On March 9th 2017 the Washington State Supreme Court held that a seaman making a general maritime law unseaworthiness claim can recover punitive damages as a matter of law, reports the latest edition of UK P&I Club summer edition of Bodily Injury News (the journal of the Thomas Miller Americas’ bodily injury team).
The article noted that since the 2009 decision in Atlantic Sounding Co. v.Townsend, in which the US Supreme Court permitted the recovery of punitive damages for a shipowner’s wilful failure to pay maintenance and cure, lawyers representing injured and sick crew had sought to expand punitive damages to Jones Act and unseaworthiness claims.
In Tabingo v.AmericanTriumph LLC the plaintiff was working as a deckhand trainee aboard a fishing trawler owned and operated by American Seafoods Company. He was on his hands and knees near the hatch’s hinge gathering the remaining fish to put through the hatch to the deck below. The deck hand started to close the hatch but realized Tabingo’s hands were close to the hatch and tried to stop the hatch closing. The hydraulic hatch control handle was broken and the hatch closed on Tabingo’s hand resulting in the amputation of two fingers.
Tabingo claimed the shipowner knew about the broken hydraulic hatch control handle for two years before his accident, but failed to repair it.
Tabingo filed suit against the shipowner asserting claims for Jones Act negligence and unseaworthiness under the general maritime law. He included a claim for punitive damages for the unseaworthiness claim.
The shipowner then filed a motion to strike the punitive damages claim.
The Washington State trial court dismissed Tabingo’s punitive damage claim.
Tabingo filed an interlocutory petition and the Washington State Supreme Court accepted direct review of the trial court’s decision. The Court held that Tabingo could seek punitive damages because claims for unseaworthiness and punitive damages had existed in the common law for a long time; the common law tradition of punitive damages extended to maritime claims; and that there was no evidence that unseaworthiness claims were excluded from the general admiralty rule allowing punitive damages.
The writers commented that it was of particular interest that the Court went on to determine that, under Washington State Jurisprudence, punitive damages might be available in Tabingo’s case.
The Tabingo Court concluded that under Federal law punitive damages might be available for anything from reckless to malicious conduct. The Court continued holding that, assuming the truth of Tabingo’s allegations that the hatch handle had been broken for a period of two years (creating an unseaworthy ship), such conduct could fall into the realm of reckless or malicious behaviour, justifying an award of punitive damages.
The article said that, although the Tabingo decision was binding precedent only in state courts in Washington, claimants would rely on the decision as persuasive authority in Federal and state courts throughout the US.
The article continued: “What is most troubling is the lowered standard of conduct to reckless which is less egregious than wilful, intentional or malicious. Thus, the overall effect of this decision will be routine allegations of reckless conduct to support a claim for punitive damages for unseaworthiness.”
It added: “Because the determination of what is reckless conduct is a fact issue, it will be less likely for a defendant to prevail on a motion for summary judgment on the punitive damages issue”, further noting that “with this Tabingo decision, there is now a clear conflict in the general maritime law between a State Supreme Court and the Fifth Circuit Court of Appeal.” https://www.ukpandi.com/fileadmin/uploads/uk-pi/Documents/2017/Brochures/US_BI_News_June_17_WEB.pdf