Punitive Damages Available Under GML for a Claim of Unseaworthiness: Is the Time Ripe for the Supreme Court to Address the Townsend and Miles Mess?

Punitive Damages Available Under GML for a Claim of Unseaworthiness: Is the Time Ripe for the Supreme Court to Address the Townsend and Miles Mess?

By: John Yadamec

Tabingo v. American Triumph, LLC, 2017 Wash. LEXIS 328, No. 92913-1, March 9, 2017, Wash. S.Ct.No WestLaw citation available as of publication on March 15, 2017The Washington Supreme Court (“WSC”) recently held that punitive damages are available to a seaman bringing a claim for personal injury due to alleged unseaworthiness under general maritime law. The trial court ruled that punitive damages are not an available remedy under general maritime law and granted the employer’s motion for partial summary judgment. In an opinion authored by Justice Owens, the WSC disagreed based on the United States Supreme Court’s ruling in Atlantic Sounding Co. v. Townsend, and remanded the case to the trial court.Tabingo was a deckhand trainee working aboard a vessel owned by the appellee. He suffered a hand injury resulting in amputation of two fingers when another deckhand closed a hatch before Tabingo could remove his hand. A broken handle made it impossible to stop the hatch once it began to close. Tabingo’s claims for negligence under the Jones Act and unseaworthiness were based on his assertion that the appellee knew of the broken hatch for two years but failed to make repairs.At the trial court, the employer argued that the court should follow the Fifth Circuit’s en banc decision in McBride v. Estis Well Serv., LLC, which held that punitive damages are never allowed under general maritime law in seaman’s claims for death or personal injury. The judge granted the motion, ruling that because seaman cannot recover nonpecuniary damages according to the Jones Act, they were likewise barred from recovering nonpecuniary damages for claims of negligence. Reasoning that nonpecuniary damages encompass punitive damages, the judge struck Tabingo’s claim as to that issue.The WSC focused on three main points from Townsend: (1) the long-standing availability of punitive damages at common law; (2) the extension of punitive damages to maritime claims based on that common-law tradition; and (3) the lack of evidence that the remedies of maintenance and cure were excluded from admiralty. The court also reasoned that the Jones Act did not explicitly prohibit punitive damage claims. This meant such claims were permitted under the general maritime law claim for maintenance and cure, especially because courts have long treated seamen as the wards of admiralty who were due enlarged protections. Based on the reasoning of Townsend, the WSC found that an unseaworthiness claim is not excluded from the general admiralty rule that punitive damages are available to injured seamen.Next, the WSC determined that Miles v. Apex Marine Corp. did not control because it was limited solely to wrongful death actions brought under the Jones Act. Because Congress specifically limited recovery for wrongful death under the Death on the High Seas Act to pecuniary damages, punitive damages were not recoverable by the deceased seaman’s survivors. Citing specific language in Miles, the WSC reasoned that the Jones Act did not bar recovery of punitive damages under general maritime law claims. Furthermore, it noted that Townsend referred to Miles as good law. But in Townsend the Supreme Court reconciled the reasoning of Miles because the maintenance and cure cause of action and the remedy of punitive damages were established long before Congress passed the Jones Act. Because the United States Supreme Court held that Miles did not restrict a general maritime claim for maintenance and cure to only pecuniary losses, the WSC held that it likewise did not bar punitive damages in a claim for maintenance and cure.The WSC was not persuaded by the employer’s argument that the Fifth Circuit’s en banc opinion in McBride should guide the analysis. Primarily, the court focused on the McBride majority’s reliance on the reasoning in Miles to deny punitive damages to all plaintiffs, which included a deceased seaman’s personal representative as well as several injured seaman who brought claims under general maritime law. Because the Washington Supreme Court found that Congress had not directly addressed the issue of punitive damages for unseaworthiness causes of action, and because Townsend controlled instead of Miles, punitive damages should be available to Tabingo.The WSC acknowledged that Washington state law did not allow for recovery of punitive damages in most instances. However, because maritime actions brought in state court were decided according to federal law, the general maritime law would apply. Based on its previous decision in Clausen v. Icicle Seafoods, Inc., the WSC noted that the Jones Act did not bar recovery of punitive damages, and Townsend had approved of punitive damages for a claim under general maritime law. Therefore, Tabingo was not barred from seeking punitive damages under state law.Finally, the WSC reasoned that seamen, as the wards of the admiralty, deserved special protection, and allowing punitive damages was consistent with this policy. Citing Exxon Shipping Co. v. Baker, the court determined that reckless or malicious conduct could warrant the imposition of punitive damages on a vessel owner under general maritime law. Because such an award would protect seamen by deterring future misconduct by the employer and other vessel owners, and punishing the employer’s bad conduct in this case, the court favored allowing the claim to proceed.Coupled with the Ninth Circuit’s pending decision in Batterton v. Dutra Group, No. 15-56775, the WSC’s decision in this case shows a widening gap between the interpretation within the Ninth Circuit courts and the Fifth Circuit’s reasoning in McBride. There is no doubt that the Supreme Court has created much of the confusion: first, by cracking the door to recovery of punitive damages under general maritime law in Baker; and second, with its decision in Townsend, seemingly overruling Miles but for the explicit statement that it remained good law. Should the Ninth Circuit side with the seaman in Batterton and reason similarly to the Washington Supreme Court in this case, writs seem likely, and the United States Supreme Court may take up the cases to attempt to straighten out the issue. Perhaps the Court will point to Moragne v. States Marine Lines, Inc. and decide that awarding punitive damages under general maritime law while denying them for deceased seamen under DOHSA and the Jones Act creates an undesirable inconsistency.