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
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 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, 66768 (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 *34; 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