                                                         This opinion was filed for record

                                                    at    8: MO!h . onl'i aah qfP ll
                                                    6W;d~
                                                     SUSAN L. CARLSON
                                                           SUPREME COURT CLERK




             IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ALLAN A. TABINGO,                               )
                                                )
               Petitioner,                      )                   No. 92913-1
                                                )
       v.                                       )                     EnBanc
                                                )
AMERICAN TRIUMPH LLC, and                       )
AMERICAN SEAFOODS COMPANY,                      )
LLC,                                            )
                                                )        Filed _ _M_AR_O_9_211_1_7_ _
         Respondents.                           )
_____________________________ )

       OWENS, J.- Allan Tabingo was seriously injured while working aboard a

fishing trawler owned and operated by American Seafoods Company LLC and

American Triumph LLC (collectively American Seafoods). Tabingo alleges the lever

used to operate a hatch in the trawler's deck broke when an operator tried to stop the

hatch from closing. The hatch closed on Tabingo' s hand, leading to the amputation of

two fingers. He brought numerous claims against American Seafoods, including a

general maritime unseaworthiness claim for which he requested punitive damages.
Tabingo v. American Triumph LLC
No. 92913-1


American Seafoods argued that as a matter of law, punitive damages are unavailable for

unseaworthiness claims.

      Unseaworthiness is a general maritime claim. Neither the United States nor the

Washington State Supreme Court have ruled on whether punitive damages are available

under this theory. However, the United States Supreme Court has recently held that

punitive damages are available for maintenance and cure, another general maritime

claim. The Court held that because both the claim and the damages were historically

available at common law and because Congress had shown no intent to limit recovery of

punitive damages, those damages were available. Here, we follow the United States

Supreme Court's rationale and fmd that, like maintenance and cure, punitive damages

are available for a general maritime unseaworthiness claim. We reverse the trial court

and remand for further proceedings.

                                        FACTS

      Allan Tabingo was a deckhand trainee aboard the fishing trawler American

Triumph, owned and operated by American Seafoods. "Fishing trawlers" are vessels

that catch and haul fish onto their decks using large nets. After the fish are aboard and

dumped from the nets, one deckhand opens a steel hatch using hydraulic controls

while another deckhand shovels the fish through the hatch for processing. Though

deckhands can push most of the fish below decks with shovels, the design of the

vessel requires them to get on all-fours and use their hands to move the final fish.



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Tabingo v. American Triumph LLC
No. 92913-1


       In February 2015, Tabingo was tasked with moving the fish below decks. He

was on his knees near the hatch's hinge, gathering the last remaining fish, when

another deckhand started closing the hatch. Realizing how close Tabingo' s hands

were to the hatch, the deckhand attempted to correct his mistake. However, the

hatch's control handle was broken and the deckhand could not stop the hatch. The

hydraulic hatch closed on Tabingo' s hand, resulting in the amputation of two fingers.

Tabingo alleges that American Seafoods knew about the broken handle for two years

before the incident but had failed to repair it.

       Tabingo filed suit against American Seafoods. He claimed negligence under

the Jones Act (also known as the Merchant Marine Act of 1920 (46 U.S.C. § 30104)),

as well as several general maritime claims, including one for unseaworthiness of the

vessel. He requested compensatory damages against American Seafoods for all of his

claims, and punitive damages for his general maritime claims, including his

unseaworthiness claim.

       American Seafoods filed a motion for partial summary judgment moving to

dismiss Tabingo's punitive damages claim. It argued that Tabingo had not stated a

claim for which relief could be granted under CR 12(b)( 6), and asked that the trial

court follow a recent Fifth Circuit case, McBride v. Estis Well Serv., LLC, 768 F.3d

382 (5th Cir. 2014) (plurality opinion), holding that punitive damages are disallowed

in general maritime law cases. American Seafoods claimed that punitive damages are



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Tabingo v. American Triumph LLC
No. 92913-1


prohibited under the Jones Act's provision for maritime negligence actions, and

because the unseaworthiness claim was joined with a Jones Act negligence claim,

punitive damages are barred for the unseaworthiness claim as well.

      After oral argument, a King County Superior Court judge granted the motion

for partial summary judgment on CR 12(b)( 6) grounds. The judge found that, based

on Washington and federal law, the measure of damages available in a Jones Act

negligence claim and an unseaworthiness claim are identical. Because of this, the

Jones Act circumscribes the damages available under the doctrine of unseaworthiness.

The trial court ruled that a plaintiff may not seek nonpecuniary damages in either

general maritime or negligence claims and, because punitive damages are

nonpecuniary, dismissed Tabingo's punitive damages claim.

      Tabingo filed a direct interlocutory petition for review with this court, which

was granted. Ruling Granting Review, Tabingo v. American Triumph, LLC, No.

92913-1 (Wash. Jun. 28, 2016).

                                        ISSUE

      Can a seaman request punitive damages under a general maritime

unseaworthiness claim?

                              STANDARD OF REVIEW

      At issue here is a challenge to a motion to dismiss for failure to state a claim on

which relief can be granted. CR 12(b)( 6). The trial court may grant a CR 12(b )(6)



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Tabingo v. American Triumph LLC
No. 92913-1


motion when the plaintiff can provide no conceivable set of facts consistent with the

complaint that would entitle him or her to a relief. Becker v. Cmty. Health Sys., Inc.,

184 Wn.2d 252,257-58,359 P.3d 746 (2015) (citing Corrigalv. Ball & Dodd

Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978)). All allegations set

forth by the nonmoving party are presumed to be true. Kinney v. Cook, 159 Wn.2d

83 7, 842, 154 P .3d 206 (2007). If it is possible that facts could be established to

support relief, the motion will not be granted. Kumar v. Gate Gourmet Inc., 180

Wn.2d 481,488, 325 P.3d 193 (2014). A trial court's ruling to dismiss a claim under

CR 12(b)(6) is a matter of law this court reviews de novo. See Kinney, 159 Wn.2d at

842. In addition, maritime actions brought in Washington courts "are governed by

federal maritime law, both common law ... and statutory." Clausen v. Icicle

Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012).

   1. Claims for Unseaworthiness Predate the Negligence Claims Providedfor
      under the Jones Act

       The general maritime claim for unseaworthiness has a long history.

Historically, seamen had only two methods of recovery for personal injury suffered at

sea: maintenance and cure, and unseaworthiness. See Chandris, Inc. v. Latsis, 515

U.S. 347, 354, 115 S. Ct. 2172, 132 L. Ed. 2d 314 (1995). Common law did not

recognize a right to recover for the negligence of the owner of a ship, the ship's

master, or other crew members. I d. While maintenance and cure has been available




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Tabingo v. American Triumph LLC
No. 92913-1


for centuries, unseaworthiness arose as an independent cause of action in American

maritime law in the 1870s.

      Maintenance and cure has existed from at least the 13th century. See The

Osceola, 189 U.S. 158, 169,23 S. Ct. 483,47 L. Ed. 2d 760 (1903) (citing the "Rules

of Oleron," a medieval set of maritime laws and the first formal statement of maritime

law in northwestern Europe); see also Mitchell v. Trawler Racer, Inc., 362 U.S. 539,

543-49, 80S. Ct. 926,4 L. Ed. 2d 941 (1960) (explaining the history of general

maritime law claims in minute detail). Maintenance and cure is a ship owner's

obligation to care for sick or injured seamen and to pay those seamen their wages "so

long as the voyage is continued." The Osceola, 189 U.S. at 175. It includes food and

lodging as well as medical treatment. At!. Sounding Co. v. Townsend, 557 U.S. 404,

413, 129 S. Ct. 2561, 174 L. Ed. 2d 382 (2009).

      Unseaworthiness, a broad category, arose as an independent cause of action in

the United States beginning in the 1870s. The Osceola, 189 U.S. at 175 (noting a

departure in English and American maritime law from European "Continental codes"

beginning in 1876). The owner of a ship owes the crew of that ship a duty to provide

a vessel fit to take to sea, which could even include the owner's selection of crew

members. See, e.g., The Rolph, 299 F. 52 (9th Cir. 1924) (holding that the hiring of a

physically abusive first mate can render a vessel unseaworthy). Unseaworthiness,

though a separate claim, was initially influenced by negligence concepts. See IB



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Tabingo v. American Triumph LLC
No. 92913-1


BENEDICT ON ADMIRALTY§ 23, 3-12 to 3-14 (Joshua S. Force ed., 7th rev. ed. 2014).

This was because general maritime law did not provide for recovery on negligence

claims against an employer who was also the owner of a seafaring vessel. See The

Osceola, 189 U.S. at 159-60. To remedy this prohibition on negligence, Congress

passed the Jones Act in 1920, creating causes of action for employer negligence in

navigable waters. See 46 former U.S.C. § 688 (1920) (codified as amended at 46

U.S.C. § 30104). Thus, negligence and unseaworthiness claims are separate causes of

action. BENEDICT ON ADMIRALTY, supra,§ 23, at 3-14 to 3-15.

      Though the limits of an unseaworthiness claim were still developing when

Congress passed the Jones Act, unseaworthiness was open to seamen before the

passage of the act in 1920. The language of the act initially led courts to reason that

seamen had to choose between a Jones Act negligence claim and a common law

unseaworthiness claim. See id. § 2, at 1-8. However, the United States Supreme

Court has since declared that a seaman can bring both claims and recover under both

theories in the same action. Id. (citing McAllister v. Magnolia Petrol. Co., 357 U.S.

221,78 S. Ct. 1201,2 L. Ed. 2d 1272 (1958)).

   2. The United States Supreme Court's Rationale in Townsend Is Applicable Here

      Neither this court nor the United States Supreme Court has decided whether

punitive damages are available for general maritime unseaworthiness claims.

However, the United States Supreme Court has provided strong guidance for our



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Tabingo v. American Triumph LLC
No. 92913-1


decision in this case. Because this is a case involving maritime law, the outcome is

governed "by federal maritime law, both common law ... and statutory." Clausen,

174 Wn.2d at 76; see also Offshore Logistics, Inc. v. Tal/entire, 477 U.S. 207, 222-23,

106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986) (explaining that the '"saving to suitors"'

clause of the Constitution preserves state courts' jurisdiction in some maritime cases,

but also requires state decisions to conform to federal jurisprudence).

      The United States Supreme Court has held that punitive damages may be

available in general maritime actions. In Atlantic Sounding Co., the Court found that

a seaman could recover punitive damages from his employer's willful and wanton

disregard for its maintenance and cure obligations. In that case, the plaintiff injured

his shoulder while aboard his employer's vessel; he sued for maintenance and cure,

seeking punitive damages. 557 U.S. at 411. The Court noted that the common law

had long recognized punitive damages and that such damages extended to "claims

arising under federal maritime law." Id. The Townsend Court noted further that

nothing in maritime law prohibited the application of punitive damages in the

maintenance and cure context. Id. at 412. The Court stated three points central to

deciding whether punitive damages were available in general maritime actions:

(1) "punitive damages have long been available at common law," (2) "the common-

law tradition of punitive damages extends to maritime claims," and (3) "there is no

evidence that claims for maintenance and cure were excluded from this general



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Tabingo v. American Triumph LLC
No. 92913-1


admiralty rule." !d. at 414-15. The intent ofthe Jones Act was to protect seamen as

'"wards of admiralty,"' and was designed "'to enlarge that protection, not to narrow

it."' !d. at417 (quoting TheArizonav. Anelich, 298 U.S. 110, 123,56 S. Ct. 707,80

L. Ed. 1075 (1936)). Therefore, because the Jones Act was not an explicit federal

prohibition, punitive damages were available under the general maritime maintenance

and cure claim.

       Townsend applies in this case. Tabingo seeks punitive damages for his

unseaworthiness claim. As noted in Townsend, punitive damages have historically

been available at common law and those common law punitive damages extend to

general maritime law. The only question then is whether there is reason to believe

that unseaworthiness is excluded from this "general admiralty rule." Id. at 415. We

find it is not excluded.

       As noted above, unseaworthiness claims were available in general maritime

law before negligence claims were recognized. Because recovery for pure negligence

was either totally unavailable or so limited as to be functionally inaccessible, courts

began recognizing recovery based on unseaworthy conditions caused by negligence.

Mitchell, 362 U.S. at 544-45 (discussing the evolution of American unseaworthiness

doctrine). However, these unseaworthiness claims were not treated as negligence

claims. Rather, the owner's duty to provide a seaworthy vessel was a duty separate

from and in addition to other maritime duties. The Osceola, 189 U.S. at 175. A



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Tabingo v. American Triumph LLC
No. 92913-1


seaman can recover for both negligence and unseaworthiness in the same action. See

BENEDICT ON ADMIRALTY,      supra,§ 2, at 1-8.

      The intent of the Jones Act was to protect seamen as wards of admiralty and to

expand protections rather than limit them. Townsend, 557 U.S. at 417. Similar to

maintenance and cure, neither the United States Supreme Court nor Congress has

indicated that unseaworthiness should be excluded from the general admiralty rule.

American Seafoods urges that the Jones Act prohibits recovery of punitive damages.

However, because this statutory remedy was in addition to other, preexisting remedies

in general maritime law, the Jones Act does not disturb the availability of punitive

damages. !d. at 416.

      As explained above, at common law punitive damages were available and

common law remedies extended to general maritime law, and there is no reason to

believe unseaworthiness has been excluded from this general maritime rule. Because

this is a maritime case, this court follows federal maritime law. Therefore, we find

that a request for punitive damages may be brought for a general maritime

unseaworthiness claim.

   3. The Townsend Decision Indicates That Miles Is Not Controlling in This Case

      American Seafoods urges that Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.

Ct. 317, 112 L. Ed. 2d 275 (1990), should steer our reasoning in this case. However,




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Tabingo v. American Triumph LLC
No. 92913-1


we decline to adopt that rationale here. Due to its own language and subsequent

United States Supreme Court precedent, Miles does not control this case.

       Miles limits its holding solely to wrongful death claims. In Miles, the mother

of a dead seaman brought an unseaworthiness claim stemming from wrongful death

and sought punitive damages. I d. at 21-22. The Court recognized that the "legislative

judgment behind the Jones Act, [the Death on the High Seas Act], and the many state

statutes" warranted the recognition of a general maritime wrongful death action. I d. at

24. However, because Congress had directly spoken to wrongful death recovery and

explicitly limited it to pecuniary loss, the Court reasoned the damages for maritime

wrongful death were limited as well. Id. at 31. It held that punitive damages, as

nonpecuniary damages, were not available.

       But this rule is limited only to particular types of claims. The Court noted that

the Jones Act "evinces no general hostility to recovery under maritime law," and that

the act "does not disturb seamen's general maritime claims for injuries resulting from

unseaworthiness." Id. at 29. This indicates the Court did not intend this limitation on

damages to expand beyond the claims at issue in Miles. That case is limited to claims

rooted in statute.

       The United States Supreme Court also analyzed Miles in Townsend,

determining that it has limited applicability in the general maritime context. While

the Court stated that the "reasoning of Miles remains sound," it also noted that the



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Tabingo v. American Triumph LLC
No. 92913-1


reasoning in Miles is not universally applicable. 557 U.S. at 420. Because the cause

of action in Townsend and the remedy sought were both "well established before the

passage of the Jones Act," and because Congress had not spoken directly to the issue,

punitive damages for maintenance and cure were appropriate. !d. at 420-21. The

Miles rationale did not apply. We use that same reasoning here. Claims for

unseaworthiness predate the Jones Act and are not based on a statutory remedy.

Further, as noted in Townsend, the Jones Act does not directly address damages for

general maritime claims. !d. at 420. There is no other indication that unseaworthiness

should be excluded from the general maritime rule. Because of this, Miles does not

restrict a general maritime claim for unseaworthiness.

      Nonetheless, American Seafoods argues that we should follow the Fifth

Circuit's decision in McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014)

(plurality opinion), which articulates a limit on punitive damages for unseaworthiness.

In McBride, two living seamen and the personal representative of a deceased seaman

all brought unseaworthiness claims and Jones Act negligence claims, seeking both

compensatory and punitive damages. !d. at 384. The lead opinion for a fractured

court held that punitive damages were unavailable for all the plaintiffs. !d. at 391

(lead opinion for a 7-2-6 en bane decision). It followed Miles's reasoning, noting that

because the Jones Act limits recovery of punitive damages for actions brought under

it, the same result must occur when a Jones Act claim and general maritime claim are



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Tabingo v. American Triumph LLC
No. 92913-1


joined in the same action. McBride, 768 F.3d at 388-89. However, as discussed

above, this rationale misinterprets both Miles and its interaction with Townsend.

Miles is limited to tort remedies grounded in statute. Unseaworthiness is not such a

remedy. Congress has not directly addressed the damages available for an

unseaworthiness claim. Because of this, following Townsend, punitive damages for

unseaworthiness have not been curtailed.

      Absent an indication that a general maritime cause of action has been removed

from the general maritime rule, common law remedies are still available. Therefore,

we apply Townsend's rationale and find that punitive damages are available for

unseaworthiness claims.

   4. Washington Jurisprudence Suggests That Punitive Damages May Be Available
      I-fere

      Washington courts have not dealt squarely with this issue, but our

jurisprudence suggests that punitive damages are available for unseaworthiness

claims. Washington is one of only a few states that does not regularly provide

punitive damages for egregious conduct. Dailey v. N. Coast Life Ins. Co., 129 Wn.2d

572, 575, 919 P.2d 589 (1996). However, maritime actions brought in state courts

"are governed by federal maritime law." Clausen, 174 Wn.2d at 76. Therefore,




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Tabingo v. American Triumph LLC
No. 92913-1


federal law, rather than state law, governs whether punitive damages are available

here. ld.

      We briefly addressed the punitive damages question in Clausen. There, we

noted that Townsend dealt with the availability of punitive damages in general

maritime law. ld. at 80. We also noted that the Jones Act did not restrict the damages

available under the common law. Id. Thus, "the statutory limitations [of the Jones

Act] did not affect the types of damages recoverable under general maritime law, such

as punitive damages in maintenance and cure actions." I d. (emphasis added). Though

the parties did not directly challenge whether punitive damages could be recovered,

the reasoning in Clausen indicates that punitive damages could be available under

general maritime causes of action. Id. at 83-84. Because unseaworthiness is such a

general maritime action, we now hold that plaintiffs may recover punitive damages

for unseaworthiness claims.

   5. Federal Policy Provides Seamen Special Protection as Wards ofAdmiralty

      Finally, the policy of treating seamen with particular care suggests that seamen

should be able to recover punitive damages under certain circumstances. Courts have

historically identified seamen as "wards of the admiralty." Harden v. Gordon, 11 F.

Cas. 480,485 (C.C.D. Ma. 1823) (No. 6,047); Mahnich v. Southern S.S. Co., 321 U.S.

96, 103, 64 S. Ct. 455, 88 L. Ed. 2d 561 (1944); US. Bulk Carriers, Inc. v. Arguelles,

400 U.S. 351, 355, 91 S. Ct. 409, 27 L. Ed. 2d 456 (1971). Common law provided



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Tabingo v. American Triumph LLC
No. 92913-1


seamen special protection because they were "subject to the rigorous discipline of the

sea, and all the conditions of [their] service constrain [them] to accept, without critical

examination and without protest, working conditions and appliances as commanded

by [their] superior officers." Mahnich, 321 U.S. at 103.

       Allowing for punitive damages here is consistent with this policy of protecting

seamen. The purpose of punitive damages is not to compensate a harmed party, but to

serve as punishment and to deter others from engaging in similar conduct in the

future. Exxon Shipping Co. v. Baker, 554 U.S. 471, 492-93, 128 S. Ct. 2605, 171 L.

Ed. 2d 570 (2008). Federal law indicates that punitive damages may be available for

anything from reckless to malicious conduct. !d. at 493-94. Here, Tabingo alleges

that American Seafoods knowingly maintained an unseaworthy vessel for two years

before the incident. Taking his allegations as true, American Seafoods' conduct could

fall into the realm of reckless or malicious behavior. As such, an award of punitive

damages would punish American Seafoods, serve as an example for other ship

owners, and maintain the law's historical treatment of seamen as special wards of

admiralty.

       The policy question we answer is whether punitive damages would help

effectuate the goal of providing seamen with particular protection. Though the finder

of fact is the one tasked with determining whether punitive damages are warranted,

our jurisprudence and policy indicate that as a matter of law, punitive damages are not



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Tabingo v. American Triumph LLC
No. 92913-1


barred. We hold that availability of punitive damages furthers the policy surrounding

general maritime causes of action.

                                     CONCLUSION

       We hold that a seaman making a claim for general maritime unseaworthiness

can recover punitive damages as a matter of law. First, the rationale in Townsend

indicates as such. Punitive damages are available in general maritime claims.

Because there is no indication that unseaworthiness claims have been excluded from

this general rule, punitive damages are available for unseaworthiness. Second, the

Miles decision is limited to wrongful death actions. It is therefore inapplicable to

unseaworthiness claims. Finally, recognizing the availability of punitive damages

supports the policy of protecting seamen as wards of admiralty. Because of this, we

reverse the trial court's partial dismissal and remand to that court for further

proceedings consistent with this decision.




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Tabingo v. American Triumph LLC
No. 92913-1




WE CONCUR:




                                  17
