Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend
| Author | David W. Robertson |
| Position | W. Page Keeton Chair in Tort Law and University |
| Pages | 463-499 |
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. Page 463
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.
Understanding this Article will be eased and enriched by reviewing the following five concepts.
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 Page 464 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
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
In traditional damages analysis, compensatory damages fall into two subcategories. Pecuniary compensatory damages are those that Page 465 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
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 expenses between the time of injury and death."14
Finally, this Article draws a clean distinction between causes of action and remedies. In simple terms, a cause of action is a basis for imposing liability, whereas a remedy is a consequence of imposing liability.15 Thus, injured seamen have causes of action against shipowner-employers for Jones Act negligence, unseaworthiness, maintenance and cure, and wrongfully withholding maintenance and cure. Page 466
When any of these causes of action succeed, the available remedies can include compensatory damages for medical and related expenses, lost earnings and earning capacity, and pain and suffering. When a seaman's injuries are fatal, the family has a wrongful death remedy16 that might include compensatory damages for loss of support, loss of services, and loss of society. The estate of a fatally injured seaman has a survival remedy that enables the estate to sue for whatever damages the deceased would have been able to sue for at the moment of death.
And--if the defendant's conduct was bad enough to warrant punishment--the remedies in all of the foregoing types of cases might also include punitive damages. In cases of seriously blameworthy failure of an employer to furnish maintenance or cure, the remedies might also include attorneys' fees.17
In U.S. maritime law up to 1990, the punitive damages remedy was deployed in pursuit of the goals of punishing reprehensible behavior and discouraging its repetition. The punitive damages remedy obtained throughout maritime law, including property damage cases, personal injury cases, and cases involving shipowners' mistreatment of passengers and seamen.18
Then came Miles v. Apex Marine Corp., a bombshell Supreme Court decision holding that the families of seamen killed by the negligence of their employers or the unseaworthiness of the vessels they serve cannot recover damages for loss of society.19 Miles had nothing to do with punitive damages, but the courts of appeals soon began finding in "[t]he logic and analytical framework of Miles"20 a Page 467 basis for denying punitive damages to seamen.21 On the view that seamen have always been the most favored litigants in U.S. maritime law, the idea then developed that if an injured seaman cannot seek punitive damages, no personal injury plaintiff should be able to do so.22 The next "logical" step would presumably have been a complete obliteration of the punitive damages remedy because if such damages are unavailable in personal injury cases, there seems no principled reason that should they be available in property damage cases.
The linchpin of the modern movement against maritime punitive damages has been the...
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