The United States Supreme Court first recognized products liability, including strict liability, as part of the general maritime law in East River Steamship S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986).[1] The Court noted that “the general maritime law is an amalgam of traditional common-law rules, modification of those rules, and newly created rules.”[2] Since then, numerous courts, including the United States Court of Appeals for the Fifth Circuit, have embraced Section 402A of the Restatement (Second) of Torts as the best expression of the law of products liability under the general maritime law.[3]
Section 402A provides that the seller of a product unreasonably dangerous by virtue of a defect is liable for damages to persons or property caused by the product, if not substantially changed since it was delivered, regardless of whether the seller was negligent and/or whether there was contractual privity between the seller and such injured persons.
Elements of the Claim and Burden of Proof
To recover on a products liability claim under general maritime law,[4] a plaintiff must establish: (1) the defendant sold or manufactured the product; (2) the product was unreasonably dangerous for its normal use (which includes foreseeable misuse) or defective when it left the defendant’s control; (3) the defect caused plaintiff’s injury; and (4) damages.[5]
A product can be considered unreasonably dangerous due to a defect in design or manufacture or because of inadequate instructions or warnings.[6] Accordingly, a products liability claim under general maritime law may be premised on (1) defective design; (2) defective manufacture; and/or (3) lack of adequate warnings.[7] To prove a products liability claim for defective design, the plaintiff must show that the product was defective and unreasonably dangerous for its normal use.[8] The “normal” use of the product includes all reasonable foreseeable uses, including foreseeable misuse.[9] To prove a defect in design, there must also be evidence that there was a safer alternative design available at the time and that this alternative design would have prevented the risk of harm. Additionally, the alternative design must be both economically and technically feasible at the time the product left the control of the manufacturer.[10] Even without a negligent design, a product can be unreasonably dangerous if the risks inherent in the product are greater than those a reasonable buyer would expect, and the likelihood of harm outweighs the potential utility of the product.[11] The Fifth Circuit has noted that general maritime law requires expert testimony to support a claim of defective design, materials, manufacturing, or warnings.[12]
A product may also be unreasonably dangerous due to a lack of adequate instructions or warnings. When a manufacturer knows or should know that danger may result from a particular use of its product, the failure to provide adequate warnings renders the product defective and unreasonably dangerous, even if there is no manufacturing or design defect in the product.[13] In assessing what hazards are foreseeable, the manufacturer is held to the status of an expert.[14]
In the maritime tort context, a product manufacturer also has a duty to warn when its product requires the incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.[15] The manufacturer’s duty to warn further extends to certain related situations, including when a manufacturer directs that the part be incorporated in its product, a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part, or the product would be useless without the part.[16]
The Interplay Between Maritime Products Liability Law and the Louisiana Products Liability Act
In the products liability context, although the Fifth Circuit has consistently recognized that Section 402A applies to maritime products liability cases, some district courts have applied the Louisiana Products Liability Act (LPLA)[17] to the extent that same does not conflict with the Restatement.[18] Other courts have held that the LPLA does not apply to general maritime products liability cases because of the application of Section 402A, finding it unnecessary to apply the LPLA to supplement general maritime law.[19] However, an area in which courts have applied state law to supplement general maritime law concerns redhibition claims.[20]
Potential Defenses and Related Considerations
A defendant may show through expert testimony that the product was properly designed or constructed and that there was another cause for the loss. The defendant may also show that the loss resulted from unforeseeable misuse of the product.[21] Regarding failure to warn cases under maritime products liability law, there is no duty to warn a claimant who has actual knowledge of the danger. Moreover, if the claimant failed to read the warnings, the sufficiency of the manufacturer’s warnings is irrelevant.
Maritime law also recognizes the “sophistical user” and/ or “sophisticated purchaser” defense as to both negligence and strict liability in failure to warn cases. The “government contractor” defense may also apply in failure to warn cases.[22]
Comparative fault is a central feature of general maritime law, including in products liability cases.[23] Moreover, maritime products liability law recognizes the foreseeability rule (which limits the scope of persons to whom a duty is owed) and also provides that a manufacturer in a commercial relationship has no duty under either a negligence or strict products liability theory to prevent a product from injuring itself. In other words, a cause of action for products liability under maritime law is available only for failure of the product that causes injury to persons or property other than the product itself.[24]
Breach of Warranty and Redhibition
In East River, the Supreme Court noted that the failure of a product to function properly is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of the bargain. Accordingly, a claim to recover damages for a nonperforming product can be brought as a breach of warranty action or, alternatively, if the consumer prefers, it can reject the product or revoke its acceptance and sue for breach of contract.[25] The Court pointed out that in a commercial setting in the maritime industry, parties are free to bargain for the terms of their contracts, including warranties and risk allocation.[26]
Louisiana courts have consistently recognized that maritime law does not exclude redhibition claims, which are inherently warranty claims.[27] Moreover, although there are differences between a breach of warranty and a redhibition claim, both are cognizable under maritime law, provided plaintiff meets the required legal standards and burden of proof.
In sum, although courts have adopted many aspects of traditional land-based products liability theory in maritime products liability cases, an understanding of specific maritime principles relating to jurisdiction, standing, scope and availability of remedies, and applicable defenses is crucial to successfully litigating maritime products liability cases in state and federal courts.
Jump to top
[1] In East River, the Supreme Court ultimately held a maritime plaintiff may not maintain a tort cause of action against a manufacturer “when a defective product purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss.” Id. at 876.
[2] Id. (internal citations omitted).
[3] See Vickers v. Chiles Drilling Co., 822 F. 2d 535, 538-40 (5th Cir. 1987); Garcia v. United States, 986 F. 3d 513, 531-32 (5th Cir. 2021).
[4] Maritime law applies to a tort when it satisfies both the “location” and “connection” tests. The locality test requires that the tort occurs on navigable waters or, for injuries suffered on land, that the injury be caused by a vessel on navigable waters. The “connection test” requires that the incident could have a potentially disruptive impact on maritime commerce and that the general character of the activity giving rise to the incident has a substantial relationship to traditional maritime activity. On the other hand, the application of maritime law to contractual claims depends on the subject matter of the contract, that is, whether it relates to maritime services or transactions. See Gulf Coast Shell & Aggregate LP v. Newlin, 623 F. 3d 235, 240 (5th Cir. 2010).
[5] Id. at 538; Molett v. Penrod Drilling Co., 826 F. 2d 1419, 1424 (5th Cir. 1987), abrogated on other grounds by Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S. Ct. 1043, 130 L. Ed. 2d 1024(1995).
[6] Pavlides v. Galveston Yacht Basin, Inc., 727 F. 2d 330, 337-39 (5th Cir. 1984).
[7] Edwards v. Sears, Roebuck & Co., 512 F. 2d 276, 288 (5th Cir. 1975).
[8] Vickers, supra. See also Thomas J. Shoenbaum, Admiralty and Maritime Law § 5:13 (6th Ed. 2018).
[9] Id. at 538.
[10] Id. at 539.
[11] Brown v. Link Belt Division of FMC Corp., 666 F. 2d 110 (5th Cir. 1982).
[12] Sullivan v. Rowan Companies, Inc., 952 F. 2d 141, 146-49 (5th Cir. 1975).
[13] Pavlides, supra, at 338.
[14] Id. (citing Borel v. Fiberboard Paper Prods. Corp., 493 F. 2d 1076 (5th Cir. 1973)).
[15] Air & Liquid Sys. Corp. v. DeVries, 586 U.S. 446, 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019).
[16] Id.
[17] La. R.S. 9:2800.51, et seq.
[18] Transco Synd. No. 1, Ltd. v. Bollinger Shipyards, Inc., 1 F. Supp. 2d 608 (E.D. La. 1998).
[19] S. Oil of La., LLC v. All. Offshore, LLC, 2024 U.S. Dist. LEXIS 107714 (E.D. La. 2024) (citing Parekh v. Argonautica Shipping Invs. B.V., 2017 U.S. Dist. LEXIS 127800 (E.D. La. 2017)).
[20] Id. at 22-23 (citing Tucker v. Petroleum Helicopters, Inc., 2008-1019 (La. App 4 Cir. 3/23/09), 9 So. 3d 966, 972).
[21] Schoenbaum, p. 372.
[22] Jowers v. Lincoln Electric Co., 617 F. 3d 346 (5th Cir. 2010).
[23] Lewis v. Timco, Inc., 716 F. 2d 1425, 1433 (5th Cir. 1983) (en banc).
[24] East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. at 870; Schoenbaum, pp. 369-72. See also Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F. 2d 925, 928 (5th Ci. 1987).
[25] East River at 867-68, 872.
[26] Id. at 872-75.
[27] See e.g., Tucker v. Petroleum Helicopters, supra.
