Coats v. Penrod Drilling Corp.

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

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

2

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

3

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

1

The district court granted Lee's motion for summary

judgment and dismissed it from the case.

4

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.

2

The 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

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

6

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

3

Mississippi 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).

4

Penrod 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

(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

8

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

9

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.

10

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,

11

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.

12

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.

13

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

14

(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

15

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

5

After 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.

6

We note that no evidence of insolvency or uncollectibility

has been presented in this case.

16

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

17

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

7

The 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).

8

Coats 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

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 -

9

Note 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).

10

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

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

19

$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 judgment-

proof, 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

11

MIS' 60% share of fault is calculated by multiplying

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

20

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

12

Judge 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

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

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

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

23

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 wrong-

doers, 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

24

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

13

Penrod 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

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.

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.

14

In 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

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-by-

side 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

15

Despite 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

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.

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 partially-

liable 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 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 statutorily-

immune 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

29

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-

30

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

16

Penrod 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

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 non-

settling 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.

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

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 well-

established 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

33

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

34

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

17

We 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 well-

established 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

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

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

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 common-

law 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).

37

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

18

The 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

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

19

The 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

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

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.

20

Although this bill died in the committee, its proposed

operation is relevant to our analysis.

40

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

21

Judge Garwood's dissent states that Arizona and New

Hampshire have also adopted similar reallocation approaches. We

41

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

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)).

22

It 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

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

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

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

44

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 above-

mentioned 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

23

There 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

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.

24

Penrod 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

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:

25

See, 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

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

48

[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

26

Judge 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

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

50

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.

27

The 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

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 §

28

Judge 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

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

53

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

29

The 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

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.

55

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

56

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

57

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.

58

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

30

Unlike Simeon, this case does not involve a Jones Act

seaman.

59

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.,

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.

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

61

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,

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

does not afford a principled justification for rejecting the

approach espoused in this dissent. The result in the just-

mentioned 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

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

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

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

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).

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

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

66

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

67

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

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

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

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

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

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, third-

party 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

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-and-

several 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.

. . . .

(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 joint-

and-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

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

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

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

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 third-

party 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

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

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 joint-

74

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

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

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

76

(ten percent) was forty percent of the combined negligence (twenty-

five 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

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

as those of the UCFA.47 The reporters' notes to section 25A (see

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

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

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 employee-

plaintiff'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

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

80

exception reflects the common law rule before the

adoption of comparative fault, which made indepen

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