               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CHRISTOPHER BATTERTON,                   No. 15-56775
            Plaintiff-Appellee,
                                         D.C. No.
              v.                    2:14-cv-07667-PJW

DUTRA GROUP,
         Defendant-Appellant.             OPINION


     Appeal from the United States District Court
          for the Central District of California
     Patrick J. Walsh, Magistrate Judge, Presiding

        Argued and Submitted February 8, 2017
                Pasadena, California

                Filed January 23, 2018

Before: Sidney R. Thomas, Chief Judge, and Andrew J.
 Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.

             Opinion by Judge Kleinfeld
2                 BATTERTON V. DUTRA GROUP

                            SUMMARY*


                           Maritime Law

    Affirming the district court’s denial of the defendant’s
motion to strike a prayer for punitive damages, the panel held
that punitive damages are awardable to seamen for their own
injuries in general maritime unseaworthiness actions.

    Disagreeing with the Fifth Circuit, the panel concluded
that Miles v. Apex Marine Corp., 498 U.S. 19 (1990), did not
implicitly overrule the holding of Evich v. Morris, 819 F.2d
256 (9th Cir. 1987), that punitive damages are an available
remedy for unseaworthiness claims.


                             COUNSEL

Barry W. Ponticello (argued) and Renee C. St. Clair, England
Ponticello & St. Clair, San Diego, California, for Defendant-
Appellant.

David W. Robertson (argued), Dripping Springs, Texas;
Adam K. Shea and Brian J. Panish, Panish Shea & Boyle
LLP, Los Angeles, California; Preston Easley, Law Offices
of Preston Easley APC, San Pedro, California; for Plaintiff-
Appellee.

Kenneth G. Engerrand, Brown Sims P.C., Houston, Texas, for
Amicus Curiae Kenneth G. Engerrand.

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              BATTERTON V. DUTRA GROUP                  3

Michael F. Sturley, Austin, Texas; Lyle C. Cavin Jr., Law
Offices of Lyle C. Cavin Jr., San Francisco, California;
William L. Banning, Banning LLP, Rancho Santa Fe,
California; Paul T. Hofmann, Hofmann & Schweitzer,
Raritan, New Jersey; for Amici Curiae Mick McHenry, Frank
Maloney, and Aifeula Moloasi.

John R. Hillsman, McGuinn Hillsman & Palefsky, San
Francisco, California, for Amicus Curiae Sailors’ Union of
the Pacific.

Robert S. Peck and Jeffrey R. White, Center for
Constitutional Litigation P.C., Washington, D.C.; Larry A.
Tawwater, President, American Association for Justice,
Washington, D.C.; for Amicus Curiae American Association
for Justice.


                       OPINION

KLEINFELD, Senior Circuit Judge:

   We address the availability of punitive damages for
unseaworthiness.

    This case comes to us on a 28 U.S.C. § 1292(b)
certification for interlocutory appeal. The district court
certified the appeal, and we granted permission for it.
District courts within our circuit have divided on the
4                BATTERTON V. DUTRA GROUP

substantive issue,1 as have the circuits,2 and the issue is of
considerable importance in maritime law.

                               Facts

    The case comes to us on the pleadings and nothing else.
The district court denied a motion to strike the portion of the
prayer seeking punitive damages for unseaworthiness. We
therefore take our facts from the complaint. They are not
proved, and we intimate no view as to whether punitive
damages may ultimately turn out to be appropriate.

    The plaintiff, Christopher Batterton, was a deckhand on
a vessel owned and operated by the defendant, Dutra Group.
While Batterton was working on the vessel in navigable
waters, a hatch cover blew open and crushed his left hand.
Pressurized air was being pumped into a compartment below
the hatch cover, and the vessel lacked an exhaust mechanism
to relieve the pressure when it got too high. The lack of a
mechanism for exhausting the pressurized air made the vessel
unseaworthy and caused permanent disability and other
damages to Batterton.

    1
      Compare, e.g., Rowe v. Hornblower Fleet, No. C-11-4979 JCS,
2012 WL 5833541, at *900 (N.D. Cal. Nov. 16, 2012) and Wagner v.
Kona Blue Water Farms, LLC, 2010 A.M.C. 2469, 2483 (D. Haw. Sept.
13, 2010) with Jackson v. Unisea, Inc., 824 F. Supp. 895, 897–98 (D.
Alaska 1992) and Complaint of Aleutian Enter., Ltd., 777 F. Supp. 793,
796 (W.D. Wash. 1991).
    2
       Compare Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987),
overruling on other grounds acknowledged by Saavedra v. Korean Air
Lines Co., 93 F.3d 547, 553–54 (9th Cir. 1996) and Self v. Great Lakes
Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir. 1987) with McBride
v. Estis Well Service, 768 F.3d 382, 384 (5th Cir. 2014) (en banc) and
Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (1st Cir. 1994).
                      BATTERTON V. DUTRA GROUP                    5

                                 Analysis

    The only question before us is whether punitive damages
are an available remedy for unseaworthiness claims. We
answered it in Evich v. Morris.3 That would be the end of the
case, except that Dutra contends, and the Fifth Circuit
agrees,4 that the later Supreme Court decision in Miles v.
Apex Marine Corp.5 implicitly overrules Evich.

    In Evich we squarely held that “[p]unitive damages are
available under general maritime law for claims of
unseaworthiness, and for failure to pay maintenance and
cure.”6 We distinguished Jones Act claims, where punitive
damages are unavailable.7 The standard for punitive
damages, we held, was “conduct which manifests ‘reckless or
callous disregard’ for the rights of others . . . or ‘gross
negligence or actual malice [or] criminal indifference.’”8

   Evich was a wrongful death case, not an injury case.9 But
we did not speak to whether there might be any distinction


    3
        819 F.2d at 258.
    4
        See McBride, 768 F.3d at 384.
    5
        498 U.S. 19 (1990).
    6
        819 F.2d at 258 (citations omitted).
    7
        Id.
    8
    Id. at 258–59 (quoting Protectus Alpha Nav. Co. v. N. Pac. Grain
Growers, Inc., 767 F.2d 1379, 1385 (9th Cir. 1985)).
    9
        Id. at 258.
6                      BATTERTON V. DUTRA GROUP

regarding the availability of punitive damages according to
whether the seaman had died. Generally, the availability of
damages is more restricted in wrongful death cases than in
injury cases. So without authority to the contrary, we have no
reason to distinguish Evich and limit its holding to wrongful
death cases. No party has suggested that we do so.

    Under Miller v. Gammie,10 we must follow Evich unless
it is “clearly irreconcilable” with the Supreme Court’s
decision in Miles.11 Miles holds that loss of society damages
are unavailable in a general maritime action for the wrongful
death of a seaman and that lost future earnings are
unavailable in a general maritime survival action.12 That is
because wrongful death damages are limited to “pecuniary
loss”13 and because “[t]he Jones Act/[Federal Employers’
Liability Act] survival provision limits recovery to losses
suffered during the decedent’s lifetime.”14

   The Supreme Court’s more recent decision in Atlantic
Sounding Co. v. Townsend15 speaks broadly: “Historically,
punitive damages have been available and awarded in general




    10
         335 F.3d 889 (9th Cir. 2003).
    11
         Id. at 893.
    12
         Miles, 498 U.S. at 37.
    13
         Id. at 32.
    14
         Id. at 36.
    15
         557 U.S. 404 (2009).
                       BATTERTON V. DUTRA GROUP                       7

maritime actions, including some in maintenance and cure.”16
Unseaworthiness is a general maritime cause of action.17
Townsend reads Miles as limiting the availability of damages
for loss of society and lost future earnings18 and holds that
Miles does not limit the availability of punitive damages in
maintenance and cure cases.19 By implication, Townsend
holds that Miles does not limit the availability of remedies in
other actions “under general maritime law,”20 which includes
unseaworthiness claims.

    Arguably, Townsend leaves room for a distinction
between maintenance and cure claims and unseaworthiness
claims. The Court recognizes that “remedies for negligence,
unseaworthiness, and maintenance and cure have different
origins and may on occasion call for application of slightly
different principles and procedures.”21 But nothing in
Townsend’s reasoning suggests that such a distinction would
mean that a limitation ought to be made on the availability of
punitive damages as a remedy for general maritime
unseaworthiness claims.




    16
         Id. at 407.
    17
         See id. at 419; see also Miles, 498 U.S. at 29.
    18
         Townsend, 557 U.S. at 419.
    19
         Id.
    20
         Id. at 421.
    21
       Id. at 423 (quoting Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 18
(1963)).
8                      BATTERTON V. DUTRA GROUP

    So far our discussion suggests that Miles does not
overturn Evich, that Evich remains in force as controlling
circuit law, and that Evich’s holding that punitive damages
are available as a remedy for unseaworthiness claims is
undisturbed and binding. Appellant’s arguments to the
contrary, though, are given force by McBride v. Estis Well
Service.22

    McBride, a sharply divided Fifth Circuit en banc decision,
holds that “punitive damages are non-pecuniary losses”23 and
therefore may not be recovered under the Jones Act or under
the general maritime law.24 We held in another context in
Kopczynski v. The Jacqueline that “[p]unitive damages are
non-pecuniary” and so are not allowable under the Jones
Act.25 McBride has five extensive and scholarly opinions
addressing all sides of the question. Six dissenters note that
Miles “addressed the availability of loss of society damages
to non-seamen under general maritime law, not punitive
damages,”26 and that “Townsend announced the default rule
that punitive damages are available for actions under the
general maritime law (such as unseaworthiness).”27




    22
         768 F.3d 382 (5th Cir. 2014) (en banc).
    23
         Id. at 384.
    24
         Id.
    25
         742 F.2d 555, 561 (9th Cir. 1984).
    26
         768 F.3d at 408–09 (Higginson, J., dissenting).
    27
         Id. at 413 n.16; see id. at 418.
                       BATTERTON V. DUTRA GROUP                         9

     Well before our decision in Evich, the Supreme Court
addressed in Moragne v. States Marine Lines, Inc.28 whether
the general maritime law affords a cause of action for
wrongful death. The Court overruled its 1886 decision that
it did not.29 Though Moragne concerns the availability of a
wrongful death action under the general maritime law, it
matters in our case, where the seaman did not die, because it
bears on how we should understand Miles.

    Moragne holds that the denial of a wrongful death remedy
“had little justification except in primitive English legal
history.”30 Lord Ellenborough had held in Baker v. Bolton
that in “a Civil court, the death of a human being could not be
complained of as an injury.”31 The Court noted that there was
no good reason to maintain this “barbarous” view,32 let alone
extend it to the maritime law, the principles of which
“included a special solicitude for the welfare of those men
who undertook to venture upon hazardous and unpredictable
sea voyages.”33 In any event, the common law rule had been
overturned in England by Lord Campbell’s Act, in American
states by wrongful death statutes, and in our federal law by
the Federal Employers’ Liability Act, the Death on the High


    28
         398 U.S. 375 (1970).
    29
         Id. at 409 (overruling The Harrisburg, 119 U.S. 199 (1886)).
    30
         Id. at 379.
    31
      Id. at 383 (quoting Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep.
1033 (1808)).
    32
         Id. at 381.
    33
         Id. at 387.
10                      BATTERTON V. DUTRA GROUP

Seas Act, and the Jones Act.34 The Court noted that its
“transformation of the shipowner’s duty to provide a
seaworthy ship into an absolute duty not satisfied by due
diligence” had made unseaworthiness doctrine “the principal
vehicle for recovery by seamen for injury or death.”35 It
concluded that the limitations of the Death on the High Seas
Act did not preclude the availability of a wrongful death
remedy under the general maritime law where the Act did not
apply.36

    Three years after our decision in Evich, the Supreme
Court decided Miles v. Apex Marine Corp.37 Miles was a
wrongful death case.38 The immediate issues before the Court
were whether the parent of a deceased seaman could recover
under the general maritime law for loss of society and
whether a seaman’s lost future earnings claim survived his
death.39 A fellow crew member had stabbed a seaman to
death.40 His mother brought a Jones Act negligence claim for
failure to prevent the deadly assault and a general maritime
unseaworthiness claim for hiring an unfit crew member.41

     34
          Id. at 389–90, 394.
     35
          Id. at 399.
     36
          Id. at 402.
     37
          498 U.S. 19 (1990).
     38
          Id. at 21.
     39
          Id. at 23.
     40
          Id. at 21.
     41
          Id.
                     BATTERTON V. DUTRA GROUP               11

Among other things, she sought loss of society, lost future
income, and punitive damages.42 The jury, though it found
negligence, rejected the unseaworthiness claim, returning a
verdict that the ship was seaworthy.43 The Fifth Circuit
reversed, holding that because of the extraordinarily violent
disposition of the fellow crewman, the ship was unseaworthy
as a matter of law.44

    Miles declined to limit Moragne to its facts.45 The Court
noted that the “Jones Act evinces no general hostility to
recovery under maritime law.”46 It does not “disturb
seamen’s general maritime claims for injuries resulting from
unseaworthiness.”47 Nor does it “preclude the recovery for
wrongful death due to unseaworthiness.”48 The permissibility
of a punitive damages award was not before the Court, just
loss of society and of future earnings.49

    The basis for Dutra’s argument that Miles implicitly
overturns Evich is Miles’s discussion of damages. Noting
that the Death on the High Seas Act limited the availability of

   42
        Id. at 21–22.
   43
        Id. at 22.
   44
        Id.
   45
        Id. at 27.
   46
        Id. at 29.
   47
        Id.
   48
        Id.
   49
        See id. at 23.
12                     BATTERTON V. DUTRA GROUP

damages for wrongful death to “pecuniary loss sustained by
the persons for whose benefit the suit is brought,”50 the Court
held that damages “for non-pecuniary loss, such as loss of
society, in a general maritime action” are barred.51 Likewise,
Lord Campbell’s Act, which is the basis for most state and
federal statutes for wrongful death recovery, had long been
interpreted to provide recovery only for pecuniary loss.52
And so the Court concluded that the Jones Act, too, having
inherited the Supreme Court’s interpretation in Vreeland of
Lord Campbell’s Act and the Federal Employers’ Liability
Act, also limited recovery to “pecuniary loss.”53 The Court
therefore held that “there is no recovery for loss of society in
a general maritime action for the wrongful death of a Jones
Act seaman.”54

    But it is not apparent why barring damages for loss of
society should also bar punitive damages. Miles itself
suggests no such broad interpretation of “pecuniary loss”—it
expressly notes that the Jones Act “evinces no general
hostility to recovery under maritime law” and “does not
disturb seamen’s general maritime claims for injuries




     50
      Id. at 31 (quoting then 46 U.S.C. App. § 762, now 46 U.S.C. App.
§ 30303).
     51
          Id.
     52
          Id. at 32.
     53
      Id. (citing Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 69–71
(1913)).
     54
          Id. at 33.
                      BATTERTON V. DUTRA GROUP                  13

resulting from unseaworthiness.”55 Lord Campbell’s Act and
its progeny provide an opportunity for a sailor’s widow and
children to recover the money that they were deprived of by
his death. That is what “pecuniary loss” means: loss of
money.56 Non-pecuniary damages have long been understood
to mean claims for such injuries as physical pain, mental
anguish, or humiliation,57 as well as loss of consortium.
Punitive damages, allowed by Evich, are not “pecuniary
loss.” Though they are pecuniary, that is, like all damages,
for money, they are not for loss. They are punitive, not
compensatory. Their relationship to loss is that they may not
exceed some multiple of the compensatory damages.58

    That a widow may not recover damages for loss of the
companionship and society of her husband has nothing to do
with whether a ship or its owners and operators deserve
punishment for callously disregarding the safety of seamen.
One might reasonably argue that loss of society is more
important than such punishment, or that such punishment is
more important than loss of society. However, it cannot
reasonably be argued that they are both compensation for
“loss.” If they were, they would fall within the rubric of
compensatory damages, not punitive damages.



    55
         Id. at 29.
    56
       See Pecuniary and Pecuniary Damages, BLACK’S LAW
DICTIONARY (10th ed. 2014).
    57
      CHARLES T. MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES
105 (West 1935).
    58
       See, e.g., Exxon Shipping Co. v. Baker, 554 U.S. 471, 513–15
(2008).
14                      BATTERTON V. DUTRA GROUP

    Following Miles, we held in Smith v. Trinidad Corp. that
loss of consortium damages are unavailable to the wives of
injured mariners in their own actions under the Jones Act or
general admiralty law.59 And we noted in Chan v. Society
Expeditions, Inc. that neither the general maritime law nor the
Jones Act permits recovery for loss of society for the
wrongful death of a seaman, nor does the Jones Act permit it
for injury.60 Neither speaks to punitive damages.

     Whatever room might be left to support broadening Miles
to cover punitive damages was cut off by the Supreme
Court’s decision in Atlantic Sounding Co. v. Townsend.61 The
shipowner in Townsend argued that Miles barred punitive
damages for willful failure to pay maintenance and cure.62
The Court noted that “[h]istorically, punitive damages have
been available and awarded in general maritime actions.”63
It found “that nothing in Miles or the Jones Act eliminates
that availability.”64 Unseaworthiness is a general maritime
action long predating the Jones Act.65



     59
          992 F.2d 996 (9th Cir. 1993).
     60
          39 F.3d 1398, 1407 (9th Cir. 1994).
     61
          557 U.S. 404 (2009).
     62
          Id. at 418–19.
     63
          Id. at 407.
     64
          Id.
    65
       See id. at 419; see also Miles, 498 U.S. at 29; Tabingo v. Am.
Triumph LLC, 391 P.3d 434, 438–40 (Wash. 2017).
                    BATTERTON V. DUTRA GROUP                            15

    It is true, as Dutra contends, that Miles, taken alone, might
arguably be read to suggest that the available damages for a
general maritime unseaworthiness claim by an injured
seaman should be limited to those damages permissible under
the Jones Act for wrongful death. But that is a stretch. The
remark upon which Dutra relies is Miles’s justification for its
narrower conclusion: “that there is no recovery for loss of
society in a general maritime action for the wrongful death of
a Jones Act seaman.”66 Dutra takes that narrow remark out of
context and reads it expansively.67 Miles’s juxtaposition of
the terms “pecuniary” and “non-pecuniary loss” was with
reference to loss of society, not punitive damages.68 Miles did
not address punitive damages. It expressly noted that the
Jones Act “evinces no general hostility to recovery under


    66
         Miles, 498 U.S. at 33.
    67
         Miles states:

           The Jones Act also precludes recovery for loss of
           society in this case. The Jones Act applies when a
           seaman has been killed as a result of negligence, and it
           limits recovery to pecuniary loss. The general maritime
           claim here alleged that Torregano had been killed as a
           result of the unseaworthiness of the vessel. It would be
           inconsistent with our place in the constitutional scheme
           were we to sanction more expansive remedies in a
           judicially created cause of action in which liability is
           without fault than Congress has allowed in cases of
           death resulting from negligence. We must conclude
           that there is no recovery for loss of society in a general
           maritime action for the wrongful death of a Jones Act
           seaman.

Id. at 32–33.
    68
         See id. at 31–33.
16                     BATTERTON V. DUTRA GROUP

maritime law” and “does not disturb seamen’s general
maritime claims for injuries resulting from
unseaworthiness.”69 Miles further holds that lost future
earnings are unavailable in a general maritime survival
action.70 But that is because “[t]he Jones Act/[Federal
Employers’ Liability Act] survival provision limits recovery
to losses suffered during the decedent’s lifetime.”71

    It is also true, as Dutra argues, that if we were to interpret
Miles broadly and Townsend narrowly, as the Fifth Circuit
has in McBride, then we might infer that Miles implicitly
overruled Evich. But we would then have to disregard
Miles’s statement that the Jones Act “does not disturb
seamen’s general maritime claims for injuries resulting from
unseaworthiness.”72 The Fifth Circuit’s leading opinions in
McBride are scholarly and carefully reasoned, but so are the
dissenting opinions, which to us are more persuasive.

    Starting with Lord Campbell’s Act, and continuing
through the Federal Employers’ Liability Act, the Death on
the High Seas Act, and the Jones Act, wrongful death is a
statutory cause of action.73 There is no way to compensate a
dead seaman for the wrong done to him. Compensation for
his survivors is generally limited by statute to their resulting



     69
          Id. at 29.
     70
          Id. at 36.
     71
          Id.
     72
          Id. at 29.
     73
          Id. at 31–32.
                    BATTERTON V. DUTRA GROUP                              17

“pecuniary loss.”74 These limitations, based on the restrictive
recoveries permitted for wrongful death, have no application
to general maritime claims by living seamen for injuries to
themselves. The Townsend Court made this distinction when
addressing maintenance and cure actions,75 and there is no
persuasive reason to distinguish maintenance and cure actions
from unseaworthiness actions with respect to the damages
awardable. The purposes of punitive damages, punishment
and deterrence,76 apply equally to both of these general
maritime causes of action. Nor are punitive damages
compensation for a pecuniary or non-pecuniary “loss,” as
described in Miles.77 They are not compensation for loss at
all. One might argue for or against the desirability of
punitive damages, but unless Congress legislates on the
matter, their availability is clearly established not only in
Townsend78 but also in Baker.79 They have been recognized




    74
         Id. at 31, 32 (citing Vreeland, 227 U.S. at 69–71).
    75
         557 U.S. at 419–20.
    76
         See Exxon Shipping Co., 554 U.S. at 492–93.
    77
         See 498 U.S. at 30–33.
    78
       557 U.S. at 407 (“Historically, punitive damages have been
available and awarded in general maritime actions . . . . We find that
nothing in Miles or the Jones Act eliminates that availability.”).
    79
       554 U.S. at 489–90, 515 (noting that the issue of punitive damages
in maritime law “falls within a federal court’s jurisdiction to decide in the
manner of a common law court, subject to the authority of Congress to
legislate otherwise if it disagrees with the judicial result,” and allowing an
award of punitive damages).
18                      BATTERTON V. DUTRA GROUP

as proper in appropriate circumstances since The Amiable
Nancy.80

                               Conclusion

    The district court correctly denied Dutra’s motion to
strike the prayer for punitive damages. They are indeed
awardable to seamen for their own injuries in general
maritime unseaworthiness actions.          Under Miller v.
          81
Gammie, we cannot treat Evich as overruled by Miles unless
Miles is “fundamentally inconsistent with the reasoning”82 of
Evich and Evich is “clearly irreconcilable”83 with Miles. It is
not. Under the Miller standard, Evich remains good law.
And under Townsend, we would reach the same conclusion
Evich did, even if we were not bound by Evich.

     AFFIRMED.




     80
          16 U.S. (3 Wheat.) 546 (1818).
     81
          335 F.3d 889 (9th Cir. 2003).
     82
          Id. at 892.
     83
          Id. at 893.
