U.S.: Negligent Wrongful Death Under General Maritime Law

August 2000

The United States Court of Appeals for the Fourth Circuit has recently rendered an important decision which has substantial implications to both marine operators and marine insurers. Garris v. Norfolk Shipbuilding has created a new negligence based liability for wrongful death, whether in territorial waters or the high sea. The decision covers passengers, longshoremen and seamen.

Christopher Garris was working as a sandblaster onboard a ship that was berthed in the navigable waters of the United States. He was actually employed by Tidewater Temps but worked on behalf of Mid-Atlantic Coastings (Mid-Atlantic), a subcontractor of Norfolk Shipbuilding & Drydock Corporation (Norfolk). E.T. Gresham, Inc. (Gresham), another subcontractor for Norfolk, had employees aboard the same ship.

On April 8, 1997, a crane operator working for Gresham accidentally caused Garris to fall off a reserve hopper on the ship, which was used to load sand for sandblasting. Garris died as a result of the accident.

After receiving statutory death benefits under the Longshore and Harbour Workers' Compensation Act , Christopher Garris's mother, Celestine Garris (Garris), brought suit in the United States District Court for the Eastern District of Virginia against Norfolk and Gresham, seeking recovery for wrongful death based upon negligence under general maritime law and the Virginia wrongful-death statute. According to Garris, the crane operator's negligence and Norfolk's use of an inadequate communication signalling system were the reasons for her son's death.

The district court dismissed the claim with prejudice on the ground that general maritime law does not recognise a negligence-based cause of action, it also dismissed the Virginia wrongful death statute claim without prejudice.

Garris argued on appeal that the Supreme Court decision in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), which recognised a general maritime law cause of action for wrongful death based upon unseaworthiness, also established a general maritime law cause of action for wrongful death based on negligence.

In Moragne the Court overruled The Harrisburg, 119 U.S. 199 (1886), which had held that general maritime law did not allow recovery for wrongful death. The Moragne Court noted that since The Harrisburg, many states had enacted wrongful death statutes and Congress had enacted both the Death on the High Seas Act and the Jones Act, which afforded recovery for wrongful death. The Moragne Court concluded in 1970 that the reasons underlying the 1886 decision in The Harrisburg no longer applied, and recognised a general maritime unseaworthiness cause of action for wrongful death.

Although Moragne only addressed claims for unseaworthiness, the plaintiff in Garris argued that Moragne should be broadly construed to include wrongful death claims based on negligence. Despite its conclusion that Moragne could not be construed to create a wrongful death claim based on negligence, the Garris court decided to create a negligence-based wrongful death claim under the general maritime law. The court was of the opinion that the creation of a negligence-based wrongful-death action was consistent with the principles of uniformity that formed the basis of Moragne, and because Congress has not affirmatively precluded a negligence-based wrongful-death claim.

The Fourth Circuit therefore reversed the District Court. The full panel of the Fourth Circuit recently agreed to rehear the case so there is some possibility that a different decision may be issued later this year.