Doing Aweigh with Uncertainty: Navigating Jones Act Seamen's Claims Against Third Parties

• Author: Sara B. Kuebel
• Position: J.D./D.C.L., 2018 Paul M. Hebert Law Center, Louisiana State University.
• Pages: 945-988

Doing Aweigh with Uncertainty: Navigating Jones Act Seamen’s Claims Against Third Parties TABLE OF CONTENTS Introduction: A Tale of a Fateful Trip .......................................... 946 I. A Three-Hour Tour Through Admiralty Law .............................. 948 A. The Scope of Admiralty Jurisdiction ..................................... 948 B. The Sea of Remedies Available to Jones Act Seamen .......... 950 1. The Seaman’s General Maritime Claim Against the Employer or the Vessel Owner ................................. 951 a. Maintenance and Cure .............................................. 952 b. Unseaworthiness of the Vessel ................................. 952 2. The Seaman’s Jones Act Negligence Claim.................... 953 3. Causes of Action Available to Seamen Against Third Parties .................................................................... 955 C. The Weather Started Getting Rough: Punitive Damages in Maritime Law .................................................... 956 1. Pre-Jones Act Punitive Damages .................................... 956 2. Post-Jones Act Punitive Damages ................................... 958 a. Taking Wind out of the Sails: From Loss of Society Damages to Punitive Damages .................... 958 i. The Rising Tides of Denied Recovery: From DOHSA and Higginbotham to the Jones Act and Miles ............................................ 959 ii. Sailing Miles Too Far ......................................... 963 b. Uncharted Waters: Applying Miles to a Separate and Distinct Cause of Action ..................... 965 c. Punitive Damages Under General Maritime Law ........................................................... 967 d. Seamen Can Recover Punitive Damages from Their Employer ................................................ 968 II. A Shipwreck in the Eastern District of Louisiana ........................ 972 A. Collins v. A.B.C. Marine Towing, L.L.C. ............................... 973 B. Hume v. Consolidated Grain & Barge, Inc. .......................... 975 C. Howard v. Offshore Liftboats, L.L.C. .................................... 977 D. Wade v. Clemco Industries Corp. .......................................... 978 III. The Changing Tides of Punitive Damages Under General Maritime Law ............................................................................... 982 946 LOUISIANA LAW REVIEW [Vol. 78 A. Punitive Damages Are Available Under General Maritime Law ........................................................... 982 B. Punitive Damages Should Be Available to a Jones Act Seamen for a Third Party’s Misconduct ................................ 982 1. The Jones Act Expanded the Remedies Available to Seamen ....................................................................... 982 2. Unrelated Claims and Parties: Distinguishing Miles and Effectively Overruling Scarborough ........................ 984 3. The Court Has Slowly Eroded the Miles Uniformity Principle’s Effect ............................................................. 986 Conclusion .................................................................................... 988 INTRODUCTION: A TALE OF A FATEFUL TRIP Six people embarked on a three-hour tour of Louisiana’s territorial waters in the M.V. Minnow, including a first mate named Gilligan, a millionaire couple, a movie star, a farm girl, and a science professor. 1 The vessel’s steering system malfunctioned in a storm, causing the vessel to wreck onto a deserted island. After months on the island, the Coast Guard finally rescued the shipwrecked castaways. Upon being informed of their legal rights, the six castaways brought negligence claims against the manufacturer of the M.V. Minnow’s steering system. 2 At trial, the parties proved that the manufacturer knew of a defect that could cause the steering to fail suddenly and lead to catastrophic consequences. Despite this knowledge, the manufacturer neither fixed the steering system nor warned vessel operators of this potential hazard. After making these factual findings and applying general maritime products liability law, the jury concluded that the manufacturer acted willfully and Copyright 2018, by SARA B. KUEBEL. 1. Facts and characters of this introductory hypothetical are loosely based on Gilligan’s Island. See Gilligan’s Island (CBS television broadcast Sept. 1964). This Comment leaves out the Skipper because his ownership of the vessel could complicate the issue presented. As a vessel owner, the Skipper could be liable to Gilligan for breaching the duty of unseaworthiness. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). Moreover, Skipper owes a duty of reasonable care under the circumstances to the other passengers. Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). 2. Facts and causes of action are loosely based on a Louisiana Third Circuit Court of Appeal case. See Warren v. Shelter Mut. Ins. Co., 196 So. 3d 776 (La. Ct. App. 2016). 2018] COMMENT 947 wantonly in failing to warn vessel operators of the danger. Accordingly, the court awarded the castaways compensatory and punitive damages against the manufacturer. Not all of the castaways recovered the punitive damages awarded, however. Under the reasoning of the United States Fifth Circuit Court of Appeals in Scarborough v. Clemco Industries, Gilligan would not be able to recover punitive damages from the third-party manufacturer because he was a member of the crew of the M.V. Minnow. 3 However, the nonseafarers—the millionaire couple, the movie star, the farm girl, and the science professor—all may be able to recover maritime law punitive damages from the third-party tortfeasor. Gilligan’s employment connection to the M.V. Minnow precludes his recovery of punitive damages from the manufacturer despite the fact that he suffered from the same injuries caused by the same tortious misconduct. Absent a controlling congressional statute, maritime law should not treat seamen any differently in their remedies against a third-party non-employer. This anomaly restricts the remedies of seamen and shields the third-party tortfeasor from accountability to all victims of its wrongful conduct. Relying on United States Supreme Court cases adjudicated subsequent to Scarborough, 4 courts within the Fifth Circuit Court of Appeals remain divided on whether seamen may recover punitive damages against third-party tortfeasors. 5 In the United States District Court for the Eastern District of Louisiana, several judges have held, relying on Scarborough, that seamen cannot recover punitive damages from a third party. 6 One judge within the same district has disagreed, however, relying on the United States Supreme Court’s decision in Atlantic Sounding Co., Inc. v. Townsend. 7 After revisiting Scarborough in light of the Court’s 3. Scarborough v. Clemco Indus., 391 F.3d 660, 66768 (5th Cir. 2004), cert. denied, 544 U.S. 999 (2005). 4. See Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009); Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008); see also Scarborough, 391 F.3d 660. 5. See Collins v. A.B.C. Marine Towing, L.L.C., No. 14-1900, 2015 WL 5254710 (E.D. La. Sept. 9, 2015) (Fallon, J.); Hume v. Consol. Grain & Barge, Inc., No. 15-0935, 2016 WL 1089349 (E.D. La. Mar. 21, 2016) (Zainey, J.). But see Howard v. Offshore Liftboats, L.L.C., No. 13-4811, 2015 WL 7428581 (E.D. La. Nov. 20, 2015) (Morgan, J.); Wade v. Clemco Indus. Corp., No. 16-502, 2017 WL 434425 (E.D. La. Feb. 1, 2017) (Fallon, J.). 6. See Howard, 2015 WL 7428581; see also Scarborough, 391 F.3d 660. 7. See Collins, 2015 WL 5254710, at *34; Hume, 2016 WL 1089349, at *2 (Fallon, J.) (arguing that the subsequent Supreme Court decision “effectively overruled” the Fifth Circuit precedent); see also Townsend, 557 U.S. 404. But see Wade, 2017 WL 434425 (demonstrating Judge Fallon changing course and 948 LOUISIANA LAW REVIEW [Vol. 78 reasoning in Townsend, the en banc Fifth Circuit should reverse Scarborough and permit both seamen and non-seamen to recover punitive damages under general maritime law. Part I of this Comment gives a brief overview of admiralty jurisdiction as well as the scope of maritime law. This Part also explains the sources of maritime law, its general principle of uniformity, and the remedies available to seamen. Part II analyzes the chronology of cases addressing maritime punitive damages. Additionally, Part II illustrates the split in the Eastern District of Louisiana concerning whether a Jones Act seaman may recover punitive damages from a third-party non-employer. Part III of this Comment argues that punitive damages remain available under general maritime law and that these damages are available to a Jones Act seaman against a third-party non-employer. To best achieve uniformity in maritime law, this Comment proposes that the law should afford seamen and non-seafarers the same protections under general maritime law against non-employers; to do otherwise would drown all hopes of protecting seamen as the “wards of admiralty.” 8 I. A THREE-HOUR TOUR THROUGH ADMIRALTY LAW Over the past several centuries, maritime law has developed into an expansive body of rules and principles covering a vast sea of parties and occurrences. Preliminarily, courts must determine whether the cause of action invokes admiralty jurisdiction. Once established, the court then must consider which of the various theories of liability the plaintiff may pursue. Finally, if the court finds the defendant liable, it must decide what types of damages the plaintiff may recover. A. The Scope of Admiralty Jurisdiction Pursuant to Article III, Section 2 of the United States Constitution, “The judicial power shall extend . . . to all [c]ases of admiralty and finding that Jones Act seamen cannot recover punitive damages and Scarborough remains good law). 8. See Ramsay v. Allegre, 25 U.S. 611, 620 (1827) (Johnson, J., concurring) (referring to seamen for the first time as the “wards...