A return to admiralty law of yore?

A return to admiralty law of yore?       In a case that had U.S. Supreme Court justices lining up a little differently than they do in many of their split decisions, the high court ruled 5-4 that a seaman can recover punitive damages for his employer's willful failure to pay maintenance and cure. (Atlantic Sounding Co. Inc., et al. v. Townsend, U.S. Supreme Court, No. 08'214, June 25)
      The author of the decision, Justice Clarence Thomas, was joined by justices usually characterized as liberals: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. A dissent penned by Justice Samuel Alito was joined by fellow conservatives Antonon Scalia, Anthony Kennedy, and Chief Justice John Roberts.
      While a seaman's personal injury lawsuit may seem of limited interest, several lawyers said it could have broader implications.
      Townsend, a crewmember on one of Atlantic Sounding's tugs, fell and injured his arm and shoulder. The company allegedly refused to pay maintenance and cure, and filed a suit in a district court for declaratory relief on the question of its obligations.
      (Seamen are generally entitled to a benefit called maintenance and cure that is similar to worker's compensation if they become ill or are injured in the service of a ship. This includes pay until the end of the voyage, medical expenses until 'maximum cure' is reached, and living expenses ' what's termed 'maintenance,' while undergoing treatment and recovery. An obligation found even in ancient sea codes, maintenance and cure is usually an obligation no matter who is at fault.)
      'Maritime lawyers have long advised their clients that they withhold maintenance and cure payments at their peril,' noted Jeffrey Moller, an attorney at Blank and Rome's office in Philadelphia.
      Townsend, in turn, filed a suit against Atlantic pursuant to the Jones Act and general maritime law, alleging negligence, unseaworthiness, arbitrary and willful failure to pay maintenance and cure, and wrongful termination. He then filed the same claims as counterclaims to the declaratory judgment action and sought punitive damages on his maintenance and cure claim.
      Both the trial court and appeals court followed precedent in the 11th Circuit that punitive damages may be awarded for the willful withholding of maintenance and cure.
      But there was a split among the federal circuits on the issue, with the First and Fifth joining the 11th in awarding punitive damages as a remedy for failure to provide maintenance and cure, while the Second, Third and Ninth Circuit courts applying a uniformity principle laid down in the 1990 Supreme Court decision Miles v. Apex Marine and awarding only pecuniary damages.
      Thomas' decision said that because punitive damages have long been an accepted remedy under general maritime law, and because neither Miles nor the Jones Act altered this understanding, punitive damages were available. It sent the case back to the lower courts for further proceedings.
      Advocates for seafarers were pleased.
      'The Townsend opinion leaves the reader satisfied, knowing the Supreme Court continues to look out for seamen and their rights under general maritime law,' declared the law firm Gordon & Elias, which describes itself as a specialist in personal injury law, including Jones Act cases.
      Attorney Dennis Bryant, who writes a daily newsletter on admiralty law, however, headlined his piece on the case: 'Supreme Court punts on issue of maintenance and cure punitive damages.'
      'To me as a purist, it mattered less which side they came down on than that they resolved the split between the circuits,' he explained in an interview. The Atlantic Sounding case was 'the first time I have seen the Supreme Court avoid the issue of uniformity in admiralty.'
      Shipping involves 'interstate and foreign commerce by definition, and it is one of the few areas where the constitution lays down jurisdiction for the court. Admiralty jurisdiction is a federal issue and time after time we have seen the Supreme Court step in and say there is a split between the circuits and we are going to bring back uniformity,' Bryant said.
      'This time they specifically declined to say that and that is what struck me as strange,' he said. 'My suspicion is that the new courts will follow the decision, but why not make it clear? It wasn't the normal Supreme Court admiralty decision where they say: 'This is the rule we are marching forward from here.' '
      Moller of Blank Rome focused on a different aspect, seeing the decision as perhaps re-empowering judges.
      'Admiralty lawyers, I think, would like to see judges act like the admiralty judges of old and deal with the case in front of them and use the talisman of uniformity as a guide, but not be afraid to create rules in admiralty law,' he said.
      The Miles case, he said, was the last in a line of cases in which judges expressed 'a sort of hesitancy to make new law. That was a trend that was sort of discouraging to a lot of people,' he said.
      In 1992 the late Fifth Circuit Judge John R. Brown decried Miles as 'troublesome' because of its 'self-imposed limitation on the power of admiralty judges.' He said the Supreme Court's 1978 decision in Mobil Oil Corp. v. Higginbotham represented 'a complete reversal of the roles of admiralty judges and Congress. Prior to these decisions, admiralty judges exercised their constitutional duty to declare the admiralty and maritime law based on enlarged principles of justice combined with the customs and usages of the sea.'
      'That was the exact tension that was working in the dissent in the Atlantic Sounding case,' Moller noted.
Alito wrote Miles 'provided a workable framework for analyzing the relief available' in Atlantic Sounding, and 'explained how that authority should be exercised in an era in which statutory law has become dominant.'
      'Whether this will open a lot of areas is hard to say,' Moller said. But one possibility is insurance law, where he notes there is no real federal statute that talks about hull and protection and indemnity insurance.
      'There are state laws that judges look to form their rules. It could be that this decision will encourage judges to create the law having to do with marine insurance rather than looking to some statute that is on the books,' he said. 'Marine insurance is an area that really needs uniformity and those cases that follow state law create non-uniformity.
      'Maybe this is a case that people will be able to cite and say 'general maritime law is still a judge-created or discovered creature and we should not be paralyzed by the lack of a congressional enactment and should not feel obliged to follow doggedly a state statute,' ' Moller said.