Opposition Brief — American Triumph LLC, et al., Petitioners v. Allan A. Tabingo

No. 17-449

In the

Supreme Court of the United States

AMERICAN TRIUMPH LLC AND AMERICAN

SEAFOODS COMPANY, LLC,

Petitioners,

v.

ALLAN A. TABINGO,

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of Washington

BRIEF IN OPPOSITION

Joseph S. Stacey

James Jacobsen

Stacey & Jacobsen, LLP

4039 21st Avenue W, Suite 401

Seattle, Washington 98199

(206) 282-3100

Philip A. Talmadge

Counsel of Record

Talmadge/Fitzpatrick /Tribe

2775 Harbor Avenue, SW

Third Floor, Suite C

Seattle, Washington 98126

(206) 574-6661

phil@tal-fitzlaw.com

Counsel for Respondent

276930

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT WHY THE PETITION SHOULD

BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

(1) This Court Lacks Jurisdiction Over the

Interlocutory Decision of the Washington

Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

(2) The Alleged Split Is Vastly Overstated

and Further Percolation Is Warranted . . . . . . . . 7

(3) T he Wa s h i ng t on S upr e me C ou r t ’s

Decision Is Consistent with This Court’s

Decision in Atlantic Sounding . . . . . . . . . . . . . . . 8

(a) Punitive Damages Were Available

i n Fe de r a l M a r it i me Pe r s on a l

Injuries Claims, and Nothing in the

Jones Act Precludes Them in an

Unseaworthiness Action . . . . . . . . . . . . . . . 10

ii

Table of Contents

Page

(b) Vessel Unseawor thiness Cla i ms

P redat ed the Enactment of the

Jones Act in 1920 . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

iii

TABLE OF CITED AUTHORITIES

Page

WASHINGTON CASES

Tabingo v. American Triumph LLC,

391 P.3d 434 (Wash. 2017) . . . . . . . . . . . . . . . . 3, 15, 18

FEDERAL CASES

Atlantic Sounding Co. v. Townsend,

557 U.S. 404 (2009) . . . . . . . . . . . . . . . . . . . . . . . passim

Batterton v. Dutra Group,

9th Cir. Cause No. 15-56775 . . . . . . . . . . . . . . . . . . . . 8

BedRoc Ltd. LLC v. United States,

541 U.S. 176 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Callahan v. Gulf Logistics, LLC,

2013 WL 5236888 (W.D. La. 2013) . . . . . . . . . . . 19-20

Carlisle Packing Co. v. Sandanger,

259 U.S. 255 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7

iv

Cited Authorities

Page

Dixon v. The Cyrus,

7 Fed. Cas. 755 (1789) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) . . . . . . . . . . . . . . . . . . 13, 15, 18, 20

Flynt v. Ohio,

451 U.S. 619 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Gaffney v. Riverboat Servs. of Indiana, Inc.,

451 F.3d 424 (7th Cir. 2006), cert. denied,

549 U.S. 1111 (2007) . . . . . . . . . . . . . . . . . . . . . . . 19, 20

In re Horizon Cruises Litigation,

101 F. Supp. 2d 204 (S.D.N.Y. 2000) . . . . . . . . . . . . . 20

Jefferson v. City of Tarrant, Ala.,

522 U.S. 75 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7

Johnson v. California,

541 U.S. 428 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Kalleck v. Deering,

37 N.E. 450 (Mass. 1894) . . . . . . . . . . . . . . . . . . . . . . 17

Lake Shore & M. S. Ry. Co. v. Prentice,

147 U.S. 101 (1893) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15

Locomotive Firemen v.

Bangor & Aroostook R. Co.,

389 U.S. 327 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

Cited Authorities

Page

McBride v. Estis Well Service, LLC,

768 F.3d 382 (5th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 8

Miles v. Apex Marine Corp.,

498 U.S. 19 (1995) . . . . . . . . . . . . . . . . . . . . . . . . passim

Munich v. Southern S.S. Co.,

321 U.S. 96 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Norfolk Redevelopment & Housing Auth. v.

Chesapeake &Potomac Tel. Co. of Va.,

464 U.S. 30 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Norfolk Shipbuilding & Drydock Corp. v.

Garris,

532 U.S. 811 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

O’Dell v. Espinoza,

456 U.S. 430 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Olson v. Flavel,

34 Fed. 477 (D. Or. 1888) . . . . . . . . . . . . . . . . . . . . . . 17

Pacific Mut. Life Ins. v. Haslip,

499 U.S. 1 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Pino v. Protection Mar. Inc. Co.,

490 F. Supp. 277 (D. Mass. 1980) . . . . . . . . . . . . . 19, 20

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vi

Cited Authorities

Page

Seas Shipping Co. v. Sieracki,

328 U.S. 85 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The A. Heaton,

43 Fed. 592 (D. Mass. 1890) . . . . . . . . . . . . . . . . . . . . 17

The Amiable Nancy,

16 U.S. (3 Wheat.) 546 (1818) . . . . . . . . . . . . . . . . . . . 10

The Edith Godden,

23 Fed. 43 (S.D. N.Y. 1885) . . . . . . . . . . . . . . . . . . . . . 17

The Julia Fowler,

49 Fed. 277 (S.D. N.Y. 1892) . . . . . . . . . . . . . . . . . . . . 17

The Osceola,

189 U.S. 158 (1903) . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

U.S. Bulk Carriers, Inc. v. Arguelles,

400 U.S. 351 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Usner v. Luckenbach Overseas Corp.,

400 U.S. 494 (1971) . . . . . . . . . . . . . . . . . . . . . . . . 11, 18

STATUTES

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6

45 U.S.C. § 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

46 U.S.C. § 30104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vii

Cited Authorities

Page

OTHER AUTHORITIES

Bryan A. Garner, Black’s Law Dictionary

(10th ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

David W. Robertson, Punitive Damages in

American Maritime Law, 28 J. Mar. L. Com. 73

(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

David W. Robertson, Punitive Damages in

U.S. Mar itime Law: Miles, Baker, and

Townsend, 70 La. L. Rev. 463 (2010) . . . . . . . . . 10, 19

E. Gr e s sm a n , K . G el le r, S . Sh api r o, T.

Bishop, & E. Hartnett, Supreme Court

Practice 280 (9th ed. 2007) . . . . . . . . . . . . . . . . . . . . . .7

Gilmore & C. Black, The Law of Admiralty

(2d ed. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

1

OPINIONS BELOW

In addition to the opinions referenced in the petition

for a writ of certiorari respondent Alan Tabingo provides

the Ruling Granting Review (App. at 1a).

JURISDICTION

This Court lacks jurisdiction over this case. 28 U.S.C.

§ 1257.

INTRODUCTION

In an effort to forestall the possible award of

punitive damages in a maritime common-law vessel

unseaworthiness claim, American Seafoods Co. LLC

(“American Seafoods”) asks this Court to grant certiorari

to review an interlocutory order from a state court which

has yet to make even a finding of liability, let alone any

damages award. This Court should reject the petition. Its

jurisdictional statute and established precedent foreclose

certiorari at this stage of a state law case—and even if

they did not, the interlocutory nature of the proceeding

would make this case a poor vehicle to address the

question presented.

Moreover, American Seafoods massively overstates

the actual split of decision that it claims exists on the

question presented; only two appellate courts (the

Washington Supreme Court in this case and the Fifth

Circuit) have addressed the availability of punitive

damages in light of Atlantic Sounding Co. v. Townsend,

557 U.S. 404 (2009). Further percolation is appropriate,

especially given that the same question is now pending

before the Ninth Circuit.

2

Finally, American Seafoods is wrong when it contends

that the decision below departs from this Court’s prior

rulings. In Atlantic Sounding, the Court traced the

historical availability of punitive damages in admiralty

generally and in federal maritime common law personal

injuries cases specifically, concluding that an injured

seaman could recover punitive damages in a case involving

a vessel owner’s wrongful withholding of maintenance and

cure, a federal maritime common law claim. No different

result follows for claims of vessel unseaworthiness, and—

just as in Atlantic Sounding—nothing in the Jones Act

or the Court’s prior cases otherwise suggest that the

recovery of punitive damages in the appropriate case

should be foreclosed.

STATEMENT OF THE CASE

F/V AMERICAN TRIUMPH is a factory trawler that

hauls fish aboard with nets. After the fish are aboard, a

deckhand opens a steel hatch, a door in the floor/deck.

The steel hatch is hinged on one side and opens and shuts

by way of hydraulics. When opened, the hatch allows the

fish to drop into tanks below the deck, from which factory

workers below take the fish for processing.

Allan A. Tabingo was a deckhand trainee at the time

of his injury. One of his tasks was to make sure that fish

got into these tanks. After the fish net is emptied on deck,

the fish hatch is opened by a hydraulics operator on the

deck. This hydraulics operator stands at the hydraulics

station and pushes a hydraulics valve to open and shut the

hatch/door. The deckhands and deckhand trainees push

the fish into the open hatches and into these tanks. Most

of the fish can be pushed into the tanks with shovels, but

3

the last bit of fish needs to be cleared and pushed around

by hand.

On January 12, 2015, Tabingo was on his hands

and knees pushing the last remaining fish into the open

hatch with his hands. The hydraulics operator—for some

unknown reason—pushed the hydraulics valve that shut

the hatch while Tabingo’s hand was near the hinge.

Realizing his mistake, the operator tried to stop the

closing of the hatch, but the hydraulics handle was broken;

it came out of the hydraulics valve. In fact, this hydraulics

valve had been broken for approximately two years, and

American Seafoods neglected to fix it. The open hydraulics

valve could not be stopped in time. The steel hatch closed

onto Tabingo’s hand and caused an injury to his fingers

that became gangrenous, ultimately necessitating the

amputation of two of them.

Tabingo sued American Triumph LLC and American

Seafoods Co., LLC (“American Seafoods”), the owner of

the factory trawler F/V AMERICAN TRIUMPH, in the

King County Superior Court on July 15, 2015, for vessel

unseaworthiness. American Seafoods filed what it styled as

a motion for partial summary judgment seeking dismissal

of Tabingo’s punitive damages request associated with

his common law vessel unseaworthiness claim. The trial

court granted that motion in a February 22, 2016, order.

Tabingo sought discretionary review by the Washington

Supreme Court. That court’s Commissioner granted

direct discretionary review, and the court unanimously

reversed the trial court. Tabingo v. American Triumph

LLC, 391 P.3d 434 (Wash. 2017).

4

ARGUMENT WHY THE PETITION

SHOULD BE DENIED

(1) This Court Lacks Jurisdiction Over the Interlocutory

Decision of the Washington Supreme Court

The decision below was an interlocutory decision of the

Washington Supreme Court. It relates to but one damages

issue with respect to one claim in the case. In the state

court trial, a jury may, or may not, conclude American

Seafoods is liable to Tabingo for vessel unseaworthiness,

and may, or may not, decide that an award of punitive

damages is appropriate.

This fact alone requires denial of the petition. This

Court’s jurisdiction is limited to “[f]inal judgments or

decrees rendered by the highest court of a State in which

a decision could be had.” Under 28 U.S.C. § 1257 (emphasis

added). See also, Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 476–77 (1975) (noting that “[s]ince 1789, Congress has

granted this Court appellate jurisdiction with respect to

state litigation only after the highest state court in which

judgment could be had has rendered a ‘(f)inal judgment or

decree’”). Section 1257 “establishes a firm final judgment

rule” that “is not one of those technicalities to be easily

scorned. It is an important factor in the smooth working

of our federal system.” Jefferson v. City of Tarrant, Ala.,

522 U.S. 75, 81 (1997) (quoting Radio Station WOW, Inc.

v. Johnson, 326 U.S. 120, 124 (1945)).

American Seafoods (brief ly) acknowledges this

problem at the end of its petition, but argues that the

Court nonetheless has jurisdiction under the exceptions

enumerated in Cox. See Pet. at 26-28. This Court, however,

5

has warned that these are “exceptional categories,”

Johnson v. California, 541 U.S. 428, 429 (2004), that apply

only to “a limited set of situations[.]” O’Dell v. Espinoza,

456 U.S. 430, 430 (1982). Careful examination of each

confirms that this case does not fall within any of these

exceptions.1

The first category includes those cases where “the

federal issue is conclusive or the outcome of further

proceedings preordained[.]” Cox, 420 U.S. at 480.

American Seafoods does not argue that this case falls

within that category, and for good reason—the outcome of

the trial on the unseaworthiness claim is an open question,

and the award of any damages—much less punitive

damages—is certainly not “preordained.”

The second Cox category involves those cases “in

which the federal issue, finally decided by the highest court

in the State, will survive and require decision regardless

of the outcome of future state-court proceedings.” Id. at

480. Again, American Seafoods does not—and cannot—

argue that this is one of those cases. The outcome of the

state court trial may well moot the federal issue.

The third category identified in Cox are those cases

“in which later review of the federal issue cannot be had,

whatever the ultimate outcome of the case.” Id. at 481.

American Seafoods claims it fits within this exception,

see Pet. at 26-27, but fails to recognize that it could obtain

1. Perhaps to obscure the weakness of its position, American

Seafoods foregoes any analysis of the specific categories identified

by this Court in Cox in favor of a series of disjointed quotations

from different passages of the opinion. See Pet. at 26-27.

6

review of any punitive damages award after trial, either

before the Washington Supreme Court or in a petition

here. This Court has explicitly rejected the argument

that this type of interlocutory decision fits within the Cox

exceptions. See Johnson, 541 U.S. at 430-31 (dismissing

case for want of jurisdiction and noting that “[i]n the

event that the California Court of Appeal on remand

affirms the judgment of conviction, petitioner could once

more seek review of his [] claim in the Supreme Court of

California-albeit unsuccessfully-and then seek certiorari

on that claim from this Court”). See also, Jefferson, 522

U.S. at 77–78 (“If the federal question does not become

moot, petitioners will be free to seek our review when the

state-court proceedings reach an end.”). 2

American Seafoods also argues that it fits within

the fourth Cox exception, for cases in which “a refusal

immediately to review the state court decision might

seriously erode federal policy.” Cox, 420 U.S. at 482.

Contrary to American Seafoods’ hyperbole, this case—

involving a single injury to a seaman’s hand on a fishing

boat—does not portend “potentially serious consequences

to the national economy, environment, and security”—

especially where there ultimately may be no punitive

damages award at all. This Court has warned against

expansive attempts to invoke federal policies in way that

2. American Seafoods’ speculative musings that review could

be rendered impossible if the mere possibility of a large punitive

damages award, Pet. at 27, may lead it to settle finds no support in

Cox or any other decision of this Court applying the jurisdictional

limits of § 1257. Any interlocutory decision might naturally affect

the parties’ settlement calculus, but this fact of life does not mean

the third Cox exception swallows the entire rule set forth in the

jurisdictional statute.

7

would “permit the fourth exception to swallow the rule.”

Flynt v. Ohio, 451 U.S. 619, 622 (1981) (per curiam), and

American Seafoods cannot credibly claim some overriding

federal policy interest here. It certainly falls far short of

the cases where the failure to obtain interlocutory rule

will result in the permanent denial of an alleged federal

right or protection. See Cox at 482 n.10 (citing Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

In sum, the petition does not fit within any of the

exceptions to § 1257. 3 Rather, it “presents the typical

situation in which the state courts have resolved some but

not all of petitioners’ claims.” Jefferson, 522 U.S. at 84.

This Court’s “jurisdiction therefore founders on the rule

that a state-court decision is not final unless and until it

has effectively determined the entire litigation.” Id.

(2) The Alleged Split Is Vastly Overstated and Further

Percolation Is Warranted

Contrary to American Seafoods’ claim that the

decision below “conflicts with numerous federal and state

appellate decisions,” Pet. at 8, the alleged split here is

about as shallow as one could be. Only two appellate courts

3. Because § 1257 governs this Court’s jurisdiction,

Petitioner’s reliance on the posture of Atlantic Sounding is

misplaced. But even if this case arose in the federal courts, the

interlocutory nature of the dispute would weigh against a grant of

certiorari. See, e.g., Locomotive Firemen v. Bangor & Aroostook

R. Co., 389 U.S. 327, 328 (1967) (per curiam) (denying interlocutory

petition the case was “not yet ripe for review by this Court”);

E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett,

Supreme Court Practice 280 (9th ed. 2007) (hereinafter Stern &

Gressman).

8

have actually addressed the question presented after this

Court’s decision in Atlantic Sounding, and one of those

decisions is interlocutory. American Seafoods reaches

back to a variety of pre-Âtlantic Sounding decisions

that instead applied Miles v. Apex Marine Corp., 498

U.S. 19 (1995) to determine the remedies available for

unseaworthiness claims. But there is no disputing the

fact that Atlantic Sounding addressed the proper scope

of Miles. See 557 U.S. at 425–27. Indeed, both this Court

and the Fifth Circuit in McBride v. Estis Well Service,

LLC, 768 F.3d 382 (5th Cir. 2014) (en banc), extensively

discussed the extent to which Atlantic Sounding limited

Miles and what it meant for unseaworthiness claims. It

follows that this Court should await further developments

to see if other Circuits revisit their approaches to punitive

damages in unseaworthiness actions in light of Atlantic

Sounding.

Indeed, a case raising that question is currently

pending before the Ninth Circuit. See Batterton v. Dutra

Group, (9th Cir. Cause No. 15-56775) (filed November 18,

2015). At a minimum, this Court should deny review of

this question until the Ninth Circuit weighs in. Indeed,

the Ninth Circuit’s decision may itself resolve the split

if it were influence any future action by the Washington

Supreme Court if Tabingo were to obtain an award of

punitive damages.

(3) The Washington Supreme Court’s Decision Is

Consistent with This Court’s Decision in Atlantic

Sounding

American Seafoods is wrong to suggest that the

Washington Supreme Court misapplied Supreme Court

9

precedent. To the contrary, the decision below is entirely

consistent with this Court’s Atlantic Sounding decision.

American Seafoods ignores the analytical framework this

Court set forth in Atlantic Sounding, relying instead on

Miles, a case focused on wrongful death claims where

Congress has enacted a statute to supplant common law

remedies, unlike here. Atlantic Sounding, not Miles,

controls, and the Washington court followed this Court’s

analytical protocol in its ruling.

The Atlantic Sounding court effectively set a 3-part

test to determine if punitive damages are recoverable in

the maritime setting:

(1) Did the Jones Act preclude either the action or

the remedy?

(2) Did the general maritime cause of action (vessel

unseaworthiness) predate the enactment of the

Jones Act in 1920?

(3) Did the remedy (punitive damages) predate the

Jones Act?

Here, the answer to the first question is no, and to the

latter two questions, yes. The Washington court correctly

determined that:

• nothing in the Jones Act expressly eliminated claims

for punitive damages in federal maritime personal

injuries claims like vessel unseaworthiness claims;

• federal admiralty law has long recognized that

punitive damages are recoverable generally and

10

federal maritime personal injuries law has also

long recognized that injured seamen may recover

punitive damages;

• vessel unseaworthiness claims were recognized

in federal maritime law prior to the enactment of

the Jones Act in 1920.

Nothing in the petition detracts from the logic of this

analysis, notwithstanding its effort to embark upon a

revisionist history of this Court’s jurisprudence. Punitive

damages are recoverable in a vessel unseaworthiness

claim, a maritime common law claim, just as they are in

a maintenance and cure claim, also a maritime common

law claim.

(a) Punitive Damages Were Available in Federal

Maritime Personal Injuries Claims, and

Nothing in the Jones Act Precludes Them in

an Unseaworthiness Action

Punitive damages were recoverable historically in

admiralty and specifically in maritime personal injuries

cases, as this Court explained in Atlantic Sounding. 557

U.S. at 411-17. Both admiralty law generally and federal

maritime personal injuries law specifically recognized that

a party could recover punitive damages in the appropriate

case. See, e.g., The Amiable Nancy, 16 U.S. (3 Wheat.)

546, 558 (1818); Lake Shore & M. S. Ry. Co. v. Prentice,

147 U.S. 101, 108 (1893); see also, David W. Robertson,

Punitive Damages in American Maritime Law, 28 J. Mar.

L. Com. 73 (1997); David W. Robertson, Punitive Damages

in U.S. Maritime Law: Miles, Baker, and Townsend, 70

La. L. Rev. 463 (2010).

11

Moreover, nothing in the language of the Jones Act

indicates any intention to supplant federal maritime

common law claims and/or remedies. The common law

is not superseded by statute unless the intent of the

applicable legislative body to do so is clear and explicit

from the statutory language. Norfolk Redevelopment &

Housing Auth. v. Chesapeake & Potomac Tel. Co. of Va.,

464 U.S. 30, 35-36 (1983). In analyzing this question, one

must begin with the text of the Jones Act itself:4 which

states:

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. Nowhere does that statute purport

to supersede federal maritime common law vessel

unseaworthiness claims. 5 Nowhere does it purport to

4. “The preeminent canon of [federal] statutory interpretation

requires [a court] to ‘presume that [the] legislature says in a statute

what it means and means in statute what it says there.’” BedRoc

Ltd. LLC v. United States, 541 U.S. 176, 183 (2004) (quoting Conn.

Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)).

5. A vessel unseaworthiness claim is a federal maritime

common law claim entirely distinct from a Jones Act claim. Unlike

a maintenance/cure withholding claim, a vessel unseaworthiness

claim may not be maintained as a part of a Jones Act negligence

claim. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498

at nn.10-11 (1971) (“[U]nseaworthiness … is a remedy separate

12

eliminate the remedy of punitive damages for vessel

unseaworthiness or other federal maritime claims.

Apart from the text of the statute, American Seafoods’

contention that the Jones Act restricted remedies available

to injured seamen (Pet. at 12-16) is belied by the Act’s

history, and has been rejected by this Court. In Miles,

the Court made clear that the Jones Act did not eliminate

vessel unseaworthiness claims: “The Jones Act evinces no

general hostility to recovery under maritime law. It does

not disturb seamen’s general maritime claims for injuries

resulting from unseaworthiness…” 498 U.S. at 29. 6

Although Miles did not address punitive damage,

Atlantic Sounding did. There, this Court “recognized

that the [Jones] Act ‘was remedial, for the benefit and

from, independent of, and additional to other claims against the

shipowner, whether created by statute (e.g., the Jones Act) or

under general maritime law (e.g., maintenance and cure).”). The

Jones Act does not purport to supersede it.

6. In Atlantic Sounding, the Court explained that Norfolk

Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811 (2001),

“directly rejected” the “contention that Miles precludes any action

or remedy for personal injury beyond that made available under

the Jones Act.” 557 U.S. at 421 (Court’s emphasis). There, the

Court held that “Miles presented no barrier to [the] endorsement

of a previously unrecognized maritime cause of action for negligent

wrongful death [of a maritime worker who was neither a seaman

not a long-shoreman].” Id. at 421-22. The decision was inconsistent

with the “lowest common denominator” interpretation of Miles,

discussed infra. In fact, Justice Scalia’s opinion expressly rejected

it: “[E]ven as to seamen, we have held that general maritime

law may provided wrongful-death actions predicated on duties

beyond those that the Jones Act imposes. See, e.g., Miles …

(seaworthiness).” 532 U.S. at 818 (emphasis added).

13

protection of seamen who are peculiarly the wards of

admiralty. Its purpose was to enlarge that protection,

not to narrow it.’” 554 U.S. at 417. To adopt American

Seafoods’ analysis, this Court would have to believe that

Congress sub silentio took away a significant remedy from

injured seamen–the ability to obtain punitive damages

in a common-law vessel unseaworthiness claim— by the

enactment of the Jones Act.

In Atlantic Sounding, the defendants argued that

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 (DOSHA)

[46 U.S.C. §§ 30301-08].” Id. at 418. The Atlantic Sounding

court called this a “lowest common denominator” approach

and rejected it:

Miles does not address either maintenance and

cure actions in general or the availability of

punitive damages for such actions. The decision

instead grapples with the entirely different

question whether general maritime law should

provide a cause of action for wrongful death

[of a seaman] based on unseaworthiness….

The Court in Miles first concluded that the

unanimous legislative judgment behind the

Jones Act, DOSHA, and the many state statutes

authorizing maritime wrongful death actions,

supported the recognition of a [new] 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 DOSHA, such

that damages were not statutorily available for

14

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…. [T]o determine the remedies available

under the [new] common-law wrongfuldeath action, an admiralty court should look

primarily to [the Jones Act and DOSHA] for

policy guidance. It would have been illegitimate

to create common-law remedies that exceeded

those remedies statutorily available under the

Jones Act and DOSHA.

Id. at 419-20 (emphasis added). The Atlantic Sounding

court corrected the erroneous, overboard interpretation

of Miles that American Seafoods now advances; the Court

held that reading Miles to limit recovery in all claims of

personal injury was “far too broad.” Atlantic Sounding,

557 U.S. at 418-19 (internal citations omitted).7

American Seafoods’ reliance on the pecuniary/

nonpecuniary distinction articulated in Miles, Pet. at

13-14, is equally unavailing. The words “pecuniary”

and “nonpecuniary” do not appear in the Jones Act.

Nor has this Court ever held that punitive damages are

“non-pecuniary.”8 Miles addressed loss of consortium

7. This Court’s holding in Atlantic Sounding renders

irrelevant the Petitioner’s claim that the Jones Act’s incorporation

of the Federal Employees Liability Act, 45 U.S.C. § 59 (“FELA”)

precludes punitive damages in a Jones Act negligence claim.

8. In ordinary English, “pecuniary” means “of or relating to

money,” or “consisting of or given or exacted in money or monetary

payments.” Pecuniary, Dictionary.com, http://www.dictionary.com/

15

damages and not punitive damages.9 Punitive damages

are obviously “pecuniary.”

In sum, this Court has already answered the question

at issue here; nothing in the Jones Act per se forecloses

either a vessel unseaworthiness claim or the recovery of

punitive damages associated with it. Such an argument

would be fully inconsistent with the text of the Jones Act

and the manifest intent of Congress to expand remedies

available to injured seamen by enacting the Act and not

to restrict their existing common law remedies. The

Washington court correctly applied this element of the

Atlantic Sounding analysis. 391 P.3d at 438.

browse/pecuniary (last visited Dec. 14, 2016). In legal parlance,

“pecuniary damages” are “[d]amages that can be estimated and

monetarily compensated,” and “nonpecuniary damages” are

“[d]amages that cannot be measured in money.” Bryan A. Garner,

Black’s Law Dictionary (10th ed.) at 473. Punitive damages

are estimated and awarded monetarily, levied as “measured

retribution[,]” Exxon Shipping Co. v. Baker, 554 U.S. 471, 513

(2008) and designed not to provide compensation but to constitute

“punishment to the offender … as a warning to others…” Lake Shore

& M. S. Ry. Co., 147 U.S. at 107.

9. The Miles court did not address punitive damages and

considered “pecuniary damages” in the context of whether a

mother could recover for loss of consortium with her son stabbed

to death by a crew mate and whether his estate could recover

for non-economic damages. The Miles court indicated that there

needed to be a uniform treatment of issues in maritime law and

held that because the Jones Act and FELA barred the recovery

of non-pecuniary damages such as those for loss of consortium,

general maritime law did so as well.

16

(b) Vessel Unseaworthiness Claims Predated the

Enactment of the Jones Act in 1920

Finally, vessel unseaworthiness claims and the

recovery of punitive damages in such claims, predated the

1920 enactment of the Jones Act. Again relying on Miles,

American Seafoods asserts that vessel unseaworthiness

claims are the product of a “revolution,” misstating the

actual historical origins of that claim. Pet. at 17-19.

The vessel unseaworthiness doctrine was established

in general maritime law long prior to the enactment of

the Jones Act, as early as 1789. Dixon v. The Cyrus, 7

Fed. Cas. 755 (1789).10 The Osceola, 189 U.S. 158 (1903), is

pivotal in any determination regarding the origin of the

doctrine of seaworthiness. The Osceola court specifically

recognized that the seaman had a common law cause of

action for unseaworthiness: “Upon a full review, however,

of English and American authorities upon these questions,

we think the law may be considered as settled upon the

following propositions:….‘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….’” 189 U.S. at 175. In

so holding, this Court made no mention of negligence that

caused the unseaworthy condition. The Court specifically

referred to the condition of the ship not the actions of the

crew, owner, or employer. As Gilmore & Black notes at

10. As stated in G. Gilmore & C. Black, The Law of Admiralty

(2d ed. 1975) [“Gilmore & Black”] at 384, vessel unseaworthiness

was a recognized remedy for a seaman, even though the right to

recover damages came later in the development of the doctrine.

17

384, this determination “represented a long step forward

in the history of seamen’s rights.”11

The Osceola court dealt directly with the question of

negligence; it ruled that the seaman had no negligence

cause of action in general maritime law. The issue

of negligence was not a side issue in The Osceola, nor

was it dictum. The Court ruled that the seaman had no

cause of action for negligence – in any form or under any

circumstances. In fact, Congress, largely in response to

the ruling in The Osceola, enacted the Jones Act which

allowed the seaman the negligence cause of action.

The vessel owner under general maritime law

warrants a seaworthy vessel. The maritime industry

asks this Court to focus on the “breach of the warranty”

as opposed to the “condition of the vessel” (e.g. improper

appliances, not fit for its intended purpose). But the

injury to a seaman can occur from both negligence and

unseaworthiness concurrently or independently. In fact,

11. The Osceola court reviewed several earlier cases where

a finding of unseaworthiness supported an award of damages for

the seaman. For instance, it cited to The Edith Godden, 23 Fed.

43 (S.D. N.Y. 1885). There, the Osceola court stated that the vessel

was held liable for personal injuries received from “the neglect of

the owner to furnish appliances to the place and occasion where

used; in other words unseaworthiness.” 189 U.S. at 173. It also

cited to Olson v. Flavel, 34 Fed. 477 (D. Or. 1888). In reviewing

this case, the Court noted that the owner did not provide proper

appliances, “so that case was one really of unseaworthiness.” 189

U.S. at 174. The Court also cited to The A. Heaton, 43 Fed. 592

(D. Mass. 1890), The Julia Fowler, 49 Fed. 277 (S.D. N.Y. 1892),

and Kalleck v. Deering, 37 N.E. 450 (Mass. 1894) all in support of

its holding that the seaman had no cause of action for negligence

but only for unseaworthiness.

18

Tabingo was injured by both the employer’s negligence

providing a broken hydraulic handle and by the unfit

condition of the hydraulic handle, left unrepaired for

years, making the hatch a trap. A shipowner can breach

the warranty of seaworthiness without being negligent.

Nothing in The Osceola hinted that negligence must give

rise to the unseaworthy condition of the vessel.

In Carlisle Packing Co. v. Sandanger, 259 U.S. 255,

259 (1922), the Court reiterated such a claim existed

“without regard to negligence.” Although the scope of

the vessel unseaworthiness claim was further developed

later in Munich v. Southern S.S. Co., 321 U.S. 96 (1944),

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and

Usner, this does not detract from the critical point: vessel

unseaworthiness claims predated 1920, thereby meeting

the requirements for the availability of a remedy under

the Atlantic Sounding approach.

Again, the Washington court correctly concluded that

vessel unseaworthiness claims and recovery of punitive

damages predate the enactment of the Jones Act in 1920.

391 P.3d at 437-38.

American Seafoods is also incorrect to suggest that the

public interest in this case favors reversal of the decision

below and re-invigoration of the overly broad reading of

Miles. See Pet. at 23-25. The public policy behind punitive

damages is equally important: such damages are meant

“to punish the person doing the wrongful act and to

discourage others from similar conduct in the future.”

Cmt. a. Restatement (Second) of Torts § 908. See Baker,

554 U.S. at 492-93. This Court has long underscored the

need to ensure that seamen, who are “wards of admiralty,”

19

U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 355

(1971),12 have the necessary remedies to protect their

rights. As Justice Story declared nearly two centuries ago:

“Every court should watch with jealousy an encroachment

upon the rights of a seaman, because they are unprotected

and need counsel.” Harden, 11 F. Cas. at 485. “Imposing

exemplary damages…creates a strong incentive for

vigilance” on the part of those best able to protect seamen

from injury aboard unseaworthy vessels. Pacific Mut. Life

Ins. v. Haslip, 499 U.S. 1, 14 (1991).

Federal courts have applied punitive damages as a

deterrent against egregious vessel owner misconduct in

a variety of settings. See, e.g., Baker, supra (fishermen

awarded punitive damages for their loss of livelihood

claims, many of whom were Jones Act seamen); Gaffney

v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424 (7th Cir.

2006), cert. denied, 549 U.S. 1111 (2007) (court affirming

award of punitive damages to seamen asserting retaliatory

discharge); Pino v. Protection Mar. Inc. Co., 490 F. Supp.

277 (D. Mass. 1980) (seamen entitled to seek punitive

damages from insurance company for interfering with

their employment rights by charging higher insurance

premiums from owners of fishing vessels on which they

worked because seamen had failed to settle insurance

claims to the insurer’s satisfaction); Atlantic Sounding

(seamen entitled to seek punitive damages for the willful

and wanton violation of their right to maintenance and

cure); Callahan v. Gulf Logistics, LLC, 2013 WL 5236888

12. In fact, this Court has referred to seamen as “wards

of admiralty” in some 24 decisions. Robertson, supra, 70 La. L.

Rev. at 499 n.107 (2010), most recently in Atlantic Sounding, 557

U.S. at 417.

20

(W.D. La. 2013) (acknowledging that punitive damages

may be recoverable under maritime law in a third party

action by a longshore or harbor worker under 905(b) of the

LHWCA); In re Horizon Cruises Litigation, 101 F. Supp.

2d 204, 210 (S.D.N.Y. 2000) (observing that passengers

have been entitled to punitive damages in maritime law

since at least 1823).

Preserving the traditional remedy of punitive damages

in this case will help provide a safe workplace for seamen

and discourage employers, such as American Seafoods,

from cutting corners to achieve greater productivity on

board their vessels at the expense of the safety and lives

of their crews. And certainly, there is no conceivable

justification for allowing the recovery of punitive damages

by injured longshore workers (Callahan), cruise ship

passengers (Horizon Cruises), Jones Act seamen in

loss-of-livelihood cases (Baker), retaliatory discharge

cases (Gaffney), tortious interference with employment

cases (Pino), or in maintenance and cure cases (Atlantic

Sounding), but not by seamen injured due to the vessel

owner’s egregious conduct in failing to provide a safe

workplace, a seaworthy vessel. Punitive damages have long

been available to other types of maritime litigants, and

the Washington Supreme Court was correct to preserve

them injured seamen asserting claims of unseaworthiness.

21

CONCLUSION

The petition should be denied for lack of jurisdiction,

and because the Washington court faithfully applied

this Court’s Atlantic Sounding analytical protocol in

concluding that an injured seaman could recover punitive

damages in a vessel unseaworthiness claim.

DATED this 13th day of November, 2017.

Respectfully submitted,

Joseph S. Stacey

James Jacobsen

Stacey & Jacobsen, LLP

4039 21st Avenue W, Suite 401

Seattle, Washington 98199

(206) 282-3100

Philip A. Talmadge

Counsel of Record

Talmadge/Fitzpatrick /Tribe

2775 Harbor Avenue, SW

Third Floor, Suite C

Seattle, Washington 98126

(206) 574-6661

phil@tal-fitzlaw.com

Counsel for Respondent

APPENDIX

1a

Appendix

APPENDIX — RULING

GRANTING REVIEW

OF THE SUPREME COURT OF THE STATE OF

WASHINGTON, FILED JUNE 28, 2016

IN THE SUPREME COURT

OF THE STATE OF WASHINGTON

NO. 92913-1

ALLAN A. TABINGO,

Petitioner,

v.

AMERICAN TRIUMPH LLC, AND

AMERICAN SEAFOODS COMPANY, LLC,

Respondents.

RULING GRANTING REVIEW

Allan Tabingo was injured while working as a

deckhand trainee on a factory trawler owned by his

employer, A merican Triumph LLC and A merican

Seafoods Company, LLC (American Seafoods). While he

was pushing fish through a hatch and into tanks below the

deck, the hatch closed on his hand, eventually resulting in

the amputation of two fingers. Mr. Tabingo alleges that

the operator of the hydraulic hatch mistakenly pushed

the valve that closed the hatch while Mr. Tabingo’s hand

was near the hinge, and was unable to stop the closing

due to a defective hydraulic handle that had been broken

2a

Appendix

for approximately two years. Mr. Tabingo alleges causes

of action available to a seaman injured in the course of

his employment, including an action against American

Seafoods as his employer for negligence under the

Jones Act, 46 U.S.C. § 30104, and a general maritime

law action against American Seafoods as the vessel

owner for unseaworthiness. As to the unseaworthiness

claim, he alleges willful and wanton failure to provide a

seaworthy vessel and seeks both compensatory damages

and punitive damages. The King County Superior Court

granted American Seafoods partial summary judgment,

dismissing Mr. Tabingo’s claim for punitive damages on

the basis that such damages are not recoverable under the

general maritime doctrine of unseaworthiness as a matter

of law. In the order granting partial summary judgment,

the court explained as follows:

Wa s h i n g t o n S t a t e S u p r e m e C o u r t

interpretations of maritime law, as well as the

uniformity principle set forth by the United

States Supreme Court in Miles v. Apex Marine

Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed.

2d 275 (1990), and confirmed in subsequent

decisions, mandate that the measure of damages

available under the Jones Act are identical to,

and circumscribe, the damages available under

the doctrine of unseaworthiness. The United

States Court of Appeals for the Fifth Circuit has

specifically found that the uniformity principle

of Miles applies when a general maritime law

personal injury claim is joined with a Jones Act

claim. McBride v. Estis WellService, LLC, 768

3a

Appendix

F.3d 382 (2014), Cert. Denied, 135 S. Ct. 2310

(20 15). Additionally, the Washington State

Supreme Court has held that “unseaworthiness

and a Jones Act negligence case have essentially

identical measures of damages.” Miller v. Arctic

Alaska Fisheries Corp., 133 Wn.2d 250, 265-66,

944 P.2d 1005 (1997) (en banc).

Based on this reading of the case law, the court concluded,

“Accordingly, Plaintiff may not recover non-pecuniary

damages, including punitive damages, under either of

his liability theories.” The court dismissed with prejudice

Mr. Tabingo’s claim for punitive damages under the

Jones Act and the general maritime law doctrine of

unseaworthiness.1 Mr. Tabingo now seeks this court’s

direct discretionary review of this partial summary

judgment order. RAP 2.3; RAP 4.2.

The initial question before me is whether this

case is one of the rare instances in which review of an

interlocutory summary judgment order is appropriate.

In Hartley v. State, 103 Wn.2d 768, 773-74, 698 P.2d 77

(1985), this court noted that “[j]udicial policy generally

disfavors interlocutory appeals,” but there found that the

trial court committed “obvious or probable error” and that

discretionary review was appropriate to avoid a useless

trial. See also Douchette v. Bethel Sch. Dist. No. 403,

117 Wn.2d 805, 808, 818 P.2d 1362, 1363 (1991) (finding

interlocutory review of a statute of limitations issue was

appropriate to avoid a useless trial).

1. Mr. Tabingo states in his motion for discretionary review

that in argument before the superior court he indicated he was

seeking punitive damages only as to the unseaworthiness claim.

4a

Appendix

At issue here is whether a seaman may recover

punitive damages for an employer’s willful and wanton

breach of the general maritime law duty to provide a

seaworthy vessel. The answer to this legal question

involves the relationship of remedies under the maritime

common law and remedies provided by Congress

under the Jones Act, 46 U.S.C. § 30104. Ultimately, the

question is whether the remedy of punitive damages was

historically available in maritime law under the doctrine

of unseaworthiness and, if so, whether the availability of

punitive damages was supplanted by Jones Act pecuniary

remedies for negligence in cases where the injured person

is an employee of the vessel owner.

The background framing the issues is well established.

Under maritime common law an injured seaman has two

available causes of action: an action for “maintenance

and cure” during his or her recovery from any injury

and an action against the shipowner (who may also be

the employer) for unseaworthiness of the vessel. In the

pre-Jones Act case The Osceola, 189 U.S. 158, 175, 23

S. Ct. 483, 487, 47 L. Ed. 760 (1903), the Supreme Court

determined that a seaman, though entitled to maintenance

and cure whether or not negligence caused the injuries,

was not allowed pecuniary recovery for the negligence of

the vessel master or a member of the crew. In response,

Congress enacted the Jones Act, providing a seaman

injured in the course of employment or, if the seaman dies

from the injury, the personal representative of the seaman,

a cause of action against the employer. 46 U.S.C. § 30104.

The Jones Act incorporated the substantive provisions of

the Federal Employers Liability Act (FELA), 45 U.S.C.

5a

Appendix

§ 51, that govern actions for personal injury or death of a

railway employee. Id. In discerning congressional intent,

courts have considered how FELA was interpreted before

the enactment of the Jones Act. Relevant here, prior

to enactment of the Jones Act, the Supreme Court had

determined that an injured worker bringing an action

under FELA could recover only pecuniary damages. St.

Louis, Iron Mountain & S. Ry. v. Craft, 237 U.S. 648, 658,

35 S. Ct. 704, 59 L. Ed. 1160 (1915). Many years later the

Supreme Court reasoned that since the holding in Craft

predated the Jones Act, “Congress must have intended

to incorporate [FELA’s] pecuniary limitation on damages

as well.” Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111

S. Ct. 317, 112 L. Ed. 2d 275 (1990).

Many lower courts read Miles as limiting recovery

in maritime personal injury cases to only those remedies

available under the Jones Act. But almost two decades

later, the Supreme Court rejected the broad proposition

that a seaman may recover only those damages available

under the Jones Act. Atlantic Sounding Co., Inc. v.

Townsend, 557 U.S. 404, 407, 129 S. Ct. 2561, 174 L. Ed.

2d 382 (2009). The question presented in Townsend was

whether an injured seaman could recover punitive damages

for his employer’s willful failure to pay maintenance and

cure. The Supreme Court distinguished maintenance and

cure from the wrongful death action in Miles, noting that

general maritime law denied any recovery for wrongful

death, and that the Jones Act and the Death on the High

Seas Act (DOHSA), 46 U.S.C. § 30301, et seq., are the sole

sources of a wrongful death cause of action. The Supreme

Court observed that punitive damages historically have

6a

Appendix

been available in general maritime actions, and that the

Jones Act did not eliminate preexisting remedies available

to seamen for the separate common law cause of action

based on the right to maintenance and cure. Id. at 415-16.

Thus, it distinguished Miles on the grounds that “Miles

does not address either maintenance and cure actions in

general or the availability of punitive damages for such

actions.” Id. at 419.

After Townsend, lower courts have wrestled with the

issues of whether prior to the Jones Act punitive damages

were available under the doctrine of unseaworthiness

and whether the provisions of the Jones Act supplanted

historical remedies as to a seaman employed by the vessel

owner. Some courts have concluded that vessel passengers

and seamen not employed by the vessel owner may seek

punitive damages under the doctrine of unseaworthiness

in light of Townsend. See, e.g., Hausman v. Holland Am.

Line-USA, 2015 WL 10684573 (W.D. Wash.); Collins v.

A.B.C. Marine Towing, L.L.C., 2015 WL 5254710 (E.D.

La.). However, as the district court observed in Hausman,

these cases did not address whether punitive damages

are available to a seaman bringing a personal injury suit

under the Jones Act.

This issue has been addressed post-Townsend by

federal district courts and by the Fifth Circuit Court of

Appeals. In Rowe v. Hornblower Fleet, 2012 WL 5833541

(N.D. Cal.), the district court concluded that punitive

damages are available in general maritime claims and

that nothing in the Jones Act limits a seaman’s right to

seek punitive damages against an employer on a claim for

7a

Appendix

unseaworthiness. See also Wagner v. Kana Blue Water

Farms, LLC, 2010 WL 3566731 (D. Haw.) (same). These

district courts concluded that the Ninth Circuit’s decision

in Evich v. Morris, 819 F.2d 256 (9th Cir. 1987), remained

binding circuit precedent following Townsend, such that

punitive damages are available in a general maritime

action upon a showing of conduct that manifests reckless

or callous disregard, gross negligence, actual malice, or

criminal indifference.

More recently, the question of the availability of

punitive damages was presented in McBride v. Estis

Well Service, LLC, 768 F.3d 382 (5th Cir. 2014) (en

banc), cert. denied, 135 S. Ct. 2310 (2015), in the context

of a wrongful death action and personal injury actions

against an employer who was the vessel owner. A

drilling rig on a barge toppled over, killing one seaman

and injuring others, and the personal representative

of a deceased seaman and the injured seamen sought

punitive damages for their employer’s willful and wanton

breach of the general maritime law duty to provide a

seaworthy vessel. The federal district court considered

Townsend, but it determined the remedy of punitive

damages was not legally cognizable for unseaworthiness

or Jones Act causes of action and dismissed all claims

for punitive damages. But recognizing that the issues

presented were “the subject of national debate with no

clear consensus,” the court certified the judgment for

immediate appeal. Initially, a panel of the Fifth Circuit

considered the question on interlocutory appeal and

reasoned that Townsend’s holding on maintenance and

cure would extend to an unseaworthiness cause of action

8a

Appendix

and the availability of punitive damages as a remedy. In

the initial decision, McBride v. Estis Well Serv., L.L.C.,

731 F.3d 505, 518 (5th Cir. 2013), the court would have

held, “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.” As indicated, the Fifth

Circuit then reheard the case en banc. The fifteen member

en banc court affirmed the district court’s dismissal of

the punitive damages claims in a 7-2-6 decision. Broadly

summarized, the lead opinion by Judge Davis found that

the wrongful death action by the personal representative

of the deceased seaman was indistinguishable from

Miles, where recovery was limited to pecuniary losses,

and further that “no one has suggested why its holding

and reasoning would not apply to an injury case” such

as asserted by the injured seamen. McBride, 768 F.3d

at 388. Judge Clement wrote and four judges signed a

separate concurring opinion that joined Judge Davis’s

opinion but also concluded that punitive damages were not

historically available in unseaworthiness cases. Id. at 391401 (Clement, J., concurring). Thus, less than a majority

of the court fully joined in the lead opinion. Significantly,

Judge Haynes’s opinion concurring in the judgment,

joined by one other judge, concurred in the reasoning

in the lead opinion as to the wrongful death action but

disagreed that the outcome on the wrongful death action

dictated the outcome for the surviving seamen. Id. at

9a

Appendix

401-02 (Haynes, J., concurring in judgment). But after

indicating disagreement with the concept that the outcome

in the wrongful death action dictated the outcome for the

injured seamen, Judge Haynes wrote, “That said, I cannot

join the dissenting opinions with respect to the surviving

seamen.” Id. at 402. She noted that “ 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.” Id.

at 403. Additionally, she expressed views that it would

be “inappropriate for a federal intermediate appellate

court to extend the law here,” id., that the subject was

best left to Congress, and that “ [i]f 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.” Id. at 404. Judge Higginson was joined by five

other judges in a dissenting opinion that concluded general

maritime law afforded injured seamen a cause of action

for unseaworthiness if a seaman was injured by a ship’s

operational unfitness, and that punitive damages, though

not always designated as such, historically were available

and awarded in such general maritime actions. Id. at 406

(Higginson, J., dissenting). Accordingly, the dissenting

opinion concluded that Congress’s enactment of negligence

and wrongful death causes of action for injured seaman or

the representatives of deceased seamen to remedy gaps

in general maritime law did not eliminate the preexisting

remedy of punitive damages. Id. at 409. The dissenting

opinion applied the reasoning in Townsend that the Jones

Act’s purpose was to enlarge a seaman’s protection, not to

narrow it, and that the Jones Act preserved the seaman’s

right to elect between the remedies there provided and

10a

Appendix

those recoverable under preexisting general maritime

law for negligence. Id. This reasoning led the dissent

to the same conclusion as that reached in Townsend for

maintenance and cure claims; that is, the Jones Act did

not eliminate preexisting remedies available to seamen

for the separate common law cause of action based on

unseaworthiness. Id. at 418-19.

American Seafoods relies heavily on McBride in

opposing discretionary review and asserts that “the

U.S. Supreme Court effectively endorsed this holding

by declining to hear the petition for review.” But the

general proposition that denial of certiorari is an implicit

endorsement of the lower court’s holding has been

rejected by the Supreme Court. See Hughes Tool Co. v.

Trans World Airlines, Inc., 409 U.S. 363, 366, n.1, 93 S.

Ct. 647, 34 L. Ed. 2d 577 (1973) (noting “ the well-settled

view that denial of certiorari imparts no implication or

inference concerning the Court’s view of the merits”);

Teague v. Lane, 489 U.S. 288, 296, 109 S. Ct. 1060, 106768, 103 L. Ed. 2d 334 (1989) (reiterating that denial of

certiorari imports no expression of opinion on the merits

and observing that the variety of considerations that

underlie denials of the writ counsels against according

denials of certiorari any precedential value). And I find it

doubtful that this court would agree with Judge Haynes’s

view in concurring in the judgment that this unsettled

question of law should be left to Congress or the Supreme

Court to decide. Rather, I believe this court would view

the question of the availability of punitive damages in an

injured seaman’s unseaworthiness claim as whether such

claim is or is not logically compelled by Supreme Court

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precedents. Cf. Norfolk Shipbuilding & Drydock Corp.

v. Garris, 532 U.S. 811, 820, 121 S. Ct. 1927, 1933, 150

L. Ed. 2d 34 (2001) (cautioning that recognition of new

types of maritime claims may be best left to Congress

rather than federal common law, but that “Congress’s

occupation of this field is not yet so extensive as to

preclude us from recognizing what is already logically

compelled by our precedents”). The Supreme Court

has not reserved to itself the question of what result is

logically compelled by its precedents; the Supreme Court

is the court of last resort on issues of maritime law, not

the court of first resort. Further, Supreme Court Rule 10

contemplates that unsettled questions of federal law will

continue to be addressed by the federal and state courts,

and that the Supreme Court will consider the question if

conflicting decisions emerge among different circuits of

the federal courts of appeals or with a state court of last

resort. McBride is not persuasive authority for denying

discretionary review.

American Seafoods also argues, and the superior

court order suggests, that this court decided this issue

in Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d

250, 265-66, 944 P.2d 1005 (1997), when it stated, “While

distinct theories of recovery, unseaworthiness and a

Jones Act negligence case have essentially identical

measures of damages.” But this statement was made in a

case that preceded Townsend. And in Miller the injured

seaman explicitly did not seek punitive damages in his

unseaworthiness and Jones Act causes of action. See

Brief of Appellant, bound volume of briefs, Wash. State

Law Library, 133 Washington 2d Briefs, Vol. 5, 187-290

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(noting the Miles holding precluded punitive damages in a

wrongful death action and stating, “The holding in Miles

would seem to preclude punitive damages for injury claims

as well, for unseaworthiness or Jones Act negligence. Mr.

Miller does not seek punitive damages for those causes of

action. Instead, he seeks punitive damages for the cut-off

of maintenance and cure”).

This background indicates that resolution of the

issue in this court likely would turn on application of the

principles of Townsend to claims for egregious breaches

of the warranty of seaworthiness, such that the questions

are whether punitive damages were available to an

injured seaman prior to enactment of the Jones Act and

whether the Jones Act altered the damages available. Cf.

Townsend, 557 U.S. at 418. In Townsend, the Court first

reviewed the extension of punitive damages available at

common law to claims arising under maritime law for acts

of a particularly egregious nature:

The general rule that punitive damages were

available at common law extended to claims

arising under federal maritime law. See Lake

Shore & Michigan Southern R. Co. v. Prentice,

147 U.S. 101, 108 (1893) “[C]ourts of admiralty

... proceed, in cases of tort, upon the same

principles as courts of common law, in allowing

exemplary damages ...”). One of this Court’s

first cases indicating that punitive damages

were available involved an action for marine

trespass. See The Amiable Nancy, 3 Wheat.

546 (1818). In the course of deciding whether to

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uphold the jury’s award, Justice Story, writing

for the Court, recognized that punitive damages

are an available maritime remedy under the

proper circumstances. Although the Court

found that the particular facts of the case did

not warrant such an award against the named

defendants, it explained that “if this were a

suit against the original wrong-doers, it might

be proper to ... visit upon them in the shape of

exemplary damages, the proper punishment

which belongs to such lawless misconduct.” Id.,

at 558; see also Barry, supra, at 563 (“In The

Amiable Nancy, which was the case of a marine

tort, Mr. Justice Story spoke of exemplary

damages as ‘the proper punishment which

belongs to ... lawless misconduct’” (citation

omitted)).

Townsend, 557 U.S. at 411. The Court further noted a

couple of early cases, specific to the maintenance and

cure cause of action at issue in Townsend, that included

punitive elements:

In addition, the failure of a vessel owner to

provide proper medical care for seamen has

provided the impetus for damages awards

that appear to contain at least some punitive

element. For example, in The City of Carlisle,

39 F. 807 (DC Ore. 1889), the court added

$1,000 to its damages award to compensate

an apprentice seaman for “gross neglect and

cruel maltreatment of the [seaman] since his

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injury.” Id., at 809, 817. The court reviewed

the indignities to which the apprentice had

been subjected as he recovered without any

serious medical attention, see id., at 810-812,

and explained that “if owners do not wish to

be mulct in damages for such misconduct,

they should be careful to select men worthy

to command their vessels and fit to be trusted

with the safety and welfare of their crews,

and particularly apprentice boys.” Id., at 817;

see also The Troop, 118 F. 769, 770-771, 773

(DC Wash. 1902) (explaining 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”).

Id. at 414.

American Seafoods argues that this discussion of the

availability of punitive damages under general maritime

law is immaterial to the issue of whether punitive damages

were specifically available for a claim of unseaworthiness

before the Jones Act. But Townsend was based on the

general common law rule that made punitive damages

available in maritime actions and the fact that the early

cases supported, rather than refuted, application of the

general rule to pre-Jones Act maintenance and cure

actions that involved wanton, willful, or outrageous

conduct. Id. at 414-15 n.4 (agreeing with the dissent that

the handful of early maintenance and cure cases did not

resolve the question of the availability of punitive damages,

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but observing that the dissent did not explain why

maintenance and cure should be excepted from the general

rule in light of the early cases that supported rather than

refuted application of the rule to such actions). There is

no apparent reason the general principles identified in

Townsend would not extend to unseaworthiness claims

involving egregious conduct. American Seafoods argues

to the contrary that the Supreme Court’s discussion of

the historic availability of “indemnity or compensatory

damages” on the ground of unseaworthiness, as described

in Pacific Steamship Co. v. Peterson, 278 U.S. 130, 135,

49 S. Ct. 75, 73 L. Ed. 220 (1928), indicated punitive

damages were not available. See also McBride, 768 F.3d

at 398-99 (Clement, J., concurring). But Pacific Steams/

zip Co. and the case it discusses, The Osceola, did not

involve any claims for damages beyond those that were

compensatory. And the decision in Pacific Steamship Co.

rejected application of a broad incidental statement in a

previous case as “this was at the most a general expression

respecting a particular as to which no question was raisedno allowance for maintenance, cure and wages being

there involved—which ought not to control the judgment

in a subsequent suit when the very point is presented for

decision.” Id. at 136. There is no indication the Supreme

Court in discussing indemnity in these previous cases was

considering the point of whether punitive damages would

or would not extend to unseaworthiness claims where

egregious conduct was involved.

American Seafoods also argues that the modem

unseaworthiness cause of action that is based on strict

liability was not recognized until after the enactment of

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the Jones Act, and therefore the common law rule allowing

punitive damages could not have extended to such claims.

But even if the unseaworthiness cause of action has evolved

from the duty to use due diligence to provide a seaworthy

vessel to one of strict liability, recovery of punitive

damages depends on fault on the part of the vessel owner.

The development of the law as to the showing necessary

to establish a vessel owner’s liability did not change the

common law as to the culpability necessary to impose

punitive damages. This argument is not a convincing basis

to distinguish application of the principles of Towns end

to an unseaworthiness cause of action. Cf. In re Asbestos

Products Liab. Litig., 2014 WL 3353044, at *8-10 (E.D.

Pa. 2014) (rejecting the argument that the principles of

Townsend are inapplicable to an unseaworthiness cause

of action because a vessel owner can be held strictly liable

for harm caused by an unseaworthy vessel).

I am not aware of any early cases that directly support

or refute application of the general rule on the availability

of punitive damages to unseaworthiness actions. But it

seems to me that the discussion on the inadequacy of

compensatory damages to address unseaworthiness in

United States v. Givings, 25 F. Cas. 1331 (D. Mass. 1844),

lends support to application of the general rule. There

the defendant seamen were indicted for a revolt when

they refused to sail away from port and into dangerous

waters aboard a whaling ship with rotten masts. The

federal court noted the limits of compensatory damages

as a means to address the seamen’s concerns, instructing

the jury as follows:

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Full force should be given to the necessity of

upholding the power of the master, and to the

policy of requiring seamen to submit, in some

instances, even to evident injustice, waiting

for redress from the home tribunals; but a

distinction should be drawn between cases of

ordinary injuries, which can be compensated by

pecuniary damages, and those where the wrong

about to be done is of so serious a nature, as not

to be measured by subsequent compensation in

money; as when life or limbs are put in danger.

The law regards life, and the safety of limbs,

as of a higher value than the cost of surveys or

repairs.

Id. at 1332. The Supreme Court later observed that

the pre-Jones Act doctrine related to damages for

unseaworthiness seems to have derived from the seaman’s

privilege to abandon a ship improperly fitted out. See

Mahnich v. Southern S.S. Co., 321 U.S. 96, 99, 64 S. Ct.

455 88 L. Ed. 561 (1944). Viewed in this light, Givings

supports the view that the general punitive damage rule

historically would have been applied to willful and wanton

failure to provide a seaworthy vessel. Cf. Exxon Shipping

Co. v. Baker, 554 U.S. 471, 504, 128 S. Ct. 2605, 171 L.

Ed. 2d 570 (2008) (comparing the purposes of punitive

damages under maritime common law with the criminal

law and concluding that both advance deterrence).

Clearly, the question is an arguable one. Determining

whether discretionary review should be granted in this

matter requires me to consider whether the superior court

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committed “probable” error in the sense that the error

“can reasonably and fairly convincingly be accepted as true

... without being undeniably so . . ..” See Webster’s ThIrd

new InternAtIonAl DIctIonAry 1806 (2002) (definition of

“probable”). After considering the many scholarly opinions

on this issue, I am persuaded that under the “probable

error” standard the motion for discretionary review

should be granted. And like in Hartley, deciding the fully

developed legal issue on interlocutory review may avoid a

second trial that is essentially a retrial before a new jury. 2

Further, this is a matter “involving a fundamental and

urgent issue of broad public import which requires prompt

and ultimate determination” warranting this court’s direct

review. RAP 4.2(a)(4). The unquestionable importance of

this issue, the full development of the arguments relating

to the issue of law, and the lack of controlling authority in

Washington all weigh in favor of direct review.

The motion for direct discretionary review is granted.

The Clerk is requested to set a perfection schedule.

/s/

COMMISSIONER

June 28, 2016

2. American Seafoods claims bifurcation of the punitive

damages claim would be warranted in any event, but it provides no

authority or argument for this proposition. CR 42 allows separate

trials to avoid prejudice, but American Seafoods does not explain

how it would be prejudiced by re solution of all the claims in a trial

before the same jury.