In McBride v. Estis Well Service, the Supreme Court will have to review an en banc decision from the Fifth Circuit discussing the availability–or more precisely, the unavailability–of punitive damages. McBride involved the claim by the estate of a deceased seaman (among others) for unseaworthiness under general maritime law and negligence under the Jones Act after a truck-mounted drilling rig toppled over, killing one seaman and injuring others. Initially, a panel at the Fifth Circuit determined that punitive damages were available under the Jones Act.
Following a rehearing en banc, the Fifth Circuit reversed course, determining that punitive damages are not available under an unseaworthiness claim because such damages are precluded by the Jones Act. A survivor’s recovery in a wrongful death Jones Act claim is limited to the recovery of pecuniary losses, which are designed to compensate an injured person or his survivors. Punitive damages are designed to punish rather than compensate. As such, punitive damages are not recoverable.
Nonetheless, after the Fifth Circuit’s en banc decision denying punitive damages, the petitioners requested a review by the Supreme Court. The petitioners, which included the decedent’s widow as well as the injured seamen, asked the Supreme Court to review “whether seamen may recover punitive damages for their employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.”
The introduction to the Petition for a Writ of Certiorari nicely frames the scope of the petitioners’ appeal:
In Miles v. Apex Marine Corp., 498 U.S. 19 (1990), this Court held that seamen’s survivors could not recover damages for loss of society and lost future income under the general maritime law because Congress had not authorized those damages in analogous federal statutes. Although Miles did not involve punitive damages, a number of lower courts adopted a very broad reading of that decision to deny punitive damages to seamen (and their survivors) in the two causes of action available to injured seamen under the general maritime law – actions for maintenance and cure and actions for the breach of a shipowner’s duty to provide a seaworthy vessel.
The Fifth Circuit was particularly aggressive in cutting back on seamen’s traditional rights to claim punitive damages. In Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) (en banc), the court held that an injured seaman could not claim punitive damages for his employer’s willful failure to pay maintenance and cure. The court read Miles to deny seamen the right to punitive damages in any general maritime law action, including an action for unseaworthiness.
In Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 419 (2009), this Court overruled Guevara and clarified that the expansive reading of Miles that the Fifth Circuit and other courts had adopted was “far too broad.” The Court reasoned that “punitive damages have long been available at common law,” that “the common-law tradition of punitive damages extends to maritime claims,” and that “there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule.” Id. at 414-15. Under Townsend, a remedy is available to a seaman under the general maritime law if “both the general maritime cause of action … and the remedy … were well established before the passage of the Jones Act.” Id. at 420.
In the decision below, the en banc Fifth Circuit held that punitive damages are not available to injured seamen or their survivors in an unseaworthiness action under the general maritime law. Resurrecting the broad reasoning of Guevara, the court held that punitive damages are unavailable under the Jones Act (thus deciding a question that the Townsend Court had explicitly left open, see 557 U.S. at 424 n.12). And under that broad reasoning, punitive damages are also unavailable in the general maritime law unseaworthiness action. The majority avoided the teaching of this Court’s Townsend decision by limiting it to the maintenance-and-cure context in which it arose.
The holding below – that punitive damages are unavailable in unseaworthiness actions – is consistent with broad rulings in the First and Sixth Circuits, and in the Texas Supreme Court. But it is in direct conflict with decisions of the Ninth and Eleventh Circuit, and it rejects well-considered dicta from the Second Circuit. There is also widespread confusion in the district courts and lower state courts.
This case offers the Court an opportunity to answer either of the questions that Townsend did not address. If the Court holds (as the Fifth Circuit panel did) that the general maritime law action for unseaworthiness should be treated in the same way that the general maritime law maintenance-and-cure action was in Townsend, then it will be unnecessary to address the Jones Act question. Alternatively, if the Court decides that punitive damages are an option in appropriate cases under the Jones Act, then there would be no basis for denying them under the general maritime law.
Choosing either of those options would resolve an important question of maritime law that has been the subject of constant discussion and litigation since Miles was decided almost a quarter-century ago.
The Petition for a writ of certiorari was filed on December 24, 2015. Curiously, Estis Well Service initially chose not to respond. It chose not to submit a brief. Perhaps in response to the four amicus briefs submitted in the claim, the Supreme Court requested a response from Estis, which is now due on March 6, 2015.
While waiting for the Court’s decision, we can review the briefs submitted by the amici…which are quite interesting. Below, I have reproduced the summary contained in each identified brief. (I could not locate the Brief amicus curiae of the Louisiana Association for Justice.)
From the Brief of Maritime Law Professors as Amici Curiae:
The undersigned professors of maritime law are in agreement that the issue of punitive damages in maritime law is an issue of significant importance, and that the Circuit Courts of Appeals are in conflict on the issue.
In Exxon v. Baker, the Court…found that punitive damages were a remedy which was available in maritime law “subject to the authority of Congress to legislate otherwise if it disagrees with the judicial result.” Hence it is up to the Court to determine the extent that congressional legislation has preempted the right of claimants to seek punitive damages. In this case the question is whether the Jones Act preempts the right of a seaman to seek punitive damages in a case arising under the doctrine of unseaworthiness.
The Supreme Court is the court of last resort on issues of admiralty and maritime law. While the undersigned are not unified in how the question presented should be resolved, we are in agreement, given the importance of the issue and the conflict in the circuits, that the issue meets the criteria for the granting of the Petition. Therefore the undersigned maritime law professors request that the Court grant certiorari and resolve the question presented.
From the Amicus Curiae Brief of the American Association for Justice:
1. Federal courts of appeals representing most of the coastal and Great Lake regions of the United States have reached diametrically opposed positions on whether punitive damages are available under general maritime law in an action for unseaworthiness. The constitution-based national interest in maintaining uniformity in maritime law strongly supports granting the Petition in this case.
2. This Court should also grant review on the basis of the Court’s historic and longstanding solicitude for the rights of seamen as “wards of the Admiralty.”
Seafarers continue to require this Court’s special protection of their rights. Pressures of globalization and competition have worsened the conditions faced by those who go down to the sea. Owners have strong financial incentives to cut corners with respect to prompt repair of dangerous conditions aboard their ships, providing safety equipment, and retiring aging vessels. Since the 1980s, owners have increasingly registered their vessels under “flags of convenience” with nations that offer lax safety regulation and inspection. Although labor unions have improved the lot of seafarers regarding compensation and benefits, many seamen continue to work under appalling conditions aboard unsafe vessels.
3. This Court should also grant the Petition to make clear the proper application of its precedents. Contrary to the en banc decision of the court of appeals below, this case is not controlled by this Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), which declined to expand remedies under general maritime law to include loss of society. It is instead governed by Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 417 (2009), upholding the right of seamen to recover punitive damages under general maritime law for willful and wanton failure to provide maintenance and cure.
Where Congress has not directly spoken to the issue of remedies under general maritime law, it is this Court’s constitutional role to declare the law, based on principles of justice. The sources of general maritime law include the common law of the states, which has long recognized the availability of punitive damages for willful misconduct.
In determining whether such damages are available for the specific cause of action for unseaworthiness, this Court should consider the principles that justify awards of punitive damages in products liability cases. As this Court has previously recognized, strict liability for breach of the warranty of seaworthiness closely resembles strict liability for placing unreasonably dangerous products into the stream of commerce. The rationale that punitive damages provide an incentive to invest in safety applies as well to the protection of seafarers from injury aboard unseaworthy vessels.
From the Amicus Curiae Brief of International Transport Workers’ Federation:
The safety of all vessels is important to society. Ensuring a ship is safe – or seaworthy ship – is not an issue that should be in dispute. The laws requiring a seaworthy ship are self-effectuating; a ship must be kept in a seaworthy condition. Government officials, like the Coast Guard, have limited personnel to inspect every vessel, every day. Unscrupulous ship owners will take advantage of laws that are under enforced; this is a known. Those who work on an unsafe or unseaworthy ship are injured more frequently than those who work aboard properly maintained vessels. It is more expensive to operate in a safe manner than to risk lives and the environment. The mere threat of punitive damages are one of the few weapons available to help ensure a seaworthy vessel upon which seafarers work. This Court already encourages a ship owner to provide medical care to injured seamen with the treat of punitive damages. Granting this Writ will deter those injuries from occurring in the first place by encouraging a ship owner to provide a seaworthy ship however the split in the circuits must be resolved. Punitive damages must become available to all seafarers. The failure to grant the Writ will have dangerous repercussions alerting the shipping world that vessels in disrepair are welcomed within U.S. waters.
It is too early to tell whether the Court will grant certiorari and review the en banc Fifth Circuit’s decision. Trying to do so is akin to reading tea leaves. Nonetheless, I am eagerly awaiting Estis Well Service’s brief, as well as the Supreme Court’s decision.
More to come…
Tip of the hat to Arthur A. Crais, Jr., Adjunct Professor of Maritime Law, Chairman of the Advisory Board, Loyola Maritime Law Journal. (And one of the authors of the Brief of Maritime Law Professors as Amici Curiae.)