Seaman's Retaliatory Discharge Claims

• Published date: 11 April 2025
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Transport, Health & Safety, Marine/ Shipping, Personal Injury
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Gustavo A. Martinez Tristani

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...