United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 22, 2004
November 18, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
________________________
No. 03-30985
________________________
Barbara Scarborough, Individually
and on behalf of decedent William A.
Scarborough; Rhonda Scarborough
Halterlein, individually and on behalf of
decedent William A. Scarborough;
William Scarborough, Jr., individually
and on behalf of decedent William A.
Scarborough
Plaintiffs-Appellants
CLEMCO INDUSTRIES, also known as Clemco-Clemintina Ltd; ET AL
Defendants
-vs-
Clemco Industries, Inc., a.k.a. Clemco-Clemintina
Ltd.; Pulsoman Safety Equipment Company;
Century Indemnity Company; as
successor to CCI Insurance Company as
successor to Insurance Company of North
America;
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JONES and WIENER, Circuit Judges, and LITTLE*, District Judge.
LITTLE, District Judge:
I. FACTUAL AND PROCEDURAL HISTORY
This appeal arises from the district court’s judgment dismissing the claims for nonpecuniary
damages of Appellants, Barbara Scarborough, Rhonda Scarborough, and William Scarborough, Jr.
(“Appellants”). See Scarborough v. Clemco Indus., 264 F. Supp. 2d 437 (E.D. La. 2003) (stating
the reasons upon which the district court dismissed the claim for nonpecuniary damages). Appellants
had sued, inter alia, Clemco Industries, Inc. (“Clemco”), Pulsoman Safety Equipment Co.
(“Pulsoman”) and Century Indemnity Co. (“Century”) (collectively “Appellees”), individually and for
damages they sustained as a result of William Scarborough’s wrongful death.
Scarborough worked aboard sandblasting vessels between 1959 and 1967. These vessels
maintained the protective coatings of offshore oil platforms through the use of abrasive sandblasting.
The equipment used in this procedure included sand pots located within the hull of the vessel,
compressors located on the deck of the vessel, hoses that were connected to the compressor and
brought aboard the platforms, and hoods worn by the decedent while sandblasting. It is alleged that
the hoods worn by Scarborough while sandblasting were manufactured by Pulsoman and Clemco.
The hoods were allegedly defective and caused Scarborough to inhale silica and other materials. The
inhalation of these materials caused Scarborough to develop silicosis.
In 1977, Scarborough brought suit in the United States District Court for the Eastern District
of Louisiana against his employer, Appellees, and certain insurers alleging that their negligence had
*
District Judge of the Western District of Louisiana, sitting by designation.
2
caused him to develop silicosis and that he was permanently disabled. Scarborough v. N. Assurance
Co., et al., No. 77-2523 (E.D. La. 1977) (Heebe, J.) (“Scarborough I”). The jury in that case
returned a $650,000 verdict in Scarborough’s favor. The jury’s findings of fact included, inter alia,
that Scarborough was a Jones Act seaman, a status he sought, and that the negligence of his employer
and the manufacturers of vessel equipment caused his disability when they provided equipment that
rendered the vessel unseaworthy.
Scarborough died of respiratory failure on 21 March 2002. Approximately ten months later,
Appellants brought suit against a majority of the Scarborough I defendants for wrongful death,
arguing that the defendants were precluded by the doctrine of collateral estoppel from rearguing the
issue of their liability for causing Scarborough to develop silicosis. Scarborough v. Clemco Indus.,
264 F. Supp. 2d 437 (E.D. La. 2003) (“Scarborough II”). The Scarborough II court, in an order
addressing various cross motions for dismissal and summary judgment, made the following pertinent
findings:
1. Appellants’ cause of action against Clemco and Pulsoman for wrongful death arises
under maritime law and is subject to federal admiralty jurisdiction.
2. Appellants are precluded by the doctrine of collateral estoppel from arguing that
Scarborough was not a Jones Act seaman.
3. Under the uniformity principle announced in Miles v. Apex Marine Corp., 498 U.S. 19,
29 (1990), a Jones Act seaman and his survivors may not recover nonpecuniary damages
in a wrongful death suit against a non-employer third party.
264 F. Supp. 2d at 447. The motions for dismissal and summary judgment were denied in the district
court’s Order and Reasons entered on 16 May 2003 because there were material issues of fact in
connection with Appellants’ pecuniary damages claims that were in dispute. Id. After the pecuniary
damages claims were settled, however, the motion to dismiss was granted by the district court in its
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Final Judgment entered on 1 October 2003.
Appellants now appeal two legal conclusions, contained in the district court’s Order and
Reasons, based upon which it later dismissed Appellants’ claims:
1) Appellants’ claims against Clemco, Pulsoman, and Century are subject to federal
admiralty jurisdiction.
2) A Jones Act seaman’s survivors may not recover nonpecuniary damages against
a non-employer third party in a maritime wrongful death action.
As explained below, we affirm the trial court.
II. DISCUSSION
A summary judgment granting a motion to dismiss and the legal conclusions upon which it
is based are reviewed de novo. Vais Arms, Inc. v. Vais, 383 F.3d 287, 291 (5th Cir. 2004). “When
de novo review is compelled, no form of appellate deference is acceptable.” Salve Regina College
v. Russell, 499 U.S. 225, 238 (1991).
A. Federal Admiralty Jurisdiction
Determinations of the applicability of federal admiralty jurisdiction are governed by the two
part test adopted by the Supreme Court in Sisson v. Ruby, 497 U.S. 358 (1990) (“Sisson”).
After Sisson, then, a party seeking to invoke federal admiralty jurisdiction pursuant
to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and
of connection with maritime activity. A court applying the location test must
determine whether the tort occurred on navigable water or whether injury suffered on
land was caused by a vessel on navigable water. The connection test raises two
issues. A court, first, must “assess the general features of the type of incident
involved,” to determine whether the incident has “a potentially disruptive impact on
maritime commerce.” Second, a court must determine whether “the general
character” of the “activity giving rise to the incident” shows a “substantial relationship
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to traditional maritime activity.”
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995) (citations
omitted).
i. The Location Test
The location requirement for invocation of federal admiralty jurisdiction can be satisfied in
two ways: 1) showing that the tort occurred on navigable water, or 2) showing that the injury was
caused by a vessel in navigable water. Id. at 534-35. Appellants argue that Scarborough’s injuries
were not caused by a vessel on navigable water.
What actually caused the harm to Scarborough was the inhalation of silica and other particles.
These deleterious materials were created when sand stored in a sand pot in the hull of the vessel on
which Scarborough worked was forced, by means of an air compressor located on the deck of the
vessel, through a hose and out onto whatever surface Scarborough was trying to maintain. The
appurtenances of the vessel, therefore, were one of the ‘but for’ causes of the injury to Scarborough.
For the vessel to be a cause of Scarborough’s injuries under Sisson, however, the vessel must have
been a proximate cause of his injuries. Id. at 537-38. In this case, it appears that the hoods and
masks produced by Appellees proximately caused the injuries to Scarborough. Therefore, only if the
hoods and masks are themselves found to be appurtenances of the vessel can the location test be met
under this prong. The court does not, however, need to address the question of whether the masks
and hoods here at issue were appurtenances of the vessels upon which Scarborough worked.
Even if the hoods and masks are not appurtenances of the vessels on which Scarborough
5
worked, the first means for meeting the location test is satisfied because the tort occurred on
navigable water. Appellants argue that the facts of this case do not support a finding that the tort
occurred on navigable water. They base this contention on the assertion that the sandblasting that
ultimately injured Scarborough was done on fixed offshore platforms that are considered to be land
under the Outer Continental Shelf Lands Act (“OCSLA”). 43 U.S.C. §§ 1331-1356a (2004).
Appellants’ argument, however, is undermined by Scarborough’s own testimony during Scarborough
I. When asked if he had to “get on the rig to sandblast,” Scarborough stated that although
sandblasting was usually done on the rig, “we occasionally blasted off the boat” when “working
around the edge of the water line.” Similarly, Scarborough testified that some of the offshore rigs
upon which he worked were not fixed. Given that Scarborough’s injury developed over a period of
eight years, when he worked to some extent around the edge of the water line and on platforms not
fixed to the ocean floor, Appellants’ argument that the tort did not occur on navigable water is less
than persuasive.1
ii. The Connection Test
The connection test for invocation of federal admiralty jurisdiction has two requirements.
First, the activity at issue must be of a sort with potential to disrupt maritime commerce. Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). Second, a court must
1
It should be noted that although Appellants are correct in their contention that Judge Heebe found
that the assertion of federal admiralty jurisdiction was not warranted in Scarborough I, that determination
was not based on a finding that the location of the tort was not a maritime location. Instead, Judge Heebe
based his determination on the fact that sandblasting is not a peculiarly maritime activity. As noted by the
district court in Scarborough II, under Sisson, invocation of federal admiralty jurisdiction is determined
now using a different test.
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determine whether the general character of the activity giving rise to the incident bears a substantial
relationship to particularly maritime activity. Id. Before determining if the activity at issue is of a sort
with potential to disrupt maritime commerce, courts should characterize the activity at issue at an
“intermediate level of generality.” Id.
Appellants argue that the proper characterization of the activity here at issue is “injury to a
worker located on a statutory island.” Such a characterization fails to take into account the district
court’s binding judgment that the Scarborough I jury’s determination that Scarborough was a Jones
Act seaman precludes Appellant s from now arguing that he was a general maritime worker under
OCSLA. Similarly, Appellants neglect to take into account the fact that a significant portion of the
work performed by Scarborough was done on navigable water.
A more reasonable and fair description of the activity at issue at an intermediate level of
generality would be “injury to a Jones Act seaman due to the negligence of a non-employer.” Using
such a description, it is clear that the sandblasting activity is of the sort with potential to disrupt
maritime activity. Therefore, the first requirement of the connection test is met.
The second requirement of the connection test is that the general character of the activity
giving rise to the incident must show a substantial relationship to particularly maritime activity. Id.
In Grubart, however, the Supreme Court held that “as long as one of the putative tortfeasors was
engaged in traditional maritime activity, the allegedly wrongful activity will ‘involve’ such traditional
maritime activity and will meet the second nexus prong.” Id. at 541. Given that Scarborough’s
employers were found liable for negligence under the Jones Act, in that the employer failed to provide
safe and protective gear, it is clear that one of the tortfeasors in this case was involved in traditional
maritime activity.
7
Appellants argue, however, that the views expressed by Justice O’Connor in her concurrence
in the Grubart decision suggest that this court should not follow the plain language of the majority’s
decision, but should instead interpret it as permitting federal courts to find that admiralty jurisdiction
exists as to a non-maritime party when one of the tortfeasors is involved in maritime activity and the
traditional tests for impleader and supplemental jurisdiction are met as to the non-maritime party.2
Justice O’Connor’s concurrence, which addresses only this issue, is just that – a concurrence and not
a part of the majority opinion for a reason. The majority opinion in Grubart stated: “The substantial
relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially
related to traditional maritime activity and such activity is claimed to have been a proximate cause
of the incident.” Id. at 541. Justice O’Connor’s concurrence does not provide this court with a
sufficient justification for ignoring the plain language of the Grubart majority. Therefore, the court
finds that a substantial relationship to maritime activity exists in this case.
Because the Sisson test is satisfied, federal admiralty jurisdiction exists over the claims by
Appellants.
2
O’Connor’s concurrence reads in pertinent part:
I concur in the Court’s judgment and opinion. The Court properly holds that, when a court is
faced with a case involving multiple tortfeasors, some of whom may not be maritime actors,
if one of the putative tortfeasors was engaged in traditional maritime activity alleged to have
proximately caused the incident, then the supposedly wrongful activity ‘involves’ traditional
maritime activity. The possible involvement of other, nonmaritime parties does not affect the
jurisdictional inquiry as to the maritime party. I do not, however, understand the Court's
opinion to suggest that, having found admiralty jurisdiction over a particular claim against a
particular party, a court must then exercise admiralty jurisdiction over all the claims and
parties involved in the case. Rather, the court should engage in the usual supplemental
jurisdiction and impleader inquiries.
Grubart, 513 U.S. at 548 (O’Connor, J., concurring).
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B. Does the Miles uniformity principle prevent the recovery of nonpecuniary damages
in a suit brought by a Jones Act seaman or his survivors against a non-employer third-
party?
In Miles v. Apex Marine Corp., 498 U.S. 19, 29 (1990), the Suprem e Court recognized a
general maritime cause of action for the wrongful death of a seaman. The Court based this decision
on the reasoning of Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). The Miles court,
however, found that Moragne did not entertain the issue of the scope of damages recoverable in a
maritime wrongful death action. Miles, 498 U.S. at 29. In addressing this issue, the Court held that
“there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones
Act seaman.”3 Id. at 32. In so holding, the Court said that it was “restor[ing] a uniform rule
applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act,
or general maritime law.” Id.
The plain language of Miles encompasses the factual scenario before the court today.
Scarborough, at his own request, was found to be a Jones Act seaman, Appellants have brought a
wrongful death action, which lies under general maritime law. Appellants, however, try to distinguish
this case from Miles by arguing that the principle of uniformity announced in that decision is not
intended to reach the facts of this case.
The first argument with which Appellants attempt to distinguish this case from Miles is based
on Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996). In Yamaha, the Court found that state
statutes that allow nonpecuniary damages are not displaced by federal admiralty law in state territorial
waters. In doing so, the Court distinguished Yamaha from Moragne, saying that case “centered on
the extension of relief, not the contraction of remedies.” Id. at 214. The Court’s holding in Yamaha,
3
We specially mention that the Miles case included a non-employer as a party defendant.
9
however, was limited to non-seafarers in territorial waters. This case deals with neither a non-
seafarer nor territorial waters.
Appellants further argue that this case is analogous to Yamaha because Judge Heebe, in
Scarborough I, applied state products liability law to the claims against Pulsoman and Clemco. The
district court, however, correctly noted that since the time of Judge Heebe’s ruling, products liability
law has been incorporat ed into the general maritime law. Scarborough v. Clemco Indus., 264 F.
Supp. 2d 437, 445 (E.D. La. 2003) (citing East River S.S. Corp. v. Transamerica Delaval, Inc., 476
U.S. 858, 865 (1986)). Today, Scarborough’s claims against Pulsoman and Clemco would fall under
general maritime law.
Scarborough was judicially determined to be a Jones Act seaman, injured outside of territorial
waters. He sued on a cause of action that arises under general maritime law. There are few
similarities between this case and Yamaha. Appellants’ argument that Yamaha and not Miles should
control, therefore, is rejected.
The second argument Appellant makes in an attempt to distinguish this case from Miles
centers on the fact that the defendants are not Scarborough’s employers, but are instead non-
employer third parties. A seaman may bring suit under the Jones Act only against his employers.
Appellants would have this court look beyond the plain language of Miles and interpret that case as
applying only to suits brought against a seaman’s employers because, through the Jones Act,
Congress has not addressed the issue of non-employer liability.4
District courts within this circuit are split on the issue whether the Miles uniformity principle
4
It should be noted that Miles has been interpreted as preventing the recovery of nonpecuniary
damages in personal injury suits brought by seamen, as well as wrongful death claims. Murray v. Anthony
Bertucci Constr. Co., 958 F.2d 127 (5th Cir. 1992).
10
limits the recovery of a seaman to pecuniary damages in all cases or only in cases in which suit is
brought against the seaman’s employer. See, e.g., Stogner v. Cent. Boat Rentals, Inc., 326 F. Supp.
2d 754, 759 (E.D. La. 2004) (holding that Miles does not preclude the recovery of nonpecuniary
damages in personal injury suits by Jones Act seaman against non-employer third parties); Rebstock
v. Sonat Offshore Drilling, 764 F. Supp. 75, 76 (E.D. La. 1991) (holding that Jones Act seaman
status has no relevance in allowing a seaman recovery under general maritime negligence law against
a non-employer third party); Trident Marine, Inc. v. M/V Atticos, 876 F. Supp. 832, 837 (E.D. La.
1994) (holding that loss of society damages are not available to the survivors of a Jones Act seaman
in suits against non-employer third parties). In this case, the district court held that “the Miles
uniform rule precluding recovery for nonpecuniary damages includes situations in which a seaman’s
dependents sue a non-employer.” Scarborough v. Clemco Indus., 264 F. Supp. 2d 437, 442 (E.D.
La. 2003).
In Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1506 (5th Cir. 1995) (en banc), this
court articulated the procedure for determining whether the Miles uniformity principle limits the
available damages in a particular case.
In order to deci de whether (and how) Miles applies to a case, a court must first
evaluate the factual setting of the case and determine what statutory remedial measures
apply, if any, in that context. If the situation is covered by a statute like the Jones Act
or DOHSA, and the statute informs and limits the available damages, the statute directs
and delimit s the recovery available under the general maritime law as well . . . .The
general maritime law will not expand the available damages when Congress has spoken
to the relief that it deems appropriate or inappropriate.
Id. The Guevara court found that the Miles decision was itself a perfect example of this approach.
The Miles court found that the factual setting in that case was the wrongful death of a seaman, that
the wrongful death of a seaman was covered by the Jones Act, and that even though suit was brought
11
under general maritime law and not under the Jones Act, the court was still obliged to follow the
Jones Act policy of limiting damages in such cases to pecuniary losses.
As mentioned above, Appellants argue that because this suit is one against a non-employer,
the facts of this case do not fall within the class of scenarios with which the Jones Act is concerned,
and, therefore, the Miles uniformity principle does not apply. Miles characterized the conduct with
which it was concerned as the wrongful death of a seaman, however, and this language guides us in
the case we now consider.
The real issue for our purposes, though, is whether the principles articulated in Guevara for
the application of Miles require this court to characterize the conduct we now explore in a more
specific manner than the Supreme Court did in Miles. A fair reading of Guevara requires us to
determine whether the facts fall under the remedial scheme of any statute that woul d prohibit this
court from describing the facts of this case as simply the wrongful death of a Jones Act seaman. In
this case, since non-employers are not subject to the remedial measures of the Jones Act, the Guevara
principles cannot be met. It would be improper to try to avoid this result by describing the conduct
involved in over-generalized terms.
Even though the Guevara court’s principles for application of Miles may not be met in this
case, Guevara still instructs that this court should find that nonpecuniary damages are not available.
Guevara, 59 F.3d at 1513. In Guevara, this court found that no Congressional remedial scheme
prohibited the award of nonpecuniary damages in general maritime suits for maintenance and cure.
Id. The court still found, however, that nonpecuniary damages should not be allowed based on two
factors. First, although no Congressional act was directly applicable, the court found that
Congressional acts applied to highly analogous factual scenarios and that the judiciary should not
12
allow more expansive remedies in a judicially created cause of action than Congress had allowed in
related remedial schemes. Id. Second, the court found that a concern for uniformity in federal
admiralty law, as strongly expressed in Miles, militated against allowing punitive damages in one class
of maintenance and cure actions but not in another. Id. Similar concerns are applicable in this case.
The facts in this case are analogous to causes of action brought pursuant to the Jones Act.
It would be improper for this court to allow the surviving spouse and heirs of a Jones Act seaman to
recover nonpecuniary damages in this case when Congress has disallowed the recovery of identical
damages in a Jones Act suit. The genesis of Appellants’ claims is maritime through and through.
Miles plainly limits recovery to pecuniary damages. We will not retreat from the bright line directive
of Miles. The Miles opinion is concerned with uniformity in the damages recoverable by a Jones Act
seaman and his survivors, not with uniformity of the types of damages to which various defendants
are subjected.5
For these reasons, the court finds that neither one who has invoked his Jones Act seaman
status nor his survivors may recover nonpecuniary damages from non-employer third parties.
III. Conclusion
We AFFIRM the district court’s judgment that federal admiralty jurisdiction is proper in this
case and its holding that a Jones Act seaman or his survivors cannot recover nonpecuniary damages
from a non-employer third party.
5
Our holding is in accord with the Ninth Circuit’s resolution of the same issue. Davis v. Bender
Shipbuilding and Repair Co., 27 F.3d 426, 430 (9th Cir. 1994) (holding that “nothing in Miles’ reasoning
[suggests] that the decision turned upon the identity of the defendant. Indeed, not all of the defendants in
Miles were Jones Act employers.”).
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