In the aftermath of the U.S. Supreme Court’s 1990 landmark decision in Miles v. Apex Marine Corp., federal and state courts have grappled with whether a seaman has the right to recover punitive damages under a claim of unseaworthiness. Earlier this year, the Ninth Circuit Court of Appeals, in Batterton v. Dutra Group, joined some courts who answer in the affirmative—seamen may sue for punitive damages under a general maritime claim of unseaworthiness even after Miles.
Miles held that nonpecuniary damages of loss of society and lost future earnings were not available in a wrongful death action brought by a deceased seaman’s mother. The Ninth Circuit reads Miles narrowly as only limiting claims for the wrongful death of a Jones Act seaman by the seaman’s survivor to pecuniary damages and does not limit all causes of action arising under general maritime law, such as a seaman’s claim for maintenance and cure and unseaworthiness. As support for this rationale, the Ninth Circuit cites to the U.S. Supreme Court’s 2009 decision in Atlantic Sounding Co. v Townsend. In Townsend, the Supreme Court held that the Miles prohibition against punitive damages did not apply to maintenance and cure cases. Additionally, the Townsend Court noted that historically punitive damages were available under general maritime law and Miles did not change that availability. The Ninth Circuit extends the Townsend rationale for permitting punitive damages under maintenance and cure claims to a seaman’s unseaworthiness claims under the general maritime law.
The Ninth Circuit recognizes that Townsend allows for distinctions between unseaworthiness claims and maintenance and cure claims, namely that their remedies have different origins and different principles and procedures. However, the Court found that nothing in Townsend suggests there should be a distinction in regards to punitive damages between the two maritime claims. Both causes of action predate the Jones Act, and prior to the Jones Act punitive damages were available under general maritime law. Since nothing in Miles or the Jones Act eliminated the availability of punitive damages under general maritime law, both causes of action still allow for recovery of punitive damages.
Additionally, the Ninth Circuit makes a distinction between nonpecuniary losses and punitive damages. Nonpecuniary damages have long been associated with compensating plaintiffs for injuries such as mental anguish, pain and suffering, and loss of consortium. According to the Ninth Circuit, punitive damages have no relationship with compensation and are meant to punish the defendant not compensate the plaintiff. In further distinguishing their holding with Miles, the Court notes that whether a seaman’s spouse (or mother as in Miles) may recover for the loss of companionship or the loss of society of her husband (the similar issue before the Court in Miles) has no relation to whether a ship owner should be punished for disregarding the safety of its seamen.
The First and Fifth Circuits have read Miles more broadly, holding that post-Miles seamen cannot recover nonpecuniary damages, and since punitive damages are nonpecuniary, they are unrecoverable. In McBride (a 2014 post-Townsend case), the Fifth Circuit noted that Townsend did not overturn Miles but rather distinguished maintenance and cure cases from other actions available to Jones Act seamen. The Court found the reasoning and analysis behind limiting a deceased seaman’s survivor’s recovery to pecuniary losses just as equally sound for limiting an injured seaman’s recovery to pecuniary losses. Unlike the Ninth Circuit, the Fifth Circuit found punitive damages to be in the same category of non-pecuniary (or non-compensatory) losses and are thus barred under Miles.
In 2017, prior to the Ninth Circuit’s decision and after the Fifth Circuit’s opinion, the Washington State Supreme Court in Tabingo v. Am. Triumph LLC, held that a seaman could sue for punitive damages under an unseaworthiness claim. The defendant vessel owner petitioned the U.S. Supreme Court to grant a writ of certiorari to review the Washington decision. The argument supporting the Supreme Court’s intervention was that by allowing the Washington decision to stand, there would be uncertainty injected into general maritime jurisprudence. This would lead to shifting standards of liability for vessel owners based on where the plaintiff seaman files his unseaworthiness suit. Two weeks before the Ninth Circuit’s opinion, the U.S. Supreme Court denied the writ of certiorari, leaving the issue unresolved.
What Comes Next?
By allowing seamen to recover punitive damages in an unseaworthiness claim, the Ninth Circuit and the 15 U.S. District Courts under its jurisdiction, stand in direct opposition to the First, Second, Fifth, and Sixth Circuits. It is unlikely that this schism among the federal courts will be ignored by the U.S. Supreme Court much longer. In the meantime, plaintiff seamen and defendant vessel owners will receive different treatment under general maritime law depending on where suit is filed. This will make it difficult for shipowners and their underwriters to plan for potential liabilities arising out of crew personal injury suits. To avoid the specter of punitive damages, shipowners facing Jones Act suits in a Ninth Circuit venue should bend every effort to challenge the venue whenever possible.
Jim T. Brown has an active trial and appellate practice focused on maritime collision, personal injury, and offshore energy matters. Licensed by the U.S. Coast Guard as Master and First Class Pilot, prior to becoming a lawyer, Jim worked in various shoreside and seagoing capacities for Lykes Bros. Steamship Co., Texaco Marine Services, the Falcon Shipping Group and Coastal Corporation. Jim is a Proctor in Admiralty in the Maritime Law Association of the United States and has served as a Director of the Southeastern Admiralty Law Institute.
Andrew J. Miller’s practice includes a wide range of matters including maritime personal injury, collisions, cargo claims, and energy related matters. Prior to attending law school, Andrew was a surface warfare officer in the U.S. Navy. He graduated magna cum laude from The Catholic University of America’s Columbus School of Law in Washington, D.C. in 2017. Andrew is a newly admitted Texas attorney, passing the Texas bar in 2017.