The Sometimes Harsh Realities of Joint and Several Liability

The doctrine of joint and several liability is not unique to the maritime law.  In fact, it dates back to at least the 18th century common law in England.  However, it’s application in domestic maritime personal injury suits can have a profoundly harsh effect on a defendant’s obligation to satisfy a judgment in cases involving multiple defendants.

Joint and several liability enables an injured party to pursue and collect his entire damage award from one defendant, notwithstanding the fact that other defendants may have been at fault for an accident.  The potential for one defendant to be responsible for paying the share of a judgment of another commonly arises in maritime personal injury cases where one defendant is legally protected against enforcement of a judgment, such as the situation in which a defendant is in bankruptcy or is shielded from liability by virtue of worker’s compensation laws or other tort immunity statutes.  For example, a longshore employer and a third party boat operator can both indisputably be at fault for causing injury to a longshoreman; however, the vessel operator alone can be forced to pay 100% of the longshoreman’s damages because the longshore employer is typically immune from tort liability to its employee.  Importantly, though, all defendants’ liability is offset by the percentage of the plaintiff’s own fault.

The joint and several liability rule may appear patently unfair to a party who has to pay damages caused by another’s fault.  But it has survived challenges in court time and time again.  The judiciary continues to endorse the rule as the fairest means of protecting an otherwise vulnerable personal injury claimant, especially seaman, whom have long been protected as “wards of the court.”  The inequity of imposing disproportionate responsibility of satisfying a personal injury judgment on a viable defendant is justified by the belief that vessel owners, corporate defendants and insurance companies have the financial wherewithal to shoulder the burden of joint and several liability.

Note: This article first appeared on and in the September 2012 edition of WorkBoat’s print magazine.