Introduction
Under American common law, an employer can terminate his at-will employee for good reason, no good reason at all, and even morally wrong reasons.1 This rule was not inherited from the English common law. Instead, it originated in this country and is traceable to an American treatise of the late 1800s.2 The same rule was extended to seamen whose employment, in the absence of a contract providing for a definite term or voyage during which a seaman will be employed, could be terminated by either party at will.3 Courts in admiralty, however, began carving out exceptions to this rule. As discussed below, presently, a seaman who is employed at will is protected against retaliatory discharge in violation of maritime public policy as defined by the case law and maritime statutes.
I. Retaliatory Discharge Under General Maritime Law
In Smith, the court was faced with the question whether a seaman whose at-will employment was terminated because he refused to drop a claim under the Jones Act against his employer, had an action in admiralty for wrongful or retaliatory discharge. Smith, a seaman, suffered an ankle injury while working aboard his employer, Atlas Off-Shore Boat Serv., Inc.'s (Atlas), vessel. After he received treatment and returned to work, Smith informed the Atlas' port captain of his intention to file suit against Atlas under the Jones Act, 46 U.S.C. § 688 (now codified as 46 U.S.C. § 30104). The port captain informed Smith that unless he abandoned his claim he could not return to work for Atlas. When Smith refused to drop the claim, the captain terminated his employment and Smith filed a lawsuit against Atlas under the Jones Act and for retaliatory discharge, a claim presumably based on general maritime law.4 The district court determined that Smith had been intentionally and wrongfully discharged and awarded him $1,000.00 in punitive damages.
Atlas appealed to the United States Court of Appeals for the Fifth Circuit challenging the existence of a cause of action for retaliatory discharge under general maritime law. The Court found public policy reasons justified the recognition of the cause of action, noting that:
The employer should not be permitted to use his absolute discharge right to retaliate against a seaman for seeking to recover what is due him or to intimidate the seaman from seeking legal redress. The right to discharge at will should not be allowed to bar the courthouse door. Nor does the struggle affect only the employer and the seaman. To permit the seaman's discharge because he resorts to the courts may result in casting the burden of the employer's reprisal in part on the public in the form of unemployment compensation or social security for the worker or his family.
The recognition of a cause of action in admiralty providing the seaman with relief from a discharge caused by his filing of a claim against the employer is particularly appropriate in light of the admiralty court's protective attitude towards the seaman. The judiciary's leading role in fashioning controlling rules of maritime law and in reshaping old doctrine to meet changing conditions makes the admiralty court peculiarly sensitive to the inequities inherent in the traditional rule. Moreover, this type of cause of action is not without federal precedent.5
Based on this policy, the Court reaffirmed the rule that a maritime employer may terminate a seaman at will, but concluded that "a discharge in retaliation for the seaman's exercise of his legal right to file a personal injury action against the employer constitutes a maritime tort."6
Relative to the seaman's burden of proof, the Court explained that:
[I]n order to prevail on the retaliatory discharge claim, the seaman must affirmatively establish that the employer's decision was motivated in substantial part by the knowledge that the seaman either intends to file, or has already filed, a personal injury action against the employer. The employer may, on the other hand, defeat the seaman's action by demonstrating that the personal injury action was not a substantial motivating factor for the discharge.7
Furthermore, "[t]he claim . . . may be joined with the seaman's personal injury action under the Jones Act and, like the general maritime law cause of action for unseaworthiness, may be tried to the jury along with the Jones Act claim even in the absence of diversity."8 It should be noted, however, that when the claim is filed in Federal court and is identified as an action brought in admiralty, no right to jury trial exists.9
As far as the extent of damages the seaman is entitled to recover, the Court expressed:
The employer's retaliatory discharge is properly characterized as an intentional tort, entitling the seaman to compensatory damages caused by the abusive firing, including the seaman's expenses of finding new employment, lost earnings while the seaman seeks another position, and lost future earnings if the seaman's new job provides less remuneration than that earned while the seaman was in the employ of the defendant. In addition to these economic losses, the discharged seaman may be entitled to recover compensatory damages for mental anguish that he may suffer as a result of the wrongful discharge. In determining the amount of compensatory damages to which the discharged seaman is entitled, the seaman's duty to mitigate his losses by seeking new employment is also a consideration. Moreover, the seaman is not entitled to double recovery for any element of damages that is compensable both under his personal injury claim and the retaliatory discharge claim. For example, wages lost between the time of injury and the date the seaman undertakes new employment that are recoverable by the seaman on his Jones Act claim may not also be recovered on the claim for retaliatory discharge. The employer should not, however, be further penalized by the inclusion of punitive damages in the seaman's list of items recoverable.10
The Court, thus, reversed the amount of punitive damages awarded by the District Court with instruction on remand to allow evidence on the actual losses suffered by the seaman.11
The viability of a seaman's retaliatory discharge cause of action was tested again in Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983). In Donovan, a seaman (a Coast Guard licensed engineering officer) employed by defendant Texaco Inc. in its deep-sea fleet, complained directly to the United States Coast Guard (USCG) about the condition of the generating equipment on his vessel without first reporting the issue to the Master or the Chief Engineer. The USCG promptly conducted an inspection which revealed no problems with the equipment. Thereafter the seaman told the Chief Engineer that he was the one who had called the USCG. As a result, he was demoted and when he refused to accept the demotion, he was discharged. The seaman complained of retaliation to Occupational Safety and Health Act (OSHA), and an action followed by the then United States Secretary of Labor, Mr. Raymond J. Donovan, against Texaco. Concluding that Donovan lacked jurisdiction to bring the action, the trial judge granted summary judgment for Texaco and Donovan appealed. On appeal, Donovan alleged violation of Section 11(c)(1) of OSHA, which provides that:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act . . . or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.12
The Court of Appeals reiterated its prior decision in Clary v. Ocean Drilling and Exploration Co., 13 where the Court held that the OSHA regulations do not apply to working conditions of seamen on vessels in navigation.14 The Court also found support for this holding in Section 4(b)(1) of OSHA,15 which declares that "[n]othing in this Chapter shall apply to working conditions of employees with respect to which other federal agencies . . . exercise statutory authority . . . ."16 Accordingly, the Court concluded that the seaman could not resort to Section 11(c)(1) of the OSHA to support a claim for retaliatory discharge. Because the argument was not made, the Court in Donovan did not consider the viability of a cause of action for retaliatory discharge under general maritime law based on a seaman's complaints about safety violations.
In Feemster v. BJ-Titan Services Co./Titan Services, Inc., 17 the Court examined whether the termination of a seaman for refusing to violate a safety regulation constituted violation of public policy sufficient to justify a cause of action under general maritime law for retaliatory discharge. Feemster, a tugboat captain who worked for BJ–Titan on the M/V JUNE J pushing barges, was asked to push a barge during an eighteenhour trip without stopping, although BJ–Titan disputed that it forbade stops. Feemster refused to make the trip on the grounds that it was too long to be safely navigated by one person and that it would violate a federal law that generally restricts vessel operation to twelve hours in a twenty-four-hour period.18 When Feemster continued to refuse to accept the assignment, BJ–Titan management discharged him.19 Feemster filed a complaint seeking damages, inter alia, for wrongful discharge under general maritime law. The district court granted summary judgment for BJ–Titan on the grounds that Feemster's complaint failed to assert a cause of action, and Feemster appealed.20 Feemster argued that he had an implied right of action under general maritime law for wrongful discharge for refusal to perform an unlawful act, and that his case was analogous to Smith.
Before considering whether Smith had any application to the case, the Court noted that courts had recognized that, based on public policy considerations, the employmentat-will doctrine could be overridden, "when an employee is discharged for (1) refusal to commit an unlawful act, (2) performance of an important public obligation, or (3) exercise of a statutory right or privilege."21 The Court noted that Smith relied on the third exception to find a cause of action.22 Feemster sought to apply the first exception to his claim, i.e., that he was terminated for refusing to perform an illegal act.23
The Court of Appeals affirmed the District Court concluding that Feemster failed to assert a claim for four reasons. First, public policy considerations were not so clearly implicated as in Smith. In Smith, the plaintiff had a statutory right to bring a personal injury action against his employer and he was discharged in retaliation for exercising that right. In other words, the employer punished Smith for doing what the law explicitly permitted him to do.24 The statute at issue in Feemster, on the contrary, provided him with no personal right to refuse a management directive with which he disagreed, even if it violated the statute. Second, the Court felt it was inappropriate for it to engraft on the statute—a congressional act—an additional provision granting a private cause of action which Congress chose not to give.25 Third, the Court noted that a denial of a legal cause of action to Feemster did not deny him "a voice in the enforcement scheme and the right to claim the benefits of the statute."26 He could still complain of safety violations to the USCG and seek its aid to prevent violations.27 The Court felt that, if Feemster had filed such a complaint and had been fired for doing so, he would have had a stronger argument that his discharge contravened public policy.28 Such a reaction on the part of his employer, the Court concluded, would have been more akin to true retaliation for exercising a given right as it occurred in Smith.29 Finally, the Court felt that the dispute never ripened to the extent that it could support a claim of retaliatory discharge for his refusal to commit an unlawful act because he merely interposed his judgment that a safety violation would occur if he made the trip and he refused the assignment. Because he was discharged, and never embarked on the journey, there was no violation of law and whether the law would have been violated, was, thus, speculative. The Court concluded that "because the discharge arose in the absence of a clear requirement by management that Feemster violate the statute, it [was] difficult to characterize this as a retaliation that offends public policy."30
In Garrie v. James L. Gray, Inc.,31 the Court of Appeals addressed a situation similar to the one presented in Feemster. In Garrie, a seaman named Garrie was asked by his employer to work in excess of twelve hours during twenty-four-hour periods.32 Garrie refused, claiming that doing so would violate 46 U.S.C. § 8104(h).33 Garrie, however, never complained to the Coast Guard about his employer's demands. Instead, without identifying his employer or complaining about it, Garrie merely inquired from the Coast Guard if the regulation regarding maximum working hours was still in effect.34 The Coast Guard informed him that it was.35 A few days later, Garrie informed his employer that the Coast Guard had confirmed his understanding of the applicable maximum working hours and that it was still his intention to refuse to work more than twelve hours per day.36 Two days later Garrie was reassigned to another vessel but less than two weeks after, he was laid off as his employer discontinued the position Garrie had been relocated to.37
Garrie then filed a lawsuit against his employer for alleged retaliatory discharge, in violation of 46 U.S.C. § 21145,38 and general maritime law. The District Court dismissed Garrie's action reasoning that Garrie had failed to establish an exception to the employment at-will doctrine in his case.39 The Court of Appeals affirmed, concluding that merely contacting the Coast Guard to inquire if a statute was still in effect did not satisfy the requirements of Section 2114.40 The Court also rejected Garrie's retaliatory discharge claim under general maritime law noting first that there is no general cause of action for wrongful discharge under maritime law.41 Relying on Feemster, the Court held that Garrie "had no personal right to refuse a management directive with which he disagreed, even if it violated a safety statute."42 Instead, the Court held, his remedy was limited to contact the Coast Guard and request its aid in correcting the violation.43
In Meaige v. Hartley Marine Corp.,44 the United States Court of Appeals for the Fourth Circuit reviewed the District Court's dismissal of a seaman's action for wrongful termination under general maritime law and West Virginia common law. The seaman, Meaige, was ordered by his employer, Hartley, to pilot a tug on a round trip in the Ohio River which sometimes lasted as long as thirty hours and required Meaige to be available around the clock during the entire trip.45 Although Meaige had made the trip on prior occasions, he refused to make it unless a relief crew was made available.46 As a result, Hartley terminated him and Meaige filed a lawsuit for wrongful termination alleging that compliance with Hartley's order required him to operate the tug in excess of the maximum number of hours legally allowed by 46 U.S.C. § 8104(h) in a twenty-four-hour period.47
To view the full article, click here.
Footnotes
1. Smith v. Atlas Off-Shore Boat Serv., Inc., 653 F.2d 1057, 1060 (5th Cir. 1981).
2. Id.; H. G. Wood, Law of Master and Servant 282-86 (2d ed. 1886).
3. Smith, 653 F.2d at. 1060 citing Findley v. Red Top Super Markets, Inc., 188 F.2d 834, 837 n.1 (5th Cir.), cert. denied, 342 U.S. 870 (1951).
4. Id. at 1059.
5. Id. at 1062-63 (internal citations omitted).
6. Id.
7. Id. at 1063-64 (emphasis added).
8. Id. at 1064 (The decision that the retaliatory discharge claim may be presented to a jury that is also expected to hear testimony concerning the plaintiff's physical injury is, according to some, the most significant aspect of the Smith decision. "The danger inherent in this situation is that the charge of abusive firing following an injury, and particularly any evidence supporting the charge, could affect the jury decision as to the personal injury claim itself. Given the reality of such an advantageous position, there may be an incentive to file frivolous suits alleging retaliatory discharge if only to discredit the employer in front of the jury. In some cases, the tactic might serve to increase quantum significantly." See Virginia Boulet, General Maritime Law Provides Seamen Cause of Action for Retaliatory Discharge-Smith v. Atlas Offshore Boat Service, 6 Mar. Law. 295, 299–300 (1981).
9. Gaines v. Ampro Fisheries, Inc., 836 F. Supp. 347, 349 (E.D. Va. 1993); Garrie v. James L. Gray, Inc., 912 F.2d 808, n. 5 (5th Cir.1990) (the seventh amendment guarantee of trial by jury does not apply in admiralty actions).
10. Id.
11. Id. at 1065.
12. 29 U.S.C. § 660(c)(1) (2018).
13. 609 F.2d 1120 (5th Cir.1980).
14. 720 F. 2d at 826.
15. 29 U.S.C.A. § 653(b)(1) (West 2018).
16. Id.; (Donovan and Clary have been criticized in other circuits for failing to draw a distinction between "inspected" and "uninspected" vessels in applying section 4(b)(1) of the OSHA. Inspected and uninspected vessels are each subject to different laws and regulations. Thus, if a seaman is pursuing a personal injury claim, whether under the Jones Act or for unseaworthiness, the vessel where he suffered the injury could make a difference in the regulations the employer was required to follow. There are two main entities that regulate vessels: the OSHA and the U.S. Coast Guard (USCG). A vessel which has applied for and received a Certificate of Inspection from the USCG is known as an "inspected vessel." 46 C.F.R. §§ 2.01-1–2.01-80 et seq. This may apply to passenger, cargo, and tank vessels. If the vessel is an inspected vessel, it is subject to USCG regulations. An "uninspected vessel," on the other hand, means a vessel not subject to inspection under 46 U.S.C. § 3301 – may not be issued a Certificate of Inspection - that is not a recreational vessel. See 46 U.S.C. § 2101 (West). Fishing vessels, tugboats, barges and inland dredges may fall under this class of vessel, which may be subject to OSHA regulations. The Second and Eleventh Circuits have held that OSHA regulations may apply to certain conditions aboard uninspected vessels. For instance, in Donovan v. Red Star Marine Services, 739 F.2d 774 (2d Cir.1984), a case not involving retaliatory discharge claim, the Second Circuit held that the Secretary could regulate noise aboard an uninspected vessel because the noise aboard such a vessel was a working condition not regulated by the USCG. Id., at 779. The court distinguished the Fifth Circuit cases as not dealing directly with working conditions on uninspected vessels and rejected the contention that the Secretary had no jurisdiction over seamen working on uninspected vessels. Id. at 778–79. Similarly, in In re Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11th Cir.1986), another case not involving a retaliatory discharge claim, the Eleventh Circuit distinguished the Fifth Circuit cases, and cited the difference between the USCG's pervasively regulated "inspected" and less regulated "uninspected" vessels. Id. at 1530-31. See also Reich v. Nelson, 843 F. Supp. 20, 24 (E.D. Pa. 1994) ("the Coast Guard has historically viewed its authority to regulate uninspected vessels as limited to the regulation of life-saving and firefighting equipment, backfire flame control, ventilation, the reporting of casualties and the licensing of operators[.]"))
17. 873 F.2d 91 (5th Cir. 1989).
18. See 46 U.S.C. § 8104(h) (2018) ("an individual licensed to operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period except in an emergency.").
19. Feemster, 873 F.2d at 92.
20. Id.
21. Id. at 93 citing Note, Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv. L. Rev. 1931, 1936–37 (1983)).
22. Id.
23. Id.
24. Id
25. Id. ("Congress provided no private right of action for retaliatory discharge. The general purpose of this legislation is to promote maritime safety, but not with employees acting as private enforcers and as private attorneys general; the agent of enforcement is the Coast Guard.").
26. Id.
27. Id. at 94.
28. Id.; Such termination would have been in violation of the Seaman's Protection Act, 46 U.S.C., § 2114(a)(1)(A) (2018), discussed infra.
29. Id.
30. Id. (emphasis added).
31. 912 F.2d at 809.
32. Id.
33. Id. ("On a vessel to which section 8904 of this title applies, an individual licensed to operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period except in an emergency.").
34. Id.
35. Id.
36. Id.
37. Id. at 810.
38. The Seaman's Protection Act of 1984, also known as the federal whistleblower statute, 46 U.S.C. § 2114, is discussed in further detail in "The Seaman's Protection Act" of this chapter.
39. 912 F.2d at 810.
40. Id. at 812-13.
41. Id. at 813 (citing Feemster, 873 F.2d at 93).
42. Id. (quoting Feemster).
43. Id.
44. Meaige v. Hartley Marine Corp., 925 F.2d 700 (4th Cir.1991).
45. Id.
46. Id.
47. Id. at 702.
Originally published by Benedict's Maritime Bulletin.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
