Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller

United States Court of Appeals,

Eleventh Circuit.

No. 95-2012.

GREAT LAKES DREDGE AND DOCK CO., Plaintiff-Appellant,

v.

TANKER ROBERT WATT MILLER, Defendant-Appellee.

In re CHEVRON TRANSPORT CO., as owner of the S/S ROBERT WATT
MILLER, in an action from exoneration from or limitations of
liability, Great Lakes Dredge & Dock Co., Claimant-Appellant.

GREAT LAKES DREDGE AND DOCK CO., Plaintiff-Appellant,

v.

CHEVRON SHIPPING COMPANY and Italia Societer Per Az Di Nav,
Defendants-Appellees.

Aug. 28, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (Nos. 75-87-CIV-J-10, 77-635-CIV-J-10),
William T. Hodges, Judge.

Before COX and BARKETT, Circuit Judges, and BRIGHT*, Senior Circuit
Judge.

COX, Circuit Judge:

Great Lakes Dredge & Dock Company ("Great Lakes") appeals the

dismissal of its contribution claims against Chevron Transport

Corporation and Chevron Shipping Corporation (collectively

"Chevron") arising from the parties' liability for injuries and

damages sustained as the result of a collision between a tanker and

a dredge in 1975. Great Lakes also appeals the denial of its

motion to alter or amend the judgment with regard to its claims for

contribution for maintenance and cure paid to the injured and

*
Honorable Myron H. Bright, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
deceased seamen. We affirm the dismissal of Great Lakes's general

contribution claims, but reverse the dismissal of its contribution

claims for maintenance and cure expenses and remand for further

proceedings.

FACTS AND PROCEDURAL HISTORY

This appeal is the fourth arising out of the 1975 collision

between the tanker Robert Watt Miller, owned and operated by

Chevron, and the dredge Alaska, owned by Great Lakes, in the St.

Johns River near Jacksonville, Florida. The history of this case

has been exhaustively recorded by the district court, see Complaint

of Chevron Transport Corp., 613 F.Supp. 1428, 1431-33

(M.D.Fla.1985), aff'd in part and rev'd in part sub nom. Self v.

Great Lakes, 832 F.2d 1540 (11th Cir.1987), cert. denied, 486 U.S.

1033, 108 S.Ct. 2017, 100 L.Ed.2d 604 (1988), and by this court,

see Great Lakes v. Tanker Robert Watt Miller, 957 F.2d 1575, 1576-

78 (11th Cir.), cert. denied, 506 U.S. 981, 113 S.Ct. 484, 121

L.Ed.2d 388 (1992) [hereinafter Great Lakes III ]; Self, 832 F.2d

at 1543-45; Ebanks v. Great Lakes, 688 F.2d 716, 717 (11th

Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1774, 76 L.Ed.2d

346 (1983). Accordingly, we discuss the background of this case

only as relevant to the issues currently presented.

As a result of the collision, two crew members of the Alaska

were killed and several others were injured. The injured crew

members and the estates of the deceased filed separate suits

against Great Lakes for damages, and Great Lakes filed third-party

complaints against Chevron for indemnity, contribution, and damage

to the Alaska. By the time this matter last came before this
court, all these claims had been resolved through settlements or

final judicial disposition,1 except for Great Lakes's claims for

contribution against Chevron. Great Lakes III, 957 F.2d at 1577.

These contribution claims are the subject of this appeal as well.

In deciding Great Lakes III, we were presented with the

question of whether Great Lakes was precluded from asserting a

claim for contribution against Chevron because of either Chevron's

previous settlement (a "settlement bar" rule) or Great Lakes's

eventual settlement (a "settler barred" rule) with the injured and

deceased crewmen. The district court had relied upon dicta in

Self, 832 F.2d at 1547, to conclude that Great Lakes was prevented

from asserting contribution claims against Chevron because of the

settlement bar rule. We reversed, holding that "an action for

contribution against a settling tortfeasor may be maintained by a

nonsettling joint tortfeasor that has paid more than its share of

the plaintiff's damages based upon the respective degrees of

fault." 975 F.2d at 1582-83. We went on to reject the "settler

barred" rationale, holding that "Great Lakes's claims for

contribution from Chevron [were] not barred by the fact that Great

1
Chevron settled with the injured crew members and the
estates of the deceased crewmen, for a total of $707,800. See
Great Lakes III, 957 F.2d at 1576-77. Shortly thereafter, the
district court severed Great Lakes's third-party claims against
Chevron and tried the actions against Great Lakes before a jury.
Id. at 1577. After we reversed an initial verdict for Great
Lakes and remanded for a new trial, Ebanks, 688 F.2d at 722,
Great Lakes settled with all the claimants except for crewman
Danny Self's estate, for a total of $943,199. After another
round of litigation in the district court and in this court,
Great Lakes settled with the Self estate for $2,050,000. By
then, Chevron had been granted summary judgment on Great Lakes's
indemnity claims, and Chevron and Great Lakes had resolved their
dispute over damage to the vessels involved in the collision.
Great Lakes III, 957 F.2d at 1577 n. 2.
Lakes itself settled with the injured crewmen and estates." Id. at

1584. We concluded that this result best reconciled our adoption

of the pro tanto approach for apportioning liability among joint

tortfeasors, Self, 832 F.2d at 1548, with the Supreme Court's

holding that liability in maritime actions be distributed according

to the parties' comparative degrees of fault, United States v.

Reliable Transfer Co., 421 U.S. 397, 411, 95 S.Ct. 1708, 1715, 44

L.Ed.2d 251 (1975).2 We remanded this case to allow the district

court to determine whether Great Lakes was ultimately entitled to

recover contribution from Chevron. Great Lakes III, 957 F.2d at

1584.

On remand, Great Lakes moved for summary judgment on its

contribution claims. Great Lakes argued that the amounts of its

settlements with all the claimants, except for that of crewman

Danny Self's estate, constituted presumptive proof of damages,3 and

2
How best to apportion liability among settling and
non-settling joint tortfeasors has long been the subject of
debate. The pro tanto approach gives a remaining tortfeasor a
credit for the actual dollar amount of a settlement made by a
joint tortfeasor. Prior to Self, this circuit had adopted the
pro rata, or proportionate share, approach, which gives a
nonsettling tortfeasor a credit based on the comparative fault of
a settling joint tortfeasor. See Leger v. Drilling Well Control,
Inc., 592 F.2d 1246, 1249-50 (5th Cir.1979). For a comparison of
these competing approaches, see Great Lakes III, 957 F.2d at
1579.

In Self, we abandoned Leger and reaffirmed the pro
tanto rule established in Billiot v. Stewart Seacraft, 382
F.2d 662, 664-65 (5th Cir.1967). We concluded that this
course of action was required by evolving Supreme Court
precedent clarifying Reliable Transfer. See Self, 832 F.2d
at 1546-48 & n. 6 (discussing Edmonds v. Compagnie Generale
Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521
(1979)).
3
Great Lakes moved for partial summary judgment on the Self
claim, but conceded that the reasonableness of the $2,050,000
it asserted that the district court's previous determination of

comparative fault with regard to Self's death (assigning 70% of the

blame for the accident to Chevron and 30% to Great Lakes) was

applicable to all claimants. See Self, 832 F.2d at 1544. Chevron

opposed both motions, arguing that Great Lakes had to prove that it

paid more than its proportionate share of their common liability in

order to be entitled to contribution. Chevron also moved for

summary judgment.

The district court denied the motions and set Great Lakes's

contribution claims for trial. (R. 2-42 at 3-4.) To ascertain

whether Great Lakes was entitled to contribution, the court

concluded that, at trial, evidence had to be adduced as to (1) the

amount of actual damages suffered by each of the crew members, (2)

the comparative degrees of fault borne by Great Lakes and Chevron

with regard to each crewman except for Danny Self, and (3) whether

Great Lakes's settlements included compensation for crew members'

punitive damages claims. (Id. at 4.)

While the trial was pending, the Supreme Court decided

McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 128

L.Ed.2d 148 (1994), and Boca Grande Club, Inc. v. Florida Power &

Light Co., 511 U.S. 222, 114 S.Ct. 1472, 128 L.Ed.2d 165 (1994).

In McDermott, the Court rejected the pro tanto approach espoused by

this circuit and held that a proportionate share approach, which

simply reduces an award against a nonsettling tortfeasor by the

percentage of fault assigned to a settling joint tortfeasor, is
superior to a pro tanto setoff and more consistent with Reliable

settlement remained a disputed issue of material fact.
Transfer, 511 U.S. at ----, 114 S.Ct. at 1470. Boca Grande

involved the question of whether a plaintiff's settlement with one

tortfeasor barred a contribution claim brought by a nonsettling

joint tortfeasor. The Court relied on McDermott to vacate a panel

opinion from this circuit, which had followed Great Lakes III in

rejecting the settlement bar rule. The Court stated simply that

because it had adopted the proportionate share rule, "actions for

contribution against settling defendants are neither necessary nor

permitted." Boca Grande, 511 U.S. at ----, 114 S.Ct. at 1472.

After the Supreme Court decided McDermott and Boca Grande,

Chevron moved to dismiss Great Lakes's contribution claims and

moved in the alternative for summary judgment or judgment on the

pleadings. Citing Harper v. Virginia Dept. of Taxation, 509 U.S.

86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), Chevron argued that

McDermott and Boca Grande effectively overruled Self and Great

Lakes III and mandated a dismissal of Great Lakes's contribution

claims. The district court agreed and dismissed Great Lakes's

claims. (R. 2-62 at 2.) Great Lakes filed a motion to alter or

amend the judgment, arguing that even if its general contribution

claims were precluded, its claims for contribution based on

maintenance and cure expenses survived McDermott and Boca Grande.

The district court denied the motion to alter or amend, and this

appeal followed.

ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES

In this appeal, we must decide whether the district court

correctly concluded that McDermott and Boca Grande foreclose Great

Lakes's claims for contribution. Great Lakes argues that the
decisions should not be applied retroactively to preclude its

claims against Chevron. Great Lakes contends that by the time

McDermott and Boca Grande were decided, it had already obtained a

right to seek contribution by virtue of our opinions in Self and

Great Lakes III, leaving only the actual amount of contribution to

be determined. Because only this "collateral" matter is left to be

resolved, Great Lakes reasons, our opinion in Self, which adopted

the pro tanto approach, remains the law of the case, and Great

Lakes III should apply to permit Great Lakes to recover any amount

it paid in excess of its relative share of liability.

Chevron contends that the district court correctly applied

McDermott and Boca Grande, because Great Lakes's contribution

claims were still "open on direct review" when the Supreme Court

decided the cases. Chevron argues that, even as the law of this

case, Self and Great Lakes III must yield to intervening Supreme

Court precedent, so that Great Lakes's claims are clearly barred by

the holdings of McDermott and Boca Grande.

Great Lakes also argues that, even if its general contribution

claims are barred, the district court erred by dismissing its

claims based on the maintenance and cure payments it made to the

injured and deceased seamen. Great Lakes contends that, at the

least, the district court construed McDermott and Boca Grande too

broadly in concluding that the cases barred contribution claims for

maintenance and cure expenses. Chevron counters that the district

court correctly read those cases to preclude all contribution
claims against a settling tortfeasor.4

DISCUSSION

The district court read McDermott and Boca Grande to hold

squarely that actions for contribution against settling defendants

are neither necessary nor permitted, and it concluded that the new

rule of law adopted in those cases "is clearly retroactive and

applicable" to Great Lakes's claims. (R. 2-63 at 2 (citingHarper,

509 U.S. at 86, 113 S.Ct. at 2510).) The district court rejected

Great Lakes's argument that its contribution claims were sustained

by the law of the case, stating that "one of the conditions

justifying if not mandating a deviation from that doctrine [occurs

when] "controlling authority has since made a contrary decision of

the law applicable to the issue.' " ( Id. (quoting Westbrook v.

Zant, 743 F.2d 764, 769 (11th Cir.1984)).) We review the district

court's legal conclusions de novo. Marine Transp. Serv. v. Python

High Performance Marine Corp., 16 F.3d 1133, 1138 (11th Cir.1994)

(citation omitted).

A. Great Lakes's general contribution claims

We agree with the district court's conclusion that Great

Lakes's general contribution claims are precluded by McDermott and

Boca Grande. In McDermott, the Court plainly rejected the pro

4
Great Lakes also challenges the denial of its motion to
alter or amend the judgment, which repeats Great Lakes's argument
concerning the dismissal of its contribution claims based on
maintenance and cure expenses. Great Lakes separately contends
that, with regard to its motion for summary judgment, the
district court erred by rejecting the argument that Great Lakes's
settlement amounts constitute presumptive proof of actual damages
for the purpose of assessing its general contribution claims.
Because of our resolution of Great Lakes's appeal of the district
court's dismissal of its claims, it is unnecessary for us to
address either of these questions.
tanto approach espoused by this circuit since Self, and in so

doing, obviated the reasoning we used in Great Lakes III to

conclude that Great Lakes could assert its claims for contribution

against Chevron. See 511 U.S. at ----, 114 S.Ct. at 1466-70.

Great Lakes does not necessarily dispute McDermott 's holding;

instead, it contends that the new rule of law should not be applied

retroactively to disturb the settled law of the case, as developed

in Self and Great Lakes III. Great Lakes argues that Harper v.

Virginia Dept. of Taxation, on which the district court relied to

apply McDermott and Boca Grande to this case, is distinguishable,

because here, all the independent claims, i.e., those of the

injured and deceased crewmen, are no longer "open on direct

review." See Harper, 509 U.S. at 97, 113 S.Ct. at 2517.

Characterizing its contribution claims as merely collateral, Great

Lakes in essence argues that, because the principal claims have

been settled, there is no way to give a proportionate share credit

to Great Lakes; therefore, its contribution claims should escape

McDermott and Boca Grande 's reach.

We are not unsympathetic to the possibility that, if McDermott

and Boca Grande are applied to this case, Great Lakes may be left

having paid an amount greater than its proportionate share of

liability. But Great Lakes's contribution claims are not

"collateral" for the purposes of Harper 's retroactivity rule;

they are derivative but independent claims assertible against

Chevron, and they remained "open on direct review" when McDermott

and Boca Grande were decided. Far from being finally resolved, the

contribution claims were awaiting a trial on their merits when the
Supreme Court held that contribution claims arising from joint

liability are barred.

Our reading of Boca Grande makes us more certain that Great

Lakes's general contribution claims cannot be "grandfathered" in

some way to survive McDermott. This court was presented with only

one issue when it decided Boca Grande prior to the Supreme Court's

decision in the case: whether the settlement bar rule suggested by

Self precluded a contribution claim against a settling defendant.

Boca Grande Club, Inc. v. Polackwich, 990 F.2d 606, 607 (1993).

The Boca Grande panel relied upon our intervening decision in Great

Lakes III to vacate a contrary decision by the district court and

remand for further proceedings. Id. The Supreme Court vacated

this court's judgment, based on McDermott, stating that "actions

for contribution ... are [no longer] necessary [or] permitted."

Boca Grande, 511 U.S. at ----, 114 S.Ct. at 1472.

The Boca Grande Court reached this result despite the risk,

also present in this case, that application of the pro tanto

approach, decoupled from a right of contribution, would in some

cases leave joint tortfeasors ultimately to shoulder more than

their proportionate shares of liability. The Boca Grande Court

could have decided to create an exception to protect such

litigants, but it did not. We are bound to take the same course of

action here; we hold that Great Lakes's general contribution

claims are barred.

B. Great Lakes's claims for contribution based on maintenance and
cure

We do not read McDermott and Boca Grande to require the same

result with regard to Great Lakes's claims based on maintenance and
cure; those decisions do not address whether a shipowner that is

also a tortfeasor can recover maintenance and cure expenses based

on the relative fault of other joint tortfeasors. McDermott and

Boca Grande addressed the issue of how best to divide liability

among settling and nonsettling joint tortfeasors, all of which, by

definition, caused the harm suffered by an injured plaintiff. The

McDermott Court faulted the use of a pro tanto setoff with a

subsequent right of contribution, because such an approach both

discourages settlements and burdens the judiciary with ancillary

litigation. 511 U.S. at ----, 114 S.Ct. at 1467. By contrast, the

Court favored the proportionate share approach because it "is more

consistent with Reliable Transfer," and "no suits for contribution

... are permitted, nor are they necessary, because the nonsettling

defendants pay no more than their share of the judgment." Id. at

----, at 1466-67. The Court adopted the proportionate share

approach because it provides for allocation of liability based on

relative fault while conserving judicial resources and maintaining

proper incentives to settle claims. Under McDermott, then,

separate contribution actions are both unnecessary and counter to

the decision's underlying rationale of minimizing the drain on

resources caused by ancillary litigation.

One of the concerns addressed in McDermott and Boca

Grande—Reliable Transfer 's principle that liability be allocated

according to relative fault—is not met by applying McDermott 's

rationale to contribution claims to recover maintenance and cure.

While a joint tortfeasor's obligation arises because of its

injurious conduct, and its degree of liability is directly related
to its share of the blame, a shipowner is liable to provide

maintenance and cure—food, medical care, and lodging—to sick or

injured seamen in the ship's employ, regardless of the cause of

sickness or injury. "The shipowner's obligation to pay maintenance

and cure ... is not based on fault but results from the

relationship of ship and seaman." Adams v. Texaco, Inc., 640 F.2d

618, 620 (5th Cir. Unit A Mar. 23, 1981) (citation omitted).

In Adams, the Former Fifth Circuit held that "a concurrently

negligent tortfeasor should proportionately contribute to

maintenance and cure paid by a negligent shipowner when the

latter's negligence only concurrently contributed to the seamen's

injury." Id. at 621. This holding is consistent with McDermott

and Boca Grande, to the extent that they reaffirm Reliable Transfer

's principle that liability be allocated based on relative fault.

A shipowner, unlike a nonsettling joint tortfeasor, will never

receive the benefit of a proportionate share credit under

McDermott; the only way to apportion the cost of maintenance and

cure among all tortfeasors responsible for the harm to seamen is to

allow claims for contribution. Otherwise, a shipowner would simply

always be liable for all of its maintenance and cure expenses,

despite some degree of fault on the part of other joint

tortfeasors. The Court in McDermott and Boca Grande had to choose

among competing methods of apportioning general liability pursuant

to Reliable Transfer; it did not address contribution actions for

maintenance and cure, like those of Great Lakes, which are the only

means by which to achieve a distribution of liability based on

relative fault. Because McDermott and Boca Grande leave intact
binding precedent allowing contribution claims based on maintenance

and cure expenses, we are bound to hold that Great Lakes's claims

based on maintenance and cure should have been allowed to proceed.

CONCLUSION

We affirm the district court's dismissal of Great Lakes's

contribution claims based on liability for the injuries and deaths

suffered as a result of the collision between the Alaska and the

Robert Watt Miller. But we conclude that the court improperly

dismissed the claims for contribution based on Great Lakes's

maintenance and cure expenses, so we reverse in part and remand for

further proceedings.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.