Maritime Article Published

Attorney Richard Martin recently published another maritime article in the Louisiana Association for Justice’s April edition of Louisiana Advocate. Both Frank Lamothe and Mr. Martin are considered some of the best admiralty and maritime lawyers in Louisiana and are extremely skilled trial lawyers. Here’s the article:


“Will no one rid me of this troublesome priest”? These words were allegedly uttered by England’s King Henry II Plantagenet in November, 1170 A.D. They led to the assassination of St. Thomas Becket one month later.

I don’t have a “troublesome priest” on my hands, but I’ve had a 25 year problem with Miles v. Apex Marine Corp., 498 U.S. 19 (1990) and its offspring. How many times have I represented a Jones Act seaman who was injured by an unseaworthy condition that had gone uncorrected for an unreasonable length of time? Far too many times.

Unlike McDonald’s, which got the punitive damage message about repeatedly serving boiling coffee,1 no vessel owner has yet been sent the “punitive damage message” when it wantonly or wilfully maintains an unseaworthy condition that causes an injury. While maritime trial lawyers don’t have four trusty knights who will go dispatch a troublesome priest, we do have U.S. Magistrate Judge Patrick J. Walsh who issued an enormously important opinion in Batterton v. The Dutra Group, No. 14-7667 (C.D. Cal. Dec. 15, 2014) (Rec. Doc. 24).2 There, Magistrate Judge Walsh took a long overdue, bold and correct step toward the possible future overturning Miles.

In Batterton, the Plaintiff worked as a deck hand and crew member on a number of vessels that were owned, crewed, managed, and operated by Dutra. In August 2014, a hatch cover blew open as a result of too much pressure in a compartment below the hatch and crushed his left hand. Plaintiff asserted claims for negligence, unseaworthiness, maintenance and cure, and unearned wages. He also sought punitive damages.

Dutra moved to dismiss the punitive damage claim under Fed. R. Civ. P. 12(b)(6) on the ground that such damages are not available in a maritime action as a matter of law. Dutra also argued that the punitive damage claim should be stricken under Fed. R. Civ. P. 12(f) on the ground that it was “redundant, immaterial, impertinent, or scandalous.” Magistrate Judge Walsh did not find Rule 12(f)to be applicable and analyzed the motion under Rule 12(b)(6).3

Dutra argued that the controlling, unequivocal, and settled legal authority is clear: punitive damages are not available for personal injury actions based on claims of unseaworthiness. It contended that the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19(1990) was dispositive on this issue.4 It contended that the effect of Miles is that seamen are limited to pecuniary damages under both the Jones Act and in general maritime actions such as for unseaworthiness. In support of this argument, Dutra pointed to that “thorn in the side” of Louisiana maritime trial lawyers, the Fifth Circuit’s decision in McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014) which held that a seaman’s recovery for unseaworthiness under general maritime law is limited to pecuniary losses, which does not include punitive damages.

Batterton argued that the issue was far less clear cut since the Supreme Court’s decision in Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009), which substantially narrowed Miles. There, the Supreme Court held that, under general maritime law, seamen are entitled to seek punitive damages in a maintenance and cure action. 5 Of course, all of you are still scratching your heads and wondering why on earth punitive damages are available in general maritime law maintenance and cure claim, but not in a general maritime law unseaworthiness claim. And you’re wondering how a statutory negligence recovery scheme like the Jones Act can be used to limit recovery under the general maritime law – especially in the context of an absolute duty owned to a seaman? Doesn’t it seem like the willful or wanton violation of an absolute duty argues most strongly for imposition of punitive damages? Of course it does, but tell that to the Fifth Circuit.
In Atlantic Sounding, the Supreme Court noted that the general maritime cause of action (maintenance and cure) and the remedy (punitive damages) were well-established before the passage of Jones Act. It therefore reasoned that it was possible to “adhere to the traditional understanding of maritime actions and remedies” without intruding upon a matter upon which “Congress has spoken directly.” Atlantic Sounding Co., 557 U.S. at 420-21.

Magistrate Judge Walsh held that Miles does not preclude punitive damages in an unseaworthiness claim, and he denied the motion to dismiss Batterton’s punitive damages claim. He relied on Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987)(overruled on other grounds) which held that “Punitive damages are available under general maritime law for claims of unseaworthiness. While punitive damages are not available under the Jones Act, it does follow that they are unavailable under general maritime law.” He also cited Wagner v. Kona Blue Water Farms, LLC, 2010 WL 3566731 (D. Hi. Sept. 13, 2010) (holding that Evich is still controlling law in the Ninth Circuit unless and until overturned); Rowe v. Hornblower Fleet, 2012 WL 5833541 (N.D. Cal. Nov.16, 2012) (denying motion to dismiss or strike claim for punitive damages on claim for unseaworthiness as “[t]here are no provisions in the Jones Act that limit the right to seek punitive damages on a claim for unseaworthiness …[and] Evich is not clearly irreconcilable with Miles and Atlantic Sounding.”).

Hopefully, the Ninth Circuit will find that regardless of Miles’ impact on Jones Act claims, it does not deprive a plaintiff of a punitive remedy where his injury arose from an egregious condition of unseaworthiness. Then, keep your fingers crossed that the Supreme Court will be back to a full nine member panel and it will uphold Batterton.6

1 Stella Liebeck v. McDonalds Restaurants, et al., No. CV-93-02419, 1995 (N.M. Dist., Aug. 18, 1994). On August 17, 1994, a state court jury in Albuquerque, New Mexico, awarded 81-year old Stella Liebeck $160,000 in compensatory damages and $2.7 million in punitive damages, after she was burned by coffee purchased from a drive-through window at a McDonalds restaurant. The trial judge later reduced the punitive damages to $480,000, and the parties settled the case before an appeal.

2 On January 5, 2015, Dutra Group filed a motion seeking interlocutory appeal to the U.S. Ninth Circuit under 28 U.S.C. § 1292(b). (Rec. Doc. 27) By Order of February 6, 2015, Magistrate Judge Walsh granted Dura Group’s request for certification for interlocutory appeal. Discovery on plaintiff’s claim for punitive damages was stayed pending the Ninth Circuit’s decision on the appeal. On November 18, 2015, the Ninth Circuit granted the petition for permission to appeal and assigned Docket No. 15-56775. (Rec. Doc. 42).

3 See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010) (holding “Rule12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.”

4 In Miles, the Supreme Court considered whether general maritime law provided a cause of action for wrongful death based on unseaworthiness. Concluding that it did, the court held that damages in wrongful death actions were limited to those available under the Jones Act and the Death on the High Seas Act (DOHSA). In doing so, the court held that damages were not available for loss of society or lost future earnings. See Miles, 498 U.S. at 21-24; see also Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 419 (2009).

5 In Atlantic Sounding, the defendant cited Miles for the proposition that seamen could only recover damages available under the Jones Act, but the Supreme disagreed:
Historically, punitive damages have been available and awarded in general maritime actions, including some in maintenance cure. We find that nothing in Miles or the Jones Act eliminates that availability. Atlantic Sounding Co., 557 U.S. at 407.

6 Keep your fingers crossed that one day the U.S. Fifth Circuit will realize that the Jones Act’s absence of any language mentioning punitive damages is not a prohibition, and that a prohibition of this remedy would instead require express wording.

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