Are Punitive Damages Available for the Failure to Pay Maintenance and Cure?
By John Merriam
An informal survey of plaintiff practitioners in the local maritime bar reflects a sentiment that federal judges in this district generally are not as mindful as they once were of their role as guardians to seamen. See, Harden v. Gordon, 11 F.Cas. 480, No. 6,047 (C.C.D. Maine 1823) (Justice Story). More and more cases for seamen are being filed in state court. The hope is that Superior Court judges will demonstrate more adherence to the wardship theory than their federal counterparts. See, Force and Norris, The Law of Seamen at 26:4 ( section entitled: “The wardship theory”) (5th ed. 2003).
In 1995 the Ninth Circuit took punitive damages off the table for the willful and persistent failure to pay maintenance and cure. Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1995 AMC 2022 (9th Cir. 1995). In a 2-1 decision, that appellate court stated that the possibility of an attorney fee award by itself “provides seamen with an appropriate remedy for the . . . willful and persistent failure to pay what is due . . . “ 1995 AMC at 2035.
The threat of liability for attorney fees adequately serves to deter recalcitrance . . . Punitive damages, in addition to attorney fees, are thus not needed to provide a powerful incentive for shipowners to investigate and pay promptly.
This practitioner is willing to wager that the judges in the majority on the Glynn panel never practiced maritime law. In literally scores of motions for maintenance and cure over the past 26 years, the undersigned can count on his fingers the number of times that the aggrieved seaman was awarded attorney fees. When fees were awarded they were modest in amount—usually a few hundred dollars—and never sufficient to pay for the time spent drafting the motion. Shipowners regard the possibility of an attorney fee award as an insignificant cost of doing business as usual.
The vast majority of courts addressing this issue have followed Glynn. The Eleventh Circuit and a handful of lesser federal and state jurisdictions still allow punitive damages, as well as attorney fees, for the willful and arbitrary failure to pay maintenance and cure. See, Atlantic Sounding v. Townsend, 2007 AMC 2009 (11th Cir. 2007). The U.S. Supreme Court has never spoken directly to this issue. Neither has the Washington Supreme Court.
When deciding issues of federal law, our state Supreme Court does not have to follow precedent from the Ninth Circuit. In Lundborg v. Keystone, 138 Wn.2d 658 (1999), the Washington Supreme Court declined to follow the Ninth and other federal circuit courts that enforced an $8/day rate of maintenance for union seamen as a matter of law. Instead, our highest state court chose to follow the Third Circuit, a lonely minority, ruling that $8/day in maintenance was likely a violation of the maritime law. Id. The state Supreme Court is free as well to follow the Eleventh Circuit rather than the Ninth on the issue of punitive damages.
The author intends to start filing motions on the theoretical availability of punitive damages, as a matter of law, in every case filed in Superior Court involving a claim for maintenance and cure. To make a record for eventual appeals, declarations are being collected from long-time maritime practitioners about their experiences with the behavior of shipowners in the payment of maintenance and cure before and after Glynn, supra, was decided in 1995. That record will show that, without punitive damages, the possibility of attorney fees is not “a powerful incentive for shipowners to investigate and pay promptly”. At this writing, declarations have been signed by Shane Carew, Gordon Webb, Dennis Murphy, Eric Dickman, Greg Bilyeu, Tom Evans, Mike Myers, Chris Kuebler and Dennis O’Bryan of Michigan (practicing locally), and Jay Friedheim of Honolulu, who represented the appellant-seaman in Glynn.
The first of numerous motions on the theoretical availability of punitive damages in Superior Court should be filed by the time this issue of Trial News is published. Stay tuned . . . .
Practice Tip: Include a claim for punitive damages in every Jones Act case you file in state court that involves even an arguable entitlement to maintenance and cure. It will take years before this issue is decided by the Washington Supreme Court—and perhaps the U.S. Supreme Court after that. Until that happens, the possibility of punitive damages should be used as leverage for more favorable settlements.
John Merriam is a former merchant seaman now practicing law at Fishermen’s Terminal in Seattle, where he restricts his practice to the representation to claimants for maritime wages and injury.