IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-7378

_____________________

EARL WAYNE COATS,

Plaintiff-Appellee,

Cross-Appellant,

v.

PENROD DRILLING CORPORATION,

ET AL.,

Defendants,

PENROD DRILLING CORPORATION, and

HYTORC, M.E.,

Defendants-Appellants,

Cross-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________________________________________________

(August 8, 1995)

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,

DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,

DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.

KING and HIGGINBOTHAM, Circuit Judges:

For more than a century, general maritime law has held joint

tortfeasors jointly and severally liable for all of the plaintiff's

damages suffered at their hand. Under that rule, the risk of

noncollection is borne by the defendants. The plaintiff can

collect his entire judgment from a single defendant, leaving to the

defendants allocation of fault among themselves. We reheard this
2

case en banc to consider the contention that we should adopt a new

rule of "modified joint liability." This proposal would limit each

joint tortfeasor's maximum liability to the amount for which that

tortfeasor would have been liable to the plaintiff if only the

negligence of that tortfeasor and the negligence of the plaintiff

were compared. The new rule would, for the first time in maritime

history, shift the risk of noncollection to the plaintiff. It

would allocate the risk of noncollection of an admiralty judgment

among the contributorily-negligent plaintiff and the defendants in

proportion to their respective faults. Because replacing joint and

several liability in the general maritime law with modified joint

liability would be neither authorized nor prudent, we affirm the

judgment of the district court.

I. FACTS AND PROCEDURAL BACKGROUND

The facts and procedural history of this case were set forth

in the panel opinion, Coats v. Penrod Drilling Corp., 5 F.3d 877

(5th Cir. 1993), cert. denied, 114 S. Ct. 1303, reh'g en banc

granted, 20 F.3d 614 (5th Cir. 1994), and only those portions

necessary to the issues discussed herein are restated.

Maritime Industrial Services is a corporation organized under

the laws of Ras Al-Khaimah, United Arab Emirates with branch

offices in Dubai and Abu Dhabi. It performs repair and maintenance

services for oilfield and marine vessels, and its employees are all

expatriates, primarily from India, Pakistan, and the United States.

MIS uses Lee's Materials Services, Inc. in Houston, Texas to

perform various services in the United States. Through Lee's, MIS
3

advertised its job openings in the Houston Chronicle (Texas),

Lafayette Advertiser (Louisiana), and Mobile Register (Alabama). 

In 1987, David Shelton, manager of the Hytorc Division of MIS,

travelled from the United Arab Emirates to Mississippi on vacation

and to interview prospective employees for MIS. During his trip,

Shelton held a meeting in Laurel, Mississippi that was attended by

several young men, including the plaintiff, Earl Wayne Coats.

Shelton explained that he was soliciting employees to operate MIS

equipment on certain offshore vessels. At the meeting, Shelton

offered a job to Coats, and Coats accepted. Their agreement

included thirty days per year of paid vacation with airfare back to

Mississippi. MIS also promised to pay for Coats' return to

Mississippi at the termination of his employment. The term of

Coats' employment was indefinite. Coats obtained an updated

passport as instructed by Shelton, and MIS, through Lee's, sent him

a plane ticket to Dubai. Coats arrived in the United Arab Emirates

and started work on December 1, 1987. 

While working for MIS, Coats lived on shore and worked on

various jack-up rigs owned by different customers of MIS. The

majority of Coats' work consisted of operating a hydraulically

powered torque wrench used to loosen and tighten large nuts and

bolts. During Coats' employment with MIS, Penrod Drilling

Corporation, a Delaware corporation with its principal place of

business in Dallas, Texas, contracted for MIS to perform pressure

testing on Penrod's Rig 69. The pressure testing was necessary to

prepare the rig for its next drilling operation. At the time, Rig
 

1The district court granted Lee's motion for summary

judgment and dismissed it from the case.

4

69, a jack-up drilling rig, was located in the Port of Mina Saqr in

the territorial waters of the United Arab Emirates. Although it

was twenty feet from shore in forty feet of water and connected to

land by a gangway, it was prepared to sail and did so three days

after the accident. Rig 69 flies the United States flag, and its

home port is New Orleans, Louisiana. Penrod maintained a local

office in the United Arab Emirates to assist in the operation of

Rig 69.

MIS assigned Coats to perform the pressure testing for Penrod.

Coats was inexperienced at this task and had to ask for assistance

from Penrod personnel. All safety procedures were prepared to meet

standards of the United States. As Coats was working aboard Rig

69, Penrod's bullplug failed at a pressure less than it was rated

to withstand, causing the fluid under pressure to erupt. The

eruption knocked Coats down, resulting in a severe and disabling

injury to his knee. After the accident, MIS flew Coats to

Hattiesburg, Mississippi for treatment and started paying his

medical expenses. Most of these payments were made through Lee's.

Meanwhile, MIS filled Coats' job with Chris Stennett, another

Mississippi resident who attended Shelton's meeting in Laurel.

On April 10, 1989, Coats sued Penrod, MIS, and Lee's1 in the

Southern District of Mississippi. The complaint asserted federal

jurisdiction based on diversity of citizenship and admiralty and

alleges, inter alia, negligence on the part of Penrod and MIS, the
 

2The court also dismissed Coats' claims under the Longshore

and Harbor Workers' Compensation Act because Coats' injuries did

not occur "upon navigable waters of the United States." 33

U.S.C. § 905(b). As Judge Garwood correctly notes in note 2 of

his dissent, the viability of Sieracki seaman status, questioned

by Judge DeMoss in his dissent, is not before us.

5

unseaworthiness of Rig 69, and entitlement to maintenance and cure

from MIS under the Jones Act. Soon thereafter, MIS terminated its

payment of benefits to Coats. Coats then amended his complaint

against MIS to seek compensatory and punitive damages under the

general maritime law for wrongful termination of maintenance and

cure and to allege wrongful termination of health insurance

benefits under ERISA. Penrod cross-claimed against MIS for

indemnity and contribution under the general maritime law.

Before trial, the district court issued a number of orders in

response to motions filed by the parties. The court ruled that MIS

had sufficient contacts with Mississippi to justify the assertion

of personal jurisdiction and that it would apply United States law,

rather than the law of the United Arab Emirates, to Coats' personal

injury claims. MIS was estimated to be doing over one million

dollars a year of business in Texas at the time of the accident.

Under American law, the court determined that Coats was not a Jones

Act seaman and was not entitled to maintenance and cure (and

associated damages), but the court found that Coats qualified as a

Sieracki seaman with the attending right to sue under the warranty

of seaworthiness. See Seas Shipping Co. v. Sieracki, 328 U.S. 85

(1946).2 The court also declined to dismiss the case under the

doctrine of forum non conveniens.
6

The case proceeded to trial on Coats' claims against Penrod

for negligence and unseaworthiness and against MIS for negligence,

wrongful termination of maintenance and cure, and wrongful

termination of benefits under ERISA. After the court directed a

verdict against Coats on his claim for punitive damages based on

MIS' termination of maintenance and cure, the jury returned a

verdict for Coats, assessing damages of $925,000 and assigning 20%

fault to Coats, 20% to Penrod, and 60% to MIS. The court reduced

the award by Coats' comparative fault to $740,000 and entered

judgment against Penrod and MIS jointly and severally. The court

also awarded costs to Coats in the amount of $7,889.04. In

addition, the court awarded Coats $26,524.82 in penalties against

MIS alone for its wrongful nonpayment of benefits as required by

ERISA. MIS did not contest on appeal its liability under ERISA for

benefits payable to Coats under his contract of employment. All

parties appealed.

In this opinion we address only the choice of law issue and

Penrod's proposal for modified joint liability. The portions of

the panel opinion addressing personal jurisdiction over MIS (Part

II), see Coats, 5 F.3d at 881-85; forum non conveniens (Part IV),

see id. at 889; and Coats' cross-appeal (Part VI), see id. at 890-

92, are reinstated.

II. CHOICE OF LAW

A. Subject Matter Jurisdiction in Admiralty

Turning to the district court's application of United States

law, MIS first argues that the choice of law is between the law of
 

3Mississippi follows the Restatement (Second) approach which

requires application of the law of the place of injury, absent a

more significant relationship with another state. Mitchell v.

Craft, 211 So. 2d 509, 515 (Miss. 1968). 

 

4Penrod has not joined MIS in this argument, apparently

because Penrod's claim for contribution or indemnity against MIS

is based on general maritime law. If the law of the United Arab

Emirates is not applicable, Penrod may prefer to have general

maritime law apply rather than Mississippi law.

7

the United Arab Emirates and Mississippi law, rather than the

general maritime law. This conclusion rests on the contention that

the district court lacked subject matter jurisdiction in admiralty,

and therefore, the only basis for federal jurisdiction is

diversity. If so, the district court should have applied

Mississippi's choice of law rules in deciding between foreign and

state law. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313

U.S. 487, 496 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938).3 MIS asserts that Mississippi would apply the law of the

United Arab Emirates to this case.4

MIS argues that the activity giving rise to Coats' accident

does not have a sufficient connection to traditional maritime

activity to support admiralty tort jurisdiction. See Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co., 115 S. Ct. 1043,

1048 (1995); Sisson v. Ruby, 497 U.S. 358, 365 (1990); Foremost

Ins. Co. v. Richardson, 457 U.S. 668, 674 (1982); Executive Jet

Aviation, Inc. v. Cleveland, 409 U.S. 249, 268 (1972). While this

circuit formerly applied a multi-factor approach to determine

whether there was a substantial relationship to traditional

maritime activity, see, e.g., Kelly v. Smith, 485 F.2d 520, 525
8

(5th Cir. 1973), cert. denied, 416 U.S. 969 (1974), that approach

was rejected by the Supreme Court in Grubart. According to

Grubart, the "connection" inquiry for admiralty tort jurisdiction

involves two inquiries. A court must first "assess the general

features of the type of incident involved to determine whether the

incident has a potentially disruptive impact on maritime commerce."

Grubart, 115 S. Ct. at 1048 (citations omitted) (internal

quotations omitted). Second, a court must determine "whether the

general character of the activity giving rise to the incident shows

a substantial relationship to traditional maritime activity." Id.

(citations omitted) (internal quotations omitted). For this second

inquiry, we ask "whether a tortfeasor's activity, commercial or

noncommercial, on navigable waters is so closely related to

activity traditionally subject to admiralty law that the reasons

for applying special admiralty rules would apply in the case at

hand." Id. at 1051.

MIS performs repair and maintenance services for oilfield and

marine vessels. Penrod is engaged in offshore oil drilling.

Penrod contracted with MIS because Rig 69 needed pressure testing

before its next drilling operation. As to the first "connection"

inquiry, the incident can be described in general terms as an

injury to a worker while repairing and maintaining a jack-up rig in

navigable waters. Without a doubt, worker injuries, particularly

to those involved in repair and maintenance, can have a disruptive

impact on maritime commerce by stalling or delaying the primary

activity of the vessel. As to the second inquiry, the repair and
9

maintenance of a jack-up drilling rig on navigable waters is

certainly a traditional maritime activity. Moreover, we note that

this tort occurred aboard a vessel on navigable waters. Providing

compensation for shipboard injuries is a traditional function of

the admiralty laws. See Sisson, 497 U.S. at 368-75 (Scalia, J.,

concurring) (arguing that all vessel-related torts fall within the

admiralty jurisdiction). Thus, the activity giving rise to Coats'

accident has a sufficient connection to traditional maritime

activity to support exercise of our admiralty tort jurisdiction.

MIS' reliance on Sohyde Drilling & Marine Co. v. Coastal Gas

Producing Co., 644 F.2d 1132 (5th Cir. 1981), is misplaced. There,

we applied the Kelly factors and concluded that admiralty

jurisdiction was lacking in a suit for property damage arising from

the blowout of a high-pressure gas well located in a dead-end canal

slip in Louisiana. Coastal, the operator of the well, had hired

Sohyde to perform workover operations to correct a loss of

production. While denying jurisdiction over the property damage at

issue, the court remarked that claims for personal injury suffered

on navigable waters would certainly fall within admiralty. Id. at

1136-37. Therefore, Sohyde actually supports the exercise of

admiralty jurisdiction in this case, one involving only personal

injury. MIS' arguments are without merit.

B. The Lauritzen-Rhoditis Factors

The Lauritzen-Rhoditis factors govern the choice of law: (1)

the place of the wrongful act; (2) the law of the flag; (3) the

allegiance or domicile of the injured worker; (4) the allegiance of
10

the defendant shipowner; (5) the place of the contract; (6) the

inaccessibility of the foreign forum; (7) the law of the forum; and

(8) the shipowner's base of operations. Hellenic Lines, Ltd. v.

Rhoditis, 398 U.S. 306, 308-09 (1970); Lauritzen v. Larsen, 345

U.S. 571, 583-91 (1953). "The test is not a mechanical one in

which the court simply counts the relevant contacts; instead, the

significance of each factor must be considered within the

particular context of the claim and the national interest that

might be served by the application of United States law." Fogleman

v. Aramco, 920 F.2d 278, 282 (5th Cir. 1991). "The significance of

each factor in a nontraditional maritime context like offshore oil

production may vary from that in the traditional shipping context

in which the Lauritzen-Rhoditis test arose." Id.; see also Bailey

v. Dolphin Int'l, Inc., 697 F.2d 1268, 1275 (5th Cir. 1983)

(involving a jack-up drilling rig); Cuevas v. Reading & Bates

Corp., 770 F.2d 1371 (5th Cir. 1985) (same); Jack L. Albritton,

Choice of Law in a Maritime Personal Injury Setting: The Domestic

Jurisprudence, 43 La. L. Rev. 879 (1983) (discussing the difference

between "bluewater" and "brownwater" cases). The place of the

wrongful act, the allegiance or domicile of the injured, and the

place of the contract, which are less important in the shipping

context, are more significant in nontraditional cases such as this

one. Chiazor v. Transworld Drilling Co., 648 F.2d 1015, 1019 (5th

Cir. 1981). Our review of the district court's decision to apply

United States law is de novo. See, e.g., Fogleman, 920 F.2d at

282.
11

The first factor is the place of the wrongful act. Coats'

accident occurred in the territorial waters of the United Arab

Emirates, and because this is a nontraditional maritime case, this

factor is entitled to considerable weight.

The second factor is the law of the flag. "The law of the

flag has traditionally been of cardinal importance in determining

the law applicable to maritime cases." Id. (citing Lauritzen, 345

U.S. at 583-84). MIS is not a shipowner and therefore this factor

has no specific application to it. Penrod's Rig 69 flew the United

States flag. Penrod argues that the flag of the vessel in this

case is fortuitous, because Coats was assigned to six different

drilling rigs with different owners and allegiances. The record

indicates that in addition to the PENROD 69, Coats worked aboard

the MARESK VICTORY, the TRIDENT III, the TRANSOCEAN V, the W.T.

ADAMS, and the SEDCO 91. Penrod, however, does not say what flag

each of these vessels flew and we are unable to find this

information in the record. We cannot conclude that Coats' injury

aboard a United States flag vessel, as opposed to a vessel

registered in another country, was fortuitous without knowing what

flags these other rigs flew.

The third factor is the allegiance or domicile of the

plaintiff. Coats is a United States citizen, and despite his move

overseas, he maintained his residence in Mississippi, where MIS

agreed to fly him for his vacations, and where he returned after

the accident. Indeed, MIS purchased insurance to pay costs of

"repatriation" in the event of an accident. Nevertheless,
12

defendants contend that Coats' domicile was in the United Arab

Emirates. They argue that he moved to that country with the intent

to remain because his job with MIS was for an indefinite term and

one is generally domiciled where he works. In Fogleman, however,

the plaintiff was a Louisiana resident who had worked in Saudi

Arabia for eight years, and we determined his domicile to be in the

United States. Coats is, a fortiori, domiciled in the United

States.

Fourth is the allegiance of the defendant shipowner. Penrod's

allegiance is without question to the United States. Rig 69 flies

the United States flag and Penrod's principal place of business is

Dallas, Texas. MIS is not a shipowner, but we still take into

account its organization under the laws of the United Arab

Emirates. 

The place of the contract is the fifth factor, and another

that is here entitled to weight. As the district court stated,

Coats apparently executed an Arabic contract in the United Arab

Emirates for the purpose of obtaining a work visa; however, the

parties agreed to all of the contract terms in Mississippi. Thus,

as the district court clearly found, Coats' employment contract was

formed in Mississippi, and this factor favors United States law.

Cf. Fogleman, 920 F.2d at 283 (noting that plaintiff signed all

eight of his contracts in Saudi Arabia). 

The sixth factor, inaccessibility of the forum, is only

relevant to forum non conveniens. Lauritzen, 345 U.S. at 589-90.
13

The seventh factor is the law of the forum; here, general maritime

law. Fogleman, 920 F.2d at 283.

The final factor is the base of operations. In the

nontraditional context, we have held that "'it is the base from

which the rig is operated on a day-to-day basis rather than the

base of operations of the corporate or ultimate owner of the rig

which is important for choice of law purposes.'" Id. at 284

(quoting Bailey, 697 F.2d at 1275 n.22). Penrod has a local office

in the United Arab Emirates to assist in the operation of Rig 69.

The record shows that this office is occupied by the rig

superintendent who frequently communicates with Penrod's office in

Dallas, Texas by facsimile. We addressed a similar situation in

Bailey. There, the local office in Singapore "was in daily contact

with the Houston office by telex or telephone, usually providing it

with drilling reports." 697 F.2d at 1271 n.6. In addition, "the

day-to-day decisions respecting the activities and operations of

the [rig] were made by [the area manager] or [the rig manager and

drilling superintendent] or by personnel on the rig." Id. We

nevertheless agreed that the base of operations was not in the

United States. Id. at 1274. Therefore, we are constrained to find

that Penrod's base of operations for purposes of this case is in

the United Arab Emirates. MIS' base of operations is also in the

United Arab Emirates; it has no offices anywhere else. Despite the

business it conducts through Lee's in the United States and the

fact that it has a substantial number of American employees, its

day-to-day operations are conducted in the United Arab Emirates.
14

Considering these factors and weighing them in this offshore

oil drilling context, we agree with the district court's decision

to apply general maritime law. Of the factors deemed more

significant in this context, only the place of the wrongful act

favors foreign law; the allegiance of the plaintiff and the place

of contract refer us to United States law. The law of the flag and

the allegiance of the defendant shipowner also point to United

States law. In short, the United States has a greater interest in

applying its law to this case than the United Arab Emirates. Coats

was recruited in the United States, accepted the job while in this

country, was supervised by American employees, suffered injury

aboard an American vessel, and was flown home to recover. After

his return, MIS willfully terminated benefits due Coats under

ERISA, resulting in liability that it never questioned on appeal.

See Albritton, Choice of Law, supra (noting the unlikelihood of

courts denying the benefit of American maritime law to an American

citizen who is recruited to work overseas and does not give up his

permanent United States residence).

Prior cases are less instructive in such a fact-specific

inquiry as here. Regardless, our decision today is consistent with

precedent. With one exception, our decisions involving

nontraditional, "brownwater" vessels have involved a foreign

plaintiff injured off the coast of a foreign country seeking the

protections of American law. We have uniformly rebuffed these

attempts. See, e.g., Cuevas v. Reading & Bates Corp., 770 F.2d

1371 (5th Cir. 1985); Koke v. Phillips Petroleum Co., 730 F.2d 211
15

(5th Cir. 1984); Bailey v. Dolphin Int'l, Inc., 697 F.2d 1268 (5th

Cir. 1983); Vaz Borralho v. Keydril Co., 696 F.2d 379 (5th Cir.

1983); Chiazor v. Transworld Drilling Co., 648 F.2d 1015 (5th Cir.

1981).

The one exception is Fogleman, where we refused to allow an

American plaintiff to sue under United States law for an injury

that occurred in Saudi Arabia. Fogleman, a Louisiana resident,

went to work for Fluor Arabia in Saudi Arabia. He applied for the

job by completing a "Foreign Employment Application" and mailing it

to Saudi Arabia. Fluor Arabia is a subsidiary of Fluor

Corporation, a Delaware corporation with its principal place of

business in California, but is only authorized to do business in

Saudi Arabia. Fogleman worked under a series of eight one-year

contracts, all signed in Saudi Arabia, and lived aboard a boat

flying the Saudi Arabian flag. Fluor Arabia had a contract with

ARAMCO, and pursuant to that contract, Fluor Arabia assigned

Fogleman to work with ARAMCO. Fogleman sustained a sharp pain in

his chest while transferring from an oil platform to a workboat

that flew the Panamanian flag and later suffered a heart attack,

allegedly caused by excessive work hours aboard ARAMCO's oil

platform. Fogleman sued ARAMCO and Fluor Arabia, and we affirmed

the district court's application of Saudi Arabian law to ARAMCO and

Fluor Corporation. 920 F.2d at 281.

The contacts with the United States in Fogleman were not as

strong as in this case. The vessels involved did not fly the

United States flag, and all of the plaintiffs' contracts were
 

5After subtracting Coats' 20% contributory fault, the trial

court's judgment was for $740,000 jointly and severally against

Penrod and MIS. Under traditional joint and several liability

principles, Penrod -- equally as responsible as Coats (20% fault)

-- will be liable for the entire $740,000 judgment.

 

6We note that no evidence of insolvency or uncollectibility

has been presented in this case.

16

signed in the foreign country. Moreover, the allegiance of both

defendants was foreign. Id. at 282-83. "[T]he only significant

factor pointing to the application of United States law [was] the

domicile of the plaintiff." Id. at 284. We are persuaded that the

connections with the United States in this case are substantial and

require a different result than Fogleman.

III. JOINT AND SEVERAL LIABILITY Penrod argues

that traditional joint and several liability, under which even a

contributorily-negligent plaintiff may recover his entire damages

award from any defendant held to be partially responsible, has no

place in a world where comparative negligence is the norm. Penrod

points out that under the present scenario, Coats, who was found by

the jury to be 20% responsible for his injuries, will be able to

satisfy 100% of his judgment from the equally-negligent Penrod.5

In Penrod's view, Coats should have to bear part of the risk that

the judgment against MIS, found 60% responsible for Coats'

injuries, may be wholly or partially uncollectible.6 Consequently,

Penrod seeks to modify the district court's judgment by limiting

Coats' ability to recover the entire judgment from either Penrod or

MIS in proportion to Coats' own contributory negligence. To

accomplish this change in the judgment, Penrod advocates the
17

adoption of modified joint liability in the general maritime law.

According to Penrod, the modified joint liability proposal is a

fairer allocation of the responsibility of each party, and is

consistent with developments in the state law that have abolished

or modified traditional joint and several liability. To understand

why we reject the invitation to adopt modified joint liability, we

must begin by understanding the changes that the proposal would

work in the general maritime law.

A. Understanding the Proposal

Penrod's modified joint liability proposal adopts an approach

advocated sixty years ago by Charles O. Gregory, a professor of law

at the University of Chicago. See Charles O. Gregory, Legislative

Loss Distribution in Negligence Actions, 77-79, 142-48 (1936).

Judge Garwood in turn advocated Professor Gregory's approach, using

the example of a three-car accident in which all three parties --

plaintiff A, defendant B, and defendant C -- are equally at fault:

"the risk that C will not compensate plaintiff A . . . is borne by

A and B in the respective ratios that the fault of each of them

bears to the total fault of both." Simeon v. T. Smith & Son, Inc.,

852 F.2d 1421, 1436-48 (5th Cir. 1988) (Garwood, J., concurring in

part and dissenting in part), cert. denied, 490 U.S. 1106 (1989).

The court would divide B's negligence by A's and B's combined

negligence (A + B) to calculate the extent of B's maximum

liability, which in this hypothesis would be 50%, or 33% / 66%.

Thus, at a maximum, A can collect from B half of the damages

awarded -- rather than the two-thirds A would have been able to
 

7The formula for calculating the joint liability component

and the several liability components can be algebraically

expressed. See Simeon, 852 F.2d at 1449 n.2 (King, J., specially

concurring).

 

8Coats is 20% contributorily negligent. Thus, even though

the total damages award is $925,000, Coats' maximum recovery is

$740,000 (80% of the total damages).

18

collect from B under traditional joint and several liability. B

would then have a contribution claim against C for that amount of

the judgment it actually pays over its 1/3 share of fault. 

The jury here awarded total damages of $925,000 and found the

plaintiff, Coats, to be 20% responsible, Penrod to be 20%

responsible, and MIS to be 60% responsible. The adoption of

Penrod's modified joint liability proposal would provide Coats with

a judgment that includes a joint liability component and a several

liability component against each defendant.7 Penrod's proposal

would work as follows:

Penrod's maximum liability would be $462,500:

 20 X 925,000

 20 + 20

(Penrod's negligence divided by the sum of Penrod's and Coats'

negligence, multiplied by the total damages award)

Similarly, MIS' maximum liability would be $693,750:

 60 X 925,000

 20 + 60

(MIS' negligence divided by the sum of MIS' and Coats'

negligence, multiplied by the total damages award)

The trial court would then subtract MIS' maximum liability

($693,750) from the amount Coats can collect ($740,000)8 to arrive

at $46,250 for which Penrod is solely liable. This $46,250 figure
 

9Note that the sum of the joint liability component and the

several liability components should equal the plaintiff's maximum

overall recovery. In this case, $416,250 (joint component) +

$46,250 (Penrod's several component) + $277,500 (MIS' several

component) = $740,000 (Coats' maximum recovery).

Similarly, the sum of the joint liability component and an

individual defendant's several liability component should equal

that defendant's maximum liability. For example, $416,250 (joint

component) + $46,250 (Penrod's several component) = $462,500

(Penrod's maximum liability). In the same manner, $416,250

(joint component) + $277,500 (MIS' several component) = $693,750

(MIS' maximum liability).

 

10Penrod's 20% share of fault is calculated by multiplying

Coats' total damages award ($925,000) by twenty percent.

19

is Penrod's several liability component. Similarly, when Penrod's

maximum liability ($462,500) is subtracted from the total amount

that Coats can collect ($740,000), MIS is solely liable for

$277,500 of the judgment. This $277,500 figure is MIS' several

component. Finally, Penrod's and MIS' joint liability component

($416,250) is calculated by subtracting the sum of Penrod's sole

liability ($46,250) and MIS' sole liability ($277,500) from Coats'

maximum overall recovery ($740,000).9 

Coats could pursue Penrod for the amount of Penrod's maximum

liability ($462,500), and then seek recovery from MIS for the

remaining $277,500 ($740,000 - $462,500) that Coats can collect.

Because Penrod would have paid more ($462,500) than its 20% share

of fault ($185,000),10 Penrod would have a contribution claim

against MIS for the extra $277,500 ($462,500 - $185,000) in damages

that it paid over to Coats. Similarly, Coats could pursue MIS for

the amount of MIS' maximum liability ($693,750), and then seek

recovery from Penrod for the remaining $46,250 ($740,000 -
 

11MIS' 60% share of fault is calculated by multiplying

Coats' total damages award ($925,000) by sixty percent.

20

$693,750) that Coats can collect. Because MIS would have paid more

than its 60% share of fault ($555,000),11 MIS would have a

contribution claim against Penrod for the extra $138,750 ($693,750

- $555,000) in damages that it paid over to Coats.

The modified joint liability proposal benefits defendants.

Penrod would be liable for $740,000 under traditional joint and

several liability, but only for $462,500 under modified joint

liability. On the other hand, the proposal hurts plaintiffs,

because full recovery of damages is harder to get under modified

joint liability than under the traditional scheme. Mathematically,

"[s]ince a defendant's joint liability would become defined by a

sum which is less than the total amount of the defendants' combined

liabilities, a plaintiff could recover the total amount he is owed

only by enforcing the judgment against each and every defendant."

Simeon, 852 F.2d at 1449 (King, J., specially concurring). It also

goes without saying that the plaintiff will have to expend

additional effort and money to collect the award from two different

defendants, a circumstance which becomes more expensive with each

additional co-defendant. Furthermore, in the event that one

defendant is statutorily immune, insolvent, or otherwise judgmentproof, the plaintiff will receive less than his total recoverable

damages as found by the trier-of-fact, even if he recovers against

all remaining defendants. For example, at best, Coats would

receive only 63% of his maximum recovery ($462,500 / $740,000) if
 

12Judge Garwood's position has evolved somewhat over the

years since Simeon. In his partial dissent in Simeon, and in his

dissent here, Judge Garwood develops his modified joint liability

proposal by devising a joint liability component and a several

liability component for each defendant. We have always proceeded

under the assumption that resort to the joint and several

components is necessary to the operation of his proposal. 

Likewise, we have always proceeded under the assumption that a

plaintiff can only recover the total amount that he is owed by

enforcing the judgment against each and every defendant. Indeed,

in his dissent, Judge Garwood states that "Apportionment of

Liability also notes that the Simeon dissent approach requires

`the plaintiff to pursue enforcement of the judgment against all

solvent defendants in order to recover the full amount.'" Judge

Garwood does not dispute this assessment, but merely notes that

Apportionment of Liability "does not expressly characterize this

as undesirable." 

In his present dissent, Judge Garwood tells us, however,

that "it will always suffice to simply provide in the judgment a

maximum amount which may be collected from each particular

defendant," and he implies that reference to the components, and

to the complex formulas that form the basis for calculating these

components, is unnecessary. 

Judge Garwood's new position, however, is simply incorrect

in a situation (common in maritime personal injury cases) where

there are more than two defendants. In this situation, if there

is no problem of insolvency or uncollectibility, then a judgment

specifying only a maximum amount of liability and a proportionate

share of fault for each defendant will suffice. If, however, 

there are more than two defendants, at least two of which are

solvent and at least one of which is insolvent (e.g., three

defendants, only one of which becomes insolvent), then the

plaintiff, because he can only achieve full recovery by

collecting each defendant's several component and one

satisfaction of the joint component, will need to know the

several liability of each solvent defendant. Furthermore, each

solvent defendant will want to know the amount that it is solely

21

MIS is insolvent or otherwise judgment-proof. Although there is no

evidence of insolvency or uncollectibility in the case before us,

Penrod and the proponents of modified joint liability justify this

result by arguing that a partially-negligent plaintiff, such as

Coats, should bear part of the risk of noncollection, rather than

placing the entire burden upon the defendants.12
liable for, i.e., its several component, so that it does not

overpay the plaintiff at this pre-contribution stage.

Similarly, if the plaintiff has fully recovered before one

of the defendants becomes insolvent (i.e., post-collection, but

pre-contribution), the defendant that paid the joint component

will want to know the insolvent defendant's several component

such that it can be recovered from the overpaid plaintiff. 

Otherwise the risk of noncollection is disproportionately borne

(vastly so) by the defendant that paid the joint component.

In summary, there is no way to avoid the computation of the

joint and several components of each defendant's liability, and

consequently, there is no way to avoid the complexity of the

formulas included in Judge Garwood's dissent. 

22

B. The Case for Modified Joint Liability

Penrod asserts that modified joint liability should be adopted

for two basic reasons. First, Penrod argues, the traditional rule

of joint and several liability was not intended to apply to a

contributorily-negligent plaintiff. As Penrod sees it, the removal

of the requirement that the plaintiff be wholly innocent has

unfairly allowed a contributorily negligent plaintiff to recover

the entire judgment from a defendant whose fault is minuscule.

Second, Penrod notes that the general maritime law has been

responsive to changes in the common law and to legislative

enactments. In light of the modifications to joint and several

liability enacted by many states, Penrod argues that admiralty

courts should change the general maritime law to respond to these

developments. We disagree with both of these contentions.

1. The traditional rule of joint and several liability

The traditional rule of joint and several liability can be

traced back to eighteenth century England and the case of Hill v.

Goodchild, 98 Eng. Rep. 465, 5 Buff. 2790 (K.B. 1771). The rule
23

was derived from the principle that a cause of action was

"unitary," and therefore, apportionment of damages by the jury was

not permitted. See W. Page Keeton et al., Prosser and Keeton on

The Law of Torts § 46, at 323 & n.5 (5th ed. 1984) [hereinafter

"Prosser & Keeton"] (collecting cases). Consequently, it was

impossible to impose upon the individual defendants anything less

than entire liability. See Larry Pressler & Kevin V. Schieffer,

Joint and Several Liability: A Case for Reform, 64 Denv. U. L.

Rev. 651, 655 (1988).

Originally, joint and several liability was confined to

situations where the joint tortfeasors acted "in concert." See

Pressler & Schieffer, supra, at 660; see also Prosser & Keeton,

supra, § 46, at 322-23. The rule was combined with the common-law

rules of procedural joinder, which were limited in application to

tortfeasors acting "in concert." Consequently, under the

restricted joinder rules, defendants could not be joined, and joint

liability could not be imposed, unless the defendants had in fact

acted together to cause the harm. This circumstance apparently led

the American courts to equate "joinder" and "joint liability." See

Pressler & Schieffer, supra, at 660; see also id. ("At common law,

the concepts of procedural joinder and joint and several liability

were indistinguishable because there could be no joinder of parties

unless it was alleged that they were jointly responsible for acts

done in concert.").

A separate rationale of imposing "entire liability" developed

alongside the concept of joint liability for those acting "in
24

concert." Under this corollary reasoning, "a defendant might be

liable for the entire loss sustained by the plaintiff, even though

the defendant's act concurred or combined with that of another

wrongdoer to produce the result or, as the courts have put it, that

the defendant is liable for all consequences proximately caused by

the defendant's wrongful act." Prosser & Keeton, supra, § 47, at

328. This notion reflected the belief that a tortfeasor should be

responsible for all consequences stemming from his actions,

regardless of the fortuitous circumstance that others may also have

contributed to the injury. 

By 1876, the common-law rule of joint and several liability

was being discussed in the admiralty setting:

Nothing is more clear than the right of a plaintiff,

having suffered such a loss, to sue in a common-law

action all the wrong-doers, or any one of them, at his

election; and it is equally clear, that, if he did not

contribute to the disaster, he is entitled to judgment in

either case for the full amount of his loss. He may

proceed against all the wrong-doers jointly, or he may

sue them all or any one of them separately . . . . 

Acts wrongfully done by the co-operation and joint agency

of several persons constitute all the parties wrongdoers, and they may be sued jointly or severally; and any

one of them, said Spencer, C.J., is liable for the injury

done by all . . . .

The Atlas, 93 U.S. 302, 315 (1876). In this context, as in others,

the concern that the innocent plaintiff receive full recovery of

his damages was offered as one of the primary justifications for

joint and several liability. In fact, as we will explain, this

consideration has apparently taken on an elevated significance in

maritime law because of special concerns unique to the admiralty,

especially its role as "protector" of seamen. Joint and several
 

13Penrod points out that modified joint liability would not

alter the "traditional" recovery of a wholly-innocent plaintiff. 

In situations where a plaintiff is found to be without fault, his

proportionate share of fault, by definition, will be 0%. Under

modified joint liability, the defendant's proportionate share of

fault would be divided by the sum of the plaintiff's 0% and that

defendant's proportionate share of fault, yielding that

defendant's maximum liability. As Penrod illustrates, assuming a

wholly-innocent plaintiff and a defendant who is 20% at fault,

the equation is as follows:

25

liability has the benefit of allowing a seaman to pursue and to

collect his entire damages award from one co-defendant when the

generally international character of his profession might make it

difficult or impossible to locate or to collect from other

tortfeasors. 

Penrod argues that joint and several liability was

"historically one of two counterbalancing principles arising out of

the legal theory of the 19th Century that all parties are

responsible for all of the consequences of their negligence."

According to Penrod, the "second half" of this couplet is the

concept of contributory negligence, which at common law would cut

off all recovery for the partially-responsible plaintiff. Thus,

only a wholly-innocent plaintiff had the advantage of collecting

his entire damages award from any of the jointly liable defendants.

As Penrod argues, when the tide of comparative negligence swept the

nation, and a plaintiff's own negligence was no longer an absolute

bar to recovery, the balance of the "couplet" was destroyed. Thus,

because joint and several liability was born in the context of the

wholly-innocent plaintiff, Penrod argues that it should be limited

to that context.13
0 + 20 = 20

20 divided by 20 = 1 or 100%

Thus, the faultless plaintiff can still recover 100% of its

judgment from any of the creditworthy and non-immune defendants.

 

14In The Max Morris, the Supreme Court also affirmed a lower

court's decree for divided damages. See The Max Morris, 137 U.S.

at 15. Significantly, however, the Court noted that the divided

damages issue was "the only question certified," and therefore,

the Court's jurisdiction was "limited to reviewing this

question." Id. As the Court concluded:

Whether, in a case like this, the decree should be for

exactly one-half of the damages sustained, or might, in the

discretion of the court, be for a greater or less proportion

of such damages, is a question not presented for our

determination upon this record, and we express no opinion

upon it.

Id.

26

In support of its position, Penrod points to The Atlas,

contending that it was the first case to adopt joint and several

liability in admiralty. See The Atlas, 93 U.S. at 314 ("[P]roof of

entire innocence or freedom from fault . . . entitles the promoter

of a suit for such a claim to full compensation for his loss from

the guilty party."). While The Atlas may have been such a

foundational case, see Edmonds v. Compagnie Generale

Transatlantique, 443 U.S. 256, 260 n.7 (1979) ("We stated the

common-law rule in The Atlas and adopted it as part of admiralty

jurisprudence . . . . "), Penrod's position is simply not

compelling because its statement of history is incomplete. The

move to comparative negligence in maritime personal injury law

occurred over a century ago with the decision in The Max Morris,

137 U.S. 1, 14-15 (1890).14 See also Socony-Vacuum Oil Co. v.
 

15Despite Judge Garwood's reliance in dissent on Petition of

Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1964), the approach

taken in Kinsman Transit is not the approach advocated by Penrod

and the dissent. In Kinsman Transit, Kinsman was one of three

liable parties, but its liability had been limited by statute. 

See id. at 713. Thus, at the time of the judgment, Kinsman's

share had already been determined to be uncollectible, and the

Second Circuit reallocated Kinsman's responsibility

proportionately among the other two parties. See id. at 726.

In the instant case, however, no evidence of

uncollectibility is present in the record. Nevertheless, the

proposal advocated by Penrod and the dissent would still

"reallocate" as part of the initial judgment -- before it is

determined that Penrod's or MIS' share is uncollectible. Thus,

the dissent's proposal builds the risk of noncollection into the

judgment, disadvantaging the plaintiff regardless of whether a

defendant's share actually proves to be uncollectible. Simply

put, although the dissent maintains that Kinsman Transit "is

directly on point and should control," the approach in Kinsman

Transit fails to provide direct support for the dissent's

27

Smith, 305 U.S. 424, 429 (1939); The Arizona v. Anelich, 298 U.S.

110, 122 (1936); Prosser & Keeton, supra, § 67, at 471 ("Outside of

admiralty, comparative negligence did not appear in American

jurisprudence until the early twentieth century."). Indeed, as

early as 1920, the rule of comparative negligence was incorporated

into the Jones Act and into the Death on the High Seas Act. See 46

U.S.C. § 688 (Jones Act); 46 U.S.C. § 766 (DOHSA); see also United

States v. Reliable Transfer Co., 421 U.S. 397, 408 n.13 (1975)

(noting that comparative negligence is applicable under the Jones

Act and under DOHSA). The move to comparative negligence, however,

did not abrogate admiralty's application of joint and several

liability, and the two doctrines have continued to work side-byside in the maritime law. Three Supreme Court decisions strongly

support this proposition, and Penrod points to no decision, Supreme

Court or otherwise, to the contrary.15
proposal. Similarly, the dissent's reliance on the non-admiralty

cases of Prestenbach v. Rains, 4 F.3d 358 (5th Cir. 1993), and

Davis v. Commercial Union Insurance Co., 892 F.2d 378 (5th Cir.

1990), is also misplaced, because in those cases, the partiallyliable employer was known to be statutorily immune before

judgment was entered. 

Finally, as will be discussed further, we merely note that

Kinsman Transit was decided before a series of Supreme Court

admiralty decisions concerning uniformity between the legislative

and the judicial maritime law.

28

In Pope & Talbot, Inc. v. Hawn, Hawn, a carpenter, was working

for Haenn, an independent contractor, aboard Pope & Talbot's ship.

See 346 U.S. 406, 407 (1953). After suffering injuries on the

ship, Hawn brought a negligence and unseaworthiness action against

Pope & Talbot under general maritime law. Id. Pope & Talbot

impleaded Haenn and sought contribution or indemnity. The district

court rendered judgment against Pope & Talbot for 100% of the

damages less 17.5% for the proportion due to plaintiff's fault. It

also awarded contribution to Pope & Talbot for Haenn's share of

fault. See id. at 408. The court of appeals affirmed Hawn's

judgment against Pope & Talbot, but reversed the judgment of

contribution because there was no right of contribution in such

cases. See id. The Supreme Court affirmed the application of

joint and several liability even though Pope & Talbot had no right

of contribution against Haenn and even though Hawn was at fault.

In other words, the Court treated comparative fault as consistent

with traditional joint and several liability. The plaintiff was

responsible for his own share of comparative fault, but the risk of

noncollection fell on defendants, rather than on an injured victim.
29

In Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256

(1979), Edmonds, the plaintiff longshoreman, was injured on a ship

not owned by his employer stevedoring company. See id. at 258. He

received benefits from his employer under the Longshore and Harbor

Workers' Compensation Act (LHWCA), and he additionally brought a

negligence action against the shipowner under 33 U.S.C. § 905(b) --

a provision of the LHWCA added by Congress in 1972 to specifically

authorize such suits. See id. The jury apportioned the $100,000

of damages as follows: 10% to the plaintiff, 20% to the shipowner,

and 70% to the stevedoring company. The trial court reduced the

award by the amount of the plaintiff's negligence, but the court

could not permit Edmonds to recover any of the judgment from the

employer stevedoring company because the employer was not a party

to the suit, as the LHWCA had specifically limited its liability.

See id. at 261. Consequently, at the end of the day, the

shipowner, whose conduct was determined to have caused only 20% of

the harm, was held to be liable for 90% of the entire judgment --

even though it had no contribution rights against the statutorilyimmune stevedore.

The shipowner made two arguments to the Supreme Court: (1)

that in the process of specifically authorizing negligence suits

against shipowners through the LHWCA's 1972 amendments, Congress

limited a shipowner's liability to only that proportion of the

plaintiff's damages which the shipowner actually caused -- in this

case, 20%; and (2) that even if Congress did not decree

proportionate liability, the Supreme Court should, using its
30

authority to fashion the general maritime law, limit the

shipowner's liability to its proportionate share of the

longshoreman's damages.

The Supreme Court began its examination of the arguments by

remarking that "[a]dmiralty law is judge-made law to a great

extent," and by commenting that prior to 1972, a longshoreman's

negligence action against a shipowner was recognized by general

maritime law, not by statute. See id. at 259-60. As the Court

explained, prior to 1972, the general maritime law fashioned an

injured plaintiff's recovery pursuant to the principles of joint

and several liability. See id. at 260 & n.7. Importantly, the

Court made it clear that the contributory negligence of a plaintiff

had never changed the traditional rule:

As [admiralty law] had evolved by 1972, a longshoreman's

award in a suit against a negligent shipowner would be

reduced by that portion of the damages assignable to the

longshoreman's own negligence; but, as a matter of

maritime tort law, the shipowner would be responsible to

the longshoreman in full for the remainder, even if the

stevedore's negligence contributed to the injuries. This

latter rule is in accord with the common law, which

allows an injured party to sue a tortfeasor for the full

amount of damages for an indivisible injury that the

tortfeasor's negligence was a substantial factor in

causing, even if the concurrent negligence of others

contributed to the incident.

Id. at 259-60.

After establishing the state of the law prior to the LHWCA's

1972 amendments, the Court turned its attention to the amendments

themselves and to their effect on the judicially-created doctrine

of joint and several liability. An analysis of the amendments led

the Court to conclude that Congress had not upset the "long-
 

16Penrod and Judge Garwood's dissent claim that Edmonds does

not preclude the adoption of modified joint liability in this

case because Edmonds was a LHWCA statutory construction case,

whereas in the pure maritime context, the federal courts write on

a cleaner slate. See McDermott, Inc. v. AmClyde, 114 S. Ct.

1461, 1471 (1994) (stating that Edmonds "primarily" involved

interpretations of the LHWCA).

Of course, the McDermott Court did not intend to limit the

import of Edmonds to LHWCA cases because, as will be explained,

it specifically took the time to reconcile Edmonds' reaffirmation

of "the well-established principle of joint and several

liability" with the general maritime rule of proportionate

settlement credit. See id. at 1471-72. Moreover, while it is

true that Edmonds primarily focuses on the LHWCA and perhaps does

not preclude a change in the pure maritime context, the Court

clearly refers to joint and several liability, in a situation

involving a contributorily-negligent plaintiff, as the rule of

the "maritime tort law," and the Court's message, at a minimum,

appears to be that joint and several liability is still the rule

in admiralty.

 

More importantly, even if Edmonds is given the contended for

31

established and familiar principl[e] of maritime law by imposing a

proportionate-fault rule." Id. at 263 (internal quotation

omitted). The Court moved, therefore, to the remaining issue of

whether it should make the vessel liable only for the damages in

proportion to its own negligence when a longshoreman sues the

vessel owner for negligence under the LHWCA. See id. at 271. To

this question, the Court answered "no":

[W]e are mindful that here we deal with an interface of

statutory and judge-made law. . . . By now changing what

we have already established that Congress understood to

be the law, and did not itself wish to modify, we might

knock out of kilter this delicate balance. As our cases

advise, we should stay our hand in these circumstances.

Once Congress has relied upon conditions that the courts

have created, we are not as free as we would otherwise be

to change them. A change in the conditions would

effectively alter the statute by causing it to reach

different results than Congress envisioned.

Id. at 271-73 (citations omitted) (footnote omitted).16
narrow construction, the Edmonds Court reaffirmed traditional

joint and several liability in the LHWCA context. As will be

explained in Part III(C)(1), when considering an analogous rule

for the general maritime law, the Supreme Court has expressed a

desire for harmony with statutes such as the LHWCA. Thus, even

when given a narrow construction, Edmonds' embrace of traditional

joint and several liability in the LHWCA context counsels us to

maintain traditional joint and several liability in the general

maritime law.

32

Furthermore, the Court's more recent decision in McDermott,

Inc. v. AmClyde, 114 S. Ct. 1461 (1994), again recognized the

continued application of joint and several liability in the general

maritime law. At issue in McDermott was the proper method of

accounting for a settlement with certain defendants in the

calculation of the amount of a plaintiff's injuries for which nonsettling defendants could be held liable at trial. See id. at

1463. The Court adopted a "proportionate share" settlement rule

that would diminish the claim of the injured party against the

remaining defendants in proportion to the settling defendant's

share of fault, as found by the trier-of-fact. See id. at 1470-72.

The Court was persuaded that the proportionate share approach was

superior to other options, in part because it was consistent with

the Court's previous decision in United States v. Reliable Transfer

Co., 421 U.S. 397 (1975). In Reliable Transfer, the Supreme Court

adopted a rule requiring the assessment of damages on the basis of

proportionate fault, and the Court abandoned a century-old "divided

damages" rule, whereby property damages were divided equally among

co-defendants, primarily in collision cases, without regard to

their relative degrees of fault. See id. at 410-11. 
33

The respondents in McDermott argued that the proportionate

share approach was inconsistent with the Court's earlier decision

in Edmonds, as joint and several liability was applied in Edmonds,

and no reduction in the shipowner's judgment was made for the

proportionate fault attributed to the stevedore. See McDermott,

114 S. Ct. at 1471. In rejecting the argument, the McDermott Court

noted that Edmonds was "primarily" a LHWCA statutory construction

case, but the Court also observed that:

one can read [Edmonds] as merely reaffirming the wellestablished principle of joint and several liability. As

the Court pointed out, that principle was in no way

abrogated by Reliable Transfer's proportionate fault

approach. . . . [T]here is no tension between joint and

several liability and a proportionate share approach to

settlements. Joint and several liability . . . can

result in one defendant's paying more than its

apportioned share of liability when the plaintiff's

recovery from other defendants is limited by factors

beyond the plaintiff's control, such as a defendant's

insolvency. . . . Unlike the rule in Edmonds, the

proportionate share rule announced in this opinion only

applies when there has been a settlement. In such cases,

the plaintiff's recovery against the settling defendants

has been limited not by outside forces, but by its own

agreement to settle. There is no reason to allocate the

shortfall to the other defendants, who were not parties

to the settlement.

114 S. Ct. at 1471-72 (footnotes omitted) (emphasis added). It is

worth repeating that the Court specifically recited that the

principle of joint and several liability "was in no way abrogated

by Reliable Transfer's proportionate fault approach," thus treating

joint and several liability and proportionate fault as compatible

in admiralty. Id. at 1471.

Numerous lower court decisions also recognize that joint and

several liability is the maritime rule, even when the case involves
34

a contributorily-negligent plaintiff. See, e.g., Drake Towing Co.

v. Meisner Marine Constr. Co., 765 F.2d 1060, 1063, 1067 (11th Cir.

1985) (stating, in a maritime tort case involving the Suits in

Admiralty Act, that a contributorily-negligent plaintiff "may

recover its entire damages, less that proportion attributable to

its own fault, from the United States," even though the United

States was only 20% at fault while another defendant was 60% at

fault); Gele v. Chevron Oil Co., 574 F.2d 243, 245, 250-51 (5th

Cir. 1978) (stating, in a general maritime lawsuit, that the

plaintiff's own negligence "would not bar recovery of damages" and

that the plaintiff has a "right to collect all his damages from one

party in the event he is unable to obtain the relative portion of

damages from each party at fault"); see also Maritime Comparative

Responsibility Act as Referred to House Committee on Judiciary,

§ 2, H.R. 3318, 102d Cong., 1st Sess. (1992) comments, reprinted in

2 Benedict on Admiralty § 7, at 1-35 (7th ed. 1994) ("The existing

maritime rule of joint-and-several liability of joint tortfeasors

continues to apply under this Act. This is true whether the

claimant was contributorily negligent or not."); 1 Thomas J.

Schoenbaum, Admiralty and Maritime Law § 5-5, at 167 (2d ed. 1994)

("The adoption of comparative fault has not affected the well

established rule that there is joint and several liability in

admiralty tort actions."); cf. Empire Seafoods, Inc. v. Anderson,

398 F.2d 204, 217 & n.21 (5th Cir.) (observing that with regard to

the divided damages rule for mutual fault, "[t]he authorities state

the rule in terms of `innocent third parties.'. . . [W]e are
 

17We note that substantially all of Judge Garwood's dissent

is directed to supporting the startling proposition that joint

and several liability is not the existing rule in maritime

personal injury cases. The dissent admits that its efforts are

directed to making the simple point "that the issue is

essentially open," and it argues that the "longstanding general

maritime rule" is that even an innocent plaintiff who is

"personally injured in an accident . . . recovers judgment

initially from each defendant for only half his damages, and can

go beyond that as to each only by first showing his (plaintiff's)

inability to collect from the other defendant the latter's half."

Despite the dissent's heroic efforts to distinguish

precedent, its position simply defies reality. The dissent

focuses on nineteenth century collision settings rather than

maritime personal injury cases, and it is beyond dispute that

joint and several liability is the rule in maritime personal

injury cases. See Edmonds, 443 U.S. at 259-60 ("As [admiralty

law] had evolved by 1972, a longshoreman's award in a suit

against a negligent shipowner would be reduced by that portion of

the damages assignable to the longshoreman's own negligence; but,

as a matter of maritime tort law, the shipowner would be

responsible to the longshoreman in full for the remainder, even

if the stevedore's negligence contributed to the injuries."

(emphasis added)); id. at 271 ("Congress did not intend to change

the judicially-created rule that the shipowner can be made to pay

all the damages not due to the plaintiff's own negligence . . . .

" (emphasis added)); McDermott, 114 S. Ct. at 1471 ("[O]ne can

read that opinion [Edmonds] as merely reaffirming the wellestablished principle of joint and several liability." (emphasis

added)); see also Maritime Comparative Responsibility Act as

Referred to House Committee on Judiciary, § 2, H.R. 3318, 102d

Cong., 1st Sess. (1992) comments, reprinted in 2 Benedict on

Admiralty § 7, at 1-35 (7th ed. 1994) ("The existing maritime

rule of joint-and-several liability of joint tortfeasors

continues to apply under this Act. This is true whether the

claimant was contributorily negligent or not." (emphasis added));

1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-5, at 167

(2d ed. 1994) ("The adoption of comparative fault has not

affected the well established rule that there is joint and

several liability in admiralty tort actions." (emphasis added)).

35

convinced that the reduction of [the contributorily-negligent

plaintiffs'] respective recoveries under the comparative negligence

doctrine is to be considered full penalty for their fault and that

they must, thereafter, be treated in the same manner as `innocent

third parties.'"), cert. denied, 393 U.S. 983 (1968).

17
Even Penrod acknowledges that joint and several liability is

the existing rule of maritime personal injury law. Penrod asks

us to change the general maritime law to "replace" joint and

several liability with "modified joint liability." Indeed, it

frames its first issue as "[w]hether the doctrine of joint and

several liability should be retained in maritime law" (emphasis

added). Simply put, as recognized by the Supreme Court, maritime

lawyers, commentators in the field, and the appellant itself, the

issue is not open: joint and several liability is the rule in

maritime personal injury cases. 

Thus, Penrod and the dissent ask us to change the existing

law of maritime personal injury to adopt a proposal that no

jurisdiction has yet to adopt. As we explain, granting such a

request is neither authorized nor prudent.

36

In addition, Penrod's characterization of the contributory

negligence bar and joint and several liability as a couplet ignores

the important fact that the principles of contribution and

indemnity were also developed as a procedural means to counteract

the danger that one defendant would be unduly burdened. See Marie

R. Yeates et al., Contribution and Indemnity in Maritime

Litigation, 30 S. Tex. L. Rev. 215, 217 (1989). Contribution

principles distribute a loss "by requiring each tortfeasor to pay

that proportion of the damages attributable to his actions." Id.

Indemnity "permits one tortfeasor to shift all of the loss onto

another tortfeasor if it is determined that the latter should

rightfully answer for all of the plaintiff's damages." Id. Both

contribution and indemnity provide a mechanism for apportioning the

plaintiff's damages among the tortfeasors themselves. See id.

This apportionment is designed to alleviate any unfairness

resulting from joint and several liability because the tortfeasor

paying the entire judgment can recoup some or all of the payments

from the other tortfeasors. In short, Penrod's argument that joint
37

and several liability is reserved only for innocent plaintiffs is

plainly inconsistent with the accepted practice of the maritime

law.

2. Signals from the states

Admiralty courts have historically been responsive to commonlaw developments and to legislative enactments. See, e.g., Moragne

v. States Marine Lines, 398 U.S. 375, 392 (1970). In Moragne, for

example, the Supreme Court created a general maritime wrongful

death cause of action after observing that federal and state law

had changed to allow recovery for wrongful death. See id. at 390-

93, 401. 

It is also true that the Supreme Court has been willing to

forge a general maritime position when no wholesale consensus has

developed. In McDermott, the Court noted that no uniform consensus

had developed for an approach to the issue of settlement credits,

but the Court went on to evaluate and to choose from the three

"principal" alternatives identified by the American Law Institute.

See McDermott, 114 S. Ct. at 1465-67. Nevertheless, on more than

one occasion, the Supreme Court has counseled against the adoption

of a distinctly minority view. See id. at 1466 n.8 ("We are

unwilling to consider a rule that has yet to be applied in any

jurisdiction."); Miles v. Apex Marine Corp., 498 U.S. 19, 35 (1990)

(noting the Court's discomfort with "adopting a distinctly minority

view," and implying that the Court prefers a more "wholesale" and

"uniform" policy judgment).
 

18The Restatement (Second) of Torts incorporates traditional

principles of joint and several liability:

Each of two or more persons whose tortious conduct is a

legal cause of a single and indivisible harm to the

injured party is subject to liability to the injured

party for the entire harm.

Restatement (Second) of Torts § 875 (1979). Section 879 further

elaborates:

If the tortious conduct of each of two or more persons

is a legal cause of harm that cannot be apportioned,

each is subject to liability for the entire harm,

irrespective of whether their conduct is concurring or

consecutive.

Id. § 879. The Restatement (Second) is the latest edition, as

the Restatement (Third) on apportionment issues is presently in

the initial drafting stage.

38

With these principles in mind, an examination of the state law

and model law changes to traditional joint and several liability is

striking, as the wide variety of alternatives reveals a

fragmentation in approaches far greater than the Court was

presented with in McDermott. To begin with, approximately twenty

years ago, joint and several liability was the rule in every state.

See Pressler & Schieffer, supra, at 656.

18 Since that time, a

majority of the states have modified the concept, either by

substantial limitation or by outright elimination. See id. at 656-

57. Thirteen states, however, still adhere to traditional joint

and several liability.

The 1977 Uniform Comparative Fault Act adopted an approach

that begins with a joint and several judgment, but permits a

defendant to return to the court that entered the judgment to

request the court to reallocate a defendant's equitable share of
 

19The Maritime Law Association's proposed reform appears to

have been spurred by a desire to resolve -- in a more

satisfactory manner than some courts had done -- the settlement

of claims among joint tortfeasors issue. As Benedict on

Admiralty explains:

Prior to the grant of certiorari in McDermott and

Boca Grande Club, it appeared that no uniform rule

would develop in the law relating to the settlement of

claims among joint tortfeasors in maritime personal

injury claims. Absent a ruling by the Supreme Court,

new legislation by Congress appeared the most practical

way to settle the law in this area.

The Maritime Law Association of the United States

accordingly developed a proposal in an attempt to

resolve this complicated issue. . . . The Bill died

with the end of the 1992 term. . . .

Ultimately, either Congress or the Supreme Court

will have to address the matter and resolve the

conflicting holdings of the district courts. If

McDermott and Boca Grande Club do not prove

dispositive, when decided, the proposed legislation may

be revived.

2 Benedict on Admiralty § 6, at 1-27 (7th ed. 1994) (emphasis

added). 

39

the judgment -- after it is established to be uncollectible --

among the remaining tortfeasors and the contributorily-negligent

plaintiff:

Upon motion made not later than [one year] after judgment

is entered, the court shall determine whether all or part

of a party's equitable share of the obligation is

uncollectible from that party, and shall reallocate any

uncollectible amount among the other parties, including

a claimant at fault, according to their respective

percentages of fault.

Uniform Comparative Fault Act § 2(d), 12 U.L.A. 50 (Supp. 1993).

The Maritime Law Association also adopted this court-ordered

reallocation approach in the legislation that it proposed to

Congress in 1992.19 See Maritime Comparative Responsibility Act as
Now that McDermott has explicitly resolved the settlement of

claims issue by adopting a proportionate share settlement rule,

the impetus behind the proposed legislation may have waned.

 

20Although this bill died in the committee, its proposed

operation is relevant to our analysis. 

40

Referred to House Committee on Judiciary, § 3(d), H.R. 3318, 102d

Cong., 1st Sess. (1992) comments, reprinted in 2 Benedict on

Admiralty § 8, at 1-46, 1-47 (7th ed. 1994).20 Four states employ

this post-judgment reallocation approach. See Mich. Comp. Laws

Ann. § 600.6304; Minn. Stat. Ann. § 604.02; Mo. Ann. Stat.

§ 537.067; see also Conn. Gen. Stat. Ann. § 52-572h(g) (allowing

the reallocation of uncollectible non-economic damages among all

parties and uncollectible economic damages among the remaining

defendants).

The operation of these reallocation schemes, however, differs

in crucial respects from the modified joint liability proposal

urged upon us by Penrod. Under the Uniform Comparative Fault Act,

for example, traditional joint and several liability is maintained:

The common law rule of joint-and-several liability of

joint tortfeasors continues to apply under this Act.

This is true whether the claimant was contributorily

negligen[t] or not. The plaintiff can recover the total

amount of his judgment against any defendant who is

liable.

Uniform Comparative Fault Act § 2, 12 U.L.A. 50 (Supp. 1993)

(comment). The Maritime Law Association's proposed legislation

uses similar language:

The existing maritime rule of joint-and-several liability

of joint tortfeasors continues to apply under this Act.

This is true whether the claimant was contributorily

negligent or not. The plaintiff can recover the total
 

21Judge Garwood's dissent states that Arizona and New

Hampshire have also adopted similar reallocation approaches. We

41

amount of his judgment against any defendant who is

liable.

Maritime Comparative Responsibility Act as Referred to House

Committee on Judiciary, supra, § 7, at 1-35; see also Minn. Stat.

Ann. § 604.02(1) ("When two or more persons are jointly liable,

contributions to awards shall be in proportion to the percentage of

fault attributable to each, except that each is jointly and

severally liable for the whole award."); Mo. Ann. Stat.

§ 537.067(3) ("This section shall not be construed to expand or

restrict the doctrine of joint and several liability except for

reallocation as provided in subsection 2.").

More importantly, even though these schemes reallocate an

insolvent defendant's share of liability, reallocation applies only

after a party's share is determined to be uncollectible. See

Uniform Comparative Fault Act § 2(d), 12 U.L.A. 50 (Supp. 1993);

Maritime Comparative Responsibility Act as Referred to House

Committee on Judiciary, supra, § 8, at 1-46, 1-47; Conn. Gen. Stat.

Ann. § 52-572h(g); Mich. Comp. Laws Ann. § 600.6304; Minn. Stat.

Ann. § 604.02; Mo. Ann. Stat. § 537.067. In contrast, Penrod's

modified joint liability proposal would "reallocate" as part of the

initial judgment -- before it is determined that a defendant's

share is uncollectible. Thus, Penrod's proposal builds the risk of

noncollection (and the expense and delay of collection) into the

judgment, disadvantaging the plaintiff regardless of whether a

defendant's share actually proves to be uncollectible.21 This is
note, however, that these states reallocate only after a party's

share is determined to be uncollectible, and, at least in New

Hampshire, such reallocation occurs only among defendants. See

N.H. Rev. Stat. Ann. § 507:7-E (III) ("Upon motion filed not

later than 60 days after final judgment is entered, the court

shall determine whether all or part of a defendant's

proportionate share of the obligation is uncollectible from that

defendant and shall reallocate any uncollectible amount among the

other defendants according to their proportionate shares."

(emphasis added)); cf. Ariz. Rev. Stat. § 12-2508 ("If a

contribution share is totally or partially uncollectible, the

court shall redetermine the contribution shares of the other

tortfeasors . . . . " (emphasis added)).

 

22It is argued that footnotes thirty-one and thirty-two of

the Supreme Court's McDermott opinion cite, with apparent

approval, § 2 of the Uniform Comparative Fault Act --

specifically, the provision of § 2 relating to "reallocation of

[an] insolvent defendant's equitable share." McDermott, 114

S. Ct. at 1471 nn.31 & 32. These references are claimed to

indicate the Supreme Court's potential willingness to embrace a

rule that places a proportionate share of the risk of one

defendant's insolvency upon the contributorily-negligent

plaintiff.

These footnote references, however, do not support the

adoption of Penrod's proposal because, under the Uniform

Comparative Fault Act, joint and several liability is maintained,

and reallocation can only occur on the motion of a party after

the initial judgment. Most importantly, however, Judge Garwood's

proposal reaches different substantive results than the Uniform

Comparative Fault Act when there are more than two defendants, at

least two of which are solvent and at least one of which is

insolvent (e.g., three defendants, one of which is insolvent). 

This is because Judge Garwood's approach calculates a defendant's

share of liability based on a comparison of the responsibility of

that defendant to the combined responsibility of that defendant

and the plaintiff, while the Uniform Comparative Fault Act

calculates a defendant's reallocated share based on a comparison

42

particularly noteworthy in the instant case, where no evidence of

insolvency or uncollectibility is present in the record. The rule

proposed by Penrod severs the principle of joint and several

liability from its collectibility moorings in a manner that no

state, uniform law, or even the Maritime Law Association, has

embraced.22
of the responsibility of that defendant to the combined

responsibility of that defendant, the plaintiff, and the

remaining solvent defendants. 

Because of these critical distinctions, Judge Garwood's

description of his proposal as an "essentially procedural

modification to the [Uniform Comparative Fault Act] approach" is

a strained description at best. Support for the Uniform

Comparative Fault Act cannot be construed as support for modified

joint liability. The differences between them are fundamental. 

43

As mentioned, aside from the reallocation schemes, there are

further approaches to the modification of joint and several

liability. Colorado, Idaho, and North Dakota, for example, have

suspended the joint and several liability principle except where

the co-defendants were "acting in concert" (or were vicariously

liable). See Colo. Rev. Stat. Ann. § 13-21-111.5; Idaho Code § 6-

803(5); N.D. Cent. Code § 32-03.2-02.

As a third approach, several states have preserved joint and

several liability only when the plaintiff is determined to be

wholly without fault. See, e.g., Ga. Code Ann. §§ 51-12-31 to -33;

Wash. Rev. Code Ann. § 4.22.070; see also Boyles v. Oklahoma

Natural Gas Co., 619 P.2d 613, 616-17 (Okla. 1980). A fourth

approach limits the application of the traditional rule to

situations where the defendant from whom satisfaction is sought

bears at least a minimum percentage of the responsibility. See,

e.g., Fla. Stat. Ann. § 768.81 (permitting the plaintiff to recover

economic damages jointly and severally only from those defendants

whose negligence is equal to or exceeds that of the plaintiff);

Iowa Code Ann. § 668.4 (allowing joint and several liability only

where a defendant's negligence exceeds 50% of the total
44

responsibility); Mont. Code Ann. § 27-1-703 (same); Tex. Civ. Prac.

& Rem. Code Ann. § 33.013 (measuring a defendant's negligence

against total liability for some actions and against the

plaintiff's percentage responsibility for others, and permitting

joint and several liability only where a defendant's negligence

exceeds the enumerated percentages). 

A fifth approach eliminates joint and several liability with

respect to non-economic damages, but maintains joint and several

liability for economic damages. See, e.g., Cal. Civ. Code

§ 1431.2; Fla. Stat. Ann. § 768.81; Ohio Rev. Code Ann. § 2315.19;

Or. Rev. Stat. § 18.485; cf. Ill. Rev. Stat., ch. 735, para. 5/2-

1117 (permitting joint and several liability for medical and

medically-related services). Due to public policy concerns, a

sixth approach preserves joint and several liability with respect

to certain enumerated causes of action. See, e.g., Ariz. Rev.

Stat. Ann. § 12-2506(D) (permitting joint and several liability

when the cause of action involves hazardous wastes); Nev. Rev.

Stat. § 41.141(5) (retaining joint and several liability for strict

liability, intentional tort, hazardous substances, and products

liability cases); N.M. Stat. Ann. § 41-3A-1 (stating that joint and

several liability is available for strict liability claims,

intentional torts, and situations "having a sound basis in public

policy"). A seventh approach eliminates joint and several

liability altogether, instead imposing pure several liability.

See, e.g., Alaska Stat. § 09.17.080(d) ("The court shall enter

judgment against each party liable on the basis of several
 

23There are also differences in how the modifications are

accomplished among the states. For example, four states have

judicially changed or eliminated joint and several liability. 

See Brown v. Keill, 580 P.2d 867, 874 (Kan. 1978); Prudential

Life Ins. Co. v. Moody, 696 S.W.2d 503, 504 (Ky. 1985); Laubach

v. Morgan, 588 P.2d 1071, 1075 (Okla. 1978); McIntyre v.

Balentine, 833 S.W.2d 52, 58 (Tenn. 1992). But see Boyles v.

Oklahoma Natural Gas Co., 619 P.2d 613, 616-17 (Okla. 1980)

(reaffirming joint and several liability when the plaintiff is

wholly innocent). The other state changes to joint and several

liability, however, have been made through the respective

legislatures. 

45

liability in accordance with that party's percentage of fault.");

Utah Code Ann. § 78-27-38(3) ("[N]o defendant is liable to any

person seeking recovery for any amount in excess of the proportion

of fault attributable to that defendant."); Wyo. Stat. § 1-1-

109(e).

Significantly, however, most of the states that modify joint

and several liability have adopted a hybrid approach by enacting

statutory schemes that incorporate more than one of the abovementioned trends. See, e.g., Haw. Rev. Stat. Ann. § 663-10.9

(combining limitations relating to causes of action, types of

damages, and a defendant's percentage of responsibility); Ill. Rev.

Stat., ch. 735, para. 5/2-1117 (same); Minn. Stat. Ann. § 604.02

(combining claims-related, percentage liability, and reallocation

schemes); Wash. Rev. Code Ann. § 4.22.070 (preserving joint and

several liability for tortfeasors "acting in concert" and for

wholly-innocent plaintiffs). Each scheme represents a unique blend

of policy considerations weighed by the respective state

legislatures.23
 

24Penrod has urged us only to adopt the previously-described

modified joint liability proposal. It has not asked us to

consider any other modifications or approaches. In addition,

although Judge Garwood's dissent argues that no decision has

explicitly considered and rejected modified joint liability, such

a widespread lack of consideration, if true, further convinces us

that adopting modified joint liability, and creating a wholesale

change in the admiralty, is unwise.

46

From this examination, we make one important observation: no

state has adopted a modified joint liability scheme that functions

in the manner proposed by Penrod. It bears repeating that the

Supreme Court has been willing to consider positions where no

uniform consensus has developed, see McDermott, 114 S. Ct. at 1465-

67, but the Supreme Court has explicitly stated that it is

"unwilling to consider a rule that has yet to be applied in any

jurisdiction." See id. at 1466 n.8. We too are unwilling, and we

may be unauthorized, to adopt the modified joint liability proposal

urged upon us by Penrod.24

C. Other Factors Informing Our Ability to

Change General Maritime Law 

1. Uniformity and "harmonization"

As noted, the general maritime law applies the century-old

doctrine of joint and several liability. Similarly, the two

principal federal maritime statutes, the LHWCA and the Jones Act,

apply joint and several liability principles as well. After

recognizing the origins of joint and several liability in the

common law and in the general maritime law, the Edmonds Court

approved the application of joint and several liability in the

context of § 905(b) actions under the LHWCA. See Edmonds, 443 U.S.

at 260 & n.7, 271-73.
 

25See, e.g., Gaulden v. Burlington Northern, Inc., 654 P.2d

383, 391 (Kan. 1982) ("A railroad or other carrier, under FELA,

must bear all of the loss sustained by an employee which is

caused jointly by the fault of the carrier and third persons.").

47

The doctrine of joint and several liability is crystallized in

the Jones Act context as well, although it stems from a different

source. By incorporating the remedies afforded to railway

employees under the Federal Employers' Liability Act -- with

attendant judicial glosses25 -- Congress evidenced its intention

that joint and several liability apply in Jones Act cases. See

Simeon, 852 F.2d at 1450-51 (King, J., specially concurring); see

also Cox v. Roth, 348 U.S. 207, 209 (1955) (explaining that in

drafting the Jones Act to refer to the FELA, Congress effectively

declared that "those contingencies against which Congress has

provided to ensure recovery to railroad employees should also be

met in the admiralty setting"). Specifically, section 53 of the

FELA provides that a plaintiff may recover the total amount of his

judgment less that part representing his own contributory

negligence. See 45 U.S.C. § 53. There is no exception in the Act

for cases in which one or more of the defendants fails to pay its

share. Congress, therefore, provided seamen the remedy of joint

and several liability that was prevalent at the time that the Jones

Act was adopted. See Simeon, 852 F.2d at 1450 (King, J., specially

concurring). Indeed, Penrod concedes that Congress has statutorily

declared that an injured Jones Act seaman is entitled to be made

whole with the benefit of joint and several liability. As Penrod

notes:
48

We do not suggest that the proposed "modified joint

liability" apply in any case where Congress has declared

that a particular class of litigant, such as the Jones

Act seaman or the Longshoremen's Act employee, is

entitled to special consideration . . . . Statutorily,

Congress has declared that injured Jones Act seam[e]n and

longshoremen with claims under 33 U.S.C. § 905(b) are to

be made whole. . . . [T]he policy established by Congress

for dealing with injured Jones Act seamen was given

controlling weight in the majority opinion in Simeon, as

well it should have been . . . .

(emphasis added).

Penrod's concession is realistic. Numerous cases have

recognized joint and several liability for Jones Act violations.

See, e.g., Joia v. Jo-Ja Serv. Corp., 817 F.2d 908, 917 (1st Cir.

1987) ("The joint and several loss allocating mechanism which

serves to provide an injured seaman his full judgment is consonant

with the policy behind the Jones Act . . . ."), cert. denied, 484

U.S. 1008 (1988); Dicola v. American Steamship Owners Mut.

Protection and Indem. Ass'n, Inc. (In re Prudential Lines, Inc.),

170 B.R. 222, 235 (S.D.N.Y. 1994) ("[U]nder the Jones Act, . . . a

tortfeasor can be held jointly and severally liable for the

entirety of the damages a seaman sustains, even if [the

tortfeasor's] negligence was minimal."); Johnson v. National Steel

& Shipbuilding Co., 742 F. Supp. 1062, 1065 (S.D. Cal. 1990)

(noting that a defendant "can be adjudged jointly and severally

liable with the cross-claimants in the cases where plaintiffs or

their decedents were seamen pursuant to the Jones Act"); Texaco,

Inc. v. Addison, 613 So.2d 1193, 1202 (Miss. 1993) (stating that

plaintiff "was a Jones Act seaman at the time of his injury and
 

26Judge Garwood's dissent disagrees with our contention that

the Jones Act has been applied, in a multi-defendant context, to

incorporate traditional joint and several liability principles. 

Nevertheless, Judge Garwood concedes that in Joia, a 5%

contributorily-negligent plaintiff who sued his employer under

the Jones Act and a third party under the general maritime law

was held to be entitled to judgment against the two defendants,

jointly and severally, for the remaining 95% of the plaintiff's

damages. Moreover, the dissent concedes that Gaulden stated, in

a case involving a contributorily-negligent plaintiff, that the

FELA incorporated traditional principles of joint and several

liability. Finally, the dissent dispatches as irrelevant three

other lower court cases that clearly applied principles of joint

and several liability under the Jones Act by claiming that they

did not involve a negligent plaintiff. The dissent, of course,

is unable to cite any authority to indicate that the Jones Act

applies its proposal or some other system of fault distribution

and collection.

49

[is] thus entitled to collect damages . . . from [defendants], who

are jointly and severally liable.") (emphasis added).26 

Penrod's proposal would sanction a form of recovery for

general maritime law that is different from the form of recovery

under the LHWCA and the Jones Act. The present uniformity would be

replaced by a lack of uniformity among the legislative and the

judicial schemes. Such dissonance has concerned the Supreme Court

in many cases. See, e.g., Miles, 498 U.S. at 27, 33 (observing

that applicable statutes "both direct and delimit our actions" in

shaping the general maritime law, and taking action to "restore a

uniform rule applicable to all actions for the wrongful death of a

seaman, whether under DOHSA, the Jones Act, or general maritime

law" (emphasis added)); Mobil Oil Corp. v. Higginbotham, 436 U.S.

618, 624 (1978) (noting that "[a]s Moragne itself implied, DOHSA

should be the courts' primary guide as they refine the nonstatutory

death remedy, both because of the interest in uniformity and
50

because Congress' considered judgment has great force in its own

right," and allowing a coastal waters / high seas distinction in

remedies to remain in the general maritime law because "a desire

for uniformity cannot override the statute" (emphasis added)

(footnote omitted)); Moragne, 398 U.S. at 395, 401 (creating a

maritime wrongful death action to remedy "the present nonuniformity

in the effectuation of the duty to provide a seaworthy ship" that

existed between federal statutory schemes and the general maritime

law); see also American Dredging Co. v. Miller, 114 S. Ct. 981, 989

(1994) ("While there is an established and continuing tradition of

federal common lawmaking in admiralty, that law is to be developed,

insofar as possible, to harmonize with the enactments of Congress

in the field." (emphasis added)). We need not decide precisely how

far the uniformity principle extends because, given the Supreme

Court's concern with differences between the legislative and

judicial maritime law, it would be problematic, to say the least,

to accept Penrod's proposal and thereby create a lack of uniformity

among the legislative and judicial schemes in an area where

uniformity currently exists.

A different concern, namely, the concern for uniformity within

the general maritime law, produces a further complication.

Penrod's change in the general maritime law would directly affect

not only Coats-like brown water seamen who are not covered by any

federal maritime statute, but also blue water seamen -- the general

maritime law's most common plaintiff. We are therefore compelled

to address the "special solicitude" afforded to seamen and their
 

27The special solicitude for seaman is, of course, the

foundation for the Jones Act, perhaps the seaman's most common

form of recovery when he is injured as a result of the negligence

of his employer. See, e.g., Cox, 348 U.S. at 210 ("The extreme

harshness of the old common-law rule abating actions on the death

of the tortfeasor flies in the face of the expressed

congressional purpose to provide for `the welfare of seamen.' 

The Jones Act `As welfare legislation . . . is entitled to a

liberal construction to accomplish its beneficent purposes.'"). 

The same solicitude applies under the general maritime law to a

seaman who may be unable to establish the predicate for a Jones

Act recovery, i.e., that his employer was negligent, but is able

to establish that his employer's vessel was unseaworthy. 

Similarly, it applies under the general maritime law when the

Jones Act is inapplicable, such as when a seaman is injured

through the fault of a third party. See, e.g., Simeon, 852 F.2d

at 1423, 1454-55 (King, J., specially concurring) (recognizing

the general policy under maritime law to favor and to protect

seamen in the context of a seaman's general maritime negligence

claim against a third-party tug owner).

51

families.27 See Miles, 498 U.S. at 36; Sea-Land Serv. v. Gaudet,

414 U.S. 573, 583 (1974). The law of the sea has developed

principles unknown to the common law -- specifically, a special

solicitude for seamen, as they are considered to be the "wards of

admiralty." See, e.g., O'Donnell v. Great Lakes Dredge and Dock

Co., 318 U.S. 36, 40 (1943); Garrett v. Moore-McCormack Co., 317

U.S. 239, 246-47 (1942) (quoting Harden v. Gordon, 11 F. Cas. 480,

485 (C.C.D. Me. 1823) (No. 6047) (Story, J.)). Justice Jackson

eloquently described the rationale for affording special concern to

seamen:

From ancient times admiralty has given to seamen rights

which the common law did not give to landsmen, because

the conditions of sea service were different from

conditions of any other service, even harbor

service. . . . While his lot has been ameliorated, even

under modern conditions, the seagoing laborer suffers an

entirely different discipline and risk than does the

harbor worker. His fate is still tied to that of the

ship. His freedom is restricted. 
 

28Judge Garwood, in dissent, gives short-shrift to this

solicitude for plaintiff seamen, as he repeatedly asserts that

the question merely boils down to choosing the "fairest"

approach. Our response in Simeon applies equally as well today: 

"[t]here exists . . . no unequivocal measure of what is

reasonable, fair, and just. Consequently, a statement that a

rule of law is reasonable, fair, or just is simply a reflection

that the rule advances a policy that the person judging the rule

advocates." 852 F.2d at 1454 (King, J., specially concurring). 

52

Pope & Talbot, 346 U.S. at 423-24 (Jackson, J., dissenting).

Traditional joint and several liability offers protection for

seamen. One of the realities of a complex and international

commercial maritime system is that seamen come into contact with

multi-national entities who may be difficult to find, pursue, and

collect from in the event of an injury. The ability to recover the

judgment from any one defendant, however, as provided by joint and

several liability, helps to alleviate this concern. The abolition

of joint and several liability for seamen plaintiffs travels

against the powerful current of a special protection for seamen.

Cf. Edmonds, 443 U.S. at 270 (stating that although "[s]ome

inequity appears inevitable in the present statutory scheme, [] we

find nothing to indicate and should not presume that Congress

intended to place the burden of inequity on the longshoreman whom

the [LHWCA] seeks to protect.").28 Preserving joint and several

liability for seamen plaintiffs, while modifying joint liability

for other general maritime plaintiffs, would introduce a new

disuniformity within the general maritime law. 

Finally, it would be difficult to cabin Penrod's proposal for

the general maritime law in the manner suggested by Penrod -- that

its proposal would not apply to a LHWCA employee suing under §
53

905(b). When the Edmonds Court considered changing maritime law

applying joint and several liability in § 905(b) actions, the Court

noted that such a change "would effectively alter the [LHWCA] by

causing it to reach different results than Congress envisioned."

Edmonds, 443 U.S. at 271-73. In short, Penrod's proposal would

affect an "interface of statutory and judge-made law" -- that is,

a statute (the LHWCA) whose provisions are defined in part by

Congress and in part by the common law of admiralty. Id. at 272.

Given Edmonds, it is no answer that this case does not involve the

interface between the LHWCA and the general maritime law because

accepting Penrod's proposal will have some effect on this

interface. If the developing case law under the LHWCA does not

incorporate a change to modified joint liability, the LHWCA and the

general maritime law will be out of step. If the LHWCA does evolve

with our change, the LHWCA and the Jones Act will differ in their

recovery schemes, as the Jones Act is built upon the FELA -- not

upon the general maritime law. In either case, the proposed change

would engender uncertainty and frustrate the principles of Edmonds.

See Edmonds, 443 U.S. at 273 ("By now changing what we have already

established that Congress understood to be the law, and did not

wish itself to modify, we might knock out of kilter this delicate

balance. As our cases advise, we should stay our hand in these

circumstances." (footnote omitted)). In short, given our

uniformity and harmonization concerns, we are not inclined to adopt
 

29The McDermott Court reiterated that "`the Judiciary has

traditionally taken the lead in formulating flexible and fair

remedies in the law maritime.'" McDermott, 114 S. Ct. at 1465

(quoting Reliable Transfer, 421 U.S. at 409). It is important to

note, however, that the McDermott Court commenced its discussion

with the observation that none of the federal admiralty statutes

"imposes any limit on our authority to fashion the rules that

will best answer the question presented by this case." In

contrast, as we have explained, the federal admiralty statutes

and our concerns for uniformity and harmonization do provide some

limits on our authority to adopt modified joint liability in this

case as a new rule of the general maritime law.

Moreover, the Court's opinion in Reliable Transfer supports

the Supreme Court's "harmonization" concern by acknowledging that

"[n]o statutory or judicial precept precludes a change in the

rule of divided damages, and indeed a proportional fault rule

would simply bring recovery for property damage in maritime

collision cases into line with the rule of admiralty law long

since established by Congress . . . ." Reliable Transfer, 421

U.S. at 409 (citing the Jones Act, 46 U.S.C. § 688) (emphasis

added).

54

Penrod's modified joint liability proposal for the general maritime

law.29

2. Stare decisis

Uniformity and predictability are important in admiralty, and

Moragne counsels that "[v]ery weighty considerations underlie the

principle that courts should not lightly overrule past decisions."

398 U.S. at 403. 

In Moragne, the Court enunciated three factors in the stare

decisis analysis which must be weighed prior to rejection of a

longstanding rule:

[1] the desirability that the law furnish a clear guide

for the conduct of individuals, to enable them to plan

their affairs with assurance against untoward surprise;

[2] the importance of furthering fair and expeditious

adjudication by eliminating the need to relitigate every

relevant proposition in every case; and [3] the necessity
55

of maintaining public faith in the judiciary as a source

of impersonal and reasoned judgments. 

398 U.S. at 403. With respect to the first factor, considered to

be "the mainstay of stare decisis," id., we recognize that the need

for predictability in the commercial maritime arena is arguably

greater than in other areas of law and commerce. This is true

because there are already numerous and inherently unpredictable

factors stemming from the perils of the sea and the continual --

and frequently fortuitous -- interaction with enterprises of other

nations. It is axiomatic that when the rules of law are clear,

parties may contract within or around their boundaries, and the

commercial system is facilitated in many ways, including reduced

litigation, more favorable insurance coverage, and overall ease of

application. This factor therefore counsels against the proposed

change. See Lewis v. Timco, 716 F.2d 1425, 1428 (5th Cir. 1983)

("The [maritime law's] values of uniformity, with their companion

quality of predictability, a prized value in the extensive

underwriting of marine risks, are best preserved by declining to

recognize a new and distinct doctrine without assuring the

completeness of its fit."). 

The second factor similarly points away from the proposed

change. Our adoption of modified joint liability in this case

would promote forum shopping and would add another level of

complication to maritime litigation. Modified joint liability

would apply only to general maritime law claims, whereas

traditional joint and several liability would apply to certain

statutory claims. 
56

The final strand of the Moragne inquiry affords an opportunity

for changing "a rule unjustified in reason, which produces

different results for breaches of duty in situations that cannot be

differentiated in policy." Moragne, 398 U.S. at 405. No such

situation exists here. The traditional doctrine of joint and

several liability, which preserves the right of the injured

maritime worker to recover for his injuries, represents a conscious

policy choice to shift the burden of uncollectibility to

defendants, and it has substantial justification in history. In

addition, the traditional rule currently applies uniformly to

statutory and to general maritime law claims -- producing the same

results for the same breaches of duty often entwined in maritime

litigation. In contrast, adopting modified joint liability for

general maritime law claims, or only for general maritime law

claims of non-seamen, would produce different results than the

statutory schemes for the same "tortious" conduct. Thus, the third

Moragne factor also counsels against change.

3. Deferral to legislative action

The wide spectrum of legislative enactments across the country

demonstrates the various policy objectives attainable by altering

joint and several liability. Most notable are the distinctions

based upon causes of action and types of damages. The Congress is

in a better position than a court to evaluate various policy

objectives. We are persuaded that deferring to congressional

action here is the wiser course. Even here we stand on maritime
57

tradition, for even the earliest jurists appear to have counseled

deference to the legislature: 

If, within its proper scope, any change is desired in

[the] rules [of admiralty], other than those of

procedure, it must be made by the legislative department.

It cannot be supposed . . . that the law should forever

remain unalterable. Congress undoubtedly has authority

under the commercial power, if no other, to introduce

such changes as are likely to be needed.

The Lottawanna, 88 U.S. (21 Wall.) 558, 577 (1874). Congress could

evaluate the desirability of modifying joint and several liability

not only for the general maritime law, but also for the many

maritime statutes that it superintends. Congress could, for

example, limit the application of joint and several liability to

situations where a defendant bears either a statutory percentage of

the total fault or at least more than that of the plaintiff. These

precise remedies would be more problematic for a federal court to

enact because our instruments of revision are generally blunt.

Indeed, as mentioned, the vast majority of the states that have

altered traditional joint and several liability have done so

legislatively, while only four states have modified the traditional

rule through the judicial process. See Joia, 817 F.2d at 917

("[T]he decision whether to continue this trend [away from joint

and several recovery] is more properly before a legislature.").

We are keenly aware of the fast-moving political forces now

calling to heel excesses of the tort law. This turn of the

political light upon tort law only stiffens our resolve not to

attempt to run in front of the Congress. Leading a political
58

charge is not an appropriate role for a federal court, not even for

a federal court sitting in admiralty.

4. Private ordering

Furthermore, contractual allocation of risk by private parties

better accomplishes the goal of allocating risk. Private parties,

rather than courts, are better able to assess the risks of

noncollection and to decide who is in the best position to collect

a judgment. Sophisticated maritime parties, intertwined in

contractual relationships, can usually foresee the risk of

insolvency and can allocate or insure against it. For example,

Penrod and MIS were in a position to address the risk of insolvency

when they wrote their contract. Coats had no such "bargaining"

position. Indeed, "where potential co-defendants can contract in

advance regarding their apportionment obligations among themselves,

rules that leave both traditional joint and several liability and

traditional apportionment rights in place might create optimal

incentives and be consistent with equitable concerns." 2 American

Law Institute, Enterprise Responsibility for Personal Injury 156

(1991). The rules now in place are clear and easily administered.

They leave the allocation of the risks of noncollection to the

parties best equipped to evaluate these risks. Absent

congressional intervention, private ordering of the risks is far

superior to the proposed effort. Our ability by definition is

inferior to the market's ability to tailor and allocate these

risks. 
 

30 Unlike Simeon, this case does not involve a Jones Act

seaman.

59

IV. CONCLUSION

We decline Penrod's proposal to adopt modified joint liability

for the general maritime law. The judgment of the district court

is AFFIRMED.

GARWOOD, Circuit Judge, dissenting, joined by Judges JOLLY, JONES,

SMITH, EMILIO M. GARZA, and DeMOSS (except that Judges JONES,

SMITH, and DeMOSS do not join in the second paragraph of footnote

two):

This case involves an accident on an American-owned jack-up

rig undergoing repairs in a United Arab Emirates (UAE) port in

which the American plaintiff is an employee of the UAE company

hired by the rig's owner to perform the repairs. The plaintiff,

Coats, and the rig owner, Penrod, were each found twenty percent at

fault, and the plaintiff's employer, MIS, sixty percent. The rig

owner, cast in judgment for eighty percent of plaintiff's damages,

contends that its liability to the plaintiff should not exceed

fifty percent of his total damages, as their fault was equal. I

agree, largely for the reasons stated in my dissent in Simeon v. T.

Smith & Son, Inc., 852 F.2d 1421, 1436-38 (5th Cir. 1988), cert.

denied, 490 U.S. 1106 (1989). The subject matter of this suit

plainly is not within the scope of the Longshoremen's and Harbor

Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., the

Jones Act, 46 U.S.C. App. § 688, or the Death on the High Seas Act

(DOHSA), 46 U.S.C. App. § 761 et seq.

30 Accordingly,SQassuming
 

31 For the reasons stated by Judge DeMoss, in my view the

choice of law issue should be resolved in favor of UAE law.

While I find much to agree with in Judge DeMoss's comments

regarding Seas Shipping Co. v. Sieracki, 66 S.Ct. 872 (1946), I do

not believe that issue is before us. Penrod was found guilty of

negligence, as well as of unseaworthiness, and while those faults

were combined in an "and/or" form in the percentage of fault

determination, no complaint of the form of that submission appears

to have been made on this appeal. Moreover, both the negligence

and the unseaworthiness related to the same condition. Finally, it

is undisputed that a defendant liable for unseaworthiness is as

much entitled to a reduction of plaintiff's recovery for

plaintiff's negligence as is a defendant liable only for

negligence. See, e.g., Fontenot v. Teledyne Movible Offshore,

Inc., 714 F.2d 17, 19-20 (5th Cir. 1983); Scot v. Fluor Ocean

Services, Inc., 501 F.2d 983, 984 (5th Cir. 1974).

 

32 This opinion addresses only instances of indivisible

damages, where the fault of each of the parties is a proximate

cause of all the damages.

United States law applies at all31SQthe governing law is the general

maritime law of the United States.

Overview of the Issue

The archetypal general maritime law tort litigation is the

collision case. 

Assume that a shrimper, under the command of its master-owner,

and an Exxon crew boat collide while each is trying to avoid a

suddenly appearing small pleasure craft. Only the crew boat

suffers significant damage.32 Each vessel is under separate

ownership and acting independently of the others, and none is so

related to either of the others as to be vicariously liable for the

other's fault. If only the shrimper and crew boat are causatively

at fault, and their fault is equal, the shrimper is liable for half

the crew boat's damages. Should the amount for which the shrimper

is ultimately liable to the crew boat change if the small pleasure

craft is also found to have been causatively at fault (e.g.,
61

lacking adequate lights) equally with the other two vessels?

Simple logic tells us it should not. The crew boat's damages

remain the very same, the fault of the shrimper and of the crew

boat are each still a proximate cause of all such damage, and the

causative fault of the crew boat and shrimper remain equal to each

other. As the pleasure craft has acted independently of the crew

boat and shrimper, neither of which is vicariously liable for the

pleasure craft's wrongs, there is no basis on which to charge the

pleasure craft's fault to either the shrimper or the crew boat, and

hence, for purposes of the shrimper's ultimate responsibility to

the damaged crew boat, the relevant comparative fault is that as

between those two.

However, this straightforward approach is opposed at two

opposite extremes. At one extreme is that approach generally known

as pure several liability, in which all of the pleasure craft's

fault is charged to the crew boat, so thatSQdespite the crew boat's

damages not having decreased, its share of the total fault having

decreased, and the shrimper remaining equally at fault with itSQthe

shrimper is nevertheless liable for only a thirdSQnot a halfSQof the

crew boat's damages. At the other extreme is the majority's

approach hereSQpure joint liability reflexively, and rather

oxymoronically, applied in a case where recovery depends on

comparative faultSQwhich charges all of the pleasure craft's fault

to the shrimper, so that the shrimper's total exposure to the crew

boat goes up from one-half to two-thirds of the crew boat's

damages, even though the damages remain identical, the relative
 

33 Similarly, in certain other circumstances under pure

several liability, a plaintiff whose causative negligence was only

a tenth of that of a particular defendant might nevertheless be

able to hold that defendant liable for no more than a tenth of

plaintiff's damages.

 

34 "Quite apart from any question of

vicarious liability or joinder of defendants,

the common law developed a separate principle,

that a defendant might be liable for the

entire loss sustained by the plaintiff, even

though the defendant's act concurred or

combined with that of another wrongdoer to

produce the resultSQor, as the courts have put

it, that the defendant is liable for all

62

fault as between the crew boat and shrimper is unchanged, and the

shrimper's percentage of the total negligence has gone down.

The majority's approach leads to the absurdity that in certain

situations a slightly negligent defendant could nevertheless be

liable for ninety percent of the damages of a plaintiff whose

negligence proximately causing all those damages was ten times as

great as the negligence of that particular defendant.33 That is the

very same kind of absurdity that caused most common law

jurisdictions to abandon the doctrine that the plaintiff's

contributory negligence barred all recovery, even though such

negligence was minimal and far less than that of the defendant.

Of course, until the relatively recent arrival of pure several

liability in many jurisdictions, a negligent defendant was

traditionally liable to a non-negligent plaintiff for all the

latter's damages proximately caused by that defendant's negligence,

notwithstanding that an independent third party's fault may also

have proximately caused all those same damages. See Prosser and

Keeton on Torts (West 5th ed. 1984) § 47.34 This rule, however,
consequences proximately caused by the

defendant's wrongful act. The rule was first

applied in actions against a single defendant,

where there was no concert of action, and

therefore no joinder would have been possible,

and there was no suggestion of a 'joint tort.'

. . .

In England, such concurrent but independent

wrongdoers were not confused with joint tortfeasors

because there could be no joinder in the absence of

concerted action. They had to be sued separately . . .

. Under the more liberal American rules as to joinder,

defendants whose negligence has concurred to produce a

single result have been joined in one action, and by

loose usage have been called joint tortfeasors." Id. at

328-329 (footnotes omitted).

63

does not afford a principled justification for rejecting the

approach espoused in this dissent. The result in the justmentioned instance comes about only because none of the plaintiff's

damages are proximately caused by the plaintiff's fault and all are

proximately caused by the defendant's. The logic of such a regime,

however, dictates that the plaintiff whose contributory negligence

proximately causes all his damages may recover nothing, even though

a defendant's much greater fault may also have been a proximate

cause of all plaintiff's damages. And that indeed was the almost

universal common law rule. Relatively recently, dissatisfaction

with this result led most common law jurisdictions to abandon the

contributory negligence bar in favor of some form of comparative

negligence. Under such an approach, there arises the question of

what the plaintiff's negligence is compared to and how the

comparison is to be made. The question, of course, does not arise

if the plaintiff is not negligent (nor, obviously, does it arise if

no defendant is at fault). If the plaintiff and one defendant are
 

35 The only other principled justification for assigning to

the defendant all the fault of the other actor would be that the

two had acted in concert, or that for some other reason the

defendant was vicariously liable for the fault of the other actor.

This was

the original basis for common law joint liability. See Prosser and

Keaton on Torts (West 5th ed. 1984) § 46 at 322-323 ("The original

meaning of a 'joint tort' was that of vicarious liability for

concerted action. All persons who acted in concert to commit a

trespass, in pursuance of a common design, were held liable for the

entire result. . . . Each was therefore liable for the entire

damage done. . . . All might be joined as defendants in the same

action at law, and since each was liable for all, the jury would

not be permitted to apportion the damages. . . . This principle,

somewhat extended beyond its original scope, is still law. . . ."

(footnote omitted)).

64

the only ones guilty of causative fault, the obvious and

universally accepted answer is that the fault of each is compared

to that of the other. A question arises if, but only if, both the

plaintiff and a defendant are guilty of causative fault and so also

is at least one other independent actor (whether or not that actor

is likewise a defendant). In that relatively rare setting,

apportioning all of the other (or third) independent actor's fault

to the defendant may not be logically justified by the principle

that every party is responsible for all the proximate results of

his own fault, even though such results are also contributed to by

the fault of another, because that principle equally well justifies

apportioning all the other actor's fault to the contributory

negligent plaintiff, and also because, in any event, where

comparative fault is applied the above-referenced principle has

been abandoned both by allowing the contributorily negligent

plaintiff to recover at all and by limiting his recovery to less

than the full amount of the loss he suffered.35
In an appropriate setting, even under a comparative fault

regime, this principle would justify charging the other actor's

fault all to the defendant, with none being charged to the

contributorily negligent plaintiff. However, in the situations we

are here considering, the defendants (or the defendant and the

third party actor) act independently of each other and the

relationship between them is not such as to otherwise give rise to

vicarious liability (i.e., if one were not at fault there would be

no basis for charging the other's fault to him). Accordingly, the

concerted action or vicarious responsibility principle does not, in

the class of case we are considering, justify the majority's

approach.

65

As University of Chicago law professor Charles Gregory

explained nearly sixty years ago:

"At common law joint tortfeasors are virtually guarantors

of each other's solvency so far as concerns the injured

plaintiff's joint judgment for damages; and the

introduction of contribution between joint tortfeasors

does not affect that situation in the slightest degree.

The plaintiff receives his damages at all costs, leaving

the defendants to even up the loss between themselves if

and as they may and can. But under a comparative

negligence statute, where the plaintiff, although

negligent, may still recover, the situation is

fundamentally different. Here absolutely no reason

exists why the defendants, even if they are treated as

joint tortfeasors and thus subjected to joint judgment

liability for certain purposes, should be made to assume

the entire risk of each other's insolvency with respect

to plaintiff's recoverable damages. For when the

plaintiff and the solvent tortfeasor are both negligent,

they share the stigma which at common law seems to have

furnished the justification for the somewhat arbitrary

allocation of this risk on joint judgment debtors.

Furthermore, it is quite possible to have a plaintiff who

is as negligent as, or more negligent than, either of his

defendants, but is still entitled to recover. Under such

circumstances, it seems idle to suppose that a joint

liability to the plaintiff should carry absolutely the

same incidents as the common-law joint judgment; and

distribution of the risk of insolvency of one of the

joint defendants in accordance with the apportionment of

fault would seem to be the only method of administration

consistent with the terms of the comparative negligence

statute." C. Gregory, Legislative Loss Distribution in

Negligence Actions 142 (1936) (footnote omitted).
66

It is true that, by virtue of the modern availability of

contribution, which was generally not available at common law, see

Prosser and Keeton on Torts (West 5th ed. 1984) § 50, a particular

defendant to whom all an independent third actor's fault is

charged, rather than shared proportionately with the negligent

plaintiff, suffers an ultimate economic injustice only if he is

unable to realize adequate recovery of contribution from the third

actor. Such a recovery would be unavailable if that third actor

were insolvent, enjoyed some legal immunity, or could not be found.

Thus, in one sense, as observed in the above quotation from

Gregory, the issue is how the risk of the third actor's insolvency,

immunity, or lack of amenability to process should be borne:

should it be borne entirely by the defendant, as the majority would

have it; or should it be borne entirely by the negligent plaintiff,

as under pure several liability; or should it be borne by the

negligent plaintiff and defendant in the ratio that their

respective degrees of fault bear to each other, as espoused here

and by Professor Gregory. But in another sense, the question is

why should the defendant ever be liable to the plaintiff for a

greater proportion of plaintiff's damages than the defendant's

negligence (including any for which he is vicariously liable) is of

the total negligence of the plaintiff and that defendant (again,

including any for which he is vicariously liable).

Development in Common Law Jurisdictions

As previously observed, at common law what we now call "joint

liability" was predicated either on concerted action (or vicarious
67

liability) or on the principle that the defendant is liable for all

consequences proximately caused by his own wrongful acts, even

though the wrongful conduct of one other than the plaintiff was

also a proximate cause of the harm (see notes 5 & 6, supra). There

was no occasion to consider the application of these rules to

instances where the plaintiff's negligence was a proximate cause of

his damages, because such a plaintiff was barred from any recovery.

This was the virtually uniform rule in the United States until

1908, when the Federal Employees Liability Act (FELA), 45 U.S.C. §

51 et seq., was enacted. Act of April 22, 1908, c. 149, 35 Stat.

65-66. The FELA provided interstate railroad employees a cause of

action against their employer for injuries in the course of

employment caused by the railroad's negligence and provided that

"the fact that the employee may have been guilty of contributory

negligence should not bar a recovery, but the damages shall be

diminished by the jury in proportion to the amount of negligence

attributable to such employee." 45 U.S.C. § 53. Thereafter, in

1910 Mississippi enacted a "pure" comparative negligence statute.

V. Schwartz, Comparative Negligence (Michie 3rd ed. 1994), § 1-

4(b)(2). In 1913 Georgia, through a combination of judicial

decision and much earlier legislation applicable to those injured

in railroad operations, adopted "a rule that the plaintiff in all

cases may recover an apportioned part of his damages if the

defendant's negligence is greater than the plaintiff's." Id., § 1-

5(a)(2) at 19 (citing Elk Cotton Mills v. Grant, 79 S.E. 836 (Ga.

1913)). Also in 1913, Nebraska by legislation allowed diminished
 

36 46 U.S.C. § 688 ("in such action all statutes of the

United States modifying or extending the common-law right or remedy

in cases of personal injury to railroad employees should apply").

See also Cosmopolitan Shipping Co. v. McAllister, 69 S.Ct. 1317,

1321-22 (1949); Rohde v. Southeastern Drilling Co., Inc., 667 F.2d

1215, 1217 (5th Cir. 1982).

 

37 Mississippi, Georgia, Nebraska, Wisconsin, and South

Dakota, the latter in 1941 by a statute allowing recovery when a

plaintiff's negligence was "slight and defendant's was gross in

comparison." Schwartz, supra, §§ 1-1 at 2, 1-4(b)(4) at 14-15.

68

recovery where the plaintiff's negligence was slight in comparison

to the defendant's. Id., § 1-4(b)(4) at 15. So matters stood

until 1920, when Congress enacted the Jones Act, providing "any

seaman" injured "in the course of his employment" an action against

his employer in which the FELA would apply.36 The same year, DOHSA

was enacted, providing a cause of action for death wrongfully

caused "on the high seas," 46 U.S.C. § 761, in which the decedent's

negligence did "not bar recovery" but "the court shall take into

consideration the degree of negligence attributable to the decedent

and reduce the recovery accordingly." 46 U.S.C. § 766. No other

jurisdiction adopted comparative negligence until in 1931 Wisconsin

passed legislation allowing a plaintiff recovery if his negligence

was "not as great at that of the defendant." Schwartz, supra, § 1-

4(b)(3).

Thus, in 1909 all states generally applied the complete bar of

contributory negligence; by 1930 only three states had lifted the

bar to any extent; by 1940 only four had; by 1954 only five ;

37 and,

as late as 1968, only seven states and Puerto Rico had any form of
 

38 Schwartz, supra, § 1-1 at 2. Comparative fault

legislation was enacted in Arkansas in 1955, in Puerto Rico in

1956, and in Maine in 1965. Id.

69

comparative negligence.38 Then the rush to some form of comparative

fault began, so that now in only Alabama, Maryland, North Carolina,

Virginia, and the District of Columbia does plaintiff's negligence,

no matter how slight, bar any recovery whatever. Schwartz, supra,

§ 1-1 at 2.4, § 1-5(e)(3); McIntyre v. Balentine, 833 S.W.2d 52, 55

(Tenn. 1992). This was accomplished by judicial decision in twelve

states, and by legislation in thirty-four states. McIntyre at 55,

56 & ns. 3 & 4.

The results are summarized in Kionka, Recent Developments in

the Law of Joint and Several Liability and the Impact of

Plaintiff's Employers' Fault, 54 La. L. Rev. 1619 (1994):

"Four states still do not have comparative fault .

. ., and they retain joint and several liability. Of the

forty-six states that have some form of comparative

fault, ten states still have the pure form of joint and

several liability, and twelve states now have pure

several liability. The remaining twenty-four states, .

. . have some mixture of joint and several and several

liability. These statutory schemes can be quite complex.

The common thread, however, is that they all represent a

compromise position between the two extremesSQpure joint

and several liability on the one hand and pure several

liability on the other." Id. at 1621 (footnotes

omitted).

In other words, eighty percent of the states reject the rule

espoused by the majority, "pure" joint and several liability in a

system of comparative fault. The ten states that follow that

approach are outnumbered by the twelve states at the other extreme,

which follow "pure" several liability. The remaining twenty-four

states have, indeed, adopted a variety of approaches, but, as
 

39 The committee preparing the UCFA for consideration by the

Commissioners was composed of distinguished legal scholars and

judges, including Judge R. Floyd Gibson and Professor Victor E.

Schwartz, and was chaired by Dean John W. Wade of Vanderbilt

University School of Law. Id. at 42.

 

40 The relevant portions of section 2 are as follows:

"(a) In all actions involving fault of more than one

party to the action, including third-party defendants and

persons who have been released under Section 6, the

court, unless otherwise agreed by all parties, shall

instruct the jury to answer special interrogatories or,

if there is no jury, shall make findings, indicating:

(1) the amount of damages each claimant

would be entitled to recover if contributory

fault is disregarded; and

(2) the percentage of the total fault of

all of the parties to each claim that is

allocated to each claimant, defendant, thirdparty defendant, and person who has been

released from liability under Section 6. For

this purpose the court may determine that two

or more persons are to be treated as a single

party.

70

Kionka observes, a "common thread" runs through them, as "all

represent a compromise position between the two extremes." Id.

One such position between the two extremes is that of the

Uniform Comparative Fault Act (UCFA) approved by the National

Conference of Commissioners on Uniform State Laws in 1977. 12

U.L.A. at 42-60 (West Supp. 1994).39 Section 1 of the UCFA provides

that "fault chargeable to the claimant diminishes proportionately

the amount awarded as compensatory damages . . . but does not bar

recovery," and section 6 provides that the claimant's recovery is

also reduced by the percentage of fault of any party with whom the

claimant has settled. Sections 3, 4, and 5 deal with set-off and

contribution. Section 2 is the operative section.40 Under it the
. . . .

(c) The court shall determine the award of damages

to each claimant in accordance with the findings, subject

to any reduction under Section 6, and enter judgment

against each party liable on the basis of rules of jointand-several liability. For purposes of contribution

under Sections 4 and 5, the court also shall determine

and state in the judgment each party's equitable share of

the obligation to each claimant in accordance with the

respective percentages of fault.

(d) Upon motion made not later than [one year] after

judgment is entered, the court shall determine whether

all or part of a party's equitable share of the

obligation is uncollectible from that party, and shall

reallocate any uncollectible amount among the other

parties, including a claimant at fault, according to

their respective percentages of fault. The party whose

liability is reallocated is nonetheless subject to

contribution and to any continuing liability to the

claimant on the judgment." (Emphasis added).

71

respective percentages of fault of all concerned are determined,

the judgment sets forth the corresponding "equitable share" of

each, and the plaintiff is awarded the amount of his total damages,

reduced by his and any settling party's percentages of fault,

"against each party liable on the basis of rules of joint-andseveral liability." However, under section 2(d) if any party's

"equitable share" of the judgment is (wholly or partly)

"uncollectible from that party," the court "shall reallocate any

uncollectible amount among the other parties, including a claimant

at fault, according to their respective percentages of fault"

(emphasis added). The reason for this provision is set forth in

the official comments to section 2 as follows:

"Reallocation of the equitable share of the obligation of

a party takes place when his share is uncollectible.
 

41 12 U.L.A. West Supp. 1994 at 50.

 

42 The relevant illustrations given in the comments are as

follows:

"Illustration No. 2. (Multiple-party situation).

A sues B, C and D. A's damages are $10,000.

A is found 40% at fault.

B is found 30% at fault.

C is found 30% at fault.

D is found 0% at fault.

A is awarded judgment jointly and severally against

B & C for $6,000. The court also states in the judgment

the equitable share of the obligation of each party:

A's equitable share is $4,000 (40% of

$10,000).

B's equitable share is $3,000 (30% of

$10,000).

C's equitable share is $3,000 (30% of

$10,000).

Illustration No. 3. (Reallocation computation under

Subsection (d)).

72

Reallocation takes place among all parties at fault.

This includes a claimant who is contributorily at fault.

It avoids the unfairness both of the common law rule of

joint-and-several liability, which would cast the total

risk of uncollectibility upon the solvent defendants, and

of a rule abolishing joint-and-several liability, which

would cast the total risk of uncollectibility upon the

claimant." (Emphasis added).41

That is precisely the rationale and effect of the position here

espoused. The official comments likewise illustrate the

application of the reallocation rule by an example in which the

plaintiff, whose total damages are $10,000, is forty percent

negligent and two defendants are each thirty percent negligent. If

one defendant is insolvent, the plaintiff's recovery from the other

is ultimately $4,286, which is 3/7ths of the $10,000, the exact

result here advocated.42 This dissent, however, would, in the
Same facts as in Illustration No. 2.

On proper motion to the court, C shows that B's

share is uncollectible. The court orders that B's

equitable share be reallocated between A and C. . . .

A's equitable share is increased by $1,714

(4/7 of $3,000).

C's equitable share is increased by $1,286

(3/7 of $3,000)." 12 U.L.A. West. Supp. 199

at 51.

 

43 It is also to be noted that section 2 of the UCFA limits

allocation of fault to those who are parties to the action, it

being "assumed that state procedure provides for bringing in thirdparty defendants as parties." Comment to § 2, 12 U.L.A. West Supp.

1994 at 50. The comment explains:

"The limitation to parties to the action means

ignoring other persons who may have been at fault with

regard to the particular injury but who have not been

joined as parties. This is a deliberate decision. . . .

The more parties joined whose fault contributed to the

injury, the smaller the percentage of fault allocated to

each of the other parties, whether plaintiff or

defendant." Id.

Because the fault of those not parties is not ascertained, it

cannot be allocated to any party, plaintiff or defendant, and this

means that the ultimate result is controlled by the comparison of

fault only as between the parties. In our earlier example of the

collision involving the shrimper, the crew boat, and the pleasure

craft, if the pleasure craft is not a party, the crew boat, if

equally at fault with the shrimper, may recover from the shrimper

only half its damages, notwithstanding the facts might show that

pleasure craft was also equally at fault with the other two

vessels. In essence, whatever fault is attributable to the

pleasure craft is allocated between the other two vessels in the

same proportion as the fault of each bears to the total fault of

both.

73

example given, initially limit each of the defendants' liability to

$4,286. For the reasons stated below, this essentially procedural

modification to the UCFA approach is practically fair and analogous

to traditional admiralty practice.43
 

44 ". . . [T]his and future cases shall apply the doctrine

of pure comparative fault in accordance with the Uniform

Comparative Fault Act §§ 1-6, 12 U.L.A. Supp. 35-45 (1983), a copy

of which, with commissioners' comments, is appended to this opinion

as Appendix A." Id. (footnote omitted).

In a footnote, the court noted that it did not adopt the

proportionate settlement credit approach of section 6 of the UCFA

only because that conflicted with the express provisions of a

Missouri statute calling for dollar for dollar credit; the court

invited the legislature to reconsider the settlement credit

provision and adopt section 6 of the UCFA. Id. at n.10.

 

45 The Maritime Law Association has recommended a model

Maritime Comparative Responsibility Act, which is almost the same

as the UCFA, and which, with but slight modification, was

introduced in Congress September 12, 1991, as H.R. 3318, 102d

Congress, 1st sess. See 7 Benedict on Admiralty (7th ed.) §§ 7 &

8. Both the Maritime Law Association proposal and H.R. 3318

contain reallocation provisions identical to section 2(d) of the

UCFA (section 2(3) of the Maritime Law Association proposal and

section 3(d) of H.R. 3318). Id., § 7 at 1-29; § 8 at 1-46, 1-47.

The comments to this section of the Maritime Law Association

proposal include the following: 

"Reallocation. Reallocation of the equitable share

of the obligation of a party takes place when his share

is uncollectible. Reallocation takes place among all

parties at fault. This includes a claimant who is

contributorily at fault. It avoids the unfairness both

of the common law rule of joint-and-several liability,

which would cast the total risk of uncollectibility upon

the solvent defendants, and of a rule abolishing joint74

The UCFA was judicially adopted by the Supreme Court of

Missouri when it eliminated the common law contributory negligence

bar. Gustafson v. Benda, 661 S.W.2d 11, 15-16 (Mo. 1983) (en

banc).44 Later, this was legislatively ratified, and similar

legislation has also been adopted in Arizona, Minnesota, Montana,

Connecticut, and New Hampshire. Schwartz, supra, § 3-5(c)(5),

citing Mo. Rev. Stat. § 537.067(2); Ariz. Rev. Stat. § 12-2508;

Minn. Stat. § 604.02(2); Mont. Code Ann. § 27-1-703(3); N.H. Rev.

Stat. Ann. § 507:7-e (III).45
and-several liability, which would cast the total risk of

uncollectibility upon the claimant." Id. § 7 at 1-35

(emphasis added)

These comments also include an illustration 3, which is the same as

illustration 3 in the comments to section 2 of the UCFA, as set out

in note 13 above. Id. § 7 at 1-36, 1-37. Again, this illustration

involves a 40% negligent plaintiff suffering $10,000 damages, and

two 30% negligent defendants, from one of whom nothing can be

collected. The ultimate result is that the plaintiff's recovery

against the other defendant is $4,286, which is 3/7ths of

plaintiff's total damages. 

75

Similarly, the Restatement (Second) of Torts § 886A, comment

i (1977), states in pertinent part:

"In determining equitable shares of the obligation,

it seems wise, particularly in comparative-negligence

states, to confine the determination to parties to the

action rather than to attempt to calculate the equitable

shares for alleged tortfeasors who are not parties and

not bound by the decisions. If one tortfeasor's

equitable share turns out to be uncollectible it should

be spread proportionately among the other parties at

fault." (Emphasis added).

Essentially the present approach was adopted in Haney Electric

Co. v. Hurst, 624 S.W.2d 602 (Tex. Civ. App.SQDallas 1981, writ

dismissed as moot). That case involved a three-car collision. In

separate actions, two of the driversSQeach later found to be thirty

percent negligentSQsued the third driverSQlater found to be forty

percent negligent. The cases were consolidated, and one question

was whether the defendant (the third driver, found forty percent at

fault) should be liable to a particular plaintiff for forty percent

of the harm (that is, only the defendant's share) or seventy

percent (that is, the defendant's share added to the entire thirty

percent share of the other plaintiff/tortfeasor, neither of the

plaintiffs being also a defendant). The court adopted neither
76

approach and chose instead to hold the defendant third driver

liable to each plaintiff for 40/70ths of total damages. That

fraction represented the ratio of the defendant's negligence (forty

percent) to the total of his negligence and the negligence of the

party seeking recovery (thirty percent). The court thus placed on

the defendant a portion of the unsued tortfeasor's share of fault,

but only that portion represented by the ratio of the defendant's

fault (forty percent) to the combined fault of the defendant and

plaintiff (seventy percent). The court considered this result

mandated not only by the Texas comparative negligence scheme, Tex.

Rev. Civ. Stat. art. 2212a (codified as amended at Tex. Civ. Proc.

& Rem. Code § 33.001), but also by "[e]lementary fairness." 624

S.W. 2d at 612.

An analogous approach has been taken under the Louisiana

statute, LSA-C.C. art. 2324, in respect to employer fault in an

employee's suit against a third party. Thus, in Prestenbach v.

Rains, 4 F.3d 358 (5th Cir. 1993), the Louisiana employer, immune

by virtue of the worker's compensation law, was found seventy-five

percent at fault, the plaintiff-employee fifteen percent, and the

defendant-third party ten percent. The plaintiff appealed the

judgment which awarded him only ten percent of his damages against

the third party. We applied the "'ratio approach'" of Guidry v.

Frank Guidry Oil Co., 579 So.2d 947 (La. 1991), as carried forward

by Gauthier v. O'Brien, 618 So.2d 825, 832-33 (La. 1993), and held

that plaintiff was entitled to recover forty percent of his damages

from the defendant because the defendant's percentage of negligence
 

46 It may also be noted that Texas has held that the

employer's or co-employee's "negligence should not be considered in

a third party products liability action when the plaintiff's

injuries were covered by workers' compensation." Magro v. Ragsdale

Bros., Inc., 721 S.W.2d 832, 836 (Tex. 1986). This necessarily

means that if the plaintiff is guilty of contributory fault, his

recovery will be based on a comparison of his fault with that only

of the defendant third party, precisely the general approach

suggested here.

77

(ten percent) was forty percent of the combined negligence (twentyfive percent) of the plaintiff (fifteen percent) and the defendant

(ten percent). Prestenbach at 360-61. Similarly, in Davis v.

Commercial Union Ins. Co., 892 F.2d 378 (5th Cir. 1990), the

plaintiff-employee was found sixty percent at fault, his immune

Louisiana employer thirty percent, and the defendant third party

ten percent. The plaintiff appealed the judgment, which awarded

him only ten percent of his damages against the third party. We

held that the employer's fault should be allocated between the

plaintiff and the defendant "in proportion to their previously

determined degrees of fault," with the result that plaintiff was to

be granted judgment against the defendant for 1/7th (14.29%) of his

total damages. Id. at 384-385.46

A thorough review and analysis of the relevant decisions,

legislation, and scholarly writing is contained in the American Law

Institute's Restatement of the Law (Third) Torts: Apportionment of

Liability, Preliminary Draft No. 1 (May 31, 1995) (Reporter,

Professor William C. Powers, Jr., University of Texas School of

Law; Associate Reporter, Professor Michael D. Green, University of

Iowa College of Law) (hereafter "Apportionment of Liability"). The

recommendations made there include provisions in substance the same
 

47 The principally relevant proposals (which have not been

officially presented to the Council or membership of the American

Law Institute) are as follows;

"§ 24A Liability of Multiple Tortfeasors for Indivisible

Harm

If two or more persons' independent tortious conduct

is a legal cause of an indivisible injury, each person is

jointly and severally liable for the recoverable damages

caused by the tortious conduct, subject to the

reallocation provision of § 25A." Id. at 231.

"25A Reallocation of Damages Based on Unenforceability of

Judgment

A defendant who is or may be held jointly and

severally liable pursuant to § 24A may move to reallocate

the liability of another defendant because a judgment for

contribution against the latter defendant will be or is

unenforceable, in whole or in part. If the moving

defendant establishes that a judgment for contribution

against another defendant will be or is unenforceable,

the court shall reallocate liability for the damage

award. The portion of the defendant's share of liability

for which a judgment is not or will not be enforceable

shall be reallocated to the remaining parties, including

the plaintiff, in proportion to the percentages of

responsibility assigned to the other defendants and the

plaintiff." Id. at 237 (emphasis added).

Comment a to section 25A states in relevant part:

"The justification for requiring one defendant to bear

the burden of an insolvent defendant's negligence was

that as between a culpable defendant and an innocent

plaintiff, the culpable defendant should bear the full

burden of the plaintiff's injuries. With the advent of

comparative responsibility, in which plaintiffs who are

at fault may still recover a portion of their damages,

the justification for requiring defendants to bear the

entire share of insolvent defendants no longer exists."

Id. at 238 (emphasis added).

Comment b to section 25A provides in part:

"Ordinarily, a motion to reallocate a party's share of

liability due to the unenforceability of the judgment

should be made within a year of the entry of judgment.

78

as those of the UCFA.47 The reporters' notes to section 25A (see
In those instances in which the unenforceability of any

judgment is established before entry of judgment, the

judgment should reflect the reallocation of the

defendant's share for which a judgment would be

unenforceable." Id. at 238-239 (emphasis added).

Proposed section 27A treats the effect of settlement in the

same manner as section 6 of the UCFA. Apportionment of Liability

at 265. Proposed section 28A(2) provides that in an employeeplaintiff's suit against a third party, the employer's fault is not

inquired into if local law does not permit either any reduction in

plaintiff's recovery on that account or a contribution claim by the

defendant against the employer (section 28A(1) addresses employer

fault where those conditions do not obtain). Id. at 281. 

Proposed section 29A provides:

"§ 29A Effect of Responsibility Assigned to Other Immune

Persons

If a person other than the plaintiff's employer is

immune from suit by the plaintiff and immune from a

contribution claim by any defendant pursuant to the

applicable law of the jurisdiction, the fact finder

should assign a percentage of responsibility to the

immune party and the immune party's share of

responsibility should be treated the same as provided in

§ 25A for a defendant whose share of responsibility is

uncollectible." Id. at 290.

79

note 18, supra) explain the rationale for these recommendations as

follows:

"The critical question is who should bear the risk

of insolvent parties. The advent of comparative fault,

at least when some fault is attributed to the plaintiff,

removes the traditional justification for imposing that

risk on defendants. See Pearson, Apportionment of Losses

Under Comparative Fault Laws--An Analysis of the

Alternatives, 40 La. L. Rev. 343, 362 (1980) ('When the

plaintiff himself has been negligent, the logical support

for joint and several liability evaporates.').

Nevertheless, even with the plaintiff sharing some fault,

each defendant is still the legal cause of all of

plaintiff's damages. Shifting the entire risk of

insolvency to plaintiff 'merely transform[s] the inequity

of imposing that risk entirely on solvent defendants into

the equal and opposite inequity of imposing the risk

entirely on the plaintiff.' II AMERICAN LAW INSTITUTE

REPORTERS' STUDY, ENTERPRISE LIABILITY FOR PERSONAL INJURY 147

(1991); see also Wade, Should Joint and Several Liability
80

of Multiple Tortfeasors be Abolished?, 10 AM.J. TRIAL ADV.

193, 197 (1986).

Professor Charles O. Gregory made this point quite

eloquently many years ago:

. . .[W]hen the plaintiff and the solvent

tortfeasor are both negligent, they share the stigma

which at common law seems to have furnished the

justification for the somewhat arbitrary allocation of

this risk on joint judgment debtors. . . .

[D]istribution of the risk of insolvency of one of the

joint defendants in accordance with the apportionment of

fault would seem to be the only method of administration

consistent with the terms of the comparative negligence

statute.

GREGORY, LEGISLATIVE LOSS DISTRIBUTION IN NEGLIGENCE ACTIONS 142

(1936).

Numerous commentators have advocated reallocating

the share of an insolvent or immune party to the

remaining responsible parties in proportion to their

responsibility for plaintiff's injuries. See . . .

Wade, Should Joint and Several Liability of Multiple

Tortfeasors be Abolished?, 10 AM. J. TRIAL ADV. 193, 198

(1986); UNIFORM COMPARATIVE FAULT ACT§ 2(d) (1977); II AMERICAN

LAW INSTITUTE REPORTERS' STUDY, ENTERPRISE LIABILITY FOR PERSONAL

INJURY 127-57 (1991) (advocating reallocation of insolvent

party's share when defendants are independent tortfeasors

without a prior relationship); Zavos, Comparative Fault

and the Insolvent Defendant: A Critique and

Amplification of American Motorcycle Ass'n v. Superior

Court, 14 LOY. L.A. L. REV. 775 (1980-81); WILLIAMS, JOINT

TORTS AND CONTRIBUTORY NEGLIGENCE § 110, at 414-20 (1951);

Sobelsohn, Comparing Fault, 60 IND. L.J. 413, 456 (1985);

Miller, Extending the Fairness Principle of Li and

American Motorcycle: Adoption of the Uniform Comparative

Fault Act, 14 PAC. L.J. 835, 861-63 (1983); Boyette,

Note, Reconciling Comparative Negligence, Contribution,

and Joint and Several Liability, 34 WASH. & LEE L. REV.

1159, 1174-76 (1977); see also Steenson, Recent

Legislative Responses to the Rule of Joint and Several

Liability, 23 TORT & INS. L.J. 482 (1988) (describing the

variety of reallocation schemes that exist in a number of

states).

The reallocation provision in § 25A also comports

with provisions in a number of states that have abolished

joint and several liability for independent tortfeasors,

except where the plaintiff is attributed no

responsibility for the injury. . . . Of course, this
 

48 In rejecting the reallocation approach in strict

liability in tort cases, the Texas Supreme Court stated in Duncan

v. Cessna Aircraft Co., 665 S.W.2d 414, 429 n.9 (Tex. 1984):

81

exception reflects the common law rule before the

adoption of comparative fault, which made independent

tortfeasors jointly and severally liable for a

plaintiff's indivisible injury. Section 25A results in

the same outcome in those instances in which the

plaintiff is found free of responsibility." Id. at 248-

251. 

In sum, pure joint and several liability was an incidental and

logical application of a regime in which the plaintiff's causative

fault, no matter how slight in comparison to that of a defendant,

barred any recovery whatever. Until the late 1960s, that was the

almost universal rule in common law jurisdictions. Since then, the

vast majority of jurisdictions that have abandoned the common law

ban on any recovery for a plaintiff whose negligence is to any

extent a cause of the accident in question have likewise abandoned

across-the-board pure joint and several liability. Where the

plaintiff and a defendant are both guilty of causative fault, and

so also is a third actor, there is no justification for allocating,

as between that plaintiff and defendant, ultimate responsibility

for the fault of the third actor on any basis other than on the

ratios which the fault of the plaintiff and the defendant

respectively bear to the total fault of them both.

Under the UCFA and Apportionment of Liability, this allocation

will frequentlySQthough by no means alwaysSQnot be made until after

judgment. For that reason, it has been subject to the justifiable

criticism that it may be somewhat unwieldy, administratively

burdensome, and may tend to undermine the finality of judgments.48
"An alternative would be to reallocate the insolvent

tortfeasor's share of liability among all parties whose

actions or products were a cause of the injuries,

including the negligent plaintiff. This suggestion is

attractive and was endorsed by a distinguished Special

Committee of the Tort and Compensation Section of the

State Bar. As a judicial rule, however, reallocating the

insolvent's share would create problems of post-trial

jurisdiction and finality of judgments."

No such problems of post-trial jurisdiction and judgment finality

are implicated in the approach taken by this dissent.

82

However, these criticisms are not applicable to the position taken

by this opinion, which is that the allocation will always be made

in the judgment, and that there is no reason to make any defendant

the plaintiff's collection agent for any portion of the damages for

which plaintiff bears the ultimate responsibility. We turn now

briefly to the mechanics of allocation in the judgment.

Mechanics of Judgment Damages Allocation

Let us revert to our collision involving Exxon's crew boat,

the shrimper, and the small pleasure craft. Exxon sues one or both

of the other two vessels for the damages to its crew boat. There

is no problem if Exxon is not at fault, for then the fault of any

defendant (no matter how many are at fault) will necessarily be one

hundred percent of the combined fault of Exxon and that defendant,

so that defendant is liable for one hundred percent of Exxon's

damages. Likewise, there is no problem if Exxon is at fault, but

of the other two vessels only the shrimper is found at fault, the

pleasure craft either being found not at fault or no finding being

made as to its fault (as might often be the case if it were not a

party). In that situation, all agree that Exxon recovers from the
 

49 No one contends that the total judgment should be for

other than $66,666.67. And, all would agree that a plaintiff

suffering total damages of $100,000 and found 20% at fault, with

each of the two defendants being 40% at fault, may not recover

$66,666.67 (40/60 x 100,000) from each of the two defendants for a

total of $133,333.33.

 

50 The judgment would further provide that if a defendant

paid more on the judgment than $33,333.33 (1/3 x $100,000), such

defendant would be entitled to contribution from the other

defendant in the amount of the excess so paid.

 

51 In this instance the judgment would also provide that if

the shrimper paid more than $20,000 (20% of $100,000) on the

judgment it would be entitled to contribution from the pleasure

craft for the excess, and that if the pleasure craft paid more than

$60,000 (60% of $100,000) on the judgment it would be entitled to

83

shrimper the same fraction of its total damages as its fault is of

the total fault of itself and the shrimper. A problem arises only

if Exxon, the shrimper, and the pleasure craft are all three found

to be guilty of causative fault. Assume each is assessed one-third

of the fault and that Exxon's total damages are $100,000. The

judgment should award Exxon a total recovery of $66,666.67 (2/3rds

of $100,000),49 with provision that no more than $50,000 (1/3 ÷ 2/3

x $100,000) thereof may be collected from the shrimper and no more

than $50,000 (1/3 ÷ 2/3 x $100,000) thereof may be collected from

the pleasure craft.50 If the causative fault percentages are

changed somewhat, to correspond to those in this case, so that

Exxon's percentage of fault is 20%, the shrimper's is 20%, and the

pleasure craft's is 60%, then the judgment should award Exxon a

total recovery of $80,000 (80% of $100,000), with provision that no

more than $50,000 (20/40 x $100,000) thereof may be collected from

the shrimper and no more than $75,000 (60/80 x $100,000) thereof

from the pleasure craft.51 In other words, in such a situation the
contribution from the shrimper for the excess.

 

52 The judgment would also provide that any defendant who

paid more on the judgment than his percentage of the total fault of

all parties multiplied by plaintiff's total damages ($40,000 for

defendant A) would be entitled to contribution from any other

defendant who paid less than his percentage of the total fault of

all parties multiplied by plaintiff's total damages ($30,000 for

defendant B; $20,000 for defendant C) to the extent of the lesser

of the excess or the deficiency. Thus if A paid $45,000 on the

judgment, B paid only $27,000, and C paid only $18,000, A would be

entitled to $3,000 in contribution from B, and $2,000 in

contribution from C. Of course, complications could arise if

contribution were uncollectible from one defendant, but no more so

than in any case in which there are three or more liable defendants

and the plaintiff is not negligent.

84

total judgment is for the amount which equals the same fraction of

plaintiff's total damages as the total fault of all except the

plaintiff is of the total fault of all including the plaintiff; but

the judgment will provide that the plaintiff may not recover more

of said sum from any particular defendant than the amount which

equals the same fraction of plaintiff's total damages as that

particular defendant's fault is of the total fault of both

plaintiff and that particular defendant. For example, if plaintiff

suffers total damages of $100,000 and is 10% at fault, defendant A

is 40%, defendant B is 30%, and defendant C is 20% at fault, then

plaintiff's total judgment is for $90,000, but provides that no

more than $80,000 (40/50 x $100,000) thereof may be collected from

defendant A, no more than $75,000 (30/40 x $100,000) thereof may be

collected from defendant B, and no more than $66,666.67 (20/30 x

$100,000) thereof may be collected from defendant C.52

This simple system will work in all cases and serve to

authorize appropriate recovery, while at the same time limiting any
85

particular defendant's ultimate potential liability to an amount no

greater than the fraction of plaintiff's damages which is that

defendant's percentage of fault divided by the total of the

percentages of fault of the plaintiff and that defendant.

If it is desired that the expression of this result in the

judgment be in terms of some several liability and some joint and

several liability, then that, too, can be accomplished, although in

some cases an algebraic formula must be employed. A case such as

this, with only the plaintiff and two defendants at fault, will be

by far the most frequent instance in which any allocation question

arises, and in such an instance a fairly simple set of steps may

also be utilized to arrive at the appropriate several and joint and

several liability figures to be set forth in the judgment. Assume

plaintiff's total damages are $100,000, and, as here, causative

fault is distributed 20% to the plaintiff, 60% to defendant A, and

20% to defendant B. First plaintiff's maximum recovery is

calculated at $80,000 (80% of $100,000); then the maximum liability

of defendant A is calculated at $75,000 (60/80 x $100,000) and the

maximum liability of defendant B is calculated at $50,000 (20/40 x

$100,000), all as above explained. Next, the amount of A's maximum

liability ($75,000) is subtracted from plaintiff's maximum recovery

($80,000), the result being $5,000 ($80,000 - $75,000 = $5,000),

which is the several liability of B. Next, the amount of B's

maximum liability ($50,000) is likewise subtracted from plaintiff's

maximum recovery ($80,000), the result being $30,000 ($80,000 -

$50,000 = $30,000), which is the several liability of A. Then, the
86

several liability of B ($5,000) and the several liability of A

($30,000) are added together, and the total of $35,000 ($30,000 +

$5,000 = $35,000) is subtracted from plaintiff's maximum recovery

($80,000), the result being $45,000, which is the joint and several

liability of A and B. Cast in this form, plaintiff would have

judgment against A alone for $30,000, and also against B alone for

$5,000, and further against A and B jointly and severally for an

additional $45,000. These figures total $80,000 ($45,000 + $30,000

+ $5,000 = $80,000). B's exposure is limited to $50,000 ($45,000

+ $5,000 = $50,000); and A's exposure is limited to $75,000

($45,000 + $30,000 = $75,000). Contribution would also be provided

for as between B and C (see note 22, supra).

In certain circumstances where three or more defendants and

the plaintiff are each found guilty of causative faultSQsurely an

extremely rare occurrenceSQan algebraic formula must be employed to

arrive at the appropriate amounts of the several liability of each

defendant and of the joint liability. Appropriate formulas are set

out in the appendix to this dissent. It is important to recall,

however, that it will always suffice to simply provide in the

judgment a maximum amount which may be collected from each

particular defendant, which is easily arrived at merely by

multiplying the plaintiff's total damages by the fraction whose

numerator is that particular defendant's percentage of the total

fault of all parties and whose denominator is the total of that

particular defendant's and the plaintiff's respective percentages

of the total fault of all parties. As previously noted, a judgment
 

53 The majority (majority op. fn. 13) mistakenly suggests

that a judgment in the simple form suggested (limiting a

negligent plaintiff's recovery from any one defendant to the

fraction of plaintiff's damages represented by that defendant's

percentage of the total negligence of all parties at fault

divided by the total of that defendant's and the plaintiff's

respective percentages of the total fault of all parties)

produces an ultimately different result from that produced by the

algebraic formula (providing for some several and some joint and

several liability) in situations involving three (or more)

defendants, only one of whom is insolvent. That is simply wrong. 

Take the case of a plaintiff, sustaining $100,000 total damages,

who is 25% at fault, and three defendants (D1, D2, and D3), each

of whom is likewise 25% at fault. The simple form judgment here

recommended would provide plaintiff a total recovery of $75,000,

not more than $50,000 of which could be collected from any one

defendant, and with provision that any defendant paying less than

$25,000 would be subject to contribution from any defendant

paying more than that. The judgment formulated in terms of both

several and joint liability would similarly award plaintiff a

total recovery of $75,000, composed of $12,500 several liability

of each of the three defendants plus $37,500 joint and several

liability of the three together (see appendix par. 1(d), example

2), and would likewise provide that any defendant paying less

than $25,000 would be subject to contribution from any defendant

paying more than that. In each instance the maximum amount

plaintiff can recover in total ($75,000) and the maximum he can

recover from any one defendant ($50,000) are the same.

The majority posits the situation where (as it eventuates

after judgment) nothing is collectible from D3, so that plaintiff

might then choose to collect $50,000 from D1 and $25,000 from D2

(instead of $37,500 from each), which is unfair to D1, because

contribution is not collectible from D3 (who is insolvent) and is

not provided for in the judgment as to D2 (as D2 has paid

$25,000). But this is a fault shared by both forms of judgment. 

Importantly, it is also a fault in the form of judgment the

majority espouses, namely an award to the plaintiff of $75,000

against all three defendants jointly and severally, with

provision for contribution in favor of any defendant paying more

than $25,000 against any paying less. In that situation,

plaintiff may also choose to collect $50,000 from D1 and $25,000

from D2, and D1 is then in the exact same fix. To the extent the

majority understands the matterSQand it is by no means clear that

it doesSQit is simply the pot calling the kettle black.

Of course, in any case it could be further provided that to

the extent any defendant was unable to pay its full equitable

share ($25,000 in our above three-defendant example) the level at

87

in that form, with appropriate provisions for contribution (see

notes 22 and 23, supra) will be wholly adequate.53
which the remaining two defendants became obligated for or

entitled to contribution would increase by their relative share

(here 50% for D1 and D2 each, as they are equally at fault) of

the deficiency, so that in the example if D3 could pay none of

his $25,000 equitable share, then D1 (who paid plaintiff $50,000)

could collect $12,500 in contribution from D2 (who paid $25,000

but is exposed to an additional $12,500 in contribution liability

by being allocated for this purpose 50% of the $25,000

uncollectible from D3). The merits or demerits of such an

approach to contribution do not vary as between the judgment

espoused by the majority ($75,000 for plaintiff as against all

three defendants jointly and severally) and either of the forms

espoused by this dissent ($75,000 for plaintiff but not more than

$50,000 from any one defendant, or $12,500 from each of three

defendants severally plus $37,500 from all three jointly).

The majority's example of a negligent plaintiff and three

negligent defendants, only one being insolvent, is simply a red

herring, whether in its plain vanilla form or with its

contribution problem overlay.

88

General Maritime Law

The majority concludes that it has always been a clearly

established rule of United States general maritime law that in our

hypothetical collision involving the three vessels, if all three

were equally at fault the crew boat could recover two-thirds of its

damages from the shrimper even though the shrimper was no more at

fault than the crew boat. Not surprisingly, however, the majority

cites no Supreme Court opinion so holding or stating, and only some

general language in a few scattered lower court decisions, the

earliest being in 1968, which do not directly address the question.

First, some background.

In The Catherine, 58 U.S. [17 How.] 170, 15 L.Ed. 233 (1855),

two vessels collided, each being at fault. The Supreme Court held

that the total loss should be divided equally, thus allowing a

party to recover despite its own negligence, albeit only half of

its loss. The Court stated:
89

". . . [I]t becomes necessary to settle the rule of

damages in a case where both vessels are in fault.

The question, we believe, has never until now come

distinctly before this court for decision. The rule that

prevails in the District and Circuit Courts, we

understand, has been to divide the loss. . . .

This seems to be the well-settled rule in the

English admiralty. . . .

Under the circumstances usually attending these

disasters, we think the rule deviding [sic] the loss the

most just and equitable, and as best tending to induce

care and vigilance on both sides in the navigation."

Id., 58 U.S. at 177-178.

Thereafter, in The Washington, 76 U.S. [9 Wall] 513, 19 L.Ed. 787

(1869), a passenger on a ferry, who sustained serious personal

injury when the ferry and the steamboat Washington collided,

libeled both vessels, each of which was found at fault. The

libelant-passenger, of course, was not at fault. The Supreme Court

stated:

"Both vessels being in fault, both were liable to

the libelant, and both could be proceeded against in the

same libel. The damages were properly apportioned

equally between the two vessels, the right being reserved

to the libelant to collect the entire amount of either of

them in case of the inability of the other to respond for

her portion." Id., 76 U.S. at 516.

The same result obtained in The Alabama, 92 U.S. 695, 23 L.Ed. 763

(1876), where the bark Ninfa, in tow of the tug Game-Cock, collided

with the Alabama. The Ninfa libeled both The Game-Cock and The

Alabama. "[B]oth The Alabama and The Game-Cock were in fault, and

. . . The Ninfa, which was in tow of The Game-Cock, and suffered

the loss, was not in fault." 92 U.S. at 695-96. "The district

court rendered a decree against both [The Alabama and The GameCock] for the whole [of The Ninfa's loss], regarding them as liable
90

in solido. The circuit court, on appeal reversed this decree, and

divided the loss between them, rendering a decree against each for

one half the amount." Id. at 696. The Ninfa appealed to the

Supreme Court, which held:

"Conceding, therefore, that a vessel in tow, and

without fault, is to be regarded as sustaining the same

relation to the collision which is sustained by cargo

(and it seems fair thus to consider it), we think that

the decree of the circuit court was erroneous, and that

a decree ought to be made against The Alabama and The

Game-Cock, and the respective stipulators, severally,

each for one moiety of the entire damage, interest, and

costs, so far as the stipulated value of said vessel

shall extend; and any balance of such moiety, over and

above such stipulated value of either vessel, or which

the libelant shall be unable to collect or enforce, shall

be paid by the other vessel or her stipulators to the

extent of the stipulated value thereof, beyond the moiety

due from said vessel.

This is substantially the form of decree sanctioned

by this court in The Washington and The Gregory, 9 Wall.

516, 19 L. ed. 788, a case involving similar principles,

although the particular point was not fully discussed in

that case." Id. at 697-98 (emphasis added).

Next came The Atlas, 93 U.S. 302, 23 L.Ed. 863 (1876), so

heavily relied on, and evidently misunderstood, by the majority.

There, a canal boat laden with cargo was under tow by The Kate when

the canal boat and The Atlas collided, and as a result the canal

boat sank and its cargo was lost. The subrogated insurers of the

cargo libeled The Atlas alone, and it was the only vessel before

the court, as The Kate was not brought in. Id. at 308-309. The

district court found that the cargo loss was "caused by the mutual

fault of the steam-tug Kate and the steamboat Atlas, and that the

libelants do recover against the steamboat Atlas one half of the

damages by them sustained . . . ." Id. at 309. The libelants
91

appealed, and the Supreme Court held that, as The Kate was not a

party to the suit and The Atlas had not attempted to bring it in,

the libelants, innocent of any wrongdoing, were entitled to recover

their full damages against The Atlas, not simply one half. The

Court cites The Washington with full approval and states that

"[m]uch care was taken in framing the decree in that case." The

Atlas at 318. The Court explains its holding as follows:

"Contributory negligence on the part of the libelant

cannot defeat a recovery in collision cases . . . .

Proof of the kind will defeat a recovery at common law;

but the rule in the admiralty is, that the loss in such

a case must be apportioned between the offending vessels,

as having been occasioned by the fault of both; but the

rule of the common law and of the admiralty is the same

where the suit is promoted by an innocent party, except

that the moiety rule may be applied in the admiralty, if

all the parties are before the court, and each of the

wrong-doers is liable to respond for his share of the

damage. Subject to that qualification, the remedy of the

innocent party is substantially the same in the admiralty

as in an action at law, the rule being, that in both he

is entitled to an entire compensation from the wrong-doer

for the injury suffered by the collision. . . .

Goods shipped as cargo, and their owners, as in the

case before the court, are innocent of all wrong; and the

owners of the cargo may sue the owners of one of the

ships, or both, and they may sue at law or go into the

admiralty, at their election, and having proved their

case, they are as much entitled to full compensation in

the admiralty as they would have been if they had elected

to pursue their common law remedy, saved to them by the

proviso contained in the 9th section of the Judiciary

Act. 1 Stat. at L., 77.

Co-wrong-doers, not parties to the suit, cannot be

decreed to pay any portion of the damage adjudged to the

libelant, nor is it a question in this case whether the

party served may have process to compel the other wrongdoers to appear and respond to the alleged wrongful act.

. . . .

Parties without fault, such as shippers and

consignees, bear no part of the loss in collision suits,
 

54 The Juniata involved a collision between the steam tug

Neafie, towing a flatboat belonging to the United States, and the

steamship Juniata, as a result of which the flatboat and The Neafie

were lost and The Neafie's owner, Pursglove, suffered serious

personal injuries. Pursglove and the United States each filed

separate libels against The Juniata, which were tried together.

92

and are entitled to full compensation for the damage

which they suffer from the wrong-doers, and they may

pursue their remedy in personam, either at common law or

in the admiralty, against the wrong-doers or any one or

more of them, whether they elect to proceed at law or in

the admiralty courts." Id. at 316-319 (emphasis added).

Plainly, The Atlas intended no departure from the moiety rule

of The Washington and The Alabama, but did not apply it solely

because the other vessel at fault, The Kate, was not before the

Court, and no one had tried to bring her in. Just as plainly, the

majority errs in suggesting that The Atlas' numerous references to

plaintiffs who are "without fault" or "innocent of all wrong" are

explainable as having been made fourteen years before the bar of

contributory negligence was lifted by The Max Morris, 11 S.Ct. 29

(1890). However, at least since the 1855 decision in The

Catherine, contributory negligence had been no bar. Moreover, The

Atlas was a collision case, its remarks were directed to such

cases, and it openly recognized that "[c]ontributory negligence on

the part of the libelant cannot defeat a recovery in collision

cases" although "[p]roof of the kind will defeat a recovery at

common law; but the rule in the admiralty is, that the loss in such

a case must be apportioned between the offending vessels." Id. at

316-317. The majority has clearly misread The Atlas.

The Juniata, 93 U.S. 337, 23 L.Ed. 930 (1876), follows the

same principles as The Atlas.

54
The district court found both The Neafie and The Juniata at fault

and held The Juniata liable to the United States and to Pursglove

for half their respective total damages (Pursglove's being

primarily for personal injuries). In Pursglove's case this

judgment was affirmed, "fault on both sides being established, an

apportionment of the damages necessarily followed." Id. at 339.

But it was held that the United States was entitled to all its

damages against The Juniata because the United States was not at

fault and The Neafie (and Pursglove) were not parties to the United

States' libel:

"The branch of the case relative to the United

States is upon a different footing. Their flatboat is

neither alleged nor proved to have been in anywise in

fault. The principle of apportionment has, therefore, no

application to them. Their boat not being inculpated,

they are entitled to full damages. The decree of the

circuit court is erroneous in not giving it to them.

We should adjudge that half the amount should be

paid by the tug [The Neafie], and the other half by the

steamer [The Juniata], but that the libel of the United

States is against the steamer alone. The tug, therefore,

cannot be reached in this proceeding." Id. at 340.

93

However, where both vessels at fault are before the court, the

proper decree in favor of an innocent third party (such as a

passenger, a tow, or cargo) continued to be the "moiety" rule,

granting judgment for half the innocent party's damages against

each of the two offending vessels, with provision that if the

libelant should be unable to collect from one vessel its moiety,

the other vessel would then be responsible for the deficiency. In

such a case, it was reversible error to enter a judgment for the

innocent plaintiff's damages against both vessels at fault jointly.

See, e.g., The Sterling, 1 S.Ct. 89 (1882), where the Court stated:

"This was a suit in admiralty against the ship Sterling

and tow-boat Equator, for damages sustained by the bark

Sif in a collision. Both the ship and tow-boat were

found to be in fault, and they were condemned in solido

for the whole amount of the loss. From a decree to that

effect this appeal was taken.
 

55 See also, e.g., The Hudson, 15 Fed. 162, 164 (S.D.N.Y.

1883):

"This decision [referring to The Atlas], however,

was not designed to affect, and does not affect in any

degree, the right of the owners of the several vessels

liable to have among themselves an apportionment of the

damages whenever all the parties are before the court.

The rule in the admiralty in cases of negligence, as is

well known, is in direct opposition to the rule of the

common law. By the latter, if the plaintiff be guilty of

negligence, he recovers nothing; while in admiralty the

damages, whether to the libelant's vessel or to the

claimant's, or to the cargo of either, are apportioned

equally between the vessels in fault. And where the

innocent owner of the cargo, or of a tow in charge of one

vessel, sues and recovers against both vessels, the

libelant cannot recover a judgment in solido against both

for his whole damage, with a right to levy his execution

in full against either alone, as at common law, but only

a judgment for a moiety of the damages against each

vessel, with an alternative right or recourse against

either for so much of the moiety adjudged to be paid by

the other as he is unable to collect from the latter.

This principle, first sanctioned by the judgment of the

supreme court in the case of The Washington and the

Gregory, 9 Wall. 513, 126, was afterwards, upon full

deliberation, reaffirmed in the case of The Alabama and

the Gamecock, 92 U.S. 695, and has been repeatedly

asserted in subsequent cases. The Virginia Ehrman, 97

U.S. 317; The City of Hartford, 97 U.S. 329, 330; The

Atlas, supra; The Civilta, 103 U.S. 699." (Emphasis

added).

94

It is conceded that upon the facts found the owners

of the Sif are entitled to a decree against the ship and

the tow-boat, as both were in fault. The wellestablished rule in such cases is to apportion the

damages equally between the two offending vessels, the

right being reserved to the libelant to collect the

entire amount from either of them in case of the

inability of the other to respond for her portion. . . .

[citations] As in this case the decree was against both

vessels for the full amount of the loss, it should be

modified so as to be against the Sterling and the

Equator, and their respective stipulators, severally,

each for one-half of the entire damage and costs; any

balance of such half which the libelant shall not be able

to enforce against either vessel to be paid by the other

vessel or her stipulators." Id. at 89-90.55
 

56 When two vessels were at fault, but only one was sued, to

avoid being held liable to an innocent third party for that party's

entire loss, as in The Atlas and The Juniata, and to invoke the

"moiety" rule, the vessel sued would seek to bring in the other

vessel. This was originally allowed under the court's inherent

power. The Hudson, 15 Fed. 162, 172-176 (S.D.N.Y. 1883). This

practice was soon confirmed by the Supreme Court rule. See The Max

Morris, 11 S.Ct. 29 (1890), where, immediately after observing that

in The Atlas "the libelant was entitled to recover the entire

amount of its damages from The Atlas, the tug not having been

brought in as a party to the suit," the Court goes on to state:

"By rule 59 in admiralty, promulgated by this court March 26, 1883

. . . the claimant or respondent in a suit for damage by collision

may compel the libelant to bring in another vessel or party alleged

to have been in fault." The Max Morris, 11 S.Ct. at 31. See also

The Beaconsfield, 15 S.Ct. 860, 862-863 (1895). Although Rule 59

technically applied only in collision cases, admiralty courts soon

began to follow the same practice in non-collision cases and thus

95

And this rule continued to be enforced. Thus in Crain Brothers,

Inc. v. Wirman and Ward Company, 223 F.2d 256 (3d Cir. 1955), a

suit by innocent cargo against the barge charterer, Union, and

barge owner, Crain, who were both at fault, the Court stated:

"We disagree, however, with the manner in which

damages were awarded. Judgment was entered against both

Union and Crane in the full amount. In admiralty, we

have the rule of divided damages. . . . Where two

parties are jointly responsible for injury to a third,

each is primarily liable for only one-half the damages.

the charterer and owner of the barge should each be

assessed with one-half the cargo loss with a provision

that if the libellant cannot collect any part from one,

that amount should be assessed against the other in

addition to the one-half for which it is primarily

liable." Id. at 258.

See also Gilmore & Black, Admiralty (2d ed. 1975) at 528 ("Where a

third party is damaged, and sues two ships that are at fault, he is

not prejudiced by the half-damages rule, but may collect his full

damages from one if the other is unable to respond in damages, or

may collect any deficiency if one cannot pay its full half"

[footnote omitted]).56
in both types of cases this was the practice "for over 30 years,

sanctioned by rule in collision cases and by judicial decision in

non-collision cases. Finally, in 1921, the Admiralty Rules

expressly broadened the third-party practice to all maritime cases,

providing for it in new Admiralty Rule 56." 3 Moore's Federal

Practice (2d ed.) ¶ 14.31[2] at 14-161. When the Admiralty Rules

were merged with the Rules of Civil Procedure in 1966, this feature

of admiralty practice was recognized in Fed. R. Civ. P. 14(c),

allowing the defendant in admiralty cases to "bring in a third

party defendant who may be wholly or partly liable . . . to the

plaintiff." See 3 Moore's Federal Practice (2d ed.) ¶ 14.31[1], ¶

14.31[3]. The Advisory Committee Notes to the 1966 amendments to

Rule 14 explain this aspect of Rule 14(c) as follows:

"Rule 14 was modeled on Admiralty Rule 56. An

important feature of Admiralty Rule 56 was that it

allowed impleader not only of a person who might be

liable to the defendant by way of remedy over, but also

of any person who might be liable to the plaintiff. The

importance of this provision was that the defendant was

entitled to insist that the plaintiff proceed to judgment

against the third-party defendant. In certain cases this

was a valuable implementation of a substantive right.

For example, in a case of ship collision where a finding

of mutual fault is possible, one shipowner, if sued

alone, faces the prospect of an absolute judgment for the

full amount of the damage suffered by an innocent thirdparty; but if he can implead the owner of the other

vessel, and if mutual fault is found, the judgment

against the original defendant will be in the first

instance only for a moiety of the damages; liability for

the remainder will be conditioned on the plaintiff's

inability to collect from the third-party defendant."

(Emphasis added).

The majority suggests (majority op. fn. 18) that these

principles have no application to "maritime personal injury cases."

However, The Washington was solely a "maritime personal injury"

case, and the Supreme Court held that "[t]he damages were properly

apportioned equally between the two vessels, the right being

reserved to the [innocent] libelant to collect the entire amount of

either of them in case of the inability of the other to respond for

her portion." Id., 76 U.S. at 516. See also The Juniata (personal

injury). The majority's unsupported suggestion (fn. 18) that these

principles went out with the "nineteenth century" is similarly

misguided, as the above quotation from the Advisory Committee Notes

to the 1966 Rule 14 amendments reflect. See also, e.g., Crain

Brothers, Inc., 223 F.2d at 258; Empire Seafoods, Inc. v. Anderson,

398 F.2d 204, 217 (5th Cir.), cert. denied, 89 S.Ct. 449 (1968).

Nor were these principles restricted to collision cases, as

96
reflected by the adoption in 1921 of Admiralty Rule 56, blessing

the line of judicial decisions which had extended The Hudson

principles to noncollision cases, and the carry forward of these

principles to Rule 14(c) in 1966.

 

57 See also Cooper Stevedoring Co., Inc. v. Fritz Kopke,

Inc., 94 S.Ct. 2174, 2176-2177 (1974), where the Court similarly

remarked on the breadth of the divided damages principle:

". . . [T]he principle of division of damages in

admiralty has, over the years, been liberally extended by

this Court in directions deemed just and proper. In one

line of cases, for example, the Court expanded the

doctrine to encompass not only damage to the vessels

involved in a collision, but personal injuries and

property damage caused innocent third parties as well. .

. . In other cases, the Court has recognized the

application of the rule of divided damages in

circumstances not involving a collision between two

97

The Max Morris was a personal injury suit by a longshoreman

against the vessel he was loading, and both parties having been

found at fault the question certified to the Supreme Court was

whether "the libelant . . . is entitled to a decree for divided

damages," which the Supreme Court "answered in the affirmative."

Id. at 31, 33. The Court noted that under The Catherine fault did

not bar all recovery in collision cases, and, after discussing,

among other decisions, The Washington, The Alabama, The Juniata,

and Atlee v. Packett Co., 21 Wall. 389, 22 L.Ed. 619 (1875) (where

a vessel struck a pier), observed that "this court has extended the

rule of the division of damages to claims other than those for

damages to the vessels which were in fault in a collision." Id. at

32. The court then reviewed several lower court decisions

concerning damage to cargo or tows, caused by mutual fault but not

involving any collision, where the divided damages rule was applied

to allow some recovery despite the plaintiff's fault.57 The Court
vessels, as where a ship strikes a pier due to the fault

of both the shipowner and the pier owner, . . . or where

a vessel goes aground in a canal due to the negligence of

both the shipowner and the canal company. . . ."

 

58 The Court further remarked:

"Whether in a case like this the decree should be

for exactly one-half of the damages sustained, or might,

in the discretion of the court, be for a greater or less

proportion of such damages, is a question not presented

for our determination upon this record, and we express no

opinion upon it." Id.

Cf. The Lackawanna, 151 Fed. 491, 496 (S.D.N.Y. 1907)

(awarding injured negligent ferryboat passenger 1/3 recovery

against ferryboat, as his conduct "constituted negligence . . . to

a greater degree than that of the ferryboat.").

98

concluded that these cases had properly held that the libelant's

fault should only diminish recovery, not completely bar it, and

that such a rule was appropriate "as in harmony with the rule for

the division of damages in cases of collision." Id. at 33.

Accordingly, it held that the libelant "is entitled to a decree for

divided damages." Id.

58

There are basically two things that one can say about all

these cases. First, none of them involved a situation in which the

instant question could have ever been presented; that is, none

involved a negligent plaintiff and at least two negligent other

parties or actors. Second, the general maritime law did not

slavishly follow the common law. Nor was the only difference that

admiralty allowed the negligent plaintiff some (albeit diminished)

recovery, for the innocent plaintiff's rights were also somewhat

different, as Judge Addison Brown explained in The Hudson, 15 F.

162, 164 (S.D.N.Y. 1883):
 

59 Reliable Transfer states its holding as follows:

"We hold that when two or more parties have contributed

by their fault to cause property damage in a maritime

collision or stranding, liability for such damage is to

be allocated among the parties proportionately to the

comparative degree of their fault, and that liability for

such damages is to be allocated equally only when the

parties are equally at fault or when it is not possible

fairly to measure the comparative degree of their fault."

Id. at 1715-16.

 

60 See, e.g., Edmonds v. Compagnie Generale

Transatlantique, 99 S.Ct. 2753, 2762 n.30 (1979) ("Reliable

Transfer merely changed the apportionment from equal division to

division on the basis of relative fault.").

99

"And where the innocent owner of the cargo, or of a tow

in charge of one vessel, sues and recovers against both

vessels, the libelant cannot recover a judgment in solido

against both for his whole damage, with a right to levy

his execution in full against either alone, as at common

law, but only a judgment for a moiety of the damages

against each vessel, with an alternative right of

recourse against either for so much of the moiety

adjudged to be paid by the other as he is unable to

collect from the latter." (Emphasis added).

Of course, United States v. Reliable Transfer Co., 95 S.Ct.

1708 (1975), abandoned the rule that loss was always to be divided

equallySQor per vesselSQamong vessels at fault, and held that

instead the allocation was to be based on the actual comparative

fault of each.59 However, there is nothing to indicate that the

divided damages rule or its operation was changed otherwise than by

replacing automatic equal per vessel at fault allocation with

allocation by actual comparative degree of fault. The allocation

was merely made more precise, so as to be fairer.60

Suppose in The Juniata (see note 25, supra) the libelant

United States had also been at fault equally with The Juniata.

Would it have recovered two-thirds of its loss from The Juniata
 

61 Judge Moore dissented in part as to other aspects of the

case. 338 F.2d at 727-728.

100

because the proof showed that The Neafie also was guilty of equal

fault, even though the United States libeled only The Juniata (and

The Neafie was not brought in)? No authority suggests such a

perverse result. Suppose that the United States libeled both The

Juniata and The Neafie, and all three were found equally at fault.

The United States would then presumably have recovery for one-third

of its damages against The Juniata and The Neafie each, but what

would the United States' alternative right of recovery be if, for

example, the full third could not be collected from The Neafie?

Could the United States then collect all of that shortfall from The

Juniata, or only half of it? The only decision we have found

addressing this question is Petition of Kinsman Transit Company,

338 F.2d 708 (2d Cir. 1964), cert. denied, 85 S.Ct. 1026 (1965),

decided by a distinguished panel of the Second Circuit. There

three parties, the City of Buffalo, Continental Grain Company, and

Kinsman Transit Company, were each at fault and each suffered

damages. Kinsman, however, was held entitled to limit its

liability under the Limitations of Vessel Owner's Liability Act, 46

U.S.C. §§ 181-188. Judge Friendly, writing for himself and Judges

Waterman and Moore,61 held as follows:

"A separate problem is how to deal, among the

negligent parties, with that part of Kinsman's

responsibility of which its limitation frees it. We

think the fair solution is to divide that deficiency

equally between Buffalo and Continental, rather than to

hold Continental liable to Buffalo for the entire

unsatisfied portion of Kinsman's share and vice versa. .

. .
101

The decree is modified so that the City of Buffalo

may recover two-thirds of the damages to its property

from Continental and Kinsman subject to limitation by the

latter but with Continental bearing only half of

Kinsman's deficiency, that Continental may recover twothirds of the damages to its property from the City and

Kinsman subject to limitation by the latter but with the

City bearing only half of Kinsman's deficiency, and that

Kinsman, which made no claim against Continental, may

recover half of the damages suffered by [Kinsman's

vessel] the Shiras at the bridge from the City of

Buffalo, which may then obtain contribution of half that

amount from Continental." Id. at 726.

KinsmanSQwhich is squarely contrary to the majority's approach

SQis directly on point and should control. We are aware of no

contrary authority.

The few decisions cited by the majority are not persuasive of

a contrary result. The only relevant issue in Empire Seafoods,

Inc. v. Anderson, 398 F.2d 204 (5th Cir.), cert. denied, 89 S.Ct.

449 (1968), was whether Anderson and Gates, two employees of

Cleary, a contractor working on a bridge, should have been awarded

recovery directly against Cleary, as well as against Empire, whose

vessel struck the bridge and who was awarded recovery over against

Cleary for half of what the judgment required it to pay Anderson

and Gates. All parties were at fault. There was no issue on

appeal as to how much Anderson and Gates should recover from either

Cleary or Empire, but only whether their recovery could be directly

against Cleary at all or, if not, whether whatever they were

awarded against Empire could be included as Empire's damages in

Empire's action against Cleary. In our initial opinion, we held

Anderson and Gates could recover directly from Cleary, as well as
 

62 Thus Benedict on Admiralty § 416 (6th ed. 1940),

commences by stating in relevant part:

"Where suit in rem is brought by a party, e.g., a

cargo owner, on a cause of action against two vessels,

for damages caused by a collision between such vessels,

or is brought by an innocent third party on a cause of

action involving more than one vessel . . . [e]ach

vessel, if there be two at fault, is primarily liable for

one-half of the damages . . . [b]ut when one vessel is

not able to respond for one-half of the damages, the

other must make up the deficiency." Id. at 184-85.

Then follows the "[t]he decree, therefore," language which we

quoted in Empire.

102

Empire, and supported this by quoting with approval the following

passage from Benedict on Admiralty § 416 (6th ed. 1940), viz:

"'The decree, therefore, should provide that each vessel

. . . pay one-half of the entire damages, interest and

costs, . . . and it should further provide that any part

of the one-half damages assessed against either vessel,

which libelant may not be able to collect from that

vessel, be assessed against the other vessel, in addition

to the one-half which she is in the first instance

compelled to pay.'" Empire at 217.

Recognizing that this text was addressing liability for the damages

of an innocent third party62SQas is obvious from the reference to

the two vessels at fault each being primarily liable for "one-half

of the entire damages"SQour original opinion appended a footnote at

the end of the above quotation, as follows:

"

21. The authorities state the rule in terms of 'innocent

third parties.' While it might be argued that these

authorities can have no application to the instant

situation since Anderson and Gates were negligent, we are

convinced that the reduction of their respective

recoveries under the comparative negligence doctrine is

to be considered full penalty for their fault and that

they must, thereafter, be treated in the same manner as

'innocent third parties.'" Empire at 217 n.21.
103

But, this footnote does not addressSQand there was no issue before

our Empire panel concerningSQwhether the plaintiff, whose

negligence is equal to that of each of the two defendants so that

each defendant is initially liable for a third of damages, if

unable to recover his third from one of the defendants may then

recover it all from the other, or may recover only half of the

deficiency, as in Kinsman. Moreover, on rehearing in Empire we

withdrew our holding that Anderson and Gates could recover directly

from ClearySQthe holding made in that portion of the opinion to

which footnote 21 was appendedSQand stated: "Upon reconsideration,

we are convinced that what we said about the District Court decree

in our original opinion was apropos only to those instances where,

aside from a statutory prohibition, an innocent third party is

injured by the mutual fault of vessels in a collision." Empire at

217.

The majority also relies on Gele v. Chevron Oil Co., 574 F.2d

243 (5th Cir. 1978), involving a collision between a pleasure craft

and a Chevron structure in the Gulf of Mexico in which Gele, a

guest on the pleasure craft, was injured. The district court held

Chevron solely at fault. On appeal, both Gele and Chevron

contended that the pleasure craft, operated by Herr, was also at

fault, and we agreed. We remanded to determine whether or not Gele

also played such a role in the pleasure craft's operation so as to

be chargeable with its fault, and the degrees of comparative fault

as between the pleasure craft and Chevron. We next held that

neither Chevron nor Herr were liable to the other in indemnity.
 

63 We also observe that while Gele references the portion of

Empire at 398 F.2d 217, it does not specifically reference Empire's

footnote 21, which addresses negligent plaintiffs. The Empire text

at 398 F.2d 217 speaks to a situation where "'two parties are

responsible for injury to a third'" and hence "'each is primarily

liable for one-half the damages,'" the two responsible parties

"'should each pay one-half the damages,'" and if that cannot be

collected from one, the other will be obligated to make up the

deficiency. Such a scenario obviously contemplates a plaintiff not

guilty of any causative fault. Moreover, Empire's text at 398 F.2d

217 likewise includes the rehearing language that what was said in

that part of the original opinion "was apropos only to those

instances where . . . an innocent third party is injured by the

mutual fault of vessels."

104

Immediately following this latter holding appears the following

passage relied on by the majority here, viz:

 "This decision, of course, does not affect Gele's right

to collect all his damages from one party in the event he

is unable to obtain the relative portion of damages from

each party at fault. Empire Seafoods, Inc. v. Anderson,

5 Cir., 1968, 398 F.2d 204, 217, 1968 A.M.C. 2664, cert.

denied, 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444."

Gele at 251 (emphasis added).

This passage appears to address only a situation in which Gele

was not chargeable with any fault, as else he would not be entitled

to "collect all his damages" from anyone (and reference to his

collection "from each party at fault" would likewise be

inappropriate).63 In any event, there is nothing to indicate that

there was any issue before the Gele court concerning how much Gele,

if negligent, could recover from Chevron or Herr in the event that

collection could not be affected from one of them. As to the issue

now before us, the quoted Gele language is no more than a passing

and inapposite remark.

The majority's reliance on Drake Towing Co., Inc. v. Meisner

Marine Const. Co., 765 F.2d 1060 (11th Cir. 1985), is plainly
 

64 The United States had not impleaded Meisner. Id. at

1068.

105

misplaced. In that case, Drake's vessel was damaged when it struck

a piece of concrete left in the channel by Meisner. Drake sued

Meisner and the United States, the latter for its misplacement of

a marking buoy. However, Drake settled with Meisner prior to

trial. On trial, fault was allocated twenty percent to Drake,

twenty percent to the United States and sixty percent to Meisner,

and the district court awarded Drake judgment against the United

States for twenty percent of Drake's total damages. Drake

appealed, contending "that the district court erred in decreasing

its recovery against the United States by the percentage of

liability attributed to Meisner, a nonparty to the trial of the

case."

64 The Eleventh Circuit agreed. Its holding, however, is

plainly contrary to McDermott, Inc. v. Am Clyde, 114 S.Ct. 1461

(1994). Just as the majority does here, the Drake Towing panel

relied on, and misread, Edmonds v. Compagnie General

Transatlantique, 99 S.Ct. 2753 (1979). See Drake Towing, 765 F.2d

at 1067. All that aside, however, the majority here clearly

misreads Drake Towing itself and wholly ignores its actual holding.

The majority relies on the opinion's statement that "Drake may

recover its entire damages, less that portion attributable to its

own fault, from the United States." Id. The majority apparently

believes that this means that the United States was charged with

all Meisner's fault and thus Drake was held entitled to recover

eighty percent of its damages from the United States. But, if that
 

65 And, this is repeated at the end of the opinion where the

court says: "We vacate his [the district court's] allocation of

liability, however, and remand the case to allow him to reallocate

liability between Drake and the United States without considering

the responsibility of Meisner." Id. (emphasis added).

106

were so, then the Eleventh Circuit would simply have reformed the

judgment (or ordered the district court to do so) to so reflect

(there being no issue as to the amount of Drake's total damages).

However, that is not what the Eleventh Circuit did. Rather, it

held that "[t]he issue of Meisner's liability is irrelevant to the

determination of that of the United States," id. (emphasis added),

and the court "therefore remand[ed] the case to the district court

to reallocate liability between Drake and the United States without

considering the negligence of Meisner." Id. at 1068 (emphasis

added).65 In other words, Drake Towing held that the relevant

comparison was not, as the majority here would have it, that

between the negligence of Drake, on the one hand, and the combined

negligence of Meisner and the United States, on the other hand, but

rather was simply that between the negligence of Drake and the

negligence of the United States, without considering whether or to

what extent Meisner was negligent. Drake Towing does not support

the majority here; rather, it rejects the very position which the

majority contends for.

These are essentially the general maritime law cases cited by

the majority. They simply do not sustain its assertion of a wellestablished general maritime law rule allowing a plaintiff, in an

accident or collision caused by his fault and that of two others

acting independently of each other, with each of the three equally
107

guilty, to hold either one of the other two liable for more than

half his damages. The decision that comes closest to really

addressing this issue is Kinsman, and it plainly supports the

approach advocated in this dissent. It is not contended that that

approach is well established either. The point simply is that the

issue is essentially open. We should choose the fairest and most

logical approach.

LHWCA Cases

The majority also relies on cases involving injuries covered

by the LHWCA, principally Pope & Talbot, Inc. v. Hawn, 74 S.Ct. 202

(1953), and Edmonds. These cases are plainly inapposite, as the

subject matter of the instant case is not within the scope of the

LHWCA, which does not reach injuries or activities within the

territorial waters of foreign nations.

Examination of these decisions likewise reveals not only that

they were driven by their LHWCA setting, as is made plain by

McDermott, but also that they did not purport to address or

consider the issue here presented.

In Pope & Talbot, Hawn, a ship repairman employed by Haenn,

was injured while on board Pope & Talbot's vessel. Hawn began

receiving LHWCA compensation payments from Haenn and then sued Pope

& Talbot for negligence, agreeing with Haenn to refund to it the

LHWCA payments it had made out of any sums Hawn recovered from Pope

& Talbot. Pope & Talbot brought in Haenn, seeking contribution or

indemnity from it. A jury found Pope & Talbot, Haenn, and Hawn

each negligent; seventeen-and-a-half percent negligence was
 

66 The judgment as finally entered awarded Hawn $29,700

against Pope & Talbot (871⁄2% of Hawn's $36,000 total damages) and

awarded Pope & Talbot $8,331.35 in contribution against Haenn. The

$8,331.35 was calculated as being the sum of all LHWCA compensation

and medical payments previously made by Haenn to Hawn ($5,881.35)

plus the maximum remaining amount which Haenn could owe to Hawn in

the future as LHWCA compensation ($2,450). Id., 100 F.Supp. 338.

 

67 In Halcyon, Baccile, a ship repairmen employed by Haenn,

sued Halcyon for injuries incurred on its vessel. Halcyon brought

in Haenn; by agreement of all parties, a $65,000 judgment was

rendered for Baccile against Halcyon. A jury found Haenn 75% at

fault and Halcyon 25%, and the district court granted Halcyon

judgment for contribution against Haenn in the amount of $32,500.

Baccile v. Halcyon Lines, 89 F.Supp. 765 (E.D. Pa. 1950). The

Court of Appeals reformed the judgment so that the amount of

contribution awarded Halcyon could not exceed the amount Haenn

could have been compelled to pay Baccile under the LHWCA had he

elected to claim compensation thereunder. Baccile v. Halcyon

108

assigned to Hawn, but no percentage was assigned to either Haenn or

to Pope & Talbot, and it does not appear that any complaint was

ever made of this manner of submission. The district court

rendered judgment for Hawn against Pope & Talbot for 871⁄2% of his

total damages and awarded Pope & Talbot contribution against Haenn

in the amount of half of Pope & Talbot's liability to Hawn (but not

more than Haenn's maximum potential LHWCA liability to Hawn). Hawn

v. Pope & Talbot, 99 F.Supp. 226 (E.D. Pa. 1951).66 On appeal, the

Third Circuit affirmed the award against Pope & Talbot, but

reversed the award against Haenn, holding that contribution was not

available. Hawn v. Pope & Talbot, 198 F.2d 800 (3d Cir. 1952).

The Supreme Court granted Pope & Talbot's application for

certiorari, but affirmed the Third Circuit. It held that under

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 72 S.Ct. 277

(1952), contribution against Haenn was barred. Pope & Talbot, 74

S.Ct. at 204.67 It likewise rejected Pope & Talbot's alternative
Lines, 187 F.2d 403 (3d Cir. 1951). Haenn and Halcyon were both

granted review by the Supreme Court, which held that Halcyon was

not entitled to any contribution. The Court noted that: "Where

two vessels collide due to the fault of both, it is established

admiralty doctrine that the mutual wrongdoers shall share equally

the damages sustained by each, as well as personal injury and

property damage inflicted on innocent third parties." Halcyon, 72

S.Ct. at 279. It went on to observe that it had never expressly

authorized contribution in noncollision cases, but that several

lower courts had. Id. n.5. However, it further noted that "[b]oth

parties claim that the decision below limiting an employer's

liability for compensation to those uncertain amounts recoverable

under the Harbor Workers' Act is impractical and undesirable." Id.

at 279. Although recognizing that "[t]o some extent courts

exercising jurisdiction in maritime affairs have felt freer than

common-law courts in fashioning rules," id. at 280 (footnote

omitted), it declined to fashion a contribution rule in the case

before it. It then called attention to the LHWCA provisions for

liability without fault, scheduled contributions and abolition of

contributory fault and assumption of risk. Id. It noted that were

contribution available, it would be a question whether "the amount

of contribution should be limited by the Harbor Workers' Act." Id.

It concluded by stating, "In view of the foregoing, and because

Congress while acting in the field has stopped short of approving

the rule of contribution here urged, we think it would be

inappropriate for us to do so." Id. at 280-281.

Subsequently, in Cooper Stevedoring Co., Inc. v. Fritz Kopke,

Inc., 94 S.Ct. 2174 (1974), the Court allowed contribution in a

noncollision case, relying on the general maritime law collision

cases, id. at 2176-2177, and in effect holding that Halcyon was

entirely driven by the fact that contribution there was sought from

the LHWCA employer and that Halcyon was limited to that

circumstance. Id. at 2177-2178.

 

68 The Court stated:

"A weakness in this ingenious argument is that § 33 of

the Act has specific provisions to permit an employer to

109

contention that because Hawn had agreed to refund his LHWCA

payments to Haenn out of his recovery from Pope & Talbot, therefore

"the judgment against it [Pope & Talbot] should be reduced by this

amount." Id. at 206. The Court rejected this contention as being

inconsistent with section 33 of the LHWCA and as in effect allowing

contribution from the employer contrary to Halcyon.

68 The Court
recoup his compensation payments out of any recovery from

a third person negligently causing such injuries. Pope

& Talbot's contention if accepted would frustrate this

purpose to protect employers who are subjected to

absolute liability by the Act. Moreover, reduction of

Pope & Talbot's liability at the expense of Haenn would

be the substantial equivalent of contribution which we

declined to require in the Halcyon case." Pope & Talbot,

74 S.Ct. at 206.

 

69 Pope & Talbot likewise rejected the notion that

Pennsylvania lawSQwhich barred any recovery for any degree of

contributory negligenceSQshould apply. Id. at 205. It further

refused to overrule Seas Shipping Co. v. Sieracki, 66 S.Ct. 872

(1946), and rejected the suggestion that a "Sieracki-seaman" could

not recover for vessel negligence as he was a species of seaman but

was not covered by the Jones Act. Id. at 206-207.

110

likewise rejected Pope & Talbot's contention that "contributory

negligence should have been accepted as a complete bar to Hawn's

recovery," stating:

"The harsh rule of the common law under which

contributory negligence wholly barred an injured person

from recovery is completely incompatible with modern

admiralty policy and practice. Exercising its

traditional discretion, admiralty has developed and now

follows its own fairer and more flexible rule which

allows such consideration of contributory negligence in

mitigation of damages as justice requires. Petitioner

presents no persuasive arguments that admiralty should

now adopt a discredited doctrine which automatically

destroys all claims of injured persons who have

contributed to their injuries in any degree, however

slight. Pope & Talbot, 74 S.Ct. at 204-205 (emphasis

added; footnote omitted).69

That is just what this dissent asks for, a "fairer and more

flexible" rule allowing "consideration of contributory negligence

in mitigation of damages as justice requires."

Other than Pope & Talbot's "ingenious argument" that Hawn's

recovery from it should be reduced by what he received under the

LHWCA, which the Court rejected as contrary to LHWCA section 33
 

70 Moreover, as neither Pope & Talbot's nor Haenn's

percentage of fault was found, it was not possible to compare

Hawn's percentage of fault to Pope & Talbot's alone, as

distinguished from Pope & Talbot's and Haenn's together.

111

(see note 39, supra), Pope & Talbot's position vis-a-vis Hawn was

simply an all or nothing oneSQHawn should not recover at all from

it, not that his recovery was not properly calculated. The point

here in issue was simply not before the Court in Pope & Talbot, nor

did the Court there in any way address it.70 Pope & Talbot was an

LHWCA-driven case, and simply does not speak to the present

question.

We turn now to Edmonds, the majority's lead case. There,

Edmonds, a longshoreman, was injured in 1974 on a vessel in the

course of his employment. He received LHWCA compensation from his

employer, the stevedore, and brought suit against the vessel's

owner for negligence. The jury found Edmonds suffered a total of

$100,000 damages, that he was 10% at fault, that the vessel was 20%

at fault, and that the stevedore, which was not a party to the

suit, was 70% at fault. The district court granted judgment for

Edmonds against the vessel owner for $90,000. The Court of Appeals

held that Edmonds could recover no more than $20,000 from the

vessel owner, its percentage of the total fault of all three actors

times the total damages. Edmonds v. Compagnie General

Transatlantique, 577 F.2d 1153 (4th Cir. 1978). The Supreme Court

reversed, holding that Edmonds was entitled to recover $90,000 from

the vessel owner. Edmonds v. Compagnie General Transatlantique, 99

S.Ct. 2753 (1979).
112

Two things may be said about Edmonds. First, it was driven by

the LHWCA. Edmonds extensively reviews how the pure several

liability approach of the Court of Appeals would affect the

stevedore's and longshoreman's rights under the LHWCA and

particularly the 1972 amendments thereto. Id. at 2761-62. The

Court concludes by observing "we are mindful that here we deal with

an interface of statutory and judge-made law," id. at 2762, and

expressing reluctance to "knock out of kilter" the "delicate

balance" struck by Congress between the rights of longshoremen,

stevedores, and shipowners in the 1972 amendments to the LHWCA.

Id. at 2763. Any doubt on this score is surely removed by

McDermott where the Court states that "Edmonds was primarily a

statutory construction case and related to special interpretive

questions posed by the 1972 amendments to the Longshoremen's and

Harbor Workers' Compensation Act." McDermott, 114 S.Ct. at 1471.

This was not idle dicta, for in McDermott a principle argument of

respondents was that "the proportionate share rule," which

McDermott ultimately approved, "is inconsistent with Edmonds."

McDermott, 114 S.Ct. at 1471. Moreover, several courts, including

the Eleventh Circuit in Self v. Great Lakes Dredge & Dock Co., 832

F.2d 1540, 1548 (11th Cir. 1987) ("bound by the Supreme Court's

guidance and the rule in Edmonds"), and this Court in Hernandez v.

M/V Rajaan, 841 F.2d 582, 591 (5th Cir.), cert. denied, 109 S.Ct.

530 (1988) (following reasoning of Self), previously had rejected

the proportionate fault settlement credit rule adopted in McDermott

on the theory that it was inconsistent with Edmonds. We should
113

indeed be wary of again reading Edmonds too broadly. Finally, we

cannot ignore McDermott's express and apparently approving

reference to section 2 of the UCFA (quoted in note 11, supra),

particularly to that section's provision for "reallocation of

insolvent defendant's equitable share." McDermott at 1471 n.32

(see also id. n.31). Seemingly, McDermott considers such an

approach at least an unforeclosed option in the non-LHWCA context.

Second, all the parties and courts involved in Edmonds

considered only two alternatives, namely whether to apply pure

several liability, with the vessel being liable only for its 20%

share and bearing no part of the stevedore's 70%, or whether, on

the other hand, to apply joint and several liability, as would be

the case if the plaintiff had not been negligent, so that the

vessel would be liable for 90% and would bear all of the

stevedore's fault. No consideration was given to, and there was

even no recognition of, the possibility that the stevedore's fault

should simply be ignored or, what is essentially the same thing,

that the stevedore's fault should be allocated between the

longshoreman and the vessel in the same ratio that the negligence

of each bore to that of the other. Apart from its concern with the

LHWCA, the thrust of Edmonds amounts to a questioning of the

proposition that a third party's fault should reduce the liability

which the defendant would otherwise have. Edmonds cites no

authority or general principles addressing how the negligence of a

plaintiff is to be compared where there are two or more other
 

71 The general maritime law cases cited by Edmonds, 99 S.Ct.

at 2756 n.7, are Cooper Stevedoring Co., Inc. v. Fritz Kopke, Inc.,

94 S.Ct. 2174 (1974); Halcyon; The Atlas; and The Juniata. In the

first three of these, the plaintiff was not at fault. That was

also the situation in The Juniata so far as concerns the libel by

the United States. In the libel by Pursglove in The Juniata, the

plaintiff was at fault, but there was only one other actor at

fault. None of these cases could possibly have presentedSQand none

purported to address, even in dictaSQthe issue now before us. This

is also true as respects the common law authority cited in this

regard by Edmonds. Id. at 2756 & n.8.

114

independent actors also guilty of causative fault.71 Edmonds'

approach in this respect is well illustrated by its posing of the

question: "'one is still left to wonder why the longshoreman

injured by the negligence of a third party should recover less when

his employer has also been negligent than when the employer has

been without fault.'" Id. at 2761 n.24 (emphasis added) (quoting

Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 725 (2d Cir. 1978)).

There is no satisfactory answer to that question. This case poses

the flip side of the same question, namely why should negligent A,

injured in a three-person accident also involving B, likewise

negligent, and C, recover more from B if C is negligent than if C

is without fault. There is similarly no satisfactory answer to

this question. The reason in each instance is that the independent

third party's fault is irrelevant to what the plaintiff should

ultimately recover from the other party, just as Drake Towing held.

Certainly, the result in Edmonds is binding on us in suits on

LHWCA-covered injuries. But outside of that class of case, Edmonds

is not a proper basis on which to evaluate an approach it (and the

parties before it) wholly failed to address or consider. See
 

72 Mitchell states: "'[i]t is not to be thought that a

question not raised by counsel or discussed in the opinion of the

court has been decided merely because it existed in the record and

might have been raised or considered." Id. See also Webster v.

Fall, 45 S.Ct. 148, 149 (1925), where the Court stated:

"We do not stop to inquire whether all or any of them

[prior Supreme Court decisions cited by appellant] can be

differentiated from the case now under consideration,

since in none of them was the point here at issue

suggested or decided. The most that can be said is that

the point was in the cases if any one had seen fit to

raise it. Questions which merely lurk in the record,

neither brought to the attention of the court nor ruled

upon, are not to be considered as having been so decided

as to constitute precedents."

115

United States v. Mitchell, 46 S.Ct. 418, 419-20 (1926).72 As

previously observed (see note 38, supra), the Court in Cooper

Stevedoring Co., Inc. v. Fritz Kopke, Inc., 94 S.Ct. 2174 (1924),

refused to extend the Halcyon ban on contribution beyond its

context of a contribution claim against the LHWCA employer of the

injured plaintiff, and McDermott recognized that Edmonds was LHWCAdriven and refused to extract from it a general principle to govern

the effect of settlement in general maritime law multiple party

cases. In this general maritime law case, we, too, should not

expand Edmonds beyond its LHWCA context to speak to something it

never addressed even in that special context.

FELA, Jones Act, and Miles v. Apex Marine

The majority argues that the Jones Act incorporates the FELA,

that the result it reaches would be reached under the FELA and

hence under the Jones Act, and that therefore under Miles v. Apex

Marine Corp., 111 S.Ct. 317 (1990), should be reached in this

general maritime law case.
 

73 Cf. Cosmopolitan Shipping Co. v. McAllister, 69 S.Ct.

1317, 1321-22 (1949); Rohde v. Southeastern Drilling Co., Inc., 667

F.2d 1215, 1217 (5th Cir. 1982).

 

74 This is also the situation respecting DOHSA, as this case

involves neither a death nor any wrong committed (or injury

suffered) "on the high seas."

116

There are several answers to this. Most obviously, the

subject matter of this case is not governed by the Jones Act.

Coats was not a Jones Act seaman, nor was he any sort of employee

of Penrod.73 Miles considered "whether the parent of a seaman who

died from injuries on . . . [the defendant's] vessel may recover

under general maritime law for loss of society, and whether a claim

for the seaman's lost future earnings survives his death." Id. at

319-20. It answered both questions in the negative, because

neither such recovery was available under the Jones Act. Id. at

325-26, 328. The Court stated "we restore a uniform rule

applicable to all actions for the wrongful death of a seaman," id.

at 326, and "[b]cause this case involves the death of a seaman, we

must look to the Jones Act." Id. at 328 (emphasis added). Our

recent en banc opinion in Guevara v. Maritime Overseas Corporation,

 F.3d (No. 92-4711, 5th Cir., , 1995), states:

"In order to decide whether (and how) Miles applies to a

case, a court must first evaluate the factual setting of

the case and determine what statutory remedial measures,

if any, apply in that context. If the situation is

covered by a statute like the Jones Act or DOHSA, and the

statute informs and limits the available damages, the

statute directs and delimits the recovery available under

the general maritime law as well." (Emphasis in

original).

Clearly the factual setting of this case is not covered by the

Jones Act.74 Accordingly, the above methodology stated in Guevara
117

would appear not to support application of the Miles uniformity

principle here.

But even were the Miles uniformity principle applicable, the

majority has not demonstrated any established or consistent body of

law sustaining the result in this case under either the FELA or the

Jones Act.

Turning first to the FELA, when it was adopted in 1908 none of

the states authorized any recovery whatever by a plaintiff whose

negligence proximately contributed, in even the slightest degree,

to the accident in question. Thus, when the FELA was adopted it

could not possibly have inferentially incorporated any common law

rule on how the recovery of a negligent plaintiff was to be

computed in an instance in which two or more other independent

actors, at least one of whom was a defendant, were also guilty of

causative fault. The common law simply did not address such a

situation. Nor does the wording of the FELA. It provides that

"[e]very common carrier by railroad . . . shall be liable in

damages to any person suffering injury while he is employed by such

carrier . . . resulting in whole or in part from the negligence .

. . of such carrier," 45 U.S.C, § 51, and that "the fact that the

employee may have been guilty of contributory negligence shall not

bar a recovery, but the damages shall be diminished by the jury in

proportion to the amount of negligence attributable to such

employee." 45 U.S.C. § 53. The FELA neither creates nor even

speaks to any cause of action or suit against anyone other than the
 

75 See, e.g., New Orleans Public Belt R. Co. v. Wallace, 173

F.2d 145 (5th Cir. 1949) (where railroad employee's estate sues

employer railroad and a third party, jurisdiction over plaintiff's

suit against the third party depends on diversity); Ft. Worth

Denver Railway Company v. Threadgill, 228 F.2d 307, 311-312 (5th

Cir. 1956) (state law, not FELA, governs plaintiff's right to

recover

from third party and defendant railroad's right to recover

indemnity or contribution from third party); Kennedy v.

Pennsylvania Railroad Company, 282 F.2d 705, 709 (3d Cir. 1960)

(same).

118

employer-railroad.75 The facial inference from the wording and

structure of the statute is that the plaintiff's negligence is to

be compared to, and only to, that of the defendant employerrailroad. In Norfolk & Western Railway Company v. Earnest, 33

S.Ct. 654 (1913), the Court, speaking of what is now section 53,

stated:

". . . [T]he statutory direction that the diminution

shall be 'in proportion to the amount of negligence

attributable to such employee' means, and can only mean,

that, where the causal negligence is partly attributable

to him and partly to the carrier, he shall not recover

full damages, but only a proportional amount, bearing the

same relation to the full amount as the negligence

attributable to the carrier bears to the entire

negligence attributable to both . . . ." Id. at 657

(emphasis added).

Nothing in section 53 suggests that the negligence comparison

thereby called for involves the consideration of the negligence of

anyone other than the plaintiff-employee and the defendant-employer

railroad.

The only FELA case which the majority cites as being to the

contrary is Gaulden v. Burlington Northern, Inc., 654 P.2d 383

(Kan. 1982). There the plaintiff railroad employee, injured in a

crossing collision involving a truck driven by James, a third
 

76 DOHSA was likewise passed in 1920.

 

77 The three states were Mississippi, Georgia, and Nebraska.

There was not a fourth until 1931, when Wisconsin joined.

119

party, sued the employer railroad under the FELA and James under

state law, but settled with James prior to trial. The court held

that the proportionate fault rule to account for the settlement was

applicable, so that the plaintiff's recovery from the railroad

would be reduced by the proportion which the total of plaintiff's

negligence and that of the settling James bore to the total

negligence of all three parties. The court went on in dicta,

however, and without citation of any authority, to state that had

James not settled then the railroad would be liable to the

plaintiff for the same fraction of his total damages as the total

of the fault of the railroad and James was of the total fault of

all three. Id. at 392.

If this dicta in a 1982 Kansas decision is the best the

majority can do, it can hardly be said that there is or was any

well-established and settled FELA rule in this respect.

As previously observed, the Jones Act, passed in 1920, gave

seamen injured in the course of employment an action against their

employer to be governed by the FELA.76 The situation then was

essentially the same as in 1908 when the FELA was adopted, namely

that in all but three statesSQas opposed to in all states in

1908SQany causative negligence on the part of the plaintiff, no

matter how slight, barred any recovery whatever.77 Accordingly,

what has been said about the FELA is applicable to the Jones Act.
 

78 Indeed, as we have seen, there is no showing that even as

of today there is any such clearly established rule under the FELA.

 

79 These three cases are Johnson v. National Steel &

Shipbuilding, 742 F.Supp. 1062, 1065 (S.D. Cal. 1990); Texaco v.

Addison, 613 So.2d 1193, 1202 (Miss. 1993); and, Dicola v. American

Steamship Owners Mut. Protection and Indem. Ass'n, Inc., 170 B.R.

222, 235 (S.D.N.Y. 1994).

120

When the Jones Act was passed, it could not have impliedly adopted

any general or established common law rule or practice for

computing the recovery of a negligent plaintiff when two (or more)

independently acting defendantsSQor a defendant and one or more

othersSQwere also negligent. That is true because there was no

such rule or practice, as the plaintiff's negligence barred any

recovery. Nor is there any showing that by 1920 there had grown up

under the FELA any such established rule or practice which the

Jones Act could be said to have impliedly adopted.78

The majority cites four cases under the Jones Act which it

claims would support the result here if this were a Jones Act case.

All of these cases were decided within the last decade. In three

of the cases, the court was not presented with, and did not purport

to speak to, a situation involving a negligent plaintiff, so the

cited general language concerning joint and several liability of

the defendants is plainly consistent with the position of this

dissent.79 These three cases tell us absolutely nothing relevant

here.

The fourth and final Jones Act case cited by the majority in

this respect, Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir.

1987), merits more detailed consideration. There the plaintiff-
 

80 Joia properly recognized, however, that Edmonds was

"not controlling" and that "the narrow holding of Edmonds does

not govern a seaman's action." Joia at 916.

121

seaman, Joia, sued his employer, Niagra, under the Jones Act, and

in the same action also sued Jo-Ja, the owner of another vessel

contributing to the injury, under the general maritime law. Joia's

total damages were found to be $360,000, and fault was allocated 5%

to plaintiff Joia, 30% to his employer Niagra, and 65% to Jo-Ja.

Niagra alone appealed. The First Circuit held that Joia was

entitled to judgment against Niagra and Jo-Ja, jointly and

severally, for $342,000 (95% of $360,000). Several things are

significant about Joia. First, the only contentions of the parties

in this respect, and all that the First Circuit addressed or

considered, was whether the limit of Niagra's liability should be

$108,000, 30% of the total damages, or $342,000, 95% of the total.

Id. at 914, 917. The court found pure several liability, in which

all of Jo-Ja's fault is charged to Joia, too harsh considering "the

remedial nature of the Jones Act." Id. at 917. In its rejection

of the pure several liability contended for by Niagra, the First

Circuit relied on Edmonds, which plainly likewise rejected such an

approach (as does this dissent). Joia at 916-917.80 The Joia

panelSQlike EdmondsSQsimply never adverted to the possibility that

Niagra's maximum liability should instead be fixed by the ratio of

its percentage of fault (30%) to the total of the percentages of

fault of Joia (5%) and it (30%)SQin other words, on the basis of a

comparison of Niagra's negligence to Joia's. That would have

limited Niagra's exposure to $308,571.42 (30/35SQor 6/7SQof
 

81 On subsequent appeal Ebanks became Self v. Great Lakes

Dredge & Dock Co., 832 F.2d 1540 (1987), which, as previously

noted, led us in Hernandez (and subsequent cases) into an

overbroad reading of Edmonds and consequent erroneous rejection

of the proportionate share settlement credit rule of Leger.

122

$360,000). Further, the Joia panel noted Niagra's reliance on

Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.

1979), but instead chose to follow Ebanks v. Great Lakes Dredge &

Dock Co., 688 F.2d 716 (11th Cir. 1982), cert. denied, 103 S.Ct.

1774 (1983), which rejected the proportionate share credit approach

of Leger as being inconsistent with Edmonds.

81 Joia at 915-17. We

now know from McDermottSQwhich the Joia panel did not have the

benefit ofSQthat Leger was right and that Ebanks and its progeny

erred in concluding otherwise and in reading Edmonds overbroadly.

Finally, it is significant that Joia treats the issue before it

essentially as res nova. Joia does not purport to find any settled

or recognized body of Jones Act (or FELA) law, or general maritime

law, addressing how a given defendant's maximum exposure is to be

fixed in a multi-party case involving a negligent plaintiff and two

(or more) independently acting negligent defendants (or one

negligent defendant and one or more negligent, independently acting

others).

In sum, the subject matter of this case is not one covered by

the Jones Act. Moreover, there is no settled body of Jones Act law

addressing the issue now before us, and there certainly was no

settled body of law, either under the FELA or otherwise, addressing
 

82 The majority takes comfort from the fact that Penrod

does not challenge its interpretation of the Jones Act. But, as

this is not a Jones Act case, we are certainly not bound by what

Penrod may believe to be a tactically wise concession in respect

to a hypothetical case not before us. See, e.g., Equitable Life

Assur. Soc. of U.S. v. MacGill, 551 F.2d 978, 983 (5th Cir. 1977)

("it is well settled that a court is not bound to accept as

controlling stipulations as to questions of law"); Straus v.

United States, 516 F.2d 980, 982 (7th Cir. 1975) ("concessions .

. . do not, at least as to questions of law that are likely to

affect a number of cases . . . beyond the one in which the

concessions are made, relieve this Court of the duty to make its

own resolution of such issues").

123

the issue at the time the Jones Act was adopted (or when the FELA

was).82 Hence, the Jones Act does not dictate the result here.

Other Considerations

Other than its appeal to authority, which is largely

nonexistent, the majority levels essentially three objections to

the rule espoused by this dissent.

First, the majority seems to suggest that this is a matter

which should be taken care of by contract, or by avoiding doing

business with potential co-defendants who might be or become

insolvent. This is obviously a make-weight, at best. We do not

normally justify adoption of rules that are illogical and unfair on

the basis that parties might often be able to contract around the

illogic or unfairness we are thus creating. Moreover, the

majority's rationale in this respect is inconsistent with the

settled rule that one is not ordinarily liable for the independent

fault of an independent contractor. The majority would have it

that such liability should always be imposed because the owner can

recover in indemnity or contribution from the contractor, and if

that is precluded by the contractor's insolvency or unavailability,
124

then the owner has no one but himself to blame, as he should not

have done business with the contractor. Presumably under this

approach, no one would contract with an immune entity such as a

county. Finally, how, in our hypothetical collision involving the

shrimper, the Exxon crew boat, and the pleasure craft, can any of

these partiesSQhaving no prior contact one with the otherSQbe

expected to have contracted with each other in advance of the

accident?

Next, the majority invokes the notion that the plaintiff's

recovery should be maximized. However, if that were the guiding

principle, we could simply disregard, or perhaps give only half

weight to, the plaintiff's contributory negligence. And, again

reverting to our hypothetical collision, why do we want to strain

to make the shrimper's master-owner pay Exxon more than half

Exxon's damages, even though Exxon's crew boat is every bit as much

at fault as the shrimper, just because the little pleasure craft,

acting wholly independently of the shrimper with which it has never

had any contact, was also negligent?

Finally, the majority objects because the dissent's approach,

in contrast to that of the UCFA, does not require the defendant to

first, and after judgment, establish that another defendant or

actor is insolvent or unreachable (or immune) so that full

contribution is unavailable from that other defendant, before that

other defendant's "equitable share" is partially reallocated to the

negligent plaintiff. Of course, under the UCFA and Apportionment

of Liability, if the other defendant is determined to be insolvent
 

83 The majority argues (majority op. fn. 23) that the

approach of the UCFA and Apportionment of Liability is

substantively inconsistent with that of this dissent because

under the former reallocation occurs only if and to the extent

that recovery is unenforceable against one (or more) of multiple

defendants. This analysis, however, ignores the fact that under

the UCFA and Apportionment of Liability a defendant is never made

ultimately responsible to the negligent plaintiff for a greater

amount than this dissent would provide unless the defendant can

actually collect any excess over that amount from co-defendants

under the same judgment. Thus, it necessarily follows that the

only meaningful difference between the UCFA and Apportionment of

Liability, on the one hand, and this dissent, on the other, is

that in the former a defendant is initially assigned the duty of

trying to collect under the judgment from the other defendants;

if he is able to do so, he in effect passes along to the

plaintiff (or he retains for himself and the plaintiff is allowed

to retain from him) any excess over the maximum this dissent

would hold him liable for; if he is not able to do so, the

plaintiff's recovery from him is proportionately diminished (but

not below his maximum liability as calculated by this dissent). 

In other words, the only meaningful, bottom-line difference

between the UCFA-Apportionment of Liability approach and that of

this dissent is that under the former the defendant, as to

amounts in excess of his maximum liability as calculated by this

dissent, is made the plaintiff's collection agent for judgment

amounts owed by other defendants.

It should also be noted that under the UCFA and

Apportionment of Liability only the fault of parties to the

125

before judgment, then the "reallocation" will be in the original

judgment, and the original judgment will give the negligent

plaintiff the same maximum recovery from the solvent defendant as

would be the case under the rule advocated in this dissent. More

importantly, however, the substance of the UCFA and Apportionment

of Liability approach is clearly that the negligent plaintiff

should not be able to cause any one defendant to ultimately bear a

greater fraction of the plaintiff's damages than the fault of that

defendant is of the total of the fault of the plaintiff and that

defendant. In other words, beyond that limit, that defendant is

simply not ultimately liable to the negligent plaintiff.83 Why
action (and those who have settled with the plaintiff) is

considered. The effect of this is that the fault of nonparties

is allocated in the original judgment between the plaintiff and

each defendant precisely as this dissent would. If the plaintiff

wants an actor to be a party, it is his burden to see to it that

that actor is before the court and subject to its jurisdiction,

and if the plaintiff does not do this, then he alone is his own

collection agent as to any liability of that actor, all just as

under this dissent.

 

84 Of course, under this dissent's proposal, as applied to

the instant case where plaintiff Coats is twenty percent

negligent, Penrod is twenty percent negligent, and MIS is sixty

percent negligent, Coats would be entitled to recover (and

retain) as much as fifty percent of his total damages from

Penrod, whether or not MIS was (or became) insolvent, and Penrod

would be at total, sole risk and expense to collect contribution

from MIS for amounts Penrod paid in excess of twenty percent of

Coats' total damages. Similarly, Coats would be entitled to

recover (and retain) as much as seventy-five percent of his total

damages from MIS, whether or not Penrod was (or became)

insolvent, and MIS would be at total, sole risk and expense to

collect contribution from Penrod for amounts MIS paid in excess

of sixty percent of Coats' total damages. Coats, however, would

in no event be able to collect from Penrod and MIS together more

in total than eighty percent of all his damages.

126

should that defendant be made the collection agent for the

negligent plaintiff as to sums for which that defendant is not

ultimately liable?84 Why should one party be the collection agent

for another?

Moreover, to say that the approach of this dissent puts an

unfair collection burden on the negligent plaintiff is certainly to

ignore the longstanding general maritime law rule that even the

innocent plaintiff who is personally injured in an accident as to

which two defendants equally at fault are before the court (either

by being sued directly or brought in under Rule 14(c) or its

precursors) recovers judgment initially from each defendant for

only half his damages, and can go beyond that as to each only by
 

85 It is recognized that Apportionment of Liability

prefers the UCFA reallocation approach to that of this writer's

dissent in Simeon, principally on the basis that the method of

calculation stated in the Simeon dissent (calculate each

defendant's maximum liability by comparing his percentage of

fault to plaintiff's percentage of fault; subtract first

defendant's maximum liability from plaintiff's maximum recovery,

the result being second defendant's several liability; subtract

second defendant's maximum liability from plaintiff's maximum

recovery, the result being first defendant's several liability;

add the several liability of first defendant and that of second

defendant and subtract the total from plaintiff's maximum

recovery, the result being the joint and several liability of the

two defendants) does not work when there are three or more

defendants. Apportionment of Liability at 254-55. Apportionment

of Liability gives the example of a plaintiff and three

defendants each twenty-five percent at fault. Id. While this is

an accurate criticism of the simplified method of computation set

forth in the Simeon dissentSQwhich was basically designed for use

in two-defendant situationsSQthe formulas set out in the appendix

hereto adequately cover three (and more) defendant situations. 

For instance, in paragraph 1(d) of the appendix, example 2

calculates the appropriate form of judgment (using the several

and joint and several liability format) for an instance where the

plaintiff and each of three defendants is twenty-five percent at

fault, and plaintiff's total damages are $100,000, namely each of

the three defendants is severally liable for $12,500 and all

three of them are together also jointly and severally liable for

$37,500. The real point, however, as previously explained in the

text (Mechanics of Judgment Damages Allocation), is that formulas

do not really need to be used at all; it suffices for the

judgment to merely provide that the negligent plaintiff in any

event recover no more from any one of the defendants than the

amount which equals the fraction of plaintiff's total damages

represented by that defendant's percentage of the total fault of

all found at fault divided by the total of that defendant's said

percentage and the plaintiff's percentage of the total fault of

all found at fault. That is simple and easily accomplished.

Apportionment of Liability also notes that the Simeon

dissent approach requires "the plaintiff to pursue enforcement of

the judgment against all solvent defendants in order to recover

the full amount," id. at 254, but does not expressly characterize

this as undesirable. As previously observed, Apportionment of

Liability does provide for "reallocation" (including to the

127

first showing his (plaintiff's) inability to collect from the other

defendant the latter's half. The majority has simply ignored this

long-standing rule of the general maritime law.85
negligent plaintiff) of any defendant's equitable share in the

original judgment when it is then known that such defendant is

insolvent or immune or the like. And, Apportionment of Liability

does not exhibit any awareness of the above-discussed longstanding admiralty practice under which the judgment against

multiple defendants at fault is initially against them severally,

as explained in, e.g., The Hudson, 15 F. 162, 164 (S.D.N.Y.

1883).

128

The Judicial Role in the General Maritime Law

As the Supreme Court said in Edmonds, "[a]dmiralty law is

judge-made law to a great extent." Id. at 2756. Indeed, "the

Judiciary has traditionally taken the lead in formulating flexible

and fair remedies in the law maritime." Reliable Transfer at 1715.

And, as the Supreme Court observed on yet another occasion:

"Absent a relevant statute, the general maritime law, as developed

by the judiciary, applies . . . the general maritime law is an

amalgam of traditional common-law rules, modifications of those

rules, and newly created rules." East River Steamship Corp. v.

Transamerica Delaval, Inc., 106 S.Ct. 2295, 2299 (1986) (emphasis

added).

In East River, the Court "join[ed] the Courts of Appeals" in

adopting strict products liability, thus doing away with the

traditional requirement of negligence in such instances. The Court

in both Reliable Transfer and Moragne v. States Marine Lines, Inc.,

90 S.Ct. 1772 (1970), overruled its own long-standing and

consistently and frequently enforced precedents. But, no such

departure from settled and clearly established precedent is

required to adopt the approach taken in this dissent.

Nevertheless, it is appropriate to note that in Reliable Transfer
129

the Supreme Court declined to continue with a rule it considered

"unnecessarily crude and inequitable," despite that rule's lesser

"problems of proof" and "facile application." Id. at 1714.

Reliable Transfer departed from a settled rule that "has continued

to prevail in this country by sheer inertia rather than by reason

of any intrinsic merit." Id. at 1715.

There is no relevant statute here, nor any clearly established

rule, and we should reject an approach based on abstract doctrinal

reflex and inertia rather than intrinsic merit. And, the

majority's approach is one rejected by four-fifths of the states.

To borrow from Pope & Talbot, admiralty should rather employ a

"fairer and more flexible rule which allows such consideration of

contributory negligence in mitigation of damages as justice

requires." Id. at 204 (emphasis added). Justice, it seems to us,

requires that the negligent defendant bear no greaterSQor

lesserSQpart of the negligent plaintiff's total damages than that

fraction which such defendant's negligence is of the total

negligence of the two of them; and that there is no reason to

charge a negligent defendant with all, while charging the negligent

plaintiff with none, of the fault of an independent third party,

just as there is no reason to charge all such third party fault to

the negligent plaintiff. The majority repeats "joint and several

liability" as if it were some kind of magical mantra or totem which

both banishes all dangers of rational analysis and dispenses with

the need for authority dealing with the issue here posed: how does

admiralty compare fault when both the plaintiff and a defendant are
130

at fault and so also is at least one other independent actor

(whether or not likewise a defendant). The majority abjures any

meaningful normative defense of its position, and the best

authority it can come up with is Joia, a 1987 Jones Act case that

treats the matter as res nova and wrongly assumes that the only

alternative to its result is pure several liability that assigns

all the third party's fault to the plaintiff. An approach such as

that taken by Judge Friendly in KinsmanSQwhich is flatly

inconsistent with that of the majoritySQsimply accomplishes a just

result, as does the position of this dissent.

Conclusion

For the foregoing reasons, I respectfully dissent.
i

Appendix

Formula for Calculation of Several Liability of Each

Defendant and Joint Liability of Defendants

1. Three defendants and plaintiff each guilty of causative fault

(a) VARIABLES

Q = Plaintiff's total damages

X = Plaintiff's % of total fault

D1, D2, D3 = each defendant's % of total fault

M1, M2, M3 = each defendant's maximum liability

Y1, Y2, Y3 = each defendant's several liability

Z = Joint liability of defendants

(b) FORMULAS

M1 = D1 Q

 D1 + X

M2 = D2 Q

 D2 + X

M3 = D3 Q

 D3 + X

Y1 = M1 - Z

Y2 = M2 - Z

Y3 = M3 - Z

Z = [(1.00 - X) * Q] - Y1 - Y2 - Y3
ii

(c) EXAMPLE 1

Q = $100,000

X = 10

D1 = 20

D2 = 30

D3 = 40

M1 = D1 Q = 20 $100,000 = (2/3) * $100,000 = $66,667

 D1 + X 20 + 10

M2 = D2 Q = 30 $100,000 = (3/4) * $100,000 = $75,000

 D2 + X 30 + 10

M3 = D3 Q = 40 $100,000 = (4/5) * $100,000 = $80,000

 D3 + X 40 + 10

Y1 = M1 - Z = $66,667 - Z

Y2 = M2 - Z = $75,000 - Z

Y3 = M3 - Z = $80,000 - Z

Z = [(1.00 - X) * Q] - Y1 - Y2 - Y3

Z = [(1.00 - .10) * $100,000] - Y1 - Y2 - Y3

Z = (.90 * $100,000) - Y1 - Y2 - Y3

Z = $90,000 - ($66,667 - Z) - ($75,000 - Z) - ($80,000 - Z)

Z = 3Z - $131,667

2Z = $131,667

Z = $65,833

Y1 = $66,667 - $65,833 = $834

Y2 = $75,000 - $65,833 = $9,167

Y3 = $80,000 - $65,833 = $14,167

The judgment thus provides plaintiff a total recovery of

$90,000 composed of the following:

Total

 D1 D2 D3 Recovery

Several Liability $ 834 $ 9,167 $14,167 $24,168

Joint Liability 65,833 65,833 65,833 65,833

Total $66,667 $75,000 $80,000 $90,001
iii

(d) EXAMPLE 2

Q = $100,000

X = 25

D1 = 25

D2 = 25

D3 = 25

M1 = D1 Q = 25 $100,000 = (1/2) * $100,000 = $50,000

 D1 + X 25 + 25

M2 and M3 are calculated the same as M1

Y1 = M1 - Z = $50,000 - Z

Y2 and Y3 are calculated the same as Y1

Z = [(1.00 - X) * Q] - Y1 - Y2 - Y3

Z = [(1.00 - .25) * $100,000] - Y1 - Y2 - Y3

Z = (.75 * $100,000) - Y1 - Y2 - Y3

Z = $75,000 - ($50,000 - Z) - ($50,000 - Z) - ($50,000 - Z)

Z = 3Z - $75,000

2Z = $75,000

Z = $37,500

Y1 = $50,000 - $37,500 = $12,500

Y2 = $50,000 - $37,500 = $12,500

Y3 = $50,000 - $37,500 = $12,500

The judgment thus provides plaintiff a total recovery of

$75,000 composed of the following:

Total

 D1 D2 D3 Recovery

Several Liability $12,500 $12,500 $12,500 $37,500

Joint Liability 37,500 37,500 37,500 37,500

Total $50,000 $50,000 $50,000 $75,000
iv

(e) EXAMPLE 3, FOUR DEFENDANTS

Q = $100,000

X = 20

D1 = 20

D2 = 20

D3 = 20

D4 = 20

M1 = D1 Q = 20 $100,000 = (1/2) * $100,000 = $50,000

 D1 + X 20 + 20

M2, M3 and M4 are calculated the same as M1

Y1 = M1 - Z = $50,000 - Z

Y2, Y3, and Y4 are calculated the same as Y1

Z = [(1.00 - X) * Q] - Y1 - Y2 - Y3 - Y4

Z = [(1.00 - .20) * $100,000] - Y1 - Y2 - Y3 - Y4

Z = (.80 * $100,000) - Y1 - Y2 - Y3 - Y4

Z = $80,000-($50,000- Z)-($50,000-Z)-($50,000-Z)-($50,000-Z)

Z = 4Z - $120,000

3Z = $120,000

Z = $40,000

Y1 = $50,000 - $40,000 = $10,000

Y2 = $50,000 - $40,000 = $10,000

Y3 = $50,000 - $40,000 = $10,000

Y4 = $50,000 - $40,000 = $10,000

The judgment thus provides plaintiff a total recovery of

$80,000 composed of the following:

Total

 D1 D2 D3 D4 Recovery

Several Liability $10,000 $10,000 $10,000 $10,000 $40,000

Joint Liability 40,000 40,000 40,000 40,000 40,000

Total $50,000 $50,000 $50,000 $50,000 $80,000
v

(f) EXAMPLE 4, TWO DEFENDANTS

Q = $100,000

X = 20

D1 = 20

D2 = 60

M1 = D1 Q = 20 $100,000 = (1/2) * $100,000 = $50,000

 D1 + X 20 + 20

M2 = D2 Q = 60 $100,000 = (3/4) * $100,000 = $75,000

 D2 + X 60 + 20

Y1 = M1 - Z = $50,000 - Z

Y2 = M2 - Z = $75,000 - Z

Z = [(1.00 - X) * Q] - Y1 - Y2

Z = [(1.00 - .20) * $100,000] - Y1 - Y2

Z = (.80 * $100,000) - Y1 - Y2

Z = $80,000 - ($50,000 - Z) - ($75,000 - Z)

Z = 2Z - $45,000

Z = $45,000

Y1 = $50,000 - $45,000 = $5,000

Y2 = $75,000 - $45,000 = $30,000

The judgment thus provides plaintiff a total recovery of

$80,000, composed of the following:

Total

 D1 D2 Recovery

Several Liability $ 5,000 $30,000 $35,000

Joint Liability 45,000 45,000 45,000

Total $50,000 $75,000 $80,000
vi

2. SPECIAL INSTANCES

(a) With as many as four parties (including the plaintiff)

guilty of causative fault, the formula will, in certain instances

of unusual fault distributions, produce a negative several

liability number for a particular defendant (where as many as five

parties, including plaintiff, are guilty of causative fault, as

many as two such negative several liability numbers are possible in

certain instances of unusual fault distributions). In such

instances, additional steps must be added to the formula, resulting

in a lowered joint liability for that particular defendant and an

additional component of joint liability for the remaining

defendants (if there are two defendants with initial negative

several liability numbers, there will be two additional components

of joint liability for other defendants). The additional necessary

steps are set out below.

(b) Formula for three defendants showing additional steps

where under initial steps one defendant's several liability is

a negative number

Q = $100,000

X = 30

D1 = 30

D2 = 30

D3 = 10

M1 = D1 Q = 30 $100,000 = (1/2) * $100,000 = $50,000

 D1 + X 30 + 30

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

 D2 + X 30 + 30

M3 = D3 Q = 10 $100,000 = (1/4) * $100,000 = $25,000

 D3 + X 10 + 30

Y1 = M1 - Z = $50,000 - Z

Y2 = M2 - Z = $50,000 - Z

Y3 = M3 - Z = $25,000 - Z

Z = [(1.00 - X) * Q] - Y1 - Y2 - Y3

Z = [(1.00 - .30) * $100,000] - Y1 - Y2 - Y3

Z = (.70 * $100,000) - Y1 - Y2 - Y3

Z = $70,000 - ($50,000 - Z) - ($50,000 - Z) - ($25,000 - Z)

Z = 3Z - $55,000

2Z = $55,000

Z = $27,500
vii

Y1 = $50,000 - $27,500 = $22,500

Y2 = $50,000 - $27,500 = $22,500

Y3 = $25,000 - $27,500 = -$2,500

CAVEAT: If Y3 is < 0, then reduce the value of Z to that of M3;

then add Y3 to the value of Y1; then add Y3 to the value of Y2;

then multiply Y3 by -2 and set that number equal to J; then set Y3

equal to zero.

Z = Joint liability of D1, D2, and D3 

J = Joint liability of D1 and D2

STEP 1: Z = M3

Z = $25,000

STEP 2: Y1 = Y1 + Y3

Y1 = $20,000

STEP 3: Y2 = Y2 + Y3

Y2 = $20,000

STEP 4: J = Y3 * -2

J = $5,000

STEP 5: Y3 = 0

Y3 = 0

The judgment thus provides the plaintiff a total recovery of

$70,000 composed of the following:

Total

 D1 D2 D3 Recovery

Several Liability $20,000 $20,000 $ -0- $40,000

Joint D1 & D2 5,000 5,000 -0- 5,000

Joint D1, D2 & D3 25,000 25,000 25,000 25,000

Total $50,000 $50,000 $25,000 $70,000

(c) Formula for four defendants showing additional steps when

under initial steps one defendant's several liability is a

negative figure

Q = $100,000

X = 25

D1 = 25

D2 = 25

D3 = 20

D4 = 5

M1 = $50,000

M2 = $50,000

M3 = $44,444.44

M4 = $16,666.67

Z = $28,703.70
viii

Y1 = $21,296.30

Y2 = $21,296.30

Y3 = $15,740.74

Y4 = - $12,037.03

CAVEAT: If Y4 is < 0, then reduce the value of Z to that of M4;

then add 1/2 of Y4 to Y1 ; then add 1/2 of Y4 to Y2; then add 1/2

of Y4 to Y3; then add 1/2 of Y4 to Y4 and set this value equal to

J; multiply J by -1; then set Y4 equal to zero.

Z = Joint liability of D1, D2, D3, and D4

J = Joint liability of D1, D2, and D3

STEP 1: Z = M4

Z = $16,666.67

STEP 2: Y1 = 1/2Y4 + Y1

Y1 = $15,277.78

STEP 3: Y2 = 1/2Y4 + Y2

Y2 = $15,277.78

STEP 4: Y3 = 1/2Y4 + Y3

Y3 = $9,722.22

STEP 5: J = 1/2Y4 + Y4

J = -$18,055.55

STEP 6: J = J * -1

J = $18,055.55

STEP 7: Y4 = 0

Y4 = 0

The judgment thus provides the plaintiff a total recovery of

$75,000 composed of the following:

Total

 D1 D2 D3 D4 Recovery

Several Liab'y $15,277.78 $15,277.78 $ 9,722.22 $ -0- $40,277.78

Joint All D's 16,666.67 16,666.67 16,666.67 16,666.67 16,666.67

Jnt D1, D2, D3 18,055.55 18,055.55 18,055.55 -0- 18,055.55

Total $50,000.00 $50,000.00 $44,444.44 $16,666.67 $75,000.00

(d) Formula for four defendants showing additional steps when

under initial steps the several liability of each of two

defendants is a negative number

Q = $100,000

X = 30

D1 = 20

D2 = 40

D3 = 6

D4 = 4
ix

M1 = $40,000

M2 = $57,142.86

M3 = $16,666.67

M4 = $11,764.70

Z = $18,524.75

Y1 = $21,475.25

Y2 = $38,618.11

Y3 = - $1,858.08

Y4 = - $6,760.05

CAVEAT: If Y3 and Y4 are < 0, then reduce the value of Z to that

of M4; then subtract Z from M3 and set that value equal to J; then

add Y3 and Y4 to the value of Y1; then add Y3 and Y4 to the value

of Y2; then set Y3 and Y4 equal to zero; then subtract Y1 and Z and

J from M1 and set that value equal to K.

Z = Joint liability of D1, D2, D3, and D4

J = Joint liability of D1, D2, and D3

K = Joint liability of D1 and D2

STEP 1: Z = M4

Z = $11,764.70

STEP 2: J = M3 - Z

J = $4,901.97

STEP 3: Y1 = Y1 + Y3 + Y4

Y1 = $12,857.12

STEP 4: Y2 = Y2 + Y3 + Y4

Y2 = $30,000

STEP 5: Y3,4 = 0

Y3 = 0

Y4 = 0

STEP 6: K = M1 - Y1 - Z - J

K = $10,476.21 

The judgment thus provides plaintiff a total recovery of

$70,000 composed of the following:

Total

 D1 D2 D3 D4 Recovery

Several Liab'y $12,857.12 $30,000.00 $ -0- $ -0- $42,857.12

Joint All D's 11,764.70 11,764.70 11,764.70 11,764.70 11,764.70

Joint D1,D2,D3 4,901.97 4,901.97 4,901.97 -0- 4,901.97

Jnt D1 & D2 10,476.21 10,476.21 -0- -0- 10,476.21

Total $40,000.00 $57,142.88 $16,666.67 $11,764.70 $70,000.00
DeMOSS, Circuit Judge, dissenting, joined by Judges JONES and

SMITH, and joined by Judges GARWOOD, JOLLY, and EMILIO M. GARZA as

to Part I only:

I am unable to concur with the decision of the majority in

two crucial respects: First, I think proper evaluation of the

Lauritzen-Rhoditis factors requires that the choice of law

determination in this case be made in favor of the law of the

United Arab Emirates ("UAE") rather than that of the United States.

Secondly, if United States law is to be applied, we should apply

United States law as it existed at the time of the casualty in this

case -- not as it existed prior to 1972.

I.

Whether United States Law

My differences with the panel on the Lauritzen-Rhoditis choice

of law factors involve the first factor (place of the wrongful

act); the fourth factor (allegiance of the defendant ship owner);

and the fifth factor (place of the contract). Looking first at the

place of the wrongful act, the majority opinion devotes one

sentence to analysis of this subject. It recognizes that "the

accident occurred in the territorial waters of the United Arab

Emirates" and that since this is a "nontraditional maritime case,"

that factor is entitled to "considerable weight." Coats was

injured while on board the Penrod 69, a jackup drilling rig owned

and operated by Penrod Drilling Corporation ("Penrod"). At the

time of the accident, there is no doubt that the Penrod 69 was

"located in the Port of Mina Saqr in the territorial waters of the

United Arab Emirates." In my judgment, the fact that the rig was

"in port" has crucial significance in this case, because it makes
xi

clear that the vessel was within the boundary recognized for

international law purposes as the boundary of the United Arab

Emirates and within what would be referred to under United States

nomenclature as the "inland waters" of Ra's Al Khaymah, the

particular emirate in which that port is located. The Penrod 69

was within the inland waters of Ra's Al Khaymah just like a jackup

rig in the Port of Galveston is considered to be within the inland

waters of the State of Texas, and like a rig in the Port of Biloxi

is within the inland waters of the State of Mississippi.

Furthermore, the Penrod 69 had been "in port" for some eight or

nine months prior to the date of Coats' injury. The records are

clear that on August 12, 1987, the Penrod 69 was surveyed for its

annual condition certificate, and at that time, the survey report

indicates, the "vessel lay jacked-up" in this port. The Penrod 69

was out of service, deactivated, not operated, and not occupied by

any personnel other than a watchman, up until January 1988, when as

a result of a new contract for the rig's use in a Persian Gulf

drilling activity, Penrod commenced the task of preparing the

Penrod 69 to go back into service. During this interval of

deactivation, the Penrod 69 functioned solely as an artificial

wharf or dock for the purpose of storing the equipment and

facilities thereon, with its legs standing on the bottom of the

port and its hull up out of the water. Substantial repairs,

replacements and refurbishing activities were required to prepare

the Penrod 69 to resume its offshore drilling function. This work

took some four months to accomplish and included the installation
xii

of a new derrick. In performing the refurbishing work, Penrod used

its own personnel (assumptively the crew of the Penrod 69) and

other categories of "contract labor, catering, and service

personnel." Penrod hired MIS to assist in the refurbishing work,

and MIS designated Coats to operate the MIS pump that was brought

on board to provide pressure to test certain pressurized systems of

the rig. The daily reports as to the personnel working on board

the rig, which are in the record, reflect that the total number of

contract labor, catering, and service personnel always exceeded the

number of Penrod personnel. The record does not clearly indicate

whether on the date of the injury, April 12, 1988, the Penrod 69

was still in a "jacked-up" position, or whether its hull had been

lowered into the water. Obviously, if it was still in a jacked-up

position, its categorization as a "vessel" in navigation is in

serious doubt. Even if it had been lowered into the water,

however, the nature and extent of the work going on, and the number

of outside personnel deployed in such work, clearly demonstrate

that the repair and refurbishing activities were beyond the

capacity of the "crew" of the Penrod 69 to accomplish, and that

such work could be accomplished only with the ready availability

and access of shore-based personnel and facilities. In my view,

under these facts, the "place of the wrongful act" element of the

Lauritzen-Rhoditis factors should be given more than just the

"considerable weight" that the majority gave it. It should be the

controlling factor in the choice of law decision. I have looked

for and have been unable to find any Supreme Court decision or
xiii

Fifth Circuit decision applying United States law to resolve the

claim of a shore-side worker injured while assisting in the

refurbishing of a jacked-up drilling rig while it was located

within the inland waters of another nation. In my view, the

majority opinion constitutes an unjustifiable extension of United

States law into areas where simple comity among nations requires

that the law of the place of the casualty apply.

My second area of disagreement with the panel regarding the

Lauritzen-Rhoditis factors concerns the factor of "allegiance of

the defendant shipowner." I do not quarrel with the majority's

determination that the allegiance of Penrod, as owner of the Penrod

69, is to the United States. But, in my view, the factor of

"allegiance of the defendant shipowner" has materiality only in the

circumstance where the flag of the vessel and the allegiance of the

defendant shipowner are different (i.e. the vessel's flag is a flag

of convenience), and the law of the nation of allegiance of the

defendant shipowner can appropriately be applied to the

determination of rights between that shipowner and his seaman

employee when that vessel is engaged in international commerce. In

this case, however, the allegiance of the defendant shipowner is an

inconsequential factor for two reasons: First, the Penrod 69 is

documented under the United States flag; Penrod's allegiance is to

the United States and there is no flag of convenience involved.

Secondly, and more importantly, both the district court and the

majority opinion recognize that there was no employment relationship -- as seaman or otherwise -- between Penrod and Coats. The
xiv

majority's use of the allegiance of the defendant shipowner as a

factor in tipping the scales in favor of application of United

States law would, in my judgment, be improvident even if the only

defendant in this case were Penrod, because that factor should be

applied only where there is an employment relationship between the

injured plaintiff and the defendant shipowner. But Penrod is not

the only defendant in this case, and the other defendant, MIS, is

not a shipowner; it is an entity which was created by and whose

allegiance is owed to the laws of the United Arab Emirates, and it

is in fact the employer of Coats. The majority gives no serious

consideration to the key distinctions in this case (1) that Coats

was not an employee of the defendant shipowner, Penrod, but was an

employee of MIS; and (2) that the trial court found that Coats was

not a Jones Act seaman of Penrod. I suggest that the LauritzenRhoditis factors assume an employment relationship between the

injured seaman-plaintiff and the defendant shipowner, and that when

that relationship does not exist, the allegiance of the shipowner

should be considered less significant than that of the defendant

employer. I have looked and have not found any Supreme Court or

any Fifth Circuit decision applying United States law to determine

the rights and obligations between a United States citizen injured

in a foreign country during the course and scope of his employment

with a corporate entity organized under that foreign country's law.

In my judgment, the panel opinion improvidently extends United

States law to the set of circumstances involved in this case by
xv

giving greater weight to the allegiance of the defendant shipowner

than to the allegiance of the defendant employer.

Finally, I question the correctness of the panel decision in

evaluating the "place of contract" factor in the Lauritzen-Rhoditis

analysis. Here again, the majority misconstrues the significance

of this factor. I start out with the language used by the Supreme

Court in concluding its discussion of this factor in Lauritzen

itself: 

"We do not think the place of contract is a

substantial influence in the choice between

competing laws to govern a maritime tort."

Lauritzen, 345 U.S. at 589 (emphasis added). Furthermore, the

contract referred to in both Lauritzen and Rhoditis is the contract

of employment between the injured seaman plaintiff and the

defendant ship owner. There is no such contract between Coats and

Penrod in this case; whatever contract of employment there was in

this case existed between Coats and MIS, who did not own any vessel

and was essentially a shore-based supplier of services to companies

engaged in exploration and development of oil and gas. I recognize

that Coats was recruited by representatives of MIS at his home in

Mississippi and that the basic terms of his employment agreement

were verbally negotiated and orally agreed upon during this

recruitment visit. However, it is clear beyond doubt that he was

recruited and "employed" to work for MIS, not for Penrod, and to

work in the United Arab Emirates, not aboard any particular vessel.

Furthermore, it is clear that in order for Coats to get the

necessary visa to enter the United Arab Emirates, Coats and MIS
xvi

"executed an Arabic contract," and that Coats then applied for and

received the necessary work permit from the UAE which permitted him

to reside ashore there in the UAE during his employment. The

record is clear that Coats performed his duties for MIS at

locations of oil and gas wells on shore in the UAE as well as

offshore in the Persian Gulf, and at warehouses and dockside

facilities in the UAE. This existence of a work permit is a

special factor present in this case which has not been present in

any of the other choice of law cases cited in the majority opinion.

Presence in the UAE and acceptance of a UAE work permit would

unquestionably subject Coats to the criminal laws and civil laws of

the UAE had his injury occurred on land. In my view, Coats'

acceptance of a work permit necessitates a determination that the

law of the UAE should apply to an injury occurring on the waters of

a UAE port during employment under that UAE work permit.

In his original appellee's brief, Coats argued: "U.S. Maritime

Law applies whenever a U.S. citizen is injured on a U.S. flag

drilling vessel anywhere in the world." (p. 52). The cases cited

by Coats for that proposition do not support his assertion. But

the majority opinion in effect arrives at the same conclusion by

misinterpretation and misevaluation of the Lauritzen-Rhoditis

factors. Because I think such a conclusion is bad law under the

facts of this case, and that it will produce undesirable effects

when applied as a precedent, I would reverse the district court's

choice of law determination and remand the case to the district
xvii

court for retrial in accordance with the laws of the United Arab

Emirates.

In arriving at this result, I rely on the following line of

Fifth Circuit cases: Chiazor v. Transworld Drilling Co., Ltd., 648

F.2d 1015 (5th Cir. 1981), cert. denied, 455 U.S. 1019 (1982);

Zekic v. Reading & Bates Drilling Co., 680 F.2d 1107 (5th Cir.

1982); Bailey v. Dolphin Intern., Inc., 697 F.2d 1268 (5th Cir.

1983); Koke v. Phillips Petroleum Co., 730 F.2d 211 (5th Cir.

1984); Schexnider v. McDermott Intern., Inc., 817 F.2d 1159 (5th

Cir. 1987), cert. denied, 484 U.S. 977 (1987); and Fogleman v.

Aramco, 920 F.2d 278 (5th Cir. 1991). All of these cases involve

"nontraditional" vessels similar in nature and function to the

Penrod 69, and all of these determined that the law of another

nation, other than the United States, applied.

II.

What United States Law

Having decided that United States law shall apply, the

district court expressly reached the following conclusions (which

the majority opinion inferentially affirms):

1. That the United States Longshoremen and

Harborworkers Compensation Act ("LHWCA") could not

apply because it applies only to injuries or death

occurring "on navigable waters of the United

States."

2. That the Jones Act was inapplicable (i) because

there was no employment relationship between the
 

86 Penrod's appeal from these choice of law decisions by

the district court clearly raises the propriety of Coats' status

as a "Sieracki seaman" for our determination, even though, as

Judge Garwood notes in his dissent, there was no specific

objection raised by Penrod to the submission of an issue on

unseaworthiness and to the joint submission of negligence and

unseaworthiness in the jury issues as to percentages of fault. 

When a party contests and objects to a trial court's choice of

law determination, I can see no need for repetitious and futile

objections to the implementation by the trial court of its choice

of law determinations during the trial.

xviii

plaintiff Coats and Penrod, the owner and operator

of the Penrod 69; (ii) because Coats was aboard

the Penrod 69 only for one day, the day he was

injured, and therefore had no permanent connection

to that vessel; and (iii) because there was no

common ownership or control by his employer, MIS,

of any of the six offshore drilling rigs on which

Coats worked during his employment.

3. That the general maritime law of the United States

would be applied, including specifically the

concept of Sieracki seaman status originating in

the case of Seas Shipping Co. v. Sieracki, 328 U.S.

85 (1946), with its concomitant availability of the

warranty of unseaworthiness for the benefit of

Coats.86 

The judicially manufactured concept of Sieracki seaman's status

remained a vibrant part of United States law from its creation in

1946 until Congress passed the 1972 amendments to the LHWCA, which

expressly removed the right of recovery under the warranty of

seaworthiness for individuals covered by that Act. The district
xix

court recognized some disagreement in the law as to whether the

1972 amendments to the LHWCA also abolished Sieracki relief for

individuals not covered by the LHWCA. But relying on two Fifth

Circuit cases, Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir.

1981), and Cormier v. Oceanic Contractors, Inc., 696 F.2d 1112 (5th

Cir.) cert. denied, 464 U.S. 821 (1983), the district court

concluded that, "Coats comes squarely within one of the so-called

`pockets of Sieracki seamen remaining after the 1972 amendments.'

Aparicio, 643 F.2d at 1118 n.17." Accordingly, the district court

allowed Coats to proceed under the general maritime law against

Penrod on both negligence and unseaworthiness theories. 

I disagree with the majority's affirmance of the district

court, (1) because I believe the Fifth Circuit precedents relied

upon by the district court can no longer be supported in light of

the policies stated by a unanimous Supreme Court in Miles v. Apex

Marine Corp., 498 U.S. 19 (1990); and (2) because the majority

opinion wholly ignores the impact of Miles v. Apex Marine on the

substantive content of United States general maritime law, even

though we were sitting en banc and were in a position to consider

such impact. For these two reasons, I respectfully register my

dissent. In my view, Miles v. Apex Marine constitutes a major

restatement by a unanimous Supreme Court as to the role to be

played by the federal judiciary in defining the substantive content

of general maritime law. I recognize that the holdings in Miles v.

Apex Marine relate only to the specific issues of whether the cause

of action for wrongful death of a seaman exists under general
 

87 In another en banc case, this court relied upon the

broad policy implications of Miles v. Apex Marine to overturn

prior precedents regarding recovery of punitive damages in cases

involving claims of willful nonpayment of maintenance and cure. 

Guevara v. Maritime Overseas Corporation, No. 92-4711, ___ F.3d

___, 1995 WL 437211 (5th Cir. July 26, 1995) (en banc). 

xx

maritime law and whether recovery for loss of society in a general

maritime wrongful death action would be permitted. However, the

statements of philosophy and approach as to the role of courts in

eliminating "anomalies" and achieving "uniformity in the exercise

of admiralty jurisdiction" constitute a major redefinition of the

interplay between the role of Congress and the role of the courts

in defining general maritime law.87 Because of their extreme

relevance to the issue before us in this case, I cite four passages

from Miles v. Apex Marine that clearly set forth the new approach

and philosophy:

We no longer live in an era when seamen and

their loved ones must look primarily to the

courts as a source of substantive legal

protection from injury and death; Congress and

the States have legislated extensively in

these areas. In this era, an admiralty court

should look primarily to these legislative

enactments for policy guidance. We may

supplement these statutory remedies where

doing so would achieve the uniform vindication

of such policies consistent with our

constitutional mandate, but we must also keep

strictly within the limits imposed by

Congress. Congress retains superior authority

in these matters, and an admiralty court must

be vigilant not to overstep the wellconsidered boundaries imposed by federal

legislation. These statutes both direct and

delimit our actions.... 

The general maritime claim here alleged that

Torregano had been killed as a result of the

unseaworthiness of the vessel. It would be

inconsistent with our place in the
xxi

constitutional scheme were we to sanction more

expansive remedies in a judicially-created

cause of action in which liability is without

fault than Congress has allowed in cases of

death resulting from negligence....

We sail in occupied waters. Maritime tort law

is now dominated by federal statute, and we

are not free to expand remedies at will simply

because it might work to the benefit of seamen

and those dependent upon them....

Congress has limited the survival right for

seamen's injuries resulting from negligence.

As with loss of society in wrongful death

actions, this forecloses more expansive

remedies in a general maritime action founded

on strict liability. We will not create,

under our admiralty powers, a remedy

disfavored by a clear majority of the States

and that goes well beyond the limits of

Congress' ordered system of recovery for

seamen's injury and death.... 

Apex, 498 U.S. at 27-36.

The differences in jurisprudential outlook between Aparicio

and Apex are the differences between night and day. Aparicio

considers judge-made maritime law to be paramount and requires

statutory changes to expressly cover all possible circumstances to

be effective; Apex recognizes constitutional limitations to the

scope of judge-made law and requires accommodation of judge-made

law to statutory policy from similar, though not identical, areas

of the law. Aparicio looks for and encourages the recognition of

"pockets" where judge-made maritime law can survive statutory

changes; Apex abhors anomalies and encourages the tailoring and

adjusting of maritime law to promote uniformity of rights and

remedies. Aparicio puts the burdens on Congress to speak to the

intended scope of its 1972 amendments to the LHWCA Act; Apex puts
xxii

the burden on the federal courts to construe the continued vitality

of the Sieracki doctrine in a manner consistent with the 1972

amendments.

I am disappointed that my colleagues in the majority of this

en banc consideration failed to follow the counsel of Apex and to

seize the opportunity to make United States maritime law applicable

to the casualty in this case the same as the law that would have

been applicable had this casualty occurred in United States waters.

What reason in logic or good public policy is there for federal

judges to extend the benefits of the warranty of unseaworthiness to

a United States citizen working as a longshoreman or harborworker

in a foreign port when that same warranty of unseaworthiness was

statutorily removed as a protection for United States citizens

working as longshoremen and harborworkers in United States waters?

The precedential effect of the majority's decision will be truly

dramatic, for once this remedy is established for the benefit of

United States citizens working as longshoremen and harborworkers in

foreign ports, there will not be any logical reason to deny the

extension of the warranty of seaworthiness to citizens of other

nations working in those same foreign ports on United States

vessels. And as a result, the United States courts will become the

preferred forum for every worker who is injured on board a United

States vessel in foreign ports and desires to seek the benefit of

the strict liability of the warranty of unseaworthiness doctrine.

I suggest that Apex requires the conclusion that when Congress

passed the 1972 amendments to LHWCA, it expressly withdrew the
 

88 See Edmonds v. Compagnie Generale Transatlantique, 443

U.S. 256, 99 S. Ct. 2753, 2757 (1979), where the Court stated:

Against this background, Congress acted in 1972, among

other things, [n.11] to eliminate the shipowner's

liability to the longshoreman for unseaworthiness and

the stevedore's liability to the shipowner for

unworkmanlike service resulting in injury to the

longshoreman--in other words, to overrule Sieracki and

Ryan.

[n.11]The Amendments also increased compensation benefits,

expanded the Act's geographic coverage, and instituted a new means

of adjudicating compensation cases. Robertson, Jurisdiction,

Shipowner Negligence and Stevedore Immunities under the 1972

Amendments to the Longshoremen's Act, 28 Mercer L. Rev. 515, 516

(1977).

xxiii

warranty of seaworthiness as a theory of recovery for longshoremen

and harborworkers in this country and in effect overruled and

reversed the concepts underlying Sieracki seaman status.88 The

federal courts should, therefore, "look primarily to [this]

legislative enactment for policy guidance" and should "not create,

under our admiralty powers a remedy ... that goes well beyond the

limits of Congress's ordered system of recovery for seaman's injury

and death." Apex at 27, 36.

I respectfully dissent, therefore, from the majority opinion,

which affirms the decision of the district court to extend Sieracki

seaman status to Coats with the right of recovery on the warranty

of unseaworthiness against Penrod.