NOTE
Deciphering the Applicable
Substantive Law to Apply to Maritime
Wrongful Death and Personal Injury
Cases in the Wake of Yamaha Motor
Corp. v. Calhoun
I. INTRODUCTION
Consider the following events take place: vessel A is traveling in Boston Harbor, ferrying two passengers, C and D, across the harbor to Logan
Airport. In the course of the journey, vessel A is struck by vessel B and the
impact throws both passengers overboard. The end result is that passenger
C dies in the accident, while passenger D sustains serious injuries. Following this tragic event, the family of passenger C initiates a wrongful
death suit against the appropriate parties; and passenger D brings her own
lawsuit for injuries sustained in the collision.
Should the source – “federal or state – of the standards governing liability”1 differ because one person died and the other was injured? This is one
of many questions left unresolved by the United States Supreme Court in
the recently decided case Yamaha Motor Corp. v. Calhoun.2 In Yamaha,
Justice Ginsburg, writing for a unanimous Court, left open the question of
whether state law or general maritime law governs the standards of liability in a personal injury or wrongful death case that occurs under admiralty
jurisdiction.3
1.
2.
3.
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 216 n.14 (1996).
516 U.S. 199 (1996).
See id. at 216 n.14. Justice Ginsburg noted in footnote fourteen:
The Court of Appeals . . . left open, as do we, the source – federal or
state – of the standards governing liability, as distinguished from the
rules on remedies. We thus reserve for another day reconciliation of the
maritime personal injury decisions that rejected state subs tantive liability standards, and the maritime wrongful-death cases in which state law
held sway.
Id. (comparing Kermarec v. Compagnie General Transatlantique, 358 U.S. 625
(1959) (personal injury); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) (pe rsonal injury); with Hess v. United States, 361 U.S. 314 (1960) (wrongful death);
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The implication of the Court’s open-ended footnote in Yamaha is potentially troublesome to the maritime practitioner who has “operat[ed] on the
confident . . . belief that the establishment of admiralty jurisdiction over a
routine tortious occurrence on navigable waters entails the applicability of
maritime law.”4 Similarly, it is unclear from the Yamaha decision why
there is a potential difference in the applicable substantive law depending
on whether the tortious occurrence results in death or injury. This issue is
of increasing importance given the development of coastal regions in recent years, and the dramatically increasing5 number of persons injured and
killed in state territorial waters.6
The root of the problem involving tortious occurrences in territorial waters stems from the balancing of interests between federal maritime law,
and the state where the accident occurred. 7 A state has a real and substantial interest in regulating the conduct that occurs within its territorial waters when the incident involves the rights and remedies of non-seamen.8
Moreover, remedies for non-seamen injured or killed in state territorial
waters are traditionally based on state law. 9 For example, it was not until
The Tungus v. Skovgaard, 358 U.S. 588 (1959) (wrongful death)).
4. David W. Robertson, Symposium: Federalism and Uniformity in Maritime
Law: The Applicability of State Law in Maritime Cases After Yamaha Motor Corp.
v. Calhoun, 21 TUL. MAR. L. J. 81, 101 (Winter 1996) (noting that if state law controls liability standards “many maritime practitioners will be observed ner vously
checking [their] legal malpractice coverage”).
5. See id. at 1013 (“[A]s our society has developed and become more mobile .
. . coastal areas and their territorial waters have become ‘hotspots’ for vacationers
looking for sun, sand, and surf.”). In the past, most accidents in the coastal wate rways involved people who made their “living working on the seas,” as opposed to
vacationers. Id.
6. “‘State territorial waters’ refers to waters within the territorial limits of a
state, as well as ‘the coastal waters less then three nautical miles from the shore of
the state.’” John Krimmel, Recent Development: The Availability of State Causes
of Action for the Wrongful Death of Nonseamen Killed in Territorial Waters:
Yamaha Motor Corp. v. Calhoun, 75 WASH. U. L.Q. 1013, 1013 n.1 (1997) (quoting Calhoun v. Yamaha Motor Corp., 40 F. 3d 622, 624 n.1 (3d Cir. 1994)).
7. See id. at 1013-14.
8. See Yamaha, 516 U.S. at 214. The Court notes that the term “non-seaman”
refers to any person who is not covered by the Jones Act, 46 U.S.C. § 688 (1994),
“nor longshore workers covered by the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901” (1994). Id. at 205 n.5. Seamen are not generally
considered to be interests of the state given that most seamen “receive protection
for accidents that occur in territorial waters from federal statutes.” Krimmel, supra
note 6, at 1013 n.2 (citing the Jones Act and the Longshore and Harbor Workers’
Compensation Act).
9. See Krimmel, supra note 6, at 1016-17. Likewise, in areas unrelated to
wrongful death and personal injury, “[f]ederal maritime law has long accommodated the [s]tates’ interest in regulating maritime affairs within their territorial waters.” Yamaha, 516 U.S. at 215 n.13 (citations omitted). Thus, areas such as environmental and safety standards, oil and air pollution, safety inspection, and pilot-
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1970 that the Supreme Court in Moragne v. State Marine Lines10 recognized a wrongful death cause of action under general maritime law for
non-seamen.11
The Yamaha decision provides for state law-based wrongful death
claims for non-seaman killed in state territorial waters. 12 The availability
of state law claims stemming from the Yamaha decision are thought to be
an extension of the general maritime wrongful death action recognized by
the Court in Moragne.13 In allowing recovery for wrongful death claims,
the Court has implicitly followed state substantive law in maritime cases
resulting in the death of a person.14 However, the Supreme Court has not
followed state substantive law in cases resulting in personal injury rather
than death.15
This Note’s focus is on the reconciliation of the cases that follow state
substantive liability standards in maritime wrongful death cases involving
non-seamen killed in state territorial waters, with the cases that follow
general maritime law in personal injury cases involving non-seamen injured in territorial waters. Part II.A provides an overview and the historical background of maritime wrongful death and personal injury law. 16 Part
II.B introduces the landmark wrongful death cases The Tungus v. Skovgaard 17 and Hess v. United States.18 Part II.C discusses the personal inju-
age regulation have traditionally been regulated by states so long as the reg ulation
is “consistent with federal maritime principles and policies.” Id. (citations omitted).
10. 398 U.S. 375 (1970).
11. See id. at 402 (stating that “[w]here a death on state territorial waters is left
remediless by the general maritime law and by federal statutes, a remedy may be
provided under any applicable state law giving a right of action for death by
wrongful act”).
12. See Friedman v. Cunard Line Ltd., 996 F. Supp. 303, 310 (1998) (noting
that the Court in Yamaha allowed state law to govern damages).
13. See Yamaha, 516 U.S. at 213-14 (noting that Moragne is no longer the exclusive remedy for cases involving the death of non-seamen in territorial waters);
see also In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1424 (11th
Cir. 1997) (stating that “Moragne represented [the] ‘extension of relief,’ [and] did
not foreclose the availability of state law remedies in such cases”).
14. See Yamaha, 516 U.S. at 209 (“[I]n wrongful-death actions involving fatalities in territorial waters, state statutes provide [] the standard of liability as well as
the remedial regime.”).
15. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628
(1959) (holding that governing law is general maritime law, rather than New York
state law, for a non-seaman injured aboard a vessel in New York’s territorial waters); see also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953) (holding that
a maritime tort resulting in personal injury is governed by the rules of admiralty,
not Pennsylvania substantive law).
16. See infra notes 29-68 and accompanying text.
17. The Tungus v. Skovgaard, 358 U.S. 588 (1959); see also infra notes 69-88
and accompanying text.
18. Hess v. United States, 361 U.S. 314 (1960); see also infra notes 89-110 and
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ry cases Kermarec v. Compagnie Generale Transatlantique 19 and Pope &
Talbot, Inc. v. Hawn.20 Part II.D introduces the facts of Yamaha Motor
Corp. v. Calhoun,21 the most recent case where the Supreme Court did not
resolve the issue of the appropriate substantive law in wrongful death and
personal injury cases.
Part III.A examines the jurisdictional element of admiralty law, and its
relationship to the application of substantive maritime law. 22 Part III.B
takes a closer look at the substantive and remedial law applied in maritime
wrongful death cases prior to the Yamaha decision.23 Part III.C notes the
effect the Yamaha decision has had on including state law-based supplemental claims in the context of wrongful death cases. 24 Part III.D contains
the two central theories for the reconciliation of maritime wrongful death
cases applying state substantive law, and the personal injury cases applying federal law.25 Part III.E discusses lower court cases that struggled to
interpret Yamaha in the context of personal injury and wrongful death cases.26 Part III.F introduces comparative interest balancing as a solution for
determining whether to apply state or general maritime law in the context
of maritime torts.27 Finally, Part IV provides the author’s conclusions
based on the analysis.28
II. BACKGROUND
A. The Basis of the Substantive Law in Admiralty Jurisdiction
Article III, section 2 of the United States Constitution states that “[t]he
judicial [p]ower [of the United States] shall extend . . . to all [c]ases of
admiralty and maritime [j]urisdiction.”29 Moreover, in the Judiciary Act of
1789 (Judiciary Act) Congress granted the federal district courts exclusive
jurisdiction over cases arising under admiralty or maritime jurisdiction. 30
Both the Constitution’s grant of power, and the Judiciary Act have given
accompanying text.
19. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959);
see also infra notes 111-26 and accompanying text.
20. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953); see also infra notes
127-35 and accompanying text.
21. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996); see also infra notes
136-46 and accompanying text.
22. See infra notes 147-66 and accompanying text.
23. See infra notes 167-83 and accompanying text.
24. See infra notes 184-98 and accompanying text.
25. See infra notes 199-241 and accompanying text.
26. See infra notes 242-305 and accompanying text.
27. See infra notes 306-330 and accompanying text.
28. See infra notes 331-340 and accompanying text.
29. U.S. C ONST. art. III, § 2.
30. See Krimmel, supra note 6, at 1014 n.6. The Judiciary Act of 1789 is codified in 28 U.S.C. § 1333 (1994).
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the federal courts the authority “to develop a substantive body of law applicable to cases within the admiralty and maritime jurisdiction.” 31 This
body of law is referred to as general maritime law. 32 Thus, the existence of
general maritime law “belies the principle that there is no federal common
law.”33
General maritime law, however, is not the complete and exclusive
source of substantive law in every admiralty case. 34 The grant of power by
Congress in the Judiciary Act contained the infamous “saving-to-suitors”
clause.35 The saving-to-suitors clause gives a party “the right of common
law remedy, where the common law is competent to give it.” 36 The result
of the saving-to-suitors clause is that although state courts are not vested
with admiralty jurisdiction, “they do have ‘concurrent jurisdiction over
certain matters reserved to them by the ‘saving-to-suitors clause.’”37
Maritime torts, particularly those involving non-seamen, make up an area of maritime law that is filled with common law remedies. Therefore, it
is no surprise that this area creates confusion among both federal and state
courts on which law to apply to a particular set of facts. Thus, the operative question becomes in which situations does general maritime law give
way to state law-based claims resulting from events taking place on navigable waters?
1. Principles of Uniformity at the Heart of the Matter
The foundation for the development of general maritime law, and the
Supreme Court’s “federalism jurisprudence” in this field, requires the development of a uniform law. 38 This viewpoint was clearly announced in
31. THOMAS J. S CHOENBAUM , A DMIRALTY AND MARITIME LAW, § 3-1, at 95 (2d
ed.1994).
32. See id.; see also David W. Robertson, Displacement of State Law by Federal Maritime Law, 26 J. MAR. L. & COM. 325, 326-27 n.2-5 (1995) (stating that
general maritime law has been defined as an “amalgam of traditional common-law
rules, modifications of those rules, and newly created rules”).
33. S CHOENBAUM , supra note 31, at 95. Thus, Erie R.R. Co. v. Tomkins, 304
U.S. 64 (1938), which stands for the proposition that in diversity cases the federal
courts must look to state law rather then federal common law, “has no application
in admiralty.” Id. at 95 n.4.
34. See id. at 97.
35. See 28 U.S.C. § 1333(1) (1994). In part, this section reads: “The district
courts shall have original jurisdiction, exclusive of the courts of the [s]tates, of: (1)
Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases
all other remedies to which they are otherwise entitled.” Id. (emphasis added).
36. Krimmel, supra note 6, at 1014 n.6 (citation omitted). The scope of application of state law in maritime cases has been referred to as “one of the most pe rplexing issues in the law.” SCHOENBAUM , supra note 31, at 85.
37. Krimmel, supra note 6, at 1014 n.6 (quoting GARY MAYES , Maritime Torts,
in 1 MO. TORT LAW, § 15-2 (2d ed. 1988)).
38. See S CHOENBAUM , supra note 31, at 85.
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the landmark case Southern Pacific Railroad Co. v. Jensen.39 The central
issue in Jensen involved the application of a New York Workmen’s Compensation Act to a worker killed while engaged in a maritime activity. 40
The Court concluded that the application of the New York statute was unconstitutional because it “work[ed] material prejudice to the characteristic
features of the general maritime law or interfer[ed] with the proper harmony and uniformity of that law in its international and interstate relations.”41
Thus, Jensen established “the principle that general maritime law governs
maritime occurrences, and that state law must yield for the required uniformity of the maritime law.”42
Despite the strong statement on federalism set forth in Jensen, the decision does not require the application of federal common law in all admiralty-related cases.43 Thus, admiralty jurisdiction “does not result in automatic displacement of state law.”44 State law must yield to general maritime
law only when a court finds that the application of state law would make
“inroads on [the] harmonious system” of maritime law needed for such
things as the regulation of maritime commerce. 45 Therefore, state law still
has wide application in various maritime controversies that do not impli-
244 U.S. 205 (1917).
See id. at 207-08.
Id. at 216.
See SCHOENBAUM , supra note 31, at 86. It is relevant to note that the Supreme Court has subjected Jensen to extensive criticism in recent years. See Robertson, supra note 4, at 88 (citing Justice Stevens’ concurring opinion in American
Dredging Co. v. Miller, 510 U.S. 443, 458-62 (1994)); Justice Stevens, concurring,
referred to Jensen as the Lochner v. New York, 198 U.S. 45 (1905), of the maritime realm. See Robertson, supra note 4 at 88. Justice Scalia’s majority opinion in
American Dredging, indicated that the Court might have overruled Jensen if either
of the parties had asked it to do so. See id. Justice Ginsburg’s Yamaha opinion
failed to mention Jensen in the resolution of a case involving the most “significant
maritime federalism” issue in decades. See id. Thus, it is questionable how much
guidance Jensen really offers in explaining the uniformity principles central to the
development of general maritime law. See Robertson, supra note 4, at 89 (noting
that “[a]nyone who places serious reliance on any of [Jensen’s] teachings is likely
to be fooled as enlightened”).
43. See S CHOENBAUM , supra note 31, at 86.
44. Robertson, supra note 4, at 83 (citation omitted) (emphasis added).
45. Id. (citation omitted); see also Romero v. International Terminal Operating
Co., 358 U.S. 354 (1959). In Romero, the Court stated:
39.
40.
41.
42.
[T]o claim that all enforced rights pertaining to matters maritime are
rooted in federal law is a destructive oversimplification of the highly intricate interplay of the [s]tates and the [n]ational [g]overnment in their
regulation of maritime commerce. It is true that state law must yield to
the needs of a uniform federal maritime law when this Court finds i nroads on a harmonious system. But this limitation still leaves the
[s]tates a wide scope.
Id. at 373 (citations omitted).
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cate national interests.46
2. The Application of State Law to Maritime Controversies
The decision on when state law is applicable to a maritime controversy
is based on the balancing of the various state and federal interests. 47 Under
this approach, there are several theories favoring the application of state
law in maritime matters.48 The first application involves the admiralty
court “borrowing” from state law, thus incorporating state law into general
maritime law.49 This occurs because general maritime law is not a complete body of law.50 In essence, state law works to fill in the gaps that exist in general maritime law. Second, federal courts in maritime cases may
recognize state decisional or statutory law under three conditions: “(1)
where there is no applicable admiralty rule; (2) where the local and state
interests predominate; and (3) where the uniformity principle is not crucial.”51 Under this principle the application of state law will often impair
the uniformity of general maritime law “on the basis that the predominant
interest in the matter is on the state level despite the . . . maritime claim.” 52
One problem with the second application is that this doctrine can only be
applied on a case-by-case basis.53 Therefore, any such application provides little guidance for other cases outside of the particular facts of the
given situation.54
46. See Robertson, supra note 4, at 83. In essence, the body of law developed
by the Supreme Court leads to the conclusion that “[i]n the federal admiralty court,
state law is sometimes displaced by the substantive federal maritime law, but only
sometimes. Just when is a tricky question [this] Court has never really attempted
to answer.” Id; see also Romero, 358 U.S. at 373 (providing examples of activities
which do not implicate national interests such as: “[s]tate rules for the partition and
sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of
maritime insurance”).
47. See S CHOENBAUM , supra note 31, at 87; see also Kossick v. United Fruit
Co., 365 U.S. 731, 739 (1961) (referring to the balancing of federal and state interests in maritime cases as being “analogous to the normal conflict of laws situation
where two sovereignties assert divergent interests in a transaction as to which both
have some concern”).
48. See S CHOENBAUM , supra note 31, at 87.
49. See id. at 88 (citing Hebert v. Outboard Marine Corp., 638 F. Supp. 1166
(E.D.La. 1986) (holding that maritime law may adopt state law)).
50. See id. at 88 (noting that “much of maritime tort law is borrowed from
state law”).
51. Id. at 88. This doctrine allowing the application of state law is called the
“maritime but local” doctrine. See id. at 89; see also Western Fuel Co. v. Garcia,
257 U.S. 233 (1921) (allowing the application of state law in a case concernin g the
death of a longshore worker).
52. S CHOENBAUM , supra note 31, at 89.
53. See id.
54. See id.
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A third scenario in which state law will be applied is “if the applicable
admiralty law is not a pervasive system and the state law or rule supplements but does not contradict the admiralty rule.” 55 This is the application
relied upon by the Supreme Court in Yamaha, applying state law to the
facts of the case.56
B. The History of Wrongful Death Claims in Admiralty Law
In order to understand the application of wrongful death and personal injury actions as applied to non-seamen, it is necessary to provide some
background as to the statutory and common law scheme established to
address cases of both seamen and longshoremen.
1. Traditional Theories of Wrongful Death in Admiralty
Any review of the history of maritime wrongful death claims must begin
with The Harrisburg.57 In The Harrisburg, the Supreme Court established
the rule that general maritime law did not afford a cause of action for
wrongful death.58 The harshness of The Harrisburg rule was reduced by
the fact that courts allowed recovery under state wrongful death statutes. 59
55. Id. at 90; see also Pacific Merchant Shipping Association v. Aubry, 918
F.2d 1409 (9th Cir. 1990). In Pacific Merchant, the court established the following
test:
Our review of the relevant case authority leads us to conclude that the
general rule on preemption in admiralty is that states may supplement
federal admiralty law as applied to matters of local concern, so long as
state law does not actually conflict with federal law or interfere with the
uniform working of the maritime legal system.
Pacific Merchant, 918 F.2d at 1422.
56. See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 207 (1996) (citing
Western Fuel Co. v. Garcia, 257 U.S. 233, 242 n.5 (1921) (noting that the use of
state wrongful death statutes for deaths which occur in state territorial waters su pplement the general maritime law, and do not in any way prejudice the characteri stic features of the general maritime law)).
57. 119 U.S. 199 (1886); see also Yamaha, 516 U.S. at 206; Moragne v. States
Marine Lines, 398 U.S. 375 (1970); The Tungus v. Skovgaard, 358 U.S. 588, 590
(1959) (starting their analyses of maritime wrongful death actions with The Harrisburg).
58. See The Harrisburg, 119 U.S. at 199. The holding in The Harrisburg
stemmed from the common law belief in the United States, based on the English
common law, that the law did not allow recovery for injuries resulting in death. See
Yamaha, 516 U.S. at 206.
59. See Yamaha, 516 U.S. at 206-07 (citing The Hamilton, 207 U.S. 398
(1907)); see also Western Fuel, 257 U.S. at 233 (holding that California’s wrongful
death statute governed a suit brought by the widow of a maritime worker killed in
that state’s territorial waters). In Western Fuel, the Court dealt with the issue of
whether allowing state law based claims would be inconsistent with federal mar itime law, when it stated:
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However, the compatibility of state law based wrongful death claims and
federal maritime based claims grew apart as the doctrine of unseaworthiness introduced strict liability into general maritime wrongful death suits. 60
This occurred as a result of the Supreme Court decision in The Tungus61
holding that “when admiralty adopts a [s]tate’s right of action for wrongful
death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating [s]tate has attached.” 62 Thus, if a seafarer died in state territorial waters, and thereafter a representative brought
suit under the state wrongful death statute, in all likelihood that person
would be precluded from the generous liability standard that the unseaworthiness doctrine provides.63
The Court’s decision in Moragne trumped The Harrisbug decision.64
The subject is maritime and local in character and the specified modif ication of or supplement to the rule applied in admiralty courts . . . will
not work material prejudice to the characteristic features of general maritime law, nor interfere with the proper harmony and uniformity of that
law in its international and interstate relations.
Western Fuel, 257 U.S. at 242.
60. See Yamaha, 516 U.S. at 207-08. The unseaworthiness doctrine “expanded
a shipowner’s liability to injured seamen by imposing a nondelegable duty ‘to fu rnish a vessel and appurtenances reasonably fit for their intended use.’” Id. at 208
(quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960)). The Supreme
Court further held that the duty is absolute. See id. The “failure to supply a safe
ship result[s] in liability ‘irrespective of fault and irrespective of the inte rvening
negligence of crew members.’” Id. (quoting Miles v. Apex Marine Corp., 498 U.S.
19, 25 (1990)). Because it is easier to recover under a strict liability standard as
opposed to a negligence standard, “the unseaworthiness doctrine . . . soon eclipse d
ordinary negligence as the primary basis of recovery when a seafarer was injured or
killed.” Id. It is relevant to note that the unseaworthiness doctrine is inapplicable
to passengers and guests aboard a vessel (non-seamen). See SCHOENBAUM , supra
note 31, at 143. Thus, the doctrine could not be relied upon as a standard of liabi lity by the parties mentioned in the hypothetical at the beginning of this Note. See
supra Part I.
61. 358 U.S. 588 (1959).
62. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 209 (1996) (quoting The
Tungus v. Skovgaard, 358 U.S. 588, 592 (1959)).
63. See id. The preclusion stems from the fact that the unseaworthiness do ctrine is not recognized in most state wrongful death statutes. For example, in
Moragne v. State Lines Inc., 398 U.S. 375 (1970), the widow of a longshore worker
brought a wrongful death suit under the Florida statute alleging both unseaworth iness and negligence. See id. at 377. Because Florida’s wrongful death statute did
not encompass unseaworthiness as a basis for liability, the lower courts dismissed
the unseaworthiness claim. See id; see also infra notes 64-68 and accompanying
text.
64. See Moragne, 398 U.S. at 409 (holding that “an action does lie under general maritime law for death caused by a violation of maritime duties”). The
Moragne Court noted that “The Tungus had led to considerable uncertainty over the
role state law should play in remedying deaths in territorial waters . . . .” Yamaha,
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The Moragne Court established a general maritime wrongful death action,65 which indicates that a representative of a seaman killed in state territorial waters need not rely on state wrongful death statutes. 66 Moreover,
many lower court decisions have held that the Moragne wrongful death
action extends to non-seafarers as well.67 However, the Moragne Court
realized its decision created a number of inconsistencies. 68 Of principle
relevance to this Note is the discrepancy in result if a person is injured
rather than killed within state territorial waters.
2. The Tungus v. Skovgaard Decision: A Wrongful Death Action
Relying on State Substantive Law as the Standard of Liability
Carl Skovgaard was a maintenance worker for El Dorado Oil Works, a
company engaged by a consignee to handle the discharge of cargo from a
vessel—The Tungus.69 The cargo consisted of large amounts of coconut oil
stored in the ships deep tanks.70 Shortly after midnight on December 5,
1952, Skovgaard was called to the vessel to assist in cleanup efforts of
coconut oil, which had spilled as a result of a defective pumping system. 71
Upon arriving at the vessel, Skovgaard boarded the ship and proceeded to
an area that had not yet been cleared of the oil. 72 Subsequently, while attempting to cross a hatch beam over an uncovered tank of oil, he “slipped
and fell to his death in eight feet of hot oil.” 73
Skovgaard’s widow brought suit in admiralty to recover damages for his
death.74 She alleged that the shipowner had failed to furnish a seaworthy
vessel and that the shipowner was negligent in not providing the decedent
516 U.S. at 209. However, Moragne ultimately focused on the unsoundness of The
Harrisburg, rather than The Tungus. See Yamaha, 516 U.S. at 209.
65. See id.
66. See Moragne, 398 U.S. at 409.
67. See, e.g., Sutton v. Earles, 26 F.3d 903 (9th Cir. 1994) (recreational boater);
Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993) (jet skier);
see also Yamaha, 516 U.S. at 210 n.7 (assuming the correctness of lower court
decisions extending Moragne to non-seafarers); Robert Force, Post-Calhoun Remedies for Death and Injury in Maritime Cases: Uniformity, Whither Goest Thou?,
TUL. M AR. L.J. 7, 22 (1996) (noting that “it is fair to conclude that the general
maritime law provides a wrongful death action for beneficiaries of any person,
regardless of status, killed by a tortfeasor in state territorial waters, assuming the
plaintiff-beneficiary can meet the nexus prong of the test for admiralty jurisdiction”).
68. See Moragne, 398 U.S. at 395 (noting seamen could recover less than nonseamen for deaths within the state territorial waters).
69. See The Tungus v. Skovgaard, 358 U.S. 588, 589 (1959).
70. See id.
71. See id.
72. See id.
73. Id.
74. See id. at 589.
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with a reasonably safe place to work.75 The district court held that a
wrongful death suit for unseaworthiness “would not lie.” 76 The court of
appeals reversed, holding that the New Jersey Wrongful Death Act embraces a claim for unseaworthiness.77 Thus, the primary issue of the case
was “whether the New Jersey statute giving a right of action where death is
caused ‘by a wrongful act, neglect or default’ is broad enough to encompass an action for the death caused by the unseaworthiness of a vessel.”78
The widow in The Tungus sought either of two possible conclusions regarding the New Jersey wrongful death statute. 79 First, she hoped the Supreme Court would uphold the interpretation of the New Jersey statute
made by the court of appeals.80 Alternatively, she advanced the much
broader argument that “a court in a case such as this may disregard completely the conditions which the state has put upon the right it has created,
and may apply instead the full corpus of the maritime law, free from any
qualifications imposed by the state.” 81 According to the Court, if this were
true, a plaintiff in a claim for the wrongful death to a non-seamen in state
territorial waters need only find that a state wrongful death statute exists.82
The plaintiff would then be able to fill in any void in that statute with the
principles of general maritime law.83
This argument was rejected by the Supreme Court, 84 which stated that
when a court sitting in admiralty adopts state law, that court must apply the
75. See The Tungus v. Skovgaard, 358 U.S. 588, 589-90 (1959).
76. The Tungus v. Skovgaard, 171 F. Supp. 653 (1956) (the doctrine of unsea-
worthiness was not recognized under the state wrongful death statute).
77. See id. In The Tungus, the issue of whether the doctrine of unseaworthiness
existed under state law was critical because at the time there was not a recognized
general wrongful death action for non-seamen under general maritime law. See
supra notes 60-63 and accompanying text. This changed with the Court’s holding
in Moragne. See supra notes 64-68 and accompanying text.
78. The Tungus, 358 U.S. at 591. The New Jersey wrongful death statute reads
as follows:
When the death of a person is caused by a wrongful act, neglect or d efault, such as would, if the death had not ensued, have entitled the pe rson injured to maintain an action for damages resulting from the injury,
the person who would have been liable in damages for the injury if death
had not ensued shall be liable in an action for damages, notwithstanding
the death of the person injured and although the death was caused under
circumstances amounting in law to a crime.
N.J. STAT. ANN. § 2A: 31-1 (West 1996).
79. See The Tungus v. Skovgaard, 358 U.S. 588, 91-92 (1959).
80. See id. at 591; see also supra note 77 and accompanying text.
81. The Tungus, 358 U.S. at 591-92.
82. See id. at 592.
83. See id.
84. See id.
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state law as a whole.85 It cannot pick and choose between state law and
general maritime law.86 When a state legislature adopts a wrongful death
statute, its policy presumably is that “damages shall be recoverable when
conduct of a particular kind results in death.” 87 Therefore, according to the
Supreme Court in The Tungus, the state policy must be enforced in
whole.88
3. The Hess v. United States Decision: A Second Statement by the
Supreme Court Where State Substantive Law Held Sway
In Hess v. United States,89 an action was instituted against the United
States under the Federal Tort Claims Act 90 to recover damages for the
death of George Graham.91 Graham drowned in the Columbia River during the course of his employment as a carpenter foreman for an independent contractor hired to perform repairs on a dam owned and operated by
the United States.92 Graham drowned when the tug he was aboard capsized in turbulent waters near the spillway gates of the dam. 93 The theory
of the complaint was that Graham’s death was proximately caused by the
failure of the dam’s operating personnel to close enough spillway gates so
as to ensure the safety of the tug. 94 Liability was asserted under Oregon’s
general wrongful death statute95 and another state statute, the Employers’
See id.
See The Tungus v. Skovgaard, 358 U.S. 588, 593 (1959); see also Garrett v.
Moore-McCormack Co., 317 U.S. 239, 245 (1943) (holding that “admiralty courts,
when invoked to protect rights rooted in state law, endeavor to determine the issues
in accordance with the substantive law of the state”).
87. The Tungus, 358 U.S. at 593 (quoting The Harrisburg, 119 U.S. 199, 214
(1856)). In The Harrisburg, the Court noted:
85.
86.
[I]f the admiralty adopts the statute as a rule of right to be administered
within its own jurisdiction, it must take the right subject to the limit ations which have been made a part of its existence . . . . The liability
and the remedy are created by the same statutes, and the limitations of
the remedy are therefore to be treated as limitations of the right.
The Harrisburg, 119 U.S. at 214.
88. See The Tungus, 358 U.S. at 594 (noting that “it would be an anomaly to
hold that a [s]tate may create a right of action for death, but it may not determine
the circumstances under which that right exists”).
89.
361 U.S. 314 (1960).
90. 28 U.S.C. §§ 1346(b), 2674 (1994).
91. Hess, 361 U.S. at 314.
92. See id.
93. See id. at 315.
94. See id.
95. See Hess v. United States, 361 U.S. 314, 315 (1960). The Oregon statute
states in relevant part:
When the death of a person is caused by the wrongful act or omission of
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Liability Law.96
The district court ruled that since Graham’s death occurred on navigable
waters, the decision would be based on general maritime law, which would
apply the Oregon wrongful death statute. 97 The district court concluded
that the United States had not acted negligently so as to trigger the liability
threshold in the Oregon wrongful death statute. 98 Moreover, the lower
court concluded that the Employers’ Liability Act was not applicable “for
the reason that the [g]overnment was not responsible for the work there
being performed, and for the further reason that the high standard of care
required under the Act, if applied . . . would be unconstitutional.” 99 However, the Supreme Court, relying on The Tungus, reversed.100
First, the Supreme Court as it had in The Tungus, stated that when an action for wrongful death stems from conduct that occurs in state territorial
waters, liability is measured under the substantive standards of state law. 101
another, the personal representative of the decedent, for the benefit of
the decendent’s surviving spouse [and dependents, and in the case where
there is no surviving spouse or dependants, then for the benefit of the estate of the decedent], may maintain an action against the wrongdoer, if
the decedent might have maintained an action, had the decendent lived,
against the wrongdoer for an injury done b y the same act or omission.
The action shall be commenced within three years after the injury cau sing the death of the decendent . . . .
OR. REV. STAT. § 30.020 (1997).
96. See OR . R EV. S TAT. § 654.305 (1997); see also Hess, 361 U.S. at 315. The
road to recovery under the Employers’ Liability Law is considerably easier than
under the Oregon wrongful death statute. See id. at 315-16. Whereas the Oregon
wrongful death statute limits damages to $20,000, makes contributory negligence
an absolute bar to recovery, and has a liability standard necessitating the wrongful
act of another, the Employers’ Liability Law had no cap on recovery, limited the
effect of contributory negligence only towards mitigation of damages, and pre mised liability on a strict liability standard. See id. Under the statute, the defendant
is liable “for failure to ‘use every device, care and precaution which [is] practicable
. . . .’” Id. (quoting OR. REV. STAT. § 654.305 (1997)).
97. See Hess, 361 U.S. at 317.
98. See id.
99. See Hess, 361 U.S. at 317; see also infra note 100 and accompanying text.
100. See Hess v. United States, 361 U.S. 314, 318-21 (1960).
101. See id. at 319; see supra note 33; see also United Pilots Assn. v. Halecki,
358 U.S. 613, 618 (1959). The Court reiterated its contention from The Tungus
that:
[T]he policy expressed by a [s]tate [l]egislature in enacting a wrongful
death statute is not merely that death shall give rise to a right of reco very, nor even that tortious conduct resulting in death sh all be actionable,
but that damages shall be recoverable when conduct of a particular kind
results in death. It is incumbent upon a court enforcing that policy to
enforce it all . . . .
Hess, 361 U.S. at 320 (quoting The Tungus v. Skovgaard, 358 U.S. 588, 593
(1959)).
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According to the majority, had this wrongful death case not been based on
maritime law, Oregon’s Employers’ Liability Act would have clearly applied.102 Because the Court believed that admiralty courts must decide this
issue under state substantive law, it held that there was no constitutional
issue present.103 Thus, the Court held that the right of action invoked under the Employers’ Liability Act was valid. 104
In his dissenting opinion, Justice Harlan argued that to allow state law to
control the substantive law in wrongful death cases brought under state
wrongful death statutes would seriously intrude on the uniformity concerns
so prevalent in admiralty law.105 Justice Harlan was particularly concerned
that allowing state substantive law into maritime cases could enlarge substantive rights not otherwise recognized under that body of law. 106 For
example, in Hess the Oregon Employers’ Liability Law would impose a
stricter standard of duty than that existed under general maritime law. 107
“Under [general] maritime law the basis of liability in cases like this is the
failure to use reasonable care in light of the attendant circumstances, that
is, negligence.”108 Under the Oregon statute, the duty imposed would be to
use “every device, care and precaution which it is practicable to use for the
protection and safety of life and limb . . . .” 109 This would inevitably subject the party being sued to a higher standard of care than exists under gen-
See Hess, 361 U.S. at 320.
See id. The Court noted: “we find no constitutional impediment to the application, by the maritime law, of Oregon’s Employers’ Liability Law to the death
action in which the statute would otherwise by its terms apply.” Id. Moreover, the
Court also noted that “in an action for wrongful death in state territorial waters the
conduct said to give rise to liability is to be measured not under admiralty’s sta ndards of duty, but under the substantive standards of state law.” Id. at 319 (citing
United Pilots Assn. v. Halecki, 358 U.S. 613, 615 (1959)); see also supra notes 8488 and accompanying text. The Court left open the question of whether a state
wrongful death statute “might contain provisions so offensive to traditional principles of maritime law that admiralty would decline to enforce them.” Hess v. United States, 361 U.S. 314, 320 (1960).
104. See id. at 321. The Court did not reach the issue of whether the United
States actually violated the standard of care required by the Act; rather it left the
question open for the lower court to decide on remand. See id.
105. See id. at 322-26 (Harlan, J., dissenting).
106. See id. at 322 n.1 (Harlan, J., dissenting). In his dissent, Justice Harlan
placed a great deal of emphasis on both the Kermarec and Pope & Talbot cases,
which were decided prior to Hess. See Hess, 361 U.S. at 327; see infra Part II.C,
Justice Harlan argued that the supremacy principles established in Kermarec and
Pope & Talbot should not have been “shrugged off as a discredited relic of an earlier day.” Hess, 361 U.S. at 328.
107. See id. at 323 (Harlan, J., dissenting).
108. Id. at 323 (Harlan, J., dissenting); see also Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959).
109. Hess v. United States, 361 U.S. 314, 323 (Harlan, J., dissenting).
102.
103.
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eral maritime law.110
C. The Substantive Law of Maritime Personal Injury
1. Kermarec v. Compagnie Generale Transatlantique: A Strong
Statement for General Maritime Law as the Applicable Substantive
Law in a Personal Injury Case
On November 24, 1948, the S.S. Oregon was berthed at a pier in New
York City.111 Joseph Kermarec, a non-seaman, boarded the vessel that
afternoon to make a social visit with a member of the ship’s crew. 112
When attempting to leave the vessel several hours later, Kermarec fell
while descending a stairway, leaving him seriously injured. 113 Kermarec
brought suit against the vessel owner alleging both that the ship was unseaworthy and that the crew was negligent. 114 At the district court level,
the judge dismissed the unseaworthiness claim based on the theory that the
substantive law of New York was applicable. 115 The court of appeals affirmed the lower courts decision.116 Certiorari was granted, and the Supreme Court ruled that because the conduct occurred aboard a ship on navigable waters, “[t]he legal rights and liabilities arising from [the] conduct
were . . . within the full reach of admiralty jurisdiction and measurable by
the standards of maritime law.”117 The Court also noted that if the action
had been brought in a state court, that court would have to look to admiralty law as the substantive law to apply to the case. 118
110.
111.
See id. at 324.
See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 626
(1959).
See id.
See id.
See id. at 627.
See id. Under the substantive law of New York, Kermarec could recover
“only if the defendant had failed to warn him of a dangerous condition within its
actual knowledge, and only if Kermarec himself had been entirely free of co ntributory negligence.” Id. Thus, as opposed to the generous availability of recovery
under the strict liability standard of the unseaworthiness doctrine, under New York
law, Kermarec had to prove his injuries “were the proximate result of the defe ndant’s negligence” and the plaintiff’s own contributory negligence, “even in the
slightest degree” would bar recovery. Id. at 627 n.2. Under the general maritime
law, Kermarec’s contributory negligence would only be considered to mitigate
damages, as opposed to acting as a complete bar for recovery. See id at 629. (citing The Max Morris v. Curry, 137 U.S. 1 (1890)); see also, e.g., DuBose v. Matson
Navigation Co., 403 F.2d 875 (9th Cir. 1968) (holding that contributory negligence
does not bar recovery in admiralty).
116. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628
(1959).
117. Id.
118. See id.; see also infra note 153 and accompanying text (referring to the
reverse-Erie doctrine).
112.
113.
114.
115.
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The Court held that the appropriate substantive law to apply to Kermarec’s claim was the “principle of maritime law that a shipowner owes
the duty of exercising reasonable care towards those lawfully aboard the
vessel who are not members of the crew.” 119 Moreover, under maritime
law Kermarec’s own negligence should not be considered as a bar on the
defendant’s liability.120 Under New York law, a distinction would be made
between an invitee and a licensee as to the level of care owed by the ship
owner to a guest such as Kermarec.121 The New York law distinguishing
between an invitee and a licensee stemmed from common law concepts. 122
The ultimate issue for the Court in Kermarec was whether this distinction
existed as part of general maritime law.123 The Court concluded that “[f]or
the admiralty law . . . to import such conceptual distinctions would be foreign to its traditions of simplicity and practicability.”124
Thus, the ship owner owes the same duty of care to all who board the
vessel.125 This result is consistent with one of the ultimate guiding principles of admiralty law – uniformity.126
2. Pope & Talbot, Inc. v. Hawn: The Supreme Court Again Looks to
the General Maritime Law for the Substantive Standards in a
Personal Injury Case
In Pope & Talbot, Inc. v. Hawn,127 the plaintiff, Charles Hawn, was a
carpenter employed by an independent contractor. 128 He sustained serious
injuries when he slipped and fell through an uncovered hatch hole while
working onboard a vessel.129 Hawn brought suit in the U.S. District Court
119. Kermarec, 358 U.S. at 630. Kermarec was not aboard the ship to perform
any work. Rather, his presence was based on a social visit. See id. at 629. It is
relevant to note that the unseaworthiness issue was mooted in this case because
under general maritime law the doctrine only extends to those persons classified as
seamen. See id. at 630; see also Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946);
Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944).
120. See Kermarec, 358 U.S. at 629. It was therefore a prejudicial error for the
district court judge to instruct the jury as to contributory negligence. See id.
121. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 31 (1959).
122. See id.
123. See id.
124. Id. at 631.
125. See Kermarec, 358 U.S. at 630.
126. See Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917) (holding that
state law must yield if it “works material prejudice to the characteristic features of
the general maritime law or interferes with the proper harmony and uniformity of
that law”).
127. 346 U.S. 406 (1953).
128. See Pope & Talbot, 346 U.S. at 407.
129. See id. At the time of injury the vessel was berthed in a port located in the
Pennsylvania waters of the Delaware River. See id. It is also relevant to note that
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for the District of Pennsylvania to recover damages for the injuries he sustained.130 His complaint alleged two grounds for recovery: (1) that the
vessel was unseaworthy; and (2) that the vessel’s owner, Pope & Talbot,
were negligent.131 In its answer to the complaint, Pope & Talbot alleged
that Hawn’s own negligence contributed to the injury. 132 Under Pennsylvania law, any contributory negligence on the part of the plaintiff would be
a complete bar to recovery.133
Similar to its holding in Kermarec, the Court held that injuries occurring
while on navigable waters will not be governed by state substantive law
when the basis of action is a maritime tort. Rather, they are the “type of
action which the Constitution has placed under national power to control in
‘its substantive as well as its procedural features . . . .’” 134 The Court noted
that “[e]ven if Hawn were seeking to enforce a state created remedy for
this right, federal maritime law would be controlling.” 135
D. Yamaha Motor Corp. v. Calhoun: The Supreme Court’s Most Recent
Foray into the Resolution of State and Federal Interests in Maritime
Law
In Yamaha Motor Corp. v. Calhoun,136 twelve-year-old Natalie Calhoun
was killed while on vacation with her family in Puerto Rico when the
“WaveJammer” jet-ski she was riding slammed into an anchored vessel in
Puerto Rico’s territorial waters.137 Her parents brought a wrongful death
suit against the manufacturer of the jet-ski, Yamaha Motor Corp., alleging
the facts of this case are substantially similar to those in The Tungus. See supra
Part II.B.2. The major distinction between the two cases is that in The Tungus,
Skovgaard died, whereas in this case the fall resulted in Hawn suffering serious
injuries. See id.
130. See Pope & Talbot, 346 U.S. at 407.
131. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 407 (1953).
132. See id. In addition, Pope & Talbot sought to join Hawn’s employer, Haenn,
in the suit as a third-party defendant. See id. The jury verdict ultimately entered
judgment against Haenn for contribution; however, the Court of Appeals reversed
this decision. See id. at 408.
133. See Pope & Talbot, 346 U.S. at 409. The Pennsylvania rule as to the plaintiff’s own contributory negligence acting as a bar to recovery raises the same issues
that were present in the Kermarec case. See supra note 115.
134. Pope & Talbot, 346 U.S. at 409 (quoting Panama Railroad Co. v. Johnson,
264 U.S. 375, 386 (1924)).
135. Id. The Court went on to add that “[w]hile states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial
admiralty rights as defined in controlling acts of Congress or by interpretive dec isions of [the] Court.” Id. at 410 (citing Garrett v. Moore-McCormick Co., 317
U.S. 239, 243-46 (1942)).
136. 516 U.S. 199 (1996).
137. See Yamaha, 516 U.S. at 201.
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that the product was defectively manufactured. 138 The Court noted the
often-repeated phrase “with admiralty jurisdiction . . . comes the application of substantive admiralty law.” 139 Yet, the exercise of admiralty jurisdiction “does not result in the automatic displacement of state law.” 140 The
Court framed the issue as whether the Moragne141 decision, which created
a general maritime wrongful death action, should be interpreted to prevent
the application of state law in wrongful death cases brought under state
wrongful death statutes.142
According to the Court, “[t]he federal cast of admiralty law . . . means
that ‘state law must yield to the needs of a uniform federal maritime law
when [the] Court finds inroads on a harmonious system . . . .’” 143 The difficulty for the Supreme Court was that the admiralty case law had not delineated a clear picture of when the harmonious system is threatened. 144
138. See id. at 202. The Court reasoned that because the case involved “a wate rcraft collision on navigable waters it falls within admiralty’s domain,” even though
the real issues were related to products liability. Id. at 206 (citing Sisson v. Rudy,
497 U.S. 358, 361-67 (1990) (holding that a dockside fire falls under admiralty
jurisdiction)); see also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677 (1982)
(collision between two boats, neither of which had been engaged in commercial
maritime activity, and where the site of the accident seldom, if ever, was used for
commercial activity, was within admiralty jurisdiction); see also infra Part III.A. It
is relevant to note that even had there been no admiralt y jurisdiction there would be
no effect on the disposition of the case. See Calhoun v. Yamaha Motor Corp., 40
F.3d 622, 627 (3d Cir. 1994). The United States Court of Appeals for the Third
Circuit noted that “[e]ven if this were solely a diversity case or the parties were in
state court, a federal maritime rule of decision applicable to the controversy would
still displace a state rule that was in conflict.” Id. (citing Erie R.R. Co. v. Tomkins,
304 U.S. 64 (1938); Offshore Logistics, Inc., v. Tallentire, 477 U.S. 207, 223
(1986)) (noting the existence of the reverse-Erie doctrine).
139. Yamaha, 516 U.S. at 206 (citing East River S.S. Corp. v. Transamerica
Delaval Inc., 476 U.S. 858, 864 (1986)).
140. Id. (citing Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 545 (1995)).
141. 398 U.S. 375 (1970).
142. See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996). If the
Court concluded that the Moragne decision did stop the practice of applying state
substantive law, a court would look to general federal maritime law for the substantive law, when faced with a case similar to Yamaha and would apply that law
to the remedy set forth under the state statute. See In re Amtrak “Sunset Limited”
Train Crash, 121 F.3d 1421, 1425 (11th Cir. 1997).
143. Yamaha, 516 U.S. at 210 n.8 (quoting Romero v. International Operating
Co., 358 U.S. 354, 373 (1959)).
144. See id. The Court acknowledged that “it would be idle to pretend that the
line separating permissible from impermissible state regulation is readily discernible in . . . admiralty jurisprudence.” Id. (citing American Dredging Co. v. Miller,
510 U.S. 443, 452 (1994)). Thus, the Court noted that with its decision in Yamaha,
it “attempt[ed] no grand synthesis or reconciliation of [its] precedent . . . but confine[d] [its] inquiry to the modest question whether it was Moragne’s design to
terminate the recourse to state remedies when nonseafarers meet death in territorial
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However, the Court believed it was clear that the Moragne decision did
nothing to detract from the state law-based rights of non-seafarers killed in
territorial waters.145 Yamaha, thus preserves the application of state statutes to deaths within territorial waters. 146
III. ANALYSIS
A. Admiralty Jurisdiction Over the Subject Matter of the Case: Does
Federal Maritime Law Always Apply?
In the contemplation of a given admiralty case, such as the hypothetical
fact pattern presented at the beginning of this Note, 147 the first opportunity
for choice-of-law issues to arise is at the jurisdictional stage of the analysis.148 The basis of choice-of-law confusion stems from the “frequently
proclaimed truism” that with admiralty jurisdiction149 “comes the applica-
waters.” Id.
145. See Yamaha, 516 U.S. at 214. The Court followed the reasoning of the
Third Circuit:
Moragne . . . showed no hostility to concurrent application of state
wrongful death statutes. Indeed, to read into Moragne the idea that it
was placing a ceiling on recovery for wrongful death, rather than a floor,
is somewhat ahistorical. The Moragne cause of action was in many respects a gap-filling measure to ensure that seamen (and their survivors)
would all be treated alike. The ‘humane and liberal’ purpose underlying
the general maritime remedy of Moragne was driven by the idea that
survivors of seamen killed in state territorial waters should not have
been barred from recovery simply because the tort system of the pa rticular state in which a seaman died did not incorporate special maritime
doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply a re medy.
Id. (quoting Calhoun v. Yamaha Motor Corp., 40 F.3d 622, 641-42 (3d Cir. 1994)).
146. See Yamaha, 516 U.S. at 216. The sole focus of the Court’s decision in
Yamaha was on the availability of damages under state law. See id.
147. See supra Part I.
148. See Joseph F. Smith, Jr., Choice of Law Analysis: The Solution to the Admiralty Jurisdictional Dilemma, 14 TUL. MAR. L.J. 1 (1989).
149. To invoke admiralty tort jurisdiction an incident must: (1) have occurred
on navigable waters; and (2) bear a substantial relationship to traditional maritime
tort activity. See SCHOENBAUM , supra note 31, at 25. Whether an event is determined to have occurred on navigable waters is often referred to as “the locality
test.” Id. Generally, the locality test requires that the tort involve the presence of a
vessel on navigable waters. See id. However, if the tort occurs on a structure that
is fixed to either the shore, or the bottom of the ocean, there is no admiralty juri sdiction, even though the tort technically occurs on the navigable waters. See id.;
see also, e.g., Cope v. Vallete Dry-Dock Co., 119 U.S. 625 (1887) ( holding that a
dry dock attached to the shore is not within admiralty jurisdiction because it cannot
travel, and has no movable power on its own). Similarly, if the tort occurs on a
vessel which at the time is not within navigable waters, there can be no admiralty
jurisdiction. See SCHOENBAUM , supra note 31, at 25.
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tion of substantive admiralty law.”150 Thus, there is a “presuppos[ed] connection between invoking admiralty jurisdiction and applying admiralty
law.”151 However, “this connection has been eroded by the modern view
of the ‘savings-to-suitors’ clause.”152 “According to the modern view of
the savings-to-suitors clause, the same substantive law is applied to the
case regardless of the forum chosen by the plaintiff.” 153 For example, if a
The second prong of the jurisdictional test is satisfied if the “general chara cter of the activity giving rise to the incident bear[s] a substantial relationship to
traditional maritime activity.” Blome v. Aerospatiale Helicopter Corp., 924 F.
Supp. 805, 808 (S.D. Tex. 1996) (citing Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 527 (1995)). Blome involved a helicopter crash
in the Gulf of Mexico. See id. at 808. The court held that the nexus for a maritime
tort activity was satisfied because “by transporting a Coast Guard inspector from
shore to a vessel, the helicopter was performing an activity traditionally performed
by vessels.” Id. at 809; see also Offshore Logistics v. Tallentire, 477 U.S. 207,
218-19 (1986) (holding that admiralty jurisdiction was properly invoked in a hel icopter crash “because the accident occurred on the high seas and in furtherance of
an activity bearing a significant relationship to a traditional maritime activity. The
helicopter was engaged in a function traditionally performed by waterborne ve ssels: the ferrying of passengers from an ‘island,’ albeit an artificial one, to the
shore”). The Supreme Court in Foremost Insurance Co. v. Richardson, 457 U.S.
668 (1982), established that the negligent operation of a pleasure boat, “has a suff icient nexus to traditional maritime activity to sustain admiralty jurisdiction.” Id. at
674. It follows that most activities involving passengers on vessels, or other pe rsons injured or killed within navigable waters, in some way related to a vessel, will
satisfy the nexus requirement. See SCHOENBAUM , supra note 31, at 28-30.
In deciding if a certain set of facts meets the nexus requirement, lower
courts follow a balancing process, weighing each of the following factors: “(1) the
functions and roles of the parties, (2) the types of vehicles and instrumentalities
involved, (3) the causation and the type of injury, and (4) traditional concepts of
the rule of admiralty law.” Id. at 31. Moreover, the Fifth Circuit has included
three other factors into the nexus test: “(1) the impact of the event on maritime
shipping and commerce; (2) the desirability of a uniform national rule to apply to
such matters; and (3) the need for admiralty ‘expertise’ in the trial and decision of
the case.” Id. (citing Molett v. Penrod Drilling Co., 826 F.2d 1419, 1426 (5th Cir.
1987)). By doing so, the primary function of the nexus test is served: “to deny a dmiralty jurisdiction over occurrences that occu r on navigable waters but lack maritime flavor.” See SCHOENBAUM , supra note 31, at 31 (citing the following cases
which denied admiralty jurisdiction: Hall v. Zambelli, 675 F. Supp. 1023
(S.D.W.Va. 1988) (personal injury due to a fireworks accident aboard a barge);
Strother v. Brent Lynn Corp., 671 F. Supp. 1118 (W.D.La. 1987) (worker injured
on amphibious vehicle in inland marsh); Duplechin v. Professional Ass’n for Di ving Instructors, 666 F. Supp. 84 (E.D.La. 1987) (scuba diving accident)).
150. David W. Robertson, Summertime Sailing and the U.S. Supreme Court: The
Need for a National Admiralty Court, 29 J. MAR. L. & COM. 275, 285 (1998) (citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986)).
151. George Rutherglen, Symposium: Pleasure Boating in Admiralty: Increasing
Conformity and Decreasing Significance, 29 J. MAR. L. & COM. 305, 306 (1998).
152. Id.
153. Id. at 306-07;
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plaintiff chooses to bring his or her case in state court, or in federal court
based on diversity jurisdiction, substantive admiralty law would apply to
the same extent that it would have applied had the case been brought in
admiralty.154 As a result, a plaintiff’s ability to forum shop is limited because, in theory, he or she will get the same law in either forum. 155
This does not mean that substantive admiralty law always applies in any
forum for a case that involves admiralty issues. The critical question in
establishing federal diversity or state court jurisdiction is how would the
federal court sitting in admiralty determine the applicable substantive
law?156 Therefore, it is not necessary for a court to have admiralty jurisdiction per se in order for a conflict to exist between state law and general
maritime law.157 Moreover, if admiralty jurisdiction exists, there is still the
potential for a conflict between state and federal substantive law.158
See Rutherglen, supra note 151, at 307.
See id. at 306.
See O’Hara v. Celebrity Cruises, Inc., 979 F. Supp. 254, 257 (S.D.N.Y.
1997) (noting that a New York court applying New York law would resolve su bstantive law issues as would a federal court sitting in admiralty).
157. See Calhoun v Yamaha Motor Corp., 40 F.3d 622, 626 n.5 (3d Cir. 1994)
(doubting that “the existence or non-existence of admiralty jurisdiction matters to
the question of remedies”). The Third Circuit noted that even if Calhoun “were
solely a diversity case . . . or [if] the parties were in state court, a federal ma ritime
rule of decision applicable to the controversy would still displace a state rule that
was in conflict.” Id. at 626-27 n.5 (citing Offshore Logistics, Inc. v. Tallentire, 477
U.S. 207, 223 (1986)) (the reverse-Erie doctrine dictates that where there is a federal rule of admiralty, “it applies regardless of the basis of jurisdiction”); see also
Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (citing Byrd v. Byrd,
657 F.2d 615, 617 (4th Cir. 1981)) (stating that “[c]ases involving a tort commi tted
on navigable water, whether brought under federal admiralty jurisdiction, in state
court under the saving-to-suitors clause, or in federal court under diversity jurisdiction, are governed by admiralty law”).
158. This result stems from the aforementioned principle that “with admiralty
jurisdiction comes the application of substantive admiralty law.” Blome v. Aer ospatiale Helicopter Corp., 924 F. Supp. 805, 809 (S.D. Tex. 1996) (quoting East
River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986)). However, the application of a court’s admiralty jurisdiction does not, in itself, mean that
state law can never apply. See id. at 810. Thus, “knowing that substantive admiralty law applies does not really resolve the question whether federal or state law
provides the relevant rule of decision.” Calhoun v. Yamaha Motor Corp., 40 F.3d
622, 627 (3rd Cir. 1994). According to the Third Circuit:
154.
155.
156.
Although the corpus of admiralty law is federal in the sense that it d erives from the implications of Article III evolved by the courts, to claim
that all enforced rights pertaining to matters maritime are rooted in fe deral law is a destructive oversimplification of the highly intricate inte rplay of the [s]tates and the [n]ational [g]overnment.
Id. (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 373 -75
(1959)); see also supra note 45 and accompanying text; American Dredging Co. v.
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Despite the fact that admiralty law is considered a federal law field in
the United States, state law is still applicable in many areas.159 In some
fields “[s]tate and federal authorities jointly exercise regulatory authority
over maritime matters.”160 Whether state law is appropriate in a maritime
matter that is not exclusively federal depends “on whether the state rule
‘conflicts’ with the substantive principles of federal admiralty law.” 161
Therefore, state law can often provide the rule of decision in an admiralty
case so long as there is not a direct conflict with the federally created general maritime law.162 As exemplified by both The Tungus and the Hess
cases,163 federal courts sitting in admiralty have often borrowed state law
as the governing law under certain circumstances. 164 Courts sitting in admiralty jurisdiction have generally followed the principle that “state law
may be applied in admiralty cases unless it conflicts with federal law by
prejudicing the ‘characteristic features’ of federal maritime law, or interfering with the ‘proper harmony and uniformity of that law.’” 165
The significance of mentioning the jurisdictional element of admiralty
law is to emphasize how challenging it is to determine the applicable substantive law in a case with maritime issues. One cannot simply rely on the
forum he or she has chosen, whether it is the state court or the federal court
sitting either in diversity or admiralty, as being the conclusive factor for
determining the applicable substantive law. Returning to the hypothetical
Miller, 510 U.S. 443, 452 (1994) (following the principle recognized in Romero).
159. See S CHOENBAUM, supra note 31, at 79 (noting that “[s]tate courts have
concurrent jurisdiction over in personam admiralty lawsuits, and substantive state
law plays a key and often complex role”). An in personam suit is one in which a
common law remedy is available. See id. at 80 n.2 (citing Bergeron v. Quality
Shipyards, Inc., 765 F. Supp. 321 (E.D.La. 1991)). State courts have concurrent
jurisdiction over common law suits because common law courts had the power to
hear such cases prior to the adoption of the Constitution. See id. at 80 n.3.
160. Calhoun, 40 F.3d at 627 (citing Romero v. International Terminal Operating Co., 358 U.S. 354, 375 (1959)).
161. Id.; see also supra notes 47-56 and accompanying text.
162. See Calhoun, 40 F.3d at 627 (citing Wilburn Boat Co. v. Fireman’s Fund
Ins. Co., 348 U.S. 310, 321 (1955)) (stating that state law is applicable to dete rmine the effect of a breach of warranty in maritime insurance policy); see also
Madruga v. Superior Court, 346 U.S. 556 (1954) (holding that California partition
remedy can supplement in rem procedure under general maritime law); Red Cross
Line v. Atlantic Fruit Co., 264 U.S. 109 (1924) (holding that a state court could
apply state law over an arbitration clause in a maritime contract); Western Fuel Co.
v. Garcia, 257 U.S. 233 (1921) (appling a state wrongful death statute in a case
involving a longshoreman killed while working on a vessel).
163. See supra notes 69-110 and accompanying text.
164. See Blome v. Aerospatiale Helicopter Corp., 924 F. Supp. 805, 809 (S.D.
Tex. 1996) (citing Calhoun v. Yamaha Motor Corp. U.S.A., 40 F.3d 622, 627 -28
(3d Cir. 1994)); see also supra notes 43-46 and accompanying text.
165. Blome, 924 F. Supp. at 809 (quoting Southern Pacific Co. v. Jensen, 244
U.S. 205, 216 (1917)).
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posed at the beginning of this Note, the resolution of which substantive
maritime tort law applies will not depend on whether the various plaintiffs
file in state court under the savings-to-suitors clause or in the federal court
under either diversity or admiralty. Accordingly, “[t]here is much room
for state law in maritime cases, including those brought in federal admiralty court.”166
B. The Pre-Yamaha Application of Substantive Law in Wrongful Death
Cases: Moragne v. States Marine Lines and the Court’s Strong
Statement on Federalism in Wrongful Death Cases
One area of maritime tort law that has been particularly receptive to
state substantive law is wrongful death actions for non-seamen in territorial waters.167 The easiest way to understand the role state law has played in
maritime wrongful death actions is to focus on the historical development
of the area.168 Prior to the Supreme Court’s ruling in Yamaha, the principle case pertaining to remedies in wrongful death cases was Moragne v.
States Marine Lines.169 Until 1920, American courts did not recognize
wrongful death claims based on general maritime law.170 However, in
1920 Congress enacted two statutes, the Death on the High Seas Act
(DOHSA)171 and the Jones Act,172 which extended remedies for wrongful
death in certain situations to the classes of persons covered under both
statutes.173 When the facts of a particular case did not fall under the reach
166.
Robertson, supra note 150, at 290. According to Professor Robertson:
The test for jurisdiction over maritime torts is both vague and increa singly baroque, yielding much opportunity for earnest advocacy and little
predictability. The test for choosing between state and federal maritime
law in cases that pass the jurisdictional barrier is even vaguer. While it
ought to be relatively easy to merge two vague tests into one vague test,
one of the few things we have been told for sure is that two te sts do not
correspond and that the Court believes it would be wrong to ‘synchr onize’ them.
Id. at 291-92 (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527, 546 (1995)).
167. See Hess v. United States, 361 U.S. 314 (1960); The Tungus v. Skovgaard,
358 U.S. 588 (1959).
168. See Kelly v. Bass Enterprises Production Co., 17 F. Supp.2d 591, 593 (E.D.
La. 1998) (taking the position that it is easier to explain maritime wrongful death
actions with a page of history, rather than a “book of logic”).
169. 398 U.S. 375 (1970); see also supra notes 9-15 and accompanying text.
170. See id.; see also Choat v. Kawasaki Motors Co., 675 So. 2d 879, 883 (Ala.
1996).
171. 46 U.S.C. §§ 761-68 (1994).
172. 46 U.S.C. § 688 (Supp. 1994).
173. The Death on the High Seas Act (DOHSA) provides in part:
Whenever the death of a person shall be caused by the wrongful act, n e-
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of either statute, courts applied the remedy available under the state statute
operative in the territory in which the tort occurred. 174
Thus, in the case of a non-seaman killed in state territorial waters, the
state wrongful death statute would normally apply, given that any federal
statute would not cover persons in this position. 175 However, in Moragne
the Court “adopted a rule that called into question the validity of this practice.”176 In Moragne, the Court held that there is a wrongful death action
available under general maritime law independent of a statutory cause of
action based on DOHSA.177
The major significance of Moragne was to clarify that a “rule against recovery for wrongful death is sharply out of keeping with the policies of
glect, or default occurring on the high seas beyond a marine league from
the shore of any [s]tate, or the District of Columbia, or the [t]erritories
or dependencies of the United States, the personal representative of the
decedent may maintain a suit for damages in the district courts of the
United States, in admiralty, for the exclusive benefit of the decedent’s
wife, husband, parent, child, or dependent relative against the vessel,
person, or corporation which would have been liable if death had not e nsued.
42 U.S.C. § 761 (1994).
As to the recoverable amount of damages, DOHSA states that:
The recovery in such suit shall be a fair and just compensation for the
pecuniary loss sustained by the persons for whose benefit the suit is
brought and shall be apportioned among them by the court in proportion
to the loss they may severally have suffered by reason of the death of the
person by whose representative the suit is brought.
Id. § 762.
The second statute enacted by Congress, the Jones Act, provides that:
Any seaman who shall suffer personal injury in the course of his e mployment may, at his election, maintain an action for dama ges at law,
with right of trial by jury, and in such action all statutes of the United
States modifying or extending the common-law right or remedy in cases
of personal injury to railway employees shall apply; and in case of the
death of any seaman as a result of any such personal injury the representative of such a seaman may maintain an action for damages at law
with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in t he case
of railway employees shall be applicable.
Id. § 688.
174. See Choat, 675 So. 2d at 884 (citing The Tungus v. Skovgarrd, 358 U.S.
588 (1959)); see also Moragne, 398 U.S. at 393 n.10 (noting that “the general understanding was that the statutes of the coastal [s]tates . . . did not apply beyond
state boundaries”); see generally Paul S. Edelman, Recovery for Wrongful Death
Under General Maritime Law, 55 TUL. L. REV. 1123, 1123-27 (1981) (discussing
the early beginnings of wrongful death actions).
175. See infra notes 248-52 and accompanying text.
176. Choat, 675 So. 2d at 884.
177. See supra notes 64-68 and accompanying text.
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modern American maritime law.”178 The Court noted that one principle
reason for the abandonment of a system based on state law was that often
state law did not aptly provide for maritime situations. 179 For example, in
Moragne, the Florida Supreme Court ruled that Florida’s wrongful death
statute was “concerned only with ‘traditional common-law concepts,’ and
not with ‘concepts peculiar to maritime law such as ‘unseaworthiness’ and
the comparative negligence rule.’”180 The Court in Moragne believed that
federal law, as opposed to state law, “[was] the more appropriate source of
a remedy for violation of the federally imposed duties of maritime law.” 181
Following the decision, “a number of courts construed [Moragne] as
‘preempting state causes of action and remedies’ in all actions subject to
admiralty jurisdiction.”182 Therefore, in a wrongful death action for a
death in state territorial waters, which satisfied the criteria set forth in
Moragne, federal law would apply as a whole, and state law remedies
would not be available.183
C. Yamaha Motor Corp. v. Calhoun and the Creation of Supplemental
Law: Muddying the Waters of Uniformity
If Moragne was the final chapter in the Supreme Court’s review of state
and federal law in admiralty cases relating to wrongful death, the area of
law would not be so confounding. However, the Supreme Court in Yama-
178. Moragne, 398 U.S. at 388. This statement by the Court represented a
“wholesale abandonment” of the previous rule recognized in maritime law that
there was no recovery for wrongful death under general maritime law. See id.; see
also supra notes 57-63 and accompanying text. The Court expressed that its role
in Moragne was to determine if Congress had given direction in its legislation
granting remedies for deaths in the “maritime domain.” Moragne, 398 U.S. at 393.
The Court concluded that it found “no affirmative indication of an intent to pr eclude the judicial allowance of a remedy for wrongful death to persons” within the
position of the plaintiff in the case. Id.
179. See Moragne, 398 U.S. at 401 n.15.
180. Id.
181. Id.
182. Choat v. Kawasaki Motors Co., 675 So. 2d 879, 885 (Ala. 1996) (quoting
Texaco Refining & Marketing, Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64
(1991)); see also Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1087
(2d Cir. 1993); Nelson v. United States, 639 F.2d 469 (9th Cir. 1980).
183. See Wahlstrom, 4 F.3d at 1087; see also Steven F. Friedell, Searching for a
Compass: Federal and State Law Making in Admiralty, 57 LA. L. REV. 825, 837
n.78 (1997) (noting that “[t]he Solicitor General’s brief in Moragne took the position that overruling The Harrisburg would produce a ‘uniform non-statutory action’ that ‘would permit the application of a single standard of conduct to both fatal
and non-fatal injuries in all personal injury actions’”). The Solicitor General’s
brief also “pointed out that such a rule would rectify the ‘equally anomalous situ ations in which a differing standard of liability has been required by state law.’” Id.
(quoting Brief for the United States as Amicus Curiae at 21, Yamaha Motor Corp.
v. Calhoun, 516 U.S. 199 (1996) (No. 94-1387)).
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ha expressly rejected the view taken in Moragne: that federal law was the
exclusive basis for recovery, displacing all remedies afforded by state law
in cases brought under a general maritime law wrongful death theory. 184
The Court argued that Moragne centered on the extension of relief, not on
the contraction of remedies.185 Moreover, the Court went on to note that
“Moragne . . . showed no hostility to concurrent application of state
wrongful death statutes.”186 Rather, “[t]he Moragne cause of action was in
many respects a gap-filling measure to ensure that seamen would all be
treated alike.”187
By disposing of Moragne, the Court in Yamaha took another step toward
washing away the doctrine of uniformity in maritime matters. 188 In Yamaha, the Court characterized the principle uniformity concern in Moragne to
relate only to the question of whether unseaworthiness was a basis for liability.189 Thus, according to the Court, Moragne did not focus on whether
“variations in the remedies afforded by the [s]tates threatened to interfere
with the harmonious operation of maritime law.” 190 Read in this light, the
significance of the Moragne decision as a leading case standing for the
need for uniformity in maritime law is clearly undercut. 191
See Choat, 675 So. 2d at 884.
See Yamaha, 516 U.S. at 200. Further, the Court in Yamaha looked to the
language in the Moragne decision recalling that “‘it better becomes the humane
and liberal character of proceedings in admiralty to give than to withhold the re medy, when not required to withhold it by established and inflexible rules.’” Moragne
v. States Marine Lines, 398 U.S. 375, 387 (1970) (quoting The Sea Gull, 21 F. Cas.
909, 910 (No. 12,578) (CC Md. 1865) (Chase, C.J.)).
186. Yamaha, 516 U.S. at 266.
187. Id.; see, e.g., Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 724 (1980)
(indicating a state’s remedial scheme might be “more generous that federal law”
but nevertheless could apply because Congress indicated no concern “about a di sparity between adequate federal benefits and superior state benefits”). The Co urt
in Yamaha, also cited to a litany of cases where federal maritime law has acco mmodated a state’s interests in the regulation of activities within that state’s territ orial waters. See Yamaha, 516 U.S. at 215 n.13 (citing Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973) (oil pollution); Huron Portland Cement
Co. v. Detroit, 362 U.S. 440 (1960) (air pollution); Kelly v. Washington ex rel.
Foss Co., 302 U.S. 1 (1937) (safety inspection); Cooley v. Bd. of Wardens Port of
Philadelphia, 53 U.S. 299, (1852) (pilotage regulation)).
188. See Charles S. Haight Jr., Babel Afloat: Some Reflections on Uniformity in
Maritime Law, 28 J. MAR. L. & COM. 189, 201 (1997).
189. See id. (citing Yamaha Motor Corp. v. Calhoun 516 U.S. 199 211 (1996)).
Judge Haight noted in his article that had the Court “stopped there [(referring to the
limited view of Moragne’s connection to the uniformity principle)], perhaps
[Yamaha] would not be too startling.” Haight, supra note 188, at 201. However,
Judge Haight noted that the inclusion of the troublesome footnote fourteen in
Yamaha, which is the subject of this Note. See id. at 201-02; see also supra note 3
and accompanying text.
190. Yamaha, 516 U.S. at 211.
191. See Haight, supra note 188, at 202. In Yamaha, the Court noted that the
184.
185.
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Yamaha would not be a perplexing decision had it been decided before
the Supreme Court handed down its decision in Moragne.192 As mentioned
previously, state law was routinely used as the source of substantive law in
wrongful death cases for non-seamen in territorial waters prior to
Moragne.193 Thus, the result reached in Yamaha, that the tort was maritime and that state statutes could provide an additional remedy beyond
general maritime law, was not at odds with historical notions of wrongful
death actions for non-seamen.194 Therefore, any criticism leveled at
Yamaha is not based on the Court’s holding. Rather, Yamaha is scrutinized for the way the Court approached the case, particularly in its dismissal of Moragne.195
One particularly troublesome aspect of the Yamaha opinion is that the
Court “fail[ed] to offer any sound justification for the proposition that
Moragne left standing the availability of state law for deaths occurring
within state territorial waters.”196 In reaching its holding in Yamaha, the
Court relied on “silent dictum,” state regulation of other unrelated events
in territorial waters (such as pollution and workers’ compensation standards), and the strained view that Moragne did not displace the policy of
allowing state law to govern wrongful death actions. 197 As a result, the
Yamaha decision “unnecessarily opens a proverbial Pandora’s Box of is-
petitioner in Moragne, the widow of a longshore worker, had urged the Court to
overrule The Tungus, “thus permitting [the] plaintiffs to rely on federal liability
standards to obtain state wrongful-death remedies.” Yamaha, 516 U.S. at 213 n.10.
If this practice were allowed, a plaintiff would, for example, be able to plead a case
based on the doctrine of unseaworthiness under a state wrongful death statute that
did not contain unseaworthiness as a basis for liability. However, the Court in
Yamaha noted that the Court in Moragne was not concerned with “training
Moragne solely on The Tungus.” Yamaha, 516 U.S. at 213 n.10 (noting that “nothing short of a federal maritime right of action for wrongful death could have
achieved uniform access by seafarers to the unseaworthiness doctrine, the Court’s
driving concern in Moragne”). Thus, instead of overruling The Tungus, the Court
in Moragne fashioned a general maritime wrongful death action. See Moragne,
398 U.S. at 387-88.
192. See Friedell, supra note 183, at 827.
193. See id. (citing The Tungus v. Skovgaard, 358 U.S. 588 (1959)); see supra
notes 171-74 and accompanying text.
194. See Friedell, supra note 183, at 827.
195. See id. (noting that “the differences between how Yamaha was decided and
how it would have been decided thirty years ago reveal significant differences in
outlook and suggest significant differences in the outcomes of other cases”). The
Moragne decision provided “ample evidence that the Court intended the new federal wrongful death remedy to preempt state law.” Id. at 836. However, the Court in
Yamaha gave the language in Moragne “a limited effect.” Id. at 836 n.72.
196. Ugo Colella, The Secret Dissent in Yamaha Motor Corp. v. Calhoun – Never Before Published!, 71 TUL. L. REV. 203, 207 (1996).
197. See id. at 207-10.
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sues that must ultimately be resolved by [the] Court.” 198
D. Just When Does Substantive Maritime Law Apply for the Sake of
Uniformity Concerns
When reading the Yamaha decision in light of Moragne, it becomes
more difficult to know just when state substantive law is applicable to a
given situation.199 What is clear is that if state law conflicts with general
maritime law, maritime law will prevail. 200 However, determining whether
general federal maritime law conflicts with, and thus displaces, state law
“has proven to be extremely tricky.”201 As previously stated, under the
maritime preemption doctrine, conflicts between state law and federal maritime law exist where “state law prejudices the characteristic features” of
federal maritime law or where state law interferes “with the proper . . .
uniformity of that law.”202 However, this language from Southern Pacific
v. Jensen203 has been characterized by the Third Circuit to be “little more
than a convenient slogan, providing little guidance on the question whether
there is a conflict.”204 Because of the ambiguity related to the conflicting
language in the Jensen opinion, federal courts have had a difficult time
delineating the appropriate inquiry between state law and general maritime
law.205
198. Id. at 210 (noting that the Yamaha decision foists ambiguity onto the lower
courts). In particular, the Yamaha decision:
[C]reates choice-of-law problems; improvidently resurrects [the Court’s]
pre-Moragne confusion over whether state or federal law provides the
substantive liability standards for nonseamen killed in state territorial
waters; creates uncertainty as to the precise geographic boundaries e ncompassed by “state territorial waters;” gives inconsistent signals with
regard to whether state law applies independent of the general maritime
law or whether state law furnishes the substantive remedies for general
maritime law claims brought by nonseamen; and casts serious doubt on
[the Court’s] admiralty jurisdiction case law.
Id. at 211 (citations omitted).
199. See Force, supra note 67, at 26 (noting that the Court’s opinion in Yamaha
raises more questions than it answered).
200. See supra notes 48-56 and accompanying text.
201. Calhoun v. Yamaha Motor Corp., 40 F.3d 622, 628 (3d Cir. 1994).
202. Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917); see supra note 42
and accompanying text.
203. 244 U.S. 205 (1917).
204. Calhoun, 40 F.3d at 628 (emphasis added) (citing American Dredging Co.
v. Miller, 510 U.S. 443, 453 (1994) (Stevens, J., concurring)) “The unhelpful a bstractness of [the Jensen language] leaves us without a reliable compass for navigating maritime pre-emption problems.” American Dredging, 510 U.S. at 453.
205. See id. (noting that “[t]he Supreme Court has consistently struggled with
setting the boundary between conflicting and non-conflicting state regulation in the
area of maritime affairs”); see also GRANT G ILMORE AND CHARLES L. B LACK, THE
LAW OF ADMIRALTY, § 1-17, at 49 (2d ed. 1975) (“The concepts that have been
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Realistically, there are two ways to approach the resolution of the
wrongful death cases applying state substantive law and the personal injury cases where general maritime law was followed. 206 The first would be
to conclude that there is some rational way to distinguish between wrongful death and personal injury actions so that it would make sense to differentiate between the two. The next section of this Note explores the argument that there is a historical basis for making this distinction. 207 Alternatively, if no distinction can be made, a second possible theory exists to
square the wrongful death cases applying state substantive law and the
personal injury cases applying general maritime law. Some commentators
argue that footnote fourteen in Yamaha208 should be read to stand for the
proposition that state substantive law is applicable in both wrongful death
and personal injury cases.209 This argument is discussed in the second part
of this section.210
1. Reconciliation of the Personal Injury Cases Applying Federal
Maritime Law and the Wrongful Death Cases Applying State Law
from a Historical Perspective
One way to begin to rationalize the difference between cases such as
Kermarec and Pope & Talbot, the personal injury cases,211 as opposed to
The Tungus and Hess, the wrongful death cases,212 is to focus on the simplest explanation for the different treatment: death as opposed to injury.
Therefore, it is important to look back to the historical place in admiralty
and maritime law relating to death actions and personal injury actions. 213
a. Wrongful Death Actions
Until the Moragne decision, wrongful death actions for deaths occurring
within the territorial waters of a state were left to be resolved completely
under state statutes.214 Congress had never passed any legislation relating
fashioned for drawing [the line between state and federal law] are too vague, as we
have seen, to ensure either predictability or wisdom in the line of actual drawing.”).
206. See infra notes 211-41 and accompanying text.
207. See infra notes 211-36 and accompanying text.
208. See supra note 3.
209. See Robertson, supra note 4, at 101-02 (noting that “the Yamaha Court’s
professed inclination to ‘accommodate states’ interests’ will strike many as a ringing call for state law applicability to a wide range of maritime injury and death
cases”).
210. See infra notes 237-41 and accompanying text.
211. See supra notes 111-35 and accompanying text.
212. See supra notes 69-110 and accompanying text.
213. See supra notes 57-68 and accompanying text (noting the history of maritime wrongful death actions).
214. See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996) (citing The
Harrisburg, 119 U.S. 1999 (1886)); see also supra note 59 and accompanying text.
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to the death of persons within territorial waters as it had done with
DOHSA for deaths on the high seas.215 Moreover, general maritime law
had not developed a substantive principle that wrongful death actions for
deaths that occur within territorial waters necessitated a uniform principle
of law.216 The Moragne decision, creating a general maritime wrongful
death action, focused on correcting the anomaly related to the unseaworthiness doctrine as a basis for liability, 217 rather than creating an exclusive
maritime wrongful death cause of action. 218 Thus, Moragne has been read
to have little impact on the notion that wrongful death actions for deaths
occurring within territorial waters need a uniform principle of law. 219 This
is evident from the holding in Yamaha which dictates that state law may be
used to supplement claims brought under the general maritime wrongful
death action created in Moragne.220
Given that Moragne has not been read to require express preemption of
state law-based wrongful death statutes, the relevant inquiry turns to
whether a Southern Pacific v. Jensen type preemption exists.221 Thus, if
the state legislation works as a “material prejudice to the characteristic
features of the general maritime law” it must give way to the federal
law.222 However, recently the Supreme Court, in American Dredging v.
215. See supra notes 170-71 and accompanying text. If Congress had passed
legislation related to wrongful death, express preemption would exist. See Yamaha
Motor Corp. v. Calhoun, 40 F.3d 622, 629 (3d Cir. 1994). In the absence of e xpress preemption, implied preemption could occur if Congress:
[I]ntended that federal law occupy the field (field preemption) or where
there is an actual conflict between state and federal law such that: (1)
compliance with both federal and state law is impossible; o r (2) state
law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.
Id. (citing California v. ARC America Corp., 490 U.S. 93, 100 -01 (1989)).
216. This statement refers to the disposition of cases for both non-seamen and
seamen alike. However, it does not apply to longshore workers, as they were co vered for deaths within the territorial waters by the Longshore and Harbor Workers’
Compensation Act (LHWSA). See 38 U.S.C. §§ 901-950 (1994).
217. See supra notes 178-79 and accompanying text; see also Yamaha Motor
Corp., v. Calhoun, 516 U.S. 199, 214 (1996) (quoting Yamaha Motor Corp. v. Ca lhoun, 40 F.3d 622, 641-42 (3d Cir. 1994) (“The Moragne cause of action was in
many respects a gap-filling measure to ensure that seamen (and their survivors)
would all be treated alike.”).
218.
See Calhoun, 40 F.3d at 640-43.
219. See supra note 140 and accompanying text; see also Force supra note 67, at
37-38 (noting that “in the absence of some compelling need for uniformity . . . the
Moragne remedy should be regarded as supplemental to state remedies”).
220. See Yamaha, 516 U.S. at 213-14.
221. See Calhoun, 40 F.3d at 629 n.9.
222. Id.; see supra note 58 and accompanying text.
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Miller,223 limited the meaning of the “characteristic features” language. 224
“‘[The Supreme Court] read the phrase to apply (and apparently only to
apply) to a federal rule that either ‘originated in admiralty’ or has ‘exclusive application’ there.’”225 Consequently, “[u]nder this restrictive reading, wrongful death and survival statutes would not materially prejudice a
‘characteristic feature’ of admiralty because the wrongful death and survival remedies did not originate in or have exclusive application in admiralty.”226 As previously expressed, wrongful death statutes are primarily
creatures of state law, and in no way could they be thought to have originated in admiralty.227 Therefore, it is reasonable to conclude, as the Supreme Court did in The Tungus and Hess cases, that the substantive law
relating to standards of liability under wrongful death statutes should be
based on state substantive law.228
b. Personal Injury Actions
The historical development of personal injury law differs drastically
from that of wrongful death. The principle cause of action for personal
injury based claims in admiralty is negligence. 229 Negligence was expressly recognized as a cause of action by the Supreme Court in the 1882 case
of Leathers v. Blessing.230 In Leathers, “the Supreme Court recognized the
maritime tort of negligence which exists as a counterpart to state law negligence.”231 Accordingly, “the maritime tort of negligence has developed
510 U.S. 443 (1994).
Id. at 453; see also Calhoun, 40 F.3d at 629 n.9 (citing Ballard Beach Co. v.
Beach Shellfish, 32 F.3d 623, 626-27 (1st Cir. 1994)).
225. Calhoun, 40 F.3d at 629 n.9 (quoting Ballard Beach Co. v. Beach Shellfish,
32 F.3d 623, 627 (1st Cir. 1994)).
226. Id.; see also Force, supra note 67, at 37 (explaining the history of wrongful
death actions in maritime law).
227. See supra note 170-174 and accompanying text; see also Force, supra note
67, at 37 (discussing the unique nature of wrongful death actions as compared to
personal injury actions). According to Force:
223.
224.
[A]ctions for deaths that occur on navigable waters have had a unique
history quite different from the law applicable to personal injuries.
From early on, maritime law provided a remedy for tho se injured on
navigable waters, but because of the common law rule that tort actions
for personal injury are extinguished with the death of the injured person,
no comparable remedy was available where the victim died.
Id.
See supra notes 69-110 and accompanying text.
See SCHOENBAUM , supra note 31, at 99.
105 U.S. 626 (1882). Leathers involved an action against the owners and
masters of a vessel brought by a passenger injured when a bail of cotton fell on
him. See SCHOENBAUM , supra note 31, at 99.
231. S CHOENBAUM , supra note 31, at 99 (noting that “once admiralty jurisdiction
is established all the substantive rules and precepts peculiar to the law of the sea
228.
229.
230.
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into an all-purpose maritime law cause of action that cuts a wide swathe
across all the specialized areas of admiralty law.”232
Cases such as Kermarec and Pope & Talbot recognize the exclusive nature of the maritime cause of action for negligence. Unlike a wrongful
death action, which historically did not exist under general maritime
law,233 the negligence cause of action for maritime torts existed exclusive
of state law negligence.234 Even under the restrictive reading of Southern
Pacific v. Jensen by the Supreme Court in American Dredging,235 the application of state substantive law to maritime torts would materially prejudice a “characteristic feature” of admiralty because maritime tort law did
“originate in or have exclusive application in admiralty.”236
Thus, by comparing the historical development of wrongful death and
personal injury actions in admiralty, one could conclude the differing
treatment is justified given that wrongful death actions have traditionally
been left to the states, while personal injury actions have a long history of
being dealt with exclusively under general maritime law.
2. The Trend Toward the Applicability of State Law in Maritime
Affairs
The alternative conclusion is that the distinction between the wrongful
death cases recognizing state law and the personal injury cases applying
become applicable; a plaintiff’s cause of action will be determined under princip les
of maritime negligence rather than common law negligence”).
232. Id. at 100.
233. See supra notes 57-58, 170 and accompanying text.
234. See S CHOENBAUM , supra note 31, at 98-100.
235. See supra notes 202-05, 216-223 and accompanying text.
236. Calhoun, 40 F.3d at 629 n.9; see supra notes 220-22 and accompanying
text; Force, supra note 67, at 46 (noting the fact that the general maritime law has
recognized the tort of negligence and that state law has never been called upon to
fill any gaps in the maritime law). According to Force:
[G]eneral maritime law has provided and continues to provide, a remedy
for all persons injured on navigable waters … only as modified by the
legislature, whereby Congress has formulated some rules in personal injury cases involving special relationships such as the Jones Act and the
LHWCA. Except for the few judicially-created rules applicable to seamen, there is now a uniform, judicially-created right and remedy for persons injured on all navigable waters. To allow sta te law to supplement
general maritime law would create a lack of uniformity, because the
substantive rules relating to liability and damages vary from state to
state.
Id. However, Force also questions in his article the rationale behind the uniformity
concern for injuries which occur within the territorial waters of a state given that
accidents in state waters most often “implicate state interests.” Id. (citing Green v.
Industrial Helicopters, Inc., 593 So. 2d 634 (La. 1992) (holding that state law could
be applied absent a controlling federal statute or a clearly applicable general mar itime law rule)).
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the federal common law is not real at all. Rather, it is an anomaly awaiting
the proper fact pattern to clear it up. According to at least one study conducted regarding the application of state law to maritime matters, a discernable trend is moving steadily toward applying state law in most instances.237 If this were true, it would be difficult to rationally conclude
that there is a justification for differentiating between personal injury and
wrongful death cases. The Supreme Court has not held that state law must
yield to federal maritime law since Offshore Logistics, Inc. v. Tallentire,238
a case in which the Court held DOHSA preempts state wrongful death
statutes.239 Moreover, “[t]he Court has not held that general maritime law
(nonstatutory court-made law) displaces state law since 1961.”240 When the
Yamaha holding is coupled with the recent Supreme Court’s deference to
state law, the stage may be set for the full-blown application of state substantive law in maritime matters.241
237. See Robertson, supra note 4, at 96. Robertson explored the fifty-three Supreme Court cases decided after Jensen in which state law and the federal maritime
law came into conflict. See id. In twenty-nine of the cases, state law triumphed
over the general maritime law. See id. In the remaining twenty-four cases the
general maritime law won out over state law. See id. According to Robertson, “the
Court’s opinions do not give intelligible reasons, just conclusions . . . [thus], when
viewed as a whole this body of jurisprudence discloses few useful patterns.” Id.
Therefore, Robertson concluded, “all of the theories various commentators have
developed in efforts to synthesize this body of jurisprudence are untenable.” Id. at
95 (referring to the five standard theories as: “(a) the maritime but local concept,
(b) the gap theory, (c) the interest-balancing approach, (d) the hypothesis that maritime law displaces competing state law only when it helps personal injury and
similarly situated plaintiffs, and (e) the theory that state statutes are less likely to
be displaced then state common law”).
238. 477 U.S. 207 (1986).
239. See Robertson, supra note 4, at 96-97.
240. Id. at 97 (citing Kossick v. United Fruit Co., 365 U.S. 731 (1961)).
241. See Robertson, supra note 4, at 100 (noting that five specific features of
Yamaha fuel arguments for the application of state law). First, the Supreme Court
failed once to mention Jensen, the landmark uniformity case, in the body of its
Yamaha opinion. See id. Second, the Court praised the decision in Steamboat Co.
v. Chase, 83 U.S. (1. Wall.) 522 (1872), a leading authority for the proposition that
state courts should decide maritime cases according to state law. See id. Third, the
Court made reference to Kossick, “rais[ing] the possibility that seamen’s cases are
not necessarily to be regarded as completely insulated from the applicability of
state law.” Id. Fourth, the Supreme Court included footnote fourteen in its Yamaha opinion, a “statement [that] unmistakably suggests that the United States Supreme Court may at some point announce that the governing liability standards in
cases like Yamaha must come from state law.” Id.; see supra note 3 and accompanying text. Finally, the Supreme Court cited the cases Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973), Huron Portland Cement Co., v. Detroit,
362 U.S. 449 (1960), Just v. Chambers, 312 U.S. 383 (1941), and Kelly v. Washington, 302 U.S. 1 (1937), for the proposition that maritime law has long accommodated states’ interests in territorial waters. See Robertson, supra note 4, at 101.
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E. Recent Cases Choosing Between State and Federal Law in the Wake of
Yamaha Motor Corp. v. Calhoun
After the Supreme Court handed down the Yamaha decision, one commentator argued that the Court “ha[d] transformed what had been a comparatively settled area of the general maritime law into a complex web of
contingencies, contrary to predictability and uniformity demanded by Article III, Section 2 of the Constitution . . . .” 242 Similarly, another writer
noted that Yamaha raises more questions than it answers. 243 One possible
explanation for the difficult resolution of Yamaha-type cases is that
“‘[m]aritime personal injury [and wrongful death] law has always been
driven by facts, with vastly different results flowing from only slight differences in facts.’”244 Therefore, often small deviations in facts, for example a case involving a seaman as opposed to a non-seaman, will yield completely different outcomes. This propensity for maritime tort cases to be
very different based on the facts of each case, has given lower courts a
difficult time interpreting Yamaha consistently. Therefore, there is still
some utility in examining the post-Yamaha cases dealing with substantive
law issues.
1. The Clancy v. Mobile Oil Corporation Case: An Example of
Preemption When There is a Federal Statute of Relevance
Clancy v. Mobil Oil245 provides an insightful interpretation of a lower
court’s application of state law supplementation in a personal injury case
when there is an express statement by Congress in the field. In Clancy, the
Clancy family filed a personal injury action against the defendant, Mobil
Oil Corporation, seeking compensation for an injury suffered by Dean
Clancy as a result of a slip and fall while onboard a vessel “operated and
controlled” by the defendant.246 The plaintiffs’ twenty-one count complaint alleged liability on the part of Mobil for various damages ranging
from negligence and breach of contract under the Jones Act, to punitive
damages under both general maritime law and the Jones Act. 247 Furthermore, the plaintiffs attempted to bring a claim for loss of consortium under
both New Hampshire law and general maritime law.248 After resolving the
issue in favor of Mobil as to both the punitive damages and loss of consortium claim under general maritime law, the district court addressed the
242.
243.
244.
(S.D.
245.
246.
247.
248.
Colella, supra note 196, at 221.
See Force, supra note 67, at 51.
Id. (quoting Blome v. Aerospatiale Helicopter Corp., 924 F. Supp 805, 814
Tex. 1996)).
906 F. Supp. 42 (D. Mass. 1995).
See id. at 44.
See id. at 45.
See id.
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issue of the state law-based claim.249
The thrust of the plaintiffs’ argument in Clancy was that because “state
law remedies implicate an area of state concern and supplement general
maritime law,” they should not be preempted. 250 However, the court rejected this argument.251 The district court’s holding was based on the principle that given the remedial scheme of the Jones Act, Congress had already taken affirmative steps to remedy the situation. 252 Therefore, the
interest of the state must yield to express federal statutory law. 253 Thus,
“because of Dean Clancy’s status as a seaman, the Jones Act provides certain remedies which are exclusive and preclusive to those provided under
state law.”254
Clancy provides a good example of the preemption of state law-based
claims in a situation where there is an express statute by Congress that is
249. See id. at 45-47. Direct precedent in the First Circuit supported the dismissal of the claims for punitive and loss of consortium damages under general maritime law. See id. at 45 (citing Horsley v. Mobil Oil Corp., 15 F.3d 200, 201-02
(1st Cir. 1994) (holding that “general maritime law makes punitive damages unavailable to the injured seaman and loss of parental and spousal society damages
unavailable to the minor child and spouse of an injured seamen”)); see also Miles
v. Apex Marine Corp., 498 U.S. 19, 31 (1990) (holding that “damages reco verable
to a nondependent parent in a wrongful death action under general maritime law do
not include nonpecuniary losses such as loss of society”); Guevara v. Maritime
Overseas Corp., 59 F.3d 1496, 1513 (5th Cir. 1995) (holding that “punitive da mages [are] unavailable to a injured seaman for the willful nonpayment of maintenance
and cure under general maritime law”); Glynn v. Royal Boat Management Corp.,
57 F.3d 1495, 1505 (9th Cir. 1995) (holding that “punitive damages [are] unavailable in an action for the maintenance and cure by nonfatatally injured seaman”);
Michel v. Total Transportation, Inc., 957 F.2d 186, 191 (5th Cir. 1992) (“reversing
lower court’s award of loss of consortium under general maritime law to spouse of
injured seaman”); Rollins v. Peterson Builders, Inc., 761 F. Supp. 943, 948-50
(D.R.I. 1991) (“striking punitive damages claim in wrongful death action brought
by parents under general maritime law”).
250. See Clancy, 906 F. Supp. at 46.
251. See id. at 47 (holding that the state law claims in the case must yield to the
“paramount federal interest in uniformity in light of the fact that Congress, through
the Jones Act, [had] addressed already what remedies are available to seamen i njured in territorial waters”).
252. See supra note 171-73 and accompanying text.
253. See Clancy, 906 F. Supp. at 48.
254. Id.; see also In re the Complaint of Goose Creek Trawlers, 972 F. Supp.
946 (E.D.N.C. 1997) (following similar reasoning in the context of the death of a
commercial fisherman in territorial waters). The family of the deceased fisherman
brought suit against Goose Creek for wrongful death under both general maritime
law and North Carolina’s wrongful death and survival statutes. See id. at 947. The
court reasoned that, as a commercial fisherman, the decedent was a “‘person otherwise engaged in a maritime trade,’” and therefore did not fit the exception carved
out in Yamaha for nonseafarers. Id. at 950. Thus, the gap-filling provisions of
Yamaha allowing for the application of state law were inapplicable. See id.
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applicable. The same analysis would similarly apply in the other situations
that fall under either the DOHSA, or the Longshore and Harbor Workers’
Act.255 The Clancy type issue, involving an express congressional statement, is certainly the easiest type of case to conclude that preemption is
appropriate. For example, in the hypothetical posed at the beginning of
this Note,256 if one of the two persons injured aboard the vessel was a seaman or longshore worker as opposed to a passenger, it is clear state substantive law would be inapplicable to his or her case. 257 Thus, Yamaha has
not had an impact on cases involving express congressional action. However, the problem becomes more complex when there is no applicable federal statute.
2. The Application of Gap-Filling State Law for Cases Involving
Non-Seafarers
The Fifth Circuit has attempted to address issues relating to the applicability of state law to maritime torts in two recently decides cases, Kelly v.
Bass Enterprises Production Company258 and Krummel v. Bombardier
Corp.259 Kelly involved the crash of a pleasure boat, operated by Michael
Kelly, into a support structure, owned and operated by Bass. 260 Kelly and a
passenger aboard his boat were injured in the accident, and a third passenger in the boat was killed.261 Moreover, the accident occurred within the
navigable state territorial waters.262 Kelly filed suit based on the negligence of Bass to adequately mark its support structure, while the family of
the decedent filed a separate wrongful death and survivorship suit against
Bass and Kelly.263 The court was called upon to decide the availability of
damages for emotional distress, non-pecuniary, and punitive damages to
the non-seaman plaintiffs.264
The district court, in its resolution of the various damage awards available to the plaintiffs, was called upon to resolve the issues in the wake of
255.
See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) (holding
that DOHSA preempts state wrongful death statute).
256. See supra Part I.
257. See supra note 250-51 and accompanying text.
258. 17 F. Supp.2d 591 (E.D. La. 1998).
259. No. 95-2737, 1997 U.S. Dist. LEXIS 481, at *1 (E.D. La. January 13,
1997).
260. See Kelly, 17 F. Supp.2d at 592.
261. See id. The court pointed out that all three passengers were clearly non seamen. See id. at 593.
262. See id. at 593.
263. See Kelly v. Bass Enterprises Production Co., 17 F.Supp.2d 591, 593 (E.D.
La. 1998). The third person injured also filed claims against Kelly and Bass based
on both Louisiana and general maritime law. See id.
264. See id.
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the Supreme Court’s decision in Yamaha.265 In doing so, the lower court
engaged in some interesting interpretations of Yamaha and the cases that
lead up to the decision.
a. Uniformity Not a Major Concern When a Case Involves NonSeamen
One of the more interesting statements by the district court in Kelly was
that uniformity concerns were hardly implicated in the case. 266 In reaching
this conclusion, the district court cited Yamaha for the proposition that
because the case did not involve seafarers, the maritime uniformity doctrine, which the court believed solely related to maritime commerce, was
not a significant barrier to the application of state law. 267 Thus, according
to the court, “[w]here nonseafarers are involved, the likelihood that maritime commerce interests would be paramount is remote, and when those
nonseafarers are injured in state territorial waters, maritime commerce
concerns are even less affected and state interests easily outweigh the need
for uniformity.”268
See Kelly, 17 F. Supp.2d at 593.
See id. at 596 (stating that “the application of state remedies in this instance
should not be denied because of a concern with its effect on uniformity”).
267.
See id. at 595. According to the district court, in Yamaha the Supreme
Court “noted that the well established principle of uniformity was not problematic
because the decedent [in the case] was a nonseafarer and the thrust of uniformity
was to prevent inequities or even differences in the nature and scope of remedies
applicable to seafarers.” Id.
268. Id. The court in Kelly first addressed the claim of the decedent’s widow for
loss of society. See id. at 597. Citing Yamaha, the court concluded that “[s]ince the
decedent was not a seafarer and his death occurred in the territorial waters of Louisiana, Louisiana law is applicable.” Id. (citing Yamaha, 516 U.S. at 199); see also
LA. C IV. CODE ANN. arts. 2315.1 and 2315.2 (West Supp. 2000). Similarly, the
court allowed for the recovery of the major dependent children of the decedent,
which included non-pecuniary losses, such as loss of society. See Kelly v. Bass
Enterprises Production Co., 17 F.Supp.2d 591, 597 (E.D. La. 1998). Again, the
court relied on Louisiana law, since under Moragne these types of damages would
be unavailable under the general maritime law. See id. However, the recovery of
damages by the non-dependent children created a potential problem for the court in
Kelly. The court noted that there was authority for the position that under the
Moragne non-statutory wrongful death remedy, “recovery for loss of society damages is contingent on financial dependency.” Id. (citing Wahlstrom v. Kawasaki
Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993); Sistrunk v. Circle Bar Drilling Co.,
770 F.2d 455 (5th Cir. 1985); Truehart v. Blandon, 672 F. Supp. 929 (E.D. La.
1987)). This would create a potential conflict with the Louisiana law allowing for
loss of society damages for non-dependant children. See id. However, the court
avoided the issue by characterizing Yamaha as prohibiting the expansion of remedies only when “Congress ‘has prescribed a comprehensive tort recovery regime to
be uniformly applied.’” Id. (quoting Yamaha Motor Corp. v. Calhoun, 516 U.S.
199, 215 (1996)). Thus, “[r]ather than perceiving a conflict between a state wrong265.
266.
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The district court’s position that principles of uniformity turn on the status of the parties is consistent with the Supreme Court’s opinion in Yamaha.269 However, an argument could be made that focusing on the status of
the injured party is neither correct nor consistent with the Supreme Court’s
pre-Yamaha decisions.270 For example, prior to Yamaha, the Supreme
Court did not hold that cases involving non-seamen were exempt from the
uniformity doctrine.271 Rather, the fact that a non-seaman was involved
would be but one of the many factors considered in determining if the state
law at issue violated the principle of uniformity. 272 Thus, based on the past
reasoning of the Supreme Court, both the district court in Kelly, and the
Supreme Court in Yamaha, appear to overemphasize the fact that a nonseaman is involved when determining if the maritime uniformity concerns
are violated.273
The district court’s narrow view of the maritime uniformity principle is
also troublesome because it will subject defendants “to unpredictable and
varied liability rules as they travel the territorial waters of the [s]tates.” 274
For example, referring back to the hypothetical posed at the beginning of
this Note,275 if the vessel were ferrying the two passengers across state
lines, the substantive law would potentially be different depending on
whether the accident occurred in one state’s waters as opposed to the other.
Reliance on the fact that the injured party was a non-seaman, as the Kelly
court did,276 for determining that maritime uniformity concerns are not
involved, seems misplaced. In fact, this change to the hypothetical would
appear to be the purpose of the uniformity doctrine in admiralty law in the
first place.
Related to the principle of uniformity, Kelly provides an example of the
deference the lower court was willing to give to state law in the absence of
ful death statute and a nonstatutory general maritime wrongful death remedy, the
Yamaha Court saw the issue as a concurrent application of two remedies.” Id.
269. See Colella, supra note 196, at 215.
270. See id. (noting that the status-of-the-party logic followed by the Court in
Yamaha is not supported by the Court’s pre-Moragne view of uniformity).
271. See id. (citing Just v. Chambers, 312 U.S. 383, 391-92 (1941) (involving
guests of the owners of a yacht); Western Fuel Co. v. Garcia, 257 U.S. 233, 242
(1921) (involving“maritime workers”); Old Dominion S.S. Co. v. Gilmore, 207
U.S. 398, 402 (1907) (involving chief mate, crew, and passengers); Steamboat Co.
v. Chase, 83 U.S. 522, 530 (1872) (involving a decedent who was riding in a sailboat)).
272. See Just v. Chambers, 312 U.S. 383, 389 (1941) (resolving the issue under
Jensen-type preemption analysis in the case of a non-seaman injured in state territorial waters).
273. See, e.g., Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996); Kelly v.
Bass Enterprises Production Company, 17 F. Supp.2d 591 (E.D. La. 1998).
274. Colella, supra note 196, at 215 (citation omitted).
275. See supra Part I.
276. See supra notes 263-66 and accompanying text.
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a congressional statement on point. By allowing the plaintiffs to proceed
under the more generous state law, serious inroads were made on the uniform principle of maritime law applicable to remedies for wrongful death
recognized in Moragne. The lower court was able to make this interpretation because it could couch its holding as allowing for the concurrent application of state law and general maritime law as established in Yamaha.277 Thus, Kelly is an example of the far reach state law has as a result of
the Supreme Court’s decision in Yamaha.
b. There should Not Be a Distinction between Wrongful Death and
Personal Injury Cases in Terms of Remedies Available for
Maritime Torts
The second important aspect of Kelly is that the district court was willing to extend remedies to the plaintiffs that were traditionally unavailable
in a personal injury case.278 This result occurred in the context of a situation involving the question of whether the spouse of a non-fatally injured
person could recover damages for loss of consortium. 279 Both Louisiana
law and general maritime law allowed for the recovery of loss of consortium resulting from injury in certain instances. 280 However, the court in
Kelly noted that there is “some dispute as to whether such a claim may be
brought under the general maritime law when non-seamen are injured.”281
Regardless of the potential dispute under general maritime law, the district
court held it mattered only that loss of consortium damages were available
under Louisiana law since the Yamaha decision permitted gap-filling by
277. See Kelly v. Bass Enterprises Production Co., 17 F.Supp.2d 591, 598 (E.D.
La. 1998).
278. The same district court reached a similar result in Krummel v. Bombardier
Corp., 1997 U.S. Dist. LEXIS 481, at *1 (E.D. La. Jan. 13, 1997). Krummel involved a jet-ski accident in the territorial waters of Louisiana that resulted in the
plaintiff sustaining serious injuries. See id. The district court followed Yamaha in
extending state law based remedies to a case of injury rather than death . See id. at
*3.
279. See Kelly, 17 F. Supp.2d at 598.
280. See id. (standing for the proposition that loss of consortium damages are
recoverable under state law) (citing LA. CIV. CODE ANN. art. 2315 (West Supp.
2000); Tessier v. H.S. Anderson Trucking Co., 713 F.2d 135 (5th Cir. 1983); Ho llie v. Beauregard Parish Police Jury, 680 So. 2d 1218 (La. Ct. App. 1996); Abadie
v. Commercial Union Ins. Co., 464 So. 2d 979 (La. Ct. App. 1985)); see also
American Export Lines, Inc. v. Aluez, 446 U.S. 274, 281 (1980) (extending the
damage element of loss of society announced in Gaudet to spouses of injured seamen on the basis that “there is no apparent reason to differentiate between fatal and
nonfatal injuries in authorizing the recovery of damages for loss of society”).
281. Kelly, 17 F. Supp.2d at 599 (citing Mobil Oil v. Higginbotham, 436 U.S.
618 (1978); Nicholas v. Petroleum Helicopters, 17 F.3d 119 (5th Cir. 1994); Gravett v. City of New York, 1998 U.S. Dist. LEXIS 9481 (S.D.N.Y.)).
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state law.282
In order to apply Yamaha to this fact pattern, the district court concluded
that Yamaha, a case dealing with wrongful death, must be held to extend to
situations involving non-fatal injuries.283 According to the district court in
Kelly, “[a] fair reading of [Yamaha] reveals that the state statutory law
applies to nonseafarers injured in state territorial waters regardless of
whether their injury was fatal or non-fatal.”284 In reaching this conclusion,
the district court believed that reading Yamaha in this light was “consistent
with the progeny of Miles v. Apex Marine Corp.285 which generally extends the ruling of Miles, a death case, to cases involving non-fatal injuries.”286 Thus, according to the district court, “[n]either logic nor maritime
history supports restricting Yamaha to only fatal injury claims.”287
In In re Amtrak Train Crash, the Eleventh Circuit Court of Appeals,
took exception to the conclusion reached in Kelly that Yamaha extended to
non-fatal injuries.288 According to the Eleventh Circuit, “Yamaha dealt
only with wrongful death actions and has no relevance to personal injury
actions,”289 given that “the historical basis for wrongful death actions in
admiralty is entirely separate from that of personal injur[y].” 290 The court
pointed out that unlike wrongful death remedies, which did not exist under
general maritime law for non-seamen until the Moragne decision, admiralty remedies for personal injury existed prior to The Harrisburg case in
1886.291 Thus, according to the court, “[u]nless or until the United States
Supreme Court should decide to add state remedies to admiralty remedies
for personal injury, personal injury claimants have no claim for non-
282. See Kelly v. Bass Enterprises Production Co., 17 F.Supp.2d 591, 599 (E.D.
La. 1998).
283. See id.
284. Id.
285. 498 U.S. 19 (1990). Miles involved the claim of a mother for damages for
loss of society for her child, a seaman, killed in state territorial waters under ge neral maritime law. See id. at 21-22.
286. Kelly, 17 F. Supp.2d at 599. (citing Murray v. Anthony J. Bertucci Const.
Co., Inc., 958 F.2d 137 (5th Cir. 1992); Michel v. Total Transp., Inc., 957 F.2d 186
(5th Cir. 1992); Earhart v. Chevron U.S.A., 852 F. Supp. 515 (E.D. La. 1993);
Cater v. Placid Oil Co., 760 F. Supp. 568 (E.D. La. 1991); Anglada v. Tidewater,
Inc., 752 F. Supp. 722 (E.D. La. 1990)).
287. Kelly v. Bass Enterprises Production Co., 17 F. Supp.2d 591, 599 (E.D. La.
1998) (citing Gravett v. City of New York, 1998 U.S. Dist. LEXIS 9481 (S.D .N.Y.
June 24, 1998)).
288. See In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1427-28
(11th Cir. 1997).
289. Id. at 1428.
290. Id. (citing GILMORE AND B LACK, THE LAW OF ADMIRALTY, § 6-29 (2d ed.
1975)); see supra notes 213-35 and accompanying text.
291. See id. at 1428-29 (citing Leathers v. Blessing, 105 U.S. 626 (1881)); see
also supra notes 229-30 and accompanying text.
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pecuniary damages such as loss of society, loss of consortium or punitive
damages . . . .”292
The discrepancy as to the separation of wrongful death and personal injury liability between the Eleventh Circuit in Amtrak and the district court
in Kelly squarely addresses the problem in footnote fourteen of Yamaha.
Both courts set forth valid justifications for believing state law was either
valid or invalid respectively. However, until the Supreme Court decides to
take a case to resolve this issue, the law remains unsettled.
3. O’Hara v. Celebrity Cruises: A Strong Statement for the
Application of General Maritime Law to Govern Standards of
Liability
The Southern District of New York recently addressed the issue of
whether Yamaha-type state law claims for non-pecuniary damages are
available. In O’Hara v. Celebrity Cruises 293 the plaintiffs brought claims
under both New York and federal maritime law alleging negligence on the
part of the ship owners and operators for injuries suffered by the plaintiffs
when they were assaulted by a member of the ship’s crew. 294 The New
York court rejected the application of Yamaha to this set of facts for two
reasons.295 First, the court held that even after Yamaha, the question of
whether punitive damages are available in maritime cases is determined
solely by federal maritime law.296 According to the court, “[t]he thrust of
Yamaha is to argue that considerations of uniformity in federal maritime
wrongful death actions only require that the standards of liability be exclusively determined by federal maritime law,” and once that liability is
shown, “there is no antagonism to such a policy in supplementing federal
remedies with those available under the otherwise applicable state law.”297
It was the court’s position that if state law punitive damages were allowed,
292. Id. at 1429 (citing Lollie v. Brown Marine Serv., Inc., 995 F.2d 1565, 1565
(11th Cir. 1993)) (holding that “neither the Jones Act nor general maritime law
authorizes recovery of loss of society or consortium in personal injury cases”).
Implicit in the Eleventh Circuit’s reasoning is that there is no need to look to state
law for remedies in a case of a non-seaman injured in territorial waters, nor a reason to apply either Moragne or Yamaha to the case. See Amtrak, 121 F.3d at 1429.
293. 979 F. Supp. 254 (S.D.N.Y. 1997).
294. See id. at 255. Following the line of reasoning in Miles, the court concluded that punitive damages were not available for personal injuries brought under
general maritime law. See id.
295. See id. at 256.
296. See id.
297. Id. (quoting Kermarec v. Compagnie General Transatlantique, 358 U.S.
625, 628 (1959); citing Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953))
(“[D]espite … utterances in footnote 14 of Yamaha, as of now it remains settled
that the legal standards for substantive liability in maritime personal injury actions
brought in federal court are set exclusively by federal maritime law.”).
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“just such an antagonism would be created . . . .” 298
The second rationale advanced by the court for denying punitive damages assumed, for the sake of argument, that New York law did apply to nonfatal personal injury cases.299 New York, applying and interpreting its own
law, views such cases as “governed exclusively by general maritime
law.”300 Thus, New York law would look to general maritime law for the
substantive law and remedies available in maritime personal injury cases.
The O’Hara decision parallels the Eleventh Circuit in Amtrak. Both
courts explicitly address footnote fourteen in Yamaha, and both reject its
impact on personal injury cases as opposed to wrongful death cases. 301 If
this interpretation were followed in the hypothetical, 302 the causes of action
for the passenger injured in the crash would be governed by general maritime law. In light of Kermarec and Pope & Talbot,303 and the overall
unique history of maritime personal injury, 304 approaching the liability
issues under general maritime law would seem to make sense. However,
as Kelly points out, some jurisdictions will read Yamaha as applying to
personal injury as well as wrongful death cases, thereby applying state
substantive law to both.305
F. The Conflicting Results Caused by the Application of General
Maritime Law in Personal Injury Cases, and State Law in Wrongful
Death Cases: Using Comparative Interest Balancing
Ultimately, deciphering the applicable law in a given maritime case is
best approached by balancing the various state and federal interests and
determining which would be the least effected by not having its law applied. Under this approach, a court would not assume that Yamaha “embodies an unspoken rule that state interests must always trump competing
298. Id. The court noted that:
[T]he ancient maritime policy of promoting uniformity would be unde rcut if the federal courts were to allow punitive damage awards in pe rsonal injury tort cases that, while not falling within the purview of the
Jones Act or DOHSA, involve the same kind of maritime conduct as to
which those Acts reject punitive damages.
Id. at 255.
299. See O’Hara v. Celebrity Cruises, 979 F. Supp. 254, 256-57 (S.D.N.Y. 1997).
300. Id. (citing Frazer v. City of New York, 659 N.Y.S. 2d 23 (1997) (rejecting
Yamaha’s application as to punitive damages for injuries suffered by passengers
aboard a Circle Line sightseeing vessel when it crashed into a bridge)).
301. See In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1428-9
(11th Cir. 1997); O’Hara, 979 F. Supp. at 254.
302. See supra Part I.
303. See supra notes 111-26 and accompanying text.
304. See supra notes 111-26 and accompanying text.
305. See supra notes 274-87 and accompanying text.
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admiralty principles when the two collide in state territorial waters.” 306
Rather, the court will take into account all of the factors and decide on a
case-by-case basis whether state law or general maritime law should apply.307 Moreover, in doing so the court should not forget the important
goals of uniformity and harmony that are central to admiralty law. 308 For
example, the Eleventh Circuit followed this approach in Amtrak, and it
lead to a well reasoned interpretation of when state law should and should
not hold sway in a maritime case.309
1. The Amtrak Case: Balancing State and Federal Interests
In the early morning of September 22, 1993, in state territorial waters
near the Port of Mobile, Alabama, a commercial towing vessel “struck a
bridge support causing a portion of [a] railroad track to become laterally
misaligned.”310 “Soon [thereafter], a passenger train, operated by Amtrak,
derailed when attempting to cross the bridge.”311 The crash resulted in the
death of forty-seven passengers and injuries to numerous others. 312 The
trial court determined that admiralty jurisdiction existed over the action
and that state law governed the wrongful death claims. 313 For the personal
injury claims the court determined that the applicable substantive law was
general maritime law, rather then state law. 314
The main issue on appeal was whether the Alabama wrongful death
statute conflicted with substantive admiralty law “such that state law
[could not] be used by the plaintiffs as a source of relief . . . .” 315 The court
306.
In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1425 (11th Cir.
1997).
307. See id. (noting that the balancing of interests is “made more or less difficult
by the” facts of the particular case).
308. See id. (indicating that “Yamaha, by emphasizing [uniformity and harmony]
yet again, has affirmed their continuing vitality”).
309. See infra notes 310-30 and accompanying text.
310. Amtrak, 121 F.3d at 1423.
311. Id. at 1423.
312. See In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1423 (11th
Cir. 1997). The crash lead to the filing of over one hundred personal injury wron gful death actions against the vessel’s operating company, the ship’s pilot and ca ptain, and Amtrak. Id. at 1423. The cases were consolidated in the United States
District Court for the Southern District of Alabama. See id.
313. See id. The trial court cited The Tungus and Hess for the proposition that
“the Alabama wrongful death statute would have to be applied as a whole, inclu ding the provisions which conflicted with admiralty law, as trial courts could not
‘pick and choose some portions of a state scheme and discard others.’” Amtrak, 121
F.3d at n.3.
314. See id. at 1423.
315. Id. (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 215 (1996)). The
Alabama wrongful death statute conflicted with general maritime law in two ways.
See Amtrak, 121 F.3d at 1423. “First, the general maritime law does not allow for
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of appeals concluded that there was a direct conflict, and therefore, state
law must yield to the principles of uniformity. 316 The remedy the court of
appeals fashioned in Amtrak to alleviate the conflict was to apply substantive general maritime law to the Alabama wrongful death statute. 317 The
court reasoned that the plaintiffs in the wrongful death action had damages
available to them under the Moragne decision.318 Under Moragne, the
plaintiffs could recover “punitive damages upon a showing of ‘intentional
or wanton and reckless conduct’ on the part of defendants amounting to a
‘conscious disregard of the rights of others.’” 319 Thus, the court measured
the standard of liability to recover damages by using admiralty law.320 The
court reasoned that “Alabama law provides only the remedy which under
Yamaha is now available to these wrongful death claimants in admiralty.”321
2. Comparative Interest Balancing Analysis
In Amtrak, the court considered an Alabama wrongful death statute that
was unique: it was the only one in all fifty states that provided for punitive
damages only.322 The court recognized that Amtrak involved issues of
federal maritime law that were not involved in the Yamaha decision.323 In
searching for guidance as to the resolution of the issue, the court looked to
Steelmet, Inc. v. Caribe Towing Corp.324 In Steelmet, the court’s analysis
the recovery of punitive damages except on a showing of willful and wanton mi sconduct . . . .” Id. However, the Alabama statute allows for the recovery of punitive damages on a showing of simple negligence. See id. “Second, federal maritime law requires that . . . fault among tortfeasors be apportioned in collision cases
. . . .” Id.; see also, e.g., United States v. Reliable Transfer Co., 421 U.S. 397, 411
(1975). “Under Alabama law, . . . apportionment of damages among joint tortfe asors is strictly forbidden.” Amtrak, 121 F.3d at 1423.
316. See Amtrak, 121 F.3d at 1426-28. The Court of Appeals used comparative
interest analysis to remedy the conflict between the Alabama statute and general
maritime law. See id. at 1425. The comparative interest test was established in
Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986).
317. See Amtrak, 121 F.3d at 1427.
318. See In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1427 (11th
Cir. 1997) (referring to Moragne v. States Marilelihes, 398 U.S. 375 (1970)).
319. Id. at 1427 (quoting CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 699 (1st Cir.
1995)).
320. See Amtrak, 121 F.3d at 1428.
321. Id.
322. See Amtrak, 121 F.3d at 1425 (citing Black Belt Wood Co. v. Sessions, 514
So. 2d 1249, 1262 (Ala. 1986)) (Maddox, J., concurring) (stating that Alabama is
the only state in which wrongful death damages are purely punitive, and are allowed on a showing of mere negligence by the defendant)).
323. See In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1425 n.4
(11th Cir. 1997) (noting that the Yamaha decision lacked any conflicts analysis due
to the remedial nature of the conflict).
324. See id. at 1425.
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involved first, “identify[ing] the state law involved and determin[ing]
whether there is an admiralty principle with which that law conflicts.” 325
“If there is an admiralty-state law conflict, the comparative interests must
be considered: they may be such that admiralty law shall prevail . . . or if
the policy underlying the admiralty rule is not strong and the effect on admiralty is minimal, the state law should be given effect . . . .” 326 In
Amtrak, the court proceeded to balance the interests in favor of general
maritime law, therefore excluding the application of the Alabama wrongful
death statute.327 The critical factor for this conclusion was that substantive
admiralty law rights were being threatened by the Alabama statute. 328 Following the Supreme Court’s language in Pope & Talbot, states “may not
deprive a person of any substantial admiralty rights as defined . . . by interpretive decisions of [the] Court.”329
IV. CONCLUSION
Thus, the Amtrak decision is an example of where the substantive liability standards in a wrongful death case were measured by general maritime
law. Granted the factual circumstances of Amtrak, mainly that the case
involved the collision of a commercial tug as opposed to the jet-ski accident of a child, differed greatly from Yamaha. However, in Amtrak the
interest in federal uniformity relating to maritime commerce was rightfully
a much larger factor in the balance of interests than it was in cases like
Yamaha or Kelly.330 The important point to note is that the Amtrak court
did not follow a per se rule requiring the application of state substantive
law to cases involving deaths of non-seamen in state territorial waters. As
a result of factoring in the various federal and state interests, the Amtrak
approach should lead to the right source of law being applied more often
than not.
Id.
Id. (quoting Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488
(11th Cir. 1986)); see also, e.g., Kossick v. United Fruit Co., 365 U.S. 731 (1961);
Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 317-18 (5th Cir. 1987).
327. See Amtrak, 121 F.3d at 1426. The court recognized Alabama’s interest in
the regulation of activities within its territorial waters. See id. at 1426. However,
according to the court, this interest must be suppressed because the Alabama statute conflicted with two fundamental principles of admiralty law: “(1) apportio nment of damages for joint tortfeasors, and (2) the applicable standard of liability
for the recovery of punitive damages.” Id.
328. See In re Amtrak “Sunset Limited” Train Crash, 121 F.3d 1421, 1426 (11th
Cir. 1997).
329. Pope & Talbot, Inc. v. Hawn, 346 U.S 406, 410(1953); see also Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199, 211 (1996) (noting that where substanti ve
admiralty principles are placed at risk by the potential application of state law,
there is no “leeway for variation or supplementation by state law”).
330. See id. at 1426.
325.
326.
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No conclusion as to maritime choice-of-law rules for deaths and injuries
of non-seamen in territorial waters will be either simple or perfect in the
absence of congressional action or a clear statement by the Supreme Court.
Unfortunately for the maritime community, the Court in Yamaha, having
had the opportunity to do so, failed to provide a definite answer to the
question.331 Accordingly, as one commentator has noted, the Supreme
Court’s opinion in Yamaha will likely encourage litigation by: “(1) creating more uncertainty in the maritime law by retreating from concerns of
uniformity as a guiding principle and (2) indicating a preference for the
expansion of plaintiffs’ rights.”332
The significance of Yamaha to the plaintiffs in the hypothetical fact pattern at the beginning of this Note is that both parties will likely argue that
state law claims of liability should be allowed to supplement federal causes
of action for accidents within territorial waters. 333 In the case of passenger
C, who died in the accident,334 both Yamaha and the history of wrongful
death actions for cases involving non-seamen support the application of
state substantive liability standards.335
The more challenging question in the aftermath of Yamaha is the personal injury action of passenger D. Historically, there is a strong argument
that personal injury actions in admiralty are separate from land based injury actions,336 and Yamaha should not be read to implicate this view. Alternatively, there are courts, such as the Eastern District Court in Louisiana,
and commentators who would extend Yamaha to personal injury cases.337
By doing so, one notion of uniformity is resolved. The same result, in
terms of the applicable law, will occur regardless of whether the person is
injured or dies. Moreover, the applicable law will usually be state law in
the case of a non-seaman injured or killed within the state territorial waters.338
Thus, Yamaha has set the course for the increasing application of state
substantive law to maritime torts. The same Supreme Court that handed
down strong federalism cases such as Moragne can “no longer be regarded
as a bulwark of a uniform maritime law.” 339 As Judge Haight noted in a
recent address delivered to the maritime community:
See supra notes 193-98 and accompanying text.
Krimmel, supra note 6, at 1027 (citations omitted).
See id. at 1027 n.113.
See supra Part I.
See supra notes 193-98 and accompanying text.
See supra notes 228-35 and accompanying text.
See supra notes 276-85 and accompanying text.
However, as the Amtrak decision points out, sometimes the interests of
federal uniformity may be so strong that even in a case involving non -seamen in
territorial waters there still may be a good reason to apply substantive maritime
law. See supra notes 309-19 and accompanying text.
339. Haight, supra 188, at 202.
331.
332.
333.
334.
335.
336.
337.
338.
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With the way the tide is currently running, it is easy to imagine the
Court rejecting the general maritime law as the uniform standard
of substantive liability for injury or death suffered by nonmaritime workers and occurring on the navigable waters of the
several states. That would be a significant diminution of uniformity, impacting upon the owners of all vessels calling at American
ports.340
Anthony D’Alto
340.
Id.