Contribution and Indemnity: The Quest for Uniformity

When the Tulane Admiralty Law Institute addressed maritime personal injury and death in 1981, Francis J. Gorman contributed a scholarly review of the law of contribution and indemnity. The prior decade had seen dramatic changes in the substantive rules affecting contribution and indemnity in the maritime venue. The 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) had eliminated indemnity actions by shipowners against stevedoring employers, and three Supreme Court opinions, Cooper Stevedoring Co. v. Fritz Kopke, Inc., United States v. Reliable Transfer Co., and Edmonds v. Compagnie Generale Transatlantique, had broadened and shaped the allocation of loss among joint tortfeasors. This Article will analyze the development of maritime contribution and indemnity law over the last twelve years as it affects personal injury litigation. In doing so, the Article will focus on two topics that have troubled courts and commentators and have created uncertainty regarding the resolution of future claims: (1) the extent to which the so-called Ryan warranty retains vitality in personal injury litigation; and (2) the effect of settlement by one tortfeasor on nonsettling joint tortfeasors.  


Living and Dying in the Post-Miles World: A Review of Compensatory and Punitive Damages Following Miles v. Apex Marine Corp.

This Article will review Miles, the maritime traditions from which it is drawn, and the precedent it has set. In doing so, it will be necessary to review the application of damages before and after Miles with respect to both compensatory and punitive damages. From this analysis, several conclusions are drawn. First, although Miles successfully rid the law of much of the ambiguity regarding the pecuniary nature of compensatory damages, the confusion left by its wake highlights the need for comprehensive maritime legislation. Second, although most post-Miles courts addressing the issue of punitive damages, other than in a maintenance-and-cure scenario, have denied recovery, the ground on which these courts have based their decisions is less than firm. Third, a sharp split exists in post-Miles case law on the issue of recovery of punitive damages in actions for maintenance and cure, which trumpets the need for some unifying act or event. Punitive damages should properly be limited or controlled, if not by the courts, then by legislative mandate.  


Remedies for Maritime Personal Injury and Wrongful Death in American Law: Sources and Development

This Article will attempt not only to illuminate the struggle of Congress and the courts to meet the needs of the various competing interests involved in maritime commerce but also demonstrate how this struggle has produced both brilliant and erroneous decisions, depending to some degree on the viewpoint of the beholder. This Article endeavors to provide a foundation for detailed treatment of specific areas of the law that may be found in other articles appearing in this issue and discussed at the 1993 Tulane Admiralty Law Institute.


Seaman Status in Wilander's Wake

In the Wilander Court's limited wake, three areas of seaman status law remain unsettled and continue to generate confusion and conflicting decisions in the lower courts. It is unclear what effect Wilander will have on the issues it failed to resolve. First, should seaman status extend to traditional seamen, such as pilots and divers, who spend most of their time working on numerous vessels, but have no permanent assignment to a vessel? Second, does Robison's “substantial work” alternative to “permanent assignment” survive Wilander's “employment-related connection to a vessel” requirement? Third, what is the test for determining whether a floatable structure is a Jones Act vessel?  


Modern Practice Considerations in Maritime Personal Injury Litigation: Procedural Weapons for Venue Battles

Choice of forum has probably always been an important consideration in maritime personal injury litigation. It has long been recognized that the United States is a far more advantageous forum for personal injury plaintiffs than almost any foreign forum. Moreover, in recent years, the question of whether a maritime personal injury case is tried in state or federal court has grown in importance, as plaintiffs have increasingly found advantages in state court litigation. Many state judges are elected, and the politicization of judicial selection gives at least a perceived advantage to particular lawyers and parties in particular courts. Moreover, federal district court judges tend to exercise more control in the scope of voir dire examination and the conduct of trial and are more prone to grant motions raising legal defenses than their state counterparts. Finally, there is at least the perception that state appellate courts are less likely to disturb jury findings in personal injury cases than are federal appellate courts. Accordingly, maritime practitioners devote considerable effort attempting to fix or avoid jurisdiction and venue in particular courts. This Article provides an overview of the procedural tools available to the combatants grappling with these issues.  


Problems Arising from the Intersection of Traditional Maritime Law and Aviation Death and Personal Injury Liability

On July 28, 1968, an airplane owned and operated by Executive Jet Aviation, Inc. struck a flock of gulls as it was taking off from Burke Lakefront Airport in Cleveland, Ohio. The plane lost power, crashed, and ultimately sank in the navigable waters of Lake Erie. The suit for property damage to the plane's hull eventually reached the United States Supreme Court as Executive Jet Aviation, Inc. v. City of Cleveland, which held that certain aspects of aviation liability are governed by maritime law. The United States Constitution vests the Supreme Court with exclusive power to establish the substance of admiralty and maritime law, including the rules that govern admiralty proceedings and the remedies that are available to admiralty claimants. The Judiciary Act of 1789, which created the federal courts of the United States, granted those courts exclusive original admiralty and maritime jurisdiction over all causes of action arising from navigable waters.

Prior to Executive Jet, courts determined the existence of maritime jurisdiction by applying the “locality test,” which identified the “locality of the wrong.” In acknowledging substantial criticism of a mechanical application of the locality test, the Executive Jet Court “concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases.” Therefore, despite the broad language of prior cases like The Plymouth, the Court stated: “It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty ....”

The Supreme Court thus established that maritime jurisdiction and, therefore, maritime law are applicable to aviation accidents in which the crash occurs in navigable waters and in which a significant relationship exists between the wrong and a traditional maritime activity. Once it is determined that maritime law governs the case, the issue of which maritime law to apply is raised. Traditionally, the law of admiralty, or maritime law, has been defined as “a corpus of rules, concepts, and legal practices governing certain centrally important concerns of the business of carrying goods and passengers by water.” Although admiralty law has evolved over many centuries, it “is not created in a vacuum; legislation has always served as an important source of both common law and admiralty principles.” Two important legislative changes in the general maritime law occurred in 1920 when Congress passed both the Death on the High Seas Act (DOHSA) and the Jones Act.

As the Executive Jet Court noted, “under the Death on the High Seas Act, a wrongful-death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.” Thus, general maritime law would apply to an accident involving an aircraft over navigable waters only if the flight had a traditional maritime nexus. However, DOHSA is applicable to any claim for wrongful death, even if the act giving rise to the suit had no relationship to traditional maritime activity, as long as the fatal injury occurred over the high seas.


Personal Injury and Wrongful Death Remedies for Maritime Passengers

Despite the current harsh economic climate, the cruise market has continued to expand at a rate of close to ten percent annually. A forecast recently reported in Lloyd's List International predicted that the current size of the world's cruise fleet will double before the end of the century, the number of cruise passengers will increase from over four million to ten million, and industry employment at sea will double. Cruise Industry News forecasts that, in light of market potential, cruise lines will continue to build cruise ships. By the end of the century, the North American cruise fleet could consist of 150 ships, capable of carrying seven million passengers each year with millions more waitlisted. As many industries have learned, growth brings problems. The cruise industry continues to market itself in America, where the industry sees its greatest potential. The industry has also become familiar with United States law and litigation, having come under the eye of the U.S. Congress and having taken litigation as far as the U.S. Supreme Court-no small feat for a maritime case. This Article will discuss some of the topics that are currently of interest to the cruise industry in litigating passenger claims.



The Impact of the Longshore and Harbor Workers' Compensation Act on Third Party Litigation

For several decades, the Longshore and Harbor Worker's Act (LHWCA) was a scow on the sea of maritime personal injury law. The Act lacked parity with other maritime laws and was shrouded in misconceptions. Understandably, the workings of the Act were not apparent to the general practitioner whose contact with the maritime law field is limited. In 1991, however, after a thirty-five year absence from the area of “seaman status” issues, the Supreme Court apparently extended additional parity to the LHWCA in McDermott International, Inc. v. Wilander. Although this decision has cleared up some of the confusion concerning seaman status, many misconceptions remain. The Court's action in Wilander makes an article on the LHWCA more than a mere historical review. Hopefully, this Article will dispel some of the misconceptions regarding the Act and will convey some insight into the Act to the nonadmiralty oriented general practitioner.