In an opinion that is interpretive of the landmark decision in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009), U.S. District Judge Pechman denied defendant’s 12(b)(6) motion to dismiss by holding that the spouse of an injured seaman may seek damages for loss of consortium under general maritime law.
Loss of society damages were deemed to be unavailable to survivors of seamen who brought claims under the Jones Act or under general maritime law under Miles v. Apex Marine Corp., 498 U.S. 19 (1990). The Miles Court based its holding on the U.S. Supreme Court decision in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59 (1913), which held that loss of society damages were not available under the Federal Employers Liability Act (“FELA”). The Miles Court reasoned that the Jones Act, which incorporated the FELA, required the application of the Vreeland decision as judicial “gloss.” Id. at 32. The Miles Court then reasoned that because loss of society damages were not available in a Jones Act wrongful death claim for negligence, such damages were not available in a general maritime law wrongful death action for unseaworthiness because, “[i]t would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence.” Id. at 32-33.
Subsequent to the decision in Miles, courts began using its premise as a basis for denying all punitive damages to seamen. See David W. Robertson, Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend, 70 La. L. Rev. 463, 466-67 (2010). Then, in Townsend, the Supreme Court held that seamen could sue employers for punitive damages for willful and wanton failure to pay maintenance and cure under general maritime law, stating “[t]he Jones Act . . . created a statutory cause of action for negligence, but it did not eliminate pre-existing remedies available to seamen for the separate common-law cause of action based on a seaman’s right to maintenance and cure. . . punitive damage awards, in particular, remain available in maintenance and cure actions after the [Jones] Act’s passage.” Townsend, 129 S.Ct. 2561, 2571-72.
The Court’s Townsend decision left many questions unanswered. The Court did not explicitly overrule Miles, or decree that loss of consortium was available as a result of a claim for injury or death due to unseaworthiness under the general maritime law. In Barrette, Judge Pechman opined that the correct reading of Townsend is that a seaman’s recovery under the general maritime law is not limited to those damages available under the Jones Act, and that because the cause of action for unseaworthiness and the remedy of loss of consortium existed in maritime law prior to the enactment of the Jones Act, “the Jones Act does not preclude recovery for loss of consortium in an unseaworthiness action.” Barrette at *4.
Barrette v. Jubilee Fisheries, Inc., No. C10-01206MJP, 2011 WL 3516061 (W.D. Wash. Aug. 11, 2011).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)