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

Don ’ t 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 the 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,” or “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, ‘comes the 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 law. 12 Such a minute difference regarding the source of the claim does not seem particularly significant at first glance—the desired remedy S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986)). 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 law. 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 defendant for aggravated or outrageous misconduct, and to deter the defendant and others from similar conduct in the future. See RESTATEMENT (SECOND) OF TORTS § 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 (46 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 neither a seaman under the Jones Act nor a longshoreman under the Longshore and Harbor 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 Punitive 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). 330 LOUISIANA LAW REVIEW [Vol. 79 is the same, and general maritime law applied because of the presence of admiralty jurisdiction. 13 The recovery of punitive damages, however, is a considerably murky area of general maritime law. 14 The 1990 Supreme Court case Miles v. Apex Marine Corp . sparked decades of controversial rulings, during which lower courts denied the overall availability of punitive damages under general maritime law. 15 The tide shifted in Exxon Shipping Co. v. Baker and Atlantic Sounding Co. v. Townsend , signaling the Court’s rejection of an overly expansive interpretation of Miles and approval of maritime punitive damages, at least under the facts of those cases. 16 Neither Baker nor Townsend involved non-seamen killed or injured in territorial waters; as a result, cases such as Warren raise several important questions regarding the interplay between Miles , Yamaha , Baker , and Townsend . 17 A closer look at Yamaha reveals that the decision only permits the use of state law to provide a supplementary remedial option for non-seamen injured or killed in territorial waters. 18 Yet, after Baker and Townsend , punitive damages may be available to those claimants under general 13. See , e.g. , E. River S.S. Corp. , 476 U.S. at 864 (citing Exec. Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 255 (1972)). 14. See discussion infra Part II. 15. Miles v. Apex Marine Corp., 498 U.S. 19 (1990). 16. See Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (holding that fishermen could recover punitive damages under general maritime law for pure economic harm following the Exxon Valdez oil spill); see also Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009) (holding that a Jones Act seaman has a general maritime law punitive damages remedy for...