Don't Rock the Boat: Developing a Uniform System of Maritime Punitive Damages After Baker and Townsend

Author:Josie N. Serigne
Position:J.D./D.C.L., 2019, Paul M. Hebert Law Center, Louisiana State University.
Pages:327-368
 
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Dont Rock the Boat: Developing a Uniform System
of Maritime Punitive Damages After Baker and
Townsend
TABLE OF CONTENTS
Introduction .................................................................................. 328!
I. The Power Struggle: An Overview of “The Law Applied”
in Admiralty ................................................................................. 332!
A. Allocation of Maritime Lawmaking Authority
Among Sovereigns ................................................................. 332!
1. Federal Lawmaking Authority ....................................... 334!
2. State Lawmaking Authority ............................................ 335!
B. State Law Application in Maritime Cases ............................. 337!
II. Nature and Scope of the Problem: The Quest for
Federal-State Comity as Applied to Punitive Damage
Availability in Maritime Torts ..................................................... 339!
A. The Status of Punitive Damages After Miles, Baker,
and Townsend ........................................................................ 339!
B. Non-Seamen Maritime Torts: A Much-Needed
Reconciliation of General Maritime Law and
State Law Punitive Damages ................................................. 342!
III. Navigating the States’ Role in Maritime Punitive
Damages ....................................................................................... 344!
A. Availability of General Maritime Law Punitive
Damages in Non-Seamen Maritime Torts in
Territorial Waters ................................................................... 345!
1. Examination of the Court’s Decisions in Baker
and Townsend .................................................................. 345!
2. Baker and Townsend as Applied to Non-Seamen
Maritime Torts in Territorial Waters ............................... 350!
B. Availability of State Punitive Damage Remedies in
Non-Seamen Maritime Torts in Territorial Waters ............... 353!
IV. Time to Calm the Waters Through Implementation of a
Uniform System of Maritime Punitive Damages ......................... 357!
A. Synopsis of Potential Issues Raised by State
Law Punitive Damages Under the Maritime
Preemption Analysis .............................................................. 359!
1. Degree of Culpable Conduct Required ........................... 360!
2. Permissibility of Vicarious Punitive Damages ................ 362!
328 LOUISIANA LAW REVIEW [Vol. 79
3. Ratio of Compensatory to Punitive Damages ................. 363!
B. Observation: State Law is Inapplicable to Maritime
Punitive Damages After Baker and Townsend ...................... 367!
Conclusion .................................................................................... 367!
INTRODUCTION
On May 7, 2005, Derek Hebert was one of several passengers in a
small boat operated by Daniel Vamvoras.1 They were in a former channel
of the Calcasieu River in Lake Charles, Louisiana, traveling between
Vamvoras’ home and the Lake Charles Country Club.2 While the boat was
“on plane,”3 the hydraulic steering system failed because of fluid loss. The
boat whipped around violently, ejecting Hebert and four other passengers.
The “kill switch”4 on the boat was not engaged, and t he propeller struck
Hebert 19 times, ultimately resulting in his death.
These are the facts of Warren v. Shelter Mutual Insurance Co.,5 a
recent Louisiana Supreme Court decision. Warren is remarkably evocative
of the 1996 United States Supreme Court case, Yamaha Motor Corp. v.
Calhoun.6 Yamaha involved a minor, Natalie Calhoun, who died in a jet
ski accident in the “territorial waters” of Puerto Rico.7 Because the
accident occurred upon the navigable waterways of the United States,
admiralty jurisdiction and general maritime law applied to the wrongful
death case.8 To increase potential recovery, Natalie’s parents argued for
Copyright 2018, by JOSIE N. SERIGNE.
1. Warren v. Shelter Mut. Ins. Co., 233 So. 3d 568, 571 (La. 2017).
2. Id.
3. “On plane” means that the boat was traveling at a sufficiently high rate of
speed to cause the hull to rise out of the water. Id.
4. The “kill switch,” o r “engine safety cut-out switch,” is a device used, in
the event of a passenger being thrown from the boat, to stop the engine and prevent
injury from the spinning propeller. Id.
5. Id.
6. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996).
7. “Territorial waters” are waters within the territorial limits of a State, as
well as the coastal waters fewer than three nautical miles from the shore of a State.
See, e.g., Calhoun v. Yamaha Motor Corp., 40 F.3d 622, 624 n.1 (3d Cir. 1994)
(quoting William C. Brown III, Problems Arising from the Intersection of
Traditional Maritime Law and Aviation Death and Personal Injury, 68 TUL. L.
REV. 577, 581 (1994)).
8. Yamaha, 516 U.S. at 206 (“‘With admiralty jurisdiction,’ we have often
said, ‘co mes t he application of substantive admiralty law.’”) (quoting E. River
2018] COMMENT 329
application of their resident state’s wrongful death statute and its
accompanying remedies.9 The Court agreed and determined that state law
remedies, which included punitive damages against the manufacturer of
the jet ski, remained available to supplement general maritime law for
wrongful deaths of “non-seamen” in territorial waters.10
Like Calhoun’s parents in Yamaha, Hebert’s father sought to recover
punitive damages from the manufacturer of the boat’s steering system in
Warren.11 He brought the claim under general maritime law rather than
state l aw.12 Such a minute difference regarding the source of the claim
does not seem particularly significant at first glancethe desired remedy
S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (19 86)). The terms
“admiralty” and “maritime” are used interchangeably. Any appearance of the two
words throughout this Comment only reflects customary usage in a unique area
of la w. See FRANK L. MARAIST ET AL., ADMIRALTY IN A NUTSHELL 1 (7th ed.
2017) (“Admiralty or maritime law is one of the world’s oldest bodies of law.”)
(emphasis added).
9. Because Natalie Calhoun’s permanent residence was in Pennsylvania, her
estate and parents brought suit under Pennsylvania wrongful death and survival
statutes, which allowed more potential recovery than federal maritime law.
Available remedies included loss of future earnings, loss of society, support and
services, funeral expenses, and punitive damages. Yamaha, 516 U.S. at 202.
10. See id. at 199. Punitive damages are generally defined as those damages
assessed in addition to compensatory damages to punish the defe ndant for
aggravated or outrageous misconduct, and to deter the defendant and others from
similar conduct in the future. See RESTATEMENT (SECOND) OF TOR TS § 908
(1979). Although an entire body of case law interprets this term, generally a
“seaman” is a “member of the crew of a vessel.” Notably, seamen have a right of
action against their employers under the Jones Act (4 6 U.S.C. § 30104). See
MARAIST, supra note 8, at 215. To the contrary, the Supreme Court has defined a
“non-seaman” as a person, such as a recreational boater, who is neit her a seaman
under the Jones Act nor a longshoreman under the Longshore and Harbo r
Workers’ Compensation Act. Yamaha, 516 U.S. at 205 n.2.
11. The father specifically claimed that the manufacturer demonstrated a
callous disregard for the safety of others because it knew of the system’s flaws
but failed to provide warnings in order to avoid “mass hysteria.” Warren v. Shelter
Mut. Ins. Co., 196 So. 3d 776 (La. Ct. App. 2016).
12. Louisiana law does not recognize claims for punitive damages in such
wrongful death actions. See, e.g., McCoy v. Ark. Nat. Gas Co., 143 So. 383 , 385
86 (La. 1932) (“There is no authority in the law of Louisiana for allowing punitive
damages in any case, unless it be for some particular wrong for which a statute
expressly authorizes the imposition of some such penalty.”); see generally John W.
deGravelles & J. Neale deGravelles, Louisiana Pu nitive Damages A Conflict of
Traditions, 70 LA. L. REV. 579, 585 (2010) (discussing Louisiana’s general refusal
to impose punitive damages as a reflection of the civil law tradition).

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