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 Liftboa ts, L.L.C. .................................... 977

D. Wade v. Clemco Industries Corp. .......................................... 978

III. The Changing Tides of Punitive Damages Under General

Maritime Law ............................................................................... 982

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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 I sland ( 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 non-

seafarers—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 Scarbor ough,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 Sca rborough in light of the Court’s

3. Scarbo rough 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. Mari ne 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 Howar d, 2015 WL 7428581; see also Scarboro ugh, 391 F.3d 660.

7. See Collins, 2015 WL 5 254710, 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