Personal injury on the high seas

OT18

With its acceptance of The Dutra Group v. Batterton, 18-266, the U.S. Supreme Court has signaled that it will calm an area of particularly rough seas next year. The case asks whether punitive damages are available in a crewmember's personal injury suit alleging a violation of the general maritime law's duty to provide a seaworthy vessel.

In Batterton, the 9th U.S. Circuit Court of Appeals rejected the 5th U.S. Circuit Court of Appeals' en banc decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), and Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009).

Traditionally, a Jones Act seaman has three claims against his employer for injuries sustained in the service of a vessel: (1) a Jones Act claim for negligence; (2) a strict liability unseaworthiness claim; and (3) a claim for maintenance, cure and unearned wages. Both the Jones Act and the unseaworthiness claims provide an avenue to recover tort damages. Maintenance and cure, on the other hand, is a crewmember's general maritime law entitlement to receive medical care and a daily stipend for housing and meals from the shipowner while recovering from an illness or injury that occurred in the service of the vessel.

In Miles, the Supreme Court held that families of a deceased Jones Act seaman may not recover non-pecuniary damages (loss of society) in an unseaworthiness action because non-pecuniary damages were not available in a wrongful death action under the Jones Act. In other words, the court harmonized the tort remedies available in a wrongful death claim under the general maritime law with those available under the Jones Act. In so doing, the court emphasized the need for uniformity and cautioned courts against creating remedies that exceeded those authorized by Congress in a statute.

Then came Townsend. In that case, the Supreme Court held that an injured seaman could recover punitive damages for his employer's willful failure to pay maintenance and cure. The court examined the common-law tradition of punitive damages, which extended to maritime claims, and found no evidence that maintenance and cure claims were excluded from this rule. The court noted that the Jones Act created a cause of action for negligence, but did not eliminate a seamen's pre-existing remedies at the common law. The court distinguished its ruling from Miles on several grounds. First, it noted that Miles said nothing about maintenance and cure or the availability of punitive damages in such actions. Second, Miles's limitations on damages were compelled by legislation limiting the scope of remedies for maritime wrongful death actions under the Jones Act. Congress has placed no similar limits on claims for maintenance and cure, which is a remedy entirely distinct from traditional tort damages.

The question raised by the Batterton and McBride cases is whether an unseaworthiness claim for personal injuries is more like Miles or more like Townsend. In McBride, a fragmented en banc 5th Circuit found the analysis of Miles to be more on point, and held that punitive damages are not available in an unseaworthiness case because they are not available under the Jones Act. The 9th Circuit rejected this analysis, and in Batterton held that an unseaworthiness claim was a general maritime claim like maintenance and cure. It therefore followed Townsend and held that punitive damages are an available remedy for unseaworthiness. Other federal and state courts are split on the issue.

The third time was the charm. After declining to accept review of McBride and a conflicting Washington State Supreme Court opinion that followed Townsend, and with the urging of the Maritime Law Association and other amicus to resolve the conflict between the circuits, the Supreme Court finally accepted review of the 9th Circuit's decision in Batterton. Regardless of the outcome, the re-establishment of uniformity in this area of the law is of utmost importance to the maritime industry. Unseaworthiness is the companion claim to a Jones Act negligence claim, and is alleged in nearly every crewmember personal injury suit as an alternative means of recovering tort damages. As it stands, a seaman is entitled to punitive damages on an unseaworthiness claim if suit is filed on the West Coast, but not in Louisiana, Texas and other major marine centers. This patchwork quilt of potential recoveries may encourage forum shopping and makes it difficult for vessel owners who operate in multiple jurisdictions to adequately insure their risks. It also makes it difficult for lawyers to advise marine clients about their risk exposure or, in the case of attorneys representing seamen, their potential recoveries.

As a practical matter, a complaint alleging punitive damages drastically complicates the relationship between an insured, who is generally not covered for punitive damages, and an insurer, who is not obligated or willing to pay a premium for a punitive damages claim. This tension comes to a head during settlement negotiations. The insured will be motivated to settle to avoid the potential of an uncovered punitive damages award at trial. The insurer does not face the same risks and may evaluate the case differently, but is also concerned about a potential bad faith claim for refusing to settle within policy limits.

It merits noting that McBride was written in 1990 by a conservative majority of the Supreme Court, while Townsend was written by Justice Clarence Thomas, joined by the liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. We will be watching to see where the newer justices come out on the issue.

Molly represented the Maritime Law Association of the United States in its amicus brief urging the Supreme Court to accept certiorari of the Batterton case.