Short answer: It depends on where you are.
In Wayman v. Agribusiness, 2018 Va. Cir. LEXIS 64 (Apr. 27, 2018), the Circuit Court of the City of Chesapeake, Virginia held that a Jones Act seaman can recover punitive damages in a general maritime law negligence action against a non-employer third-party. In reaching this conclusion, the court recognized the Eastern District of Louisiana reached the opposite result in Rockett v. Belle Chasse Marine Transp., LLC, 260 F. Supp. 3d 688 (E.D.La. 2017).
According to the Wayman court, the Rockett decision was largely driven by Scarborough v. Clemco Indus., 391 F.3d 660, 668 (5th Cir. 2004), which held “a Jones Act seaman or his survivors cannot recover non-pecuniary damages from a non-employer third-party." But Scarborough was decided before the United States Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), which held punitive damages were available for the willful and wanton disregard of a vessel owner’s obligation to pay maintenance and cure. Nevertheless, the Rockett court recognized that Scarborough was still “good law” in the Fifth Circuit, and ruled accordingly.
The Wayman court also observed that McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014), supposedly “clarified” Scarborough while holding that a seaman could not recover punitive damages for unseaworthiness. Conversely, in Batterton v. Dutra Grp., 880 F.3d 1089 (9th Cir. 2018), the Ninth Circuit declined to follow the Fifth Circuit’s decision in McBride, holding punitive damages are available to a seaman for unseaworthiness under the general maritime law.
While not discussed in Wayman, it is worth noting that the Eastern District of Louisiana has previously held that McBride’s limitation on non-pecuniary damages does not apply to a non-seaman pursuing a personal injury claim. See e.g., Cook v. Kim Susan LLC, 2015 U.S. Dist. LEXIS 16806 (E.D.La. Feb. 11, 2015). Thus, in the Eastern District, a non-seaman was allowed to pursue a claim for punitive damages under the general maritime law, but a seaman could not pursue such a claim against a non-employer (which by necessity could not arise under the Jones Act).
Of course, there is nothing wrong with treating seamen differently from non-seamen. Longshoremen, passengers and seamen have different rights and remedies. But seamen are wards of the court, so one would expect them to receive favored treatment. The Waymancourt noted “the axiomatic proposition that seamen occupy a favored status as the wards of admiralty courts.” 2018 Va. Cir. LEXIS 64, *4, citing Tabingo v. American Triumph, L.L.C., 391 P.3d 434, 440 (Wa. 2017). Since a seaman is the ward of the court, it makes little sense to allow a non-seaman to pursue punitive damages under the general maritime law against a non-employer third-party, but not allow a similar cause of action for a seaman. Of course, this contradiction still exists in the context of wrongful death actions. See e.g., Yamaha Motor Corp., USA v. Calhoun, 516 U.S. 199 (1996) (Allowing non-seafarers to pursue pecuniary and non-pecuniary damages under local wrongful death and survival statutes).
The Wayman court noted that the Jones Act applies only to actions against a seaman’s employer, and Congress has taken no action to limit such damages to seamen’s actions against third parties. In Scarborough, the justification for limiting a seaman’s remedies against a non-employer third-party was the so-called uniformity principal. But the Waymancourt cited Townsend for the proposition that the “laudable quest for uniformity does not require narrowing of damages to the lowest common denominator approved by Congress for distinct causes of action." 2018 Va. Cir. LEXIS 64, *12, citing Townsend, 557 U.S. at 424.
Ultimately, despite previous rulings to the contrary in the Eastern District of Louisiana and from the Fifth Circuit in Scarborough, the Wayman court held “that the recovery of punitive damages is not prohibited in a general maritime law negligence action by a seaman against a third-party non-employer.” 2018 Va. Cir. LEXIS 64, *12.
The Wayman decision is the latest example of inconsistent rulings on the availability of punitive damages under the general maritime law. For what it is worth, it makes little sense to me to allow a non-seafarer to recover punitive damages from a non-employer third party but not allow a seaman -- the proverbial ward of the admiralty court -- to do the same.