AuthorCrais, Arthur A., Jr.
  1. Introduction 2 A. The Rise of Punitive Damages Under General Maritime Law in the Twentieth Century 3 B. The Fall of Punitive Damages Under General Maritime Law in the Twentieth Century 6 II. What Controls Statutory or Decisional Law? 8 A. Moragne v. States Marine Lines, Inc. and Sealand Services, Inc. v. Gaudet 8 B. Mobil Oil Corp. v. Higginbotham and Miles v. Apex Marine Corporation 10 III. The Resurrection of Punitive Damages 13 A. Exxon Shipping Co. v. Baker 13 B. Atlantic Sounding Co. v. Townsend IV. The Nail in the Coffin? A. Dutra Group v. Batterton V. Punitive Damages in Maritime Law-- Pending Issues Left Unresolved A. What is the standard for gross negligence? B. What is the standard to impute gross negligence to the employer or principle? C. Punitive Damages for Personal Injury and Death--Status and Location 1. Seamen v. Third Parties--Personal Injury and Death Claims 2. Application of State Law to Punitive Damage Claims in Territorial Waters 3. Personal Injury and Death Claims on the High Seas D. Is there a standard for excessive punitive damages? E. Punitive Damages for Other Claims 1. Marine Pollution 2. Punitive Damages for Damage to Property other than Pollution 3. Breach of Contract Claims VI. Conclusion--The Future of Punitive Damages - A Quixotic Quest for A Legal Unicorn? I. Introduction

    Recovery of punitive damages under General Maritime Law has become a contentious issue during the final thirty years of the Twentieth Century and at the turn of the Twenty-First Century. The recent decision of the Supreme Court of the United States in Dutra Group v. Batterton (1) has put to rest, at least for the time being, the question of whether punitive damages are available to seamen (2) injured or killed due to the alleged unseaworthiness of a vessel. But, the purpose of this article, to paraphrase Marc Antony in Shakespeare's Julius Caesar, (3) is neither to praise nor to bury exemplary damages. Punitive damages for gross negligence or willful misconduct under maritime law are now established as a general proposition but apparently only when based on historical precedent. (4) Opponents must accept it as a fait accompli despite their protestations that the foundation on which the Supreme Court based its decision in Exxon Shipping Co. v. Baker (5) as well as Atlantic Sounding Co., Inc. v. Townsend (6) may be questionable. They now applaud the result in Batterton. Likewise, plaintiffs' counsel derides the Batterton decision as a rebuke to the principle and reasoning of Townsend and a step in the wrong direction. The remaining questions are to what extent will punitive damages remain viable for tort claims under maritime law? For which types of claims may a party recover punitive damages? What is the standard to impute gross negligence to the principal? Is there a proper standard to govern excessive punitive damages?

    This essay will first examine the emergence of punitive damages in General Maritime Law in the late Twentieth Century (7) and its equally abrupt disappearance. It will then follow with a review of the resurrection and present state of punitive damages in certain tort claims arising under General Maritime Law as a consequence of the 2008 EXXON VALDEZ (8) decision and subsequent extension to seamen's claims for maintenance and cure only one year later in Atlantic Sounding Co., Inc. v. Townsend. (9) The next section will briefly analyze the Supreme Court's recent decision in Dutra Group v. Batterton (10) and follow with a discussion of what questions Batterton answers also raises. The penultimate section will explore the anomalies which exist in the recovery of punitive damages, and areas of tort claimants can likely still recover punitive damages. Finally, a prediction will be made about the ultimate future of punitive damages for seaman and other claimants.

    1. The Rise of Punitive Damages Under General Maritime Law in the Twentieth Century

      The first reference to punitive damages in a maritime context arose in what is now considered the fountainhead for the recovery of punitive or exemplary damages in a maritime tort, The Amiable Nancy. (11) Though ostensibly the primary issue in that case was the imputation of the egregious acts of the officers and crew in seizing another vessel as maritime prize, (12) the decision is considered the genesis for recovery of punitive damages under maritime law. (13) Despite the majority's statement in Townsend that punitive damages extended to maritime claims, (14) suits for punitive damages under maritime law were apparently rare if at all clearly discernible in the cases reported. (15)

      Claims for punitive damages in maritime law did not clearly arise again until 1969 in United States Steel Corporation v. Fuhrman. (16) Three crew of the U.S. Steel vessel were killed and others injured in a collision in the Straits of Mackinac in heavy fog. (17) The trial court held that U.S. Steel was liable for punitive damages under the Jones Act. (18) The Sixth Circuit reversed not on the basis that punitive damages were unavailable under the Jones Act but on the basis that even if the actions of the captain were sufficient to warrant punitive damages, those actions could not be imputed to the owner of the vessel. (19) The case, like The Amiable Nancy, is one of imputation of gross negligence to the vessel owner. Nonetheless, the court acknowledged that punitive damages were available in a Jones Act claim.

      The issue of the recovery of punitive damages for a maritime tort arose three years later in the Second Circuit in the case In re: Marine Sulphur Queen. (20) The vessel, an oil tanker which had been converted into a vessel to carry molten sulfur, was lost at sea along with the entire 39 member crew. (21) The personal representatives of the deceased seaman filed suits under the Jones Act (22) for negligence of the employer, unseaworthiness, and the Death on the High Seas Act. (23) Punitive damages were sought, but it is unclear whether this was based on the unseaworthiness claim. Though the trial court found that the vessel was intrinsically unseaworthy, (24) the claim for punitive damages was briefly referred to and dismissed, with the trial judge noting "the evidence, in this case, does not justify any assessment of punitive damages." (25) The Second Circuit affirmed, stating there was no evidence to support a finding of gross negligence or "reckless or wanton misconduct." (26) It does not appear that the defendant sought dismissal of the punitive damage claim on the basis that the Death on the High Seas Act restricts recovery in a wrongful death suit to pecuniary damages. (27)

      The availability of punitive damages under General Maritime Law for tortious conduct finally came to a head in the Fifth Circuit's decision In re: Complaint of Merry Shipping. (28) The tug ROYAL LADY sank in Port Royal Sound off the coast of South Carolina within three nautical miles of the coast, resulting in the deaths of three of the four crew members. (29) The beneficiary of one of the seamen sought to recover under the Jones Act for negligence of the employer and under General Maritime Law for breach of the warranty of seaworthiness seeking pecuniary, non-pecuniary, and punitive damages. (30)

      The Fifth Circuit panel noted that under the unseaworthiness claim, there were two actions, namely the survivor's action and the wrongful death action. (31) The issue before the court was whether punitive damages could be recovered under maritime law for breach of the warranty of seaworthiness and the Jones Act. (32) After surveying the case law, the court determined that punitive damages are recoverable under general maritime law for unseaworthiness. (33) "Punitive damages should be available when a shipowner has willfully violated the duty to furnish and maintain a seaworthy vessel." (34) Judge Roney, speaking for the unanimous panel, in reasoning which would prove to be prescient and reflected by Justice Thomas in Townsend, stated that the claim for breach of the warranty of seaworthiness has no statutory basis or restraints on recovery such as the Jones Act. (35) It is a claim under general maritime law which has allowed recovery for nonpecuniary and punitive damages. (36) The court held punitive damages were available for "willful and wanton misconduct by the shipowner." (37) The Fifth Circuit panel demurred on deciding whether punitive damages were recoverable under the Jones Act. (38)

      The Ninth Circuit followed the Fifth Circuit in Protectus Alpha Navigation Co., Ltd. v. North Pacific Grain Growers, Inc. (39) and held that punitive damages may be recovered under General Maritime Law for gross negligence in claims for wrongful death and personal injury by non-seamen. In Protectus Alpha, the supervisor of the wharf ignored entreaties of firefighters and cast a vessel adrift though the fire was not subdued. (40) One Coast Guardsman was killed, another injured, and the vessel was a total loss. (41) The same circuit also subsequently held that punitive damages may be recovered by non-dependent brothers in a survival action when their sibling seaman was killed in state waters of Alaska. (42) Thereafter, though the U.S. First Circuit Court of Appeals also acknowledged that punitive damages could be recovered under General Maritime Law, that court reversed the trial court's award of punitive damages for intentional infliction of emotional distress on the basis that the callous acts of its employees could not be imputed to the vessel owner. (43) None of these decisions are addressed or referenced in the Batterton opinion, which in denying punitive damages for alleged breach of the warranty of seaworthiness, relied on the "historical evidence that punitive damages are not available." (44)

      While claims for punitive damages were raised on a periodic basis, the availability of punitive damages arose mostly in the context of the employer's willful or arbitrary and capricious refusal to pay...

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