On December 7, 2018, the Supreme Court granted certiorari on whether punitive damages are available to seamen who allege their injuries were caused by vessel unseaworthiness. This issue represents yet another attempt to expand the availability of punitive damages under maritime law and has generated considerable interest from industry players.
Under the general maritime law, vessel owners and operators have a non-delegable duty to provide a seaworthy vessel for its officers and crew. Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960). This duty does not require vessel interests operate an accident-free ship, but rather are obligated to use a “vessel and appurtenances reasonably fit for their intended use.” Id. While there is no dispute that a vessel must be seaworthy, the Ninth and Fifth Circuits differ on whether punitive damages can be recovered based on a claim of unseaworthiness. The Ninth Circuit recently ruled that punitive damages are recoverable under claims for vessel unseaworthiness. Batterton v. The Dutra Group, 880 F.3d 1089 (9th Cir. 2018). The Fifth Circuit arrived at the opposite conclusion in 2014 in McBride v. Estis Well Service, 768 F.3d 382, 384 (5th Cir. 2014) (en banc). The Supreme Court accepted certiorari in order to resolve this circuit split.
The underlying facts of Batterton are relatively straightforward. Batterton was a seaman employed aboard a vessel owned by the Dutra Group. While Batterton was pumping pressurized air into an enclosed compartment, a metal hatch blew open, crushing his hand. In addition to seeking relief under the Jones Act, Batterton filed a separate cause of action to recover punitive damages for vessel unseaworthiness. Dutra moved to dismiss the punitive damage cause of action, but the district court denied the application. Dutra, in turn, filed for interlocutory appeal on the punitive damage issue, which was granted by the Ninth Circuit, which affirmed the lower court decision.
In allowing punitive damages in cases of vessel unseaworthiness, the Ninth Circuit ruled punitive damages were permitted under the general maritime law. Batterton, 880 F.3d (2018). This ruling rejected the Fifth Circuit opinion addressing this very same issue. McBride, 768 F.3d (2014) (en banc). Underlying Batterton and McBride is a fundamental disagreement as to the application of two Supreme Court cases which have also considered the issue of recoverability of damages under general maritime law—Miles v. Apex Marine Corp., 498 U.S. 19 (1990), and Atlantic Sounding Company v. Townsend, 557 U.S. 404 (2009).
In Miles, a seaman was stabbed to death by a fellow crew member. The seaman’s estate brought a wrongful death action alleging both unseaworthiness and Jones Act negligence. In an unanimous opinion authored by Justice O’Connor, the Supreme Court found that (1) there is a general maritime cause of action for the death of a seaman but (2) the remedies available for wrongful death do not include loss of society because the Death on the High Seas Act expressly limits wrongful death remedies to “pecuniary remedies” and (3) a general maritime survival action does not allow for recovery of the decedent’s future earnings because the Jones Act’s survival provision limits recovery to losses sustained during the decedent’s lifetime. In summary, the Supreme Court ruled that claimants could recover only those damages specifically referenced in the Jones Act, and could not obtain further categories of damages, even if impliedly available under the general maritime law of the United States.
Miles attempted to harmonize common law and statutory law by forging a rule that maritime statutory schemes do not supplant the existence of pre-existing common law causes of action but rather holds that these statutes do limit remedies available under those general maritime law causes of action. Miles did not address punitive damages as a possible remedy.
In Atlantic Sounding Company v. Townsend, the Supreme Court revisited the types of damages recovered in the personal injury context. In Townsend, the Supreme Court ruled that punitive damages were available for an egregious failure to pay maintenance and cure. In Townsend, a sailor on a tugboat was injured, and despite the duty to pay maintenance and cure, the towing company failed to do so. Writing for a 5-4 majority and joined by Justices Ginsburg, Stevens, Breyer, and Souter, Justice Thomas’ majority opinion held that (1) punitive damages are a venerable feature of common law remedies and are reserved for especially egregious conduct, (2) punitive damages have been extended into the federal maritime law, and (3) nothing in maritime law restricts the availability of punitive damages in a maintenance and cure context. In summary, since maintenance and cure was a remedy available under the general maritime law of the United States, and there was nothing prohibiting the recovery of punitives in this context, the Supreme Court held that punitive damages were technically recoverable.
The present circuit split arises from the Fifth Circuit’s narrow reading of Townsend and broad reading of Miles as compared to the reverse interpretation of these two cases espoused by the Ninth Circuit. The Fifth Circuit limits the punitive damages calculus of Townsend to failure to pay maintenance and cure but does not extend the allowance of punitive damages to claims arising from unseaworthiness. By comparison, the Ninth Circuit’s analysis found that so long as the claims are brought under the general maritime law, for purposes of determining the availability of punitive damages, the issue of whether the claims arise from unseaworthiness or from the failure to pay maintenance and cure presents a distinction without a difference.
It is difficult to predict the outcome of the present case. Two amicus curiae briefs were filed by industry groups in support of Dutra’s application for the granting of certiorari, and it is likely that even more industry groups will be filing amicus curiae briefs to be considered by the Supreme Court. We will continue to report on any and all significant developments in this matter.
Raz Barnea is an associate with Cozen O'Connor in Seattle, Washington.
Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).