Foundering On “Sea-Tossed” Waters? The Fifth Circuit Grants En Banc Rehearing in Estis

After making a splash in October of 2013 with a landmark ruling in McBride v. Estis Well Service, L.L.C., 731 F.3d 505, 517 (5th Cir. 2013) “that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness” – which departed from the Fifth Circuit’s prior en banc opinion in Guevara v. Mar. Overseas Corp., 59 F.3d 1496, (5th Cir. 1995) – the Fifth Circuit has decided to revisit en banc the issue of punitive damages for unseaworthiness.  The panel decision in Estis, following the analytical path of the United States Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2007) (an equally historic opinion that abrogated Guevara, and least in part, and validated a seaman’s punitive damage claim for an employer’s willful failure to pay maintenance and cure), charted the history of punitive damages (or their rough analog) in maritime jurisprudence, and held that such damages are available for the seaman’s ancient general maritime law remedy for breach of the warranty of unseaworthiness.  In particular, the Estis court held that punitive damages forgeneral maritime law unseaworthiness are available notwithstanding that punitive damages are expressly barred in the context of a seaman’s closely related – but technically distinct – statutory remedy for negligence under the Jones Act and/or the Death on the High Seas Act (DOHSA).

The panel decision in Estis expressly recognized that the issue of whether and to what extent punitive damages may be available under the general maritime law has been “sea-tossed” by the Supreme Court’s decision in Townsend. 731 F.3d at 512.  This assessment of the legal shoals presented by the issue has been confirmed: on February 24, 2014, the Fifth Circuit issued an opinion granting en banc rehearing upon majority vote of the active judges.  This grant of en banc rehearing – which the Fifth Circuit Local Rules acknowledge is appropriate only in “extraordinary” circumstances (Local Rule 35.1) – is perhaps a signal that the majority of the judges in the Fifth Circuit believe the Estis panel’s landmark ruling has charted a legally perilous course for the general maritime law.  In particular, in addition to the arguments set forth in the en banc petition suggesting that the panel was simply wrong on its jurisprudential analysis, including its analysis of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), the arguments on rehearing will perhaps focus on Justice Alito’s dissent in Townsend (in which Justice Scalia and Chief Justice Roberts joined), which posited that “if a form of relief [i.e. punitive damages] is not available on a [Jones Act] statutory claim, [the Court] should be reluctant to permit such relief on a similar claim brought under general maritime law.”   Simply put, this argument proposes that the remedies available to a seaman under the general maritime law should be uniform with the remedies under the Congressionally circumscribed Jones Act cause of action, which precludes punitive damages.

The answer remains to be seen, as the court will issue a schedule for supplemental briefing and oral argument before theen banc court.