William R. Bennett III and Alexandra Clark
A recent state court decision highlights a division among state, district, and circuit courts on the availability of punitive damages for general maritime law claims. In a unanimous opinion, the Washington State Supreme Court in Tabingo v. American Triumph LLV ruled that punitive damages are recoverable by seaman with a claim for unseaworthiness where the employer acts recklessly.1 Plaintiff Allan Tabingo was working as a trainee deckhand on a fishing trawler when he was seriously injured by a hatch cover closing on his hand, resulting in the amputation of two fingers. Tabingo alleged the vessel was unseaworthy because the vessel operator was aware of the faulty control handle for at least two years, but failed to take any measure to repair the handle. He brought suit against the vessel owners and operators, claiming negligence under the Jones Act as well as a general maritime claim of unseaworthiness, for which he requested punitive damages. A unanimous Washington Supreme Court reversed the trial court’s decision to hold that punitive damages are an available remedy in a claim for unseaworthiness.
The Supreme Court has yet to address the precise question of whether punitive damages are an available recovery in a general maritime claim for unseaworthiness. To fully understand the significance of the Tabingo decision, a brief review of the history of claims under the general maritime law and jurisprudence is required.
Causes of Action under the General Maritime Law
By way of background, the general maritime law historically provided injured seaman with two causes of action against their employer: (1) a claim for maintenance and cure benefits, and (2) a claim for injuries caused by the unseaworthiness of the vessel. Vessel owners have a non-delegable duty to provide a seaworthy vessel. A vessel is seaworthy if the vessel, including equipment and crew, is reasonably fit and safe for the purposes for which it is intended to be used. Liability on a claim of unseaworthiness does not require a finding of negligence; vessel owners may be found liable without fault.
By the time the Jones Act was enacted in 1924, general maritime claims such as unseaworthiness were well-established in the United States. The Jones Act provided injured seaman or their representatives a negligence cause of action against their employer.2 While the Jones Act does not define the available remedies for claimants under the act, courts have interpreted the Jones Act to only provide for pecuniary loss.
General maritime claims are distinct from Jones Act claims. Seaman may bring a Jones Act negligence claim and a claim for unseaworthiness in the same action and may recover damages under both claims in the same action.3
The federal and state courts of the United States have struggled with the question of whether the restriction of available recovery under the Jones Act extends to claims under the general maritime law. In Miles v. Apex Marine Corp., a unanimous Supreme Court held that non-pecuniary damages were not recoverable in a general maritime law wrongful death action.4 In so holding, the court established the Miles uniformity principle providing that if a category of damages is prohibited under a statutory maritime cause of action, it is unavailable for a parallel general maritime law cause of action. The court in Miles was clear, however, that “[t]he Jones Act evinces no general hostility to recovery under maritime law” and “[i]t does not disturb seaman’s general maritime claims for injuries resulting from unseaworthiness.”5
In Atlantic Sounding v. Townsend, a sharply divided Supreme Court held that punitive damages may be recovered in a general maritime claim for maintenance and cure.6 The plaintiff filed suit under the Jones Act and the general maritime law alleging his employer willfully failed to provide maintenance and cure. The majority in Townsend limited its reading of Miles to the question of whether the general maritime law provided a cause of action for wrongful death. In a decision written by Justice Thomas, the court reasoned that because punitive damages were available at common law and, by extension, to maritime claims without evidence that maintenance and cure was excluded from the general maritime rule, it followed that punitive damages remained a remedy available to claimants seeking maintenance and cure. Further, Congress had not exhibited any intent to limit recovery for general maritime claims to non-pecuniary damages. The Jones Act, the court explained, did not proscribe the previously existing general maritime claims of maintenance and cure and unseaworthiness, but rather expanded a seaman’s right to recovery.
The dissent in Townsend criticized the majority, arguing that while punitive damages may have been available, they were not frequently awarded for general maritime claims. The dissent was written by Justice Alito and joined by Chief Justice Roberts and Justices Scalia and Kennedy. The dissent is correct about this fact—punitive damages are an extraordinary remedy that require a finding that the defendant’s conduct is “willful, wanton and reckless indifference for the rights of others.”7 Indeed, in Exxon Shipping Co. v. Baker, decided a year before Townsend, the Supreme Court approved an award of punitive damages under the general maritime law where the conduct of the defendant was reckless. Though Exxon was not a Jones Act case, at issue was the availability of remedies to fisherman under the general maritime law. The decision has been cited in conjunction with Townsend as the Supreme Court’s acquiescence to the availability of punitive damages for general maritime law claims where Congress has not limited recovery. Thereafter, numerous district courts applied the holding in Townsend to claims for unseaworthiness and found that punitive damages are an available remedy on unseaworthiness claims.
However, in 2014, the Fifth Circuit in McBride v. Estis Well Service, LLC held that punitive damages were not an available remedy for general maritime claims of unseaworthiness, abruptly reversing its earlier panel decision. In McBride, two injured seaman and a representative of a deceased seaman stated causes of action for negligence under the Jones Act and unseaworthiness under the general maritime law. The majority opinion equated a claim for unseaworthiness with a claim for negligence under the Jones Act, such that the Jones Act restriction of available remedies proscribed the availability of punitive damages to injured seaman with general maritime unseaworthy claims. The majority relied heavily on Miles, and only briefly mentioned Townsend by limiting its application to claims for maintenance and cure. It is worth noting that at issue in McBride was the availability of punitive damages in unseaworthiness claims for both wrongful death and personal injury. The Fifth Circuit did not distinguish the recovery available for the different claims.
Future of Punitive Damages
The Washington Supreme Court’s decision in Tabingo, another Jones Act and general maritime unseaworthiness cause of action, revived the discussion with regards to the availability of punitive damages under a general maritime law claim. Tabingo is directly at odds with the Fifth Circuit’s decision in McBride. If Congress does not specify the available recovery in an unseaworthiness claim, there will continue to be disparate applications of Miles and Townsend. The sharp division of opinions between state, district, and circuit courts on the issue of punitive damages may necessitate a response from the Supreme Court.
Townsend is the court’s most recent decision with regards to recovery under the general maritime law. The majority opinion was authored by Justice Thomas and joined by Justices Stevens, Souter, Ginsburg, and Breyer, the liberal side of the bench. Justice Alito dissented and was joined by the other conservatives—Chief Justice Roberts and Justices Scalia and Kennedy. While Justice Thomas’ opinion was clear that categories of damages historically available in general maritime actions will continue to be available so long as they are not proscribed by statute, Justice Alito’s dissent demonstrated a very restricted view of the availability of punitive damages in maritime law. The composition of the bench has changed since the court’s 2009 decision in Townsend. Justices Kagan, Sotomayor, and Gorsuch now sit on the bench in place of Justices Stevens, Souter, and Scalia, and their views on punitive damages and recovery under the general maritime law are largely unknown.
The division between the state and district courts with the Fifth Circuit creates ambiguity in maritime cases. Consequently, maritime practitioners and their clients are left with the uncertainty created by disparate applications of Townsend and Miles in maritime personal injury litigation. The one certainty is that punitive damages are awarded only where there is a finding of lawless misconduct. Maritime employers should be diligent in keeping their vessels, including equipment and crew, in a seaworthy condition so that claimants do not have a reason to claim punitive damages.
1. Tabingo v. Am. Triumph LLC, 188 Wn.2d 41 (Wash. 2017).
2. 46 U.S.C. § 30104.
3. McAllister v. Magnolia Petrol. Co., 357 U.S. 221 (1958).
4. Miles v. Apex Marine Corp, 498 U.S. 19, 32 (1990).
5. Id. at 29.
6. Atl. Sounding Co. v. Townsend, 557 U.S. 404, 414-15 (2009).
7. Exxon Shipping Co. v. Baker, 554 U.S. 471, 492 (2008).