Academic journal article The Review of Litigation

Money (It's What They Want): Quantifying Damage Awards for Foreign Tort Victims in United States Admiralty Courts

Academic journal article The Review of Litigation

Money (It's What They Want): Quantifying Damage Awards for Foreign Tort Victims in United States Admiralty Courts

Article excerpt

Money (It's What They Want):* Quantifying Damage Awards for Foreign Tort Victims in United States Admiralty Courts

I. Introduction

Imagine, for a moment, a horrific scene.1 Sanjay Bhatnagar worked as an engineer aboard the Indian vessel APJ KARAN.2 The vessel, owned by Surrendra Overseas Limited, an Indian shipping company, sailed from India to Portland, Oregon, to take on a cargo of grain bound for Alexandria, Egypt. Ordinary in other respects, this voyage carried special significance for Sanjay-his wife and young children flew to Portland to accompany him for the remainder of the trip. Several weeks into the voyage to Egypt, Sanjay's daughter Urvashi, age six, learned a new "game" from the ship's helmsman.3 As the court described it:

For some reason, the helmsman decided to show Urvashi how to play a "game": he feigned putting his hand on the clearview screen [a device designed to repel rain from the bridge windows; the day's rains meant that the device revolved at a high rate of speed], then encouraged her to do the same. However, when Urvashi followed the helmsman's lead her hand slipped, and the clearview screen severely injured her right hand and portions of her right arm.4

The helmsman fainted on the bridge. The captain, whose vessel then sailed in international waters, radioed the United States Coast Guard for assistance; the vessel diverted to the nearest landfall, which was the Caribbean island of Antigua.

Urvashi received emergency medical treatment on the island and then flew with her mother and brother to New York City, where relatives arranged for further medical assistance. Over the course of the next year, Urvashi had six operations and underwent extensive therapy for her injuries. The Bhatnagars, who have remained in the United States, brought suit in admiralty in the Eastern District of Pennsylvania.5

Given the particular procedural posture of the case, Surrendra chose not to challenge personal jurisdiction.6 After the trial court determined that Indian law would govern the case, Surrendra sought dismissal under the doctrine of forum non conveniens.7 The trial court determined that it could retain jurisdiction because no adequate foreign forum existed.8

This Note focuses on the issues arising out of the interplay of foreign substantive law and American procedure. When foreign substantive law controls, that law will also control the types of damages available.9 Thus, an American jury, upon finding negligence, might be instructed that the foreign law allows recovery for emotional distress arising out of an injured limb. This Note explores the advantages and disadvantages of several approaches to the quantification and subsequent judicial evaluation of damages when foreign substantive law and foreign heads of damages control. This includes an examination of the Bhatnagar case as well as the Fifth Circuit's recent decisions in Karim v. Finch Shipping Co., Ltd.10 Finally, this Note attempts to determine the fairest, best, and most logical solution.

The significance of this issue is difficult to overstate. Urvashi Bhatnagar's injuries resulted in an award of $150,000 in non-pecuniary damages.11 Meanwhile, the highest non-pecuniary award in India for any injury was 857,352 rupees, or approximately $28,000.12 Upon learning that the award in Bhatnagar's case far exceeded the highest Indian award, the Third Circuit vacated the judgment.13

This Note will explore the Third Circuit's reversal and the underlying theory upon which that court relied. What is the proper method for quantifying damages when foreign substantive law controls? If American juries typically award $100,000 for X-type injury, should that figure guide the assessment of damages? If the typical award in the foreign nation is, at current exchange rates, $5000, should an award in excess of that amount signal unreasonableness? Should some other system be used? Perhaps the typical American award is equivalent to three years of income for the average American, or perhaps the typical foreign award is five times the average annual income in that country. …

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