TABLE OF CONTENTS I. Introduction 296 II. Background 297 A. Jurisdiction 297 B. Development of Recovery Under Wrongful Death and Survival Actions 298 III. Filling the Gaps With "Nonseafarer" 302 A. Birth of the Term "Nonseafarer" 303 B. Finding the Gap Between the Acts 304 1. Longshore and Harbor Workers' Compensation Act 305 2. The Jones Act 308 C. Non-Seafarers: Self-Employed Commercial Fishermen 311 1. Trinh ex rel Tran v. Dufrene Boats 311 2. In re Marquette Transportation Company Gulf-inland, L.L.C 314 IV. The Potential Future of the Nonseafarer 317 A. Reach: Breaking Down the Self-Employed Commercial Fisherman 317 B. Flexible Option: Recovery of Punitive Damages 321 V. Conclusion 325 I. INTRODUCTION
In the late 1600s, the Acadians were deported by the British from the fields of Grand Pre in droves, sending Acadian laden ships down through the Atlantic Ocean, wrapping around what would later be the United States of America, finally shoving the Acadians off onto the shores and marshland of Southern Louisiana. To survive, the Acadians were forced to live off the land: they carved cypress trees into pirogues (1) and set out into the marshes to fish. Hundreds of years later, the people of southern Louisiana and other communities throughout the coast still live and die by the land, or alternatively, by the water. In 2016, more than 65,000 (2) commercial wildlife licenses were sold in Louisiana. Of those sold, 11,825 were listed as commercial fishing licenses. (3) This number continues to grow when added with licenses purchased by out-of-state residents.
There is no doubt that fishermen, either recreational or commercial, contribute to the Gulf South's economy. However, the work can be dangerous and could even result in the death of the fisherman. In a string of recent court decisions dating back to the Yamaha v. Calhoun case in 1997, state remedies under general maritime law have been extended to "nonseafarers." In recent cases, especially those in courts along the Gulf-South, self-employed commercial fishermen have been categorized as "nonseafarers." Whether they were originally forgotten in statutory remedies or intentionally left out, the role of the self-employed commercial fisherman status has become an important area of development in maritime wrongful death and survival action recovery.
This comment aims to look to the future of wrongful death and survival actions for nonseafarers in the Fifth Circuit under general maritime law and the supplemental state laws that allow for people who work on navigable waters to recover damages when they are killed or injured. After laying the foundation, this comment will focus on the term "nonseafarer" and how it came to be defined and used by the courts. Next, this comment will analyze the attachment of the term nonseafarer to self-employed commercial fisherman. Finally, it will focus on the potential problems that may have arisen and continue to develop with the judicially created term.
A maritime tort falls within admiralty jurisdiction when it meets certain criteria. Article III Section 2 of the United States Constitution grants power to the federal government to oversee all cases of admiralty and maritime jurisdiction. (4) However, while the Constitution and certain acts of Congress (5) state that maritime cases fall within admiralty, jurisdiction, they both fail to explicitly define the boundaries of admiralty jurisdiction case. (6) The interpretation of admiralty jurisdiction, in regards to the construction by the Constitution, has fallen to the courts to try and mesh together certain cases and create criteria for almost arbitrarily exercising admiralty jurisdiction. (7) Because the United States lacks a congressionally created "Maritime Code," judicial interpretation continuously proves to be a common theme throughout in maritime law. Without statutory guidance, courts have been forced to step into the role of lawmaker and have attempted to fill in the blanks left by the Constitution and by Congress. (8)
Development of Recovery Under Wrongful Death and Survival Actions
Maritime law did not traditionally afford a wrongful death or survival remedy to seaman. In the late 1800s, The Harrisburg (9)--a foundational maritime law case--involved survivors of a decedent seaman who died due to employer negligence but were unable to recover for the lost wages and economic value of their relatives work. (10) Generally, a wrongful death action is created by statute, either by Congress or by the states. (11) Under The Harrisburg, the right to recover any damages for a personal injury ended with death of either the victim or the wrongdoer. (12)
The Harrisburg, known as the grandfather of American wrongful death recovery, denied a cause of action for wrongful death in United States maritime law. This decision began the ever-present tension between state statutes and maritime law that appears in courts today. In The Harrisburg, the wife and child of a deceased first officer filed suit to recover damages due to the officer's death caused by the negligence of another steamer that collided with his vessel. (13) The Court relied on common-law, noting that there was not a means of recovery under common law. (14) After a historical analysis, the Court could find no country that adopted a maritime law that was different from the law on land. (15) The Court held that because the law of the sea could not be different than the law of the land absent a statutory provision, and because there was no statute at the time of this case, there was no remedy for wrongful death under general maritime law. (16)
It was not until the enactment of both the Jones Act (17) and the Death on the High Seas Act (DOHSA) (18) that the statutory requirement mentioned in The Harrisburg for a wrongful death action became reality. In 1920, both the Jones Act and DOHSA overruled parts of The Harrisburg, especially in maritime torts. (19) DOHSA created a cause of action for the spouse, parent, child or dependents of any individual, (20) who is killed more than three nautical miles out from the shore of the United States. (21) If the decedent falls under DOHSA, the representatives can then bring a civil wrongful death action within the admiralty jurisdiction of the federal court against the responsible party, whether a vessel or a person. (22) However, DOHSA limits recovery to pecuniary (23) damages (24) and only applies outside of the territorial waters of states. (25) While DOHSA created a standard for recovery for people who died at sea and who were not seaman, it fails to protect those who would otherwise be covered by DOHSA but are not considered seaman and died within the three-mile limit from the shore.
In the same year as DOHSA's passage, Congress passed the Jones Act. (26) The Jones Act gave not only seaman (27) the right to sue their employers (28) for any injuries caused by employer negligence, but also allowed for certain beneficiaries to maintain an action for wrongful death and a survivor's action on behalf of the decedent for pecuniary damages. (29)
The Supreme Court revisited its opinion in The Harrisburg in 1970 in tandem with its reading of DOHSA. (30) In Moragne v. States Marine Lines, Inc. (31) a longshoreman was killed in Florida's territorial waters. (32) His surviving spouse brought claims for negligence and unseaworthiness of the vessel seeking to recover damages for wrongful death and pain and suffering. (33) States Marine Lines sought to dismiss the claim. In its analysis of The Harrisburg, the Court noted that the common-law rule excluding civil actions for injuries at sea which resulted in death was justified on the basis that no other country had a remedy to the contrary. (34) The Moragne court deduced that the common-law rule-no employee negligence remedy-chosen in The Harrisburg was based on factors that are no longer important to the maritime trade in England at the time of the Moragne decision. (35) The Court further pointed out that these factors never existed in the laws of United States. (36) Although the Moragne Court conducted an analysis of the common law, the Court did not decide if The Harrisburg was correct, but instead recognized that a "rule against recovery for wrongful death is sharply out of keeping with the policies of modern American maritime law" (37) and determined that a finding for recovery was the future of maritime law. (38) The Moragne Court then analyzed the Death on the High Seas Act to determine the availability of recovery. Stated another way, the Act does not by its own force abrogate available state remedies--that no intention of the Act has the effect of foreclosing any non-statutory federal remedies--or state enacted remedies--that might be found appropriate to effectuate the policies of general maritime law. (39) The Court ultimately concluded that DOHSA did not preclude the availability of a wrongful death claim when the situations did not fall under the specific geographical limits of DOHSA and held that an action for wrongful death exists under general maritime law through the application of state law to non-Jones Act seaman. (40) With the decision in Moragne, the Supreme Court overruled the Harrisburg and created a new basis for recovery under maritime law.
However, general maritime law is not a complete body of law. (41) When situations are not directly governed by precedent or statute, federal courts can formulate a rule for their decisions. (42) While courts overseeing maritime cases have a general interest in maintaining uniformity, the Supreme Court has stated that state law is not precluded in admiralty so long as there is not a conflict between state and federal interests. (43) This lack of uniformity under a rule designed to maintain uniformity could lead to circuit splits and confusing situations that ultimately confuse the application under the general maritime law.
FILLING THE GAPS WITH...