by Nate Blevins*

Are plaintiffs who raise hybrid claims for unseaworthiness under the common law of admiralty and negligence under the Jones Act ineligible to obtain prejudgment interest? In this Contribution, Nate Blevins (’19) discusses the interaction of admiralty common law and the Jones Act—along with the Federal Employers Liability Act incorporated therein—that has led to a circuit split on this issue. Ultimately, this Contribution argues that, contrary to the rule in most circuits, a plaintiff who prevails on both counts of a hybrid claim should be eligible for prejudgment interest.

When a seaman is injured at work because their employer’s negligence rendered their vessel unseaworthy, U.S. law provides them with two separate causes of action against their employer: a strict-liability claim for unseaworthiness under the common law of admiralty,2 and a claim for negligence under the Jones Act.3 Plaintiffs may raise both of these causes of action together as “hybrid” claims. In almost all cases where these “hybrid” claims are brought, they are resolved in a single trial by a single jury, even though admiralty cases are typically tried before a judge.4

Under admiralty law, American courts have long enjoyed discretion to award plaintiffs interest on damages for the period between when an injury occurred and the court’s judgment.5 Prejudgment interest—while not traditionally available to non-admiralty plaintiffs—has long been available in admiralty proceedings to “compensat[e] for the loss of use of money due as damages from the time the claim accrues until judgment is entered,” thus serving “the goal of restoring a party to the condition it enjoyed before the injury occurred.”6

Although technically a matter of discretion for the trial court, the law of most circuits only permits the denial of prejudgment interest in admiralty for “exceptional circumstances” such as an unreasonable delay on the part of the plaintiff during litigation.7 Absent such circumstances, however, restoring a party to their condition prior to injury remains the “leading maxim” governing damages in admiralty suits, making awards of prejudgment interest a matter of course.8

Yet not all claims brought by injured seamen are governed by this presumption. The Jones Act, also known as the Merchant Marine Act of 1920, provides that a “seaman injured in the course of employment … may elect to bring a civil action at law, with the right of trial by jury, against the[ir] employer” and further stipulates that the “[l]aws of the United States regulating recovery for personal injury to, or death of, a railway employee apply” to suits brought under the Act.9 The Jones Act thus incorporates by reference the Federal Employers Liability Act (FELA)—the federal statute governing recovery by railway workers for injuries sustained as a result of their employers’ negligence.10

In 1988, the Supreme Court ruled in Monessen Southwestern Railway Company v. Morgan that prevailing plaintiffs—in this case raising FELA, rather than hybrid claims—were ineligible for prejudgment interest under FELA.11 In reaching its conclusion, the Monessen Court noted that no provision of FELA provided for prejudgment interest, nor did any other federal statute governing damages.12 Critically, the majority opinion premised its reliance on Congress’ failure to explicitly provide for prejudgment interest after considering it within the “appropriate historical context.”13 For non-admiralty plaintiffs, like injured railroad workers, prejudgment interest was unavailable as a remedy at common law in personal injury and wrongful death suits when Congress enacted FELA in 1908, and the Court reasoned that the law could not entitle a plaintiff to an otherwise unavailable remedy without doing so explicitly.14

Considering this in light of the “virtual unanimity” among state and federal courts holding that such interest is unavailable, the Court was persuaded that FELA did not sub silentio establish a previously-nonexistent right to claim prejudgment interest.15 Subsequently, some circuit courts have interpreted Monessen’s holding on FELA to mean that prejudgment interest is also barred under the Jones Act.16

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The courts of appeals are currently split over whether an injured plaintiff who prevails on a hybrid claim alleging both negligence under the Jones Act and unseaworthiness under the common law of admiralty may receive prejudgment interest on their combined damages award. The First17 and Second18 circuits have ruled that hybrid plaintiffs will generally be able to recover prejudgment interest, while the Fourth,19 Fifth,20 and Sixth21 circuits hold that the inclusion of the Jones Act claim bars an award of prejudgment interest. The Supreme Court has never spoken directly to prejudgment interest’s availability in hybrid cases where a plaintiff asserts both admiralty law and Jones Act claims.22

The circuits holding prejudgment interest unavailable have premised their conclusion on the Jones Act’s incorporation of FELA and its associated jurisprudence. The Fourth Circuit’s ruling in Martin v. Harris, for instance, relied on Monessen’s interpretation of FELA to deny prejudgment interest to a plaintiff who prevailed in his hybrid claim.23 The opinion acknowledged that the Supreme Court does not “automatically” apply all FELA jurisprudence in the Jones Act context, and has declined to do so where the principle to be applied “is analytically limited to railroads or is otherwise inapposite to the sea.”24 That court nonetheless held that Monessen controlled the outcome and prejudgment interest was unavailable in a hybrid unseaworthiness-Jones Act claim, because “the availability of prejudgment interest, vel non, is not a principle analytically limited to railroads or to the sea.”25

The First Circuit, in contrast, declined to follow the majority of the federal circuits in Nevor v. Moneypenny Holdings, holding that plaintiffs bringing hybrid claims were eligible for prejudgment interest.26 Pointing to prejudgment interest’s “laudable goal of making an injured plaintiff whole[,]” it rejected the “grudging approach” embraced by other courts that “prevent[s] many prevailing plaintiffs from recovering damages generally considered part of their due compensation.”27

Also persuasive was the fact that in order to prevail on a hybrid claim arising from a single event, the plaintiff must prove both that their employer was negligent (thus fulfilling the Jones Act claim) and that this negligence rendered their vessel unseaworthy (thus fulfilling the admiralty claim). The court reasoned that where a jury has found for the plaintiff on both underlying claims, and “the plaintiff is entitled to interest on the unseaworthiness claim, … there is no logical reason why his broader success should strip him of that entitlement.”28

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This Contribution argues that, contrary to the majority of circuits which have ruled on this question, a plaintiff who prevails on both counts of a hybrid claim should be eligible for prejudgment interest. This approach is more consistent with admiralty law’s longstanding recognition of prejudgment interest as essential to a plaintiff’s due compensation, and the Supreme Court’s current precedent on recoverable damages under the Jones Act.

First, admiralty law has traditionally recognized prejudgment interest as an appropriate remedy for seamen. Lower court decisions such as Martin v. Harris incorporated Monessen into Jones Act jurisprudence operating under the (correct) premise that courts must apply FELA precedents unless the holding is “analytically limited to railroads or is otherwise inapposite to the sea.”29 Where the Martin court erred was its application of that premise to prejudgment interest. In that respect, the Court’s holding in Monessen is both analytically limited to railroads and inapposite to the sea.

As discussed above, the Monessen Court reached its conclusion that Congress did not intend for plaintiffs to claim prejudgment interest under FELA in light of the law’s “appropriate historical context,”30 and the specific legal remedies historically available to an injured railroad worker. Prior to FELA’s enactment in 1908, that worker could not claim prejudgment interest, and the law’s silence on the matter was, to the Court, “a sufficiently clear indication of legislative intent with regard to prejudgment interest under the FELA.”31

But seamen, unlike railroad workers, could claim prejudgment interest at common law prior to the enactment of both FELA and the Jones Act. Admiralty courts have awarded prejudgment interests on damages dating almost as far back as the nation’s founding,32 and the Supreme Court has noted that admiralty law shows a “traditional hospitality to prejudgment interest” absent exceptional circumstances.33

This “traditional hospitality” is especially important in light of decades of Supreme Court decisions which have “consistently recognized that the [Jones] Act ‘was remedial, for the benefit and protection of seamen’” and that the law’s “‘purpose was to enlarge that protection, not to narrow it.’”34 If the Jones Act “did not eliminate pre-existing remedies available to seamen” at common law prior to its enactment,35 and prejudgment interest indisputably was such a pre-existing remedy,36 then it follows that the Jones Act does not eliminate prejudgment interest as an available remedy.

Second, the Supreme Court’s most recent ruling on recoverable damages under both admiralty law and the Jones Act lends further credence to this interpretation—that plaintiffs who prevail on both counts of a hybrid claim should be awarded prejudgment interest. The Court has endorsed an expansive, plaintiff-friendly view of the Jones Act’s purpose.

In Atlantic Sounding Company v. Townsend,37 the Supreme Court considered whether a seamen who prevailed on claims for negligence under the Jones Act and an admiralty law claim for maintenance and cure (the right to food, lodging, and medical care from the ship’s owner while at sea) could also claim punitive damages when his employer willfully, wantonly, and negligently withheld needed care.38 The Court held that, although neither FELA nor the Jones Act address the availability of punitive damages, such damages were nonetheless permissible due to their longstanding availability in admiralty.39 The Atlantic Sounding Court explained that Congress enacted the Jones Act provisions governing suits against employers primarily to overturn the Supreme Court’s ruling in The Osceola, which held that there was no common law right of action in admiralty resulting solely from an employer’s negligence.40 As a consequence, the Court held that the Jones Act’s purpose was to “create[] a statutory cause of action for negligence” for injured seamen,  “not [to] eliminate pre-existing remedies available to seamen” at common law.41

Atlantic Sounding emphasized the statute’s characterization of its right of action as one option among multiple legal remedies. The opinion states that seamen may “elect” to bring suit under the Act,42 and the majority inferred that enumerating “the right to ‘elect’ to bring a Jones Act claim[] thereby indicat[es] a choice of actions for seamen—not an exclusive remedy.”43 Given that the alternative remedy lay in admiralty law, “it necessarily follows that Congress was envisioning the continued availability of those common-law causes of action.”44

Put simply, the majority’s view of the interaction between damages available under maritime law and damages available under the Jones Act was straightforward: The Jones Act’s “purpose was to enlarge [the] protection” already offered by the common law of admiralty, “not to narrow it.”45 Where certain forms of damages “have long been an accepted remedy under general maritime law, and [] nothing in the Jones Act altered this understanding[,]” they are available in hybrid suits.46

Although not concerned with prejudgment interest specifically, the reasoning underlying the Court’s decision places it in clear conflict with those circuits which have held that the inclusion of Jones Act negligence as part of a hybrid claim precludes an award of prejudgment interest. Yet under the law of several circuits, asserting a Jones Act claim for negligence as part of a hybrid claim can preclude remedies otherwise available under admiralty law. This application of Monessen’s bar on prejudgment interest awards to hybrid claims turns the Supreme Court’s understanding of the Jones Act on its head, viewing it as a cap to the protection the law will offer to injured seamen, rather than an expansion of already existing legal protections.

Prejudgment interest “ensure[s] that an injured party is fully compensated for its loss” and “helps achieve the goal of restoring a party to the condition it enjoyed before the injury occurred.”47 In light of the Supreme Court’s position that “[f]ull compensation has long been recognized as a basic principle of admiralty law[,]”48 treating a law meant to expand protections for a particularly vulnerable class of workers as a bar to recovering damages long considered part of an injured worker’s due compensation seems a plain distortion of the Jones Act’s most fundamental purposes.

As Justice Story observed nearly two centuries ago, seamen are “liable to sudden sickness from change of climate, exposure to perils, and exhausting labour” and so “courts of maritime law have been in the constant habit of extending towards them a peculiar, protecting favor and guardianship” because they “are emphatically the wards of the admiralty.”49 Although maritime commerce has changed immensely over the past 200 years, the seamen whose work ensures its continued vitality remain nonetheless vulnerable to many of the same perilous risks.50 Granting prejudgment interest is far from a windfall for plaintiffs, nor does it impose unreasonably large liabilities upon defendants; rather, it is simply a means to make the injured party whole.

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Denying prejudgment interest in hybrid claims for Jones Act negligence and common law unseaworthiness is inconsistent with the purpose of the Jones Act, governing Supreme Court precedent, and admiralty courts’ longstanding countenance for the welfare of seamen. Following Atlantic Sounding, courts which have not yet taken up the issue are well-positioned to correctly decide this question of vital importance to the many thousands of seamen injured annually on the job. Indeed, they must do so if they are to fulfill their time-honored role as the “wards of admiralty.”

*  Nate Blevins is a 3L at New York University School of Law. This Contribution is based on the problem posed to the team at the 2017 Robert F. Wagner National Labor and Employment Law Moot Court Competition hosted by New York Law School. The views expressed in this piece do not necessarily reflect the views of the author. Rather, this article is a distillation of one side of the arguments made by the team at the Wagner Competition.

2. See, e.g., Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 258 (1922) (“The vessel and her owner are … liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship[.]”).

3. 46 U.S.C. § 30104.

4. Alvin B. Rubin & David P. King, New Cargo from Old Ports: Recent Significant Maritime Personal Injury Cases, 8 Mar. Law. 1, 21 (1983).

5. City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 194 (1995) (citing admiralty cases which approved awards of prejudgment interest dating back to the 1790s).

6. Id. at 196 (internal citations and quotation marks omitted).

7. David Gray Douglas, The Current Status of the Availability of Prejudgment Interest in Admiralty, 17 Tul. Mar. L.J. 283, 296 (1993) (“In most circuits, courts virtually automatically award prejudgment interest.”).

8. City of Milwaukee, 515 U.S. at 196 (quoting Standard Oil Co. of N.J. v. Southern Pacific Co., 268 U.S. 146, 158 (1925)).

9. 46 U.S.C. § 30104.

10. 45 U.S.C. §§ 51-60.

11. 486 U.S. 330 (1988).

12. Id. at 336.

13. Id. at 337 (“We can discern a sufficiently clear indication of legislative intent with regard to prejudgment interest under the FELA, however, when we consider Congress’ silence on this matter in the appropriate historical context. In 1908, when Congress enacted the FELA, the common law did not allow prejudgment interest in suits for personal injury or wrongful death.”).

14. Id.

15. Id.

16. See, e.g., Martin v. Harris, 560 F.3d 210, 220 (4th Cir. 2009) (“[T]he holding in Monessen that prejudgment interest is not available in [a] FELA case is explicitly incorporated into the Jones Act.”).

17. Nevor v. Moneypenny Holdings, 842 F.3d 113 (1st Cir. 2016).

18. Magee v. U.S. Lines, Inc., 976 F.2d 821 (2d Cir. 1992).

19. Martin v. Harris, 560 F.3d 210 (4th Cir. 2009).

20. Wyatt v Penrod Drilling Co., 735 F.2d 951 (5th Cir. 1984).

21. Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d 732 (6th Cir. 1986).

22. See, e.g., Nevor, 842 F.3d at 116 (noting that “[t]he award of prejudgment interest … [is] a question of first impression within this circuit”).

23. 560 F.3d 210.

24. Id. at 220.

25. Id.

26. 842 F.3d 113.

27. Id. at 124.

28. Id.

29. 560 F.3d 210, 220 (4th Cir. 2009).

30. 486 U.S. at 337.

31. Id.

32. See Del Col v. Arnold, 3 U.S. 333, 334 (1796) (affirming an admiralty award that included 10% interest from the date of a ship’s capture).

33. City of Milwaukee, 515 U.S. at 196.

34. Id. at 417 (quoting The Ariz. v. Anelich, 298 U.S. 110, 123 (1936)).

35. 557 U.S. at 415; see also, e.g., Am. Exp. Lines, Inc. v. Alvez, 446 U.S. 274, 282 (1980) (“Nor do we read the Jones Act as sweeping aside general maritime law remedies.”).

36. See City of Milwaukee, 557 U.S. at 415 (“Throughout our history, admiralty decrees have included provisions for prejudgment interest.”).

37. 557 U.S. 404 (2009).

38. Id. at 407-08.

39. Id. at 414 n.4 (“[T]he pre-Jones Act evidence supports the conclusion that punitive damages were available at common law where the denial of maintenance and cure involved wanton, willful, or outrageous conduct.”).

40. 189 U.S. 158 (1903).

41. 557 U.S. at 415–16.

42. 46 U.S.C. § 30104.

43. 557 U.S. at 416.

44. Id.

45. Id. at 417 (internal quotation marks omitted).

46. Id. at 424.

47. City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 195–96 (1995).

48. Id. at 196.

49. Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823).

50. See, e.g., Rafael Yitzhak Lefkowitz, Incidence of Injury And Illness In Merchant Seafarers, Yale School of Public Health, Public Health Theses (2013), available at http://elischolar.library.yale.edu /ysphtdl/1165 (finding an average incidence of 9.8 injuries per 100 seamen over a four-year sample period).