to a very sign ificant sum. Punitive damages are damages awarded in addition to the compensatory damages awa rded to a seafarer to make good his/her losses. Punitive damages in admiralty can probably as much as double the award of compensatory damages, and are designed to send a message to the defendant, to discourage any repeat of the act that led to the suit. Conversely, the shipowner canno t count on being able to recover any amounts overpaid by reason of m aintenance and cure-presumably a result of the favored position that seafarers occupy in the law. Accordingly, the shipowner (a nd more particularly, the shipowner's insurer) needs to proceed with particular care and good fa ith in responding to a claim for maintenance and cure. In summary, maintenance and cure is avai lable to seamen in a wide variety of circumstances. Its benefits may be considerable, but in general they provide compensation for fewer categories ofloss than most other forms of recovery for personal injury.
Unseaworthiness Virtually all injured seafarers will have at least some entitlement to maintenance and cure. If the case presents suitable facts, however, an injured seafarer may also claim, simultaneously, for recovery under the doctrine of "unseaworthiness." U nseaworthiness, as a doctrine in US law favor ing seafarers, stems from 1903. "The vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a fa ilure to supply and keep in order the proper appliances app urtenant to the ship."4 This was a time in wh ich personal injury law was, in general, much less favorable to injured workers than it is today. Essentially, the unseaworthiness doctrine makes a shipowner liable without fau lt for injuries that h appen to a seafarer by reason of any way in which the vessel is not reasonably fit for its intended service. Failures of the rig, fau lts in the hull, shortcomings in fittings such as ladders or mechanical equipment, inadequate or improper tools, or food , failure to staff the vessel with a proper crew, and failure to dispatch an adequate number of personnel to perform a particular task can all be held to make a vessel not reasonably fit for her intended service. This list is just illustrative, not ex haustive. Whether a particular condition aboard ship makes a particular vessel not reasonably fit is a question for the jury at trial. If the jury finds the vessel not to be reasonably fit, and if the condition is held to be the cause of the injuries to the seafarer, then the seafarer is entitled to recover his d amages from the shi powner. To be reasonably fit, however, a vessel need not be perfect-a n imperfect vessel may st ill be found by the jury to be nevertheless seaworthy. To find a vessel unseaworthy does not require that the jury find any fault or negligence on the part of its operator. A vessel may be not reasonably fit by reason of a condition that the operator may not know about, or even h ave any ability to have discovered . The classic example is an injury resulting from the fai lure of a shackle supporting a load above the injured person. SEA HISTORY 159, SUMMER 2017
The shackle fai led by reason of a Raw in its casti ng, wh ich would not have been revealed by visual examination. Despite the inability to have discovered the Raw, the shipowner wou ld be ruled liable under the unseaworthiness doctrine. This is known as strict liability, and this doctrine now also applies to manufacturers and sellers of defective goods (think snowblowers, lawnmowers, and cars, as examples), even in the shoreside law context. W hile a seaman can recover for medical expenses until the point of "maximum medical improvement" (MMI) under maintenance and cure, a seaman who is successful in a claim for unseaworthiness can recover both pas t and future medical expenses (including past the point of MMI), loss of past and future physical capabilities, and past and future pain and suffering. In contrast to recovering wages simply until the end of the voyage under maintenance and cure, under unseaworthiness, an injured seafarer can recover lost past wages, plus the loss of future ea rning capacity. Punitive damages for un seaworthiness is currently a hot topic in maritime law. In March of2017, the Supreme Court of the state of Washington held punitive damages available to a seaman who had been awarded compensation for unseaworthiness .5 But other courts h ave ruled to the contrary, which increases the likelihood that this question wi ll have to be resolved by the US Sup reme Court.
Relationship of Unseaworthiness to Maintenance & Cure A n injured seafarer can bring a su it claiming both for maintenance and cure and unseaworthiness (as well as under the Jones Act). If the suit wins recovery under both, some of the medical damages may be awarded under both, and the same may apply to back wages, but double recovery is not permitted. In the next issue of Sea H istory, we' ll take a look at the Jones Act legislation proper and try to make it more understandable to those in the maritime industry to whom it is a vital protection, and to those who hear the term slung around by politicians and others in a way that often leads to confusion. J,
NOTES 1 Hudspeth v. A tlantic & Gulf Stevedores, Inc., 266 F. Supp. 937 (E .D. La. 1967). 2H arden v. Gordon, 11 F.Cas. 48 0, 483, 2 Mason 541 (1823). 3 A tlantic Sounding Co. v. Townsend, 557 US 404 (2009) 4 The Osceola, 189 US 158 (1903). 5 Tabingo v. American Triumph, LLC, et al. , 2017 WL 959551 (Wash . Mar. 9, 2017).
Michael Rauworth's "day job " is as a maritime lawyer, based in Boston. He serves as p resident and board chair of Tall Ships America, and maintains his Coast Guard license as master ofsail, steam, and motor vessels ofany tonnage, with pilotage on the waters ofthree states, and with over 200, 000 sea miles to his credit. H e retiredfrom the US Coast Guard with the rank of Captain, having served as Harbor Defense Commander in Operation Uphold Democracy in Haiti, and in command offive reserve units. 27