W. EUGENE DAVIS, Circuit Judge:
We took this case en banc to decide whether the seaman plaintiffs in this case, both the injured seamen and the personal representative of the deceased seaman, can recover punitive damages under either the Jones Act or the general maritime law. We affirm the district court and conclude that this case is controlled by the Supreme Court's decision in Miles v. Apex Marine Corp.,
These consolidated cases arise out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a navigable waterway in the State of Louisiana. The truck right toppled over, and one crew member, Skye Sonnier, was fatally pinned between the derrick and mud tank, and three others, Saul Touchet, Brian Suire, and Joshua Bourque,
Haleigh McBride, individually, on behalf of Sonnier's minor child, and as administratrix of Sonnier's estate, filed suit against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as punitive damages under both claims. The other crew members filed separate actions against Estis alleging the same causes of action and also requesting compensatory and punitive damages. Upon the crew members' motion, the cases were consolidated into a single action. Estis moved to dismiss the claims for punitive damages, arguing that punitive damages are not an available remedy as a matter of law where liability is based on unseaworthiness or Jones Act negligence. Treating it as a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the court granted the motion and entered judgment dismissing all claims for punitive damages. Recognizing that the issues presented were "the subject of national debate with no clear consensus," the court granted plaintiffs' motion to certify the judgment for immediate appeal under 28 U.S.C. § 1292(b). This interlocutory appeal followed.
The panel, in a scholarly opinion, concluded that the Supreme Court's recent opinion in Atlantic Sounding Co., Inc. v. Townsend
We granted rehearing en banc to determine whether the Supreme Court's decision in Miles, holding that the Jones Act limits a seaman's recovery for unseaworthiness under that Act or the general maritime law to "pecuniary losses," is still good law and whether that holding precludes plaintiffs' claims for punitive damages.
Whether punitive damages are an available remedy under the Jones Act and general maritime law to seamen or their survivors is a question of law we review de novo.
Appellants' arguments are founded primarily on their claim under general maritime law. A brief discussion of the legal and historical background of the general maritime law as it relates to the plaintiffs' case is therefore in order.
We start from the bedrock premise that the "[j]udicial power, in all cases of admiralty and maritime jurisdiction, is delegated by the Constitution to the Federal Government in general terms,"
In 1886, the Court, in The Harrisburg,
In 1920, Congress enacted the Jones Act, 46 U.S.C. § 30104, and extended to seamen the same negligence remedy for damages afforded to railroad workers under the Federal Employers' Liability
Under 45 U.S.C. §§ 51-59, FELA provides that a carrier is liable for its negligence, although the employee's recovery is reduced if he was negligent.
The Vreeland Court stated that the damages under FELA "are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries."
With this background, we turn to the Supreme Court's unanimous opinion in Miles in 1990, which we conclude controls this appeal.
The facts in Miles are on all fours with Ms. McBride's wrongful death action. In both cases, the personal representative of a deceased seaman sued the employer for wrongful death under the Jones Act and general maritime law. No maintenance and cure action was presented in either case. In both cases the seaman met his death in the service of his ship in state waters. The Supreme Court made three significant holdings relevant to this case. The Court held that:
(1) Before the Court's decision in Moragne v. States Marine Lines, Inc. in 1970,
(3) Finally, the Court considered the issue presented directly in this case: the scope of the survivor's recovery in her general maritime law/unseaworthiness action for wrongful death. The Court, after extended discussion and analysis, limited the survivors in Miles to recovery of their "pecuniary losses." The Court therefore denied recovery for damages for loss of society.
In considering this element of damages, the Miles Court began its analysis by discussing its decision in Mobil Oil Corp. v. Higginbotham,
The Court then reasoned that its logic in Higginbotham controlled its decision in Miles. The Court first acknowledged that unlike the statutory language in DOHSA, neither the Jones Act nor FELA made explicit the "pecuniary loss" limitation. The Court concluded, however, that the limitation applied:
The Court therefore squarely held that the recovery of the deceased seaman's survivors under the Jones Act is limited to pecuniary losses. The Court then turned
Thus, the Miles court established "a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act or the general maritime law."
In summary, Miles decided in a wrongful death case completely indistinguishable from Ms. McBride's case that Congress, by incorporating FELA as the predicate for liability and damages in the Jones Act to seamen and their survivors, intended to import into the Jones Act the Vreeland "pecuniary limitation on damages as well."
The Jones Act applies to both injured seamen and those killed through the negligence of their employer. Even though Miles was a wrongful death action, no one has suggested why its holding and reasoning would not apply to an injury case such as those asserted by Messrs. Suire and Touchet.
Although Congress and the courts both have a lawmaking role in maritime cases, "Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country."
Appellant argues that the decision of the Supreme Court in Atlantic Sounding Co. v. Townsend overrules or severely undermines Miles so that it does not control today's case. But instead of overruling Miles, the Townsend Court carefully distinguished its facts from Miles and reaffirmed that Miles is still good law.
In Townsend, the Court considered a seaman's claim for punitive damages for the willful failure to pay maintenance and cure. In distinguishing its maintenance and cure case from Miles's wrongful death action, the Court in Townsend recognized that "a seaman's action for maintenance and cure is `independent' and `cumulative' from other claims such as negligence and that the maintenance and cure right is `in no sense inconsistent with, or an alternative of, the right to recover compensatory damages [under the Jones Act].'"
The Townsend court expressly adopted Miles's reasoning by recognizing that "Congress' judgment must control the availability of remedies for wrongful-death actions brought under general maritime law."
Appellants argue finally that even if their recovery on their general maritime law action is limited to pecuniary loss, punitive damages should be characterized as pecuniary losses. Appellants have no legal authority whatever to support this argument.
We start with FELA because that is the statutory source of the Vreeland pecuniary loss limitation. Every circuit court case on the subject holds that punitive damages are not recoverable under FELA because those losses are non-pecuniary.
The message that pecuniary loss is designed to compensate the plaintiff for an actual loss suffered comes through loud and clear. The statement in Miles itself describing the covered losses stated that in "[i]ncorporating FELA unaltered into the Jones Act, Congress must have intended to incorporate the pecuniary limitation on damages as well."
In the words of the Supreme Court, "Congress has struck the balance for us."
The Supreme Court, in Townsend, did not overrule Miles. Rather, it took pains to distinguish that maintenance and cure case from Miles and confirmed that "[t]he reasoning of Miles remains sound."
Based on Miles and other Supreme Court and circuit authority, pecuniary losses are designed to compensate an injured person or his survivors. Punitive damages, which are designed to punish the wrongdoer rather than compensate the victim, by definition are not pecuniary losses.
Punitive damages are not recoverable by the plaintiffs in these actions. The judgment of the district court is AFFIRMED.
EDITH BROWN CLEMENT, Circuit Judge, concurring, joined by JOLLY, JONES, SMITH, and OWEN, Circuit Judges.
While I join the majority opinion, I write separately to further explain the historical background mandating this result.
McBride's argument in favor of punitive damages largely requires establishing that punitive damages were historically available in pre-Jones Act unseaworthiness cases. To establish this, McBride relies on three main points:
When examined closely, none of these arguments establish McBride's ultimate contention. To the contrary, decades of maritime practice, along with the Supreme Court's discussions of unseaworthiness liability in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), as well as the Court's subsequent clarification in Pacific Steamship Co. v. Peterson that unseaworthiness plaintiffs are "entitled to ... [an] indemnity by way of compensatory damages," 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220 (1928), demonstrate that punitive damages were not available for unseaworthiness.
As a matter of law and common sense, Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008), does not resolve the question before us. As for the law, Baker only addressed whether the Clean Water Act preempted the punitive damages supposedly available at general maritime law — not whether punitives were available in unseaworthiness actions. See, e.g., id. at 490, 128 S.Ct. 2605. And as for common sense, the narrowness of Baker explains why the Townsend Court actually had to address the issue of punitive damages in maintenance and cure cases rather than simply saying that they had already addressed the issue in Baker.
That leaves McBride with the thin strand of Townsend. But Townsend, as a maintenance and cure case,
Moreover, the Supreme Court has likewise agreed that the basis for unseaworthiness liability is different than the basis for maintenance and cure liability.
The differences between maintenance and cure and unseaworthiness actions make maintenance and cure cases a poor guide for determining unseaworthiness remedies. Whereas a seaman's right to maintenance and cure is "ancient"
These distinctions matter. If Miles v. Apex Marine Corp. stands for anything, it at the very least signals that all damages are not automatically available in all maritime cases.
In In re Merry Shipping, Inc., this court held, as a matter of first impression, that punitive damages were available to unseaworthiness plaintiffs. 650 F.2d at 626. But Merry Shipping primarily relied on (1) non-seaworthiness cases speaking to the damages available under general maritime law for maintenance and cure and trespass, and (2) then-contemporaneous court cases reaching the same result. See id. at 624 n. 9.
Neither source establishes that punitive damages were actually available in unseaworthiness
Now, to be sure, courts rely on presumptions all the time. For example, we regularly rely on the presumption that there should be no right without a remedy. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). But even though we recognize a general principle that there should be no right without a remedy, that does not mean that every plaintiff that establishes a legal wrong is entitled to relief. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Similarly, even though punitive damages are available in many other types of actions, and indeed in some maritime cases, that does not mean that unseaworthiness plaintiffs are entitled to punitive damages when such an award runs contrary to historical maritime practice and the instructions of the Supreme Court in The Osceola and Pacific Steamship. I turn to that issue now.
From the way this case has been presented, one would expect to find a plethora of pre-Jones Act unseaworthiness cases awarding punitive damages. But a review of the cases cited in the briefs and at oral argument suggests the existence of only a single potential unseaworthiness case awarding punitive damages — The Rolph — which does not even pre-date the Jones Act.
The Rolph concerns a brutally violent first mate. The first mate blinded one sailor, deafened another, and ordered yet another to his near-certain death on a heavy sea. Id. at 270-72. But The Rolph is not a case about punitive damages. The damages the court ordered were based on the testimony of medical witnesses and witnesses concerning "the expectation of life and earnings of these men." Id. at
Moreover, assuming arguendo that The Rolph awarded punitive damages, we should not rely on one dust-covered case to establish that punitive damages were generally available in unseaworthiness cases. In the first instance, it would be a one-way ratchet of the worst sort if all we had to do to justify punitives was to pluck out a single court decision awarding such damages. But more importantly, courts can err — particularly given the complexity of maritime law — and so generalizing a supposed national understanding from one or even a handful of cases is a perilous task.
Worse, the myopic focus on engaging in a close literary analysis of a handful of unseaworthiness cases overlooks some of the strongest evidence that punitive damages were not available in unseaworthiness cases. After the passage of the Jones Act, controlling case law required a seaman to elect whether he wished to pursue an unseaworthiness or a Jones Act claim.
McBride offers no explanation for this disparity,
Of course, the obvious disparity between Jones Act and unseaworthiness cases does not explain why punitive damages were understood as not being available in unseaworthiness cases. That answer is contained within The Osceola and Pacific Steamship. When describing unseaworthiness, the Osceola Court observed:
189 U.S. at 175, 23 S.Ct. 483 (emphasis added).
What does it mean to be "liable to an indemnity"? The specific phrase itself appears to have originated in The Osceola, and so it is only so helpful on its own. But Pacific Steamship helps to clarify that The Osceola's unseaworthiness remedy is an "indemnity by way of compensatory damages." 278 U.S. at 138, 49 S.Ct. 75.
But let's assume for the moment that the foregoing is wrong, and unseaworthiness plaintiffs were entitled to punitive damages before the Jones Act. And let's also assume, contrary to the view of the majority opinion, that the narrower reading of Miles is right such that the remedies awarded in post-Jones Act judicial expansions of general maritime law actions should not exceed the remedies available in a Jones Act claim if, prior to the judicial expansion, the plaintiff would have only had a Jones Act claim. Would that mean that we should take a split-the-baby approach and make punitive damages available to an injured seaman plaintiff but only compensatory damages available to a wrongful death plaintiff on the theory that, before the Jones Act, the injured seaman would have had an unseaworthiness claim for punitive damages under general maritime law whereas the wrongful death plaintiff would have had only a Jones Act claim for compensatory damages?
No. Even if punitive damages were available in unseaworthiness actions before the Jones Act, and the Jones Act did not narrow those remedies, returning to the Merry Shipping rule for injured seamen plaintiffs still poses a significant Miles problem. Notably, the Merry Shipping rule does not account for the post-Jones Act expansion of unseaworthiness liability.
Congress passed the Jones Act in the wake of The Osceola to permit a seaman to recover for negligence. See Miles, 498 U.S. at 29, 111 S.Ct. 317. But at the
Since the passage of the Jones Act, courts have steadily eroded the separations between unseaworthiness claims and Jones Act negligence claims by enlarging unseaworthiness actions far beyond unseaworthiness's pre-Jones Act state. That expansion goes far beyond merely permitting wrongful death actions for unseaworthiness. See, e.g., Miles, 498 U.S. at 30, 111 S.Ct. 317 (confirming the availability of wrongful death actions for unseaworthiness). Rather, unseaworthiness has been transformed into a strict liability action, and then systematically expanded in scope so that it would now award an unseaworthiness recovery to an injured seaman who would have traditionally only had a Jones Act negligence action.
This post-Jones Act expansion of unseaworthiness liability creates a Miles problem if punitive damages are awarded in cases where the plaintiff would have originally had only a Jones Act negligence action. As our sister circuits have concluded, the Jones Act prohibits the recovery of punitive damages in a seaman's negligence suit.
We should not, in light of Miles, disregard Congress's chosen remedy for negligence-type cases by expanding unseaworthiness liability into the realm of negligence, thereby permitting plaintiffs who would have had (1) no recovery at the time of The Osceola, and (2) only a compensatory Jones Act recovery at the time of the Jones Act, to all of a sudden recover punitive damages in unseaworthiness. Therefore, without a way to exclude modern unseaworthiness cases that would have only been cognizable as Jones Act negligence claims at the time the Jones Act was passed, the split-the-baby solution that makes punitive damages available to injured seamen but not wrongful death plaintiffs is no solution at all. We cannot simply return to the Merry Shipping rule for injured seamen as long as "[t]he reasoning of Miles remains strong." Townsend, 557 U.S. at 420, 129 S.Ct. 2561.
Finally, we have good reason to be cautious before signing off on an aggressive expansion of punitive damages in the unseaworthiness context. The availability of insurance for punitive damages varies from jurisdiction to jurisdiction,
HAYNES, Circuit Judge, joined by ELROD, Circuit Judge, concurring.
I concur in the judgment of the en banc court affirming the district court. I also concur in the reasoning expressed in the majority opinion with respect to the wrongful death and associated claims of Ms. McBride arising out of the death of Skye Sonnier. Miles commands this result.
The majority opinion concludes that the outcome for the Sonnier family dictates the outcome for the surviving seamen remaining in this case (Touchet and Suire). I disagree with that conclusion. An action for wrongful death (in general) did not exist at common law. See Atl. Sounding Co. v. Townsend, 557 U.S. 404, 420, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009) (explaining
That said, I cannot join the dissenting opinions with respect to the surviving seamen. It is a tautology that "[f]ederal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
Aside from "gap-filling" (as opposed to general) common law permitted by Congress, there are few exceptions to this rule and they come in "those [instances] in which a federal rule of decision is necessary to protect uniquely federal interests." See Tex. Indus. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) (citations and internal quotation marks omitted). Because admiralty law is one of the "narrow areas" that presents "uniquely federal interests," federal
Such general development of the federal common law by the only unelected branch of our federal government should be done (if at all) with great restraint, as we recognized when we decided the case that became Miles. See Miles v. Melrose, 882 F.2d 976, 986 (5th Cir.1989) ("While the liberality of admiralty proceedings informs the development of maritime jurisprudence, it does not license courts to create causes of action whenever they see fit."), aff'd sub nom., Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); see also Am. Elec. Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527, 2536, 180 L.Ed.2d 435 (2011) ("[T]he Court remains mindful that it does not have creative power akin to that vested in Congress."); Miles, 498 U.S. at 27, 111 S.Ct. 317 (espousing a principle of vigilant judicial restraint and deference to Congress that is to guide the exercise of federal common law authority in the maritime context). The authority to address "uniquely federal interests" should not be exercised without sufficient justification and analysis. See, e.g., Daniel Stanton, Comment, Between a Rock and a Hard Place: Maintenance and Cure in the Wake of Atlantic Sounding, 10 LOY. MAR. L.J. 471, 481 (2012) (recognizing the dearth of legal analysis by courts that have addressed maintenance-and-cure restitution and the need to justify the remedy "with additional legal theories"). Recognition of new rights and remedies in maritime law, where appropriate at all, is appropriate only after a thorough analysis of legal, historical, and policy considerations. See, e.g., Townsend, 557 U.S. at 409-25, 129 S.Ct. 2561 (recognizing availability of punitive damages for seamen whose employers willfully fail to pay maintenance and cure only after a historical analysis of maintenance and cure and punitive damages, as well as considering the possibility of statutory preemption); Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 110-15, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974) (weighing ancient admiralty doctrine and policy considerations in approving a federal right to contribution among joint tortfeasors). Additionally, here the parties have not sought and have not briefed a different treatment of one category of claimant from the other, and we should be reluctant to address such differences sua sponte. Considering this fact, the need to exercise restraint, and the historical context in which seamen generally have not recovered punitive damages for unseaworthiness, I think it is inappropriate for a federal intermediate appellate court to extend the law here.
As such, I conclude that Congress is the more appropriate forum to weigh competing policy concerns about the punitive damage remedy against a backdrop of hard facts and searching investigation. See Boyle v. United Techs. Corp., 487 U.S. 500, 531, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) (Stevens, J., dissenting) ("When judges are asked to embark on a lawmaking venture, I believe they should carefully consider whether they, or a legislative body, are better equipped to perform the task at hand."); Zachary M. VanVactor, Comment, Three's a Crowd: The Unhappy Interplay Among the New York Convention, FAA, and McCarran-Ferguson Act, 36 TUL. MAR. L.J. 313, 336 (2011) (observing a "notion of judicial restraint" in maritime law such that "any decision of ... magnitude or that resembles legislation by the courts should instead rest with the elected legislature"); cf. Sosa, 542 U.S. at 724-27, 124 S.Ct. 2739 (cautioning, in law-of-nations context, that federal courts should exercise "a restrained conception of... discretion ... in considering a new cause of action" and that such a decision
The primary dissenting opinion is grounded in the view that the law already provides for this remedy pursuant to Townsend. Townsend addressed only maintenance and cure. The opinions filed in this en banc case state a scholarly basis for the analogies or lack thereof between maintenance and cure on the one hand and the causes of action at bar on the other, but no one contends they are identical. Thus, allowing recovery of punitive damages would be an expansion of a remedy, a subject best left to Congress. If a federal court is the right place to extend remedies in this area, I submit that federal court is the United States Supreme Court, not this one. The differing opinions of this court highlight the apparent tension among Supreme Court maritime precedents (primarily, Miles and Townsend), as well as the varied implications that learned jurists may draw from the relevant historical and policy considerations. This tension is between (at least) two Supreme Court precedents; ultimately, then, definitive resolution of this tension can come only from that Court, not ours. For these reasons, I join the judgment of the court expressed in the majority opinion, although, as to the remaining surviving seamen, not its reasoning.
HIGGINSON, Circuit Judge, dissenting, joined by STEWART, Chief Judge, BARKSDALE, DENNIS, PRADO, and GRAVES, Circuit Judges.
The question presented by this case is 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. Because the Supreme Court has said that they can, and Congress has not said they can't, I would answer in the affirmative, and REVERSE.
The consolidated cases arise out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a navigable waterway in Iberville Parish, Louisiana. As crew members were attempting to straighten the monkey board — the catwalk extending from the derrick — which had twisted the previous night, the derrick pipe shifted, causing the rig and truck to topple over. One crew member, Skye Sonnier, was fatally pinned between the derrick and mud tank, and three others, Saul Touchet, Brian Suire, and Joshua Bourque, have alleged injuries. At the time of the incident, Estis Well Service, L.L.C. ("Estis") owned and operated Rig 23, and employed Sonnier, Touchet, Suire, and Bourque (collectively, the "crew members").
Haleigh McBride, individually, on behalf of Sonnier's minor child, and as administratrix of Sonnier's estate, filed suit against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as "punitive and/or exemplary" damages.
Whether punitive damages are an available remedy under maritime law is a question of law reviewed de novo. See Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir.2007) (citations omitted), aff'd, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009).
There are two primary sources of federal maritime law: common law developed by federal courts exercising the maritime authority conferred on them by the Admiralty Clause of the Constitution ("general maritime law"), and statutory law enacted by Congress exercising its authority under the Admiralty Clause and the Commerce Clause ("statutory maritime law"). See U.S. CONST. art. III, 2, cl. 1 (extending the judicial power of the United States "to all [c]ases of admiralty and maritime [j]urisdiction"); Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 360-61, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (explaining that the Admiralty Clause "empowered the federal courts in their exercise of the admiralty and maritime jurisdiction which had been conferred on them, to draw on the substantive law `inherent in the admiralty and maritime jurisdiction,' [ ] to continue the development of this law within constitutional limits[,]" and "empowered Congress to revise and supplement the maritime law within the limits of the Constitution") (citation omitted).
Traditionally, general maritime law afforded ill and injured seamen two causes of action against shipowners and employers. If a seaman became ill or injured while in the service of the ship, the seaman's employer and the ship's owner owed the seaman room and board ("maintenance") and medical care (cure) without regard to fault, and, if not provided, the seaman had a claim against them for "maintenance and cure." If a seaman was injured by a ship's operational unfitness, the seaman had a cause of action for "unseaworthiness." General maritime law did not provide seamen with a separate cause
To remedy those perceived gaps in general maritime law, which, until then, had been filled by a patchwork of state wrongful death statutes,
"Historically, punitive damages," though not always designated as such,
Over the next century and a half, the availability of punitive damages for unseaworthiness claims arising under general maritime law was largely unquestioned. In Complaint of Merry Shipping, Inc., 650 F.2d 622, 623 (5th Cir.1981), our court confirmed the prevailing view that "punitive damages may be recovered under general maritime law upon a showing of willful and wanton misconduct by the shipowner in the creation or maintenance of unseaworthy conditions." Our court based its holding on the historical availability of punitive damages under general maritime law, the public policy interests in punishing willful violators of maritime law and deterring them from committing future violations, and the uniformity of contemporary courts on the issue. Id. at 624-26.
In Miles v. Melrose, 882 F.2d 976, 989 (5th Cir.1989) (citations omitted), we reiterated that "[p]unitive damages are recoverable under the general maritime law `upon a showing of willful and wanton misconduct by the shipowner' in failing to provide a seaworthy vessel[,]" but held, for the first time, that loss of society damages were not available to nondependent parents in a general maritime cause of action for the wrongful death of a Jones Act seaman.
The Supreme Court affirmed in a decision most significant for its announcement of a new age of maritime law:
Miles v. Apex Marine Corp. ("Miles"), 498 U.S. 19, 27, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); see also id. at 36, 111 S.Ct. 317 ("We sail in occupied waters. Maritime tort law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might work to the benefit of seamen and those dependent upon them."). Analyzing the issue presented with this guiding principle in mind, the Court reasoned that because DOHSA, by its terms, limits damages recovery to "pecuniary loss," id. at 31, 111 S.Ct. 317 (citation omitted), and the same limitation had been incorporated into the Jones Act, id. at 32, 111 S.Ct. 317,
Miles addressed the availability of loss of society damages to non-seamen under
Similarly applying the "Miles uniformity principle," as it came to be known, our court, sitting en banc, held that Miles "effectively overruled" Merry Shipping, concluding that "punitive damages [are not] available in cases of willful nonpayment of maintenance and cure under the general maritime law." Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1513 (5th Cir.1995) (en banc), abrogated by Atl. Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009). The court reasoned that because punitive damages, which are "rightfully classified as non-pecuniary," are not an available remedy for personal injury to a seaman under the Jones Act, they likewise are not an available remedy for personal injury to a seaman, including injury resulting from a maintenance and cure violation, under the general maritime law. Id. at 1506-07, 1510-12.
Momentum in that direction was sea-tossed by Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 424, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009), which explicitly abrogated Guevara and restored the availability of punitive damages for maintenance and cure claims under general maritime law. The Supreme Court reasoned that "punitive damages have long been an accepted remedy under general maritime law," including for egregious maintenance and cure violations, and concluded, contrary to Guevara, that "nothing in the Jones Act altered this understanding." Id. at 424, 129 S.Ct. 2561. The Jones Act, the Court reminded, "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." Id. at 415-16, 129 S.Ct. 2561. Importantly, Justice Thomas writing for the Court reminded that "[i]ts purpose was to enlarge [seamen's] protection, not to narrow it." Id. at 417, 129 S.Ct. 2561 (citations omitted). Indeed, the Court noted, the Jones Act specifically preserved the seaman's right to "elect" between the remedies provided by the Jones Act and those recoverable under pre-existing general maritime law; "[i]f the Jones Act had been the only remaining remedy available to injured seamen, there would have been no
The Supreme Court clarified that its interpretation of Miles did not represent an "`abrup[t]' change of course." Id. at 422 n. 8, 418-22, 111 S.Ct. 317. Rather, the Court explained, reliance on the Miles uniformity principle to bar punitive damages recovery under general maritime causes of action would read Miles "far too broad[ly]." Id. at 418-19, 111 S.Ct. 317. Miles, which addressed loss of society damages in maritime wrongful death actions, presented an issue of a different nature than the one presented in Townsend, which addressed punitive damages in the maintenance and cure setting:
Id. at 420-21, 129 S.Ct. 2561 (citations omitted). Thus, it concluded more generally, "[t]he laudable quest for uniformity in admiralty does not require the narrowing of available damages to the lowest common denominator approved by Congress for distinct causes of action." Id. at 424, 129 S.Ct. 2561.
The crux of this dispute lies in the partie's competing theories of statutory displacement of general maritime law.
The crew members read Miles and Townsend as providing, narrowly, that federal courts, in exercising their maritime lawmaking authority, cannot authorize a more expansive remedy for a general maritime cause of action than exists for a parallel statutory maritime cause of action if, at the time the statutory cause of action or remedy was enacted, the parallel cause of action or remedy did not exist under general maritime law. Applying that principle, they urge that punitive damages remain available as a remedy for the general maritime law cause of action for unseaworthiness because, as Justice Thomas highlighted for the Court in Townsend, like maintenance and cure, unseaworthiness was established as a cause of action before the passage of the Jones Act, courts traditionally awarded punitive damages under general maritime law, and the Jones Act does not address unseaworthiness or purport to limit its remedies.
Estis reads those cases as providing, more broadly, that where claimants seek redress for a type of harm compensable under both general and statutory maritime law, they are limited in their recovery to the class of damages authorized by the Jones Act and DOHSA regardless of the claim's history and without need for explicit Congressional recalibration. That is, punitive damages are available only where there is no remedial overlap between past general and never displaced statutory maritime claims because according to Estis, "the Jones Act and unseaworthiness claims constitute a single cause of action with a single set of remedies." In Estis's view, punitive damages were available in Townsend, but not Miles, because the Miles plaintiffs sought redress for physical injury and wrongful death, harms now compensable only under statutory maritime law, whereas the Townsend plaintiffs sought redress for harm caused by wrongful deprivation of maintenance and cure that did not result in physical injury, a type of harm compensable under general maritime law but not under statutory maritime law, which does not separately provide for a cause of action for maintenance and cure or a remedy for its deprivation. Applying that reasoning here, Estis argues that because the crew members seek redress for wrongful death and personal injuries arising from a maritime accident — types of harm compensable under statutory maritime law — and punitive damages are not available under statutory maritime law, punitive damages are not available in the present action.
To start, Estis's argument that Jones Act claims and unseaworthiness claims are but one collides with the Supreme Court's decision in Usner v. Luckenbach Overseas Corp., which explained:
400 U.S. 494, 498, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971) (footnotes omitted) (emphasis added); see also Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th
To the extent that Estis's focus is on the case's factual setting and not the specific cause of action alleged, Estis's proposed test for determining whether the Miles uniformity principle limits the damages recoverable in a maritime case mirrors the one previously adopted by our en banc court in Guevara:
59 F.3d at 1506 (emphasis omitted). Estis highlights this congruity and argues that although Guevara's holding that punitive damages are unavailable in actions for maintenance and cure was overruled by Townsend, Guevara's guidance on how to apply the Miles uniformity principle remains intact.
I would disagree. Townsend abrogated Guevara's holding because of Guevara's interpretation of Miles, not in spite of it. The petitioners in Townsend urged the Supreme Court to adopt the factual setting approach of Guevara, but the Court in Townsend declared that reading was "far too broad." 557 U.S. at 419, 129 S.Ct. 2561. That approach, the Court went on, "would give greater pre-emptive effect to the Act than is required by its text, Miles, or any of this Courts other decisions interpreting the statute." Id. at 424-25, 111 S.Ct. 317. Indeed, the Court noted, it had already rejected that view in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818, 121 S.Ct. 1927, 150 L.Ed.2d 34 (2001), an intervening case holding that a wrongful death remedy is available under general maritime law for the death of a harborworker attributable to negligence, even though "neither the Jones Act (which applies only to seamen) nor DOHSA (which does not cover territorial waters) provided such a remedy." Townsend, 557 U.S. at 421, 129 S.Ct. 2561 (citations omitted). The broader point made in Townsend, which I would heed today, is that "[t]he laudable quest for uniformity in admiralty does not require the narrowing of available damages to the lowest common denominator approved by Congress for distinct causes of action." Id. at 424, 129 S.Ct. 2561.
To give effect to that principle, Townsend established a straightforward rule, fully faithful to its earlier Miles decision: if a general maritime law cause of action and remedy were established before the passage of the Jones Act, and the Jones Act did not address that cause of action or remedy, then that remedy remains available under that cause of action unless and until Congress intercedes.
Estis contends, and the Majority Opinion accepts, that finding punitive damages available would overrule Miles. This view overbroadly construes Miles to require uniform displacement even as to preexisting causes of action or remedies without clear statutory language or intent.
557 U.S. at 424 n. 12, 129 S.Ct. 2561. If Estis's argument adopted in the Majority Opinion is correct that Miles directly forecloses the availability of punitive damages for unseaworthiness claims, then Miles would have closed the same question as applied to Jones Act claims without need for this exact qualification.
Estis attempts to distinguish Townsend on the ground that it involved a maintenance and cure claim, as opposed to an unseaworthiness claim. It is true that unseaworthiness claims are more closely related to negligence claims than they are to maintenance and cure claims. But as we noted in Guevara — the primary case upon which Estis relies — the displacement analysis for unseaworthiness claims is "wholly applicable to maintenance and cure cases as well." Guevara, 59 F.3d at 1504. Indeed, if the decisive paragraph in Townsend were amended by replacing "maintenance and cure" with "unseaworthiness," it would retain its persuasive force:
Townsend, 557 U.S. at 420-21, 129 S.Ct. 2561 (citations omitted).
Estis argues also that the "chronological" framework announced in Townsend is inapt because of the evolution of claims of unseaworthiness. Unlike maintenance and cure, which has remained unchanged in substance for centuries, the claim of unseaworthiness has evolved over the years. Although it was well established before the passage of the Jones Act, it did not become a strict liability claim until 1944, Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 88 L.Ed. 561 (1944), and was not available to seamen killed during the course of their employment until 1970, Moragne, 398 U.S. at 409, 90 S.Ct. 1772.
I agree that this case differs from Townsend in that respect. That is, punitive damages for the willful violation of the duty to provide maintenance and cure appear to have been available, if sparingly awarded, during the pre-Jones Act era. See Townsend, 557 U.S. at 414, 129 S.Ct. 2561 (citing The City of Carlisle, 39 F. at 809, 817 and The Troop, 118 F. at 77071, 773). It is less clear whether punitive damages were awarded for unseaworthiness violations during that period. See supra note 15. The parties did not brief this point to the panel, perhaps respectful of the Supreme Courts determination of the issue in Townsend. See Townsend, 557 U.S. at 408-15, 129 S.Ct. 2561 (section II of the Court's opinion). This distinction, if factually supported and not foreclosed by the Supreme Court, would change the inquiry: the question would not be whether the Jones Act was intended to displace existing remedies, but whether it was meant to foreclose future remedies. But the outcome would be the same.
Our task is not to reconstruct maritime law as it existed in 1920, but to assess whether Congress, in passing the Jones Act and DOHSA, intended to displace pre-existing maritime remedies or foreclose them going forward. See Townsend, 557 U.S. at 419-25, 129 S.Ct. 2561. Let us assume for the sake of argument, contrary to Townsend, that maritime courts during the pre-Jones Act era had taken no position on the propriety of punitive damages in unseaworthiness actions; that Congress in 1920 was painting on a blank canvas. Had Congress "spoken directly" on the matter, then I would follow its guidance. Townsend, 557 U.S. at 420-21, 129 S.Ct. 2561; Miles, 498 U.S. at 27, 32-33, 111 S.Ct. 317. But the Jones Act does not mention unseaworthiness or its remedies nor has any legislative history to that effect been urged or identified to us. 46 U.S.C. 30104. And "a remedial omission in the Jones Act is not evidence of considered congressional policymaking that should command our adherence in analogous contexts." Am. Export Lines, Inc. v. Alvez, 446 U.S. 274, 283-84, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980); see also id. at 282, 100 S.Ct. 1673 ("Nor do we read the Jones Act as sweeping aside general maritime law remedies."). Similarly, "no intention appears that [DOHSA] ha[d] the effect of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law." Moragne, 398 U.S. at 400, 90 S.Ct. 1772.
Estis goes on to argue that allowing seamen to recover punitive damages under general maritime law would create a number of anomalies. Though one acknowledged function of maritime courts is to reconcile anomalies that present themselves in the law, e.g., Moragne, 398 U.S. at 395-409, 90 S.Ct. 1772 (overruling The Harrisburg, 119 U.S. at 205, 7 S.Ct. 140 to remedy three maritime law anomalies), I perceive no anomalies.
Estis argues that this approach would allow plaintiffs to circumvent the pecuniary damages limitation in the Jones Act by pleading a claim for unseaworthiness. This is not an anomaly, as the Supreme Court has highlighted; it is a traditional feature of maritime law designed to protect seamen, the wards of admiralty.
Estis argues, similarly, that it would be anomalous for the law to allow different remedies for what amounts to the same cause of action. It is crucial to reiterate, however, that although similar, the Supreme Court has demonstrated that Jones Act negligence and unseaworthiness are "separate and distinct" claims with different elements and standards of causation. Chisholm, 679 F.2d at 62 (citation omitted); see also Usner, 400 U.S. at 498, 91 S.Ct. 514; Brunner, 779 F.2d at 298. Plaintiffs often bring claims for both causes of action, and the same act that results in liability for one will often result in liability for the other, but that is a common feature of the law. Relatedly, Estis argues that it would make little sense to permit the recovery of punitive damages for unseaworthiness, which imposes liability without regard to fault, while denying such relief on a Jones Act claim, which requires a finding of negligence. See Merry Shipping, 650 F.2d at 626. This argument especially overlooks that punitive damages recovery always requires a high culpability finding of willful and wanton conduct, whether the cause of action is for maintenance and cure or unseaworthiness. See id.; see also Stowe v. Moran Towing Corp., 995 F.Supp.2d 570, 578-79 (E.D.La.2014) (relying on McBride to note that "[o]f course, punitive damages are available as a remedy to seamen under the general maritime law claim of unseaworthiness" but dismissing the claim because the finding of willful and wanton conduct was "missing on this record").
The Majority Opinions emphasis on the deceased plaintiff in Miles risks the broadening error committed by the losing party in Townsend, corrected by the Supreme Court: "In Miles, petitioners argue, the Court limited recovery in maritime cases involving death or personal injury to the remedies available under the Jones Act and the Death on the High Seas Act
Moreover, the Supreme Court in Townsend explained that its general rule applies undiminished even when a general maritime claim is, as the Majority Opinion writes, "joined with" or "predicated on" a Jones Act claim. Maj. Op. 384, 389. "The fact that, in some cases, a violation of the duty of maintenance and cure may also give rise to a Jones Act claim, is significant only in that it requires admiralty courts to ensure against double recovery." Townsend, 557 U.S. at 423 n. 10, 129 S.Ct. 2561 (emphasis added). Under the Majority Opinions view, however, that an unseaworthiness claim is "joined with" a Jones Act claim is significant in another respect unidentified by the Supreme Court in Townsend: it precludes seamen from invoking the general maritime rule providing for punitive damages. Only by contravening Townsend's established rule, then, can Estis offer its position, adopted by the Majority Opinion, that Miles forecloses the availability punitive damages in an unseaworthiness injury case. The Majority Opinion concludes otherwise because "no one has suggested why [Miles's ] holding and reasoning would not apply to an injury case." Maj. Op. 388. This analysis has no post-Townsend support and, instead contravenes the Supreme Courts instruction by inappropriately placing the burden on the seamen to demonstrate that the general maritime rule announced in Townsend has been extinguished. As the Supreme Court in Townsend instructed, the burden squarely is on Congress: "respondent is entitled to pursue punitive damages unless Congress has enacted legislation departing from this common-law understanding." Townsend, 557 U.S. at 415, 129 S.Ct. 2561. Congressional silence therefore is oppositely dispositive, and even under the Majority Opinions broadened interpretation of
Like maintenance and cure, unseaworthiness was established as a general maritime claim before the passage of the Jones Act, punitive damages were available under general maritime law, and the Jones Act does not address unseaworthiness or limit its remedies. I would conclude that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness until Congress says they do not. See Townsend, 557 U.S. 404, 129 S.Ct. 2561.
JAMES E. GRAVES, JR., Circuit Judge, dissenting, joined by DENNIS, Circuit Judge.
I join Judge Higginson's dissent in full, and fully agree with its reasoning and conclusions. I write in support and amplification of the dissent's observation that extending the Miles pecuniary damages limitation to the injured crew members in this case compounds the error in the majority opinion.
Even under the majority's view that Miles v. Apex Marine, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) is the controlling case, the majority extends Miles much too far. There are four plaintiffs in this case: Haleigh McBride, as administratrix of the estate of Skye Sonnier, a seaman who was killed in the accident, and Saul Touchet, Brian Suire, and Joshua Bourque, seamen who were injured in the accident. All four assert causes of action based on unseaworthiness under general maritime law and negligence under the Jones Act. The majority concludes that punitive damages are unavailable for all four of the plaintiffs because, under the Miles approach, recovery for death or injury predicated on the Jones Act or unseaworthiness is limited to "pecuniary" damages, and punitive damages are non-pecuniary.
However, read with its proper scope, the pecuniary damages limitation recognized in Miles applies only to the wrongful death causes of action brought by McBride. It does not apply to Touchet, Suire, and Bourque, who are seamen asserting Jones Act negligence and general maritime law unseaworthiness causes of action on their own behalf. The pecuniary damage limitation was created in the context of wrongful death statutes, and by statute, history and logic, it applies only to survivors asserting wrongful death claims. This distinction is inherent in the text of the Jones Act itself, which allows a survivor or personal representative to sue in wrongful death only if the seamen dies from the injury. 46 U.S.C. § 30104; see Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 457 (5th Cir. 1985) (summarizing the actions available in maritime death and injury cases). If the seaman survives, he must bring his own action, and the pecuniary damages limitation created by wrongful death statutes and case law should be inapplicable.
It is well-recognized that the original source of the pecuniary damages limitation in maritime law is the Federal Employee Liability Act (FELA), which was incorporated into the Jones Act at its passage.
Supreme Court case law discussing FELA and the Jones Act show that the statutory limitation of recovery to "pecuniary" damages applies only to wrongful death claims brought by survivors. Prior to the passage of the Jones Act in 1920, the Supreme Court repeatedly held that FELA's pecuniary damages limitation applied to survivors asserting wrongful death claims, and distinguished those claims from claims brought by injured employees themselves. In Vreeland, the Court explained that the FELA wrongful death cause of action
227 U.S. at 69, 33 S.Ct. 192. In St. Louis, I.M. & S. Ry. Co. v. Craft, the Court again distinguished between the employee's own rights and that of his survivors. The Court explained that FELA
237 U.S. 648, 656, 35 S.Ct. 704, 59 L.Ed. 1160 (1915) (internal citation omitted) (citing Vreeland, 227 U.S. at 68, 33 S.Ct. 192; Louisville, E. & St. L.R. Co. v. Clarke, 152 U.S. 230, 238, 14 S.Ct. 579, 38 L.Ed. 422 (1894)); see also Gulf, C. & S.F. Ry. Co. v. McGinnis, 228 U.S. 173, 175-76, 33 S.Ct. 426, 57 L.Ed. 785 (1913). In Van Beeck v. Sabine Towing Co., the Court adopted this same proposition under the Jones Act. The Court explained that under FELA, as incorporated by the Jones Act,
300 U.S. 342, 346, 57 S.Ct. 452, 81 L.Ed. 685 (1937). The Van Beeck Court went on to explain the effect of an amendment to FELA, which provided that the decedent's own claims, including for pain and suffering, survived his death:
Id. at 347, 57 S.Ct. 452 (citations and internal quotation omitted).
These cases make it exceedingly clear that, at the time the Jones Act was passed, wrongful death claims that could be brought by a survivor were distinguished from an employee's own claims for his own injuries under FELA, and the pecuniary damages limitation applied only to the former. See Van Beeck, 300 U.S. at 346-47, 57 S.Ct. 452; St. Louis, I.M., 237 U.S. at 656, 35 S.Ct. 704; Vreeland, 227 U.S. at 69-71, 33 S.Ct. 192; see also Cook v. Ross Island Sand & Gravel Co., 626 F.2d 746, 749 (9th Cir.1980) ("Yet, while the Jones Act arguably may apply a pecuniary loss restriction to the personal losses of a decedent's beneficiaries, the Act does not apply a pecuniary loss restriction to the injuries of a decedent himself."); Deal v. A.P. Bell Fish Co., 728 F.2d 717, 718 (5th Cir.1984) (citing Cook for the proposition that "the pain and suffering of a drowning seaman is a compensable injury in a wrongful death action under the Jones Act").
Likewise, Miles is solely a wrongful death case, and its recognition of a pecuniary
Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404, 419, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009) (citations omitted and emphases added) (quoting Miles, 498 U.S. at 24, 111 S.Ct. 317). This is logical, at least pre-Townsend, given that the wrongful death cause of action was originally a creation of statutes that have long been read to limit survivors' recovery to their pecuniary losses. See Miles, 498 U.S. at 32, 111 S.Ct. 317; Vreeland, 227 U.S. at 69-71, 33 S.Ct. 192. But Miles says nothing indicating that it intended to recognize a pecuniary damage limitation that applies more broadly than the pre-Jones Act FELA limitation.
There is no similar statute, history, or logic limiting seamen's own recovery to their pecuniary losses. No authority indicates that when the Jones Act incorporated FELA, it expanded the pecuniary damage limitation to injured seamen asserting their own claims for their own injuries. Indeed, with this law as background, the Miles Court's recognition that "Incorporating FELA unaltered into the Jones Act, Congress must have intended to incorporate the pecuniary limitation on damages as well," Miles, 498 U.S. at 32, 111 S.Ct. 317, means something far more limited than the majority recognizes.
The contrast between the limited "pecuniary" damages that, under the majority's approach, are recoverable in wrongful death actions under FELA and the Jones Act, and the categories of damages that have always been available to seamen, further reveals the error in the majority opinion. The majority briefly implies that "pecuniary" damages are broadly equivalent to "compensatory" damages, which allows the opinion to reason that the pecuniary damage limitation bars recovery of non-pecuniary punitive damages. Although some courts have in the past sporadically
Miles adopted the Death on the High Seas Act (DOHSA) limitation of damages to "pecuniary loss sustained by the persons for whose benefit suit is brought." Miles, 498 U.S. at 31, 111 S.Ct. 317; see also Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). Both Miles and Higginbotham considered claims for loss of society damages brought by survivors in statutory wrongful death actions, and denied recovery because loss of society damages are non-pecuniary. Miles, 498 U.S. at 31-32, 111 S.Ct. 317; Higginbotham, 436 U.S. at 623-24, 98 S.Ct. 2010. However, neither case provides a definition of "pecuniary," beyond excluding loss of society. DOHSA restricts recovery to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." Higginbotham, 436 U.S. at 620, 98 S.Ct. 2010; 46 U.S.C. § 30303. This DOHSA limitation, however, applies only to "the decedent's spouse, parent, child, or dependent relative." 46 U.S.C. § 30302; see Bodden v. Am. Offshore, Inc., 681 F.2d 319, 331 (5th Cir.1982) (explaining that DOHSA apportions recovery of fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought, and that those injuries are "unique to the decedent's dependents and could not accrue until the decedent's death"). The statute does not provide that the pecuniary loss is equivalent to "fair and just" compensation for all losses, but merely provides for compensation for "pecuniary" losses in an action brought by a decedent's specified beneficiaries. 46 U.S.C. § 30303; see Higginbotham, 436 U.S. at 623, 98 S.Ct. 2010 (noting that DOHSA "has limited survivors to recovery of their pecuniary losses" (emphasis added)); see also Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116, 123, 118 S.Ct. 1890, 141 L.Ed.2d 102 (1998) (explaining that DOHSA "authorize[es] only certain surviving relatives to recover damages," and "limit[s] damages to the pecuniary losses sustained by those relatives").
Similarly, Vreeland — which again is the original source of the FELA limitation of recovery to pecuniary damages — defined "pecuniary" damages far more narrowly than the majority does, explaining that
227 U.S. at 71, 33 S.Ct. 192 (citation and quotation omitted). This understanding of "pecuniary" damages refers to whether a relative's or beneficiary's loss itself is a financial one that is estimable in monetary terms. In light of Vreeland's recognition that this pecuniary damage limitation applied only to survivors, id. at 68, 33 S.Ct. 192, this narrow definition is also quite logical. The survivors in Miles and Higginbotham could not recover loss of society because loss of society, unlike loss of support, is not primarily a financial loss. Miles, 498 U.S. at 31, 111 S.Ct. 317; Higginbotham, 436 U.S. at 623, 98 S.Ct. 2010. With respect to survivors' own recovery, the law had chosen to draw a line
It seems illogical that this principle would be extended to injured seamen seeking recovery for their own injuries. For example, pain and suffering is not a financial loss and is difficult to reduce to a monetary amount; thus it is not a pecuniary damage according to the definition incorporated into FELA. See id. Yet there can be no question that injured seamen can seek recovery for their own pain and suffering under the Jones Act and the general maritime law. E.g., Douse v. Global Pipelines Plus, 253 Fed.Appx. 342 (5th Cir.2007) (in Jones Act case, agreeing that injured seamen properly recovered "maintenance and cure through the present, future maintenance and cure, past and future pain and suffering, and past and future economic losses"); Deal, 728 F.2d at 718; Crador v. Louisiana Dep't of Highways, 625 F.2d 1227, 1230 (5th Cir. 1980) (noting that in Jones Act case, "In addition to loss of income the jury could award damages for pain and suffering and impact on one's normal life routines."). Indeed, in Miles itself, the plaintiff estate recovered for the pre-death pain and suffering of the decedent seamen. Miles, 498 U.S. at 22, 111 S.Ct. 317. By contrast, if we accept the majority's unexplained implication that pecuniary damages must be equivalent to compensatory damages, it is not clear why loss of society would not have been recoverable in Miles or Higginbotham, as it is not at all clear why loss of society damages are any less compensatory in nature than damages for pain and suffering. See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 586, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) (noting that "[u]nquestionably, the deprivation of [society] by wrongful death is a grave loss to the decedent's dependents," and that the case law which barred recovery for loss of society did so on the basis of it being non-pecuniary). When loss of society is not recoverable in wrongful death actions, it is because it is non-pecuniary, not because it is not compensatory. See id.
The original view of the pecuniary damages limitation expressed in cases like Vreeland must be understood as the definition incorporated into the Jones Act and accepted by the Miles Court. See Miles, 498 U.S. at 31-32, 111 S.Ct. 317. Thus, even if the Miles analysis is applied in this case, Miles's recognition of FELA's pecuniary damage limitation is simply adherence to this case law distinguishing between a survivor's wrongful death claims and ability to recover and the rights and recovery of an injured employee or seaman himself.
There is no justification for applying the pecuniary damage limitation, a creature of wrongful death statutes and case law, to injured seamen seeking recovery for their own injuries. Even if the pecuniary damage limitation is applicable in this case, it must apply only to McBride, a survivor of a decedent seaman asserting wrongful death claims, and not to Touchet, Suire, and Bourque, who assert unseaworthiness and Jones Act claims based on their own injuries. With Miles's pecuniary damage limitation inapplicable to the injured seamen, the dissent's Townsend-based approach is the correct analysis of the availability of punitive damages for Touchet, Suire, and Bourque.
Rather, a seaman's special status brings with it a specialized set of rights that both provides advantages in some regards and disadvantages in other regards. Accordingly, there is nothing inherently incongruous with the special status of seamen for seamen to have lesser remedies in some instances when they also are granted a unique right — backed up by the specter of punitive damages — to a virtually guaranteed maintenance and cure remedy. See also infra note 12 (noting better policy reasons for permitting punitive damages for a wrongful failure to provide maintenance and cure than in unseaworthiness cases).
The City of Carlisle is a maintenance and cure case that began when a sixteen-year-old apprentice seaman was injured while working on a ship. See 39 F. 807 (D.C.Ore.1889). While lowering the sail, the boy was struck by a "clew-iron," fracturing and depressing his skull. Id. at 810. Bedridden for weeks with limited personal attention, the boy was thereafter forced to work despite his partial paralysis. Id. at 810-11. When the ship reached port, "[t]he master failed and neglected to procure or provide any medical aid or advice for the boy ... and was contriving and intending to get rid of him as easily as possible." Id. at 812. Nor did the master send the boy home at the ship's expense. Id. Accordingly, the key issue at trial was the negligence of the boy during the operation with the sail, because negligence of a "gross character" would "forfeit [an injured seaman's] right to be kept and cured at the expense of the vessel": maintenance and cure. The court found that the boy's negligence was not of such a character and described his treatment on the ship as a "grievous wrong." Id. at 815. Reinforcing that The City of Carlisle concerns maintenance and cure, the court assessed damages for medical care and wages "until his return home." Id. at 817.
The Troop is another maintenance and cure case. See 118 F. 769 (D.C.Wash.1902). A sailor fell from high on a ship, severely fracturing the bones of his left arm and right thigh. Id. at 769. Although the ship was only six miles off shore, it did not return to port for the seaman's medical care, but continued on its journey for 36 days. Id. The captain applied splints himself, put the seaman in a bed too small for his injuries to heal properly, and assigned the ship's steward to look after the man, a crewman too busy to look in more than every other day. Id. at 769-70. The court rejected causes of action based on unseaworthiness or negligence. "I hold that no liability, except for expenses and wages, attaches to the ship or owners for a personal injury to a seaman happening while he is in the service of a British ship, in consequence of the negligence of the captain...." Id. at 770. Damages were available based on the "sixth article of the laws of Oleron," which sets out the obligation of maintenance and cure, not unseaworthiness. Id. at 771.
Nor do Swift v. The Happy Return, 23 F.Cas. 560 (D.Pa.1799) (No. 13,697), The Noddleburn, 28 F. 855 (D.Or.1886) or The Childe Harold, 5 F. Cas. 619 (S.D.N.Y.1846) (No. 2676), save the day for McBride. Swift, which arose long before courts recognized an independent cause of unseaworthiness, deals with a claim for wages. 23 F. Cas. at 561. The discussion of "atrocious" food in Swift that McBride points to examines when the ship has an obligation to pay a seaman's boarding expenses in a foreign port, and the later discussion of the need to provide medical care to a seaman again examines the ship's obligations since the Laws of Oleron to provide maintenance and cure. Id. at 561 & n. 2. The Noddleburn concerns a claim by a British seaman against a British vessel and applies British law to analyze whether the fellow servant rule (or the vice principal exception to the fellow servant rule) applies when a seaman falls from a defective rope that the ship's officer was aware of. 28 F. at 855-57. Moreover, a punitive damages claim was not awarded, and the court's only discussion of a possibly enhanced remedy came in the context of poor medical care after the injury. Id. at 860. Finally, The Childe Harold centered around a crew that claimed violation of a statutory requirement to sail with sufficient amounts of "wholesome ship-bread" for a voyage. 5 F.Cas. at 619. The statute provided recovery only if the ship had set sail with insufficient amounts of good bread, not if the bread subsequently rotted on the voyage. For the latter, sailors were "left to their legal remedies, as in other cases of maltreatment, not provided for by statute." Id. at 620. And what kind of damages could be recovered for these non-statutory claims? They could leave the ship without penalty and the owner would have to pay them wages for the voyage. Id.
Id. at 508 n. 21, 111 S.Ct. 317 (citation omitted). This sentiment was echoed in Townsend: Although Congress ... is free to say this much and no more, Miles, 498 U.S., at 24, 111 S.Ct. 317 (internal quotation marks omitted), we will not attribute words to Congress that it has not written. Townsend, 557 U.S. at 424, 129 S.Ct. 2561.
Id. at 414 n. 4, 129 S.Ct. 2561 (internal citations omitted). Accordingly, Townsend makes clear that in the face of historical dispute, the default rule of punitive damages applies.
The Concurring Opinion of 5 colleagues (Concurring Op.), however, finds Townsend to be a thin strand offering only minimal support. Concurring Op. 392. But Justice Thomas did not limit his historical review to maintenance and cure claims; the Court instead clarified that [t]he general rule that punitive damages were available at common law extended to claims arising under federal maritime law. Id. at 411, 129 S.Ct. 2561 (section II.B of the opinion). Respectfully, the Concurring Opinions criticism that I should not blithely assume that punitive damages were available for claims arising under the general maritime law is directed at Section II.B of Justice Thomass majority opinion, a point he deemed central to resolving this case. Id. at 414-15, 129 S.Ct. 2561; Concurring Op. at 394.
