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To Hell With “Oh, Hell, Why Not” – The Fifth Circuit en banc Reverses Estis v. McBride Well Service, L.L.C.

In a much anticipated ruling, the Fifth Circuit en banc has reversed the original panel ruling in Estis v. McBride Well Service, L.L.C., 731 F.3d 505 (5th Cir. 2013), which sent shockwaves through the maritime bar and industry alike when it proclaimed that Jones Act seaman could collect punitive damages for general maritime law claims of unseaworthiness, upsetting years of precedent to the contrary (as previously reported on Striding the Quarterdeck).  The en banc reversal has essentially reined in the (as described in Judge Clement’s concurrence) “collective judicial ‘oh, hell, why not’ principle that holds that because punitive damages are available in many other types of actions they should also be available in unseaworthiness cases.”

The 73-page en banc ruling (considered by 15 Fifth Circuit judges) consists of:

  1. the leading opinion (pp. 1-15) authored by Judge Davis;
  2. Judge Clement’s concurrence (pp. 16-31, joined by Judges Jolly, Jones, Smith and Owen);
  3. Judge Hayne’s concurrence (pp. 32-36, joined by Judge Elrod)
  4. Judge Higginson’s – the author of the original panel opinion – dissent (pp. 37-63, joined by Chief Judge Stewart, and Judges Barksdale, Dennis, Prado, and Graves); and
  5. Judge Graves’ separate dissent (pp. 64-73, joined by Judge Dennis).

The entire opinion, which is a very interesting read and includes comprehensive historical analysis of the various general maritime causes of action and their interrelationship with the statutory Jones Act remedy, can be found here.

Judge Davis’s lead-off opinion (concurred in by 5 other judges, for a total of 6/15 of the en banc Court) holds, very simply, that “the Jones Act limits a seaman’s recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness[,] [and thus] [b]ecause punitive damages are non-pecuniary losses, punitive damages may not be recovered in this case” (p. 1) by either the survivors of the named plaintiff (Mr. Estis) or by the surviving seamen who have pursued their own personal injury claims in the case.  In sum, “[o]n the subject of recoverable damages in a wrongful death case under the Jones Act and the general maritime law, [Congress] has limited the survivor’s recovery to pecuniary losses[,] [and there is] no reason this holding and analysis would not apply equally to the plaintiffs asserting claims for personal injury” (p. 15).  Thus, under this ruling, seamen cannot claim punitive damages under the Jones Act negligence cause of action, or under the general maritime law unseaworthiness cause of action.

This simple conclusion, however, begins to unravel quickly with a turn to Judge Hayne’s concurrence, which disagrees with Judge Davis’s opinion to the extent it bars punitive damages for surviving seaman who bring their own unseaworthiness claim under the general maritime law (p. 32).  Specifically, Judge Haynes noted that – as to the punitive damage claims for the surviving seaman – “the parties have not sought and have not briefed a different treatment of one category of claimant from the other, and we should be reluctant to address such differences sua sponte” (p. 33).  Thus, “[c]onsidering this fact, the need to exercise restraint, and the historical context in which seamen generally have not recovered punitive damages for unseaworthiness, I think it is inappropriate for a federal intermediate appellate court to extend the law here” (p. 35).

In sum, Judge Hayne concluded that “allowing recovery of punitive damages would be an expansion of a remedy, a subject best left to Congress[;] [and] [i]f a federal court is the right place to extend remedies in this area, [Judge Haynes would] submit that federal court is the United States Supreme Court, not this one” (p. 36).  Thus, in the end, Judge Hayne (joined by Judge Elrod) “join[ed] the judgment of the court expressed in the majority opinion, although, as to the remaining surviving seamen, not its reasoning” (p. 36).  However, at the beginning of his concurrence, Judge Hayne also states that he “disagree[d] with th[e] [majority’s] conclusion” that the surviving seaman were also barred from claiming punitive damages.

Thus, insofar as 8 of the 15 en banc judges apparently did not agree as to the bar for punitive damages for unseaworthiness claims brought by seaman in their own right, there arguably may be no majority opinion on this point in Estis.  In this regard, the Fifth Circuit has recognized that when “part of [an]  en banc opinion [does] not garner majority support, [that part’s] analysis is not binding precedent.”  See, e.g., K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010) (citing United States v. Ferguson, 211 F.3d 878, 885 (5th Cir.2000)).  Thus, depending on how Judge Hayne’s (joined by Judge Elrod) concurrence is interpreted – i.e. whether his joining in the judgment, but not the reasoning, amounts to a majority opinion on the issue of surviving seamen’s right to punitive damages – this area may remain somewhat murky.

That said, 8 of the 15 en banc judges (a clear majority) did ultimately agree with the first premise of Judge Davis’s lead opinion – i.e. that survivors of a deceased seaman cannot seek punitive damages for Jones Act or general maritime law (i.e. unseaworthiness) claims.  As a result, this aspect of the Estis en banc opinion should be binding precedent in the Fifth Circuit.

Nonetheless, 6 of the 15 judges – including Judge Higginson, who authored the original Estis panel opinion – disagreed entirely with Judge Davis, and instead took the position that punitive damages are, and have historically been, available to seaman asserting general maritime law unseaworthiness claims.  Judge Higginson’s dissent is a ranging, historical analysis of the purported availability of punitive damages for unseaworthiness claims (in the same vein as his original panel opinion), that relies on the Supreme Court’s analytical approach in the landmark Atl. Sounding Co. v. Townsend decision, 557 U.S. 404 (2009) (holding that punitive damages are available in a seaman’s claim for wilful failure to pay maintenance and cure) to conclude that seaman are equally entitled to punitive damages under the general maritime law.

While the Estis en banc opinion may be the last word – at least in part – on seamen’s rights to punitive damages in the Fifth Circuit, the national debate on this issue is likely far from over.  Indeed, Judge Davis noted in his opinion that the Fifth Circuit decided to take up Estis en banc in recognition that the punitive damage issue is “the subject of national debate with no clear consensus” (p. 3).  Further, given Judge Hayne’s suggestion that the issue is more properly posed to the legislative branch – or perhaps the Supreme Court – it is likely that the issues swirling in  Estis are a helluva long way from being cleared up.