Waiting for Gaudet charting a course after Atlantic Sounding Co. v. Townsend.

• Author: Costabel, Attilio M.

In Waiting for Godot, the masterpiece play by Nobel Laureate Samuel Beckett, two friends wait expectantly for someone named Godot to arrive. The friends claim him as an acquaintance," but in fact they hardly know him, admitting that they would not recognize him were they to see him. After days of waiting in vain, they pledge to commit suicide the day after, unless of course Godot arrives. At the play's end, the audience never learns if Godot arrived or if the friends committed suicide. (2)

This narrative is strikingly similar to the saga of the homonymous Supreme Court case name Gaudet--a case that may or may not return from the vestiges of admiralty law jurisprudence. This article explores the potential of Gaudet's return," and, in doing so, it provides an up-to-date assessment of the state of the law of maritime personal injury and wrongful death remedies in the light of two co-existing, yet contradicting, Supreme Court precedents." Sea-Land Services, Inc. v. Gaudet (3) and Miles v. Apex Marine Corp. (4) The former case, Gaudet, is the outer limit reached by the Supreme Court in expanding the remedies available in maritime personal injury and wrongful death suits. (5) Miles, conversely, is synonymous with the Supreme Court's limitation, if not outright negation, of those remedies. (6) Strikingly, however, Miles distinguished Gaudet without overruling it, (7) and Gaudet, therefore, has remained in oblivion for a long time, while Miles has enjoyed an amazing expansion far beyond its own limited holding. (8)

In Part I, this article analyzes the many fallacies of Miles and examines myriad courts' expansive use of Miles in unrelated cases. Part II reviews Miles's foundations, many of which are premised on the "Vreeland gloss." Part III discusses what perhaps the major fault of Miles is: its treatment of Gaudet. Part IV chronicles case law after Gaudet and Miles, and argues that, while Miles has hoarded a crowd of followers, Gaudet has not been altogether abandoned. Parts V and VI suggest that the Miles doctrine may begin to fade; specifically, Part V proposes that the relatively recent Supreme Court case, Atlantic Sounding Co. v. Townsend, (9) signals Miles's fade, while Part VI contends that Miles's fade is reinforced by three state court cases that consistently embraced Townsend's reasoning and, thus, shed the ever-expanding Miles coat. (10) Finally, Part VII concludes that, like the narrative of Samuel Beckett's play, we may never know if Gaudet will finally return or if Miles will be overruled, or both. Nevertheless it argues that, in the wake of the Miles saga, the admiralty courts appear willing to reclaim their healthy role in making admiralty law free from mirages of nonexistent congressional mandates or occupation of admiralty waters.

PART I: THE FALLACIES OF MILES

The year 2011 was Judgment Day for Miles. (11) Three scholarly articles revisited, dissected, and diagnosed Miles's serious illnesses. The first article, written by Professor Thomas Galligan and published by the Louisiana Law Review in Spring 2011, addressed Miles in the wider context of the Deepwater Horizon oil spill disaster, highlighting its flaws and inconsistencies that resulted in injustice and insufficient deterrence of unnecessary risks. (12) The second article, published by the New York University Law Review in November 2011, criticized courts' reliance on Miles in denying punitive damages in Oil Pollution Act lawsuits. (13) The third article, written by Professor David Robertson and published in the Winter 2011 issue of the Saint Louis" University Law Journal, provided a refreshing analysis of Miles in the wider context of the relationship between admiralty courts and Congress. (14)

What is significant about these articles, however, is not simply their discussion of Miles in varying contexts; rather, it is the common thread that runs through them. They each addressed the ways in which courts have applied Miles in cases that are not only unrelated to Miles's narrow holding, but also distinct from the specific issues certified to the Miles Court, i.e., "whether the parent of a seaman who died from injuries may recover under general maritime law for loss of society, and whether a claim for the seaman's lost future earnings survives his death." (15) Miles answered those issues in the negative with the famous "[w]e sail in occupied waters" opinion authored by Justice O'Connor. (16) Nonetheless, numerous courts have applied the principle of careful attention and obedience to Congress in cases even more unrelated and far apart.

Professor Robertson's article discussed two seminal Supreme Court cases that misused the Miles approach (17)--Dooley v. Korean Air Lines Co. (18) and Norfolk Shipbuilding & Drydock Corp. v. Garris (19)--while Professor Galligan's article examined multiple United States Court of Appeals cases that extended Miles beyond its scope. (20) Galligan noted that the Fifth Circuit, for example, held that "loss of society damages were not recoverable in any wrongful death action involving a seaman, even when the claim was against a third party who was not the decedent seaman's employer or the owner of the vessel on which he or she was killed." (21) The Fifth Circuit thus used Miles in "claims (against third-party tortfeasors) that were not at issue in Miles and that are not implicated in either the Jones Act or DOHSA." (22) Moreover, the Eleventh Circuit "held that the father of a minor killed in a sailboat accident in Alabama's territorial waters could not recover loss of society damages under general maritime law." (23) Still more, the Eighth Circuit held that "general maritime law does not allow loss of consortium recovery for the spouse of a non-seafarer ... injured, as opposed to killed, on the high seas.... That is, the court extended DOHSA's no-loss-of-society rule to bar recovery for loss of consortium where no death had occurred." (24) Further, in Guevara v. Maritime Overseas Corp., (25) "the [Fifth Circuit] relied on Miles to deny recovery of punitive damages in a case involving the alleged arbitrary failure to pay maintenance and cure, which was not at issue in Miles." (26)

The expansive use of Miles is not limited to the aforementioned cases, but can be found in many more unrelated cases, including: seamen's injuries; (27) estate of watercraft operator against lessor of another watercraft; (28) claim of cruise passenger; (29) action by passenger, injured when employer against third parties; (31) action by estates of seamen who drowned on high seas against shipbuilder; (32) and, action in product liability. (33) Notably, this Iong list may go on. WestLaw's KeyCite of Miles at the date of this article shows that, out of 3,148 references, only forty-one of 671 cases accord Miles negative treatment. This confirms the resilience of the Miles doctrine, despite its faulty foundations: the waters allegedly occupied and the "Vreeland gloss." (34) Thus, a quick review of Miles's foundations is in order.

PART II: THE "VREELAND GLOSS"

The Miles Court ruled that only pecuniary damages are available in a Jones Act wrongful death case by finding the same limitation in the Act's companion statute, the Federal Employees Liability Act ("FELA"). (35) The Court stated:

[T]he language of the FELA wrongful death provision is essentially identical to that of Lord Campbell's ... [which] also did not limit explicitly the "damages" to be recovered, but that Act and the many state statutes that followed it consistently, had been interpreted as providing recovery only for pecuniary loss. (36) Justice O'Connor, writing for the Court, then noted: "[t]he [Vreeland] Court so construed FELA." (37) This was, however, the Miles Court's interpretation of an assumed construction of the law by the Vreeland Court.

In Michigan Central Railroad v. Vreeland, (38) the decedent, a railroad employee, survived his injuries for several hours. (39) After the intestate's death, the intestate's personal representative brought an action, not for the employee, survived his injuries for several hours. (39) After the intestate's death, the intestate's personal representative brought an action, not for the injury suffered by his intestate, but for the loss suffered by the intestate's widow as a consequence of the intestate's wrongful death. (40) The railroad company argued that, because the injured employee survived his injuries for several hours, this operated to extinguish its liability for both the wrongful injury and ensuing death. (41) There was also an assignment in error on the jury instructions regarding the measure of damages. The lower court, after instructing the jury that it could not award damages for the grief and sorrow of the widow, or as a "balm to her feelings," instructed that it was proper to consider the husband and wife relationship to measure the worth of the husband's care and advice (had he survived) in dollars and cents. (42) The Vreeland Court found this was in error, as it "threw the door open to the widest speculation." (43) Indeed, the Vreeland Court declared "[t]he jury was no longer confined to a consideration of the financial benefits which might reasonably be expected from her husband in a pecuniary way." (44)

The issue in Vreeland was not so much whether non-pecuniary damages could be awarded under Lord Campbell's Act and its progeny; rather, it was the definition of "pecuniary damages," a definition totally absent in Lord Campbell's Act and all the statutes that followed. According to the Vreeland Court,

A pecuniary loss ... must be one which can be measured by some standard, lt is a term employed judicially.... ... [T]he word as judicially adopted is not so narrow as to exclude damages for the loss of services of the husband, wife, or child.... which can only be supplied by the service of another for Death by Wrongful Act. (47) Significantly, however, both of these authorities say more than what the Miles Court...