The Fifth Circuit released its opinion in McBride v Estis today, the long-awaited decision regarding punitive damages.  It tips the scales at 73 pages.  The Court, in a close decision, reverses the panel opinion and concludes punitive damages are not available for a Jones Act seaman, whether it is a claim for wrongful death or for personal injury.

To understand McBride, a little detour through history is a prerequisite.  There are two guiding principles for maritime law:  uniformity and history.  Uniformity reached its apogee in 1990 in Miles v. Apex, where the Supreme Court unanimously ruled a Jones Act seaman cannot recover nonpecuniary damages in a wrongful death action.  The Supreme Court’s first rationale was that Congress passed the Jones Act and Congress only allowed pecuniary damages.  If Congress had wanted to allow nonpecuniary damages, it would have.  Congress did not allow for nonpecuniary damages in the Death on the High Seas Act (DHOSA) either.  Even though the federal courts are free to craft general maritime law remedies, as Justice O’Connor put it, “we sail in occupied waters,” and the Supreme Court said Congress’s remedy is the outer bound.

For years following Miles, courts ruled punitive damages are not available to Jones Act seamen under any theory.  To create uniformity, most courts also ruled punitive damages are not available in general maritime law cases either.  Then, in 2008, the Supreme Court decided Exxon v. Baker, that punitive damages are available in a general maritime law claim.

A few years after Exxon, the Supreme Court decided Atlantic Sounding v. Townsend, in a 5-4 opinion, concluding punitive damages are available for arbitrary and capricious denial of maintenance and cure.  Justice Thomas wrote for the majority, ruling punitive damages had been available for this before Congress passed the Jones Act, so they were also available after.  Congress is presumed to legislate knowing what the law is.  No one knew whether this was another blow on the way to Miles’ inevitable destruction or just carefully distinguishing an aspect of it.

In McBride, the majority of the Fifth Circuit ruled punitive damages are not available for a Jones Act Seaman’s unseaworthiness claim.  The majority reasons Miles and McBride are “on all fours” and Miles remains good law.  The plaintiffs tried to distinguish Miles by limiting it to only wrongful death claims, but the majority rejected that as well, deciding there is no principled distinction between a wrongful death action and a personal injury action.

Judge Clement wrote a concurrence going deeper into the history.  She found punitive damages were not available for unseaworthiness before passage of the Jones Act, so they should not be available after.  She even quoted the plaintiff-appellees’ counsel’s prior academic writing, which held that Jones Act negligence and unseaworthiness are ‘Siamese twins,’ to explain why the Atlantic Sounding M&C opinion would not apply to unseaworthiness.  She has the best quote of the opinion:

we cannot blithely assume that because [punitive damages] are available in a wholly different type of maritime action that pre-dates the Magna Carta they are necessarily available in a[n unseaworthiness] maritime action.

Judge Haynes issued a concurrence.  She would allow punitive damages for a personal injury action, but not for a wrongful death action.  The distinction make sense.  When Congress passed the Jones Act, general maritime law did not recognize a recovery for wrongful death.  Therefore it can hardly be said punitive damages were available for wrongful death.  But, depending on how hard you squint at hoary case law, punitive damages might have been available for unseaworthiness.  Judge Haynes would have taken the idea that Congress is presumed to legislate knowing what the law is to its logical conclusion and allow punitive damages for Jones Act seamen in a personal injury claim, but not in a wrongful death claim.

Judge Higginson, with five other dissenters, would conclude punitive damages are available in all cases.  Judge Higginson’s opinion reads as though it was once the majority view but for defectors – it includes a standard of review and recitation of the facts, not something typically found in a dissent.  The dissent forcefully argues unseaworthiness and the Jones Act are different.  Congress did disallow punitive damages for the Jones Act, but its Jones Act conclusion should not be binding as to the unrelated unseaworthiness claim.  Judge Higginson notes Jones Act seamen are wards of the court, entitled to special protection.  It makes little sense to afford them less protection under unseaworthiness than a non-seaman would be allowed.  The dissent further argues that Miles is limited to death cases; personal injury claimants should be entitled to broader damages.

Finally, Judge Graves, with Judge Dennis agreeing, concurs with Judge Higginson’s dissent.  Judge Graves’ dissent is in large part a historical treatment, emphasizing that the Miles bar on nonpecuniary damages extends to wrongful death claims, but not to personal injury claims.

The next step may be the Supreme Court, although the Court may wait for more circuits to rule on this issue before it takes it up.  This opinion gives some certainty to litigants, vessel owners, seamen and their counsel, but it will not be the last word on punitive damages.