# Coats v. Penrod Drilling Corp.

> Court of Appeals for the Fifth Circuit · August 8, 1995 · 61 F.3d 1113

URL: https://www.frixlaw.com/law-library/cases/7378

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** August 8, 1995
- **Citations:** 61 F.3d 1113; 64 U.S.L.W. 2113; 1996 A.M.C. 1; 1995 U.S. App. LEXIS 21051; 1995 WL 467791
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Politz, King, Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Duhé, Wiener, Barksdale, Garza, Demoss, Benavides, Stewart, Parker
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7378

## How later opinions describe it (automated extraction)

- holding that worker injuries in the course of repair and maintenance “can have a disruptive impact on maritime commerce by stalling or delaying the primary activity of the vessel.”
- stating that “joint and several liability is the maritime rule” and noting that “[b]y 1876, the common-law rule of joint and several liability” was being adopted in admiralty
- explaining that general maritime law allows plaintiffs to recover “when the Jones Act is inapplicable, such as when a seaman is injured through the fault of a third party”
- finding that personal injury to a vessel employee could disrupt commerce

## Opinion text

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 opera

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7378. Public record. Not legal advice.