Deciphering the Applicable Substantive Law to Apply to Maritime Wrongful Death and Personal Injury Cases in the Wake of Yamaha Motor Corp. v.

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1 NOTE Deciphering the Applicable Substantive Law to Apply to Maritime Wrongful Death and Personal Injury Cases in the Wake of Yamaha Motor Corp. v. Calhoun I. INTRODUCTION Consider the following events take place: vessel A is traveling in Boston Harbor, ferrying two passengers, C and D, across the harbor to Logan Airport. In the course of the journey, vessel A is struck by vessel B and the impact throws both passengers overboard. The end result is that passenger C dies in the accident, while passenger D sustains serious injuries. Following this tragic event, the family of passenger C initiates a wrongful death suit against the appropriate parties; and passenger D brings her own lawsuit for injuries sustained in the collision. Should the source federal or state of the standards governing liability 1 differ because one person died and the other was injured? This is one of many questions left unresolved by the United States Supreme Court in the recently decided case Yamaha Motor Corp. v. Calhoun. 2 In Yamaha, Justice Ginsburg, writing for a unanimous Court, left open the question of whether state law or general maritime law governs the standards of liability in a personal injury or wrongful death case that occurs under admiralty jurisdiction Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 216 n.14 (1996) U.S. 199 (1996). 3. See id. at 216 n.14. Justice Ginsburg noted in footnote fourteen: The Court of Appeals... left open, as do we, the source federal or state of the standards governing liability, as distinguished from the rules on remedies. We thus reserve for another day reconciliation of the maritime personal injury decisions that rejected state substantive liability standards, and the maritime wrongful-death cases in which state law held sway. Id. (comparing Kermarec v. Compagnie General Transatlantique, 358 U.S. 625 (1959) (personal injury); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) (personal injury); with Hess v. United States, 361 U.S. 314 (1960) (wrongful death); 981

2 982 NEW ENGLAND LAW REVIEW [Vol. 34:4 The implication of the Court s open-ended footnote in Yamaha is potentially troublesome to the maritime practitioner who has operat[ed] on the confident... belief that the establishment of admiralty jurisdiction over a routine tortious occurrence on navigable waters entails the applicability of maritime law. 4 Similarly, it is unclear from the Yamaha decision why there is a potential difference in the applicable substantive law depending on whether the tortious occurrence results in death or injury. This issue is of increasing importance given the development of coastal regions in recent years, and the dramatically increasing 5 number of persons injured and killed in state territorial waters. 6 The root of the problem involving tortious occurrences in territorial waters stems from the balancing of interests between federal maritime law, and the state where the accident occurred. 7 A state has a real and substantial interest in regulating the conduct that occurs within its territorial waters when the incident involves the rights and remedies of non-seamen. 8 Moreover, remedies for non-seamen injured or killed in state territorial waters are traditionally based on state law. 9 For example, it was not until The Tungus v. Skovgaard, 358 U.S. 588 (1959) (wrongful death)). 4. David W. Robertson, Symposium: Federalism and Uniformity in Maritime Law: The Applicability of State Law in Maritime Cases After Yamaha Motor Corp. v. Calhoun, 21 TUL. MAR. L. J. 81, 101 (Winter 1996) (noting that if state law controls liability standards many maritime practitioners will be observed nervously checking [their] legal malpractice coverage ). 5. See id. at 1013 ( [A]s our society has developed and become more mobile... coastal areas and their territorial waters have become hotspots for vacationers looking for sun, sand, and surf. ). In the past, most accidents in the coastal waterways involved people who made their living working on the seas, as opposed to vacationers. Id. 6. State territorial waters refers to waters within the territorial limits of a state, as well as the coastal waters less then three nautical miles from the shore of the state. John Krimmel, Recent Development: The Availability of State Causes of Action for the Wrongful Death of Nonseamen Killed in Territorial Waters: Yamaha Motor Corp. v. Calhoun, 75 WASH. U. L.Q. 1013, 1013 n.1 (1997) (quoting Calhoun v. Yamaha Motor Corp., 40 F. 3d 622, 624 n.1 (3d Cir. 1994)). 7. See id. at See Yamaha, 516 U.S. at 214. The Court notes that the term non-seaman refers to any person who is not covered by the Jones Act, 46 U.S.C. 688 (1994), nor longshore workers covered by the Longshore and Harbor Workers Compensation Act, 33 U.S.C. 901 (1994). Id. at 205 n.5. Seamen are not generally considered to be interests of the state given that most seamen receive protection for accidents that occur in territorial waters from federal statutes. Krimmel, supra note 6, at 1013 n.2 (citing the Jones Act and the Longshore and Harbor Workers Compensation Act). 9. See Krimmel, supra note 6, at Likewise, in areas unrelated to wrongful death and personal injury, [f]ederal maritime law has long accommodated the [s]tates interest in regulating maritime affairs within their territorial waters. Yamaha, 516 U.S. at 215 n.13 (citations omitted). Thus, areas such as environmental and safety standards, oil and air pollution, safety inspection, and

3 2000] MARITIME TORTS that the Supreme Court in Moragne v. State Marine Lines 10 recognized a wrongful death cause of action under general maritime law for non-seamen. 11 The Yamaha decision provides for state law-based wrongful death claims for non-seaman killed in state territorial waters. 12 The availability of state law claims stemming from the Yamaha decision are thought to be an extension of the general maritime wrongful death action recognized by the Court in Moragne. 13 In allowing recovery for wrongful death claims, the Court has implicitly followed state substantive law in maritime cases resulting in the death of a person. 14 However, the Supreme Court has not followed state substantive law in cases resulting in personal injury rather than death. 15 This Note s focus is on the reconciliation of the cases that follow state substantive liability standards in maritime wrongful death cases involving non-seamen killed in state territorial waters, with the cases that follow general maritime law in personal injury cases involving non-seamen injured in territorial waters. Part II.A provides an overview and the historical background of maritime wrongful death and personal injury law. 16 Part II.B introduces the landmark wrongful death cases The Tungus v. Skovgaard 17 and Hess v. United States. 18 Part II.C discusses the personal pilotage regulation have traditionally been regulated by states so long as the regulation is consistent with federal maritime principles and policies. Id. (citations omitted) U.S. 375 (1970). 11. See id. at 402 (stating that [w]here a death on state territorial waters is left remediless by the general maritime law and by federal statutes, a remedy may be provided under any applicable state law giving a right of action for death by wrongful act ). 12. See Friedman v. Cunard Line Ltd., 996 F. Supp. 303, 310 (1998) (noting that the Court in Yamaha allowed state law to govern damages). 13. See Yamaha, 516 U.S. at (noting that Moragne is no longer the exclusive remedy for cases involving the death of non-seamen in territorial waters); see also In re Amtrak Sunset Limited Train Crash, 121 F.3d 1421, 1424 (11th Cir. 1997) (stating that Moragne represented [the] extension of relief, [and] did not foreclose the availability of state law remedies in such cases ). 14. See Yamaha, 516 U.S. at 209 ( [I]n wrongful-death actions involving fatalities in territorial waters, state statutes provide [] the standard of liability as well as the remedial regime. ). 15. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959) (holding that governing law is general maritime law, rather than New York state law, for a non-seaman injured aboard a vessel in New York s territorial waters); see also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953) (holding that a maritime tort resulting in personal injury is governed by the rules of admiralty, not Pennsylvania substantive law). 16. See infra notes and accompanying text. 17. The Tungus v. Skovgaard, 358 U.S. 588 (1959); see also infra notes and accompanying text.

4 984 NEW ENGLAND LAW REVIEW [Vol. 34:4 injury cases Kermarec v. Compagnie Generale Transatlantique 19 and Pope & Talbot, Inc. v. Hawn. 20 Part II.D introduces the facts of Yamaha Motor Corp. v. Calhoun, 21 the most recent case where the Supreme Court did not resolve the issue of the appropriate substantive law in wrongful death and personal injury cases. Part III.A examines the jurisdictional element of admiralty law, and its relationship to the application of substantive maritime law. 22 Part III.B takes a closer look at the substantive and remedial law applied in maritime wrongful death cases prior to the Yamaha decision. 23 Part III.C notes the effect the Yamaha decision has had on including state law-based supplemental claims in the context of wrongful death cases. 24 Part III.D contains the two central theories for the reconciliation of maritime wrongful death cases applying state substantive law, and the personal injury cases applying federal law. 25 Part III.E discusses lower court cases that struggled to interpret Yamaha in the context of personal injury and wrongful death cases. 26 Part III.F introduces comparative interest balancing as a solution for determining whether to apply state or general maritime law in the context of maritime torts. 27 Finally, Part IV provides the author s conclusions based on the analysis. 28 II. BACKGROUND A. The Basis of the Substantive Law in Admiralty Jurisdiction Article III, section 2 of the United States Constitution states that [t]he judicial [p]ower [of the United States] shall extend... to all [c]ases of admiralty and maritime [j]urisdiction. 29 Moreover, in the Judiciary Act of 1789 (Judiciary Act) Congress granted the federal district courts exclusive jurisdiction over cases arising under admiralty or maritime jurisdiction Hess v. United States, 361 U.S. 314 (1960); see also infra notes and accompanying text. 19. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); see also infra notes and accompanying text. 20. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953); see also infra notes and accompanying text. 21. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996); see also infra notes and accompanying text. 22. See infra notes and accompanying text. 23. See infra notes and accompanying text. 24. See infra notes and accompanying text. 25. See infra notes and accompanying text. 26. See infra notes and accompanying text. 27. See infra notes and accompanying text. 28. See infra notes and accompanying text. 29. U.S. CONST. art. III, See Krimmel, supra note 6, at 1014 n.6. The Judiciary Act of 1789 is codified in 28 U.S.C (1994).

5 2000] MARITIME TORTS 985 Both the Constitution s grant of power, and the Judiciary Act have given the federal courts the authority to develop a substantive body of law applicable to cases within the admiralty and maritime jurisdiction. 31 This body of law is referred to as general maritime law. 32 Thus, the existence of general maritime law belies the principle that there is no federal common law. 33 General maritime law, however, is not the complete and exclusive source of substantive law in every admiralty case. 34 The grant of power by Congress in the Judiciary Act contained the infamous saving-to-suitors clause. 35 The saving-to-suitors clause gives a party the right of common law remedy, where the common law is competent to give it. 36 The result of the saving-to-suitors clause is that although state courts are not vested with admiralty jurisdiction, they do have concurrent jurisdiction over certain matters reserved to them by the saving-to-suitors clause. 37 Maritime torts, particularly those involving non-seamen, make up an area of maritime law that is filled with common law remedies. Therefore, it is no surprise that this area creates confusion among both federal and state courts on which law to apply to a particular set of facts. Thus, the operative question becomes in which situations does general maritime law give way to state law-based claims resulting from events taking place on navigable waters? 1. Principles of Uniformity at the Heart of the Matter The foundation for the development of general maritime law, and the Supreme Court s federalism jurisprudence in this field, requires the de- 31. THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW, 3-1, at 95 (2d ed.1994). 32. See id.; see also David W. Robertson, Displacement of State Law by Federal Maritime Law, 26 J. MAR. L. & COM. 325, n.2-5 (1995) (stating that general maritime law has been defined as an amalgam of traditional common-law rules, modifications of those rules, and newly created rules ). 33. SCHOENBAUM, supra note 31, at 95. Thus, Erie R.R. Co. v. Tomkins, 304 U.S. 64 (1938), which stands for the proposition that in diversity cases the federal courts must look to state law rather then federal common law, has no application in admiralty. Id. at 95 n See id. at See 28 U.S.C. 1333(1) (1994). In part, this section reads: The district courts shall have original jurisdiction, exclusive of the courts of the [s]tates, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. Id. (emphasis added). 36. Krimmel, supra note 6, at 1014 n.6 (citation omitted). The scope of application of state law in maritime cases has been referred to as one of the most perplexing issues in the law. SCHOENBAUM, supra note 31, at Krimmel, supra note 6, at 1014 n.6 (quoting GARY MAYES, Maritime Torts, in 1 MO. TORT LAW, 15-2 (2d ed. 1988)).

6 986 NEW ENGLAND LAW REVIEW [Vol. 34:4 velopment of a uniform law. 38 This viewpoint was clearly announced in the landmark case Southern Pacific Railroad Co. v. Jensen. 39 The central issue in Jensen involved the application of a New York Workmen s Compensation Act to a worker killed while engaged in a maritime activity. 40 The Court concluded that the application of the New York statute was unconstitutional because it work[ed] material prejudice to the characteristic features of the general maritime law or interfer[ed] with the proper harmony and uniformity of that law in its international and interstate relations. 41 Thus, Jensen established the principle that general maritime law governs maritime occurrences, and that state law must yield for the required uniformity of the maritime law. 42 Despite the strong statement on federalism set forth in Jensen, the decision does not require the application of federal common law in all admiralty-related cases. 43 Thus, admiralty jurisdiction does not result in automatic displacement of state law. 44 State law must yield to general maritime law only when a court finds that the application of state law would make inroads on [the] harmonious system of maritime law needed for such things as the regulation of maritime commerce. 45 Therefore, state law 38. See SCHOENBAUM, supra note 31, at U.S. 205 (1917). 40. See id. at Id. at See SCHOENBAUM, supra note 31, at 86. It is relevant to note that the Supreme Court has subjected Jensen to extensive criticism in recent years. See Robertson, supra note 4, at 88 (citing Justice Stevens concurring opinion in American Dredging Co. v. Miller, 510 U.S. 443, (1994)); Justice Stevens, concurring, referred to Jensen as the Lochner v. New York, 198 U.S. 45 (1905), of the maritime realm. See Robertson, supra note 4 at 88. Justice Scalia s majority opinion in American Dredging, indicated that the Court might have overruled Jensen if either of the parties had asked it to do so. See id. Justice Ginsburg s Yamaha opinion failed to mention Jensen in the resolution of a case involving the most significant maritime federalism issue in decades. See id. Thus, it is questionable how much guidance Jensen really offers in explaining the uniformity principles central to the development of general maritime law. See Robertson, supra note 4, at 89 (noting that [a]nyone who places serious reliance on any of [Jensen s] teachings is likely to be fooled as enlightened ). 43. See SCHOENBAUM, supra note 31, at Robertson, supra note 4, at 83 (citation omitted) (emphasis added). 45. Id. (citation omitted); see also Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). In Romero, the Court stated: [T]o claim that all enforced rights pertaining to matters maritime are rooted in federal law is a destructive oversimplification of the highly intricate interplay of the [s]tates and the [n]ational [g]overnment in their regulation of maritime commerce. It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system. But this limitation still leaves the [s]tates a wide scope.

7 2000] MARITIME TORTS 987 still has wide application in various maritime controversies that do not implicate national interests The Application of State Law to Maritime Controversies The decision on when state law is applicable to a maritime controversy is based on the balancing of the various state and federal interests. 47 Under this approach, there are several theories favoring the application of state law in maritime matters. 48 The first application involves the admiralty court borrowing from state law, thus incorporating state law into general maritime law. 49 This occurs because general maritime law is not a complete body of law. 50 In essence, state law works to fill in the gaps that exist in general maritime law. Second, federal courts in maritime cases may recognize state decisional or statutory law under three conditions: (1) where there is no applicable admiralty rule; (2) where the local and state interests predominate; and (3) where the uniformity principle is not crucial. 51 Under this principle the application of state law will often impair the uniformity of general maritime law on the basis that the predominant interest in the matter is on the state level despite the... maritime claim. 52 One problem with the second application is that this doctrine can only be applied on a case-by-case basis. 53 Therefore, any such application provides little guidance for other cases outside of the particular facts of the Id. at 373 (citations omitted). 46. See Robertson, supra note 4, at 83. In essence, the body of law developed by the Supreme Court leads to the conclusion that [i]n the federal admiralty court, state law is sometimes displaced by the substantive federal maritime law, but only sometimes. Just when is a tricky question [this] Court has never really attempted to answer. Id; see also Romero, 358 U.S. at 373 (providing examples of activities which do not implicate national interests such as: [s]tate rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance ). 47. See SCHOENBAUM, supra note 31, at 87; see also Kossick v. United Fruit Co., 365 U.S. 731, 739 (1961) (referring to the balancing of federal and state interests in maritime cases as being analogous to the normal conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which both have some concern ). 48. See SCHOENBAUM, supra note 31, at See id. at 88 (citing Hebert v. Outboard Marine Corp., 638 F. Supp (E.D.La. 1986) (holding that maritime law may adopt state law)). 50. See id. at 88 (noting that much of maritime tort law is borrowed from state law ). 51. Id. at 88. This doctrine allowing the application of state law is called the maritime but local doctrine. See id. at 89; see also Western Fuel Co. v. Garcia, 257 U.S. 233 (1921) (allowing the application of state law in a case concerning the death of a longshore worker). 52. SCHOENBAUM, supra note 31, at See id.

8 988 NEW ENGLAND LAW REVIEW [Vol. 34:4 given situation. 54 A third scenario in which state law will be applied is if the applicable admiralty law is not a pervasive system and the state law or rule supplements but does not contradict the admiralty rule. 55 This is the application relied upon by the Supreme Court in Yamaha, applying state law to the facts of the case. 56 B. The History of Wrongful Death Claims in Admiralty Law In order to understand the application of wrongful death and personal injury actions as applied to non-seamen, it is necessary to provide some background as to the statutory and common law scheme established to address cases of both seamen and longshoremen. 1. Traditional Theories of Wrongful Death in Admiralty Any review of the history of maritime wrongful death claims must begin with The Harrisburg. 57 In The Harrisburg, the Supreme Court established the rule that general maritime law did not afford a cause of action for wrongful death. 58 The harshness of The Harrisburg rule was reduced by the fact that courts allowed recovery under state wrongful death statutes See id. 55. Id. at 90; see also Pacific Merchant Shipping Association v. Aubry, 918 F.2d 1409 (9th Cir. 1990). In Pacific Merchant, the court established the following test: Our review of the relevant case authority leads us to conclude that the general rule on preemption in admiralty is that states may supplement federal admiralty law as applied to matters of local concern, so long as state law does not actually conflict with federal law or interfere with the uniform working of the maritime legal system. Pacific Merchant, 918 F.2d at See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 207 (1996) (citing Western Fuel Co. v. Garcia, 257 U.S. 233, 242 n.5 (1921) (noting that the use of state wrongful death statutes for deaths which occur in state territorial waters supplement the general maritime law, and do not in any way prejudice the characteristic features of the general maritime law)) U.S. 199 (1886); see also Yamaha, 516 U.S. at 206; Moragne v. States Marine Lines, 398 U.S. 375 (1970); The Tungus v. Skovgaard, 358 U.S. 588, 590 (1959) (starting their analyses of maritime wrongful death actions with The Harrisburg). 58. See The Harrisburg, 119 U.S. at 199. The holding in The Harrisburg stemmed from the common law belief in the United States, based on the English common law, that the law did not allow recovery for injuries resulting in death. See Yamaha, 516 U.S. at See Yamaha, 516 U.S. at (citing The Hamilton, 207 U.S. 398 (1907)); see also Western Fuel, 257 U.S. at 233 (holding that California s wrongful death statute governed a suit brought by the widow of a maritime worker killed in that state s territorial waters). In Western Fuel, the Court dealt with the issue of

9 2000] MARITIME TORTS 989 However, the compatibility of state law based wrongful death claims and federal maritime based claims grew apart as the doctrine of unseaworthiness introduced strict liability into general maritime wrongful death suits. 60 This occurred as a result of the Supreme Court decision in The Tungus 61 holding that when admiralty adopts a [s]tate s right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating [s]tate has attached. 62 Thus, if a seafarer died in state territorial waters, and thereafter a representative brought suit under the state wrongful death statute, in all likelihood that person would be precluded from the generous liability standard that the unseaworthiness doctrine provides. 63 The Court s decision in Moragne trumped The Harrisbug decision. 64 whether allowing state law based claims would be inconsistent with federal maritime law, when it stated: The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts... will not work material prejudice to the characteristic features of general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations. Western Fuel, 257 U.S. at See Yamaha, 516 U.S. at The unseaworthiness doctrine expanded a shipowner s liability to injured seamen by imposing a nondelegable duty to furnish a vessel and appurtenances reasonably fit for their intended use. Id. at 208 (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960)). The Supreme Court further held that the duty is absolute. See id. The failure to supply a safe ship result[s] in liability irrespective of fault and irrespective of the intervening negligence of crew members. Id. (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990)). Because it is easier to recover under a strict liability standard as opposed to a negligence standard, the unseaworthiness doctrine... soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed. Id. It is relevant to note that the unseaworthiness doctrine is inapplicable to passengers and guests aboard a vessel (non-seamen). See SCHOENBAUM, supra note 31, at 143. Thus, the doctrine could not be relied upon as a standard of liability by the parties mentioned in the hypothetical at the beginning of this Note. See supra Part I U.S. 588 (1959). 62. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 209 (1996) (quoting The Tungus v. Skovgaard, 358 U.S. 588, 592 (1959)). 63. See id. The preclusion stems from the fact that the unseaworthiness doctrine is not recognized in most state wrongful death statutes. For example, in Moragne v. State Lines Inc., 398 U.S. 375 (1970), the widow of a longshore worker brought a wrongful death suit under the Florida statute alleging both unseaworthiness and negligence. See id. at 377. Because Florida s wrongful death statute did not encompass unseaworthiness as a basis for liability, the lower courts dismissed the unseaworthiness claim. See id; see also infra notes and accompanying text. 64. See Moragne, 398 U.S. at 409 (holding that an action does lie under general maritime law for death caused by a violation of maritime duties ). The Mor-

10 990 NEW ENGLAND LAW REVIEW [Vol. 34:4 The Moragne Court established a general maritime wrongful death action, 65 which indicates that a representative of a seaman killed in state territorial waters need not rely on state wrongful death statutes. 66 Moreover, many lower court decisions have held that the Moragne wrongful death action extends to non-seafarers as well. 67 However, the Moragne Court realized its decision created a number of inconsistencies. 68 Of principle relevance to this Note is the discrepancy in result if a person is injured rather than killed within state territorial waters. 2. The Tungus v. Skovgaard Decision: A Wrongful Death Action Relying on State Substantive Law as the Standard of Liability Carl Skovgaard was a maintenance worker for El Dorado Oil Works, a company engaged by a consignee to handle the discharge of cargo from a vessel The Tungus. 69 The cargo consisted of large amounts of coconut oil stored in the ships deep tanks. 70 Shortly after midnight on December 5, 1952, Skovgaard was called to the vessel to assist in cleanup efforts of coconut oil, which had spilled as a result of a defective pumping system. 71 Upon arriving at the vessel, Skovgaard boarded the ship and proceeded to an area that had not yet been cleared of the oil. 72 Subsequently, while attempting to cross a hatch beam over an uncovered tank of oil, he slipped and fell to his death in eight feet of hot oil. 73 Skovgaard s widow brought suit in admiralty to recover damages for his agne Court noted that The Tungus had led to considerable uncertainty over the role state law should play in remedying deaths in territorial waters.... Yamaha, 516 U.S. at 209. However, Moragne ultimately focused on the unsoundness of The Harrisburg, rather than The Tungus. See Yamaha, 516 U.S. at See id. 66. See Moragne, 398 U.S. at See, e.g., Sutton v. Earles, 26 F.3d 903 (9th Cir. 1994) (recreational boater); Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993) (jet skier); see also Yamaha, 516 U.S. at 210 n.7 (assuming the correctness of lower court decisions extending Moragne to non-seafarers); Robert Force, Post-Calhoun Remedies for Death and Injury in Maritime Cases: Uniformity, Whither Goest Thou?, TUL. MAR. L.J. 7, 22 (1996) (noting that it is fair to conclude that the general maritime law provides a wrongful death action for beneficiaries of any person, regardless of status, killed by a tortfeasor in state territorial waters, assuming the plaintiff-beneficiary can meet the nexus prong of the test for admiralty jurisdiction ). 68. See Moragne, 398 U.S. at 395 (noting seamen could recover less than nonseamen for deaths within the state territorial waters). 69. See The Tungus v. Skovgaard, 358 U.S. 588, 589 (1959). 70. See id. 71. See id. 72. See id. 73. Id.

11 2000] MARITIME TORTS 991 death. 74 She alleged that the shipowner had failed to furnish a seaworthy vessel and that the shipowner was negligent in not providing the decedent with a reasonably safe place to work. 75 The district court held that a wrongful death suit for unseaworthiness would not lie. 76 The court of appeals reversed, holding that the New Jersey Wrongful Death Act embraces a claim for unseaworthiness. 77 Thus, the primary issue of the case was whether the New Jersey statute giving a right of action where death is caused by a wrongful act, neglect or default is broad enough to encompass an action for the death caused by the unseaworthiness of a vessel. 78 The widow in The Tungus sought either of two possible conclusions regarding the New Jersey wrongful death statute. 79 First, she hoped the Supreme Court would uphold the interpretation of the New Jersey statute made by the court of appeals. 80 Alternatively, she advanced the much broader argument that a court in a case such as this may disregard completely the conditions which the state has put upon the right it has created, and may apply instead the full corpus of the maritime law, free from any qualifications imposed by the state. 81 According to the Court, if this were true, a plaintiff in a claim for the wrongful death to a non-seamen in state territorial waters need only find that a state wrongful death statute exists. 82 The plaintiff would then be able to fill in any void in that statute with the principles of general maritime law See id. at See The Tungus v. Skovgaard, 358 U.S. 588, (1959). 76. The Tungus v. Skovgaard, 171 F. Supp. 653 (1956) (the doctrine of unseaworthiness was not recognized under the state wrongful death statute). 77. See id. In The Tungus, the issue of whether the doctrine of unseaworthiness existed under state law was critical because at the time there was not a recognized general wrongful death action for non-seamen under general maritime law. See supra notes and accompanying text. This changed with the Court s holding in Moragne. See supra notes and accompanying text. 78. The Tungus, 358 U.S. at 591. The New Jersey wrongful death statute reads as follows: When the death of a person is caused by a wrongful act, neglect or default, such as would, if the death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime. N.J. STAT. ANN. 2A: 31-1 (West 1996). 79. See The Tungus v. Skovgaard, 358 U.S. 588, (1959). 80. See id. at 591; see also supra note 77 and accompanying text. 81. The Tungus, 358 U.S. at See id. at See id.

12 992 NEW ENGLAND LAW REVIEW [Vol. 34:4 This argument was rejected by the Supreme Court, 84 which stated that when a court sitting in admiralty adopts state law, that court must apply the state law as a whole. 85 It cannot pick and choose between state law and general maritime law. 86 When a state legislature adopts a wrongful death statute, its policy presumably is that damages shall be recoverable when conduct of a particular kind results in death. 87 Therefore, according to the Supreme Court in The Tungus, the state policy must be enforced in whole The Hess v. United States Decision: A Second Statement by the Supreme Court Where State Substantive Law Held Sway In Hess v. United States, 89 an action was instituted against the United States under the Federal Tort Claims Act 90 to recover damages for the death of George Graham. 91 Graham drowned in the Columbia River during the course of his employment as a carpenter foreman for an independent contractor hired to perform repairs on a dam owned and operated by the United States. 92 Graham drowned when the tug he was aboard capsized in turbulent waters near the spillway gates of the dam. 93 The theory of the complaint was that Graham s death was proximately caused by the failure of the dam s operating personnel to close enough spillway gates so as to ensure the safety of the tug. 94 Liability was asserted under Oregon s 84. See id. 85. See id. 86. See The Tungus v. Skovgaard, 358 U.S. 588, 593 (1959); see also Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 (1943) (holding that admiralty courts, when invoked to protect rights rooted in state law, endeavor to determine the issues in accordance with the substantive law of the state ). 87. The Tungus, 358 U.S. at 593 (quoting The Harrisburg, 119 U.S. 199, 214 (1856)). In The Harrisburg, the Court noted: [I]f the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence.... The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right. The Harrisburg, 119 U.S. at See The Tungus, 358 U.S. at 594 (noting that it would be an anomaly to hold that a [s]tate may create a right of action for death, but it may not determine the circumstances under which that right exists ) U.S. 314 (1960) U.S.C. 1346(b), 2674 (1994). 91. Hess, 361 U.S. at See id. 93. See id. at See id.

13 2000] MARITIME TORTS 993 general wrongful death statute 95 and another state statute, the Employers Liability Law. 96 The district court ruled that since Graham s death occurred on navigable waters, the decision would be based on general maritime law, which would apply the Oregon wrongful death statute. 97 The district court concluded that the United States had not acted negligently so as to trigger the liability threshold in the Oregon wrongful death statute. 98 Moreover, the lower court concluded that the Employers Liability Act was not applicable for the reason that the [g]overnment was not responsible for the work there being performed, and for the further reason that the high standard of care required under the Act, if applied... would be unconstitutional. 99 However, the Supreme Court, relying on The Tungus, reversed. 100 First, the Supreme Court as it had in The Tungus, stated that when an action for wrongful death stems from conduct that occurs in state territorial waters, liability is measured under the substantive standards of state law See Hess v. United States, 361 U.S. 314, 315 (1960). The Oregon statute states in relevant part: When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decendent s surviving spouse [and dependents, and in the case where there is no surviving spouse or dependants, then for the benefit of the estate of the decedent], may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decendent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decendent.... OR. REV. STAT (1997). 96. See OR. REV. STAT (1997); see also Hess, 361 U.S. at 315. The road to recovery under the Employers Liability Law is considerably easier than under the Oregon wrongful death statute. See id. at Whereas the Oregon wrongful death statute limits damages to $20,000, makes contributory negligence an absolute bar to recovery, and has a liability standard necessitating the wrongful act of another, the Employers Liability Law had no cap on recovery, limited the effect of contributory negligence only towards mitigation of damages, and premised liability on a strict liability standard. See id. Under the statute, the defendant is liable for failure to use every device, care and precaution which [is] practicable.... Id. (quoting OR. REV. STAT (1997)). 97. See Hess, 361 U.S. at See id. 99. See Hess, 361 U.S. at 317; see also infra note 100 and accompanying text See Hess v. United States, 361 U.S. 314, (1960) See id. at 319; see supra note 33; see also United Pilots Assn. v. Halecki, 358 U.S. 613, 618 (1959). The Court reiterated its contention from The Tungus that: [T]he policy expressed by a [s]tate [l]egislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind

14 994 NEW ENGLAND LAW REVIEW [Vol. 34:4 According to the majority, had this wrongful death case not been based on maritime law, Oregon s Employers Liability Act would have clearly applied. 102 Because the Court believed that admiralty courts must decide this issue under state substantive law, it held that there was no constitutional issue present. 103 Thus, the Court held that the right of action invoked under the Employers Liability Act was valid. 104 In his dissenting opinion, Justice Harlan argued that to allow state law to control the substantive law in wrongful death cases brought under state wrongful death statutes would seriously intrude on the uniformity concerns so prevalent in admiralty law. 105 Justice Harlan was particularly concerned that allowing state substantive law into maritime cases could enlarge substantive rights not otherwise recognized under that body of law. 106 For example, in Hess the Oregon Employers Liability Law would impose a stricter standard of duty than that existed under general maritime law. 107 Under [general] maritime law the basis of liability in cases like this is the failure to use reasonable care in light of the attendant circumstances, that is, negligence. 108 Under the Oregon statute, the duty imposed would be to use every device, care and precaution which it is practicable to use for the results in death. It is incumbent upon a court enforcing that policy to enforce it all.... Hess, 361 U.S. at 320 (quoting The Tungus v. Skovgaard, 358 U.S. 588, 593 (1959)) See Hess, 361 U.S. at See id. The Court noted: we find no constitutional impediment to the application, by the maritime law, of Oregon s Employers Liability Law to the death action in which the statute would otherwise by its terms apply. Id. Moreover, the Court also noted that in an action for wrongful death in state territorial waters the conduct said to give rise to liability is to be measured not under admiralty s standards of duty, but under the substantive standards of state law. Id. at 319 (citing United Pilots Assn. v. Halecki, 358 U.S. 613, 615 (1959)); see also supra notes and accompanying text. The Court left open the question of whether a state wrongful death statute might contain provisions so offensive to traditional principles of maritime law that admiralty would decline to enforce them. Hess v. United States, 361 U.S. 314, 320 (1960) See id. at 321. The Court did not reach the issue of whether the United States actually violated the standard of care required by the Act; rather it left the question open for the lower court to decide on remand. See id See id. at (Harlan, J., dissenting) See id. at 322 n.1 (Harlan, J., dissenting). In his dissent, Justice Harlan placed a great deal of emphasis on both the Kermarec and Pope & Talbot cases, which were decided prior to Hess. See Hess, 361 U.S. at 327; see infra Part II.C, Justice Harlan argued that the supremacy principles established in Kermarec and Pope & Talbot should not have been shrugged off as a discredited relic of an earlier day. Hess, 361 U.S. at See id. at 323 (Harlan, J., dissenting) Id. at 323 (Harlan, J., dissenting); see also Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959).

15 2000] MARITIME TORTS 995 protection and safety of life and limb This would inevitably subject the party being sued to a higher standard of care than exists under general maritime law. 110 C. The Substantive Law of Maritime Personal Injury 1. Kermarec v. Compagnie Generale Transatlantique: A Strong Statement for General Maritime Law as the Applicable Substantive Law in a Personal Injury Case On November 24, 1948, the S.S. Oregon was berthed at a pier in New York City. 111 Joseph Kermarec, a non-seaman, boarded the vessel that afternoon to make a social visit with a member of the ship s crew. 112 When attempting to leave the vessel several hours later, Kermarec fell while descending a stairway, leaving him seriously injured. 113 Kermarec brought suit against the vessel owner alleging both that the ship was unseaworthy and that the crew was negligent. 114 At the district court level, the judge dismissed the unseaworthiness claim based on the theory that the substantive law of New York was applicable. 115 The court of appeals affirmed the lower courts decision. 116 Certiorari was granted, and the Supreme Court ruled that because the conduct occurred aboard a ship on navigable waters, [t]he legal rights and liabilities arising from [the] conduct were... within the full reach of admiralty jurisdiction and measurable by the standards of maritime law. 117 The Court also noted that if the action had been brought in a state court, that court would have to look to 109. Hess v. United States, 361 U.S. 314, 323 (Harlan, J., dissenting) See id. at See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 626 (1959) See id See id See id. at See id. Under the substantive law of New York, Kermarec could recover only if the defendant had failed to warn him of a dangerous condition within its actual knowledge, and only if Kermarec himself had been entirely free of contributory negligence. Id. Thus, as opposed to the generous availability of recovery under the strict liability standard of the unseaworthiness doctrine, under New York law, Kermarec had to prove his injuries were the proximate result of the defendant s negligence and the plaintiff s own contributory negligence, even in the slightest degree would bar recovery. Id. at 627 n.2. Under the general maritime law, Kermarec s contributory negligence would only be considered to mitigate damages, as opposed to acting as a complete bar for recovery. See id at 629. (citing The Max Morris v. Curry, 137 U.S. 1 (1890)); see also, e.g., DuBose v. Matson Navigation Co., 403 F.2d 875 (9th Cir. 1968) (holding that contributory negligence does not bar recovery in admiralty) See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959) Id.

16 996 NEW ENGLAND LAW REVIEW [Vol. 34:4 admiralty law as the substantive law to apply to the case. 118 The Court held that the appropriate substantive law to apply to Kermarec s claim was the principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. 119 Moreover, under maritime law Kermarec s own negligence should not be considered as a bar on the defendant s liability. 120 Under New York law, a distinction would be made between an invitee and a licensee as to the level of care owed by the ship owner to a guest such as Kermarec. 121 The New York law distinguishing between an invitee and a licensee stemmed from common law concepts. 122 The ultimate issue for the Court in Kermarec was whether this distinction existed as part of general maritime law. 123 The Court concluded that [f]or the admiralty law... to import such conceptual distinctions would be foreign to its traditions of simplicity and practicability. 124 Thus, the ship owner owes the same duty of care to all who board the vessel. 125 This result is consistent with one of the ultimate guiding principles of admiralty law uniformity Pope & Talbot, Inc. v. Hawn: The Supreme Court Again Looks to the General Maritime Law for the Substantive Standards in a Personal Injury Case In Pope & Talbot, Inc. v. Hawn, 127 the plaintiff, Charles Hawn, was a carpenter employed by an independent contractor. 128 He sustained serious injuries when he slipped and fell through an uncovered hatch hole while 118. See id.; see also infra note 153 and accompanying text (referring to the reverse-erie doctrine) Kermarec, 358 U.S. at 630. Kermarec was not aboard the ship to perform any work. Rather, his presence was based on a social visit. See id. at 629. It is relevant to note that the unseaworthiness issue was mooted in this case because under general maritime law the doctrine only extends to those persons classified as seamen. See id. at 630; see also Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944) See Kermarec, 358 U.S. at 629. It was therefore a prejudicial error for the district court judge to instruct the jury as to contributory negligence. See id See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, (1959) See id See id Id. at See Kermarec, 358 U.S. at See Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917) (holding that state law must yield if it works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law ) U.S. 406 (1953) See Pope & Talbot, 346 U.S. at 407.

17 2000] MARITIME TORTS 997 working onboard a vessel. 129 Hawn brought suit in the U.S. District Court for the District of Pennsylvania to recover damages for the injuries he sustained. 130 His complaint alleged two grounds for recovery: (1) that the vessel was unseaworthy; and (2) that the vessel s owner, Pope & Talbot, were negligent. 131 In its answer to the complaint, Pope & Talbot alleged that Hawn s own negligence contributed to the injury. 132 Under Pennsylvania law, any contributory negligence on the part of the plaintiff would be a complete bar to recovery. 133 Similar to its holding in Kermarec, the Court held that injuries occurring while on navigable waters will not be governed by state substantive law when the basis of action is a maritime tort. Rather, they are the type of action which the Constitution has placed under national power to control in its substantive as well as its procedural features The Court noted that [e]ven if Hawn were seeking to enforce a state created remedy for this right, federal maritime law would be controlling. 135 D. Yamaha Motor Corp. v. Calhoun: The Supreme Court s Most Recent Foray into the Resolution of State and Federal Interests in Maritime Law In Yamaha Motor Corp. v. Calhoun, 136 twelve-year-old Natalie Calhoun was killed while on vacation with her family in Puerto Rico when the WaveJammer jet-ski she was riding slammed into an anchored vessel in 129. See id. At the time of injury the vessel was berthed in a port located in the Pennsylvania waters of the Delaware River. See id. It is also relevant to note that the facts of this case are substantially similar to those in The Tungus. See supra Part II.B.2. The major distinction between the two cases is that in The Tungus, Skovgaard died, whereas in this case the fall resulted in Hawn suffering serious injuries. See id See Pope & Talbot, 346 U.S. at See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 407 (1953) See id. In addition, Pope & Talbot sought to join Hawn s employer, Haenn, in the suit as a third-party defendant. See id. The jury verdict ultimately entered judgment against Haenn for contribution; however, the Court of Appeals reversed this decision. See id. at See Pope & Talbot, 346 U.S. at 409. The Pennsylvania rule as to the plaintiff s own contributory negligence acting as a bar to recovery raises the same issues that were present in the Kermarec case. See supra note Pope & Talbot, 346 U.S. at 409 (quoting Panama Railroad Co. v. Johnson, 264 U.S. 375, 386 (1924)) Id. The Court went on to add that [w]hile states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretive decisions of [the] Court. Id. at 410 (citing Garrett v. Moore-McCormick Co., 317 U.S. 239, (1942)) U.S. 199 (1996).

18 998 NEW ENGLAND LAW REVIEW [Vol. 34:4 Puerto Rico s territorial waters. 137 Her parents brought a wrongful death suit against the manufacturer of the jet-ski, Yamaha Motor Corp., alleging that the product was defectively manufactured. 138 The Court noted the often-repeated phrase with admiralty jurisdiction... comes the application of substantive admiralty law. 139 Yet, the exercise of admiralty jurisdiction does not result in the automatic displacement of state law. 140 The Court framed the issue as whether the Moragne 141 decision, which created a general maritime wrongful death action, should be interpreted to prevent the application of state law in wrongful death cases brought under state wrongful death statutes. 142 According to the Court, [t]he federal cast of admiralty law... means that state law must yield to the needs of a uniform federal maritime law when [the] Court finds inroads on a harmonious system The difficulty for the Supreme Court was that the admiralty case law had not delineated a clear picture of when the harmonious system is threatened See Yamaha, 516 U.S. at See id. at 202. The Court reasoned that because the case involved a watercraft collision on navigable waters it falls within admiralty s domain, even though the real issues were related to products liability. Id. at 206 (citing Sisson v. Rudy, 497 U.S. 358, (1990) (holding that a dockside fire falls under admiralty jurisdiction)); see also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677 (1982) (collision between two boats, neither of which had been engaged in commercial maritime activity, and where the site of the accident seldom, if ever, was used for commercial activity, was within admiralty jurisdiction); see also infra Part III.A. It is relevant to note that even had there been no admiralty jurisdiction there would be no effect on the disposition of the case. See Calhoun v. Yamaha Motor Corp., 40 F.3d 622, 627 (3d Cir. 1994). The United States Court of Appeals for the Third Circuit noted that [e]ven if this were solely a diversity case or the parties were in state court, a federal maritime rule of decision applicable to the controversy would still displace a state rule that was in conflict. Id. (citing Erie R.R. Co. v. Tomkins, 304 U.S. 64 (1938); Offshore Logistics, Inc., v. Tallentire, 477 U.S. 207, 223 (1986)) (noting the existence of the reverse-erie doctrine) Yamaha, 516 U.S. at 206 (citing East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986)) Id. (citing Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545 (1995)) U.S. 375 (1970) See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996). If the Court concluded that the Moragne decision did stop the practice of applying state substantive law, a court would look to general federal maritime law for the substantive law, when faced with a case similar to Yamaha and would apply that law to the remedy set forth under the state statute. See In re Amtrak Sunset Limited Train Crash, 121 F.3d 1421, 1425 (11th Cir. 1997) Yamaha, 516 U.S. at 210 n.8 (quoting Romero v. International Operating Co., 358 U.S. 354, 373 (1959)) See id. The Court acknowledged that it would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in... admiralty jurisprudence. Id. (citing American Dredging Co. v. Miller,

19 2000] MARITIME TORTS 999 However, the Court believed it was clear that the Moragne decision did nothing to detract from the state law-based rights of non-seafarers killed in territorial waters. 145 Yamaha, thus preserves the application of state statutes to deaths within territorial waters. 146 III. ANALYSIS A. Admiralty Jurisdiction Over the Subject Matter of the Case: Does Federal Maritime Law Always Apply? In the contemplation of a given admiralty case, such as the hypothetical fact pattern presented at the beginning of this Note, 147 the first opportunity for choice-of-law issues to arise is at the jurisdictional stage of the analysis. 148 The basis of choice-of-law confusion stems from the frequently proclaimed truism that with admiralty jurisdiction 149 comes the applica- 510 U.S. 443, 452 (1994)). Thus, the Court noted that with its decision in Yamaha, it attempt[ed] no grand synthesis or reconciliation of [its] precedent... but confine[d] [its] inquiry to the modest question whether it was Moragne s design to terminate the recourse to state remedies when nonseafarers meet death in territorial waters. Id See Yamaha, 516 U.S. at 214. The Court followed the reasoning of the Third Circuit: Moragne... showed no hostility to concurrent application of state wrongful death statutes. Indeed, to read into Moragne the idea that it was placing a ceiling on recovery for wrongful death, rather than a floor, is somewhat ahistorical. The Moragne cause of action was in many respects a gap-filling measure to ensure that seamen (and their survivors) would all be treated alike. The humane and liberal purpose underlying the general maritime remedy of Moragne was driven by the idea that survivors of seamen killed in state territorial waters should not have been barred from recovery simply because the tort system of the particular state in which a seaman died did not incorporate special maritime doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply a remedy. Id. (quoting Calhoun v. Yamaha Motor Corp., 40 F.3d 622, (3d Cir. 1994)) See Yamaha, 516 U.S. at 216. The sole focus of the Court s decision in Yamaha was on the availability of damages under state law. See id See supra Part I See Joseph F. Smith, Jr., Choice of Law Analysis: The Solution to the Admiralty Jurisdictional Dilemma, 14 TUL. MAR. L.J. 1 (1989) To invoke admiralty tort jurisdiction an incident must: (1) have occurred on navigable waters; and (2) bear a substantial relationship to traditional maritime tort activity. See SCHOENBAUM, supra note 31, at 25. Whether an event is determined to have occurred on navigable waters is often referred to as the locality test. Id. Generally, the locality test requires that the tort involve the presence of a vessel on navigable waters. See id. However, if the tort occurs on a structure that is fixed to either the shore, or the bottom of the ocean, there is no admiralty jurisdiction, even though the tort technically occurs on the navigable waters. See id.; see also, e.g., Cope v. Vallete Dry-Dock Co., 119 U.S. 625 (1887) ( holding that a

20 1000 NEW ENGLAND LAW REVIEW [Vol. 34:4 tion of substantive admiralty law. 150 Thus, there is a presuppos[ed] connection between invoking admiralty jurisdiction and applying admiralty law. 151 However, this connection has been eroded by the modern view dry dock attached to the shore is not within admiralty jurisdiction because it cannot travel, and has no movable power on its own). Similarly, if the tort occurs on a vessel which at the time is not within navigable waters, there can be no admiralty jurisdiction. See SCHOENBAUM, supra note 31, at 25. The second prong of the jurisdictional test is satisfied if the general character of the activity giving rise to the incident bear[s] a substantial relationship to traditional maritime activity. Blome v. Aerospatiale Helicopter Corp., 924 F. Supp. 805, 808 (S.D. Tex. 1996) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 527 (1995)). Blome involved a helicopter crash in the Gulf of Mexico. See id. at 808. The court held that the nexus for a maritime tort activity was satisfied because by transporting a Coast Guard inspector from shore to a vessel, the helicopter was performing an activity traditionally performed by vessels. Id. at 809; see also Offshore Logistics v. Tallentire, 477 U.S. 207, (1986) (holding that admiralty jurisdiction was properly invoked in a helicopter crash because the accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. The helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an island, albeit an artificial one, to the shore ). The Supreme Court in Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982), established that the negligent operation of a pleasure boat, has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction. Id. at 674. It follows that most activities involving passengers on vessels, or other persons injured or killed within navigable waters, in some way related to a vessel, will satisfy the nexus requirement. See SCHOENBAUM, supra note 31, at In deciding if a certain set of facts meets the nexus requirement, lower courts follow a balancing process, weighing each of the following factors: (1) the functions and roles of the parties, (2) the types of vehicles and instrumentalities involved, (3) the causation and the type of injury, and (4) traditional concepts of the rule of admiralty law. Id. at 31. Moreover, the Fifth Circuit has included three other factors into the nexus test: (1) the impact of the event on maritime shipping and commerce; (2) the desirability of a uniform national rule to apply to such matters; and (3) the need for admiralty expertise in the trial and decision of the case. Id. (citing Molett v. Penrod Drilling Co., 826 F.2d 1419, 1426 (5th Cir. 1987)). By doing so, the primary function of the nexus test is served: to deny admiralty jurisdiction over occurrences that occur on navigable waters but lack maritime flavor. See SCHOENBAUM, supra note 31, at 31 (citing the following cases which denied admiralty jurisdiction: Hall v. Zambelli, 675 F. Supp (S.D.W.Va. 1988) (personal injury due to a fireworks accident aboard a barge); Strother v. Brent Lynn Corp., 671 F. Supp (W.D.La. 1987) (worker injured on amphibious vehicle in inland marsh); Duplechin v. Professional Ass n for Diving Instructors, 666 F. Supp. 84 (E.D.La. 1987) (scuba diving accident)) David W. Robertson, Summertime Sailing and the U.S. Supreme Court: The Need for a National Admiralty Court, 29 J. MAR. L. & COM. 275, 285 (1998) (citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986)) George Rutherglen, Symposium: Pleasure Boating in Admiralty: Increasing Conformity and Decreasing Significance, 29 J. MAR. L. & COM. 305, 306 (1998).