In an admiralty lawsuit by a seaman who was injured on the job, are
PUNATIVE DAMAGES available under the "maintenence and cure" provisions
of maritime law?
If so, are they available in the Federal 5th Circuit (Louisiana)?

Legal questions...ya gotta love 'em!

I'll provide some relevant information, but I feel obliged to offer up
the usual caveats -- I'm not a lawyer, and Google Answers is not a
substitute for professional legal services.  Do not take anything
written here as legal gospel!

That said, I think there are provisions for punitive damages in
admiralty and maritime law, but not necessarily under the "maintenance
and cure" aspects of the law.  As noted on:

http://www.dle-law.com/rtssman.htm

"A seaman has the following rights: A seaman has the right to recover
for maintenance and cure as a result of injuries or sickness occurring
in the service of a vessel. This right in no way depends upon his/her
proving that the ship owner was negligent, or upon the ship owner
proving that the seaman was guilty of contributory negligence. Even if
the ship owner was not negligent and even if the seaman was negligent,
the seaman can still recover maintenance and cure."

In other words, this is more or less a "no fault" provision --
compensation can be had without any requirement to find a ship owner
at fault in any way.  And as I understand the workings of the legal
system, if there's no fault, there's no opportunity for punitive
damages.

However, fault is sometimes found under other aspects of
admiralty/maritime law, and punitive damages can be assessed.  I'll
note here a few cases of interest that were taken from non-internet
sources:

The Business Lawyer of February, 2002 had an article on:

CONSTITUTIONAL CONSTRAINTS ON PUNITIVE DAMAGES AND OTHER MONETARY
PUNISHMENTS

in which they noted that, 

"In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001). It reasoned
that:
While the common law of admiralty could require a higher standard of
proof for punitive damages than the Constitution requires, we have
been presented with no authority for creating an exemption to the
general federal standard, and the arguments for doing so are not so
compelling as to persuade us, in the absence of precedent, that the
district court abused its discretion by instructing on the
preponderance of evidence standard."

In other words, punitive damages are definitely a possibility.

***************
In the Winter, 2002 issue of the Tort and Insurance Law Journal,
there's an article on "Recent Developments in Admiralty and Maritime
Law" that notes:

"In Calhoun v. Yamaha Motor Corp...a twelve-year-old jet-ski passenger
was killed in a collision in territorial waters off the coast of
Puerto Rico. On remand from the U.S. Supreme Court...the Third Circuit
tackled several choice-of-law issues. The court held that federal
maritime law governed the liability issues. Applying federal
choice-of-law rules, the court also determined that Pennsylvania law
governed the determination of compensatory damages and that Puerto
Rican law governed the determination of punitive damages."

Translation: depending on the circumstances, different laws from
different jurisdictions can apply to the same case, thus determining
what guidelines apply for punitive damages.

The same article also notes:

"the Fifth Circuit did award attorneys' fees to a claimant who secured
temporary disability payments under the LHWCA where the employer
attended an informal conference and discussed, but did not resolve,
average weekly wage, temporary total disability, and medical
management issues."

Meaning that, by Fifth Circuit interpretation, under the Longshoremen
and Harbor Worker's Compensation Act (I believe LHWCA is considered
part of admiralty law, n'est ce pas?), attorney's fees, generally
regarded as a form of punititive damage, can be assessed.

Hope this is useful information.

Dave

---

Request for Answer Clarification by lalegal-ga on 19 Jun 2002 07:59 PDT

What I was looking for was more along the lines of Weisstho-ga's
"Holmes" case.
As I think I understand, the punative damages come from the employer's
arbitrary and capricious behavior with regard to the seaman/employee.
I just was wondering if this is still the case since this line of
cases came from the 1980's.

---

Clarification of Answer by davidsar-ga on 19 Jun 2002 11:36 PDT

As I noted in my original reply, the 5th Circuit awarded attorney's
fees (a form of punitive damage) in a recent case under maritime law. 
This wasn't a case of malicious negligence, but still, the principle
stands.  I've seen nothing to suggest that punitive damages are not
applicible as a general rule, even though specific laws may not allow
awarding punitive damages.  As noted in the valuable link provided by
arlenegreen-ga, the instructions to the jury include guidance on
punitive damages, including this statement:

"You also will be asked to determine if the Defendant is liable for
punitive damages, and, if so, you will be asked to fix the amount of
those damages. Because the method of determining punitive damages and
compensatory damages differ, I will instruct you separately on
punitive damages."

The specifics, of course, depend entirely on the details of your
particular case.  If you'd like to tell us more, perhaps I (or another
Google Answer person) can give some more detail.

Good luck.

Dave

Not a bad answer from a non-lawyer;-)

I'm also not a lawyer...I do have a friend who is and even studied
Maritime Law in Louisiana...I will email her later and ask but in the
meantime:

I believe that "punitive damages" and "maintenance and cure" would be
two different claims. You can receive "compensatory damages" under
maintenance and cure provisions if the employer failed to pay
maintenance and cure and should have and if there were other problems
that arose from the failure to pay.

Here's a nice non-legalese document that was written for jury
instruction in the 5th circuit that explains it rather nicely:

http://www.admiraltylawguide.com/documents/5th.html

An admiralty attorney fee/punitive damages claim is subject to the
shipowner's conduct which must be "willful, callous and persistent,"
"arbitrary and capricious" or "callous and recalcitrant" see Holmes v.
J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir. 1984);
Al-Zawkari v. American Steamship Co., 871 F.2d 585, 590 (6th Cir.,
1989).

weisstho-ga