Date: October 19, 2001
MARINE TORTS AND CASUALTIES
FORMAL REPORT OF THE COMMITTEE ON
I would like to thank Paul Edelman, Esq. very much for kindly chairing the Committee Meeting for me and
also for preparing these excellent minutes. Paul is a real credit to our Association.
The Committee met on Thursday, October 18, 2001, in Coronado at the Fall Meeting of the Association.
Twenty members and guests participated in a lively meeting on proposed changes in legislation and important cases and
developments affecting maritime personal injury practitioners.
In the Supplement to the July 23, 2001 agenda, supplied by John Schaffer, the following items were discussed:
- Tort Reform: Products Legislation
Products liability legislation is being drafted in Congress with Republican sponsorship. Proposed legislation
will probably cap punitive damages at $250,000 for small businesses with (25) or fewer employees. Sellers and
wholesalers may receive a similar cap and small businesses would be exempt from joint and several liability for non-economic damages. This may not pass the Democratic controlled Senate, but if it does, the President will sign it.
- Victim Compensation Fund
Congress established a fund for the compensation of victims of the 11th of September disasters. The airlines'
liability will be limited to its liability coverage. Any lawsuits are to be filed in the Southern District of New York.
Regulations are to be issued within (90) days and claims are to be made within (2) years after claim forms are available.
A Special Master, appointed by the U.S. Attorney General, will make a final, non-appealable determination. Liability
will not be an issue. Pecuniary and non-economic losses are recoverable. "Collateral sources", yet to be determined,
will diminish awards. An election must be made between filing a claim and suing airlines, building owners and lessees,
Al Qa'eda, the Port Authorities, any foreign country linked to the terrorists and any others potentially liable.
- Punitive Damages
- A $3 billion jury verdict against Philip Morris in a smoker's lawsuit was reduced to $100 million, or
a retrial. Evidence of criminal convictions was not allowed, held to be prejudicial.
- A study indicates that judges rule for punitive damages as often as juries do and generally in about
the same proportions.
- A jury gave $1.06 billion in damages against Exxon Mobil for radioactive contamination of thirty-three acres of land owned by a former Louisiana judge. There will be an appeal.
- Lewis v. Lewis & Clarke
After remand from the Supreme Court, the 8th Circuit affirmed the order of a district court dissolving an
injunction against a state court proceeding irrespective of a limitation proceeding with a single claimant, who stipulated
to recover less than the limitation fund.
Michael Marks Cohen, Esq. raised the question of whether a shipowner's declaratory judgment could nullify
the state court trial. An argument could be made that, in many cases, declaratory judgments, seeking to deprive an
injured party of a jury trial, have more often than not been dismissed.
- Espinal v. Royal Caribbean Cruises, ___ F. 3d ___ (11th Cir. June 8, 2001)
The sick pay provisions of a collective bargaining agreement may take precedence over the maintenance and
cure obligation. The agreement here provided for payment of a minimum monthly wage until cure. The agreement was
enforced, although M&C would be higher and the average monthly wage (presumably including overtime) would also
- The IMO/ILO Ad Hoc Expert Working Group On Liability and Compensation For Death, Personal
Injury and Abandonment Of Seafarers
John Schaffer provided a memo on this subject. The consensus was that U.S. seamen have adequate protections
compared to many other seafarers in the rights to a Jones Act negligence claim, an unseaworthiness claim, maintenance
and cure, unearned wage claims and statutory wage claims, including penalties. When stranded abroad, U.S. seamen
may receive help from U.S. consulates.
The major problem is foreign seamen stranded in foreign ports far from home, with wages owed for months
and inadequate food monies. This does not happen too often and, when it happens in U.S. ports, there are charities to
help and generosity from local U.S. citizens.
Michael Marks Cohen favors a super priority, also favored by Douglas Stevenson, Esq., of the Seamen's
Church Institute. A creditor with a low priority, who pays for repatriation expenses and perhaps two months back
wages, could receive the highest priority for this and his own claim, coming ahead of a mortgagee. This would motivate
a mortgagee and others. Also proposed is insurance with a COFR, as in OPA '90. If the insurance idea is supported
by an international convention, a whole bureaucracy might be needed, although for coverage for ships in U.S. waters
and passing of regulations, we already have a COFR bureaucracy (the Federal Maritime Commission).
- Revision of Title 46 of the U.S. Code
Correspondence was received on various aspects of the proposed revision of the Code. Provisions affecting
the Death On the High Seas Act, the Jones Act, the Limitation Of Liability Act and the Admiralty Extension Act made
no substantive changes. For § 30304, the old § 688 of the Jones Act, concern was expressed that section (b), with a title
of "venue", may be interpreted in a way which limits venue from the broader venue now allowed.
There was some concern over some of the drafting referring to training at the Merchant Marine academies,
some fines and penalties and other items.
- Bradshaw v. Unity Marine Corp.
Appended was an opinion by Judge Kent, of Galveston, gently chiding both counsel for missing the point of
the issue in the case sub judice, and failing to shed any light beyond the smoke they created. Judge Kent did his own
research to cover the obligations of a shipowner where a crew member is injured off the ship on a dock. Coincidentally,
this is an issue about which some other lawyers are presently confronted and the answer is on page 6 of Judge Kent's
In addition to the items on Chairman Schaffer's list, the following cases were discussed:
- Jones Act
- A maritime employer is not liable in admiralty for off-the-job injuries of an employee. Greenwell v.
Aztar Indiana Gaming Corp., 7th Cir. 10/4/01.
- For Jones Act coverage, crew members must be on a vessel, or fleet of vessels, 30 percent or more
of his employment time. Roberts v. Cardinal Services, Inc., 5th Cir. 10/2/01.
- There is no recovery for asbestos monitoring claims where there is exposure, but no symptoms. 9th
Cir. 9/14/01, 2001 WL 1028293.
- Release case: coercion is a good defense. Orsini v. O/S Seabrooke O.N., 247 F. 3d 953 (9th Cir.
- Wage Penalties
Statute does not apply to the master. Where there is a bareboat charter, the owner may be liable in rem. A
claim must be verified. A good discussion of the statute. Madeja v. Olympic Packer, 155 F. Supp. 2d 1183 (Hi.
- Limitation Actions
By filing a limitation action, personal jurisdiction is waived. Karim v. Finch Shipping Co., 5th Cir. 9/5/01.
- Offshore Continental Shelf Lands Act
Although plaintiff was a helicopter pilot to an offshore oil rig, if the accident is on land, OCSLA does not
apply. Pickett v. Petroleum Helicopters, 5th Cir. 9/28/01.
- Longshore and Harbor Workers' Compensation Act
A shipyard employer may offset the amount of each periodic payment given to claimant where there is a third
party recovery. The offset is against the employer's liability. The tort recovery was against the manufacturers and
suppliers of asbestos. Gilliland v. E.J. Bartells Co., 9th Cir. 10/16/01.
- The Mallard Bay Case
Concerning the interaction of Coast Guard and OSHA regulations, was to be argued in the U.S. Supreme Court
on the 31st of October.
* * *
We are always looking for additional and interesting projects, relevant decisions, and are also continuously
seeking potential new members.
John P. Schaffer, Chair