A Divided Sea: Recovering Punitive Damages for Unseaworthiness Under General Maritime Law

by Sara Kuebel, Senior Associate

In the 2014 case of McBride v. Estis Well Service, L.L.C., a divided en banc Fifth Circuit held that a Jones Act seaman could not recover punitive damages under either the Jones Act[1] or the general maritime law doctrine of unseaworthiness.[2] In January 2018, however, the Ninth Circuit in Batterton v. Dutra Group disagreed with the Fifth Circuit, holding that a seaman could recover punitive damages on his unseaworthiness claim.[3] These two conflicting decisions have renewed a circuit split[4] and have caused general maritime law to dive into a whirlpool of uncertainty.

In Batterton, the plaintiff-seaman worked as a deckhand on a vessel owned and operated by the defendant.[5] While working on this vessel in navigable waters, a hatch cover suddenly opened and crushed the plaintiff’s left hand.[6] The accident occurred because pressurized air was being pumped into the compartment below the hatch cover.[7] The vessel, however, lacked an exhaust mechanism to relieve this pressure.[8] The court found that the lack of an exhaust mechanism rendered the vessel unseaworthy and not reasonably fit for its intended use.[9] The plaintiff-seaman sought punitive damages for his injuries and the vessel owner moved to strike the recovery of such damages.[10] The district court denied the motion to strike and the defendant vessel owner appealed.[11]

On appeal, the Ninth Circuit needed to address the issue of whether punitive damages may be recovered for unseaworthiness.[12] In the earlier case of Evich v. Morris, the Ninth Circuit held that a seaman’s survivors could recover punitive damages under an unseaworthiness claim.[13] The defendant, however, argued that as explained by the Fifth Circuit in McBride, the later Supreme Court decision in Miles v. Apex Marine Corporation[14] implicitly overruled Evich.[15]

Unless the Evich decision was “clearly irreconcilable”[16] with Miles, the Ninth Circuit must follow Evich. In Evich, the Ninth Circuit held that a seaman could recover punitive damages under a general maritime law claim for unseaworthiness and for failure to pay maintenance and cure.[17] The Ninth Circuit distinguished these causes of action from Jones Act claims in which punitive damages may not be recovered.[18] In Miles, the Supreme Court held that neither a seaman nor his survivors could recover damages for loss of society or loss of future earnings.[19] The Miles Court reasoned that because the Death on the High Seas Act limits damages to “pecuniary loss” and because the Jones Act survival provision limits recovery to damages sustained during the decedent’s lifetime, the plaintiffs could not recover the non-pecuniary damages they sought.[20]

The Ninth Circuit Batterton court then turned to the more recent Supreme Court decision of Atlantic Sounding Co. v. Townsend.[21] In Townsend, the Supreme Court explained that punitive damages historically have been available in general maritime actions, and because Congress did not alter that understanding, the plaintiff-seaman could recover punitive damages under his maintenance and cure claim, a general maritime law action.[22] The Batterton court explained that inTownsend the Court read Miles as limiting damages for loss of society and lost future earnings, but it did not limit the availability of punitive damages in maintenance and cure cases.[23] Thus, “Townsend holds that Miles does not limit the availability of remedies in other actions ‘under general maritime law,’ which includes unseaworthiness claims.”[24] Moreover, Townsend’s reasoning allows for a distinction between maintenance and cure claims and unseaworthiness claims because the claims are of different origins and apply different principles and procedures.[25]

The Batterton court noted that nothing in its opinion suggested Miles had overturned Evich; however, the defendant also argued that the Fifth Circuit’s McBride decision supported the denial of punitive damages.[26] In McBride, a sharply divided Fifth Circuit relying on Miles held that punitive damages are non-pecuniary losses and may not be recovered under the Jones Act or general maritime law.[27] The Ninth Circuit, however, countered that “[t]he Fifth Circuit’s leading opinions in McBride are scholarly and carefully reasoned, but so are the dissenting opinions, which to us are more persuasive.”[28] Miles concerned itself only with loss of society damages and did not address punitive damages.[29] Moreover, in Miles, the Supreme Court stated that “the Jones Act ‘does not disturb seamen’s general maritime claims for injuries resulting from unseaworthiness.’”[30] Therefore, the Ninth Circuit refused to interpret Miles broadly and Townsend narrowly.

The Batterton court explained that the pecuniary loss limitations established by statutory wrongful death causes of action, such as the Death on the High Seas Act and the Jones Act, have no application to living seamen and their general maritime law claims.[31] Punitive damages do not serve as compensation for pecuniary or non-pecuniary losses as explained in Miles; they do not serve as compensation at all. Punitive damages operate as punishment and deterrents and have been recognized in general maritime law in Townsend, Exxon v. Baker,[32] and The Amiable Nancy.[33] And because “there is no persuasive reason to distinguish maintenance and cure actions from unseaworthiness actions with respect to the damages awardable,” the Ninth Circuit, following Evich and Townsend, found that a seaman could pursue punitive damages in his general maritime law cause of action for unseaworthiness.[34]

[1]See Jones Act, 46 U.S.C. § 30104 (2012).

[2]McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 2310 (2015). See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960) (providing that a vessel owner owes an absolute duty to furnish a seaworthy vessel, a vessel reasonably fit for its intended use).

[3]Batterton v. Dutra Grp., 880 F.3d 1089 (9th Cir. 2018).

[4]Compare Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), overruling on other grounds acknowledged by Saavedra v. Korean Air Lines Co., 93 F.3d 547, 553–54 (9th Cir. 1996) and Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir. 1987), with McBride, 768 F.3d at 384 and Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (1st Cir. 1994).

[5]Batterton, 880 F.3d at 1090.

[6]Id.

[7]Id.

[8]Id.at 1091.

[9]Id.

[10]Id.

[11]Id.at 1089–90.

[12]Id.

[13]Evich, 819 F.2d 256.

[14]Miles v. Apex Marine Corp., 498 U.S. 19, 21 (1990) (holding that neither a seaman nor his survivors can recover loss of society damages in either a negligence action against the employer or an unseaworthiness action against the vessel owner).

[15]Batterton, 880 F.3d at 1091.

[16]SeeMiller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (holding that “where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority.”).

[17]Evich, 819 F.2d at 258.

[18]Batterton, 880 F.3d at 1091 (citing Evich, 819 F.2d at 258).

[19]Miles, 498 U.S. at 37.

[20]Id.at 32–36.

[21]Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009).

[22]Id.

[23]Batterton, 880 F.3d at 1092 (citing Townsend, 557 U.S. at 419)

[24]Id.(quoting Townsend, 557 U.S. at 421).

[25]Id.

[26]Id.

[27]McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 2310 (2015).

[28]Batterton, 880 F.3d at 1096.

[29]Id.

[30]Id.at 1095–96 (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 29 (1990)).

[31]Id.at 1096.

[32]Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (awarding punitive damages under general maritime law).

[33]The Amiable Nancy, 16 U.S. 546, 557 (1818) (recognizing the availability of “exemplary damages” against a wrongdoer).

[34]Batterton, 880 F.3d at 1096.

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