In the Matter of: Antill Pipeline Construction Company, Inc.

Filing 421

ORDER & REASONS re: 249 Motion for Partial Summary Judgment. ORDERED that the Motion for Partial Summary Judgment is DENIED. Signed by Judge Helen G. Berrigan on 12/5/11. (Reference: 09-3646)(plh, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

IN THE MATTER OF THE
COMPLAINT OF ANTILL PIPELINE
CONSTRUCTION CO., INC. AS
OWNER OF THE BARGE LML 103
AND M/V RUTH R. AND AS
ALLEGED CHARTERER OF THE
BARGE GD 897 FOR EXONERATION
FROM OR LIMITATION OF
LIABILITY

NO. 09-3646

SECTION “C” (2)

ORDER AND REASONS
This matter is before the Court on motion for partial summary judgment by Antill
Pipeline Construction Co., Inc., as owner of the Barge LML 10 and M/V RUTH R
(“Petitioner”) seeking that the Court find that the estates and heirs of the driver(s) of a
recreational fishing vessel who died in an allision with Petitioner’s barge and tug units,
which were located within Louisiana navigable waters, are statutorily barred from
recovering damages. Rec. Doc. 249. Primarily, Petitioner moves the Court to determine
whether La. Rev. Stat. § 9:2798.4, which prohibits recovery by the estate of the operator
of a watercraft who is: (1) found to have driven while his blood alcohol concentration
was of 0.08 percent or more, (2) found to be in excess of twenty-five percent negligent as
a result, and (3) whose negligence is found to be a contributing factor to the damage, may
be applied, as opposed to the fault allocation method prescribed by general maritime
law.1 Rec. Doc. 249. While the parties do not dispute that general maritime law applies
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Alternatively, Petitioner argues that The Pennsylvania Rule applies, that The Louisiana
Rule applies, that any liability to passengers is subject to reduction under La. Civ. Code
art. 2323 and that the comparative fault as to all claimants should be apportioned even if
a genuine issue of material fact exists as to the identity of the operator.
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to the instant case, Petitioner argues that the Louisiana state statute may be applied to this
action as well. Id.

Having considered the record, the memoranda, and the law, the

Court concludes, for the reasons stated below, that as a matter of law La. Rev. Stat. §
9:2798.4 cannot be applied in a maritime wrongful death action, and accordingly the
heirs and estate of the operator of the watercraft are not preemptively barred from
recovery of damages.
I. BACKGROUND
Petitioner filed this complaint under the Shipowners’ Limitation of Liability Act,
46 U.S.C.App. § 30501 et seq. (formerly 46 U.S.C. § 181, et seq.) to exonerate or limit
damages payable to the decedents’ representatives. Rec. Doc. 1. Relatives and the
estates representing the deceased craft operator(s) and passengers filed answers and
complaints against Petitioner pursuant to the Court’s Order dated May 26, 2009. Rec.
Doc. 3; Rec. Docs. 13, 24, 27. Claimants seek pecuniary, nonpecuniary, and punitive
damages on behalf of the decedents, as well as the decedents’ spouses and children under
applicable general maritime and/or Louisiana law. Id. Petitioner has moved for partial
summary judgment in its favor, based on its contention that the operator of the boat is
statutorily barred from recovery of damage, and the passengers are comparatively at
fault. Rec. Doc. 249-1 at 19.
At the outset, the Court finds that the issue as to which Claimant was operating
the watercraft at the time of the accident is an unsettled and disputed question of fact.
Discovery is still ongoing. The Court considered simply dismissing Petitioner’s motion
as premature. However, it has determined that a preliminary determination of the

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applicability of La. Rev. Stat. § 9:2798.4 and Louisiana law may facilitate the orderly
disposition of this matter.
In the memorandum and supplemental memorandum supporting their motion for
partial summary judgment, Petitioner argues that Louisiana Revised Statute § 9:2798.4
may be applied in this case. Rec. Docs. 249-1, 262-2. If the Louisiana statute were to be
applied here in force, it could statutorily bar the operator of the watercraft which allided
with Petitioner’s barge and tug units from recovery. La. Rev. Stat. § 9:2798.4 provides,
in pertinent part:
A. Neither the state, a state agency, or a political subdivision of the state nor any
person shall be liable for damages, including those available under Civil Code
Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor
vehicle, aircraft, watercraft, or vessel who:
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his
blood alcohol concentration of 0.08 percent or more by weight based on
grams of alcohol per one hundred cubic centimeters of blood . . .
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent
as a result of a blood alcohol concentration in excess of the limits provided
in R.S. 14:98(A)(1)(b) . . . and
(2) This negligence was a contributing factor causing the damage.
C. For purposes of this Section, “damages” include all general damages,
including those otherwise recoverable in a survival or wrongful death action,
which may be recoverable for personal injury, death or loss, or damage to
property by the operator of a motor vehicle, aircraft, watercraft, or vessel or the
category of persons who would have a cause of action for the operator’s wrongful
death.
In opposition, Claimants argue that the Louisiana statute, which would serve as a
total bar to recovery by the operator of the watercraft, may not be applied in the instant
action because the allision occurred on Louisiana territorial waters, and thus the federal
general maritime law’s settled liability allocation doctrine of comparative fault should be
applied solely, preempting application of the Louisiana statute which would, in barring
recovery by the boat’s operator, disrupt the use of maritime law comparative fault

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liability allocation. Rec. Doc. 260 at 4-9; Rec. Doc. 255-1 at 16-20; Rec. Doc. 283 at 18.
II. LAW & ANALYSIS
A. EVOLUTION OF WRONGFUL DEATH AS A CAUSE OF ACTION UNDER
GENERAL MARITIME LAW
Prior to the Supreme Court’s decision in Moragne v. States Marine Lines, Inc.
398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), no federal maritime cause of
action was recognized for the wrongful death of a non-seaman who was killed in state
territorial waters, less than three nautical miles from shore, and whose circumstances
were not covered by his state’s wrongful death statute. At the time, representatives of a
person killed at sea could seek damages under (1) the Death on the High Seas Act
(“DOHSA”), 46 U.S.C. §§30302-30303 for the death of any person killed more then
three nautical miles from shore; (2) the Jones Act, 46 U.S.C. § 30104, for the death of a
seaman killed in any waters when the death was caused by the negligence of the
seaman’s employer; or (3) a state wrongful death statute, for the death of a person who
died in territorial waters in circumstances covered by the statute. The Supreme Court in
Moragne held for the first time that an action for wrongful death is available under the
general maritime law “for death caused by violation of maritime duties.” Id. at 1777.
Later, the Court in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 121
S.Ct. 1927, 150 L.Ed.2d 34, 2001 AMC 1817 (2001) held that the general maritime
wrongful death action that was recognized in Moragne is also available for wrongful
death based upon negligent breach of a maritime duty of care. Id. at 820. In effect, the
newly created Moragne action substituted state wrongful death statutes, placing the
action within the area of admiralty jurisdiction. The Moragne cause of action is

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principally utilized today as a remedy for representatives of passengers and other nonseamen who are killed in non-DOHSA admiralty jurisdiction, such as the Claimants in
the case at bar.
B. APPLICATION OF A STATE LAW WHICH DENIES REMEDY TO HEIRS AND
ESTATE OF DECEASED IN MARITIME WRONGFUL DEATH ACTIONS IS NOT
SUPPORTED BY THE HOLDING OF YAMAHA MOTOR CORP. v. CALHOUN
Petitioner argues in its Supplemental Memorandum in Support of Antill’s Motion
of Partial Summary Judgment that, as a question of law, Louisiana Revised Statute §
9:2798.4 is controlling, and is not preempted by general maritime law. Rec. Doc. 262-2
at 2. It argues that the Supreme Court’s holding in Yamaha Motor Corp. v. Calhoun,
516 U.S. 199(1996) supports that contention. Rec. Doc. 262-2 at 2-3. In Yamaha, the
Court held that when a non-seafarer is killed within state territorial waters, the remedies
applicable under the general maritime law may, under certain circumstances, be
supplemented by state law remedies. Yamaha, 516 U.S. at 214-16. Petitioner argues that
this holding should be interpreted to allow the Louisiana statute in question, which could
deny all recovery to the operator of the watercraft who is found to have been under the
influence of alcohol, to be applied to the Claimant’s wrongful death action. For the
foregoing reasons, the Court does not agree.
In Yamaha, a young girl was killed in a jet-ski accident in territorial waters, and
her parents sued the jet-ski manufacturer under Pennsylvania’s wrongful death and
survival statutes. Id. at 202. The Supreme Court found that, in light of the “humane and
liberal character of admiralty proceedings recognized in Moragne,” that state remedies
remain applicable in such cases. Id. (internal quotations omitted). The Court further
noted that “Moragne, in sum, centered on the extension of relief, not on the contraction

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of remedies.” Id. at 213. Since Yamaha, it has become settled that, in many cases, state
law remedies can be accessed and applied by plaintiffs in non-seaman wrongful death
actions to supplement those provided by federal maritime law. See, e.g., Felarise v.
Cheramie Marine, L.L.C., 2010 WL 375229, *2 (E.D. La.); Kelly v. Bass Enterprises
Production Co., 17 F. Supp. 2d 591, 593-94 (E.D. La., 1998). However, fault and liability
allocation has remained an issue governed by general federal maritime law in such
actions. See Calhoun v. Yamaha Motor Corporation, USA, 216 F.3d 338, 351 (3rd Cir.
2000); In Re Amtrack “Sunset Limited” Train Crash in Bayou Canot, Alabama, On
September 22, 1993, 121 F.3d 1421, 1423-4 (11th Cir. 1997). Indeed, upon remand from
the Supreme Court’s decision, the United States Court of Appeals for the Third Circuit
held that federal maritime law, not state law, governs liability for wrongful death actions
where the incident occurred in territorial waters, due to the need for uniformity in
maritime law. Calhoun v. Yamaha Motor Corp., 216 F. 3d 338 (3d Cir. 2000) (“Yamaha
II”). This holding strongly suggests that a state statute the likes of La. Rev. Stat. §
9:2798.4, which could deny all liability of one party in an allision when the other party is
found to have been under the influence of alcohol and at fault in the accident (and for
which there is no federal maritime precedent), should not be applied in the context of a
Moragne action and must yield to federal maritime law’s governance of liability. See id.
While Yamaha would potentially allow for a plaintiff to supplement the remedies
available under federal maritime law with state law remedies to allow for additional
recovery, it can not be read to allow a defendant to be immunized from liability, thus
denying any and all remedies to the survivors and estate of a deceased non-seaman in an
admiralty allision. This view finds little support in case law and would be in direct

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contradiction with the “humane and liberal character of admiralty proceedings.” Yamaha,
516 U.S. at 202.

C. LA. REV. STAT. § 9:2798.4 MAY NOT BE APPLIED TO THE INSTANT
MARITIME WRONGFUL DEATH ACTION BECAUSE DOING SO WOULD WORK
PREJUDICE TO A CHARACTERISTIC FEATURE OF THE GENERAL MARITIME
LAW AND INTERFERE WITH THE UNIFORMITY OF GENERAL MARITIME
LAW
Analysis regarding the supplementation of maritime law by state law has
historically been governed by a three-factor test developed in Southern Pacific Co. v.
Jensen, 244 U.S. 205 (1917). According to Jensen, a court may supplement general
maritime law with state law if (1) it does not conflict with an applicable act of Congress;
(2) it does not work material prejudice to a characteristic feature of general maritime law;
or (3) it does not interfere with the proper harmony and uniformity of the general
maritime law in its international and interstate relations. Petitioner argues that in
applying this three-part test to La. Rev. Stat. 9:2798.4 this Court should find that the
statute must not be preempted by general maritime law, but applied in force. Rec. Doc.
262-2 at 3-7. This argument is not supported by the analysis regarding preemption of
state law by federal maritime law that has evolved since the Jensen decision in 1917. It
must be noted that, while the analysis forwarded in Jensen is instructive in its expression
of the key concerns when deciding a case involving maritime law preemption of state
law, and has not been expressly overruled, it has been greatly undermined as precedent,
and is thus not binding. This is indicated by the Yamaha decision in which the Supreme
Court concluded that state remedies were available to supplement admiralty remedies in

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a wrongful death case, yet did not apply the Jensen criteria, and did not even cite the case
in its opinion. See generally Yamaha, 516 U.S. 199.
It is not disputed that the Louisiana statute satisfies the first prong of Jensen; La.
Rev. Stat. § 9:2798.4 certainly does not conflict with any applicable act of Congress.
However, whether the second and third prongs are satisfied is greatly disputed by the
parties. The key concerns in cases in which a party wishes to apply state law in an
admiralty action is whether to do so would work material prejudice to a key feature of
maritime law or significantly disrupt maritime law’s harmony and uniformity, mindful of
the fact that maritime law is “ a conceptual body whose cardinal mark is uniformity.”
Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th Cir. 1983) (en banc).
Petitioner argues that the Louisiana statute does not work material prejudice to a
characteristic feature of general maritime law because “comparative fault is and has long
been a doctrine of general application in both maritime and land based torts. In addition,
§ 9:2798.4 is not a contributory negligence statute, thus contradicting general maritime
law’s comparative fault principles.” Rec. Doc. 262-2 at 6. Petitioner relies on American
Dredging Company v. Miller, 510 U.S. 443 (1994) where the Court found that because
the doctrine of forum non conveniens did not originate in admiralty or have exclusive
application there, but rather had long been a doctrine of general application, that it should
not be considered a “characteristic feature” of maritime law, and thus was not prejudiced
by applying the state statute. Miller, 510 U.S. 446-57. However, while the majority in
Miller purported to hinge its analysis on the Jensen characteristics, a fair reading of
Justice Scalia’s majority opinion indicates that the controlling factors in the Court’s
decision to apply the state law were that the state law in question was characterized as

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“procedural” in nature, coupled with the fact that its application was not “outcome
determinative.” Id. at 458-59 (Stevens, J. concurring). The Court finds that La. Rev.
Stat. § 9:2798.4 and its relationship to the maritime doctrine that it threatens, that of
comparative fault allocation, to be distinguishable. While the doctrine of forum non
conveniens, which the statute in Miller contradicted, is an initial procedural matter, the
doctrine of comparative fault that is at issue here goes beyond procedure to the heart of
the matter in question: the liability of the parties. Thus, unlike the state statute in Miller,
the Louisiana statute is clearly “outcome determinative.” Furthermore, the doctrine of
comparative fault is firmly established within maritime law. While comparative fault is
not utilized solely in the context of maritime law, we do not believe, as the Petitioner
suggests, that a proper reading of Miller mandates that we interpret the phrase “a
characteristic feature of maritime law” to mean “feature unique to maritime law”. As
the Fifth Circuit held in Lewis, “comparative fault has long been the accepted riskallocating principle under the maritime law. ” Lewis at 1428. Thus, allowing the
Louisiana statute to be enforced, preempting maritime law’s usual comparative fault
allocation, would certainly work material prejudice to a doctrine that is a characteristic
feature of maritime law.
Additionally, Petitioner’s argument that § 9:2798.4 is not a contributory
negligence statute, and thus somehow is not disruptive to maritime law’s principles of
comparative negligence, is not convincing. Rec. Doc. 262-2 at 5-6. The characterization
of the statute is not what is contemplated by the second Jensen prong, but rather, whether
in effect it works material prejudice to maritime law’s characteristic features. Because
the effect of the state statute’s application could be to totally shield one party from all

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liability to another party who could be found to be, at a minimum, twenty-five percent
negligent as a result of operating a vehicle under the influence of alcohol, the doctrine of
pure comparative fault would be frustrated and materially prejudiced. Thus, the second
Jensen prong is violated by La. Rev. Stat. § 9:2798.4.
Even if the Court was to accept the Petitioner’s proffered arguments that the
Louisiana statute meets the second prong of Jensen, its application would once again be
invalidated due to its failure to meet the concerns inherent to the third prong of Jensen.
Under the third Jensen prong, federal maritime law preempts a state statute if the state
statute would interfere with the proper harmony and uniformity of the general maritime
law in its international and interstate relations. Jensen, 244 U.S. at 216-17. Weighing the
interest in uniformity of maritime law against the application of a state law requires a
balancing of these interests. See Yamaha, 516 U.S. at 213-16. As in Yamaha, the
uniformity concerns in the instant case, regarding the governance of liability between
parties in wrongful death actions by nonseamen in state territorial waters, are rather
strong. Calhoun 216 F.3d. 338 at 351. This Court agrees with the Third Circuit’s
reasoning in its decision on remand from the Yamaha decision that
[i]f we were to adopt the view that the substantive standards by which an
admiralty defendant’s liability is adjudged is governed by the law of the state in
which the alleged injury occurred, there would be no uniformity in such
standards. Indeed, such uniformity concerns informed the Moragne Court’s
decision to overrule the Harrisburg.
Calhoun, 216 F.3d 338, 351 (internal citations and quotations omitted). While states
have traditionally been given substantial leeway in providing their own environmental
and safety standards for maritime activities, La. Rev. Stat § 9:2798.4 goes beyond setting
a safety standard to governing fault allocation and denying all recovery to a party who

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falls within its ambit. See Brockington v. Certified Elec., Inc., 903 F.2d 1523, 1530 (11th
Cir. 1990) (asserting that state interests include permission to regulate matters of local
concern without federal government interference); Yamaha, 40 F.3d 338 at 344 (noting
that state interests include policing territorial waterways and protecting citizens through
tort systems). To apply the state statute would impermissibly interfere with maritime
law’s uniformity in its settled fault allocation scheme in wrongful death cases, and is not
the sort of statute which was contemplated by the Yamaha court when it preserved the
application of state remedial statutes to deaths of nonseafarers within territorial waters.
See Yamaha, 516 U.S. at 215-16.
D. THE TREND IN FEDERAL JURISPRUDENCE IS TOWARD RECOGNITION
THAT PUTATIVE LIABILITY IN ADMIRALTY WRONGFUL DEATH ACTIONS
SHOULD BE GOVERNED BY FEDERAL MARITIME STANDARDS AND MUST
NOT YIELD TO CONFLICTING STATE STATUTES
The federal jurisprudence in the years since the Supreme Court’s decision in
Yamaha supports the conclusion that while a state’s remedial scheme may be applied in a
non-seaman wrongful death actions within state territorial waters, putative liability in
said actions should be governed by federal maritime standards which must not yield to
statutes such as La. Rev. Stat. 9:2798.4, which would require departure from these
standards.
As previously noted, this view was most recently espoused by the Third Circuit in
Yamaha II, which stated in no uncertain terms that “we hold that federal maritime
standards govern the adjudication of a defendant’s . . . putative liability in an admiralty
action brought pursuant to a state wrongful death/survival statute.” Calhoun, 216 F.3d
338, 351. The court based this decision primarily on its concern for the need for

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uniformity in maritime law, particularly with regard to the rules of conduct and liability.
Id.
This view finds further support in a 1997 opinion of the United States District
Court for the Southern District of New York. In O’Hara v. Celebrity Cruises, Inc., 979 F.
Supp. 254, the court interpreted Yamaha in the same light as the Third and Eleventh
Circuits, and as this Court has interpreted it today. In holding that punitive damages
could not be awarded as a state law supplement to general maritime law’s federal
remedies in a maritime personal injury case, the court stated that
[t]he thrust of Yamaha is to argue that considerations of uniformity in federal
maritime wrongful death actions only require that standards of liability be
exclusively determined by federal maritime law and that, once such liability has
been shown, there is no antagonism to such a policy in supplementing federal
remedies with those available under otherwise applicable state law.
Id. at 256. While the actual holding of O’Hara is not relevant to the case before us, the
dicta quoted herein is further indication of the trend in our federal jurisprudence towards
a view that in wrongful death Moragne actions, the liability scheme must be determined
by federal maritime law, and thus any state statute must yield insofar as it conflicts with
or prejudices admiralty law’s settled liability allocation mechanism, comparative fault.
Finally, prior to Yamaha II, but subsequent to the Supreme Court’s Yamaha I
decision, the United States Court of Appeals for the Eleventh Circuit denied effect to an
Alabama wrongful death statute which prohibited apportionment of damages among joint
tortfeasors, which conflicted with the federal maritime law which required that individual
fault among tortfeasors be apportioned, as in the case before us. In Re Amtrack “Sunset
Limited” Train Crash in Bayou Canot, Alabama, on September 22 1993, 121 F.3d 1421,
1423-24 (11 Cir. 1997). The court discussed the Yamaha decision and distinguished it

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from the case before it, finding that “the Yamaha Court, while aware that its decision
would create, to some extent, unavoidable conflict between state law and federal
maritime law, did not intend to wholly sacrifice long-standing admiralty principles at the
altar of states’ rights.” Id. at 1424. The court further noted that “the [Yamaha] Court
confined its holding ‘to the modest question whether it was Moragne’s design to
terminate recourse to state remedies’.” Id. In Amtrack, as in the instant case, the statute
in question “conflict[ed] with . . . fundamental admiralty law principles that bear directly
on the rights and liabilities of the parties”, namely the “apportionment of damages for
joint tortfeasors.” Id. at 1426. The court noted that the fact “[t]hat substantive admiralty
law rights are being threatened in this case is a critical factor in considering the relative
weight of federal maritime interests,” and held that “in a case like the present, where
substantive admiralty principles are placed at risk by the potential application of state
law, there is ‘no leeway for variation or supplementation by state law.” Id. (quoting
Yamaha, 516 U.S. at 210). Accordingly, the court denied effect to the Alabama statute
insofar as it prohibited apportionment of fault and damages among joint tortfeasors. Id. at
1427. This Court agrees with the views of the Eleventh and Third Circuits, and therefore
find that La. Rev. Stat. 9:2798.4 does not apply to the case at bar as a matter of law.
E. PETITIONER’S ALTERNATIVE ARGUMENTS
In this motion, Petitioner anticipates issues normally addressed at trial. By
making the preliminary ruling as to the inapplicability of La. Rev. Stat. § 9:2798.4, the
Court implicitly rejects Petitioner’s alternative argument that the comparative fault of
passengers is governed by Louisiana land-based law, including La. Code. art. 2323,
rather than maritime law, and also rejects Petitioner’s bald argument that the Court

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should apportion fault as to all claimants individually in the event the identity of the
operator can not be established. The arguments pertaining to the application of The
Pennsylvania Rule and The Louisiana Rule remain for trial.

Accordingly,
IT IS ORDERED that the motion for partial summary judgment is DENIED.
Rec. Doc. 249.

New Orleans, Louisiana, this 5th day of December, 2011.

____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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