirical Findings) (findingthat the median punitive award increased nearly4 times in San Francisco County between theearly 1960s and the early 1980s, and 43 times inCook County over the same period). But see T.Eisenberg et al., Juries, Judges, and PunitiveDamages: Empirical Analyses Using the CivilJustice Survey of State Courts 1992, 1996, and2001 Data, 3 J. of Empirical Legal Studies 263,278 (2006) (hereinafter Juries, Judges, andPunitive Damages) (analyzing Bureau of JusticeStatistics data from 1992, 1996, and 2001, andconcluding that “[n]o statistically significantvariation exists in the inflation-adjusted punitiveaward level over the three time periods”); Dept.of Justice, Bureau of Justice Statistics, T. Cohen,Punitive Damage Awards in Large Counties,2001, p. 8 (Mar.2005) (hereinafter Cohen)(compiling data from the Nation's 75 most
populous counties and finding that the medianpunitive damage award in civil jury trialsdecreased between 1992 and 2001).
FN14. See, e.g., Juries, Judges, and PunitiveDamages 269 (reporting median ratios of 0.62:1in jury trials and 0.66:1 in bench trials using theBureau of Justice Statistics data from 1992, 1996,and 2001); Vidmar & Rose, Punitive Damagesby Juries in Florida, 38 Harv. J. Legis. 487, 492(2001) (studying civil cases in Florida statecourts between 1989 and 1998 and finding amedian ratio of 0.67:1). But see Financial InjuryJury Verdicts 307 (finding a median ratio of 1.4:1in “financial injury” cases in the late 1980s andearly 1990s).
FN15. See, e.g., Cohen 8 (compiling data fromthe Nation's 75 most populous counties, andfinding that in jury trials where the plaintiffprevailed, the percentage of cases involvingpunitive awards was 6.1% in 1992 and 5.6% in2001); Financial Injury Jury Verdicts 307(finding a statistically significant decrease in thepercentage of verdicts in “financial injury” casesthat include a punitive damage award, from15.8% in the early 1980s to 12.7% in the early1990s). But see Punitive Damages: EmpiricalFindings 9 (finding an increase in the percentageof civil trials resulting in punitive damage awardsin San Francisco and Cook Counties between1960 and 1984).
One might posit that ill effects of punitivedamages are clearest not in actual awards but inthe shadow that the punitive regime casts onsettlement negotiations and other litigationdecisions. See, e.g., Financial Injury JuryVerdicts 287; Polinsky, Are Punitive DamagesReally Insignificant, Predictable, and Rational?26 J. Legal Studies 663, 664-671 (1997). Buthere again the data have not established a clearcorrelation. See, e.g., Eaton, Mustard, &Talarico, The Effects of Seeking PunitiveDamages on the Processing of Tort Claims, 34 J.Legal Studies 343, 357, 353-354, 365 (2005)(studying data from six Georgia counties andconcluding that “the decision to seek punitivedamages has no statistically significant impact”on “whether a case that was disposed was doneso by trial or by some other procedure, includingsettlement,” or “whether a case that was disposedby means other than a trial was more likely tohave been settled”); Kritzer & Zemans, TheShadow of Punitives, 1998 Wis. L.Rev. 157, 160(1998) (noting the theory that punitive damagescast a large shadow over settlement negotiations,
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but finding that “with perhaps one exception,what little systematic evidence we could finddoes not support the notion” (emphasis deleted)).
The real problem, it seems, is the stark unpredictability ofpunitive awards. Courts of law are concerned with fairnessas consistency, and evidence that the median ratio ofpunitive to compensatory awards falls within a reasonablezone, or that punitive awards are infrequent, fails to tell uswhether the spread between high and low individualawards is acceptable. The available data suggest it is not.A recent comprehensive study of punitive damagesawarded by juries in state civil trials found a median ratioof punitive to compensatory awards of just 0.62:1, but amean ratio of 2.90:1 and a standard deviation of 13.81.Juries, Judges, and Punitive Damages 269. Even toFN16
those of us unsophisticated in statistics, the thrust of thesefigures is clear: the spread is great, and the outlier casessubject defendants to punitive damages that dwarf thecorresponding compensatories. The distribution of awardsis narrower, but still remarkable, among punitive damagesassessed by judges: the median ratio is 0.66:1, the meanratio is 1.60:1, and the standard deviation is 4.54. Ibid.Other studies of some of the same data show that fully14% of punitive awards in 2001 were greater than fourtimes the compensatory damages, see Cohen 5, with 18%of punitives in the 1990s more than trebling thecompensatory damages, see Ostrom, Rottman, & Goerdt,A Step Above Anecdote: A Profile of the Civil Jury in the1990s, 79 Judicature 233, 240 (1996). And a study of“financial injury” cases using a different data set foundthat 34% of the punitive awards were greater than threetimes the corresponding compensatory damages. FinancialInjury Jury Verdicts 333.
FN16. This study examined “the mostrepresentative sample of state court trials in theUnited States,” involving “tort, contract, andproperty cases disposed of by trial in fiscal year1991-1992 and then calendar years 1996 and2001. The three separate data sets cover statecourts of general jurisdiction in a random sampleof 46 of the 75 most populous counties in theUnited States.” Juries, Judges, and PunitiveDamages 267. The information was “gathereddirectly” from state-court clerks' offices and thestudy did “not rely on litigants or third parties toreport.” Ibid.
Starting with the premise of a punitive-damages regime,these ranges of variation might be acceptable or evendesirable if they resulted from judges' and juries' refiningtheir judgments to reach a generally accepted optimal levelof penalty and deterrence in cases involving a wide rangeof circumstances, while producing fairly consistent resultsin cases with similar facts. Cf. TXO Production Corp. v.Alliance Resources Corp., 509 U.S. 443, 457-458, 113
S.Ct. 2711, 125 L.Ed.2d 366 (1993) (plurality opinion).But anecdotal evidence suggests that nothing of that sortis going on. One of our own leading cases on punitivedamages, with a $4 million verdict by an Alabama jury,noted that a second Alabama case with strikingly similarfacts produced “a comparable amount of compensatorydamages” but “no punitive damages at all.” See Gore, 517U.S., at 565, n. 8, 116 S.Ct. 1589. As the Supreme Courtof Alabama candidly explained, “the disparity between thetwo jury verdicts ... [w]as a reflection of the inherentuncertainty of the trial process.” BMW of North America,Inc. v. Gore, 646 So.2d 619, 626 (1994)(per curiam). Weare aware of no scholarly work pointing to consistencyacross punitive awards in cases involving similar claimsand circumstances. FN17
FN17. The Court is aware of a body of literaturerunning parallel to anecdotal reports, examiningthe predictability of punitive awards byconducting numerous “mock juries,” wheredifferent “jurors” are confronted with the samehypothetical case. See, e.g., C. Sunstein, R.Hastie, J. Payne, D. Schkade, W. Viscusi,Punitive Damages: How Juries Decide (2002);Schkade, Sunstein, & Kahneman, DeliberatingAbout Dollars: The Severity Shift, 100 Colum.L.Rev. 1139 (2000); Hastie, Schkade, & Payne,Juror Judgments in Civil Cases: Effects ofPlaintiff's Requests and Plaintiff's Identity onPunitive Damage Awards, 23 Law & Hum.Behav. 445 (1999); Sunstein, Kahneman, &Schkade, Assessing Punitive Damages (withNotes on Cognition and Valuation in Law), 107Yale L.J. 2071 (1998). Because this research wasfunded in part by Exxon, we decline to rely on it.
EThe Court's response to outlier punitive damages awardshas thus far been confined by claims at the constitutionallevel, and our cases have announced due process standardsthat every award must pass. See, e.g.,State Farm Mut.Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425, 123S.Ct. 1513, 155 L.Ed.2d 585 (2003); Gore, 517 U.S., at574-575, 116 S.Ct. 1589. Although “we have consistentlyrejected the notion that the constitutional line is marked bya simple mathematical formula,” id., at 582, 116 S.Ct.1589, we have determined that “few awards exceeding asingle-digit ratio between punitive and compensatorydamages, to a significant degree, will satisfy due process,”State Farm, 538 U.S., at 425, 123 S.Ct. 1513; “[w]hencompensatory damages are substantial, then a lesser ratio,perhaps only equal to compensatory damages, can reachthe outermost limit of the due process guarantee,” ibid.
Today's enquiry differs from due process review becausethe case arises under federal maritime jurisdiction, and weare reviewing a jury award for conformity with maritime
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law, rather than the outer limit allowed by due process; weare examining the verdict in the exercise of federalmaritime common law authority, which precedes andshould obviate any application of the constitutionalstandard. Our due process cases, on the contrary, have allinvolved awards subject in the first instance to state law.See, e.g.,id., at 414, 123 S.Ct. 1513 (fraud and intentionalinfliction of emotional distress under Utah law); Gore,supra, at 563, and n. 3, 116 S.Ct. 1589 (fraud underAlabama law); TXO, supra,at 452, 113 S.Ct. 2711(plurality opinion) (slander of title under West Virginialaw); Haslip, 499 U.S., at 7, 111 S.Ct. 1032 (fraud underAlabama law). These, as state-law cases, could provide nooccasion to consider a “common-law standard ofexcessiveness,” Browning-Ferris Industries, 492 U.S., at279, 109 S.Ct. 2909, and the only matter of federal lawwithin our appellate authority was the constitutional dueprocess issue.
Our review of punitive damages today, then, considers nottheir intersection with the Constitution, but the desirabilityof regulating them as a common law remedy for whichresponsibility lies with this Court as a source ofjudge-made law in the absence of statute. Whatever maybe the constitutional significance of the unpredictability ofhigh punitive awards, this feature of happenstance is intension with the function of the awards as punitive, justbecause of the implication of unfairness that aneccentrically high punitive verdict carries in a systemwhose commonly held notion of law rests on a sense offairness in dealing with one another. Thus, a penaltyshould be reasonably predictable in its severity, so thateven Justice Holmes's “bad man” can look ahead withsome ability to know what the stakes are in choosing onecourse of action or another. See The Path of the Law, 10Harv. L.Rev. 457, 459 (1897). And when the bad man'scounterparts turn up from time to time, the penalty schemethey face ought to threaten them with a fair probability ofsuffering in like degree when they wreak like damage. Cf.Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035,135 L.Ed.2d 392 (1996) (noting the need “to reduceunjustified disparities” in criminal sentencing “and soreach toward the evenhandedness and neutrality that arethe distinguishing marks of any principled system ofjustice”). The common sense of justice would surely barpenalties that reasonable people would think excessive forthe harm caused in the circumstances.
F1
With that aim ourselves, we have three basic approachesto consider, one verbal and two quantitative. As mentionedbefore, a number of state courts have settled on criteria forjudicial review of punitive-damages awards that go wellbeyond traditional “shock the conscience” or “passion andprejudice” tests. Maryland, for example, has set forth anonexclusive list of nine review factors under state
common law that include “degree of heinousness,” “thedeterrence value of [the award],” and “[w]hether [thepunitive award] bears a reasonable relationship to thecompensatory damages awarded.” Bowden v. Caldor, Inc.,350 Md. 4, 25-39, 710 A.2d 267, 277-284 (1998).Alabama has seven general criteria, such as “actual orlikely harm [from the defendant's conduct],” “degree ofreprehensibility,” and “[i]f the wrongful conduct wasprofitable to the defendant.” Green Oil Co. v. Hornsby,539 So.2d 218, 223-224 (1989) (internal quotation marksomitted). But see McClain v. Metabolife Int'l, Inc., 259F.Supp.2d 1225, 1236 (N.D.Ala.2003) (noting but notdeciding claim that post-trial review under Green Oil “isunconstitutionally vague and inadequate”).
These judicial review criteria are brought to bear afterjuries render verdicts under instructions offering, at best,guidance no more specific for reaching an appropriatepenalty. In Maryland, for example, which allows punitivedamages for intentional torts and conduct characterized by“actual malice,” U.S. Gypsum Co. v. Mayor and CityCouncil of Baltimore, 336 Md. 145, 185, 647 A.2d 405,424-425 (1994), juries may be instructed that
“An award for punitive damages should be:
“(1) In an amount that will deter the defendant andothers from similar conduct.
“(2) Proportionate to the wrongfulness of thedefendant's conduct and the defendant's ability to pay.
“(3) But not designed to bankrupt or financiallydestroy a defendant.” Md. Pattern Jury Instr., Civil, No.10:13 (4th ed.2007).
In Alabama, juries are instructed to fix an amount afterconsidering “the character and degree of the wrong asshown by the evidence in the case, and the necessity ofpreventing similar wrongs.” 1 Ala. Pattern Jury Instr.,Civil, No. § 23.21 (Supp.2007).
These examples leave us skeptical that verbalformulations, superimposed on general jury instructions,are the best insurance against unpredictable outliers.Instructions can go just so far in promoting systemicconsistency when awards are not tied to specificallyproven items of damage (the cost of medical treatment,say), and although judges in the States that take thisapproach may well produce just results by dint of valianteffort, our experience with attempts to produceconsistency in the analogous business of criminalsentencing leaves us doubtful that anything but aquantified approach will work. A glance at the experiencethere will explain our skepticism.
The points of similarity are obvious. “[P]unitive damages
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advance the interests of punishment and deterrence, whichare also among the interests advanced by the criminallaw.” Browning-Ferris Industries, 492 U.S., at 275, 109S.Ct. 2909. See also 1977 Restatement § 908,FN18
Comment a, at 464 (purposes of punitive damages are “thesame” as “that of a fine imposed after a conviction of acrime”); 18 U.S.C. § 3553(a)(2) (requiring sentencingcourts to consider, inter alia, “the need for the sentenceimposed ... to provide just punishment for the offense” and“to afford adequate deterrence to criminal conduct”);United States Sentencing Commission, Guidelines Manual§ 1A1.1, comment. (Nov.2007).
FN18. This observation is not at odds with theholding in Browning-Ferris, that the ExcessiveFines Clause of the Eighth Amendment does notapply to punitive damages. See Browning-Ferris,492 U.S., at 275, 109 S.Ct. 2909. Thatconclusion did not reject the punitive nature ofthe damages, see ibid., but rested entirely uponour conviction that “the concerns that animate theEighth Amendment” were about “plac[ing] limitson the steps a government may take against anindividual,” ibid. Thus the Clause “does notconstrain an award of money damages in a civilsuit when the government neither has prosecutedthe action nor has any right to receive a share ofthe damages awarded.” Id., at 264, 109 S.Ct.2909. We noted the similarities of purposebetween criminal penalties and punitive damagesand distinguished the two on the basis of theirdiffering levels of state involvement. See id., at275, 109 S.Ct. 2909.
It is instructive, then, that in the last quarter centuryfederal sentencing rejected an “indeterminate” system,with relatively unguided discretion to sentence within awide range, under which “similarly situated offenderswere sentenced [to], and did actually serve, widelydisparate sentences.” Instead it became a system ofFN19
detailed guidelines tied to exactly quantified sentencingresults, under the authority of the Sentencing Reform Actof 1984, 18 U.S.C. § 3551 et seq. (2000 ed. and Supp. V).
FN19. Nagel, Structuring Sentencing Discretion:The New Federal Sentencing Guidelines, 80J.Crim. L. & C. 883, 895-899 (1990) (citingstudies and congressional hearings).
The importance of this for us is that in the old federalsentencing system of general standards the cohort of eventhe most seasoned judicial penalty-givers defiedconsistency. Judges and defendants alike were “[l]eft atlarge, wandering in deserts of uncharted discretion,” M.Frankel, Criminal Sentences: Law Without Order 7-8(1973), which is very much the position of those imposingpunitive damages today, be they judges or juries, except
that they lack even a statutory maximum; their onlyrestraint beyond a core sense of fairness is the due processlimit. This federal criminal law development, with itsmany state parallels, strongly suggests that as long “asthere are no punitive-damages guidelines, correspondingto the federal and state sentencing guidelines, it isinevitable that the specific amount of punitive damagesawarded whether by a judge or by a jury will be arbitrary.”Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672,678 (C.A.7 2003).
2This is why our better judgment is that eliminatingunpredictable outlying punitive awards by more rigorousstandards than the constitutional limit will probably haveto take the form adopted in those States that have lookedto the criminal-law pattern of quantified limits. One optionwould be to follow the States that set a hard dollar cap onpunitive damages, see supra, at 2623, a course thatarguably would come closest to the criminal law, ratherlike setting a maximum term of years. The trouble is,though, that there is no “standard” tort or contract injury,making it difficult to settle upon a particular dollar figureas appropriate across the board. And of course a judicialselection of a dollar cap would carry a serious drawback;a legislature can pick a figure, index it for inflation, andrevisit its provision whenever there seems to be a need forfurther tinkering, but a court cannot say when an issue willshow up on the docket again. See, e.g.,Jones & LaughlinSteel Corp. v. Pfeifer, 462 U.S. 523, 546-547, 103 S.Ct.2541, 76 L.Ed.2d 768 (1983) (declining to adopt a fixedformula to account for inflation in discounting futurewages to present value, in light of the unpredictability ofinflation rates and variation among lost-earnings cases).
The more promising alternative is to leave the effects ofinflation to the jury or judge who assesses the value ofactual loss, by pegging punitive to compensatory damagesusing a ratio or maximum multiple. See, e.g., 2 ALIEnterprise Responsibility for Personal Injury: Reporters'Study 258 (1991) (hereinafter ALI Reporters' Study)(“[T]he compensatory award in a successful case shouldbe the starting point in calculating the punitive award”);ABA, Report of Special Comm. on Punitive Damages,Section of Litigation, Punitive Damages: A ConstructiveExamination 64-66 (1986) (recommending a presumptivepunitive-to-compensatory damages ratio). As the earliercanvass of state experience showed, this is the modelmany States have adopted, see supra, at 2623, and n. 12,and Congress has passed analogous legislation from timeto time, as for example in providing treble damages inantitrust, racketeering, patent, and trademark actions, see15 U.S.C. §§ 15, 1117 (2000 ed. and Supp. V); 18 U.S.C.§ 1964(c); 35 U.S.C. § 284. And of course the potentialFN20
relevance of the ratio between compensatory and punitivedamages is indisputable, being a central feature in our dueprocess analysis. See, e.g.,State Farm, 538 U.S., at 425,
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123 S.Ct. 1513;Gore, 517 U.S., at 580, 116 S.Ct. 1589.
FN20. There are State counterparts of thesefederal statutes. See, e.g.,Conn. Gen.Stat. §52-560 (2007) (cutting or destroying a treeintended for use as a Christmas tree punishableby a payment to the injured party of five timesthe tree's value); Mass. Gen. Laws, ch. 91, § 59A(West 2006) (discharging crude oil into a lake,river, tidal water, or flats subjects a defendant todouble damages in tort).
Still, some will murmur that this smacks too much ofpolicy and too little of principle. Cf. Moviecolor Ltd. v.Eastman Kodak Co., 288 F.2d 80, 83 (C.A.2 1961). Butthe answer rests on the fact that we are acting here in theposition of a common law court of last review, faced witha perceived defect in a common law remedy. Traditionally,courts have accepted primary responsibility for reviewingpunitive damages and thus for their evolution, and if, inthe absence of legislation, judicially derived standardsleave the door open to outlier punitive-damages awards, itis hard to see how the judiciary can wash its hands of aproblem it created, simply by calling quantified standardslegislative. See State Farm, supra, at 438, 123 S.Ct. 1513(GINSBURG, J., dissenting) (“In a legislative scheme ora state high court's design to cap punitive damages, thehandiwork in setting single-digit and 1-to-1 benchmarkscould hardly be questioned”); 2 ALI Reporters' Study 257(recommending adoption of ratio, “probably legislatively,although possibly judicially”).
History certainly is no support for the notion that judgescannot use numbers. The 21-year period in the rule againstperpetuities was a judicial innovation, see, e.g.,Cadell v.Palmer, 1 Clark & Finnelly 372, 6 Eng. Rep. 956, 963(H.L.1833), and so were exact limitations periods for civilactions, sometimes borrowing from statutes, see C.Preston & G. Newsom, Limitation of Actions 241-242 (2ded.1943), but often without any statutory account to drawon, see, e.g., 1 H. Wood, Limitations of Actions § 1, p. 4(4th ed.1916). For more examples, see 1 W. Blackstone,Commentaries on the Laws of England 451 (1765) (listingother common law age cut-offs with no apparent statutorybasis). And of course, adopting an admiralty-law ratio isno less judicial than picking one as an outer limit ofconstitutionality for punitive awards. See State Farm,supra, at 425, 123 S.Ct. 1513.FN21
FN21. To the extent that Justice STEVENSsuggests that the very subject of remedies shouldbe treated as congressional in light of the numberof statutes dealing with remedies, see post, at2634 - 2636 (opinion concurring in part anddissenting in part), we think modern-daymaritime cases are to the contrary and supportjudicial action to modify a common law
landscape largely of our own making. Thecharacter of maritime law as a mixture of statutesand judicial standards, “an amalgam oftraditional common-law rules, modifications ofthose rules, and newly created rules,” East RiverS.S. Corp. v. Transamerica Delaval Inc., 476U.S. 858, 865, 106 S.Ct. 2295, 90 L.Ed.2d 865(1986), accounts for the large part we have takenin working out the governing maritime tortprinciples. See, e.g.,ibid. (“recognizing productsliability ... as part of the general maritime law”);American Export Lines, Inc. v. Alvez, 446 U.S.274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980)(recognizing cause of action for loss ofconsortium); Moragne v. States Marine Lines,Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d339 (1970) (recognizing cause of action forwrongful death). And for the very reason that ourexercise of maritime jurisdiction has reached tocreating new causes of action on more than oneoccasion, it follows that we have a free hand indealing with an issue that is “entirely a remedialmatter.” Id., at 382, 90 S.Ct. 1772. The generalobservation we made in United States v. ReliableTransfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708,44 L.Ed.2d 251 (1975), when we abrogated theadmiralty rule of divided damages in favor ofproportional liability, is to the point here. It isurged “that the creation of a new rule of damagesin maritime collision cases is a task for Congressand not for this Court. But the Judiciary hastraditionally taken the lead in formulatingflexible and fair remedies in the law maritime,and Congress has largely left to this Court theresponsibility for fashioning the controlling rulesof admiralty law” (internal quotation marks andfootnote omitted). See also Exxon Co., U.S.A. v.Sofec, Inc., 517 U.S. 830, 116 S.Ct. 1813, 135L.Ed.2d 113 (1996) (holding thatproportional-liability rule applies only todefendants proximately causing an injury);McDermott, Inc. v. AmClyde, 511 U.S. 202, 114S.Ct. 1461, 128 L.Ed.2d 148 (1994) (adoptingproportionate-fault rule for calculation ofnonsettling maritime tort defendants'compensatory liability).
Indeed, the compensatory remedy sought inthis case is itself entirely a judicial creation.The common law traditionally did notcompensate purely economic harms,unaccompanied by injury to person orproperty. See K. Abraham, Forms andFunctions of Tort Law 247-248 (3d ed.2007);see, e.g.,Robins Dry Dock & Repair Co. v.Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed.372 (1925) (imposing rule in maritime
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context). But “[t]he courts have ... occasionallycreated exceptions to the rule. Perhaps themost noteworthy involve cases in which therehas been natural-resource damage for which noparty seems to have a cause of action.”Abraham, supra, at 249 (discussing Union OilCo. v. Oppen, 501 F.2d 558 (C.A.9 1974)(recognizing exception for commercialfishermen)). We raise the point not to expressagreement or disagreement with the NinthCircuit rule but to illustrate the entirelyjudge-made nature of the landscape we aresurveying.
To be sure, “Congress retains superiorauthority in these matters,” and “[i]n this era,an admiralty court should look primarily tothese legislative enactments for policyguidance.” Miles v. Apex Marine Corp., 498U.S. 19, 27, 111 S.Ct. 317, 112 L.Ed.2d 275(1990). But we may not slough off ourresponsibilities for common law remediesbecause Congress has not made a first move,and the absence of federal legislationconstraining punitive damages does not implya congressional decision that there should beno quantified rule, cf. Rapanos v. UnitedStates, 547 U.S. 715, 749, 126 S.Ct. 2208, 165L.Ed.2d 159 (2006) (plurality opinion) (notingthe Court's “oft-expressed skepticism towardsreading the tea leaves of congressionalinaction”). Where there is a need for a newremedial maritime rule, past precedent arguesfor our setting a judicially derived standard,subject of course to congressional revision.See, e.g., Reliable Transfer, supra, at 409, 95S.Ct. 1708.
Although the legal landscape is well populated withexamples of ratios and multipliers expressing policies ofretribution and deterrence, most of them suffer fromfeatures that stand in the way of borrowing them asparadigms of reasonable limitations suited for applicationto this case. While a slim majority of the States with aratio have adopted 3:1, others see fit to apply a lower one,see, e.g.,Colo.Rev.Stat. Ann. § 13-21-102(1)(a) (2007)(1:1); Ohio Rev.Code Ann. § 2315.21(D)(2)(a) (Lexis2005) (2:1), and a few have gone higher, see, e.g.,Mo.Ann. Stat. § 510.265(1) (Supp.2008) (5:1). Judgments maydiffer about the weight to be given to the slight majority of3:1 States, but one feature of the 3:1 schemes dissuades usfrom selecting it here. With a few statutory exceptions,generally for intentional infliction of physical injury orother harm, see, e.g., Ala.Code § 6-11-21(j) (2005);Ark.Code Ann. § 16-55-208(b) (2005), the States with 3:1ratios apply them across the board (as do other Statesusing different fixed multipliers). That is, the upper limit
is not directed to cases like this one, where the tortiousaction was worse than negligent but less thanmalicious, exposing the tortfeasor to certain regulatoryFN22
sanctions and inevitable damage actions; the 3:1 ratioFN23
in these States also applies to awards in quite differentcases involving some of the most egregious conduct,including malicious behavior and dangerous activitycarried on for the purpose of increasing a tortfeasor'sfinancial gain. We confront, instead, a case of recklessFN24
action, profitless to the tortfeasor, resulting in substantialrecovery for substantial injury. Thus, a legislativejudgment that 3:1 is a reasonable limit overall is not ajudgment that 3:1 is a reasonable limit in this particulartype of case.
FN22. Although the jury heard evidence thatExxon may have felt constrained not to giveHazelwood a shoreside assignment because of aconcern that such a course might open it toliabilities in personnel litigation the employeemight initiate, see, e.g., App. F to Pet. for Cert.256a, such a consideration, if indeed it existed,hardly constitutes action taken with a specificpurpose to cause harm at the expense of anestablished duty.
FN23. We thus treat this case categorically asone of recklessness, for that was the jury'sfinding. But by making a point of its contrastwith cases falling within categories of evengreater fault we do not mean to suggest thatExxon's and Hazelwood's failings were less thanreprehensible.
FN24. Two of the States with 3:1 ratios doprovide for slightly larger awards in actionsinvolving this type of strategic financialwrongdoing, but the exceptions seem to apply toonly a subset of those cases. See Alaska Stat. §09.17.020(g) (2006) (where the defendant'sconduct was motivated by financial gain and theadverse consequences of the conduct wereactually known by the defendant or the personresponsible for making policy decisions onbehalf of the defendant, the normal limit isreplaced by the greater of four times thecompensatory damages, four times the aggregatefinancial gain the defendant received as a resultof its misconduct, or $7 million); Fla. Stat. §§768.73(1)(b), (c) (2007) (normal limit replacedby greater of 4:1 or $2 million where defendant'swrongful conduct was motivated solely byunreasonable financial gain and the unreasonablydangerous nature of the conduct, together withthe high likelihood of injury, was actually knownby the managing agent, director, officer, or otherperson responsible for making policy decisions
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on behalf of the defendant).
For somewhat different reasons, the pertinence of the 2:1ratio adopted by treble-damages statutes (offeringcompensatory damages plus a bounty of double thatamount) is open to question. Federal treble-damagesstatutes govern areas far afield from maritime concerns(not to mention each other); the relevance of theFN25
governing rules in patent or trademark cases, say, isdoubtful at best. And in some instances, we know that theconsiderations that went into making a rule have noapplication here. We know, for example, that Congressdevised the treble damages remedy for private antitrustactions with an eye to supplementing official enforcementby inducing private litigation, which might otherwise havebeen too rare if nothing but compensatory damages wereavailable at the end of the day. See, e.g.,Reiter, 442 U.S.,at 344, 99 S.Ct. 2326. That concern has no traction here,in this case of staggering damage inevitably provokinggovernmental enforcers to indict and any number ofprivate parties to sue. To take another example, although18 U.S.C. § 3571(d) provides for a criminal penalty of upto twice a crime victim's loss, this penalty is an alternativeto other specific fine amounts which courts may impose attheir option, see §§ 3571(a)-(c), a fact that makes us waryof reading too much into Congress's choice of ratio in oneprovision. State environmental treble-damages schemesoffer little more support: for one thing, insofar as someappear to punish even negligence, see, e.g.,Mass. Gen.Laws, ch. 130, § 27, while others target only willfulconduct, see, e.g.,Del.Code Ann., Tit. 25, § 1401 (1989),some undershoot and others may overshoot the target here.For another, while some States have chosen trebledamages, others punish environmental harms at othermultiples. See, e.g.,N.H.Rev.Stat. Ann. § 146-A:10 (2005)(damages of one-and-a-half times the harm caused toprivate property by oil discharge); Minn.Stat. Ann. §115A.99 (2005) (civil penalty of 2 to 5 times the costs ofremoving unlawful solid waste). All in all, the legislativesignposts do not point the way clearly to 2:1 as a soundindication of a reasonable limit.
FN25. See, e.g.,15 U.S.C. § 15 (antitrust); 18U.S.C. § 1964 (racketeering); 35 U.S.C. § 284(patent); 15 U.S.C. § 1117 (trademark) (2000 ed.and Supp. V); 7 U.S.C. § 2564 (plant varietyprotections); 12 U.S.C. § 2607 (real estatesettlement antikickback provision); 15 U.S.C. §1693f (consumer credit protection).
3There is better evidence of an accepted limit of reasonablecivil penalty, however, in several studies mentionedbefore, showing the median ratio of punitive tocompensatory verdicts, reflecting what juries and judgeshave considered reasonable across many hundreds ofpunitive awards. See supra, at 2624 - 2625, and n. 14. We
think it is fair to assume that the greater share of theverdicts studied in these comprehensive collections reflectreasonable judgments about the economic penaltiesappropriate in their particular cases.
These studies cover cases of the most as well as the leastblameworthy conduct triggering punitive liability, frommalice and avarice, down to recklessness, and even grossnegligence in some jurisdictions. The data put the medianratio for the entire gamut of circumstances at less than 1:1,see supra, at 2624 - 2625, and n. 14, meaning that thecompensatory award exceeds the punitive award in mostcases. In a well-functioning system, we would expect thatawards at the median or lower would roughly expressjurors' sense of reasonable penalties in cases with noearmarks of exceptional blameworthiness within thepunishable spectrum (cases like this one, withoutintentional or malicious conduct, and without behaviordriven primarily by desire for gain, for example) and cases(again like this one) without the modest economic harm orodds of detection that have opened the door to higherawards. It also seems fair to suppose that most of theunpredictable outlier cases that call the fairness of thesystem into question are above the median; in theory afactfinder's deliberation could go awry to produce a verylow ratio, but we have no basis to assume that such a casewould be more than a sport, and the cases with seriousconstitutional issues coming to us have naturally been onthe high side, see, e.g.,State Farm, 538 U.S., at 425, 123S.Ct. 1513 (ratio of 145:1); Gore, 517 U.S., at 582, 116S.Ct. 1589 (ratio of 500:1). On these assumptions, amedian ratio of punitive to compensatory damages ofabout 0.65:1 probably marks the line near which casesFN26
like this one largely should be grouped. Accordingly,given the need to protect against the possibility (and thedisruptive cost to the legal system) of awards that areunpredictable and unnecessary, either for deterrence or formeasured retribution, we consider that a 1:1 ratio, whichis above the median award, is a fair upper limit in suchmaritime cases.FN27
FN26. See supra, at 2624, n. 14, for the spreadamong studies.
FN27. The reasons for this conclusion answerJustice STEVENS's suggestion, post, at 2638,that there is an adequate restraint in appellateabuse-of-discretion review of a trial judge's ownreview of a punitive jury award (or of a judge'sown award in nonjury cases). We cannot seemuch promise of a practical solution to theoutlier problem in this possibility. JusticeSTEVENS would find no abuse of discretion inallowing the $2.5 billion balance of the jury'spunitive verdict here, and yet that is about fivetimes the size of the award that jury practice andour judgment would signal as reasonable in a
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case of this sort.
The dissent also suggests that maritime tortlaw needs a quantified limit on punitive awardsless than tort law generally because punitivesmay mitigate maritime law's less generousscheme of compensatory damages. Post, at2636 - 2637. But the instructions in this casedid not allow the jury to set punitives on thebasis of any such consideration, see JuryInstruction No. 21, App. to Brief in Opposition12a (“The purposes for which punitivedamages are awarded are: (1) to punish awrongdoer for extraordinary misconduct; and(2) to warn defendants and others and deterthem from doing the same”), and the size ofthe underlying compensatory damages doesnot bespeak economic inadequacy; the case,then, does not support an argument thatmaritime compensatory awards needsupplementing.
And this Court has long held that “[p]unitivedamages by definition are not intended tocompensate the injured party, but rather topunish the tortfeasor ... and to deter him andothers from similar extreme conduct.” Newportv. Fact Concerts, Inc., 453 U.S. 247, 266-267,101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); seesupra, at 2620 - 2621. Indeed, any argumentfor more generous punitive damages inmaritime cases would call into question themaritime applicability of the constitutionallimit on punitive damages as now understood,for we have tied that limit to a conception ofpunitive damages awarded entirely for apunitive, not quasi-compensatory, purpose.See, e.g., Philip Morris USA v. Williams, 549U.S. 346, 352, 127 S.Ct. 1057, 166 L.Ed.2d940 (2007) (“This Court has long made clearthat ‘[p]unitive damages may properly beimposed to further a State's legitimate interestsin punishing unlawful conduct and deterring itsrepetition’ ” (quoting Gore, 517 U.S., at 568,116 S.Ct. 1589)); State Farm, 538 U.S., at 416,123 S.Ct. 1513 (“[P]unitive damages ... areaimed at deterrence and retribution”); CooperIndustries, 532 U.S., at 432, 121 S.Ct. 1678(“[C]ompensatory damages and punitivedamages ... serve distinct purposes. The formerare intended to redress the concrete loss thatthe plaintiff has suffered .... The latter ...operate as ‘private fines' intended to punish thedefendant and to deter future wrongdoing”).
The provision of the CWA respecting daily fines confirmsour judgment that anything greater would be excessive
here and in cases of this type. Congress set criminalpenalties of up to $25,000 per day for negligent violationsof pollution restrictions, and up to $50,000 per day forknowing ones. 33 U.S.C. §§ 1319(c)(1), (2). Discretion todouble the penalty for knowing action compares todiscretion to double the civil liability on conduct goingbeyond negligence and meriting punitive treatment. Andour explanation of the constitutional upper limit confirmsthat the 1:1 ratio is not too low. In State Farm, we said thata single-digit maximum is appropriate in all but the mostexceptional of cases, and “[w]hen compensatory damagesare substantial, then a lesser ratio, perhaps only equal tocompensatory damages, can reach the outermost limit ofthe due process guarantee.” 538 U.S., at 425, 123 S.Ct.1513.FN28
FN28. The criterion of “substantial” takes intoaccount the role of punitive damages to inducelegal action when pure compensation may not beenough to encourage suit, a concern addressed bythe opportunity for a class action when largenumbers of potential plaintiffs are involved: insuch cases, individual awards are not thetouchstone, for it is the class option thatfacilitates suit, and a class recovery of $500million is substantial. In this case, then, theconstitutional outer limit may well be 1:1.
VApplying this standard to the present case, we take forgranted the District Court's calculation of the totalrelevant compensatory damages at $507.5 million. SeeIn re Exxon Valdez, 236 F.Supp.2d 1043, 1063(D.Alaska 2002). A punitive-to-compensatory ratio of1:1 thus yields maximum punitive damages in thatamount.
We therefore vacate the judgment and remand the casefor the Court of Appeals to remit the punitive damagesaward accordingly.
It is so ordered.
Justice ALITO took no part in the consideration ordecision of this case.Justice SCALIA, with whom Justice THOMAS joins,concurring.I join the opinion of the Court, including the portions thatrefer to constitutional limits that prior opinions haveimposed upon punitive damages. While I agree with theargumentation based upon those prior holdings, I continueto believe the holdings were in error. See State Farm Mut.Automobile Ins. Co. v. Campbell, 538 U.S. 408, 429, 123S.Ct. 1513, 155 L.Ed.2d 585 (2003) (SCALIA, J.,dissenting).
Justice STEVENS, concurring in part and dissenting in
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part.
While I join Parts I, II, and III of the Court's opinion, Ibelieve that Congress, rather than this Court, should makethe empirical judgments expressed in Part IV. Whilemaritime law “ ‘is judge-made law to a great extent,’ ”ante, at 2619 (quoting Edmonds v. Compagnie GeneraleTransatlantique, 443 U.S. 256, 259, 99 S.Ct. 2753, 61L.Ed.2d 521 (1979)), it is also statutory law to a greatextent; indeed, “[m]aritime tort law is now dominated byfederal statute.” Miles v. Apex Marine Corp., 498 U.S. 19,36, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). For thatreason, when we are faced with a choice betweenperforming the traditional task of appellate judgesreviewing the acceptability of an award of punitivedamages, on the one hand, and embarking on a newlawmaking venture, on the other, we “should carefullyconsider whether [we], or a legislative body, are betterequipped to perform the task at hand.” Boyle v. UnitedTechnologies Corp., 487 U.S. 500, 531, 108 S.Ct. 2510,101 L.Ed.2d 442 (1988) (STEVENS, J., dissenting).
Evidence that Congress has affirmatively chosen not torestrict the availability of a particular remedy favorsadherence to a policy of judicial restraint in the absence ofsome special justification. The Court not only fails to offerany such justification, but also ignores the particularfeatures of maritime law that may counsel againstimposing the sort of limitation the Court announces today.Applying the traditional abuse-of-discretion standard thatis well grounded in the common law, I would affirm thejudgment of the Court of Appeals.
IAs we explained in Miles v. Apex Marine Corp., 498 U.S.,at 27, 111 S.Ct. 317, “an admiralty court must be vigilantnot to overstep the well-considered boundaries imposed byfederal legislation.” In light of the many statutes governingliability under admiralty law, the absence of any limitationon an award of the sort at issue in this case suggests thatCongress would not wish us to create a new rulerestricting the liability of a wrongdoer like Exxon.
For example, the Limitation of Shipowners' Liability Act(Limitation Act), 46 U.S.C.App. § 183 , a statute thatFN1
has been part of the fabric of our law since 1851, providesin relevant part:
FN1. The Limitation Act is now codified asamended at 46 U.S.C. § 30505. See Pub.L.109-304, § 3, 120 Stat. 1513.
“The liability of the owner of any vessel, whetherAmerican or foreign, for any embezzlement, loss, ordestruction by any person of any property, goods, ormerchandise shipped or put onboard of such vessel, orfor any loss, damage, or injury by collision, or for any
act, matter, or thing, loss, damage, or forfeiture, done,occasioned, or incurred, without the privity orknowledge of such owner or owners, shall not, except inthe cases provided for in subsection (b) of this section,exceed the amount or value of the interest of such ownerin such vessel, and her freight then pending.” § 183(a)(emphasis added).
This statute operates to shield from liability shipownerscharged with wrongdoing committed without their privityor knowledge; the Limitation Act's protections thus renderlarge punitive damages awards functionally unavailable ina wide swath of admiralty cases. Exxon evidently didFN2
not invoke the protection of the Limitation Act because itrecognized the futility of attempting to establish that itlacked “privity or knowledge” of Captain Hazelwood'sdrinking. Although the existence of the Limitation ActFN3
does not resolve this case, the fact that Congress chose toprovide such generous protection against liability withoutincluding a party like Exxon within that protectioncounsels against extending a similar benefit here.
FN2. See Lewis v. Lewis & Clark Marine, Inc.,531 U.S. 438, 446, 121 S.Ct. 993, 148 L.Ed.2d931 (2001) (“Admiralty and maritime lawincludes a host of special rights, duties, rules, andprocedures .... Among these provisions is theLimitation Act .... The Act allows a vessel ownerto limit liability for damage or injury, occasionedwithout the owner's privity or knowledge, to thevalue of the vessel or the owner's interest in thevessel”); Coryell v. Phipps, 317 U.S. 406, 412,63 S.Ct. 291, 87 L.Ed. 363 (1943) (“One whoselects competent men to store and inspect avessel and who is not on notice as to theexistence of any defect cannot be denied thebenefit of the limitation as respects a lossincurred by an explosion during the period ofstorage, unless ‘privity’ or ‘knowledge’ are tobecome empty words”).
FN3. Testimony at an early phase of thisprotracted litigation confirmed as much. In ahearing before the District Court, one of Exxon'sattorneys explained that his firm advised Exxonin 1989 that Exxon would “ ‘never be able tosustain its burden to show lack of privity orknowledge with the use of alcohol by CaptainHazelwood.’ ” App. to Brief in Opposition 43a.
The Limitation Act is only one of several statutes thatpoint to this conclusion. In the Trans-Alaska PipelineAuthorization Act (TAPAA), 87 Stat. 584, 43 U.S.C. §1651 et seq., Congress altered the liability regimegoverning certain types of Alaskan oil spills, imposingstrict liability but also capping recovery; notably, it did notrestrict the availability of punitive damages. (ExxonFN4
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unsuccessfully argued that the TAPAA precluded punitivedamages at an earlier stage of this litigation, see App.101-107.) And the Court today rightly decides that inpassing the Clean Water Act, Congress did not displace orin any way diminish the availability of common-lawpunitive damages remedies. Ante, at 2618 - 2619.
FN4. Although the issue has not been resolvedby this Court, there is evidence that in passingTAPAA, Congress meant to prevent applicationof the Limitation Act to the trans-Alaskantransportation of oil. The House ConferenceReport includes the following passage:
“Under the Limitation of Liability Act of 1851(46 U.S.C. 183), the owner of a vessel isentitled to limit his liability for propertydamage caused by the vessel ... The Confereesconcluded that existing maritime law wouldnot provide adequate compensation to allvictims ... in the event of the kind ofcatastrophe which might occur. Consequently,the Conferees established a rule of strictliability for damages from discharges of the oiltransported through the trans-Alaska Pipelineup to $100,000,000.” H.R. Conf. Rep. No.93-624, p. 28 (1973), U.S.Code Cong. &Admin.News 1973, p. 2523, 2530.
See also In re Glacier Bay, 944 F.2d 577, 583(C.A.9 1991) (“[W]e hold that TAPAAimplicitly repealed the Limitation Act withregard to the transportation of trans-Alaskaoil”).
The congressional choice not to limit the availability ofpunitive damages under maritime law should not beviewed as an invitation to make policy judgments on thebasis of evidence in the public domain that Congress isbetter able to evaluate than is this Court.
IIThe Court's analysis of the empirical data it has assembledis problematic for several reasons. First, I believe that theCourt fails to recognize a unique feature of maritime lawthat may counsel against uncritical reliance on data fromland-based tort cases: General maritime law limits theavailability of compensatory damages. Some maritimecourts bar recovery for negligent infliction of purelyemotional distress, see 1 T. Schoenbaum, Admiralty andMaritime Law § 5-15 (4th ed.2004), and, on the view ofFN5
many courts, maritime law precludes recovery for purely“economic losses ... absent direct physical damage toproperty or a proprietary interest,” 2 id., § 14-7, at 124.FN6
Under maritime law, then, more than in the land-tortcontext, punitive damages may serve to compensate forcertain sorts of intangible injuries not recoverable under
the rubric of compensation.
FN5. Schoenbaum explains that “[n]either thegeneral maritime law nor the Jones Actrecognizes a right to recover damages fornegligent infliction of emotional distressunaccompanied by physical injury.” § 5-15, p.239. See also Gough v. Natural Gas Pipeline Co.of Am., 996 F.2d 763, 765 (C.A.5 1993) (purelyemotional injuries are compensable undermaritime law when maritime plaintiffs “satisfythe ‘physical injury or impact rule’ ”).
FN6. The latter limitation has its roots in the “drydock doctrine” of Robins Dry Dock & Repair Co.v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290(1927) (opinion for the Court by Holmes, J.). SeeBarber Lines A/S v. M/V Donau Maru, 764 F.2d50 (C.A.1 1985) (opinion for the Court byBreyer, J.) (tracing the history and purposes ofthe doctrine, and resolving to adhere to its rule);see also Louisiana v. M/V Testbank, 752 F.2d1019, 1020 (C.A.5 1985) (en banc) (affirmingrule denying recovery for economic loss absent“physical damage to a proprietary interest ... incases of unintentional maritime tort”).
We observed in Cooper Industries, Inc. v. LeathermanTool Group, Inc., 532 U.S. 424, 437-438, n. 11, 121 S.Ct.1678, 149 L.Ed.2d 674 (2001):
“Until well into the 19th century, punitive damagesfrequently operated to compensate for intangibleinjuries, compensation which was not otherwiseavailable under the narrow conception of compensatorydamages prevalent at the time .... As the types ofcompensatory damages available to plaintiffs havebroadened, see, e.g., 1 J. Nates, C. Kimball, D. Axelrod,& R. Goldstein, Damages in Tort Actions §3.01[3][a](2000) (pain and suffering are generallyavailable as species of compensatory damages), thetheory behind punitive damages has shifted toward amore purely punitive ... understanding.”
Although these sorts of intangible injuries are now largelya species of ordinary compensatory damages under generaltort law, it appears that maritime law continues to treatsuch injuries as less than fully compensable, or notcompensable at all. Accordingly, there may be less reasonto limit punitive damages in this sphere than there wouldbe in any other.
Second, both caps and ratios of the sort the Court reliesupon in its discussion are typically imposed bylegislatures, not courts. Although the Court offers a greatdeal of evidence that States have acted in various ways tolimit punitive damages, it is telling that the Court fails to
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identify a single state court that has imposed a preciseratio, as the Court does today, under its common-lawauthority. State legislatures have done so, of course; andindeed Congress would encounter no obstacle to doing thesame as a matter of federal law. But Congress is far bettersituated than is this Court to assess the empirical data, andto balance competing policy interests, before making sucha choice.FN7
FN7. See Turner Broadcasting System, Inc. v.FCC, 512 U.S. 622, 665-666, 114 S.Ct. 2445,129 L.Ed.2d 497 (1994) (plurality opinion) (“Asan institution ... Congress is far better equippedthan the judiciary to amass and evaluate the vastamounts of data bearing upon an issue ascomplex and dynamic as that presented here”(internal quotation marks omitted)); Patsy v.Board of Regents of Fla., 457 U.S. 496, 513, 102S.Ct. 2557, 73 L.Ed.2d 172 (1982) (when“relevant policy considerations do not invariablypoint in one direction, and there is vehementdisagreement over the validity of the assumptionsunderlying many of them[, t]he very difficulty ofthese policy considerations, and Congress'superior institutional competence to pursue thisdebate, suggest that legislative not judicialsolutions are preferable”).
The Court points to United States v. ReliableTransfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44L.Ed.2d 251 (1975), a case in which the Courtadopted a rule of proportional liability inmaritime tort cases, as an illustrative exampleof the Court's power to craft “flexible and fairremedies in the law maritime.” Id., at 409, 95S.Ct. 1708. In that case, however, the Courtnoted that not only was the new proportionalliability rule not barred by any “statutory orjudicial precept,” but also that its adoptionwould “simply bring recovery for propertydamage in maritime collision cases into linewith the rule of admiralty law long sinceestablished by Congress for personal injurycases.” Ibid. By contrast, the Court in this casehas failed to demonstrate that adoption of therule it announces brings the maritime law intoline with expressions of congressional intent inthis (or any other) context.
The Court concedes that although “American punitivedamages have been the target of audible criticism in recentdecades,” “most recent studies tend to undercut much of[that criticism].” Ante, at 2624. It further acknowledgesthat “[a] survey of the literature reveals that discretion toaward punitive damages has not mass-produced runawayawards.” Ibid. The Court concludes that the real problemis large outlier awards, and the data seem to bear this out.
But the Court never explains why abuse-of-discretionreview is not the precise antidote to the unfairness inherentin such excessive awards.
Until Congress orders us to impose a rigid formula togovern the award of punitive damages in maritime cases,I would employ our familiar abuse-of-discretion standard:“If no constitutional issue is raised, the role of theappellate court, at least in the federal system, is merely toreview the trial court's ‘determination under anabuse-of-discretion standard,’ ” Cooper Industries, Inc.,532 U.S., at 433, 121 S.Ct. 1678; see also Pacific Mut.Life Ins. Co. v. Haslip, 499 U.S. 1, 15, 111 S.Ct. 1032, 113L.Ed.2d 1 (1991) ( “Under the traditional common-lawapproach, the amount of the punitive award is initiallydetermined by a jury instructed to consider the gravity ofthe wrong and the need to deter similar wrongful conduct.The jury's determination is then reviewed by trial andappellate courts to ensure that it is reasonable”).
On an abuse-of-discretion standard, I am persuaded that areviewing court should not invalidate this award. InFN8
light of Exxon's decision to permit a lapsed alcoholic tocommand a supertanker carrying tens of millions ofgallons of crude oil through the treacherous waters ofPrince William Sound, thereby endangering all of theindividuals who depended upon the sound for theirlivelihoods, the jury could reasonably have givenexpression to its “moral condemnation” of Exxon'sconduct in the form of this award. Cooper Industries, Inc.,532 U.S., at 432, 121 S.Ct. 1678.
FN8. The idiosyncratic posture of this casemakes true abuse-of-discretion appellate reviewsomething of a counterfactual, since the $5billion award returned by the jury was, afterseveral intervening steps, ultimately remitted to$2.5 billion by the Ninth Circuit in order toconform with this Court's Due Process cases. 472F.3d 600 (2006)(per curiam). Suffice it to say,for now, that although the constitutional limitsand the abuse-of-discretion standard are notidentical, in this case the $2.5 billion the NinthCircuit believed survived de novo constitutionalscrutiny would, in my judgment, also satisfyabuse-of-discretion review.
I would adhere to the principle that “ ‘it better becomes thehumane and liberal character of proceedings in admiraltyto give than to withhold the remedy, when not required towithhold it by established and inflexible rules.’ ” Moragnev. States Marine Lines, Inc., 398 U.S. 375, 387, 90 S.Ct.1772, 26 L.Ed.2d 339 (1970) (quoting Chief Justice Chasein The Sea Gull, 21 F. Cas. 909, 910 (CC Md. 1865)).
* * *
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While I do not question that the Court possesses the powerto craft the rule it announces today, in my judgment it errsin doing so. Accordingly, I respectfully dissent from PartsIV and V of the Court's opinion, and from its judgment.
Justice GINSBURG, concurring in part and dissenting inpart.
I join Parts I, II, and III of the Court's opinion, and dissentfrom Parts IV and V.
This case is unlike the Court's recent forays into thedomain of state tort law under the banner of substantivedue process. See State Farm Mut. Automobile Ins. Co. v.Campbell, 538 U.S. 408, 418-428, 123 S.Ct. 1513, 155L.Ed.2d 585 (2003) (reining in state-court awards ofpunitive damages); BMW of North America, Inc. v. Gore,517 U.S. 559, 574-585, 116 S.Ct. 1589, 134 L.Ed.2d 809(1996) (same). The controversy here presented “arisesunder federal maritime jurisdiction,” ante, at 2626(opinion of the Court), and, beyond question, “the Courtpossesses the power to craft the rule it announces today,”ante, at 2638 (STEVENS, J., concurring in part anddissenting in part). The issue, therefore, is whether theCourt, though competent to act, should nevertheless leavethe matter to Congress. The Court has explained, in itswell stated and comprehensive opinion, why it has takenthe lead. While recognizing that the question is close, Ishare Justice STEVENS' view that Congress is the betterequipped decisionmaker.
First, I question whether there is an urgent need inmaritime law to break away from the “traditionalcommon-law approach” under which punitive damages aredetermined by a properly instructed jury, followed bytrial-court, and then appellate-court review, to ensure that[the award] is reasonable.” Pacific Mut. Life Ins. Co. v.Haslip, 499 U.S. 1, 15, 111 S.Ct. 1032, 113 L.Ed.2d 1(1991). The Court acknowledges that the traditionalapproach “has not mass-produced runaway awards,” ante,at 2624, or endangered settlement negotiations, ante, at2624 - 2625, n. 15. Nor has the Court asserted that outlierawards, insufficiently checked by abuse-of-discretionreview, occur more often or are more problematic inmaritime cases than in other areas governed by federallaw.
Second, assuming a problem in need of solution, theCourt's lawmaking prompts many questions. The 1:1 ratiois good for this case, the Court believes, because Exxon'sconduct ranked on the low end of the blameworthinessscale: Exxon was not seeking “to augment profit,” nor didit act “with a purpose to injure,” ante, at 2622. What ratiowill the Court set for defendants who acted maliciously orin pursuit of financial gain? See ante, at 2631 - 2632.Should the magnitude of the risk increase the ratio and, ifso, by how much? Horrendous as the spill from the Valdez
was, millions of gallons more might have spilled as aresult of Captain Hazelwood's attempt to rock the boat offthe reef. See ante, at 2613 (opinion of the Court); cf. TXOProduction Corp. v. Alliance Resources Corp., 509 U.S.443, 460-462, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993)(plurality opinion) (using potential loss to plaintiff as aguide in determining whether jury verdict was excessive).In the end, is the Court holding only that 1:1 is themaritime-law ceiling, or is it also signaling that any ratiohigher than 1:1 will be held to exceed “the constitutionalouter limit”? See ante, at 2634, n. 28. On next opportunity,will the Court rule, definitively, that 1:1 is the ceiling dueprocess requires in all of the States, and for all federalclaims?
Heightening my reservations about the 1:1 solution isJustice STEVENS' comment on the venturesome characterof the Court's decision. In the States, he observes, fixedratios and caps have been adopted by legislatures; thisCourt has not identified “[any] state court that hasimposed a precise ratio” in lieu of looking to thelegislature as the appropriate source of a numericaldamage limitation. Ante, at 2637.
For the reasons stated, I agree with Justice STEVENS thatthe new law made by the Court should have been left toCongress. I would therefore affirm the judgment of theCourt of Appeals.
Justice BREYER, concurring in part and dissenting in part.
I join Parts I, II, and III of the Court's opinion. But Idisagree with its conclusion in Parts IV and V that thepunitive damages award in this case must be reduced.
Like the Court, I believe there is a need, grounded in therule of law itself, to assure that punitive damages areawarded according to meaningful standards that willprovide notice of how harshly certain acts will be punishedand that will help to assure the uniform treatment ofsimilarly situated persons. See BMW of North America,Inc. v. Gore, 517 U.S. 559, 587, 116 S.Ct. 1589, 134L.Ed.2d 809 (1996) (BREYER, J., concurring). Legalstandards, however, can secure these objectives withoutthe rigidity that an absolute fixed numerical ratio demands.In setting forth constitutional due process limits on the sizeof punitive damages awards, for example, we said that“few awards exceeding a single-digit ratio betweenpunitive and compensatory damages, to a significantdegree, will satisfy due process.” State Farm Mut.Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425, 123S.Ct. 1513, 155 L.Ed.2d 585 (2003) (emphasis added). Wethus foresaw exceptions to the numerical constraint.
In my view, a limited exception to the Court's 1:1 ratio iswarranted here. As the facts set forth in Part I of theCourt's opinion make clear, this was no mine-run case of
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reckless behavior. The jury could reasonably havebelieved that Exxon knowingly allowed a relapsedalcoholic repeatedly to pilot a vessel filled with millions ofgallons of oil through waters that provided the livelihoodfor the many plaintiffs in this case. Given that conduct, itwas only a matter of time before a crash and spill like thisoccurred. And as Justice GINSBURG points out, thedamage easily could have been much worse. See ante, at2639.
The jury thought that the facts here justified punitivedamages of $5 billion. See ante, at 2614 (opinion of theCourt). The District Court agreed. It “engaged in anexacting review” of that award “not once or twice, butthree times, with a more penetrating inquiry each time,”the case having twice been remanded for reconsiderationin light of Supreme Court due process cases that theDistrict Court had not previously had a chance to consider.296 F.Supp.2d 1071, 1110 (D.Alaska 2004). And eachtime it concluded “that a $5 billion award was justified bythe facts of this case,” based in large part on the fact that“Exxon's conduct was highly reprehensible,” and itreduced the award (slightly) only when the Court ofAppeals specifically demanded that it do so. Ibid.; see alsoid.,at 1075.
When the Court of Appeals finally took matters into itsown hands, it concluded that the facts justified an award of$2.5 billion. See 472 F.3d 600, 625 (C.A.9 2006)(percuriam). It specifically noted the “egregious” nature ofExxon's conduct. Ibid. And, apparently for that reason, itbelieved that the facts of the case “justifie[d] aconsiderably higher ratio” than the 1:1 ratio we hadapplied in our most recent due process case and that theCourt adopts here. Ibid.
I can find no reasoned basis to disagree with the Court ofAppeals' conclusion that this is a special case, justifying anexception from strict application of the majority'snumerical rule. The punitive damages award before usalready represents a 50% reduction from the amount thatthe District Court strongly believed was appropriate. Iwould uphold it.
94 S.Ct. 2174
COOPER STEVEDORING COMPANY, INC.v.
FRITZ KOPKE, INC.No. 73--726
Argued April 15, 16, 1974Decided May 28, 1974
Mr. Justice MARSHALL delivered the opinion of the Court.Mr. Justice Stewart took no part in the decision of the case.
This case concerns the extent to which contribution betweenjoint tortfeasors may be obtained in a maritime action forpersonal injuries. The S.S. Karina, a vessel owned andoperated by respondent Fritz Kopke, Inc., and under timecharter to respondent Alcoa Steamship Co., was loaded atMobile, Alabama, with palletized crates of cargo bypetitioner Cooper Stevedoring Co. The vessel thenproceeded to the Port of Houston where longshoremenemployed by Mid-Gulf Stevedores, Inc., began to loadsacked cargo. The Houston long-shoremen had to use thetop of the tier of creates loaded by Cooper as a floor onwhich to walk and stow the Houston cargo. One of these
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longshoremen, Troy Sessions, injured his back when hestepped into a gap between the creates which had beenconcealed by a large piece of corrugated paper.
Sessions brought suit in the District Court against Kopkeand Alcoa (hereinafter collectively the Vessel) seeking torecover damages for his injuries. The Vessel filed athird-party complaint against Cooper alleging that ifSessions was injured by any unseaworthy condition of thevessel or as the result of negligence other than his own, suchcondition or negligence resulted from the conduct of Cooperand its employees. The Vessel also filed a similarthird-party complaint against Mid-Gulf.
Prior to trial, Mid-Gulf and the Vessel apparently enteredinto an agreement under which Mid-Gulf would indemnifythe Vessel against any recovery which Sessions mightobtain. Pursuant to this agreement, Mid-Gulf was dismissedas a third-party defendant and Mid-Gulf's attorneys weresubstituted as counsel for the Vessel.
The case then went to trial, after which the District Court,which sat without a jury, orally announced its findings offact and conclusions of law. The court found that theVessel's failure either to make adequate arrangements toassure that the stow would not move and leave spaces in thecourse of its trip from Mobile to Houston or to put sometype of dunnage on top of the stow had resulted in an unsafeplace to work and unseaworthy condition. The court foundthat Cooper was also negligent in not stowing the creates ina manner in which longshoremen at subsequent ports couldsafely work on top of them. Finding it difficult from theevidence to 'evaluate exactly the responsibility between theshipowner on the one hand and Cooper on the other,' theDistrict Court divided the liability equally between theVessel and Cooper. Judgment was entered allowingSessions to recover $38,679.90 from the Vessel andallowing the Vessel to recover $19,339.95 from Cooper.
Cooper appealed, asserting that the District Court's award ofcontribution in a noncollision maritime case was in directconflict with this Court's decisions in Halcyon Lines v.Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72S.Ct. 277, 96 L.Ed. 318 (1952), and Atlantic Coast Line R.Co. v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct.1550, 32 L.Ed.2d 110 (1972). The Court of Appealsrejected this contention, relying on prior decisions of theFifth and Second Circuits to the effect that the apparentprohibition against contribution in noncollision maritimecases announced in Halcyon and Atlantic was inapplicablewhere the joint tortfeasor against whom contribution issought is not immune from tort liability by statute. SeeHorton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131(CA5 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 461, 27L.Ed.2d 441 (1971); Watz v. Zapata Off-Shore Co., 431F.2d 100 (CA5 1970); In re Seaboard Shipping Corp., 449F.2d 132 (CA2 1971), cert. denied, 406 U.S. 949, 92 S.Ct.
2038, 32 L.Ed.2d 337 (1972). The Court of Appeals foundthis principle applicable here since Sessions, in addition tosuing the Vessel, could have proceeded directly againstCooper as the latter was not his employer and, therefore, notshielded by the limited liability of the Longshoremen's andHarbor Workers' Compensation Act, 33 U.S.C. s 905, 479F.2d 1041 (CA5 1973). We granted certiorari to considerthis question, 414 U.S. 1127, 94 S.Ct. 864, 38 L.Ed.2d 752(1974), and now affirm.
Where two vessels collide due to the fault of each, anadmiralty doctrine of ancient lineage provides that themutual wrongdoers shall share equally the damagessustained by each. In The North Star, 106 U.S. 17, 1 S.Ct.41, 27 L.Ed. 91 (1882), Mr. Justice Bradley traced thedoctrine back to the Laws of Oleron which date from the12th century, and its roots no doubt go much deeper. Eventhough the common law of torts rejected a right ofcontribution among joint tortfeasors, the principle ofdivision of damages in admiralty has, over the years, beenliberally extended by this Court in directions deemed justand proper. In one line of cases, for example, the Courtexpanded the doctrine to encompass not only damage to thevessels involved in a collision, but personal injuries andproperty damage caused innocent third parties as well. See,e.g., The Washington, 9 Wall. 513, 19 L.Ed. 787 (1870);The Alabama, 92 U.S. 695, 23 L.Ed. 763 (1876); The Atlas,93 U.S. 302, 23 L.Ed. 863 (1876); The Chattahoochee, 173U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801 (1899). See generallyThe Max Morris, 137 U.S. 1, 8--11, 11 S.Ct. 29, 30--32, 34L.Ed. 586 (1890). In other cases, the Court has recognizedthe application of the rule of divided damages incircumstances not involving a collision between two vessels,as where a ship strikes a pier due to the fault of both theshipowner and the pier owner, see Atlee v. Packet Co., 21Wall. 389, 22 L.Ed. 619 (1875), or where a vessel goesaground in a canal due to the negligence of both theshipowner and the canal company, see White Oak Transp. Co. v. Boston, Cape Code & New York Canal Co., 258 U.S.341, 42 S.Ct. 338, 66 L.Ed. 649 (1922). See also The MaxMorris, supra, 137 U.S., at 13-- 14, 11 S.Ct., at 32--33.Indeed, it is fair to say that application of the rule of divisionof damages between joint tortfeasors in admiralty cases hasbeen as broad as its underlying rationales. The interests ofsafety dictate that where two parties 'are both in fault, theyshould bear the damage equally, to make them morecareful.' The Alabama, supra, 92 U.S., at 697. And a 'moreequal distribution of justice' can best be achieved byameliorating the common-law rule against contributionwhich permits a plaintiff to force one of two wrongdoers tobear the entire loss, though the other may have been equallyor more to blame. See The Max Morris, supra, 137 U.S., at14, 11 S.Ct., at 32.
Despite the occasional breadth of its dictum, our opinion inHalcyon should be read with this historical backdrop inmind. Viewed from this perspective, and taking into account
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the factual circumstances presented in that case, we thinkHalcyon stands for a more limited rule than the absolute baragainst contribution in noncollision cases urged upon us bypetitioner.
In Halcyon, a ship repair employee was injured whilemaking repairs on Halcyon's ship. He sued Halcyon fordamages, alleging negligence and unseaworthiness. Sincethe employee was covered by the Longshoremen's andHarbor Workers' Compensation Act, 33 U.S.C. ss 901--950,he was prohibited from suing his employer Haenn.Nevertheless Halcyon impleaded Haenn as a joint tortfeasorseeking contribution for the judgment recovered by theemployee. We granted certiorari in Halcyon to resolve aconflict which had arisen among the circuits as to whethera shipowner could recover contribution in thesecircumstances. See 342 U.S., at 283--284, and n. 3, 72S.Ct., at 278--279. One court had held that the employer'slimitation of liability vis-a -vis its employee under theHarbor Workers' Act barred contribution. See AmericanMutual Liability Insurance Co. v. Matthews, 182 F.2d 322(CA2 1950). Another Circuit had held that the Act did notbar contribution, see United States v. Rothschild Int'lStevedoring Co., 183 F.2d 181 (CA9 1950), and yet a thirdCircuit, in the case reviewed in Halcyon, had permittedcontribution but limited it to the amount which the injuredemployee could have compelled the employer to pay had heelected to claim compensation under the Act. 187 F.2d 403(CA3 1951).
Before this Court, both parties in Halcyon agreed that'limiting an employer's liability for contribution to thoseuncertain amounts recoverable under the Harbor Workers'Act is impractical and undesirable.' 342 U.S., at 284, 72S.Ct. at 279. The Court also took cognizance of theapparent trade-off in the Act between the employer'slimitation of liability and the abrogation, in favor of theemployee, of common-law doctrines of contributorynegligence and assumption or risk. Id., at 285--286, 72 S.Ct.at 279--280. Confronted with the possibility that anyworkable rule of contribution might be inconsistent with thebalance struck by Congress in the Harbor Workers' Actbetween the interests of carriers, employers, employees, andtheir respective insurers, we refrained from allowingcontribution in the circumstances of that case.
These factors underlying our decision in Halcyon still havemuch force. Indeed, the 1972 amendments to the HarborWorkers' Act re-emphasize Congress' determination that asbetween an employer and its injured employee, the right tocompensation under the Act should be the employee'sexclusive remedy. But whatever weight these factors wereproperly accorded in the factual circumstances presented inHalcyon, they have no application here. Unlike the injuredworker in Halcyon, Sessions was not an employee ofCooper and could have proceeded against either the Vesselor Cooper or both of them to recover full damages for his
injury. Had Sessions done so, either or both of thedefendants could have been held responsible for all or partof the damages. Since Sessions could have elected to makeCooper bear its share of the damages caused by itsnegligence, we see no reason why the Vessel should not beaccorded the same right. On the facts of this case, then, nocountervailing considerations detract from thewell-established maritime rule allowing contributionbetween joint tortfeasors.
Our brief per curiam opinion in Atlantic Coast Line R. Co.v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct. 1550, 32L.Ed.2d 110 (1972), is fully consistent with this view. Inthat case a yard brakeman, employed by Erie, brought suitfor injuries sustained while working on a boxcar owned byanother railroad. Atlantic, while the boxcar was beingtransported on a carfloat barge owned by Erie. The accidentwas allegedly due to a defective footboard and handbrake ofthe boxcar and the plaintiff sued Atlantic for its negligencein supplying defective equipment. Atlantic soughtcontribution from Erie on the ground that its negligence wasalso a factor in causing the injury. The District Court deniedcontribution, relying on Halcyon. The Court of Appealsaffirmed and we granted certiorari because it initiallyappeared that the decision was inconsistent with the Courtsof Appeals' decisions in Horton, Watz, and Seaboard, supra,which had allowed contribution, notwithstanding Halcyon,in situations where the party against whom contribution wassought was not entitled to the limitation-of-liabilityprotections of the Harbor Workers' Act. After oral argument,however, it appeared that the case was factuallyindistinguishable from Halcyon. Erie, against whomcontribution was sought, was the plaintiff's employer, and inPennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct.302, 97 L.Ed. 367 (1953), we recognized that a railroademployee injured while working on a freight car situated ona carfloat in navigable waters was subject exclusively to theHarbor Workers' Act. Erie was therefore entitled to thelimitation-of-liability protections of the Harbor Workers'Act, just like the employer in Halcyon.
Petitioner argues, however, that this protection wasephemeral in Atlantic since, under Jackson v. Lykes Bros.S.S. Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488(1967), the injured employee in Atlantic could have suedErie, the shipowner-employer, for unseaworthiness of thevessel. See also Reed v. The Yaka, 373 U.S. 410, 83 S.Ct.1349, 10 L.Ed.2d 448 (1963). But the fact that Erie mayhave been subject to a suit based on unseaworthiness fordamages caused by defective boxcar appliances, compareThe Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed.760 (1903), with Gutierrez v. Waterman S.S. Corp., 373U.S. 206, 213, 83 S.Ct. 1185, 1189, 10 L.Ed.2d 297 (1963),did not make it a joint tortfeasor subject to a contributionclaim. Contribution rests upon a finding of concurrent fault.Erie's liability, if any, for unseaworthiness of its vesselwould have been a strict liability not based upon fault. In
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other words, even if Erie were negligent, its injuredemployee was entitled to claim compensation from it underthe Harbor Workers' Act, and Erie was accordingly entitledto the protective mantle of the Act's limitation-of-liabilityprovisions. And to the extent Erie was not negligent butnevertheless subject to a suit on a seaworthiness theory, Eriewas not a joint tortfeasor against whom contribution couldbe sought. See Simpson Timber Co. v. Parks, 390 F.2d 353(CA9), cert. denied, 393 U.S. 858, 89 S.Ct. 126, 21 L.Ed.2d127 (1968).
In sum, our opinion in Atlantic was not intended to answerthe question posed by the present case, as its failure todiscuss Horton, Watz, and Seaboard indicates. Rather,Atlantic proves only that our decision in Halcyon was, andstill is, good law on its facts.
Affirmed.
99 S.Ct. 2753
EDMONDSv.
COMPAGNIE GENERALE TRANSATLANTIQUENo. 78-479
Argued March 19, 1979Decided June 27, 1979
Mr. Justice WHITE, delivered the opinion of the Court.
Mr. Justice POWELL took no part in the consideration ordecision of this case. Mr. Justice BLACKMUN, with whomMr. Justice MARSHALL and Mr. Justice STEVENS join,dissenting; dissent is omitted.
On March 3, 1974, the S.S. Atlantic Cognac, a containershipowned by respondent, arrived at the Portsmouth MarineTerminal, Va. Petitioner, a longshoreman, was thenemployed by the Nacirema Operating Co., a stevedoringconcern that the shipowner had engaged to unload cargofrom the vessel. The longshoreman was injured in the courseof that work, and he received benefits for that injury fromhis employer under the Longshoremen's and HarborWorkers' Compensation Act. 44 Stat. 1424, as amended, 33U.S.C. § 901 et seq. In addition, the longshoreman broughtthis negligence action against the shipowner in FederalDistrict Court.
A jury determined that the longshoreman had suffered totaldamages of $100,000, that he was responsible for 10% ofthe total negligence resulting in his injury, that thestevedore's fault, through a co-employee's negligence,contributed 70%, and that the shipowner was accountablefor 20%. Following an established principle of maritimelaw, the District Court reduced the award to the
longshoreman by the 10% attributed to his own negligence.But also in accordance with maritime law, and the commonlaw as well, the court refused further to reduce the awardagainst the shipowner in proportion to the fault of theemployer.
The United States Court of Appeals for the Fourth Circuit,with two judges dissenting, reversed en banc, holding thatthe 1972 Amendments to the Act, 86 Stat. 1251, had alteredthe traditional admiralty rule by making the shipowner liableonly for that share of the total damages equivalent to theratio of its fault to the total fault. 577 F.2d 1153, 1155-1156(1978). Other Courts of Appeals have reached the contraryconclusion. We granted certiorari to resolve this conflict,439 U.S. 952, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978), and,once again, we have before us a question of the meaning ofthe 1972 Amendments.
IAdmiralty law is judge-made law to a great extent, UnitedStates v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct.1708, 1714, 44 L.Ed.2d 251 (1975); Fitzgerald v. UnitedStates Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10L.Ed.2d 720 (1963), and a longshoreman's maritime tortaction against a shipowner was recognized long before the1972 Amendments, see Pope & Talbot, Inc. v. Hawn, 346U.S. 406, 413-414, 74 S.Ct. 202, 207, 98 L.Ed. 143 (1953),as it has been since. As that law had evolved by 1972, alongshoreman's award in a suit against a negligentshipowner would be reduced by that portion of the damagesassignable to the longshoreman's own negligence; but, as amatter of maritime tort law, the shipowner would beresponsible to the longshoreman in full for the remainder,even if the stevedore's negligence contributed to the injuries.This latter rule is in accord with the common law, whichallows an injured party to sue a tortfeasor for the full amountof damages for an indivisible injury that the tortfeasor'snegligence was a substantial factor in causing, even if theconcurrent negligence of others contributed to the incident.
The problem we face today, as was true of similar problemsthe Court has dealt with in the past, is complicated by theoverlap of loss-allocating mechanisms that are guided bysomewhat inconsistent principles. The liability of the shipto the longshoreman is determined by a combination ofjudge-made and statutory law and, in the present context,depends on a showing of negligence or some otherculpability. The longshoreman-victim, however, and hisstevedore-employer--also a tortfeasor in this case--areparticipants in a workers' compensation scheme that affordsbenefits to the longshoreman regardless of the employer'sfault and provides that the stevedore's only liability for thelongshoreman's injury is to the longshoreman in the amountspecified in the statute. 33 U.S.C. § 905. We have morethan once attempted to reconcile these systems.
We first held that the shipowner could not circumvent the
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exclusive-remedy provision by obtaining contribution fromthe concurrent tortfeasor employer. Halcyon Lines v. HaennShip Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277,96 L.Ed. 318 (1952); Pope & Talbot, Inc. v. Hawn, supra; see Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S.106, 111-113, 94 S.Ct. 2174, 2177-2178, 40 L.Ed.2d 694(1974). As a matter of maritime law, we also held that alongshoreman working on a vessel was entitled to thewarranty of seaworthiness, Seas Shipping Co. v. Sieracki,328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946),which amounted to liability without fault for most onboardinjuries. However, we went on to hold, as a matter ofcontract law, that the shipowner could obtain from thestevedore an express or implied warranty of workmanlikeservice that might result in indemnification of the shipownerfor its liability to the longshoreman. Ryan Stevedoring Co.v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100L.Ed. 133 (1956).
Against this background, Congress acted in 1972, amongother things, to eliminate the shipowner's liability to thelongshoreman for unseaworthiness and the stevedore'sliability to the shipowner for unworkmanlike serviceresulting in injury to the longshoreman--in other words, tooverrule Sieracki and Ryan. See Northeast Marine TerminalCo. v. Caputo, 432 U.S. 249, 260-261, and n. 18, 97 S.Ct.2348, 2355-2356, and n. 18, 53 L.Ed.2d 320 (1977); Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra, 417U.S., at 113 n. 6, 94 S.Ct., at 2178 n. 6. Though admittingthat nothing in either the statute or its history expresslyindicates that Congress intended to modify as well theexisting rules governing the longshoreman's maritimenegligence suit against the shipowner by diminishingdamages recoverable from the latter on the basis of theproportionate fault of the nonparty stevedore, 577 F.2d, at1155, and n. 2, the en banc Court of Appeals found that sucha result was necessary to reconcile two sentences added in1972 as part of 33 U.S.C. § 905(b). The two sentencesstate:
"In the event of injury to a person covered under thischapter caused by the negligence of a vessel, then suchperson, or anyone otherwise entitled to recover damagesby reason thereof, may bring an action against such vesselas a third party in accordance with the provisions ofsection 933 of this title, and the employer shall not beliable to the vessel for such damages directly or indirectlyand any agreements or warranties to the contrary shall bevoid. If such person was employed by the vessel toprovide stevedoring services, no such action shall bepermitted if the injury was caused by the negligence ofpersons engaged in providing stevedoring services to thevessel." 33 U.S.C. § 905(b).
The Court of Appeals described the perceived conflict inthis fashion:
"The first sentence says that if the injury is caused by thenegligence of a vessel the longshoreman may recover, butthe second sentence says he may not recover anything ofthe ship if his injury was caused by the negligence of aperson providing stevedoring services. The sentences areirreconcilable if read to mean that any negligence on thepart of the ship will warrant recovery while anynegligence on the part of the stevedore will defeat it. They may be harmonized only if read in apportionedterms." 577 F.2d, at 1155.
For a number of reasons, we are unpersuaded that Congressintended to upset a "long-established and familiarprincipl[e]" of maritime law by imposing aproportionate-fault rule. Cf. Isbrandtsen Co. v. Johnson,343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294(1952).
AIn the first place, the conflict seen by the Court of Appealsis largely one of its own creation. Both sides admit thateach sentence may be read so as not to conflict with theother. The first sentence addresses the recurring situation,reflected by the facts in this case, where the party injured bythe negligence of the vessel is a longshoreman employed bya stevedoring concern. In these circumstances, thelongshoreman may sue the vessel as a third party, but hisemployer, the stevedore, is not to be liable directly orindirectly for any damages that may be recovered. Thisfirst sentence overrules Ryan and prevents the vessel fromrecouping from the stevedore any of the damages that thelongshoreman may recover from the vessel. But thesentence neither expressly nor implicitly purports tooverrule or modify the traditional rule that the longshoremanmay recover the total amount of his damages from the vesselif the latter's negligence is a contributing cause of his injury,even if the stevedore, whose limited liability is fixed bystatute, is partly to blame.
The second sentence of the paragraph is expressly addressedto the different and less familiar arrangement where theinjured longshoreman loading or unloading the ship isemployed by the vessel itself, not by a separate stevedoringcompany--in short, to the situation where the ship is its ownstevedore. In this situation, the second sentence places somelimitations on suits against the vessel for injuries causedduring its stevedoring operations. Whatever these limitationsmay be, there is no conflict between the two sentences, andone arises only if the second sentence is read, as the Courtof Appeals read it, as applying to all injured longshoremen,whether employed by the ship or by an independentstevedore. Nothing in the legislative history advises thisconstruction of the sentence, and we see no reason to departfrom the language of the statute in this respect.
Respondent insists that, even though the two sentences maydeal with different business arrangements, problems still
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arise. If under the first sentence a third-party suit againstthe vessel is authorized when any part of the negligencecausing the injury is that of the vessel, it is argued that suitagainst the vessel under the second sentence should bebarred when any part of the negligence causing the injury isthat of a co-worker also providing stevedoring services tothe vessel. Under this interpretation, the employee of theindependent stevedore could recover from the ship wherethe stevedore was responsible for 99% of the negligence,though a ship's employee performing stevedoring servicescould not hold the vessel liable if his co-worker's negligencewas the slightest cause of the injury. This is said to bepreposterous and contrary to the legislative intent to treat thevessel that provides its own stevedoring services just likeother shipowners when and if it negligently causes injury inits capacity as a shipowner and just like other stevedoreswhen it negligently injures in the course of providing itsown loading or unloading services.
Aside from the fact that the problem suggested would ariseonly in the application of the second sentence, which is notinvolved in this case, the argument that the words "causedby the negligence of" in the two sentences must be given thesame meaning and that they cannot have the meaningascribed to them by petitioner's construction of the firstsentence, logically leads to the conclusion that the injuredlongshoreman should never be able to bring suit against thevessel unless it is the sole cause of the injury. This is adoubly absurd conclusion. It is supported by no one, and toavoid it, it is necessary only to construe the second sentenceto permit a third-party suit against the vessel providing itsown loading and unloading services when negligence in itsnonstevedoring capacity contributes to the injury. Thesecond sentence means no more than that all longshoremenare to be treated the same whether their employer is anindependent stevedore or a shipowner-stevedore and that allstevedores are to be treated the same whether they areindependent or an arm of the shipowner itself.
This leaves the question of the measure of recovery againsta shipowner, whether or not it is doing its own stevedoring,when as shipowner it is only partially responsible for thenegligence, but we are quite unable to distill from the faceof the obviously awkward wording of the two sentences anyindication that Congress intended to modify the pre-existingrule that a longshoreman who is injured by the concurrentnegligence of the stevedore and the ship may recover for theentire amount of his injuries from the ship.
BThe legislative history strongly counsels against the Courtof Appeals' interpretation of the statute, which modifies thelongshoreman's pre-existing rights against the negligentvessel. The reports and debates leading up to the 1972Amendments contain not a word of this concept. Thissilence is most eloquent, for such reticence whilecontemplating an important and controversial change in
existing law is unlikely. Moreover, the general statementsappearing in the legislative history concerning § 905(b) areinconsistent with what respondent argues was in the back ofthe legislators' minds about this specific issue. TheCommittees repeatedly refer to the refusal to limit theshipowner's liability for negligence, which they felt left thevessel in the same position as a land-based third party whosenegligence injures an employee. Because an employeegenerally may recover in full from a third-party concurrenttortfeasor, these statements are hardly indicative of an intentto modify the law in the respect found by the Court ofAppeals. At the very least, one would expect some hint of apurpose to work such a change, but there was none.
The shipowner denies that the legislative history is soone-sided, relying upon statements that vessels "will not bechargeable with the negligence of the stevedore or [the]employees of the stevedore." S.Rep. 11; see 577 F.2d, at1156 n. 2. But in context these declarations deal only withremoval of the shipowner's liability under the warranty ofseaworthiness for acts of the stevedore--even nonnegligentones.
CFinally, we note that the proportionate-fault rule adopted bythe Court of Appeals itself produces consequences that wedoubt Congress intended. It may remove some inequities,but it creates others and appears to shift some burdens to thelongshoreman.
As we have said, § 905 permits the injured longshoreman tosue the vessel and exempts the employer from any liabilityto the vessel for any damages that may be recovered.Congress clearly contemplated that the employee be free tosue the third-party vessel, to prove negligence and causationon the vessel's part, and to have the total damages set by thecourt or jury without regard to the benefits he has receivedor to which he may be entitled under the Act. Furthermore,under the traditional rule, the employee may recover fromthe ship the entire amount of the damages so determined. Ifhe recovers less than the statutory benefits, his employer isstill liable for the statutory amount.
Under this arrangement, it is true that the ship will be liablefor all of the damages found by the judge or jury; yet itsnegligence may have been only a minor cause of the injury.The stevedore-employer may have been predominantlyresponsible; yet its liability is limited by the Act, and if ithas lien rights on the longshoreman's recovery it may beout-of-pocket even less.
Under the Court of Appeals' proportionate-fault rule,however, there will be many circumstances where thelongshoreman will not be able to recover in any way the fullamount of the damages determined in his suit against thevessel. If, for example, his damages are at least twice thebenefits paid or payable under the Act and the ship is less
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than 50% at fault, the total of his statutory benefits plus thereduced recovery from the ship will not equal his totaldamages. More generally, it would appear that if thestevedore's proportionate fault is more than the proportionof compensation to actual damages, the longshoreman willalways fall short of recovering the amount that the factfinderhas determined is necessary to remedy his total injury, eventhough the diminution is due not to his fault, but to that ofhis employer.
But the impact of the proportionate-fault rule on thelongshoreman does not stop there. Under § 933(b), anadministrative order for benefits operates as an assignmentto the stevedore-employer of the longshoreman's rightsagainst the third party unless the longshoreman sues withinsix months. And a corresponding judicially created lien inthe employer's favor operates where the longshoremanhimself sues. In the past, this lien has been for the benefitspaid up to the amount of the recovery. And under § 933(c),which Congress left intact in 1972, where thestevedore-employer sues the vessel as statutory assignee itmay retain from any recovery an amount equal in general tothe expenses of the suit, the costs of medical services andsupplies it provided the employee, all compensation benefitspaid, the present value of benefits to be paid, plus one-fifthof whatever might remain. Under the Court of Appeals'proportionate-fault system, the longshoreman would getvery little, if any, of the diminished recovery obtained by hisemployer. Indeed, unless the vessel's proportionate faultexceeded the ratio of compensation benefits to totaldamages, the longshoreman would receive nothing from thethird-party action, and the negligent stevedore might recoupall the compensation benefits it had paid.
Some inequity appears inevitable in the present statutoryscheme, but we find nothing to indicate and should notpresume that Congress intended to place the burden of theinequity on the longshoreman whom the Act seeks toprotect. Further, the 1972 Amendments make quite clearthat "the employer shall not be liable to the vessel for suchdamages directly or indirectly," 33 U.S.C. § 905(b)(emphasis supplied), and that with the disappearance of theship's contribution and indemnity right against the stevedorethe latter should no longer have to appear routinely in suitsbetween longshoreman and shipowner. Consequently, as wehave done before, we must reject a "theory that nowhereappears in the Act, that was never mentioned by Congressduring the legislative process, that does not comport withCongress' intent, and that restricts . . . a remedial Act . . .." Northeast Marine Terminal Co. v. Caputo, 432 U.S., at278- 279, 97 S.Ct., at 2365.
IIOf course, our conclusion that Congress did not intend tochange the judicially created rule that the shipowner can bemade to pay all the damages not due to the plaintiff's ownnegligence does not decide whether we are free to and
should change that rule so as to make the vessel liable onlyfor the damages in proportion to its own negligence. Indeed, some amici in support of respondent share the viewthat Congress did not change the rule but argue that thisCourt should do so. We disagree.
Though we recently acknowledged the sound argumentssupporting division of damages between parties before thecourt on the basis of their comparative fault, see UnitedStates v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708,44 L.Ed.2d 251 (1975), we are mindful that here we dealwith an interface of statutory and judge-made law. In 1972Congress aligned the rights and liabilities of stevedores,shipowners, and longshoremen in light of the rules ofmaritime law that it chose not to change. "One of the mostcontroversial and difficult issues which [Congress was]required to resolve . . . concern[ed] the liability of vessels,as third parties, to pay damages to longshoremen who areinjured while engaged in stevedoring operations." S.Rep. 8.By now changing what we have already established thatCongress understood to be the law, and did not itself wish tomodify, we might knock out of kilter this delicate balance. As our cases advise, we should stay our hand in thesecircumstances. Cooper Stevedoring Co. v. Fritz Kopke, Inc.,417 U.S., at 112, 94 S.Ct., at 2177; Halcyon Lines v. HaennShip Ceiling & Refitting Corp., 342 U.S., at 285-286, 72S.Ct., at 279-280. Once Congress has relied uponconditions that the courts have created, we are not as free aswe would otherwise be to change them. A change in theconditions would effectively alter the statute by causing it toreach different results than Congress envisioned. Indeed,Congress might have intended to adopt the existingmaritime rule even for third-party actions under the Act thatare not within the admiralty jurisdiction, though we need notand do not reach that issue today.
Accordingly, we reverse the judgment below and remand forproceedings consistent with this opinion.
It is so ordered.
114 S.Ct. 1461
McDERMOTT, INC.v.
AmCLYDENo. 92-1479
Argued Jan. 11, 1994Decided April 20, 1994
STEVENS, J., delivered the opinion for a unanimous Court.
A construction accident in the Gulf of Mexico gave rise to
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this admiralty case. In advance of trial, petitioner, theplaintiff, settled with three of the defendants for $1 million. Respondents, however, did not settle, and the case went totrial. A jury assessed petitioner's loss at $2.1 million andallocated 32% of the damages to respondent AmClyde and38% to respondent River Don Castings, Ltd. (River Don). The question presented is whether the liability of thenonsettling defendants should be calculated with referenceto the jury's allocation of proportionate responsibility, or bygiving the nonsettling defendants a credit for the dollaramount of the settlement. We hold that the proportionateapproach is the correct one.
IPetitioner McDermott, Inc., purchased a specially designed,5,000-ton crane from AmClyde. When petitioner first usedthe crane in an attempt to move an oil and gas productionplatform--the "Snapper deck"--from a barge to a structuralsteel base affixed to the floor of the Gulf of Mexico, a prongof the crane's main hook broke, causing massive damage tothe deck and to the crane itself. The malfunction may havebeen caused by petitioner's negligent operation of the crane,by AmClyde's faulty design or construction, by a defect inthe hook supplied by River Don, or by one or more of thethree companies (the "sling defendants") that supplied thesupporting steel slings.
Invoking the federal court's jurisdiction under 28 U.S.C. §§1332 and 1333(1), petitioner brought suit against AmClydeand River Don and the three sling defendants. Thecomplaint sought a recovery for both deck damages andcrane damages. On the eve of trial, petitioner entered intoa settlement with the sling defendants. In exchange for $1million, petitioner agreed to dismiss with prejudice itsclaims against the sling defendants, to release them from allliability for either deck or crane damages, and to indemnifythem against any contribution action. The trial judge laterruled that petitioner's claim for crane damages was barred byEast River S.S. Corp. v. Transamerica Delaval Inc., 476U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).
In its opening statement at trial, petitioner McDermott"accepted responsibility for any part the slings played incausing the damage." McDermott, Inc. v. Clyde Iron, 979 F.2d 1068, 1070 (CA5 1993). The jury found that the totaldamages to the deck amounted to $2.1 million and, inanswer to special interrogatories, allocated responsibilityamong the respective parties: 32% to AmClyde, 38% toRiver Don, and 30% jointly to McDermott and the slingdefendants. The court denied a motion by respondents toreduce the judgment pro tanto by the $1 million settlement,and entered judgment against AmClyde for $672,000 (32%of $2.1 million) and against River Don for $798,000 (38%of $2.1 million). Even though the sum of those judgmentsplus the settlement proceeds exceeded the total damagesfound by the jury, the District Court concluded thatpetitioner had not received a double recovery because the
settlement had covered both crane damages and deckdamages.
The Court of Appeals held that a contractual provisionprecluded any recovery against AmClyde and that the trialjudge had improperly denied a pro tanto settlement credit.It reversed the judgment against AmClyde entirely andreduced the judgment against River Don to $470,000. Itarrived at that figure by making two calculations. First, itdetermined that petitioner's "full damage[s] award is $1.47million ($2.1 million jury verdict less 30% attributed toMcDermott/sling defendants)." 979 F.2d, at 1081. Next, itdeducted the "$1 million received in settlement to reach$470,000." Ibid. It treated this figure as the maximum thatcould be recovered from the nonsettling defendants.Because it was less than River Don's liability as found bythe jury (38% of $2.1 million or $798,000), it directed theentry of judgment against River Don in that amount. Ibid.
Because we have not previously considered how asettlement with less than all of the defendants in anadmiralty case should affect the liability of nonsettlingdefendants, and because the Courts of Appeals have adopteddifferent approaches to this important question, we grantedcertiorari. 509 U.S. 921, 113 S.Ct. 3033, 125 L.Ed.2d 721(1993).
IIAlthough Congress has enacted significant legislation in thefield of admiralty law, none of those statutes provides uswith any "policy guidance" or imposes any limit on ourauthority to fashion the rule that will best answer thequestion presented by this case. See Miles v. Apex MarineCorp., 498 U.S. 19, 27, 111 S.Ct. 317, 322-323, 112L.Ed.2d 275 (1990). We are, nevertheless, in familiar watersbecause "the Judiciary has traditionally taken the lead informulating flexible and fair remedies in the law maritime." United States v. Reliable Transfer Co., 421 U.S. 397, 409,95 S.Ct. 1708, 1714, 44 L.Ed.2d 251 (1975).
In the Reliable Transfer case we decided to abandon a rulethat had been followed for over a century in assessingdamages when both parties to a collision are at fault. Wereplaced the divided damages rule, which required an equaldivision of property damage whatever the relative degree offault may have been, with a rule requiring that damages beassessed on the basis of proportionate fault when such anallocation can reasonably be made. Although the old ruleavoided the difficulty of determining comparative degreesof negligence, we concluded that it was "unnecessarilycrude and inequitable" and that "[p]otential problems ofproof in some cases hardly require adherence to an archaicand unfair rule in all cases." Id., at 407, 95 S.Ct., at 1714.Thus the interest in certainty and simplicity served by theold rule was outweighed by the interest in fairness promotedby the proportionate fault rule.
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Our decision in Reliable Transfer was supported by aconsensus among the world's maritime nations and theviews of respected scholars and judges. See id., at 403-405,95 S.Ct., at 1711-1713. No comparable consensus hasdeveloped with respect to the issue in the case before ustoday. It is generally agreed that when a plaintiff settleswith one of several joint tortfeasors, the nonsettlingdefendants are entitled to a credit for that settlement. Thereis, however, a divergence among respected scholars andjudges about how that credit should be determined. Indeed,the American Law Institute (ALI) has identified threeprincipal alternatives and, after noting that "[e]ach has itsdrawbacks and no one is satisfactory," decided not to take aposition on the issue. Restatement (Second) of Torts §886A, pp. 343-344 (1977). The ALI describes the threealternatives as follows:
"(1) The money paid extinguishes any claim that theinjured party has against the party released and theamount of his remaining claim against the other tortfeasoris reached by crediting the amount received; but thetransaction does not affect a claim for contribution byanother tortfeasor who has paid more than his equitableshare of the obligation." Id., at 343. "(2) The money paid extinguishes both any claims on thepart of the injured party and any claim for contribution byanother tortfeasor who has paid more than his equitableshare of the obligation and seeks contribution." Ibid. (Asin alternative (1), the amount of the injured party's claimagainst the other tortfeasors is calculated by subtractingthe amount of the settlement from the plaintiff's damages.) "(3) The money paid extinguishes any claim that theinjured party has against the released tortfeasor and alsodiminishes the claim that the injured party has against theother tortfeasors by the amount of the equitable share ofthe obligation of the released tortfeasor." Id., at 344.
The first two alternatives involve the kind of "pro tanto"credit that respondents urge us to adopt. The differencebetween the two versions of the pro tanto approach is therecognition of a right of contribution against a settlingdefendant in the first but not the second. The thirdalternative, supported by petitioner, involves a credit for thesettling defendants' "proportionate share" of responsibilityfor the total obligation. Under this approach, no suits forcontribution from the settling defendants are permitted, norare they necessary, because the nonsettling defendants payno more than their share of the judgment.
The proportionate share approach would make River Donresponsible for precisely its share of the damages, $798,000(38% of $2.1 million). A simple application of the pro tantoapproach would allocate River Don $1.1 million in damages($2.1 million total damages minus the $1 millionsettlement). The Court of Appeals, however, made adifferent calculation. Because McDermott "acceptedresponsibility for any part the sling played in causing the
damage," 979 F.2d, at 1070, the Court of Appeals treated the30% of liability apportioned to "McDermott/slingdefendants" as if that 30% had been caused solely byMcDermott's own negligence. Id., at 1081.The Court ofAppeals, therefore, gave River Don a double credit, firstreducing the total loss by the McDermott/sling defendants'proportionate share and then applying the full pro tantoreduction to that amount. This double credit resulted in anaward of only $470,000 ($2.1 million minus 30% of $2.1million minus $1 million).
IIIIn choosing among the ALI's three alternatives, threeconsiderations are paramount: consistency with theproportionate fault approach of United States v. ReliableTransfer, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251(1975), promotion of settlement, and judicial economy. ALIOption 1, pro tanto setoff with right of contribution againstthe settling defendant, is clearly inferior to the other two,because it discourages settlement and leads to unnecessaryancillary litigation. It discourages settlement, becausesettlement can only disadvantage the settling defendant. Ifa defendant makes a favorable settlement, in which it paysless than the amount a court later determines is its share ofliability, the other defendant (or defendants) can sue thesettling defendant for contribution. The settling defendantthereby loses the benefit of its favorable settlement. Inaddition, the claim for contribution burdens the courts withadditional litigation. The plaintiff can mitigate the adverseeffect on settlement by promising to indemnify the settlingdefendant against contribution, as McDermott did here. This indemnity, while removing the disincentive tosettlement, adds yet another potential burden on the courts,an indemnity action between the settling defendant andplaintiff.
The choice between ALI Options 2 and 3, between the protanto rule without contribution against the settling tortfeasorand the proportionate share approach, is less clear. Theproportionate share rule is more consistent with ReliableTransfer, because a litigating defendant ordinarily pays onlyits proportionate share of the judgment. Under the protanto approach, however, a litigating defendant's liabilitywill frequently differ from its equitable share, because asettlement with one defendant for less than its equitableshare requires the nonsettling defendant to pay more than itsshare. Such deviations from the equitable apportionment ofdamages will be common, because settlements seldomreflect an entirely accurate prediction of the outcome of atrial. Moreover, the settlement figure is likely to besignificantly less than the settling defendant's equitableshare of the loss, because settlement reflects the uncertaintyof trial and provides the plaintiff with a "war chest" withwhich to finance the litigation against the remainingdefendants. Courts and legislatures have recognized thispotential for unfairness and have required "good-faithhearings" as a remedy. When such hearings are required, the
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settling defendant is protected against contribution actionsonly if it shows that the settlement is a fair forecast of itsequitable share of the judgment. Nevertheless, good-faithhearings cannot fully remove the potential for inequitableallocation of liability. First, to serve their protectivefunction effectively, such hearings would have to beminitrials on the merits, but in practice they are often quitecursory. More fundamentally, even if the judge at agood-faith hearing were able to make a perfect forecast ofthe allocation of liability at trial, there might still besubstantial unfairness when the plaintiff's success at trial isuncertain. In sum, the pro tanto approach, even whensupplemented with good-faith hearings, is likely to lead toinequitable apportionments of liability, contrary to ReliableTransfer.
The effect of the two rules on settlements is moreambiguous. Sometimes the pro tanto approach will betterpromote settlement. This beneficial effect, however, is aconsequence of the inequity discussed above. The ruleencourages settlements by giving the defendant that settlesfirst an opportunity to pay less than its fair share of thedamages, thereby threatening the nonsettling defendant withthe prospect of paying more than its fair share of the loss. By disadvantaging the party that spurns settlement offers,the pro tanto rule puts pressure on all defendants to settle.While public policy wisely encourages settlements, suchadditional pressure to settle is unnecessary. The parties'desire to avoid litigation costs, to reduce uncertainty, and tomaintain ongoing commercial relationships is sufficient toensure nontrial dispositions in the vast majority of cases.Under the proportionate share approach, such factors shouldensure a similarly high settlement rate. The additionalincentive to settlement provided by the pro tanto rule comesat too high a price in unfairness. Furthermore, anyconclusion that the pro tanto rule generally encourages moresettlements requires many simplifying assumptions, such aslow litigation costs. Recognition of the reality that a host ofpractical considerations may be more significant than starkhypotheticals persuades us that the pro tanto rule has noclear advantage in promoting settlements.
The effect of the two rules on judicial economy is alsoambiguous. The pro tanto rule, if adopted without therequirement of a good-faith hearing, would be easier toadminister, because the relative fault of the settlingdefendant would not have to be adjudicated either at apreliminary hearing or at trial. Nevertheless, because of thelarge potential for unfairness, no party or amicus in this suitadvocates the pro tanto rule untamed by good-faithhearings. Once the pro tanto rule is coupled with agood-faith hearing, however, it is difficult to determinewhether the pro tanto or proportionate share approach bestpromotes judicial economy. Under either approach, therelative fault of the parties will have to be determined. Under the pro tanto approach, the settling defendant's shareof responsibility will have to be ascertained at a separate,
pretrial hearing. Under the proportionate share approach,the allocation will take place at trial. The pro tanto approachwill, therefore, save judicial time only if the good-faithhearing is quicker than the allocation of fault at trial. Giventhe cursory nature of most good-faith hearings, this maywell be true. On the other hand, there is reason to believethat reserving the apportionment of liability for trial maysave more time. First, the remaining defendant (ordefendants) may settle before trial, thus making anydetermination of relative culpability unnecessary. Inaddition, the apportionment of damages required by theproportionate share rule may require little or no additionaltrial time. The parties will often need to describe the settlingdefendant's role in order to provide context for the dispute. Furthermore, a defendant will often argue the "empty chair"in the hope of convincing the jury that the settling party wasexclusively responsible for the damage. The pro tanto rulethus has no clear advantage with respect to judicialeconomy.
In sum, although the arguments for the two approaches areclosely matched, we are persuaded that the proportionateshare approach is superior, especially in its consistency withReliable Transfer.
IVRespondents advance two additional arguments against theproportionate share approach: that it violates the "onesatisfaction rule" and that it is inconsistent with Edmonds v.Compagnie Generale Transatlantique, 443 U.S. 256, 99S.Ct. 2753, 61 L.Ed.2d 521 (1979).
In the 19th and early 20th centuries, the "one satisfactionrule" barred a plaintiff from litigating against one jointtortfeasor, if he had settled with and released another. Thisversion of the one satisfaction rule has been thoroughlyrepudiated. Respondents do not ask that the one satisfactionrule be applied with its original strictness, but rather in themilder form in which some courts still invoke it to reduce aplaintiff's recovery against a nonsettling defendant in orderto ensure that the plaintiff does not secure more thannecessary to compensate him for his loss. As a preliminarymatter, it is far from clear that there was any danger ofsuper-compensatory damages here. First, there is thequestion of the crane damages, which were not covered bythe judgment against River Don. In addition, even limitingconsideration to deck damages, the jury fixed plaintiff'slosses at $2.1 million. Plaintiff received $1 million insettlement from the sling defendants. Under theproportionate share approach, plaintiff would receive anadditional $798,000 from River Don. In total, plaintiffwould recover only $1.798 million, over $300,000 less thanits damages. The one satisfaction rule comes into play onlyif one assumes that the percent share of liability apportionedto McDermott and the sling defendants really representedMcDermott's contributory fault, and that it would beovercompensatory for McDermott to receive more than the
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percentage of the total loss allocated to the defendants, here$1.47 million (70% of $2.1 million).
Even if the Court of Appeals were correct in finding that theproportionate share approach would overcompensateMcDermott, we would not apply the one satisfaction rule.The law contains no rigid rule against overcompensation.Several doctrines, such as the collateral benefits rule,recognize that making tortfeasors pay for the damage theycause can be more important than preventingovercompensation. In this case, any excess recovery isentirely attributable to the fact that the sling defendants mayhave made an unwise settlement. It seems probable that inmost cases in which there is a partial settlement, the plaintiffis more apt to accept less than the proportionate share thatthe jury might later assess against the settling defendant,because of the uncertainty of recovery at the time ofsettlement negotiations and because the first settlementnormally improves the plaintiff's litigating posture againstthe nonsettlors. In such cases, the entire burden of applyinga proportionate share rule would rest on the plaintiff, and theinterest in avoiding overcompensation would be absent.More fundamentally, we must recognize that settlementsfrequently result in the plaintiff's getting more than he wouldhave been entitled to at trial. Because settlement amountsare based on rough estimates of liability, anticipated savingsin litigation costs, and a host of other factors, they willrarely match exactly the amounts a trier of fact would haveset. It seems to us that a plaintiff's good fortune in strikinga favorable bargain with one defendant gives otherdefendants no claim to pay less than their proportionateshare of the total loss. In fact, one of the virtues of theproportionate share rule is that, unlike the pro tanto rule, itdoes not make a litigating defendant's liability dependent onthe amount of a settlement negotiated by others withoutregard to its interests.
Respondents also argue that the proportionate share rule isinconsistent with Edmonds v. Compagnie GeneraleTransatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d521 (1979). In that case, we refused to reduce the judgmentagainst a shipowner by the proportionate fault attributed toa stevedore whose liability was limited by theLongshoremen's and Harbor Workers' Compensation Act.Instead, the Court allowed the plaintiff to collect from theshipowner the entirety of his damages, after adjusting for theplaintiff's own negligence. There is no inconsistencybetween that result and the rule announced in this opinion. Edmonds was primarily a statutory construction case andrelated to special interpretive questions posed by the 1972amendments to the Longshoremen's and Harbor Workers'Compensation Act. Both parties acknowledge that this casemust be resolved by judge-made rules of law. Moreover,Edmonds did not address the issue in this case, the effect ofa settlement on nonsettling defendants. Indeed, there wasno settlement in that case. Instead, one can read that opinionas merely reaffirming the well-established principle of joint
and several liability. As the Court pointed out, that principlewas in no way abrogated by Reliable Transfer 'sproportionate fault approach. Edmonds, 443 U.S., at271-272, n. 30, 99 S.Ct., at 2762-2763, n. 30. In addition, asthe Commissioners on Uniform State Laws have noted,there is no tension between joint and several liability and aproportionate share approach to settlements. Joint andseveral liability applies when there has been a judgmentagainst multiple defendants. It can result in one defendant'spaying more than its apportioned share of liability when theplaintiff's recovery from other defendants is limited byfactors beyond the plaintiff's control, such as a defendant'sinsolvency. When the limitations on the plaintiff's recoveryarise from outside forces, joint and several liability makesthe other defendants, rather than an innocent plaintiff,responsible for the shortfall. Ibid. Unlike the rule inEdmonds, the proportionate share rule announced in thisopinion applies when there has been a settlement. In suchcases, the plaintiff's recovery against the settling defendanthas been limited not by outside forces, but by its ownagreement to settle. There is no reason to allocate anyshortfall to the other defendants, who were not parties to thesettlement. Just as the other defendants are not entitled toa reduction in liability when the plaintiff negotiates agenerous settlement, see supra, at 1470-1471, so they arenot required to shoulder disproportionate liability when theplaintiff negotiates a meager one.
VThe judgment of the Court of Appeals is reversed, and thecase is remanded for further proceedings consistent withthis opinion.
It is so ordered.
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28 U.S.C. § 1961. Interest
(a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution thereformay be levied by the marshal, in any case where, by the law of the State in which such court is held, execution maybe levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from thedate of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield,as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding. [FN1]the date of the judgment. The Director of the Administrative Office of the United States Courts shall distributenotice of that rate and any changes in it to all Federal judges.
(b) Interest shall be computed daily to the date of payment except as provided in section 2516(b) of this title andsection 1304(b) of title 31, and shall be compounded annually.
(c)(1) This section shall not apply in any judgment of any court with respect to any internal revenue tax case.Interest shall be allowed in such cases at the underpayment rate or overpayment rate (whichever is appropriate)established under section 6621 of the Internal Revenue Code of 1986.
(2) Except as otherwise provided in paragraph (1) of this subsection, interest shall be allowed on all finaljudgments against the United States in the United States Court of Appeals for the Federal circuit, [FN2] at the rateprovided in subsection (a) and as provided in subsection (b).
(3) Interest shall be allowed, computed, and paid on judgments of the United States Court of Federal Claims onlyas provided in paragraph (1) of this subsection or in any other provision of law.
(4) This section shall not be construed to affect the interest on any judgment of any court not specified in thissection.
[FN1] So in original. The period probably should not appear.
[FN2] So in original. Probably should be "Circuit".
IX. PROCEDURAL QUESTIONS
A. Federal vs. State Court: “Saving to Suitors”; Rule 9(h)
28 USC § 1333. Admiralty, maritime and prize cases
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 whichthey are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
B. Jury Trial: F.R.C.P. Rule 9(h)
(h) Admiralty and Maritime Claims. A pleading or count setting forth a claim for relief within theadmiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some otherground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes
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of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If theclaim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whetherso identified or not. The amendment of a pleading to add or withdraw an identifying statement isgoverned by the principles of Rule 15. A case that includes an admiralty or maritime claim within thissubdivision is an admiralty case within 28 U.S.C. § 1292(a)(3).
83 S.Ct. 1646
FITZGERALDv.
UNITED STATES LINES COMPANYNo. 463
Argued April 18, 1963Decided June 10, 1963
Mr. Justice BLACK delivered the opinion of the Court.Mr. Justice HARLAN dissented; this opinion omitted.
Andres San Martin, a seaman, brought this action in theDistrict Court for the Southern District of New Yorkagainst the respondent United States Lines Company. Hiscomplaint alleged that he had twisted and strained his backwhile working for respondent on its ship. He claimed$75,000 damages based on the negligence of respondentand on the unseaworthiness of the ship and $10,000 basedon respondent's failure to provide him with medicalattention, maintenance and cure, and wages as required bylaw. Martin's negligence claim invoked a remedy createdby Congress in s 33 of the Jones Act, 46 U.S.C. s 688,which explicitly provides that a seaman can have a jurytrial as of right; but the actions for unseaworthiness and formaintenance and cure are traditional admiralty remedieswhich in the absence of a statute do not ordinarily requiretrial by jury. The complainant here did demand a jury,however, for all the issues growing out of the singleaccident. The trial judge granted a jury trial for the JonesAct and the unseaworthiness issues but held the questionof recovery under maintenance and cure in abeyance to tryhimself after jury trial of the other two issues. The juryreturned a verdict for United States Lines on thenegligence and unseaworthiness issues; the court then,after hearing testimony in addition to that presented to thejury, awarded Martin $224 for maintenance and cure. Sitting en banc, the Court of Appeals for the SecondCircuit affirmed, four judges stating that it would beimproper to submit a maintenance and cure claim to thejury, two believing it to be permissible but not required,and three maintaining that a seaman is entitled, as of right,to a jury trial of a maintenance and cure claim joined witha Jones Act claim. 2 Cir., 306 F.2d 461. The lower courtsare at odds on this issue. We granted certiorari to decide it.371 U.S. 932, 83 S.Ct. 307, 9 L.Ed.2d 269.
For years it has been a common, although not uniform,
practice of District Courts to grant jury trials to plaintiffswho join in one complaint their Jones Act,unseaworthiness, and maintenance and cure claims whenall the claims, as here, grow out of a single transaction oraccident. This practice of requiring issues arising out of asingle accident to be tried by a single tribunal is by nomeans surprising. Although remedies for negligence,unseaworthiness, and maintenance and cure have differentorigins and may on occasion call for application of slightlydifferent principles and procedures, they nevertheless,when based on one unitary set of circumstances, serve thesame purpose of indemnifying a seaman for damagescaused by injury, depend in large part upon the sameevidence, and involve some identical elements ofrecovery. Requiring a seaman to split up his lawsuit,submitting part of it to a jury and part to a judge, undulycomplicates and confuses a trial, creates difficulties inapplying doctrines of res judicata and collateral estoppel,and can easily result in too much or too little recovery. Theproblems are particularly acute in determining the amountof damages. For example, all lost earnings and medicalexpenses are recoverable on a negligence count, but underthe Jones Act they are subject to reduction by the jury ifthe seaman has been contributorily negligent. These sameitems are recoverable in part on the maintenance and curecount, but the damages are measured by differentstandards and are not subject to reduction for anycontributory negligence. It is extremely difficult for ajudge in trying a maintenance and cure claim to ascertain,even with the use of special interrogatories, exactly whatwent into the damages awarded by a jury--how loss ofearning power was calculated, how much was allowed formedical expenses and pain and suffering, how much wasallowed for actual lost wages, and how much, if any, eachof the recoveries was reduced by contributory negligence. This raises needless problems of two has the burden ofproving exactly what the jury did. And even if the judgecan find out what elements of damage the jury's verdictactually represented, he must still try to solve the puzzlingproblem of the bearing the jury's verdict should have onrecovery under the different standards of the maintenanceand cure claim. In the absence of some statutory orconstitutional obstacle, an end should be put to such anunfortunate, outdated, and wasteful manner of trying thesecases. Fortunately, there is no such obstacle.
While this Court has held that the Seventh Amendmentdoes not require jury trials in admiralty cases, neither thatAmendment nor any other provision of the Constitution
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forbids them. Nor does any statute of Congress or Rule ofProcedure, Civil or Admiralty, forbid jury trials inmaritime cases. Article III of the Constitution vested inthe federal courts jurisdiction over admiralty and maritimecases, and, since that time, the Congress has largely left tothis Court the responsibility for fashioning the controllingrules of admiralty law. This Court has long recognized itspower and responsibility in this area and has exercised thatpower where necessary to do so. Where, as here, aparticular mode of trial being used by many judges is socumbersome, confusing, and time consuming that it placescompletely unnecessary obstacles in the paths of litigantsseeking justice in our courts, we should not and do nothesitate to take action to correct the situation. Only onetrier of fact should be used for the trial of what isessentially one lawsuit to settle one claim splitconceptually into separate parts because of historicaldevelopments. And since Congress in the Jones Act hasdeclared that the negligence part of the claim shall be triedby a jury, we would not be free, even if we wished, torequire submission of all the claims to the judge alone.Therefore, the jury, a time-honored institution in ourjurisprudence, is the only tribunal competent under thepresent congressional enactment to try all the claims.Accordingly, we hold that a maintenance and cure claimjoined with a Jones Act claim must be submitted to thejury when both arise out of one set of facts. The seamanin this case was therefore entitled to a jury trial as of righton his maintenance and cure claim.
Judgment against the seaman on the Jones Act claim wasaffirmed by the Court of Appeals, and we declined toreview it on certiorari. The shipowner points out that onremand the maintenance and cure claim would no longerbe joined with a Jones Act claim and therefore, he argues,could be tried by a judge without a jury. We cannot agree. Our holding is that it was error to deprive the seaman ofthe jury trial he demanded, and he is entitled to relief fromthis error by having the kind of trial he would have had inthe absence of error.
Reversed.
C. Statute of Limitations
2015 WL 235240 (M.D. La. 2015)
Bourgeoisv.
Weber Marine, LLC
January 16, 2015
deGRAVELLES, Judge
*1 This matter comes before the Court on the Motion forSummary Judgment Filed by All Defendants (R.Doc. 13)submitted by Weber Marine, LLC (“Weber”) and itsinsurer State National Insurance Company, Inc. (“StateNational”) (collectively, “Defendants”). The motion isopposed. (R.Doc. 18).
In sum, relying on Louisiana law, Defendants argue thatPlaintiffs' claims have prescribed because Plaintiffs filedsuit in an improper venue and because the Petition was notserved on Defendants until roughly one week after the
statute of limitations ran, all allegedly in violation of La.Civ.Code art. 3462. Per the Court's November 26, 2014,Notice to Counsel (R.Doc. 29), the parties submittedadditional briefing as to the extent to which this case iscontrolled by Maxwell v. Swain, 833 F.2d 1177 (5thCir.1987), which applied general maritime law to a similarprescription issue. The parties submitted said briefs. (SeeR.Docs. 32–35). Oral argument was heard on January 15,2015.
The central issue in this case is whether the Plaintiffs'claims are prescribed if they filed suit within the three yearstatute of limitations of 46 U.S.C. § 30106 (formerly 46U.S.C. § 763a) in a parish of improper venue butaccomplished service of process nearly one week after theend of the prescriptive period. The answer depends onwhether this issue is controlled by general maritime law orLouisiana law. Phrased another way, does maritime law,not Louisiana law, govern not only the length of thelimitations period but also the circumstances under whichthat period is, or is not, tolled or suspended, and, therefore,
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was this suit timely commenced? The Court holds thatmaritime law controls the issue, that Maxwell controls,and therefore the Plaintiff's claims have not prescribed.Accordingly, the Defendants' motion for summaryjudgment is DENIED.
I. Factual and Procedural Background
On April 23, 2014, Plaintiffs Curtis Bourgeois and IdaBourgeois filed suit in Ascension Parish. (R.Doc. 1–2, p.1). Plaintiffs allege that, on or about April 11, 2011,Plaintiff Curtis Bourgeois was employed as a seaman forDefendant Weber Marine as a crew member of a barge.(R.Doc. 1–2, p. 2). Plaintiffs claim that, while acting in thecourse and scope of employment, Curtis Bourgeoisreceived serious injuries when he fell climbing a ropeladder. (R.Doc. 1–2, p. 3). Plaintiffs claim that the ladderwas defective, that it was not properly secured, and that itshifted when a load being moved by a crane hit the side ofthe barge where he was working, causing his fall. (Id.).
Plaintiffs asserted several theories of recovery. First,Plaintiffs claimed that Defendants are liable under GeneralMaritime Law and the Jones Act, 46 U.S.C. § 30104(formerly 46 U.S.C. § 688).(Id.). Alternatively, Plaintiffsclaim that, if Curtis Bourgeois was not a seaman, then heis entitled to recover under the Longshore and HarborWorkers' Compensation Act, 33 U.S.C. § 901 et seq.Plaintiff Ida Bourgeois claims mental anguish damagesand loss of love and society. (R.Doc. 1–2, p. 5).
*2 On May 16, 2014, Defendants filed a notice of removalto this District (R.Doc. 1) and then filed an AmendedNotice of Removal a few days later (R.Doc. 2). Plaintiffmoved to remand on the grounds that the Defendant failedto allege the basis of jurisdiction and failed to removewithin the deadline established by 28 U.S.C. § 1446(b).(See. R.Doc. 3). Defendants opposed (R.Doc. 6), arguingthat they removed thirty days from service and that, perHarrold v. Liberty Insurance Underwriters, Inc., No.13–762, 13–831, 2014 WL 688984 (M.D.La. Feb. 20,2014), the Defendants could remove under 28 U.S.C. §1333 and 28 U.S.C. § 1441(a) without anotherindependent basis for jurisdiction.
The Magistrate issued a brief report and recommendation(R.Doc. 8) denying the motion to remand. This Courtadopted the report and recommendation on July 18, 2014.(R.Doc. 12).
On August 8, 2014, Defendants filed their Motion forSummary Judgment. (R.Doc. 13). Defendants argue that,Ascension Parish, where the Plaintiffs filed suit, is thewrong venue. (R.Doc. 13–1, p. 3). Citing La.Code Civ.Pro. arts. 42 and 74, Defendants argue that venue wasproper in St. James Parish because that is Weber'sdomicile, because the accident occurred there, and because
Curtis Bourgeois sustained damages there. (R.Doc. 13–1,p. 3–6).
Defendants then argue that, because the Plaintiffs filed thelitigation in the improper venue and failed to serve Weberwithin the three year statute of limitations period formaritime torts, the claim is prescribed. Defendants rely onseveral cases, such as Moore v. Kmart Corp., 884 F.Supp.217 (E.D.La.1995) and Mullen v. Sears, Roebuck, & Co.,887 F.2d 615 (5th Cir.1989), for the proposition thatfederal courts look to state law to determine when aprescriptive period is interrupted. (R.Doc. 13–1, p. 7–8).Thus, according to Defendants, La. Civ.Code art. 3462governs, which provides that, if an action is commencedin an improper venue, prescription is interrupted only as toa defendant served by process within the prescriptiveperiod. Thus, Defendants argue that summary judgment isappropriate.
Plaintiffs oppose the motion. (R.Doc. 18). They argue thatcertain evidence, particularly some provided to them bythe Defendants, shows that the accident took place inBurnside, Louisiana, which is located in Ascension Parish.(R.Doc. 18, p. 2). They complain that Defendants misledthem in correspondence to Plaintiffs and that Plaintiffswere reasonable to rely on Defendants' own documents.Plaintiffs also assert a number of procedural arguments,objecting to the fact that, had Defendants excepted tovenue in state court, then Plaintiffs would have had theopportunity to transfer the suit to the appropriate venue.(R.Doc. 18, p. 6). Further, Defendants removed the suit tothe Middle District rather than the Eastern District. (Id.).
In their Reply (R.Doc. 19), Defendants argue that there isno issue of fact that the accident occurred in St. JamesParish. (Id., p. 2–4). They further claim that Plaintiffsshould have inquired into the facts. (Id., p. 4). Further,Defendants argue that they always objected to venue andthat the subsequent removal of a case from an improperstate court venue to a proper federal one will not resurrecta suit that has prescribed under Article 3462. Further,Defendants argue that a transfer would be meaningless.
*3 On November 26, 2014, the Court reset the previouslyscheduled oral argument and requested additional briefingon whether Maxwell v. Swain, 833 F.2d 1177 (5thCir.1987) controlled the question before the Court.Plaintiff submitted a brief arguing that this suit is factuallyanalogous to Maxwell and highlighted the extensivecommunication between counsel for Plaintiffs andDefendants in this matter before filing suit. (See R.Doc.32).
Defendants contend that Maxwell is inapplicable. (R.Doc.33). First they claim that the Fifth Circuit requires theapplication of state procedural laws in matters removedfrom state courts. Defendants rely on Mullen and Luckett
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v. Delta Airlines, Inc., 171 F.3d 295, 299 (5th Cir.1999).(Id., p. 3–4).
Further, Defendants argue that general maritime lawclaims filed in state court utilize state procedural laws. Insupport of this proposition, Defendants cite Dozier v.Ingram Barge Co., 961370 (La.App. 4 Cir. 1/28/98), 706So.2d 1064, 1066; Mejia v. Lineas Maritimas De SantoDomingo, 570 So.2d 548 (La.App. 4th Cir.1990); andMcKean v. Skipper Hydraulic, Inc., 592 So.2d 433(La.App. 5th Cir.1991). (Id., p. 4–6). Finally, Defendantsclaim that Maxwell does not apply to matters removedfrom state court because the suit in Maxwell was initiallyfiled in federal court.
All parties filed replies. (See R.Docs. 34 and 35). Plaintiffsattempt to distinguish Defendants' cases as eitherinvolving diversity or being removed before venue andprescription were raised in the state court. Defendantslargely reiterate their positions.
II. Analysis
This is a case of admiralty and maritime jurisdictionwithin the meaning of Art. III, Section 2 of the UnitedStates Constitution and 28 U.S.C. § 1333. (Petition forDamages, R.Doc. 1–2, ¶ 1). As such, under § 1333's“saving to suitors” clause, the case may be brought in stateor federal court. Victory Carriers, Inc. v. Law, 404 U.S.202, 204, 92 S.Ct. 418, 420–421, 30 L.Ed.2d 383 (1971).What is “saved” to the suitor in § 1333 is not only the rightto bring a maritime case in a non-maritime court (statecourt or federal court at law, assuming an alternative basisfor federal jurisdiction), but the right of the litigants totake advantage of the procedural differences between afederal court “in admiralty” and that of the non-maritimecourt. See 1 Robert Force and Martin J. Norris, The Lawof Maritime Personal Injuries, § 1:6 (5th ed.2013); 1Thomas J. Schoenbaum, Admiralty and Maritime Law §§4–4, 21–1 (5th ed.2014). However, regardless of the courtin which the case is brought, maritime substantive law isapplicable. East River S.S. Corp. v. Transamerica Delaval,476 U.S. 858, 864, 106 S.Ct. 2295, 2298–2299, 90L.Ed.2d 865 (1986); Victory Carriers, 404 U.S. at 204, 92S.Ct. at 420–421; Kermarec v. Compagnie GeneraleTransatlantique, 358 U.S. 625, 628, 79 S.Ct. 406,408–409, 3 L.Ed.2d 550 (1959).
Defendant concedes that the three year statute oflimitations for maritime torts, 46 U.S.C. § 30106 appliesto this case. (R.Doc. 13–1, p. 6–7). This statute providesthat “[e]xcept as otherwise provided by law, a civil actionfor damages for personal injury ... arising out of amaritime tort must be brought within 3 years after thecause of action arose.”(Emphasis added). Defendantargues, however, that because plaintiff originally filed thiscase in Louisiana state court, Louisiana law provides the
rule as to what tolls the statute of limitations. Because,under Louisiana law, a suit filed in an improper venuewithin the limitation period but served beyond it, does nottoll the limitation period,3 Defendant argues plaintiff's suitis not timely and must be dismissed.
*4 Plaintiff counters that the suit was filed in a court ofproper venue and so, under Louisiana law, was timelyfiled. (R.Doc. 18, p. 2). He alleges in the alternative, evenif not timely filed, he was misled by defendant as to thelocation of the accident and therefore defendant should beestopped on equitable grounds from urging or succeedingon this defense. (Id., p. 3, 6).
The Court finds that it is unnecessary to determinewhether the suit was filed in a court of proper venue orwhether the plaintiff was misled. Maritime law, notLouisiana law, governs the central issue here and, undermaritime law, the suit was filed timely regardless of thevenue.
In Burnett v. New York Central Railroad Co., 380 U.S.424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), the Courtconsidered a case similar to this one. There, plaintiff fileda suit in Ohio state court to recover for personal injuriesunder the Federal Employers' Liability Act (FELA), 45U.S.C. § 51 et seq. The state court suit was filed within theFELA's three year statute of limitations but was dismissedunder Ohio law for having been filed in an impropervenue. Plaintiff then filed suit in Ohio federal court but, bythat time, the three year FELA statute of limitations hadrun. The District Court dismissed the case as not timely,and the Court of Appeals affirmed. Id., 380 U.S. at 425, 85S.Ct. at 1053.
The Supreme Court reversed, rejecting the defendant'sargument that state law controlled, holding that plaintiff'sstate court action, despite having been filed in an impropervenue under state law, nonetheless tolled the FELA statueof limitations; therefore the subsequent federal court suitwas timely filed.“There is no doubt that, as a matter offederal law, the state action here involved, was properly‘commenced’ within the meaning of the federal statute...”Id., 380 U.S. at 426, 85 S.Ct. at 1053. “Theincorporation of variant state saving statutes would defeatthe aim of a federal limitation provision designed toproduce national uniformity.”Id., 380 U.S. at 433, 85 S.Ct.at 1057. “We believe that the interests of uniformityembodied in the Act are best served by holding that thisrule, tolling the statute, applies in all States regardless ofwhether a state has a ‘saving’ statute.”Id., 380 U.S. at 435,85 S.Ct. at 1058.
The Louisiana Supreme Court has also held that federalmaritime, rather than state law, governs whether thelimitation period in a maritime tort action has been tolledand whether the suit has been timely filed, even when the
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suit was commenced and remained in state court. InPrejean v. Industrial Cleanup, Inc., 98–0948 (La.12/1/98),721 So.2d 1273, plaintiff filed a maritime personal injurysuit in state court four years after the accident occurred.Plaintiff argued that defendant's voluntary payment ofLouisiana worker's compensation benefits interruptedprescription pursuant to La. Civ.Code art. 3464. The Courtdescribed this argument as having a “misplaced relianceon principles of Louisiana law ...”Id. at 1277.
*5 Following the principles set forth in Burnett [New YorkCent. R. Co., supra ], it is widely accepted that statestatutes which suspend, reduce, or extend the time forbringing suit have no application in considering whethera Jones Act suit is prescribed. (Citations omitted.)Likewise, where a general maritime tort is alleged, theeffect of lapse of time on the viability of the action isdetermined by maritime law because the right to bar anaction for lapse of time is a substantive right. (Citationomitted.)
Prejean, 721 So.2d at 1276.7
Other federal courts have likewise held that maritime law,and not Louisiana law, governs not only the length of thelimitation period but also the circumstances under whichthat period is, or is not, tolled or suspended. For instance,it has been held that the Louisiana rule that makes thetimely filing of suit against one solidary obligor interruptprescription against all other solidary obligors cannot beused to extend the federal maritime limitations period.Logwood v. Apollo Marine Specialists, Inc., 772 F.Supp.925, 927 (E.D.La.1991). Similarly, Davis v. NewparkShipbuilding and Repair, Inc., 659 F.Supp. 155, 156–157(E.D.Tex.1987), held that the three year statute oflimitations for general maritime torts is not interrupted byLouisiana's rule that a judgment against one solidaryobligor tolls prescription against all other solidaryobligors.
The Fifth Circuit has also held that maritime law, and notthat of Louisiana, governs whether a suit is timelycommenced. In Maxwell v. Swain, 833 F.2d 1177 (5thCir.1987), plaintiff sued under the Jones Act in bothfederal court in Texas and state court in Louisiana. Theformer was dismissed for lack of prosecution, and theLouisiana state court suit was dismissed for impropervenue. When plaintiff then filed in federal court inLouisiana, the District Court, applying Louisiana's rule,found that the state court suit, because it was filed in animproper venue, did not toll the maritime limitation statuteand was therefore untimely.
The Fifth Circuit reversed and, applying maritimeprinciples, stated, “whether service was effected ‘within areasonable time’ must be determined on a case-by-casebasis.”The court found that plaintiff had “made every
effort to locate and serve” the defendant with process andthe defendant “had notice of the suit well within thestatutory period although he was not served within thatperiod.”833 F.2d at 1179. Here, defendant Weber Marineadmits that it was served “nearly one week after thePetition for Damages was filed.”(R.Doc. 13–1, p. 2).Evidence submitted in opposition to the Motion forSummary Judgment, indicates that the Defendants wereaware of the claim well within the three year period. (SeeR.Doc. 32–1, p. 1–24). This Court finds therefore that thesuit was timely commenced and that the Motion forSummary Judgment should be denied.
Defendant argues that Burnett and Maxwell aredistinguishable for two reasons: first, because, in bothcases, the suit was brought under the Jones Act and not thegeneral maritime law and second, the suits in Burnett andMaxwell were dismissed in state court and re-filed infederal court whereas here, the case was removed tofederal court.
*6 As to the first argument, the Court notes that Plaintiffdid sue under the Jones Act and there has been no findingregarding Plaintiff's status as a seaman. But even ifPlaintiff is not entitled to sue under the Jones Act, theCourt finds that this is a distinction without a meaningfuldifference. The FELA (and Jones Act) statute oflimitations, 45 U.S.C. § 56, and 46 U.S.C. § 30106, areessentially identical, stating that the action must be“commenced” or “brought” within the three year period.The Supreme Court in Burnett specifically found that thestate court suit had been properly “commenced” althoughit was filed in an improper venue. 380 U.S. at 426, 85S.Ct. at 1053. Furthermore, because the principle ofuniformity that drove the Burnett decision applies withequal force to a general maritime action, other courts havecorrectly held that Burnett applies in general maritimecases. See, e.g., Prejean, 721 So.2d at 1276 (citing 1Martin J. Norris, The Law of Maritime Personal Injuries§ 5:10 (4th ed.1990)); Davis, 659 F.Supp. at 156–157;People of the Living God v. Star Towing Co., 289 F.Supp.635, 639 (E.D.La.1968) (holding that Burnett and itsjustification of uniformity “is equally applicable toadmiralty actions.”).
Defendant's second argument for distinction is alsowithout merit. Defendants cite three cases in support of itsargument that this Court is required to follow theLouisiana rule. See Taylor v. Bailey Tool Mfg. Co., 744F.3d 944, 946 (5th Cir.2014); Mullen, 887 F.2d at 617–18;Luckett, 171 F.3d at 299. Taylor, 744 F.3d at 945, was acase brought under federal law, specifically Title VII ofthe Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.and 42 U.S.C. § 1981. Mullen, 887 F.2d at 616, andLuckett, 171 F.3d at 298, were diversity cases, notmaritime cases where all courts, state or federal, arerequired to follow maritime substantive law. Thomas J.
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Schoenbaum, Admiralty and Maritime Law, § 4–1 (5thed.2014) (citing Chelentis v. Luckenbach S.S. Co., 247U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918)). As hasbeen made clear, rules affecting the maritime statute oflimitations are considered substantive. Prejean, 721 So.2dat 1276 (citing 1 Martin J. Norris, The Law of MaritimePersonal Injuries, § 5:10 (4th ed.1990)); See also Mendezv. Ishikawajima–Harima Heavy Industries Co., Ltd., 52F.3d 799, 801, 1995 A.M.C. 1233 (9th Cir.1995) (“theright to bar an action for lapse of time is a substantiveright.”).
In support of its position that this Court is bound to followLouisiana law, Defendants cite Dozier v. Ingram BargeCompany, 96–1370 (La.App. 4 Cir. 1/28/98), 706 So.2d1064 and McKean v. Skipper Hydraulic, Inc., 592 So.2d433 (La.App. 5 Cir.1991). The Court has carefullyconsidered these cases and concludes that they fly in theface of the Supreme Court, Fifth Circuit and other federalprecedent discussed above as well as fundamentalprinciples of maritime law. In short, the Court feels thesecases were wrongly decided.
*7 In Dozier, the Louisiana Fourth Circuit affirmed thetrial court and held that a Jones Act suit was prescribedbecause the original suit was filed in a court of impropervenue and was not served within the prescriptive period.Relying on two cases— Mejia v. Lineas Maritimas DeSanto Domingo, 570 So.2d 548 (La.App. 4 Cir.1990) andMcKean—the Dozier court held that Louisiana procedurallaw applied in a state court case filed under the “savings tosuitor” clause. Id. at 1066. Then, citing no case law, theDozier court concluded that “Clearly, procedural statutes,including those governing interruption and suspension ofprescription, are procedural rather than substantive, innature.”Id.
As the well-reasoned dissent in Dozier explains, theproblem with Dozier (and McKean ) is the complete lackof authority for its underlying assumptions. As statedabove, Dozier relies on Mejia and McKean.While Dozieris correct that Mejia applied Louisiana procedural law ina maritime case to find a claim prescribed, the dissent inDozier is also correct that there is no discussion in Mejiaabout whether laws related to statute of limitations are apart of substantive maritime law. In short, Mejia neveraddresses the central issue in Dozier.
McKean is equally weak authority. McKean applied La.Civ.Code art. 3462 to bar a seaman's personal injury claimwhen the defendant was not served within the three yearstatute of limitations for maritime torts. In doing so,McKean held that “Louisiana procedural law applie[d] in[a] state court maritime tort action interpreting federalsubstantive law.”Id. at 434. For this proposition, McKeanrelied upon St. Louis Southwestern Ry. Co. v. Dickerson,470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985) and
Morris v. Transworld Drilling Co., 365 So.2d 46 (La.App.3rd Cir.1978).
But St. Louis held that “FELA cases adjudicated in statecourts are subject to state procedural rules, but thesubstantive law governing them is federal.”470 U.S. at411, 105 S.Ct. at 1348. St. Louis reached this decision inthe context of whether jury instructions were procedural orsubstantive in nature. St. Louis never addressed whetherstatute of limitation rules were procedural or substantivein nature.
Similarly, in Morris, the “sole issue ... [was] the proprietyof prejudgment interest on an award in a Jones Act claimbrought in a state court.”365 So.2d at 46. Again, the issuewas not whether statute of limitation rules are proceduralor substantive in nature.
Thus, while Dozier and McKean ultimately stand for theproposition that state procedural rules apply for statute oflimitation issues, neither case cites any real authority forthat proposition, aside from each other. Accordingly,because these cases are not binding, are unpersuasive, andare distinguishable, the Court will disregard them in favorof Burnett, Prejean, and the other cases discussed above.
*8 Finally, as mentioned above, yet another reasoncompels the application of maritime law, and that is theneed for uniformity in general maritime law. As Prejeanexplained:
Where Congress has manifested an intent to establish auniform period of limitations for maritime claims, it woulddefeat the uniformity intended to allow the diverse laws ofeach state to determine when the limitation period on afederal cause of action commences to run and when theperiod is tolled, interrupted, or suspended.
721 So.2d at 1276. Similarly, People of the Living God v.Star Towing Co., 289 F.Supp. 635 (E.D.La.1968), rejecteda party's contention that a Louisiana statute tolled thefederal statute of limitation period found in 46 U.S.C. §730 (now 46 U.S.C. § 80107(c)) related to salvageassistance claims and explained:
In [Burnett ], an action brought under the [FELA], theSupreme Court indicated that the mechanical applicationof state ‘saving statutes' to the federal statute of limitationswould frustrate the congressional policy of uniformityunderlying the federal statute. Thus, rather than applydiverse state statutes subjecting a litigant's rights arisingunder federal law to the vagaries of state law, the SupremeCourt opted in favor of national uniformity in fashioninga federal rule as to the tolling of the federal statute oflimitations. This reasoning is equally applicable to
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admiralty actions.
Id. at 639 (italics added) (citations omitted).
Courts from other jurisdictions have relied on thisuniformity principle to reject the application of a state lawrelated to the statute of limitations. In Butler v. AmericanTrawler Co., Inc., 887 F.2d 20 (1st Cir.1989), theappellate court affirmed the dismissal of a claim barred bythe statute of limitations. Plaintiff argued that Maine'ssix-year statute of limitations should apply rather than themaritime three-year bar because statute of limitations are“procedural” rather than “substantive.” In affirming theapplication of maritime law, the First Circuit explained:
We need not discuss the legal lore surrounding the words“procedural” and “substantive,” however, for the SupremeCourt has made clear that a maritime tort is “a type ofaction which the Constitution has placed under nationalpower to control in ‘its substantive as well as itsprocedural features.’”Pope & Talbot, Inc. v. Hawn, 346U.S. 406, 409, 74 S.Ct. 202, 205, 98 L.Ed. 143 (1953)(quoting Panama R.R. Co. v. Johnson, 264 U.S. 375, 386,44 S.Ct. 391, 393, 68 L.Ed. 748 (1924)) (emphasis added).Thus, the relevant question is not whether the federallimitations statute, 46 U.S.C.App. § 763a, is “substantive”or “procedural,” but whether Congress intended thatstatute to preclude the operation of different statelimitations statutes in respect to maritime torts. We believethat it did.
Id. at 21. The First Circuit went on to explain how “thelanguage and the legislative history” of the three-yearmaritime statute of limitations “suggests that Congressenacted it to deal with the problem of non-uniformity, aproblem that arose because courts, applying the federaldoctrine of laches, would ‘use [differing] local limitationstatutes as a rule-of-thumb.’”Butler, 887 F.2d at 22(Citations omitted).
*9 Numerous courts have applied Butler to reject theapplication of a state statute of limitations because of theneed for uniformity in federal maritime law. E.g., Mink v.Genmar Industries, Inc., 29 F.3d 1543 (11th Cir.1994);Konrad v. South Carolina Elec. and Gas Co., 308 S.C.167, 170–171, 417 S.E.2d 557, 559 (S.C.1992); See JohnD. Sear, The Uniform Statute of Limitations for MaritimeTorts: It Tolls For No One, at n. 18 (March 26, 2008),http://corporate.findlaw.com/law-library/the-uniform-statute-of-limitations-for-maritime-torts-it-tolls.html# 28.Thus, under both Louisiana law and the laws of otherstates, uniformity compels the application of generalmaritime law here.
III. Conclusion
Accordingly, whether directly because of the holdings in
Burnett, Prejean, Logwood, Davis, and Maxwell, whetherbecause issues related to statute of limitations are mattersof substantive maritime law, or whether because of theneed for uniformity in federal maritime law, the Courtfinds that general maritime law, not Louisiana law,governs not only the length of the limitations period butalso the circumstances under which that period is, or isnot, tolled or suspended. Thus, under general maritimelaw, the Plaintiffs' claims have not prescribed, and theDefendants' motion for summary judgment is DENIED.
46 App. U.S.C. § 763a
§ 763a. Limitations
Unless otherwise specified by law, a suit for recovery ofdamages for personal injury or death, or both, arising outof a maritime tort, shall not be maintained unlesscommenced within three years from the date the cause ofaction accrued.
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The Deepwater Horizon Rig Disaster: Issues of Personal Injury and Death
John W. deGravelles* J. Neale deGravelles†
I. INTRODUCTION............................................................................. 199 II. FACTS ........................................................................................... 200 III. JURISDICTION ............................................................................... 202 IV. APPLICABLE LAW......................................................................... 205
A. Status of the Workers .......................................................... 206 B. Seaman Status ..................................................................... 207 C. Seamen’s Rights and Remedies—Injury ............................ 209 D. Seamen’s Survivors’ Rights and Remedies—Death .......... 210 E. LHWCA Maritime Workers—Coverage ............................ 212 F. Injured LHWCA Maritime Workers—Tort Rights
and Remedies ...................................................................... 212 G. Death of LHWCA Maritime Workers—Remedies ............. 215 H. Other Workers—Injury and Death .................................... 215 I. Punitive Damages ............................................................... 215
V. DISCUSSION .................................................................................. 224
I. INTRODUCTION
On April 20, 2010, the mobile offshore drilling unit (MODU) Deepwater Horizon exploded and caught fire in the Gulf of Mexico. Eleven (11) workers were killed and seventeen (17) were injured. Three days later the rig sank, and millions of gallons of oil escaped into the Gulf of Mexico until the well was finally capped on July 15, 2010.
© 2011 John W. deGravelles and J. Neale deGravelles. * John W. deGravelles is a partner in the firm of deGravelles, Palmintier, Holthaus, & Frugé, L.L.P., in Baton Rouge, Louisiana. He is a member of the adjunct faculty at LSU Law School, Paul M. Hebert Law Center, and has taught maritime personal injury at Tulane University Law School’s Summer Session in Rhodes, Greece, since 1993. † J. Neale deGravelles is a partner in the firm of deGravelles, Palmintier, Holthaus & Frugé, L.L.P. Both authors represent the family of Gordon Lewis Jones in pending litigation arising out of the sinking of the Deepwater Horizon.
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Numerous lawsuits followed seeking compensation for the personal injuries and deaths as well as for property, business, and natural resource damages caused by the explosions, fire, and spill. These cases have been consolidated in the United States District Court for the Eastern District of Louisiana by order of the United States Judicial Panel on Multidistrict Litigation.1 This disaster and the resulting litigation has brought national attention to the complex substantive and procedural issues that arise from such maritime accidents. It has also showcased the disparities in the remedies among classes of personal injury and wrongful death plaintiffs. While the litigation also involves claims for property damage, business loss, and damage to natural resources, this Article will analyze the issues strictly as they relate to the claims for personal injury and death.2 It will provide a broad overview of the rights and remedies of the injury and death plaintiffs and highlight the differences between the different plaintiff groups.
II. FACTS
As of the time of publication of this Article, there have been several official investigations, some of which are still ongoing. These investigations include those that have been or are being conducted by the BOEM/USCG Marine Board of Investigation,3 Congress,4 the Bureau of Ocean Energy Management, the Regulation and Enforcement Joint Investigation,5 and the President’s National
1. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352, 1356, 2010 AMC 1977, 1981-82 (J.P.M.L. 2010). 2. Oil Pollution Act (OPA) of 1990, 33 U.S.C. § 2701 (2006), establishes strict liability of the responsible party for cleanup of oil pollution and certain damages caused by the pollution. OPA does not provide recovery for personal injury or death. See, e.g., Gabarick v. Laurin Mar. (Am.) Inc., 623 F. Supp. 2d 741, 2009 AMC 1014 (E.D. La. 2009). 3. See DEEPWATER HORIZON JOINT INVESTIGATION, http://www.deepwaterinvesti gation.com/go/doctype/3043/56779/ (last visited Feb. 16, 2011). 4. See, e.g., Inquiry into the Deepwater Horizon Gulf Coast Oil Spill, U.S. House of Representatives, Subcommittee on Oversight & Investigations, Committee on Energy and Commerce (May 12, 2010), http://democrats.energycommerce.house.gov/Press_111/20100 512/transcript.05.12.2010.oi.pdf. 5. See, e.g., Deepwater Horizon Response, BUREAU OF OCEAN ENERGY MGMT., REGULATION AND ENFORCEMENT, http://www.boemre.gov/DeepwaterHorizon.htm (last updated Dec. 13, 2010, 12:16 PM).
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Commission.6 Formal discovery in the litigation is just beginning.7 The following brief summary of the facts is based primarily on the recently released internal investigation of British Petroleum Exploration & Production, Inc. (BP).8 The Deepwater Horizon was a fifth-generation, dynamically positioned semi-submersible drilling unit designed for the drilling of deepwater wells.9 It was owned and/or operated by Transocean Offshore Deepwater Drilling, Inc.10 The Deepwater Horizon had been hired by BP to finish drilling a well in the Gulf of Mexico some forty-eight miles from the Louisiana coast, known as the Macondo Well.11 On April 9, 2010, the well was drilled to its final depth of 18,360 feet.12 Although the well was found to be commercially viable, a decision was made to temporarily abandon it and complete it as a production well in the future.13
6. See, e.g., NAT’L COMM’N ON BP DEEPWATER HORIZON OIL SPILL & OFFSHORE
DRILLING, DEEP WATER: THE GULF OIL DISASTER AND THE FUTURE OF OFFSHORE DRILLING—REPORT TO THE PRESIDENT (Jan. 2011), https://s3.amazonaws.com/pdf_final/DEEPWATER_ ReporttothePresident_FINAL.pdf. It is of note that the Commission’s ultimate conclusions included the following findings: “The explosive loss of the Macondo well could have been prevented,” and “[t]he immediate causes of the Macondo well blowout can be traced to a series of identifiable mistakes made by BP, Halliburton, and Transocean that reveal such systematic failures in risk management that they place in doubt the safety culture of the entire industry.” Id. at vii. 7. See In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352, 1355-56, 2010 AMC 1977, 1982 (J.P.M.L. 2010) (ordering cases to be centralized and transferred to the United States District Court for the Eastern District of Louisiana). 8. See BP, DEEPWATER HORIZON ACCIDENT INVESTIGATION REPORT (2010), available at http://www.bp.com/sectiongenericarticle.do?categoryId=9034902&contentId=7064891 (follow the “Download the full investigation report” hyperlink). 9. Id. at 32. 10. In the limitation of liability complaint filed by Trident Asset Leasing GmbH and others, the following entities were alleged to be the “Owner, Managing Owners, Owners Pro Hac Vice, and/or Operators of the MODU DEEPWATER HORIZON”: Triton Asset Leasing GmbH, Transocean Holdings LLC, Transocean Offshore Deepwater Drilling, Inc. and Transocean Deepwater, Inc. See In re Complaint and Petition of Triton Asset Leasing GmbH, 719 F. Supp. 2d 753, 755 (S.D. Tex. 2010). 11. See DEEPWATER HORIZON ACCIDENT INVESTIGATION REPORT, supra note 8, at 9, 15. The drilling was begun by another Transocean semi-submersible, the MODU Marianas, but was replaced by the Deepwater Horizon when the Marianas was damaged in Hurricane Ida. Id. at 17. 12. See id. at 17. 13. See id. at 32.
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By April 20, 2010, the final string of casing had been run into the well and a cement barrier placed to protect the well bore from intrusion of high pressure hydrocarbons; in other words, to protect it from a “blow-out.”14 Tests had been performed to confirm the integrity of the well and other steps were taken to prepare for the well’s temporary abandonment.15 Only a handful of additional steps remained before the well operation would be suspended and the temporary abandonment would be complete.16 “The rig crew was preparing for the final activities associated with temporary well abandonment when the accident occurred.”17 The BP internal investigation identified eight key contributing factors to the accident. These included “weaknesses in [the] design, testing, [and] quality assurance” of the cement barrier, an “incorrect view” taken by the Transocean rig crew and BP well site leaders that a key safety test had confirmed well integrity, and further, the failure of a key piece of safety equipment, the well’s “blow-out preventer,” which failed and did not seal the well.18 These and other failures allowed hydrocarbons to escape into the well bore annulus and to the rig floor, where they ignited. The ensuing fire lasted for thirty-six hours until the Deepwater Horizon sank.19
III. JURISDICTION
Admiralty jurisdiction exists in a tort case when (1) the tort occurs20 on navigable waters,21 (2) the type of incident causing the harm
14. See id. at 33. 15. See id. 16. See id. 17. See id. at 18. 18. See id. at 10-11. 19. See id. at 9. 20. A tort “occurs” when fault, causation and damages “come together.” FRANK L. MARAIST & THOMAS C. GALLIGAN, JR., PERSONAL INJURY IN ADMIRALTY § 4-1(a) (2000). This has usually been held to be where the damage was sustained. See Taylor v. Kennedy Engine, Inc., 861 F.2d 127, 128-29 (5th Cir. 1988); Solet v. CNG Producing Co., 908 F. Supp. 375, 377, 1995 AMC 2700, 2702 (E.D. La. 1995). In this case, the bodies of the eleven missing were never recovered and were ultimately declared presumed dead. See DEEPWATER HORIZON ACCIDENT INVESTIGATION REPORT, supra note 8, at 9-12. The deaths would necessarily have occurred on the Deepwater Horizon or in the waters of the Gulf of Mexico. Id. 21. A body of water is navigable if it is capable of carrying interstate or international commerce. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 2000 AMC 2106, 2109 (1870). The Gulf of Mexico is clearly a navigable body of water.
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is potentially disruptive of maritime commerce, and (3) the general character of the activity giving rise to the accident bears a substantial relationship to traditional maritime activity.22 A tort that occurs on a vessel on navigable waters meets the first, or “locality,” prong of the test.23 Therefore, an important issue in deciding whether there is admiralty jurisdiction is whether the Deepwater Horizon was a vessel. The Deepwater Horizon was a semi-submersible mobile drilling unit and, as such, should be considered a vessel.24 Its owners and operators have declared it to be so in the Complaint and Petition for Exoneration or Limitation of Liability.25 It clearly meets the broad definition of a vessel given by the United States Supreme Court: “any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.”26 Semi-submersible drilling units and other kinds of mobile offshore drilling rigs have been held to be “vessels.”27 At the time of the accident, the Deepwater Horizon was drilling and therefore connected by drill pipe to the ocean floor, thus raising
22. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 1995 AMC 913, 918 (1995); Sisson v. Ruby, 497 U.S. 358, 364-65, 1990 AMC 1801, 1806-07 (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 n.5, 1982 AMC 2253, 2259 n.5 (1982). 23. Minnie v. Port Huron Terminal Co., 295 U.S. 647, 648, 1935 AMC 879, 880 (1935); see also Sisson, 497 U.S. at 368-75, 1990 AMC at 1809-15 (Scalia, J., concurring) (arguing that all vessel-related torts fall within the admiralty jurisdiction). 24. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 731 F. Supp. 2d 1352, 1353, 2010 AMC 1977, 1978 (J.P.M.L. 2010); In re Complaint and Petition of Triton Asset Leasing GmbH, 719 F. Supp. 2d 753, 756 (S.D. Tex. 2010). 25. In re Complaint and Petition of Triton Asset Leasing GmbH, 719 F. Supp. 2d at 753, 755 (S.D. Tex. 2010). 26. Stewart v. Dutra Constr. Co., 543 U.S. 481, 497, 2005 AMC 609, 620 (2005). In Stewart, the Court relied primarily on the statutory definition of a “vessel” as “every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” Id. at 489, 2005 AMC at 614 (quoting 1 U.S.C. § 3 (1873)). 27. See, e.g., Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1214 n.5 (5th Cir. 1986) (stating that a semi-submersible drilling unit is “indisputably a vessel”); Johnson v. Transocean Offshore USA, Inc., No. 08-0357, 2009 WL 2366523, at *1-2 (W.D. La. July 31, 2009); see also Offshore Co. v. Robison, 266 F.2d 769, 780, 1959 AMC 2049, 2063 (5th Cir. 1959) (holding a movable drilling rig a vessel, even when drilling, perhaps the earliest example of an oil rig constituting a vessel); John W. deGravelles, Stewart v. Dutra Construction Co.—From the Seaman’s Perspective, 3 BENEDICT’S MAR. BULL. 116 (2005); David W. Robertson, Completing the Definition of a Jones Act Seaman: Stewart v. Dutra Construction Co., 3 BENEDICT’S MAR. BULL. 103 (2005).
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possible coverage under the Outer Continental Shelf Lands Act.28 Does this affect the issue of its vessel status or the question of admiralty jurisdiction? It is clear that the mere fact that the Deepwater Horizon was not literally in motion at the time of the accident is of no consequence to its status as a vessel.29 A vessel loses its status as such only if it is “not ‘capable of being used’ for maritime transport in any meaningful sense,” that is, “if it has been permanently moored or otherwise rendered practically incapable of transportation or movement.”30 In the case of mobile drilling rigs like submersibles, semi-submersibles, jack-ups, and spud barges, their purpose and design is to make them “practically capable” of returning to transporting men and equipment when a drilling job is completed. Thus a movable drilling rig, even when connected to the ocean floor, “qualifies as a vessel on navigable waters.”31 Because the explosions, injuries, and deaths occurred aboard a vessel on navigable waters, the next inquiry is whether the type of incident involved (an explosion and fire aboard a vessel on navigable waters) was potentially disruptive of maritime commerce.32 In Sisson v. Ruby, a dryer fire on a vessel docked at a marina was found to be potentially disruptive of maritime commerce even though the vessel was not engaged in maritime commerce and no showing of an actual disruption of commerce was made.33 In the case of the Deepwater Horizon, the explosions, fire, and the ultimate sinking of the vessel was
28. 43 U.S.C. §§ 1351-1356(a) (2006). The jurisprudence wrestling with the jurisdictional reach of OCSLA has been described as “infamously chaotic.” David W. Robertson, The Outer Continental Shelf Lands Act’s Provisions on Jurisdiction, Remedies, and Choice of Law: Correcting the Fifth Circuit’s Mistakes, 38 J. MAR. L. & COM. 487, 489 (2007). 29. Stewart, 543 U.S. at 494-95, 2005 AMC at 617-19. 30. Id. at 493-94, 2005 AMC at 617 (emphasis added). 31. Strong v. B.P. Exploration & Prod., Inc., 440 F.3d 665, 669, 2006 AMC 599, 602-03 (5th Cir. 2006) (citing Demette v. Falcon Drilling Co., 280 F.3d 492, 498 n.18, 2002 AMC 686, 692 n.18 (5th Cir. 2002)); see also deGravelles, supra note 27, at 116. 32. In determining whether the “type” of incident was potentially disruptive of maritime commerce, the Court counseled that the incident should be viewed at “an intermediate level of possible generality.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 538, 1995 AMC 913, 922 (1995). One writer has wryly noted that the discretion given to the courts in determining the correct “level of generality” makes the test essentially meaningless. Thomas C. Galligan Jr., Of Incidents, Activities, and Maritime Jurisdiction: A Jurisprudential Exegesis, 56 LA. L. REV. 519, 527-28 (1996). 33. 497 U.S. 358, 363, 1990 AMC 1801, 1805 (1990).
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actually, not merely potentially, disruptive of maritime commerce and thus this second prong of the test is easily met.34 The final prong of the test is whether the kind of activity giving rise to the incident (also considered at the appropriate level of generality) bore a substantial relationship to traditional maritime activity.35 Even without regard to the use of the vessel to retrieve natural resources from beneath the ocean floor,36 it has been held that “[p]roviding compensation for shipboard injuries is a traditional function of the admiralty laws.”37 All three parts of the test are satisfied, and maritime jurisdiction exists.
IV. APPLICABLE LAW
“With admiralty jurisdiction comes the application of substantive admiralty law.”38 However, which specific maritime rule applies to a given case can vary widely depending upon a number of factors including, most prominently, the status of the plaintiff, whether the plaintiff was injured or killed, and where the accident causing death took place. Additionally, there are circumstances in which state law may be
34. Id. at 362-63, 1990 AMC at 1804-05; see also Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119, 1996 AMC 1, 6-7 (5th Cir. 1995) (finding that a worker’s injuries aboard a vessel “can have a disruptive impact on maritime commerce by stalling or delaying the primary activity of the vessel”). 35. Grubart, 513 U.S. at 539-40, 1995 AMC at 922-23. 36. In Grubart, a pile-driving barge damaged a tunnel under the Chicago River, resulting in flood damage to buildings in downtown Chicago. The Court described the activity as “repair or maintenance work on a navigable waterway performed from a vessel.” Id. at 540, 1995 AMC at 923; see also Theriot v. Bay Drilling Corp., 783 F.2d 527, 538-39 (5th Cir. 1986) (“Oil and gas drilling on navigable waters aboard a vessel is recognized to be maritime commerce.”). 37. Coats, 61 F.3d at 1119, 1996 AMC at 6-7; see also Strong v. B.P. Exploration & Prod., Inc., 440 F.3d 665, 669-70, 2006 AMC 599, 602-04 (5th Cir. 2006) (holding that suit alleging injury from the failure of the defendant to maintain adequately a vessel’s gear, equipment, tools, and work space states a traditional maritime tort claim). 38. E. River S.S. Corp. v. Transamerica Deleval, Inc., 476 U.S. 858, 864, 1986 AMC 2027, 2031 (1986); see Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 381-83 (1918); S. Pac. Co. v. Jensen, 244 U.S. 205, 216-17, 1996 AMC 2076, 2083-86 (1917). While there is considerable confusion and error as to when state law should be applied via OCSLA, it is clear that where OCSLA and maritime jurisdiction overlap, maritime substantive law will be applied to the exclusion of state law via OCSLA. See Robertson, supra note 28, at 513; see also cases cited infra note 120.
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applied by a maritime court vested with admiralty jurisdiction through what has sometimes been called the “maritime but local doctrine.”39 This Article will attempt to sort out the remedies available to the potential injury and death claimants in the Deepwater Horizon case. It will discuss some of the anomalies and inequities present in this area of maritime law.
A. Status of the Workers
The plaintiff’s status in a maritime injury or death case is critical in determining the rights and remedies available to him. Workers laboring side by side doing similar or even identical work can have radically different rights depending upon how each is classified. Because of the dramatic difference in available remedies, there has been much litigation regarding and refining the status of maritime plaintiffs.40 At the time of the explosions, there were 126 people aboard the Deepwater Horizon.41 BP had eight employees aboard the vessel including a Vice President of Drilling and Completions, a “company man” and various engineers. Transocean had seventy-nine employees who were various crew members of the drilling rig. The remaining eighty-seven persons were employed by various contractors, including cement consultants, mud engineers, caterers, and others.42 Generally speaking, these workers would either be seamen or maritime workers under the Longshore and Harbor Workers Compensation Act (LHWCA). There is a chance that some workers on board might not fit neatly into either category and the rights and remedies of these other workers will also be considered.
39. Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 314-17, 1955 AMC 467, 471-74 (1955); W. Fuel Co. v. Garcia, 257 U.S. 233, 242-43 (1921); see also David W. Robertson, The Applicability of State Law in Maritime Cases After Yamaha Motor Corp. v. Calhoun, 21 TUL. MAR. L.J. 81, 85 (1996). Determining when it is appropriate to apply state law in a maritime case has been called “one of the most perplexing issues in the law.” 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 4-2 (4th ed. 2005). Another maritime scholar has called it “the Devil’s own mess.” David P. Currie, Federalism and the Admiralty: “The Devil’s Own Mess,” 1960 SUP. CT. REV. 158, 158. 40. MARAIST & GALLIGAN, supra note 20, § 5-1. 41. See BP Personnel on Board List (on file with authors); Ramon Antonio Vargas, Seven Reported Critically Injured, 11 Missing in Oil Rig Explosion South of Venice, NOLA.COM (Apr. 21, 2010), http://www.nola.com/news/index.ssf/2010/04/at_least_8_injured_ in_oil_rig.html. 42. See BP Personnel on Board List, supra note 41.
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B. Seaman Status
After remaining silent for thirty-three years,43 the Supreme Court, starting in 1991, rendered five decisions that have brought relative clarity to the issue of seaman status.44 A seaman is a worker who has a substantial employment connection to a vessel or identifiable fleet of vessels, substantial both in terms of nature and duration and whose job contributes to the function or mission of the vessel.45 While the vessel need not be in actual navigation at the time of the accident, it must not have been removed from navigation in such a way or for such a length of time that its capacity to return to use as a vessel is only a “theoretical” and not a “practical” possibility.46 A worker may be a seaman by working on different vessels as long as these vessels constitute an “identifiable fleet,” that is, vessels which are “under common ownership or control.”47 Among the 126 workers aboard the Deepwater Horizon at the time of the accident, certain workers clearly meet the test for seaman status. Those Transocean employees assigned to serve as regular members of the vessel’s crew included workers with traditional seaman roles such as Master, Mate, and Able Bodied Seaman.48 Transocean also employed the drill crew including toolpushers, drillers, derrick hands, and floor hands.49 These and all other Transocean employees whose
43. This silence began at the end of a series of cases decided from 1955 through 1958 ending with Butler v. Whiteman, 356 U.S. 271, 271, 1959 AMC 2566, 2566 (1958) (per curiam); see also Jack L. Allbritton, Seaman Status in Wilander’s Wake, 68 TUL. L. REV. 373, 373 (1994). 44. Stewart v. Dutra Constr. Co., 543 U.S. 481, 487-89, 2005 AMC 609, 612-15 (2005); Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 555, 1997 AMC 1817, 1821 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 368-73, 1995 AMC 1840, 1856-60 (1995); Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 91-92, 1992 AMC 305, 312-13 (1991); McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355, 1991 AMC 913, 926 (1991). 45. See cases cited supra note 44. 46. Stewart, 543 U.S. at 493-94, 2005 AMC at 616-18. 47. Papai, 520 U.S. at 556, 1997 AMC at 1822 (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 366, 1995 AMC 1840, 1854 (1995)); see also John W. deGravelles, Harbor Tug & Barge Co. v. Papai: Another Turn in the Labyrinth?, 10 U.S.F. MAR. L.J. 209, 216-19 (1998); cf. Wisner v. Prof’l Divers of New Orleans, 98-C-1755, p. 6 (La. 3/2/99); 731 So. 2d 200, 205, 1999 AMC 1189, 1194-95 (recognizing an exception to the identifiable fleet require-ment when the employee’s work is “inherently maritime”). 48. See BP Personnel on Board List, supra note 41. 49. Id.
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jobs contributed broadly to the function of the vessel are clearly seamen.50 But one need not be the employee of the vessel owner to be a seaman and member of the crew of that vessel.51 Thus if there were workers employed by companies other than Transocean who had a substantial employment connection to the Deepwater Horizon or to Transocean’s fleet of vessels, then they would also be considered seamen and entitled to seamen’s remedies. The substantial connection requirement may be met in two alternative ways. If the assignment or reassignment to seaman’s work is “permanent,” then the actual length of time working on the vessel before the accident is irrelevant.52 On the other hand, if the employee’s work time is “mixed,” that is, the worker’s time is divided between land and vessel work, then as a “rule of thumb,” the worker will not be considered a seaman if less than thirty percent of his time is spent working aboard vessels in navigation.53 If more than thirty percent of his time is spent working on vessels, the issue of his status as a seaman becomes a jury question.54 Thus depending on the particular facts of each case, those not employed by the vessel owner but who were employed as contractors aboard the Deepwater Horizon, may also be seamen, including, for
50. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355, 1991 AMC 913, 926 (1991); see also Offshore Co. v. Robison, 266 F.2d 769, 771-72, 779-80, 1959 AMC 2049, 2051-52, 2063-64 (5th Cir. 1959); Simmons v. Transocean Offshore Deepwater Drilling, Inc., 551 F. Supp. 2d 471, 473, 475-76 (E.D. La. 2008); McCarty v. Serv. Contracting, Inc., 317 F. Supp. 629, 630-32, 1971 AMC 90, 90-93 (E.D. La. 1970). 51. See, e.g., Mahramas v. Am. Exp. Isbrandtsen Lines, Inc., 475 F.2d 165, 170, 1973 AMC 587, 592 (2d Cir. 1973) (finding hairdresser hired by independent contractor to work aboard cruise ship to be a seaman). 52. Chandris, 515 U.S. at 372, 1995 AMC at 1849. 53. Id. at 371, 1995 AMC at 1858; Becker v. Tidewater, Inc., 335 F.3d 376, 388-89, 2003 AMC 1653, 1663 (5th Cir. 2003). 54. Chandris, 515 U.S. at 371, 1995 AMC at 1858.
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example, BP’s engineers,55 employees of the catering company,56 and the mud engineers.57
C. Seamen’s Rights and Remedies—Injury
Seamen enjoy a “trilogy of heightened legal protections (unavailable to other maritime workers) . . . because of their exposure to the ‘perils of the sea.’”58 These protections include the seaman’s right to maintenance and cure,59 the seaman’s right to sue for the unseaworthiness of the vessel,60 and the right to sue his employer for negligence under the Jones Act.61 Against third parties, the seaman, like any maritime plaintiff, has the right to sue for general maritime negligence and, in the case of a product manufacturer, under strict products liability.62 A successful seaman may recover the usual tort damages including past lost wages; future wage loss and loss of earning capacity;63 past and future medical expenses; and general damages including physical pain and suffering, mental anguish, and loss of enjoyment of life.64
55. See, e.g., Adams v. Bill Laurence, Inc., No. 97-1404, 1999 WL 14001, at *2-3 (E.D. La. Jan. 11, 1999) (wireline operators); Newman v. Superior Well Servs., Inc., No. 96-3456, 1997 WL 208920, at *4-5 (E.D. La. Apr. 28, 1997) (wireline operators). 56. See, e.g., Thompson v. Kerr-McGee Oil & Gas Corp., No. 98-2062, 1999 WL 102797, at *1-2 (E.D. La. Feb. 24, 1999); Bolfa v. Pool Offshore Co., 623 F. Supp. 1177, 1180-81 (W.D. La. 1985). 57. Fontenot v. Sw. Offshore Corp., No. 00-1722, p. 1 (La. App. 3 Cir. 6/6/01), 787 So. 2d 588, 590. 58. Chandris, 515 U.S. at 354, 1995 AMC at 1844. These remedies have also been described as “the seaman’s remedial trident.” Edward M. Bull III, Seaman Status Revisited: A Practical Guide to Status Determination, 6 U.S.F. MAR. L.J. 547, 552 (1994). 59. The Osceola, 189 U.S. 158, 175, 2000 AMC 1207, 1214-15 (1903). 60. Id. 61. 46 U.S.C. § 30104 (2006). 62. See, e.g., Warren v. Sabine Towing & Transp. Co., No. 01-0573-CA, p. 12 (La. App. 3 Cir. 10/30/02), 831 So. 2d 517, 528. 63. See, e.g., Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478-79, 1986 AMC 46, 49-51 (5th Cir. 1984). 64. See, e.g., Schwartz v. Neches-Gulf Marine, Inc., 67 F. Supp. 2d 698, 700-02 (S.D. Tex. 1999), rev’d on other grounds, Dunham v. Expro Ams., Inc., 423 F. Supp. 2d 664 (S.D. Tex. 2003) (rejecting defendant’s argument that the Miles v. Apex Marine bar on a seaman’s survivor’s nonpecuniary damages prevents an injured seaman from recovering damages for pain and suffering, mental anguish and loss of enjoyment of life).
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An injured seaman’s spouse and children may not recover damages for loss of society from the seaman’s employer.65 While some courts have held that a seaman’s family member may recover loss of society damages against a nonemployer third party,66 the United States Court of Appeals for the Fifth Circuit has specifically rejected this position.67
D. Seamen’s Survivors’ Rights and Remedies—Death
The Jones Act provides a death remedy for designated survivors68 of a seaman who is fatally injured while in the course and scope of his employment.69 It is the exclusive remedy of a seaman’s survivors against the employer for the employer’s negligence in causing the death.70 The place of the injury causing death is irrelevant.71 Recoverable damages are limited to pecuniary losses along with damages for the seaman’s conscious pain and suffering before death.72 Nonpecuniary losses such as loss of society cannot be recovered.73
65. Miles v. Apex Marine Corp., 498 U.S. 19, 32-33, 1991 AMC 1, 11 (1990); Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127, 128, 1992 AMC 2028, 2028-29 (5th Cir. 1992). 66. See, e.g., In re Denet Towing Serv., Inc., No. 98-1523, 1999 WL 329698, at *3 (E.D. La. May 21, 1999). See also Robert Force, The Legacy of Miles v. Apex Marine Corp., 30 TUL. MAR. L.J. 35 (2006), for a comprehensive collection of cases on the subject. 67. Scarborough v. Clemco Indus., 391 F.3d 660, 667-68, 2005 AMC 96, 103-06 (5th Cir. 2004). But see John W. deGravelles, Supreme Court Charts Course for Maritime Punitive Damages, 22 U.S.F. MAR. L.J. 123, 146-49 (2010) (arguing that in the recent case of Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), the Supreme Court fundamentally changed the Miles test governing statutory preemption of a general maritime remedy and hence undermined the holding in Scarborough). 68. The Jones Act death claim must be brought by the personal representative for the benefit of (1) surviving spouse and children and, if none, (2) parents and, if none, (3) dependent next of kin. 45 U.S.C. § 59 (2006). 69. 46 U.S.C. § 30104 extends to seamen the remedies provided to railway workers under the Federal Employers’ Liability Act, 45 U.S.C. § 51. 70. Ivy v. Sec. Barge Lines, Inc., 606 F.2d 524, 525, 1980 AMC 356, 358 (5th Cir. 1979). 71. See, e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 359, 1995 AMC 1840, 1848 (1995). 72. See, e.g., Snyder v. Whittaker Corp., 839 F.2d 1085, 1092-94, 1988 AMC 2534, 2542-46 (5th Cir. 1988); De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 142, 1987 AMC 2462, 2467-68 (5th Cir. 1986). 73. Miles v. Apex Marine Corp., 498 U.S 19, 31-32, 1991 AMC 1, 9-11 (1990); see also Neal v. Barisich, Inc., 707 F. Supp. 862, 870 (E.D. La. 1989).
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If the seaman’s death was caused by wrongful conduct occurring more than a marine league74 from the shore of any state, then a claim may also be brought under the Death on the High Seas Act (DOHSA).75 The underlying law of liability is the general maritime law, meaning unseaworthiness as to the vessel owner, negligence as to all others, and maritime products liability against the manufacturer of a defective product.76 Like the Jones Act, those entitled to recover include surviving spouse, children, parents, and dependent relatives but, unlike the Jones Act, these classes of potential beneficiaries are not preclusive, that is, the existence of one class does not preclude recovery of the following class.77 Damages under DOHSA are limited to pecuniary losses only.78 The personal representative of the deceased seaman may bring actions under both DOHSA and the Jones Act.79 By combining the two actions, the plaintiffs may take advantage of the expanded group of beneficiaries allowed by DOHSA and the additional item of damage (predeath pain and suffering) allowed by the Jones Act. While a seaman’s survivors have a cause of action for wrongful death under the general maritime law,80 DOHSA preempts the application of this death action when the accident occurred on the High Seas.81 A seaman’s survivors are precluded from applying state wrongful death action for two separate reasons. Firstly, where, as here, DOHSA applies, it precludes the use of the state wrongful death action.82 Secondly, even if the accident occurred in territorial waters, 74. That is, three nautical miles (one nautical mile equals 1.15077945 miles). 75. 46 U.S.C. § 30301 (2006). 76. 2 ROBERT FORCE & MARTIN J. NORRIS, THE LAW OF SEAMEN § 29.8 (5th ed. 2003). 77. 46 U.S.C. § 30301; In re Pan. Transp. Co., 98 F. Supp. 114, 115-16, 1952 AMC 189, 191-92 (S.D.N.Y. 1951), aff’d, 195 F.2d 104, 1952 AMC 650 (2d Cir. 1952). 78. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 229-30, 1996 AMC 319, 328-30 (1996); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 618-19, 623-24, 1978 AMC 1059, 1060-61, 1064-65 (1978). However, a special exception to this limitation is made for the survivors of victims of a commercial aviation accident. As to this specific group of plaintiffs, DOHSA allows the recovery of the nonpecuniary damages of loss of care, comfort, and companionship. Punitive damages are specifically excluded. 46 U.S.C. § 30307. 79. 46 U.S.C. §§ 30104, 30302; Peace v. Fidalgo Island Packing Co., 419 F.2d 371, 371-72, 1970 AMC 1580, 1580-81 (9th Cir. 1969). 80. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 407-09, 1970 AMC 967, 992-93 (1970). 81. Higginbotham, 436 U.S. at 623-26, 1978 AMC at 1063-66. 82. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 231-33, 1986 AMC 2113, 2133-34 (1986).
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the Supreme Court has held that in such cases, only “nonseafarers” can utilize state death actions.83
E. LHWCA Maritime Workers—Coverage
Members of the crew of a vessel (seamen) are specifically excluded from coverage under LHWCA.84 If Deepwater Horizon workers do not meet the requirements for seaman status, their injury on navigable waters while in the course and scope of their employment would qualify them for coverage under LHWCA, as long as the amount of their work time on navigable waters was not “insubstantial,” that is, “greater than a modicum.”85 Workers aboard drilling vessels who are not seamen ordinarily qualify for coverage under LHWCA.86
F. Injured LHWCA Maritime Workers—Tort Rights and Remedies
A maritime worker’s tort right against a nonvessel owner third party is recognized by 33 U.S.C. § 933, which allows an injured worker to pursue full tort damages from parties other than his employer. The law governing liability, depending on the circumstances, is state law, general maritime law negligence, and, where applicable, general maritime law strict products liability.87 In the case of the Deepwater Horizon accident, maritime workers would have general maritime negligence claims against companies other than the employer and, as to any manufacturer of a potentially defective product that may have played a role in the accident, a general maritime strict products liability cause of action.88
83. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 215-16, 1996 AMC 305, 317-18 (1996). The Court defined “nonseafarers” as “persons who are neither seamen covered by the Jones Act . . . nor longshore workers covered by the Longshore and Harbor Workers’ Compensation Act.” Id. at 205 n.2, 1996 AMC at 309-10 n.2 (citation omitted). 84. 33 U.S.C. § 902 (2006). 85. Bienvenu v. Texaco, Inc., 164 F.3d 901, 908, 1991 AMC 1255, 1264-65 (5th Cir. 1999); see also Dir., Office of Worker’s Comp. Programs v. Perini N. River Assocs., 459 U.S. 297, 311-12, 1983 AMC 609, 620-21 (1982). 86. Anaya v. Traylor Bros., 478 F.3d 251, 253-54, 2007 AMC 697, 698-700 (5th Cir. 2007); Lockheed Martin Corp. v. Morganti, 412 F.3d 407, 411, 2005 AMC 1655, 1659 (2d Cir. 2005); Bienvenu, 164 F.3d at 903-94, 1999 AMC at 1256-58. 87. ROBERT FORCE & MARTIN J. NORRIS, THE LAW OF MARITIME PERSONAL INJURIES §§ 7.1, 8.1 (5th ed. 2010). 88. E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866-71, 1986 AMC 2027, 2034-38 (1986); Szollosy v. Hyatt Corp., 396 F. Supp. 2d 159, 165-66 (D. Conn.
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A maritime worker’s claim against the vessel owner is governed by 33 U.S.C. § 905(b). While such liability of the vessel owner is governed by a negligence standard, in the case of a classical longshoreman injured while loading or unloading a vessel, this negligence standard is shaped by the shipowner’s rightful expectation that those coming onto its ship to load and unload are properly trained and experienced.89 As a consequence, the duties owed by the shipowner are limited and generally categorized into six specific duties: (1) the turnover duty of safe condition, (2) the turnover duty to warn, (3) the active involvement duty, (4) the active control duty, (5) the duty to intervene, and (6) the duty to supervise and inspect.90 The maritime worker injured on a drilling vessel is not a classical longshoreman, raising the question of whether the six Scindia duties should apply to a rig worker. While there are some cases that apply the six Scindia factors regardless of whether the plaintiff was doing traditional longshoreman’s work,91 the better reasoned analysis applies the simple “reasonable care under the circumstances” standard for those covered by the LHWCA but who were not doing the work of a traditional longshoreman.92 A maritime worker’s rights against his employer are ordinarily limited to worker’s compensation.93 An important exception to that rule is found in the “dual capacity” doctrine: an employer that is also a vessel owner may be liable to an employee for tort damages caused by the employer’s negligence when that negligence is committed in its capacity as vessel owner and not employer.94 Thus, a nonseaman maritime worker employed by vessel owner Transocean could sue Transocean for tort damages caused by Transocean’s vessel owner fault.
2005); In re SkipperLiner Indus., Inc., No. 00-C-0730-C, 2002 WL 32348827, at *21-22 (W.D. Wis. Jan. 31, 2002). 89. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 170, 1981 AMC 601, 612 (1981). 90. 1 SCHOENBAUM, supra note 39, § 7-10, at 474-81. 91. See, e.g., Romero v. Cajun Stabilizing Boats Inc., 307 F. App’x 849, 851-53 (5th Cir. 2009). 92. Callahan v. Gulf Logistics, LLC No. 6:06-CV-0561, 2009 WL 891888, at *8-9 (W.D. La. Mar. 31, 2009); Gallow v. Newfield Exploration Co., No. 06-0259, 2008 WL 516528, at *11-13 (W.D. La. Feb. 25, 2008). 93. 33 U.S.C. § 905(a) (2006). 94. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530-31, 1983 AMC 1881, 1885-86 (1983).
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Damages recoverable in general maritime law include the usual tort damages of medical expenses, loss of earnings/earning capacity, and general damages such as physical and mental pain and suffering.95 However, the right of the injured plaintiff’s spouse to recover loss of society damages in a case involving a nonseaman remains controversial. The Supreme Court first recognized the right to recover loss of society damages in a general maritime death action in Sea-Land Services, Inc. v. Gaudet.96 In American Export Lines, Inc. v. Alvez, the right to recover loss of society damages was extended to an injury case.97 In Miles v. Apex Marine Corp.,98 the Supreme Court held that the survivor of a true seaman cannot recover loss of society damages in a general maritime law death action, and this ruling was extended to seamen in injury cases.99 Courts are divided on whether the rationale of Miles extends to preclude recovery of loss of society damages by the spouse of a plaintiff covered under the LHWCA.100 Some courts, despite Miles, have allowed longshoremen to recover punitive damages.101 Recently, in Exxon Shipping Co. v. Baker,102 the Court paid lip service to Miles but, in deciding that the Clean Water Act (CWA)103 did not expressly or impliedly preempt maritime punitive damages, applied a different standard for preemption than that used by Miles, thus arguably signaling the Court’s more restrictive reading of Miles.104 The issue remains unresolved.
95. Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 460-61, 1982 AMC 2447, 2456-57 (3d Cir. 1982), vacated, 462 U.S. 523, 1983 AMC 1881 (1983). 96. 414 U.S. 573, 583-91, 1973 AMC 2572, 2580-86 (1974). Gaudet involved the death of a Sieracki seaman killed in territorial waters. Id. at 574-75, 1973 AMC at 2573-74. 97. 446 U.S. 274, 275-76, 1980 AMC 618, 619-20 (1980). 98. 498 U.S. 19, 31-32, 1991 AMC 1, 9-11 (1990). Miles did not overrule Gaudet. Id. 99. Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127, 128, 1992 AMC 2028, 2028-29 (5th Cir. 1992). 100. Force, supra note 66. 101. See, e.g., Lucas v. Terral Riverservice, Inc., No. 01-0704, 2002 WL 1822934, at *2 (E.D. La. Aug. 8, 2002); Rutherford v. Mallard Bay Drilling, LLC, No. 99-3689, 2000 WL 805230, at *4, 2001 AMC 2813, 2817-18 (E.D. La. June 21, 2000). 102. See 554 U.S. 471, 508 n.21, 2008 AMC 1521, 1546 n.21 (2008). 103. 33 U.S.C. § 1321 (2006). 104. deGravelles, supra note 67; see also David W. Robertson, Punitive Damages in U.S. Maritime Law: Miles, Baker and Townsend, 70 LA. L. REV. 463 (2010).
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G. Death of LHWCA Maritime Workers—Remedies
Because DOHSA preempts the use of both the general maritime and state death actions when the casualty occurs on the high seas, DOHSA is a maritime worker’s only available death action. As such, the survivors are limited to pecuniary losses only.105
H. Other Workers—Injury and Death
It is certainly conceivable that one or more workers on the Deepwater Horizon might be excluded from LHWCA coverage (for example, a clerical worker assigned to audit drilling production106), does not fit the definition of a true seaman (for example, lacks the substantial connection to this vessel or an identifiable fleet), but nonetheless has an occupation regularly exposing him to marine perils. Such a worker would, at least in the Fifth Circuit, have the right to sue the vessel owner for unseaworthiness and his employer for general maritime negligence.107 If injured, he would be entitled to recover tort damages with the possible exception of loss of society damages, depending on the court’s narrow or broad interpretation of Miles.108 If killed, his survivors would be limited to DOHSA and its pecuniary loss only limitation.109
I. Punitive Damages
While Miles110 did not involve punitive damages, many lower courts utilized the rationale of Miles to eliminate or severely restrict maritime punitive damages in a wide variety of circumstances111 including seamen’s claims for maintenance and cure,112 unseaworthi-
105. 46 U.S.C. § 30303 (2006). 106. 33 U.S.C. § 902(3)(a). 107. Green v. Vermilion Corp., 144 F.3d 332, 337, 1998 AMC 2328, 2334 (5th Cir. 1998). At least one other circuit has gone in a different direction. See, e.g., Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1533, 1991 AMC 586, 599-600 (11th Cir. 1990). 108. See sources cited supra notes 99-100. 109. See sources cited supra note 78. 110. See 498 U.S. 19, 21-22, 1991 AMC 1, 2-3 (1990). 111. David W. Robertson, Punitive Damages in American Maritime Law, 28 J. MAR. L. & COM. 73, 143-54 (1997). 112. See, e.g., Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1502-03, 1995 AMC 2022, 2031-32 (9th Cir. 1995); Guevara v. Mar. Overseas Corp., 59 F.3d 1496, 1510-12, 1995 AMC 2409, 2429-33 (5th Cir. 1995).
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ness and Jones Act negligence.113 In deciding whether the survivor of a true seaman could recover loss of society damages under the general maritime death action, the Court in Miles indicated the need to look to what Congress had done in the legislatively created maritime death actions, DOHSA and the Jones Act in particular. The Court stated:
We sail in occupied waters. Maritime tort law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might work to the benefit of seamen and those dependent upon them. Congress has placed limits on recovery in survival actions that we cannot exceed. Because this case involves the death of a seaman, we must look to the Jones Act.114
In looking to these statutes for “policy guidance,” the Court noted that neither the Jones Act nor DOHSA allow for recovery for “loss of society damages.”115 Thus, the Court felt it was not free to “sanction more expansive remedies in a judicially created cause of action in which liability is without fault [i.e., unseaworthiness] than Congress ha[d] allowed in cases of death resulting from negligence.”116 The Court also supported its position with the need to follow the principle of uniformity in admiralty cases. By limiting general maritime death damages to those found in DOHSA and in the Jones Act, the Court found that the principle of uniformity was being served.117 Some lower courts interpreted Miles broadly to deny loss of society damages to all maritime plaintiffs, including nonseamen.118 Others interpreted Miles narrowly, holding that only seamen (and, in some cases, only seamen in their claims against their employer) were precluded from recovering loss of society damages.119
113. See, e.g., Miller v. Am. President Lines, 989 F.2d 1450, 1456-59, 1993 AMC 1217, 1223-28 (6th Cir. 1993). 114. Miles, 498 U.S. at 36, 1991 AMC at 13-14. 115. Id. at 27, 32-33, 1991 AMC at 6-7, 9-11. 116. Id. at 20, 1991 AMC at 11. 117. Id. at 27, 1991 AMC at 6-7. 118. See, e.g., Walker v. Braus, 861 F. Supp. 527, 530-32, 1995 AMC 1516 (E.D. La. 1994) (AMC reporter summarizing case). 119. See, e.g., In re Denet Towing Serv., Inc., No. 98-1583, 1999 WL 329698, at *2, *8 (E.D. La. May 21, 1999); Powers v. Bayliner Marine Corp., 855 F. Supp. 199, 200-02, 1995 AMC 449, 450-54 (W.D. Mich. 1994); Schumacher v. Cooper, 850 F. Supp. 438, 453-54, 1994 AMC 2554, 2565-66 (D.S.C. 1994). For an extensive review of post-Miles jurisprudence, see Force, supra note 66.
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The Supreme Court has recently decided two cases on maritime punitive damages that may signal a change in this jurisprudence and have important implications for the parties in the Deepwater Horizon case. Baker upheld a punitive damage award against an oil polluter who damaged the livelihood of fishermen.120 Atlantic Sounding Co. v. Townsend held that an injured seaman could recover punitive damages for the willful or wanton withholding of maintenance and cure benefits.121 Baker involved the question of whether general maritime law punitive damages were expressly or impliedly displaced by federal statutory law, specifically the CWA, which does not provide for punitive damages.122 Not surprisingly, Exxon argued that, under the rationale of Miles, because the CWA did not provide for punitive damages, then such damages should not be allowed under the general maritime law.123 Miles held that because neither the Jones Act nor DOHSA allowed for loss of society damages, then, looking to these statutes for “policy guidance,” such damages should not be allowed under a seaman’s general maritime wrongful death cause of action.124 The Court in Baker rejected Exxon’s argument and ruled that the CWA did not preempt or displace punitive damages. Significantly, its analysis in reaching this conclusion was fundamentally different than that used in Miles. Rather than look to CWA for “policy guidance” or draw meaning from the CWA’s silence on punitive damages, the Court looked carefully at the language and history of the CWA and concluded, “All in all, we see no clear indication of congressional intent to occupy the entire field of pollution remedies.”125 It is perhaps instructive that the Court cited its previous decision with favor,126 since Alvez specifically rejected the argument that loss of society damages should be excluded from a Sieracki seaman’s general maritime injury claim simply because it was not allowed under the
120. See 554 U.S. 471, 515, 2008 AMC 1521, 1551 (2008). 121. 129 S. Ct. 2561, 2573-75, 2009 AMC 1521, 1534-38 (2009). For a fuller discussion of Baker and Townsend, see Robertson, supra note 104, and deGravelles, supra note 67. 122. 33 U.S.C. § 1321 (2006). 123. Brief for Petitioners at 28-40, Baker, 554 U.S. 471 (No. 07-219). 124. 498 U.S. 19, 27, 1991 AMC 1, 6-7 (1990). 125. Baker, 128 S. Ct. at 2619, 2008 AMC at 1532. 126. Id. at 2630 n.21, 2008 AMC at 1546 n.21.
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Jones Act or DOHSA.127 The Baker Court held that the failure of the CWA to recognize or provide for punitive damages could not be read as congressional intent to preclude it.128 “[W]e find it too hard to conclude that a statute expressly geared to protecting ‘water,’ ‘shorelines,’ and ‘natural resources’ was intended to eliminate sub silentio oil companies’ common law duties to refrain from injuring the bodies and livelihoods of private individuals.”129 Baker certainly did not overrule Miles, but its single mention of Miles is found in a footnote which, ironically, did not trumpet the importance of statutes, but rather defended the Court’s right, under Article III, Section 2 of the United States Constitution to make maritime law.130 Its mention of Miles is a begrudging one and emphasizes that a statute’s silence about a common law rule does not suggest the statute’s antagonism toward that rule.
To be sure, “Congress retains superior authority in these matters,” and “[i]n this era, an admiralty court should look primarily to these legislative enactments for policy guidance.” Miles v. Apex Marine Corp., 498 U.S. 19, 27 (1990). But we may not slough off our responsibilities for common law remedies because Congress has not made a first move, and the absence of federal legislation constraining punitive damages does not imply a congressional decision that there should be no quantified rule.131
The Court asked and answered three questions in concluding that the CWA did not displace the general maritime remedy of punitive damages:
1. Does the “statutory text” of the statute claiming preemptive status “‘speak directly’ to the question addressed by the common law” rule at issue?132 The fact that the statute is silent on the issue is not enough.
127. Am. Exp. Lines v. Alvez, 446 U.S. 274, 283, 1980 AMC 618, 625 (1980) (“[T]he liability schemes incorporated in DOHSA and the Jones Act should not be accorded overwhelming analogical weight in formulating remedies under general maritime law.”). 128. Baker, 554 U.S. at 508 n.21, 2008 AMC at 1546 n.21. 129. Id. at 488-89, 2008 AMC at 1532. 130. Id. at 508 n.21, 2008 AMC at 1546 n.21. 131. Id. (alterations in original). 132. Id. at 488-89, 2008 AMC at 1531-32 (quoting United States v. Texas, 507 U.S. 529, 534 (1993) (emphasis added)).
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2. Given the history and language of the statute, is there a “clear indication of congressional intent to occupy the entire field” of remedies addressed by the common law rule?133
3. Would the application of the common law have a “frustrating effect” on the statutory remedial scheme in question?134
The Court found that the text of the CWA did not speak directly to the issue of punitive damages, that there was no clear indication of congressional intent that the CWA occupy the entire field of maritime remedies and that allowing punitive damages to be awarded would not frustrate the CWA’s remedial scheme. Thus the Court concluded that punitive damages were properly awardable in a maritime pollution case. At issue in Townsend was whether a seaman could recover punitive damages for the employer’s willful or arbitrary withholding of maintenance and cure. Understandably, the employer argued the rationale of Miles and pointed to two influential court of appeals cases that had utilized the Miles rationale to conclude that punitive damages were unavailable in a maintenance and cure case.135 The Court rejected that argument, finding that both punitive damages and the maintenance and cure remedy predated the Jones Act. Further, the Court noted that “there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule.”136 Hence, the Miles analysis of looking to the Jones Act for policy guidance simply did not make sense. “[R]espondent is entitled to pursue punitive damages unless Congress has enacted legislation departing from this common-law understanding. . . . [I]t has not.”137 The Court noted that while its decision did not serve Miles’ goal of uniformity and harmonizing remedies, “[t]he laudable quest for uniformity in admiralty does not require the narrowing of available damages to the lowest common denominator approved by Congress for distinct causes of action.”138 While the Court again paid lip service to
133. Id., 2008 AMC at 1531-32 (emphasis added). 134. Id. (emphasis added). 135. See, e.g., Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1502-03, 1995 AMC 2022, 2031-32 (9th Cir. 1995); Guevara v. Mar. Overseas Corp., 59 F.3d 1496, 1510-12, 1995 AMC 2409, 2429-33 (5th Cir. 1995). 136. Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561, 2569, 2009 AMC 1521, 1529 (2009). 137. Id. 138. Id. at 2574, 2009 AMC at 1537.
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the reasoning of Miles,139 the decision seems more consistent with the Baker Court’s application of a strict statutory analysis rather than searching for “policy guidance” in deciding the CWA did not preempt maritime punitive damages. Given the narrow reading of Miles in Baker and Townsend, there seems to be no statutory impediment to a punitive damage claim by a seaman under his unseaworthiness cause of action. Like maintenance and cure, the general maritime law recognized the unseaworthiness remedy long before the Jones Act.140 Thus the reasoning of Townsend as well as the refashioned Baker test support the conclusion that the pre-Miles cause of action for punitive damages arising from an unseaworthy condition is again viable.141 Prior to the passage of the Jones Act in 1920, the general maritime law recognized the right of those doing traditional longshore work as well as seamen suing nonemployer third parties to recover punitive damages.142 Hence, following the rationale in Townsend, there would seem to be no statutory or other basis for precluding such claims. Can punitive damages be recovered under the Jones Act? Footnote 12 of the Townsend opinion seems to challenge (or at least does not endorse) the Dissent's contention that the Jones Act itself does not allow for punitive damages:
Because we hold that Miles does not render the Jones Act’s damages provision determinative of respondent's remedies, we do not address the dissent's argument that the Jones Act, by incorporating the provisions of the Federal Employers’ Liability Act, see 46 U.S.C. § 30104(a), prohibits the recovery of punitive damages in actions under that statute.143
139. Id. at 2572, 2009 AMC at 1532-34. 140. The Osceola, 189 U.S. 158, 175, 2000 AMC 1207, 1214-15 (1903). 141. See, e.g., Wagner v. Kona Blue Water Farms, LLC, No. 09-00600, 2010 WL 3566731, at *1 (D. Haw. Sept. 13, 2010) (denying defendant’s motion to dismiss plaintiff’s claim for punitive damages based on unseaworthiness). 142. As to those doing traditional longshore work, the right to recover punitive damages is recognized in dicta in Missouri, 76 F. 376, 380-81 (7th Cir. 1896), and General Rucker, 35 F. 152, 158-59 (W.D. Tenn. 1888). As to seamen, see Robertson, supra note 104, at 478-83. Even before Baker and Townsend and despite Miles, certain courts recognized the right of a longshoreman to recover punitive damages. See, e.g., Lucas v. Terral Riverservice, Inc., No. 01-0704, 2002 WL 1822934, at *2 (E.D. La. Aug. 8, 2002); Rutherford v. Mallard Bay Drilling, LLC, No. 99-3689, 2000 WL 805230, at *2, 2001 AMC 2813, 2815-16 (E.D. La. June 21, 2000). 143. Townsend, 129 S. Ct. at 2575 n.12, 2009 AMC at 1538 n.12 (citation omitted).
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There are sound arguments favoring the conclusion that, despite Miles, the Jones Act should allow for the recovery of punitive damages.144 Seamen have traditionally enjoyed the right to sue for punitive damages.145 Courts that have decided that the Jones Act does not allow for punitive damages have often done so by equating the pecuniary-loss limitation in Jones Act wrongful death cases with a compensatory-only limitation.146 This is highly questionable.147 A strong argument can be made that punitive damages are pecuniary and, if so, there is no legitimate reason why punitive damages should be withheld in a Jones Act case. The common definitions of “pecuniary” are “1. relating to money, as in pecuniary affairs; and 2. Involving a money penalty, or fine, as pecuniary offense.”148 Black’s Law Dictionary defines “pecuniary damages” as “[d]amages that can be estimated and monetarily compensated” and “nonpecuniary damages” as “[d]amages that cannot be measured in money.”149 Whichever of these definitions one chooses, punitive damages are pecuniary. They are awarded as money, can be estimated and, as recently stated by the Supreme Court in Baker, punitive damages are awarded as “measured retribution.”150 Approximately one year before her decision in Miles, Justice O’Connor repeatedly referred to punitive damages as “pecuniary punishment.”151 The case often cited for the proposition that punitive damages are “nonpecuniary” cites no authority
144. See Robertson, supra note 104, at 471-75, 495-97. 145. Id. at 478-83; see also William E. Aiken, Jr., Annotation, Recovery of Punitive Damages Under Jones Act (46 U.S.C.A. Appx. § 688) or Federal Employers’ Liability Act (45 U.S.C.A. § 51 et seq.), 10 A.L.R. Fed. 511, § 2[a] (1972). 146. See, e.g., Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d 1238, 1241-42 (6th Cir. 1971); Robertson, supra note 104, at 473-75. However, even under the pecuniary-damage-only rule, there is at least one exception for conscious pain and suffering prior to death. See, e.g., De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 142, 1987 AMC 2462, 2467-69 (5th Cir. 1986). 147. See Robertson, supra note 104, at 473-75. 148. WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED (2d ed. 1975) (emphasis added). 149. BLACK’S LAW DICTIONARY 418 (8th ed. 2004). 150. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2633, 2008 AMC 1521, 1550-51 (2008). 151. Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 295-97 (1989) (O’Connor, J., concurring in part and dissenting in part). See also Austin v. United States, 509 U.S. 602, 614 n.7, 1994 AMC 1206 (1993) (AMC reporter summarizing case), in which the Court’s opinion, joined by Justice O’Connor, characterized a civil forfeiture as “pecuniary punishment.”
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and conducts no analysis to support this declaration.152 Some maritime scholars who have examined this issue have concluded that Miles does not address and its reasoning does not preclude a general maritime punitive damage award because the “pecuniary/ nonpecuniary” distinction does not apply to punitive damages.153 DOHSA also limits recovery to pecuniary damages.154 The traditional view of the jurisprudence interpreting this provision is that DOHSA does not allow for punitive damages.155 However, if, as suggested above, punitive damages are pecuniary, then they should likewise be recoverable under DOHSA. That punitive damages are pecuniary and therefore recoverable under DOHSA is supported by the language of 46 U.S.C. § 30307, which was passed to allow for the recovery of nonpecuniary damages to victims of commercial aviation accidents occurring more than twelve nautical miles from shore of the United States.156 The provision adds “but punitive damages are not recoverable.”157 Nonpecuniary damages are defined as “damages for loss of care, comfort, and companionship.”158 Because the definition of nonpecuniary damages in this section does not include punitive damages, there would be no reason to specifically mention punitive damages unless it was to make clear that those damages are excluded from pecuniary damages otherwise recoverable under DOHSA.159
152. See, e.g., Kopczynski v. The Jacqueline, 742 F.2d 555, 561, 1985 AMC 769, 776 (9th Cir. 1984). 153. See Robertson, supra note 104, at 463-65, 473-75; Robert Force, The Curse of Miles v. Apex Marine Corp.: The Mischief of Seeking “Uniformity” and “Legislative Intent” in Maritime Personal Injury Cases, 55 LA. L. REV. 745, 777 n.1, 793 (1995). 154. 46 U.S.C. § 30303 (2006). 155. See, e.g., Motts v. M/V Green Wave, 210 F.3d 565, 569, 2000 AMC 1521, 1525 (5th Cir. 2000); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347-49, 1987 AMC 2024, 2026-30 (9th Cir. 1987). 156. 46 U.S.C. § 30307(c) states that DOHSA does not apply “if the death resulted from a commercial aviation accident occurring on the high seas 12 nautical miles or less from the shore of the United States.” 157. Id. § 30307(b). 158. Id. § 30307(a). 159. For instance, this section does not specifically exclude damages for a survivor’s mental anguish or grief which, under some wrongful death statutes, is recoverable. See Hebert v. Webre, 2008-0060, p. 11-12 (La. 5/21/08); 982 So. 2d 770, 778; see also Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 586 n.17, 1973 AMC 2572, 2598 n.17 (1974) (distinguishing between loss of society and mental grief). That mental grief is not recoverable as an item of nonpecuniary damage under the commercial aviation section of DOHSA is made clear by its
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The statutory history of the commercial aviation section of DOHSA is far less clear. During debate, Senator Arlen Specter said the following:
The Death on the High Seas Act states that where the death of a person is caused by wrongful act, neglect, or default occurring more than one marine league—three miles—from U.S. shores, a personal representative of a decedent can only sue for pecuniary loss sustained by the decedent's wife, child, husband, parent, or dependent relative. Therefore, the families of the victims of aviation accidents, such as TWA 800, Swissair 111 and EgyptAir 990, all of which occurred more than three miles offshore, were precluded from recovering non-pecuniary damages such as loss of society or punitive damages, no matter how great the wrongful act or neglect by an airline or airplane manufacturer.160
No other comments on the congressional intent regarding whether punitive damages are considered pecuniary or nonpecuniary could be found. Further confusing the issue is a change in language between the commercial aviation section as drafted in 2000 and the current 2006 version. The original exception stated in pertinent part that “additional compensation for nonpecuniary damages for wrongful death of a decedent is recoverable. Punitive damages are not recoverable.”161 As noted above, the current version combines the two sentences as follows: “additional compensation is recoverable for nonpecuniary damages, but punitive damages are not recoverable.”162 The amendment making this change was a part of a recodification of maritime rules, the intent of which was “to conform to the understood policy, intent, and purpose of the Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections.”163 Was the change merely confirming the enactment’s original intent or removing ambiguity? If removing all ambiguity was
absence from the definition of nonpecuniary damages, not by specifically excluding it. See, e.g., In re Air Crash Near Nantucket Island, Mass., on October 31, 1999, 307 F. Supp. 2d 465, 468 (E.D.N.Y. 2004). 160. 146 CONG. REC. S1255, 1265 (daily ed. Mar. 8, 2000) (statement of Sen. Specter) (emphasis added). 161. 46 U.S.C. app. § 762 (2000). 162. 46 U.S.C. § 30307 (2006). 163. Act of Oct. 6, 2006, Pub. L. No. 109-304, 120 Stat. 1485, § 2.
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Congress’s goal, it failed. The meaning of this change remains subject to interpretation.
V. DISCUSSION
It is apparent from the foregoing review that the law of maritime injury and death is complex and highly sensitive to the status of the plaintiff. It is also clear that some of the disparities in treatment as among different classes of plaintiffs are arbitrary and illogical, if not inequitable. As is well illustrated by the Deepwater Horizon tragedy, even with the modern technology and safeguards available today, seamen’s work remains one of the most dangerous occupations as a percentage of those employed.164 American maritime law has rewarded these professional dangers and hardships by according “a special solicitude for the welfare of those men who under[take] to venture upon hazardous and unpredictable sea voyages.”165 Indeed, American maritime law has traditionally treated seamen as “wards of the admiralty.”166 Yet, as the Deepwater Horizon case illustrates, there are important circumstances in which the law treats nonseamen, and in some cases nonworkers, more favorably than seamen. In the area of maritime death, the survivors of a seaman cannot recover loss of society damages although the survivors of a nonseaman can. In accidents occurring in territorial waters, a seaman’s survivors may not take advantage of state death actions; civilians (that is, “nonseafarers”) may. Survivors of passengers killed in a commercial aviation crash on the high seas may recover nonpecuniary damages while those of a seaman may not.167 In maritime injury cases, a seamen’s family members may not recover for loss of society damages while most courts have held that families of nonseamen can. Although the law in the area of punitive damages seems to be changing, most existing cases prohibit a seaman from recovering punitive damages under the Jones Act, unseaworthiness or in a general maritime tort action against a third
164. Alaistair D. Couper, Historical Perspectives on Seafarers and the Law, in SEAFARERS RIGHTS 32 (D. Fitzpatrick & M. Anderson eds., 2005). 165. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387, 1970 AMC 967, 976-77 (1970). 166. Harden v. Gordon, 11 F. Cas. 480, 485, 2000 AMC 893, 902-03 (C.C.D. Me. 1823). 167. 46 U.S.C. § 30307.
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party. Yet despite the fact that seamen have traditionally been a favored class, nonseamen may recover punitive damages.168 It is submitted that these disparities are in need of legislative or jurisprudential correction. While there are efforts currently being made in Congress to correct some of these disparities, the success of those efforts is far from certain.169
168. See Rutherford v. Mallard Bay Drilling, LLC, No. 99-3689, 2000 WL 805230, at *4, 2001 AMC 2813, 2818 (E.D. La. June 21, 2000) (finding “no principled ground for treating longshoremen better than Jones Act seamen” in regard to the availability of the punitive damage remedy). 169. Securing Protections for the Injured from Limitations on Liability Act (SPILL Act), H.R. 5503, 111th Cong. (2010). The Spill Act was introduced on June 10, 2010, by Chairman John Conyers of the House Judiciary Committee. On July 1, 2010, H.R. 5503 passed with bipartisan support in the U.S. House of Representatives on the suspension calendar. It was subsequently received in the Senate where it is still awaiting further debate.
