By Sean T. McLaughlin

It is well known that a seaman who is injured on the job can file suit against his employer in negligence due to the statutory provisions of the Jones Act. 45 U.S.C.A §§ 30104.  However, in a Jones Act suit, the injured seaman is prohibited from recovering “non-pecuniary” damages from his employer, a category which includes punitive damages and loss of consortium. (1).  This limitation on recoverable damages is due to the language of Jones Act itself. Miles v. Apex, 498 U.S. 19 (1990).

In addition to bringing claims against his employer pursuant to the Jones Act, a seaman injured on the job often also files claims against non-employers. These claims are not dependant on the Jones Act, but rather general maritime law. In this situation, plaintiffs often attempt to recover non-pecuniary damages from the non-employer. Plaintiffs suggest that since there is no specific prohibition against the recovery of non-pecuniary damages in general maritime law, then why should an injured seaman be denied recovering non-pecuniary damages from non-employers?

Although this argument may initially appear to have merit, it is also problematic because it creates non-uniformity of a seaman’s recovery based solely on the employer/non-employer distinction Fortunately, the U.S. Fifth Circuit resolved this dispute in Scarborough v. Clemco, 391 F. 3d 660 (5th Cir. 2004). In Scarborough, the U.S. Fifth Circuit held that a seaman cannot recover non-pecuniary damages from non-employer third parties, even though general maritime law contains no such prohibition.

Although Scarborough was decided by the U.S. Fifth Circuit in 2004, Plaintiffs continually try to ignore it. For example, in Walker v. Rowan Companies, Inc., 2009 WL 2030605 (E.D. La. July 9, 2009), the plaintiff attempted to recover non-pecuniary damages from a non-employer under the general maritime law. In an attempt to avoid the rule of Scarborough, the plaintiff argued that a distinction should be made when the alleged negligence occurred on land, as opposed to at sea. In rejecting the plaintiff’s claim, Judge Engelhardt of the Eastern District of Louisiana noted that it was bound by Scarborough, and that the location of the alleged negligence bore “no significance.” Id. at *2.

Thus, it is highly recommended that non-employer defendants in such lawsuits should attempt to dismiss a plaintiff’s claims for non-pecuniary damages at an early stage by way of a motion for summary judgment. 


 (1) “Non-pecuniary” references non-economic damages, such as loss of enjoyment, etc. Although pain and suffering is certainly non-pecuniary, the Courts have made an exception to the rule for such damages.