In Tabingo v. American Triumph LLC, No. 92913-1, 2017 WL 959551 (Wash. Mar. 9, 2017), the Washington State Supreme Court determined a Jones Act seaman could maintain a claim for punitive damages under the General Maritime Law for unseaworthiness.

Tabingo, a Jones Act seaman sued his employer after a hatch aboard a fishing boat fell on his hand, resulting in the amputation of two fingers. Tabingo alleged the handle on the hatch was broken and his employer, American Seafood, knew about the broken handle for two years before the incident but failed to repair it.

Tabingo filed suit against American Seafoods and claimed negligence under the Jones Act, as well as unseaworthiness, for which he requested punitive damages. The King County Superior Court dismissed Tabingo’s claims for punitive damages, holding a plaintiff may not seek nonpecuniary damages in either general maritime or negligence claims. Since punitive damages are nonpecuniary, that claim was dismissed.

The issue presented the Washington Supreme Court was: can a seaman request punitive damages under a general maritime law unseaworthiness claim? On appeal, the Washington State Supreme Court reversed. The Court found the rationale behind the United States Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, which held that punitive damages may be recoverable for maintenance and cure actions, applicable to the doctrine of unseaworthiness. Like maintenance and cure, unseaworthiness is a cause of action that arises from general maritime law, not statue. While the measure of recovery under unseaworthiness and the Jones Act are similar, they are separate causes of action and rooted in different sources of law. Thus, the Court found that the Jones Act, which prohibits recovery of punitive damages, does not disturb the availability of punitive damages for an unseaworthiness claim.

The Court spent time addressing the Fifth Circuit case, McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014), which articulated a limit on punitive damages for unseaworthiness when brought with a Jones Act claim. In a plurality, the Fifth Circuit reasoned because the Jones Act limits the recovery of punitive damages for actions brought under it, the same result must occur when a Jones Act claim and general maritime claim are joined in the same action. The Washington Supreme Court, however, found that the Fifth Circuit’s reasoning in McBride, which dealt a statute, the Jones Act, did not apply to the unseaworthiness claim, which is rooted in common law. The Washington Supreme Court followed the United States Supreme Court decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 413 129 S. Ct. 2561, 174 L. Ed. 2d 382 (2009), which held punitive damages may be available in general maritime actions (e.g. willful and wanton disregard for maintenance and cure obligations).

While the Washington State Supreme Court’s holding in Tabingo will not disturb McBride or the bar against punitive damages for unseaworthiness claims in the Fifth Circuit, it certainly criticized the Fifth Circuit’s reasoning and interpretation of United States Supreme Court precedent. The Tabingo decision may embolden plaintiffs in the Eastern District to again bring punitive damages claims for unseaworthiness in the hopes of challenging the Fifth Circuit’s decision in McBride.