Coats v. Penrod Drilling Corp.

1H3 It effects a sub- amendment. substantive operation of U.S.S.G. change in the

stantive its retroactive circuit because

§ 3B1.1 scrap our require us to would

application In- guideline. of that interpretation

earlier designed to

deed, have the amendment because, as noted just And do that.

us

above, list did the Commission 1B1.10, § will not we in U.S.S.G.

amendment gen- application. See its retroactive

consider Havener, v. F.2d 3 erally States United J.).

(1st Cir.1990) Accordingly, we (Breyer, Capers’ sentence.9

affirm Remaining Issues

VII. carefully remaining have reviewed

We find them to by appellants and raised

issues merit.

be without

AFFIRMED. COATS, Wayne Plaintiff-

Earl Cross-Appellant,

Appellee, CORPORATION, DRILLING

PENROD Defendants, al.,

et Hytorc, Drilling Corporation, and

Penrod

M.E., Defendants-Appellants, Cross-

Appellees.

No. 92-7378. Appeals, Court

United States

Fifth Circuit.

Aug. the Guide- course, on an edition of sentenced with the defendant decision deals 9. Of our postdates amendment. See lines Manual application of the amendment. retroactive Prezioso, F.2d at 54 n. 1. applied prospectively should be amendment

1115 defendant, tire single from a leav- ing to the defendants allocation of fault among themselves. We reheard this case en banc to consider the contention that we adopt should joint new rule of “modified liability.” proposal This would limit each tortfeasor’s maximum amount for which that tortfeasor would have plaintiff been hable to the if negli- gence of that neghgenee tortfeasor and the compared. were The new rule would, for the first history, time maritime Ticer, Womack, Bernard H. James O.M. shift plaintiff. the risk of noncolleetion to the Orleans, LA, Mayer, Burke & New James 0. It would allocate the risk of noncohection of Dukes, Clark, Dukes, Bryant, Blakeslee, admiralty an judgment among the contribu- Hammond, MS, Ramsay Gulfport, & for Pen- torily-neghgent plaintiff and the defendants Drilling Corp. rod proportion respective to their faults. Be- Gibbens, III, Sullivan, Gelpi B. William replacing joint cause and Gibbens, Orleans, LA, Carroll & New joint maritime law with modified Hytorc, M.E. liability would be neither pru- authorized nor Meredith, Abernethy, A. William Donnell dent, we affirm the of the district Abernethy, Christi, TX, Corpus & for amicus court. Drilling curiae Intern. Ass’n of Contractors. I. FACTS AND PROCEDURAL Jr., Hebert, Flotte, Maurice C. David M. BACKGROUND Hebert, Bland, Orleans, Mouledoux & New LA, appellees. The procedural history facts and of this case were panel set forth in the opinion, White, White, Huseman, Yancey Pletcher Drilling Coats v. Corp., Penrod 5 F.3d 877 Powers, Christi, TX, Corpus & for amicus — (5th Cir.1993), denied, -, cert. Residents, curiae Texas etc. reh’g 127 L.Ed.2d en Lewis, Harvey Kullman, J. Lawrence Lew- (5th granted, Cir.1994), banc 20 F.3d 614 and Kullman, Orleans, LA, is & New for amicus portions those necessary to the issues Lawyers curiae La. Trial Ass’n. discussed herein are restated.

Maritime corpora- Industrial Services ais organized tion under the laws of Ras Al- Khaimah, United Arab Emirates with branch offices Dubai performs and Abu Dhabi. It repair and POLITZ, maintenance services for KING, oilfield Judge, Before Chief vessels, and GARWOOD, employees marine and its JOLLY, HIGGINBOTHAM, are all expatriates, India, DAVIS, primarily Pakistan, JONES, SMITH, DUHÉ, and the WIENER, United States. BARKSDALE, MIS uses Lee’s Ma- EMILIO M. Services, Houston, terials GARZA, DeMOSS, Inc. in BENAVIDES, Texas to perform PARKER, various services in the United Judges. STEWART and Circuit Lee’s, Through

States. MIS advertised its KING and E. PATRICK job (Tex- openings in the Houston Chronicle HIGGINBOTHAM, Judges: Circuit as), Lafayette (Louisiana), Advertiser (Alabama). Register Mobile

For century, general more than a maritime law has held jointly Shelton, tortfeasors manager David severally plaintiffs hable for Hytorc MIS, all of the dam- Division of travelled from the ages suffered at their hand. Under that United Mississippi Arab Emirates to on va- rule, the risk of noncollection is borne cation prospective employ- and to interview defendants. can collect his en- During trip, ees MIS. Shelton held a

H17 withstand, than it was rated to pressure at- less Laurel, Mississippi that was meeting in erupt. men, pressure to including causing the fluid under young by several tended down, resulting ex- Wayne Shelton eruption Coats. knocked Coats plaintiff, Earl employees to soliciting injury he was his knee. plained disabling in a severe offshore on certain equipment operate accident, MIS to Hat- MIS flew Coats After the offered a meeting, Shelton At the vessels. Mississippi for and start- tiesburg, treatment Coats, accepted. Their and Coats job to expenses. Most of paying his medical ed year thirty days per agreement included through Lee’s. payments were made these Mississip- back paid vacation with airfare job Meanwhile, filled Coats’ with Chris MIS pay for Coats’ promised pi. MIS also Stennett, Mississippi resident who another termination of his Mississippi at the return meeting in Laurel. attended Shelton’s employ- Coats’ The term of employment. Penrod, sued April On Coats up- obtained an ment was indefinite. Coats Shelton, MIS, District of Lee’s1 in the Southern as instructed passport dated Lee’s, MIS, plane complaint him a ticket asserted federal through Mississippi. The sent in the United Arab diversity citizenship Dubai. Coats arrived based jurisdiction on December alia, started Emirates and work alleges, negli- admiralty and inter MIS, gence part on the of Penrod 69, Rig and entitlement unseaworthiness MIS, lived on working for Coats While under the and cure from MIS to maintenance jack-up rigs various and worked on shore thereafter, MIS terminated Act. Soon Jones The of MIS. by different customers owned then Coats. Coats payment its of benefits to operat- consisted majority of Coats’ work to complaint against MIS seek torque wrench amended his hydraulically powered ing a damages and under large punitive nuts and tighten compensatory and used to loosen MIS, employment wrongful During law for termi- general Coats’ maritime bolts. a Delaware cor- Drilling Corporation, allege Penrod cure and to nation of maintenance and principal place of business its poration with of health insurance wrongful termination Dallas, Texas, per- to for MIS contracted in Penrod cross- under ERISA. benefits Rig 69. testing on Penrod’s pressure form indemnity and con- against MIS for claimed necessary pre- testing to pressure The was law. general maritime under tribution drilling operation. pare rig for its next trial, issued a court district Before rig, time, jack-up drilling Rig At a motions filed response in to of orders number Saqr Mina in the in Port of located was court ruled that MIS The parties. Emi- Arab waters of the United territorial to Mississippi contacts with had sufficient twenty Although feet was rates. jurisdiction justify personal assertion forty and connected feet of water shore law, apply United States that it would and prepared to sail it was gangway, land Emi- United Arab the law of the Rig rather than accident. days after the did so three and injury MIS rates, personal claims. flag, its home to Coats’ and flies the United States million doing over one Orleans, Penrod to be Louisiana. was estimated port is New at the United Arab in Texas year office maintained local business dollars law, Rig 69. operation to assist American Emirates Under of the accident. time not a Coats was court determined pres- perform the assigned Coats to MIS was not entitled seaman and Act Jones inexperi- was testing Coats for Penrod. sure (and dam- associated and cure maintenance to ask for assis- and had at this task enced quali- that Coats court found ages), but the safety All personnel. tance from Penrod attending with the seaman as a fied Sieracki standards prepared to meet procedures were warranty of seaworthi- right to under sue working As Coats the United States. Sieracki, 328 Shipping Co. v. ness. See Seas bullplug failed at a Rig Penrod’s aboard case. granted Lee's motion court 1. The district judgment it from the summary dismissed (1946).2

U.S. 90 L.Ed. 1099 S.Ct. law of the United Arab Emirates and Missis- law, sippi The court also declined to dismiss the case rather than the maritime under the doctrine of non conveniens. law. This conclusion rests on the contention forum subject that the district court lacked matter proceeded The case trial on Coats’ jurisdiction admiralty, therefore, against claims Penrod for jurisdiction basis for diversity. federal against negli- unseaworthiness MIS for so, If the district court applied should have gence, wrongful termination of maintenance Mississippi’s choice of in deciding law rules cure, wrongful termination of bene- foreign between and state law. See Klaxon fits under ERISA. After the court directed Co., Inc., Mfg. Co. Stentor Elec. 313 U.S. against puni- verdict Coats on his claim for 487, 496, 1020, 1021-22, 61 S.Ct. 85 L.Ed. tive based on MIS’ termination of (1941); Erie R.R. Tompkins, Co. v. cure, jury maintenance and returned a (1938).3 58 S.Ct. 82 L.Ed. 1188 Coats, assessing damages verdict MIS Mississippi apply asserts that would $925,000 assigning Coats, 20% fault to law of the United Arab Emirates to this Penrod, 20% to and 60% to MIS. court ease.4 comparative reduced the award Coats’ $740,000 and entered argues activity MIS that the giving against jointly Penrod and MIS and several- rise to Coats’ accident does not have a suffi ly. court also awarded costs to Coats in cient connection to traditional maritime activ $7,889.04. addition, the amount of ity support admiralty jurisdiction. tort $26,524.82 court penalties awarded Coats Grubart, See Jerome B. Inc. v. Great Lakes wrongful MIS alone for nonpay- its — Co., Dredge U.S. -, -, & Dock ment of required by benefits as ERISA. 1043, 1048, (1995); 130 L.Ed.2d 1024 MIS did appeal not contest on its Ruby, 358, 365, Sisson v. 110 S.Ct. under payable ERISA for benefits to Coats 2892, 2897, (1990); 111 L.Ed.2d 292 Fore under his contract of employment. par- All Richardson, most Ins. 668, Co. v. 457 U.S. appealed. ties 674, 2654, 2658, 102 S.Ct. 73 L.Ed.2d 300 opinion only this we address the choice (1982); Aviation, Executive Jet Inc. v. Cleve proposal law issue and Penrod’s for modi- land, 249, 268, 493, 409 504, U.S. 93 S.Ct. 34 joint liability. fied portions panel of the (1972). L.Ed.2d 454 While this circuit for opinion addressing personal jurisdiction over merly applied a approach multi-factor to de (Part II), Coats, 881-85; MIS see 5 F.3d at termine whether there was a substantial re (Part IV),

forum non conveniens see id. at lationship to traditional activity, maritime 889; (Part cross-appeal VI), and Coats’ see see, Smith, e.g., Kelly v. 485 F.2d 525 890-92, id. at are reinstated. (5th Cir.1973), denied, cert. 416 U.S. (1974), S.Ct. 40 L.Ed.2d 558 ap II. CHOICE OF LAW proach rejected by Supreme the Court Subject A. Matter Jurisdiction Grubart, According Grubart. the “con in Admiralty inquiry nection” admiralty jurisdic tort Turning to the ap district court’s tion inquiries. involves two A court must plication law, of United States MIS first ar general first “assess the type features of the gues that the choice of law is between the of incident involved to determine whether the 2. The court also dismissed Coats' relationship claims under with another state. Mitchell v. Longshore the Compensa- and Harbor Workers’ Craft, (Miss.1968). 211 So.2d injuries tion Act because Coats’ did not occur "upon navigable waters of the United States.” joined 4.Penrod argument, has not MIS in this 905(b). § Judge 33 U.S.C. correctly As Garwood apparently because Penrod’s claim for contribu- dissent, notes in viability note of his the indemnity against gener- tion or MIS is based on status, questioned by Judge Sieracki seaman De- al maritime law. If the law of the United Arab dissent, Moss in his is not before us. applicable, Emirates is prefer Penrod general have apply maritime law rather Mississippi (Second) than follows the Restatement Mississippi approach law. requires application which of the law place injury, of the significant absent a more slip canal potentially disruptive impact ed in a dead-end in Louisiana. has a incident — Coastal, Grubart, operator well, the of the had hired commerce.” on maritime omitted) (citations Sohyde perform operations workover at-, 115 S.Ct. at 1048 omitted). (internal Second, production. denying a loss of correct quotations While jurisdiction damage property over the at is- the must determine “whether court sue, per- court remarked claims activity giving rise to the character injury navigable on waters sonal suffered relationship to incident shows a substantial certainly admiralty. Id. at (citations would fall within activity.” Id. traditional maritime Therefore, Sohyde actually sup- omitted). 1136-37. omitted) (internal quotations For admiralty jurisdiction in ports the exercise of inquiry, a tort- second we ask “whether this case, involving personal injury. one activity, or noncommer- commercial feasor’s arguments are without MIS’ merit. cial, closely navigable is so related waters admiralty activity traditionally subject to B. The Lauritzenr-Rhoditis Factors applying special law reasons factors Lauritzen-Rhoditis apply in case at admiralty rules would (1) govern place of law: of the choice at-, Id. 115 S.Ct. at 1051. hand.” (3) (2) act; flag; wrongful the law the performs repair mainte MIS worker; allegiance injured domicile for oilfield and marine vessels. nance services (4) allegiance shipowner; of the defendant drilling. engaged in offshore oil Penrod (6) (5) contract; place of the inacces Rig 69 with MIS because Penrod contracted forum; (7) sibility foreign the law of drill pressure testing before its next needed (8) forum; shipowner’s base operation. As to the first “connection” ing Lines, Rhoditis, operations. v. Hellenic Ltd. gen inquiry, the incident can be described 1733-34, 308-09, 398 U.S. injury as an to a while eral terms worker Larsen, (1970); 26 L.Ed.2d Lauritzen rig in maintaining jack-up repairing 571, 583-91, 921, 928-33, 73 S.Ct. doubt, worker navigable waters. Without (1953). test not a me L.Ed. 1254 “The in re injuries, particularly to those involved simply one the court counts chanical maintenance, pair disruptive can have a contacts; instead, signifi the relevant by stalling or impact on maritime commerce each must be with cance of factor considered activity delaying primary the vessel. and the particular in the context of claim inquiry, repair and As to the second might interest that be served national jack-up drilling rig on navi maintenance a Fogleman application United States law.” certainly is mari gable waters traditional (5th ARAMCO, F.2d Cir. v. 920 282 Moreover, activity. this we note that time 1991). in a significance “The of each factor navigable a vessel on tort occurred aboard maritime context like offshore nontraditional compensation ship Providing waters. production may vary from that the oil injuries is of the a traditional function board shipping context in which traditional Sisson, admiralty 497 at 368- laws. See Id.; test see Lauritzenr-Rhoditis arose.” (Scalia, J., concur 110 2898-2902 Int’l, Inc., Bailey F.2d Dolphin v. 697 also (arguing torts fall ring) that all vessel-related (5th Cir.1983) (involving jack-up Thus, jurisdiction).. admiralty within drilling rig); Reading & Bates Cuevas giving has a activity rise to Coats’ accident (5th Cir.1985) (same); Corp., 770 F.2d 1371 maritime connection to traditional sufficient Albritton, in a Mari L. Choice Law Jack support admiralty activity to exercise of our Setting: Injury The Domestic time Personal jurisdiction. tort (dis (1983) Jurisprudence, La.L.Rev. 879 Sohyde Drilling cussing the difference between “bluewater” reliance on & Ma MIS’ cases). Co., place of Producing “brownwater” The v. Coastal rine Co. Gas (5th act, Cir.1981), wrongful allegiance or domicile of misplaced. is F.2d contract, There, place of the applied Kelly injured, con and the we factors and context, lacking important shipping in the jurisdiction less admiralty that was cluded cases significant in nontraditional damage arising from are more property in a suit for Transworld this one. Chiazor v. high-pressure gas of a well locat- such as the blowout (5th Co., Drilling is, 648 F.2d fortiori, Cir. Coats domiciled in the United 1981). review of the Our court’s district States. apply decision United law is States de Fourth allegiance is the of the defendant See, e.g., Fogleman, novo. 920 F.2d at 282. shipowner. allegiance Penrod’s is without place The first factor is the of the question Rig to the United States. 69 flies wrongful act. Coats’ accident occurred in the flag United States principal Penrod’s the territorial waters of the United Arab place Dallas, of business is Texas. isMIS Emirates, and because this is a nontradition shipowner, not a but we still take into ac- case, al maritime factor entitled to is organization count its under the of the laws weight. considerable United Arab Emirates. flag. second factor is the law of the place of the contract is the fifth flag traditionally “The law of the has been of factor, another that is here entitled to importance determining cardinal the law weight. stated, As the district court Coats applicable to maritime eases.” (citing Id. apparently executed an Arabic contract Lauritzen, 583-84, 345 U.S. at 73 S.Ct. at the United Arab purpose Emirates 928-29). shipowner MIS is not a and there- obtaining visa; however, work parties fore specific application this factor has no agreed to all the contract terms in Missis Rig it. Penrod’s 69 flew the States United Thus, sippi. as the clearly district court flag. argues flag Penrod found, employment Coats’ contract fortuitous, vessel this case is because formed in Mississippi, and this factor favors assigned Coats was to six drilling different United Fogleman, law. States F.2d rigs with different Cf. allegiances. owners and (noting at 283 plaintiff signed eight all The record indicates that in addition Arabia). contracts Saudi PENROD Coats worked aboard the VICTORY, MARESK III, the TRIDENT factor, The sixth inaccessibility of V, ADAMS, TRANSOCEAN the W.T. forum, relevant non forum Penrod, and the however, SEDCO 91. does Lauritzen, 589-90, conveniens. 345 U.S. at say flag what each of these vessels flew 73 S.Ct. at 931-32. The seventh factor are unable to we find this information in forum; here, law of maritime the record. We cannot conclude Coats’ Fogleman, law. 920 F.2d at 283. injury aboard a vessel, United flag States opposed to a registered vessel in another The final factor opera is the base of country, was knowing fortuitous without tions. context, the nontraditional we have flags what rigs these other flew. “ held that ‘it is the base from rig which the

The third allegiance operated factor is the or day-to-day on a basis rather than plaintiff. domicile of the Coats is a United operations base corporate citizen, States despite overseas, his move ultimate rig important owner which is he maintained his residence in Mississippi, purposes.’” choice of law Id. at 284 agreed where fly MIS to him for his vaca (quoting Bailey, 22). 697 F.2d at 1275 n. tions, and where he returned acci after the Penrod has a local office in the United Arab Indeed, dent. purchased MIS insurance to Emirates assist in operation to Rig of 69. pay “repatriation” of costs in the event of an The record shows that this occupied office is Nevertheless, accident. by defendants contend the rig superintendent who frequently that Coats’ domicile inwas Arab United Dallas, communicates with Penrod’s in office They argue Emirates. that he moved to that Texas facsimile. We addressed a similar country with the intent to remain There, because his Bailey. situation in the local in office job with MIS was for an Singapore indefinite term and daily “was in contact with the generally one is domiciled where he works. Houston office telephone, telex or usually however, In Fogleman, plaintiff was a providing drilling reports.” with it 697 F.2d Louisiana resident who had in worked Saudi addition, at 1271 n. In 6. “the day-to-day eight years, Arabia for and we determined respecting decisions opera activities his domicile to in the United States. tions of [rig] were made [the area (5th Cir.1985); Phillips Petrole v. Koke drilling manager and rig manager] [the or (5th Cir.1984); Bailey Co., 730 F.2d um rig.” on the by personnel superintendent] (5th Inc., Int’l, F.2d 1268 Dolphin of that the base agreed nevertheless Id. We Co., Cir.1983); Keydril Borralho v. Vaz Id. States. in the United was not operations (5th Cir.1983); v. Trans Chiazor F.2d 379 Therefore, constrained we are (5th Co., Cir. Drilling 648 F.2d world operations base find that Penrod’s 1981). in the United Arab of this case purposes in operations Fogleman, is also we exception where MIS’ base The one Emirates. to sue Emirates; allow an American it has offices refused to Arab the United injury that law for an it con- States business under United Despite the anywhere else. Fogleman, a Lou- in Arabia. occurred Saudi United through in the States Lee’s ducts resident, Fluor Ara- to work for went isiana number it has a substantial fact that job applied for the He in Arabia. bia Saudi day-to-day opera- employees, its American Ap- “Foreign Employment a by completing Emi- Arab in the United tions conducted Arabia. mailing it to Saudi plication” and rates. Corpo- subsidiary Fluor Fluor Arabia weighing Considering factors these prin- ration, with its corporation a Delaware context, drilling we oil in this offshore them California, in but is cipal place of business court’s decision district agree with the in Ara- do business Saudi authorized factors Of the maritime law. apply under series Fogleman worked bia. context, only this significant in more deemed contracts, signed in all Saudi one-year eight foreign wrongful act favors place of flying the a boat Arabia, and lived aboard plaintiff and law; allegiance of the had a flag. Fluor Arabia Arabian Saudi States to United refer us of contract place ARAMCO, pursuant with contract allegiance flag and the The law law. Fogle- contract, assigned Fluor Arabia point shipowner also the defendant Fogleman sus- with ARAMCO. man to work short, the United law. United States trans- while sharp pain in his chest tained applying its greater interest has a States to a workboat ferring platform from an oil Emi- Arab the United this case than law to suf- flag and later the Panamanian that flew in the United was recruited rates. Coats attack, allegedly caused a heart fered country, States, job this accepted the while oil aboard ARAMCO’s hours excessive work suf- employees, by American supervised was ARAMCO Fogleman sued platform. vessel, and injury an American aboard fered district Arabia, we affirmed the Fluor return, After his to recover. was flown home law to Arabian application of Saudi court’s due willfully benefits Coats terminated MIS F.2d Corporation. and Fluor ARAMCO ERISA, liability that resulting under at 281. Albritton, appeal. See questioned on never the United States with The contacts Law, (noting the unlikeli- supra Choice of strong case. not as Fogleman were benefit of Ameri- denying the hood courts fly United not did involved The vessels who citizen American law to an can maritime contracts plaintiffs’ flag, and all of the States overseas does to work is recruited country. More- foreign in the signed were resi- States up permanent United give over, allegiance both defendants dence). only signifi- “[T]he foreign. at 282-83. Id. application of pointing to cant factor in such are less instructive Prior cases the domicile [was] law States Regardless, United inquiry as here. fact-specific persuaded areWe Id. at 284. plaintiff.” prece- today is consistent our decision States with the United connections in- our decisions exception, one dent. With a require are substantial in ease this nontraditional, vessels “brownwater” volving Fogleman. than result different injured off foreign plaintiff have involved country seeking foreign the coast of LIABILITY AND III. SEVERAL JOINT uni- We law. have of American protections joint that traditional See, argues e.g., Penrod attempts. these formly rebuffed con- even a liability, under and several Corp., 770 F.2d Reading & Bates Cuevas tributorily-negligent may recover his that the fault of each of them bears to the damages entire award from defendant total fault of both.” Simeon v. T. Smith & partially responsible, held to be place has no Son, Inc., (5th 852 F.2d 1436-48 Cir. in comparative a world negligence where 1988) (Garwood, J., concurring part in points the norm. Penrod out that under the dissenting denied, in part), cert. scenario, present Coats, who was found 109 S.Ct. 104 L.Ed.2d 1019 jury responsible inju- be 20% for his (1989). The court would divide negli B’s ries, will satisfy be able to judg- 100% of his gence by (A A’s and B’s negligence combined ment from the equally-negligent Penrod.5 In B)+ to calculate the extent of B’s maximum view, Penrod’s Coats should have to bear liability, which in this hypothesis would be part of the judgment risk that the against 50%, Thus, or maximum, at a A 33%/66%. MIS, found responsible 60% inju- for Coats’ can collect B half of ries, may wholly be partially or uncollectible.6 than awarded —rather the two-thirds A Consequently, Penrod to modify seeks the would have been able to collect from B under judgment district court’s by limiting Coats’ joint traditional liability. several B ability to recover the judgment entire from would then have a contribution claim either Penrod or inMIS proportion to Coats’ C judgment amount actually own contributory negligence. accomplish To pays over its $ share of fault. change this judgment, Penrod advo- jury here awarded total damages of adoption cates the joint liability modified $925,000 Coats, and found plaintiff, to be maritime According law. responsible, 20% Penrod to responsi- be 20% Penrod, joint liability modified proposal ble, and MIS be responsible. 60% is a fairer allocation of the responsibility of adoption of joint Penrod’s modified liability party, each and is consistent with develop- proposal provide would Coats with a judg- ments the state law that have or abolished ment that joint liability includes component joint modified traditional liability. several liability a several component against To why reject understand we the invitation each defendant.7 proposal Penrod’s would adopt joint modified liability, we must work as follows: begin by understanding changes that the proposal would in the general work maritime Penrod’s liability maximum would be law. $462,500: 925,000 20 X

A. Understanding Proposal Penrod’s joint liability modified proposal 20 + 20 adopts an approach sixty years advocated (Penrod’s negligence divided the sum of ago by Charles Gregory, 0. professor Penrod’s and negligence, Coats’ multiplied law at the University Chicago. See award) the total damages Charles O. Gregory, Legislative Loss Distri- Similarly, MIS’ liability maximum would Actions, bution in Negligence 77-79, 142-48 $693,750: be (1936). Judge Garwood in turn advocated Gregory’s Professor approach, using 925,000 ex- X ample of a three-car accident which all 20 + 60 three parties plaintiff A, B, defendant — defendant (MIS’ equally C—are at fault: “the risk divided sum that will compensate C plaintiff A ... MIS’ and negligence, Coats’ multiplied by by A borne and B in the respective ratios damages award) the total 5.After subtracting contributory Coats’ 20% 6. We note that no insolvency evidence $740,000 trial court's joint- uncollectibility presented has been case. ly severally against Penrod and MIS. Under joint traditional and several principles, calculating The formula equally responsible (20% as Coats component Penrod— and the components fault) $740,000 be liable for the entire judg- —will algebraically expressed. Simeon, can See ment. J., (King, F.2d at 1449 n. specially concurring).

H23 joint several $740,000 under traditional MIS’ subtract then would trial court $462,500under modified only liability, ($693,750) from but liability maximum hand, pro- ($740,000)8 to ar- the other liability. On joint can collect Coats amount solely is recovery of $46,250 Penrod full for which because plaintiffs, posal hurts rive sever- $46,250figure is Penrod’s get This under modified liable. is harder damages Pen- Similarly, when component. liability al the traditional liability than under joint ($462,500) sub- is liability maximum rod’s a defen- Mathematically, “[s]ince scheme. can that Coats amount the total from tracted by liability become defined would joint dant’s solely liable ($740,000), isMIS collect than total amount is which less a sum $277,500fig- This judgment. $277,500 of the liabilities, plain- a combined the defendants’ Finally, component. several is MIS’ ure is amount he owed total tiff recover could liability component joint and MIS’ Penrod’s against each by enforcing the only subtracting the by ($416,250) calculated Simeon, F.2d at every defendant.” ($46,250) liability sole of Penrod’s sum concurring). It also J., specially (King, ($277,500) from Coats’ liability sole MIS’ plaintiff will that saying goes without ($740,000).9 recovery overall maximum money effort expend additional have to for the amount Penrod pursue could Coats defen- different from two the award to collect ($462,500),and liability maximum of Penrod’s more becomes dants, circumstance for the remain- recovery MIS from seek then co-defendant. additional with each expensive that Coats ($740,000 $462,500) $277,500 ing — one defen- Furthermore, that in the event paid have Penrod would Because collect. can insolvent, immune, or oth- statutorily dant share ($462,500) its 20% than more will re- judgment-proof, erwise a contribu- would have ($185,000),10Penrod damages recoverable total than his ceive less $277,500 extra for the MIS claim tion trier-of-fact, he recov- even if by the as found paid that ($462,500 $185,000) — For remaining defendants. against all ers pursue Similarly, could Coats to Coats. over best, receive Coats would example, at liabili- maximum MIS’ amount of for the MIS ($462,000/$740, recovery maximum of his 63% recovery ($693,750), seek and then ty judg- 000) or otherwise if is insolvent MIS ($740,000— $46,250 remaining for the Penrod evidence is no Although there ment-proof. Because can collect. $693,750) Coats that case uncollectibility insolvency 60% its than paid more have would MIS proponents of us, have ($555,000),11 would Penrod MIS before of fault share by for the result liability justify this against Penrod joint claim modified contribution - $555,000) dam- ($693,750 plaintiff, $138,750 partially-negligent arguing extra to Coats. risk paid part over Coats, that it ages bear should such entire noncollection, placing than rather liability proposal bene- joint modified defendants.12 upon burden be liable would Penrod defendants. fits = $693,- $277,500 (MIS’ component) Thus, several + negligent. contributorily Coats is 20% 8. liability). $925,- (MIS' maximum damages award is though the total even $740,000 (80% maximum Coats’ fault is calculated share Penrod’s 20% damages). 10. total ($925,- damages award total multiplying Coats' 000) twenty percent. liability compo- joint sum of 9. Note components liability should several and the nent by multi- recovery. is calculated of fault overall share maximum MIS’ plaintiff's 11. 60% equal the ($925,000) $46,- damages award case, $416,250 component) + (joint plying Coats’ total In $277,500 component) + (Penrod’s sixty percent. several $740,000 = (Coats’ component) (MIS’ several recovery). maximum some- position has evolved Judge Garwood’s partial his In years Simeon. since what over compo- joint Similarly, the sum here, Simeon, Judge dissent dissent liabili- several defendant's individual and an nent develops his modified Garwood max- equal defendant's component should ty component devising joint proposal $416,250 (joint example, liability. For imum defen- each liability component for and a $46,250 compo- (Penrod's several component) + the as- proceeded always under We have liability). dant. (Penrod’s = $462,500 nent) maximum joint and several sumption that resort manner, $416,250 component) (joint the same B. The Case for Modified Liability therefore, Joint and apportionment of jury permitted. was not See PageW. Penrod joint asserts that liability modified al., Keeton et and Prosser Keeton on The adopted should be for two basic reasons. § (5th Law Torts at 323 & n. First, ed. argues, of Penrod the traditional rule of 1984) [hereinafter (col- “Prosser & joint Keeton”] and liability several was not to intended cases). lecting Consequently, impossi- it was apply to a contributorily-negligent plaintiff. impose ble to upon the individual it, As Penrod defendants sees the removal of the re- anything less than liability. entire quirement Larry See plaintiff wholly be inno- Pressler & Kevin Schieffer, V. has Joint and unfairly cent allowed a eontributorily Several Liability: A Reform, Case negligent plaintiff to recover the judg- entire (1988). Denv.U.L.Rev. ment from a defendant whose fault is minus- Second, cule. Penrod notes general that the joint Originally, and liability several maritime has responsive law been changes to confined to joint situations where the tortfea- in the common legislative law and to enact- sors acted “in concert.” See Pressler & light ments. of the joint modifications to Schieffer, supra, 660; see also Prosser & and liability several enacted by many states, Keeton, § supra, at 322-23. The rule argues Penrod admiralty courts should was combined with the common-law of rules change maritime law to respond procedural joinder, which were limited to developments. these We disagree with application to tortfeasors acting “in concert.” both of these contentions. Consequently, under joinder restricted rules, defendants joined, could not be and 1. The joint traditional rule of joint liability could not be imposed, unless and liability several the defendants had in fact together acted joint traditional rule of cause the several harm. This circumstance appar- liability can be back eighteenth ently traced led the American courts equate century England “joinder” and the case of “joint Hill v. liability.” See Pressler Goodchild, Eng.Rep. 5 Buff. Schieffer, 2790 & supra, 660; (“At see also id. (K.B.1771). The rule was derived from law, common the concepts procedural of join- principle that a cause action was “unitary,” joint der and several were indis- components necessary operation of his proportionate and a share of Likewise, proposal. always proceeded we have If, each however, defendant will suffice. there assumption under the plaintiff that a only defendants, can are more than two at least two of recover the total amount that he is which are owed solvent and at least one of which is enforcing judgment against every (e.g., defendants, each insolvent three only one of Indeed, defendant. dissent, insolvent), in his which Judge becomes plaintiff, then the be- Garwood "Apportionment states that cause he Liability can recovery by achieve full col- also lecting join- recovery damages of offered as there could be his was one tinguishable because they joint alleged justifications that the for parties primary it was of and der of unless fact, responsible liability. explain, acts done con- In jointly for several we will were cert.”)- apparently has this consideration taken an significance in maritime law because elevated imposing “entire separate A rationale of special unique admiralty, of concerns alongside concept liability” developed the of especially “protector” its role as of seamen. acting “in joint liability for those concert.” liability Joint and several has the benefit of reasoning, corollary “a defendant this Under pursue allowing a seaman to and to collect might for the entire loss sustained be liable damages from his entire award one co-defen- by plaintiff, though the defendant’s even the generally the charac- dant when international with that of an- act or combined concurred profession might of make it difficult ter his or, wrongdoer produce the result other impossible to locate or to from or collect it, put the is the have defendant courts other tortfeasors. consequences proximately for all liable wrongful act.” caused the defendant’s argues joint and several liabil- Penrod 47, Keeton, supra, § 328. This & at Prosser ity “historically one of two counterbal- was that a reflected the belief tortfeasor notion ancing arising legal principles out of the the- responsible consequences all for should ory Century parties of the 19th that all actions, regardless stemming from his consequences responsible all of the of for may that others also Penrod, fortuitous circumstance negligence.” According to the their injury. have contributed to concept couplet half’ of “second of is contributory negligence, which at common joint 1876, rule and By the common-law of partial- cut all law would off being in the was discussed several Thus, only ly-responsible plaintiff. wholly- admiraltv settine1: advantage plaintiff innocent had the of col- right Nothing than the of a is more clear lecting any his entire award from of loss, plaintiff, having to sue suffered such jointly As ar- defendants. Penrod liable wrong- action all the in a common-law negli- comparative tide gues, of when them, election; doers, at any or of his one nation, gence swept plaintiffs and a own that, clear, equally it if he did not longer was no an absolute bar to disaster, he is entitled to contribute “couplet” recovery, the balance judgment in for the full amount either case Thus, joint destroyed. because may proceed all of his loss. He in the context of the whol- was born may wrong-doers jointly, or he sue plaintiff, argues that it ly-innocent Penrod any separately.... all of them them or one to that should be limited context.13 co-operation wrongfully by the Acts done persons joint agency consti- of several position, In its Penrod support of they parties wrong-doers, all tute Atlas, contending points that was jointly severally; any may be sued adopt joint liabil and several the first case to C.J., them, Spencer, said liable one Atlas, ity admiralty. See The 93 U.S. injury done all.... (“[P]roof or freedom of entire innocence Atlas, promoter suit from fault ... entitles 23 L.Ed. 863 (1876). context, others, compensation for his a claim full In this as in such guilty party.”). While The plaintiff full loss from the concern that innocent receive fault, equation is as points joint dant who is that modified 20% Penrod out recovery of a would not alter the ‘'traditional” follows: plaintiff. wholly-innocent where a situations fault, 0 + propor- = plaintiff found be without definition, fault, by will be tionate share 0%. = liability, joint 1 or 100% modified the defendant's 20 divided Under proportionate of fault would be divided share Thus, recover plaintiff's the faultless can still 100% defendant's sum of the 0% creditworthy yielding proportionate that defen- share its illustrates, liability. As Penrod dant's maximum defendants. non-immune assuming wholly-innocent plaintiff and a defen- Atlas have been such a foundational under the DOHSA). Jones Act and under case, see v. Compagnie Edmonds Generale The to comparative move negligence, howev- Transatlantique, 260 n. 99 er, did not abrogate admiralty’s application (1979) n. 61 L.Ed.2d 521 and several liability, and the two (“We stated the common-law rule in The doctrines have continued to side-by- work Atlas and adopted part it as admiralty of side in the maritime Supreme law. Three jurisprudence.... ”), Penrod’s position is Court decisions strongly support this propo- simply not compelling because its statement sition, and points Penrod decision, to no Su- history of incomplete. is The move to com preme otherwise, Court or contrary.15 the parative negligence in maritime personal in jury law occurred over a century ago with Pope Talbot, In & Hawn, Inc. v. Hawn, a Morris, the decision in 1, The Max 137 U.S. carpenter, was working Haenn, for an inde- 14-15, 29, 11 32-33, S.Ct. 34 L.Ed. 586 pendent contractor, Pope aboard & Talbot’s (1890).14 Socony-Vacuum also See Oil Co. v. ship. 406, 346 407, See U.S. 202, 74 S.Ct. Smith, 424, 429, 305 262, U.S. 59 S.Ct. 265- 203-04, (1953). 98 L.Ed. 143 After suffering 66, (1939); 83 L.Ed. 265 The Arizona v. injuries ship, on the brought Hawn negli- Anelich, 110, 122, 707, 711, 56 S.Ct. gence and unseaworthiness against action 80 (1936); L.Ed. 1075 Keeton, Prosser & Pope & Talbot general under maritime law. 67, (“Outside § supra, at 471 admiralty, of Id, Pope & Talbot impleaded Haenn and comparative negligence appear did not sought contribution or indemnity. The dis- jurisprudence American early until the twen trict court rendered judgment against Pope century.”). tieth Indeed, as early 1920, & Talbot for of damages 100% the less the rale of 17.5% comparative negligence was incor for proportion the plaintiffs due to porated into fault. It the Jones Act into also awarded Death on contribution to High Pope Seas & Act. Talbot See 46 U.S.C. (Jones § Act); Haenn’s 688 share of (DOH- fault. 408, § 46 See U.S.C. at 766 id. 74 SA); see S.Ct. also at United 204. The court appeals States v. Reliable affirmed Co., 397, 421 judgment U.S. 408 n. Hawn’s against Pope Talbot, Transfer & but 1714 n. (1975) (not 44 L.Ed.2d 251 reversed judgment of contribution be- ing comparative negligence applicable cause there right was no contribution Morris, 14. In The Max Supreme Court case, also however, the instant no evidence of affirmed a lower court's decree for divided dam- uncollectibility present in the record. Never Morris, ages. See The Max at theless, proposal by advocated Penrod and S.Ct. at Significantly, however, 33. the Court the dissent would still part “reallocate” as noted that the damages divided issue was "the initial judgment it is determined that —before only question certified,” therefore, Penrod's or MIS’ Thus, share is uncollectible. jurisdiction Court's was reviewing "limited to proposal the dissent's builds the risk of noncol- question.” this Id. As the Court concluded: lection judgment, into the disadvantaging the Whether, this, in a case like the decree should plaintiff regardless of whether a defendant’s exactly one-half of the sus- actually proves share to be Simply uncollectible. tained, might, court, in the discretion of the put, although the dissent maintains that Kinsman greater be for a proportion or less of such Transit “is directly point control,” on and should damages, question is a presented not for our approach in Kinsman provide Transit fails to record, upon determination and we ex- support direct for the press proposal. dissent's opinion upon no Simi it. larly, the dissent's reliance on the non-admiralty Id. Rains, cases of (5th Prestenbach v. 4 F.3d 358 Despite Judge Garwood's reliance dissent 1993), Cir. and Davis v. Commercial Union Insur Co., on Petition Kinsman Transit F.2d Co., (5th ance Cir.1990), F.2d 378 is also (2d Cir.1964), approach taken in Kinsman misplaced, cases, because in those partially- Transit is approach not the by advocated Penrod employer liable was known to be statutorily im and the Transit, dissent. In Kinsman Kinsman mune was entered. before was one parties, of three liable but its Finally, further, as will be discussed merely we had been limited statute. See id. at 713. note that Kinsman Transit was decided Thus, before at time judgment, Kinsman's Supreme series of admiralty Court decisions con- share already had been determined to be uncol- cerning uniformity between the lectible, legislative and and the Second Circuit reallocated Kins- judicial maritime law. man’s responsibility proportionately among the parties. other two See id. at 726. pro- liability to its shipowner’s law, limit Supreme Court id. See cases. such dam- longshoreman’s share portionate several joint and application affirmed ages. had Talbot Pope & though liability even and even Haenn began contribution its examination right of Supreme Court words, In other fault. remarking “[a]dmi- was though Hawn arguments as con- comparative great treated ex- to a Court law judge-made ralty law lia- prior traditional commenting sistent tent,” responsible was against a bility. The action longshoreman’s risk fault, but the comparative mari- recognized own share shipowner defendants, rather 259-60, fell noncollection id. law, See by statute. time injured victim. explained, on an than the Court at 2756. As 99 S.Ct. fash- law general maritime prior to Tran Generale Compagnie Edmonds recovery pursuant injured plaintiffs ioned an 2753, 61 256, 99 S.Ct. satlantique, liability. joint and several of principles to the Edmonds, the (1979), L.Ed.2d n. 7. at 2756 99 S.Ct. & n. at 260 id. See not ship a injured on was longshoreman, the clear that it made Court the Importantly, company. stevedoring employer by his owned plaintiff had aof contributory negligence He received 2755. at 99 S.Ct. at id. See rule: changed traditional the never Long- the under employer benefits by a [admiralty had evolved law] As Compensation Workers’ Harbor shore a against suit in a award longshoreman’s brought a additionally (LHWCA), he Act by be reduced would shipowner negligent un shipowner the against action negligence to damages assignable the of portion that the 905(b) provision § 33 U.S.C. der —a but, negligence; own longshoreman’s the spe in 1972 to by Congress added LHWCA law, ship- tort the maritime matter of aas id. suits. See such cifically authorize long- to the responsible would owner damages $100,000 of the jury apportioned remainder, even if full for the shoreman the 20% to plaintiff, the to 10% follows: to contributed negligence stevedore’s the stevedoring com to the and 70% shipowner, is in accord latter rule This injuries. the award trial reduced court pany. The law, allows an common but negligence, plaintiffs of the amount for the tortfeasor to sue party injured re to Edmonds permit not could the court an indivisible damages for full amount employer from the judgment any of the cover was negligence the tortfeasor’s injury that employer because stevedoring company if the causing, even factor a substantial suit, LHWCA as the to the party not a was contribut- of others negligence concurrent id. liability. See its limited specifically had incident. ed to at Consequently, 2756-57. at 99 S.Ct. at shipowner, whose 259-60, at day, the at the end Id. only caused to have determined pri- conduct was law of the establishing state After liable harm, to be held was amendments, of the 20% LHWCA’s to the though entire of the 90% the amend- —even its attention turned Court statu against rights no contribution had on the effect to their themselves ments stevedore. torily-immune sever- doctrine judicially-created amendments analysis liability. An al arguments made two shipowner had Congress that to conclude Court led the (1) process in the that Court: Supreme familiar “long-established upset not suits negligence authorizing specifically imposing law maritime principle] LHWCA’s through the shipowners 263, 99 S.Ct. at Id. rule.” proportionate-fault ship- amendments, limited Congress omitted). The (internal quotation at 2758 proportion owner’s remaining therefore, moved, Court actu- shipowner damages which plaintiffs vessel make the it should (2) of whether issue 20%; case, ally caused —in proportion damages only for liable proportion- decree not Congress did if even longshoreman when should, using its own Court Supreme liability, the ate negligence under owner vessel sues the maritime authority to fashion its LHWCA. See id. 99 S.Ct. at found the trier-of-fact. See id. at 2762. To this question, the Court answered -, 114 S.Ct. at 1470-72. The Court “no”: persuaded was proportionate share [W]e mindful are that here we deal approach with an superior options, other interface statutory judge-made part because it was consistent with the By law.... now changing what we have previous Court’s decision in United States v. already established that Congress under- Co., Reliable 95 S.Ct. Transfer law, stood to be the and did not itself wish 1708, 44 (1975). L.Ed.2d 251 In Reliable to modify, might we knock out of kilter this Transfer, Supreme adopted Court a rule delicate balance. advise, As our cases we requiring the assessment on the stay

should our hand in these circum- basis of proportionate fault, and the Court stances. Congress Once has upon relied abandoned a century-old “divided damages” conditions that the courts created, have we rule, whereby property damages were divid- as free as we would otherwise be to ed equally among co-defendants, primarily in change them. A change in the conditions cases, collision regard without to their rela- would effectively alter the statute caus- degrees tive of fault. See id. 410-11, ing it to reach different results than Con- S.Ct. at 1715-16. gress envisioned. The respondents in McDermott argued 271-73, Id. at (citations 99 S.Ct. at 2762-63 the proportionate share approach omitted) was (footnote omitted).16 inconsistent with the Court’s earlier decision Furthermore, the Court’s more recent de in Edmond,s, joint and several liability was — cision in McDermott, Inc. AmClyde, applied Edmonds, and no reduction in the U.S. -, 128 L.Ed.2d 148 shipowner’s judgment was made for pro- the (1994), again recognized the appli continued portionate fault attributed to the stevedore. joint cation of and several liability in the — McDermott, See at-, U.S. 114 S.Ct. general maritime law. At issue in McDer- at 1471. In rejecting the argument, the mott was proper the method accounting McDermott Court noted that Edmonds was for a settlement with certain defendants in “primarily” a LHWCA statutory construction the calculation of the plaintiffs amount of a case, but the Court also observed that:

injuries for which non-settling defendants could be held hable at trial. See at-, id. one can read merely [Edmonds] reaf- 114 S.Ct. at 1463. The adopted Court a ñrming the well-established principle of “proportionate share” settlement joint rule that and several liability. As the Court would diminish the claim of injured the party pointed out, that principle was in way no against the remaining defendants in propor abrogated by Reliable propor- Transfer’s tion to the settling defendant’s share of tionate fault approach.... [Tjhere is no 16. Penrod Judge Garwood's dissent claim pure context, the maritime the clearly Court that Edmonds does preclude not adoption joint refers to liability, and several in a situation joint modified liability in this case Ed- because involving a contributorily-negligent plaintiff, as monds was a statutory LHWCA construction the rule of law,” the "maritime tort and the case, pure whereas in the context, maritime message, Court's minimum, at a appears to be federal courts write on a cleaner slate. See joint and several liability is still rule in McDermott, Inc. v. AmClyde, - U.S. -, -, admirally. 1461, 1471, 114 S.Ct. (1994) 128 L.Ed.2d 148 More importantly, even if given Edmonds is (stating that "primarily" Edmonds involved inter construction, contended for narrow the Edmonds pretations LHWCA). Court joint reaffirmed traditional and several lia- course, Of bility McDermott Court did not in the intend LHWCA context. As will ex- be to limit import plained Edmonds to 111(C)(1), LHWCAcases in Part when considering an because, as will explained, specifically analogous took general rule law, for the maritime the time to reconcile Edmonds’ Supreme reaffirmation of expressed Court has a desire for har- “the principle joint well-established mony and sever- with statutes Thus, such as the LHWCA. liability” al general with the maritime rule of even given when construction, narrow Ed- proportionate settlement credit. See id. at- monds' embrace joint of traditional and several -, Moreover, S.Ct. at 1471-72. while it liability in the LHWCA context counsels us to true that Edmonds primarily focuses on the maintain traditional liability several LHWCAand perhaps does preclude not change general maritime law.

H29 States was States,” though United even joint and several between tension defendant fault while another at only to set- 20% approach share proportionate Co., fault); ... Oil v. Chevron at Gele 60% was Joint tlements. Cir.1978) (stat paying (5th in one defendant’s 250-51 result 574 F.2d can lia- apportioned lawsuit, share that the its than maritime more in a ing, recovery from plaintiff’s bility re when not bar negligence “would own plaintiffs by factors is limited defendants has other that the damages” and covery of control, aas such beyond plaintiff’s from one damages all “right collect insolvency.... Unlike defendant’s to obtain he is unable party in the event Edmonds, share proportionate rule party each portion of relative applies opinion in this announced rule Comparative fault”); also Maritime at see a settlement. has been there when to House Act as Referred Responsibility recovery against cases, plaintiffs such 3318,102d 2,§ Judiciary, H.R. on Committee limited been has settling defendants (1992) comments, reprinted Cong., 1st Sess. agree- forces, by its own but by outside not (7th 7,§ 1-35 Admiralty in 2 Benedict reason is no There to settle. ment (“The 1994) rule existing maritime ed. defen- the other shortfall allocate joint tortfeasors joint-and-several the settle- dants, parties not who were This is apply Act. under continues ment. eontributorily the claimant true whether — 1471-72 at-, 114 S.Ct. not.”); Schoenb Thomas J. negligent or added). omitted) It is (footnotes (emphasis 5-5, § Law aum, Admiralty Maritime specifically that the Court repeating worth 1994) (“The (2d of com adoption at 167 ed. joint and several principle of that the recited estab the well fault has affected parative by Reli- abrogated way liability “was in joint and several rule there lished ap- proportionate able Transfer’s actions.”); Em admiralty tort liability in cf. joint and liabil- treating several thus proach,” Anderson, 398 F.2d Inc. v. Seafoods, pire in compatible as ity proportionate and Cir.) (5th (observing that 204, 21 217 & n. at-, at 1471. 114 S.Ct. admiralty. Id. rule for damages the divided regard to also rec- court decisions lower Numerous rule the fault, state authorities “[t]he mutual liability is the joint and several that ognize [W]e parties.’... third of ‘innocent in terms a involves rule, the case even when maritime con- [the reduction that the are convinced See, e.g., plaintiff. contributorily-negligent re respective plaintiffs’] tributorily-negligent Marine Meisner Towing Co. v. Drake comparative the under coveries (11th 1063, 1060, 1067 Co., F.2d 765 Constr. penalty for full considered is be to doctrine tort case Cir.1985) maritime (stating, in a thereafter, must, be they that fault and their Act, a Admiralty that in involving the Suits ‘innocent manner the same in treated “may recov- contributorily-negligent denied, U.S. 393 cert. parties.’”), third proportion damages, less that entire er its (1968).17 444 21 L.Ed.2d 89 the United S.Ct. from to its own attributable inju- personal settings than maritime rather Judge sion substantially all that note 17. We joint and dispute cases, beyond that is ry and it supporting the to is dissent directed Garwood’s personal in maritime liability the is rule several joint severtil liabili- startling proposition that 259-60, Edmonds, U.S. at injury See personal cases. existing maritime rule ty the is not [admiralty law] had ("As 2755-56 its efforts 99 S.Ct. that admits The dissent injury cases. in a award longshoreman's a point the simple "that evolved making to the directed are be re- shipowner would negligent argues against the a that open,” suit essentially is issue assignable damages portion the that is that rule” general maritime duced "longstanding but, as a negligence; "personally own longshoreman's plaintiff who to the innocent an even law, shipowner the judgment tort recovers ... matter maritime accident injured in an longshoreman full only the responsible half his for to be each defendant would initially from negli- remainder, only the stevedore’s each even if beyond as to go that the damages, for gence and can (emphasis injuries.” inability to col- (plaintiff’s) showing contributed his by first ("Congress at 2762 added)); S.Ct. half." the latter’s id. at other defendant lect from judicially-created change the to intend not did to distin- heroic efforts Despite dissent's pay all to be shipowner can made reality. that rule simply position defies precedent, its guish negli- own plaintiff's damages due to century colli- on nineteenth focuses dissent addition, Moragne, example, Supreme character In Penrod’s for Court contributory negligence bar general wrongful ization of the created a maritime death joint couplet observing and several a cause of action after that federal ignores important principles fact that the changed and state law had to allow indemnity were de wrongful 390-93, 401, of contribution and also death. See id. at veloped procedural 1782-84, means to as a counteract 90 S.Ct. at danger one defendant would un that Supreme It is also true that the Court has al., duly burdened. See Marie R. Yeates et willing forge to a been maritime Indemnity Contribution Maritime position when no has wholesale consensus (1989). Litigation, 30 S.Tex.L.Rev. McDermott, developed. In the Court noted principles “by Contribution distribute loss developed that uniform had consensus requiring pay propor each tortfeasor approach to an cred issue settlement tion of ac attributable its, but the Court went on to evaluate and Indemnity “permits tions.” Id. one tortfea- “principal” choose from the three alterna sor to shift all of loss onto another tort- tives identified the American Law Insti if it is feasor determined the latter — McDermott, tute. See at- U.S. rightfully plain should answer for all -, Nevertheless, S.Ct. 1465-67. damages.” tiffs Both Id. contribution occasion, Supreme more than one Court indemnity provide appor mechanism has counseled the adoption of a dis tioning plaintiffs damages among tinctly minority view. See id. at-n. appor tortfeasors themselves. See id. This (“We unwilling 114 S.Ct. at 1466 n. 8 designed any tionment alleviate unfair yet consider a rule that has applied to be resulting joint ness jurisdiction.”); Apex Miles v. Marine paying because the tortfeasor the entire 19, 35, Corp., 317, 327, 112 recoup pay can some or all (1990) (noting L.Ed.2d 275 dis Court’s short, ments from the other tortfeasors. “adopting distinctly minority comfort with argument Penrod’s and several view,” implying prefers that the Court plain is reserved for innocent policy judg more “wholesale” and “uniform” plainly accepted tiffs inconsistent with the ment). practice of the maritime law. mind, With principles these an examina- Signals from the states tion of the changes state law law model

Admiralty historically joint courts have been re- to liability traditional and several is sponsive to developments striking, common-law and to variety as the wide of alternatives See, legislative e.g., Moragne fragmentation enactments. a approaches reveals far Lines, 375, 392, greater States Marine presented U.S. than the Court was inwith (1970). 1772, 1783, with, 26 L.Ed.2d 339 begin approximately McDermott. To added)); McDermott, - gence-” (emphasis acknowledges joint Even Penrod that and sev- at-, ("[O]ne 114 S.Ct. at 1471 can read liability existing per- eral is the rule of maritime opinion merely reaffirming that as the [Edmonds] injury law. change sonal Penrod asks us to principle joint well-established bility." of lia and several "replace” joint maritime law to sev- added)); (emphasis also see Maritime liability joint liability.” eral deed, "modified In- Comparative Responsibility Act as to Referred "[wjhether it frames its issue first Judiciary, § House Committee on H.R. joint liability doctrine of and several should be comments, (1992) Cong., reprinted 1st 102d Sess. added). (emphasis retained law” in maritime (7th Admiralty § 2in Benedict on 1-35 ed. at Court, Simply put, recognized by Supreme 1994) ("The joint-and- existing of maritime rule field, lawyers, maritime commentators in the liability joint several continues to tortfeasors itself, appellant joint open: the issue is not apply this under Act. This is whether the true liability per- and several is rule in maritime contributorily negligent claimant was or not.” injury sonal cases. added)); Schoenbaum, (emphasis 1 Thomas J. Thus, change Penrod and the dissent ask us to 5-5, (2d Admiralty § Law Maritime existing 1994) personal injury law of ("The maritime to comparative adoption ed. adopt proposal jurisdiction a yet that no has not has to affected the rule that well established adopt. joint explain, granting admiralty request there is As we a several such is added)). tort (emphasis prudent. actions.” neither authorized nor

H31 Mari- See Congress 1992.19 proposed to joint several ago, years twenty Act as Re- Responsibility Comparative & See Pressler every state. time rule was the time, a Judiciary, on Schieffer, Since supra, at 656.18 House Committee to ferred the con- have modified the states majority Cong., Sess. 3(d), 102d 1st § H.R. or limitation by substantial cept, either (1992) comments, in 2 Benedict reprinted at 656-57. id. See outright elimination. 1994).20 (7th 1-46,1^7 ed. § Admiralty however, to tra- states, still adhere Thirteen real- post-judgment employ Four states liability. joint and several ditional Mich.Comp.Laws See approach. location Fault Act Comparative 604.02; § Uniform 600.6304; The 1977 Minn.Stat.Ann. § Ann. joint a begins with approach adopted an 537.067; also Conn.Gen. § see Mo.Ann.Stat. a defen- permits judgment, but reallo- (allowing the 52-572h(g) § Stat.Ann. entered the court that to to return dant non-economic of uncollectible cation reallocate the court to request to judgment economic and uncollectible among parties all judg- of the share equitable defendant’s defendants). remaining damages among to be uncollect- it is established ment —after remaining tortfeasors and reallocation among the these operation The ible— plaintiff: contributorily-negligent respects however, crucial schemes, differs in liability proposal than joint [one later made not modified Upon motion from the entered, the court is judgment after Uni- year] by Penrod. Under upon us urged part of all or whether determine Act, example, shall Fault Comparative form obligation equitable share party’s liability main- joint and several traditional and shall party, uncollectible tained: among amount any uncollectible reallocate joint-and-several law rule common claimant at including a parties, the other continues liability of tortfeasors percent- respective fault, according to their is true whether Act. This under this apply fault. ages of eontributorily negligen[t] claimant was 2(d), § Fault Act Comparative Uniform total can recover The plaintiff not. Law (Supp.1993). Maritime U.L.A. any defen- of his amount court-ordered adopted this also Association who is liable. dant legislation that approach in the reallocation relating develop in the law rule (Second) incorpo- would uniform Torts 18. The Restatement among joint claims joint and several the settlement principles of traditional tortfea- rates liability: injury Ab- personal claims. in maritime sors Court, legis- Supreme persons ruling by whose tortious new two or more Each sent single and indivis- legal of a appeared practical most cause by Congress conduct lation subject party is injured ible harm area. law in this way to settle injured party for the entire United Law Association The Maritime harm. an proposal in accordingly developed a States (1979). (Second) § 875 of Torts Restatement complicated issue.... attempt this to resolve elaborates: 879 further Section end of the with the Bill died or of two more of each the tortious conduct If persons term.... that cannot legal of harm ais cause Supreme Congress the Ultimately, or either liability for the subject to apportioned, each is the matter to address will have Court harm, their con- irrespective of whether entire holdings district conflicting resolve concurring or consecutive. duct is Club and Boca Grande McDermott courts. (Second) lat- is the If § 879. The Restatement Id. decided, the dispositive, when prove (Third) do edition, appor- on as the Restatement est may be revived. legislation drafting proposed initial presently in the is issues tionment (7th ed. Admiralty § at 1-27 on stage. Benedict added). 1994) (emphasis proposed re- Association's Law 19. The Maritime explicitly resolved has that McDermott Now spurred a desire been appears have form propor- adopting issue of claims settlement satisfactory manner than a more resolve—in rule, impetus behind settlement share tionate of claims settlement had done—the some courts legislation have waned. proposed on As Benedict issue. among joint tortfeasors Admiralty explains: committee, its 20.Although died bill in McDermott grant of certiorari Prior analysis. to our operation is relevant proposed Club, no appeared that Grande and Boca Comparative Uniform §Act Fault a party’s after share is determined to be (comment). (Supp.1993) U.L.A. 50 The Mar- uncollectible. See Uniform Comparative itime Law Association’s proposed legislation 2(d), § Fault Act 12 U.L.A. 50 (Supp.1993); language: uses similar Comparative Maritime Responsibility Act as existing joint-and- maritime rule of Referred to House Committee on Judiciary, liability joint several tortfeasors contin- supra, 1-46, § 1-47; Conn.Gen.Stat. apply ues to under this Act. This is true § Ann. 52-572h(g); Mich.Comp.Laws Ann. whether contributorily claimant was 600.6304; § 604.02; § Minn.Stat.Ann. Mo. negligent or not. The can recover § Ann.Stat. contrast, 537.067. Penrod’s judgment total amount joint liability modified proposal “real- would any defendant who is liable. part locate” as judgment initial —be- Comparative Maritime Responsibility Act as fore it is determined defendant’s share Referred Judiciary, House Committee is Thus, uncollectible. proposal Penrod’s supra, 1-35; § see also Minn.Stat.Ann. (and builds the risk noneollection the ex- 604.02(1) (“When § persons two or more pense collection) delay judg- into the jointly liable, contributions to awards shall be ment, disadvantaging plaintiff regardless in proportion to percentage of fault at- of whether a defendant’s actually share each, tributable to except jointly that each is proves to be uncollectible.21 particu- This is severally liable award.”); for the whole larly noteworthy case, in the instant 537.067(3) (“This where § Mo.Ann.Stat. section no evidence of insolvency shall or uncollectibility not be construed to expand or restrict present joint doctrine of record. The liability proposed by ex- rule cept for provided reallocation Penrod the principle joint subsec- severs and sev- 2.”). tion eral collectibility its moorings

More importantly, state, a manner though law, even these uniform or schemes reallocate an insolvent even the defendant’s Association, Maritime Law has em- liability, share of applies only reallocation braced.22 21. Judge Garwood's dissent states that Arizona tionate share of the risk of one defendant's insol- Hampshire and New adopted have also vency upon similar contributorily-negligent plaintiff. note, approaches. however, reallocation We references, however, These footnote do not these only states parly's reallocate after a share support cause, adoption proposal Penrod’s be- uncollectible, and, is determined to be at least in Act, under the Comparative Uniform Fault Hampshire, New such only reallocation occurs maintained, and several and real- among defendants. See N.H.Rev.Stat.Ann. location can occur party on motion of a (III) § (“Upon 507:7-E motion filed not later judgment. the initial importantly, Most after days entered, than 60 after final however, Judge proposal Garwood’s reaches dif- court part shall determine whether all or of a ferent substantive results than the Uniform Com- proportionate defendant’s obligation share of the parative Fault Act when there are more than two is uncollectible from that defendant and shall defendants, at least two which are solvent and reallocate uncollectible among amount at least one of (e.g., which is insolvent three other according proportion- to their defendants defendants, insolvent). one which is This is added)); (emphasis ate shares.” Ariz.Rev. cf. Judge because approach Garwood’s calculates a ("If § Stat. 12-2508 a contribution share is total- defendant’s share of compari- based on a ly uncollectible, partially the court shall rede- son of the responsibility of that defendant to the termine the contribution shares of the other tort- responsibility combined of that defendant added)). (emphasis feasors...." plaintiff, while Comparative the Uniform Fault Act calculates a defendant's reallocated argued It is thirty-one that footnotes and thir comparison share based aon responsibili- of the ty-two Supreme Court's opin McDermott ty of that defendant to the responsibili- combined cite, ion apparent with approval, § 2 of the Uni ty defendant, of that plaintiff, and the re- Comparative form specifically, Fault maining solvent Act— defendants. provision § relating of 2 to "reallocation [an] distinctions, Because of these Judge critical McDermott, equitable insolvent defendant's share." description Garwood’s proposal of his as an “es- 32, at-nn. 31 & - sentially procedural [Uniform modification to the 1471 nn. 31 & 32. These references are claimed Comparative approach” Act] Fault is a strained Supreme indicate the potential Court's description will Support at best. for the Uniform ingness to places embrace a propor- rule that Comparative Fault Act cannot be construed as

H33 services). medically-related and medical mentioned, reallocation from the aside As concerns, ap- a sixth public policy to the Due to approaches schemes, farther there liability liability. joint and proach preserves several joint and several modification Dakota, Idaho, for ex- causes Colorado, respect to certain enumerated and North with joint See, § and several 12- suspended the e.g., Ariz.Rev.Stat.Ann. ample, have action. the co-defen- except 2506(D) liability where liability principle joint (permitting and several (or vicar- were “acting in concert” were hazardous dants action involves the cause of when liable). § 13- 41.141(5) See Colo.Rev.Stat.Ann. iously (retaining wastes); § Nev.Rev.Stat. 6-808(5); N.D.Cent. 21-111.5; § Code Idaho liability, liability for strict joint and several § 32-03.2-02. Code substances, tort, and hazardous intentional cases); liability products N.M.Stat.Ann. have states approach, several third As a joint lia- (stating and several § 41-3A-1 only liability joint several and preserved claims, liability bility available for strict wholly to be is determined plaintiff when torts, “having a and situations See, §§ intentional Ann. 51- e.g., Ga.Code fault. without A seventh public policy”). Ann. -33; basis sound Wash.Rev.Code 12-31 liability joint 4.22.070; Boyles v. Oklahoma and several approach also eliminates § see (Okla. Co., pure 616-17 lia- imposing 619 P.2d several altogether, Natural Gas instead 09.17.080(d) applica 1980). approach See, limits § A fourth bility. e.g., Alaska Stat. where rule situations (“The against the traditional tion of enter court shall satisfaction from whom defendant of several party on the basis liable each percentage minimum sought bears at least party’s per- with that liability in accordance See, e.g., Fla.Stat.Ann. responsibility. § fault.”); 78-27- Code Ann. centage of Utah to recover (permitting § 768.81 38(3) (“[N]o any person is liable defendant only severally jointly and economic in excess of any amount seeking negligence is whose defendants from those of fault attributable proportion plaintiff); that of or exceeds equal to l-l-109(e). defendant.”); § Wyo.Stat. joint (allowing §Ann. 668.4 Iowa Code however, the states most of Significantly, only defendant’s liability where a several liability have modify joint and several responsi 50% of total negligence exceeds by enacting statu- (same); approach adopted hybrid § 27-1-703 Ann. bility); Mont.Code one than incorporate § more tory 33.013 schemes that Rem.Code Ann. Tex.Civ.Prac. & See, e.g., against negligence trends. above-mentioned (measuring a defendant’s (combining § liability actions 663-10.9 for some total Haw.Rev.Stat.Ann. action, responsibility types percentage plaintiffs relating to causes of limitations lia others, joint several permitting percentage damages, a defendant’s a defendant’s bility Ill.Rev.Stat., para. where eh. responsibility); percentages). the enumerated exceeds (same); § 604.02 Minn.Stat.Ann. 5/2-1117 claims-related, liabili- percentage (combining and sev- joint approach fifth eliminates A schemes); Wash.Rev. ty, and reallocation to non-eeonomic respect eral joint and (preserving §Ann. 4.22.070 Code joint several lia- damages, but maintains in con- “acting tortfeasors See, e.g., Cal. damages. bility for economic plaintiffs). wholly-innocent and for cert” 768.81; § 1431.2; § Fla.Stat.Ann. Civ.Code unique blend represents Each scheme 2315.19; §Ann. Or.Rev.Stat. Ohio Rev.Code respec- by the weighed policy considerations Ill.Rev.Stat., 735, para. 18.485; ch. § 5/2- cf. legislatures.23 state liability for tive joint and several (permitting Moody, 696 S.W.2d Co. v. Ins. liability. Prudential The differ- support for modified Life Morgan, 588 (Ky.1985); Laubach them are fundamental. between ences 1978); (Okla. McIntyre v. Balen P.2d tine, (Tenn.1992). see modifi- But differences how 23. There are also 833 S.W.2d Co., P.2d among accomplished states. For Natural Gas Boyles v. Oklahoma cations are (reaffirming joint (Okla.1980) changed judicially example, have 616-17 four states wholly inno plaintiff is liability. when See Brown several joint and several eliminated changes joint sev- cent). 867, (1978); state to Keill, The other 874 P.2d 224 580 Kan. 1134 examination, 242, 243-44, (1955)

From this we make one im 99 L.Ed. 260 (explaining portant observation: no in adopted drafting state has that the Jones Act to refer to the joint FELA, liability Congress modified scheme that effectively functions declared that in proposed contingencies against the manner Penrod. It “those bears Congress provided repeating Supreme has to Court has ensure been to railroad willing positions employees to consider where uni should be met in no also the admiral- ty setting”). developed, Specifically, form consensus has see McDer section 53 of the —mott, -, provides FELA that a may recover 1466-67, total amount of Supreme his explicit but the Court has less that part representing ly “unwilling contributory negli- own stated that consider gence. § See 45 U.S.C. yet applied 53. There is any juris rule that has in be exception in the Act for cases which one or See id. at-n. diction.” S.Ct. at more of the pay defendants fails to its unwilling, 1466n. 8. We too share. and we therefore, Congress, provided unauthorized, adopt seamen the joint the modified remedy joint liability and several liability urged proposal upon us Penrod.24 prevalent at the time that the Jones Act was adopted. Simeon, C. See Informing Other Factors 852 F.2d at Ability Our J., (King, specially Change concurring). Indeed, General Maritime Law Penrod Congress concedes that has statutori- Uniformity 1. and “harmonization” ly injured declared that an Jones Act seaman noted, general As maritime law is entitled to be made whole with the benefit applies century-old joint doctrine of joint liability. and several As Penrod liability. Similarly, several principal the two notes: statutes, federal maritime the LHWCA and suggest We do not proposed Act, apply joint Jones and several liabili joint “modified liability” apply any case ty principles as well. recognizing After Congress where partic- has declared that a origins joint liability several ular litigant, class of such as the Jones Act common law, law and maritime seaman Longshoremen’s or the Act em- the Edmonds Court approved application ployee, special entitled to consider- joint liability and several in the context of ation.... Statutorily, Congress has de- 906(b) § actions under the LHWCA. See injured clared that Act seam[e]n Jones Edmonds, 7, 271-73, 443 U.S. at 260 & n. longshoremen with claims under 33 U.S.C. S.Ct. at 2756 & n. 905(b) 2762-63. § are to be made whole.... [T]he policy by Conyress established for deal- joint The doctrine of several ing injured Act Jones seamen was crystallized in well, the Jones Act context as given controlling weight majority in the although it stems from different source. opinion Simeon, as well it should By incorporating the remedies afforded to have been.... railway employees under the Federal Em added). (emphasis ployers’ Liability judi Act—with attendant cial glosses25 Congress evidenced its inten Penrod’s concession is realistic. Numer- — tion that apply in ous recognized joint cases have and several Simeon, Jones Act cases. See F.2d at See, Jones Act violations. e.g., J., (King, 1450-51 specially concurring); see Joia v. Corp., Jo-Ja Serv. 817 F.2d Roth, also 207, 209, (1st Cox v. Cir.1987) (“The 75 S.Ct. joint and several loss however, liability, eral eration, through true, have been made if adopt- further convinces us that respective legislatures. ing joint liability, modified creating a whole- change admiralty, sale in the is unwise. urged 24. Penrod has adopt previ- us ously-described joint liability See, proposal. modified e.g., Northern, Inc., Burlington Gaulden v. It has not asked us to consider other (1982) (“A modifi- 232 Kan. 654 P.2d addition, approaches. cations or although carrier, FELA, railroad or other under must bear Judge argues Garwood's dissent that no decision all of the loss employee an sustained by which is explicitly has rejected considered and jointly modified caused the fault of the carrier and third joint liability, widespread such a persons.”). lack of consid-

H35 (1978) (noting 2010, 2014, 56 L.Ed.2d 581 provide to which serves allocating mechanism implied, DOHSA Moragne itself judgment is that “[a]s full conso his injured seaman an they primary guide as the Jones courts’ should policy behind be with nant 1008, denied) nonstatutory remedy, 108 death both Act_”), 484 U.S. refíne cert. (1988); uniformity Dicola v. and L.Ed.2d 654 the interest 98 because of S.Ct. Protec Mut. Steamship judgment Owners has Congress’ considered because American (In Ass’n, re Pruden allowing Inc. a right,” Indem. and and in its own great tion force (S.D.N.Y. Lines, Inc.), 235 170 B.R. in reme waters/high tial seas distinction coastal Act, 1994) (“[UJnder ... a tortfea- the Jones general maritime law in the to remain dies severally liable jointly and can be held sor uniformity cannot over for “a desire because damages a entirety of the seaman added) (footnote for (emphasis ride the statute” sustains, tortfeasor’s] if [the even 395, 401, omitted)); at Moragne, 398 U.S. & minimal.”); v. National Steel Johnson was (creating a maritime at S.Ct. Co., F.Supp. Shipbuilding remedy pres “the wrongful action to death (S.D.Cal.1990) “can (noting that a defendant nonuniformity in the effectuation ent severally liable with jointly adjudged and be ship” that exist duty provide seaworthy to plain where in the cases cross-claimants and statutory schemes federal ed between pursu were seamen their decedents or tiffs law); Ameri see also general maritime Texaco, Act”); Inc. v. Addi the Jones to ant —Miller, -, v. Dredging Co. can (Miss.1993) (stating 1193, 1202 son, 613 So.2d -, 127 L.Ed.2d at the Act seaman “was Jones that (1994) (“While and there is an established to injury thus entitled [is] of his and time common law continuing tradition of federal [defendants], who ... collect admiralty, is to be devel making that law liable.") severally (emphasis jointly and possible, harmonize oped, to insofar added).26 Congress in the enactments of with the proposal sanction form would added)). Penrod’s need not (emphasis We field.” law that general maritime uniformity prin far the precisely how decide recovery under from the form different because, given Supreme ciple extends pres- Act. The and Jones LHWCA between with differences Court’s concern replaced by a uniformity lack would be ent law, it judicial would legislative and maritime ju- legislative and the uniformity among the least, accept say problematic, be con- dissonance has Such schemes. dicial lack thereby create a proposal Penrod’s many cases. Supreme Court cerned judi uniformity among the legislative 27, 33, Miles, See, 111 S.Ct. e.g., uniformity in an area where cial schemes 322-23, (observing applicable that currently exists. our actions” direct and delimit “both statutes concern, namely, the A different law, and general maritime shaping the general uniformity within concern ap- uniform rule taking action “restore complica law, a further produces maritime wrongful death to all plicable actions mari general change in the DOHSA, tion. Penrod’s seaman, under whether of a ” Coats- directly would affect (em- time law Act, general law maritime Jones not cov who are seamen like water brown added)); Corp. Oil phasis Mobil statute, but by any federal maritime 618, 624, ered 98 S.Ct. Higginbotham, 436 U.S. plaintiff, contributorily-negligent involving a disagrees case our Judge dissent Garwood's principles incorporated applied, been FELA traditional the Jones Act has that the contention context, incorporate Finally, liability. tra- the dissent joint a multi-defendant several liability principles. joint court several other lower dispatches ditional as irrelevant three Nevertheless, Judge that in Garwood concedes principles clearly applied cases that Joia, plaintiff who contributorily-negligent a 5% claiming byAct liability under the Jones Act and a employer the Jones under sued plaintiff. negligent they not involve a did maritime law party under the third course, dissent, to cite is unable two entitled to held applies its the Jones Act authority to indicate defendants, severally, jointly for the remain- system distribu- of fault proposal other or some Moreover, damages. plaintiff's ing 95% dissent tion collection. stated, in a that Gaulden concedes 1136

also general blue water seamen —the mari joint liability Traditional and several offers plaintiff. protection time law’s most common We are for seamen. of One the realities compelled complex to of a “special therefore address international commercial system solicitude” afforded to seamen their fami maritime is that seamen into come Miles, contact lies.27 may See 498 U.S. at 111 multi-national entities who S.Ct. at find, 327-28; Gaudet, be difficult to pursue, and collect from Sea-Land Serv. 414 U.S. injury. of an 573, 583, 806, 814, ability event to 94 S.Ct. 39 L.Ed.2d 9 (1974). recover any one defen- of developed The law the sea has dant, however, provided by joint sev- principles unknown to the common law— helps eral liability, to alleviate this concern. specifically, special seamen, a for solicitude joint of abolition they are considered to be the “wards of plaintiffs seamen against powerful travels See, admiralty.” e.g., O’Donnell v. Great special current of a protection for seamen. Co., Dredge 36, 40, Lakes and Dock 318 U.S. Edmonds, 443 U.S. at 99 at S.Ct. 488, 490-91, Cf. (1943); 63 87 S.Ct. L.Ed. 596 (stating 2761-62 although ineq- “[s]ome Co., Garrett v. Moore-McCormack 317 U.S. uity appears present inevitable in the statu- 239, 246-47, 246, 251-52, 63 S.Ct. 87 L.Ed. scheme, tory nothing [] we find to indicate (1942) (quoting Gordon, 239 Harden v. presume and should not that Congress in- (C.C.D.Me.1823) (No. 6047) F.Cas. place tended to inequity the burden of on the J.)). (Story, eloquently Justice Jackson de longshoreman whom the [LHWCA] seeks to affording special scribed the rationale for protect.”).28 Preserving joint and several lia- concern to seamen: bility for plaintiffs, seamen modifying while given From ancient times admiralty has to joint general for other maritime rights seamen which the common did law plaintiffs, would introduce a new disuniformi- landsmen, give because the condi- ty general within the maritime law. tions sea service were different from Finally, it would be difficult to Pen- cabin service, conditions of other even har- proposal rod’s general for the maritime law bor service- While his lot has been in the suggested by manner Penrod —that its ameliorated, even under modern condi- proposal apply would not to a LHWCA em tions, seagoing laborer suffers an en- 905(b). ployee § suing under When Ed- tirely discipline different risk than monds Court changing considered maritime the harbor does worker. His fate is still applying law and several to that ship. tied His freedom is 905(b) actions, § the Court noted that a such restricted. change effectively “would alter Talbot, Pope 423-24, & 346 U.S. at causing [LHWCA] it to reach different (Jackson, J., at dissenting). Congress results than envisioned.” Ed special is, See, 27. The Simeon, solicitude for party. e.g., seaman third 852 F.2d at course, Act, perhaps foundation for the J., Jones (King, specially 1454-55 concurring) (recog- seaman's recoveiy most common form nizing general policy under maritime law to injured he negligence when as a result of the protect favor and to seamen in the context a See, Cox, employer. e.g., general seaman's maritime claim ("The S.Ct. at 244 extreme harshness of the old owner). third-party tug a abating common-law rule actions death of expressed the tortfeasor flies in the face of the Garwood, dissent, Judge gives short-shrift congressional purpose provide 'the welfare seamen, to this solicitude for as he re- legislation seamen.' The Act Jones ‘Aswelfare peatedly question that the merely asserts boils ... is entitled to a liberal construction accom- choosing approach. down to the “fairest” Our plish "). purposes.’ its beneficent The same soli- response applies equally today: in Simeon as well applies general citude a under the maritime law to unequivocal "[t]here ... exists measure seaman who be unable establish reasonable, fair, just. what is predicate Consequently, i.e., a Jones Act recoveiy, that his reasonable, fair, employer negligent, statement that a rule of law is was employer's but is able establish just simply that his unseaworthy. vessel reflection that the rule ad- Similarly, applies policy person under the vances a judging that the maritime rule law when inapplicable, J., the Jones Act is (King, specially such as advocates.” 852 F.2d at 1454 injured through when seaman is concurring). the fault of a 271-73, past monds, lightly at 2762- overrule decisions.” 398 U.S. at 99 S.Ct. short, affect at 1789. proposal Penrod’s would 90 S.Ct. 63. In judge-made statutory an “interface Moragne, the Court enunciated LHWCA) (the is, statute whose law”—that analysis in the three factors stare decisis by Congress in part defined provisions are weighed rejection prior must be to of a admiralty. part by the common law of and in longstanding rule: Edmonds, at 2762. Given Id. at 99 S.Ct. volve the interface no answer that this case does between the LHWCA not in and clear ^[1] the guide for the desirability conduct of that the law individuals, furnish them to with plan to enable their affairs accepting law general the maritime because Penrod’s proposal will have some effect on assurance against untoward surprise; ^[2] expe- importance furthering of fair and developing If the case law this interface. adjudication eliminating ditious incorporate does LHWCA not under the relitigate every proposi- to relevant joint liability, need change to modified LHWCA and the general maritime law will tion in every case; ^[3] necessity maintaining public judiciary faith in the step. If the does evolve be LHWCA out impersonal judg- reasoned a source change, the the Jones with LHWCA and our schemes, ments. Act in their will differ upon Act is built the FELA—not Jones at 90 at 1789. With 398 U.S. In upon general maritime law. either factor, respect to the first considered to be case, engender proposed change would decisis,” id., mainstay recog- “the of stare we principles of uncertainty and frustrate the in the predictability nize that the need for Edmonds, at 99 See 443 U.S.

Edmonds. arguably maritime commercial arena (“By we changing now what S.Ct. at 2763 greater than in other of law and com- areas Congress un already established that have true are al- This is because there merce. law, itself to be the and did not wish derstood ready inherently unpredict- numerous might kilter this modify, to we knock out of stemming perils of factors from the able advise, we As our cases delicate balance. frequently fortui- and the continual—and sea stay our hand in these circum should of other enterprises tous—interaction (footnote omitted)). short, giv stances.” It is axiomatic that the rules nations. when uniformity and con en our harmonization clear, parties may contract within of law are cerns, adopt not inclined Penrod’s we are boundaries, their and the commer- or around liability gen joint proposal for the modified ways, in- system many cial facilitated eral maritime law.29 in- litigation, favorable cluding reduced more applica- coverage, ease of surance overall rJ.&MQ')q 9. FH.mva factor counsels tion. This therefore Timco, change. Uniformity proposed Lewis predictability See (“The Cir.1983) (5th 1428 important admiralty, Moragne coun F.2d uniformity, with “[v]ery weighty law’s] un values of [maritime sels considerations that companion quality predictability, a principle courts should their derlie " general as a new maritime Court 'the in this case rule of The McDermott reiterated traditionally Judiciary in for- has taken the lead law. law mulating and fair in the flexible remedies Moreover, opinion in Reliable Court’s - McDermott, at-, maritime.'” supports Supreme "harmon- Court's Transfer ization” (quoting Transfer, 421 U.S. S.Ct. at 1465 Reliable by acknowledging "[n]o concern note, 1715). important 95 S.Ct. It is change statutory judicial precept precludes however, that the Court commenced McDermott damages, indeed of divided in the rule with the that none its discussion observation bring simply recov- proportional fault rule would admiralty “imposes any limit the federal statutes property damage ery in maritime collision authority that will to fashion the rules our admiralty long law line with the rule of cases into question presented by this case.” answer the best by Congress....” Reliable contrast, since established explained, federal as we have In admiralty (citing Transfer, U.S. at 95 S.Ct. at and our for unifor- statutes concerns Act, 688) (emphasis § add- the Jones U.S.C. mity provide some limits and harmonization do ed). adopt authority joint modified on our prized If, underwriting value in the extensive proper within scope, any its change is risks, preserved by declining marine are best desired in admiralty], [the] rules [of other recognize a new and distinct doctrine with- procedure, than those of it must be made fit.”). assuring completeness out legislative its department. It cannot supposed ... that the law should forev- similarly points factor away second er remain Congress unalterable. undoubt- proposed change. adoption Our edly authority has under the commercial joint modified in this case would other, power, if no to introduce such promote shopping forum and would add an- changes likely as are to be needed. complication litiga- other level of to maritime tion. apply Lottawanna, (21 Wall.) Modified would 558, 577, claims, (1874). maritime law whereas 22 L.Ed. Congress could evalu- joint liability traditional and several would desirability ate the modifying joint of apply statutory to certain claims. only several general for the mari- law, time many but also for the maritime The final of Moragne inquiry strand statutes superintends. that Congress opportunity changing affords an for “a rule could, for example, limit application reason, unjustified produces in which differ joint and several to situations where duty ent results for breaches of in situations a defendant statutory bears either a percent- that policy.” cannot be differentiated in Mo age of the total fault or at least more than ragne, 90 S.Ct. at 1790. No plaintiff. that of the precise These remedies such situation exists here. The traditional would be problematic more for a federal joint doctrine liability, and several court to enact because our instruments of preserves right injured of the maritime generally Indeed, revision are blunt. injuries, worker to recover for represents mentioned, majority the vast of the states policy a conscious choice to shift the burden that have joint altered traditional and several defendants, of uncolleetibility to and it has legislatively, have done so while justification history. substantial in In addi only four states have modified the traditional tion, currently applies the traditional rule through judicial rule process. Joia, See uniformly statutory general and to mari (“[T]he 817 F.2d at 917 decision whether to producing time law the same results claims— continue [away joint this trend for the duty same breaches of often entwined recovery] several properly is more before a in litigation. contrast, maritime In adopting legislature.”). joint liability modified general for maritime claims, law only keenly We are maritime aware fast-moving law of the non-seamen, political claims produce calling forces would now differ heel excesses of ent statutory results than the tort law. This turn political light schemes for of the Thus, upon the same tort “tortious” conduct. law the third stiffens our resolve not to Moragne attempt against factor also to run in change. counsels front of Congress.

Leading political charge appropri- is not an legislative Deferral to action court, ate role for a federal not even for a sitting federal court admiralty. in The spectrum legislative wide enact- ments countiy across the demonstrates the 4. Private ordering objectives policy various attainable alter- ing joint liability. and several Furthermore, Most notable contractual allocation are the upon distinctions based causes of private parties risk accomplishes better action types damages. Congress goal allocating risk. parties, Private is in position a better than a court to courts, evaluate rather than are better able to assess policy objectives. various persuaded We are the risks of noncollection and to decide who deferring that congressional action here is is in position the best judgment. to collect a the wiser course. Even here we Sophisticated stand on parties, maritime intertwined tradition, maritime ju- even the earliest in relationships, contractual usually can fore rists appear to have counseled deference to insolvency see the risk of and can allocate or legislature: insure example, it. For Penrod and

H39 (allegiance the fourth factor of the defendant the risk of position in a to address were MIS owner); (place fifth factor of the ship they their contract. insolvency when wrote contract). place Looking first at the of the In- “bargaining” position. such Coats had act, majority opinion wrongful devotes can deed, potential co-defendants “where subject. analysis of this It one sentence appor- regarding their in advance contract recognizes “the accident occurred that themselves, among rules obligations tionment Arab Emi- territorial waters United leave both traditional rates” and since this a “nontraditional rights apportionment liability and traditional case,” that factor is entitled to maritime optimal might create incentives place injured weight.” “considerable Coats equitable concerns.” be consistent jackup the Penrod drill- while on board Institute, Enterprise Respon- Law American operated by Drill- ing rig owned and Penrod (1991). Injury 156 sibility Personal (“Penrod”). ing Corporation At the time easily ad- place are clear rules now accident, is no doubt that the Pen- there They leave the allocation ministered. Saqr of Mina rod 69 was the Port “located parties best of noncollection to risks waters of the United Arab the territorial risks. Absent equipped to evaluate these my judgment, fact Emirates.” intervention, private ordering congressional rig port” significance crucial was “in has proposed superior far of the risks is case, in it makes clear that the this because to ability by definition is inferior Our effort. boundary recognized was within the vessel ability allocate to tailor and the market’s purposes as the for international law bound- these risks. within ary of the Emirates and United Arab be referred to under United what would IV. CONCLUSION the “inland nomenclature as waters” States adopt to proposal Penrod’s decline We Khaymah, particular Ra’s A1 emirate of joint liability general mari- for the modified port located. The Penrod judgment of the court The district time law. waters of Ra’s A1 was within the inland is AFFIRMED. just jackup rig in of Khaymah like a the Port within the in- to be Galveston considered DeMOSS, dissenting, joined Judge, Circuit Texas, of of and like a land waters the State E. H. and JERRY by EDITH JONES rig in the of Biloxi is within inland Port SMITH, joined by Judges, and Circuit Mississippi. Further- of the State of waters GARWOOD, JOLLY, and E. GRADY more, port” “in 69 had been the Penrod GARZA, Judges, as to EMILIO M. Circuit prior to the eight or nine months date some only: Part I injury. The records are clear that of Coats’ 12, 1987, 69 was August the Penrod sur- the decision of I to concur with am unable certificate, and veyed for its condition annual First, I majority respects: in two crucial indicates, time, survey report at that of the proper think evaluation Lauritzen- port. Pen- lay jacked-up” in this “vessel requires that choice of factors Rhoditis deactivated, service, rod 69 was out case be made in this law determination by any personnel occupied operated, and not Emirates favor the law of the United Arab watchman, January up until than a other (“UAE”) that of United rather than contract for a result of new when as Secondly, if law is to United States States. drilling rig’s Gulf activi- use in Persian apply we should United States applied, be preparing the task of ty, Penrod commenced casualty in time of the law as it existed go into service. Dur- the Penrod back prior it existed to 1972. this as case—not deactivation, the Penrod ing interval solely an wharf or functioned artificial I. storing purpose equip- dock for the Law States Whether United thereon, legs with its ment and facilities port of the and its standing on bottom panel on the Lau- My with the differences repairs, up out of the water. Substantial involve hull choice of law factors ritzew-Rhoditis act); refurbishing activities were wrongful replacements (place factor of the the first required prepare My disagreement Penrod 69 to resume second area of with the drilling panel regarding its offshore function. This work took the Lauritzerir-Rhoditis fac- “allegiance tors concerns the factor of accomplish some four months to and included shipowner.” quarrel defendant I do not per- the installation of a new derrick. majority’s determination that the alle- work, forming refurbishing Penrod used Penrod, giance as owner of the Penrod personnel (assumptively its own the crew of But, view, my the United States. 69) categories the Penrod and other of “con- “allegiance factor ship- of the defendant labor, catering, personnel.” tract and service materiality only owner” has in the circum- Penrod hired MIS to assist the refurbish- flag stance where the of the vessel and the work, ing designated oper- MIS Coats allegiance of shipowner the defendant brought pump ate the MIS that was on board (i.e. different flag flag the vessel’s is a pressure provide pressur- to test certain convenience), and the law of the nation of systems rig. daily reports ized allegiance shipowner of the defendant can personnel working rig, on board the appropriately applied to the determination record, which are reflect that the total rights shipowner between that and his labor, catering, number of contract and ser- employee seaman when that vessel is en- personnel always vice exceeded the number gaged in international commerce. In this personnel. of Penrod The record does not case, however, allegiance of the defen- clearly indicate whether on the date of the shipowner dant inconsequential is an factor 12,1988, injury, April the Penrod 69 was still First, for two reasons: the Penrod 69 is “jacked-up” position, in a or whether hull its documented flag; under the United States had Obviously, been lowered into the water. allegiance Penrod’s is to the United States if it jacked-up position, was still in a its flag and there is no of convenience involved. categorization navigation as a “vessel” in inis Secondly, importantly, and more both the serious doubt. Even if it had been lowered majority district court opinion recog- and the water, however, into the the nature and ex- nize that employment there was no relation- on, tent going of the work and the number of ship seaman or otherwise —between —as work, personnel deployed outside in such majority’s Penrod and Coats. The use of the clearly repair demonstrate that the and re- allegiance shipowner of the defendant aas furbishing beyond capaci- activities were the tipping factor in appli- the scales in favor of ty of the “crew” of the Penrod to accom- would, cation of my United States law in plish, and that such work could be accom- judgment, improvident only if even the plished only ready availability with the and Penrod, defendant in this case were because personnel access of shore-based and facilities. that factor applied only should be where view, facts, my In “place under these the employment there an relationship is between wrongful act” element of the Lauritzerir- injured plaintiff and ship- the defendant given Rhoditis factors should be more than owner. But Penrod is not the defendant just weight” the “considerable that ma- case, defendant, MIS, in this and the other jority gave controlling it. It should be the shipowner; not a entity it is an which was factor in the choice of law I decision. have allegiance created and whose is owed to looked for and any have been unable to find Emirates, the laws of the United Arab it Supreme Court decision or Fifth Circuit deci- in employer fact the majori- Coats. The applying sion United States law to resolve ty gives no serious key consideration to the the claim of a injured shore-side worker (1) distinctions in this case that Coats was assisting while in the refurbishing of a employee not an shipowner, defendant jacked-up drilling rig while was located Penrod, MIS; employee but was an within the inland (2) waters of another nation. that trial court found that Coats was view, my In majority opinion constitutes not a Act sug- Jones seaman of I Penrod. unjustifiable an extension of United States gest that the Lauritzerir-Rhoditis factors as- law into simple comity areas where among employment sume an relationship between requires nations that place injured the law of the seaman-plaintiff and the defen- casualty apply. shipowner, dant that when that relation- Emirates, exist, Arab Coats and allegiance of the the United MIS ship does not contract,” that signifi- “executed an Arabic less shipowner should be considered applied I then for and received the nec- employer. Coats of the defendant cant than that Supreme essary permit work from the UAE which any and have not found have looked applying permitted him to reside ashore there in the decision any Fifth Circuit Court rights during employment. his The record is UAE law to determine United States performed citi- his duties for clear Coats obligations between United States gas country during at locations of oil and wells on shore foreign the MIS injured in a zen in in the UAE as well as offshore the Persian scope employment with of his course Gulf, foreign and at and dockside facili- entity under that warehouses corporate organized panel in the This existence of a work my judgment, In ties UAE. country’s law. in permit special present factor this case opinion improvidently extends United States present not in involved which has been of circumstances law to the set majori- of law cases cited weight other choice by giving greater this case accep- ty opinion. Presence in the UAE and shipowner than to allegiance of the defendant permit unques- employer. tance of a work would UAE allegiance of the defendant tionably subject Coats to the criminal laws correctness of the Finally, question I injury civil of the UAE had his laws evaluating “place of panel decision view, my accep- on land. In Coats’ occurred factor in the Lauritzen-Rhoditis contract” permit of a necessitates a deter- tance work majority miscon- analysis. again, Here of the UAE should mination that the law I start significance of this factor. strues the injury occurring an on the waters of apply to Supreme language used out with port during employment under UAE concluding of this its discussion Court permit. UAE work factor in Lauritzen itself: brief, ar- original appellee’s Coats is a place not think the of contract “We do applies gued: Maritime Law whenever “U.S. between influence the choice substantial injured flag drilling on a U.S. a U.S. citizen is govern a maritime competing laws to 52). anywhere (p. in the world.” vessel tort.” proposition do cases cited Coats for Lauritzen, at 932 345 U.S. at majority But the support his assertion. added). Furthermore, the con- (emphasis conclu- opinion in effect arrives at the same and Rho- to in both Lauritzen tract referred by misinterpretation and misevaluation sion employment between ditis is the contract of factors. Because of the Lauritzen-Rhoditis injured plaintiff and the defen- seaman under I a conclusion is bad law think such contract ship There is such dant owner. case, produce it will facts of this and that case; in this and Penrod between Coats applied prece- as a effects when undesirable there was employment contract of whatever dent, court’s I would reverse the district MIS, Coats and in this case existed between and remand choice of law determination any essen- did not own vessel and was who for retrial in accor- to the district court case supplier of services to tially a shore-based Arab the laws of the United dance with engaged exploration and devel- companies Emirates. recognize that gas. I opment of oil and result, rely I arriving at representatives of In by recruited Coats was cases: following line of Fifth Circuit Chiazor Mississippi and that the at his home MIS Go., Ltd., F.2d Drilling 648 agreement Transworld employment v. terms of his basic (5th denied, Cir.1981), 455 U.S. orally agreed 1015 cert. verbally negotiated and were (1982); 1714, 1019, L.Ed.2d 136 102 72 visit. Howev- upon during this recruitment Co., Reading Drilling 680 er, v. & Bates beyond that he was Zekic clear doubt (5th Cir.1982); Bailey Dolphin MIS, v. 1107 “employed” to work for F.2d recruited and (5th Cir.1983); Intern., Inc., 1268 Penrod, 697 F.2d in the United not for and to work Co., F.2d 211 Petroleum Emirates, any particular Phillips Kobe v. not aboard Arab (5th Cir.1984); McDermott In Furthermore, v. that in order Schexnider it is clear vessel. (5th Cir.1987), tern., Inc., cert. 817 F.2d 1159 get necessary visa to enter Coats denied, 484 U.S. 108 S.Ct. 98 of United States law from its creation (1987); Fogleman Congress L.Ed.2d 486 v. AR passed until the 1972 amendments (5th Cir.1991). AMCO, LHWCA, 920 F.2d 278 All expressly removed right these cases involve “nontraditional” warranty vessels under the similar in nature and function to seaworthiness for the Penrod individuals covered 69, and all of these determined that Act. The district recognized the law court some dis nation, agreement of another other than in the the United law as to whether the 1972 States, applied. amendments to the LHWCA also abolished

Sieracki relief for individuals not covered relying LHWCA. But on two Fifth II. Cir cases, Lake, Aparicio cuit v. Swan 643 F.2d What United States Law (5th Cir.1981), and Cormier v. Oceanic Having decided that United States law Contractors, Inc., (5th Cir.) 696 F.2d 1112 apply, shall expressly the district court denied, cert. 464 U.S. 104 S.Ct. (which following reached the conclusions (1983), L.Ed.2d 94 the district court conclud affirms): majority opinion inferentially that, ed squarely “Coats comes within one of 1. That Longshoremen ‘pockets the United so-called States of Sieracki seamen re maining after Compensation Harborworkers Act the 1972 Apari amendments.’ (“LHWCA”) cio, 643 apply could not F.2d at Accordingly, because it 1118 n. 17.”

applies only injuries the district or death occur- court proceed allowed Coats to ring navigable general “on under the waters of the Unit- maritime law Pen- ed States.” rod on both and unseaworthiness theories. (i) 2. That the Jones Act inapplicable employment because there was no re- disagree I majority’s affirmance lationship between the Coats (1) court, of the district I because believe the Penrod, operator the owner and precedents Fifth Circuit upon by relied (ii) 69; the Penrod because Coats was district court longer can no supported aboard the Penrod day, for one light policies stated a unanimous day injured, he was and therefore Supreme Court in Apex Miles v. Marine permanent had no connection to that Corp., 111 S.Ct. (iii) vessel; and because there was no (2) (1990); L.Ed.2d 275 because the ma- common ownership or control his jority opinion wholly ignores impact employer, MIS, of the six off- Apex Miles Marine on the substantive drilling rigs shore on which Coats content of general United States maritime during employment. worked law, though even sitting we were en bane 3. That the maritime law of the position were in a impact. consider such United applied, States would be includ- reasons, For these two I respectfully register ing specifically concept of Sieracki my my view, dissent. Miles v. Apex seaman status originating in the case major Marine constitutes a by restatement a Sieracki, of Shipping Seas Co. v. Supreme unanimous Court as to the role to [66 U.S. 85 S.Ct. 90 L.Ed. 1099] played by judiciary federal in defining (1946),with its concomitant availability the general substantive content of maritime of warranty of unseaworthiness for recognize law. I that holdings in Miles the benefit of Coats.1 Apex v. Marine relate specific to the judicially concept manufactured of Sier- issues of whether the cause of action for

acki seaman’s status part remained a wrongful vibrant death of a seaman exists under appeal Penrod's from these choice of law deci- submission of and unseaworthi- sions clearly pro- district court jury raises the ness in the percentages issues as to of fault. priety of Coats' status as a party "Sieracki seaman” for objects When a contests and to a trial determination, our though, Judge determination, even court's choice of law I can see no dissent, Garwood notes in spe- there repetitious was no need objections and futile to the objection cific implementation raised Penrod to the submis- the trial court of its choice of sion of an issue on unseaworthiness and to the during law determinations the trial. recovery dependent of seamen and those benefit law and whether general maritime society general upon maritime in a them.... loss of permitted. action would be wrongful death Congress right has limited the survival However, philosophy and of the statements injuries resulting negli- from seamen’s in role of courts eliminat- approach as to the gence. society wrongful in As with loss of “uniformity in achieving ing “anomalies” and actions, expan- this more death forecloses jurisdiction” admiralty consti- exercise of in a maritime action sive remedies interplay major redefinition tute liability. founded on strict We will not Congress and the role of the role of between create, admiralty powers, our under rem- defining general in maritime law.2 courts edy majority disfavored clear to the their extreme relevance Because of goes beyond the limits States and well case, pas- in I cite four us this issue before system Congress’ ordered of Apex Marine that clear- sages from Miles death_ injury for seamen’s philoso- ly approach the new set forth 27-36, Apex, 498 at 323-28. phy: longer in era when seamen five an We jurisprudential in The differences outlook primarily to their loved ones must look Aparicio Apex between are the differ- legal of substantive courts as a source night day. Aparicio ences between con- death; injury and Con- protection from judge-made para- siders maritime law be legislated have exten- gress and the States requires statutory changes to mount and ex- era, sively in these areas. In this an admi- pressly possible all circumstances to be cover ralty primarily to these court should look effective; recognizes lim- Apex constitutional policy guidance. legislative enactments for scope judge-made law and itations to the statutory may supplement these reme- We requires judge-made law accommodation doing would achieve the where so dies similar, though statutory policy from policies vindication of such consis- uniform identical, Aparicio areas of the law. looks mandate, but with our constitutional tent “pock- encourages recognition for and strictly limits keep also within the we must judge-made can sur- ets” where maritime law Congress imposed by Congress. retains statutory changes; Apex abhors anoma- vive matters, authority in and an superior these adjust- encourages tailoring lies and admiralty vigilant not to court must be uniformity ing promote law to of maritime overstep the well-considered boundaries puts the bur- rights Aparicio and remedies. imposed by legislation. federal These stat- Congress speak to the intended dens on direct and delimit our ac- utes both scope 1972 amendments to the its .... tions Act; Apex puts the burden on the LHWCA alleged general maritime claim here vital- federal courts to construe the continued Torregano had been killed as a result in a manner ity of doctrine the Sieracki It the unseaworthiness of the vessel. 1972 amendments. consistent with the place in inconsistent with our would be my colleagues in disappointed I am scheme were we sanction constitutional expansive judicially- majority consideration more remedies en bane Apex and to cause of action which failed to follow the counsel of created Congress opportunity fault than has allowed United States without seize the make negli- resulting casualty applicable cases of death maritime law gence. ... as the law that would have this case the same casualty occurred in applicable been had this occupied waters. Maritime tort We sail logic in statute, What reason United States waters. federal law is now dominated good public policy is there for federal expand remedies at and we are not free warranty benefits of the might judges to the to extend the simply because it work will case, nonpayment upon willful of maintenance this court relied claims of 2. In another en banc Apex Corporation, policy implications of Miles v. broad v. Maritime Overseas cure. Guevara regarding banc). prior precedents (5th Cir.1995) (en overturn Marine to recovery 59 F.3d 1496 involving punitive damages in cases of to a right of United States citizen man status to Coats with unseaworthiness of recov- longshoreman ery warranty working or harborworker on the as unseaworthiness warranty foreign port in a when same Penrod. statutorily removed as unseaworthiness GARWOOD, Judge, dissenting, Circuit protection for United States citizens work- joined by JOLLY, E. EDITH GRADY H. in ing longshoremen as and harborworkers JONES, SMITH, JERRY E. EMILIO M. precedential United waters? The ef- States GARZA, DeMOSS, Judges Circuit majority’s truly fect of the decision will be JONES, (except that EDITH H. JERRY E. dramatic, remedy this once established SMITH, DeMOSS, Judges, Circuit do for the benefit of United States citizens join not in paragraph the second of footnote

working longshoremen and harborworkers two): foreign ports, any logical there will be deny warranty reason to the extension This case involves an accident on an Amer of seaworthiness to citizens other nations jack-up rig ican-owned undergoing repairs in working foreign ports in those same on Unit- (UAE) port United Arab Emirates in which result, ed States vessels. And as a the Unit- plaintiff employee the American is an of the preferred ed States courts will become the company rig’s UAE hired owner to injured every forum for worker who on perform Coats, repairs. plaintiff, The foreign ports board a vessel in United States owner, Penrod, rig and the were each found and desires to seek the benefit of the strict twenty percent plaintiffs at and the warranty of unseaworthiness MIS, employer, sixty percent. rig own suggest Apex requires doctrine. I er, eighty percent cast Congress passed conclusion that when plaintiffs damages, contends that its LHWCA, expressly 1972 amendments to fifty should not per exceed warranty withdrew of seaworthiness as a damages, cent of his total as their fault was theory recovery longshoremen equal. agree, largely I for the reasons stat country in this harborworkers effect my ined dissent in Simeon v. T. Smith & concepts underly- overruled reversed Cir.1988), Son, Inc., 1421, (5th 852 F.2d 1436-38 ing Sieracki seaman status.3 The federal denied, 1106, rt. 490 U.S. 109 S.Ct. ce should, therefore, primarily courts “look (1989). subject L.Ed.2d 1019 legislative policy guid- [this] enactment for plainly matter of this suit is not within the create, ance” and should “not under our ad- scope Longshoremen’s and Harbor miralty goes powers remedy ... well Compensation (LHWCA), Workers’ Act beyond sys- Congress’s the limits of ordered § Act, U.S.C. 901 et seq., the Jones injury tem of for seaman’s U.S.C.App. § High or the Death on the 27, 36, Apex death.” 111 S.Ct. at (DOHSA), § Seas Act U.S.C.App. 761 et dissent, therefore, I respectfully seq.1 Accordingly, assuming United States — majority opinion, applies which affirms the decision law governing all2—the law is the of the district court to extend Sieracki sea- maritime law of the United States. Compagnie Act, 3. See Edmonds v. Longshoremen’s Generale Transat ments to the 28 Mercer 256, 262, 2753, 2757, lantique, (1977). 443 U.S. 99 S.Ct. L.Rev. (1979), 61 L.Ed.2d 521 where the Court stated: Simeon, 1. Unlike this case does not involve a Against background, Congress acted in Jones Act seaman. 1972, among things, [n. 11] other to eliminate shipowner’s liability longshoreman DeMoss, by Judge my 2. For the reasons stated for unseaworthiness and the stevedore's liabili- view the choice of law issue should resolved ty shipowner to the for unworkmanlike service in favor of UAE law. resulting longshoreman injury —in words, Ryan. other agree to overrule Sieracki and Judge While I find much to with in [n. 11] regarding The Amendments also increased com- Shipping DeMoss's comments Seas Co. benefits, pensation Sieracki, expanded geo- the Act’s 66 S.Ct. 90 L.Ed. graphic (1946), coverage, and instituted a new means I do not believe that issue is before adjudicating compensation guilty negligence, cases. Robert- us. Penrod was found son, Jurisdiction, unseaworthiness, Shipowner Negligence and well as of and while those Stevedore Immunities under the 1972 Amend- faults were combined in an form in the “and/or"

H45 decreased, ages having its share of the of the Issue Overview decreased, having total fault and the shrim- law tort archetypal maritime remaining equally per at fault with it —the collision case. litigation is the shrimper only is nevertheless hable for a shrimper, under the com- Assume that a third —not a half —of the crew boat’s dam- master-owner, and an Exxon mand of its ages. majority’s At the other extreme is the trying each is to avoid crew boat collide while joint liability approach pure reflexive- here — suddenly appearing pleasure small craft. ly, oxymoronieally, applied and rather in a significant Only the crew suffers dam- boat recovery depends comparative case where on separate owner- age.3 Each vessel is under charges pleasure fault —which all of the others, ship acting independently of the shrimper, craft’s fault to the so that and none is so related to either of the others shrimper’s exposure total to the crew boat vicariously liable for the other’s as to be goes up from one-half to two-thirds of the only shrimper If and crew boat fault. damages, though crew boat’s even the dam- eausatively fault is and their identical, ages remain the relative fault as equal, shrimper is liable for half the crew shrimper between the crew boat and is un- damages. the amount for boat’s Should changed, shrimper’s percentage and the ultimately shrimper is liable to the which the negligence gone the total has down. pleasure if craft change boat the small crew eausatively at fault is also found to have been majority’s approach leads to the ab- (e.g., lacking adequate lights) equally with surdity slightly that in certain situations a Simple logic tells us the other two vessels? negligent defendant could nevertheless be damages it should not. The crew boat’s re- ninety percent damages hable for of a same, very shrimper fault main the plaintiff negligence proximately whose caus- proxi- still a and of the crew boat are each ing great ah those was ten times as damage, and the mate cause of all such caus- negligence particular as the of that defen- shrimper ative fault of the crew boat and very dant.4 That is the same kind of absurd- equal pleasure to each other. As the remain jurisdic- ity that caused most common law independently craft has acted of the crew plain- tions to abandon doctrine shrimper, boat and neither of which is vicari- contributory negligence ah tiffs barred re- wrongs, ously pleasure for the craft’s liable covery, though negligence even such was charge there is no basis on which to minimal than that of and far less the defen- shrimper pleasure craft’s fault to either the dant. boat, hence, purposes the crew shrimper’s responsibility ultimate course, relatively Of until the recent arriv- boat, comparative damaged crew the relevant liability many jurisdic- pure al of several fault is that as between those two. tions, traditionally negligent defendant was non-neghgent plaintiff for all the However, hable to a straightforward approach this damages proximately by that latter’s caused opposite At opposed at two extremes. one notwithstanding neghgence, defendant’s approach generally known as extreme is that independent party’s third also liability, in an pure several which all of the ah dam- charged proximately have caused those same pleasure craft’s fault is to the crew boat, ages. and Keeton on Torts despite so the crew boat’s dam- See Prosser that — determination, only complaint opinion indi- percentage 3. This addresses instances of of fault appears damages, of the form of that submission to have where the fault of each of the visible Moreover, appeal. both the been made proximate damages. parties cause of all the is a negligence related to and the unseaworthiness undisputed Finally, the same condition. it is Similarly, under in certain other circumstances a defendant liable for unseaworthiness is as pure liability, causative whose plaintiff's a reduction of recov much entitled to particu- only a tenth of that of ery plaintiff’s negligence as is a defendant might nevertheless be able to hold lar defendant See, negligence. e.g., Fontenot v. liable Teledyne more than a tenth of that defendant liable for no Inc., Offshore, Movible 714 F.2d 19- plaintiff's damages. Services, (5th Cir.1983); Ocean Scott Fluor

Inc., (5th 1974). 501 F.2d Cir. 1984) (West rule, § accepted 47.5 This 5th ed. howev- answer is that the fault of each is er, principled justification afford a does not compared question to that of the other. A rejecting approach espoused in this if, if, only plaintiff arises but both the and a just-mentioned in the dissent. The result guilty are defendant causative fault and so only comes about because none of instance independent also is at least one other actor damages proximately plaintiffs (whether or not that actor is likewise a de- by plaintiffs fault and all are caused fendant). In relatively setting, ap- rare by proximately caused the defendant’s. The (or third) portioning indepen- all of the other however, logic regime, dictates that such may dent actor’s fault to the defendant contributory negligence plaintiff whose logically justified by principle be may proximately causes all his re- every party responsible proxi- for all the nothing, though a defendant’s cover even fault, though mate results of his own even greater much fault also have been a such results are also contributed to proximate plaintiffs damages. of all cause another, fault principle equal- because that And that indeed was the almost universal ly justifies apportioning well all the other Relatively recently, common law rule. dis- contributory negligent actor’s fault satisfaction with this result led most common because, event, plaintiff, and also jurisdictions contributory law to abandon the comparative applied where fault is the above- negligence in favor of some bar form comparative negligence. ap- such principle Under an referenced has been abandoned proach, question there arises the of what the by allowing contributorily negligent both plaintiffs negligence compared to and how plaintiff by limiting to recover at all and comparison is to be made. The question, recovery to less than full amount of the course, plaintiff does not arise if the is not loss he suffered.6 (nor, obviously, negligent does it arise if no University Chicago As professor law fault). If defendant is at Gregory explained nearly sixty years Charles only guilty one are the ones defendant universally ago: the obvious and causative apart any question “Quite original joint of vicari- This was the basis for common law defendants, joinder (West ous or the com- liability. See Prosser and Keaton on Torts developed separate principle, mon law that a 1984) ("The § original 5th ed. 46 at 322-323 might be liable defendant for the entire loss meaning joint aof tort' was that of vicarious plaintiff, though sustained even de- persons for concerted action. All who fendant's act concurred or combined with that trespass, pursu- acted in concert to commit a wrongdoer produce it, of another or, the result— design, ance of a common were held liable for put as the courts have that the defendant the entire result.... Each was therefore liable consequences proximately is liable for all damage might for the entire done.... All wrongful caused the defendant’s act. The law, joined as defendants in the same action at applied rule was first gle action, in actions a sin- all, jury and since each was liable for would defendant, where there was no concert of permitted apportion damages.... not be joinder and therefore no would have principle, beyond This somewhat extended its possible, suggestion been and there was no of a (footnote original scope, is still law....” omit- joint tort.’ ... ted)). England, indepen- such concurrent but wrongdoers dent were not confused with appropriate setting, In an even under com- joinder tortfeasors because there could be no parative regime, principle justify fault would They in the absence of concerted action. had charging the other actor's all to the defen- separately.... to be sued Under the more dant, being charged with none to the contribu- joinder, rules liberal American as to defen- However, torily negligent plaintiff. in the situa- pro- dants whose has concurred to (or considering, tions we are here the defendants single joined duce a result have been in one actor) party the defendant and the third act inde- action, usage loose have been called pendently relationship of each and the other be- (footnotes joint tortfeasors.” Id. at 328-329 give tween them is not such as to otherwise rise omitted). (i.e., to vicarious if one were not at fault charging there would be no principled justification basis for the other's

6. The other for as- him). Accordingly, fault to signing the concerted action to the defendant all the fault of the other concert, not, responsibility principle actor would be that the vicarious two had acted in does considering, justify or that for some other the class of we are reason the defendant was case vicariously majority's approach. liable for the fault of the other actor.

H47 insolvent, if joint are virtu- available third actor were law tortfeasors “At common solvency enjoyed legal immunity, other’s so ally guarantors each some or could not be injured joint plaintiffs Thus, sense, far as concerns the found. in one in as observed the introduc- damages; quotation Gregory, from the above the issue joint between tortfea- tion of contribution insolvency, third is how risk actor’s in that situation does not affect sors immunity, amenability process or lack of degree. plaintiff receives his slightest entirely it should be borne: should be borne costs, leaving the defen- damages at all defendant, by majority as the would have up them- to even the loss between dants it; entirely by or it should be borne they may and can. But if and as selves negligent plaintiff, pure as under several lia- statute, negligence comparative under a bility; negligent or should it be borne although negligent, plaintiff, where the plaintiff and defendant in the ratio that their recover, the situation is funda- still respective degrees of fault bear to each oth- absolutely no mentally Here different. er, espoused Grego- here and Professor defendants, if why even reason exists sense, ry. question But another is joint they tortfeasors and are treated why should the defendant ever be liable to joint judgment subjected to thus plaintiff greater proportion plain- for a purposes, be made to for certain should negli- tiffs than the defendant’s in- of each other’s assume the entire risk gence (including any for he is vicari- solvency respect plaintiffs recover- liable) ously negligence of the total is plaintiff damages. able For when plaintiff (again, including and that defendant negligent, are both the solvent tortfeasor liable). any vicariously for which he is common they stigma share the which at justifica- furnished the law seems have Development in Common arbitrary tion for the somewhat allocation Law Jurisdictions joint judgment debtors. of this risk on observed, previously common As law Furthermore, quite possible it to have a “joint liability” predi- call what we now was as, negligent more plaintiff who is as (or cated either on concerted action vicarious than, defendants, negligent either of his liability) principle that or on the the defen- to recover. Under such but is still entitled consequences proximate- for all dant liable circumstances, suppose idle to seems acts, ly wrongful caused his own even joint liability plaintiff should that a though wrongful conduct of one other carry absolutely incidents as the the same plaintiff proximate than the was also a cause joint judgment; and distribu- common-law (see 6, supra). of the harm notes 5 & There insolvency tion of the risk of of one of the application no occasion to consider the in accordance with the defendants plaintiffs these rules to instances where the to be apportionment of fault would seem proximate of his negligence was a cause dam- only method of administration consis- ages, a was barred because such comparative tent with the terms of any recovery. Legisla- negligence Gregory, statute.” C. Negligence Ac- Distribution in tive Loss virtually uniform rule in the This was the (1936) (footnote omitted). tions the Federal United States until when (FELA), Liability Employees Act 45 U.S.C. that, by It is true virtue of the modern seq., April § Act of 51 et was enacted. contribution, availability gener- which was The FELA c. 35 Stat. 65-66. law, ally see Prosser not available at common employees a 1984) provided interstate railroad (West and Keeton on Torts 5th ed. employer of action their cause 50, particular § to whom all an defendant injuries employment caused the course charged, fault independent third actor’s negligence provided by the railroad’s with the proportionately rather than shared employee may have that “the fact that the negligent plaintiff, an ultimate eco- suffers contributory negligence should guilty of been injustice only if he is unable to realize nomic damages shall recovery, but the not bar adequate recovery of contribution from the jury proportion recovery would be un- diminished third actor. Such a comparative began, to such some form of amount of attributable so Thereafter, Alabama, § employee.” Maryland, 45 U.S.C. that now North “pure” compara Carolina, Mississippi Virginia, enacted and the District of Colum- Schwartz, negligence statute. V. Com plaintiffs negligence, tive bia does no matter how (Michie 1994), Negligence parative slight, 3rd ed. bar whatever. l-4(b)(2). Georgia, through Schwartz, § supra, 2.4, l-5(e)(3); § § 1-1 at judicial Balentine, combination of decision and much McIntyre 52, 833 S.W.2d 55 legislation applicable injured (Tenn.1992). earlier to those by judi- accomplished This was operations, adopted in railroad “a states, rule that by legisla- cial decision in twelve in all cases an thirty-four 55, recover in McIntyre tion states. 56 apportioned part of his if the defen & ns. 3 & 4. negligence greater plain than dant’s Kionka, The results in are summarized l-5(a)(2) Id,., § (citing tiffs.” at 19 Elk Cot Developments Recent in the Law Joint Grant, 727, ton Mills v. 140 Ga. 79 S.E. 836 Liability Impact Several and the (1913)). 1913, by legisla Also Nebraska Fault, Employers’ 54 La.L.Rev. Plaintiffs recovery tion allowed diminished where the (1994): 1619

plaintiffs negligence slight compari was “Four states compara- still do not have 1^4(b)(4) Id., § son to the defendant’s. at 15. ..., they joint tive fault retain 1920, Congress matters stood until So when liability. several forty-six Of the states Act, providing “any enacted the Jones sea comparative that have some form of injured employ man” “in the course of his pure joint ten states still have the form of an employer ment” action liability, and several and twelve states now apply.7 which the FELA would The same pure liability. have several remaining year, enacted, providing DOHSA was a cause states, twenty-four ... have some mixture wrongfully of action for death caused “on the liability. and several and several seas,” high § 46 U.S.C. which the statutory These quite schemes can be com- negligence decedent’s recovery” did “not bar plex. thread, however, The common but “the court shall take into consideration they represent all compromise a posi- degree negligence attributable tion pure joint between the two recovery according decedent and reduce the extremes — and several on the one hand and ly.” § jurisdiction 46 U.S.C. 766. No other pure several on the other.” Id. at adopted comparative negligence until in 1931 (footnotes omitted). 1621 passed legislation Wisconsin allowing plain recovery tiff if his was “not as words, eighty percent other of the states great Schwartz, at that of the defendant.” reject espoused by majority, the rule 4(b)(3). supra, § 1— “pure” joint system several in a Thus, in generally 1909 all states applied comparative fault. The ten states that complete contributory negligence; bar of approach follow that by are outnumbered by only three states had lifted the extreme, bar states at twelve the other which extent; had; any only four “pure” follow liability. The remain- five;8 and, only ing twenty-four have, indeed, late as adopted states but, seven states and Puerto Rico had variety form of approaches, as Kionka ob- comparative negligence.9 serves, Then the rush to a “common through thread” runs (“in § 7. 46 U.S.C. allowing recovery such action all plaintiff's negligence statutes of when a modifying extending the United States or “slight gross and defendant’s was in com- right remedy person common-law in cases of Schwartz, parison.” supra, §§ 1-1 at 1- injury employees apply”). al to railroad should 4(b)(4) at 14-15. McAllister, Cosmopolitan Shipping See also Co. v. 783, 789-93, 1317, 1321-22, 69 S.Ct. 9.Schwartz, supra, § Comparative 1-1 at 2. (1949); L.Ed. 1692 Rohde v. Southeastern Drill legislation was enacted in Arkansas in Co.,Inc., ing (5th Cir.1982). 667 F.2d in Puerto Rico in and in Maine in 1965. Id. Nebraska, Wisconsin, Mississippi, Georgia, Dakota, South the latter in 1941 a statute

H49 eluding fault, according them, represent compromise posi- claimant at as “all (em- Id. respective percentages the two extremes.” their of fault” tion between added). phasis provision The reason for this position the two ex- such between One is set forth the official comments to section Comparative tremes is that Uniform 2 as follows: (UCFA) approved the National Fault Act on Uniform of Commissioners Conference equitable “Reallocation of the share of the in 1977. 12 U.L.A. at 42-60 Laws State obligation party place of a takes when his (West Supp.1994).10 1 of the UCFA Section share is uncollectible. chargeable to the claim- provides that “fault place among par- Reallocation takes all proportionately ant diminishes the amount ties at fault. This includes a claimant damages ... compensatory but awarded contributorily who is It avoids fault. recovery,” pro- does not bar section both the common law unfairness vides that the claimant’s is also joint-and-several liability, rule any by percentage of fault of reduced the uncollectibility would cast the total risk of party the claimant has settled. with whom wpon defendants, the solvent a rule of 3, 4, and 5 with set-off and Sections deal abolishing joint-and-several liability, operative contribution. Section is the sec- which would cast the total risk uncollec- of respective percentages it the tion.11 Under tibility wpon (Emphasis the claimant.” determined, fault of all concerned are the of added).12 corresponding “equi- judgment sets forth the precisely That is the rationale and effect of each, of and the is table share” position espoused. here The official com- damages, the amount of his total awarded application ments likewise illustrate the any settling party’s per- reduced his and example the reallocation an rule centages “against party each liable $10,- plaintiff, damages total whose are joint-and-several on the basis of rules of lia- 2(d) forty percent negligent However, is and two defen- any bility.” under section if thirty percent negligent. If dants are each “equitable judgment is party’s share” insolvent, (wholly plaintiffs one defendant is re- partly) “uncollectible from that $4,286, covery ultimately party,” any uncol- from the other is the court “shall reallocate $10,000, among parties, in- which is the exact lectible amount the other 3/7ths (c) preparing con- The court shall determine the award of 10. The committee the UCFA for composed damages sideration the Commissioners was to each claimant in accordance with legal judges, distinguished of cluding scholars and in- findings, subject any reduction under Floyd Judge R. Gibson Professor judgment against Section and enter each Schwartz, Victor E. and was chaired Dean joint-and- party liable on the basis rules of University W. Wade Vanderbilt School of John liability. purposes For of contribution Law. Id. at 42. under Sections 4 and the court also shall judgment par- each determine state in portions 2 are fol- 11. The relevant of section ty's equitable obligation share of the to each lows: respective claimant in accordance with the “(a) involving In all actions fault of more percentages of fault. action, party including to the third- than one party (d) Upon [one not later than motion made persons defendants and who have been entered, year] judgment the court shall after court, under Section unless released part parly's determine whether all or agreed by parties, all shall instruct otherwise obligation equitable share of the is uncollect- or, special interrogatories jury to answer if any party, ible from that and shall reallocate jury, findings, there is ing: shall indicat- make among parties, uncollectible amount the other (1) fault, according damages including the amount of each claimant a claimant at contributory par- if respective percentages would be entitled to recover their of fault. The disregarded; fault is ty liability is reallocated is nonetheless whose (2) percentage of the total fault all of continuing subject to contribution and to parties to each claim that is allocated to judgment.” on the claimant claimant, defendant, third-party each dant, defen- added). (Emphasis person who has been released from purpose liability under Section 6. For this Supp.1994 U.L.A. West at 50. 12.12 persons court determine that two or more single party. are to be treated as a Benda, dissent, advocated.13 This how- bar. 661 S.W.2d result here Gustafson would, (Mo.1983) (en banc).15 ever, example given, initially Later, in the 15-16 this was defendants’ ratified, limit each of the legislatively legislation and similar $4,286. below, this For the reasons stated Minnesota, Arizona, adopted has also been essentially procedural modification to the Montana, Connecticut, Hampshire. and New approach practically fair and analo- UCFA Schwartz, 5(c)(5), § supra, citing Mo.Rev. 3— admiralty gous practice.14 to traditional 537.067(2); 12-2508; § § Stat. Ariz.Rev.Stat. 604.02(2); § judicially adopted by Minn.Stat. Mont.Code Ann.

The UCFA was 27-1-703(3); § § Supreme when it eliminat- N.H.Rev.Stat.Ann. 507:7-e Court of Missouri (III).16 contributory negligence law ed common boat, craft, given pleasure in the com- the crew relevant illustrations if the

13. boat, pleasure party, ments are as follows: craft is the crew if situation). equally shrimper, may at fault (Multiple-party with the recover "Illustration No. 2. B, $10,- shrimper only damages, from the half its not- A sues C and D. A’s withstanding might pleasure the facts show that equally A is found at fault. craft was also at fault with the other two 40% essence, B is found at fault. vessels. whatever fault is 30% attribut- C is found at fault. pleasure 30% able to the craft is allocated between the D is found fault. 0% proportion other two vessels in the same as the judgment jointly severally A awarded each bears to the total fault of both. $6,000. against B & C for The court also equitable share of states in [Ijhis apply 15. "... and future cases shall party: obligation of each pure comparative doctrine of fault in accordance $4,000 (40% $10,- equitable A's share is of 1-6, Comparative §§ with the Uniform Fault Act (1983), which, U.L.A.Supp. copy 000). 12 35-45 of $3,000 (30% $10,- equitable B's share is of comments, appended with commissioners’ to (footnote 000). opinion Appendix this ted). as A.” Id. omit- $3,000 $10,- (30% equitable C's share is of 000). footnote, In a the court noted that it did not (Reallocation computation Illustration No. 3. adopt proportionate ap- settlement (d)). credit under Subsection proach only of section 6 of the UCFA because Same facts as in Illustration 2.No. court, express provisions that conflicted with the proper of On to the C motion shows that calling Missouri statute it; for dollar for dollar cred- B's share uncollectible. The court orders legislature equitable the court that B's share be reallocated between invited the to reconsider provision adopt A and C.... the settlement credit section $1,714 equitable by A's 6 of the share increased UCFA. Id. at n. 10. (4/7 $3,000). of $1,286 equitable by C's (3/7 share is increased 16. The Maritime Law Association has recom- $3,000).” West.Supp. Comparative 12 U.L.A. Respon- of mended a model Maritime Act, sibility at 51. which is almost the same as the UCFA, which, modification, slight with but It is also to be noted that section 2 of the 12, 1991, Congress September was introduced in UCFA of fault to limits allocation those who are Congress, as H.R. 102d See 7 1st sess. action, parties being to the "assumed that state (7th ed.) Admiralty §§ Benedict on 7 & 8. Both procedure provides bringing third-party proposal the Maritime Law Association and H.R. parties.” § Comment to defendants provisions 3318 contain reallocation identical to West.Supp. U.L.A. 1994 at 50. The comment 2(d) (section 2(3) section of the UCFA of the explains: proposal Maritime Law Association and section parties "The limitation to to the action 3(d) Id., 3318). 1-29; 1-46, § § of H.R. 7 at 8 at ignoring persons means other who have 1-47. The comments to this section of the Mari- regard particular been at fault with proposal time Law Association include the fol- injury joined parties. but who have not been lowing: This ais deliberate decision.... The more parties joined equitable whose fault contributed "Reallocation. Reallocation of the injury, percentage obligation party place smaller the of fault allo- share of the aof takes parties, cated to each of the other whether when his share is uncollectible. Reallocation plaintiff place among parties or defendant.” Id. takes all at fault. This parties contributorily Because the fault of those not is not includes claimant who is at ascertained, any party, it cannot be allocated to fault. It avoids the both the com- unfairness defendant, plaintiff joint-and-several liability, and this means mon law rule of comparison ultimate result is controlled which would cast total risk uncollectibili- only parties. ty defendants, upon as between the In our earlier the solvent a rule example involving shrimper, abolishing joint-and-several liability, of the collision (Second) only by not result mandated the Texas com- Similarly, the Restatement (1977), scheme, 886A, parative negligence i § comment states Tex.Rev.Civ. Torts (codified art. 2212a as amended at part: Stat. Tex. pertinent 33.001), § Civ.Proc. & Rem.Code but also determining equitable “In shares “[ejlementary fairness.” 624 S.W.2d at 612. wise, particularly in obligation, it seems states, comparative-negligence confine analogous approach An has been taken parties to the action the determination statute, under the Louisiana art. LSA-C.C. attempt rather than to to calculate respect employer fault in an em alleged tortfeasors equitable shares for Thus, ployee’s party. suit a third parties are not bound who Rains, (5th Prestenbach v. F.3d 358 Cir. equitable decisions. one 1993), employer, If tortfeasor’s the Louisiana immune turns out to be uncollectible it share law, compensation virtue of the worker’s was proportionately among spread be should seventy-five percent plain found at (Emphasis parties the other tiff-employee percent, fault.” fifteen and the defen added). party percent. plaintiff dant-third ten appealed him which awarded Essentially present approach was percent damages against ten of his Hurst, adopted Haney Electric Co. v. “ party. applied ap third We ‘ratio (Tex.CivA.pp. writ S.W.2d - Dallas ” Co., proach’ Guidry Guidry v. Frank moot). Oil That involved a dismissed as case (La.1991), 579 So.2d 947 as carried forward actions, separate two three-car collision. O’Brien, by Gauthier v. 618 So.2d 832- thirty the drivers —each later found to be (La.1993), plaintiff and held that was enti negligent third driver— percent —sued forty percent tled to recover of his forty negligent. percent later found from the defendant because defendant’s consolidated, ques The eases were and one (ten negligence percentage percent) (the third tion was whether the defendant forty percent of the combined fault) driver, forty percent found should be (fifteen (twenty-five percent) plaintiff forty per particular to a liable (ten percent) percent). and the defendant (that is, only of the harm the defen cent Similarly, in Prestenbach at 360-61. Davis (that share) is, seventy percent the dant’s or Co., Ins. 892 F.2d 378 Commercial Union thirty defendant’s share added to the entire (5th Cir.1990), plaintiff-employee the plaintiff/tortfea- percent share of the other fault, sixty percent found at his immune Lou sor, plaintiffs being of the also a neither employer thirty percent, and de isiana the defendant). ap adopted court neither The plain party percent. fendant third ten The to hold the defen proach and chose instead judgment, appealed tiff which awarded plaintiff for dant third driver liable each only percent damages against him of his ten damages. rep That fraction of total 40/70ths employer’s party. third We held that the negli resented the ratio of the defendant’s plaintiff fault should be allocated between (forty percent) negli total of his gence proportion and the “in to their defendant party gence and the of the seek fault,” previously degrees of determined recovery (thirty ing percent). The court plaintiff granted was to be the result portion placed thus on the defendant a judgment against the defendant for l/7th fault, only unsued tortfeasor’s share of but (14.29%) damages. at of his total Id. 384- portion represented the ratio of the 385.17 (forty percent) fault to the com defendant’s analysis plaintiff thorough A review and fault of the defendant and bined decisions, scholarly legislation, and (seventy percent). The court considered this relevant $10,000 damages, negligent uncollectibility upon fering two would cast the total risk 30% of defendants, nothing can be from one of whom (emphasis § the claimant." Id. ed) 7 at 1-35 add- plain- that the collected. The ultimate result is defendant is tiff's the other plaintiff's comments also include an illustration These $4,286, damages. is of total which Itths the same as illustration 3 in the com- is UCFA, as set out note ments to section of may that Texas has held that 17. It also be noted 1-36, Again, § 13 above. Id. 7 at 1-37. "negligence employer’s co-employee's or negligent plaintiff suf- illustration involves 40% party prod- third not be considered in a should fault, comparative writing contained the American Law of least when some is (Third) plaintiff, fault is attributed to the removes Restatement the Law Institute’s of justification imposing the traditional for Liability, Apportionment Torts: Prelimi- of Pearson, Ap- that risk on defendants. See 1995) (May (Reporter, nary Draft No. portionment Comparative Losses Under Powers, Jr., University of C. Professor William Analysis Fault Laws —An the Alterna- of Law; Reporter, of Associate of Texas School tives, (1980) (“When 40 La. L.Rev. Green, University of Michael D. Professor plaintiff negligent, himself has been Law) (hereafter “Apportion- College of Iowa logical support for and several Liability”). The recommendations ment of Nevertheless, evaporates.’). even provisions in include substance made there fault, plaintiff sharing with the some each those of the UCFA.18 The the same as legal defendant is still the cause of all of (see to section 25A note reporters’ notes plaintiffs damages. Shifting the entire supra) explain the rationale for these recom- insolvency plaintiff ‘merely risk of trans- mendations as follows: inequity imposing of form[s] that risk question is who should “The critical bear entirely on solvent defendants into the parties. equal opposite inequity imposing the risk of insolvent advent of injuries plaintiff's plaintiff, culpa- action when the defendant and an innocent ucts compensation.” Mag were covered workers' ble defendant should bear the full burden of Bros., Inc., Ragsdale ro v. 721 S.W.2d plaintiff's injuries. With the advent com- of (Tex.1986). necessarily This means that if the parative responsibility, plaintiffs in which who guilty contributory his recov of portion still recover a their of comparison ery of his fault will be based on damages, justification requiring defen- party, pre of the defendant third with that dants to bear the entire share insolvent defen- general approach suggested cisely here. longer (emphasis dants no exists." Id. at 238 added). (which principally proposals relevant provides part: Comment b to section 25A officially presented have not been to the Council “Ordinarily, party's a motion to reallocate a Institute) membership of the American Law unenforceability share of due to the follows; are as judgment year should he made within Liability Multiple "§ 24A Tortfeasors for In- entry judgment. In those instances in divisible Harm unenforceability any judgment which the persons' independent If two or more tortious entry judgment, judg- established before legal inju- is a cause of an conduct ry, indivisible ment should the reallocation reflect defen- person jointly severally each liable dant's share which a would be the recoverable caused (emphasis Id. at 238-239 add- unenforceable." ed). conduct, subject tortious to the reallocation provision §of 25k." Id. at 231. Proposed section treats 27A the effect of settle- Damages "25A Reallocation of Based on Unen- ment in the same manner as section 6 of the forceability Judgment of Apportionment Liability UCFA. at 265. Pro- of may jointly be A defendant who is or held 28A(2) posed provides employ- section that in an severally pursuant §to liable 24A ee-plaintiff's against party, suit a third the em- liability of de- move to reallocate the another ployer’s inquired fault is not into if local law judgment because a for fendant contribution permit any plaintiff's does not either reduction in against defendant will be the latter or is unen- recovery on that or a account contribution claim forceable, part. moving in in whole or If the (section against employer the defendant judgment defendant establishes that a for con- 28A(1) employer addresses fault where those tribution another defendant will be or obtain). Proposed conditions do not Id. unenforceable, at 281. the court shall reallocate lia- provides: section 29A bility damage portion award. The for the of Responsibility "§ Assigned 29A Effect of share of for which a defendant's Other Immune Persons will not is not or be enforceable shall person plaintiff's employ- If a other than the remaining parties, be reallocated to the includ- plaintiff er is immune from suit ing proportion plaintiff, percent- in to the by any ages immune from a contribution claim de- responsibility assigned of to the other (em- pursuant applicable fendant to the law of the plaintiff." defendants and the Id. at 237 added). jurisdiction, phasis assign the fact finder should percentage responsibility Comment a of to the immune to section 25A states in relevant part: party party’s respon- and the immune of share justification requiring sibility provided "The for one defendant should be treated the same as § to bear the burden of an insolvent defendant's in 25A for a defendant whose share of re- negligence culpable sponsibility was that as between a is uncollectible." Id. at 290.

H53 entirely plaintiff.’ on the II (1977); the risk Steenson, 1174-76 see also Legislative Responses Recent to the Rule AMERICAN Law Institute REPORTERS’ Enterprise Liability Study, for Person- Liability, Joint and Several 23 Tort & (1991); Wade, INJURY see also al (1988) (describing J. 482 Ins.L variety Liability Joint and Several Should of reallocation schemes that exist in a num- Abolished?, Multiple be Tortfeasors states). ber of (1986). AmJ.Trial Adv. provision § The reallocation in 25A also Gregory Professor made Charles 0. this comports provisions in a number of quite many years point eloquently ago: joint states that have abolished and several ... plaintiff and the solvent [W]hen tortfeasors, independent for except they negligent, tortfeasor are both share plaintiff where the respon- attributed no stigma which at common law seems to sibility course, injury.... for the Of justification have furnished the for the exception reflects the common law rule arbitrary somewhat allocation of this risk adoption fault, before comparative debtors_ joint judgment [Distribu- independent made jointly tortfeasors insolvency tion of the risk one of the severally plaintiffs liable for a indivisi- joint in defendants accordance with the injury. ble Section 25A results in the apportionment of fault would seem to be same in outcome those instances which method of administration consis- plaintiff is found free of responsibility.” comparative tent with the terms of the Id. at 248-251. negligence statute. Legislative Gregory, Loss Distribution sum, pure and several Negligenoe (1936). Actions logical an incidental application of a re- Numerous commentators have advocat- gime in plaintiffs fault, which the causative reallocating ed the share of an insolvent or slight comparison no matter how to that of party remaining responsible immune defendant, any recovery barred whatever. parties proportion responsibility to their 1960s, Until the late that was the almost injuries. Wade, plaintiff’s ... See jurisdictions. universal rule in common law Liability Should Joint and Several then, majority jurisdictions Since the vast Abolished?,

Multiple Tortfeasors that have abandoned the common law ban on (1986); AmJ.Trial Adv. Uniform any recovery plaintiff whose Comparative 2(d) (1977); § Fault II Act is to extent a cause of the accident Reporters’ American Law Institute question have likewise abandoned across-the- Liability Enterprise Study, for Person- pure joint liability. board and several Where Injury (1991) (advocating 127-57 reallo- al plaintiff guilty and a defendant are both party’s cation of insolvent share when de- actor, of causative and so also is a third independent fendants are tortfeasors with- justification there allocating, Zavos, prior relationship); Compara- out a defendant, between that ulti- tive Fault and the Insolvent A Defendant: responsibility Critique Amplification mate for the fault of the third American Court, Motorcycle Superior any Ass’n v. 14 actor on basis other than on the ratios Loy.L.A.L.Rev. (1980-81); Williams, plaintiff which fault of and the defen- Contributory Negli- Joint Torts respectively dant bear to total fault of genoe (1951); Sobelsohn, § at 414-20 them both. Fault, Comparing 60 Ind.L.J. Apportionment Under the UCFA and (1985); Miller, of Extending the Fairness Liability, frequently— this allocation will Principle Motorcycle: Li and American of though by always no means be made Adoption Comparative —not of Uniform reason, judgment. until that after For it has Act, (1983); Fault 14 Pao.L.J. 861-63 subject justifiable Note, been to the criticism that Boyette, Reconciling Comparative Contribution, may unwieldy, administratively Negligence, be somewhat and Joint and burdensome, Liability, may Several 34 Wash. & Lee L.Rev. tend undermine However, guilty all three found to be of causative these criti- are finality judgments.19 of position taken each is one-third of applicable fault. Assume assessed cisms are not damages is that the allocation are opinion, the fault and that Exxon’s total judgment, $100,000. in the always judgment be made Exx will should award any (%rds to make defen- $66,666.67 no reason recovery that there is on a total agent any collection plaintiffs $100,000),20 dant the provision that no more than with damages plaintiff for which portion ()é $50,000 $100,000) x may thereof be % turn responsibility. We bears the ultimate shrimper collected from the and no more of allocation briefly to the mechanics now $50,000 $100,000) may than thereof judgment. pleasure If be collected from the craft.21 percentages changed fault causative Judgment Damages Mechanics of somewhat, correspond to those in this Allocation case, percentage that Exxon’s of fault is so 20%, 20%, involving shrimper’s pleasure and the to our collision is Let us revert 60%, boat, judgment should shrimper, and the craft’s is then the Exxon’s crew $80,000 or Exxon a total pleasure craft. Exxon sues one award small (80% $100,000), damages provision with that no other two vessels for the both of the (2%o $50,000 $100,000) x problem if more than thereof to its crew boat. There is fault, may shrimper the fault of be from the and no Exxon is not at then collected (no (6%o $75,000 $100,000) x many matter how are at more than thereof defendant fault) words, necessarily percent pleasure hundred from the craft.22 In other will be one judgment of the combined fault of Exxon and such situation the total is defendant, equals so that defendant is liable for one amount which the same fraction of damages. plaintiffs damages Exxon’s Like total percent of as the total fault of hundred wise, fault, except plaintiff if Exxon at all problem is no is of the total fault of there only including plaintiff; judgment two vessels the shrim all but the but of the other fault, pleasure provide plaintiff may per at craft either will that the not recover is found finding being any particular fault or no being found not at more of said sum from defen (as might equals fault often dant than the amount which made as to its the same situation, party). plaintiffs damages if not a In that fraction of total case it were as that agree particular all that Exxon recovers from the defendant’s fault is of the total plaintiff particular of its total shrimper the same fraction dam of both and that ages example, fault is of the total fault of itself defendant. For if as its suffers $100,000 fault, problem if shrimper. and the A arises total and is 10% at Exxon, 40%, 30%, pleasure craft A B shrimper, and the defendant defendant rejecting approach agree plaintiff suffering 19. the reallocation in strict would that a total dam- cases, $100,000 fault, Supreme ages the Texas Court in tort and found 20% Co., being stated in Duncan v. Cessna each of the two defendants 40% Aircraft 1984): $66,666.67 (Tex. 100,000) x S.W.2d 429 n. 9 recover C%o from each of the two defendants for total of would be to reallocate the "An alternative $133,333.33. liability among insolvent tortfeasor’s share of parties products all were a whose actions judgment provide 21. would further if including negligent injuries, cause of the $33,- paid judgment defendant more on the than plaintiff. suggestion is attractive and was This ()4 $100,000), x 333.33 such defendant would be distinguished Special endorsed Commit- entitled to contribution from the other defendant Compensation tee of the Tort and Section of paid. in the amount of the excess so rule, however, judicial As a State Bar. reallocating the insolvent’s share would create pro- problems jurisdiction finality In this instance the would also post-trial $20,000 judgments.” shrimper paid vide if the more than (20% $100,000) judgment problems post-trial jurisdiction No such on the it would be judgment finalily implicated approach pleasure are entitled to from the in the contribution craft excess, pleasure paid taken this dissent. for the and that if the craft $60,000 (60% $100,000) more than on the judgment judgment 20. No one that the total would be to contends it entitled contribution $66,666.67. And, shrimper should be for from the for the excess. other than all

H55 fault, bility Next, plaintiffs C is 20% at then of B. defendant the amount of B’s maxi- $90,000, ($50,000) judgment provides liability is for but total mum is likewise subtracted (4%o $80,000 $100,000) X no more than plaintiffs ($80,000), that from recovery maximum - A, may $30,000 from ($80,000 $50,000 thereof be collected defendant being the result = (3%o $75,000 $100,000) x $30,000), than there no more liability which is the several of A. B, may from Then, be collected defendant and no ($5,000) liability the several Bof (2%o $100,000) $66,666.67 x than more thereof liability ($30,000) the several of A are added may be collected from defendant C.23 together, $35,000 ($30,000 and the total of + = $5,000 $35,000) is plain- subtracted from simple system This in all will work cases recovery ($80,000), tiffs maximum the result recovery, appropriate and serve to authorize $45,000, being joint which is the and several limiting any particu- at the same while time liability form, of A and B. Cast potential liability lar defendant’s ultimate plaintiff judgment against would have A greater an amount no than the fraction of $30,000, alone for against and also B alone plaintiffs damages which is that defendant’s $5,000, and further A and B percentage of fault divided the total of the jointly severally $45,- for an additional percentages plaintiff of fault of the and that $80,000 ($45,000 figures 000. These total + defendant. = $30,000 $5,000 $80,000). + exposure B’s expression is desired of this If = $50,000 ($45,000 $5,000 is limited to + judgment result in the in terms of be some $50,000); exposure $75,- and A’s is limited to liability joint and some and several = ($45,000 $30,000 $75,000). + Contri- that, too, liability, accomplished, can then provided bution would also be between although algebraic in some cases an formula (see B and supra). C note this, employed. must be A case such as with In certain circumstances where three or plaintiff and two defendants at plaintiff more defendants and the are each frequent will be far the most instance in guilty surely found of causative an arises, any question allocation fault — extremely algebraic rare occurrence —an for- fairly simple such an steps instance set of employed mula must be to arrive at may also appropri be utilized arrive appropriate liability amounts of the several joint liability ate several and and several of each liability. defendant and of the figures judgment. to be set forth in the As Appropriate ap- formulas are set out $100,000, plaintiffs damages sume total pendix important to this dissent. It is and, here, causative fault is distributed recall, however, alivays that it will A, plaintiff, 20% to the 60% to defendant suffice simply provide judgment in the a maximum plaintiffs 20% to defendant B. First maxi (80% amount which be collected from each $80,000 mum is calculated at defendant, particular easily $100,000); which is arrived then the maximum (% merely by multiplying plaintiffs $75,000 total x defendant A is calculated at damages by $100,000) the fraction whose numerator and the maximum of defen (¿% particular $50,000 $100,- percentage x defendant’s dant B is calculated at 000), Next, parties total of all explained. all and whose denomina- as above ($75,000) particular amount of A’s maximum tor is the total of that defendant’s plaintiffs plaintiffs respective percentages subtracted from maximum and the recov ($80,000), $5,000 ($80,000 ery being parties. previously the result the totál fault of all As — = $75,000 $5,000), noted, form, judgment appro- which is the several lia- in that $45,000 judgment provide any cy. paid judgment, 23. The would also Thus if A on the B paid $27,000, $18,000, who paid only defendant more on than paid only and C A percentage parties his of the total fault of $3,000 all would be entitled to in contribution from ($40,000 multiplied by plaintiff's damages total B, $2,000 in contribution from C. Of A) for defendant would be entitled to contribu- course, complications could arise if contribution any paid tion other defendant who less than defendant, one were uncollectible from but no percentage parties of the total fault of all more so than in case in which there are ($30,000 multiplied by plaintiff’s total three or more liable defendants and B; $20,000 C) defendant for defendant negligent. is not extent of the lesser of the excess or the deficien- (see directly being in which do not

H57 Courts, Game-Cock, we under- The Alabama and The District Circuit stand, respective stipulators, severally, to divide the loss.... has been each moiety damage, one the entire inter- in to be the well-settled rule This seems est, costs, stipulated so far as the admiralty.... English Wall] Washington Thereafter, injury The on a ant-passenger, of each of which was found at fault. The libel- viding ing these navigation.” equitable, care and Under “Both vessels Supreme ferry, when the [sic] 19 L.Ed. 787 the circumstances in The who sustained serious disasters, vigilance and as best collided, Court stated: the loss the most Id., ferry course, being Washington, we think the rule de- on both sides libeled both U.S. and the steamboat (1869), passenger in tending was not at fault. fault, at 177-178. usually 76 U.S. both were to induce just personal vessels, attend- in [9 was not value of said vessel shall which the libelant shall be unable to collect principles, although ton and The stipulated such due from said vessel. sanctioned at 697-98 L. ed. or her balance This is enforce, stipulated ^[787] stipulators fully substantially value (emphasis shall be such Gregory, discussed in that case.” Id. this court thereof, value of either moiety, a case paid to the extent of the added). 9 Wall. decree the form of beyond by in extend; involving particular point over and above the other vessel The ^[513] vessel, Washing- similar moiety or libelant, liable to the and both could be Atlas, Next came The 93 U.S. proceeded against in the same libel. The (1876), on, heavily L.Ed. 863 so relied properly apportioned equal- were misunderstood, evidently majority. vessels, ly right being between the two There, cargo a canal boat laden with was to the entire reserved libelant collect the under tow The Kate when the canal boat amount of either them ease collided, and The Atlas and as a result the inability respond of the other to for her cargo canal boat sank and its was lost. The Id., portion.” at 516. U.S. subrogated cargo insurers of the libeled The alone, it Atlas and was the vessel before Alabama, The result same obtained The court, brought as The Kate was not in. (1876), U.S. L.Ed. 763 where the Id. at 308-309. The district court Ninfa, Game-Cock, tug bark in tow of the cargo found that the loss was “caused li- collided with the Alabama. The Ninfa steam-tug mutual fault of the Kate and the beled both The Game-Cock and The Ala- Atlas, steamboat and that do libelants bama. The Alabama and The Game- “[B]oth against recover the steamboat Atlas one half fault, Ninfa, ... Cock were which damages by them sustained....” Id. Game-Cock, inwas tow of The and suffered appealed, at 309. The libelants and the Su- loss, not in fault.” 92 was 695-96. that, preme Court held as The Kate not against “The district court rendered a decree party to the suit and The Atlas had not both Alabama and The [The Game-Cock] libelants, in, attempted bring inno- loss], regarding the whole The Ninfa’s [of any wrongdoing, cent of were entitled to court, them as liable solido. The circuit Atlas, damages against full recover their decree, appeal reversed this and divided the simply one half. The Court cites The them, rendering loss a decree between Washington approval full and states against half each one the amount.” Id. framing care was taken in “[m]ueh appealed Supreme 696. The Ninfa decree in that case.” The Atlas 93 U.S. at Court, which held: explains holding as fol- 318. The Court its therefore, “Conceding, that a vessel in lows: tow, regarded and without is to sustaining “Contributory negligence part on the the same relation to the collision (and by cargo recovery in which is sustained it seems the libelant cannot defeat a it), Proof of the kind will fair thus to consider we think that the collision eases.... erroneous, law; of the circuit court was defeat a at common but decree is, ought admiralty the loss in and that a decree to be made rule suits, apportioned collision and are entitled to com- must be between a case such full vessels, having they offending pensation damage been occa- for the suf- both; may but the rule by wrong-doers, they the fault and sioned fer from the admiralty the law and pursue remedy personam, the common in at their either promoted suit is an same where the the admiralty, against in common law or the moiety except that the rule party, innocent wrong-doers or one or more of admiralty, all the may applied he in the them, they proceed to at law if whether elect court, and each of parties are admiralty in courts.” Id. at 316-319 before or respond to for his wrong-doers is liable added). (emphasis Subject qual- damage. to that share of the Plainly, departure The Atlas intended no ification, party remedy of the innocent moiety Washington from the rule of The and substantially admiralty in the the same Alabama, apply solely The but did not law, being, the rule as in an action fault, Kate, the other vessel at The because compen- an entire in both he is entitled to Court, had was not before the and no one injury wrong-doer for the sation from the bring plainly, in. tried to her Just as collision.... suffered majority suggesting that The Atlas’ errs shipped cargo, and their as own- Goods plaintiffs numerous references to who are court, ers, before the are as in the case wrong” fault” or “innocent of all “without wrong; all and the owners of innocent of having explainable as been made fourteen may of one of the cargo sue the owners years contributory negli- before the bar of both, they may ships, or and sue at law or Morris, gence was lifted The Max election, admiralty, go at their into the (1890). 34 L.Ed. 586 case, they having proved their are as much However, at least since the 1855 decision compensation full the admi- entitled to Catharine, contributory negligence The had ralty they they if would have been had Moreover, been no bar. The Atlas was pursue their common law reme- elected to case, collision its remarks were directed to dy, proviso saved to them the contained cases, openly recognized and it such Judiciary Act. 1 in the 9th section of the “[cjontributory negligence part on the of the L., Stat. recovery libelant cannot defeat a in collision suit, Co-wrong-doers, parties to the although “[pjroof cases” of the kind will de- any portion pay cannot be decreed to law; feat a at common but the rule libelant, damage adjudged to the nor is is, admiralty in the the loss such party question it a in this case whether the apportioned case must be between the of- compel process served have to fending vessels.” Id. 93 U.S. at 316-317. respond wrong-doers appear other majority clearly has misread The Atlas. alleged wrongful act. Juniata, 23 L.Ed. 930 (1876), shippers principles follows the same as The Parties without such as consignees, part bear no the loss Atlas.25 damages necessarily 25. The a collision between the followed." Id. 93 U.S. at Juniata involved Neafie, tug towing belonging steam a flatboat 339. But it was held that the United States was States, Juniata, damages against steamship entitled to all its The Juniata United and the because the United was not at States result of the flatboat The Neafie (and Pursglove) parties owner, The Neafie were not Pursglove, were lost and The Neafie's the United States’ libel: injuries. Pursglove personal suffered serious separate and the United States each filed libels "The branch of the case relative to the Unit- Juniata, together. against The which were tried upon footing. ed States is a different Their The district court found both The Neafie and The alleged proved flatboat nor have is neither anywise Juniata at fault and held The Juniata liable to the principle been in in fault. The has, therefore, Pursglove United half apportionment application States and to their respective damages (Pursglove's being pri- being they inculpated, total to them. Their boat not marily personal injuries). Pursglove’s damages. are entitled to full The decree of the affirmed, giving case this "fault on both in not it to circuit court is erroneous established, being apportionment sides an them. loss, However, vessels at fault are it should be modified so as to be where both court, proper decree in favor against Sterling Equator, and the before (such party passen as a of an innocent third respective stipulators, severally, their each tow, cargo) continued to ger, a damage one-half entire rule, “moiety” granting judgment for half the costs; any balance of half such which the damages against each of the party’s innocent libelant shall not be able enforce vessels, offending provision that if two paid by either to be the other vessel vessel libelant should be unable to collect 647-48, stipulators.” or her Id. 106 atU.S. moiety, its the other vessel would one vessel 1 S.Ct. at 89-90.26 deficiency. In responsible then be for the And this rule continued be enforced. case, a a it was reversible error to enter such Brothers, Thus in Inc. v. Crain Weiman and plaintiffs damages judgment for the innocent (3d Cir.1955), Company, 223 Ward F.2d 266 See, jointly. against at fault both vessels by cargo against barge a suit innocent the 647, 1 89, e.g., Sterling, 106 27 The U.S. charterer, Union, owner, Crain, barge (1882), L.Ed. 98 where the Court stated: fault, who were both at the Court stated: admiralty against a suit in the “This was however, disagree, “We with the manner Equator, ship Sterling and tow-boat for damages in Judg- which were awarded. by in a damages sustained the bark Sif against ment was entered both Union and ship and tow-boat were collision. Both the admiralty, Crane in the full amount. fault, they in found to be were con- damages.... we have the rule of divided solido for the whole amount of demned in parties jointly responsible Where two are the loss. From a decree to that effect this third, injury primarily for to a each is appeal taken. damages, liable for one-half the the upon It is conceded that the facts found barge charterer owner of the should are to a the owners the Sif entitled cargo each be assessed with one-half the tow-boat, against ship and the decree provision loss with a that if the libellant in as both were fault. The well-established one, any part cannot collect from apportion in cases is to the dam- rule such against amount should be assessed the oth- ages equally offending- between the two er in addition to the one-half for which it is vessels, right being reserved to the primarily liable.” Id. at 258. to collect the entire amount from libelant (2d Black, Admiralty ed. inability See also Gilmore & them in of the of the either of case 1975) (‘Where party at 528 a third is dam- respond portion_[cita- other to her aged, ships two that are at he As in this case the decree was sues tions] rule, against prejudiced by half-damages both vessels for the full amount of 26. See (S.D.N.Y.1883): whether to the libelant’s vessel or to the claim- rule in the rule of the common law. nothing; affect in is well ever all the should be ever, reached in this steamer alone. The that the libel of the United States is selves other half We should "This decision several vessels liable also, was not an known, any degree, apportionment paid by while in e.g., admiralty parties guilty designed adjudge the steamer The is in direct proceeding.” [referring are before the Hudson, admiralty tug, in cases of tug negligence, that half the amount right to have [The therefore, affect, By to The Atlas how- [The opposition of the owners of 15 F. Neafie], damages Id., negligence, among and does not Juniata], latter, he recovers at 340. court. against cannot be damages, 162, and the ], to the when- them- if The but peatedly full where the innocent owner of the only a recourse damage, U.S. 695 wards, ple, ety adjudged unable to collect against tow in equally against ant’s, Virginia supreme case of The Alabama and the 890]; judgment against either first sanctioned or to the The upon judgment charge each both Ehrman, between the vessels in fault. Gregory, with a court in the case of The asserted [23 City in solido vessels, full vessel, to be of one cargo L.Ed. either for right deliberation, alone, 9 Wall. Hartford, paid by with an alternative the libelant cannot recover against 763], vessel, subsequent the latter. This moiety either, as at common levy so much ^[309] and has been re- both sues and recovers reaffirmed in his execution Game-Cock, U.S. [323] other as he is cargo, apportioned Washington cases. The was after- his whole [24 damages the moi- law, right or of princi- L.Ed. And but or a cases, and, damages discussing, among Ml if may collect his from one sion after other but decisions, Alabama, respond damages, unable to or Washington, the other is The The deficiency pay if Juniata, Co., collect one cannot The and Atlee v. Packet ).27 (1875) (where omitted] Ml half’ [footnote its Wall. L.Ed. 619 ves- pier), sel struck a observed that “this court injury personal Morris was a suit The Max has extended the rule of division of dam- against the longshoreman vessel he was ages damages to claims other than those for parties having loading, and both been found to the vessels which were a colli- question Supreme at fault the certified sion.” Id. 137 11 S.Ct. at 32. ... U.S. whether “the libelant is enti Court was The court then reviewed several lower court damages,” tled to a decree for divided concerning damage cargo decisions Supreme “answered in the affirma Court tows, 8-11, 15, 11 caused mutual fault but not involv- Id. 137 S.Ct. at tive.” collision, ing any The noted that under The where the divided Court Cath- recovery applied fault did not bar in colli- rule was arine all to allow some de- 27. When two vessels were plaintiff.” who ralty When the Federal Practice plain V Notes to the 1966 amendments to Rule 14 ex- Rules of ing tioned third-party practice R.Civ.P. admiralty practice this was the Hudson, applied only U.S. soon collision cases and thus in both been in fault.” The Max bring L.Ed. 993 decision in non-collision cases. damage by collision This preme Court rule. See The Max not suit,” was admiralty, promulgated by this court March bring in the other vessel. This was immediately amount of its cent third The Atlas allowed under the "the libelant was entitled to recover 1883 ... 11 S.Ct. at 31. See also The 1, "moiety” 14.31[1], ¶ phasis 330 Civilta, 11 S.Ct. for it in new having Admiralty sued, cases to began practice 303, 307-312, in another vessel or the Court [24 Civil 14(c), allowing the claimant or added). Admirahy 15 F. rule in collision cases and aspect rule, 103 U.S. 699 party (1895). Although to avoid See 3 Moore's Federal Practice L.Ed. to follow the same been 14.31[3]. The in collision 29, practice after wholly Procedure in "bring was soon confirmed damages Rules The the vessel goes for that Admiralty (2d ed.) of Rule 162, 34 L.Ed. 586 brought 930]; observing court's to all maritime being Rules were Juniata, may compel 15 S.Ct. was or on to state: in a third "for over 30 expressly 172-176 partly party's the defendant in admi- [26 respondent cases, Morris, held 14(c) ¶ party alleged in as a inherent recognized Rule 56." 3 Moore's at sued Advisoiy 1966, 14.31 Rule 59 L.Ed. and to The fault, Atlas, supra; that 860, Beaconsfield, liable liable admiralty merged practice as follows: Finally, Morris, entire party broadened the (S.D.N.Y.1883). 137 U.S. at (1890), ^[2] would seek types this feature of "By the libelant to Atlas, cases, in The Atlas 599].” but party 862-863, power. years, in a suit for by to an at Committee technically by judicial invoke ... defendant rule 59 in loss, originally in Fed. only with the of cases 137 U.S. 14-161. (2d ed.) to have in non- provid- where, to the courts entire 1921, sanc- inno- (Em- as in Washington 158 The one Su- tug the 26, 11, 39 jury Nor were these Admiralty ward Id., reflect. See the "nineteenth tion 398 F.2d decisions which had extended The Hudson ciples F.2d at mittee cases, ly entire amount of either inability served to the [innocent] libelant to collect the al time these "[t]he plead the owner The judgment against person dant." al ment inability way remainder nal might was that it allowed mutual alone, a case of In certain cases this tation of a substantive of this entitled to insist that the 56. between the two injury). ” “Rule 14 was modeled on fault (fn. 18) 983, an innocent of these personal principles defendant damages case, majority suggests (majority op. to noncollision atU.S. as reflected of above An Notes to the for 258; moiety be liable to the of the other to faces who remedy provision fault 204, (Emphasis important 89 S.Ct. Rule to collect found, was bewill and the that these also, Empire ship quotation 516. See also TheJuniata might full principles were principles will be in the century” injury majority's unsupported sugges solely over, have no possible, e.g., third-party; amount prospect collision where a 449, was that the defendant was conditioned on the blessing (5th the other vessels, be liable to the defendant properly feature of 1966 Rule 14 amendments Seafoods, the from added). Supreme but also judgment against damages; liability cases, awas valuable plaintiff. Crain respond a "maritime principles impleader cases.” from the 21 L.Ed.2d 444 right. Cir.), third-party application one restricted to collision adoption them in case similarly Rule plaintiff proceed the line of Brothers, Inc., vessel, and the apportioned first shipowner, but of Admiralty an absolute Inc. v. cert. third-party for her Court held that For damage Admiralty The right being any person Advisory However, went out with 14(c) if instance and mutu- personal denied, example, in 1921 of fn. he importance misguided, implemen- finding defendant. carry Anderson, to "mari plaintiffs only portion.” in 1966. (person if can judicial 18) Rule 56 suffered (1968). if equal defen- Com prin origi- judg- sued Rule only of who that for im- re in by

H61 moiety damages fault.28 The Court con- spite plaintiff’s properly had held that these cases vessel, cluded against each an with alternative only diminish the libelant’s should that right of recourse either for so it, completely and that such recovery, not bar moiety adjudged paid by much of the to be harmony “as in appropriate rule was the other as he is unable to collect from damages cases the rule for the division added). (Emphasis the latter.” collision.” Id. 137 U.S. Accordingly, it that the libelant “is held course, Of United States v. Reliable Trans damages.” to a decree for divided entitled Co., 95 S.Ct. fer Id.29 (1975), L.Ed.2d 251 abandoned the rule that basically things one can two that There always equally per loss was to be divided —or First, say all cases. none of about these among vessels at held vessel— involved a situation which the instant them instead the allocation towas be based on the question presented; have ever been could However, comparative actual fault of each.30 is, negligent plaintiff none involved a nothing there is to indicate that the divided parties negligent two other and at least operation changed or its rule Second, general maritime law actors. by replacing equal otherwise than automatic slavishly follow the common law. did not per vessel at fault allocation with allocation admiralty Nor was the difference degree comparative actual of fault. The (albeit negligent plaintiff some allowed the merely precise, allocation was made more so diminished) recovery, plain for the innocent as to be fairer.31 different, rights were also somewhat tiff’s Judge explained in The Hud Addison Brown (see Suppose in The Juniata note su- (S.D.N.Y.1883): son, 15 F. ) pra the libelant United States had also been the innocent owner of the “And where equally at fault with The Juniata. Would vessel, charge in cargo, or of a tow of one have recovered two-thirds of its loss from vessels, against and recovers both sues proof The Juniata because the showed judgment in soli- libelant cannot recover a fault, guilty equal The Neafie also was damage, against do both for his whole though only even the United States libeled levy against in right a his execution full (and law, alone, only either as at common but a The Juniata The Neafie was not Co., Stevedoring damages, question presented Cooper 28. See also Inc. v. such is a not for Fritz Inc., 106, 110, 2174, record, upon Kopke, our and we 417 U.S. 94 S.Ct. determination this 2176-2177, (1974), express opinion upon 40 L.Ed.2d 694 where the it." Id. Lackawanna, 499, (S.D.N.Y. similarly Court remarked on the breadth of the 151 F. Cf. 1907) (awarding injured negligent ferryboat pas damages principle: divided )4 senger recovery against ferryboat, as his con principle damages "... division of [X]he greater negligence a duct “constituted ... has, liberally admiralty years, over the been degree ferryboat.”). than that of the extended this Court in directions deemed cases, just proper. In one line of holding 30. Reliable states its as follows: Transfer example, expanded the Court doctrine encompass only damage not to the vessels in- parties "We more have hold that when two or collision, personal injuries volved in a but property contributed fault to cause their damage parties property caused innocent third stranding, damage in a maritime collision or cases, well.... the Court has other damage to be for such allocated recognized application of the rule of divid- among parties proportionately to the com- involving damages ed in circumstances not parative degree of their and that vessels, ship collision between two as where a damages equally for such is to be allocated pier strikes a shipowner due to the fault of both only parties equally are at fault or when the owner, pier and the ... or where possible fairly to measure the when it is not aground goes due vessel canal comparative degree of their fault." Id. 421 shipowner of both the and the canal 411, U.S. at 95 S.Ct. 1715-16. company...." See, Compagnie e.g., Generale Edmonds v. 29. The Court further remarked: 30, Transatlantique, 443 U.S. 271 n. 99 S.Ct. (1979) ("Reli "Whether in a case like this the decree 2762 n. 61 L.Ed.2d merely changed apportionment exactly damages should be sustained, one-half of the able Transfer might, equal on the basis of or the discretion of the division to division court, fault.”). greater proportion relative be for a or less in)? authority suggests by [Kinsman’s No such a the Shiras at the brought vessel] Buffalo, Suppose bridge City the United from the perverse result. The Juniata and The Nea- libeled both then obtain contribution of half

States fie, equally and all were found at fault. amount from three Continental.” Id. at 726. presumably would then The United States squarely contrary Kinsman —which is recovery for one-third of its have majority’s approach directly point —is each, against and The Neafie but The Juniata and should control. We are aware of no what would the United States’ alternative authority. contrary if, right recovery example, the full majority The few decisions cited not from The Neafie? third could be collected contrary persuasive only of a result. The then collect all of Could the United States Empire Seafoods, relevant issue Inc. v. Juniata, only that shortfall from The or half (5th Anderson, Cir.), 398 F.2d 204 cert. de only of it? The decision we have found ad nied, 449, 21 393 U.S. 89 S.Ct. L.Ed.2d dressing question is Petition Kins (1968), Gates, was whether Anderson and (2d Company, man Transit 338 F.2d 708 employees Cleary, two a contractor work Cir.1964), denied, cert. 85 S.Ct. ing bridge, on a should have been awarded (1965), 13 L.Ed.2d 963 decided recovery directly against Cleary, as well as distinguished panel of the Second Circuit. against Empire, whose vessel struck the Buffalo, parties, City There three Con bridge recovery and who was awarded over Company, and Tran tinental Grain Kinsman against Cleary for half of what the Company, sit were each at and each required pay it to Anderson and Gates. All Kinsman, however, damages. suffered parties were at fault. There was no issue on held entitled to limit its under the appeal as to how much Anderson and Gates Act, Liability Limitations of Vessel Owner’s Cleary Empire, should recover from either Judge Friendly, §§ 46 U.S.C. 181-188. writ but whether their could be ing Judges for himself and Waterman and or, not, directly against Cleary at all if Moore,32held as follows: they whether whatever were awarded deal, separate problem “A is how to against Empire could be Em included as among negligent parties, part with that pire’s damages Empire’s action responsibility of of Kinsman’s which its Cleary. In opinion, our initial we held limitation frees it. think the fair solu- We directly Anderson and could Gates recover deficiency equally tion is divide that Cleary, Empire, from sup well as Continental, between Buffalo and rather ported by quoting approval than to hold Continental liable Buffalo following passage from Benedict on Admiral portion for the entire unsatisfied of Kins- (6th 1940), ty § ed. viz: man’s share and vice versa.... “ decree, therefore, ‘The provide should City that The decree is modified so that pay each vessel ... one-half of the may of Buffalo recover two-thirds of the damages, costs, entire interest and ... and damages property to its from Continental it provide any part should further that subject and Kinsman to limitation damages against one-half assessed ei- bearing only latter but with Continental vessel, may ther which libelant not be able deficiency, half of Kinsman’s that Conti- vessel, to collect that from be assessed may nental recover two-thirds dam- vessel, against the other in addition to the ages property City to its from the one-half which she inis the first instance subject Kinsman to limitation the latter compelled pay.’” Empire at 217. City bearing only but with the half of Kinsman, deficiency, Recognizing Kinsman’s and that addressing this text was Continental, which damages made no claim for the of an innocent third may damages party33 recover half of the suffered is obvious from the reference to —as Judge part (6th 32. Admiralty § Moore dissented in as to other 33. Thus Benedict on ed. aspects 1940), stating part: case. 338 F.2d at 727-728. commences in relevant being primarily majority also relies on at fault each Gele v. Chevron vessels two Co., (5th Cir.1978), damages”— involving Oil 574 F.2d 243 of the entire for “one-half liable pleasure a collision between craft and a opinion appended a footnote at original our Chevron structure in the Gulf of in Mexico quotation, follows: of the above the end Gele, craft, guest pleasure which on the “2i. rpjjg state the rule authorities injured. was The district court held Chevron parties.’ third terms of ‘innocent While solely appeal, at fault. On both Gele and argued authorities can might be that these craft, pleasure Chevron contended that the application have no to the instant situation Herr, fault, operated by also at was and we negligent, Anderson and Gates were since agreed. We remanded to determine whether are convinced that the reduction of we played or not Gele also such a role in the respective recoveries under the com- their pleasure operation charge- craft’s so as to be parative negligence doctrine is to be con- fault, degrees able with its and the of com- penalty full for their fault and that sidered parative pleasure fault as between the craft thereafter, must, they be treated and Chevron. next We held that neither ” parties.’ same manner as ‘innocent third nor Chevron Herr were liable to the other Empire at 217 n. indemnity. Immediately following this latter holding appears following passage relied But, this footnote does address —and here, majority on viz: Empire panel our there was issue before decision, course, “This does not affect concerning plaintiff, whose —whether right damages Gele’s to collect all his from equal to that of each of the two party in one the event he is unable to initially defendant is defendants so each portion obtain the relative damages, a third of if unable to liable for party Empire from each fault. Sea his third from one of the defendants recover Anderson, Cir., 1968, foods, Inc. v. other, may then recover it all from the 204, 217, F.2d 1968 A.M.C. cert. de deficiency, only half of the as in recover nied, 449, 21 89 S.Ct. Moreover, rehearing in Em- Kinsman. (emphasis L.Ed.2d 444.” Gele at 251 add pire holding that Anderson we withdrew our ed). directly could recover from and Gates Cleary holding portion passage appears This to address made —the append- chargeable opinion to which footnote 21 was situation was not Gele reconsideration, any enti- “Upon stated: we with as else he would not be ed—and damages” anyone we about the tled to “collect all his are convinced that what said (and opinion collection “from each original decree in our reference to his District Court where, party inappropri- fault” likewise apropos only to those instances would ate).34 event, nothing statutory prohibition, from a an inno- there is aside any party injured by the mutual indicate that there was issue before the cent third is Gele, concerning Empire in a court how much vessels collision.” Gele if fault of negligent, could recover from Chevron or by party, negligent plaintiffs. Empire brought The “Where suit in rem is a which addresses owner, cargo e.g., speaks a action a on cause of text at 398 F.2d at 217 to a situation “ vessels, by against a two for caused parties responsible injury ‘two to where ” " vessels, brought by collision between such or is primarily a and hence 'each is liable for third' " party an innocent third on a cause of action damages,' responsible par- the the two one-half " " involving than one vessel ... ves- [e]ach more pay damages,’ 'should each one-half the ties fault, sel, primarily if there be two at is liable one, the and if that cannot be collected from damages ... when one [b]ut for one-half of the deficiency. obligated up will be to make the other respond one-half of the vessel is not able to obviously contemplates plain- Such a scenario damages, up make the deficien- the other must Moreover, guilty tiff not causative fault. cy." Id. at 184-85. Empire’s in- text at F.2d at 217 likewise therefore,” decree, lan- "[t]he Then follows the language rehearing the that what was said cludes guage quoted Empire. which we apropos part original opinion that “was those instances where ... an innocent to 34. We also observe that while Gele references party injured mutual fault of third is portion Empire at F.2d it does not specifically Empire's reference footnote vessels." event that collection could not be issue as to the amount of Drake’s total dam- Herr However, one of them. As to the issue ages). affected from that is not what the Elev- us, quoted language Rather, before Gele is now it enth Circuit did. held that “[t]he passing inapposite re- no more than a issue of Meisner’s is irrelevant to the States,” mark. determination that of the United added), (emphasis id. and the court “there- majority’s Towing reliance on Drake remand[ed] fore the case to the district court Co., Co., Inc. v. Meisner Marine Const. to reallocate between Drake and the (11th Cir.1985), plainly F.2d 1060 mis considering negli- United States without case, placed. In that Drake’s vessel was gence (emphasis Meisner.” Id. at 1068 damaged piece it of concrete when struck added).36 words, Towing other Drake left the channel Meisner. Drake sued not, comparison held that the relevant was States, and the United Meisner latter for it, majority here would have that be- marking buoy. misplacement its of a How Drake, negligence tween the on the one ever, prior Drake settled with Meisner to hand, negligence and the combined of Meis- trial, twenty trial. On was allocated States, hand, ner and the on United the other Drake, percent twenty percent simply neg- but rather was that Meisner, between the sixty percent United States ligence of Drake and the judg and the district court awarded Drake States, considering United without whether twenty ment the United States negligent. or to what extent Meisner was percent damages. of Drake’s total Drake Towing support majority Drake appealed, contending does “that the district court here; rather, rejects very it decreasing recovery against position erred in its majority percentage liability which the contends for. United States Meisner, nonparty attributed to the trial essentially general These are maritime agreed. the case.”35 The Eleventh Circuit by majority. They simply law cases cited however, holding, Its plainly contrary do not sustain its assertion of a well-estab- , —U.S. McDermott, -, AmClyde Inc. v. allowing lished maritime law rule (1994). 114 S.Ct. 128 L.Ed.2d 148 Just plaintiff, in an accident or collision caused here, majority Towing as the does the Drake acting his fault and that of two others inde- on, misread, panel relied Edmonds v. other, pendently of each with each of the Compagnie Transatlantique, Generale equally guilty, three to hold either one of the 99 S.Ct. 61 L.Ed.2d 521 two other liable for more than half dam- (1979). Towing, See Drake F.2d 1067. ages. The decision that comes closest aside, however, majority All that here Kinsman, really addressing this issue is clearly Towing misreads Drake itself and plainly supports approach advocated in wholly ignores holding. its actual The ma this dissent. It is not contended that that jority opinion’s relies statement that approach is well established either. The “Drake damages, recover its entire less point simply essentially the issue is portion attributable to its own open. We should choose the fairest and majority from the United Id. States.” logical approach. most apparently believes that this means charged United States was with all Meisner’s LHWCA Cases fault and thus Drake held entitled to eighty percent recover damages majority of its from involving The also relies on eases But, so, injuries LHWCA, the United if States. that were then principally covered Talbot, Hawn, simply 406, Eleventh Circuit Pope would have re & Inc. v. 346 U.S. (or judgment 202, (1953), formed the ordered district 74 S.Ct. 98 L.Ed. 143 and Ed- so) (there court being to do to so plainly inapposite, reflect no monds. These cases however, impleaded 35. The United liability, States had not Meisner. trict court's] allocation of Id. at 1068. remand the case to allow him to reallocate liabil- ity between Drake and the United States without And, repeated opinion considering 36. responsibility this is at the end of the Meisner.” Id. added). says: (emphasis where the [the court “We vacate his dis-

H65 Talbot, appear it that Pope & does not instant case is subject matter of the as the LHWCA, any complaint ever made of this manner was which scope of the not within of submission. The district court rendered within injuries or activities not reach does against Pope judgment for Hawn & Talbot foreign nations. waters of the territorial /¿% of his total and awarded for 87 re- decisions likewise Examination of these against Haenn in Pope & Talbot contribution by their they that were driven not veals Pope the amount of half of & Talbot’s liabili- plain McDer- setting, as is made LHWCA (but ty not more than Haenn’s to Hawn mott, they purport did not but also potential LHWCA maximum presented. here consider the issue address or Hawn). Talbot, Pope F.Supp. v. & 99 Hawn Talbot, Hawn, ship repairman Pope In & (E.D.Pa.1951).37 appeal, Third 226 On Haenn, injured while employed by was against Pope affirmed the award & Circuit began Pope Talbot’s vessel. Hawn & board Talbot, against but reversed the award compensation payments receiving LHWCA Haenn, holding that was not contribution Pope for then sued & Talbot from Haenn and Talbot, Pope 198 F.2d available. Hawn v. & Haenn to refund to negligence, agreeing with (3d Cir.1952). Supreme Court 800 out of payments it had made it the LHWCA granted Pope application Talbot’s for cer- & Tal- Pope from & any sums Hawn recovered tiorari, It but affirmed the Third Circuit. Haenn, brought seek- Pope Talbot bot. & Halcyon Lines v. Haenn held that under indemnity it. A 282, ing contribution Ship Ceiling Refitting Corp., 342 & Talbot, Haenn, 277, (1952), and Hawn jury Pope & found 96 L.Ed. 318 contribu- 72 S.Ct. percent against Pope & negligent; seventeen-and-a-half tion Haenn was barred. each Talbot, 407-409, Hawn, 74 at 204.38 assigned to but 346 U.S. S.Ct. was assigned to either Haenn or percentage was finally at 279. It went on to observe that judgment awarded 72 S.Ct. entered

37. $29,700 (87)6% expressly contribution in against Pope had never authorized & Talbot it Hawn cases, $36,000 damages) courts and awarded noncollision but that several lower Hawn's total $8,331.35 However, against Pope further noted that & in contribution had. Id. n. 5. it Talbot $8,331.35 "[bjoth being parties calculated as the decision below Haenn. The claim compensation compensation medi- limiting employer's the sum of all LHWCA an payments previously cal made Haenn amounts recoverable under to those uncertain ($5,881.35) remaining plus impractical the maximum Hawn Act and un- the Harbor Workers' to Hawn in the amount which Haenn could owe 72 at 279. Id. 342 U.S. at S.Ct. desirable." ($2,450). Id., compensation Although recognizing as LHWCA "[t]o future some extent F.Supp. exercising jurisdiction 338. in maritime affairs courts courts in fash- freer than common-law have felt ioning Baccile, Halcyon, ship repairman em rules,” at 280 U.S. at S.Ct. id. 342 Haenn, Halcyon injuries ployed by in sued (footnote omitted), declined to fashion a contri- Haenn; brought Halcyon vessel. curred on its It then called case before it. bution rule in the $65,000 judgment by agreement parties, a of all provisions to the LHWCA attention against Halcyon. A was rendered for Baccile and aboli- scheduled contributions without 25%, Halcyon jury found Haenn at fault 75% assumption contributory of risk. tion of judgment granted Halcyon court and the district available, it that were contribution Id. It noted for contribution Haenn in the amount question whether "the amount of would be a Lines, $32,500. F.Supp. Halcyon Baccile v. by the Harbor should be limited contribution (E.D.Pa.1950). Appeals re The Court of by stating, “In Act.” Id. It concluded Workers’ con so that the amount of formed Congress foregoing, and because view Halcyon could not exceed tribution awarded stopped acting short of in the field has while pay compelled been amount Haenn could have urged, here approving the rule of contribution he elected to Baccile under the LHWCA had inappropriate for us to do it would be we think compensation v. Hal claim thereunder. Baccile at 280-281. 72 S.Ct. so.” Id. 342 U.S. Lines, (3d Cir.1951). cyon Haenn 187 F.2d 403 Co., CooperStevedoring Subsequently, Inc. Halcyon granted were both review Inc., Court, Kopke, Halcyon was Supreme held that Fritz (1974), the Court allowed contribu- The Court not L.Ed.2d entitled to contribution. case, relying on the a noncollision tion in vessels collide due ed that: "Where two cases, U.S. at 108- both, id. 417 admiralty law collision doctrine maritime of it is established fault 2176-2177, holding and in effect equally S.Ct. at wrongdoers 94 shall share that the mutual each, as, by entirely the fact that Halcyon driven per was damages as well sustained sought from the LHWCA damage there was property contribution injury and inflicted sonal Halcyon limited to that employer was parties.” Halcyon, at and that innocent third 1166 rejected Pope & Pope

It likewise Talbot’s alterna- Other than “ingenious & Talbot’s ar- gument” tive contention that because Hawn recovery had that Hawn’s from it should agreed payments to refund his LHWCA to be reduced what he received under the recovery Pope LHWCA, Haenn out of his from & rejected which the Court as con- Talbot, judgment against (see therefore “the trary to LHWCA section 33 note [Pope Talbot] & should be reduced this supra), Pope position & Talbot’s vis-a-vis Id. 346 at amount.” 74 S.Ct. at U.S. simply Hawn was all nothing an one— rejected 206. The Court this contention as it, Hawn should not recover at all from not being inconsistent section 33 of the recovery that his properly was calculated. in allowing LHWCA and as effect contribu- point simply The here in issue was not before employer contrary tion from the to Hal- Talbot, Pope the Court in & nor did the cyon.39 rejected Pope The Court likewise & any way Court Pope there address it.41 & “contributory Talbot’s contention that negli- case, Talbot was an LHWCA-driven and sim- gence accepted should have been as a com- ply speak present does not question. to the plete recovery,” bar to stating: Hawn’s Edmonds, We turn now to majority’s “The harsh rule of the common law under There, Edmonds, lead longshore case. contributory negligence wholly man, injured was in 1974 on a vessel injured person barred an from course of employment. his He received completely incompatible with modern ad- compensation LHWCA from his employer, miralty policy practice. Exercising its stevedore, brought against suit discretion, traditional admiralty has devel- negligence. vessel’s owner for jury The oped and now its own follows fairer $100,000 found Edmonds suffered a total of more rule which allows such con- flexible damages, fault, that he was 10% at that the contributory negligence sideration of vessel was 20% at and that the steve mitigation damages justice requires. as dore, party suit, which was not a was presents persuasive Petitioner argu- 70% at fault. granted district court The admiralty ments that adopt should now Edmonds the vessel automatically discredited doctrine which $90,000. owner for Appeals Court destroys injured persons all claims who held that Edmonds could recover no more injuries have contributed to any their $20,000 than owner, from per the vessel its degree, Talbot, slight. Pope however & centage of the total fault of all three actors 408-409, U.S. 74 S.Ct. at 204-205 Compagnie damages. times the total Edmonds v. added; omitted).40 (emphasis footnote Transatlantique, erale 577 F.2d Gen just (4th Cir.1978). for, That is what dissent asks Supreme Court allowing reversed, “fairer and more flexible” rule “con- holding that Edmonds was entitled contributory sideration of negligence $90,000 in miti- to recover from the vessel owner. gation justice requires.” as Edmonds v. Compagnie Generale Transat 110-114, circumstance. Id. 417 Pope U.S. rejected & Talbot likewise 40. the notion at 2177-2178. Pennsylvania law—which barred recov ery any degree contributory negligence— 39.The Court stated: 409-410, apply. should Id. U.S. at 74 S.Ct. at 205. It further Ship refused to overrule Seas "A ingenious argument weakness in this is that Sieracki, ping v.Co. 66 S.Ct. § specific provisions per- 33 of the Act has (1946), rejected suggestion L.Ed. 1099 employer recoup compensation mit an that a could "Sieracki-seaman” not recover for payments any recovery out of from a third species vessel as was a he of seaman person negligently causing injuries. Pope such but was not covered the Jones Act. Id. 346 accepted & Talbot's contention if would frus- 410-414, U.S. at 74 S.Ct. at 206-207. protect purpose employers trate this who subjected liability by to absolute the Act. Moreover, Pope Moreover, reduction & Talbot’s liabili- Pope 41. & neither Talbot's nor ty expense found, at the of Haenn would be the percentage sub- Haenn's it was not equivalent possible stantial compare contribution which we percentage Hawn’s of fault require Halcyon alone, declined to Pope case." distinguished & Talbot's Talbot, Pope & Pope U.S. at 74 S.Ct. at together. & Talbot's Haenn’s

H67 2753, broadly. Finally, we 256, reading too 61 Edmonds 99 S.Ct. lantique, 443 U.S. ignore express ap- and (1979). cannot McDermott’s 521 L.Ed.2d 2 parently approving reference to section Edmonds. things may be said about Two 11, supra), partic- (quoted in note the UCFA First, by Ed- driven was LHWCA. provision for “reallo- ularly to that section’s pure sev extensively reviews how the monds equitable defendant’s cation of insolvent Ap liability approach of the Court eral 32, 114 at-n. share.” McDermott long and affect the stevedore’s peals would 31). (see Seemingly, n. at 1471 n. 32 also id. rights under LHWCA shoreman’s approach such an at McDermott considers thereto. the 1972 amendments particularly option in the least an unforeclosed non- 269-273, 2761-62. 99 S.Ct. at at Id. 443 U.S. LHWCA context. observing “we are by concludes Court Second, involved parties all the and courts interface we deal with an that here mindful only two alterna- in Edmonds considered law,” at 270- statutory judge-made id. tives, namely apply pure several whether 2762, 273, expressing reluc at 99 S.Ct. being only liability, the vessel liable the “delicate out of kilter” tance to “knock bearing part of the no its 20% share by Congress between balance” struck whether, 70%, on the or other stevedore’s stevedores, ship longshoremen, rights of hand, liability, joint and several apply in the 1972 amendments owners plaintiff had not ease if the would be the 273-275, at 2763. at 99 S.Ct. LHWCA. Id. be negligent, so that the vessel would been surely by removed Any doubt on this score all of the and would bear liable for 90% that “Ed- where the Court states McDermott giv- was fault. No consideration stevedore’s statutory construc primarily was monds of, to, recognition was even en there interpretive special and related to tion case the stevedore’s fault possibility by the 1972 amendments questions posed or, ignored is essen- simply be what should Workers’ Longshoremen’s and Harbor tially thing, that the stevedore’s the same — McDermott, atU.S. Compensation Act.” long- allocated between fault should be -, This not idle at 1471. was 114 S.Ct. in the same ratio shoreman vessel dicta, argument principle in McDermott each bore to that of negligence of that the proportionate that “the respondents was with the Apart from its concern the other. ultimately ap rule,” which McDermott share LHWCA, of Edmonds amounts the thrust with Edmonds.” proved, “is inconsistent that a third questioning proposition — at-, McDermott, at 114 S.Ct. U.S. liability which party’s fault reduce should Moreover, courts, including 1471. Ed- otherwise have. would the defendant v. Lakes Circuit Great the Eleventh authority general princi- Self monds cites no 1540, Co., 832 F.2d Dredge & Dock addressing negligence how ples Cir.1987) (“bound (11th by Supreme there are compared where plaintiff is to be ”), the rule Edmonds guidance and Court’s actors also independent or more other two Rajaan, and this Court Hernandez ap- M/V fault.42 Edmonds’ guilty of causative (5th denied, 582, Cir.), cert. 841 F.2d respect is well illustrated proach in this “ 530, 981, 102 L.Ed.2d still left question: 109 S.Ct. ‘one is posing U.S. its (1988) previous injured by reasoning Self), longshoreman (following why the to wonder party settle should rejected proportionate of a third recov- ly had employer has also been adopted rule McDermott er less when ment credit has employer been negligent when the with Ed- than theory that it was inconsistent ” 269, n. at fault.’ Id. wary again without We should indeed monds. there was one plaintiff at but Ed general maritime law cases cited 42. The monds, at 2756 n. cases at n. 99 S.Ct. None of these could 443 U.S. actor fault. other Co., Kopke, Stevedoring Cooper Inc. v. purported Fritz possibly presented none have —and Inc., 40 L.Ed.2d 694 94 S.Ct. address, now before us. dicta—the issue even Atlas; (1974); Halcyon; The and The luniata. respects law the common also true as This is these, was not three of In the first regard by Id. authority Edmonds. in this cited The Juniata That was also the situation in fault. so far as concerns 2756 & n. 99 S.Ct. at & n. 443 U.S. at 259-260 States. the libel United Juniata, Pursglove in The In the libel 1168 added) (emphasis (quoting

S.Ct. at 2761 n. 24 reaches would be reached under the FELA Co., 714, Zapico Bucyrus-Erie v. 579 F.2d Act, and hence under the Jones and that (2d Cir.1978)). satisfactory- 725 There is no Apex therefore under v. Corp., Miles Marine question. poses answer to that This case 19, 317, 498 U.S. 111 112 S.Ct. L.Ed.2d 275 flip question, namely why side of the same (1990), should be general reached in this A, injured negligent three-person should in a maritime law ease. B, involving negligent, accident also likewise There are C, several answers to this. Most negligent more from B if recover C is obviously, subject than if matter of similarly C is without fault. There is this case is satisfactory question. governed by answer to this not Act. Jones Coats was reason in indepen- seaman, each instance is that the not a any Jones Act nor was he sort party’s dent third fault is irrelevant to what employee of Penrod.44 Miles considered ultimately should recover from parent “whether the of a seaman who died party, just the other Towing as Drake held. injuries on ... [the defendant’s] vessel general recover under

Certainly, the maritime law for result Edmonds is bind ing society, loss of inju on us in suits on and whether a LHWCA-covered claim for the case, ries. But outside of that class of earnings Ed- seaman’s lost future survives his proper monds is not a basis on which to 21, death.” Id. 498 111 U.S. S.Ct. at 319- (and approach parties evaluate an it be 20. It questions answered both nega- it) wholly fore failed to address or consider. tive, because neither such was avail- Mitchell, 9, See United States v. 271 11- U.S. 31-34, able under the Jones Act. Id. at 36- 15, 418, 419-20, 46 S.Ct. 70 L.Ed. 799 37, 325-26, 111 S.Ct. at 328. The Court (1926).43 (see previously As observed note stated “we restore a uniform applicable rule 38, supra), in Cooper the Court Stevedoring to all wrongful actions for the death of a Co., Inc., Kopke, 106, Inc. v. Fritz 417 U.S. seaman,” 33, 326, id. at 111 S.Ct. at (1974), 94 S.Ct. 40 L.Ed.2d 694 refused “[bejcause this case involves the death of a Halcyon to extend the ban on contribution seaman, we must look to the Jones Act.” Id. beyond its context of a contribution claim added). 111 (emphasis S.Ct. at 328 employer injured the LHWCA Our recent en opinion banc in Guevara v. plaintiff, recognized and McDermott that Ed- Maritime Corporation, Overseas 59 F.3d monds was LHWCA-driven and refused to (5th Cir.1995), states: general principle extract from it a govern (and how) “In order to decide general the effect of whether settlement maritime case, applies Miles to a multiple party law a court general cases. must first case, we, too, setting evaluate maritime law the factual should not ex of the case pand beyond Edmonds its statutory LHWCA context determine what remedial speak measures, something it any, never if apply addressed in that context. If special even in that context. the situation is covered a statute like DOHSA, the Jones Act or and the statute FELA, Act, Jones and Miles informs and damages, limits the available Apex v. Marine the statute directs and delimits the recov- majority argues ery Jones Act available under the maritime FELA, incorporates the the result law (Emphasis original). as well.” " 43. thought Mitchell '[i]t states: is not to be decided. The most that can be said is that the question not raised counsel or point discussed in any was in the cases if one had seen fit to opinion merely of the court has been decided Questions merely raise it. record, lurk in the might because it existed in the record and have brought neither to the attention of the been raised or considered.” Id. See also Webster upon, court nor ruled are not to be considered Fall, 507, 511, 148, 149, 266 U.S. 45 S.Ct. having been so decided as to constitute (1925), 69 L.Ed. 411 where the Court stated: precedents." stop "We inquire do not whether all or McAllister, [prior Supreme Cosmopolitan Shipping of them Court Co. v. decisions cited Cf. 783, 789-93, by appellant] 1317, 1321-22, can be differentiated from the 69 S.Ct. consideration, (1949); case now under since in none of L.Ed. 1692 Rohde v. Southeastern Drill Co., Inc., point them was suggested (5th Cir.1982). here ing at issue 667 F.2d (1913), L.Ed. setting case is of this Clearly factual Court, speaking of what is now section Accordingly, Act.45 by the Jones covered would stated: Guevara methodology stated above application of the support statutory not to that the appear direction [T]he “... here. uniformity principle proportion ‘in to the Miles shall be diminution negligence attributable to such amount of uniformity princi- the Miles But even were that, mean, means, only and can employee’ majority has not demon- applicable, the ple partly at- negligence is where the causal body of or consistent any established strated carrier, partly him and to the tributable to under in this case sustaining result the law only damages, full but he shall not recover Act. FELA or the Jones the either amount, bearing the same proportional a FELA, when it was the Turning first to negli- amount as the to the full relation authorized of the states adopted in 1908 none bears to gence to the carrier attributable plaintiff whose recovery a any whatever negligence entire attributable the contributed, in even proximately negligence both_” (em- 33 at 657 Id. ques- the accident in slightest degree, to the added). phasis adopted it Thus, FELA was the tion. when negli- Nothing suggests 53 that the in section inferentially incorpo- possibly have could not thereby for involves comparison called gence recov- rule on how the any law common rated anyone negligence of consideration of the the comput- plaintiff was to be ery negligent aof and the plaintiff-employee other than the other two or more in an instance in ed defendant-employer railroad. actors, was one of at least whom independent majority only FELA case which defendant, The guilty of causative also were v. contrary is being to the Gaulden ad- cites as simply did not law The common fault. Northern, Inc., 232 Kan. Burlington Nor does the word- such situation. dress (1982). plaintiff railroad “[e]very P.2d 383 There provides It that FELA. ing of the in- crossing collision injured in a employee, ... be lia- by railroad shall carrier common James, a third volving truck driven injury any suffering damages person in ble employer under the railroad party, ... sued by such carrier employed he is while law, set- under but James state negli- FELA and part in from resulting in whole or The court U.S.C., prior to trial. carrier,” § with James tled gence ... of such to ac- rule proportionate that the fault held employee and that “the fact applicable, so was for the settlement contributory negligence count guilty of have been railroad plaintiffs from damages that the recovery, but the not bar shall proportion which by the reduced jury would be proportion in shall be diminished negligence and that plaintiffs total negligence attributable to the amount negli- total settling bore to the James § The 53. employee.” 45 U.S.C. such on court went parties. gence of all three speaks to nor even neither creates FELA any dicta, however, citation of and without anyone against suit any cause action settled had James not authority, to state that fa- employer-railroad.46 than the other plain- be the railroad would liable then wording and structure cial inference from damages total fraction of tiff for same plaintiffs of the statute railroad of the fault to, to, the total compared is to be Id. all three. the total & James was employer-railroad. defendant Norfolk Earnest, P.2d at 392. 229 654 Railway Company v. Western DOHSA, Railway Company v. diversity); Worth Denver respecting Ft. is also the situation 45. This Cir.1955) (5th any Threadgill, a death 311-312 neither nor F.2d this case involves (or suffered) FELA, law, right injury (state plaintiff's "on the wrong governs committed high party seas." railroad's and defendant recover from third indemnity right or contribution to recover See, Co. v. e.g., Public Belt R. Orleans New Kennedy Pennsylvania Railroad party); third (where (5th Cir.1949) Wallace, 173 F.2d Cir.1960) (3d Company, 282 F.2d employer rail- employee’s sues estate railroad (same). plain- jurisdiction party, over a third road and depends party against third tiff's suit If in a 1982 this dicta Kansas decision is The fourth and final Jones Act case cited do, majority majority hardly respect, the best the can it can this Joia v. Jo-Ja (1st Cir.1987), Corp., Service 817 F.2d that there is or said was well-established merits more detailed consideration. There respect. settled FELA rule plaintiff-seaman, Joia, sued his employer, observed, Act, previously As the Jones Niagra, Act, under the Jones the same passed gave injured seamen in the Jo-Ja, action also sued the owner of another employment course an action their contributing vessel injury, under the employer governed by to be the FELA.47 general maritime law. Joia’s total essentially The situation then the same $360,000, were found to be and fault was FELA adopted, as 1908 when the was Joia, plaintiff allocated 5% to 30% to his namely that in all op- but three states —as employer Niagra, and 65% to Niagra Jo-Ja. any to in all posed states in causative appealed. alone 1908— The First Circuit held that part plaintiff, on the Joia was entitled to against Niagra slight, any recovery matter how barred what- Jo-Ja, jointly $342,000 and severally, Accordingly, (95% ever.48 what has been said $360,000). of things signifi Several about the FELA applicable the Jones First, cant about Joia. contentions Act. passed, When the Act was it parties Jones of respect, in this and all that the could impliedly adopted any general not have considered, First Circuit addressed or was or practice established common law rule or Niagra’s whether the limit liability of should $108,000, computing be negligent of a 30% the total damages, or (or more) $342,000, 95% of plaintiff when two the total. independently Id. 917. The court acting pure liability, found defendants —or a several defendant and one which Joia, all of charged or Jo-Ja’s fault is negligent. more others —were also That considering too harsh “the remedial true nature because there was no such rule or the Jones Act.” rejection Id. at 917. In its practice, plaintiffs negligence as the barred pure liability several contended for any recovery. any Nor is showing there that Niagra, Edmonds, the First Circuit relied on up 1920 there had grown under plainly rejected ap likewise such an any FELA such or practice established rule (as dissent). proach does this Joia at 916- which the Jones Act could be said to have 917.51 panel The Joia Edmonds —sim impliedly adopted.49 —like ply never possibility adverted to the that majority The cites four cases under the Niagra’s maximum should instead be support Jones Act which it claims would fixed percentage ratio itsof of fault result here if this were a Jones Act case. All (30%) to the total the percentages of fault of these cases were within decided the last (5%) (30%) words, Joia and it other on —in cases, decade. In three of the court was comparison basis of a Niagra’s negli presented with, not purport and did not gence to Joia’s. That would have limited to, speak involving negligent situation (sfe Niagra’s $308,571.42 exposure to —or %— plaintiff, so language the cited general con- $360,000). Further, panel the Joia noted cerning joint the de- Niagra’s Leger reliance Drilling on v. Well plainly fendants is posi- Control, with Inc., (5th consistent Cir.1979), 592 F.2d 1246 tion of this dissent.50 These three cases tell but instead chose to follow Ebanks v. Great absolutely us nothing Co., (11th relevant here. Dredge Lakes & Dock 688 F.2d 716 passed (S.D.Cal.1990); 47. DOHSA Addison, was likewise in 1920. Texaco 613 So.2d (Miss.1993); and, Dicola v. American Mississippi, Georgia, 48. three states were Steamship Owners Mut. Protection and Indem. and Nebraska. There was not fourth until Ass’n, Inc., (S.D.N.Y.1994). 170 B.R. joined. when Wisconsin Indeed, however, seen, properly recognized, 51.Joia as showing we have that there is no Ed- today any controlling” even as of monds clearly there is was "not such and that "the nar- established holding rule under govern the FELA. row of Edmonds does not a sea- man’s action.” Joia at 916. 50. These three cases are Johnson v. National Steel Shipbuilding, & F.Supp.

H71 justify normally We do not weight, at best. denied, Cir.1982), cert. unfair (1983), illogical that are adoption which re of rules 1774, 76 L.Ed.2d ap might credit often be able parties share proportionate basis jected being inconsistent Leger illogie or unfairness around proach to contract now know at 915-17. We Joia Moreover, majori- Edmonds.52 creating. are thus we panel did the Joia McDermott —which from respect is inconsistent in this ty’s rationale right Leger benefit of—that have the not one is not ordinari- rule that settled with the progeny erred its and that Ebanks fault of inde- independent an ly for the hable reading Ed- concluding otherwise majority would pendent contractor. significant Finally, it is overbroadly. monds always be should have it such essentially before the issue that Joia treats recover can the owner imposed because to find purport Joia does res nova. contrac- indemnity or contribution body of Jones Act recognized or settled by the contrac- tor, precluded if that law, FELA) law, (or general maritime unavailability, then insolvency or tor’s maxi given defendant’s how a addressing blame, as he but himself has no one owner multi-party in a fixed is to exposure mum con- with the done business not have should two involving negligent ease no approach, Presumably under this tractor. more) acting negligent de (or independently entity with immune contract an one would and one (or negligent defendant one fendants how, hypo- Finally, in our county. such as acting oth independently negligent, or more the shrimper, involving the collision thetical ers). craft, can boat, pleasure the crew Exxon case is of this sum, subject matter the prior contact any parties having of these — Act. More- by the Jones not one covered have expected to the other —be one with body of Jones Act over, is no settled there in advance other with each us, contracted before now addressing the issue law law, body of accident? settled certainly was no there otherwise, or ad- the FELA under either that the notion Next, majority invokes the the Jones Act at the time dressing issue the recovery be maximized. should plaintiffs the was).53 (or the FELA adopted when principle, However, guiding the if were that dictate the Hence, not Act does the Jones give perhaps disregard, or simply we could here. result to, plaintiffs contributo- weight the only half And, reverting to our again Considerations Other ry negligence. to collision, we why do want hypothetical is authority, which to appeal its than Other shrimper’s master-owner make the to strain es- nonexistent, majority levels largely damages, Exxon’s than half pay rule es- Exxon more objections to the sentially three every bit crew boat though Exxon’s by dissent. even this poused just be- shrimper, as the at fault as much suggest that First, majority seems wholly craft, acting pleasure little cause care of be taken should a matter which this is shrimper with which independently avoiding doing business contract, or contact, negli- was also any had has never might be or who potential co-defendants gent? obviously a make- This is insolvent. become tactically concession wise to be believe became subsequent appeal Ebanks On Self See, us. before Co., hypothetical case not respect to a Dredge 832 F.2d 1540 Dock & Great Lakes MacGill, noted, v.U.S. which, Equitable Soc. e.g., led Assur. 1987), previously (11th Cir. Life ("it Cir.1977) (5th well cases) (and an subsequent into 551 F.2d us in Hernandez accept as consequent bound is not a court reading Edmonds and settled that overbroad law”); questions of proportionate controlling stipulations share as to rejection erroneous (7th States, Leger. 516 F.2d credit rule v. United Strauss settlement not, as to Cir.1975) (“concessions ... do least likely affect number that are questions of law fact that majority comfort from takes 53. The the conces beyond in which the one ... of cases interpretation of challenge its not Penrod does made, duty to Court of relieve But, sions Act a Jones this is not Act. the Jones issues”). of such own resolution its make case, what Penrod certainly bound we are Finally, majority objects because the and that words, defendant. In other beyond approach, dissent’s in contrast to that of the limit, that defendant simply not ulti- UCFA, require does not the defendant to mately liable negligent plaintiff.54 first, judgment, and after establish that an- Why should that defendant be made the col- other defendant or actor is insolvent or un- agent lection negligent plaintiff as to (or immune) reachable so full contribu- sums for which that defendant is not ulti- tion is defendant, unavailable from that other mately Why liable?55 party should one be before that other “equitable defendant’s agent collection for another? partially share” is reallocated to negli- gent plaintiff. course, Of under the UCFA Moreover, say that the approach of this Apportionment Liability, if the other puts dissent an unfair collection burden on defendant is determined to be insolvent be- negligent plaintiff is certainly ignore judgment, fore then the “reallocation” will be the longstanding general maritime law rule original judgment, original and the that even the innocent per- who is judgment give will negligent plaintiff the sonally injured in an accident as to which two same maximum from the solvent equally defendants at fault are before the defendant as would be the case under (either court by being directly sued or rule advocated this dissent. impor- More brought 14(c) in under Rule precur- its tantly, however, the substance of the UCFA sors) recovers initially from each Apportionment Liability approach is defendant for only half damages, his clearly can negligent plaintiff should not go beyond that as to able to each cause first one defendant to ulti- mately showing greater (plaintiffs) bear a inability fraction of plain- to collect tiffs damages than the fault of that defen- from the other defendant the latter’s half. dant is of total of the the fault of plaintiff the majority The simply ignored has this long- majority 54. argues 23) The (majority op. fh. that It should also noted that under the UCFA approach the Apportionment UCFA and Apportionment and Liability only the of fault of of Liability substantively is parties inconsistent with (and that of to the action those who have settled this dissent because under the former realloca- plaintiff) with the is considered. The effect of tion occurs if and to recovery the extent that this is that the nonparties of is allocated in (or more) is unenforceable one original of multi- judgment plaintiff between the and ple however, analysis, defendants. This ignores precisely each defendant as this dissent would. the fact that under the Apportionment and UCFA plaintiff If the wants an party, actor to be a it is Liability a defendant is made ultimately never his of burden to see to it that that actor is before the responsible negligent plaintiff to the greater for subject jurisdiction, court and to its and if the amount provide than this dissent would plaintiff this, unless does not do then he alone is his actually can any defendant collect excess agent own any collection as to of that over that from actor, amount co-defendants under the just all as under this dissent. Thus, judgment. same necessarily it follows tihat only meaningful course, difference between the 55. Of proposal, under this dissent's as UCFA Apportionment and Liability, on applied the one to the plaintiff instant case where of Coats hand, dissent, other, and this on the is twenty percent in the that is negligent, twenty Penrod is initially former a assigned defendant is duty percent negligent, sixty percent negli- MIS is trying of judgment collect under gent, from (and Coats would be entitled to recover defendants; so, other if he retain) is able to do he in as fifty percent much as of his total dam- passes along (or effect plaintiff ages Penrod, he retains from (or whether or not MIS was for himself became) is allowed insolvent, to retain total, and Penrod would be at him) any from excess over the expense maximum this sole risk and to collect contribution from for; dissent would hold him liable if he is not for paid MIS amounts Penrod in excess of twenty so, plaintiff's able to do percent from him is of damages. Coats’ total Similarly, (but proportionately diminished below (and Coats would retain) be entitled to recover as dissent). maximum by as calculated this seventy-fivepercent much as of his total words, In other only meaningful, MIS, bottom-line (or from came) whether or not Penrod was be- difference UCFA-Apportionment between the insolvent, total, and MIS would be at of sole Liability approach and that of this dissent is that expense risk to collect contribution from defendant, under the former the as to amounts in paid Penrod percent amounts MIS sixty in excess of excess of his maximum as calculated Coats, of damages. Coats’ total howev- dissent, this plaintiff’s er, is made the collection would in no event be able to collect from agent amounts owed de- other together Penrod and MIS more in total than fendants. eighty percent damages. of all his such in in requirement law.56 tional maritime general standing rule Reliable Trans in The Court both stances. Lines, in the General Marine Moragne v. States Role Judicial fer 1772, L.Ed.2d Inc., Law 375, Maritime 90 S.Ct. 398 U.S. long-standing (1970), its own overruled Edmonds, said Supreme Court As the pre frequently enforced consistently and great law to judge-made “[a]dmiralty is law from set But, departure such cedents. at 99 S.Ct. at Id. 443 U.S. extent.” precedent re clearly established tled and Judiciary traditional- Indeed, has “the 2756. in this approach taken adopt the quired to formulating flexible the lead ly taken Nevertheless, appropriate dissent. Reliable maritime.” in the law remedies fair Supreme in Reliable that note Transfer at 1715. 95 S.Ct. at Transfer, rule it with continue Court declined yet observed And, Supreme Court as inequi “unnecessarily crude and considered statute, a relevant “Absent occasion: another “problems lesser table,” rule’s despite that developed law, maritime general 408, 95 application.” Id. at “facile proof’ and mari- ... applies judiciary, departed 1714. Reliable Transfer com- traditional amalgam of is an law time “has continued a settled rule rules, those rules, mon-law modifications rather country by sheer inertia prevail in River East rules.” newly created Id. any merit.” intrinsic Delaval, than reason Corp. v. Transamerica Steamship at 1715. 95 S.Ct. 864-865, 106 S.Ct. Inc., (1986) add- (emphasis here, 90 L.Ed.2d nor statute is no relevant There ed). reject rule, and should we clearly established doctrinal re- on abstract approach based an River, “jointed] Court In East merit. intrinsic rather than inertia flex and prod- strict adopting Appeals” Courts rejected is one approach And, majority’s the tradi- away doing liability, thus ucts $12,500 three of them and all severally liable for Apportionment Liabili- recognized that isIt severally liable jointly and together also approach to reallocation UCFA ty prefers the however, previously $37,500. Simeon, point, real principally dissent of this writer's (Mechanics Judgment explained the text stated calculation that the method basis on the Allocation), do not formulas Damages (calculate defendant's each dissent Simeon in the all; for the at it suffices percentage really used comparing his need liability by maximum negligent fault; merely provide that the judgment to percentage subtract plaintiff's of of fault any from no plain- more liability event recover plaintiff from maximum defendant’s first which the amount being than second the defendants recovery, result one of maximum tiff’s damages plaintiff's total de- liability; second of equals subtract the fraction several defendant’s percentage of plaintiff's max- defendant's liability represented from maximum fendant’s by the total being at divided first defendant's found fault recovery, fault of all total result imum plain- liability percentage of first and said liability; the several add of that defendant’s several at all found sub- fault of and the total percentage of that of defendant second tiff’s and defendant accomplished. easily simple recov- plaintiff's maximum and That is the total fault. tract liability being several and ery, the result Liability also notes Apportionment of defendants) there when does not work two of the plaintiff requires "the approach dissent Simeon Apportionment defendants. or more are three of against judgment of the pursue enforcement Liability Apportionment Liability at 254-55. of the full to recover in order defendants all solvent amount,” defen- plaintiff three example of gives expressly char not does but id. at Id. percent at fault. twenty-five each dants previously ob As as undesirable. acterize simpli- criticism an accurate this is While provide Liability served, does Apportionment of Si- in the computation set forth method fied negligent (including to the for "reallocation” designed basically dissent—which meon equitable share any defendant's plaintiff) of set formulas situations—the in two-defendant use known it is then judgment when original adequately cover appendix hereto out or immune insolvent is such defendant in- more) For (and defendant situations. three Liability does And, Apportionment like. (d) appendix, exam- stance, paragraph 1 the above-discussed any awareness exhibit judg- form of appropriate ple 2 calculates admiralty practice under long-standing joint and several (using the several ment at fault multiple defendants plain- format) where the for an instance explained severally, as initially against them is in, twenty-five defendants of three and each tiff (S.D.N.Y. Hudson, F. e.g., The damages are plaintiff's total percent at 1883). $100,000, defendants namely the three each by four-fifths of the states. To borrow from with the posed: issue here how does admiral- Talbot, Pope admiralty & should rather em- ty compare fault when plaintiff both the ploy a “fairer and more flexible rule which a defendant fault and so also is at least allows such consideration of contributory (whether independent one other actor or not negligence in mitigation damages jus- defendant). likewise a majority abjures requires.” tice Id. at any meaningful posi- normative defense of its added). (emphasis Justice, us, it seems to tion, and the best authority it can up come requires that negligent defendant bear Joia, with is a 1987 Jones Act case that greater no part negligent —or treats the matter as lesser — res nova wrongly plaintiffs damages total than that fraction assumes that the alternative to its result which such negligence defendant’s is of the pure several that assigns all the total them; of the two of and that party’s third plaintiff. An ap- there is charge reason to negligent proach such as that taken Judge Friendly all, defendant with charging negli- while flatly Kinsman —which is inconsistent gent plaintiff none, of the fault of an with that of the majority simply accom- — independent party, just third as there is no plishes just result, position as does the reason charge all party such third fault to this dissent. the negligent plaintiff. majority repeats “joint liability” several as if it were some Conclusion magical kind of mantra or totem which both all dangers banishes analysis rational For reasons, foregoing I respectfully dispenses with the authority need for dealing dissent.

Appendix Formula for Calculation of Liability Several of Each Defendant and Liability Joint of Defendants guilty Three defendants and each of causative fault (a) VARIABLES

=Q Plaintiffs total = Plaintiffs % of total fault = DI, D2, D3 Ml, M2, M3 each defendant’s % of total fault = each defendant’s maximum liability =

Yl, Y2, Y3 each defendant’s =

(b) FORMULAS = Q

Ml DI

D1 X+

=M2 Q D2

D2 + X

=M3 Q D3

D3 + X I N J-H I N)

P-Í I N CO * - = - - - [(1.00 X)

Z Q] Y1 Y2 Y3

(c) EXAMPLE 1 = $100,000

Q

1175 CO ^[03] 1—i El II II II o ^[03] o tH o CO ^ o * = = $66,667 (2/3) $100,000 = $100,000 = 20 Q DI

Ml 20+10 X D1 + * = = $75,000 (3/4) = $100,000 $100,000 = 30 Q D2

M2 30+10 + X D2 * = = $80,000 (4/5) = $100,000 $100,000 = 40 Q D3

M3 40+10 X+D3 DO

H CO t—1 ^{[03] [00]} i i i tsj n tq 0505 05 00O -qÜTO O o 'O ^[05] O O -q I I I ÍS1 CSJ ÍSJ - * - - - = Y2 Y3 X) Y1 Q] [(1.00 Z - * - - - = Y2 Y3 .10) $100,000] Y1 [(1.00 (.90 - * - - = Y3 Y2 Y1 Z - - - - - Z) - Z) ($80,000 Z) ($75,000 = ($66,667 $90,000 Z - = $131,667 Z 3Z = $131,667 2Z = $65,833 Z - = = $65,833 $66,667 $834 $9,167 Y1 - = = $65,833 $75,000 Y2 - = = $14,167 $65,833 $80,000 Y3 $90,000 composed recovery of a total provides thus

following: Total Recovery D3 D2 D1 Joint Several Liability Liability $ 65,833 834 COCO trizo 'bo'í-A ^[05] -q m- n h-‘ oo'Í-a COCO ^[05] -q tO 'co'í—*(cid:127) ^[0500] COCO $90,001 $80,000 $75,000 $66,667 Total (d) EXAMPLE T—I CO II oa II II II II o o ooo * = = $50,000 $100,000 (1/2) = $100,000 = 25 Q DI

Ml 25+25 + X D1 as Ml the same are calculated andM2 M3 - - = = $50,000 Z Z Ml

Y1 Y1 as the same calculated and Y3 Y2 - * - - - = Y3 X) Y2 Q] Y1 [(1.00 N - * - - - Y3 = Y2 Y1 $100,000] .25) [(1.00 CSJ - - - = (.75 N - - - - - - Z) = ($50,000 $75,000 N 1176 - = $75,000 Z 3Z = $75,000

2Z = $37,500 Z „(cid:127) 1 »/*N f—i LO oo

K} H o o oo *<(cid:127)> CO cn oo oí i" /“> tH IO oo o oo CO cn oo ~o oí — I judgment provides thus plaintiff a recovery $75,000 total composed of the following: Total

D1 D2 Recovery Liability $12,500 Several $12,500 $37,500 lO oo oí 1-H Liability 37,500 Joint 37,500 37,500 CO LO oo $50,000 Total $50,000 $50,000 $75,000 (e) EXAMPLE FOUR DEFENDANTS = $100,000 Q

X =20 =D1 =D2 =D3 =D4 = * = = Ml DI = $100,000 (1/2) Q $100,000 $50,000 D1 + X 20+20 M2, M3 and M4 are calculated the same Ml - = - = Y1 $50,000 Ml Z Z Y2, Y3, and Y4 are calculated the same Y1 1I I I II I N oo ¡X kHco hH I I II I oo Csl KÍ o o 1 . II I CsJ $ O -ee- £3 , I i II N O o o o OO tsi m ooo N n e/9 o o OO CSJ lOo ooo cT N I II N r*H CR II

CO o C/3 II - = = $50,000 Y1 $40,000 $10,000 - = = $50,000 Y2 $40,000 $10,000 - = = $50,000 $40,000 Y3 $10,000 - = = provides thus plaintiff a $80,000 total composed of the

following: Total D2 D3 Recovery D4 U

... l>-L Liability Several $10,000 o oo © $10,000 $10,000 I—1 o o oo (cid:127)w Liability Joint 40,000 o oo © 40,000 40,000 o © oo $50,000 Total $50,000 $50,000 $50,000 $80,000

1177 (f) DEFENDANTS TWO EXAMPLE = $100,000 Q

X =20 =D1 20 =D2 * = = nonon ifiinn.nnn .teo.ono n/2) = mi = m o D1 + X 20+20 * = = $100,000 (3/4) $100,000 $75,000 =

=M2 D2 X D2 + 60+20

yi - - 7, = = mi ten nnn z - - = = $75,000 Z Y2 Z M2 * - - - X) yi = z m.oo oi Y2 * - - - .20) (1.00 $100.0001 =Z r Yl Y2 _ _ _ * v < nn nnro vt V9 - - - - = Z) Z) ’($50,000 ($75,000 $80,000

Z - = $45,000 Z 2Z = $45,000 Z - = = $5,000 $50,000 $45,000

Yl - = = $30,000 $75,000 $45,000 Y2 $80,000, composed of the provides plaintiff thus a total following: Total Recovery D2 DI $30,000 $35,000 5,000 Liability Several $ 45,000 45,000 45,000 Liability Joint $80,000 $75,000 $50,000 Total 2. SPECIAL INSTANCES fault, the

(a) guilty of causative (including plaintiff) many parties as four With as distributions, negative produce a will, fault in certain instances unusual formula (where many parties, as five as liability particular defendant number for several negative fault, many several two such plaintiff, guilty are of causative including distributions). in certain instances unusual liability possible numbers formula, resulting in lowered instances, steps must be added such additional joint component an additional joint liability particular defendant for that (if negative with initial two there are defendants liability remaining defendants components of numbers, additional there will two several defendants). necessary steps are set out below. The additional other (b) showing steps steps one under initial where Formula for three defendants additional negative number is a defendant’s = $100,000 Q

X =30 =D1 =D2 =D3 * = = = $50,000 = (1/2) $100,000 $100,000 Q Ml DI D1 + X +30 * = = = Q

M2 D2 $100,000 (1/2) $100,000 $50,000 D2 + X +30 * = = = Q

M3 = $100,000 D3 (1/4) $100,000 $25,000 +D3 X 10 + 30 - - = Yl $50,000 Z Ml Z - - =

Y2 $50,000 M2 Z Z - - = $25,000 Y3 Z M3 Z * - - - = - [(1.00 X) Z Q] Yl Y2 Y3 * - - - - - [(1.00 .30) Z $100,000] Yl Y2 Y3 * - - - = (.70 $100,000) Z Yl Y2 Y3 - - = - - - - $70,000 ($50,000 Z) Z ($50,000 Z) ($25,000 Z) - = $55,000 Z 3Z = $55,000 = $27,500 2Z Z - = = $50,000 $27,500 Yl $22,500 - = = $50,000 $27,500 Y2 $22,500 - = = $25,000 $27,500 Y3 -$2,500 < 0, CAVEAT: If Y3 is then reduce the Z M3; value of to that of then add Y3 to the Yl;

value of then add Y2; Y3 to the value of then multiply Y3 -2 and set that J; equal number then set equal Y3 to zero. = Z DI, D2, Joint and D3 = J Joint of DI D2 = STEP Z1: M3 = $25,000 Z = STEP 2: Yl Yl + Y3 = $20,000 Yl = STEP 3: Y2 Y2 + Y3 = $20,000 Y2 * = STEP J -2 4: Y3 = $5,000 J = STEP 5: Y3

Y3 =0 provides thus $70,000 total composed of the following: Total

DI D2 Recovery D3 Liability Several $20,000 $20,000 $40,000 -0- $ Joint 5,000 D1 & D2 5,000 5,000 -0- DI, 25,000 Joint D2 & D3 25,000 25,000 25,000 Total $50,000 $50,000 $25,000 $70,000 (c) showing Formula for four steps defendants steps additional when under initial one negative figure defendant’s several is a = $100,000 Q

X =25 = DI

<N| Cq LO (M O CO ^ LO $50,000

Ml $50,000 M2 $44,444.44 M3 $16,666.67 M4

$28,703.70 $21,296.30

Y1 $21,296.30 Y2 $15,740.74 Y3 -$12,037.03 Y4 M4; Y4 then add 0,< of Z to that of the value 1/2 reduce If Y4 is then CAVEAT: Y3; Y4 Y4 add Y2; Y4 then add Y4 then 1/2 Yl; then add 1/2 1/2 -1; equal Y4 to zero. then set J; multiply J equal value set = D3, D2, Dl, and D4 Joint

N = D2, Dl, and D3 liability of Joint t—i =Z M4 1: STEP = $16,666.67 Z = + Y1 2: Y1 STEP 1/2Y4 = $15,277.78

Y1 = + Y2 Y2 3: STEP 1/2Y4 = $15,277.78 Y2 = + Y3 4: Y3 STEP 1/2Y4 = $9,722.22 Y3 = + Y4 5: J STEP 1/2Y4 = -$18,055.55 J * = -1 J 6: J STEP = $18,055.55 J =Y4 7: STEP =0 Y4 $75,000 composed of recovery of plaintiff a total provides the thus following: Total Recovery D4 D3 D2

Dl $40,277.78 9,722.22 -O- $15,277.78 $15,277.78 $ Liab’y Several 16,666.67 16,666.67 16,666.67 666.67 16,666.67 All D’s Joint 18,055.56 18,055.55 -O- 18,055.55 18,055.55 D2, Dl, D3 Jnt $75,000.00 $16,666.67 $44,444.44 $50,000.00 $50,000.00 Total steps steps showing initial under when additional (d) for four defendants Formula negative number is a two defendants of each of = $100,000 Q =30 X =Dl =D2 = 6 D3 = 4 D4 = $40,000

Ml = $57,142.86 M2 = $16,666.67 = $11,764.70

M3 M4 = $18,524.75

Z =Yl = $38,618.11 Y2 —= $1,858.08 Y3 -= $6,760.05 Y4 < 0, If Y4 CAVEAT: Y3 and then M4; reduce the value of Z to that of then J; subtract Z from equal M3 and set that value then add Y3 and Y4 to the value of Yl; Y2; then add Y4 Y3 and to the value of zero; then set Y3 and Y4 equal to then subtract Yl and Z and J from Ml and set that equal value to K. = Dl, D2, D3, Joint and D4 N = DI, Joint and D3 1-5 = Joint of DI and D2 M = 1: Z STEP M4 = $11,764.70 Z - = 2: STEP J M3 Z = $4,901.97 J = STEP 3: Yl Yl + Y3 + Y4 = $12,857.12 Yl = STEP 4: Y2 Y2 + Y3 + Y4 = $30,000 Y2 = Y3,4 STEP 5: Y3 =0

Y4 =0 - - - = STEP 6: K Ml Yl Z J = $10,476.21 K provides thus $70,000 a total recovery of composed of the following: Total

D1 D2 Recovery D3 D4 $12,857.12 Liab’y $30,000.00 Several $42,857.12 -0- -0- $ $ 11,764.70 Joint All 11,764.70 D’s 11,764.70 11,764.70 11,764.70 D1,D2,D3 4,901.97 Joint 4,901.97 4,901.97 4,901.97 -0- 10,476.21 Jnt D1 D2 10,476.21 & 10,476.21 -0- -0- $40,000.00 Total $57,142.88 $16,666.67 $11,764.70 $70,000.00 notes that the approach each Simeon component dissent defendant’s re- several quires plaintiff 'the one pursue joint satisfaction of component, enforcement will need judgment to know all the several solvent defendants in each de- order solvent Furthermore, fendant. to recover the full Judge each amount.'" solvent defendant Garwood will does want dispute assessment, to know the amount that solely it is merely but for, i.e., liable its Apportionment component, notes that several Liability so that it "does not overpay does not expressly plaintiff pre-contri- at this characterize this as undesirable.” stage. bution dissent, present In his Judge us, Garwood tells Similarly, if the fully has recovered however, always that "it will suffice simply before one of the defendants becomes insolvent provide judgment in the a maximum amount (i.e., post-collection, pre-contribution), but particular collected from each paid defendant joint component will defendant,” and he implies that reference to the want to know the insolvent defendant's several components, complex and to the formulas that component such that it can be recovered from form the calculating basis for components, these overpaid plaintiff. Otherwise the risk of non- unnecessary. collection is disproportionately so) (vastly borne Judge however, position, Garwood's new by the paid joint defendant that component. simply (common incorrect in a situation in mari- In summary, there is way no to avoid the personal cases) time injury where there are more computation components than two situation, defendants. In this there is each liability, defendant’s if consequently, problem insolvency or uncollectibility, then way there is no to avoid complexity specifying only a maximum amount Judge formulas included in Garwood's dissent.

Notes

notes earliest for contribution priate provisions question. address wholly adequate.24 will be supra) 22 and First, background. some Maritime Law General Catharine, [17 How.] In The collided, (1854), 15 L.Ed. 233 two vessels always majority that it has concludes The Supreme being at fault. The Court each clearly rule of United been a established total be divided held that loss should in general maritime law that our States allowing party equally, thus a to recover involving the three ves- hypothetical collision only negligence, albeit half of despite its own sels, equally at fault if all three were its loss. The Court stated: two-thirds of its boat could recover crew necessary “... becomes to settle the [I]t shrimper though damages from the even of a case where both rule at fault than the shrimper was no more crew are in fault. vessels however, majori- surprisingly, boat. Not ty opinion holding so Supreme believe, no Court cites question, has never until The we stating, only general language in distinctly or some this court for now come before decisions, prevails rule that in the court decision. The few scattered lower Dl, 13) mistakenly (majority op. contribution is not collectible from majority fn. because 24. The (who insolvent) provided not D3 and is for judgment simple suggests that a form $25,000). (as paid judgment as to D2 D2 has (limiting negligent plaintiff's suggested recov- by judg- both of But this is fault shared forms ery any from one defendant fraction of Importantly, it is a fault in the form ment. of also by plaintiff's damages represented that defen- judgment majority espouses, namely an percentage of the total of all dant's $75,000 against plaintiff award to the of all three parties total that defen- at fault divided of severally, jointly provision defendants percentages plaintiff’s respective dant's and the any paying for contribution in favor of defendant parties) produces all an of the total fault of $25,000 against any paying more than less. produced by ultimately that different result from situation, plaintiff may that also choose to collect algebraic (providing for some several formula $50,000 $25,000 D2, from Dl and from and Dl liability) joint in situations and some and several (or more) then in the exact same fix. To the extent the defendants, only involving one of three majority understands the matter —and it is simply wrong. Take whom is insolvent. That is simply pot clear that it does—it is means $100,000 sustaining plaintiff, calling the case total of the kettle black. course, any damages, who is at three defen- Of case it could be further 25% D2, provided any (Dl, D3), that to the extent defendant was whom is likewise dants each of ($25,000 pay equitable unable to its full share simple judgment here at fault. The form 25% example) our above three-defendant the level plaintiff provide would a total re- recommended remaining which the two defendants became ob- $50,000 $75,000, covery than not more ligated for or entitled to contribution would in- any be collected from one defen- which could (here crease their relative share Dl 50% dant, any pay- provision and with defendant each, fault) they equally and D2 $25,000 ing subject would be to contri- less than deficiency, example pay so that in the if D3 could any paying more than bution from defendant $25,000 share, equitable none of his then Dl that. The formulated in terms of both (who $50,000) $12,- paid plaintiff could collect similarly would award several and $25,000 (who paid 500 in contribution from D2 $75,000, plaintiff composed a total $12,500 exposed but is to an additional in contri- $12,500 each of the three liability by being pur- D3). bution pose allocated for this $37,500 plus joint and several liabili- defendants $25,000 uncollectible from 50% (see 1(d), ty together appendix par. three approach merits or an The demerits of such 2), provide any example likewise and would vary judg- contribution do as between $25,000 paying would be ($75,000 defendant less than espoused by majority ment subject any pay- from defendant plaintiff jointly contribution all three defendants ing severally) espoused the maxi- more than that. In each instance and either of the forms ($75,000 ($75,- plaintiff dissent but not more mum amount can recover in total $50,000 defendant, $12,- any 000) than from one and the maximum he can recover from severally plus each three 500 from $37,500 defendants ($50,000) one defendant are the same. jointly). from all three (as posits majority where the situation majority's example negligent plaintiff of a nothing judgment) eventuates after is collectible defendants, negligent being three one D3, plaintiff might insolvent, from so then choose to simply herring, a red whether in its $25,000 $50,000 prob- collect D2 plain from Dl and from vanilla form or with its contribution (instead $37,500 each), overlay. which is unfair to lem

Case Details

Case Name: Coats v. Penrod Drilling Corp.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 8, 1995

Citation: 61 F.3d 1113

Docket Number: 92-07378

Court Abbreviation: 5th Cir.