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Recovery of Non-Pecuniary Damages Prohibited Under Jones Act

by Stephen C. Hanemann

The issue of recovery of non-pecuniary damages [1] by a Jones Act seaman is one that often confronts both the seaman’s employer and non-employer third-parties from whom damages are sought. No case set forth a more succinct resolution of this issue than Scarborough v. ClemcoInd., 391 F.3d 660 (5^th Cir. 2004). Under the Fifth Circuit’s holding in Scarborough and its progeny, both Jones Act employers and non-employer third-parties sued by either a seaman or his survivors are able to rest easy knowing that they will not have to pay non-pecuniary damages – at least for now considering that no case has given negative treatment to the Scarborough decision. 

 The United States Supreme Court, interpreting the Jones Act/FELA survival provision limiting a deceased seaman’s recovery to losses suffered during the decedent’s lifetime, unequivocally holds that representatives of a seaman’s estate may not recover non-pecuniary losses. Miles v. APEX Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed. 2d 275 (1990). The Scarboroughcourt’s decision upholds the uniformity principal set forth in Miles by concluding that neither a seaman nor his survivors may recover non-pecuniary damages from either the seaman’s employer or non-employer third-party.

Critics of the Scarborough decision argue that it stepped outside the lines of existing jurisprudential authority by expanding the Miles opinion to address not only Jones Act employers, but also non-employer third-parties. However, as the Scarborough Court stated in its decision, the Miles opinion focuses on the uniformity of damages recoverable by a Jones Act seaman and his survivors, not on the uniformity of the damages to which various defendants might be subjected. Further, the Scarborough decision cites to Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 426, 430 (9^th Cir. 1994), in which the 9^th Circuit states that nothing in Miles’ reasoning suggests that the decision turned upon the identity of the defendant. In fact, not all defendants in Miles were Jones Act employees. Thus, the Fifth Circuit has, at least for now, plainly resolved the issue in favor of the Jones Act employer and non-employer third-parties by limiting recovery of Jones Act seamen and their survivors to pecuniary damages.

[1] Non-pecuniary losses include loss of society, loss of consortium, loss of companionship, loss of love and affection, loss of comfort, grief and mental anguish, loss of future earnings, and punitive damages.  Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed. 275 (1990); In the Matter of Waterman SS Corp., 780 F.Supp. 1093 (E.D. La. 1992). Pecuniary losses include loss of support from past and future earnings, loss of value of household services, loss of nurture and guidance to minor children, and pre-death pain and suffering, if any. Decenteno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 1987 AMC 2462 (5^th Cir. 1986). See also, Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5^th Cir. 1979) (en banc). 

Full post as published by Louisiana Law Blog on February 21, 2008 (boomark / email).