EDLA Splits on Recovery of Nonpecuniary Damages in Maritime Cases Signaling Issue Potentially Ripe for Circuit Review

EDLA Splits on Recovery of Nonpecuniary Damages in Maritime Cases Signaling Issue Potentially Ripe for Circuit Review


In recent years, much has been written about when a maritime plaintiff, including particularly Jones Act seamen, may recover so-called “non-pecuniary” damages against different categories of defendants. These damages include loss of society, loss of consortium, and punitive damages. Their availability has the potential to greatly increase the value of a given case in largely unpredictable ways, making their potential recovery a source of strife for the defense bar. Recently, sections of the United States District Court for the Eastern District of Louisiana split on the specific issue of whether a Jones Act seaman may recover non-pecuniary damages against a non-employer third party, like a vessel owner. Given the traction this issue has received lately, and the clear split, the issue seems nicely teed up for intervention by the Fifth Circuit whose ruling could have broader implications nationally given that court’s stature in the maritime realm.

In order to understand the nature of the current split, a bit of background is in order. In Miles v. Apex Marine Corp., 498 U.S. 19 (1990), the Supreme Court ruled that the mother of a Jones Act seaman killed by a fellow crew member could not seek loss of society damages under general maritime law. Miles has since been relied upon by lower courts for two chief principles: (1) that the general maritime law does not permit recovery of nonpecuniary damages absent clear authority to the contrary, and (2) the need to interpret statutory and general maritime law claims with an eye toward uniformity (a/k/a the Miles “uniformity principle”).

In light of the above, Miles was largely understood to put the proverbial kibosh on nonpecuniary recovery under the general maritime law—an across-the-board approach that would have achieved Miles’s emphasis on uniformity. Indeed, this idea was reinforced when the Fifth Circuit, in Scarborough v. Clemco Indus., 391 F.3d 660, 668 (5th Cir. 2004), applied Miles to hold that a Jones Act seaman (or his survivors) cannot recover nonpecuniary damages from a non-employer third party.

Nevertheless, the issue was complicated a few years later when the Supreme Court decided Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009). In Townsend, the Supreme Court ruled that punitive (a species of nonpecuniary) damages are available to seamen in claims against their employers for willful or wanton failure to pay maintenance and cure. The Court’s reasoning hinged largely on the fact that both punitive damages and maintenance and cure predated the Jones Act. That Act did not address either remedy, thereby leaving them intact. (Interestingly, and by contrast, the Miles court had relied on the Jones Act’s limitation to pecuniary recovery to conclude that nonpecuniary damages were unavailable in a seaman’s negligence claim.) Townsend muddied the waters in that Miles could no longer be interpreted as a broad bar on nonpecuniary recovery under general maritime law.

With this trilogy as their backdrop came the recent Louisiana Eastern District cases to split on this issue. In Collins v. A.B.C. Marine Towing, No. 14-1900, 2015 wl 5254710 (E.D. La. Sept. 9, 2015) (Fallon, J.), Judge Fallon of the Eastern District ruled that the survivor of a non-seaman could claim punitive damages in a claim brought under the general maritime law against a non-employer third party. In Judge Fallon’s view, the reasoning of the Fifth Circuit’s Scarborough decision (denying nonpecuniary recovery by a seaman’s survivors against a non-employer) had been implicitly overruled by the Supreme Court’s later Townsend decision. In other words, Townsend clearly showed that Miles did not operate as a total bar to nonpecuniary recovery under the general maritime law in all circumstances.

One month later, Judge Morgan of the same court, ruled in Howard v. Offshore Liftboats, LLC, No. 13-4811, 2015 WL 7428581 (E.D. La. Nov. 20, 2015), that a seaman may not recover punitive damages against a non-employer third party under the general maritime law. Although noting that Judge Fallon had recently reached the opposite conclusion, Judge Morgan noted that Townsend applied by its terms only in the maintenance and cure context. Further she noted that the Fifth Circuit’s Scarborough decision had been cited in a later Fifth Circuit ruling (McBride v. Estis Well Service, L.L.C., 768 F.3d 382 (5th Cir. 2015) (en banc)). It therefore remained good law, and binding on the district court, until overruled. Judge Morgan affirmed her position on this issue with a similar ruling later the same month in Lee v. Offshore Logistical Transports L.L.C., No. 15-2528, 2015 WL 7459734 (E.D. La. Nov. 24, 2015).

The split among sections of the Eastern District makes it clear that the recoverability of nonpecuniary damages under the general maritime law remains far from settled. Although Miles signaled a possible total bar on such recovery, the issue was clouded significantly by the later Townsend ruling. Given that district judges of the same court have reached expressly contrary views on the topic, it seems likely we have not heard the last of this issue and that it is ripe for appellate review.

Submitted by Patrick B. Reagin, Liskow & Lewis

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