     Case: 12-30714   Document: 00512394172      Page: 1   Date Filed: 10/02/2013




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

                                                                  FILED
                                                                October 2, 2013

                                  No. 12-30714                   Lyle W. Cayce
                                                                      Clerk

HALEIGH JANEE MCBRIDE, individually & on behalf of I.M.S.,

             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 BARKSDALE and HIGGINSON, Circuit
Judges.
HIGGINSON, Circuit Judge:
      The principal 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. Answering in the
affirmative, we REVERSE and REMAND for further proceedings.
                       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 board—the catwalk extending from the
derrick—which 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. (“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 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 “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.
                              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).
                                    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 (“general maritime law”), and
statutory law enacted by Congress exercising its authority under the Admiralty


      1
        “Punitive damages” and “exemplary 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, 82–83
(1997). For ease of reference, we refer to all such damages as “punitive damages.”
      2
          In March 2012, Bourque settled his claims against Estis.

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Clause and the Commerce Clause (“statutory maritime law”). See U.S. CONST.
art. III, § 2, cl. 1 (extending the judicial power of the United States “to all [c]ases
of admiralty and maritime [j]urisdiction”); Romero v. Int’l Terminal Operating
Co., 358 U.S. 354, 360–61 (1959) (explaining that the Admiralty Clause
“empowered 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 “empowered
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 (“maintenance”) and medical care
(“cure”) without regard to fault, and, if not provided, the seaman had a claim
against them for “maintenance and cure.” If a seaman was injured by a ship’s
operational unfitness, the seaman had a cause of action for “unseaworthiness.”
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, 204–14 (1886), overruled by Moragne v. States Marine Lines, Inc., 398 U.S.
375 (1970).




      3
       For 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, 494–513 (2011).

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       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 (“DOHSA”),
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. §§ 761–68 (1920) (codified as amended at 46 U.S.C. §§
30301–08 (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,
818–20 (2001) (citing Moragne, 398 U.S. at 409).
       III.   Punitive damages under maritime law


       4
         “These 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.
       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.

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       “Historically, punitive damages,” though not always designated as such,7
“have 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 “gross neglect and cruel maltreatment”), and The
Troop, 118 F. 769, 770–771, 773 (D. Wash. 1902) (concluding that $4,000 was a
reasonable award because the captain’s “failure to observe the dictates of
humanity” and obtain prompt medical care for an injured seaman constituted a
“monstrous wrong”)). In the early nineteenth century, Justice Story spoke of
maritime punitive damages as “the 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 “punitive
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
624–26.8 After Merry Shipping, the Ninth and Eleventh Circuits followed suit.

       7
         See Townsend, 557 U.S. at 414 n.3 (citing awards of punitive damages in early
maritime cases and pointing out that “[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).
       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

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                                       No. 12-30714

See Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987) (“Punitive 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) (“Punitive damages 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 “[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 “twin aims of maritime
law”: “achieving 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
987–88. And the goal of providing special solicitude to seamen, the wards of


otherwise. See In re Marine Sulphur Queen, 460 F.2d 89, 105 (2d Cir. 1972) (noting, in the
unseaworthiness context, that “the award of punitive damages is discretionary with the trial
court[,]” and “[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 “the owner authorized or ratified the acts
of the master” or “the owner was reckless in employing him”) (citations omitted).
       9
        A “Jones Act seaman” is “a 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 “Sieracki 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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admiralty, “would not be furthered in any meaningful way by allowing
nondependent parents to recover for loss of society.” Id. at 988; see also id.
(“Admiralty 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.” (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. (“Miles”), 498 U.S. 19, 27 (1990); see also id. at 36
(“We 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 “pecuniary 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 loss of society damages,

      10
         This pecuniary-loss limitation arose out of the Jones Act’s incorporation of the
remedial provisions of the Federal Employers’ Liability Act (“FELA”), 46 U.S.C. § 30104

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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. “It would be
inconsistent with our place in the constitutional scheme,” the Court in Miles
concluded, “were we to sanction more expansive remedies in a judicially created
cause of action in which liability is without fault than Congress has allowed in
cases of death resulting from negligence.” Id. at 32–33.
       Miles addressed the availability of loss of society damages to non-seamen
under general maritime law, not punitive damages, but the general principle
appearing to underlie its analysis—that 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 law—began 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, 1454–59 (6th Cir. 1993).
       Similarly applying the “Miles uniformity principle,” as it came to be
known, our court, sitting en banc, held that Miles “effectively overruled” Merry
Shipping, concluding that “punitive 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 “rightfully classified
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



(“Laws 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
“pecuniary” damages, Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 68 (1913) (“[FELA limits]
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.”).

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violation, under the general maritime law. Id. at 1506–07, 1510–12.11 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 “portend[] 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 “punitive
damages have long been an accepted remedy under general maritime law,”
including for egregious maintenance and cure violations, and concluded,
contrary to Guevara, that “nothing in the Jones Act altered this understanding.”
Id. at 424. The Jones Act, the Court reminded, “created a statutory cause of
action for negligence, but it did not eliminate pre-existing remedies available to
seamen for the separate common-law cause of action based on a seaman’s right
to maintenance and cure.” Id. at 415–16. “Its 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 “elect” between
the remedies provided by the Jones Act and those recoverable under pre-existing
general maritime law; “[i]f the Jones Act had been the only remaining remedy


       11
         The 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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                                  No. 12-30714

available to injured seamen, there would have been no election to make.” Id. at
416.   As further evidence that punitive damages “remain[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, 529–31 (1962), it “permitted 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.
       The Supreme Court clarified that its interpretation of Miles did not
represent an “ ‘abrup[t]’ change of course.” Id. at 422 n.8, 418–22. Rather, the
Court explained, reliance on the Miles uniformity principle to bar punitive
damages recovery under general maritime causes of action would read Miles “far
too broad[ly].” Id. at 418–19. 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 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.” Indeed, the Miles
       Court itself acknowledged that “[t]he Jones Act evinces no general
       hostility to recovery under maritime law,” and noted that statutory
       remedy limitations “would 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 “general principles of
       maritime tort law,” and no statute casts doubt on their availability
       under general maritime law.



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Id. at 420–21 (citations omitted). Thus, it concluded more generally, “[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 424.12
                                     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, like maintenance and


       12
         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 (“CWA”)
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 484–89. The Court concluded that
the CWA did not preempt plaintiffs’ claims, reasoning: “we 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 488–89. In so ruling, the Court
sounded a different tune on statutory displacement of general maritime law:
       To be sure, “Congress retains superior authority in these matters,” and “[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: “Although
‘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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                                   No. 12-30714

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. That is, punitive damages are
available only where there is no remedial overlap between general and statutory
maritime claims. In its view, punitive damages were available in Townsend, but
not Miles, because the Miles plaintiffs sought redress for physical injury and
wrongful death, harms compensable under both general and 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 accident—types of harm
compensable under both general and statutory maritime law—and punitive
damages are not available under statutory maritime law, punitive damages are
not available in the present action.
      To the extent that its 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 the 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


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                                  No. 12-30714

      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, its guidance on
how to apply the Miles uniformity principle remains intact.
      We 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 “far too broad.” 557 U.S. at 419. That
approach, the Court went on, “would 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 424–25. 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 “neither the Jones Act (which applies
only to seamen) nor DOHSA (which does not cover territorial waters) provided
such a remedy.” Townsend, 557 U.S. at 421 (citations omitted). The broader
point made in Townsend, which we heed today, is that “[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
going forward: 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


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                                        No. 12-30714

that cause of action or remedy, then that remedy remains available under that
cause of action unless and until Congress intercedes.13 Estis does 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.14
Seeking to avoid the conclusion that follows, Estis attempts to distinguish
Townsend in two ways.
       Estis first 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 Guevara—the


       13
          Id. at 414–15 (“The 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 (“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 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 (“Because 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.”).
       14
           Additionally, we note that Estis does not ask us to bar punitive damages in
unseaworthiness cases as a matter of policy. E.g., Guevara, 59 F.3d at 1512–13. Accordingly,
we will not reach this issue. See United States v. Delgado, 672 F.3d 320, 329 n.6 (5th Cir. 2012)
(citations omitted); see also Townsend, 557 U.S. at 424 n.11 (“Although this Court has
recognized that it may change maritime law in its operation as an admiralty court, petitioners
have not asked the Court to do so in this case or pointed to any serious anomalies, with respect
to the Jones Act or otherwise, that our holding may create. . . . We do not decide th[is]
issue[].”) (citation omitted).

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                                   No. 12-30714

primary case upon which Estis relies—the displacement analysis for
unseaworthiness claims is “wholly 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 “maintenance and cure” with “unseaworthiness,” 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 “Congress has spoken directly.” Indeed, the Miles
      Court itself acknowledged that “[t]he Jones Act evinces no general
      hostility to recovery under maritime law,” and noted that statutory
      remedy limitations “would 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 “general principles of maritime
      tort law,” and no statute casts doubt on their availability under
      general maritime law.
Townsend, 557 U.S. at 420–21 (citations omitted).
      Estis argues also that the “chronological” 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.
      We agree that this case differs from Townsend in that respect. That is,
punitive damages for the willful violation of the duty to provide maintenance


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                                 No. 12-30714

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 770–71, 773). It is less clear whether
punitive damages were awarded for unseaworthiness violations during that
period.   The parties do not brief this point.     This distinction, if factually
supported, 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 419–25. Let us assume for the sake of argument that
maritime courts during the pre-Jones Act era had taken no position on the
propriety of punitive damages in unseaworthiness actions; that Congress in 1920
was painting on a blank canvas. Had Congress “spoken directly” on the matter,
then we would follow its guidance. Townsend, 557 U.S. at 420–21; Miles, 498
U.S. at 27, 32–33. But the Jones Act does not mention unseaworthiness or its
remedies. 46 U.S.C. § 30104. And “a 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,
283–84 (1980); see also id. at 282 (“Nor do we read the Jones Act as sweeping
aside general maritime law remedies.”). Similarly, “no 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 “the 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

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                                      No. 12-30714

Merry Shipping when we held that punitive damages were an appropriate
remedy to effectuate the policies of general maritime law, a view shared then
and since by other circuit courts.
       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 395–409 (overruling The
Harrisburg, 119 U.S. at 205 to remedy three maritime law anomalies), we
perceive no anomalies arising from our holding.
       Estis argues that our decision 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.15 By design, seamen have always had the “right
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, 374–75 (1932) (A seaman’s “cause 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
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


       15
          Seamen have long been characterized as “wards of admiralty” deserving special
protection under maritime law. See, e.g., Townsend, 557 U.S. at 417 (noting that seamen are
“peculiarly the wards of admiralty”); Robertson v. Baldwin, 165 U.S. 275, 287 (1897) (“The
ancient characterization of seamen as ‘wards of admiralty’ is even more accurate now than it
was formerly.”); see also David W. Robertson, Punitive Damages in U.S. Maritime Law: Miles,
Baker, and Townsend, 70 LA. L. REV. 463, 485 n.147 (2010) (collecting cases).

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                                    No. 12-30714

Cir. 1980) (“[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 “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 (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. Though they
are similar, Jones Act negligence and unseaworthiness are “separate and
distinct” claims with different elements and standards of causation. Chisholm
v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982) (citation
omitted); Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 452 (1st Cir. 1996). It is
true that plaintiffs often bring claims for both causes of action, and that 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.
      Finally, 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 overlooks
that punitive damages recovery always requires a finding of willful and wanton
conduct, whether the cause of action is for maintenance and cure or
unseaworthiness. See id. 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. (“It
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

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                                      No. 12-30714

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 Miles—that it would be inappropriate 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”—thus, is not present here. 498 U.S. at 32–33.
                                    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. We conclude, therefore, that punitive
damages remain available to seamen as a remedy for the general maritime law
claim of unseaworthiness. See Townsend, 557 U.S. 404.16 We REVERSE and
REMAND for further proceedings.




       16
         Having so concluded, we decline to revisit whether punitive damages are available
to seamen bringing claims for negligence under the Jones Act. See id. 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).

                                            20
