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TEXAS TECH LAW REVIEW

VOLUME XVII SYMPOSIUM 1986 NUMBER 2

ADMIRALTY

by Mark Freeman*

I. INTRODUCTION The United States Court of Appeals for the Fifth Circuit continues to be the vanguard of the twelve circuit courts where the "silver oar of admiralty"' is concerned. An excess of sixty published opinions were rendered by the court during the twelve-month survey period.2 A survey of admiralty decisions by the Fifth Circuit necessarily covers a wide spectrum of issues both of a substantive and procedural nature. The court3 has rendered opinions in nearly all areas of the admiralty. Bright line rules have emerged,' new waters have been charted, while other areas remain obscured as seen through a glass

* Partner, Wells, Peyton, Beard, Greenberg, Hunt & Crawford, Beaumont, Texas; B.S. University of Tulsa, 1976; J.D. Southern Methodist University, 1980. 1. Two sterling silver replica oars have been associated with maritime tribunals. The British version dates back to at least 1603. The colonial version, circa 1725, was utilized initially by the Vice Admiralty Court of the Province of New York and then by its successor, the United States District Court for the Southern District of New York. The silver oars were used by the courts to symbolize the courts' authority to adjudicate maritime disputes. The British silver oar of admiralty has been reinstated to its symbolic role by Mr. Justice Barry Sheen, Admiralty Judge of the London High Court of Justice and its colonial counterpart is on dis- play with the United States District Court for the Southern District of New York. See Paul- sen, The Silver Oar of the Vice Admiralty Court of the Province of New York, 2 SEA HERITAGE NEWs No. 6 (1983). 2. The survey period extends from July 1, 1984 to June 30, 1985. The author wishes to thank the staff and Board of Editors of the Texas Tech Law Review for retrieving the decisions. This assistance was and is appreciated. 3. The generic reference "the court" will be used throughout this article. "The court" is the appropriate reference to the entire court of appeals and to a particular panel. See Western P.R.R. Corp. v. Western P.R.R., 345 U.S. 247, 257-58 (1953). 4. See Louisiana v. M/V Testbank, 752 F.2d 1019, 1032 (5th Cir. Feb. 1985) discussed infra at note 140. TEXAS TECH LAW REVIEW [Vol. 17:365 darkly.5 This review is confined to four basic areas which have signifi- cantly evolved during the survey period: personal injury; collision/ casualty damages;forum non conveniens; and Death on the High Seas Act (DOHSA).6

II. PERSONAL INJURY A. Blue Water Claimants Peculiar to the blue water sailor' is the time-honored right of maintenance and cure following an injury sustained during his or her service to the vessel.8 Should the Jones Act employer fail to timely pay maintenance and attempt to effect the seaman's maximum medical cure, the vessel owner may subject himself to punitive damages.9 In Harper v. Zapata Off-Shore Co.,' ° the Fifth Circuit, utilizing the seminal case of Vaughan v. Atkinson, 1 delineated the standard by which the vessel owner's actions are to be gauged when the plaintiff alleges an award of punitive damages and attorney's fees for failure to pay maintenance. In Harper, the defendant had paid maintenance at a rate equal to at least eight dollars per day and at times during the pendency of the claim, possibly at a greater daily rate depending upon the label attached to the payments. 2 The court has previously recognized a split in authority between the circuits and has followed the lead of the First Circuit by permitting the recovery of both attorney's fees and traditional exemplary damages if the shipowner's failure to pay maintenance is sufficiently wanton.' 3 Harper will be remembered for two reasons: punitive damages may not be based on failure to pay

5. 1 Corinthians 13:11 (King James); see also Anthony J. Murphy, A U.S. Proctor in Admiralty as Viewed by a London Underwriter Through a Glass Darkly, presented to the 1984 Fall Meeting of the Maritime Law Association of the United States (Oct. 31, 1984). 6. 46 U.S.C. §§ 761-768 (1982). 7. Hereinafter "blue water sailor" refers to the traditional seaman who eats, sleeps and works aboard the vessel as a member of its crew. The "brown water" claimant is typically not a member of the vessel's crew and is aboard to perform a specific task, for instance, to load or unload cargo. 8. Reed v. Carfield, 20 F. Cas. (C.C.D. Mass. 1842) (No. 11,641); Harden v. Gordon, 11 F. Cas. 480 (C.C.D. Me. 1823). 9. See Vaughan v. Atkinson, 369 U.S. 527, 532-33 (1962). 10. 741 F.2d 87 (5th Cir. Sept. 1984). 11. 369 U.S. 527 (1962). 12. 741 F.2d at 88-89. 13. Compare Kraljic v. Berman Enters., 575 F.2d 412, 414-16 (2d Cir. 1978) (interpreting Vaughan to allow only attorney fees) with Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1051- 52 (1st Cir. 1973) (interpreting Vaughan to permit traditional exemplary damages). 1986] ADMIRALTY adequate maintenance; and a punitive damage award will now require an element of bad faith plus a finding of willful, wanton and callous conduct of the defendant.14 Since the Harper defendant had paid maintenance at the traditional rate of eight dollars per day, this amounted to some maintenance payments.15 Although recognizing that ridiculously low maintenance payments of one dollar per day would support a punitive damage award, the court held that an award of punitive damages may not be based upon a shipowner's failure to 16 pay adequate maintenance. The Harper decision has made it more difficult for an aggrieved plaintiff to recover a punitive award. Prior jurisprudence in this circuit set the standard at a willful and arbitrary level.' 7 In order to support an award of punitive damages, defendant's actions must now be shown to have been in bad faith.' I So long as the defendant vessel owner investigates the claim of its employee, pays all medical bills and makes regular maintenance payments, the defendant should be pro- tected from an exemplary award. The Harper case was cited in Tullos v. Resource Drilling, Inc. 19 which also involved a seaman's claim against his employer, Superior Oil Company, for punitive damages based upon an alleged arbitrary and capricious refusal to pay maintenance and cure. The punitive damage issue was not submitted to the jury and the Fifth Circuit remanded the case so that this issue could be submitted to a jury.20 More noteworthy is that the injured seaman's spouse, joined as a co-plaintiff in the suit, was allowed to recover damages for loss of consortium. 2 The seaman plaintiff sued both his employer, Superior Oil Company, under the Jones Act22 for negligence, and the vessel owner, Resource Drilling, Inc., under the general maritime law for negligence.2 The seaman's spouse made a claim for loss of consortium against the vessel owner, Resource, under the general maritime law.24 The fact that Mr. Tullos's employer was not the owner or the

14. 741 F.2d at 90. 15. Id. 16. Id. at 90-91. 17. See Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir. 1984). 18. 741 F.2d at 90. 19. 750 F.2d 380 (5th Cir. Jan. 1985). 20. Id. at 386-88. 21. Id. at 386. 22. 46 U.S.C. § 688 (1982). 23. 750 F.2d at 382-83. 24. Id. at 382. TEXAS TECH LAW REVIEW [Vol. 17:365 operator of the vessel did not preclude liability under the Jones Act." The court acknowledged that no right of action for the loss of consortium exists under the Jones Act.26 However, if the claimant prevails on his general maritime law claim (in Tullos it was a negligence claim against the vessel owner, not the plaintiff's employer), then this will be sufficient to support an award for loss of society.27 The seaman's right to maintenance and cure was considered by the Fifth Circuit in a procedural vein in Addison v. Gulf Coast Con- tracting Services.28 Traditionally, the injured sailor pursues his statutory Jones Act claim, based on negligence, joined in the same action with his general maritime law claim based on the vessel owner's duty to provide a seaworthy vessel. 29 Although not entitled to a jury on a solitary general maritime law claim, when the unseaworthiness action is coupled with the statutory Jones Act negligence action, the entire proceeding is generally tried to the jury. The Addison action joining a cause of action for statutory negligence with general maritime law warranty of seaworthiness and failure to pay maintenance and cure, was originally filed in a Mississippi state court and based upon com- plete diversity between the plaintiff and each of the defendants, it was removed to the federal district court pursuant to 28 U.S.C. section 1441(c).3 ° Apparently, the district court permitted the removal because the maintenance and cure claim was thought to be separate and independent from the Jones Act claim.31 This issue received a good deal of the Fifth Circuit's attention as the issue had not been previously addressed by the court. 32 Although it would logically seem that the claim based on the Jones Act statute is legally and theoretically

25. Id. at 384 (citing Parks v. Dowell, 712 F.2d 154, 156 (5th Cir. 1983)). 26. Id at 385. 27. Id. at 386. Because there are at least two sources of law in seamen's personal injury actions, i.e., statutory (Jones Act) and general maritime law (unseaworthiness and/or negligence), the court while recognizing that no cause of action exists under the Jones Act for the spouses' nonpecuniary losses, nevertheless was able to create such a right under general maritime law. Id. 28. 744 F.2d 494 (5th Cir. Oct. 1984). 29. The statutory claim requires a finding of negligence, see Harris v. Whiteman, 243 F.2d 563, 565 (5th Cir. 1957), while the claim premised on seaworthiness does not. See Mitch- ell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). 30. 744 F.2d at 496 (citing 28 U.S.C. § 1441(c) (1982)). 31. Id. Through the efforts of industrious defense counsel the state court action was removed to federal court even though removal of a Jones Act claim is widely recognized not to be permitted. See Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir. 1952); G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY § 6-28, at 357 (2d ed. 1975). 32. 744 F.2d at 499. 1986] ADMIRALTY 369 quite distinct from the general maritime right of recovery for failure to pay maintenance and cure, the examination must be "whether or not there was a 'wrongful invasion of a single primary right of the '33 plaintiff,' not how many different legal causes of action are alleged." In the traditional seaman's action coupling the Jones Act remedy with the right to a seaworthy vessel, the vast majority of cases involve damages arising from a single incident.34 If the claims involve substantially the same facts which indicate a single, primary right, the courts do not permit the maintenance and cure claim to be severed and removed to the federal court. 35 The Addison court found that the maintenance and cure claim was so intertwined with the statutory Jones Act claim that removal should not have been permitted and the entire action was remanded to the Mississippi state court. 36 The Ad- dison holding concerned only the general maritime rights of maintenance and cure but the same rationale would appear to hold where the general maritime law recovery would be based upon the seaman's right to a seaworthy vessel. In Albertson v. TJ. Stevenson & Co. , the court crystallized its position concerning the time at which a cause of action accrues when a seaman has been exposed to toxic chemicals over an extended period. Mr. Albertson, an electrician aboard a vessel, was exposed to trichloroethylene during his daily job routine.38 He served aboard the vessel for a period of approximately six months in 1968 and 1969.39 While aboard the vessel, he knew he was exposed to trichloroethylene and he knew that the symptoms he experienced aboard the vessel, including headache, nausea and brief episodes of unconsciousness, were caused by exposure to the chemical. 4' Once the vessel returned to the United States, Mr. Albertson was given a master's certificate for medical treatment and he was treated by physicians for exposure to the trichlorethylene.41 The lawsuit was not filed until approximately twelve years after the exposure at which time the seaman al-

33. Id. at 500 (quoting American Fire & Cas. Co. v. Finn, 341 U.S. 6, 14 (1951)) (emphasis original). 34. See, e.g., G. GILMORE & C. BLACK, supra note 31, §§ 6-25, at 349 (Jones Act claim must be joined with unseaworthiness claim in certain cases). 35. Addison, 744 F.2d 500-01. 36. Id. 37. 749 F.2d 223 (5th Cir. Dec. 1984). 38. Id. at 226. 39. Id. 40. Id. at 227. 41. Id. 370 TEXAS TECH LAW REVIEW [Vol. 17:365 leged an array of serious medical conditions including skin disorders, liver dysfunction and a disabling mental condition.42 The case was not tried to the court but reached the Fifth Circuit after the district court granted defendant's motion for summary judgment.43 The Fifth Circuit defined two broad categories with differing time of accrual rules. The first is the "pure latent injury case," best characterized by the typical asbestosis claimant." With an exposure period spanning a number of years the worker generally does not know of the injury until substantially after the first exposure.45 In a pure latent injury case, the discovery rule is applied and the cause of action does not accrue on the date the tortious act occurred (date of exposure), but on the date that the plaintiff discovers or reasonably should have discovered both the injury and causation.46 The Fifth Circuit characterized Albertson's case as one of "traumatic event/latent manifestation."47 The plaintiff knew that he was exposed to a dangerous chemical, he suffered immediate, serious and noteworthy effects which he knew or should have known were caused by exposure to that specific chemical; therefore, Albertson's cause of action ac- crued in 1968, the date he was exposed to the trichlorethylene." Even though additional injuries may become manifest much later, the court reasoned that balancing the fairness to the defendant, a seaman's statutory claim will be time-barred three years from the date of first exposure and first knowledge of the causative agent and injury.4 9 This decision may force plaintiffs to pursue their action before the full ramifications of their injury are known. Since any personal injury damages recoverable by a plaintiff must be based upon reasonable medical probability, certain medical damages may be foreclosed should the injury later evolve into something more serious. This result is justified by the defendant's right to prompt vindication. An

42. Id. 43. Id. at 226. 44. Id. at 230. 45. Id.; see also Urie v. Thompson, 337 U.S. 163, 170 (1949) (action for silocosis not an injury until disease manifests itself). 46. 749 F.2d at 230. 47. Id. 48. Id. at 233. 49. Id. at 232. The court drew additional support from DuBose v. Kansas City S. Ry., 729 F.2d 1026 (5th Cir.), cert. denied, 105 S.Ct. 179 (1984), decided pursuant to the Federal Employers Liability Act (FELA) 45 U.S.C. 51-60 (1982), finding that the railroad's employee's cause of action does not accrue for limitations purposes until the employee knows facts of injury and causation. 729 F.2d at 1030. 1986] ADMIRALTY adequate defense requires investigation, which is practically prevented by the plaintiff's lengthy delay in making a claim: disappearing witnesses, lost or destroyed files and fading memories.50 The court continues to struggle through conflicting precedents in the area of prejudgment interest for personal injury actions. A trio of cases was decided during the survey period which should provide future guidance to counsel: Wyatt v. Penrod Drilling Co., Domangue v. Penrod Drilling Co.52 and Williams v. Reading & Bates Drilling Co.53 Wyatt v. Penrod Drilling Co. was chronologically the first of the three cases.54 The plaintiff obtained a jury trial of both his statutory Jones Act negligence cause of action and his general maritime law claim for unseaworthiness 55 The jury returned a verdict for the plaintiff.5 6 In a post verdict motion, the plaintiff then sought an award from the trial court for prejudgment interest, which was denied. 7 Although invoking both admiralty and diversity jurisdiction, the plaintiff initially claimed in his motion that he was entitled to prejudgment interest pursuant to Louisiana law; the district court did not agree, found that the claim was controlled by federal maritime law, and denied plaintiff's request for prejudgment interest. 8 Candidly recognizing that prior case law was ambiguous, the Fifth Circuit stated that the trial court was faced with the "difficult task of determining what is the rule of this circuit."59 The court held that when the Jones Act claim is merged with the general maritime claim (here, unseaworthiness), there existed no basis for separating the two causes of action and the plaintiff would not be permitted to recover prejudgment interest. 60 Finding no Fifth Circuit support, the court relied principally upon Barton v. Zapata Offshore Co. ,6 a 1975 opinion au-

50. 749 F.2d at 232. 51. 735 F.2d 951 (5th Cir. July 1984). 52. 748 F.2d 999 (5th Cir. Dec. 1984). 53. 750 F.2d 487 (5th Cir. Jan. 1985). 54. 735 F.2d at 951. 55. Id. at 953. 56. Id. 57. Id. 58. Id. at 955. 59. Id. at 955-56. Compare Barrios v. Louisiana Constr. Materials Co., 465 F.2d 1157, 1168 (5th Cir. 1972) (prejudgment interest generally not allowed in Jones Act claim tried to a jury) with Ceja v. Mike Hooks, Inc., 690 F.2d 1191, 1196 (5th Cir. 1982) (prejudgment interest generally allowed in Jones Act claim when tried jointly with a maritime claim before a judge). 60. 735 F.2d at 956; see also supra note 34 and accompanying text. 61. 397 F. Supp. 778 (E.D. La. 1975). TEXAS TECH LAW REVIEW [Vol. 17:365 thored by then District Judge Rubin. If the court may not award prejudgment interest in the Jones Act claim, there is no separate "pure" admiralty item on which to allow interest . . . . The plaintiff may not claim the benefits of a jury trial on an unseaworthiness claim completely merged with the Jones Act claim as to quantum62 and then attempt to unscramble the verdict after he prevails. In a closing sentence however, the Wyatt court seemed to invite enter- prising plaintiff's counsel to circumvent its holding of no prejudgment interest by submitting the damage issues via separate special interrogatories: "As in Barton, the special interrogatories propounded in this case do not provide any basis for determining which portion of the damage award, if any, is attributable to unseaworthiness rather than Jones Act negligence. "63 Apparently recognizing that the Wyatt decision paved the way for separate special interrogatories concerning Jones Act negligence damages and general maritime law damages, the court effectively withdrew this invitation in Domangue v. Penrod Drilling Co. I Like Mr. Wyatt, Mr. Domangue coupled his Jones Act remedy with his unseaworthiness remedy and tried it to a jury. 65 Again, the Fifth Cir- cuit denied prejudgment interest because the special interrogatories provided no basis for determining which portion of the damage award was due to the unseaworthiness claim and which portion was due to the Jones Act negligence claim.66 The only footnote of the Domangue decision is as follows: We do not suggest that the jury should always be asked to determine the extent of damages attributable to negligence as opposed to unseaworthiness. Usually a plaintiff who seeks recovery under the Jones Act and general maritime law for injuries sustained in a single accident has no basis for apportioning his damages between each theory of recovery. The trial court may exercise its discretion to award prejudgment interest only when a pure admiralty item of damage-such as damages caused by unseaworthiness-can be isolated and thus identified in the verdict. In the absence of such a determination, no prejudgment interest may be awarded.67

62. 735 F.2d at 956 (quoting Barton v. Zapata Offshore Co., 397 F. Supp. 778, 780 (E.D. La. 1975)). 63. Id. at 956. 64. 748 F.2d 999 (5th Cir. Dec. 1984). 65. Id. at 1000. 66. Id. at 1001. 67. Id. at 1001 n.l. 19861 ADMIRALTY

The Pandora's box opened by Wyatt appears to have been effectively closed in Domangue. In the final case of this threesome, Williams v. Reading & Bates Drilling Co. ,68 the plaintiff elected to try his lawsuit to the court without a jury. Procedurally, Williams is somewhat peculiar since it of- fered the Fifth Circuit an opportunity to review a personal injury case in which recovery was based strictly upon the statutory negligence cause of action.69 The court, relying in part upon the dicta found in Domangue, held that when only the Jones Act claim is tried to the court then the award of prejudgment interest is discretionary.7 ° The rules regarding the award of prejudgment interest in the typical seaman's personal injury action can now be summarized as follows: (a) Prejudgment interest will not be permitted when the Jones Act claim is tried to the jury, even if coupled with a claim under the general maritime law, unless the injury caused by unseaworthiness71 can be clearly isolated from the injury caused by negligence; (b) Prejudgment interest will generally be awarded as a matter of course in any action tried to the court 72 based on general maritime law principles; (c) A prejudgment interest award will be discretionary if the Jones Act claim is tried to the court, whether such claim is solitary or coupled with a claim for unseaworthiness under the general maritime law.73

B. Brown Water 74 Claimants

Senior Circuit Judge John R. Brown's 7 maritime opinions over the years have been marked by extended and mixed nautical meta- phors and analogies, of which the following excerpt is a choice addi-

68. 750 F.2d 487 (5th Cir. Jan. 1985). 69. Defendants entered into a pretrial stipulation admitting causative negligence and there was no other proof concerning any unseaworthiness causation or negligence. Id. at 490. 70. Id. at 491. 71. See Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 883 (5th Cir. Oct. 1984); Wyatt v. Penrod Drilling Co., 735 F.2d 951, 955-56 (5th Cir. July 1984). 72. See Wyatt, 735 F.2d 951, 955-56 (5th Cir. July 1984); Ceja v. Mike Hooks, Inc., 690 F.2d 1191, 1196 (5th Cir. 1982). 73. Hall, 735 F.2d at 955-56; Williams, 750 F.2d at 491. 74. See supra note 7. 75. Judge Brown, to whom the entire maritime legal community is indebted, has continu- ously served the circuit since 1955 as circuit judge or senior circuit judge. TEXAS TECH LAW REVIEW [Vol. 17:365 tion to the collected works used here to introduce the court's struggle with the law where the sea meets the shore. Now over a dozen years ago, amendments to the Longshoremen's and Harbor Worker's Compensation Act (LHWCA) beached the skow UNSEAWORTHINESS, built by Sieracki to launch a new vessel for longshoreman recovery-the clipper REASONABLE CARE. Able crafters though they were, the Shipbuilders of Capi- tol Hill were unwilling to venture out on the waters of tort law, and left the REASONABLE CARE adrift in the doldrums of vagueness, its destiny in the steady hands of its nine Supreme Pi- lots and its energetic (but rarely cohesive) Circuit and District Crew. 'Through the straits of De Los Santos', was the Pilot's terse command. Once again, a Crew of the Fifth will try mightily to 7 6 obey. In an attempt to navigate the straits of De Los Santos the court has decided several cases, two of which bear review here. In Futo v. Lykes Bros. Steamship Co. , the court was called upon to decide under what circumstances the defending vessel owner is required to intervene into the on going stevedore78 or repair contractor operations in order to remedy a specific dangerous condition.79 After a thorough review of the Fifth Circuit's jurisprudence prior to De Los Santos and a succinct delineation of the De Los Santos principles, the court held that even if the shipowner is shown to have had actual knowledge of a dangerous condition within the confines of the ongoing cargo operations, the vessel owner was not saddled with a duty to intervene in that instance.8" The primary responsibility for the safety of the longshoremen rests with the stevedore. This "most basic" principle provided the basis of the decision. 8 The defendant vessel owner had entered into a contract with the deceased repairman's employer, Dixie

76. Stass v. American Commercial Lines, Inc., 720 F.2d 879, 880 (5th Cir. 1983) (Brown, J.). Scindia Steam Navigation v. De Los Santos, 451 U.S. 156 (1981) addressed itself to the standard of care which the vessel owner owes to longshoremen in negligence actions brought pursuant to 33 U.S.C. § 905(b) (1982). The De Los Santos standard has, with minor modifications, been applied in the context of repairmen injured aboard the vessel. See, e.g., Stass, 720 F.2d at 882 (owner has no duty to repairman when the repairs would remedy the condition causing the injury); Hill v. Texaco, Inc., 674 F.2d 447, 452 (5th Cir. 1982) (no duty of care where person's reason of employment was to make unsafe condition safe). 77. 742 F.2d 209 (5th Cir. Sept. 1984). 78. The stevedore is the company which employs the longshoremen. 79. 742 F.2d at 214. 80. Id. at 221. 81. Id. at 213; see also Helaire v. Mobil Oil Co., 709 F.2d 1031, 1038 (5th Cir. 1983) (owner not liable unless he has actual knowledge the stevedore will not remedy the problem). 1986] ADMIRALTY

Machine Welding & Metal Works, to perform substantial repairs aboard Lykes' vessel.8 2 During the course of those repairs, Futo fell to his death, allegedly due to the absence of a handrail on the scaffolding.8 3 Clearly the absence of the handrail was open and obvious to the employees of Dixie. It was equally clear that the shipowner, Lykes Brothers, did not own the scaffolding and had not been involved in creating the danger.84 The defendant advocated to the court that the shipowner's duty to intervene should hinge simply upon whether or not the ship's equipment or gear was involved.85 Such a relatively clear rule would have made analysis simpler in future cases. However, the Fifth Cir- cuit declined to adopt such a rule and opted for a case-by-case analysis. 86 The court emphasized that something more than the mere shipboard location of the dangerous condition and the shipowner's knowledge of this condition was required to trigger a shipowner's duty to intervene. The court indicated that in most cases this something more may well be the involvement of ship's gear; but that such involvement is not essential.87 Turner v. Costa Line Cargo Servs., Inc. 88 allowed the court to review the vessel owner's duty concerning dangerous conditions not strictly confined to the specific area of the stevedore's operations. The plaintiff, Turner, was a deck man for the stevedore's securing gang working near the No. 4 hold.89 Just aft of the No. 4 hold was a pile of dunnage consisting of boards, rags, sawdust, oil and grease. 90 The dunnage pile generated a slick area of oil and grease, which the trial court, affirmed by the circuit court, found to be outside the area that was turned over to the stevedore for cargo operations.9" The oil slick was present aboard the vessel prior to the plaintiffs boarding the ship the morning that he was injured.92 No warnings by the vessel's crew

82. 742 F.2d at 211. 83. Id. 84. Id. at 218. 85. See id. at 215. 86. Id. 87. Id. 88. 744 F.2d 505 (5th Cir. Oct. 1984). 89. Id. at 507. 90. Id. 91. Id. at 507, 509. 92. Id. at 507. At least two requests were made by the stevedore to vessel personnel to clean up the oil. Id. 376 TEXAS TECH LAW REVIEW [Vol. 17:365 were ever issued to Mr. Turner concerning the slick area.93 Conse- quently, Mr. Turner slipped and fell on the slick area. The circuit court affirmed the trial court's imposition of liability upon the defendant shipowner relying upon Helaire v. Mobil Oil Co.94 The court reasoned that since the slick was not in the area turned over to the stevedore for cargo operations and since the shipowner had actual knowledge of the dangerous condition, the vessel owner was liable.95 A strong dissent was filed detailing that the facts did not support the conclusion that the oily area was outside the area turned over to the stevedore for cargo operations.96 The dissent pointed out that the location of the accident was under the control of the stevedore and that the appearance of the danger was obvious and apparent.97 Turner pivoted upon a definition of the "area turned over to the stevedore for cargo operations."9' 8 This panel of the Fifth Circuit, however, was not able to reach an agreement and it is to be expected that further decisions on this facet of the De Los Santos duty will be equally mixed. In 1972, the Longshoremen's and Harbor Worker's Compensa- tion Act99 was amended by deleting the longshoremen's cause of action against a third party shipowner premised upon the warranty of seaworthiness, thereby restricting this cause of action to one sounding only in negligence."° It was clear from early post-amendment case law that injuries occurring prior to the effective date of the 1972

93. Id. 94. 709 F.2d 1031 (5th Cir. 1983). "Once loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore . . . only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation." Id. at 1038-39 (emphasis original). 95. 744 F.2d at 511. 96. Id. at 513 (Gee, J., dissenting). 97. Id. The dissent viewed Stass v. American Commercial Lines, Inc., 720 F.2d 879 (5th Cir. 1983), as dispositive, in not requiring the vessel owner to remedy slippery footing around hatches. Turner, 744 F.2d at 512-13 (Gee, J., dissenting). The dissent also argued for "a simple and workable rule: that once the shipowner turns the vessel over to the stevedore for loading or unloading operations, primary responsibility for the safety of the stevedore's employees rests with him (the stevedore), subject only to . . . [three] narrow exceptions." Id. at 512. These three exceptions were: (1) failure to warn on turning over the ship of hidden defects of which he should have known, (2) injury caused by hazards under the control of the ship, and (3) failure to intervene in the stevedore's operations when he has actual knowledge both of the hazard and that the stevedore .. cannot be relied on to remedy it." Id. at 512. 98. 744 F.2d at 509. 99. 33 U.S.C. §§ 901-950 (1982). 100. See generally G. GILMORE & C. BLACK, supra note 31, § 6-46, at 411. Prior to 1972, the injured longshoreman who performed the work customarily undertaken by a seaman could 1986] ADMIRALTY amendments would be controlled by the pre-1972 Act while those injuries occurring after the effective date of the amendments would be controlled by the Act as rewritten in 1972. l°' It was not clear, however, as to what substantive law would apply where an injured claimant was exposed to a toxic substance prior to the effective date of the 1972 amendments yet the disease did not manifest itself until after the 1972 amendments. The Fifth Circuit provided an answer to this question in Castorinav. Lykes Bros. Steamship Co. "02 Guiseppe Castorina was a longshoreman employed in the Galveston area from 1955 through the mid-1970's.'03 The trial court identified fifteen specific vessels from which the plaintiff discharged raw asbestos between 1965 and 1972."°4 The plaintiff's final exposure to asbestos occurred May 1972 and the asbestosis was diagnosed in 1979.05 The circuit court agreed with the Castorina trial court in defining the date of injury as the date when the disease actually manifests itself.'0 6 By doing so, the Fifth Circuit clearly positioned itself in ac- cord with the Ninth Circuit. 07 The court distinguished Harrison v. Flota Mercante Grancolombiana,S.A.,1 °s a case involving a similar injury to the plaintiff, but resulting from a single, identifiable exposure.'0 9 In that case, although Harrison was exposed to the toxic substance prior to the 1972 amendments, as was Castorina, Harrison's injury manifested itself prior to the effective date of the 1972 amendments and Harrison recovered under the pre-1972 law." 0 The 1972 amendments measurably increased the compensation payments made to an injured worker covered by the Act."' It is logically consistent to find that no injury occurs until the worker is unable to continue his maintain an action against the vessel premised on the warranty of seaworthiness. Seas Ship- ping Co. v. Sieracki, 328 U.S. 85, 97 (1946). 101. See Stockstill v. Gypsum Transp., 607 F.2d 1112, 1114-16 (5th Cir. 1979), cert. denied, 451 U.S. 969 (1981). 102. 758 F.2d 1025 (5th Cir. Apr. 1985). 103. Id. at 1027. 104. Id. 105. Id. 106. Id. at 1031. 107. Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1288-89 (9th Cir. 1983), cert. denied, 104 S. Ct. 1910 (1984). The Ninth Circuit was primarily concerned with the time of injury for purposes of computing compensation under § 910 of the Act, not an action against a vessel under § 905(b). Id. See 33 U.S.C. § 905(b) (1982). 108. 577 F.2d 968 (5th Cir. 1978). 109. Id. at 972. 110. Id. at 973 n.2. 111. G. GILMORE & C. BLACK, supra note 31, § 6-46 at 411. TEXAS TECH LAW REVIEW [Vol. 17:365 job duties and thus unable to generate income. A diligent search by the Fifth Circuit revealed support for this rationale in classic Judge Learned Hand language: "the [LHWCA] is not concerned with pa- thology, but with industrial disability; and a disease is no disease until it manifests itself."' 12 Castorina contains a second precedential point which may prove as fertile as the first. The defendant in Castorina, Lykes Brothers, not only owned the vessels aboard which the plaintiff worked, but also provided the stevedoring services to unload its own vessels." 3 Cas- torina was employed by the defendant's stevedoring division.' A longshoreman has no tort remedy against an employing stevedore and the worker's exclusive remedy against his employer is compensation benefits." 5 The court, utilizing somewhat the same separate and distinct rationale initially found in Reed v. The Yaka, " 6 found no reason to impute knowledge from the stevedoring branch to the vessel-own- ing branch of the defendant." 7 The duties and remedies of the Act were found to be separate and distinct. The court declined to use a different standard of care where the vessel owner and stevedore were one and the same; a result which would have effectively imputed the stevedore's knowledge of a dangerous condition to the defendant vessel owner. Voisin v. 0. D.E. C.0. Drilling Co." 8 stands for the proposition that a service contractor or stevedore may list the vessel owner as an additional named assured under the stevedore's compensation policy and not violate the 1972 Amendments to the Act." 9 In such a fashion, the shipowner can now make the service contractor or stevedore, by contract, insulate itself from liability. Section 905(b) specifically provided that the "employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to 12 the contrary shall be void."' 1 In the face of this heretofore clear pro-

112. Grain Handling Co. v. Sweeney, 102 F.2d 464, 466 (2d Cir.), cert. denied, 308 U.S. 570 (1939). 113. 758 F.2d at 1027. 114. Id. 115. 33 U.S.C. §§ 904, 905(a) (1982). 116. 373 U.S. 410 (1963). 117. 758 F.2d at 1033. 118. 744 F.2d 1174 (5th Cir. Oct. 1984). 119. Id. at 1177. 120. 33 U.S.C. § 905(b) (1985 Supp.). 1986] ADMIRALTY hibition against the pre-1972 Seirecki-Ryan12 round-robin, whereby the employer's "exclusive" liability protection under the compensation statute was circumvented, the court found that the 1972 amendments did not explicitly prohibit the practice of additional named assureds, and there was no legislative history to indicate that the in- 22 tent of the drafters was to prohibit such agreements. Traditionally, compensation underwriters have permitted an assured to purchase specific endorsements or riders extending the coverage under the policy to other business entities with which the primary assured may have a relationship. 23 This procedure has enjoyed an enormous popularity over the last twenty years, particularly in the context of exploration and production of minerals on the outer continental shelf. The procedure of listing additional named assureds on a service contractor's compensation policy has traditionally been only one of three protective devices employed by those in a position of being able to pick and choose between a number of service contractors available in a market. The named assured procedure is generally coupled with a waiver of subrogation and an indemnity agreement. The typical master service agreement or blanket agreement employed for offshore operations in the Gulf typically contains all three elements. The service contractor, whether a wire line operator, seismic special- ist, or a specialized welding contractor, wants to work. There are a limited number of leaseholders or operators. In order to obtain a job, the contractor signs the master service agreement, lists the operator, who in Voisin happened to be a vessel owner, as an additional named assured, and then goes to work. The contractor will usually bear the burden of any additional premium. The Voisin court cites no Fifth Circuit precedent in support of its holding. It looks to the Ninth Circuit for support in the form of Price v. Zim Israel Navigation Co. 124 Like Voisin, Price looked only at the legislative history and the statute itself to conclude that a similar named assured procedure did not violate the provision of the Act.'25 The most telling provision of the legislative history contained in the House Labor and Education Committee Report is: "It is the Com-

121. See Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., 350 U.S. 124 (1956); Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946). 122. 744 F.2d at 1177. 123. See generally APPLEMAN, INSURANCE LAW AND PRACTICE § 4497.02 (1979). 124. 616 F.2d 422 (9th Cir. 1980). 125. Id. at 428. TEXAS TECH LAW REVIEW [Vol. 17:365 mittee's intention to prohibit such recovery [of a vessel against an employer] under any theory including, without limitation, theories based on contract or tort. 12 6 Post-1972 Supreme Court precedent recognized that the purpose of the section 905(b) addition was to limit the employer's liability only to the compensation specified in the statute.1 27 Both Voisin and the Ninth Circuit precedent upon which it relies ignore the general unity of interest which exists between the underwriter and its assured. It is submitted that the additional named assured procedure requires the stevedore or service contractor's underwriter to bear the risk for the underwriter's client, the primary assured, as well as the client, or the prospective client, of the primary assured. Since the Able Shipbuilders of Capitol Hill' 28 have prohibited the vessel's recovery from the stevedore under any theory, then the theory of allowing the stevedore's underwriter to pay for the vessel's negligence by way of procured liability insurance coverage should be prohibited as well. Vessel owners, when next faced with the choice of several stevedores or service contractors ready, willing and able to work, might well require the vessel and its owners/operators 129 to be named as an additional assured. May the federal courts exercise admiralty jurisdiction over asbestosis claims pursued by shore-based insulators when at least a portion of the injury occurred while working with asbestos on ships in navigable waters? During the survey period, the Fifth Circuit responded to this question by finding that admiralty jurisdiction did not exist in Woessner v. Johns-Manville Sales Corp. 130 It is somewhat remarkable that each of six circuits which have considered this specific issue, have agreed that no jurisdictional nexus exists.' 3 ' An earlier Fifth Circuit

126. H.R. REP. No. 1441, 92d Cong., 2d Sess. 7, reprinted in [1971] U.S. CODE CONG. & AD. NEWS 4698, 4704. 127. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 261 (1979). 128. See Stass, 720 F.2d at 880. 129. The court rationalizes the Voisin holding by finding no evidence of overreaching or oppressive conduct by the operator, see Voisin, 744 F.2d at 1179. This fails to recognize the realities of negotiating offshore service contracts. Both Texas and Louisiana have recognized the disparity of bargaining positions by voiding certain indemnity provisions contained in specific agreements. TEX. CIV. PRAC. & REM. CODE ANN. §§ 127.001-.008 (Vernon 1986); LA. REV. STAT. ANN. § 9:2780 (West 1985 Supp.); see also Preis & Broussard, The Louisiana Oilfield Indemnity Act of 1981, 1982 LA. B.J. 179. 130. 757 F.2d 634, 649 (5th Cir. Apr. 1985). 131. See Austin v. Unarco Indus., 705 F.2d 1 (1st Cir.), cert. dism'd, 104 S. Ct. 34 (1983); Keene Corp. v. United States, 700 F.2d 836 (2d Cir.), cert. denied, 104 S. Ct. 195 (1983); Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir. 1985); Myhran v. Johns-Manville Corp., 741 F.2d 1119 (9th Cir. 1984); Harville v. Johns-Manville Prods. Corp., 731 F.2d 775 1986] ADMIRALTY case, Kelly v. Smith,13 2 involving slightly different issues was the first to enunciate four specific analytical factors which are to be considered in determining whether the nexus requirement of Executive Jet A via- tion, Inc. v. City of Cleveland 133 and Foremost Insurance Co. v. Rich- ardson,134 would be satisfied. The four Kelly factors are: (a) The functions and roles of the parties; (b) The types of vehicles and instrumentalities involved; (c) The causation and type of injury; and (d) The traditional concepts of the role of admiralty law.135 Four of the six circuits which have found that admiralty jurisdiction does not exist for the asbestosis claims of shore-based insulators have adopted the four-factor Kelly analysis.' 36 The Woessner plaintiffs were shore-based individuals installing or repairing general purpose insulation which is used to insulate refinery pipe systems as well as pipes in the engine room of vessels situated on navigable water.'37 Once the Kelly factors are analyzed against this background, the injuries complained of by the Woessner plaintiffs do not bear a significant relationship to traditional maritime activity. 38

III. COLLISION/CASUALTY DAMAGES In a distinguished and cogent opinion, so categorized both for the extensive dissenting opinion filed by Judge Wisdom as well as for the majority opinion authored by Judge Higginbotham, the court, sitting en banc, has demarcated a bright line rule requiring physical damage to a proprietary interest as a predicate for recovery of economic loss caused by an unintentional marine tort, thus continuing

(11th Cir. 1984); Owens-Illinois, Inc. v. United States Dist. Court, 698 F.2d 967 (9th Cir. 1983). The Fourth Circuit's en banc decision in Oman overruled a previous panel decision finding that admiralty jurisdiction existed in substantially similar circumstances, White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir. 1981), cert. denied, 454 U.S. 1163 (1982). 132. 485 F.2d 520 (5th Cir. 1973), cert. denied, 416 U.S. 969 (1974). 133. 409 U.S. 249, 253 (1972). 134. 457 U.S. 668, 673 (1982). Read together, Executive Jet and Foremost require that in order for a tort claim to be within the court's admiralty jurisdiction, the alleged wrong must have a maritime locality and bear a significant relationship to traditional maritime activity. Smith v. Pan Air Corp., 684 F.2d 1102, 1108 (5th Cir. 1982). 135. 485 F.2d at 525. 136. Fourth Circuit: Oman, 764 F.2d 224 (1985); Fifth Circuit: Woessner, 757 F.2d 634 (Apr. 1985); Ninth Circuit: Myhran, 741 F.2d 1119 (1984); Eleventh Circuit: Harville, 731 F.2d 775 (1984). 137. 757 F.2d at 637. 138. Id. at 649. TEXAS TECH LAW REVIEW [Vol. 17:365 the tenacious but frequently criticized rule of Robins Drydock & Re- pair Co. v. Flint.139 In Louisiana v. M/V Testbank, 1' fifteen judges of the Fifth Circuit participated in this decision.14' Four members of the panel joined with Judge Wisdom in his dissent.'42 Four judges filed three separate opinions specially concurring with the majority opinion although for somewhat different reasons or emphasis. 143 The majority opinion of the court is therefore represented by the unaltered views of six judges. The basis of the Testbank decision clearly is Robins Drydock, but divergent views of the precise holding of Robins Drydock form the basic dichotomy separating the dissent from the opinion of the court in M/V Testbank.' The facts underlying the Robins decision are relatively simple. The vessel's time charterer was required by the terms of the charter party to periodically drydock the vessel for maintenance.'45 The charterer was not required to pay charter hire during the drydock period.'46 The owner of the drydock had contracted directly with the vessel owner, not the charterer, for the scheduled repairs during which the vessel's propeller was damaged necessitating replacement.' 47 The additional delay time of approximately two weeks resulted, as alleged by the plaintiff, in loss of profit to the vessel charterer. 48 A unanimous Supreme Court, in an enigmatic and pithy opinion by Mr. Justice Holmes, denied the charterer's claim of lost 49 profits. 1 The Testbank opinion reflects two distinct views of the Supreme Court's basis for reaching its conclusion in Robins. Judge Wisdom's dissent views Robins as holding only "that if a defendant's negligence injures Party A and the plaintiff suffers loss of expected income or

139. 275 U.S. 303 (1927). 140. 752 F.2d 1019, 1032 (5th Cir. Feb. 1985). The Testbank plaintiffs included fisher- men, both commercial and recreational, marine, tackle and bait operators, wholesale and retail food enterprises, cargo terminal operators, vessel operators and an operator of railroad freight cars all complaining of loss of income or demurrage resulting from a large PCP spill arising out of a collision in the Mississippi River Gulf Outlet. Id. at 1020-21. 141. Id. at 1020. 142. The dissenting judges were Judges Rubin, Politz, Tate, and Johnson. See id. at 1035. 143. Judge Gee and Chief Judge Clark filed jointly concurring opinions, and Judges Wil- liams and Garwood filed separate concurrences. 144. 752 F.2d at 1021, 1039. 145. 275 U.S. at 307. 146. Id. 147. Id. 148. Id. 149. Id. at 309. 1986] ADMIRALTY profits because it had a contract with A, then the plaintiff has no cause of action based on the defendant's negligence."' 5 ° If this indeed is the Robins rationale, then it does not provide controlling precedent for the facts as presented in the Testbank situation, thus freeing the court to forge ahead into uncharted territory. The majority of the Testbank court, however, views the Robins rationale as not limited merely to a contractual rule, but as a tort rule.' 5' Drawing strong inferences from the Supreme Court's citation of three specific cases, two from the United Kingdom and one from the United States, 52 the majority opinion finds that the charterer in Robins failed to recover its delay claims from the drydock because the court believed them to be too remote although clearly foreseeable.' 53 In lieu of the bright line rule of requiring damage to a pecuniary interest, the Testbank dissent would bring the analysis into the fold of modem tort law by limiting recovery only by proximate cause, fore- seeability and remoteness.' 54 This analysis by its very nature requires a case-by-case, ad hoc analysis. 5 A case-by-case approach would result in a much larger number of lawsuits arising out of a maritime casualty. This in turn spotlights an undercurrent running throughout Judge Higginbotham's majority opinion as well as Judge Gee's concurring opinion: that the American judiciary system is simply not equipped to resolve disputes of the nature and magnitude arising out of disasters involving directly hundreds and indirectly thousands of possible claimants. 56 Such a rule appears to be based upon some wisdom in view of the docket conditions caused by toxic tort litigation in the products liability area. The Testbank rule is easily stated: Physical damage to a proprietary interest is a prerequisite to recovery for economic loss in cases of

150. 752 F.2d at 1040. 151. Id. at 1023-24. 152. 275 U.S. at 309 (citing Elliott S.S. Steam Tug Co. v. Shipping Controller [1922] 1 K.B. 127; Byrd v. English, 117 Ga. 192, 43 S.E. 419 (1903); The Federal No. 2, 21 F.2d 313 (C.C.A. 1927)). 153. 752 F.2d at 1023. 154. Id. at 1046. 155. Id. at 1051. 156. "An exhaustive study of the deficiencies of applying a mechanism originally devel- oped to decide who owns title to Blackacre, or whether it was Smith or Jones who ran the stop sign in his wagon, to the management of general disasters is beyond either the demands of this writing or the competence and available time of its writer." Id. at 1032-33 (Gee, J., concurring). 384 TEXAS TECH LAW REVIEW [Vol. 17:365

unintentional maritime tort.'57 The court, by choosing not to open the door to all claims restrained only by proximate cause and foresee- ability, has decided to continue with the traditional analysis. Although abundant reasons are detailed for both the majority and dissenting views, the single, unquestionable result of the opinion is that it restricts the number of maritime claims which will be brought into the federal courts. Is that an appropriate result or basis for decision? An analysis of that underlying question is, paraphrasing Judge Gee, beyond either the demands of this writing or the competence and available time of this writer. 58 Twenty-five days after the Testbank decision, the case of Domar Ocean Transportation v. M/V Andrew Martin was decided."5 9 With only twenty-five days sea time, the Testbank's bright line rule was somewhat tarnished. The Andrew Martin decision provides fuel for the litiguous fires because of its expanded definition of proprietary interest." 6 Domar Ocean Transportation, Ltd., owner of a large tank barge, had entered into an open-ended charter party for the tugboat which was permanently assigned to the particular barge. 6 ' The barge, but not the tugboat, was damaged in a collision involving the entire towing unit, the flotilla.' 62 Although the tug worked other jobs during the barge repair period, the tug earned less than it would have but for the collision. Hence Domar made a claim for loss of profits by the tug during the barge repair period.1 63 Although Domar clearly did not own the tug, the court held that it did indeed have a proprietary interest in the tug and barge as a unit.' "6 Since the tug and tow as a unit had been incapacitated due to the collision, Domar, as a long-term charterer of the tugboat was entitled to recoup the net loss profits. 165 The court reasons that since the tug and tow were designed to be operated as an integrated unit, the profit structure should be

157. Id.at 1020. 158. See id. at 1033. 159. 754 F.2d 616 (5th Cir. Mar. 1985). 160. Id. at 619. 161. Id.at 617-18. 162. Id.at 618. 163. Id. 164. Id. at 619. 165. Id. "We are persuaded that Domar had the requisite proprietary interest in the [tug- tow] combination. The [tug-tow] unit was physically damaged through [defendant's] stipu- lated negligence. Thus, Testbank is no bar to Domar's recovery for the loss of use of the unit." Id. 1986] ADMIRALTY

viewed likewise. 166 Additionally, the charterer, Domar, had ex- pended large sums for major structural modifications to the tugboat.' 67 The long-term, open-ended charter which placed all responsibility for maintaining, operating and insuring the tugboat into the hands of the charterer, combined with the fact that the tug and tow were operated as an integrated unit, convinced the Fifth Circuit that the charterer maintained the required proprietary interest in the tug/tow combination. 6 '

IV. FORUM NON CON VENIENS

Personal injury litigants continue to be drawn to the United States, and the Fifth Circuit provides the irresistible light. 169 Holding true to form, the Fifth Circuit has, within this survey period, attempted to add a clarifier to the forum non conveniens 70 brew. Nicol v. Gulf Fleet Supply Vessels, Inc. '7' and Ali v. Offshore Co., 172 read in tandem, are the clarifying agents. Both the Nicol and the Ali fact situations involved a vessel owned or controlled by U.S. entities either primarily or through various sub- sidiaries."' The primary fact that distinguishes the two cases is that the injuries in Ali occurred within the territorial waters of another sovereign while the Nicol injuries occurred on the high seas.7 4 Each district court erred in the same fashion by dismissing the claim once

166. Id. 167. Id. 168. Id. The Domar case also was concerned with the method of calculating the lost profits to which the charterer was entitled. Another case decided during the survey period con- taining an indepth discussion of the calculation of demurrage damages, specifically, the use of substitute vessels during the repair period is Delta Steamship Lines, Inc. v. Avondale Ship- yards, Inc., 747 F.2d 995 (5th Cir. Dec. 1984), as modified on reh'g, 753 F.2d 378 (5th Cir. Feb. 1985). 169. "As a moth is drawn to the light, so is a litigant drawn to the United States." Smith Kline & French Laboratories, Ltd., v. Block, [1983] 2 All E.R. 72, 74 (C.A. 1982) (Denning, M.R.). The fact that some personal injury attorneys have aircraft and fly missions to retrieve their moths from overseas, such as in Bhopal, may be more an effect of, rather than a cause, for the United States approaching the dubious distinction of becoming courthouse for the world. 170. For a discussion of this same area during the prior survey period, see Goudelocke, Admiralty, Fifth Circuit Symposium, 16 TEX. TECH L. REV. 55, 63-67 (1985). 171. 743 F.2d 289 (5th Cir. Oct. 1984). 172. 753 F.2d 1327 (5th Cir. Feb. 1985). 173. See 743 F.2d at 291; 753 F.2d at 1329. 174. See 753 F.2d at 1329; Cf 743 F.2d at 295, n.12. The fact that Nicol involved a claim for personal injuries and Ali was a death action does not alter the forum non conveniens analysis. TEXAS TECH LAW REVIEW [Vol. 17:365 the trial court had decided that United States law did not apply,17 5 without taking the analysis through to the next step dictated by Gulf Oil Corp. v. Gilbert which requires a weighing of the practical and administrative difficulties associated with maintaining the suit in the 176 United States. The initial question to which a court must address itself is whether it has jurisdiction to decide the forum non conveniens issue. 177 If the plaintiff alleges that the Jones Act affords a right of recovery and that one or more of his supervisory entities were Jones Act employers, then these allegations alone are sufficient to empower 1 78 the district court with jurisdiction to adjudicate the issue. Once the court decides it has jurisdiction to adjudicate, it must then decide if the law of the United States applies. 179 Any maritime choice of law analysis is initiated with the consideration of the eight Lauritzen-Rhoditis factors.180 If the vessel involved is a traditional blue water vessel plying the seven seas, then the weight and significance given to each of the Lauritzen-Rhoditis factors is contained within the Lauritzen-Rhoditisopinions themselves.'8 If the vessel is a nontraditional vessel engaged in offshore mineral production (the textbook example being the semi-submersible or fully submersible drilling barge), then the weight and significance of the various factors are controlled in the Fifth Circuit by Chiazor v. Trans World Drilling Co. 182 If, as a result of the Lauritzen-Rhoditis and/or Chiazor analysis, the court determines that United States law should apply, the district court will ordinarily retain the case.183 If the court determines that foreign law should apply to the cause of action then the court must proceed to the next step of the anlysis as dictated by Gulf Oil

175. 743 F.2d at 292; 753 F.2d at 1329. 176. 330 U.S. 501, 508-09 (1947). 177. See 743 F.2d at 294. 178. Romero v. International Terminal Operating Co., 358 U.S. 354, 359 (1959) (quoting Lauritzen v. Larsen, 345 U.S. 571, 575 (1953)). 179. 743 F.2d at 294. 180. Lauritzen v. Larsen, 345 U.S. 571 (1953); Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970). The eight factors are: (1) place of the wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured; (4) allegiance of the defendant shipowner; (5) place of contract; (6) inaccessibility of foreign forum; (7) law of the forum; and (8) shipowner's base of operations. 181. See 345 U.S. 583-93; 398 U.S. at 308-09. 182. 648 F.2d 1015, 1019 (5th Cir. 1981), cert. denied, 455 U.S. 1019 (1982). 183. See De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843, 845 (5th Cir. 1983) (as modified on reh'g). 1986] ADMIRALTY 387

Corp. v. Gilbert."4 The district court in both Ali and Nicol failed to proceed to the final step of the analysis and dismissed the plaintiffs' claim after determining that foreign law should apply.' 5 The Fifth Circuit remanded both cases to the trial court, as summary dismissal at this stage of the 8 6 analysis was premature without considering the Gilbert factors. Although not directly impacting on the claims of either the Nicol or Ali plaintiffs, as the accidents occurred prior to the effective date of the amendments, the Jones Act was amended in 1982, basically re- moving aliens' access to the United States courts if the injury occurred outside United States territorial waters.8 7

184. See 330 U.S. at 508-09 (1947). 185. 743 F.2d at 294; 753 F.2d at 1329. 186. 743 F.2d at 298; 753 F.2d at 1334. The various factors enunciated by the Supreme Court in Gilbert include procedural and practical problems faced by the litigants including access to sources of proof; the process by which unwilling witnesses are compelled to attend; cost factors of producing voluntary witnesses; and a possible view of the premises. The Gilbert factors also include administrative considerations which directly impact upon the court hear- ing the controversy. These include the problems associated with congested centers of litigation; imposition of jury duty upon the citizens of a community that has no relation to the controversy; and a localized interest in having local controversies decided close to the location of the injury. 330 U.S. at 508-09. 187. The net result of the 1982 amendments to the Jones Act, 46 U.S.C. app. § 688 (Supp. 1 1983), are as follows: (a) Application of railway employee statutes; jurisdiction Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to 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 death of any seaman as a result of any such personal injury, the personal representative of such seaman may maintain an action for damages at law with the right to trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant and employer resides or in which his principal office is located. (b) Limitation for certain aliens; applicability in lieu of other remedy (1) No action may be maintained under subsection (a) of this section or under any other maritime law of the United States for maintenance and cure for damages for the injury or death of a person who was not a citizen or permanent resident alien of the United States at the time of the incident giving rise to the action if the incident occurred- (A) While that person was in the employ of an enterprise engaged in the exploration, development, or production of off-shore mineral or energy resources-including, but not limited to, drilling, mapping, surveying, diving, pipe laying, maintaining, repairing, constructing, or transporting supplies, equipment or personnel, but not including transporting those resources by (A) vessel constructed or adapted primarily to carry oil in bulk in the cargo spaces; and (B) in the territorial waters or waters TEXAS TECH LAW REVIEW [Vol. 17:365

Although factual differences exist between Ali and Nicol, the court's analysis is the same, and appears to favor the increase of the number of foreign cases which can and inevitably will be adjudicated by the United States district courts. The Fifth Circuit, in short, has not followed meekly the general tendency of Congress to restrict the continued migration of foreign litigants to the highly-desirable forum of the United States.188

V. DEATH ON THE HIGH SEAS ACT Tallentire v. Offshore Logistics, Inc. 1 and Azzopardi v. Ocean Drilling & Exploration Co. 190 radically alter the damages which may be recovered by DOHSA plaintiffs by permitting recovery of nonpecuniary damages. In those cases where diversity exists a jury trial will now be available."' In short, the court has used the wedge of state law to navigate around the obstacle placed in the way of recovering nonpecuniary damages by the statute and case law. The Fifth Circuit, in the Tallentire case, has rendered a decision which "creates significant problems in the field of maritime law because it defies reason, runs contrary to principles of the general precedent in the field, and creates all sorts of internal inconsistencies in the

overlaying the continental shelf of a nation other than the United States, its territo- ries, or possessions. As used in this paragraph, the term 'continental shelf has the meaning stated in Article I of the 1958 Convention on the Continental Shelf. (2) The provisions of Paragraph (1)of this subsection shall not be applicable if the person bringing the action establishes that no remedy was available to that person- (A) under the laws of the nation asserting jurisdiction over the area in which the incident occurred; or (B) under the laws of the nation in which, at the time of the incident, the person for whose injury or death a remedy is sought maintained citizenship or residency. 46 U.S.C. app. § 688 (Supp. 1 1983). 188. Another survey period decision, Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140 (5th Cir. Oct. 1984), involved a complicated fact situation where the seaman's claim was against a nonemployer vessel involved in a collision on the high seas. The Jones Act employer vessel was not before the court. Since the Jones Act was not applicable, a different preliminary analysis must be undertaken by applying principles of United States law, interpreting and applying the communis juris, the common law of the seas. The case also contains an extended discussion concerning the appropriateness of the transfer for inapprorpiate forum pursuant to 28 U.S.C. §§ 1404(a), 1406(a) (1982). 743 F.2d at 1147-50. The Fifth Circuit rule is that a court may transfer the case even if there is no personal jurisdiction over the defendants, and whether or not venue is proper in the district, if a transfer would be in the interest of justice. Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1107 (5th Cir. 1981). 189. 754 F.2d 1274 (5th Cir. Mar. 1985), cert. granted, 106 S.Ct. 60 (1985). 190. 742 F.2d 890 (5th Cir. Oct. 1984). 191. See 754 F.2d at 1286-87. 1986] ADMIRALTY prosecution of cases dealing with death on the high seas.' 9 2 The plaintiffs in Tallentire, whose decedents died in a helicopter crash thirty miles off the coast of Louisiana, claimed that the Louisiana wrongful death statute provided additional remedies over and above the federal statutory scheme of the Death on the High Seas Act. 93 The Fifth Circuit found that DOHSA does not preempt the Louisiana death act, thus permitting the plaintiffs to recover nonpecuniary losses which are not permitted under DOHSA. 19 4 Prior to congressional enactment of DOHSA in 1920, the general maritime law of the United States did not recognize a remedy for wrongful death.'95 In 1920, both the Jones Act'9 6 and DOHSA' 97 were passed by Congress. One of the primary considerations in the passage of DOHSA was to provide a uniform system of recovery outside the territorial limits of the states.198 From the time DOHSA became effective through the mid-1970's, it provided the remedies where the injury occurred to nonseamen more than one marine league from the shore while state statutes continued to apply in territorial waters.' 99 In 1970, the Supreme Court in Moragne v. States Marine Lines20° created new precedent by finding a nonstatutory remedy for wrongful death premised upon the general maritime law. After Moragne, the Fifth Circuit found that since a death action existed under the general maritime law, there was no reason for state wrongful death statutes to be applied within state territorial waters.2 ' Fi-

192. Id. at 1289 (Jolly, J., concurring). 193. Id. at 1276-77. The Louisiana statute advocated by the plaintiffs was LA. REV. STAT. ANN. art. 2315 (West 1961 & Supp. 1985). The Death on the High Seas Act, is codified at 46 U.S.C. §§ 761-768 (1982). 194. 754 F.2d at 1288-89. DHSA, by its explicit terms restricts recovery to pecuniary losses only: "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 ...... 46 U.S.C. § 762 (1982). The Tallentire plaintiffs were advocating application of the Louisiana statute since it permitted recovery of pecuniary and nonpecuniary damages. See LA. REV. STAT. ANN. art. 2315 (West 1961 & Supp. 1985). 195. See The Harrisburg, 119 U.S. 199 (1886). 196. Ch. 250, § 33, 41 Stat. 1007 (1920) (current version at 46 U.S.C. § 688 (1982)). 197. Ch. I1, § 1, 41 Stat. 537, 537-38 (1920) (current version at 46 U.S.C. § 761-768 (1982)). 198. See Moragne v. States Marine Lines, 398 U.S. 375, 393-94 (1970). 199. See The Tungus v. Skovgaard, 358 U.S. 588, 591 n.6 (1959); Western Fuel Co. v. Garcia, 257 U.S. 233, 242-43 (1921). 200. 398 U.S. 375 (1970). 201. In re S.S. Helena, 529 F.2d 744, 753 (5th Cir. 1976). The Helena effectively abro- gated The Tungus v. Skovgaard, 358 U.S. 588 (1959), which had given effect to state statutes in territorial waters. TEXAS TECH LAW REVIEW [Vol. 17:365 nally, in 1978, the Supreme Court, in Mobil Oil Corp. v. Higginbotham,2"2 held that the Moragne general maritime law death remedy may not be used to supplement the nonpecuniary only damages recoverable under DOHSA.20 3 In summary, prior to the Tallen- tire decision, the remedies of the survivors of those individuals not qualifying as seamen appeared to be controlled by the general maritime law remedy of Moragne when the death occurred in territorial waters, by DOHSA when the death occurred on the high seas, and by state remedies when the death occurred on or over relatively dry land.2° Section 7 of DOHSA provides the basis for the Tallentire decision. The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone.2°5 The first sentence of section 7 of DOHSA originally was presented to the House of Representatives in the following form: "The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this act as to causes of action accru- ing within the territorial limits of any state . . "206 Clearly, if the original version of section 7 had passed, then DOHSA would have preempted state remedies on the high seas.20 7 Several courts have taken the position that regardless of the language of the amendment, Congress intended DOHSA to be the exclusive remedy on the high seas with state remedies available only in territorial waters. 20 8 The

202. 436 U.S. 618 (1978). 203. Id. at 624. But see Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890 (5th Cir. Oct. 1984), discussed infra at note 224-231 and accompanying text. It is worthy of note that the plaintiff in the Higginbotham case, in the district court, actually pleaded for the recovery of nonpecuniary losses under the same Louisiana statute as was involved in Tallen- tire, but the district court denied recovery and the particular issue was not appealed. Higgin- botham v. Mobil Oil Corp., 360 F. Supp. 1140, 1150 (W.D. La. 1976), aff'd in part, rev'd in part 545 F.2d 422 (5th Cir. 1977), rev'd, 436 U.S. 618 (1978). 204. 754 F.2d at 1278 (citing Vaz Borralho v. Keydril Co., 696 F.2d 379, 384 n.6 (5th Cir. 1983), for the proposition that DHSA likely preempts state wrongful death remedies). State remedies will be applied to deaths occurring on fixed platforms pursuant to the Outer Conti- nental Shelf Lands Act, 43 U.S.C. § 1333 (1982). 205. 46 U.S.C. § 767 (1982). 206. S. 2085, 59 CONG. REC. 4482 (1920). 207. See 754 F.2d at 1279. 208. Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 80 (9th Cir. 1983); Jennings v. 1986] ADMIRALTY

Tallentire court also recognized cases supporting the opposite proposition that section 7 did not preempt state remedies.2 ° 9 Regardless of the possible legislative confusion surrounding the amendment of section 7, the court found the language of section 7 clear and explicit: DOHSA will not affect any state statute giving or regulating rights of action or remedies for death.210 Since the language of the statute is clear, there was no need to derive the legislative intent.2"1 Once the court found that DOHSA does not preempt state death remedies, it easily addressed two final issues: (a) Does a state, in this instance, Louisiana, have the power to legislate with regard to occur- rences outside the state's territorial boundaries; and, if so, (b) Does the Louisiana statute, article 2315, apply outside the territorial boundaries of Louisiana? The court answered both of these in the affirmative. 212 In its analysis of the legislative jurisdiction issue, the court recognized that "there is little solid, unambiguous precedent in this area which is of any help. 21 3 Drawing support from a case permitting Florida to enforce a criminal statute outside its territorial waters,21 4 the court found: "Given a sufficient interest in a wrongful death occurring outside its territorial waters, and absent conflicting federal law it follows that a state may also constitutionally apply its own law to order the rights of its citizens with regard to that death. ' 21 5 In the first part of the Tallentire opinion, the court specifically held that the Louisiana law could not be adopted as surrogate federal law under section 1333 of the Outer Continental Shelf Lands Act 216 because DOHSA applied to a helicopter crash on the high seas and the provisions of DOHSA were inconsistent with Louisiana law concerning pecuniary damages.2 1 7 Several pages later, the court ig- nores this conflict between the federal statutory scheme and state remedies by holding that the Louisiana wrongful death statute can be extraterritorially applied.2' 8

Goodyear Aircraft Corp., 227 F. Supp. 246, 248 (D. Del. 1974); Wilson v. Transocean Air- lines, 121 F. Supp. 85 (N.D. Calif. 1954). 209. 754 F.2d at 1280 n.il. 210. Id. at 1282. 211. Id. 212. Id. at 1286. 213. Id. at 1284. 214. Skiriotes v. Florida, 313 U.S. 69 (1941). 215. 754 F.2d at 1286. 216. 43 U.S.C. §§ 1331-1356 (1982). 217. 754 F.2d at 1279. 218. Id. at 1286. TEXAS TECH LAW REVIEW [Vol. 17:365

The result of the Tallentire decision candidly recognized by the court, z19 is that state statutes may operate on the high seas but not in territorial waters.22 ° Since the Fifth Circuit's decision in In re S/S Helena,2"2 ' the widely recognized rule in the circuit has been that state statutes are preempted by the Moragne general maritime law death remedy in territorial waters.22 2 Territorial waters also include inland rivers. Accordingly, a survivor's remedy for a death occurring on a river is controlled by the general maritime law while if the same injury occurred outside the state's territorial waters then state remedies would be available. Again, in the words of Judge Grady Jolly: 2 2 3 "[T]his result may create a mess in more than a few cases. In another case of first impression, Azzopardi v. Ocean Drilling& Exploration Co.,224 the Fifth Circuit further restrictively interpreted 22 Mobil Oil Corp. v. Higginbotham, ' and held that DOHSA claimants may supplement their recovery with nonpecuniary survival action damages permitted under the Moragne general maritime law remedy.2 26 Azzopardi now effectively enables any DOHSA claimant the opportunity to prove the full panapoly of nonpecuniary damages. Azzopardi carefully categorizes the remedy prescribed in DOHSA as strictly a wrongful death statute.227 It is not clear whether or not Congress intended DOHSA to be strictly a wrongful death remedy and the court recognizes this. 28 The general maritime law right of recovery announced in Moragne includes a cause of action both for wrongful death and a survival action permitting recovery of a decedent's predeath damages.22 9 Once the court read Higginbotham as holding that DOHSA was intended to be the exclusive wrongful death remedy in its area of coverage, nothing precludes survival action damages from supplementing DOHSA damages, find-

219. Id. at 1284. 220. Id. 221. 529 F.2d 744 (5th Cir. 1976). 222. 754 F.2d at 1282-83. 223. Id. at 1289 (Jolly, J., concurring). 224. 742 F.2d 890 (5th Cir. Oct. 1984). 225. 436 U.S. 618 (1978). 226. 742 F.2d at 893. 227. Id. Typically, wrongful death actions are for recovery of damages to the beneficiaries resulting from the death of the decedent and a survival action permits recovery of damages that the decedent would have endured. See W. PROSSER, HANDBOOK OF THE LAW OF TORTS 945-949 (5th ed. 1984). 228. 742 F.2d at 894. 229. Id. at 893 (citing Law v. Sea Drilling Corp., 523 F.2d 793, 795 (5th Cir. 1975); In re Merry Shipping Co., 650 F.2d 622, 623 (5th Cir. 1981)). 1986] ADMIRALTY

2 3 ing neither exclusive. 1 Both Tallentire and Azzopardi represent a quantum leap in the damages that are recoverable to non-seamen's beneficiaries for deaths occurring outside the territorial boundaries of a state. When the two decisions are read together, DOHSA will not apply to deaths occurring within territorial waters, but nonpecuniary, survival action damages will supplement DOHSA's nonpecuniary only damages via the applicability of Moragne's general maritime law remedy. Outside the territorial waters, DOHSA applies, but we now know certain that Louisiana's wrongful death statute also applies to Louisiana litigants and it is just a matter of time before the court finds the Texas wrongful death statute 3 ' equally applicable on the high seas.

VI. EPILOGUE

Although this article and this issue of the law review are denoted as "surveys," time and space restraints do not allow each case of im- port to be detailed.232 Hopefully, the cases which have the greatest impact on the largest number of future actions have been covered. The United States Court of Appeals for the Fifth Circuit has enjoyed a prodigious survey period. Major decisions impacting on each of the four major subject areas of personal injury, collision/casualty damages, forum non conveniens and DOHSA have been rendered. An action invoking the admiralty jurisdiction of the federal courts, be it strictly a rule 9(h) collision, personal injury (Jones Act or otherwise) or one of myriad others, basically presents dichotomous choices. These survey cases tend to show the dichotomous choice is

230. 742 F.2d at 894. 231. TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001-.011, 71.031 (Vernon 1986). Sec- tion 71.031, "Act or Omission out of State," enables death or personal injury claimants to prosecute the action in Texas courts when the injury occurs outside Texas. Texas courts are then to apply the substantive law of the forum where the accident occurred. See Cox v. Mc- Donnell-Douglas Corp., 665 F.2d 566, 568-70 (5th Cir. 1982); Cass v. McFarland's Estate, 564 S.W.2d 107, 110 (Tex. Civ. App.-El Paso 1978, no writ). But see Mandell & Wright v. Thomas, 441 S.W.2d 841, 844 (Tex. 1969) ("Our State's Wrongful Death Act, as well as any common law remedy which Mrs. Thomas may have had for the death of her husband at sea, has been superseded by Federal Statute."). 232. A somewhat surprising decision involving in rem jurisdiction was Cactus Pipe & Sup- ply Co. v. M/V Montmartre, 756 F.2d 1103 (5th Cir. Apr. 1985). The court held that an unconditional claim filed under supplemental rule C(6) of the Federal Rules of Civil Procedure by the owner of the vessel, without the actual arrest of the vessel established in rem jurisdiction over the vessel. Id. at 1110. 394 TEXAS TECH LAW REVIEW [Vol. 17:365 not exclusive and that different sources of law will be applied to achieve a desired result. A court, sitting in admiralty, may choose from at least three sources of law: general maritime law; federal statute; and state statute. The possibilities by which a plaintiff may seek to invoke the sources of law, and how they interface to obtain the maximum recovery, are endless. The problems created by various sources of law are evident throughout the survey period, particularly in the areas of prejudgment interest for personal injury plaintiffs, the relationship between a statutory negligence cause of action and maintenance and cure for removal purposes, forum non conveniens, and the area most heavily impacted, the Death on the High Seas Act. Due to the very nature of the legal sources and the major policy factors contributing to each, such as federalism underlying the federal-state statute inter- play and the communisjuris underlying how the United States courts interpret the general maritime law, the problem will, in all likelihood, never be resolved. Litigants and their counsel should not expect bright line rules to be systematically applied to each issue although a limited number of such rules do indeed exist. Rather than rules de- marcating the black from the white, litigants are entitled to a logical analytical system to determine their relative position within the entire range of the gray spectrum. The Fifth Circuit has generally suc- ceeded in providing this analytical framework with the single excep- tion in the area of DOHSA. The merits, rationale and holding of Tallentire and Azzopardi will be debated and dissected for years. The court recognizes that this new reading of DOHSA procedure creates a nonuniform system of coverage which has long been disfavored by the general maritime law. It only seems reasonable that a higher authority, either the drafters of Capitol Hill or the Supreme Court, will be called upon to restore the illusive light or mirage of uniformity.