K. MICHAEL MOORE, District Judge.
THIS CAUSE came before the Court upon Defendants Chandris, Inc. and Ajax Navigation Corporation's request that the jury verdict form ask the jury to apportion the amount of the damages, if any, between Plaintiff Susanne Groff, Defendants, and the Grand Cayman Port Authority, a non-party to this lawsuit.
Recently the Florida Supreme Court decided Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and interpreted Florida Statutes § 768.81(3) which reads:
The court in Fabre held that "party" is not limited to participants in the lawsuit and that "the only means of determining a party's percentage of fault is to compare that party's percentage of fault to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants." Fabre, 623 So.2d at 1185. As a result, Defendants in this case contend that the jury should consider the degree of fault of the non-party Grand Cayman Port Authority.
In the parties' March 17, 1993 Joint Pretrial Stipulation, Plaintiff and Defendant correctly assert that "[t]his matter is controlled by the substantive General Maritime Law of the United States."
In the past, the Fifth Circuit
Although there do not appear to be any federal cases applying the recent Florida Supreme Court decision in Fabre to federal admiralty claims, this Court is guided and persuaded by analogous cases in this Circuit. For example, in Ebanks v. Great Lakes Dredge & Dock Co., plaintiffs were members of the crew of a dredge and barge owned by defendant Great Lakes, their employer. The crewmen were thrown into the water when the barge was overturned by a collision with a tanker; one crew member drowned. The plaintiffs brought suit alleging that Great Lakes had a contractual obligation to follow certain Corps of Engineers safety requirements and brought suit under their employer under the Jones Act, 46 U.S.C. § 688. The
Accordingly, under existing law in this Circuit, Defendants are not permitted to have the jury determine the percentage of liability or fault of the non-party Grand Cayman Port Authority.
DONE AND ORDERED.
3. If you answered "yes" to Question Two, what proportion or percentage of Plaintiff's damage do you find from a preponderance of the evidence to have been legally caused by the negligence of the respective parties?
The Defendants CHANDRIS, INC. and AJAX NAVIGATION CORPORATION _________% The Plaintiff SUSANNE GROFF _________% Grand Cayman Port Authority _________%
This Court notes, however, that Defendants' March 16, 1993 answer to the amended complaint appears to have preserved their ability to argue that other parties were responsible even if the fault of non-parties should not be included in the jury verdict form. See Answer to Amended Complaint ¶ 6 ("the damages of which the Plaintiff complains were caused by the carelessness and negligent [sic], if any, or other misconduct of third persons over whom these Defendants had no control").