Personal Injury and Wrongful Death in Maritime Law seminar

by Gus Martinez, Esq.
December 2008
tristani@comcast.net

PLAINTIFFS DEFENDANTS
•SEAMAN •VESSEL
•“SIERACKI SEAMAN” •VESSEL OWNER
•LONGSHOREMEN AND HARBOR
WORKERS COVERED BY LHWCA
•EMPLOYER
•NONSEAFARES (INCLUDES
CIVILIANS, GOVERNMENTAL
EMPLOYEES OR REPRESENTATIVES)
AND OTHER MARITIME WORKERS
NOT COVERED BY THE ABOVE
CATEGORIES
•THIRD PARTIES
THE ACTORS
3

Legal Provision
• Article III, Section 2 of the U.S. Constitution
Purpose
• Extends the judicial power of the federal courts “to all cases
of admiralty and maritime jurisdiction.”
Admiralty Jurisdiction
4

Legal Provision
• 28 USC §1333(1)
Purpose
• It implements Art. III, Section 2 of the U.S. Constitution.
Grants original jurisdiction to the federal district courts,
exclusive of the courts of the states, of any civil case of
admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are otherwise entitled.
5

Legal Provision
• Admiralty Extension Act, 46 USC §30101(a) (former 46 USC
App. § 740)
Purpose
• Invests admiralty with jurisdiction over “all cases” where
the injury was caused by a ship or other vessel on navigable
water, even if such injury occurred on land.
• Compare Guttierrex v. Waterman S.S. Corp., 373 U.S. 206
(1963 with Victory Carriers, Inc., v. Law, 404 U.S. 202, 209-
10 (1971)
6

Legal Provision
• Death on the High Seas Act (DOHSA), 46 USC Appx. §761
Purpose
• Extends admiralty jurisdiction to suits for damages
whenever the death of a person has been caused by
wrongful act, neglect, or default occurring on the high seas,
beyond a marine league from the shore.
7

Legal Provision
• Admiralty Tort Jurisdiction
Purpose
• A party seeking to invoke federal admiralty jurisdiction
pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy
conditions both of location and connection with maritime
activity.
Admiralty Tort Jurisdiction
8

WITH ADMIRALTY JURISDICTION
COMES ADMIRALTY LAW
 The general rule is that
with admiralty comes the
application of substantive
admiralty law; and, absent
a relevant statute, the
general maritime law, as
developed by the judiciary,
will apply.
9

Admiralty Law; Sources
What are the sources of admiralty law?
1. Judge-made law –
Pursuant to Article III, Section 2 of the U.S.
Constitution, the federal courts have authority to
develop a substantive maritime law. This
substantive body law of is known as the general
maritime law. It provides the rule of decision in
admiralty cases in the absence of preemptive
legislation.
10

 What are the sources of admiralty law?
 2. Federal Legislation –
 The Congress' exercise of its constitutional powers
under the Admiralty Clause and the Commerce
Clause. General maritime law is subordinated to
federal law, either by preemption, or by virtue of
having been made to conform and/or comport
with such legislation.
11

What are the sources of admiralty law?
3. International conventions –
in the maritime field.
4. State law –
could be applicable when there is a void in
maritime law. It can supplement it, as long as the
state law is not hostile to the characteristic
features of maritime law or is inconsistent with
federal legislation.
12

PERSONIFICATION OF THE SHIP DOCTRINE
 States that a vessel is a juristic person whose acts and
omissions, although brought about by her personnel,
are personal acts of the ship for which, as a juristic
person, she is legally responsible.
 “In rem actions brought to adjudicate libelants'
interests in vessels are well known in admiralty.
(citation omitted). But admiralty also permits a salvage
action to be brought in the name of the rescuing
vessel. (citation omitted). And, in collision litigation,
the first-libeled ship may counterclaim in its own
name. (citation omitted). Our case law has personified
vessels:
13

PERSONIFICATION OF THE SHIP DOCTRINE (2)
 “A ship is born when she is
launched, and lives so long as
her identity is preserved. Prior
to her launching she is a mere
congeries of wood and iron . .
.. In the baptism of launching
she receives her name, and
from the moment her keel
touches the water she is
transformed . . .. She acquires
a personality of her own.”
14

PERSONAL INJURY REMEDIES
UNDER MARITIME LAW
PLAINTIFF LAW
SEAMAN 1. MAINTENANCE AND CURE
(against employer and vessel)
2. JONES ACT, 46 U.S.C.A. §
30104 (against employer)
3. GML – UNSEAWORTHINESS
(against vessel or vessel owner)
4. GML – NEGLIGENCE; STRICT
PRODUCTS LIABILITY
(against third Parties)
15

UNDER MARITIME LAW
PLAINTIFF LAW
SIERACKI
SEAMAN
1. GML – UNSEAWORTHINESS
(against vessel, or vessel owner)
2. GML - NEGLIGENCE
(against vessel, vessel owner and
third parties)
3. GML – STRICT PRODUCTS
LIABILITY
(against third parties)
16

UNDER MARITIME LAW
PLAINTIFF LAW
LONGSHORE-
MEN AND
HARBOR
WORKERS
1. LHWCA, 33 U.S.C. §901 et seq.
2. GML - NEGLIGENCE (against
vessel (905b) or third parties
(933))
3. GML - STRICT PRODUCTS
LIABILITY (against third parties
other than vessel owner)
NONSEAFARERS
OTHER MAR.
WORKERS
• GML-NEGLIGENCE and
STRICT PRODUCTS LIABILITY
17

The Right of Maintenance and Cure
Is the right of a seaman to recover, against his
employer, the ship, or the ship owner, without regard
to the seaman’s fault:
 Maintenance
 Cure, and
 Wages
Slide 1 of 2
19

The Right of Maintenance and Cure
in case the seaman falls sick, or is wounded, “in the
service of the ship”, at least so long as the voyage is
continued.
It has been recognized to exist in American maritime
law since 1823. One court has traced its origins to the
Laws of Oleron, a code of maritime law published in
the 12th century (1150). The purpose is to marine
encourage marine commerce and the well being
of seamen.
20

MAINTENANCE AND CURE
ELEMENTS OF CAUSE OF ACTION
21

WHO IS A SEAMAN?
The elements for seaman status are:
 (1) the employee's duties must contribute to the
function of the vessel or to the accomplishment of
its mission;
 (2) a seaman must have a connection to a vessel in
navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its
duration and its nature.
22

BLUE WATER SEAMAN
IN THE “SERVICE OF THE SHIP”
Blue water seamen - on ocean-going vessels who are
long term employees and only have interim shore leave
during their vessels' voyages.
Includes situations when seaman is:
Departing on shore
Returning from shore leave
During shore leave, even when he has at the time no
duty to perform for the ship and is just relaxing
23

BROWN WATER SEAMAN
IN THE SERVICE OF THE SHIP
 The concept “in the service of the ship” is much
narrower .
 Brown water seaman or “commuter seaman” are
those employees who commute to and from their place
of employment but are not required to live aboard the
vessel where they are employed. For such seaman, “in
the service of the ship” includes injuries incurred while
ashore if the seaman is “generally answerable to the
call of duty.”
24

WHO IS RESPONSIBLE FOR
MAINTENANCE AND CURE?
 The employer; the duty to pay maintenance and cure
arises out of the contract of employment. It is implied
in the contract of employment.
 The vessel; the right to sue in rem arises from the
peculiar relationship existing between the seaman
and his vessel, not on the theory that the vessel owner
owes these duties by virtue of his ownership.
25

WHO IS RESPONSIBLE FOR
MAINTENANCE AND CURE? (2)
 Between ship owner and employer, maintenance, cure,
and wages remain, the particular responsibility of the
employer, unlike the liability for unseaworthiness,
which arises directly from ownership of the vessel.
 A seaman cannot sue a non-employing owner in
personam for maintenance, cure, and wages.
26

SCOPE OF THE DUTY OF
is a per diem subsistence allowance designed to
provide the seaman with compensation sufficient to
cover his food and lodging. It is intended to
encompass the reasonable cost of food and lodging
comparable to that received aboard the vessel.
 Quantum may be fixed by collective agreement.
 It’s paid only for the period the seaman is
incapacitated to do seaman’s work and until
maximum medical improvement (“MMI”) is
reached.
MAINTENANCE
27

If no collective bargaining agreement sets forth an
agreed daily rate, the maintenance amount is
determined based upon evidence of the seaman's
actual expenditures for food and lodging.
MAINTENANCE
28

In such case, the seaman must bring forth prima facie
evidence of his expenses; evidence that he spent
money for food and lodging ashore which was the
equivalent of that on the vessel. His testimony as to
expenses is sufficient to satisfy this burden.
MAINTENANCE
29

represents the cost of therapeutic, medical and
hospital expenses during the seaman's affliction
until the point of MMI. The duty exists until:
 MMI is reached, or
 It is determined that the condition has been
cured or is incurable or of a permanent nature.
CURE
30

does not extend to alleviating the condition; only to
improvement. Continued maintenance and cure for
palliative purposes after seaman has reached the point
of total disability has not been allowed.
Seaman can demand reinstatement if new medical
techniques become available that will improve his
condition.
CURE
31

AND THE COLLATERAL SOURCE RULE
 Seamen can only recover expenses actually incurred;
therefore, the collateral source rule is not applicable.
The defendant is relieved of the obligation to pay that
part of plaintiff's cure furnished by others at no
expense to the seaman.
32

In addition to proving maintenance and cure,
employer must pay seaman wages for the remainder
of the voyage, but “[i]f employment is for a period
other than the voyage, such as coastwise articles for
six months or for a definite time, the end of the
voyage concept does not apply and wages are due him
for the period of employment”.
WAGES
33

WAGES; DOUBLE PENALTY
Under 46 USC 10313 (f) and (g) (foreign and
intercoastal voyages) a seaman:
 Is entitled, at a minimum, to 1/3 of his wages at
the time he is discharged;
Slide 1 of 2
34

WAGES; DOUBLE PENALTY (2)
 The rest must be paid when the cargo has been discharged
and 24 hours have passed, or, when the seaman has been
discharged and four days have passed without getting paid,
whichever is earlier.
 If payment is not made when due, a seaman has the right to
recover from master or owner two days’ wages for each day
payment is delayed, unless sufficient cause justifies the
delay.
35

DETERMINING DATE OF MMI
 Who determines seaman has reached MMI? A
physician.
 What happens when there is dispute as to the date of
MMI?
 The questions is for the jury. The date is the date
the jury determines most credible, not the date of
judicial determination.
36

MAINTENANCE AND CURE; DEFENSES
 Injury did not occur during the service of the ship.
 Injury or sickness is due to the willful act, default or
misbehavior of the sick, injured or deceased person. If
it is fault, it must be a “positively vicious conduct -
such as gross negligence or willful disobedience of
orders”.
37

 McCorpen defense - applies when an injured seaman
has "willfully concealed from his employer a
preexisting medical condition." Employer must show
that the seaman intentionally misrepresented or
concealed medical facts; the non-disclosed facts were
material to the employer's decision to hire the seaman;
and a connection exists between the withheld
information and the injury complained of in the
lawsuit.
38

NOT VALID DEFENSES:
 Contributory negligence, the fellow-servant doctrine,
and assumption of risk
 No need to allege and prove negligence: does not rest
upon negligence or culpability on the part of the
owner or master,
 No need to allege and prove causation: it is not
restricted to those cases where the seaman's
employment is the cause of the injury or illness. 39

MAINTENANCE AND CURE;
NON-CITIZENS/NON-RESIDENT ALIENS
 A non-citizen or no resident alien, who at the time
of the injury or death was employed by a person
engaged in the exploration, development, or
production of offshore mineral or energy
resources, has no COA under American maritime law
for maintenance and cure, personal injury or death if
the injury occurs in the territorial waters of another
country. The restriction does not apply if the
individual can establish that a remedy is not available
under the laws of the country where the incident
occurred or the laws of his country of citizenship or
residency at the time of the incident.
40

STATUTE OF LIMITATIONS
 LACHES, OR
 46 USC 30106 (3 years)
41

STATUTE OF LIMITATIONS (2)
Maintenance and cure suits are not affected by the
Uniform Statute of Limitations for Maritime Torts.
Maintenance and cure is contractual in nature and a
continuing obligation. However, the failure to furnish
cure is a personal injury which gives rise to a tort
remedy and therefore is subject to the three year
limitation period. The doctrine of laches applies in
maintenance and cure suits. Generally, a state statute
of limitations applicable to a similar injury on land
may by analogy furnish a suitable yardstick to
determine what constitutes laches.
42

WHERE TO FILE THE LAWSUIT?
 FEDERAL COURT
 Law side - pursuant to §1332 - must meet minimum
amount and there is right to jury trial
 Admiralty side - pursuant to §1333 – no right to jury
trial
 STATE COURT
 In law as provided in §1333 (saving to suitors provision;
right to jury trial if provided under state law)
43

ATTORNEY’S FEES AND PUNITIVE DAMAGES
Both,
 punitive damages and
 attorney’s fees
may be legally awarded if the seaman proves that his
employer willfully and arbitrarily withheld or
terminated maintenance and/or cure payments.
44

 Does a claim for M & C survive the seaman’s death?
 Yes, for all that was accrued prior to his/her death.
45

JONES ACT
Pre Jones Act:
 Prior to the enactment of the Jones Act in 1920 a
seaman injured in the service of a ship because of the
negligence of the vessel owner, master or fellow
employees was not entitled to any compensation for
injuries other than maintenance and cure, unless the
injuries were directly caused by an unseaworthy
condition of the vessel.
47

JONES ACT
 46 U.S.C.A. § 30104 (Formerly cited as 46 App. USCA §
688)
 30104. Personal injury to or death of seamen
 A seaman injured in the course of employment or,
if the seaman dies from the injury, the personal
representative of the seaman may elect to bring a civil
action at law, with the right of trial by jury, against
the employer. Laws of the United States regulating
recovery for personal injury to, or death of, a railway
employee [FELA, 45 USC §§51-60] apply to an action
under this section.
48

JONES ACT
ELEMENTS OF THE CAUSE OF ACTION
 Seaman
 Suffered injury during the course of employment, or died
as a result of such injury.
 Negligence – According to the 11th Circuit, employer’s
subject to “high degree of care” “slight negligence”
standard. (1). Violation of safety regulation is negligence
per se. (2)
 Causation-contributing cause of the injury. (3)
49

JONES ACT;
Seaman’s Duty to Protect Himself
 “Because of the heavy responsibility the owner of a
vessel bears to provide safe working conditions, the
seaman’s duty to protect himself is less than in an
average working environment. ‘His duty is to do the
work assigned, not to find the safest method of work.
This is specially true when his supervisor … knows the
working method used by the seaman, and does
nothing about it.’”
50

JONES ACT; SITUS
AS LONG AS THE PLAINTIFF SHOWS HE WAS IN
THE SERVICE OF THE VESSEL AT THE MOMENT
OF THE ACCIDENT, THE INJURY OR DEATH MAY
OCCUR EITHER ON TERRITORIAL WATERS, THE
HIGH SEAS, OR ON LAND.
51

WHAT IS A VESSEL?
1 U.S.C. § 3 provides the controlling definition of
“vessel” for LHWCA and Jones Act purposes: every
description of watercraft or other artificial contrivance
used, or capable of being used, as a means of
transportation on water, regardless of its primary
purpose or state of transit at a particular moment. But
when a vessel is permanently moored or otherwise
rendered incapable of movement, the craft will not be
considered a vessel for maritime law purposes.
52

JONES ACT; VESSEL IN NAVIGATION
"A vessel is in navigation `when engaged as an
instrument of commerce and transportation on
navigable waters.'" McKinley v. All-Alaskan
Seafoods, Inc., 980 F.2d 567, 569 (9th Cir. 1992). The
"in navigation" principle includes vessels in dry docks
if undergoing only routine or minor repairs. Sea
Vessel, Inc. v. Reyes, 23 F.3d 345 (11th Cir. 1994);
Waganer v. Sealand Service, Inc., 486 F.2d 955 (5th Cir.
1973). Vessel which is undergoing major renovations
and "[is] not usable for its intended purpose at the
time of the accident" is not "in navigation." 980 F.2d
at 571-72.
54

JONES ACT; VESSEL IN NAVIGATION (2)
 Williams v. Avondale Shipyards, Inc., 452 F.2d 955, (5th
Cir. 1971):
 Shipbuilder's employee, who was injured during
shipbuilder's sea trial of vessel, was not seaman for
purposes of recovering under Jones Act, in that vessel
was not yet at such time an instrumentality of
commerce and therefore was not “in navigation.”
55

JONES ACT; NAVIGABLE WATERS
"A body of water is navigable for purposes of federal
admiralty jurisdiction [and Jones Act purposes] if it is
one that, by itself or by uniting with other waterways,
forms a continuous highway capable of sustaining
interstate or foreign commerce."
56

JONES ACT; FLEET SEAMAN DOCTRINE
Jones Act coverage is confined to seamen, those
workers who face regular exposure to the perils of the
sea.
Part of the test for determining who is a seaman is
whether the injured worker seeking coverage has a
substantial connection to a vessel or a fleet of
vessels.
Fleet refers to an identifiable group of vessels
acting together or under one control and
common ownership.
57

JONES ACT; FLEET SEAMAN DOCTRINE
Fleet of vessels in this context does not mean any
group of vessels an employee happens to work aboard.
Prior employments with independent employers in
making the seaman-status inquiry, should not be
considered. Otherwise, one cannot predict who will
be covered by the Jones Act (and, perhaps more
importantly for purposes of the employers' workers'
compensation obligations, who will be covered by the
LHWCA) before a particular work day begins.
58

JONES ACT; COMPULSORY PILOTS
 ARE NOT SEAMAN
 See: Bach v. Trident S.S. Co., Inc., 947 F.2d 1290 (5th
Cir. 1991), cert denied., 504 U.S. 931 (1992)
59

THE JONES ACT
STANDARD OF CARE
 FIFTH CIRCUIT: Same SOC for employers as for
seamen:
 Due care under the circumstances; or the failure to
do what a reasonable and prudent man would
ordinarily have done under the circumstances of
the situation.
60

THE JONES ACT
STANDARD OF CARE
 SECOND CIRCUIT: (Jones Act remedial view) The
standard is “slight negligence”.
 Seaman only has a “slight duty of care” to protect
himself .
 ELEVENTH CIRCUIT: same as in the Second Circuit
and 5th Circuit case law prior to 1982.
 Employers are held to a “high degree of care in
providing a safe work environment” and even the
“slight negligence” is enough to establish liability.
61

JONES ACT AND THE EMPLOYERS’
VIOLATION OF STATUTORY DUTIES
 When an employer violates a statutory duty and such
violation causes injury to a seaman, the employer will
be liable regardless of the employee’s negligence. It is
negligence per se, which means that there is no need
to prove negligence.
 Unlike the land based analog, it is irrelevant
whether or not the seaman is within the class of
persons the statute is designed to protect, or that
the harm caused the seaman is of the type the
statute was designed to protect. 62

THE JONES ACT
NOT COMPLETE DEFENSES
The following are not complete defenses:
 Contributory negligence
 Assumption of risk
 Fellow servant doctrine
63

THE JONES ACT
NOT COMPLETE DEFENSES
What if the employer violates a safety regulation?
Neither contributory (or comparative) negligence nor
assumption of risk can be used to diminish plaintiff’s
recovery. 45 USC §§ 53 and 54.
Likewise, assumption of risk is no defense when
seaman is injured or killed as a result, in whole or in
part, of the negligence of any of the master or other
crew members. 45 USC § 53.
64

THE COMPARATIVE NEGLIGENCE DEFENSE
 Reduces liability in proportion to each party’s fault.
 It is the GML rule; not just applicable to Jones Act
cases, but also to claims for unseaworthiness,
negligence and products liability under GML.
 When Case Involves Settlement with one of multiple
potential defendants - payment only reduces jury
award in proportion to the settling’s party
proportionate fault, regardless of amount paid.
65

THE PROPORTIONATE SHARE RULE
 In admiralty the proportionate share rule (money paid
extinguishes claim against released party and also
diminishes the liability of other tortfeasors by the
amount of the equitable share of the obligation of the
released) applies when there has been a settlement.
 Liability is joint and several.
66

THE JONES ACT
The Walker Doctrine Defense
 Holds that if a plaintiff's injuries arise from his own
failure to perform his employment obligations his
Jones Act claim is barred. It applies only to ship officers
who are charged with the duty of maintaining the ship.
For this defense to apply the injured officer must know
about the existence of the unseaworthy condition
before the accident occurs.
67

THE JONES ACT
CAUSATION
The Standard of Causation is slight.
1. It only needs to play “any part, even the slightest”,
in producing the injury or death.
2. Same causation standard applies to employer
negligence and employee comparative negligence in
FELA cases. Even under the Jones Act, however, a
party must establish more than mere "but for"
causation. The negligence must be a 'legal cause' of
the injury.
68

THE JONES ACT
DAMAGES
A seaman can only recover pecuniary damages:
1. Loss of wages
2.Loss of future earning capacity
3. Past and future medical expenses
4.Loss of future earnings
5.Pain and suffering; mental anguish (see In re Denet
Towing Service, Inc., 1999 WL 329698, (E.D.La.,1999).
6.Other expenses
69

THE JONES ACT
Prejudgment Interests
FELA - prejudgment interest are not allowed. See
Monessen v. Morgan, 486 US 330, 339 (1988).
But a COA has been allowed under GML to recover
prejudgment interests regardless of Miles.
70

FEDERAL COURT
Law side - pursuant to §1332 (diversity) or §1331
(federal question)
Admiralty side - pursuant to §1333 – no right to jury
trial
STATE COURT
In law as provided in §1333 (saving to suitors
provision; right to jury trial if provided under state
law). Action is not removable under 28 U.S.C.
§1445(a).
72

IV. GENERAL MARITIME LAW
a. Unseaworthiness
74

WARRANTY OF SEAWORTHINESS
WHAT IS IT?
It is an absolute duty, arising under general maritime
law, of a shipowner or a bareboat/demise charterer
(owner pro hac vice) to provide a vessel that is
reasonably fit for its intended purpose, i.e., the
voyage. It is not a duty to provide an accident free
ship. It is a species of liability without fault and the
duty is also “continuing, and nondelegable”, an
incident of vessel ownership.
75

HOW DOES IT BECOME UNSEAWORTHY?
A vessel becomes
unseaworthy as a result of a
condition of the vessel, its
appurtenances, cargo or
crew, not because of the
individual isolated negligent
act of a plaintiff’s co-worker.
The latter type of action is
covered by negligence law,
i.e. Jones Act.
76

WHO IS LIABLE?
1.
• The ship; in rem
2
• The ship owner
3.
• Bareboat charterer
77

WHO IS LIABLE?
What happens if it is unknown who caused the
unseaworthy condition between ship owner and bare
boat charter?
Sue the owner; the allocation of ultimate liability
should be the responsibility of the owner and
charterer, who can sort out which between them will
bear the final cost of recovery.
78

WHO IS LIABLE?
What happens if it is unknown who caused the
unseaworthy condition between ship owner and bare-
boat charterer?
Ship will always be liable in rem but, between owner
and charterer, in personam liability will depend on
who had control of the ship at the time the
unseaworthy condition arose.
79

DAMAGES
The following damages could be recovered:
 Loss of wages
 Loss of future earning capacity
 Pain and suffering; mental anguish
 Medical expenses past and future
 Loss of society – except seaman under Miles, supra
 Punitive damages – except seaman, most prob. under
Miles
 Pre-judgment interests (not allowed under FELA). 80

CAUSATION
Under general maritime an action for unseaworthiness
carries a higher causation requirement than in a Jones
Act action: “A plaintiff must prove that the
unseaworthy condition played a substantial part in
bringing about or actually causing the injury and that
the injury was either a direct result or a reasonably
probable consequence of the unseaworthiness.”
81

WARRANTY OF SEAWORTHINESS AND
THE SIERACKI SEAMAN
 In Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) the
SC extended a longshoremen a cause of action for
unseaworthiness for injuries on board a ship while in
navigable waters because “he [was] doing a seaman’s
work and incurring in seaman’s hazards”. Sieracki
extended the doctrine of seaworthiness to a
longshoreman, even though the longshoreman was
not a member of the crew, and in spite of the fact that
the longshoreman was entitled to compensation
benefits under the Longshoremen's and Harbor
Workers' Compensation Act.
82

AND THE SIERACKI SEAMAN
Post Sieracki decisions have expanded the benefits of the
seaworthiness doctrine to:
 carpenters
 electricians
 ship cleaners
 repairmen
 riggers
 hairdressers
83

AND THE SIERACKI SEAMAN
Fifth Circuit:
Maritime workers who are not covered by the LHWCA,
are not barred by the 1972 amendments to the LHWCA
from asserting claims as a Sieracki seaman.
84

DEFENSES
 Comparative fault
 Unseaworthy condition caused exclusively by
seaman’s own negligence. If it is not, and the ship
owner has violated a safety statute or regulation, the
seaman’s recovery is only reduced proportionately
under comparative negligence principles. (Compare
with Jones Act cases)
 Limitation of liability
85

WARRANTY OF SEAWORTHINESS;
WHERE TO FILE THE LAWSUIT?
 FEDERAL COURT
 Law side - pursuant to §1332 (diversity) with right to
jury trial.
 Admiralty side - pursuant to §1333 – no right to jury
trial
 STATE COURT
 In law as provided in §1333 (saving to suitors provision;
right to jury trial if provided under state law)
86

b. Negligence
87

NEGLIGENCE - STANDARD OF CARE
 “[T]he owner of a ship in navigable waters owes to all
who are on board for purposes not inimical to his
legitimate interest the duty of exercising
reasonable care under the circumstances of each
case.” The standard of care is not dependent on
whether the injured person is a “licensee” or “invitee”
on the vessel. Id.
 Applicable to nonseafarers, Sieracki seaman and
LHWCA workers when suing under theory of
negligence. 88

SOURCES THAT DEFINE
THE DUTY OF CARE UNDER MARITIME LAW
 Duly enacted laws, regulations, and rules;
 Case law (“general maritime law”);
 Custom;
 Dictates of reasonableness and prudence;
Duty is measured by the scope of the risk that
negligent conduct foreseeably entails. Canal Barge
Co., Inc. v. Torco Oil Co., 220 F.3d 370, 377 (5th Cir.
2000) 89

SOURCES THAT DEFINE
THE DUTY OF CARE UNDER MARITIME LAW
 The Inland Rules of Navigation, 33 U.S.C. § 2001, et
seq., which supply applicable standards of care for
determining negligence in admiralty actions. The
Inland Rules of Navigation supply “rules of the road”
that courts have applied in determining the duty of
care in admiralty actions.
 International Regulations for Preventing Collisions at
Sea, 1972 (COLREGS).
90

Duty of Care to Passenger
46 USC 30102 (former 46 USC 491)
 “(a) Liability.--The owner and master of a vessel, and
the vessel, are liable for personal injury to a passenger
or damage to a passenger's baggage caused by—
 (1) a neglect or failure to comply with part B
[Inspection and Regulation of Vessels] or F [Manning
of vessels] of subtitle II of this title; or
Slide 1 of 2
91

Duty of Care to Passenger
46 USC 30102 (former 46 USC 491)
 (2) a known defect in the steaming apparatus or hull of
the vessel.
 (b) Not subject to limitation.--A liability imposed
under this section is not subject to limitation under
chapter 305 of this title.”
92

GML; Duty Regarding Physicians
 The Florida S. Ct applying GML has said that
a ship owner is not vicariously liable under respondeat
superior theory to passengers for medical negligence
of shipboard physician.
 BUT THE TREATMENT IS DIFFERENT FOR JONES
ACT SEAMAN
 Under the Jones Act, ship owner is vicariously liable for
harm suffered by seaman as result of any negligence on
part of ship's physician in treatment of seaman, and
ship owner cannot escape liability on ground that it
exercised reasonable care to secure a competent
physician. 93

DUTY TO SEARCH AND RESCUE
In Reyes v. Vantage SS Company, Inc., 609 F.2d 140 (5th
Cir.1980) the Court held that duty to search and rescue
is independent of the Jones Act and is found in the
General Maritime Law (“GML”).
94

c. Products Liability
95

GENERAL MARITIME LAW; PRODUCTS LIABILITY
 In East River Steamship Corp. v. Transamerica Delaval,
Inc., 476 U.S. 858 (1986) the Supreme Court validated
the existence under general maritime law of a tort
cause of action for maritime products liability. The
basis of the action can be:
 Negligence, or
Strict liability.
 Economic loss rule – applicable in admiralty.
96

V. Other Maritime Rules and
Statutory Provisions
97

DUTY OWED BY SHIPOWNERS TO STOWAWAYS
The duty of shipowner is only to provide humane
treatment.
The shipowner is only liable for its willful or wanton
misconduct towards stowaways.
98

ATTORNEY FEES IN ADMIRALTY
There exists a well-established maritime law
prohibiting any award of attorney's fees in an
admiralty action absent:
1. A contract provision,
2. A federal statute, or,
3. Bad faith in the litigation process.
99

Damages in Admiralty: The Effect of Culver II
 The calculation of lost income damages suffered by the
representative of a deceased person involves four steps:
 1. Estimate the loss of work life resulting from the
 death,
 2. Calculate the lost income stream,
 3. Compute the total damage, and
 4. Discount that amount to its present value.
100

 In Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th
Cir.1975) (en banc), the court held that "neither proof,
nor argument, nor jury instructions concerning
inflationary factors may be considered or used" in
arriving at an award for future medical expenses and
lost future earnings.
101

 Culver v. Slater Boat Co., 688 F.2d 280 (Former 5th
Cir.1982) (en banc) (Culver I) concerned the
application of Penrod in "maritime, Jones Act, and
FELA personal injury and wrongful death actions. The
court in Culver I not only concluded that “inflationary
factors can be considered but it also concluded that to
calculate future damages (loss of earnings) three
methods to reflect the effect of inflation can be used:
 1) case by case method,
 2) below market discount, or
 3) total off-set method.
102

 Culver v. Slater Boat Co., 722 F.2d 114 (11th Cir. 1984)
(Culver II) the court overruled Culver I and concluded
that the only method that can be used is the below
market discount method.
 The Eleventh Circuit has not directly addressed
whether the Monessen decision overrules its Culver II
requirement that fact finders employ the below market
discount method but it has noted that Monessen casts
doubt upon the validity of Culver II.
103

 In Monessen, the Supreme
Court held that a state
supreme court's application
of the "total offset" method
as a matter of law
"improperly took from the
jury the essentially factual
question of the appropriate
rate at which to discount
appellee's ... award to
present value."
104

TAXATION OF COSTS
 28 U.S.C. § 1925 states that “[e]xcept as otherwise
provided by Act of Congress, the allowance and
taxation of costs in admiralty and maritime cases shall
be prescribed by rules promulgated by the Supreme
Court.”
 Fed. Rule of C.P. 54(d)(1) states that “[u]nless a federal
statute, these rules, or a court order provides
otherwise, costs--other than attorney's fees--should be
allowed to the prevailing party. …. The clerk may tax
costs on 1 day's notice. On motion served within the
next 5 days, the court may review the clerk's action.”
105

TAXATION OF COSTS
 U.S. Fla. Middle District Local Rule 4.18 states that “all
claims for costs or attorney's fees preserved by
appropriate pleading or pretrial stipulation shall be
asserted by separate motion or petition filed not later
than fourteen (14) days following the entry of
judgment. The pendency of an appeal does not
postpone the filing of a timely application.”
 28 U.S.C. s 1925 has incorporated s 1821's limitation on
witness fees in admiralty cases.
106

TAXATION OF COSTS
28 U.S.C. § 1920 permits recovery of the following costs:
 Fees of the clerk and marshal;
 Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
 Fees and disbursements for printing and witnesses;
107

TAXATION OF COSTS
 Fees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained
for use in the case;
 Docket fees under section 1923 of title 28;
 Compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this
title.
108

TAXATION OF COSTS; WHAT ISN’T COVERED
1. Expert witness fees is limited to the statutory
amounts authorized under 28 U.S.C. §§ 1821 and
1920.
Under 28 U.S.C. § 1821(b), a witness is entitled to an
attendance fee of $40 per day for each day's
attendance, subsistence allowance if he has to stay
overnight, reasonable cost of a common carrier,
otherwise millage as prescribed by the Administrator
of General Services, toll charges, taxicab fares and
other normal travel expenses.
109

TAXATION OF COSTS; WHAT ISN’T COVERED
2. Travel expenses – except in extraordinary and
compelling circumstances.
3. Deposition expenses – unless it was “necessarily
obtained for use in the case” deposition costs are not
allowed it the depositions were merely incurred for
convenience, to aid in a more thorough preparation
of the case, or for purpose of investigation only.
4. Videographer fees (as part of videotaped
depositions).
5. Independent medical examinations.
6. Mediation costs.
110

General Maritime Law; Non Pecuniary and
Punitive Damages
 The current trend in the case law supports a
punitive damages claim under the general
maritime law when there is no overlap with
federal statutes, Miles is being restricted to
seaman/employer relationship, i.e., seaman or his
decedent could not recover loss of society, and
presumably non pecuniary damages. The courts
are recognizing the long line of cases which have
held non pecuniary and punitive damages are
awardable under general maritime law.
111

STATUTE OF LIMITATIONS
THREE YEARS – 46 USC 30106
“Except as otherwise provided by law, a civil action for
damages for personal injury or death arising out of a
maritime tort must be brought within three years after
the cause of action arose.”
112

GENERAL MARITIME LAW;
CHOICE OF LAW RULE IN TORT ACTIONS
 Lauritzen v. Larsen, 345 U.S. 571 (1953) -seminal case
on choice of law in admiralty tort and application of
the Jones Act to foreign interests. That case involved:
 A Danish sailor (Larsen) who, while temporarily in
New York
 Joined the crew of a Danish flag ship (“the Rhanda”)
 Owned by a Dane
Slide 1 of 11
113

 Under a contract with a Danish choice of forum clause
 Was negligently injured on board the ship in Havana
harbor, Cuba
 Brought action for maritime tort under the Jones Act
in a N.Y. federal district court
Slide 2 of 11
114

 The issue was under which nation's law was Larsen to
be compensated for his injury; American v. Danish law.
 The SC held that the law of the flag governed the
liability of the Danish ship owner to the Danish
seaman because of injuries sustained on shipboard in
foreign waters.
Slide 3 of 11
115

The Court selected a contacts-based choice of law
analysis and thereupon set out a number of factors
relevant to the task:
1. The place of the wrongful act -“of limited
application to ship-board torts, because of the
varieties of legal authority over waters she may
navigate,” Id. 583.
Slide 4 of 11
116

2. The law of the flag –“Nationality is evidenced to the
world by the ship's papers and its flag. … the law of
the flag supersedes the territorial principle, … of
personnel of a merchant ship, because it ‘is deemed
to be a part of the territory of that sovereignty
(whose flag it flies), ….’ On this principle, we
concede a territorial government involved only
concurrent jurisdiction of offenses aboard our ships.”
Id. at 584-585.
Slide 5 of 11
117

3. The allegiance or domicile of the injured - “transitory
[presence in an American forum does not create]
such national interest in, or duty toward, [a plaintiff]
as to justify intervention of the law of one state on
the shipboard of another,” Id. at p. 587.
Slide 6 of 11
118

4. The allegiance of the defendant ship owner – because
the practice of “flags of convenience” has grown, “our
courts on occasion have pressed beyond the
formalities of more or less nominal foreign
registration to enforce against American ship owners
the obligations which our law places on them.” Id.
Slide 7 of 11
119

5. The place of contract - this is entitled to little weight,
specially in tort actions. But absent an overriding
policy consideration, “the tendency of the law is to
apply in contract matters the law which the parties
intended to apply.” Id. at p. 588-89.
Slide 8 of 11
120

6. Inaccessibility of the foreign forum in terms of the
inconvenience to the seaman in returning to a
foreign court-while this “might be a persuasive
argument for exercising a discretionary jurisdiction
to adjudge a controversy ... it is not persuasive as to
the law by which it shall be judged.” Id. at p. 589-90.
Slide 9 of 11
121

7. The law of the forum –this is generally of little
weight because “[t]he purpose of a conflict-of-
laws doctrine is to assure that a case will be
treated n the same way under the appropriate law
regardless of the fortuitous circumstances which
often determine the forum.” Id. at p. 591.
8. The above list of factors was explained in Hellenic
Lines Limited v. Rhoditis, 398 US 206 (1970),
which introduced the “base of operations of the
ship owner” as another important criteria in the
determination of the application
of the Jones Act to foreign seaman.
Slide 10 of 11
122

Rhoditis involved a Greek seaman who signed
employment contract in Greece and who was injured
in United States port while on Greek flag vessel
owned by Greek corporation which maintained its
largest office in New York and which had more than
95% of its stock owned by Greek citizen who was a
United States domiciliary. SC held ship owner was
an employer of seaman under Jones Act thereby
entitling seaman to maintain action against
shipowner in federal court. Slide 11 of 11
123

WHAT LAW CONTROLS INSIDE A VESSEL?
 The rule of international
maritime law is that “the
internal economy and
management of a vessel
should normally be
controlled by the law of
the flag.”
124

Limitation of Liability
 The Limitation of Liability Act of 1851, 46 U.S.C. §§
30501-30512 (amended 2006) was Congress' effort to
provide American shipowners with benefits equal to
those of foreign competitors.
 Under the Act, a vessel owner can restrict its liability
arising from any occurrence for which the vessel is
liable to the value of the vessel and its freight. See 46
U.S.C. §30511. To invoke the protection of chapter 305
the owner must not have been personally negligent,
i.e., the negligence of his ship's master or crew must
not have been within his “privity or knowledge.”
125

 A vessel owner may file a petition for limitation of
liability in federal court pursuant to 46 U.S.C. §30511.
That Section states:
 “The owner of a vessel may bring a civil action in a
district court of the United States for limitation of
liability under this chapter. The action must be
brought within 6 months after a claimant gives the
owner written notice of a claim. … When the action
is brought, the owner … shall … deposit with the court,
for the benefit of claimants … an amount equal to the
value of the owner's interest in the vessel and pending
freight, or approved security; …”
Limitation of Liability
126

The Pennsylvania Rule
The S.S. Pennsylvania v. Troop, 86 U.S. (19 Wall.)
125, 135 (1873):
 Establishes a burden shifting regime for maritime
cases where a statutory or regulatory violation has
some causal connection to the injury that
occurred.
 In order to shift the burden of proof to the
defendant, the plaintiff must establish that
Slide 1 of 2
127

The Pennsylvania Rule
1. The defendant breached a statutory
duty, and
2. That the breach is relevant to the
casualty in question.
 The defendant assumes the burden of proving
that its breach could not have caused plaintiff’s
damages.”
Slide 2 of 2
128

VI. Wrongful Death Actions;
Jones Act, DOHSA, and
General Maritime Law
129

WRONGFUL DEATH ACTIONS
Jones Act (enacted in 1920)
 Applies anywhere as long as seaman is killed during
the course of his employment.
DOHSA 46 USC 30301 et seq. (enacted in 1920)
 Applies beyond 3 nautical miles from the shore, 46
USC 30302.
130

GML – Prior to the creation of the Moragne Action
The Harrisburg, 119 US 199 (1886) (no COA for
wrongful death in Admiralty)
The Hamilton, 207 US 398 (1907) (suits grounded in
state wrongful death causes of action could be brought
in Federal Courts when death occurs in territorial
waters)
131

GML – Moragne Action
Moragne v. States Marine Lines, 398 US 375 (1970)
created a wrongful death action under GML and
overruled the Harrisburg. It also applies to Seaman
despite the Jones Act. Miles, 498 U.S. at p. 30.
applies in territorial waters-within three nautical miles
from the shore.
132

Person with the right to bring the action:
Personal representative.
Jones Act (1920) See 45 USC §51
DOHSA (1920) See 46 USC §30302
GML See Tidewater Marine Towing, Inc. v. Dow
Chem. Co., 689 F.2d 1251 (5th Cir. 1982)
133

For whose benefit:
Jones Act(1920)
Parent may not recover unless there is neither a
surviving spouse nor child, and
A dependant relative may not recover unless there is
neither spouse, child, nor parent. See 45 USC §51.
134

For whose benefit:
DOHSA
Spouse, parent, child, or dependent relative of the
deceased against the vessel, person, or corporation
liable for his death
See 46 USC §30302
GML
Spouse, dependent children, parents and dependent
relatives.
135

Is there a survival action?
Jones Act(1920)
Yes, 45 USC §59.
Note: A wrongful death action and a survival action are
two distinct types of claims.
Wrongful death action - is to recover damages to
beneficiaries resulting from the decedent's death
Survival action – is to recover damages the
decedent could have recovered but for his death
136

GML
Yes. See Azzopardi v. Ocean Drilling & Exploration
Co., 742 F.2d 890 (5th Cir. 1984)
137

DOHSA
No, and a survival action under GML cannot be used
to supplement recovery with non pecuniary damages.
138

Theories of Recovery
Action is based on:
Jones Act (1920)
Negligence
DOHSA
Negligence
Unseaworthiness
Strict products liability
139

Theories of Recovery
Action is based on:
GML
Negligence (LHWCA, nonseafarers)
Unseaworthiness (seaman and Sieracki seaman in 5th
Circuit and possibly in the 11th Circuit)
Strict products liability
140

Damages recoverable:
Jones Act (1920)
Same as for personal injury (non pecuniary damages
are not allowed). See slide 69.
Notice, however, that a cause of action for pain and
suffering survives the death of the victim under the
Jones Act but not under the Death on the High Seas
Act. Also, Jones Act does not allow recovery of “lost
future earnings” via survival action.
141

DOHSA
 Pecuniary damages, 46 USC 30303
1. Loss of financial support
2. Loss of services
3. Loss of nurture, guidance, care and instruction
4. Loss of inheritance
5. Funeral expenses
142

Damages not recoverable:
DOHSA
Decedent’s pain and suffering:
DOHSA does not allow recovery for a decedent's pain
and suffering. DOHSA precludes any general maritime
survival action to permit plaintiff personal
representative to recover damages for pre-death pain
and suffering. Dooley v. Korean Airlines Co., Ltd., 524
U.S. 116 (1998).
143

Damages not recoverable:
DOHSA
Non pecuniary damages such as loss of society, loss of
consortium and punitive damages are not recoverable
under DOHSA.
144

GML
 Pecuniary and non pecuniary damages
 But see: Tucker v. Fearn, 333 F. 3d 1216 (11th Cir. 2003),
cert denied, 540 U.S. 1149 (2004) (Loss of society is not
recoverable by nondependent survivor of a nonseafarer
in case arising in territorial waters. Sends strong
message that because the need of “uniformity” such
damages would not be recoverable even if survivor is a
dependent survivor. But states that under Yamaha,
such damages can be recovered under a state law
COA, if such action provides them).
145

GML
 But see Sea-Land Services, Inc. v. Gaudet, 414 US
573 (1974) (dependent widow of a longshoreman was
allowed to recover loss of society under GML). See also
In re Patton-Tully Transp. Co., 797 F.2d 206 (5th Cir.
1986) (in a wrongful death action under GML all
dependents can recover loss of society).
146

GML
 Yamaha Motor Corp. v. Calhoun, 516 US 199 (1996) (in
wrongful death action – asserting theories of
negligence, strict liability and breach of implied
warranties - by nonseafarers for accident in P.R.
territorial waters Court held state law would
determine remedies available, not necessarily the
standard of liability question which was left open).
147

GML
 American Dredging Co. v. Lambert, 81 F.3d 127, (11th
Cir. 1996) (personal representatives could recover non
pecuniary damages in wrongful death actions brought
under Florida law, because case involved nonseamen
killed in territorial waters and no federal statute or
common law precedent precludes the personal
representatives from recovering non pecuniary
damages under state law).
148

Causation:
Jones Act (1920)
Same as under personal injury claims
DOHSA
Proximate cause
GML
Proximate cause
149

Causation:
GML
Causation standard - more demanding in an GML
(unseaworthiness) claim than in a Jones Act
negligence claim. To establish proximate cause in a
GML claim, a plaintiff must prove that the negligence
or unseaworthy condition played a substantial part in
bringing about or actually causing the injury and that
the injury was either a direct result or a reasonably
probable consequence of such negligence or
unseaworthiness. Some condition or defect may be a
legally sufficient cause of an injury under a Jones Act
theory of liability but not under an unseaworthiness
theory. 150

Statute of Limitations:
Jones Act (1920) and GML
Three years
DOHSA
Two years
But be careful. Always check state law statute of
limitations for wrongful death action if you plan
to seek remedies under state law. Florida statute
of Limitations of wrongful death action is two
years.
151

Where can action be filed:
Jones Act (1920)
 Federal Court
Admiralty side (no jury)
Law side, federal question and diversity (jury trial)
State Court with right to jury trial. Action cannot be
removed to Federal Court.
152

DOHSA (1920)
 Federal Court
Diversity (jury trial)
State Court with right to jury trial, under 46 USC
§30308 (a kind of “saving to suitors clause”). DOHSA
claims are not removable under the federal question
jurisdiction of the court.
153

GML
 Federal Court
Law side under diversity (jury trial)
State Court with right to jury trial.
154

DOHSA; ACCORDING TO 11TH CIR. FILING OF STATE
LAWSUIT DOES NOT TOLL THE SOL PERIOD
 State action does not toll
the statute of limitations of
a DOHSA claim because
these claims are only heard
by Federal Courts.
155

DOHSA; COMMERCIAL AVIATION ACCIDENTS
 § 30307. Commercial aviation accidents

(a) Definition.--In this section, the term “non
pecuniary damages” means damages for loss of care,
comfort, and companionship.
Slide 1 of 2
156

 (b) Beyond 12 nautical miles.--In an action under
this chapter, if the death resulted from a
commercial aviation accident occurring on the
high seas beyond 12 nautical miles from the shore
of the United States, additional compensation is
recoverable for non pecuniary damages, but
punitive damages are not recoverable.
 (c) Within 12 nautical miles.--This chapter does not
apply if the death resulted from a commercial aviation
accident occurring on the high seas 12 nautical miles
or less from the shore of the United States.
157

 DOHSA applies to aviation incidents in foreign
territorial waters. In re crash disaster near Peggy’s
Cove, Nova Scotia, 210 F. Supp. 2d 570 (E.D. Penn.
2002)
 The Warsaw convention applies to international air
transportation and is the exclusive mechanism of
recovery for personal injuries or death suffered on
board an aircraft or in the course of embarking or
disembarking from an airplane. Marotte v. American
Airlines, Inc., 296 F.3d 1255 (11th Cir. 2002)
158

FLORIDA WRONGFUL DEATH ACT
 Codified at Fla. Stat. 768.16-768.26 (1972);
 Person with right of action – Personal representative
for the benefit of survivors and estate. Section 768.20.
 Is there a survival action? Yes, Fla. Stat. 46.021 and
768.20. But it does not allow survival to recover for the
deceased’s personal injuries, i.e., pain and suffering.
Pain and suffering can be recovered by the survivors.
160

What damages are recoverable?
For each specified survivor in section 768.21:
1. Loss of past and future support and services;
2. Loss of companionship and protection (loss of
society). Contrary to the Jones Act, DOHSA and GML
(according to the 11th Circuit) where loss of society is
not recoverable, under the FWDA loss of society is
recoverable;
161

What damages are recoverable?
For each specified survivor in section 768.21:
3. His or her own mental pain and suffering from the
date of injury;
4. For the estate – medical expenses, funeral expenses
and loss of earnings.
162

VI. RECREATIONAL BOATERS
APPLICABLE LAW
IF ACCIDENT OCCURS: APPLICABLE LAW IS:
OUTSIDE NAVIGABLE
WATERS OF THE U.S.
STATE LAW
WITHIN NAVIGABLE
WATERS OF THE U.S.
ADMIRALTY, FEDERAL
AND STATE LAW
(depending on the issue)
163

RECREATIONAL BOATERS
Federal Boat Safety Act of 1971, 46 U.S.C. §§4301-4311
§ 4301. Application
“(a) This chapter applies to a recreational vessel and
associated equipment carried in the vessel on waters
subject to the jurisdiction of the United States
(including the territorial sea of the United States as
described in Presidential Proclamation No. 5928 of
December 27, 1988) and, for a vessel owned in the
United States, on the high seas.
(b) Except when expressly otherwise provided, this
chapter does not apply to a foreign vessel temporarily
operating on waters subject to the jurisdiction of the
United States. …”
164

Florida Court – 1st District
 Federal Boat Safety Act – compliance with this act and
standards promulgated pursuant to it does not “relieve
any person from liability at common law or under
State law.” 46 U.S.C., §4311.
 Boat manufacturer has a legal duty to exercise due care
in the design and production of its product to prevent
defects that constitute a substantial risk of foreseeable
injury to persons using the boat.
 Crashworthiness doctrine is applicable under general
maritime law. 165

 In 2002 the U.S. Supreme Court held that:
 (1) Federal Boat Safety Act does not preempt
common law tort claims, arising out of failure to
install propeller guards on boat engine;
 (2) Coast Guard's decision not to adopt regulation
requiring propeller guards on motorboats does not
preempt survivor's claims; and
 (3) FBSA does not implicitly preempt survivor's
claims, abrogating Lewis v. Brunswick Corp., 107
F.3d 1494 (11th Cir. 1997).
166

 Florida Vessel Safety Law, Fla. Stat. 327.01 et seq.,
requires the operator of a vessel:
 Involved in a collision, accident, or other casualty to
render the assistance as is practicable and
necessary to safe lives and minimize any danger
caused by the collision, accident, or other casualty;
167

 Florida Vessel Safety Law, Fla. Stat. 327.01 et seq.,
requires the operator of a vessel:
 Involved in a collision, accident, or other casualty in
or upon or entering into or exiting from the water,
which involves death or injury, or damage to any
vessel or other property in the aggregate amount of
at least $2,000, to give notice to the appropriate
agency.
168

Are releases of liability valid?
State Law:
Florida law – Yes. Valid as long as the release
specifically references the releasee’s negligence.
Federal Admiralty law:
Passengers of vessels between ports in the United
States, or between a port in the United States and a
port in a foreign country - No. See 46 U.S.C. §30509.
Other passengers – Under GML. Yes and there is no
need to make reference to the releasee’s negligence. 169

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