     Case: 12-30714   Document: 00512782966   Page: 1   Date Filed: 09/25/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                               No. 12-30714                    September 25, 2014
                                                          Lyle W. Cayce
HALEIGH JANEE MCBRIDE, individually & on behalf of I. M. S., Clerk

       Plaintiff - Appellant

v.

ESTIS WELL SERVICE, L.L.C.,

       Defendant - Appellee


BRIAN J. SUIRE,

       Plaintiff - Appellant

v.

ESTIS WELL SERVICE, L.L.C.,

       Defendant - Appellee


SAUL C. TOUCHET,

       Plaintiff - Appellant

v.

ESTIS WELL SERVICE, L.L.C.,

       Defendant - Appellee
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                                    No. 12-30714



                  Appeal from the United States District Court
                     for the Western District of Louisiana


Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
BARKSDALE, * DENNIS,     CLEMENT, PRADO,      OWEN, ELROD,
SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges. **

W. EUGENE DAVIS, Circuit Judge:
      We took this case en banc to decide whether the seaman plaintiffs in this
case, both the injured seamen and the personal representative of the deceased
seaman, can recover punitive damages under either the Jones Act or the
general maritime law. We affirm the district court and conclude that this case
is controlled by the Supreme Court’s decision in Miles v. Apex Marine Corp., 1
which holds that the Jones Act limits a seaman’s recovery to pecuniary losses
where liability is predicated on the Jones Act or unseaworthiness. Because
punitive damages are non-pecuniary losses, punitive damages may not be
recovered in this case.
                          FACTS AND PROCEEDINGS
      These consolidated cases arise out of an accident aboard Estis Rig 23, a
barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a
navigable waterway in the State of Louisiana. The truck right toppled over,
and one crew member, Skye Sonnier, was fatally pinned between the derrick
and mud tank, and three others, Saul Touchet, Brian Suire, and Joshua




      *  Judge BARKSDALE was a member of the original panel and sat with the full Court
for rehearing en banc.
       ** Circuit Judge COSTA was not a member of the Court when this case was submitted

for rehearing en banc and did not participate in this decision.
       1 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990).

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                                        No. 12-30714
Bourque, 2 have alleged injuries. At the time of the incident, Estis Well Service,
L.L.C. (“Estis”) owned and operated Rig 23, and employed Sonnier, Touchet,
Suire, and Bourque (collectively, the “crew members”).
      Haleigh McBride, individually, on behalf of Sonnier’s minor child, and as
administratrix of Sonnier’s estate, filed suit against Estis, stating causes of
action for unseaworthiness under general maritime law and negligence under
the Jones Act and seeking compensatory as well as punitive damages under
both claims. The other crew members filed separate actions against Estis
alleging the same causes of action and also requesting compensatory and
punitive damages. Upon the crew members’ motion, the cases were
consolidated into a single action. Estis moved to dismiss the claims for punitive
damages, arguing that punitive damages are not an available remedy as a
matter of law where liability is based on unseaworthiness or Jones Act
negligence. Treating it as a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c), the court granted the motion and entered
judgment dismissing all claims for punitive damages. Recognizing that the
issues presented were “the subject of national debate with no clear consensus,”
the court granted plaintiffs’ motion to certify the judgment for immediate
appeal under 28 U.S.C. § 1292(b). This interlocutory appeal followed.
      The panel, in a scholarly opinion, concluded that the Supreme Court’s
recent opinion in Atlantic Sounding Co., Inc. v. Townsend 3 controlled this case.
The panel acknowledged that the Townsend court was presented with the
limited issue of whether a seaman can recover punitive damages from his
employer for willful failure to pay maintenance and cure. That case did not
involve a claim for punitive damages under either the Jones Act or the general



      2   Bourque has settled.
      3   557 U.S. 404, 129 S. Ct. 2561, 174 L. Ed. 2d 382 (2009).
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                                      No. 12-30714
maritime law. The panel, however, reasoned that the implication of
Townsend’s holding is broader and teaches that because the unseaworthiness
cause of action and the punitive damages remedy pre-existed the Jones Act
and the Jones Act did not address either, then both the cause of action and
remedy of punitive damages are available to injured seamen and the survivors
of deceased seamen.
         We granted rehearing en banc to determine whether the Supreme
Court’s decision in Miles, holding that the Jones Act limits a seaman’s recovery
for unseaworthiness under that Act or the general maritime law to “pecuniary
losses,” is still good law and whether that holding precludes plaintiffs’ claims
for punitive damages.
                             STANDARD OF REVIEW
         Whether punitive damages are an available remedy under the Jones Act
and general maritime law to seamen or their survivors is a question of law we
review de novo. 4
                                     DISCUSSION
                                             I.
                                    A. Background
         Appellants’ arguments are founded primarily on their claim under
general maritime law. A brief discussion of the legal and historical background
of the general maritime law as it relates to the plaintiffs’ case is therefore in
order.
         We start from the bedrock premise that the “[j]udicial power, in all cases
of admiralty and maritime jurisdiction, is delegated by the Constitution to the
Federal Government in general terms,” 5 reflecting “the adoption by all


        See Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir. 2007), aff’d,
         4

557 U.S. 404 (2009).
      5 The St. Lawrence, 66 U.S. 522, 526, 17 L. Ed. 180 (1861).

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                                     No. 12-30714
commercial nations (our own included) of the general maritime law as the basis
and groundwork of all their maritime regulations.” 6 Once general maritime
law was embedded in federal law, however, the question arose as to which
branch of government had the authority to modify the maritime law. Over 160
years ago, the Supreme Court declared that the maritime law was subject to
regulation by Congress: “The power of Congress to change the mode of
proceeding in this respect in its courts of admiralty, will, we suppose, hardly
be questioned.” 7 The Court later summarized: “[I]t must now be accepted as
settled doctrine that, in consequence of these provisions, Congress has
paramount power to fix and determine the maritime law which shall prevail
throughout the country.” 8
      In 1886, the Court, in The Harrisburg, 9 held that no action for wrongful
death “will lie in the courts of the United States under the general maritime
law.” That remained the law of the land until the Supreme Court overruled
The Harrisburg in Moragne v. States Marine Lines, Inc. in 1970. 10
                          B. The Jones Act and FELA
      In 1920, Congress enacted the Jones Act, 46 U.S.C. § 30104, and
extended to seamen the same negligence remedy for damages afforded to
railroad workers under the Federal Employers’ Liability Act (“FELA”). 11 This
provided a remedy to seamen and their survivors to sue for compensation for
personal injury and wrongful death based on the negligence of the seamen’s
employer. Because Congress imported FELA into the Jones Act, we must begin
our analysis with FELA.



      6 The Lottawanna, 88 U.S. 558, 572-73, 22 L. Ed. 654 (1874).
      7 The Genesee Chief, 53 U.S. 443, 459-60, 13 L. Ed. 1058 (1851).
      8 S. Pac. Co. v. Jensen, 244 U.S. 205, 215, 37 S. Ct. 524, 61 L. Ed. 1086 (1917).
      9 119 U.S. 199, 213, 7 S. Ct. 140, 30 L. Ed. 358 (1886).
      10 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970).
      11 Miles, 498 U.S. at 23-24.

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                                      No. 12-30714
      Under 45 U.S.C. §§ 51-59, FELA provides that a carrier is liable for its
negligence, although the employee’s recovery is reduced if he was negligent. 12
The compensation allowed for the employee’s recovery is simply “in
damages.” 13 The damages allowed under FELA were defined by the Supreme
Court in Michigan Central Railroad Co. v. Vreeland. 14 In construing FELA, the
Court stated with respect to damages in this wrongful death action: “It is a
liability for the loss and damage sustained by relatives dependent upon the
decedent. It is therefore a liability for the pecuniary damage resulting to them
and for that only.” 15
      The Vreeland Court stated that the damages under FELA “are such as
flow from the deprivation of the pecuniary benefits which the beneficiaries
might have reasonably received if the deceased had not died from his
injuries.” 16 As there must be “some reasonable expectation of pecuniary
assistance or support of which they have been deprived” the Court held that
“[c]ompensation for such loss manifestly does not include damages by way of
recompense for grief or wounded feelings.” 17 Similarly, the term “pecuniary”
“excludes, also, those losses which result from the deprivation of the society
and companionship, which are equally incapable of being defined by any
recognized measure of value.” 18 Because the jury instruction on damages in
Vreeland was not “confined to a consideration of the financial benefits which
might reasonably be expected from [the decedent] in a pecuniary way,” the
Court reversed the judgment entered on the verdict. 19



      12 45 U.S.C. §§ 51, 53.
      13 Id. § 51.
      14 227 U.S. 59, 33 S. Ct. 192, 57 L. Ed. 417 (1913).
      15 Id. at 69.
      16 Id. at 70.
      17 Id.
      18 Id. at 71 (internal quotation marks omitted).
      19 Id. at 73-74.

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                                    No. 12-30714
      With this background, we turn to the Supreme Court’s unanimous
opinion in Miles in 1990, which we conclude controls this appeal.
                                          II.
                                       A. Miles
      The facts in Miles are on all fours with Ms. McBride’s wrongful death
action. In both cases, the personal representative of a deceased seaman sued
the employer for wrongful death under the Jones Act and general maritime
law. No maintenance and cure action was presented in either case. In both
cases the seaman met his death in the service of his ship in state waters. The
Supreme Court made three significant holdings relevant to this case. The
Court held that:
      (1)    Before the Court’s decision in Moragne v. States Marine Lines, Inc.
in 1970, 20 the general maritime law provided no recovery for wrongful death. 21
      (2)    The Court then recognized the anomaly created by the Court’s
Moragne decision, which granted to survivors of longshoremen killed in state
waters the right to sue for unseaworthiness under the general maritime law,
yet afforded no similar right to the seaman’s survivors to sue for wrongful
death under the general maritime law. The Court then expressly extended the
rule established in Moragne to the seaman’s survivors, recognizing for the first
time their right to assert a general maritime law cause of action for wrongful
death. 22
      (3)    Finally, the Court considered the issue presented directly in this
case: the scope of the survivor’s recovery in her general maritime
law/unseaworthiness action for wrongful death. The Court, after extended


      20 398 U.S. 375 (1970).
      21 See Miles, 498 U.S. at 23-24; see also The Harrisburg, 119 U.S. 199; Kenneth G.
Engerrand & Scott R. Brann, Troubled Waters for Seamen’s Wrongful Death Actions, 12 J.
MAR. L. & COM. 327, 335 (1981).
      22 Miles, 498 U.S. at 30.

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                                       No. 12-30714
discussion and analysis, limited the survivors in Miles to recovery of their
“pecuniary losses.” The Court therefore denied recovery for damages for loss of
society. 23
       In considering this element of damages, the Miles Court began its
analysis by discussing its decision in Mobil Oil Corp. v. Higginbotham, 24 in
which the Court had considered the scope of a survivor’s recovery under the
Death on the High Seas Act (“DOHSA”) for a person killed on the high seas.
The Court noted that in Higginbotham, it had rejected a claim for loss of society
because Congress, in DOHSA, expressly limited recovery to “pecuniary losses.”
It therefore declined to supplement the statute and allow more expansive
damages. The Court emphasized the important language it relied on from
Higginbotham: “But in an ‘area covered by the statute, it would be no more
appropriate to prescribe a different measure of damages than to prescribe a
different statute of limitations, or a different class of beneficiaries.’” 25
       The Court then reasoned that its logic in Higginbotham controlled its
decision in Miles. The Court first acknowledged that unlike the statutory
language in DOHSA, neither the Jones Act nor FELA made explicit the
“pecuniary loss” limitation. The Court concluded, however, that the limitation
applied:
              When Congress passed the Jones Act, the Vreeland
              gloss on FELA, and the hoary tradition behind it, were
              well established. Incorporating FELA unaltered into
              the Jones Act, Congress must have intended to
              incorporate the pecuniary limitation on damages as
              well. We assume that Congress is aware of existing



       23  Id. at 30-33. In Miles, the deceased seaman’s mother sought compensation for both
the loss of support and services and loss of society, but the jury was instructed she could only
recover for loss of society if she had been financially dependent on him.
        24 436 U.S. 618, 98 S. Ct. 2010, 2014, 56 L. Ed. 2d 581 (1978).
        25 498 U.S. at 31 (quoting Higginbotham, 436 U.S. at 625).

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                                      No. 12-30714
              law when it passes legislation. There is no recovery for
              loss of society in a Jones Act wrongful death action.

              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. 26

       The Court therefore squarely held that the recovery of the deceased
seaman’s survivors under the Jones Act is limited to pecuniary losses. The
Court then turned to the scope of the survivor’s recovery for unseaworthiness
under the general maritime law. As the Court explained, our place in the
constitutional scheme does not permit us
              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
              seamen. 27

Thus, the Miles court established “a uniform rule applicable to all actions for
the wrongful death of a seaman, whether under DOHSA, the Jones Act or the
general maritime law.” 28
       In summary, Miles decided in a wrongful death case completely
indistinguishable from Ms. McBride’s case that Congress, by incorporating
FELA as the predicate for liability and damages in the Jones Act to seamen
and their survivors, intended to import into the Jones Act the Vreeland



       26 Id. at 32 (citation omitted).
       27 Id. at 32-33. In other words, because nonpecuniary damages are not available under
the Jones Act (a fault-based scheme) even in cases of egregious conduct, it would not make
sense to permit such damages under an unseaworthiness claim, which has not required any
showing of fault since the Supreme Court’s decision in Mahnich v. Southern S.S. Co., 321
U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944), several decades before Miles was decided.
       28 Miles, 498 U.S. at 33.

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                                       No. 12-30714
“pecuniary limitation on damages as well.” 29 Just as in Higginbotham, the
Court did not “pause to evaluate the opposing policy arguments” because
“Congress has struck the balance for us. It has limited survivors to recovery of
their pecuniary losses.” 30 The Court did not limit its holding to claims under
the Jones Act. Rather, the Court held that the damages available under the
general maritime law cause of action for wrongful death—which cause of action
the Court recognized for the first time in Miles—were likewise limited to
recovery of pecuniary losses.
       The Jones Act applies to both injured seamen and those killed through
the negligence of their employer. Even though Miles was a wrongful death
action, no one has suggested why its holding and reasoning would not apply to
an injury case such as those asserted by Messrs. Suire and Touchet. 31 No case
under FELA has allowed punitive damages, whether for personal injury or
death. 32 Because the Jones Act adopted FELA as the predicate for liability and
damages for seamen, no cases have awarded punitive damages under the Jones
Act. 33 It follows from Miles that the same result flows when a general maritime



       29  Id. at 32.
       30  Higginbotham, 436 U.S. at 623.
        31 Indeed, we recognized just such a rule in Murray v. Anthony J. Bertucci Constr. Co.,

Inc., 958 F.2d 127 (5th Cir. 1992), in which we applied Miles to an injury case and barred
nonpecuniary loss of society damages to the spouse of the plaintiff seaman asserting an
unseaworthiness claim coupled with a Jones Act negligence claim.
        32 See Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1457 (6th Cir. 1993) (“It has

been the unanimous judgment of the courts since before the enactment of the Jones Act that
punitive damages are not recoverable under the Federal Employers’ Liability Act.” (citing
Kozar v. Chesapeake & O. Ry. Co., 449 F.2d 1238, 1240-43 (6th Cir. 1971)); Wildman v.
Burlington N. R.R. Co., 825 F.2d 1392, 1395 (9th Cir. 1987) (“[P]unitive damages are
unavailable under the FELA.”).
        33 See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir. 1987), opinion modified

on reh’g, 866 F.2d 318 (9th Cir. 1989) (“Punitive damages are non-pecuniary damages
unavailable under the Jones Act. . . . Punitive damages are therefore also unavailable under
DOHSA.” (citing Kopczynski v. The Jacqueline, 742 F.2d 555, 561 (9th Cir. 1984)); Miller, 989
F.2d at 1457 (“Punitive damages are not therefore recoverable under the Jones Act.” (citing
Kopczynski, 742 F.2d at 560-61)).
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                                    No. 12-30714
law personal injury claim is joined with a Jones Act claim. So Miles’s conclusion
that regardless of opposing policy arguments, “Congress has struck the balance
for us” in determining the scope of damages, applies to the personal injury
actions as well as Ms. McBride’s wrongful death action.
      Although Congress and the courts both have a lawmaking role in
maritime cases, “Congress has paramount power to fix and determine the
maritime law which shall prevail throughout the country.” 34 Even if a general
maritime law remedy for wrongful death had been available to seamen in 1920,
when Congress enacted the Jones Act, 35 the Supreme Court’s interpretation of
the Jones Act in Miles must control, and it resolves the question presented in
this appeal.
                                   B. Townsend
      Appellant argues that the decision of the Supreme Court in Atlantic
Sounding Co. v. Townsend overrules or severely undermines Miles so that it
does not control today’s case. But instead of overruling Miles, the Townsend
Court carefully distinguished its facts from Miles and reaffirmed that Miles is
still good law.
      In Townsend, the Court considered a seaman’s claim for punitive
damages for the willful failure to pay maintenance and cure. In distinguishing
its maintenance and cure case from Miles’s wrongful death action, the Court
in Townsend recognized that “a seaman’s action for maintenance and cure is
‘independent’ and ‘cumulative’ from other claims such as negligence and that
the maintenance and cure right is ‘in no sense inconsistent with, or an
alternative of, the right to recover compensatory damages [under the Jones




      34Jensen, 244 U.S. at 215.
      35 Again, until The Harrisburg was overruled by Moragne in 1970, no action for
wrongful death was recognized under the general maritime law. Miles, 498 U.S. at 23-24.
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                                       No. 12-30714
Act].’” 36 The Court agreed that “both the Jones Act and the unseaworthiness
remedies are additional to maintenance and cure: the seaman may have
maintenance and cure and also one of the other two.” 37 Unlike the seaman’s
remedy for damages based on negligence and unseaworthiness, “the Jones Act
does not address maintenance and cure or its remedy.” 38 Thus, in contrast to
the action for damages based on unseaworthiness, in an action for maintenance
and cure it is “possible to adhere to the traditional understanding of maritime
actions and remedies without abridging or violating the Jones Act; unlike
wrongful-death actions, this traditional understanding is not a matter to which
‘Congress has spoken directly.’” 39
       The Townsend court expressly adopted Miles’s reasoning by recognizing
that “Congress’ judgment must control the availability of remedies for
wrongful-death actions brought under general maritime law.” 40 The Court
could not have been clearer in signaling its approval of Miles when it added:
“The reasoning of Miles remains sound.” 41
                                  C. Pecuniary Losses
       Appellants argue finally that even if their recovery on their general
maritime law action is limited to pecuniary loss, punitive damages should be




       36   Townsend, 557 U.S. at 423 (alteration in original, quoting Pacific S.S. Co. v.
Peterson, 278 U.S. 130, 138-39, 49 S. Ct. 75, 73 L. Ed. 220 (1928)). This language reflects the
Townsend Court’s understanding that the negligence/unseaworthiness actions are
alternative, overlapping actions derived from the same accident and look toward the same
recovery. The Court explicitly contrasted these actions with the independent maintenance
and cure action. See Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S. Ct. 600, 71 L. Ed. 1069
(1927) (reasoning that the negligence and unseaworthiness actions are alternative causes of
action, so closely related that judgment on one is res judicata of the other).
        37 Townsend, 557 U.S. at 424 (quoting G. Gilmore & C. Black, THE LAW OF ADMIRALTY

§ 6–23, p. 342 (2d ed. 1975)).
        38 Id. at 420.
        39 Id. at 420-21 (quoting Miles, 498 U.S. at 31).
        40 Id. at 419 (citing Miles, 498 U.S. at 32-36).
        41 Id. at 420.

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characterized as pecuniary losses. Appellants have no legal authority whatever
to support this argument.
       We start with FELA because that is the statutory source of the Vreeland
pecuniary loss limitation. Every circuit court case on the subject holds that
punitive damages are not recoverable under FELA because those losses are
non-pecuniary. 42 The description of pecuniary losses in Supreme Court cases
belie the argument that punitive damages could be characterized as pecuniary.
In Gulf, Colorado & Santa Fe Railway v. McGinnis, which came out shortly
after Vreeland, the Supreme Court reiterated the rule announced therein:
              [T]he act [FELA] in this aspect has been construed as
              intended only to compensate the surviving relatives of
              such a deceased employee for the actual pecuniary loss
              resulting to the particular person or persons for whose
              benefit an action is given. The recovery must therefore
              be limited to compensating those relatives for whose
              benefit the administrator sues as are shown to have
              sustained some pecuniary loss. 43

       The message that pecuniary loss is designed to compensate the plaintiff
for an actual loss suffered comes through loud and clear. The statement in
Miles itself describing the covered losses stated that in “[i]ncorporating FELA
unaltered into the Jones Act, Congress must have intended to incorporate the
pecuniary limitation on damages as well.” 44 At least two circuit cases have held
that punitive damages under the Jones Act are not recoverable because they
are non-pecuniary. 45 Furthermore, interpreting Miles, at least one circuit case



       42 See, e.g., Miller, 989 F.2d at 1457; Wildman, 825 F.2d at 1395.
       43 228 U.S. 173, 175 (1913) (emphasis added) (citing Vreeland, 227 U.S. 59, and Am.
R. Co. of Porto Rico v. Didricksen, 227 U.S. 145, 33 S. Ct. 224, 57 L. Ed. 456 (1913)).
       44 498 U.S. at 32.
       45 See Bergen, 816 F.2d at 1347 (“Punitive damages are non-pecuniary damages

unavailable under the Jones Act. . . . Punitive damages are therefore also unavailable under
DOHSA.” (citing Kopczynski, 742 F.2d at 561)); Miller, 989 F.2d at 1457 (“Punitive damages
are not therefore recoverable under the Jones Act.” (citing Kopczynski, 742 F.2d at 560-61)).
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                                      No. 12-30714
has held that punitive damages are barred for an unseaworthiness claim under
general maritime law because such damages are nonpecuniary. 46 No circuit
cases are to the contrary.
       Indeed, before Townsend, respected commentary unequivocally stated:
“The Jones Act precludes punitive damages because they are non-pecuniary in
nature. The seaman may not use a general maritime law claim to recover
damages that would be unavailable under the Jones Act; thus punitive
damages are properly denied in such seamen’s cases.” 47 This is consistent with
the black letter law courts routinely include in jury charges, e.g.: “In addition
to actual damages, the law permits a jury, under certain circumstances, to
award the injured person punitive and exemplary damages in order to punish
the wrongdoer for some extraordinary misconduct and to serve as an example
or warning to others not to engage in such conduct.” 48 Punitive damages simply
do not fit under the case law as a subset of pecuniary losses.
                                    III. Conclusion
       In the words of the Supreme Court, “Congress has struck the balance for
us.” 49 On the subject of recoverable damages in a wrongful death case under
the Jones Act and the general maritime law, it has limited the survivor’s
recovery to pecuniary losses. Appellants have suggested no reason this holding




       46 See Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1094 (2d Cir. 1993)
(“We are in general agreement with the view that plaintiffs who are not allowed by general
maritime law to seek nonpecuniary damages for loss of society should also be barred from
seeking nonpecuniary punitive damages.”).
       47 THOMAS J. SCHOENBAUM, ADMIRALTY & MAR. LAW § 5-18 (5th ed.) (footnotes

omitted).
       48 KEVIN F. O’MALLEY, JAY E. GRENIG & HON. WILLIAM C. LEE, 3 FEDERAL JURY

PRACTICE AND INSTRUCTIONS § 128:81 (6th ed. 2013) (emphasis added). See also Fifth Circuit
Pattern Jury Instruction No. 4.10, which provides, in relevant part: “The purpose of an award
of punitive damages is to punish the defendant and to deter him and others from acting as
he did.”
       49 Higginbotham, 436 U.S. at 623.

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                                        No. 12-30714
and analysis would not apply equally to the plaintiffs asserting claims for
personal injury.
      The Supreme Court, in Townsend, did not overrule Miles. Rather, it took
pains to distinguish that maintenance and cure case from Miles and confirmed
that “[t]he reasoning of Miles remains sound.” 50
      Based on Miles and other Supreme Court and circuit authority,
pecuniary losses are designed to compensate an injured person or his
survivors. Punitive damages, which are designed to punish the wrongdoer
rather than compensate the victim, by definition are not pecuniary losses.
      Punitive damages are not recoverable by the plaintiffs in these actions.
The judgment of the district court is AFFIRMED.




      50   Townsend, 557 U.S. at 420.
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                                No. 12-30714
EDITH BROWN CLEMENT, Circuit Judge, concurring, joined by JOLLY,
JONES, SMITH, and OWEN, Circuit Judges.



      While I join the majority opinion, I write separately to further explain
the historical background mandating this result.


                                      I.
      McBride’s argument in favor of punitive damages largely requires
establishing that punitive damages were historically available in pre-Jones Act
unseaworthiness cases. To establish this, McBride relies on three main points:
       First, the Supreme Court’s discussions in Townsend and Baker
        indicating that punitive damages were available in at least some
        maritime law cases before the Jones Act.

       Second, this Circuit’s post-Jones Act, pre-Miles case law approving
        of punitive damages in unseaworthiness cases. See, e.g., In re Merry
        Shipping, Inc., 650 F.2d 622, 626 (5th Cir. Unit B 1981).

       Third, pre-Jones Act unseaworthiness cases that McBride claims
        awarded punitive damages.

When examined closely, none of these arguments establish McBride’s ultimate
contention. To the contrary, decades of maritime practice, along with the
Supreme Court’s discussions of unseaworthiness liability in The Osceola, 189
U.S. 158 (1903), as well as the Court’s subsequent clarification in Pacific
Steamship Co. v. Peterson that unseaworthiness plaintiffs are “entitled
to . . . [an] indemnity by way of compensatory damages,” 278 U.S. 130, 138
(1928),   demonstrate that punitive        damages   were    not available for
unseaworthiness.




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                                      No. 12-30714
   A. Supreme Court Jurisprudence Does Not Require Punitive
      Damages In Unseaworthiness Cases.
       As a matter of law and common sense, Exxon Shipping Co. v. Baker, 554
U.S. 471 (2008), does not resolve the question before us. As for the law, Baker
only addressed whether the Clean Water Act preempted the punitive damages
supposedly available at general maritime law—not whether punitives were
available in unseaworthiness actions. See, e.g., id. at 490. And as for common
sense, the narrowness of Baker explains why the Townsend Court actually had
to address the issue of punitive damages in maintenance and cure cases rather
than simply saying that they had already addressed the issue in Baker. 1
       That leaves McBride with the thin strand of Townsend. But Townsend,
as a maintenance and cure case, 2 offers minimal support given the significant
differences between maintenance and cure actions and unseaworthiness
actions. While McBride’s counsel dismissed these differences in his arguments
to this court, his prior academic writings recognized them as reasonable:
       [D]istrict judges . . . reason[ed] roughly as follows: the Jones Act
       and unseaworthiness actions are Siamese twins. Therefore, once
       one . . . takes Miles to mean that punitive damages are unavailable

       1 McBride counters strenuously that the result in Baker makes no sense unless
seamen—the wards of admiralty—are given the same exact remedy as third parties injured
in a maritime context. But McBride’s argument focuses too much on the magnitude of a
seaman’s recovery, and not enough on the probability of a seaman’s recovery. That a seaman
is a ward of admiralty has not traditionally meant that a seaman must always be granted
every possible litigation advantage under the general maritime law. Compare, e.g., The
Osceola, 189 U.S. at 175 (noting that a seaman is “not allowed to recover an indemnity for
the negligence of the master”), with Leathers v. Blessing, 105 U.S. 626, 630 (1881)
(recognizing a negligence recovery under the general maritime law), and Atl. Trans. Co. of
W. Va. v. Imbrovek, 234 U.S. 52, 63 (1914) (same).
       Rather, a seaman’s special status brings with it a specialized set of rights that both
provides advantages in some regards and disadvantages in other regards. Accordingly, there
is nothing inherently incongruous with the special status of seamen for seamen to have lesser
remedies in some instances when they also are granted a unique right—backed up by the
specter of punitive damages—to a virtually guaranteed maintenance and cure remedy. See
also infra note 12 (noting better policy reasons for permitting punitive damages for a
wrongful failure to provide maintenance and cure than in unseaworthiness cases).
       2 See Atl. Sounding Corp. v. Townsend, 557 U.S. 404, 407 (2009).

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                                         No. 12-30714
       under the Jones Act, further extending Miles to mean that punitive
       damages are also unavailable in unseaworthiness actions is
       virtually unavoidable. But the action for damages for withholding
       maintenance and cure is completely separate and independent
       from the Jones Act and unseaworthiness claims. . . . In contrast
       with the perceived situation with the Jones Act and
       unseaworthiness actions, there is no extensive legislation from
       Congress with respect to maintenance and cure. Congress has left
       to the courts the task of writing the rules on maintenance and cure.
       Moreover, the availability of punitive damages to penalize the
       wrongful withholding of maintenance and cure is intimately tied
       to the special solicitude for the welfare of seamen and their
       families, and peculiar role of maintenance and cure in providing a
       seaman with food and lodging when he becomes sick or injured in
       the ship’s service.
       The distinction drawn by the district courts between the law of
       maintenance and cure and the Jones/unseaworthiness “Siamese
       twins” was historically and analytically sound . . . . 3
Moreover, the Supreme Court has likewise agreed that the basis for
unseaworthiness liability is different than the basis for maintenance and cure
liability. 4
       The differences between maintenance and cure and unseaworthiness
actions make maintenance and cure cases a poor guide for determining
unseaworthiness remedies. Whereas a seaman’s right to maintenance and



       3  David W. Robertson, Punitive Damages in American Maritime Law, 28 J. Mar. L. &
Comm. 73, 147-48 (1997) (emphasis added) (internal quotation marks and footnotes omitted);
see also 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-18, at 330 (5th ed. 2011)
(“[P]unitive damages may not be awarded in a seaman’s personal injury or death case either
under the Jones Act or unseaworthiness.”); David Robertson, Punitive Damages in American
Maritime Law: Miles, Baker, and Townsend, 70 La. L. Rev. 463, 464 (2010) (“Historically,
conceptually, and functionally, the unseaworthiness and Jones Act tort actions are ‘Siamese
twins.’ The much older maintenance and cure action does not derive from tort principles and
is something like a first cousin to the other two.”); cf. id. at 499 (“[O]pen questions in the tort
realm include the availability of punitive damages in unseaworthiness actions . . . .”).
        4 See, e.g., Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730 & n.8 (1943) (noting

that maintenance and cure liability is “unlike” liability for unseaworthiness and the Jones
Act).
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                                      No. 12-30714
cure is “ancient” 5 and made its first appearance in English maritime law in
1338, 6 unseaworthiness is actually an American doctrinal innovation that only
began to take shape as an independent action during the 1870s, 7 and did not
crystallize until well into the mid-twentieth century. To be sure, cases before
the 1870s recognized the shipowner had a duty to furnish a seaworthy ship.
But that duty generally did not give rise to an independent action for
damages. 8 Instead, unseaworthiness acted as an excuse for non-performance
by seamen and insurance companies.                So, for example, unseaworthiness
excused a seaman from performing his contract, 9 and rendered an insurance
contract void. 10 Thus, once American courts began permitting recovery for
unseaworthiness, thereby “allowing an indemnity beyond the expense of
maintenance and cure,” those cases represented a “departure” from the
Continental maritime tradition. 11 And notwithstanding the American courts’
judicial creativity, unseaworthiness was “an obscure and relatively little used
remedy” until it became a strict liability action during the 1940s. 12


       5 Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 (1938).
       6 See John B. Shields, Seamen’s Rights To Recover Maintenance and Cure Benefits, 55
Tul. L. Rev. 1046, 1046 (1981). Indeed, the right to maintenance and cure dates back to at
least the laws of Oleron, which were promulgated during the twelfth century. See The
Osceola, 189 U.S. 158, 169 (1903).
       7 See, e.g., The Osceola, 189 U.S. at 175.
       8 See, e.g., Reed v. Canfield, 20 F. Cas. 426, 429 (C.C.D. Mass. 1832) (Story, J.).
       9 See, e.g., The Heroe, 21 F. 525, 528 (D. Del. 1884) (“It is not denied that

unseaworthiness releases a crew, and that they become entitled to their full wages for the
month or for the voyage . . . .”). Unseaworthiness also operated as a defense to criminal
charges for refusing to obey the master’s orders. See, e.g., United States v. Nye, 27 F. Cas.
210, 211 (C.C.D. Mass. 1855); United States v. Ashton, 24 F. Cas. 873, 874-85 (C.C.D. Mass
1834).
       10 Charles Abbott, A Treatise of the Law Relative to Merchant Ships and Seamen: In

Four Parts 181 (London 1802).
       11 The Osceola, 189 U.S. at 175 (emphasis added).
       12 Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990) (quoting Grant Gilmore &

Charles L. Black Jr., The Law of Admiralty 383 (2d ed. 1975)); see also Mahnich v. S. S.S.
Co., 321 U.S. 96 (1944). As a matter of incentives, there is a greater economic need for
punitive damages in the maintenance and cure context than in the unseaworthiness context.
Whereas the shipowner has just about every economic incentive to dump an injured seaman
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                                       No. 12-30714
       These distinctions matter. If Miles v. Apex Marine Corp. stands for
anything, it at the very least signals that all damages are not automatically
available in all maritime cases. 13 Accordingly, even though we are bound by
Townsend’s determination that punitive damages were available in
maintenance and cure cases, we cannot blithely assume that because they are
available in a wholly different type of maritime action that pre-dates the
Magna Carta they are necessarily available in a maritime action that (1) was
first embraced by the Supreme Court in 1903, (2) was described early on as
providing an indemnity for compensatory damages, 14 and (3) did not take its
modern form until well after the passage of the Jones Act. Instead, we need to
examine post-Jones Act unseaworthiness cases awarding punitive damages to
see whether they provide persuasive authority one way or the other.

   B. Merry Shipping And Its Ilk Are Poor Guides
       In In re Merry Shipping, Inc., this court held, as a matter of first
impression, that punitive damages were available to unseaworthiness
plaintiffs. 650 F.2d at 626. But Merry Shipping primarily relied on (1) non-
seaworthiness cases speaking to the damages available under general
maritime law for maintenance and cure and trespass, and (2) then-
contemporaneous court cases reaching the same result. See id. at 624 n.9.



in a port and abandon him to his fate, a ship owner who agrees to put to sea with an
unseaworthy vessel risks (1) abandonment by his crew and his insurers, (2) significant
liability to the merchants whose cargo the ship is carrying, and (3) the uninsured loss of a
significant asset. And beyond these severe economic consequences, there are potential
criminal consequences as well. See 46 U.S.C. § 10908 (“A person that knowingly sends or
attempts to send, or that is a party to sending or attempting to send, a vessel of the United
States to sea, in an unseaworthy state that is likely to endanger the life of an individual,
shall be fined not more than $1,000, imprisoned for not more than 5 years, or both.”); see also
Note, Punitive Damages Stow Away in the Fifth Circuit: McBride v. Estis Well Service,
L.L.C., 38 Tul. Mar. L.J. 649, 663 (2014).
        13 See 498 U.S. at 31-33.
        14 Pac. S.S. Co., 278 U.S. at 137-38.

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                                      No. 12-30714
       Neither source establishes that punitive damages were actually
available in unseaworthiness cases prior to the Jones Act. The novel nature of
unseaworthiness actions makes other more established maritime actions (such
as maintenance and cure cases) poor guides to the availability of such damages
in unseaworthiness cases. And nearly all of the contemporaneous cases cited
in Merry Shipping address the issue in passing and merely assume the
availability of punitive damages in some other appropriate case. 15                   Only
Baptiste v. Superior Court, 106 Cal. App. 3d 87 (Cal. Ct. App. 1980) and In re
Den Norske Amerikalinje A/S, 276 F. Supp. 163 (N.D. Ohio 1967), appear to
analyze the question before this court, and in the end those cases rely on the
proposition that punitive damages are available in other areas of American law
and in some other maritime cases, and therefore, there is no reason not to
recognize punitive damages in unseaworthiness cases. Throughout all these
sources, one searches in vain for actual authority establishing that pre-Jones
Act unseaworthiness plaintiffs were entitled to an award of punitive damages.
Rather,     the    primary      authority     supporting      punitive     damages       in
unseaworthiness cases appears to be a collective judicial “oh, hell, why not”
principle that holds that because punitive damages are available in many other
types of actions they should also be available in unseaworthiness cases.
       Now, to be sure, courts rely on presumptions all the time. For example,
we regularly rely on the presumption that there should be no right without a
remedy. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971); Ex Parte Young, 209 U.S. 123 (1908). But even
though we recognize a general principle that there should be no right without


       15 See, e.g., In re Marine Sulphur Queen, 460 F.2d 89, 105 (2d Cir. 1972); U.S. Steel
Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969); Phillip v. U.S. Lines Co., 355 F.2d 25 (3d
Cir. 1966); Kwak Hyung Rok v. Cont’l Seafoods, Inc., 462 F. Supp. 894, 899 (S.D. Ala. 1978);
Renner v. Rockwell Int’l Corp., 403 F. Supp. 849, 852 (C.D. Cal. 1975), rev’d 587 F.2d 1030
(9th Cir. 1978); Mpiliris v. Hellenic Lines, Ltd., 323 F. Supp. 865, 894 (S.D. Tex. 1969).
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                                        No. 12-30714
a remedy, that does not mean that every plaintiff that establishes a legal wrong
is entitled to relief. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Similarly, even though punitive damages are available in many other types of
actions, and indeed in some maritime cases, that does not mean that
unseaworthiness plaintiffs are entitled to punitive damages when such an
award runs contrary to historical maritime practice and the instructions of the
Supreme Court in The Osceola and Pacific Steamship. I turn to that issue now.
   C. The Historical Evidence Strongly Suggests That Punitive
      Damages Were Not Available In Unseaworthiness Actions.
       From the way this case has been presented, one would expect to find a
plethora of pre-Jones Act unseaworthiness cases awarding punitive damages.
But a review of the cases cited in the briefs and at oral argument suggests the
existence of only a single potential unseaworthiness case awarding punitive
damages—The Rolph—which does not even pre-date the Jones Act. 16 See 293


       16 McBride also mentions the cases of The City of Carlisle, The Troop, Swift v. The
Happy Return, The Noddleburn, and The Childe Harold as standing for the proposition that
punitive damages were traditionally available in unseaworthiness cases. But these cases do
not involve the award of a punitive damages for unseaworthiness.
        The City of Carlisle is a maintenance and cure case that began when a sixteen-year-
old apprentice seaman was injured while working on a ship. See 39 F. 807 (D.C. Ore. 1889).
While lowering the sail, the boy was struck by a “clew-iron,” fracturing and depressing his
skull. Id. at 810. Bedridden for weeks with limited personal attention, the boy was thereafter
forced to work despite his partial paralysis. Id. at 810-11. When the ship reached port, “[t]he
master failed and neglected to procure or provide any medical aid or advice for the boy . . .
and was contriving and intending to get rid of him as easily as possible.” Id. at 812. Nor did
the master send the boy home at the ship’s expense. Id. Accordingly, the key issue at trial
was the negligence of the boy during the operation with the sail, because negligence of a
“gross character” would “forfeit [an injured seaman’s] right to be kept and cured at the
expense of the vessel”: maintenance and cure. The court found that the boy’s negligence was
not of such a character and described his treatment on the ship as a “grievous wrong.” Id. at
815. Reinforcing that The City of Carlisle concerns maintenance and cure, the court assessed
damages for medical care and wages “until his return home.” Id. at 817.
        The Troop is another maintenance and cure case. See 118 F. 769 (D.C. Wash. 1902).
A sailor fell from high on a ship, severely fracturing the bones of his left arm and right thigh.
Id. at 769. Although the ship was only six miles off shore, it did not return to port for the
seaman’s medical care, but continued on its journey for 36 days. Id. The captain applied
splints himself, put the seaman in a bed too small for his injuries to heal properly, and
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                                        No. 12-30714
F. 269 (N.D. Cal. 1923), aff’d 299 F. 52 (9th Cir. 1924). And even if we leave
aside the temporal impossibility of Congress deciding to leave the remedy set
out in a 1923 unseaworthiness case untouched in a 1920 statute, The Rolph
hardly stands out as providing a clear award of punitive damages.
       The Rolph concerns a brutally violent first mate. The first mate blinded
one sailor, deafened another, and ordered yet another to his near-certain death
on a heavy sea. Id. at 270-72. But The Rolph is not a case about punitive
damages. The damages the court ordered were based on the testimony of
medical witnesses and witnesses concerning “the expectation of life and
earnings of these men.” Id. at 272. 17 If this case is the great proclamation of


assigned the ship’s steward to look after the man, a crewman too busy to look in more than
every other day. Id. at 769-70. The court rejected causes of action based on unseaworthiness
or negligence. “I hold that no liability, except for expenses and wages, attaches to the ship
or owners for a personal injury to a seaman happening while he is in the service of a British
ship, in consequence of the negligence of the captain . . . .” Id. at 770. Damages were available
based on the “sixth article of the laws of Oleron,” which sets out the obligation of maintenance
and cure, not unseaworthiness. Id. at 771.
        Nor do Swift v. The Happy Return, 23 F. Cas. 560 (D. Pa. 1799) (No. 13,697), The
Noddleburn, 28 F. 855 (D. Or. 1886) or The Childe Harold, 5 F. Cas. 619 (S.D.N.Y. 1846) (No.
2676), save the day for McBride. Swift, which arose long before courts recognized an
independent cause of unseaworthiness, deals with a claim for wages. 23 F. Cas. at 561. The
discussion of “atrocious” food in Swift that McBride points to examines when the ship has an
obligation to pay a seaman’s boarding expenses in a foreign port, and the later discussion of
the need to provide medical care to a seaman again examines the ship’s obligations since the
Laws of Oleron to provide maintenance and cure. Id. at 561 & n.2. The Noddleburn concerns
a claim by a British seaman against a British vessel and applies British law to analyze
whether the fellow servant rule (or the vice principal exception to the fellow servant rule)
applies when a seaman falls from a defective rope that the ship’s officer was aware of. 28 F.
at 855-57. Moreover, a punitive damages claim was not awarded, and the court’s only
discussion of a possibly enhanced remedy came in the context of poor medical care after the
injury. Id. at 860. Finally, The Childe Harold centered around a crew that claimed violation
of a statutory requirement to sail with sufficient amounts of “wholesome ship-bread” for a
voyage. 5 F. Cas. at 619. The statute provided recovery only if the ship had set sail with
insufficient amounts of good bread, not if the bread subsequently rotted on the voyage. For
the latter, sailors were “left to their legal remedies, as in other cases of maltreatment, not
provided for by statute.” Id. at 620. And what kind of damages could be recovered for these
non-statutory claims? They could leave the ship without penalty and the owner would have
to pay them wages for the voyage. Id.
        17 McBride places undue emphasis on the two sailors who garnered $500 recoveries

for “claimed assaults, but did not claim any personal injury.” 293 F. at 269, 272. The Ninth
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                                        No. 12-30714
the historical availability of punitive damages for unseaworthiness, one
wonders (1) why the Rolph court felt it necessary to shroud its award in
language that is patently compensatory, and (2) why the Supreme Court
observed just five years later in Pacific Steamship—which cited the Ninth
Circuit’s Rolph opinion—that an injured seaman who elects to bring a
unseaworthiness claim is “entitled to . . . [an] indemnity by way of
compensatory damages,” 278 U.S. at 138 (emphasis added).
       Moreover, assuming arguendo that The Rolph awarded punitive
damages, we should not rely on one dust-covered case to establish that punitive
damages were generally available in unseaworthiness cases.                        In the first
instance, it would be a one-way ratchet of the worst sort if all we had to do to
justify punitives was to pluck out a single court decision awarding such
damages.      But more importantly, courts can err—particularly given the
complexity of maritime law—and so generalizing a supposed national
understanding from one or even a handful of cases is a perilous task.
       Worse, the myopic focus on engaging in a close literary analysis of a
handful of unseaworthiness cases overlooks some of the strongest evidence
that punitive damages were not available in unseaworthiness cases. After the
passage of the Jones Act, controlling case law required a seaman to elect
whether he wished to pursue an unseaworthiness or a Jones Act claim. 18



Circuit’s decision on appeal explains that the ship owner’s liability was for the “injuries
appellees received,” which suggests that all of the sailors were, in fact, injured. 299 F. at 55;
see also id. at 53 (noting that the “interveners were also injured”). Further, the district court
offered no independent explanation for the two sailors’ award in the opinion: the district
court’s explanation is grouped with the compensatory reasoning that justified the award to
the other sailors. And, in any case, whatever awards the sailors may, or may not, have
persuaded the district court judge to award, those awards should be read in light of the
Supreme Court’s compensatory damages gloss provided in Pacific Steamship five years later.
278 U.S. at 138.
        18 The election requirement is no longer good law.         See McAllister v. Magnolia
Petroleum Co., 357 U.S. 221, 222 n.2 (1958).
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                                        No. 12-30714
Assuming, therefore, that (1) plaintiffs were clever enough to pursue the cause
of action that would maximize their recovery, and (2) punitive damages were
not available in Jones Act cases, 19 the 1920-1950 explosion of Jones Act cases,
when set against the dearth of unseaworthiness cases, 20 suggests that
punitives were not available in unseaworthiness actions. Otherwise plaintiffs
would have filed more unseaworthiness cases in search of a larger remedy.
       McBride offers no explanation for this disparity, 21 and his attacks on the
Miles uniformity principle do not otherwise rebut the point. We know that
unseaworthiness and Jones Act negligence actions had largely the same
remedies available even before we consider the Miles uniformity principle
because injured seamen voluntarily chose to file Jones Act actions over
unseaworthiness actions.
       Of course, the obvious disparity between Jones Act and unseaworthiness
cases does not explain why punitive damages were understood as not being
available in unseaworthiness cases. That answer is contained within The
Osceola and Pacific Steamship. When describing unseaworthiness, the Osceola
Court observed:


       19  See, e.g., Miller v. Am. President Lines. Ltd., 989 F.2d 1450, 1457 (6th Cir. 1993);
Kopczynski v. The Jacqueline, 742 F.2d 555, 560-61 (9th Cir. 1984); see also Townsend, 557
U.S. at 426-28 (Alito, J., dissenting); cf. Pac. S.S. Co., 278 U.S. at 135 (describing a Jones Act
negligence action as “an action for compensatory damages, on the ground of negligence”).
        20 Gilmore & Black at 327 (“The great period for Jones Act litigation was from 1920

until approximately 1950: during that period the Act was the vehicle for almost all seamen’s
personal injuries and death actions.”).
        21 Nor, short of establishing punitive damages were available in Jones Act negligence

actions, could he. Though part of the disparity can likely be explained by (1) the lower
proximate causation requirement in Jones Act actions, (2) differences in coverage between
Jones Act negligence actions and unseaworthiness actions after the Jones Act’s passage, and
(3) a few other litigation advantages enjoyed by the plaintiff in Jones Act cases, see, e.g., id.,
the full breadth of the disparity—particularly given the perils of the sea and the undoubted
existence of easy unseaworthiness cases—seems implausible if punitives were supposedly
available in unseaworthiness cases, particularly given that a seaman’s maintenance and cure
claim would backstop (and therefore encourage pursuing) the somewhat riskier
unseaworthiness claim.
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                                         No. 12-30714
       That the vessel and her owner are, both by English and American
       law, liable to an indemnity for injuries received by seamen in
       consequence of the unseaworthiness of the ship, or a failure to
       supply and keep in order the proper appliances appurtenant to the
       ship.
189 U.S. at 175 (emphasis added).
       What does it mean to be “liable to an indemnity”? The specific phrase
itself appears to have originated in The Osceola, and so it is only so helpful on
its own.       But Pacific Steamship helps to clarify that The Osceola’s
unseaworthiness remedy is an “indemnity by way of compensatory damages.”
278 U.S. at 138. 22 And that reading is, in turn, further bolstered by a broader
review of damages decisions, which suggests that many contemporaneous
courts understood the plaintiff’s “indemnity” as being limited to compensatory
damages. For example, the Supreme Court explained in Milwaukee & St. Paul
Railway v. Arms that a court goes “beyond the limit of indemnity” when it
awards “exemplary,” (i.e., punitive), damages. 91 U.S. 489, 493-94 (1875). 23
Multiple lower courts made similar observations on multiple occasions. 24


       22  The quoted Pacific Steamship language also suggests that the quantum of damages
available in an unseaworthiness action was identical to a Jones Act negligence case. See Pac.
S.S. Co., 278 U.S. at 138 (“[W]hether or not the seaman’s injuries were occasioned by the
unseaworthiness of the vessel or by the negligence of the master or members of the crew . . .
there is but a single legal wrongful invasion of his primary right of bodily safety . . . for which
he is entitled to but one indemnity by way of compensatory damages.”).
        23 See also Arms, 91 U.S. at 492 (“It is undoubtedly true that the allowance of any

thing more than an adequate pecuniary indemnity for a wrong suffered is a great departure
from the principle on which damages in civil suits are awarded. But although, as a general
rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to
be shaken, that exemplary damages may in certain cases be assessed.”).
        24 See, e.g., Post Pub. Co. v. Peck, 199 F. 6, 15 (1st Cir. 1912) (“There are cases in which

a jury may award damages going beyond actual indemnity, going beyond actual injury, for
the sake of punishing the defendant, and marking their sense of the wrong which he has
committed. This is not a case of that kind.”); Christensen Eng’g Co v. Westinghouse Air Brake
Co., 135 F. 774, 782 (2d Cir. 1905) (“It is obvious that a fine exceeding the indemnity to which
the complainant is entitled is purely punitive, and, notwithstanding the foregoing precedents
to the contrary, we think that when it is imposed by way of indemnity to the aggrieved party
it should not exceed his actual loss incurred . . . .”); Huber v. Teuber, 10 D.C. 484, 489-90
(1879) (“Vindictive, punitive, or exemplary damages are sometimes allowable, not as
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                                       No. 12-30714
Given the widespread treatment of the term indemnity as excluding punitive
damages, we reach the right result today by taking the Osceola and Pacific
Steamship Courts at their word—as contemporaneous plaintiffs did when they
filed Jones Act cases rather than unseaworthiness cases—unseaworthiness
defendants are liable for an indemnity by way of compensatory damages and
nothing more.
                                             II.
       But let’s assume for the moment that the foregoing is wrong, and
unseaworthiness plaintiffs were entitled to punitive damages before the Jones
Act. And let’s also assume, contrary to the view of the majority opinion, that
the narrower reading of Miles is right such that the remedies awarded in post-
Jones Act judicial expansions of general maritime law actions should not



compensation to the plaintiff for his indemnity, but, over and beyond that, as
punishment . . .”), abrogated on other grounds, King v. Nixon, 207 F.2d 41, 41 n.1 (D.C. Cir.
1953); The America, 1 F. Cas. 604, 605 (C.C.S.D.N.Y. 1874) (“It is not like the allowance of
punitive damages in actions of slander, assault and battery, and like cases. It gives indemnity
only.”); Jay v. Almy, 13 F. Cas. 387, 389 (C.C.D. Mass. 1846); Taber v. Jenny, 23 F. Cas. 605,
609 (D. Mass 1856); New Union Coal Co. v. Walker, 31 S.W.2d 753, 755 (Ark. 1930); Burt v.
Shreveport Ry. Co., 142 La. 308, 317 (1917); Hall v. Paine, 112 N.E. 153, 156 (Mass. 1916);
McHargue v. Calchina, 153 P. 99, 101 (Or. 1915); Ill. Cent. R. C. v. Outland’s Adm’x, 170 S.W.
48, 52 (Ky. 1914); Cudlip v. N.Y. Evening J. Pub. Co., 66 N.E. 662, 664 (N.Y. 1903); Am.
Credit Indem. Co v. Ellis, 59 N.E. 679, 683 (Ind. 1901); Socialistic Co-Operative Pub. Ass’n v.
Kuhn, 58 N.E. 649, 650 (N.Y. 1900); Odin Coal Co. v. Denman, 57 N.E. 192, 195 (Ill. 1900);
Jacob Tome Inst. Of Port Deposit v. Crothers, 40 A. 261, 267 (Md. 1898); Parker v. Forehand,
28 S.E. 400, 401 (Ga. 1896); Snow v. Snow, 43 P. 620, 621-22 (Utah 1896); U.S. Trust Co. of
N.Y. v. O’Brien, 38 N.E. 266, 267 (N.Y. 1894); Little Pittsburg Con. Min. Co. v. Little Chief
Con. Min. Co., 17 P. 760, 763 (Colo. 1888); Phila., Wilmington, & Balt. R.R. Co. v. Hoeflich,
62 Md. 300, 312 (1884) (Bryan, J., dissenting); Hart v. Bostwick, 14 Fla. 162, 184 (1872);
Sheffield v. Ladue, 16 Minn. 388, 393-94 (1871); Woodman v. Nottingham, 49 N.H. 387, 394
(1870); Sturges v. Keith, 57 Ill. 451, 458 (1870); Rose’s Ex’r v. Bozeman, 41 Ala. 678, 682
(1868); Merchants’ Bank of New Haven v. Bliss, 35 N.Y. 412, 416 (1866); Harrison v. Swift,
95 Mass. 144, 144-46 (1886); Arthur v. Wheeler & Wilson Mfg. Co., 12 Mo. App. 335, 341-42
(1882). To be sure, such usage was not universal, but the view of treating punitive damages
as something greater than an indemnity appears to have been the majority view, see, e.g.,
Louisville & N.R. Co. v. Roth, 114 S.W. 264, 266 (Ky. 1908), and the proper one in the
unseaworthiness context, see, e.g., Pac. S.S. Co., 278 U.S. at 138 (noting that
unseaworthiness plaintiffs are entitled to an “indemnity by way of compensatory damages”).
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                                 No. 12-30714
exceed the remedies available in a Jones Act claim if, prior to the judicial
expansion, the plaintiff would have only had a Jones Act claim. Would that
mean that we should take a split-the-baby approach and make punitive
damages available to an injured seaman plaintiff but only compensatory
damages available to a wrongful death plaintiff on the theory that, before the
Jones Act, the injured seaman would have had an unseaworthiness claim for
punitive damages under general maritime law whereas the wrongful death
plaintiff would have had only a Jones Act claim for compensatory damages?
      No. Even if punitive damages were available in unseaworthiness actions
before the Jones Act, and the Jones Act did not narrow those remedies,
returning to the Merry Shipping rule for injured seamen plaintiffs still poses a
significant Miles problem. Notably, the Merry Shipping rule does not account
for the post-Jones Act expansion of unseaworthiness liability.
      Congress passed the Jones Act in the wake of The Osceola to permit a
seaman to recover for negligence. See Miles, 498 U.S. at 29. But at the time
of the Jones Act’s passage there was a degree of separation between actions
cognizable in a general maritime law unseaworthiness action and a Jones Act
negligence action. To be sure, though unseaworthiness actions included a
“certain species of negligence” at the time the Jones Act was passed, the new
Jones Act negligence claim also “include[d] several additional species [of
negligence] not embraced” by a general maritime law unseaworthiness claim.
Pac. S.S. Co., 278 U.S. at 138. For example, The Osceola itself—where the
plaintiff would have only had a negligence claim if such a claim were permitted
under the general maritime law—demonstrates one such separation between
a Jones Act negligence claim and a general maritime law unseaworthiness
claim. The separations that existed at the time of the Jones Act’s passage
create a fatal problem for advocates of the Merry Shipping rule.


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                                       No. 12-30714
       Since the passage of the Jones Act, courts have steadily eroded the
separations between unseaworthiness claims and Jones Act negligence claims
by enlarging unseaworthiness actions far beyond unseaworthiness’s pre-Jones
Act state. That expansion goes far beyond merely permitting wrongful death
actions for unseaworthiness. See, e.g., Miles, 498 U.S. at 30 (confirming the
availability of wrongful death actions for unseaworthiness).                        Rather,
unseaworthiness has been transformed into a strict liability action, and then
systematically expanded in scope so that it would now award an
unseaworthiness recovery to an injured seaman who would have traditionally
only had a Jones Act negligence action. 25 And despite some fleeting judicial
attempts to recabin unseaworthiness liability, 26 unseaworthiness claims and
Jones Act claims can now largely be said to be “Siamese twins.” 27
       This post-Jones Act expansion of unseaworthiness liability creates a
Miles problem if punitive damages are awarded in cases where the plaintiff
would have originally had only a Jones Act negligence action. As our sister



       25  See, e.g., Dresser Indus., Inc. v. Webb, 429 U.S. 1121, 1121 (1977) (Powell, J.,
dissenting from the denial of certiorari) (“The doctrine of ‘seaworthiness,’ on which this
recovery was predicated, has been extended beyond all reason.”); Pope & Talbot Inc. v. Hawn,
346 U.S. 406, 418 (1953) (Frankfurter, J., concurring) (“Since unseaworthiness affords . . .
recovery without fault and has been broadly construed by the courts . . . it will be rare that
the circumstances of an injury will constitute negligence but not unseaworthiness.”);
Mahnich v. S. S.S. Co., 321 U.S. 96 (1944); George H. Chamlee, The Absolute Warranty of
Seaworthiness: A History and Comparative Study, 24 Mercer L. Rev. 519, 542 (1973) (noting
that “there is no genuine historical relationship” between modern seaworthiness doctrine and
the pre-Jones Act cases); Note, The Doctrine of Unseaworthiness in the Federal Courts, 76
Harv. L. Rev. 819, 820 (1963) (“An unseaworthy condition can be found in almost anything,
no matter how trivial, that causes injury.”).
        26 See Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971); see also id. at 504

(Harlan, J, dissenting) (“Much as I would welcome a thoroughgoing reexamination of the past
course of developments in the unseaworthiness doctrine, I fear that the Court’s action today
can only result in compounding the current difficulties of the lower courts with this area of
the law.”)
        27 Gilmore & Black at 383; see also id. at 382 (noting that the Supreme Court has

“made Jones Act negligence irrelevant in seamen’s personal injury actions by its development
of the unseaworthiness doctrine.”).
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                                       No. 12-30714
circuits have concluded, the Jones Act prohibits the recovery of punitive
damages in a seaman’s negligence suit. 28 Accordingly, under the prevailing
understanding of unseaworthiness when the Jones Act was passed, at least a
set of injured seamen would have had only a recovery for compensatory
damages      under     the    Jones    Act    (and    not    a   general       maritime    law
unseaworthiness        claim). 29      Now,     however,      given      the   expansion     of
unseaworthiness liability, a sizeable subset of that set of seamen would also
have an unseaworthiness claim that they could pursue. Awarding punitive
damages in unseaworthiness cases to that subset of sailors under the logic of
Merry Shipping would make a mockery of even the narrowest reading of Miles.
       We should not, in light of Miles, disregard Congress’s chosen remedy for
negligence-type cases by expanding unseaworthiness liability into the realm of
negligence, thereby permitting plaintiffs who would have had (1) no recovery
at the time of The Osceola, and (2) only a compensatory Jones Act recovery at
the time of the Jones Act, to all of a sudden recover punitive damages in
unseaworthiness.             Therefore,    without      a   way     to    exclude     modern
unseaworthiness cases that would have only been cognizable as Jones Act
negligence claims at the time the Jones Act was passed, the split-the-baby
solution that makes punitive damages available to injured seamen but not
wrongful death plaintiffs is no solution at all. We cannot simply return to the
Merry Shipping rule for injured seamen as long as “[t]he reasoning of Miles
remains strong.” Townsend, 557 U.S. at 420.




       28 See Miller, 989 F.2d at 1457; Kopczynski, 742 F.2d at 560-61. Admittedly, this is an
open question in the Fifth Circuit.
       29 See, e.g., Pac. S.S. Co., 278 U.S. at 135 (describing a Jones Act negligence action as

“an action for compensatory damages, on the ground of negligence”).
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                                    No. 12-30714
                                          III.
      Finally, we have good reason to be cautious before signing off on an
aggressive expansion of punitive damages in the unseaworthiness context.
The availability of insurance for punitive damages varies from jurisdiction to
jurisdiction, 30 and simple logic suggests that any increased costs on shippers
will be eventually passed along to consumers. Given the sizeable percentages
of the world’s goods that travel on ships, and the fact that the prices of the
remainder of the world’s goods are indirectly influenced by the prices of the
goods that do travel on ships (e.g., oil prices ultimately affect the price of a vast
range of items), the decision in this case needs to have only the minutest impact
on shipping prices to have a significant aggregate cost for consumers. In light
of the potentially sizable impact, this court should not venture too far and too
fast in these largely uncharted waters without a clear signal from Congress.




      30 See, e.g., Michael A. Rosenhouse, Annotation, Liability Insurance Coverage as
Extending to Liability for Punitive or Exemplary Damages, 16 A.L.R.4th 11 (Westlaw 2014).
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                                  No. 12-30714
HAYNES, Circuit Judge, joined by ELROD, Circuit Judge, concurring.

      I concur in the judgment of the en banc court affirming the district court.
I also concur in the reasoning expressed in the majority opinion with respect
to the wrongful death and associated claims of Ms. McBride arising out of the
death of Skye Sonnier. Miles commands this result.
      The majority opinion concludes that the outcome for the Sonnier family
dictates the outcome for the surviving seamen remaining in this case (Touchet
and Suire). I disagree with that conclusion. An action for wrongful death (in
general) did not exist at common law. See Atl. Sounding Co. v. Townsend, 557
U.S. 404, 420 (2009) (explaining that there was no general common-law
doctrine providing a wrongful death action); 2 BENEDICT ON ADMIRALTY § 81(a)
(Joshua S. Force ed., 2013); W. PAGE KEETON ET AL., PROSSER & KEETON ON
THE LAW OF TORTS    § 127, at 945 (5th ed. 1984). In the relevant context, Miles
explains that it was Congress, not the courts, that created this remedy
previously unavailable to the family of the deceased seaman. See Miles v. Apex
Marine Corp., 498 U.S. 19, 23–27 (1990) (explaining that the Court originally
“held that maritime law does not afford a cause of action for wrongful death”;
then “Congress enacted two pieces of legislation [(the Jones Act and DOHSA)]
creating a wrongful death action for most maritime deaths”; then the Court
followed suit by “creat[ing] a general maritime wrongful death cause of
action”). The Miles Court then explained that it was limited in providing
remedies to wrongful death beneficiaries under general maritime law (and not
simply in unseaworthiness actions) because Congress had placed limits on the
recovery that these claimants could receive: “DOHSA, by its terms, limits
recoverable damages in wrongful death suits to pecuniary loss sustained by the
persons for whose benefit the suit is brought. This explicit limitation forecloses
recovery for nonpecuniary loss, such as loss of society, in a general maritime

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                                       No. 12-30714
action.” Id. at 31 (first and third emphasis added; second emphasis in original)
(citation and internal quotation marks omitted); see also Townsend, 557 U.S.
at 420 (“[I]t was only because of congressional action that a general federal
cause of action for wrongful death on the high seas and in territorial waters
even existed . . . . As a result, to determine the remedies available under the
common-law wrongful-death action, ‘an admiralty court should look primarily
to these legislative enactments for policy guidance.’” (quoting Miles, 498 U.S.
at 27)). Thus, unlike common law remedies which evolve through the courts,
this remedy is one specifically designed and fashioned by the legislature. It is
therefore entirely logical as a matter of legal history (though not as a matter
of social policy) that the family of a deceased seaman might not be able to
recover punitive damages for his death, while the surviving injured seamen
could.
         That said, I cannot join the dissenting opinions with respect to the
surviving seamen. It is a tautology that “[f]ederal courts are courts of limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 1
That reality results in a recognition that “[t]here is no federal general common
law.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Sosa v.
Alvarez-Machain, 542 U.S. 692, 729 (2004) (“[W]e now adhere to a conception
of limited judicial power first expressed in reorienting federal diversity
jurisdiction . . . that federal courts have no authority to derive ‘general’ common
law.” (citation omitted)).
         Aside from “gap-filling” (as opposed to general) common law permitted
by Congress, there are few exceptions to this rule and they come in “those
[instances] in which a federal rule of decision is necessary to protect uniquely



         I do not contend that we lack jurisdiction here. I note only that, unlike state courts
         1

with broad, general judicial power, federal courts are inherently limited in their reach.
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                                  No. 12-30714
federal interests.” See Tex. Indus. v. Radcliff Materials, Inc., 451 U.S. 630, 640
(1981) (citations and internal quotation marks omitted). Because admiralty
law is one of the “narrow areas” that presents “uniquely federal interests,”
federal courts have developed common law in this area. Id. at 640–41.
      Such general development of the federal common law by the only
unelected branch of our federal government should be done (if at all) with great
restraint, as we recognized when we decided the case that became Miles. See
Miles v. Melrose, 882 F.2d 976, 986 (5th Cir. 1989) (“While the liberality of
admiralty proceedings informs the development of maritime jurisprudence, it
does not license courts to create causes of action whenever they see fit.”), aff’d
sub nom. Miles v. Apex Marine Corp., 498 U.S. 19 (1990); see also Am. Elec.
Power Co. v. Connecticut, 131 S. Ct. 2527, 2536 (2011) (“[T]he Court remains
mindful that it does not have creative power akin to that vested in Congress.”);
Miles, 498 U.S. at 27 (espousing a principle of vigilant judicial restraint and
deference to Congress that is to guide the exercise of federal common law
authority in the maritime context). The authority to address “uniquely federal
interests” should not be exercised without sufficient justification and analysis.
See, e.g., Daniel Stanton, Comment, Between a Rock and a Hard Place:
Maintenance and Cure in the Wake of Atlantic Sounding, 10 LOY. MAR. L.J.
471, 481 (2012) (recognizing the dearth of legal analysis by courts that have
addressed maintenance-and-cure restitution and the need to justify the
remedy “with additional legal theories”).      Recognition of new rights and
remedies in maritime law, where appropriate at all, is appropriate only after a
thorough analysis of legal, historical, and policy considerations.      See, e.g.,
Townsend, 557 U.S. at 409–25 (recognizing availability of punitive damages
for seamen whose employers willfully fail to pay maintenance and cure only
after a historical analysis of maintenance and cure and punitive damages, as
well as considering the possibility of statutory preemption); Cooper
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                                  No. 12-30714
Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 110–15 (1974) (weighing
ancient admiralty doctrine and policy considerations in approving a federal
right to contribution among joint tortfeasors). Additionally, here the parties
have not sought and have not briefed a different treatment of one category of
claimant from the other, and we should be reluctant to address such differences
sua sponte. Considering this fact, the need to exercise restraint, and the
historical context in which seamen generally have not recovered punitive
damages for unseaworthiness, I think it is inappropriate for a federal
intermediate appellate court to extend the law here.
      As such, I conclude that Congress is the more appropriate forum to weigh
competing policy concerns about the punitive damage remedy against a
backdrop of hard facts and searching investigation. See Boyle v. United Techs.
Corp., 487 U.S. 500, 531 (1988) (Stevens, J., dissenting) (“When judges are
asked to embark on a lawmaking venture, I believe they should carefully
consider whether they, or a legislative body, are better equipped to perform the
task at hand.”); Zachary M. VanVactor, Comment, Three’s a Crowd: The
Unhappy Interplay Among the New York Convention, FAA, and McCarran-
Ferguson Act, 36 TUL. MAR. L.J. 313, 336 (2011) (observing a “notion of judicial
restraint” in maritime law such that “any decision of . . . magnitude or that
resembles legislation by the courts should instead rest with the elected
legislature”); cf. Sosa, 542 U.S. at 724–27 (cautioning, in law-of-nations
context, that federal courts should exercise “a restrained conception of . . .
discretion . . . in considering a new cause of action” and that such a decision “is
one better left to legislative judgment in the great majority of cases”). As
emphasized in Miles, “[w]e no longer live in an era when seamen and their
loved ones must look primarily to the courts as a source of substantive legal
protection from injury and death; Congress and the States have legislated


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                                 No. 12-30714
extensively in these areas.” 498 U.S. at 27. It is Congress, not the courts, that
“retains superior authority in these matters.” Id.
      The primary dissenting opinion is grounded in the view that the law
already provides for this remedy pursuant to Townsend. Townsend addressed
only maintenance and cure. The opinions filed in this en banc case state a
scholarly basis for the analogies or lack thereof between maintenance and cure
on the one hand and the causes of action at bar on the other, but no one
contends they are identical. Thus, allowing recovery of punitive damages
would be an expansion of a remedy, a subject best left to Congress. If a federal
court is the right place to extend remedies in this area, I submit that federal
court is the United States Supreme Court, not this one. The differing opinions
of this court highlight the apparent tension among Supreme Court maritime
precedents (primarily, Miles and Townsend), as well as the varied implications
that learned jurists may draw from the relevant historical and policy
considerations.   This tension is between (at least) two Supreme Court
precedents; ultimately, then, definitive resolution of this tension can come only
from that Court, not ours.   For these reasons, I join the judgment of the court
expressed in the majority opinion, although, as to the remaining surviving
seamen, not its reasoning.




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                                  No. 12-30714

HIGGINSON, Circuit Judge, dissenting, joined by STEWART, Chief Judge,
BARKSDALE, DENNIS, PRADO, and GRAVES, Circuit Judges.
      The question presented by this case is whether seamen may recover
punitive damages for their employer=s willful and wanton breach of the general
maritime law duty to provide a seaworthy vessel. Because the Supreme Court
has said that they can, and Congress has not said they can=t, I would answer
in the affirmative, and REVERSE.
                       FACTS AND PROCEEDINGS
      The consolidated cases arise out of an accident aboard Estis Rig 23, a
barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a
navigable waterway in Iberville Parish, Louisiana. As crew members were
attempting to straighten the monkey boardCthe catwalk extending from the
derrickCwhich had twisted the previous night, the derrick pipe shifted,
causing the rig and truck to topple over. One crew member, Skye Sonnier, was
fatally pinned between the derrick and mud tank, and three others, Saul
Touchet, Brian Suire, and Joshua Bourque, have alleged injuries. At the time
of the incident, Estis Well Service, L.L.C. (AEstis@) owned and operated Rig 23,
and employed Sonnier, Touchet, Suire, and Bourque (collectively, the Acrew
members@).
      Haleigh McBride, individually, on behalf of Sonnier=s minor child, and
as administratrix of Sonnier=s estate, filed suit against Estis, stating causes of
action for unseaworthiness under general maritime law and negligence under
the Jones Act and seeking compensatory as well as Apunitive and/or exemplary@




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                                       No. 12-30714

damages. 1 The other crew members filed separate actions against Estis
alleging the same causes of action and requesting the same relief. Upon the
crew members= motion, the cases were consolidated into a single action over
which a Magistrate Judge presided with the parties= consent. 2 Estis moved to
dismiss the claims for punitive damages, arguing that punitive damages are
not an available remedy for unseaworthiness or Jones Act negligence as a
matter of law. Treating it as a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c), the Magistrate Judge granted the
motion, and correspondingly entered judgment dismissing all claims for
punitive damages. Recognizing that the issues presented were Athe subject of
national debate with no clear consensus,@ the court granted plaintiffs= motion
to certify the judgment for immediate appeal under 28 U.S.C. ' 1292(b). This
interlocutory appeal followed.
                              STANDARD OF REVIEW
      Whether punitive damages are an available remedy under maritime law
is a question of law reviewed de novo. See Atl. Sounding Co., Inc. v. Townsend,
496 F.3d 1282, 1284 (11th Cir. 2007) (citations omitted), aff=d, 557 U.S. 404
(2009).




      1  APunitive damages@ and Aexemplary damages@ are synonymous. They reflect two
principal purposes of such damages: to punish the wrongdoer and thereby make an example
of him in the hopes that doing so will deter him and others from wrongdoing. David W.
Robertson, Punitive Damages in American Maritime Law, 28 J. MAR. L. & COM. 73, 82B83
(1997). For ease of reference, I refer to all such damages as Apunitive damages.@

      2   In March 2012, Bourque settled his claims against Estis.


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                                    No. 12-30714

                                  BACKGROUND
      I.     Sources of maritime law
      There are two primary sources of federal maritime law: common law
developed by federal courts exercising the maritime authority conferred on
them by the Admiralty Clause of the Constitution (Ageneral maritime law@),
and statutory law enacted by Congress exercising its authority under the
Admiralty Clause and the Commerce Clause (Astatutory maritime law@). See
U.S. CONST. art. III, ' 2, cl. 1 (extending the judicial power of the United States
Ato all [c]ases of admiralty and maritime [j]urisdiction@); Romero v. Int=l
Terminal Operating Co., 358 U.S. 354, 360B61 (1959) (explaining that the
Admiralty Clause Aempowered the federal courts in their exercise of the
admiralty and maritime jurisdiction which had been conferred on them, to
draw on the substantive law >inherent in the admiralty and maritime
jurisdiction,= [] to continue the development of this law within constitutional
limits[,]@ and Aempowered Congress to revise and supplement the maritime law
within the limits of the Constitution@) (citation omitted). 3
      II.    Causes of action under maritime law
      Traditionally, general maritime law afforded ill and injured seamen two
causes of action against shipowners and employers. If a seaman became ill or
injured while in the service of the ship, the seaman=s employer and the ship=s
owner owed the seaman room and board (Amaintenance@) and medical care
(Acure@) without regard to fault, and, if not provided, the seaman had a claim



      3For a discussion of the division of maritime rulemaking authority between Congress
and the federal courts, see David W. Robertson, Our High Court of Admiralty and Its
Sometimes Peculiar Relationship With Congress, 55 St. Louis U. L.J. 491, 494B513 (2011).


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                                      No. 12-30714

against them for Amaintenance and cure.@ If a seaman was injured by a ship=s
operational unfitness, the seaman had a cause of action for Aunseaworthiness.@
General maritime law did not provide seamen with a separate cause of action
for personal injury resulting from employer negligence, The Osceola, 189 U.S.
158, 175 (1903), nor did it permit wrongful death or survival claims on behalf
of seamen killed during the course of their employment, The Harrisburg, 119
U.S. 199, 204B14 (1886), overruled by Moragne v. States Marine Lines, Inc., 398
U.S. 375 (1970).
      To remedy those perceived gaps in general maritime law, which, until
then, had been filled by a patchwork of state wrongful death statutes, 4
Congress in 1920 enacted the Jones Act and the Death on the High Seas Act
(ADOHSA@), which created causes of action for employer negligence in
navigable waters and on the high seas, respectively, and authorized survival
and wrongful death remedies. See 46 U.S.C. ' 688 (1920) (codified as amended
at 46 U.S.C. ' 30104 (2006)); 5 46 U.S.C. '' 761B68 (1920) (codified as amended




      4  AThese statutes were often unwieldy and not designed to accommodate maritime
claims; moreover, because they varied from state to state, the representatives of similarly
situated deceased seamen might be awarded widely varying sums based on the fortuity of
whether the accident occurred within or without the three-mile limit and, if it were within
that limit, based on the laws of the particular state where the casualty occurred.@ Ivy v.
Security Barge Lines, Inc., 606 F.2d 524, 527 (5th Cir. 1979).

      5 The Jones Act provides, in pertinent part:
              A seaman injured in the course of employment or, if the seaman dies
      from the injury, the personal representative of the seaman may elect to bring
      a civil action at law, with the right of trial by jury, against the employer. Laws
      of the United States regulating recovery for personal injury to, or death of, a
      railway employee apply to an action under this section.
      46 U.S.C. ' 30104.


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                                     No. 12-30714

at 46 U.S.C. '' 30301B08 (2006)). 6 The Supreme Court has since recognized a
parallel cause of action under general maritime law for employer negligence
resulting in injury or death. See Norfolk Shipbuilding & Drydock Corp. v.
Garris, 532 U.S. 811, 818B20 (2001) (citing Moragne, 398 U.S. at 409).
      III.   Punitive damages under maritime law
      AHistorically, punitive damages,@ though not always designated as such, 7
Ahave been available and awarded in general maritime actions.@ Townsend, 557
U.S. at 407; see also id. at 414 (citing as examples of early punitive damages
awards The City of Carlisle, 39 F. 807, 817 (D. Or. 1889) (adding $1,000 to
plaintiff=s damages award for Agross neglect and cruel maltreatment@), and The
Troop, 118 F. 769, 770B771, 773 (D. Wash. 1902) (concluding that $4,000 was
a reasonable award because the captain=s Afailure to observe the dictates of
humanity@ and obtain prompt medical care for an injured seaman constituted
a Amonstrous wrong@)). In the early nineteenth century, Justice Story spoke of




      6 DOHSA provides, in pertinent part:
              When the death of an individual is caused by wrongful act, neglect, or
      default occurring on the high seas beyond 3 nautical miles from the shore of
      the United States, the personal representative of the decedent may bring a
      civil action in admiralty against the person or vessel responsible. The action
      shall be for the exclusive benefit of the decedent=s spouse, parent, child, or
      dependent relative.
      46 U.S.C. ' 30302.

      7  See Townsend, 557 U.S. at 414 n.3 (citing awards of punitive damages in early
maritime cases and pointing out that A[a]lthough these cases do not refer to >punitive= or
>exemplary= damages, scholars have characterized the awards authorized by these decisions
as such@); Robertson, Punitive Damages in American Maritime Law, supra, at 88 (noting that
eighteenth and nineteenth century maritime courts used a variety of terms to designate
damages intended to punish and deter).


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                                      No. 12-30714

maritime punitive damages as Athe proper punishment which belongs to []
lawless misconduct.@ The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 558 (1818).
       Over the next century and a half, the availability of punitive damages
for unseaworthiness claims arising under general maritime law was largely
unquestioned. In Complaint of Merry Shipping, Inc., 650 F.2d 622, 623 (5th
Cir. Unit B Jul. 1981), our court confirmed the prevailing view that Apunitive
damages may be recovered under general maritime law upon a showing of
willful and wanton misconduct by the shipowner in the creation or
maintenance of unseaworthy conditions.@ Our court based its holding on the
historical availability of punitive damages under general maritime law, the
public policy interests in punishing willful violators of maritime law and
deterring them from committing future violations, and the uniformity of
contemporary courts on the issue. Id. at 624B26. 8 After Merry Shipping, the
Ninth and Eleventh Circuits followed suit. See Evich v. Morris, 819 F.2d 256,
258 (9th Cir. 1987) (APunitive damages are available under general maritime
law for claims of unseaworthiness.@) (citations omitted); Self v. Great Lakes
Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir. 1987) (APunitive damages




       8 At the time Merry Shipping was decided, the Second and Sixth Circuits had held
that punitive damages were available in unseaworthiness actions, and no circuit court had
ruled otherwise. See In re Marine Sulphur Queen, 460 F.2d 89, 105 (2d Cir. 1972) (noting, in
the unseaworthiness context, that Athe award of punitive damages is discretionary with the
trial court[,]@ and A[a] condition precedent to awarding them is a showing by the plaintiffs
that the defendant was guilty of gross negligence, or actual malice or criminal indifference
which is the equivalent of reckless and wanton misconduct@) (citations omitted); U.S. Steel
Corp. v. Fuhrman, 407 F.2d 1143, 1148 (6th Cir. 1969) (noting that punitive damages are
recoverable against a ship owner for the actions of a master if Athe owner authorized or
ratified the acts of the master@ or Athe owner was reckless in employing him@) (citations
omitted).


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should be available in cases where the shipowner willfully violated the duty to
maintain a safe and seaworthy ship . . . .@).
      In Miles v. Melrose, 882 F.2d 976, 989 (5th Cir. 1989) (citations omitted),
we reiterated that A[p]unitive damages are recoverable under the general
maritime law >upon a showing of willful and wanton misconduct by the
shipowner= in failing to provide a seaworthy vessel[,]@ but held, for the first
time, that loss of society damages were not available to nondependent parents
in a general maritime cause of action for the wrongful death of a Jones Act
seaman. 9 Judge Rubin, speaking for the court, was guided by the Atwin aims of
maritime law@: Aachieving uniformity in the exercise of admiralty jurisdiction
and providing special solicitude to seamen.@ Id. at 987. It would be anomalous,
the court reasoned, if a wrongful death claimant were permitted to recover for
loss of society damages under general maritime law even though the claimant
was barred from recovering such damages under statutory maritime law. Id.
at 987B88. And the goal of providing special solicitude to seamen, the wards of
admiralty, Awould not be furthered in any meaningful way by allowing
nondependent parents to recover for loss of society.@ Id. at 988; see also id.
(AAdmiralty cannot provide the parents solicitude at a voyage=s outset when
their right to recover for loss of society is dependent on the fortuity that the
deaths occur in territorial waters and are caused by unseaworthiness.@


      9 A AJones Act seaman@ is Aa master or member of a crew of any vessel,@ Stewart v.
Dutra Const. Co., 543 U.S. 481, 488 (2005) (internal quotation marks omitted) (citations
omitted), as distinguished from a ASieracki seaman,@ which refers to a longshoreman or
harborworker who is injured on a vessel while performing traditional work of a seaman and,
by virtue of Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), may bring a claim for
unseaworthiness, Burks v. Am. River Transp. Co., 679 F.2d 69, 71, 71 n.1 (5th Cir. 1982),
abrogated on other grounds by Lozman v. City of Riviera Beach, Fla., 133 S. Ct. 735 (2013).


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(quoting Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 460 (5th Cir. 1985))
(emphases omitted).
       The Supreme Court affirmed in a decision most significant for its
announcement of a new age of maritime law:
       We no longer live in an era when seamen and their loved ones must
       look primarily to the courts as a source of substantive legal
       protection from injury and death; Congress and the States have
       legislated extensively in these areas. In this era, an admiralty
       court should look primarily to these legislative enactments for
       policy guidance. We may supplement these statutory remedies
       where doing so would achieve the uniform vindication of such
       policies consistent with our constitutional mandate, but we must
       also keep strictly within the limits imposed by Congress. Congress
       retains superior authority in these matters, and an admiralty
       court must be vigilant not to overstep the well-considered
       boundaries imposed by federal legislation. These statutes both
       direct and delimit our actions.
Miles v. Apex Marine Corp. (AMiles@), 498 U.S. 19, 27 (1990); see also id. at 36
(AWe sail in occupied waters. Maritime tort law is now dominated by federal
statute, and we are not free to expand remedies at will simply because it might
work to the benefit of seamen and those dependent upon them.@). Analyzing
the issue presented with this guiding principle in mind, the Court reasoned
that because DOHSA, by its terms, limits damages recovery to Apecuniary
loss,@ id. at 31 (citation omitted), and the same limitation had been
incorporated into the Jones Act, id. at 32, 10 non-pecuniary damages, such as



       10 This pecuniary-loss limitation arose out of the Jones Act=s incorporation of the
remedial provisions of the Federal Employers= Liability Act (AFELA@), 46 U.S.C. ' 30104
(ALaws of the United States regulating recovery for personal injury to, or death of, a railway
employee apply to an action under this section.@), which, at the time the Jones Act was
enacted, had been interpreted by the Supreme Court to limit recovery to compensation for
Apecuniary@ damages, Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 68 (1913) (A[FELA limits]

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loss of society damages, should not be recoverable in a parallel cause of action
for the wrongful death of a Jones Act seaman under general maritime law, id.
at 33. AIt would be inconsistent with our place in the constitutional scheme,@
the Court in Miles concluded, Awere 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.@ Id. at 32B33.
       Miles addressed the availability of loss of society damages to non-seamen
under general maritime law, not punitive damages, but the general principle
asserted in its analysisCthat if a category of damages is unavailable under a
maritime cause of action established by statute, it is similarly unavailable for
a parallel claim brought under general maritime lawCbegan to be extended by
lower courts to cover punitive damages claims by seamen. See, e.g., Miller v.
Am. President Lines, Ltd., 989 F.2d 1450, 1454B59 (6th Cir. 1993).
       Similarly applying the AMiles uniformity principle,@ as it came to be
known, our court, sitting en banc, held that Miles Aeffectively overruled@ Merry
Shipping, concluding that Apunitive damages [are not] available in cases of
willful nonpayment of maintenance and cure under the general maritime law.@
Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1513 (5th Cir. 1995) (en
banc), abrogated by Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009). The
court reasoned that because punitive damages, which are Arightfully classified



liability [to] the loss and damage sustained by relatives dependent upon the decedent. It is
therefore a liability for the pecuniary damage resulting to them, and for that only.@). But see
Atl. Sounding Co. v. Townsend, 557 U.S. 404, 424 fn.12 (2009) (ABecause we hold that Miles
does not render the Jones Act=s damages provision determinative of respondent=s remedies,
we do not address the dissent=s argument that the Jones Act, by incorporating the provisions
of the Federal Employers= Liability Act, see 46 U.S.C. ' 30104(a), prohibits the recovery of
punitive damages in actions under that statute.@).


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as non-pecuniary,@ are not an available remedy for personal injury to a seaman
under the Jones Act, they likewise are not an available remedy for personal
injury to a seaman, including injury resulting from a maintenance and cure
violation, under the general maritime law. Id. at 1506B07, 1510B12. 11 The court
in Guevara did not address the availability, post-Miles, of punitive damages in
unseaworthiness actions; it restricted its discussion to the availability of such
damages in the maintenance and cure context. Id. at 1499. But it was perceived
by some to Aportend[] the disappearance of punitive damages from the entire
body of maritime law.@ Robertson, Punitive Damages in American Maritime
Law, supra, at 154 (collecting cases).
       Momentum in that direction was sea-tossed by Atlantic Sounding Co.,
Inc. v. Townsend, 557 U.S. 404, 424 (2009), which explicitly abrogated Guevara
and restored the availability of punitive damages for maintenance and cure
claims under general maritime law. The Supreme Court reasoned that
Apunitive damages have long been an accepted remedy under general maritime
law,@ including for egregious maintenance and cure violations, and concluded,
contrary to Guevara, that Anothing in the Jones Act altered this
understanding.@ Id. at 424. The Jones Act, the Court reminded, Acreated a
statutory cause of action for negligence, but it did not eliminate pre-existing



       11The court in Guevara went on to hold, in addition, that punitive damages are not
available for the willful and wanton refusal to pay maintenance and cure even when personal
injury does not result. Id. at 1512. The court noted that it was not constrained by the Miles
uniformity principle in its second inquiry because there was no overlap between statutory
and general maritime law: neither the Jones Act nor DOHSA, as does the general maritime
law, provides for a cause of action for maintenance and cure not resulting in personal injury.
Id. The court nevertheless exercised its maritime authority to bar punitive damages in such
actions as a matter of policy. Id. at 1513.


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remedies available to seamen for the separate common-law cause of action
based on a seaman=s right to maintenance and cure.@ Id. at 415B16.
Importantly, Justice Thomas writing for the Court reminded that A[i]ts purpose
was to enlarge [seamen=s] protection, not to narrow it.@ Id. at 417 (citations
omitted). Indeed, the Court noted, the Jones Act specifically preserved the
seaman=s right to Aelect@ between the remedies provided by the Jones Act and
those recoverable under pre-existing general maritime law; A[i]f the Jones Act
had been the only remaining remedy available to injured seamen, there would
have been no election to make.@ Id. at 416. 12
       The Supreme Court clarified that its interpretation of Miles did not
represent an A>abrup[t]= change of course.@ Id. at 422 n.8, 418B22. Rather, the
Court explained, reliance on the Miles uniformity principle to bar punitive
damages recovery under general maritime causes of action would read Miles
Afar too broad[ly].@ Id. at 418B19. Miles, which addressed loss of society
damages in maritime wrongful death actions, presented an issue of a different
nature than the one presented in Townsend, which addressed punitive
damages in the maintenance and cure setting:
       Unlike the situation presented in Miles, both the general maritime
       cause of action (maintenance and cure) and the remedy (punitive
       damages) were well established before the passage of the Jones
       Act. Also unlike the facts presented by Miles, the Jones Act does
       not address maintenance and cure or its remedy. It is therefore


       12 As further evidence that punitive damages Aremain[ed] available in maintenance
and cure actions after the [Jones] Act=s passage,@ the Court pointed out that in Vaughan v.
Atkinson, 369 U.S. 527, 529B31 (1962), it Apermitted the recovery of attorneys= fees [as a
punitive sanction] for the >callous= and >willful and persistent= refusal to pay maintenance and
cure.@ Townsend, 557 U.S. at 417.



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       possible to adhere to the traditional understanding of maritime
       actions and remedies without abridging or violating the Jones Act;
       unlike wrongful-death actions, this traditional understanding is
       not a matter to which ACongress has spoken directly.@ Indeed, the
       Miles Court itself acknowledged that A[t]he Jones Act evinces no
       general hostility to recovery under maritime law,@ and noted that
       statutory remedy limitations Awould not necessarily deter us, if
       recovery . . . were more consistent with the general principles of
       maritime tort law.@ The availability of punitive damages for
       maintenance and cure actions is entirely faithful to these Ageneral
       principles of maritime tort law,@ and no statute casts doubt on their
       availability under general maritime law.
Id. at 420B21 (citations omitted). Thus, it concluded more generally, A[t]he
laudable quest for uniformity in admiralty does not require the narrowing of
available damages to the lowest common denominator approved by Congress
for distinct causes of action.@ Id. at 424. 13



       13 This shift from Miles to Townsend was foreshadowed in Exxon Shipping Co. v.
Baker, 554 U.S. 471 (2008), which presented the issue of whether the Clean Water Act
(ACWA@) implicitly preempted maritime causes of action by fishermen, Alaska Natives, and
others with property rights in the resources of the ocean. 554 U.S. at 484B89. The Court
concluded that the CWA did not preempt plaintiffs= claims, reasoning: Awe find it too hard to
conclude that a statute expressly geared to protecting >water,= >shorelines,= and >natural
resources= was intended to eliminate sub silentio oil companies= common law duties to refrain
from injuring the bodies and livelihoods of private individuals.@ Id. at 488B89. In so ruling,
the Court sounded a different tune on statutory displacement of general maritime law:
               To be sure, ACongress retains superior authority in these matters,@ and
       A[i]n this era, an admiralty court should look primarily to these legislative
       enactments for policy guidance.@ Miles v. Apex Marine Corp., 498 U.S. 19, 27
       (1990). But we may not slough off our responsibilities for common law remedies
       because Congress has not made a first move, and the absence of federal
       legislation constraining punitive damages does not imply a congressional
       decision that there should be no quantified rule.
       Id. at 508 n.21 (citation omitted). This sentiment was echoed in Townsend: AAlthough
>Congress . . . is free to say this much and no more,= Miles, 498 U.S., at 24, 111 S. Ct. 317
(internal quotation marks omitted), we will not attribute words to Congress that it has not
written.@ Townsend, 557 U.S. at 424.


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                                  DISCUSSION
      The crux of this dispute lies in the parties= competing theories of
statutory displacement of general maritime law.
      The crew members read Miles and Townsend as providing, narrowly,
that federal courts, in exercising their maritime lawmaking authority, cannot
authorize a more expansive remedy for a general maritime cause of action than
exists for a parallel statutory maritime cause of action if, at the time the
statutory cause of action or remedy was enacted, the parallel cause of action or
remedy did not exist under general maritime law. Applying that principle, they
urge that punitive damages remain available as a remedy for the general
maritime law cause of action for unseaworthiness because, as Justice Thomas
highlighted for the Court in Townsend, like maintenance and cure,
unseaworthiness was established as a cause of action before the passage of the
Jones Act, courts traditionally awarded punitive damages under general
maritime law, and the Jones Act does not address unseaworthiness or purport
to limit its remedies.
      Estis reads those cases as providing, more broadly, that where claimants
seek redress for a type of harm compensable under both general and statutory
maritime law, they are limited in their recovery to the class of damages
authorized by the Jones Act and DOHSA regardless of the claim=s history and
without need for explicit Congressional recalibration. That is, punitive
damages are available only where there is no remedial overlap between past
general and never displaced statutory maritime claims because according to
Estis, Athe Jones Act and unseaworthiness claims constitute a single cause of
action with a single set of remedies.@ In Estis=s view, punitive damages were
available in Townsend, but not Miles, because the Miles plaintiffs sought

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                                No. 12-30714

redress for physical injury and wrongful death, harms now compensable only
under statutory maritime law, whereas the Townsend plaintiffs sought redress
for harm caused by wrongful deprivation of maintenance and cure that did not
result in physical injury, a type of harm compensable under general maritime
law but not under statutory maritime law, which does not separately provide
for a cause of action for maintenance and cure or a remedy for its deprivation.
Applying that reasoning here, Estis argues that because the crew members
seek redress for wrongful death and personal injuries arising from a maritime
accidentCtypes of harm compensable under statutory maritime lawCand
punitive damages are not available under statutory maritime law, punitive
damages are not available in the present action.
                                      1.
      To start, Estis=s argument that Jones Act claims and unseaworthiness
claims are but one collides with the Supreme Court=s decision in Usner v.
Luckenbach Overseas Corp., which explained:
      A major burden of the Court's decisions spelling out the nature and
      scope of the cause of action for unseaworthiness has been
      insistence upon the point that it is a remedy separate from,
      independent of, and additional to other claims against the
      shipowner, whether created by statute or under general maritime
      law.

400 U.S. 494, 498 (1971) (footnotes omitted) (emphasis added); see also
Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th Cir. 1986)
(recognizing in section of opinion entitled ASeparate Causes of Action@ that
A[t]he history of the unseaworthiness claim shows that it developed
independently of Jones Act negligence and has been treated as a separate
cause of action ever since@).


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      To the extent that Estis=s focus is on the case=s factual setting and not
the specific cause of action alleged, Estis=s proposed test for determining
whether the Miles uniformity principle limits the damages recoverable in a
maritime case mirrors the one previously adopted by our en banc court in
Guevara:
      In order to decide whether (and how) Miles applies to a case, a
      court must first evaluate the factual setting of the case and
      determine what statutory remedial measures, if any, apply in that
      context. If the situation is covered by a statute like the Jones Act
      or DOHSA, and the statute informs and limits the available
      damages, the statute directs and delimits the recovery available
      under the general maritime law as well.
59 F.3d at 1506 (emphasis omitted). Estis highlights this congruity and argues
that although Guevara=s holding that punitive damages are unavailable in
actions for maintenance and cure was overruled by Townsend, Guevara=s
guidance on how to apply the Miles uniformity principle remains intact.
      I would disagree. Townsend abrogated Guevara=s holding because of
Guevara=s interpretation of Miles, not in spite of it. The petitioners in
Townsend urged the Supreme Court to adopt the factual setting approach of
Guevara, but the Court in Townsend declared that reading was Afar too broad.@
557 U.S. at 419. That approach, the Court went on, Awould give greater
pre-emptive effect to the Act than is required by its text, Miles, or any of this
Court=s other decisions interpreting the statute.@ Id. at 424B25. Indeed, the
Court noted, it had already rejected that view in Norfolk Shipbuilding &
Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001), an intervening case holding
that a wrongful death remedy is available under general maritime law for the
death of a harborworker attributable to negligence, even though Aneither the
Jones Act (which applies only to seamen) nor DOHSA (which does not cover

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                                       No. 12-30714

territorial waters) provided such a remedy.@ Townsend, 557 U.S. at 421
(citations omitted). The broader point made in Townsend, which I would heed
today, is that A[t]he laudable quest for uniformity in admiralty does not require
the narrowing of available damages to the lowest common denominator
approved by Congress for distinct causes of action.@ Id. at 424.
       To give effect to that principle, Townsend established a straightforward
rule, fully faithful to its earlier Miles decision: if a general maritime law cause
of action and remedy were established before the passage of the Jones Act, and
the Jones Act did not address that cause of action or remedy, then that remedy
remains available under that cause of action unless and until Congress
intercedes. 94 Estis did not dispute that the rule=s premises are satisfied in this
case: the cause of action (unseaworthiness) and the remedy (punitive damages)
were both established before the passage of the Jones Act, and that statute did
not address unseaworthiness or its remedies; indeed, the Supreme Court has


       94 Id. at 414B15 (AThe settled legal principles discussed above establish three points
central to resolving this case. First, punitive damages have long been available at common
law. Second, the common-law tradition of punitive damages extends to maritime claims. And
third, there is no evidence that claims for maintenance and cure were excluded from this
general admiralty rule. Instead, the pre-Jones Act evidence indicates that punitive damages
remain available for such claims under the appropriate factual circumstances. As a result,
respondent is entitled to pursue punitive damages unless Congress has enacted legislation
departing from this common-law understanding. As explained below, it has not.@) (footnote
omitted); id. at 420 (AUnlike the situation presented in Miles, both the general maritime
cause of action (maintenance and cure) and the remedy (punitive damages) were well
established before the passage of the Jones Act. Also unlike the facts presented by Miles, the
Jones Act does not address maintenance and cure or its remedy. It is therefore possible to
adhere to the traditional understanding of maritime actions and remedies without abridging
or violating the Jones Act.@) (citations and footnote omitted); id. at 424 (ABecause punitive
damages have long been an accepted remedy under general maritime law, and because
nothing in the Jones Act altered this understanding, such damages for the willful and wanton
disregard of the maintenance and cure obligation should remain available in the appropriate
case as a matter of general maritime law.@).


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                                       No. 12-30714

been clear that the Jones Act enlarged seamen=s protection. 95 Seeking to avoid
the conclusion that follows, Estis attempts to distinguish Townsend.
       Estis contends, and the Majority Opinion accepts, that finding punitive
damages available would overrule Miles. This view overbroadly construes
Miles to require uniform displacement even as to preexisting causes of action




       95 To the extent that Estis does argue that historically, punitive damages have been
unavailable as a remedy for unseaworthiness, it misses the point of Townsend. Townsend
established that Athe common-law tradition of punitive damages extends to maritime claims.@
Townsend, 557 U.S. at 414; see also id. at 424 (ABecause punitive damages have long been an
accepted remedy under general maritime law, and because nothing in the Jones Act altered
this understanding . . . .@). Just as in Townsend, Estis provides no evidence that claims for
unseaworthiness Awere excluded from this general admiralty rule.@ Id. at 415. At best, Estis=s
historical review matches that of the dissent in Townsend. In Townsend, however, Justice
Thomas dismissed historical ambiguity in a footnote worth reproducing here:
                The dissent correctly notes that the handful of early cases involving
        maintenance and cure, by themselves, do not definitively resolve the question
        of punitive damages availability in such cases. However, it neglects to
        acknowledge that the general common-law rule made punitive damages
        available in maritime actions. Nor does the dissent explain why maintenance
        and cure actions should be excepted from this general rule. It is because of this
        rule, and the fact that these early cases support-rather than refute-its
        application to maintenance and cure actions, that the pre-Jones Act evidence
        supports the conclusion that punitive damages were available at common law
        where the denial of maintenance and cure involved wanton, willful, or
        outrageous conduct.
        Id. at 414 n.4 (internal citations omitted). Accordingly, Townsend makes clear that in
the face of historical dispute, the default rule of punitive damages applies.
        The Concurring Opinion of 5 colleagues (AConcurring Op.@), however, finds Townsend
to be a Athin strand@ offering only Aminimal support.@ Concurring Op. 2. But Justice Thomas
did not limit his historical review to maintenance and cure claims; the Court instead clarified
that A[t]he general rule that punitive damages were available at common law extended to
claims arising under federal maritime law.@ Id. at 411 (section AII.B@ of the opinion).
Respectfully, the Concurring Opinion=s criticism that I should not Ablithely assume@ that
punitive damages were available for claims arising under the general maritime law is
directed at Section II.B of Justice Thomas=s majority opinion, a point he deemed Acentral to
resolving this case.@ Id. at 414-15; Concurring Op. at 5.


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or remedies without clear statutory language or intent. 96 This was an
expansion taken in Guevara, then constrained by the Supreme Court in
Townsend. The Supreme Court did not touch punitive damages in Miles;
indeed, our court asserted the availability of punitive damages for
unseaworthiness claims yet the Supreme Court certiorari grant and opinion
did not encompass or alter that holding. See Miles, 882 F.2d at 989. Indeed, the
Court in Miles itself noted that a plaintiff may recover for pain and suffering,
damages framed as nonpecuniary. Miles, 498 U.S. at 22. 97 Moreover, Townsend
declined to reach whether punitive damages are available under the Jones Act:
       Because we hold that Miles does not render the Jones Act=s
       damages provision determinative of respondent=s remedies, we do
       not address the dissent=s argument that the Jones Act, by
       incorporating the provisions of the Federal Employers= Liability
       Act, see 46 U.S.C. ' 30104(a), prohibits the recovery of punitive
       damages in actions under that statute.




       96 The Majority Opinion frames Miles as involving a Awrongful death@ action. Maj. Op.
7. This framing, however, misplaces Awrongful death@ in Townsend=s analysis, which asks
whether the cause of action and the remedy were well established before the Jones Act.
Townsend, 557 U.S. at 420B21. Unseaworthiness is the underlying cause of action relevant
to Townsend=s analysis. The Majority Opinion acknowledges this when describing Miles=s
holding: Athe Court considered the issue presented directly in this case: the scope of the
survivor=s recovery in her general maritime law/unseaworthiness action for wrongful death.@
Maj. Op. 7-8 (emphasis added). I agree with this description of Miles: the general maritime
cause of action is unseaworthiness (an action that no one disputes was well established before
the Jones Act), and the question remains as to what remedies are available to a plaintiff who
brings an unseaworthiness claim. As to the remedy in this case, punitive damages, Townsend
announced the default rule that punitive damages are available for actions under the general
maritime law (such as unseaworthiness). Decisively, Townsend dismissed the argument that
A[Miles] limited recovery in maritime cases involving death or personal injury to the remedies
available under the Jones Act and the Death on the High Seas Act (DOHSA),@ as reading
Miles Afar too broad[ly].@ Townsend, 557 U.S. at 418 (emphasis added).

       97   We recognized this in our opinion as well. Miles, 882 F.2d at 985.


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557 U.S. at 424 n.12. If Estis=s argument adopted in the Majority Opinion is
correct that Miles directly forecloses the availability of punitive damages for
unseaworthiness claims, then Miles would have closed the same question as
applied to Jones Act claims without need for this exact qualification.
      Estis attempts to distinguish Townsend on the ground that it involved a
maintenance and cure claim, as opposed to an unseaworthiness claim. It is true
that unseaworthiness claims are more closely related to negligence claims than
they are to maintenance and cure claims. But as we noted in GuevaraCthe
primary case upon which Estis reliesCthe displacement analysis for
unseaworthiness claims is Awholly applicable to maintenance and cure cases
as well.@ Guevara, 59 F.3d at 1504. Indeed, if the decisive paragraph in
Townsend were amended by replacing Amaintenance and cure@ with
Aunseaworthiness,@ it would retain its persuasive force:
      Unlike the situation presented in Miles, both the general maritime
      cause of action ([unseaworthiness]) and the remedy (punitive
      damages) were well established before the passage of the Jones
      Act. Also unlike the facts presented by Miles, the Jones Act does
      not address [unseaworthiness] or its remedy. It is therefore
      possible to adhere to the traditional understanding of maritime
      actions and remedies without abridging or violating the Jones Act;
      unlike wrongful-death actions, this traditional understanding is
      not a matter to which ACongress has spoken directly.@ Indeed, the
      Miles Court itself acknowledged that A[t]he Jones Act evinces no
      general hostility to recovery under maritime law,@ and noted that
      statutory remedy limitations Awould not necessarily deter us, if
      recovery . . . were more consistent with the general principles of
      maritime tort law.@ The availability of punitive damages for
      [unseaworthiness] actions is entirely faithful to these Ageneral
      principles of maritime tort law,@ and no statute casts doubt on their
      availability under general maritime law.
Townsend, 557 U.S. at 420B21 (citations omitted).


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      Estis argues also that the Achronological@ framework announced in
Townsend is inapt because of the evolution of claims of unseaworthiness.
Unlike maintenance and cure, which has remained unchanged in substance for
centuries, the claim of unseaworthiness has evolved over the years. Although
it was well established before the passage of the Jones Act, it did not become a
strict liability claim until 1944, Mahnich v. Southern S.S. Co., 321 U.S. 96, 100
(1944), and was not available to seamen killed during the course of their
employment until 1970, Moragne, 398 U.S. at 409.
      I agree that this case differs from Townsend in that respect. That is,
punitive damages for the willful violation of the duty to provide maintenance
and cure appear to have been available, if sparingly awarded, during the pre-
Jones Act era. See Townsend, 557 U.S. at 414 (citing The City of Carlisle, 39 F.
at 809, 817 and The Troop, 118 F. at 770B71, 773). It is less clear whether
punitive damages were awarded for unseaworthiness violations during that
period. See supra note 15. The parties did not brief this point to the panel,
perhaps respectful of the Supreme Court=s determination of the issue in
Townsend. See Townsend, 557 U.S. at 408B15 (section II of the Court=s opinion).
This distinction, if factually supported and not foreclosed by the Supreme
Court, would change the inquiry: the question would not be whether the Jones
Act was intended to displace existing remedies, but whether it was meant to
foreclose future remedies. But the outcome would be the same.
      Our task is not to reconstruct maritime law as it existed in 1920, but to
assess whether Congress, in passing the Jones Act and DOHSA, intended to
displace pre-existing maritime remedies or foreclose them going forward. See
Townsend, 557 U.S. at 419B25. Let us assume for the sake of argument,
contrary to Townsend, that maritime courts during the pre-Jones Act era had

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taken no position on the propriety of punitive damages in unseaworthiness
actions; that Congress in 1920 was painting on a blank canvas. Had Congress
Aspoken directly@ on the matter, then I would follow its guidance. Townsend,
557 U.S. at 420B21; Miles, 498 U.S. at 27, 32B33. But the Jones Act does not
mention unseaworthiness or its remedies nor has any legislative history to that
effect been urged or identified to us. 46 U.S.C. ' 30104. And Aa remedial
omission in the Jones Act is not evidence of considered congressional
policymaking that should command our adherence in analogous contexts.@ Am.
Export Lines, Inc. v. Alvez, 446 U.S. 274, 283B84 (1980); see also id. at 282 (ANor
do we read the Jones Act as sweeping aside general maritime law remedies.@).
Similarly, Ano intention appears that [DOHSA] ha[d] the effect of foreclosing
any nonstatutory federal remedies that might be found appropriate to
effectuate the policies of general maritime law.@ Moragne, 398 U.S. at 400.
Given that Athe absence of federal legislation constraining punitive damages
does not imply a congressional decision that there should be no quantified
rule,@ Baker, 554 U.S. at 508 n.21, it follows that the matter remained open
after the Jones Act and DOHSA. We resolved it in Merry Shipping when we
held that punitive damages were an appropriate remedy to effectuate the
policies of general maritime law, see Merry Shipping, 650 F.2d at 625B26, a
view shared then and since by other circuit courts. See, e.g., cases cited supra
note 8. The Majority Opinion strongly implies but never asserts directly that
the Jones Act did in fact address unseaworthiness and its remedies. The
Majority Opinion distinguishes Townsend because A[u]nlike the seaman=s
remedy for damages based on negligence and unseaworthiness, >the Jones Act
does not address maintenance and cure or its remedy.=@ Maj. Op. 12 (emphasis
added). As discussed, no party has taken the position that the Jones Act

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addresses unseaworthiness or its remedies, likely because this interpretation
of the Jones Act lacks support and, indeed, contradicted by the Supreme Court
in Usner. See Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62
(5th Cir. 1982); Usner, 400 U.S. at 498; Brunner, 779 F.2d at 298.
      Estis goes on to argue that allowing seamen to recover punitive damages
under general maritime law would create a number of anomalies. Though one
acknowledged function of maritime courts is to reconcile anomalies that
present themselves in the law, e.g., Moragne, 398 U.S. at 395B409 (overruling
The Harrisburg, 119 U.S. at 205 to remedy three maritime law anomalies), I
perceive no anomalies.
      Estis argues that this approach would allow plaintiffs to circumvent the
pecuniary damages limitation in the Jones Act by pleading a claim for
unseaworthiness. This is not an anomaly, as the Supreme Court has
highlighted; it is a traditional feature of maritime law designed to protect
seamen, the wards of admiralty. 98 By design, seamen have always had the
Aright to choose among overlapping statutory and common-law remedies@ for
their injuries. Townsend, 557 U.S. at 423 (citation omitted); see also Cortes v.
Baltimore Insular Lines, 287 U.S. 367, 374B75 (1932) (A seaman=s Acause of
action for personal injury created by the [Jones Act] may have overlapped his
cause of action for breach of the maritime duty of maintenance and cure, just
as it may have overlapped his cause of action for injury caused through an



      98  Seamen have long been characterized as Awards of admiralty@ deserving special
protection under maritime law. See, e.g., Townsend, 557 U.S. at 417 (noting that seamen are
Apeculiarly the wards of admiralty@); Robertson v. Baldwin, 165 U.S. 275, 287 (1897) (AThe
ancient characterization of seamen as >wards of admiralty= is even more accurate now than
it was formerly.@).


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                                   No. 12-30714

unseaworthy ship. In such circumstances it was his privilege, in so far as the
causes of action covered the same ground, to sue indifferently on any one of
them.@) (citations omitted); Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71, 75
(5th Cir. 1980) (A[A] Jones Act claim may be joined with a wrongful death claim
for nonpecuniary damages based on general maritime law, where the incident
does not arise on the high seas, and that nonpecuniary damages may be
recovered under the unseaworthiness claim.@) (citations omitted). That a
violation of the unseaworthiness duty Amay also give rise to a Jones Act claim
is significant only in that it requires admiralty courts to ensure against double
recovery.@ Townsend, 557 U.S. at 423 n.10 (citation omitted).
      Estis argues, similarly, that it would be anomalous for the law to allow
different remedies for what amounts to the same cause of action. It is crucial
to reiterate, however, that although similar, the Supreme Court has
demonstrated that Jones Act negligence and unseaworthiness are Aseparate
and distinct@ claims with different elements and standards of causation.
Chisholm, 679 F.2d at 62 (citation omitted); see also Usner, 400 U.S. at 498;
Brunner, 779 F.2d at 298. Plaintiffs often bring claims for both causes of action,
and the same act that results in liability for one will often result in liability for
the other, but that is a common feature of the law. Relatedly, Estis argues that
it would make little sense to permit the recovery of punitive damages for
unseaworthiness, which imposes liability without regard to fault, while
denying such relief on a Jones Act claim, which requires a finding of
negligence. See Merry Shipping, 650 F.2d at 626. This argument especially
overlooks that punitive damages recovery always requires a high culpability
finding of willful and wanton conduct, whether the cause of action is for
maintenance and cure or unseaworthiness. See id; see also Stowe v. Moran

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                                        No. 12-30714

Towing Corp., No. 13-0390, 2014 WL 247544, at *7 (E.D La. Jan. 22, 2014)
(relying on McBride to note that A[o]f course, punitive damages are available
as a remedy to seamen under the general maritime law claim of
unseaworthiness@ but dismissing the claim because the finding of willful and
wanton conduct was Amissing on this record@). 99 Punitive damages differ in that
way from other types of non-pecuniary damages, such as the loss of society
damages addressed in Miles. In light of that distinction, we previously have
rejected this argument against allowing punitive damages recovery under
general maritime law. Id. (AIt does not follow . . . that if punitive damages are
not allowed under the Jones Act, they should also not be allowed under general
maritime law [because] recovery of punitive damages is restricted to where
there is willful and wanton misconduct, reflecting a reckless disregard for the
safety of the crew, a much higher standard of culpability than that required
for Jones Act liability.@). The central concern of MilesCthat it would be
inappropriate to Asanction 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@Cthus, is not present here. 498 U.S.
at 32B33.



       99 To the extent that Estis argues that the availability of punitive damages is
disruptive, it may be noted that (1) punitive damages were available under Merry Shipping,
(2) punitive damages are the rule with respect to maintenance and cure, (3) the Supreme
Court has rejected the argument that punitive damages unduly impact settlement
negotiations, see Baker, 544 U.S. at 498 n.15 (AOne might posit that ill effects of punitive
damages are clearest not in actual awards but in the shadow that the punitive regime casts
on settlement negotiations and other litigation decisions. But here again the data have not
established a clear correlation. (internal citations omitted)), (4) courts can sanction parties if
punitive damages are frivolously alleged, and, crucially, (5) Congress can always withdraw
their availability.


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                                           2.
      The Majority Opinion=s emphasis on the deceased plaintiff in Miles risks
the broadening error committed by the losing party in Townsend, corrected by
the Supreme Court: AIn Miles, petitioners argue, the Court limited recovery in
maritime cases involving death or personal injury to the remedies available
under the Jones Act and the Death on the High Seas Act (DOHSA).@ Townsend,
557 U.S. at 418 (emphasis added). The Court explained that A[p]etitioners=
reading of Miles is far too broad.@ But even accepting Estis=s broad view that a
case involving death is so limited, this reasoning would lose all force as applied
to personal-injury plaintiffs raising unseaworthiness claims. As to them,
Townsend applies straightforwardly: Townsend described the availability of
punitive damages as a Ageneral admiralty rule@ applicable to Amaritime
claims,@ id. at 414-15, and no party has argued that the Jones Act addressed
unseaworthiness, let alone that it excepted unseaworthiness from the general
maritime rule. 100 See e.g., In re Asbestos Prods. Liab. Litig., MDL No.875, 2014
WL 3353044, at *2-11 (E.D. Pa. July 9, 2014) (AIn sum, a general maritime
claim of unseaworthiness can support a punitive damages award when brought
directly by an injured seaman, but not when brought by a seaman=s personal


      100 As discussed, Townsend stressed the default availability of punitive damages for
general maritime causes of action, referring to this Arule@ three times in one footnote:
              However, [the dissent] neglects to acknowledge that the general common-law
      rule made punitive damages available in maritime actions. Nor does the dissent
      explain why maintenance and cure actions should be excepted from this general rule.
      It is because of this rule, and the fact that these early cases supportCrather than
      refuteCits application to maintenance and cure actions, that the pre-Jones Act
      evidence supports the conclusion that punitive damages were available at common
      law where the denial of maintenance and cure involved wanton, willful, or outrageous
      conduct.
      Id. at 414 n.4 (internal citations omitted).


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representative as part of a wrongful death or survival action. Put simply, the
remedy of punitive damages exists as it did prior to the passage of the Jones
Act, and thus does not survive a seaman=s death.@).
      Moreover, the Supreme Court in Townsend explained that its general
rule applies undiminished even when a general maritime claim is, as the
Majority Opinion writes, Ajoined with@ or Apredicated on@ a Jones Act claim.
Maj. Op. 2, 11. AThe fact that, in some cases, a violation of the duty of
maintenance and cure may also give rise to a Jones Act claim, is significant
only in that it requires admiralty courts to ensure against double recovery.@
Townsend, 557 U.S. at 423 n.10 (emphasis added). Under the Majority
Opinion=s view, however, that an unseaworthiness claim is Ajoined with@ a
Jones Act claim is significant in another respect unidentified by the Supreme
Court in Townsend: it precludes seamen from invoking the general maritime
rule providing for punitive damages. Only by contravening Townsend=s
established rule, then, can Estis offer its position, adopted by the Majority
Opinion, that Miles forecloses the availability punitive damages in an
unseaworthiness injury case. The Majority Opinion concludes otherwise
because Ano one has suggested why [Miles=s] holding and reasoning would not
apply to an injury case.@ Maj. Op. 10. This analysis has no post-Townsend
support and, instead contravenes the Supreme Court=s instruction by
inappropriately placing the burden on the seamen to demonstrate that the
general maritime rule announced in Townsend has been extinguished. As the
Supreme Court in Townsend instructed, the burden squarely is on Congress:
Arespondent is entitled to pursue punitive damages unless Congress has
enacted legislation    departing from     this common-law understanding.@
Townsend, 557 U.S. at 415. Congressional silence therefore is oppositely

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                                       No. 12-30714

dispositive, and even under the Majority Opinion=s broadened interpretation
of Miles, reversal would be warranted as to the injured seamen, Suire and
Touchet.
                                     CONCLUSION
       Like maintenance and cure, unseaworthiness was established as a
general maritime claim before the passage of the Jones Act, punitive damages
were available under general maritime law, and the Jones Act does not address
unseaworthiness or limit its remedies. I would conclude that punitive damages
remain available to seamen as a remedy for the general maritime law claim of
unseaworthiness until Congress says they do not. See Townsend, 557 U.S.
404. 101




       101 Having so concluded, like the Supreme Court, I would decline to revisit whether
punitive damages are available to seamen bringing claims for negligence under the Jones
Act. See Townsend, 557 U.S. at 424 n.12 (declining to decide whether punitive damages are
available to a seaman in a cause of action for negligence under the Jones Act after ruling that
such damages are available to a seaman in a cause of action for maintenance and cure).


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                                  No. 12-30714
JAMES E. GRAVES, JR., Circuit Judge, dissenting, joined by DENNIS, Circuit
Judge.
      I join Judge Higginson’s dissent in full, and fully agree with its reasoning
and conclusions.     I write in support and amplification of the dissent’s
observation that extending the Miles pecuniary damages limitation to the
injured crew members in this case compounds the error in the majority opinion.
      Even under the majority’s view that Miles v. Apex Marine, 498 U.S. 19
(1990) is the controlling case, the majority extends Miles much too far. There
are four plaintiffs in this case: Haleigh McBride, as administratrix of the estate
of Skye Sonnier, a seaman who was killed in the accident, and Saul Touchet,
Brian Suire, and Joshua Bourque, seamen who were injured in the accident.
All four assert causes of action based on unseaworthiness under general
maritime law and negligence under the Jones Act. The majority concludes that
punitive damages are unavailable for all four of the plaintiffs because, under
the Miles approach, recovery for death or injury predicated on the Jones Act or
unseaworthiness is limited to “pecuniary” damages, and punitive damages are
non-pecuniary.
      However, read with its proper scope, the pecuniary damages limitation
recognized in Miles applies only to the wrongful death causes of action brought
by McBride. It does not apply to Touchet, Suire, and Bourque, who are seamen
asserting Jones Act negligence and general maritime law unseaworthiness
causes of action on their own behalf. The pecuniary damage limitation was
created in the context of wrongful death statutes, and by statute, history and
logic, it applies only to survivors asserting wrongful death claims.         This
distinction is inherent in the text of the Jones Act itself, which allows a
survivor or personal representative to sue in wrongful death only if the seamen
dies from the injury. 46 U.S.C § 30104; see Sistrunk v. Circle Bar Drilling Co.,
770 F.2d 455, 457 (5th Cir. 1985) (summarizing the actions available in
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                                  No. 12-30714
maritime death and injury cases). If the seaman survives, he must bring his
own action, and the pecuniary damages limitation created by wrongful death
statutes and case law should be inapplicable.
        It is well-recognized that the original source of the pecuniary damages
limitation in maritime law is the Federal Employee Liability Act (FELA),
which was incorporated into the Jones Act at its passage. Miles, 498 U.S. at
32.    However, the FELA limitation of recovery to “pecuniary” damages
originally applied only to survivors bringing wrongful death claims, and did
not apply to plaintiffs asserting claims for their own injury. In Michigan
Central R. Co. v. Vreeland, 227 U.S. 59 (1913), the Supreme Court explained
that the language of FELA is “essentially identical” to the first wrongful death
statute, Lord Campbell’s Act, 9 & 10 Vict. ch. 93 (1846), which did not explicitly
limit available damages, “but that Act and the many state statutes that
followed it consistently had been interpreted as providing recovery only for
pecuniary loss.” Miles, 498 U.S. at 32; Vreeland, 227 U.S. at 69-71. The Miles
Court stated that “[w]hen Congress passed the Jones Act, the Vreeland gloss
on FELA, and the hoary tradition behind it, were well established.
Incorporating FELA unaltered into the Jones Act, Congress must have
intended to incorporate the pecuniary limitation on damages as well.” Miles,
498 U.S. at 32.        The majority, however, misinterprets the scope of the
pecuniary damages limitation recognized in Miles, and historically recognized
in FELA and Jones Act cases.
        Supreme Court case law discussing FELA and the Jones Act show that
the statutory limitation of recovery to “pecuniary” damages applies only to
wrongful death claims brought by survivors. Prior to the passage of the Jones
Act in 1920, the Supreme Court repeatedly held that FELA’s pecuniary
damages limitation applied to survivors asserting wrongful death claims, and
distinguished those claims from claims brought by injured employees
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                                  No. 12-30714
themselves. In Vreeland, the Court explained that the FELA wrongful death
cause of action
      is independent of any cause of action which the decedent had, and
      includes no damages which he might have recovered for his injury
      if he had survived. It is one beyond that which the decedent had,—
      one proceeding upon altogether different principles. It is a liability
      for the loss and damage sustained by relatives dependent upon the
      decedent. It is therefore a liability for the pecuniary damage
      resulting to them, and for that only.
227 U.S. at 69. In St. Louis, I.M. & S. Ry. Co. v. Craft, the Court again
distinguished between the employee’s own rights and that of his survivors.
The Court explained that FELA
      invests the injured employee with a right to such damages as will
      compensate him for his personal loss and suffering,—a right which
      arises only where his injuries are not immediately fatal. And
      where his injuries prove fatal, either immediately or subsequently,
      it invests his personal representative, as a trustee for designated
      relatives, with a right to such damages as will compensate the
      latter for any pecuniary loss which they sustain by the death.
237 U.S. 648, 656 (1915) (internal citation omitted) (citing Vreeland, 227 U.S.
at 68; Louisville, E. & St. L. R. Co. v. Clarke, 152 U.S. 230, 238 (1894)); see also
Gulf, C. & S.F. Ry. Co. v. McGinnis, 228 U.S. 173, 175-76 (1913). In Van Beeck
v. Sabine Towing Co., the Court adopted this same proposition under the Jones
Act. The Court explained that under FELA, as incorporated by the Jones Act,
      the personal representative does not step into the shoes of the
      employee, recovering the damages that would have been his if he
      had lived. On the contrary, by section 1 of the statute a new cause
      of action is created for the benefit of survivors or dependents of
      designated classes, the recovery being limited to the losses
      sustained by them as contrasted with any losses sustained by the
      decedent.
300 U.S. 342, 346 (1937). The Van Beeck Court went on to explain the effect of
an amendment to FELA, which provided that the decedent’s own claims,
including for pain and suffering, survived his death:
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                                        No. 12-30714
       However, with the adoption of an amendment in 1910, a new
       aspect of the statute emerges into view. Section 2 as then enacted
       continues any cause of action belonging to the decedent, without
       abrogating or diminishing the then existing cause of action for the
       use of his survivors. Although originating in the same wrongful
       act or neglect, the two claims are quite distinct, no part of either
       being embraced in the other. One is for the wrong to the injured
       person, and is confined to his personal loss and suffering before he
       died, while the other is for the wrong to the beneficiaries, and is
       confined to their pecuniary loss through his death.
Id. at 347 (citations and internal quotation omitted). 1
       These cases make it exceedingly clear that, at the time the Jones Act was
passed, wrongful death claims that could be brought by a survivor were
distinguished from an employee’s own claims for his own injuries under FELA,
and the pecuniary damages limitation applied only to the former. See Van
Beeck, 300 U.S. at 346-47; St. Louis, I.M., 237 U.S. at 656; Vreeland, 227 U.S.
at 69-71; see also Cook v. Ross Island Sand & Gravel Co., 626 F.2d 746, 749
(9th Cir. 1980) (“Yet, while the Jones Act arguably may apply a pecuniary loss



       1  In Ivy v. Sec. Barge Lines, Inc., this court stated: “In the 66 years since the Vreeland
decision, its principle that recovery under the F.E.L.A. is limited to pecuniary damages has
remained a constant roadbed for railway workers suits. The same principle has uniformly
been adopted with respect to Jones Act death action.” 606 F.2d 524, 526 (5th Cir. 1979) (en
banc). Every single case cited for these propositions in Ivy is a wrongful death action brought
by survivors, in the FELA context, id. at 526 n.4 (citing Chesapeake & O. Ry. Co. v. Kelly, 241
U.S. 485, 487 (1916); Am. R. Co. of Porto Rico v. Didricksen, 227 U.S. 145, 149 (1913); Stark
v. Chicago, N. Shore & Milwaukee Ry. Co., 203 F.2d 786, 788 (7th Cir. 1953); Mobile & O.R.
Co. v. Williams, 129 So. 60, 66 (Ala. 1930); Atl. Coast Line R. Co. v. Daugherty, 157 S.E.2d
880, 888 (Ga. 1967); Simmons v. Louisiana Ry. & Nav. Co., 96 So. 12 (La. 1923); Torchia v.
Burlington N., Inc., 568 P.2d 558, 565 (Mont. 1977)), and in the Jones Act context, id. at 526
n.5 (citing In re of M/V Elaine Jones, 480 F.2d 11, 31 (5th Cir. 1973); Cities Serv. Oil Co. v.
Launey, 403 F.2d 537, 540 (5th Cir. 1968); Igneri v. Cie. de Transports Oceaniques, 323 F.2d
257, 266 (2d Cir. 1963); Sabine Towing Co. v. Brennan, 85 F.2d 478, 481 (5th Cir. 1936) rev'd
sub nom. Van Beeck v. Sabine Towing Co., 300 U.S. 342 (1937); United States v. Boykin, 49
F.2d 762, 763 (5th Cir. 1931); Thompson v. Offshore Co., 440 F. Supp. 752, 762 (S.D. Tex.
1977); In re of Risdal & Anderson, Inc., 291 F. Supp. 353, 358 (D. Mass. 1968); In re of S. S S
Co., 135 F. Supp. 358, 360 (D. Del. 1955); Am. Barge Line Co. v. Leatherman’s Adm’x, 206
S.W.2d 955, 957 (Ky. 1947); Standard Products, Inc. v. Patterson, 317 So. 2d 376, 378 (Miss.
1975)).
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                                  No. 12-30714
restriction to the personal losses of a decedent’s beneficiaries, the Act does not
apply a pecuniary loss restriction to the injuries of a decedent himself.”); Deal
v. A.P. Bell Fish Co., 728 F.2d 717, 718 (5th Cir. 1984) (citing Cook for the
proposition that “the pain and suffering of a drowning seaman is a
compensable injury in a wrongful death action under the Jones Act”).
       Likewise, Miles is solely a wrongful death case, and its recognition of a
pecuniary damage limitation applies to survivors asserting wrongful death
claims. Miles itself explained that the plaintiff could not recover loss of society
because “[t]he Jones Act applies when a seaman has been killed as a result of
negligence, and it limits recovery to pecuniary loss.” Miles, 498 U.S. at 32
(emphasis added).     Indeed, all of the reasoning in Miles is applicable to
survivors bringing wrongful death actions, rather than injured seamen seeking
recovery for their own injuries. The Townsend Court’s discussion of Miles
makes this clear.
      The Court in Miles first concluded that the “unanimous legislative
      judgment behind the Jones Act, DOHSA, and the many state
      statutes” authorizing maritime wrongful-death actions, supported
      the recognition of a general maritime action for wrongful death of
      a seaman. Congress had chosen to limit, however, the damages
      available for wrongful-death actions under the Jones Act and
      DOHSA, such that damages were not statutorily available for loss
      of society or lost future earnings. The Court thus concluded that
      Congress’ judgment must control the availability of remedies for
      wrongful-death actions brought under general maritime law.
Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404, 419 (2009) (citations omitted
and emphases added) (quoting Miles, 498 U.S. at 24). This is logical, at least
pre-Townsend, given that the wrongful death cause of action was originally a
creation of statutes that have long been read to limit survivors’ recovery to
their pecuniary losses. See Miles, 498 U.S. at 32; Vreeland, 227 U.S. at 69-71.
But Miles says nothing indicating that it intended to recognize a pecuniary


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damage limitation that applies more broadly than the pre-Jones Act FELA
limitation.
       There is no similar statute, history, or logic limiting seamen’s own
recovery to their pecuniary losses. No authority indicates that when the Jones
Act incorporated FELA, it expanded the pecuniary damage limitation to
injured seamen asserting their own claims for their own injuries. Indeed, with
this law as background, the Miles Court’s recognition that “Incorporating
FELA unaltered into the Jones Act, Congress must have intended to
incorporate the pecuniary limitation on damages as well,” Miles, 498 U.S. at
32, means something far more limited than the majority recognizes. 2
       The contrast between the limited “pecuniary” damages that, under the
majority’s approach, are recoverable in wrongful death actions under FELA
and the Jones Act, and the categories of damages that have always been
available to seamen, further reveals the error in the majority opinion. The
majority briefly implies that “pecuniary” damages are broadly equivalent to
“compensatory” damages, which allows the opinion to reason that the
pecuniary damage limitation bars recovery of non-pecuniary punitive
damages. Although some courts have in the past sporadically discussed them
as if they are coextensive, see Kozar v. Chesapeake & O. Ry. Co., 449 F.2d 1238,
1243 (6th Cir. 1971), the relevant statutes and case law, including Miles itself,




       2 The majority opinion cites only Murray v. Anthony J. Bertucci Const. Co., Inc., 958
F.2d 127 (5th Cir. 1992), as justification for extending the Miles pecuniary damages to an
injury case. But of course, in Murray, the court held that the spouse of an injured seaman
could not recover for loss of society. Id. at 128; but see Am. Exp. Lines, Inc. v. Alvez, 446 U.S.
274, 276 (1980) (holding that spouse of longshoreman injured in territorial waters could
recover loss of society in general maritime law action). That case may provide justification
for limiting the recovery of a spouse or dependent in an injury case to pecuniary loss, but
provides no justification for extending the pecuniary damage limitation to seamen seeking
recovery for their own injuries.
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do not conflate pecuniary damages with compensatory damages.            Instead,
“pecuniary” damages are understood to be far narrower.
      Miles adopted the Death on the High Seas Act (DOHSA) limitation of
damages to “pecuniary loss sustained by the persons for whose benefit suit is
brought.” Miles, 498 U.S. at 31; see also Mobil Oil Corp. v. Higginbotham, 436
U.S. 618, 620 (1978). Both Miles and Higginbotham considered claims for loss
of society damages brought by survivors in statutory wrongful death actions,
and denied recovery because loss of society damages are non-pecuniary. Miles,
498 U.S. at 31-32; Higginbotham, 436 U.S. at 623-24. However, neither case
provides a definition of “pecuniary,” beyond excluding loss of society. DOHSA
restricts recovery to “a fair and just compensation for the pecuniary loss
sustained by the persons for whose benefit the suit is brought.” Higginbotham,
436 U.S. at 620; 46 U.S.C. § 30303. This DOHSA limitation, however, applies
only to “the decedent’s spouse, parent, child, or dependent relative.” 46 U.S.C.
§ 30302; see Bodden v. Am. Offshore, Inc., 681 F.2d 319, 331 (5th Cir. 1982)
(explaining that DOHSA “apportions recovery of fair and just compensation for
the pecuniary loss sustained by the persons for whose benefit the suit is
brought, and that those injuries are “unique to the decedent’s dependents and
could not accrue until the decedent’s death”). The statute does not provide that
the pecuniary loss is equivalent to “fair and just” compensation for all losses,
but merely provides for compensation for “pecuniary” losses in an action
brought by a decedent’s specified beneficiaries.      46 U.S.C. § 30303; see
Higginbotham, 436 U.S. at 623 (noting that DOHSA “has limited survivors to
recovery of their pecuniary losses” (emphasis added)); see also Dooley v. Korean
Air Lines Co., Ltd., 524 U.S. 116, 123 (1998) (explaining that DOHSA
“authorize[es] only certain surviving relatives to recover damages,” and
“limit[s] damages to the pecuniary losses sustained by those relatives”).


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      Similarly, Vreeland—which again is the original source of the FELA
limitation of recovery to pecuniary damages—defined “pecuniary” damages far
more narrowly than the majority does, explaining that
      A pecuniary loss or damage must be one which can be measured
      by some standard. It is a term employed judicially, not only to
      express the character of that loss to the beneficial plaintiffs which
      is the foundation of their right of recovery, but also to discriminate
      between a material loss which is susceptible of a pecuniary
      valuation, and that inestimable loss of the society and
      companionship of the deceased relative upon which, in the nature
      of things, it is not possible to set a pecuniary valuation.
227 U.S. at 71 (citation and quotation omitted).         This understanding of
“pecuniary” damages refers to whether a relative’s or beneficiary’s loss itself is
a financial one that is estimable in monetary terms. In light of Vreeland’s
recognition that this pecuniary damage limitation applied only to survivors,
id. at 68, this narrow definition is also quite logical. The survivors in Miles
and Higginbotham could not recover loss of society because loss of society,
unlike loss of support, is not primarily a financial loss. Miles, 498 U.S. at 31;
Higginbotham, 436 U.S. at 623. With respect to survivors’ own recovery, the
law had chosen to draw a line between monetary losses and other, more
intangible losses. See Vreeland, 227 U.S. at 71.
      It seems illogical that this principle would be extended to injured seamen
seeking recovery for their own injuries. For example, pain and suffering is not
a financial loss and is difficult to reduce to a monetary amount; thus it is not a
pecuniary damage according to the definition incorporated into FELA. See id.
Yet there can be no question that injured seamen can seek recovery for their
own pain and suffering under the Jones Act and the general maritime law.
E.g., Douse v. Global Pipelines Plus, 253 F. App’x 342 (5th Cir. 2007) (in Jones
Act case, agreeing that injured seamen properly recovered “maintenance and
cure through the present, future maintenance and cure, past and future pain

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                                  No. 12-30714
and suffering, and past and future economic losses”); Deal, 728 F.2d at 718;
Crador v. Louisiana Dep’t of Highways, 625 F.2d 1227, 1230 (5th Cir. 1980)
(noting that in Jones Act case, “In addition to loss of income the jury could
award damages for pain and suffering and impact on one’s normal life
routines.”). Indeed, in Miles itself, the plaintiff estate recovered for the pre-
death pain and suffering of the decedent seamen. Miles, 498 U.S. at 22. By
contrast, if we accept the majority’s unexplained implication that pecuniary
damages must be equivalent to compensatory damages, it is not clear why loss
of society would not have been recoverable in Miles or Higginbotham, as it is
not at all clear why loss of society damages are any less compensatory in nature
than damages for pain and suffering. See Sea-Land Servs., Inc. v. Gaudet, 414
U.S. 573, 586 (1974) (noting that “[u]nquestionably, the deprivation of [society]
by wrongful death is a grave loss to the decedent’s dependents,” and that the
case law which barred recovery for loss of society did so on the basis of it being
non-pecuniary). When loss of society is not recoverable in wrongful death
actions, it is because it is non-pecuniary, not because it is not compensatory.
See id.
      The original view of the pecuniary damages limitation expressed in cases
like Vreeland must be understood as the definition incorporated into the Jones
Act and accepted by the Miles Court. See Miles, 498 U.S. at 31-32. Thus, even
if the Miles analysis is applied in this case, Miles’s recognition of FELA’s
pecuniary damage limitation is simply adherence to this case law
distinguishing between a survivor’s wrongful death claims and ability to
recover and the rights and recovery of an injured employee or seaman himself.
      There is no justification for applying the pecuniary damage limitation, a
creature of wrongful death statutes and case law, to injured seamen seeking
recovery for their own injuries. Even if the pecuniary damage limitation is
applicable in this case, it must apply only to McBride, a survivor of a decedent
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                                No. 12-30714
seaman asserting wrongful death claims, and not to Touchet, Suire, and
Bourque, who assert unseaworthiness and Jones Act claims based on their own
injuries. With Miles’s pecuniary damage limitation inapplicable to the injured
seamen, the dissent’s Townsend-based approach is the correct analysis of the
availability of punitive damages for Touchet, Suire, and Bourque.




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