I. AN INSTANCE OF AIR RAGE IN FLIGHT OVER INTERNATIONAL WATERS: THE HENCH CASE(1)

Jennifer Olson, a fifteen-year veteran airline flight attendant for Delta Air Lines, was allegedly attacked and seriously injured when Christopher Bull Hench, a passenger, tried to break into the cockpit

of an aircraft while it was over international waters en route from Cincinnati, Ohio to Frankfurt, Germany.(2) Ms. Olson was assigned to work in the first class section of the aircraft, adjacent to the cockpit door.(3) Mr. Hench, a passenger in the business class section of the aircraft, was separated from Ms. Olson by a bulkhead and curtain.(4)

The flight began rather routinely.(5) As part of the preliminary flight preparation, all passengers were given the requisite safety instructions orally as well as by video.(6) These instructions included information that this was a non-smoking flight.(7)

Around midnight, a flight attendant working in the business class smelled smoke coming from the lavatory in her work area.(8) No passengers were seen leaving the lavatory so the flight attendants decided to monitor the situation more closely.(9) The flight attendants noticed Mr. Hench, on two different occasions, exiting the lavatory in a "cloud of smoke" even after being repeatedly warned that smoking was not permitted on the flight for safety reasons.(10) The flight attendants approached Mr. Hench several times to advise him that smoking was not permitted on the flight, but he continuously ignored them by putting headphones on his head.(11)

After several unsuccessful attempts to keep Mr. Hench from smoking, the flight attendants approached the captain.(12) Alarmed by the situation, he sent the co-pilot to speak with the disobedient passenger.(13) Mr. Hench repeatedly questioned the co-pilot's authority, put on his headset and refused to acknowledge the co-pilot's presence.(14) The co-pilot told Mr. Hench that "he wasn't finished with him" and turned toward the front of the aircraft.(15) Soon after the co-pilot walked to the front of the aircraft, Mr. Hench bolted toward the cockpit.(16) As he proceeded from business class to first class heading toward the cockpit door, he shoved Ms. Olson out of his way.(17)

Mr. Hench reached the cockpit door and began pounding on it.(18) The pilot was alone in the cockpit, and inadvertently unlatched the door.(19) It began to open and Ms. Olson placed herself between Mr. Hench and the cockpit door.(20) The passenger continued to pound on the door, struggled with and shoved Ms. Olson.(21) In spite of equipment that muffled his hearing, the captain heard Ms. Olson being slammed against the cockpit door.(22) While struggling to keep Mr. Hench from entering the cockpit, Ms. Olson grabbed the emergency telephone to notify the captain to re-latch the cockpit door.(23) Eventually, the co-pilot returned and accompanied Mr. Hench to his seat.(24) At the request of the captain of the aircraft, an attendant "recruit[ed] two of the largest passengers she could find" to assist in restraining Mr. Hench if another altercation ensued.(25)

Mr. Hench continued to berate the attendants making angry comments and accusations.(26) He also demanded alcoholic beverages and was aggressive and hostile when service was refused.(27) The captain confronted Mr. Hench and promised him the authorities would meet him in Frankfurt.(28) When the aircraft landed in Frankfurt, Germany, Federal Aviation Administration (FAA) officials and the local police escorted Mr. Hench off the aircraft.(29)

As a result of the altercation with Mr. Hench, Ms. Olson alleges that she has sustained severe back, neck and other injuries that have kept her from full-time employment.(30) She alleges that she has been able to work sporadically, but continues treatment with a neurologist, physical therapist and primary care physician.(31) In addition, Ms. Olson is receiving treatment for Post-Traumatic Stress Disorder.(32)

As will be shown, Ms. Olson's strongest cause of action lies in an intentional tort claim for battery, assault, and for intentional, or perhaps even negligent, infliction of emotional distress.(33) While this may seem obvious, complex issues arise with respect to the choice of law for acts causing injury over international waters.(34) Because this accident occurred over international waters, it is difficult to determine what state or nation's tort law and/or remedies shall apply.(35) There is little, if any, case law imposing civil liability for injuries sustained by a passenger in situations other than in an airline crash. Research has been conducted on choice of law actions arising from airline accidents that occur within the territorial waters of a particular state.(36) However, no research has been conducted on the issues that arise in a case such as Ms. Olson's. This article focuses on these issues and on one principle question: which state or nation's law should apply in a suit by a flight attendant against a passenger? We begin with a survey of the current problems occurring in the air--especially the problem of "air rage."

II. AIR RAGE

A. Generally

The term air rage has been coined to describe conduct occurring during air travel, which can fall anywhere on a behavioral continuum from socially offensive to criminal.(37) Air rage describes intentional acts that are highly disproportionate to motivating factors, which endanger the flight crew and/or other passengers and potentially jeopardize the safety of the aircraft itself.(38) The conduct often occurs when the plane is in the air.(39) While the term usually refers to a passenger's misconduct, some sources have applied it to intentional misconduct by the flight crew.(40) The term has also been applied to intentional conduct of an airline company manager.(41)

The rise in air rage incidents has increased the number of injuries sustained in the air and the corresponding potential for litigation.(42) "America witnessed such an explosion in litigation concerning aviation matters that the courts have heard and decided more aviation cases within the last decade than at any other time during the history of the Nation."(43) With the current mobility of Americans, this is not likely to change in the near future. The Federal Aviation Administration's twenty-fourth annual aviation forecast, released March 26, 1999, reported that in 1998, United States airlines carried 643.3 million passengers.(44) An "increase of 2.5% is predicted for 1999 ... with [one billion] people expected to travel by air in 2010."(45)

The air rage phenomena is relatively new, and has not been studied in an organized way. Reports of aggressive conduct during air travel have only recently been reported in the media and on the Internet although the number of reports and the outrageousness of the conduct are impressive.

For example, one airline had to deal with an investment banker who defecated on a food cart during a flight from Buenos Aires to New York.(46) The banker was given two years of probation, three hundred hours of community service, and a five thousand-dollar fine.(47) In addition, he had to pay fifty thousand dollars in restitution to the airline and reimburse other passengers for their tickets.(48)

Another example occurred when a passenger on a U.S. Airways flight consumed illegal drugs and struggled with a flight attendant who was blocking the passenger from forcing his way into the cockpit to bless the pilots.(49) The passenger was eventually restrained but not before he "tossed [the flight attendant] across three rows of seats [causing her to] suffer[] a separated shoulder and other injuries."(50)

Another passenger aboard a U.S. Airways flight was refused a drink and threw a flight attendant against the door, threatening to throw her out of the plane.(51) The pilot was forced to turn the aircraft around and the authorities picked the passenger up at the airport.(52) The passenger was sentenced to four years in jail for the assault, two hundred hours of community service upon his release from jail, submission to drug and alcohol testing and restitution of $611.35 to the airline for expenses associated with turning the plane around.(53)

A final example involves a passenger traveling to Boston who became enraged when a male flight attendant asked him to remove his radio headset during taxiing and struck the flight attendant "so hard that he sent him into the next row of seats."(54) Upon landing in Boston, the passenger was escorted off the plane by deputies.(55)

These phenomena of air rage are not limited to American air carriers.(56) An Australian woman attacked two flight attendants and tried to force open an exit door while a plane was in the air.(57) An incident aboard a Virgin Atlantic flight involved an intoxicated passenger arguing with his wife.(58) A woman aboard a British Airways flight who was denied entry into the United States "got drunk on the return flight and went berserk, attacking cabin crew and causing mayhem."(59) A British rock star is currently serving a jail sentence after being "convicted of threatening to chop off an airline stewardess's hands."(60) An intoxicated male passenger attacked an Airtours flight attendant, reportedly "smash[ing] her over the head with a duty-free vodka bottle," that resulted in eighteen stitches.(61) In another incident, a man traveling from London to Bangkok ran about the aircraft, ripped the headphones off the head of another passenger, and bit the headphones in half when the passenger ignored him.(62) He then punched out the inner protective window of the plane's rear door.(63) The plane, carrying 395 passengers, was diverted to New Delhi.(64) British Airways reports this incident "as one of the worst cases of air rage they have ever seen."(65)

One court has said "[a]ir travel in modern society presents formidable safety and security concerns and often passengers with criminal intentions are the source of that threat."(66) But even passengers with merely bad tempers "are as dangerous in some respects as any would-be skyjacker."(67) It is not only temper tantrums, however, that jeopardizes the safety of the flight.(68) Other inappropriate passenger behavior such as in-flight sexual activity creates conflict when flight attendants are forced to intervene in these amorous interludes.(69)

The frequencies of occurrences that can be called air rage are widely believed to be increasing at an exponential rate worldwide.(70) British Airline statistics report incidents have increased by 400% over the last three years, with more than 260 incidents in 1997.(71) A November 1998 report stated, "Air France recorded a doubling of air rage incidents to 500 last year."(72) In the United States, airlines are not required to keep statistics on incidents involving aggressive passengers. However, the Chair of the House of Representatives Aviation Subcommittee stated "the annual number more than tripled over four years for one airline ... from 296 cases in 1994 to 921 in 1997."(73) In the same year, 195 passengers who interfered with flight crews were assessed civil penalties by the FAA.(74)

B. Causes

The precise causes of air rage are not understood, though there is no shortage of speculation. Some say the airlines are the source of much of the problem.(75) For example, many blame the airlines for having created severely cramped travel conditions.(76)

While it seems sensible that overcrowding would aggravate passengers, many of the incidents of air rage occur in the business and first class sections where much more space per person is allotted.(77) That first-class passengers often exhibit air rage may be no accident. According to the International Air Transport Association, "`[p]remium-class passengers have paid a lot for their ticket so feel they can demand anything ... People at the back of the aircraft are more used to receiving orders. People at the front are more used to giving them.'"(78) In partial contradiction to this view, Kenji Nozawaka, a U.S. Airways flight attendant and victim of air rage, thinks frequent flier programs lead passengers to an unrealistic sense of entitlement and power.(79)

One commentator complains the entire flight experience--from the terminals, to crowding, to overzealous security, to poor food, to overbooking--has an inevitable result: "No wonder some go mad and throw things at one another."(80) Other commentators complain that passengers are treated rudely by the cabin crew, the air circulation is inadequate and the regulation of the number of carry-on bags is enraging.(81) It is believed by some that smoking bans also contribute to air rage.(82) Others blame a general breakdown in society.(83)

Despite this speculation, one thing is clear: problems are aggravated when passengers consume alcohol before and during the flight.(84) The problems that arise are both varied and complex.(85) However, there seem to be inconsistent messages being sent when airlines promote their rare wine collection in first class for international flights, yet complain that inebriated passengers are a problem.(86) One such problem occurred when a drunk passenger "dropped his pants and urinated" in front of the other passengers after being served free drinks in the first class section of the airplane.(87) "[S]ome airlines estimate as many as half of their unruly incidents involve alcohol."(88)

A professor of aerospace psychology in England who has "undertaken more research into the problem than anybody else in Britain," is seeking funding for systematic research into the causes of air rage.(89) She proposes a scientific study that would examine the effects "alcohol, cabin altitude, high carbon-dioxide levels and ... confinement have on behaviour when combined with individual stress levels, body mass, blood-sugar levels and personality types."(90) In the alternative, the professor has suggested it is perhaps the media coverage of the phenomena that has increased the number of air rage incidents by suggesting passengers have a license to act aggressively.(91) "`Air rage doesn't begin with rage--it starts with irritation'" psychologist William Glasser claims.(92) "`Once the rage starts, everything gets out of control. You have to stop it before it becomes a problem.'"(93)

The exact factor that may set an individual on a potentially dangerous course is not known.(94) At the present time, flight attendants that are well trained to recognize kindling of frustrations may be the main defense against disaster; however, this is an inadequate defense. "`It's a very serious situation,' says Mary Kay Hanke, a spokeswoman for the Washington, DC-based Association of Flight Attendants. `This problem continues to grow and escalate. The cases are more egregious. We have flight attendants who have required hospitalization, who can't return to work.'"(95)

Incidents of air rage are clearly on the rise.(96) The following section addresses what is currently being done in the United States and abroad to combat the problem.

III. PREVENTION AND STATUTORY REMEDIES FOR AIR RAGE--GENERALLY

A. International Efforts

The best solution to air rage is prevention. Some circumstances that may lead to flight violence are predictable and can be controlled, such as intoxication or overcrowding. The Canadian government has announced it will not tolerate air rage and is forming a panel consisting of police, airline and union representatives to "develop a strategy to prevent `air-rage' incidents on Canadian airlines."(97) Some European airlines are taking steps to prevent potential deadly confrontations from developing in flight.(98) For example, the British government and three airlines support the blacklisting of passengers who pose a serious risk on board.(99)

One preventative measure that has additional marketing value to at least one airline is the refurbishing of cabins to reduce overcrowding of passengers, a factor that may contribute to the likelihood of violent conduct.(100) The German Pilots Association suggested a limitation on the number of alcoholic drinks served to passengers.(101) Additionally, it was suggested nicotine gum be offered to passengers whose frustrated need to smoke may cause them to become confrontational.(102) An Australian air carrier, Ansett Airlines, "apparently even briefs sports groups before boarding to ensure they are aware that certain standards of behaviour will not be tolerated."(103)

British Airways appears to lead the industry in devising creative and powerful responses to air rage.(104) For example, in September 1998, British Airways began a trial program to deal with in-flight misconduct.(105) It is based on the penalty system in soccer.(106) If a passenger is disruptive, a "yellow card" will be given to him or her with a warning that unless their unruly behavior ceases, they will face arrest upon landing.(107) The notice also warns the passenger if a pilot is forced to land at the nearest airport due to his or her conduct, he or she may be liable for diversion costs.(108) If the passenger continues the unruly behavior, a second "card, a red one, means that the police will be waiting with arrests warrants when the plane lands. And if a British Airways pilot has sufficient cause, he may land the plane and leave a troublemaker stranded at that airfield."(109)

Furthermore, in November 1998, British Airways proposed a plan to the U.K. government with the hope that the government would develop a three-part international approach to the problem of air rage.(110) This approach includes a "unified and effective reporting system among regulators .... [an] agreement from overseas governments to extend the jurisdiction of arrest to its local police forces for incidents on British registered aircraft .... [and] fund[ing for] ... scientific research into the causes of air rage."(111)

In northwest England, the Manchester airport is regulated by what is known as a Disruptive Passenger Protocol, which is signed by thirty-nine airlines.(112) The protocol mandates prosecution of every passenger who engages in disruptive behavior on flights to and from the airport.(113) In addition, the protocol requires an agreement that the airlines will compile and share with police a full list of witnesses to any air rage incident and make crewmembers available to give statements to police.(114) The police are also seeking to have sentences for air rage increased to five years.(115)

B. United States' Efforts

American air carriers have statutory authorization to refuse to transport a passenger or property if the carrier decides there is, or might be, a safety issue.(116) When it is believed an individual poses an apparent security risk, it is within the carrier's discretion to have that person removed.(117) The airline must act reasonably in excluding a passenger to protect themselves from an action by the "injured" party.(118) Reasonableness is determined by the information available at the time a decision is required and does not include a duty to conduct an extensive investigation.(119)

Beyond exclusion of the passenger, there is little organized prevention of

in-flight violence by American air carriers.(120) This is perhaps due to a lack of understanding of the real causes of air rage.(121) The federal government, however, is beginning to take notice of the problem and to make punishment more severe.(122) The Senate Commerce, Science and Transportation Committee has recently approved an increase in the maximum civil penalty for interference with aircraft safety from $1,100 to $10,000 per incident.(123)

In the Hench case, it is clear Ms. Olson was a victim of air rage. At the present time, however, there is no existing federal statute that provides a meaningful cause of action to redress Ms. Olson's alleged injuries. Upon review of the statutes described in the following sections, it is evident that Mr. Hench has committed civil and criminal offenses against the United States--although this offers no protection to Ms. Olson and similarly situated individuals.

1. Criminal Statutes

Throughout history, Congress has enacted a number of criminal statutes to address a variety of aviation offenses.(124) For example, the National Motor Vehicle Theft Act makes it a crime to steal an aircraft.(125) It is also criminal to willfully damage or destroy an aircraft within special aircraft jurisdiction of the United States,(126) to place an explosive device on an aircraft,(127) to take firearms on an aircraft,(128) to make threats to the safety of an aircraft,(129) or to conspire to any of these things.(130) More relevant to air rage, Congress has also made it a crime to "perform[] an act of violence against or incapacitate[ ] any individual on any ... aircraft, if such act of violence or incapacitation is likely to endanger the safety of such aircraft."(131)

Sometimes, these statutes are interpreted broadly to include foreign aircraft scheduled to stop in the United States if the airplane actually lands.(132) In United States v. Georgescu,(133) a Romanian national was indicted in the United States for committing a criminal sexual act aboard Scandinavian Airlines when he allegedly accosted a nine-year-old Norwegian girl in airspace over the mid-Atlantic.(134) The airplane landed at John F. Kennedy International Airport in New York.(135) The New York court found jurisdiction over the Romanian national under 49 U.S.C. app. [sections] 1472(k)(1), which provides:

   [w]hoever, while aboard an aircraft within the special aircraft
   jurisdiction of the United States, commits an act which, if committed
   within the special maritime and territorial jurisdiction of the United
   States, as defined in [sections] 7 of Title 18, would be in violation of
   ... chapter 109A ... of such Title 18 shall be punished as provided
   therein.(136)

The court used "[t]he broad definition of `special aircraft jurisdiction of the United States' [to] include[ ] a foreign aircraft scheduled to stop in the United States if it actually lands here."(137) The court found the "initial exercise of jurisdiction may have been reasonable in order to detain the alleged criminal and gather evidence,"(138) but recognized actual prosecution would best be accomplished in either Norway or Romania by extraditing the man to one of these countries under the Tokyo Convention.(139)

In the current case, Mr. Hench was charged with violation of 14 C.F.R. [sections] 91.11, which states "[n]o person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember's duties aboard an aircraft being operated."(140) The criminal prosecution of Mr. Hench was interrupted by his untimely death.(141) However, even if the prosecution had taken place and a conviction been obtained, the result would not have redressed Ms. Olson's alleged injuries.(142)

2. Federal Aviation Act of 1958

The Federal Aviation Act(143) makes criminal numerous offenses that might be exhibited in an episode of air rage.(144) For example, a person who assaults or intimidates a member of the flight crew, including a flight attendant, in a way that interferes with or lessens his or her ability to carry out his or her duties, has committed a criminal offense.(145) Carrying a weapon or an explosive upon on an aircraft will result in serious criminal consequences.(146)

Crimes committed under the Federal Aviation Act are punishable if it is found the defendant has a general, rather than a specific, intent to commit the crime.(147) Voluntary intoxication has been held invalid as a defense to crimes committed in violation of this Act.(148) The punishment for violation of these sections is the imposition of a fine and/or imprisonment for up to twenty years.(149)

In air rage cases, the FAA may pursue a case against an unruly passenger.(150) In fact, in the case under discussion here, the FAA did pursue Mr. Hench for violation of federal regulations by assaulting, threatening, intimidating and interfering with crewmembers in the performance of their duties.(151) The Administrative Law Judge assessed a penalty of $5,000 against Mr. Hench, and indicated that had he been requested to do so, he "might well have assessed a higher penalty."(152) In this proceeding, Ms. Olson was a witness, not a party.(153) Although Mr. Hench was assessed a $5,000 fine, the fine is owed to the United States, not to Ms. Olson.(154) Therefore, under the facts of Ms. Olson's case, an aggrieved party would have no remedy under the Federal Aviation Act, and must look elsewhere for compensation for her alleged injuries.

As this brief summary of criminal statutes has suggested, passengers who engage in behavior that can be characterized as air rage would likely be subject to prosecution under federal criminal law. However, criminal prosecution and conviction does nothing to recompense a victim injured as a result of air rage.(155) Therefore, the injured person must turn to civil remedies.(156)

3. Civil Remedies

a. The Warsaw Convention

The Convention for the Unification of Certain Rules Relating to International Transportation by Air [hereinafter Warsaw Convention or Convention],(157) governs actions against carriers for negligence when the travel involves crossing international borders.(158) Article 17 of the Convention makes an airline liable for damages sustained if a passenger is wounded, suffers any other personal injury or dies on board an aircraft.(159)

Article 17 covers "accidents" causing injury to passengers.(160) The term "accident" has been broadly interpreted and has been held to include torts committed by terrorists,(161) by fellow passengers(162) and during hijackings.(163) When applicable, the Convention preempts both local laws that conflict with its terms,(164) and the Death on the High Seas Act.(165) Under the terms of the Warsaw Convention, an action must be filed within two years "from the date of arrival [of the aircraft] at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped."(166)

The usefulness of the Warsaw Convention in air rage situations is limited. First, insofar as air rage is related to passenger misconduct, the injured party may not wish to proceed against the airline because such cases are typically limited to passengers suing an air carrier for negligence.(167) Furthermore, an individual may have difficulty proceeding against the airline since the intentional nature of most air rage misconduct may be considered an intervening cause, thereby precluding recovery against the airline for negligence.(168) In addition, damages under the Warsaw Convention are limited.(169)

b. The Death on the High Seas Act

The Death on the High Seas Act(170) "(DOHSA) was passed by the sixty-sixth Congress to give damages to widows of seamen who perished in international waters, when workman's compensation or other remedies were not available."(171) The Act allows recovery by the personal representative of a decedent whose death was "caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shore of any State ... or the Territories or dependencies of the United States."(172) DOHSA limits recovery to pecuniary losses and precludes recovery for pre-death pain and suffering under general maritime law.(173) Many suits involving air disasters fall under admiralty jurisdiction because of DOHSA.(174) Although DOHSA extends relief to wrongful deaths that occur on the high seas, it is not applicable in territorial waters of the state.(175)

DOHSA, at least as of the time of this writing, is of limited usefulness in air rage cases because it is premised upon the death of the plaintiff. To date, there are no reported cases of death caused to passengers or crew by an aggressive passenger.

c. The Jones Act

The Jones Act(176) provides a remedy to seamen for injuries arising out of employment.(177) Liability is premised on negligence and damages are limited to pecuniary losses.(178) "Punitive damages are not recoverable."(179)

The Jones Act is also of little use in air rage cases because the statute is intended to redress injuries of seamen caused by their employers' negligence.(180) If Ms. Olson does not wish to pursue a claim against her employer, the airline, any analogy to the Jones act is inappropriate.(181)

d. Workers' Compensation

Although most existing statutory or treaty remedies are inadequate to redress the loss suffered by a victim of air rage, state workers' compensation systems may provide some relief for an individual such as Ms. Olson. However, the shortcomings of workers' compensation to redress serious, long-term injury are well known.(182) In general, the amount of an individual claimant's benefits is scheduled, compensation for non-pecuniary damages is excluded, and there is no provision for recovery of punitive damages.(183)

IV. THE CHOICE OF LAW ISSUE--TWO SCENARIOS

In the Hench case, the incident of tortious air rage took place while the aircraft was flying over international waters,(184) but it could very well have occurred during a transcontinental flight. In either case, the choice of law analysis would be identical.

For example, Kentucky law may apply in the Hench case because the aircraft departed from that state.(185) Likewise, Ohio law may apply because the victim was domiciled there at the time of the incident.(186) However, Pennsylvania law may apply because the tortfeasor was domiciled in that state.(187) The law of Germany, the country of destination, may have its law apply,(188) or, perhaps the law of Newfoundland, with whom the aircraft was in communication.(189) Federal law may be deemed applicable because of the extensive regulation of the airline industry by federal statute.(190)

If, hypothetically, the aircraft had been in transcontinental flight from Boston to Los Angeles, and the tort occurred while the aircraft was in flight over Nebraska, the same issue would arise: the law of which state would apply in a tort suit brought by the flight attendant against the passenger? As with the facts in Hench, the domicile of each party may affect this result.(191) Likewise, the law of the state of departure, destination, or location of the tortious act may apply.(192) Again federal law may apply because of governmental regulation of air travel.(193)

Resolution of what law will apply in the Hench case and in the above transcontinental hypothetical will be achieved through two different methods of analysis. The remainder of this article will explain why, in the former, reference to federal and international maritime law will determine the answer.(194)

A. Relevance of State Choice of Law Methodologies

In the transcontinental flight hypothetical above, the selection of the applicable law would be determined by the choice of law rules of the forum in which the tort suit is filed.(195) Each state applies the choice of law methodology it has adopted to resolve conflicts of laws.(196) Some states have retained traditional choice of law rules while others have adopted modern approaches to choice of law.(197)

The purpose of the transcontinental hypothetical is to demonstrate that choice of law methodologies, even between states, makes difficult a prediction which state's law would be applied in an air rage case involving an intentional tort.(198) This discussion is not intended to resolve the choice of law issue posed by the hypothetical, but to illuminate some of the considerations that would be taken into account in choosing law. Further, the following does not pretend to instruct the reader on the various choice of law methodologies--such a project is beyond the scope of this article, and, perhaps of the reader's patience. This said, it is instructive to consider how state courts would handle the hypothetical posed in this section.

1. Traditional Choice of Law Rules

The territorial emphasis of traditional choice of law rules makes the place where an event occurs significant.(199) In general, the term lex loci delictus describes the traditional view that a court should look to the substantive law of the place of the injury or the place where the wrong occurred to determine which law to apply.(200) "In the absence of any established body of federal choice of law rules, courts have looked to.... a choice of law rule ... [that] creates a presumption in favor of law of the location where the injury occurred."(201)

With respect to tort cases, the First Restatement of Conflict of Laws instructs, "[t]he place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place."(202) Under the "First Restatement, most jurisdictions [hold] that a cause of action arises in the jurisdiction where the last act to give rise to liability occurred."(203) The rationale for this rule is simply that a sovereign state has singular authority to determine the legal consequences of events that take place within its boundaries.(204)

Locating the jurisdiction where the last act giving rise to liability occurred may differ depending whether the claim sounds in negligence or intentional tort.(205) In negligence cases, it is clear where the purpose is to compensate for losses caused by the failure of another to exercise due care the defendant does not incur liability until an injury occurs.(206) Injury is an element of the prima facie case of negligence.(207) Therefore, regardless of when and where a defendant breaches his duty of care toward a plaintiff, there is no cause of action for negligence until the plaintiff sustains an injury.(208)

The purpose of intentional tort law is to regulate conduct that has the potential to be socially disruptive.(209) A defendant accused of an intentional tort can be held liable for nominal damages even in the absence of injury to the plaintiff because the tort seeks to sanction behavior in order to maintain peace and discourage retaliatory conduct by the plaintiff.(210) In a conflict of laws case involving an intentional tort, the traditional choice of law rule sometimes requires application of the law of the place where the intentional misconduct occurred.(211)

In the hypothetical, an intentional tort was committed and injury was suffered during a transcontinental flight while the aircraft was in the air space over Nebraska.(212) If the suit were fried in a state that has retained traditional choice of law rules, the court would apply the intentional tort law of Nebraska.(213) However, a conclusion based on the First Restatement is confounded by the fact that the First Restatement does not address choice of law issues involving torts taking place in an aircraft. In 1934, the issue could hardly have arisen with enough regularity to generate a body of law upon which a restatement rule could rest.

This reality begs the question: what validity does the First Restatement and its traditional method of analysis have in the context of intentional torts committed on-board an aircraft? While the First Restatement does not address torts committed on-board aircraft, it does address maritime torts.(214)

The authority of a sovereign state to define and sanction civil wrongs extends into its territorial waters.(215) The First Restatement directs that "liability for an alleged tort committed on board a vessel while the vessel is in the [state's] territorial waters ... is determined ... by the law of that state."(216) This is true even though for jurisdictional purposes, "a state has jurisdiction over all vessels flying its flag."(217) The authority of a flag state is inferior to the authority of the state whose territorial waters the vessel enters.(218) This is consistent with general choice of laws principle for tort law.(219)

State sovereignty does not extend beyond its territorial waters.(220) Consequently, when a tort occurs on board a vessel on the high seas,(221) liability "is determined by the law of the state whose flag the vessel flies."(222) This principle applies not only to on-board torts, but also to negligence in the navigation of a vessel.(223) The leveling of sovereign interest that occurs on the high seas is demonstrated by the First Restatement rule for choice of law when vessels collide on the high seas.(224) If the laws of the states whose flags the vessels fly are the same, then the common law of those states applies.(225) However, if the laws of the states whose flags the vessels fly are different, a default rule is created.(226) In such situations, the law of the forum in which suit is brought will determine the law to be applied.(227)

As society became more mobile, the traditional choice of law rules fell out of favor because they were believed to yield unfair and harsh results.(228) As a result, the traditional rules were replaced by more modern alternative approaches to choice of law issues such as the interest analysis.(229)

2. Interest Analysis

As traditional rules fell into disfavor more modern approaches to choice of law issues evolved.(230) The development of interest analysis as a methodology for resolving of choice of law problems revolutionized conflict of laws jurisprudence.(231) Instead of resolving choice of law questions by reference to traditional rules that had come to be viewed as arbitrary and unjust, interest analysis attempts to determine which of the competing states has an interest in having its law applied.(232) It analyzes the problem by taking into account the contacts, laws and policies of each possibly interested state.(233) "[I]nterest analysts measure a law's applicability ... by asking whether the case at hand is one the law is designed to govern. If so, the sovereign which created that law may be said to be `interested' in having it applied."(234) If the purpose of conflict of laws is to provide "functionally sound and fair solutions," the preferred solution should focus on meeting these goals.(235) Interest analysis appears to provide a means to meet the goals of fairness because it

   simplifies the choice of law process by focusing on what the courts
   consider to be the most rational considerations in making choice of law
   decisions: the policies reflected in a state's rule of substantive law, and
   a state's interest in applying its law in order to implement those policies
   in a particular case.(236)

Interest analysis, while not immune from criticism, has become a widely preferred methodology.(237)

   For all the theoretical criticisms of interest analysis as a basic approach
   to choice of law, it cannot be denied that in the real world it is interest
   analysis that has been applied by the courts and that, in practice, the
   courts have generally reached functionally sound and fair results in the
   cases coming before them for decision.(238)

In the transcontinental flight hypothetical, if the suit were filed in a state that has adopted interest analysis, the court would first determine which states possibly had an interest in having their tort law applied.(239) The court would consider the contacts, laws, and policies of each state and determine whether each state was interested in the outcome of the case; i.e.: whether application of that state's law would advance its policies.(240) If only one state is interested in seeing its policies advanced, a court is likely to apply the law of the interested state.(241) If more than one state is interested, the court will engage in further analysis to resolve the true conflict between the states.(242)

It is important to note the degree to which interest analysis turns on relatively soft analytical conclusions.(243) Insofar as the court must identify policies underlying conflicting laws and evaluate whether the policies would be promoted or thwarted by the application of that state's law in the particular case, predictability is sacrificed in favor of flexibility.

3. Restatement (Second) of Conflict of Laws

The Restatement (Second) of Conflict of Laws developed a method for determining the appropriate choice of law that accounts for specific jurisdiction-selecting rules, general principles governing distinct fields of law, and general principles governing choice of law.(244) The Second Restatement's place of the "most significant relationship" test attempts to combine the certainty of black letter rules with the positive qualities of other choice of law methodologies, including interest analysis.(245)

According to the Second Restatement, the local law of the state with the most significant relationship to the occurrence and the parties should be applied in tort cases.(246) [sections] 146 of the Second Restatement sets forth the following rule for actions involving personal injury:

   [T]he local law of the state where the injury occurred determines the
   rights and Labilities of the parties, unless, with respect to the
   particular issue, some other state has a more significant relationship
   under the principles stated in [sections] 6 to the occurrence and the
   parties, in which event the local law of the other state will be
   applied.(247)

Comments to this section sustain the different treatment of intentional torts and negligent torts that existed under the traditional rules.(248) Where the purpose of the cause of action is to "punish the tortfeasor and thus to deter others from following his example, there is better reason to say the state where the conduct occurred is the state of dominant interest and that its local law should control."(249)

Thus, in the hypothetical posed in this section of the article,(250) it seems likely that a court that has adopted the Second Restatement would apply the law of the place where the conduct occurred (Nebraska), unless some other state had a more significant relationship to the occurrence and parties.(251) Whether some other state would have a more significant relationship would be determined by the general principles governing tort law and choice of law set out respectively in sections 145(252) and 6(253) of the Second Restatement.

While a forum state might find that section 146 requires the choice of the law of Nebraska in our transcontinental hypothetical, it is entirely possible that the forum might find another state to have a more significant relationship to the parties and occurrence. Perhaps the state of domicile of one of the parties has such a significant relationship, or, perhaps the state in which the airline does business and from which the aircraft departed has a more significant relationship. Again, the point is, knowing the choice of laws methodology of the state in which a claim is filed does not equate to knowing which state's law will be selected to apply.

B. Unsatisfactory Resolution Using State Choice of Law Rules

In the United States today, choosing which state's law to apply when there are conflicting laws among the states can be a complex task.(254) The outcome depends upon where the case is filed, because the forum court will usually apply its own choice of law rules to decide which law will be applied to the case before it.(255) Assuming it is clear where the conduct took place, if the forum follows the traditional choice of law rules, the law of the place where the wrongful conduct occurred will be applied.(256) If the forum has adopted interest analysis, the law chosen will depend on which of the several states, consistent with local rules or forum preferences, is determined to have an interest in having its law applied.(257) If the forum has adopted the Second Restatement, then the court will apply the law of the place of the misconduct, unless another state has a more significant relationship to the parties and occurrences.(258)

It can be difficult to predict what the result will be, even in a "simple" case involving tortious conduct occurring during a transcontinental air flight, because it is not entirely clear whether federal law or state law will apply.(259) For example, imagine an air crash caused by negligence that involves facts that create some contact or relationship with federal law and the law of several states. The first choice of law inquiry the forum court (the court where the suit is filed) must make is whether federal law or state law will apply.(260) This decision will be made according to the standards of the forum's choice of law rules and federal statutory and constitutional law.(261) Suppose in this hypothetical that state law rather than federal law is chosen. The forum must then decide which state's law will apply--the law of the forum or that of another state. Again, this decision will be made according to forum choice of law rules. Because the choice of law rules vary from state to state, the decision of which state's law will apply will be influenced by the content of the forum choice of law rules. If the suit is filed in a state that applies traditional choice of law rules, "It]he place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place."(262) If instead, the suit is filed in a state that applies interest analysis, the court will analyze the relative interests of the possibly interested states.(263) If the suit is filed in a state that applies the Second Restatement, the court will determine which state had the most significant relationship to the parties and occurrences.(264) The result under the traditional rules, interest analysis and the Second Restatement may be different. This creates lack of predictability and makes achievement of the goal of uniformity of results unlikely.

C. Additional Complexities--the Law of Foreign Nations

As discussed, choosing among conflicting states' laws can be complex.(265) In cases where the law of a foreign nation might apply, an additional layer is added to the choice of law analysis, further jeopardizing the possibility of predictability and uniformity of results.(266) Imagine an air crash negligence case involving facts that create some contact or relationship with the law of a foreign nation as well as the United States. Imagine, for example, the crash took place in the territorial waters of Germany. Some of the people who are killed are from Germany and others are from various states within the United States. The sequence of the choice of law inquiry is expanded.

The first inquiry now is whether the law of Germany or of the United States will apply. The response to this inquiry depends first on whether the suit is filed in a United States or German court, because both countries will apply their own choice of law rules.(267) All subsequent choice of law inquiries will be guided by the forum's choice of law rules.(268) Imagine one plaintiff files a claim in a German court and the forum's choice of law rules require application of the laws of that nation, rather than U.S. federal or state law, to apply. Imagine another plaintiff files a claim in the court of a state whose choice of law rules result in the choice of U.S. law and the choice of law of the state where the ticket was sold. A third plaintiff files a claim in the court of a state whose choice of laws rules apply the law of the place where the negligent act occurred. It is possible that three different laws will be applied, which could result in different standards of liability,(269) the availability of different defenses,(270) and different measures of damages.(271)

The point is--if the goals of choice of law are that liability should be imposed predictably and compensation awarded uniformly--they cannot be achieved with the current choice of law practices. The next section argues that in cases involving airflight over international water, a better alternative is the application of maritime law.

V. ADMIRALITY JURISDICTION AND MARITIME LAW

In the Hench case, the tortious misconduct occurred while the aircraft was over international waters.(272) "Under generally accepted principles of international law, the navigable sea is divided into three zones: inland waters; territorial waters extending seaward from a defined coastal baseline; and the high seas, being international waters beyond the limit of the territorial sea."(273)

In general, the high seas are regarded as outside the judicial authority of any nation.(274) "The doctrine of the high seas holds that these areas are open to all states, and no state may validly subject any part of them to its sovereignty."(275) However, this does not necessarily mean that the high seas are lawless, for the rule is modified in certain situations. For example, under international law, any nation may take universal jurisdiction when a "heinous crime" is committed.(276)

In maritime law, the law of the flag governs a tort occurring aboard a ship in international waters.(277) The nation whose flag is flown may provide statutory, administrative, or common law remedies for those injured by the tortious misconduct of others on board.(278) Thus, maritime law of the United States governs a tort occurring on board a vessel that is the property of the United States.(279) Specifically, it is governed by federal maritime law, which is composed of both common and statutory law.(280)

In the Hench case, Delta Air Lines is incorporated in the United States.(281) Therefore if this article were about "sea rage" rather than "air rage", there would be little doubt that American admiralty jurisdiction would attach and that maritime law would apply.(282) However, the Hench case involves an international tort occurring in an aircraft in flight over international waters. The question whether maritime law should apply in such a case will occupy the remaining sections of the article. We conclude that admiralty jurisdiction and maritime law do apply.

A. Admiralty Jurisdiction--in General

The United States Constitution states: "The judicial Power shall extend... to all Cases of admiralty and maritime Jurisdiction."(283) This provision has been interpreted to allow the federal courts to develop maritime law within Constitutional limits.(284) From earliest times, federal judges have given it "an expansive reading in recognition of the need for uniformity in the law relating to maritime commerce."(285) The importance of this goal of uniformity should not be underestimated.(286)

The grant of admiralty jurisdiction to the federal courts is codified at 28 U.S.C. [sections] 1333 which states "It]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."(287)

Prior to the adoption in 1966 of the Federal Rules of Civil Procedure, admiralty proceedings were governed by distinct procedural rules.(288) The Federal Rules merged law, equity, and admiralty under a single set of rules, though some special rules still apply to admiralty cases. For example, the Supplemental Rules for Certain Admiralty and Maritime Claims are applicable.(289) Also, Rule 9(h) of the Federal Rules of Civil Procedure states:

   A pleading or count setting forth a claim for relief within the admiralty
   and maritime jurisdiction that is also within the jurisdiction of the
   district court on some other ground may contain a statement identifying the
   claim as an admiralty or maritime claim.... If the claim is cognizable only
   in admiralty, it is an admiralty or maritime claim ... whether so
   identified or not.(290)

The attachment of admiralty jurisdiction to a claim has important consequences. For example, a maritime claim "may be the basis of a maritime lien, a special security interest recognized only in admiralty,"(291) because personal jurisdiction in such claims can be in personam or in rem, or both.(292) Maritime liens are subject to special in rem proceedings that act to quickly seize maritime property.(293) Because personal jurisdiction can be in personam, in rem, or both, it is more likely that a claim based on a maritime lien will be satisfied.(294) Furthermore, a judge generally tries admiralty cases instead of a jury.(295)

As indicated, the application of uniform laws and remedies in cases involving activity on navigable waters is justification for placing admiralty jurisdiction in federal courts. To date, admiralty jurisdiction attaches only when the activity occurs on the high seas or on navigable waters.(296) Although the jurisdictional definition may seem clear, the determination of what constitutes navigable waters has occupied courts and commentators for many years.(297)

B. Maritime Law--in General

1. Application of Federal Maritime Law in Admiralty Cases

The attachment of admiralty jurisdiction usually triggers the application of federal maritime law.(298) "Subjecting a claim to maritime jurisdiction means not only that a federal court can hear the case, it also means that substantive maritime law will apply to the claim."(299) The history and evolution of maritime law is distinct from both common law and state law.(300) Federal courts have had a greater role in the development of maritime law than Congress, but the body of law encompassing maritime law is comprised of both judge-made federal common law and federal statutes.(301)

2. Application of State Law in Admiralty Cases

Although it plays a "diminished and secondary role," a court sitting in admiralty may apply state law.(302) The exact circumstances under which state law will be applied or the degree to which state law may supplement federal maritime law "is one of the most perplexing issues in the law."(303) Professor Schoenbaum has suggested there are "pervasive theme[s]" in Supreme Court cases deciding the propriety of the application of state law in maritime cases.(304) One theme is the need for uniformity in maritime matters.(305) Because admiralty jurisdiction often involves movement of people and property between several states or nations, it is necessary to know the legal standard to which they are being held if a maritime accident occurs.(306)

Another theme identified by Professor Schoenbaum is the recognition that "maritime law is not a complete legal system; ... there are numerous gaps that must be filled either by the federal judiciary, in making up new rules of law, or by the application of state law."(307) State and federal interests will be balanced to determine whether state law will be applied where such a gap exists.(308) If a federal court determines such a gap exists and state law would appropriately be applied to fill the gap, state law can be applied in one of two ways. First, a federal court may borrow state law and incorporate it into maritime law, thus expanding the body of substantive maritime law.(309) "In this borrowing process the federal courts refer [sic] to borrow the general common law rather than the law of any particular state because this promotes uniformity in the general maritime law."(310) Alternatively, a federal court may "recognize the application of state law as such and even the decisional or statutory law of a particular state on three conditions: (1) where there is no applicable admiralty rule; (2) where local and state interests predominate; and (3) where the uniformity principle is not crucial."(311)

It is more likely state law will be applied where maritime law is incomplete "and the state law or rule supplements but does not contradict the admiralty rule."(312)

3. Choice of Law in Admiralty Cases

The possible application of state law in a maritime claim filed before a federal court sitting in admiralty, as discussed above, should not be confused with federal maritime choice of law.(313) It is critical to note that when a federal court sitting in admiralty applies state law, it applies state law for discrete reasons.(314) It does not apply state law because federal choices of law rules require the choice of state law rather than federal law. A federal court sitting in admiralty applies state law because, in a sense, federal maritime law often includes or refers to state law for one of the stated reasons.(315) In other words, state law is not "chosen" over federal maritime law under some choice of law methodology.

This is not to say federal courts sitting in admiralty can never be presented with choice of law issues. However, choice of law in a maritime environment addresses the question of whether federal maritime law should be applied (which includes the possibility that state law will be applied as a supplement to existing federal maritime law) or whether the law of another sovereign nation should be applied.(316) In such cases, federal courts will employ a choice of laws methodology similar to the Restatement (Second) of Conflict of Laws, most significant relationship test.(317) Establishing a significant relationship under general maritime choice of law includes considering: 1) the place of the wrongful act; 2) the law of the flag flown on the ship; 3) the allegiance of the defendant shipowner; 4) the place of the contract; 5) the inaccessibility of a foreign forum; 6) the law of the forum; and 7) the base of operations of the defendant.(318) The law of the flag is the most important factor; the least important is the inaccessibility and law of the forum.(319)

For example, in Chan v. Society Expeditions, Inc.,(320) plaintiffs booked passage on the cruise ship WORLD DISCOVERER through Society Expeditions, a Washington corporation.(321) WORLD DISCOVERER was owned by a Liberian company, and operated by a German company.(322) Plaintiffs were seriously injured when the inflatable raft they were being transported in capsized as they were being ferried from the cruise ship to French Polynesia.(323) The court considered many issues including: (a) whether U.S. maritime law should apply when the passenger ticket "specified that the `[t]icket and all other rights and duties of Passengers and of Society will be construed in accordance with the general maritime law of the United States;'"(324) (b) whether Liberian law should apply because WORLD DISCOVERER was flagged in Liberia;(325) and (c) whether the law of Liberia should apply because of another specification on the passenger ticket that "`nothing in this Ticket is intended to ... deprive Society of any ... exoneration from liability, or of the benefits of any statute or law of any country which might be applicable providing for exoneration from or limitation of liability.'"(326) Liberian law was favorable to the defendant because Liberia ratified the Athens Convention, which places a cap of $70,000 on personal injuries sustained by passengers.(327) The court held that federal common law generally follows the approach of the Restatement (Second) of Conflicts of Laws, which in general will enforce a valid contractual choice of law clause.(328) In this case, federal common law analysis was required to resolve the question of whether U.S. maritime or Liberian law applied.(329) The court applied federal common law principles to conclude that United States law was applicable, stating that "[f]ederal common law applies to choice of law determinations in cases based on federal question jurisdiction, such as admiralty."(330)

Similarly, in Jones v. Vessel Nair,(331) federal choice of law principles were used to determine whether United States maritime statutory and/or case law, or Mexican law, would be applied in a case brought by a seaman injured aboard a tuna vessel.(332) Applying the standards of Lauritzen v. Larsen and subsequent cases,(333) the court held the action should be "governed by the laws of Mexico."(334) This decision was based on the court's findings that the vessel flew the Mexican flag, was owned by a Mexican corporation, had Mexican stockholders, and the plaintiff's employment contract was signed in Panama.(335) The Jones court applied the law of Mexico even though the plaintiff was a United States citizen.(336)

Matzos v. Trans World Airlines, Inc.(337) involved an aircraft that crashed in Italy causing serious bodily injury and death to many of its passengers.(338) The court held Italian law did not necessarily govern in an action for damages against the airline company and airline manufacturer.(339) The court noted the greatest interests to be served were those of the states containing people or estates which would receive recovery for their injuries or for their decedents' deaths.(340)

4. The Saving Clause of 28 U.S.C. [sections] 1333(341)

Issues surrounding the saving clause of 28 U.S.C. [sections] 1333 should also be distinguished from the issue whether state law will be applied in a claim filed before a federal court sitting in admiralty. The savings clause has been interpreted to mean that plaintiffs proceeding in personam "may elect either to proceed in admiralty or to bring an ordinary civil action, either at law in state court or in a federal district court under federal diversity jurisdiction (or some other basis of federal jurisdiction)."(342) Cases filed in state court under the admiralty saving clause "cannot be removed unless admiralty jurisdiction is exclusive."(343) This federal statute is concerned with the jurisdiction of the courts, not with the application of law in a particular case.(344)

5. Exercise of Admiralty Jurisdiction for Conduct Occurring on the High Seas

A related matter is the extent of a sovereign's power to impose its jurisdiction on ships and events on the high seas.(345)

The high seas are "all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. The legal concept of the high seas also extends to the superjacent air space."(346)

No nation has power to assert sovereign authority over international waters.(347) However, a nation does have sovereign authority to impose its laws over its own vessels flying its flag and over its own citizens when the rights of no other sovereign are involved.(348) The Law of the Sea Convention governs many aspects of the law of the high seas and it provides that "[j]urisdiction over ships on the high seas is relegated to the flag state."(349)

Under general maritime law, violations of United States law that take place in international waters place the matter "within the special maritime and territorial jurisdiction of the United States ... since the offenses occurred on a vessel of United States ownership and registry."(350) This "`special maritime and territorial jurisdiction of the United States'" includes:

   Any aircraft belonging in whole or in part to the United States, or any
   citizen thereof, or to any corporation created by or under the laws of the
   United States, or any State, Territory, district, or possession thereof,
   while such aircraft is in flight over the high seas, or over any other
   waters within the admiralty and maritime jurisdiction of the United States
   and out of the jurisdiction of any particular State.(351)

When a man used diving equipment to gather commercial sponges on the high seas outside the territorial waters of Florida in violation of a Florida state statute, the issue was whether Florida law could control conduct on the high seas.(352) The Court held "the United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed."(353) The Court further held that if the United States can govern the conduct of its citizens upon the high seas, so can an individual state.(354)

In another Florida case, the United States Coast Guard boarded a sailing vessel in international waters for a safety check and found marijuana.(355) The court found that "[s]ince no nation may exercise sovereignty over the waters of the high seas"(356) treaty obligations assume special prominence.(357)

   [T]he maintenance of public order on the world's oceans depends upon
   effective control in accordance with their treaty obligations by the
   nations of the world over vessels flying their flag. Throughout history,
   governments have had a direct and special interest in the conduct and
   operation of their citizen's vessels and the immunity of such vessels on
   the high seas from interference by foreign governments. One method of
   ensuring that foreign governments do not interfere with the exercise of
   traditional freedoms of the seas [enjoyed] by United States vessels [is to]
   require[] the United States to exercise effective control over them as
   required by international law.(358)

VI. MARITIME TORTS

United States maritime law recognizes most categories of common law torts including intentional torts, negligence, strict products liability, and some economic torts.(359) Prior to 1865, a court sitting in admiralty would hear a claim sounding in tort as long as the tort occurred on navigable waters.(360) Location alone made the tort a maritime tort, or, as if often said, created admiralty tort jurisdiction,(361) even if the occurrence had no relationship to navigation or maritime commerce: "Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance."(362)

Over time, this broad standard resulted in inappropriate cases being presented to the admiralty courts.(363) In a series of decisions, the United States Supreme Court has modified the standard in order to narrow the definition of what constitutes a maritime tort.(364) The following sections will discuss those pivotal cases.

A. Executive Jet Aviation, Inc. v. City of Cleveland(365)

1. Facts

In July of 1972, a Falcon Mystere jet aircraft was scheduled to leave Cleveland, Ohio, stop in Portland, Maine and land in White Plains, New York, a route that would be almost entirely over land.(366) As the aircraft was taking off from the Cleveland municipal airport, a flock of sea gulls that had been on the end of the runway rose into the air just ahead of the jet.(367) As the aircraft was ascending, sea gulls were ingested into the engines causing "an almost total loss of power."(368) The aircraft, in a semi-stalled condition, struck both an airport perimeter fence and a truck before landing near the end of the runway, about "one-fifth of a statute mile offshore."(369) While there were no injuries to the flight crew, the aircraft sank in Lake Erie and was a total loss.(370) The owners of the aircraft brought an action in negligence(371) against the city of Cleveland (which owned and operated the airport), the airport manager, and the federal air traffic controller.(372) The action was filed in the United States District Court for the Northern District of Ohio, where Executive Jet claimed admiralty jurisdiction under 28 U.S.C. [sections] 1333(1).(373)

2. United States District Court for the Northern District of Ohio

In an unreported opinion, the district court dismissed the complaint for lack of subject matter jurisdiction because it found admiralty jurisdiction did not exist.(374) Relying on Chapman v. City of Grosse Pointe Farms,(375) the court held that in order to invoke admiralty jurisdiction over a tort, a two-part test was required: "(1) the locality where the alleged tortious wrong occurred must have been on navigable waters; and (2) there must have been a relationship between the wrong and some maritime service, navigation, or commerce on navigable waters."(376) The District Court found that neither criteria had been met in the Executive Jet case because the alleged wrong occurred while the jet was over land when the sea gulls were ingested into the engines and the wrong did not bear a relationship to "maritime service, navigation, or commerce."(377)

3. United States Court of Appeals for the Sixth Circuit

On appeal to the United States Court of Appeals for the Sixth Circuit, the sole issue was whether admiralty jurisdiction applied.(378) The Sixth Circuit held it did not, and affirmed the district court's holding.(379) In analyzing this issue, the Sixth Circuit had to determine "whether the cause of action for the alleged tort arose on land or on navigable water."(380)

The Sixth Circuit found the proper standard by which to make this determination in three previously decided United States Supreme Court cases.(381) In the first case, The Admiral Peoples,(382) a passenger had fallen off the ship's gangplank onto the wharf as a result of the ship owner's negligence.(383) She claimed this constituted a maritime tort.(384) The United States Supreme Court agreed that the passenger's cause of action arose on navigable water.(385)

   By reason of that neglect, as the libel alleges, she fell from the plank
   and was violently thrown forward upon the dock. Neither the short distance
   that she fell nor the fact that she fell on the dock and not in the water,
   alters the nature of the cause of action which arose from the breach of
   duty owing to her while she was still on the ship and using its facility
   for disembarking.(386)

In the second case, Minnie v. Port Huron Terminal Co.,(387) a longshoreman was injured while aboard a vessel that was docked in navigable water waiting to be unloaded.(388) The Supreme Court held

   the injury was due to the blow which petitioner received from the swinging
   crane. It was that blow received on the vessel in navigable water which
   gave rise to the cause of action, and the maritime character of that cause
   of action is not altered by the fact that the petitioner was thrown from
   the vessel to the land.(389)

Because the longshoreman was struck while he was on the vessel, the claim was maritime in nature.(390) However, had the longshoreman been struck while he was on the dock, the claim would not have been maritime in character because of the third case upon which the Sixth Circuit relied, T. Smith & Son, Inc. v. Taylor.(391) In that case, the United States Supreme Court held the claim of a longshoreman who was struck and killed while standing on a stage that rested on the wharf and extended over the water was not maritime in character because the blow that was the "sole, immediate and proximate cause of his death," arose on the land.(392)

Applying The Admiral Peoples, Minnie, and Smith & Son to the case before it, the Sixth Circuit stated:

   In the present case the aircraft was precipitated into Lake Erie by the
   allegedly negligent acts of the appellees on land. The aircraft collided
   with the sea gulls and began to fall while over land. The fence and the
   truck were struck on land. Under the authorities cited above [The Admiral
   Peoples, Smith & Son, and Minnie] it is of no consequence that the major
   amount of damage occurred after the aircraft sank in navigable water. The
   alleged negligence of appellees "was given and took effect" on land.(393)

Because it held the tort in Executive Jet "arose on land and not on navigable water,"(394) the Sixth Circuit found it unnecessary to address the second prong of the two-part test delineated by the district court and affirmed the district court's dismissal of the case for lack of subject matter jurisdiction.(395) The Supreme Court granted certiorari.(396)

4. The United States Supreme Court

The United States Supreme Court's opinion in Executive Jet can be broken down for analysis into three sections: a) the traditional view of admiralty jurisdiction and application of maritime law; b) problems with the traditional strict locality test for maritime torts; and c) a new two-part test for admiralty tort jurisdiction and application of maritime law in aviation torts.(397) These three areas will be analyzed in turn.

a. The Traditional Locality Test

Under the traditional view, establishing admiralty jurisdiction for a tort depended upon the "locality of the wrong."(398) If the wrong occurred on navigable waters admiralty jurisdiction existed but, if the wrong occurred on land, admiralty jurisdiction did not exist.(399) A tort occurring on navigable waters was defined as early as 1866 to include those

   wholly upon the high seas or navigable waters, or, at least, the substance
   and consummation of the same must have taken place upon these waters to be
   within the admiralty jurisdiction.

   ....

   ... The jurisdiction of the admiralty over maritime torts does not depend
   upon the wrong having been committed on board the vessel, but upon its
   having been committed upon the high seas or other navigable waters....

   ... Every species of tort, however occurring, and whether on board a vessel
   or not, if upon the high seas or navigable waters, is of admiralty
   cognizance.(400)

This traditional view focused on the location of the tort and worked effectively in "connection with a waterborne vessel."(401) However, the test created problems and ultimately burdened the federal courts with "perverse and casuistic borderline situations."(402)

b. Problems with the Traditional Locality Test

The Supreme Court found the strict locality test, which had been relied upon by the Sixth Circuit, created problems in cases such as Smith & Son v. Taylor and Minnie v. Port Huron Terminal Co.(403) In addition, the Court discussed the "injured swimmer" cases that conferred admiralty jurisdiction for injuries at a public beach when a swimmer was injured by another swimmer or by something submerged in the water.(404) The Court found these cases imposed a burden on the federal courts when such activities did not involve a "relationship between the tort and traditional maritime activities, involving navigation or commerce on navigable waters."(405)

c. A Two-Part Test for Admiralty Jurisdiction in Aviation Torts

The Supreme Court began laying the foundation for a more restrictive two-part test for invoking admiralty jurisdiction in aviation torts by reviewing the history of admiralty tort jurisdiction.(406)

The first major extension of admiralty law to aviation cases came via the Death on the High Seas Act (DOHSA).(407) DOHSA established admiralty jurisdiction and permitted an action by the decedent's personal representative for a death that was "caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States."(408) The first aviation case brought under DOHSA established that DOHSA's jurisdiction reaches "beyond a marine league from the shore of any State" including the vertical dimension of airspace.(409)

Special problems arose, however, when the locality requirement alone established admiralty jurisdiction in aircraft cases because aircraft operate in a different dimension than waterborne vessels.(410) "Airplanes, unlike waterborne vessels, are not limited by physical boundaries and can and do operate over both land and navigable bodies of water" which can create difficulties when trying to determine exactly where the wrong occurred.(411) Therefore, the Court held that a two-part test was required to establish admiralty jurisdiction for an aviation tort.

   [W]e conclude that the mere fact that the alleged wrong "occurs" or "is
   located" on or over navigable waters--whatever that means in an aviation
   context--is not of itself sufficient to turn an airplane negligence case
   into a "maritime tort." It is far more consistent with the history and
   purpose of admiralty to require also that the wrong bear a significant
   relationship to traditional maritime activity. We hold that unless such a
   relationship exists, claims arising from airplane accidents are not
   cognizable in admiralty in the absence of legislation to the contrary.(412)

d. Holding

The Supreme Court applied the two-part test and found the Executive Jet flight was land-based; it would have flown almost entirely over land from Cleveland to Portland to White Plains and thus did not involve a relationship to "traditional maritime activity."(413) The decision of the district court and court of appeals was affirmed: admiralty jurisdiction was not imposed, there was no maritime tort, and the case was dismissed for lack of subject matter jurisdiction.(414)

After Executive Jet, questions arose whether the new two-pronged test applied only in cases involving aircraft.(415) There also was doubt about the meaning of the second prong of the test which required a showing of a significant relationship to maritime activity.(416) The Supreme Court addressed these questions in the following case.

B. Foremost Insurance Co. v. Richardson(417)

Foremost Insurance Co. v. Richardson, expanded and applied Executive Jet to non-aviation contexts.(418) In Foremost, two pleasure boats collided on a navigable river in Louisiana.(419) The United States Supreme Court held this accident fell into the category of a maritime tort, although neither of the two crafts had "even in the broadest admiralty sense" been involved in any type of commercial maritime activity.(420) The Court recognized that under Executive Jet the wrong must bear a significant connection with traditional maritime activity, but stated "there is no requirement that `the maritime activity be an exclusively commercial one.'"(421)

While recognizing that admiralty jurisdiction is primarily focused on protecting the activity of maritime commerce, the Court gave three reasons for its decision to include the collision of the two pleasure boats in the admiralty jurisdiction of the federal court system.(422) First, the decision was intended to produce uniformity in conduct.(423) "The federal interest in protecting maritime commerce cannot be adequately served if admiralty jurisdiction is restricted to those individuals actually engaged in commercial maritime activity. This interest can be fully vindicated only if all operators of vessels on navigable waters are subject to uniform rules of conduct."(424)

Second, the Court recognized the potential impact and disruption that can occur on navigable waters when two pleasure boats collide.(425) Traditional maritime interests include maintaining safe, non-obstructed waterways so that watercraft engaged in maritime commerce may navigate without the obstruction of hazards caused by non-maritime craft.(426)

Finally, the Court found its interpretation to be consistent with congressional intent in the area of maritime law.(427) For example, Congress has defined the term vessel in shipping and maritime laws "to include all types of waterborne vessels, without regard to whether they engage in commercial activity."(428) Additionally, Congress has adopted federal "Rules of the Road" to prevent collisions on navigable waters that apply to both commercial and noncommercial vessels.(429)

Justice Powell wrote a strong dissent in Foremost which argued the majority misconstrued Executive Jet.(430) Commenting that pleasure boating is a fairly modern phenomenon and that this type of boating does not have a connection with historic federal maritime activity, Justice Powell would decline to burden the federal courts and frustrate the purposes of state tort law by extending admiralty jurisdiction to the collision of two pleasure boats on navigable waters.(431)

Federal circuit courts which applied Executive Jet apparently found the significant relationship or maritime nexus prong of the Executive Jet case to be unclear, and several developed their own tests to determine whether a significant relationship or maritime nexus existed.(432) The Supreme Court's first response to such tests came in Sisson v. Ruby(433) which has been called "a salutary development because it attempts to relate the decision to recognize admiralty jurisdiction to the policy basis for the existence of such jurisdiction, the necessity of uniform rules for the business of shipping and those engaged in maritime commerce."(434)

C. Sisson v. Ruby

When Everett Sisson's 56-foot pleasure yacht caught on fire while moored at a marina on Lake Michigan, he attempted to limit his liability for damage to the marina and other vessels by invoking admiralty jurisdiction and the "Limited Liability Act" which limits an owner's liability to the "value of the vessel and its freight" if the damage was done without "privity or knowledge of [the] owner.(435)

Relying on the expansion of Executive Jet to non-aviation cases,(436) the United States Supreme Court applied the two-part test from Foremost and determined the fire, although disruptive, was not the relevant activity on which to focus.(437) The "relevant `activity' [criteria] is defined not by the particular circumstances of the incident, but by the general conduct from which the incident arose."(438) In this case, "the relevant activity was the storage and maintenance of a vessel at a marina on navigable waters."(439)

The Court's analysis then turned to whether the activity of storage and maintenance of a vessel at a marina bears a significant relationship to traditional maritime activity.(440) The Court's premise for holding there was a significant relationship to traditional maritime activity in storage and maintenance of a vessel at a marina,(441) was the "need for uniform rules of maritime conduct and liability is not limited to navigation, but extends at least to any other activities traditionally undertaken by vessels, commercial or noncommercial."(442)

The parties and amici urged the Court to adopt one of the four-factor or seven-factor tests that had been developed by the federal circuit courts in Kelley v. Smith and Molett v. Penrod Drilling Co.,(443) after Executive Jet, to determine whether the event bore a significant relationship to traditional maritime activity.(444) The Court declined to do so. The Court stated "the formula initially suggested by Executive Jet and more fully refined in Foremost and in this case provides appropriate and sufficient guidance to the federal courts."(445) Thus, by implication, it rejected the circuit courts' multiple-factor nexus tests.(446)

However, Justice Scalia's concurrence still suggested an expanded three-part test that would allow a trial judge to quickly and easily determine whether admiralty jurisdiction exists.(447) Scalia believed, "a wrong which occurs (1) in navigable waters, (2) on a vessel, and (3) while that vessel is engaged in a traditional maritime activity, bears a significant relationship to a traditional maritime activity."(448)

The Supreme Court was presented with another opportunity to respond to the multi-part tests in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.

D. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.(449)

In Grubart, a crane sitting on a barge in the Chicago River was driving piles into' the riverbed above freight tunnels that ran under the river to basements of buildings in downtown Chicago.(450) It was alleged the City of Chicago had negligently failed to maintain the tunnels (which it owned), that Great Lakes had negligently removed and replaced pilings, and that as a result of such negligence, river water flooded into plaintiffs' buildings.(451) Flood victims filed suits in state court against Great Lakes and the city.(452)

Great Lakes then filed an action in United States District Court invoking admiralty jurisdiction and seeking the protection of the Limitation of Vessel Owner's Liability Act,(453) which would limit the potential liability of Great Lakes to the value of the barges and tug used in the project.(454) Great Lakes' federal complaint also sought indemnity and contribution from Chicago.(455)

The city and one of the original state court plaintiffs moved to dismiss the federal suit for lack of admiralty jurisdiction.(456) The district court granted the motion.(457) The United States Court of Appeals for the Seventh Circuit reversed.(458) The United States Supreme Court granted certiorari to decide the "simple" issue of whether admiralty jurisdiction attaches in this case.(459)

The Supreme Court's opinion began with a review of the constitutional and statutory sources of federal authority to decide cases in admiralty.(460) The Court noted that originally, all that was required to invoke admiralty tort jurisdiction was the occurrence of a tort on navigable waters.(461) This locality test was stringent: the tort injury had to be "wholly sustained on navigable waters," otherwise, the action was not within admiralty jurisdiction.(462)

The Court explained that the Extension of Admiralty Jurisdiction Act, enacted in 1948, granted admiralty jurisdiction in any case in which a ship or other vessel on navigable water caused injury, even if the injury occurred on land.(463) The Court further explained that, while the Extension of Admiralty Jurisdiction Act was meant to bring into admiralty the odd case in which a person on land was injured by a vessel on navigable water, Executive Jet, Foremost, and Sisson were intended to keep a different class of odd cases out of admiralty.(464) The Court reviewed each of the three cases, and, citing the Extension of Admiralty Jurisdiction Act and Sisson, Justice Souter set the standard for determining admiralty jurisdiction for maritime torts.(465)

The standard has two parts, each of which has two sub-parts.(466) First, the tort must have occurred on navigable water. This is a location test which is satisfied (a) if the tort and injury both occurred on navigable water, or (b) if the "injury was caused by a vessel on navigable water" and the injury was suffered on land.(467)

Justice Souter explained:

   After Sisson, ... a party seeking to invoke federal admiralty jurisdiction
   pursuant to 28 U.S.C. [sections] 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.(468)

Second, the tort must have maritime connection.(469) The tort has a maritime connection if (a) it had the potential to disrupt maritime commerce and (b) if its "general character" has a "substantial relationship to traditional maritime activity."(470)

The connection test raises two issues. "A court, first, must `assess the general features of the type of incident involved' ... Second, a court must determine whether `the general character' of the `activity giving rise to the incident' shows a `significant relationship to traditional maritime activity.'"(471)

Applying the first requirement, locality, to the Grubart case, the Court found that because the work on pilings was done from a barge stationed in the Chicago River, which is among the navigable waters of the United States, maritime locality was present.(472) Applying the second requirement, maritime connection, to Grubart, the Court first considered "whether the incident involved was of a sort with the potential to disrupt maritime commerce."(473) In Grubart, the Court reiterated the Sisson explanation that "this first prong went to potential effects, not to the `particular facts of the incident' [and that the focus was] not on the specific facts at hand but on whether the `general features' of the incident were `likely to disrupt commercial activity.'"(474) The Court further elaborated that this requires "a description of the incident at an intermediate level of possible generality ... [that] reject[s] ... extremes and instead ask[s] whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping."(475)

The Court found the general features of the case could be characterized as damage to an underwater structure caused by a vessel in navigable water.(476) This general kind of incident, the Court concluded, could potentially disrupt maritime commerce, thus satisfying the first part of the maritime connection test.(477)

The Court then addressed the second part of the maritime connection requirement, which considers:

   whether the general character of the activity giving rise to the incident
   shows a significant relationship to traditional maritime activity. 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 suit at hand.(478)

Applying this second part the Court found that this suit

   should be characterized as repair or maintenance work on a navigable
   waterway performed from a vessel. Described in this way, there is no
   question that the activity is substantially related to traditional maritime
   activity, for barges and similar vessels have traditionally been engaged in
   repair work similar to what Great Lakes contracted to perform here.(479)

In so finding, the Court rejected the urging of the City of Chicago that the plaintiff's losses might be proximately caused by Chicago's own negligent failure to maintain the tunnels, an activity that is not a traditional maritime activity, and one that would be outside traditional admiralty jurisdiction.(480) The Court said:

   [W]e need to look only to whether one of the arguably proximate causes of
   the incident originated in the maritime activity of a tortfeasor: 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.... The significant
   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.(481)

The Court emphasized that the object of Sisson was not to eliminate admiralty jurisdiction, but to help define its proper parameters.(482) The Court warned against turning Sisson "on its head, from a test to weed out torts without a maritime connection into an arbitrary exercise for eliminating jurisdiction over even vessel-related torts connected to traditional maritime commerce."(483)

Significantly, for the purposes of this Article, the Court continued along this line of thought, adding:

   This Court has not proposed any radical alteration of the traditional
   criteria for invoking admiralty jurisdiction in tort cases, but has simply
   followed the lead of the lower federal courts in rejecting a location rule
   so rigid as to extend admiralty to a case involving an airplane, not a
   vessel, engaged in an activity far removed from anything traditionally
   maritime.(484)

The Court also clarified its position on multi-part tests used in some federal circuits, even after Sisson, to determine whether the activity involved has a significant relationship to traditional maritime activity.(485) The Court recognized that in Sisson its disapproval of the four- and seven-factor tests appeared to be limited to cases "where all the relevant entities are engaged in similar types of activity," leaving open the possibility that the multi-factor tests might be approved where some of the relevant entities are on land.(486) However, in Grubart the Court expressly disapproved multi-part tests.(487) The Court pointed out that the multi-factor tests are intended to resolve the same issue the Supreme Court resolved in Sisson and Grubart.(488) Therefore, the multi-part tests are duplicative of the Supreme Court's standards, and confuse it.(489) The Court added that the worst thing about adopting a multi-part test would be the practical consequences it has on existing understanding of the legal standards governing admiralty jurisdiction.(490) The Court explained:

   Although the existing case law tempers the locality test with the added
   requirements looking to potential harm and traditional activity, it
   reflects customary practice in seeing jurisdiction as the norm when the
   tort originates with a vessel in navigable waters, and in treating
   departure from the locality principle as the exception. For better or
   worse, the case law has thus carved out the approximate shape of admiralty
   jurisdiction in a way that admiralty lawyers understand reasonably well. As
   against this approach, so familiar and relatively easy, the proposed four-
   or seven-factor test would be hard to apply, jettisoning relative
   predictability for the open-ended rough-and-tumble of factors, inviting
   complex argument in a trial court and a virtually inevitable appeal.(491)

The Court affirmed the Seventh Circuit's conclusion that admiralty jurisdiction was appropriate in this suit.(492)

VII. MARITIME REMEDIES

One of the key reasons that admiralty or maritime developed as a distinct branch of law was to protect seamen.(493) Thus, it is understandable that general maritime law seeks to fully compensate these workers within a broad spectrum of protection. "Persons who may claim the status of `seamen' under the law of admiralty have access to special rights and remedies not accorded other workers."(494) While many of these protections are provided via statutes,(495) there is a generous compensation scheme under general maritime law and through application of the collateral source rule.(496)

Under general maritime law the plaintiff can receive compensation for losses incurred as a result of the tort including:

   [L]oss of earnings, past and prospective; for any impairment of his earning
   capacity; for medical expenses incurred and to be incurred; and for any
   other economic loss he may have sustained or is likely to sustain. He is
   also entitled to redress for his physical injury, including the effects
   thereof, such as pain, suffering, mental anguish, discomfort, and
   inconvenience. If the injuries are permanent and result in an impairment of
   earning capacity, he may recover damages for such impairment, including
   (but not limited to) his probable loss of future earnings. Damages
   resulting from the impairment of earning capacity and the probable loss of
   earnings must be measured on the basis of life expectancy at the time of
   injury. The award must be based upon the probable pecuniary loss reduced to
   its present net worth. The injured worker is also entitled to compensation,
   again based on life expectancy at the time of the injury, for the physical
   and mental effects of the injury on his ability to engage in those
   activities which normally contribute to the enjoyment of life, including,
   for example, his avocations.(497)

As a result of a 1990 United States Supreme Court opinion, Miles v. Apex Marine Corp.,(498) three remedies are in a state of flux and confusion: damages for loss of society, lost future wages and punitive damages.(499) The impact of Miles on each of these areas will be reviewed in the appropriate section.

The areas of concentration regarding maritime remedies addressed in this section are intended as a brief overview with the focus on general maritime, rather than statutory, remedies that include: 1) damages due to personal injury and compensation for medical treatment; 2) prejudgment interest; 3) non-economic losses including pain and suffering and lost enjoyment; 4) lost earning capacity including past and future lost wages; 5) loss of society and consortium; 6) punitive damages; and 7) the effect of apportionment of fault. These concepts will be analyzed in turn.

A. Damages Due to Personal Injury and Compensation for Medical Treatment

Of ancient origin is the shipowner's obligation to care for an ill or injured seamen.(500) Under general maritime law, a seaman who becomes sick or injured, while in service to the vessel, has a cause of action known as "maintenance and cure" which makes the ship and shipowner liable regardless of fault.(501) This right to maintenance and cure mandates the employer provide: 1) a living allowance for food and lodging for ill seamen; and 2) reimbursement for medical expenses.(502) The remedy is "curative in nature and is not intended as compensation for [an] injury."(503)

This remedy is "strictly personal" and designed "to put the sailor in the same position he would have been had he continued to work."(504) It is not intended as support for the seaman's family or dependents.(505) Once this right attaches, it continues until the seaman is "so far cured as possible."(506) However, the reimbursement ceases once the treating physician determines that "the condition [is] permanent and incapable of being improved."(507)

Determining when "maximum cure" has occurred depends upon the facts of the particular case.(508) In Stevens v. McGinnis, Inc.,(509) an employer was required to pay maintenance and cure for a seaman's illness that was symptomatic during the term of employment even though it was not diagnosed until five months after termination of the seaman's employment.(510) However, misrepresentation of preemployment medical information was a defense to the employer's responsibility for maintenance and cure in Wactor v. Spartan Transportation Corp.(511)

Although past and future medical expenses are fully compensable as damages, if the injury is an aggravation of a pre-existing condition, in some instances the damages are limited to those for the aggravation alone and not the underlying pre-existing injuries.(512) For example, "[w]here the victim would have experienced disability as a result of the pre-existing condition even if the second injury had not occurred, he can recover only damages caused by the aggravating event not the pre-existing injury."(513)

B. Judicial Interest

Damages awarded for personal injuries may entitle the plaintiff to "judicial interest."(514) In admiralty cases, "[i]nterest is proper on both liquidated and unliquidated claims, so long as they are for past losses; interest is not proper on future losses."(515) The rate and period of time the interest is paid "is dependent on the nature of the proceeding."(516) Prejudgment interest is used to "compensate the plaintiff for the time-value of the plaintiff's money the defendant held from the date of plaintiff's loss to the date of judgment."(517) In a general maritime case, the decision to award interest is discretionary, but most courts have awarded prejudgment interest as an almost automatic rule absent some exceptional circumstances.(518) The United States Supreme Court has given its stamp of approval on prejudgment interest in maritime cases by deciding that awarding prejudgment interest is a basic principal of admiralty law, "an element of just compensation," rather than a penalty.(519)

The amount and rate of interest are discretionary and a court may award interest higher than the federal interest statute(520) or a state statute authorizes.(521) When a district court awarded prejudgment interest at a rate of 10%, the Eighth Circuit determined that the court did not abuse its discretion in awarding an interest amount in excess of the state's statutory interest rate because "flit is well established that a federal court in setting the rate of prejudgment interest in admiralty actions is not bound by state statutory interest rates."(522) When the district court in United States v. Motor Vessel Gopher State(523) awarded prejudgment interest of 6%, the Eighth Circuit determined the amount was too low and remanded the issue of the prejudgment interest rate so that a rate could be established "more in keeping with the interest rates prevailing at the time repairs were completed" but set a base rate of not less than 8% per year.(524) Prejudgment interest is denied in cases where there are "peculiar" or exceptional circumstances(525) that would make it inequitable for the losing party to pay the interest.(526)

C. Non-Economic Losses: Pain and Suffering and Lost Enjoyment of Life

In order to recover for emotional distress, the plaintiff must suffer physical impact(527) or physical injury.(528) In Plaisance v. Texaco, Inc.,(529) a tugboat captain and his wife brought an action against the husband's employer and tug charter for emotional injuries the captain suffered when he witnessed a fire and was involved in the rescue attempt of other seamen.(530) The captain did not receive a physical injury but suffered from post-traumatic stress disorder which required intermittent psychiatric hospitalization and ongoing treatment that rendered him unable to return to work.(531) The Fifth Circuit relied upon the holding in Gaston v. Flowers Transportation(532) as representative of that circuit's law on compensation for emotional injuries.(533) In Gaston, a seaman observed his half-brother crushed to death between two vessels and filed a claim under the Jones Act for emotional injuries he suffered from this observation, but the court did not permit recovery for the purely emotional injuries because they were accompanied by only a "trivial" elbow injury.(534) Thus, by applying the Gaston rationale, the Fifth Circuit held that the tugboat captain in Plaisance could not recover for the emotional injuries he suffered because there was no physical injury.(535)

The physical impact or physical injury does not have to result in severe injuries, but some type of injury or impact is required that crosses the "trivial" threshold.(536) This threshold was not crossed in Ainsworth v. Penrod Drilling Corp.,(537) when a crew member in the control room 100 feet away observed a helicopter crash and explode on the deck of a jack-up rig.(538) The court stated that any physical injuries the plaintiff suffered, such as an "upset stomach, headaches, or a pulled muscle, are trivial and do not support recovery."(539)

However, the threshold was met when a captain of a vessel in Gough v. Natural Gas Pipeline Co.(540) hit a natural gas pipeline that was supposed to be buried three feet under the seabed.(541) A fireball erupted killing eleven of the fourteen member crew.(542) The captain was permitted to recover for emotional damages from post-traumatic stress disorder.(543) After being exposed to the severe heat, he was forced to jump overboard, inhaling the fumes, into the sea where he ingested seawater, suffered multiple contusions and some minor burns.(544) The Fifth Circuit indicated that adhering to the traditional physical impact or physical injury requirement serves the important dual functions of: 1) ensuring that an individual is not compensated for a feigned injury and, more importantly, 2) providing a "principled basis for limiting liability."(545) Acknowledging that a mere bystander could not recover for emotional distress, the Fifth Circuit left open the question whether someone within the "zone of danger"(546) could recover for emotional injury.(547) Recognizing the captain met the physical injury or impact rule, the court permitted recovery for emotional injury but reduced the original jury award of $2 million to $1,159,401.(548) Of this amount, $600,000 represented compensation for emotional injuries while economic damages were $559,401.(549) The court made a 35% reduction for the contributory fault of the captain for total compensation after remittur of $753,610.65.(550)

Thus, while general admiralty law compensates for emotional injuries accompanied by physical injury or physical impact, compensation is generally not provided for those who witness a traumatic event or are within a "zone of danger" if only an emotional injury results.(551)

D. Lost Earning Capacity Including Past and Future Lost Wages

Under general maritime law, past wage losses are "usually measured by the actual wage losses incurred by the plaintiff to the date of trial" and may include "fringe benefits if proved."(552) Future earnings are compensable if there is sufficient evidence that the earnings will be negatively impacted as a result of an injury.(553) Calculating the amount of future wages lost as a result of the injury generally involves a four step process that establishes: 1) "the loss of work life resulting from the injury or death"; 2) "the lost income stream" ... calculated by estimating what the victim would have earned (including fringe benefits)"; 3) total damages, calculated by "subtracting the plaintiff's post accident earning power from his normal earning power (both figures should be after tax) and multiplying by his work-life expectancy"; and 4) a discount to present value.(554)

Jerry Smith, a seaman, suffered an ankle injury in the course of his employment aboard the MN TROJAN, a vessel that serviced offshore oil rigs.(555) Smith routinely worked two weeks on, followed by two weeks off during which the captain would contact Smith regarding his next assignment.(556) Smith's ankle injury "occurred at the end of a two-week work shift."(557) He had been off work for six weeks and, although still suffering from some of the symptoms, he asked his attending physician to declare him "fit for duty."(558) He returned to work and completed a two week shift.(559) During the next leave, his attorney notified the employer that Smith would be filing for compensation under the Jones Act.(560) The port captain told him that unless the claim brought under the Jones Act was abandoned, Smith would be terminated.(561) Smith refused to drop the claim and was fired.(562) "Smith filed suit against Atlas [Off-Shore Boat Service] alleging liability for negligence under the Jones Act and for retaliatory discharge, a claim presumably based on general maritime law."(563) The case was tried to the district court and the judge awarded Smith $2,995 of which $1,495 was for the lost wages from the date of his injury to the date he returned to work and $1,500 for pain and suffering.(564) In addition, $1,000 was awarded as punitive damages.(565)

The issue presented on appeal was "does a seaman whose at-will employment is terminated because he filed suit against his employer under the Jones Act, 46 U.S.C. [sections] 688, have an action in admiralty for wrongful discharge?"(566) The Fifth Circuit held that although an at-will employee may generally be discharged "for good cause, for no cause, or even, in most circumstances, for a morally reprehensible cause," the employer who "discharge[s] in retaliation for the seaman's exercise of his legal right to file a personal injury action against the employer" commits a maritime tort.(567)

The issue presented relates to the wrongful termination in maritime law of an at-will employee who has brought a personal injury claim against his employer and is an issue which had previously never been presented before the Fifth Circuit.(568) Therefore, the court looked to nonmaritime common-law for guidance.(569) Recognizing that a retaliatory discharge contravenes public policy,(570) the court stated that

   The employer's retaliatory discharge is properly characterized as an
   intentional tort, entitling the seaman to compensatory damages caused by
   the abusive firing, including the seaman's expenses of finding new
   employment, lost earnings while the seaman seeks another position, and lost
   future earnings if the seaman's new job provides less remuneration than
   that earned while the seaman was in the employ of the defendant. I