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Punitive Damages and Unseaworthiness

SSM Roundel

Steamship Mutual

Published: January 16, 2017


The issue of punitive damages has been discussed in earlier articles: 

Punitive Damages - Punishing Times, February 2014

U.S. – Are Punitive Damages in Maintenance and Cure Cases to be Capped? June 2010  

On February 22nd 2016 The King County Superior Court dismissed Allan Tabingo’s claim for punitive damages on the basis that such damages are not recoverable under the general maritime law doctrine of unseaworthiness. Subsequently the plaintiff successfully received permission to appeal from the Supreme Court of the State of Washington who, on June 28th 2016, contrary to the U.S Fifth Circuit’s decision in McBride v Estis Well Service (2013), granted the request for a review of the Trial Court’s decision.

The crew member had been injured whilst working for American Seafoods as a trainee deckhand on-board the “American Triumph”. During routine operations Tabingo had been pushing fish from the nets into the hatches. Whilst his hand was near the hinge a fellow crew member mistakenly pushed the button which closed the hatch. The vessel’s crew were unable to prevent the closing of the hatch due to a defective hydraulic handle. This handle had allegedly been broken for approximately two years. The crew member injured his hand, resulting in the amputation of two of his fingers.

The plaintiff filed suit pursuing a claim for punitive damages on the basis that the defective hydraulic handle rendered the vessel unseaworthy and that such unseaworthiness was as a result of wilful neglect on the part of the ship-owner.

By way of some background, the U.S Supreme court, in Miles v. Apex Maritime Corp (1990), had held that when the Jones Act was enacted in 1920 it incorporated the substantive provisions of the Federal Employers Liability Act (“FELA”) which protected railroad workers from employer negligence. The Jones Act did not specify the type of damages seamen can recover from their employers, but simply stated that it incorporated all rights and remedies available under FELA. FELA did not prescribe remedies either, but pre-1920 common law held that FELA only allowed plaintiffs to recover pecuniary (actual loss) damages and not punitive ones. It was held that federal maritime law dictates that the type of damages available to a seaman under the doctrine of unseaworthiness should be the same as available under the Jones Act and as punitive damages are not available in the latter nor should they be for the former.

Following on from this, in the case of Townsend v Atlantic Sounding 2009 (“Townsend”), it was held that a seaman could recover punitive damages for his employer’s wilful failure to pay maintenance and cure.

 After considering American Seafood’s motion the King County Superior Court granted them partial summary judgement, dismissing the claim for punitive damages. The decision was based on the above rational; that damages under the doctrine of unseaworthiness must be the same as those under the Jones Act, where no punitive damages are allowed. The Court held that damages recoverable as a result of under unseaworthiness should not extend beyond those allowed by Congress under the Jones Act. Whilst punitive damages are allowed in maintenance and cure claims this is only because Congress did not address or define these remedies in the Jones Act.

However, on the claimant’s request for review the Washington State Supreme Court has accepted direct discretionary review of the case raising the issue of whether punitive damages are available under the general maritime doctrine of unseaworthiness. The commissioner, on behalf of the Washington State Supreme Court, found that the state court may have been in error on the basis that some prior cases support the view that the general punitive damage rule would have been applied to unseaworthiness cases and nothing in Townsend suggests the principles identified there should not extend to unseaworthiness claims.

Of potential concern to ship-owners are the commissioner’s comments and interest in the Townsend decision which held that the Jones Act did not eliminate pre-existing remedies available to seaman, such as the separate common law cause of action based on the right to maintenance and cure. The commissioner stated that “there is no apparent reason the general principles identified in Townsend would not extend to unseaworthiness claims….” and that the Jones Act was not enacted to narrow a seaman’s remedies but rather was meant to correct obvious flaws that existed which prevented them from seeking damages where their employer had been negligent. Therefore, if punitive damages for unseaworthiness pre-dated the Jones Act then such remedies should remain on the basis that Congress never intended the Jones Act to narrow a seaman’s existing remedies.

American Seafood’s response to Tabingo was that the court should defer to congress when it comes to defining a seaman’s remedies. The logic being that if a court did allow punitive damages under general maritime law it would be supplanting congress’s judgement under the Jones Act and this would be inconsistent with the courts place in the constitutional scheme.

American Seafood’s also argued that when the Jones Act was enacted it incorporated FELA and that since 1908 there had not been a single case in which punitive damages have been allowed. The rule has therefore been that federal maritime law mandates that the type of damages available to a seaman under the doctrine of unseaworthiness should be the same as those under the Jones Act. This being on the basis that unseaworthiness and negligence are but alternative grounds of recovery for a single cause of action and a seaman is only entitled to one indemnity by way of compensatory damages.

Ultimately if American Seafoods take the position that the Washington Supreme Court should uphold the Trial Court’s decision. They reason that when Congress enacted the Jones Act by incorporating FELA they were aware of the state of incorporated FELA law, including FELA’s prohibition on punitive damages and so the Courts should respect this.

In the event the Washington Supreme Court rule in favour of the plaintiff and finds that punitive damages are available as a matter of law in unseaworthiness actions this will create conflict and diversity between States, specifically the Fifth Circuit, on this issue. Ultimately this might result in the US Supreme Court intervening and clarifying the law which will then be binding on all states.

The appeal to the Supreme Court of the State of Washington is set to be heard on January 17th 2017.


Article by Georgia Lansbury

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