Contributions

Prejudgment Interest in Hybrid Jones Act-Unseaworthiness Claims

by Nate Blevins1

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.

* * * * *

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.”

 

Notes:

1.  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).