Yet now, federated along one keel…
MOBY DICK, HERMAN MELVILLE, Chap. XXVII
In the wake of Justice Thomas’s landmark decision in Atlantic Sounding Co. v. Townsend, American maritime jurisprudence was left with its “keeled hulls split at sea” due to a circuit split between the Fifth and Ninth Circuits over a simple but hugely important question: do seamen have a claim for punitive damages under the general maritime law cause of action for unseaworthiness? This question was the fulcrum for leverage in personal injury claims across the country: after Townsend maritime personal injury plaintiffs – pursuing the “white whale” threat of exponentially large exemplary/punitive damage awards – routinely began to include punitive damage claims in their petitions/complaints, usually linked to an unseaworthiness or GML negligence claim, ostensibly as a bargaining chip in settlement/case-valuation negotiations.
Now, however, federal maritime common law has been reunified – “federated along one keel” – with the Supreme Court’s decision in Dutra Corp. v. Batterton, which has squarely held that a seaman “may not recover punitive damages on a claim of unseaworthiness.” This decision has settled a decade’s worth of uncertainty for the lower courts, alternative dispute resolution intermediaries, and practitioners, by removing the punitive damage “bargaining chip” from the table.
HISTORICAL PURSUIT OF THE PUNITIVE DAMAGE “WHITE WHALE”
The context of the pre-Batterton split and the larger historical framework for seamen’s claims – a history that the Batterton majority focused on in its analysis – is helpful for understanding the importance and effect of the decision. During (roughly) the first century of the Republic, American merchant seamen were protected solely via two causes of action:
1) the ancient right of “maintenance and cure,” (M&C) a rudimentary worker’s compensation scheme requiring that a shipowner pay for the medical treatment (cure) and living expenses (maintenance) – tantamount to what the seaman would have been receiving while aboard the ship – whenever a seaman was injured while in the service of the vessel and regardless of any fault; and
2) the “warranty of seaworthiness” owed by the shipowner to the seaman – or, phrased from the seaman’s perspective, the right to assert an injury claim for “unseaworthiness” of the vessel on which he served, a relatively late development (early twentieth century) tantamount to a strict liability claim against the owner for injuries caused by an unseaworthy condition on the vessel.
These two jurisprudential causes of action emanated from the admiralty courts’ traditional view that seaman were “the wards of admiralty” entitled to and requiring protection of the courts due to their unequal bargaining power, the inherent dangers of their profession, as well as their stereotyped reputation for profligacy and intemperance: “[seamen] are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached.” Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823). Critically, however, and by express recognition of the Supreme Court in The Osceola, a seaman had no free-standing cause of action for negligence against the vessel owner/employer under general maritime law: “the seaman is not allowed to recover an indemnity for the negligence of the master [or owner], or any member of the crew… but is entitled to [M&C, regardless of fault].” 189 U.S. 158, 175 (1903).
Thus, as things stood in the first decades of the 20th century, a seaman’s only right to sue a vessel owner/employer was for no-fault M&C and the pseudo-strict-liability-based unseaworthiness.
This all changed with the passage of the Jones Act in 1920 (currently found at 46 U.S.C. §30104). This statute legislatively overruled The Osceola by specifically creating a stand-alone, statutory negligence cause of action for seamen – outside of the jurisprudentially created M&C and unseaworthiness causes of action – under the same parameters as the Federal Employer’s Liability Act (FELA, 45 U.S.C. §51-59, the federal statute establishing a negligence claim for railroad employees).
Indeed, the Jones Act incorporates the entirety of FELA by reference, including (as the Supreme Court has confirmed) relevant FELA jurisprudence. Kernan v. Am. Dredging Co., 355 U.S. 426, 439 (1958) (“the entire judicially developed doctrine of liability, granted to railroad workers by the FELA” is incorporated into the Jones Act); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 231 (5th Cir. 2013) (“decisions in FELA cases are applicable to cases brought under the Jones Act”).
The FELA, however, expressly limits recovery for the statutory negligence cause of action to “liab[ility] in damages” (45 U.S.C. §51), which the Supreme Court has construed to include “pecuniary damages . . . only.” Mich. Cent’l RR Co. v. Vreeland, 227 U.S. 59, 69 (1913). And as the Batterton Court itself recognized, “Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA.”
And as the final note in this pre-Batterton background, the FELA limitation to “pecuniary loss” was the basis for the Supreme Court’s landmark decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), which recognized a general maritime law cause of action for wrongful death of a seaman in state territorial waters, but limited that claim to “pecuniary loss” based on the fact that Congress’s expressly limited Jones Act negligence cause of action should not be expanded by judicial fiat to a wrongful death claim for the very same seaman who would be limited to pecuniary damages under the Jones Act if he were alive and suing in his own right.
TOWNSEND – “NAILING THE GOLD TO THE MAST” ((MOBY DICK, CH. XXXVI)
Miles was applied unquestionably for decades to preclude punitive damage claims by seamen, until the Supreme Court’s 2009 ruling in Townsend, which held that a seaman did have a claim for punitive damages based on an employer’s “willful or wanton failure to comply with the duty to pay [M&C].” 557 U.S. 404, 424 (2009).
Justice Thomas wrote the majority opinion in Townsend, which focused on the fact that pre-Jones Act jurisprudence dating back to the early 19th century recognized the right to claim punitive damages, and specifically for an employer’s gross dereliction of its M&C duties – i.e. one of the two pre-Jones Act jurisprudential GML causes of action for seamen. Interestingly, Justice Alito dissented in Townsend, on the basis that the majority’s rule came too close to conflating the legislatively limited negligence cause of action in the Jones Act with the jurisprudentially developed law allowing punitive damages, a result that Miles specifically warned against: “if a form of relief is not available on a statutory claim, we should be reluctant to permit such relief on a similar claim brought under general maritime law.” Townsend, 557 U.S. 404, 426 (2009) (Alito, J., dissenting).
Like the doubloon Ahab nailed to the mast of the PEQUOD, the Townsend decision encouraged pursuit of punitive damages that had previously been deemed unrecoverable. And even though Townsend was limited within its terms to punitive damages for the willful/wanton refusal of M&C, practitioners on behalf of plaintiffs latched onto some of Justice Thomas’s broad wording that “that nothing in Miles or the Jones Act eliminates” punitive damages for seamen to begin asserting punitive damages claims for unseaworthiness, the second of the two pre-Jones Act jurisprudent GML causes of action for seamen.
“THE DRAMA’S DONE” (MOBY DICK, EPILOGUE) – THE BATTERTON RESOLUTION
Finally, after a decade of uncertainty in the courts and among litigants, the Supreme Court in Batterton has returned the punitive damage Leviathan to the depths. Indeed, the alignment of the Justices in Batterton underscores the comprehensiveness of its rejection of punitive damages for seamen outside the M&C cause of action: Justice Alito, the dissenter to Justice Thomas’s Townsend ruling, wrote the majority opinion in Batterton, in which Justice Thomas joined. Thus, to the extent Justice Thomas’s broad language in Townsend served as the impetus for the post-Townsend chase for punitive damages in unseaworthiness claims, his joining in Justice Alito’s Batterton majority seemingly forecloses any reliance on Townsend in this regard.
As an initial and important procedural point of emphasis, Justice Alito leads off his Batterton opinion re-acknowledging that the Supreme Court, and federal admiralty courts in general, are responsible for developing the general maritime law of the United States (as Justice Kavanaugh recently did himself in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019), another of this terms multiple maritime decisions). That said, the landmark decision in Miles held that this jurisprudential prerogative must yield when legislative enactments, and the policies behind them, have addressed a particular scenario: “[federal courts] should look primarily to… legislative enactments for policy guidance,” and may supplement such enactments only when strong considerations of uniformity of maritime law prevail. Batterton, p. 10 (citing Miles, 498 U.S. at 27).
With this analytical framework in mind, Justice Alito’s opinion initially focused on the fact that the principle of unseaworthiness had its jurisprudential roots not as a cause of action for personal injury, but rather in quasi-contractual contexts, namely (1) a sailor’s right to wages after refusal to work on an unseaworthy vessel; (2) a sailor’s defense to criminal charges for refusing to obey orders; and (3) an insurer’s right to deny coverage for an unseaworthy vessel. In fact, it was not until The Osceola – which was ultimately nullified by the Jones Act – that the Supreme Court formally acknowledged unseaworthiness as an essentially no-fault/strict liability cause of action for personal injuries caused by an unseaworthy condition. And with the Jones Act’s arrival, seaman had both the negligence cause of action, as well as the quasi-strict liability unseaworthiness claim, even though both claims have been described as “alternative grounds of recovery for a single cause of action.” Batterton, p. 8 (quoting 2 R. Force & M. Norris, The Law of Seamen §30:90, p. 30-369 (5th ed. 2003).
As a result of the fraternal-twin nature of these two causes of action – one jurisprudential, one legislative – Justice Alito followed and reaffirmed the Miles analytical principle that general maritime law should adhere to legislative enactments in the maritime sphere unless there is a strong historical or uniformity based reason to depart:
[W]e consider here  whether punitive damages have traditionally been awarded for claims of unseaworthiness and  whether conformity with parallel statutory schemes would require such damages. Finally,  we consider whether we are compelled on policy grounds to allow punitive damages for unseaworthiness claims.
Batterton, p. 10. Under this tripartite approach, Justice Alito concluded that:
1. There was absolutely no historical precedent whatsoever for awarding punitive damages for unseaworthiness. This conclusion was critically distinct from Justice Thomas’s finding in Townsend, which did find historical caselaw (even if it was scant) supporting punitive damages for willful refusal of M&C. In fact, Justice Alito deemed this point “practically dispositive” in barring such damages for unseaworthiness, because punitive damages had otherwise been established in maritime law (including in the cases Justice Thomas identified in Townsend) well before the jurisprudential development of the personal injury unseaworthiness claim, and yet no court had ever awarded punitive damages for that claim.
2. Given the complete absence of support in the general maritime law for punitive damages for unseaworthiness, Justice Alito easily, and necessarily, concluded that there was no compelling reason to create a punitive damage remedy for unseaworthiness in order to conform with any legislative maritime policy. Indeed, the Jones Act directly bars punitive damages via its incorporation of FELA, as lower appellate courts “have uniformly held.” Thus, given the absence of any legislative reason to create a new remedy, and in the interest of maintaining uniformity between the twin actions for Jones Act negligence and unseaworthiness, there was no legislative policy basis for allowing recovery of punitive damages for unseaworthiness.
3. And finally, Justice Alito concluded that there were no compelling policy grounds to create a punitive damage remedy for unseaworthiness; and to the extent there may be any, it would be improper for the Supreme Court “to introduce novel remedies contradictory to those Congress has provided in similar areas.” Batterton, p. 15. In short, Justice Alito held that it would be better “[left] to the political branches [to] develo[p] [any such] novel claims and remedies.” Id.
Likewise, under this third analytical point, Justice Alito noted several countervailing policy grounds that actually support a bar on punitive damages for unseaworthiness. First, unlike denial of M&C, which could (at least in the short term) financially benefit an owner and thus should be dis-incentivized, there is no upside for an owner to send an unseaworthy vessel to sea – because he would risk losing his ship or (perhaps more importantly) his insurance coverage. Second, allowing punitive damages for unseaworthiness would also create “bizarre disparities” in the law, including (1) a living seaman could claim punitive damages for unseaworthiness, but a deceased seaman’s survivors could not do so under Miles; and (2) a far-removed vessel owner could be held liable for punitive damages in unseaworthiness, but not the directly involved master/operator in a Jones Act negligence claim. And finally, because punitive damages are not generally available in civil law jurisdictions that predominate among the leading maritime nations of the world, allowing punitive damages under American general maritime law would put American shipowners at a competitive disadvantage.
Finally, in closing, Justice Alito importantly downplayed any continued potency of the long and oft-cited principle that seaman are “wards of the admiralty” entitled to special protection of the courts: “the special solicitude to sailors has only a small role to play in contemporary maritime law.” Batterton, p. 18.
Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented, essentially on the basis that the common-law in general has historically allowed for punitive damages, and thus they should be available for the common law unseaworthiness cause of action. However, this dissenting position hinged primarily on the statement that “the Jones Act does not preclude the award of punitive damages in unseaworthiness cases,” a point which is technically accurate but only so far as it goes, given that the Jones Act does not address unseaworthiness at all.
In this same regard, perhaps the most intriguing aspect of the Batterton dissent is footnote 5, which suggests that the Supreme Court “has not decided whether punitive damages are available under the Jones Act” – a point which, again, is technically accurate but only so far as it goes. It is true the Supreme Court has not addressed this exact question. However, the Supreme Court and every federal appellate court to address the issue have recognized that punitive damages are not available under FELA, and this holding necessarily applies to the Jones Act via FELA’s incorporation therein. Thus, Justice Ginsburg’s footnote ostensibly giving a lifeline to the possibility of right to punitive damages for seamen would appear to be as ill-fated as the PEQUOD itself.
“CALL ME ISHMAEL” – WHAT SURVIVES THE BATTERTON RULE?
The Batterton decision ostensibly forecloses completely (outside of willful refusal of M&C) any claim by a seaman against his employer for punitive damages, regardless of how it may be couched. That said, the door may remain open for a seaman to seek punitive damages against a non-employer third party defendant, although this itself is a questionable proposition. See Rockett v. Belle Chasse Marine Transportation, LLC, 260 F. Supp. 3d 688, 694 (E.D. La. 2017) (discussing divergent opinions in Louisiana federal courts on this question, and noting the prevailing rule prohibits seamen’s punitive damage claims even against non-employer third parties).
Thus, for now under Batterton, the “white whale” of a seaman’s right to punitive damages appears relegated to the abyss, with little likelihood of ever resurfacing.