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"Who Do You Think is a Longshoreman?"




The Impact of Prior Legislation, Legal Decisions and DOL Interpretations of the Longshore and Harbor Workers’ Compensation Act

Presented by F. Nash Bilisoly of

Vandeventer Black, LLP

Personal injury recovery in maritime law is inseparably linked to the status of the plaintiff and the defendant--the relationship between the injured party and the tortfeasor. The class into which each plaintiff fits at the time of injury determines the available causes of action, the resulting burdens of proof, and damages. While a rationale is usually offered for the particular differences between each class, the explanations are often tortured, and it becomes apparent that, for the most part, the roots lead to accidents of judicial history. A web of more than three hundred years of maritime common law, overlaid with periodic and reactionary statutory developments, has resulted in a clutter of definitions, actions, and remedies that often has no real mooring in practical maritime activity. In the name of uniformity and simplicity, it now takes more than a "soothsayer with a crystal ball" to determine who may be entitled to what.1 It not being possible to justify the various relationships and possible remedies, this Article attempts only to identify and perhaps explain the anomalies.2

This century has seen both an expansion and a contraction in the rights and methods of recovery for certain of the involved groups.4 From the inception of the nation, the judiciary has played an unusually active role in the development of the maritime law, the grant of power existing directly in the Constitution.5 Maritime law has traditionally been a creature of equity, in which the courts enjoyed great deference. Congress, of course, through the Commerce Clause,6 has a commensurate role which it often utilizes and which sometimes influences the Supreme Court beyond expectations.7 While in most areas of law change occurs in the courts gradually, and sudden alterations emanate from Congress, in admiralty law some of the most wrenching changes have come unexpectedly from the Supreme Court.

I. General Considerations

A. Status

An individual’s maritime status, both individually and vis-à-vis the defendant, will determine his appropriate remedy, which in turn determines the applicable standard of proof. Maritime workers can generally be classified into four categories: (1) members of the crew of a vessel; (2) longshoremen, ship repairmen or harbor workers; (3) offshore, fixed platform workers; and (4) maritime workers who fit in none of the above categories. Nonmaritime workers injured on the navigable waters of the United States may also be separated into categories such as (1) visitors, (2) passengers, (3) recreational users, and (4) independent contractors. In each instance, the causes of action and the remedies may vary depending on whether the tortfeasor is the injured person’s employer, a third-party stranger, or a vessel. Thus, status is always a function of individual circumstance juxtaposed with relationship to the defendant.

A seaman has the benefit of relying on proof of liability or liability without fault in an action for maintenance and cure or unseaworthiness or slight negligence in a Jones Act claim.8 In either event, the seaman is thereupon entitled to a wide range of damages, both direct and indirect, against his employer.9 He may also recover against negligent nonemployers under the general maritime law, with the extent of the available damages being both well known and presently in dispute as described below.

On the other hand, workers covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA)10 are generally able to recover against their employer without regard to fault, but only for highly structured benefits based solely on pecuniary loss. Furthermore, a remedy under the relevant state compensation statute is usually available. In determining third-party claims against a nonemployer, general maritime law principles are applied. Negligence is required, and damages, again, are either direct, indirect, or uncertain at the moment.

Other maritime workers must often depend on remedies extrapolated through separate statutes. Offshore drilling is not a traditional maritime activity,11 and workers could not claim LHWCA remedies without the incorporation by reference in the Outer Continental Shelf Lands Act.12 Moreover, scientific workers cannot rely on the Jones Act.13 Seamen on government vessels qualify for Jones Act remedies only through incorporation by the Suits in Admiralty Act14 and Public Vessels Act.15 The added statutory remedies only appear to add options and confusion for recovery of maritime workers.

The majority of other maritime tort victims do not have an employer to recover from, and, thus, their recovery is limited to general maritime law. Accordingly, they must prove that the defendant did not exercise reasonable care under the circumstances 16 and that the available damages are basically the same as for seamen and longshoremen under the same circumstances.

Longshore and Harbor Workers Compensation Act

Classification of a worker injured near the water is presently a complicated and often overlapping concept. As will be seen, such a worker may be injured over water and, thus, clearly falls under the LHWCA 17 no matter what his occupation. He may be injured on land, and be covered only if his occupation is "maritime" in nature. In such a case, he will be covered under both the LHWCA and the local state compensation scheme, unless the specific state has legislated that away. Moreover, he may work in "maritime" employment but be injured too far away from the water to qualify for LHWCA coverage. Finally, such a worker may be both a seaman and a longshoreman, entitled to coverage under both the Jones Act and the LHWCA, and perhaps a commensurate state law as well.

1. Historical Background

The LHWCA was enacted in 1927 as a response to the difficulties that had arisen through the various attempts to find remedies for longshoremen injured over the water’s edge. The Supreme Court, in Southern Pacific Co. v. Jensen, had drawn a presumably bright line at the water’s edge, past which a state compensation program could not apply. 18 The opinion rested on the grant of maritime jurisdiction to the federal government in the Constitution,19 which made it virtually impossible for Congress to legislate in state compensation laws.20

The LHWCA was, thus, passed in order to provide a remedy for injuries occurring on navigable waters.21 So long as the employee was injured "upon the navigable waters of the United States (including any. . . dry dock),"22 and so long as a relevant state act did not apply, the issue of his occupation was irrelevant; he was, by definition, engaged in "maritime employment."23 The second part of the test, a codification of the "maritime but local" doctrine, caused much litigation but was resolved by the Supreme Court in Calbeck v. Travelers Insurance Co., wherein the Court specifically held that, without any regard to the occupation or length of time that a worker was upon navigable waters, he was covered by the LHWCA if injured there.24 While a dry dock was specifically included in the statutory definition,25 piers were not,26 and thus, despite the Supreme Court’s attempt to resolve jurisdictional issues by permitting concurrent state and federal jurisdiction in Davis v. Department of Labor & Industries,27 a relatively bright jurisdictional line still existed.

In an effort to resolve many of the jurisdictional questions and provide more predictable coverage, Congress passed a far-reaching amendment to the LHWCA in 1972.28 The Amendments extended the Act’s coverage by replacing what had been a restrictive and irrational "situs only" test of eligibility for compensation with a broader situs test allowing compensation for any "employee" whose "disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)."29 With the definition of "navigable waters" now expanded to include a larger geographical area, it was deemed necessary to describe, and thereupon reduce, the class of workers eligible for compensation.30 Specifically, Congress added a "status" test, restricting the Act’s coverage to "person[s] engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker."31 Accordingly, in order to be eligible for compensation, a person must be an "employee" engaged in "maritime employment" and injured on a covered situs, which, as will be briefly discussed below, apparently still includes any worker injured upon navigable waters.

2. Situs

As seen previously, a worker injured over navigable waters prior to 1972 was covered no matter what his relationship to traditional maritime activity.32 After a fair amount of litigation over this issue,33 the Supreme Court, with perhaps a small exception, settled the issue in Director, OWCP v. Perini North River Associates,34 holding that there was no congressional intent to reduce coverage by passage of the Amendments:

We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory "employer," and is not excluded by any other provision of the Act. We consider these employees to be "engaged in maritime employment" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters.35

While the decision answered most of the questions presented, it specifically left open the issue of whether transient workers who happen to be injured on actual navigable waters but have no connection to traditional maritime activity may be covered.36 While there has been an ostensible split in the circuits on this issue, no cases have been decided since the Chandris decision that placed such weight on the land-based versus sea-based distinction for seamen.37 Clearly the better and more consistent rule would be to exclude such workers.

Presently, the most litigated issue in this area concerns the outer edges of the land-based expansion of jurisdiction created by the 1972 amendments. While most of the specifically delineated landward localities are relatively easy to determine (pier, wharf, drydock, terminal, etc.), the catch-all "other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel"38 is a nebulous phrase that has been found to contain several potential meanings.

While not having enunciated a test for determining what an "other adjoining area" is under the LHWCA, the Supreme Court has indicated that the concepts of status and situs, while separate and distinct, should not be read to render the other superfluous.39 The Ninth Circuit and the Fifth Circuit initially developed two different tests for determining whether an injury occurring outside the easily defined boundaries of a terminal or shipyard would be covered.40 In Brady-Hamilton Stevedore Co. v. Herron, a longshoreman was injured at a gear locker 2000 feet from the terminal gate.41 Now-Justice Kennedy described a fact-intensive test that required a detailed analysis of the surrounding areas along with their actual and potential uses:

In order to further Congress’ goal of uniform coverage, the phrase "adjoining area" should be read to describe a functional relationship that does not in all cases depend upon physical contiguity. Consideration should be given to the following factors, among others, in determining whether or not a site is an "adjoining area" under § 903(a): the particular suitability of the site for the maritime uses referred to in the statute; whether adjoining properties are devoted primarily to uses in maritime commerce; the proximity of the site to the waterway; and whether the site is as close to the waterway as is feasible given all of the circumstances in the case.

This "functional relationship" approach, with its specific inquiries as to the purpose and suitability for maritime use, focused on the function, not the physical location, of the area in question. In Texports Stevedore Co. v. Winchester,43 where a longshoreman was injured in a similar gear locker five blocks from the terminal gate, an en banc Fifth Circuit utilized a less specific "totality of the circumstances" test that still focused on function as the determining factor:

All circumstances must be examined. Nevertheless, outer limits of the maritime area will not be extended to extremes. . . . [s]o long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee’s injury can come within the LHWCA. The perimeter of an area is defined by function. The "area" must be one "customarily used by an employer in loading, unloading, repairing, or building a vessel."44

The court went on to examine the facts of the particular case and looked to factors very similar to the ones enumerated by the Ninth Circuit.45 Except for the specificity of inquiry required by the Ninth Circuit, the tests were basically identical and the results the same--coverage was extended.46

The Fourth Circuit rejected both approaches in Sidwell v. Express Container Services, Inc.47 In that case, the injured worker was a container mechanic who worked at a repair facility eight-tenths of a mile from the terminal.48 While many of the containers that were repaired there came from the terminal, the facility itself was in a heavy industrial area surrounded by various nonmaritime businesses. The Fourth Circuit examined both the Ninth and Fifth Circuit tests and found them wanting, as neither "of these proffered tests even purports to follow the language of the statute-- indeed, for the most part they all openly disavow the statutory text--we decline to adopt any of these tests."49 The panel examined the plain meaning of the statute and found that an area is "adjoining" navigable waters only if it "adjoins" navigable waters, that is, if it is "contiguous with" or otherwise "touches" such waters. If there are other areas between the navigable waters and the area in question, the latter area simply is not "adjoining" the waters under any reasonable definition of that term.50

Then, in examining the noun in the statute, "area," the panel actually grafted a very conservative, functional consideration onto the situs test: "area" must also be defined with reference to the adjective "other," which then refers back to the enumerated adjoining areas.51 Therefore, an "other adjoining area" as to which coverage extends must be like a pier, wharf, drydock, terminal, building way, or marine railway, that is, a "discrete shoreside structure or facility."52 Finally, the asserted area must be customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel, as the statute provides.53 While a different result may well have occurred in the Ninth, Fifth or Second Circuits, the Sidwell injury was deemed not to have occurred on a covered situs.54 The Supreme Court denied a request for a writ,55 and, thus, the Fourth Circuit clearly has the most restrictive interpretation on record.

Up until 2013, the position of the 5th and 9th circuits was to apply a broad interpretation of the "other adjoining area" situs test, while the 4th circuit applied a much narrower test that focused solely on physical contiguity to navigable waters. In a groundbreaking opinion thirty-three years after the decision in TexPorts, the 5th Circuit en banc overruled their previous opinion and decided to adopt the situs approach of the 4th circuit in Sidwell.56 The 5th Circuit now holds the position that for there to be coverage, the situs must "border on" or be "contiguous with navigable waters" customarily used by the employer in loading or unloading a vessel.57 The rationale for this dramatic shift is that in the Court’s opinion, this interpretation is more consistent with the plain language of the statute, along with legislative intent. 58 Further, it helps to provide a clearer, bright-line standard for lower courts to apply which will lead to greater judicial efficiency. 59

In New Orleans Depot, the Court took the case en banc to determine if the claimant was injured in an area "adjoining" navigable waters. 60 The claimant was an employee involved in the repair, maintenance, and storage of shipping containers which were sometimes used to transport ocean cargo.61 The location where the claimant was injured was in what was described by the Court as a "small industrial park," which is around 300 yards from the intracoastal canal.62 This industrial park was surrounded by a carwash, radiator shop, and a repair shop among others locations.63 The court came to the conclusion that the small industrial park in which the injury occurred did not adjoin navigable waters.64 In adopting the Sidwell approach of "adjoining" navigable waters to mean "border on" or be "contiguous with navigable waters," the Court cited as their rationale being faithful to the plain language of the statute.65 "However, the first rule of statutory construction is that we may not ignore the plain language of a statute. The LHWCA dictates that a covered situs actually adjoin navigable waters, and we may not ignore this limitation."66 A further rationale was to allow lower courts in applying this standard to have greater guidance in determining whether there is coverage under the Act. 67

The 5th Circuit further explained its newfound position of what constitutes a proper situs under the LHWCA in BPU Mgmt., Inc., v. Director, Office of Workers Compensation Programs, United States Dept. of Labor. The claimant was employed as a dockworker, and was injured while in one of the facilities underground ore transport tunnels. 68 The Court explained that to satisfy the situs requirement, you must meet both 1) a geographic component, meaning it must adjoin navigable waters; and 2) a functional component, in that it must customarily be used in loading or unloading of a vessel.69 The geographic prong was what was established in New Orleans Depot in that the situs must now "border on" or be "contiguous with navigable waters," and was clearly present here because the entire facility adjoined navigable waters.70 The functional prong of the situs requirement is covered under the Act if the "other adjoining area" is not necessarily used exclusively or predominantly for unloading vessels, but just "customarily used."71 In this case, the court found that vessel-loading process was complete long before the cargo reaches the tunnels in which the claimant was injured, therefore the functional component of the Situs test was not met.72

No other circuit has yet addressed the 5th Circuit’s New Orleans Depot decision to overrule their longstanding situs precedent. Moving forward, it will be interesting to see whether other circuits take the lead of the 4th and now 5th circuits, and adopt a bright line test for what constitutes a proper situs under the LHWCA. Under the totality of circumstances or weighing of the factors test in the 9th and previously 5th circuits, you arguably have employers who do not have a predictable means of determining where coverage under the Act begins and ends, with courts struggling to consistently make a clear situs call with little judicial efficiency. By imposing a clear geographical boundary as applied in the 4th and now 5th circuits, you are providing greater certainty, but are also limiting coverage to a greater extent.

3. Status

Section 2(3) of the LHWCA states: "The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and ship-breaker. . . ."73 Thus, an employee must also be "engaged in maritime employment" to be covered under the LHWCA. Early on, in Northeast Marine Terminal v. Caputo, the Supreme Court held that the status requirement did not necessarily have to be in place at the "moment of injury," but that the focus would be on general occupation.74 Moreover, in P.C. Pfeiffer Co. v. Ford, the Court drew an expansive definition of "maritime employment," sufficient to encompass almost any worker who assists in the movement of cargo between a ship and ground transportation.75 Land-based claimants must be engaged in activity that was an integral and essential part of loading, unloading, or repairing a vessel.76 In order to meet the "essential or integral" requirement of section 2(3), the First Circuit has required the employee’s duties to be a "necessary link in the chain of work that resulted in ships being built and repaired."77 Furthermore, the claimant must show that maritime work is a regular portion of his duties.78

While status may be an expansive concept, the Supreme Court in Herb’s Welding v. Gray ensured that limits were in place in denying the claim of a welder building and replacing pipelines on off-shore platforms.79 The Court initially noted that the statute requires an employee to be "any person engaged in maritime employment,"80 and then specifically enumerated certain individuals who, without doubt, have such "status."81 Prior to the 1972 amendments, the Act applied only to those injured over navigable waters. In bringing the definition of "employee" shoreside, Congress, in now oft-quoted words, "did not seek to cover all those who breathe salt air."82 The Court went on to discuss the term in more detail: Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is "clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered." While "maritime employment" is not limited to the occupations specifically mentioned in § 2(3), neither can it be read to eliminate any requirement of a connection with the loading or construction of ships. As we have said, the "maritime employment" requirement is "an occupational test that focuses on loading and unloading." The Amendments were not meant "to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity." We have never read "maritime employment" to extend so far beyond those actually involved in moving cargo between ship and land transportation.83 Accordingly, an employee will enjoy the benefits of LHWCA jurisdiction if he is injured upon navigable waters or if he is injured on land that is a covered situs (a clear concept inside the terminal or shipyard) and his general occupation is involved in moving cargo between ship and land transportation or in the actual repairing or building of vessels.

In addition, if any of the employees described above do not fall under LHWCA jurisdiction for one reason or another, all of them will be able to recover against their employer under the various state workers’ compensation acts. Furthermore, almost all of the employees who are covered under the LHWCA will also be covered under a state workers’ compensation act concurrently. As early as 1979, in Sun Ship, Inc. v. Pennsylvania, the Supreme Court held that the LHWCA does not preempt state compensation remedies, and when a claimant wishes to proceed under either or both, there are no specific impediments.84 Interestingly, the Court recognized that the judicial seed for the LHWCA--the Court’s 1917 decision in Jensen85--was still viable and, presumably, would continue to prohibit the application of state compensation remedies to individuals injured over the water’s edge.86 Although this could be the subject of another entire article, there is a substantial question as to whether there exists any judicial underpinnings for the LHWCA. While some states have legislated away concurrent jurisdiction, the majority of maritime states still contain the anomaly.

*524 4. Southwest Marine, Inc. v. Gizoni

Complicating matters significantly was the Supreme Court’s decision in Southwest Marine, Inc. v. Gizoni87 that a ship repairman working for a shipyard may fulfill the requisites to qualify both as a Jones Act seaman and an "employee" under the LHWCA.88 It had been argued that the LHWCA definition of "employee" was necessarily a filter through which a LHWCA putative seaman had to pass in order to maintain a Jones Act action, the two remedies being mutually exclusive.89 This would mean that any "employee" could not also be a seaman. While that would have perhaps been the simpler solution, the Court did not agree, reasoning that, because a definitional "seaman" might also be performing ship repair work at the time of injury, fortuitous circumstances should not deprive him of his Jones Act remedy.90 The reverse, however, is not true. A putative LHWCA claimant will lose longshore status, even if he meets the statutory definition of "employee," if he is also a definitional seaman. This is because the LHWCA contains an express exclusion for "members of a crew," while the Jones Act has no commensurate exclusion.91

The Gizoni decision was consistent with its contemporaneous statement in Wilander that "[w]e now recognize that the LHWCA is one of a pair of mutually exclusive remedial statutes that distinguish between land-based and sea-based maritime employees."92 Again in Chandris the Court emphasized that "a worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured."93 Still, it approved of circumstances where a worker covered by the LHWCA may also fulfill the requirements of a seaman. As a result, some workers can recover under LHWCA and then seek Jones Act damages, while the reverse is not true. While this situation is of great concern among insurers and ship owners because of the legal fees involved, it is logical and of no great practical concern.94

On the one hand, the Ninth Circuit has held that a traditional deckhand who works through a union hall is not precluded from LHWCA recovery.95 A welder, who spends the majority of his working time on board barges, however, can only seek one remedy, Jones Act or LHWCA.96 Moreover, a ship repairman who also served as a deck hand on a derrick barge does not qualify as a seaman, despite Gizoni, only because he fails the Wilander test.97

In addition to Gizoni, receipt of a state worker’s compensation award is not a waiver of federal remedies.98 Though the Jones Act was intended to be the exclusive remedy for seamen, an amphibious worker may recover under state remedies that are credited toward any recovery under the Jones Act or general maritime law.99 As a result, it is possible for a plaintiff to recover under a state worker’s compensation system, then the LHWCA, and then the Jones Act, which subsequently must be reduced or set-off by the earlier recovery.

The need, then, for multiple releases in cases of this nature is epitomized by Figueroa v. Campbell Industries.100 In that case, a shipyard worker was injured while serving as a tugboat operator for the shipyard.101 He first filed for California workers’ compensation and subsequently filed under the LHWCA.102 Following settlement of those claims, he filed a Jones Act claim.103 The court was compelled under Gizoni to permit the negligence action, because "it is entirely possible that Mr. Figueroa might be a ‘seaman’ under the Jones Act, and still, at the time of the accident, have been employed in a position enumerated under the LHWCA."104 Though the Supreme Court shunned the "snapshot" approach to determining seaman status, Gizoni permitted this plaintiff to oscillate between the Jones Act and the LHWCA and gain a dual classification.105 As a result, a person’s qualification under multiple status requirements enables a choice of remedies and corresponding damages and, most importantly, highlights the need for complete closure at settlement.

5. Recovery Under the LHWCA

Damages under the LHWCA are limited to loss of earnings only. This Article will not attempt to analyze the many twists and turns that are the subject of extensive litigation in this area, but will only summarize the available damages for comparison purposes with the other statutory or judicially created frameworks. The primary emphasis is on wage recovery; essentially, the injured worker has given up the right to nonpecuniary damages of any sort, including pain and suffering, in return for liability without fault.

Medical reimbursement is similar to maintenance and cure, although it is much more highly structured.106 While the injured worker has a right to choose his own attending physician, the Secretary of Labor has the authority to determine the necessity, character, and sufficiency of the care and may order a change of health care providers.107 Any reasonable and necessary treatment is available to the injured worker for the rest of his life108 and is never time barred.109

Disability can be categorized as permanent and temporary, total and partial, and each combination thereof. Total disability is the complete inability to earn wages in the injured worker’s pre-injury employment.110 If the total disability is temporary, the employee will then receive two-thirds of his average weekly wages during the term of the disability.111 If the disability is permanent and total, the injured worker receives the benefits, along with applicable cost of living increases, for the rest of his life.112

Partial disability arises when the injured worker is able to perform some work, but less than he was making at his previous employment. Essentially, if the employee is able to establish a prima facie case of total disability, the burden of proof then shifts to the employer to show the existence of realistic and available job opportunities within the local geographical area which the claimant is capable of performing and could secure if he diligently tried.113 In such situations, the employee is then entitled to the difference between his average weekly wage at the time of the injury and his present earning capacity.114 If the partial disability is temporary, benefits continue for a period not to exceed five years.115 If they are permanent, they may continue indefinitely.116

In one instance, the Act provides for payment of benefits without proof of actual economic loss. Permanent loss of or loss of use of certain specified parts of the body will result in payments under a specific schedule, irrespective of proof of lost wages.117 If the injury is to a specific part of the body covered under the schedule, the injured worker is entitled to only those payments under the schedule after he has reached maximum medical improvement and is no longer totally disabled.118 If, however, the injury is to a nonscheduled part of the body, such as the back, compensation is payable based on the loss of wage earning capacity described above for an unlimited period of time.119

6. Damages Against Nonemployers

Maritime workers covered under the LHWCA have always had a general maritime law remedy against tortfeasors who are not their employers. Unlike seamen, maritime workers had an action for negligence against vessel owners at the turn of the century.120 Subsequently, in Seas Shipping Co. v. Sieracki, the seaman’s warranty of seaworthiness was extended to longshoremen, as they were thought to be performing traditional seamen’s work.121 After the Supreme Court allowed indemnification actions by vessel owners against the employers of longshoremen,122 Congress acted in 1972 to restore what was seen as the traditional balance between compensation and liability remedies. Section 905 of the LHWCA was amended to eliminate the Sieracki unseaworthiness action, as well as the vessel’s right to indemnification against the employer.123 What remains is a general maritime law cause of action against either a vessel owner or any other third party for negligence only.124

In addition, a longshoreman injured on land has a remedy under the state’s personal injury law against any responsible third party. If the injury occurs over water, the LHWCA does not create a cause of action itself, so land-based injuries suffer from individual state rules, including "statutory employer" bars that can preclude recovery depending on the specific factual circumstances at play.125 If, however, the injury occurs over water, the employee’s remedy may be considered maritime in nature and preclude application of both state remedies and state defenses.126 Because the distinctions are often those made after the initial passage of the LHWCA, there is a real danger of reestablishment of the Jensen line and the "maritime but local" arguments that bedeviled the courts thereafter.127

B. Other Maritime Workers

Because an offshore drilling rig which is fixed to the sea floor is not a vessel in navigation, those on it are not seamen.128 Yet, floating, mobile drilling platforms are vessels in navigation.129 This pointless distinction is rectified to some extent by application of the Outer Continental Shelf Lands Act.130 Those injured while employed in the exploration, development, removal, or transportation by pipeline of natural resources have the LHWCA as their exclusive remedy.131 As in the LHWCA, this does not include employees who are a "master or member of a crew of any vessel."132 In addition, the act only applies to lands beyond the state territorial waters but still on the continental shelf.133

According to Herb’s Welding, Inc. v. Gray, offshore drilling is not a traditional maritime activity and, as a result, is not covered by the LHWCA without reference to OCSLA.134 OCSLA appears to apply the LHWCA without regard to a situs test, but in Mills v. Director, OWCP,135 the Fifth Circuit denied coverage to a worker injured while constructing a platform ashore, interpreting the Acts to require that a claimant prove his or her injury occurred on the "situs" of the Continental Shelf.136 Most other circuits do not require a claimant to meet such a test.137 As a result of this confusing web of status requirements, oil platform remedies may have seaman remedies, LHWCA remedies, and/or state remedies.

Scientific workers who might otherwise qualify as seamen may be exempt from the Jones Act pursuant to the Oceanographic Research Vessels Act (ORVA),138 but would not be precluded from qualifying as seamen for recovery under general maritime law for maintenance and cure and the warranty of seaworthiness.139 "Congress intended to exempt scientific personnel from the regulations affecting seamen that may impede or hinder oceanographic research, but not to exclude them from the remedies afforded seamen."140 In order to qualify, though, the Fifth Circuit has held that the worker must be on a Coast-Guard-classified oceanographic research vessel.141

The exclusive remedy for seamen employed aboard United States vessels is the Federal Employers Compensation Act.142 However, a seaman employed privately onboard a U.S. vessel may recover Jones Act and general maritime law damages from the United States according to the Suits in Admiralty Act (SAA) and Public Vessels Act (PVA).143 The United States is substituted for the private entity as the employer. This may not apply, though, if the United States is merely the charterer, and/or if the seaman has normal seaman remedies against the private employer.144 As a result, a seaman is left with much confusion over what remedy his status affords.145

II. Seamen and Damages

A. Definitions and Remedies

The Osceola146 capsulized a seaman’s traditional avenues for recovery at the turn of the century when it recognized maintenance and cure and a limited warranty of seaworthiness as the only available remedies:

[T]he law may be considered as settled upon the following propositions:

1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.

2. That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.

3. That all the members of the crew, except perhaps the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance and cure.

4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident.147

Seamen, special wards of the court as of 1903, had no remedy for negligence against their employers or the vessels they served. Furthermore, their widows also had no cause of action against the employer for wrongful death.148

With the common-law remedies of maintenance and cure and warranty of seaworthiness unable to fully compensate injured maritime workers, Congress stepped in and created statutory remedies. The 1920 Jones Act overruled The Osceola and created a negligence cause of action for seamen.149 Seven years later, Congress responded to Southern Pacific Co. v. Jensen,150 excluding longshoremen from state workers’ compensation coverage, by passing the Longshore and Harbor Workers’ Compensation Act.151 Congress had now formally divided employer-derived recovery for traditional maritime workers into two classes: seamen with an unseaworthiness and a negligence action, and longshore and harbor workers with a no-fault compensation system.

A likely reason maritime personal injury law bears its distinctive stamp is the centuries-old, judicially felt need to protect the member of the crew of a vessel, far away from home. Moreover, the fact that most seamen in the late twentieth century are less than a day from home by air at any given moment has not changed the historical deference bestowed upon them. Seamen are wards of the court, entitled to special rights and remedies not accorded other workers.152 Because the Jones Act did not define seaman, and the term’s initial limitation came from the LHWCA by exclusion from coverage of "a master or member of a crew of any vessel,"153 courts have borne the burden of defining who is a member of a crew.

The Supreme Court has made quite an effort to define what kind of workers are actually members of a crew of a vessel. In 1991, the Court settled inconsistent circuit court law by adopting a uniform test for seaman status in McDermott International, Inc. v. Wilander.154 Essentially adopting a good portion of the Fifth Circuit’s standard in Offshore Co. v. Robison,155 the Court required a seaman to (1) have an employment-related connection to a vessel in navigation and (2) contribute to the function of the vessel or to the accomplishment of its mission.156 Previously, some courts had required that the seaman’s duties serve in some manner to aid in the navigation of the vessel.157 No longer: "We think the time has come to jettison the aid in navigation language."158

While the Court in Wilander did not elaborate on what constituted an employment-related connection to a vessel in navigation, it did clearly state that seamen do not include land-based workers.159 Furthermore, in 1995, the Court elaborated on the first prong of the Wilander test in Chandris, Inc. v. Latsis,160 holding that a seaman must have a connection to a vessel in navigation that is substantial in terms of both its duration and its nature.161

The Court explained that its "substantial connection" test deferred to Congressional intent and elaborated:

The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.162

Although not stated directly in terms of a bright-line test, the Court approved the lower court guidelines that a worker who did not spend at least thirty percent of his work time in the service of a navigable vessel should not be considered a seaman.163 Utmost in the reasoning of Chandris is the theme that land-based workers should not be able to avail themselves of Jones Act remedies:

The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.

. . . .

We agree with the Court of Appeals that seaman status is not merely a temporal concept, but we also believe that it necessarily includes a temporal element. A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel’s crew, regardless of what his duties are.164

The lower courts’ handling of the issue since Wilander and Chandris has been relatively predictable. The Ninth Circuit has held that a temporary laborer who had been living on board a vessel for a month did not qualify as a seaman.165 That logic was extended by the Second Circuit, where a racing crewmember serving on board for one day was granted seaman status in part because his regular employment was sea-based.166 On the other hand, if the worker does not regularly do ship’s work, seaman status will not be granted, despite the time worked on board.167 By these cases, seaman status is becoming less dependent on the vessel and more a reflection of the nature of the worker’s overall exposure to the traditional perils of the sea.

In Naquin v. Elevating Boats, L.L.C., the 5th Circuit expanded on the Chandris the definition of a "seaman" under the Jones Act. 168 In Naquin, the claimant was injured when a shipyard crane he was operating collapsed, causing him significant injury.169 The Court had to determine if the claimant qualified as a "seaman" for purposes of eligibility under the Jones Act.170 The Claimant’s job duties included the maintenance and repair of his employer’s fleet of life-boat vessels, which mainly required him to work on the boats while they were moored, jacked-up, or docked in the canal.171 Only occasionally was the claimant required to work on a vessel while it was operating in open water.172

The Court applied the two prong test established by the Supreme Court in Chandris. 173 The first prong establishes that the employee’s duties must contribute to the function of the vessel; while the second prong states that an employee must have a substantial connection to the vessel in navigation, in terms of both duration and nature.174 If an employee substantially contributes to the vessels’ functions, and maintains a substantial connection with the fleet, he will qualify as a seaman for Jones Act coverage.175

To satisfy the first prong, the claimant must merely show that he "does the ship’s work."176 Because Naquin spent the majority of his time repairing, cleaning, painting, and maintaining the boats that his employer operated, he was clearly "necessary to the function and operation" of the vessels and satisfies the first prong.177

Turning to the second prong, to be a seaman a claimant "must separately demonstrate that his connection to a vessel or fleet of vessels is, temporally, more than fleeting, and substantively, more than incidental."178 The Supreme Court provided a litmus test to help courts determine if they meet this test, which states that "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act."179 Because Naquin spent roughly 70 percent of his time in the repair and operation of cranes and other equipment that are part of his employer’s fleet, Naquin had a substantial connection to the fleet in terms of duration.180

The Naquin court rejected the argument that the claimant was not regularly exposed to the perils of the sea, stating that workers who spend their time on vessels that are close to the shore "still remain exposed to the perils of a maritime work environment."181 In Endeavor Marine, a derrick barge operator exclusively loaded and unloaded cargo at a dock facility, and was rarely required to board a moving vessel.182 The Court of Appeals reversed the district court’s opinion that he was not a seaman, concluding that even though the crane operator was never taken to sea, nor did he face many of the maritime perils usually thought of with seaman on moving vessels in the open sea, he was still exposed to the perils of the sea.183 Because Naquin performed job duties on the ship’s work while docked or at navigable waters, and faced similar degrees and types of maritime perils as the crane operation in Endeavor Marine, the claimant’s connection to the employer’s fleet was substantial in terms of nature.184

The seaman test still requires an "employment-related connection to a vessel in navigation."

185 In fulfilling this requirement, the seaman must prove the defendant was his employer at the time of injury in order to recover damages under the Jones Act.186 Moreover, time charterers, vessel masters, and owners who did not hire the seaman are not Jones Act employers.187 Similarly, volunteers have a difficult time recovering under the Jones Act for the lack of an employment-related connection to a vessel.188

Additionally, the seaman test requires service on a vessel "in navigation."189 The tests that have been developed in the case law differ primarily on the issue from the perspective of whether it can be decided as a matter of law that a structure is not a "vessel in navigation" or must be left to a jury. The Second Circuit has developed the following test:

(1) [W]hether the structure was being used primarily as a work platform during a reasonable period of time immediately preceding the accident;

(2) whether the structure was moored or otherwise secured at the time of the accident; and

(3) whether, despite being capable of movement, any transportation function performed by the structure was merely incidental to its primary purpose of serving as a work platform.190 If a structure meets these three criteria, it is not a "vessel in navigation." The First Circuit essentially has held that a vessel’s primary purpose or business must be navigation or commerce or those serving on board are only seamen when it is in actual navigation or transit, noting:

A worker becomes a seaman not by reason of the physical characteristics of the structure to which he is attached, but because its being operational "in navigation" exposes him to "a seaman’s hazards." He is not exposed by what the vessel did in the past, or by its future potential, and to give him these special benefits by mechanical definitions without the exposure is misplaced generosity. . . .191

The "vessel in navigation" requirement, like the other tests, continues to reflect the realities of many work environments. Increasingly, courts recognize, through the "fleet doctrine," that a worker can be a seaman without being assigned to one vessel, because his duties take him on board an identifiable group of commonly owned or controlled vessels that expose him to the perils of the sea.192

By focusing on duties instead of on rigid concepts of a seaman, courts have shifted their analysis of Jones Act recovery to more practical considerations of who works on the water in the aid of vessels. However, after Chandris, it is possible that a worker, normally land-based but injured while performing typical seaman duties for a particular voyage, cannot recover as a seaman.193 While the Wilander and Chandris tests create a flexible, uniform definition based on the practical realities of most sea-based work relationships, analysis will also demonstrate how the dichotomy between land-based and sea-based workers can result in an inequitable difference in damages.

B. Jones Act Damages

Once a court determines that an injured plaintiff has satisfied all of the status requirements of a seaman, and liability is demonstrated, it may turn to the issue of damages. Similar to a general maritime law negligence action,194 a plaintiff may recover past lost wages,195 future loss of earning capacity,196 and past and future medical expenses not covered by cure.197 Damages representing recovery from physical pain and suffering, as well as mental anguish, are also the right of a Jones Act seaman.198

Curiously, prejudgment interest damages incurred before trial are unavailable for a Jones Act case tried to a jury.199 This varies the presumption that, in admiralty, prejudgment interest is "well-nigh automatic."200 The rationale is that, because the jury trial is an action at law and not within the court’s normal equitable admiralty jurisdiction, the equitable remedy of prejudgment interest is not available.201

The Jones Act, by reference to Federal Employer’s Liability Act (FELA),202 does not permit damages other than for pain and suffering.203 In an attempt to unify recovery for seamen, the Supreme Court in Miles v. Apex Marine Corp.204 extended this policy to include all seaman actions.205 Finally, while a seaman may also qualify to recover under another compensation system such as the LHWCA, his Jones Act award is reduced by his previous recovery.206

C. General Maritime Law

Aside from a Jones Act negligence claim against his employer, a seaman may bring an action for maintenance and cure, as well as unseaworthiness of the vessel, under general maritime law.207 Both the doctrine of unseaworthiness and the right to maintenance and cure are species of liability without fault.208 A seaman’s employer owes a duty to provide maintenance and cure whenever he or she is injured while subject to the call of duty.209 The shipowner must provide a vessel and appurtenances reasonably fit for their intended purpose.210

1. Warranty of Seaworthiness

A seaman is entitled to damages that are "commensurate with the nature and extent of his injuries."211 As in a Jones Act negligence case, a seaman who proves unseaworthiness can claim pain and suffering, loss of past earnings, impairment of future earning capacity, and past and future medical expenses.212 While a unique action, the damages for unseaworthiness remain the same as a general maritime law negligence action.213

In general, the test for seaman status does not change for a claim under general maritime law as opposed to the Jones Act.214 The well-documented phenomenon of the "Sieracki seaman" entitled to the warranty of seaworthiness215 was abolished by the 1972 amendments to the LHWCA.216 Almost all courts reasoned that, as a result, no class of workers who cannot fulfill the full requirements of seaman status can claim the warranty of seaworthiness through Sieracki.217

In contrast, the Fifth Circuit has maintained that workers not covered by the LHWCA, but who perform a function essential to maritime service aboard a ship, can still avail themselves of the warranty of seaworthiness.218 As a result, workers outside the territorial jurisdiction of the LHWCA219 or federal workers can claim unseaworthiness under this reasoning.220 While the Supreme Court preaches the need for uniformity in maritime law,221 the Fifth Circuit has yet to reevaluate the wisdom of maintaining Sieracki-seaman status.222

2. Maintenance and Cure

Maintenance and cure may be considered the seaman’s original remedy, and its "origins. . . can be traced to the earliest maritime law digests and sea codes."223 In determining these damages, courts have held that an injured seaman is entitled to medical expenses to the point of maximum medical recovery224 and reasonable expenses for room and board.225 Collective bargaining agreements often attempt to establish a set rate for maintenance,226 although there is disagreement as to the binding nature of such agreements.227 Those unaffected by such agreements may possibly recover their actual expenses upon a proper showing.228

The law determining the proper amount of maintenance is "anything but crystal clear."229 Some courts will vary the maintenance rate to reflect the quality of the food and lodging on the ship and the cost of their equivalence on shore,230 while others will look solely to the basis of the seaman’s cost.231 Often, courts will merely enforce a certain rate as appropriate for the given locale.232 Generally, though, "the seaman must present some evidence that he expended sums for food and lodging ashore which was the equivalent of that on the vessel."233

In addition, the seaman is awarded his wages at the end of the voyage, a remedy separate and distinct from the duty to pay maintenance and cure. As opposed to wages, maintenance is a reimbursement for the food and lodging a seaman would have been provided if he were still in the service of the vessel. Alvarez v. Bahama Cruise Line, Inc. specifically addressed this issue in 1990 and emphatically found that maintenance and cure was still available despite the employer’s payment of wages:234

The rationale for the rule that lost wages do not substitute for maintenance is that maintenance compensates the injured seaman for food and lodging, which the seaman otherwise receives free while on the ship. Because free food and lodging is a component of the seaman’s compensation apart from his wages, an injured seaman would be less than whole if the ship operator were free to elect between providing maintenance or furnishing lost wages. Consequently, courts have rejected claims by ship operators that a seaman’s maintenance award should be offset by the ship operator’s payment of wages for the time in which the seaman is unfit for duty.235

In addition to the compensatory amounts recoverable under maintenance and cure, a seaman is entitled to attorney’s fees from a shipowner or employer who withholds payment because of a wanton and intentional disregard for the legal rights of the seaman.236 In Vaughan v. Atkinson, the Supreme Court reasoned that, because maintenance and cure is a contractual right to be liberally construed, the reward of attorney’s fees would give the proper incentive to recalcitrant employers.237 This noble goal was expressed in a vague opinion and created uncertainty as to whether the award of attorney’s fees was compensatory or punitive.238 Vaughan soon began to stand for the proposition that punitive damages were available for the callous withholding of maintenance and cure.239 Those decisions are now seriously in question following Miles v. Apex Marine Corp.240

D. Seamen and Nonpecuniary Damages

Aside from pain and suffering, much controversy exists today over the availability of other nonpecuniary damages in light of Miles.241 In Miles, the Supreme Court placed the first significant court-imposed limits on nonpecuniary damages in general maritime law. Claiming unseaworthiness and negligence after a stabbing death at the hands of a crewman, the seaman’s estate sought nonpecuniary damages, such as loss of society and punitive damages.242 In the opinion, Justice O’Connor reasoned that, wherein Congress expressly limited DOHSA to nonpecuniary damages,243 it impliedly did the same when it incorporated FELA into the Jones Act and adopted the judicial interpretation limiting FELA to nonpecuniary damages.244 Advancing the interest of uniformity and legislative deference in maritime law, the majority held that "[i]t would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence."245

Intended to simplify maritime law, Miles has left courts and scholars groping to find the boundaries of its holding, and some see the ruling as a defeat for judicial trust traditionally associated with maritime law.246 In the context of this Article, courts are unsure as to the reach of Miles to nonfatal claims. This confusion stems from the Court’s refusal to overrule its previous decisions allowing loss of society claims in other maritime contexts. In Sea-Land Services, Inc. v. Gaudet, the Court had allowed such damages for a longshoreman killed within state territorial waters who claimed unseaworthiness through Sieracki-seaman status247 and extended the doctrine in American Export Lines, Inc. v. Alvez to allow loss of consortium/society for nonfatal injuries.248 Following Higginbotham, however, the Court in Miles chose to disallow all wrongful death loss of society damages for seamen.249 While Miles acknowledged that the abolition of the Sieracki seaman by the 1972 amendments to the LHWCA rendered Gaudet inapplicable on its facts, it specifically did not overrule it.250 The possible result is that those who can still derive temporary seaman status from Sieracki have greater damage rights than true seamen.251 Possibility became reality in Bergeron v. Atlantic Pacific Marine,252 when the Western District of Louisiana found that the spouse of a worker, still able to claim Sieracki-seaman status, injured in state territorial waters, could recover for loss of consortium.253 Denied from LHWCA coverage by the Department of Labor, the plaintiff turned to unseaworthiness as a Sieracki seaman.254 Bound by Gaudet, the Court held that Bergeron’s spouse could recover for loss of consortium.255 The court, acknowledging the inconsistencies of its mandated holding, invited an appeal, but none resulted.256

The Miles and Alvez extensions of wrongful death law to nonfatal injury law mandates a parity in available damages. As a result, nearly every court has held that relatives of an injured true seaman cannot collect loss of society/consortium damages, regardless of whether the action is Jones Act or general maritime law.257 "In the final analysis, there is no apparent reason to differentiate between fatal and nonfatal injuries in rejecting damages for loss of society. It is simply nonsensical that the spouse of a non-fatally injured seaman should have greater rights than the spouse of a mortally injured seaman."258  

E. Punitive Damages

The extension of Miles into the topic of punitive damages is another controversial issue. Punitive damages have been generally accepted in general maritime law as a possible element of damages where the defendant’s conduct qualified as a "gross and wanton outrage."259 On the other hand, punitive damages have never been a part of Jones Act damages.260 Vaughan’s approval of the recovery of attorney’s fees in maintenance and cure cases had become the primary authority for seamen to recover punitive damages,261 upon a showing of egregious and wanton conduct, in order to encourage shipowners to promptly pay seamen.262

The Court in Miles did not address the issue of punitive damages, but also did not appear to limit its decision to only loss of consortium. Because Congress knew of the "pecuniary limitation" on FELA damages, the Supreme Court could assume that Congress intended the same limitation for the Jones Act.263 In restoring uniformity to seamen’s recoveries, the Court spoke of limiting recovery to pecuniary damages.264

Lower courts have not come to a unanimous agreement on the availability of punitive damages for seamen, but the trend indicates this conclusion. The most significant post-Miles decision on punitive damages came from the Fifth Circuit in Guevara v. Maritime Overseas Corp.265 In a detailed opinion based on the uniformity principles of Miles, the Fifth Circuit reversed its previous position and barred the award of punitive damages for failure to pay maintenance and cure. The Fifth Circuit, en banc, determined that "when we couple the weakened foundation of Holmes with our understanding of the Miles uniformity principle, we are persuaded that punitive damages should no longer be available in cases of willful nonpayment of maintenance and cure under the general maritime law."266 This revelation started a mild wave of court decisions precluding such punitive damage awards.267

F. Other Seaman Issues

Aside from seaman remedies available against the employer, a seaman occasionally attempts to recover damages from a nonemployer. In Smith v. Harbor Towing & Fleeting, Inc., the Fifth Circuit refused to extend the Sieracki doctrine to include a Jones Act seaman’s claim for unseaworthiness against a vessel not owned by his employer.268 Quoting an earlier, controlling decision, it reiterated: "One with seaman status does not become additionally a Sieracki seaman by doing stevedoring work which might be styled traditional seaman’s duties."269 A seaman does not have a Jones Act claim or special cause of action against a party that is not his employer and is simply in the position of any person injured on navigable waters.270 "Congress has not created a statutory remedy for [a] seaman against nonemployers," and, accordingly, they have only a general maritime negligence remedy.271

Seaman damages for emotional distress are worth comment in the status context. The Supreme Court impliedly put its stamp of approval on emotional damages for seamen when it sustained such an award in the FELA context.272 In Consolidated Rail Corp. v. Gottshall,273 Justice Thomas analyzed the different grounds upon which emotional recovery is often based and adopted the "zone of danger" test as the one that "best reconciles the concerns of the common law with the principles underlying our FELA jurisprudence."274 The traditional "physical impact" test, which required the plaintiff to suffer some physical contact, no matter how slight, in conjunction with sustaining emotional distress, was rejected,275 as was the "relative bystander" test, which required the defendant to be able to foresee the possibility of emotional injury.276 This was accomplished by the analysis of factors such as: (1) the plaintiff’s proximity to the accident, (2) contemporaneous observation of the accident, and (3) a close relationship between the physical victim and the plaintiff.277

Justice Thomas noted that, because the statute did not expressly allow such an action, and FELA is a liberally construed remedial law, the common law should be heavily relied upon.278 He then described the test as "limiting" recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.279

Gottshall creates new questions in maritime law concerning recovery for emotional distress and its definition. It also settles the point that emotional distress is cognizable under the Jones Act. Previously, the Fifth Circuit had failed to recognize the "zone of danger" test on at least two occasions.280 Subsequent to Gottshall, the Ninth Circuit held in Chan v. Society Expeditions, Inc.281 that damages are available for negligent infliction of emotional distress, but did not decide the applicable test.282 Prior to Gottshall, the Eastern District of Louisiana reasoned that the zone of danger test is appropriate under the following limited definition in Anselmi v. Penrod Drilling Corp.:

What is necessary for a valid claim is that the claimant must have been objectively within a zone of danger, he must have feared at the time of the incident that his life or person was in danger, and his emotional injuries must be a reasonably foreseeable consequence of the defendant’s alleged negligence.283

The Supreme Court clarified Gottshall to emphasize that proof could be made under either the "physical impact" or "zone of danger" test.284 Currently, only one district court has used the Gottshall test in the seaman context.285 Certainly, a physical impact is no longer required, but now there is the possibility that juries may substitute damages under the heading of emotional distress which previously would have been nonpecuniary or punitive prior to Miles.286

IV. Nonmaritime Workers

For those not accorded a special status, the standard of reasonable care under the circumstances set forth in Kermerac v. Compagnie Generale Transatlantique still reigns.287 This standard allows for a variable standard of care based on the circumstances.288 Successful claims of negligence under the general maritime law entitle a plaintiff to damages of medical expenses, pain and suffering, prejudgment interest, loss of wages, and loss of future earning capacity.289 This general standard applies to an endless array of topics, including cruise ship passengers, recreational passengers’ injuries, recreational collisions, wake damage, and products liability.290

Particularly in the area of passenger law, the Kermerac reasonable duty standard appears heightened. While passenger liners do not have common-carrier liability, they have been held absolutely liable for crewmember assaults291 based on the contractual obligation of the shipowner to provide safe passage.292 The Second Circuit, though, requires the plaintiff in an intentional tort case to show evidence of "specific neglect" before assessing liability on a cruise line.293 Recovery for other intentional torts, such as intentional infliction of emotional distress, is possible at maritime law. In Muratore v. M/S Scotia Prince, the plaintiff recovered damages after being harassed throughout the cruise by photographers.294 An apparent conflict exists, though, as to the proper reasonable care standard to apply to cruise ship owners in these circumstances.

The biggest development for nonmaritime workers is the Supreme Court’s ruling in Yamaha Motor Corp. v. Calhoun, which held that state wrongful death actions were not displaced by maritime actions.295 A jet ski accident was within maritime jurisdiction, but did not necessarily displace state law.296 Only applied in a few reported cases since,297 the scope of Yamaha to nonfatal injuries is unclear. In Choat v. Kawasaki Motors, Corp., the court permitted state law damages of nonpecuniary damages in a jet ski product liability case.298 As for nonfatal injuries, the possibility exists that a plaintiff may now pursue a state-law claim resulting in greater damages than permitted under maritime law because of Yamaha.

The recovery of nonpecuniary damages for those not afforded a protected status under maritime law is a particularly confusing topic after Miles. Because Miles addressed the issue of seaman recovery for loss of society, courts are confused as to the scope of its uniformity principle eliminating nonpecuniary damages in maritime law. In Sutton v. Earles, 299 the Ninth Circuit found that loss of society was recoverable because the deaths of recreational boaters occurred inside the territorial waters of the United States.300 The holding of Gaudet, preserved by Miles, addressed the ability of longshoremen (serving as Sieracki seamen) to recover nonpecuniary damages, yet the Ninth Circuit applied this to all nonseamen. Similarly, the Second Circuit has decided that loss of society claims are still available for passengers claiming under general maritime law.301 These two wrongful death cases distinguish between general maritime law and statutory Jones Act and DOHSA actions, even though Miles may have intended uniformity throughout maritime law, and DOHSA applies equally to all claimants, regardless of status, killed on the high seas.302

On the other hand, injuries to nonseamen not within territorial waters do not entitle nonpecuniary damages according to the Ninth Circuit. In Chan v. Society Expeditions, Inc.,303 the court reasoned that, because DOHSA precluded recovery of nonpecuniary damages, consistency mandated a similar result in the personal injury context.304

In personal injury cases, Miles has also been held to not apply to general maritime law claims. In Schumacher v. Cooper, the spouse of a swimmer who was injured when struck by a vessel was allowed to recover loss of consortium damages.305 The district court found that the personal injury of a nonseaman was not restricted by the holding in Miles.306 With similar reasoning, courts have held that seamen who sue a party which is not their employer are not bound by Miles and are situated like any individual suing under general maritime law.307 In these circumstances, seamen may recover for nonpecuniary damages, such as loss of society or punitive damages.308 The Eastern District of Louisiana has both denied and granted loss of society damages for seamen suing third parties.309

The most significant application in general maritime law of the nonpecuniary damage limitations in Miles occurred in the Eleventh Circuit’s recent decision in In re Amtrak Ltd..310 A tug’s collision with a bridge support caused the disastrous effect of a train derailment into the river below. Survivors brought claims under the unique Alabama wrongful death statute, which provides recovery only for punitive damages and upon a showing of simple negligence.311 In addition, apportionment of fault was strictly forbidden under state law.312 Plaintiffs claimed that Yamaha permitted application of the Alabama laws. The Eleventh Circuit disagreed and found that state law should not be applied where it would place substantive admiralty principles at risk.313 An important distinguishing fact from Yamaha was that an collision’s traditional maritime jurisdiction displaced state law.3114

In the final portion of the Amtrak decision, the court unequivocally denied the availability of nonpecuniary damages to the personal injury plaintiffs:

Unless or until the United States Supreme Court should decide to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for nonpecuniary damages such as loss of society, loss of consortium or punitive damages. . . . We are aware of no decision in the Supreme Court or in any of the circuit courts which has authorized punitive damages in a personal injury case.315

This is the most definitive and authoritative post-Miles statement by any court regarding nonpecuniary personal injury damages for nonseafarers.

Recovery for emotional distress in general maritime law generally parallels the recovery for seamen. Such damages are available following Gottshall for persons on navigable waters who are within the "zone of danger" of physical injury. Such a result was applied in Chan v. Society Expeditions, where the court permitted a negligent infliction of emotional distress claim for a child in a raft which capsized and caused death and severe injury to several on board, including her father.316 The Court did not allow similar claims by the children who were not present at the time of the accident.317

Again in Williams v. Carnival Cruise Lines, Inc., the court used the zone of danger test, but insisted on a physical manifestation of injury and denied recovery.318 141 passengers complained of emotional injuries after the cruise ship negotiated a storm, but none were permanently injured and only suffered seasickness.319 Accordingly, not even the temporary injury of sickness was sufficient to meet the court’s hurdle for recovery.320

V. Conclusion

Maritime remedies come in many shapes and sizes, and the damages which emanate therefrom are just as varied.  Any attempt to harmonize the distinctions or seek uniformity will result only in frustration.  While there are historical reasons that can be found, practical or rational justifications are just not present.  Every attempt to bring order has simply fed the children of more lawyers.  It is best to know the rules, play by them, and not spend a great deal of time attempting to understand them.


a1 Mr. Bilisoly is a partner at Vandeventer, Black, Meredith & Martin, Norfolk, Virginia.  He is a graduate of Tulane Law School, J.D., 1979 and The College of William & Mary, B.A., 1977.  The author gratefully acknowledges the able assistance of his colleague, Spencer J. Guld.  He is a graduate the T.C. Williams School of Law, 2015 and the Pamplin School of Business, Virginia Polytechnic and State University, 2012.
1 See Grant Gilmore & Charles L. Black, The Law of Admiralty §6-49, at 419 (2d ed. 1975).
2 While the law of maritime wrongful death is intertwined with that of maritime personal injury, this Article leaves that topic to another contributor in this symposium.
3 See George W. Healy, III, Remedies for Maritime Personal Injury and Wrongful Death in American Law: Sources and Development, 68 Tul. L. Rev. 311, 312 (1994).
4 See Gilmore & Black, supra note 1, §§6-1 to 6-57, at 272-455.
5 See U.S. Const. art. III, §2, cl. 1.
6 See U.S. Const. art. I, §8, cl. 3.
7 See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401-02, 1970 AMC 967, 987-88 (1970) (interpreting congressional purpose as the uniform application of wrongful death for seaman).
8 See 46 U.S.C. § 30104 (2008).
9 The terms "direct" and "indirect" are used because the more commonly utilized "pecuniary" and "nonpecuniary" have taken on a life of their own.  As will be discussed infra, pain and suffering are surely nonpecuniary bur are not treated as such by the courts.
10 See 33 U.S.C. §§901-964 (2015).
11 See Herb's Welding, Inc. v. Gray, 470 U.S. 414, 424-25, 1985 AMC 1700, 1707-08 (1985).
12 See 43 U.S.C. §1333(b) (2015).
13 See 46 U.S.C. §188 (1997).
14 See id. §742.
15 See id. §781.
16 See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 1959 AMC 597, 602 (1959).
17 See 33 U.S.C. §§901-964 (2015).
18 244 U.S. 205, 216-18, 1996 AMC 2076, 2084-85 (1917).
19 See U.S. Const. art. III, §2, cl. 1.
20 See Washington v. W.C. Dawson & Co., 264 U.S. 219, 222-23, 1924 AMC 403, 404-05 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 150-51 (1920).
21 See Ch. 509, 44 Stat. 1424 (1927).
22 Ch. 509, 44 Stat. 1426 (1927).
23 See, e.g., Pennsylvania R.R. v. O'Rourke, 344 U.S. 334, 341-42, 1953 AMC 237, 244 (1953) (freight brakeman on car float); Parker v. Motor Boat Sales, 314 U.S. 244, 247, 1942 AMC 1, 2-3 (1941) (boat salesman on sales trip); Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 130, 134, 1930 AMC 763, 764, 766-67 (1930) (railroad freight handler on float).
24 370 U.S. 114, 124, 1962 AMC 1413, 1421 (1962).
25 See Ch. 509, 44 Stat. 1426 (1927).
26 See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-15, 1969 AMC 1967-70 (1969).
27 317 U.S. 249, 256-58, 1942 AMC 1653, 1657-59 (1942).
28 See S. Rep. No. 92-1125, at 1, 13 (1972).
29 33 U.S.C. §903(a) (2015).
30 See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264, 1977 AMC 1037, 1048 (1977).
31 33 U.S.C. §902(3) (2015).
32 See supra notes 155-164 and accompanying text.
33 Compare Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 1975 AMC 2411 (9th Cir. 1975) (no LHWCA coverage for work performed over navigable water unless the work had a "realistically significant relationship to navigation or commerce"), with Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1983 AMC 1321 (5th Cir. 1982) (one injured over navigable waters who would have bee covered before 1972 was covered after the Amendments).
34 459 U.S. 297, 1983 AMC 609 (1983).
35 Id. at 324 n.34, 1983 AMC at 631 n.34. (footnote omitted).
36 See id. at 324 n.34, 1983 AMC at 631 n.34.
37 Compare Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 892, 896-98, 1994 AMC 1217, 1219-20, 1228-30 (5th Cir. 1994) (fixed platform oil worker drowned while attempting to evacuate covered, relying on Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 1983 AMC 609 (1983)), with Brockington v. Certified Elec. Inc., 903 F.2d 1523, 1528, 1991 AMC 586, 592 (11th Cir. 1990) (electrician injured on a vessel while in transit to a land-based job not covered as there was nothing inherently maritime about his occupation).
38 33 U.S.C. §903(a) (2015).
39 See Perini, 459 U.S. at 324 n.32, 1983 AMC at 631 n.32; Herb's Welding, Inc. v. Gray, 470 U.S. 414, 425-26, 1970 AMC 1700, 1709 (1985).


The Third Circuit enunciated a third situs test in the case of Sea-Land Services, Inc. v. Director, OWCP, 540 F.2d 629, 638, 1976 AMC 1427, 1440 (3d Cir. 1976), extending coverage to virtually all employees engaged in loading or unloading cargo. This approach was discredited by the Supreme Court in Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 278 n.40, 1977 AMC 1037, 1059 n.40 (1977) ("The Circuit appears to have essentially discarded the situs test....").


568 F.2d 137, 139-40 (9th Cir. 1978).


Id. at 141 (emphasis supplied).


632 F.2d 504, 1981 AMC 2010 (5th Cir. 1980).


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