Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend

Summary

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I. Introduction. II. Background: Five Conceptual And Analytical Tools. A. The Seaman's Trilogy. B. The Distinction Between Compensatory and Punitive Damages. C. The Distinction Between Pecuniary Compensatory Damages and Non-Pecuniary Compensatory Damages. D. The Two Types of Fatal-Injury Litigation. E. The Distinction Between Causes of Action and Remedies. III. A Short Version Of The Maritime Punitive Damages Story. IV. An Analysis Of Miles. A. The Holdings and Reasoning of Miles. 1. Facts and Holding: Punitive Damages Were Not at Stake. 2. The Plaintiff's Two Causes of Action. 3. The Plaintiff's Two Fatal-Injury Remedies. B. Refuting the Revisionist Version of Miles. 1. Punitive Damages Are Easily Characterized as Pecuniary. 2. Miles Does Not Rule Out All Non-Pecuniary Damages For Seamen. V. An Analysis Of Baker. A. Baker Reaffirmed Maritime Law's Recognition of Punitive Damages. 1. Baker Awarded Maritime Punitive Damages. 2. Baker Rests on Deep History. B. Baker Implies that Seamen Are Entitled to Seek Punitive Damages. VI. Issues And Arguments Before The Supreme Court In Townsend. A. Seamen Have Always Had the Right to Seek Punitive Damages. B. The Right of Seamen to Seek Punitive Damages Seemed Especially Clear in the Maintenance and Cure Context. 1. Maintenance and Cure Law Aims at Protecting Seamen While Avoiding Litigation. 2. Well Before the Jones Act Was Enacted (in 1920), the Availability of the Punitive Damages Remedy in Maintenance and Cure Cases Was Settled Law. 3. The Jones Act Did Not Take Away Any Pre-Existing Seamen's Remedies. 4. Vaughan v. Atkinson Supports the Availability of Punitive Damages in Maintenance and Cure Actions. 5. The Two Fundamental Policies of Maintenance and Cure Law Require an Effective Penalty. C. Baker's Analysis of Statutory Preemption Undercuts the Revisionist View of Miles. D. Other Aspects of Baker Also Show that Miles Does Not Diminish the Maritime Punitive Damages Remedy. E. The Revisionist View of Miles Is Inconsistent with All of the Supreme Court's Jurisprudence Treating Congressional Preemption of Federal Common Law. F. FELA Should Not Impair Maritime Punitive Damages. G. Seamen Need and Deserve the Protection of Punitive Damages. VII. The Townsend Opinions. VIII. Open Questions. IX. Conclusion.

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Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend

W. Page Keeton Chair in Tort Law and University Distinguished Teaching Professor, University of Texas at Austin. An earlier version of this Article was presented to the Seventh Judge Alvin B. Rubin Conference on Maritime Personal Injury Law, LSU Law Center, March 6, 2009. The views expressed here are based on years of academic scholarship. But the reader should know that I have represented the seaman's side of the punitive damages issue in several cases. Most recently, I wrote the Brief of American Association for Justice as Amicus Curiae in Support of Respondent in Atlantic Sounding Co., Inc. v. Townsend, infra note 3. Portions of this Article draw on that brief.

I. Introduction

In 1997 I wrote that "[p]unitive damages are . . . rapidly disappearing from maritime personal injury law, and it is hard to see how they can long survive in property damage cases."1 It turns out this was a premature obituary. The United States Supreme Court's 2008 decision in Exxon Shipping Co. v. Baker upheld an award of maritime punitive damages to commercial fishermen suing an ocean polluter for loss of livelihood,2 and the brand new decision in Atlantic Sounding Co. v. Townsend has now held that injured seamen are entitled to seek punitive damages against employers who willfully or wantonly flout their obligation to provide maintenance (room and board) and cure (medical care).3 This Article will explore this unfolding maritime punitive damages story.

II. Background: Five Conceptual And Analytical Tools

Understanding this Article will be eased and enriched by reviewing the following five concepts.

A. The Seaman's Trilogy

Under general maritime law, ill and injured seamen have a "trilogy" of rights against shipowners and employers.4 First, when a seaman falls ill or is injured while in the service of the ship, the seaman's employer immediately owes the seaman maintenance (room and board) and cure (medical care).5 If the employer fails to honor these obligations, the seaman can sue to recover what is due. If the employer's failure is negligent and causes the seaman to sustain additional injury, illness, or pain, the seaman can recover compensatory damages. If the employer's failure was more egregious than that, traditionally the seaman could additionally recover attorneys' fees and punitive damages.6

Second, when a seaman is injured by the operational unfitness of the ship, the seaman can sue in tort for unseaworthiness. Like the right to maintenance and cure, the right to sue for unseaworthiness emanates from general (nonstatutory) maritime law.7

Third, when a seaman is injured by workplace negligence, the seaman has a statutory cause of action in tort against the employer under the Jones Act.8

Historically, conceptually, and functionally, the unseaworthiness and Jones Act tort actions are "Siamese twins."9 The much older maintenance and cure action does not derive from tort principles and is something like a first cousin to the other two.10

B. The Distinction Between Compensatory and Punitive Damages

This Article draws a clean distinction between compensatory damages and punitive damages. Compensatory damages aim at reimbursing losses. Punitive damages aim at punishing reprehensible behavior, teaching the perpetrator not to do it again, and admonishing others never to do it.11

C. The Distinction Between Pecuniary Compensatory Damages and Non-Pecuniary Compensatory Damages

In traditional damages analysis, compensatory damages fall into two subcategories. Pecuniary compensatory damages are those that are measurable in money, at least notionally. In personal injury cases, the standard pecuniary categories of compensatory damages are lost earnings and earning capacity and medical and related expenses. In wrongful death litigation, the standard pecuniary categories of compensatory damages are loss of support and loss of services.

Non-pecuniary compensatory damages are those that are not measurable in money, although courts award money to assuage the losses. In personal injury cases, the non-pecuniary categories of compensatory damages are pain and suffering and hedonic (loss of enjoyment of life) damages. In wrongful death cases, the standard non-pecuniary category of compensatory damages is loss of society (companionship, consortium).12

D. The Two Types of Fatal-Injury Litigation

The distinction between two types of fatal-injury litigation is basic in tort law, but it is often confused or elided. Wrongful death actions seek to recover the victim's family's losses.13 Survival actions seek to recover on behalf of the victim's estate "whatever . . . the deceased . . . would have . . . been able to sue [for] at the moment of . . . death-for example, for his pain and suffering, loss of wages, and medical expen...

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