Tuesday, January 7, 2014



File:Brandeisl.jpg Our newest legal analyst Justice Louis Brandeis, or at least his ghost as channeled by the incredibly talented Giant Catfish,and  former demigod NAMAZU

  Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that , in its government, the deliberative forces should prevail over the arbitrary. To the casual observer the awarding of punitive damages in personal injury cases can seem arbitrary and capricious. Quite often however injured seamen appear before the court , injured as a direct result of corporate violation of specific safety regulations. More often than not the injury of the seaman through the ship owner's negligent failure to adhere to the requirements of the pertinent safety regulation was an economic decision of the owner. Compliance with the law was weighed as too expensive, and the protection of the crew members deemed uneconomic. Part of this calculus is the the relatively nominal fines imposed by the marine safety agencies when regulatory violations are discovered prior to an injury or fatality. The founding fathers believed that the path of safety lies in the opportunity to discuss freely perceived dangers and proposed remedies and that the fitting remedy for evil counsels is good ones. Punitive damages awarded to injured seamen above and beyond the award necessary to make the successful plaintiff "whole" certainly generate discussion, not only in the law journals, but most importantly, in the offices of shipping management. Punitive damages can often be the means by which the false economy of skirting safety requirements is exposed to those corporate decision makers who are most focused on the "bottom line", because such damages may be large enough to affect the bottom line and generate investor communications with Boards of Directors.

 As we mentioned in our previous post, violation of a safety regulation, most especially a Coast Guard safety regulation may invoke the application of the Pennsylvania-Reyes Doctrine [The Pennsylvania 86 U.S. 125 (1873)] and [Reyes v. Vantage SS Co. 609 F.2d 140, 5th cir. (1980)]. This doctrine holds that the burden of proof in a maritime personal injury case for a ship owner who has violated or ignored a safety regulation is against a presumption of causation or contributing causation. In other words the ship owner to avoid the allowed presumption must demonstrate that not only did his statutory or regulatory violation not directly cause the accident, he must demonstrate that it could not have contributed to causation. While this "doctrine" is not yet universally accepted in all U.S. District courts it may and should be argued whenever appropriate. Especially in cases where the accident or injury was not timely reported to the Coast Guard and thus the public was denied the lessons obtained from a Coast Guard investigation, punitive damages may be the only means to bringing the necessary change to the attention of the maritime industry.

 The mere fact of my death hasn't expunged my existence, just my bodily earthly presence. I still follow those things that interested me when I bodily roamed the halls of the court. Since my death , and especially over the last twenty years there have been increasing restrictions on the types of monetary damages that may be awarded in maritime personal accident and illness cases. The peak of restrictions came with the 1990 land mark U.S. Supreme Court case Miles v. Apex Marine Corp [498 U.S. 19 (1990]. This case involved damages payable to a seaman's surviving mother, parents have traditionally not been allowed much in the way of damages for the loss of an adult child who does not provide major financial support. Insurance defense lawyers quickly parlayed this decision into a seemingly across the board prohibition against punitive damages for mariners. That trend towards general prohibition of maritime punitive damages changed dramatically in 2009. That year the Supreme Court of the United States found in Townsend v. Atlantic Sounding Company [557 U.S. 404 (2009) found that the recovery of punitive damages is allowed when a seaman's employer willfully or arbitrarily fails provide Jones Act required maintenance and cure payments. In October of 2012 the McBride v. Estis Well Service [LLC, 2012 A.M.C. 1674 (W.D. La., May 16, 2012), the Western District of Louisiana]  case demonstrated and reaffirmed that punitive damages are available in case of seaworthiness and were historically available before Miles v. Apex (supra).

 Basically the rule of law concerning punitive damages for seamen is about as it has always been; available on an individual case by case basis where exceptionally egregious behavior by the ship owner or his agents is demonstrated, and there is an eligible survivor. Personally I think that the accepted definition of an eligible survivor will expend in the coming years. The shrinking of the government social safety net may bring back a common perception and necessity of grown children contributing to the welfare of aging parents. When that happens one's offspring either grown or as real children may be assigned economic value as they were in an agricultural society. The expansion of legal domestic partnership arrangements will increase the number of eligible survivors beyond the traditional widow and orphans. I urge all seamen's lawyers to reexamine the issue of punitive damages and to carefully consider applying for such when a case warrants. Anything less is not due diligence.


No comments:

Post a Comment