The principal 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. Answering in the affirmative, we REVERSE and REMAND for further proceedings.
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
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 of action for personal injury resulting from employer negligence, The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903), nor did it permit wrongful death or survival claims on behalf of seamen killed during the course of their employment, The Harrisburg, 119 U.S. 199, 204-14, 7 S.Ct. 140, 30 L.Ed. 358 (1886), overruled by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
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. Unit B Jul. 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
Miles addressed the availability of loss of society damages to non-seamen under general maritime law, not punitive damages, but the general principle appearing to underlie its analysis — that if a category of damages is unavailable under a maritime cause of action established by statute, it is similarly unavailable for a parallel claim brought under general maritime law — began to be extended by lower courts to cover punitive damages claims by seamen. See, e.g., Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1454-59 (6th Cir.1993).
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. "Its 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 election to make." Id. at 416, 129 S.Ct. 2561. As further evidence that punitive damages "remain[ed] available in maintenance and cure actions after the [Jones] Act's passage," the Court pointed out that in Vaughan v. Atkinson, 369 U.S. 527, 529-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), it "permitted the recovery of attorneys' fees [as a punitive sanction] for the `callous' and `willful and persistent' refusal to pay maintenance and cure." Townsend, 557 U.S. at 417, 129 S.Ct. 2561.
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, 129 S.Ct. 2561. 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, 129 S.Ct. 2561. 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 parties' 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, 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. That is, punitive damages are available only where there is no remedial overlap between general and statutory maritime claims. In its view, punitive damages were available in Townsend, but not Miles, because the Miles plaintiffs sought redress for physical injury and wrongful death, harms compensable under both general and statutory maritime law, whereas the Townsend plaintiffs sought redress for harm caused by wrongful deprivation of maintenance and cure
To the extent that its 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 the 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, its guidance on how to apply the Miles uniformity principle remains intact.
We 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 Court's other decisions interpreting the statute." Id. at 424-25, 129 S.Ct. 2561. 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 we 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 going forward: 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 first 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.
We 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 770-71, 773). It is less clear whether punitive damages were awarded for unseaworthiness violations during that period. The parties do not brief this point. This distinction, if factually supported, 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 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 we 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. 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. Given that "the absence of federal legislation constraining punitive damages does not imply a congressional decision that there should be no quantified rule," Baker, 554 U.S. at 508 n. 21, 128 S.Ct. 2605, it follows that the matter remained open after the Jones Act and DOHSA. We resolved it in Merry Shipping when we held that punitive damages were an appropriate remedy to effectuate the policies of general maritime law, a view shared then and since by other circuit courts.
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.
Estis argues that our decision 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. Though they are similar, Jones Act negligence and unseaworthiness are "separate and distinct" claims with different elements and standards of causation. Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.1982) (citation omitted); Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 452 (1st Cir.1996). It is true that plaintiffs often bring claims for both causes of action, and that 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.
Finally, 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 overlooks that punitive damages recovery always requires a finding of willful and wanton conduct, whether the cause of action is for maintenance and cure or unseaworthiness. See id. Punitive damages differ in that way from other types of non-pecuniary damages, such as the loss of society damages addressed in Miles. In light of that distinction, we previously have rejected this
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. We conclude, therefore, that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness. See Townsend, 557 U.S. 404, 129 S.Ct. 2561.
46 U.S.C. § 30104.
46 U.S.C. § 30302.
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.
