Here’s a recent maritime law development significant to all concerned.
Seamen injured or killed on the job, as well as their unions, families and lawyers, hail it as a long-overdue incentive to maritime employers to make their vessels and related workplaces safe. It also provides that coveted pot of gold that can make the maritime claimant side of the equation rich.
Vessel owners, as well as their charterers, insurers, investors and lawyers, condemn it as yet another risk and expense item in a business already dancing on the line of cost prohibition in economically trying times. And enough is accomplished by existing pro-plaintiff law, advancing technology developments, industry practice, and the Coast Guard to incentivize safety. What good does making injured seamen we already take care of, as well as their lawyers, rich?
Lawyers, law professors and authors of light-hearted transportation law columns view it as an interesting aspect of a venerable field of law’s evolution. It’s the coming together, or perhaps collision, of age-old concepts grounded in common law with more modern statutory schemes evincing Congress’s intentions.
At issue in a maritime personal injury case pending in the U.S. District Court for the District of Hawaii is the extent of damages recoverable in a loss governed by the Jones Act and implicating the vessel unseaworthiness doctrine. The Jones Act, which extended legal advantages and presumptions injured railroad workers enjoy in litigation to seafaring maritime employees, provides for recovery of pecuniary damages only. In other words, punitive damages, as well as lost consortium and certain other non-economic losses, can’t be awarded under the statute.
But violation of vessel owners’ essentially strict liability obligation to provide their workers safe, waterborne workplaces has long been the basis for awards of less tangible and quantifiable categories of damage, including “punies,” as is said in colloquial law-speak. Over the past couple centuries, much maritime common law has been “codified,” or stated succinctly in federal statutes evincing Congress’s intentions and interpretations. Other principles remain active as judge-made common law. Sometimes law emanating from these differing sources are at issue concurrently, as is the case when a Jones Act seaman is injured by an onboard vessel condition that is not reasonably fit for its intended purpose.
That’s what commercial scuba diver, and therefore Jones Act seaman in the given circumstance, Michael Wagner encountered when he sued his employer, Kona Blue Water Farms, for an allegedly permanent inner ear condition resulting from a defective or inadequate vessel appurtenance. He alleged that Kona Blue was liable both under the Jones Act and for the unseaworthy condition, claiming punitive damages in the latter cause of action.
Judge Michael Seabright issued an order denying Kona Blue’s motion to dismiss the punitive damages claim. The order goes through a sound analysis of the interplay between maritime statutory and common law themes that reveals the complexity and inevitable confusion concurrent doctrine produces. That analysis concluded that punitive damages, while not recoverable under the Jones Act, may be awarded pursuant to a finding of vessel unseaworthiness. It centered around whether the 1987 Ninth Circuit Court of Appeals decision in Evich v. Morris remains “good law” after the U.S. Supreme Courts’ 2009 ruling in Atlantic Sounding Co. v. Townsend tinkered with the High Court’s 1990 determination in Miles v. Apex that prohibited recovery of damages related to lost society in the wrongful death context.
Evich held that punitive damages are indeed recoverable in vessel unseaworthiness cases. Townsend ruled that a seaman may recover punies based on his/her employer’s failure to pay maintenance and cure (i.e., vessel-quality room and board, plus medical costs, up through the time of maximum medical improvement after an injury), which is a fundamental right injured seafarers enjoy.
Generally, punitive damages are recoverable under the general maritime law, that body of salty common law which passed from England to the States as part of the foundation of our legal system, and which has its roots going back between centuries and millennia depending on the topic. Miles confirmed that non-pecuniary damages are unrecoverable under the Jones Act; and subsequent decisions around the country interpreted this to mean that punies are off limits in any injury or death case. Consequently, most plaintiff seamen stopped seeking punitive damages in their lawsuits against employers, even when they had unseaworthiness claims as well.
But Judge Seabright saw things differently. He reasoned that punitive damages have been awarded in maritime cases (remember the Exxon Valdez litigation?) well after Miles; the Jones Act is not an injured seaman’s exclusive basis of recovery; and the Jones Act’s goal is “to enlarge that protection [of seaman], not to narrow it.” Townsend was the High Court’s opportunity to issue a blanket prohibition of punitive damages if that were its intention. Thus, Evich remains in force, and Mr. Wagner may get a huge pay day if he prevails in his lawsuit.
What does this mean? Certainly we should expect to see west coast maritime personal injury plaintiff’s more frequently allege vessel unseaworthiness claims, and ask for punitive damages. While the precedential effect of the District of Hawaii’s decision is limited, claimants and their counsel may make similar arguments in other parts of the country in the hopes circuit courts of appeal and, perhaps, the Big Nine, will agree with the Aloha State’s proclamation. The added exposure could have significant impacts on insurance premiums, and could prompt vessel groups to lobby for legislative change. Maritime law is age old, but its dynamics cannot be ignored.
Ref: Wagner v. Kona Blue Water Farms, LLC, Order issued September 13, 2010, pending in the U.S. District Court for the District of Hawaii under Civ. No. 09-00600 JMS/BMK, available on Westlaw at 2010 WL 3566730; Evich v. Morris, 819 F.2d 256 (9th Cir. 1987); Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009); and Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
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