Ninth and Fifth Circuits Split on Issue of Punitive Damages Under Maritime Law

by Liskow & Lewis
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The stage appears to be set for intervention by the United States Supreme Court following the Ninth Circuit’s recent panel decision in Batterton v. Dutra Group, No. 15-56775 (9th Cir. Jan. 23, 2018).  In Batterton, the Ninth Circuit expressly disagreed with the Fifth Circuit in holding that an injured seaman may recover punitive damages in a claim for unseaworthiness against a vessel owner under the general maritime law.  Compare McBride v. Estis Well Service, 768 F.3d 382 (5th Cir. 2014) (en banc).  The circuit split, which follows disagreement among the lower courts, hinges on differing views of the impact of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990) on this area of law.

The plaintiff in Batterton was a deckhand injured when a hatch cover blew open crushing his left hand during an operation to pump pressurized air into a compartment below deck.  Alleging that the lack of an exhaust mechanism made the vessel unseaworthy, the plaintiff sued the vessel owner for unseaworthiness, seeking punitive damages among other remedies.  The defendant vessel owner moved to strike the plaintiff’s punitive damages claim, which the district court denied.  On appeal, the Ninth Circuit affirmed, finding that a seaman has a valid claim for punitive damages in a general maritime law unseaworthiness claim.

In reaching its decision, the Ninth Circuit was required to distinguish the recent en banc Fifth Circuit McBride decision, which reached the opposite conclusion in 2014.  The crux of the dispute between the different camps is whether the prohibition on recovery of so-called “non-pecuniary” damages under general maritime law and the Jones Act is sufficiently broad to prohibit recovery of punitive damages under these bodies of law.

In Miles, the Supreme Court held that the parent of a seaman killed by a fellow crewmember could not recover damages for loss of society under the general maritime law.  In its discussion, the Court referred to punitive damages as a species of non-pecuniary damages.  On this basis, the Fifth Circuit read Miles as a general bar against recovery of any type of non-pecuniary damages—including punitive damages—in claims brought under the general maritime law.  In the Fifth Circuit view, this result helps promote the Supreme Court’s concern for assessing the remedies available under the various bodies of maritime law consistently across the spectrum (the so-called “Miles uniformity principle”).

The issue was later complicated, however, when the Supreme Court decided Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009).  In Townsend, the Supreme Court ruled that punitive damages are available to seamen in claims against their employers for willful or wanton failure to pay maintenance and cure.  The Court’s reasoning hinged largely on the fact that both punitive damages and maintenance and cure predated passage of the Jones Act.  That Act did not address either remedy, thereby leaving them intact.

In Batterton, the Ninth Circuit seized on Townsend as a signal that the Supreme Court did not intend a general bar on nonpecuniary recovery in maritime actions as the Fifth Circuit had interpreted Miles.  Instead, according to the Ninth Circuit, the references to nonpecuniary damages in Miles had been given too much weight when the case itself really concerned the specific availability of loss of society damages (a type of nonpecuniary remedy with its own storied and arcane history).  Because nothing in Miles spoke to the issue of punitive damages in particular and Townsend put to rest the notion that the Court intended a total bar on the remedy in the maritime realm, the Ninth Circuit concluded that punitive damages are available to injured seamen in general maritime unseaworthiness claims.

This issue, and the apparent conflict in the Supreme Court’s Miles and Townsend decisions, have troubled lower courts for years.  Recently, sections of the Eastern District of Louisiana split on the question, and even the Fifth Circuit could only muster a highly fractured en banc ruling in McBride.  The Supreme Court itself has sent mixed signals, denying cert petitions in McBride (which barred punitive damages) and Tabingo (a recent Washington Supreme Court case that permitted punitive recovery).  But with the Ninth and Fifth Circuits now fully split, it seems likely that the Supreme Court will soon have to weigh in to resolve the question once.

Access to punitive damages has the potential to greatly increase the value of a given case in largely unpredictable ways, making their potential recovery a source of strife for the defense bar.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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