RECENT DEVELOPMENTS IN ADMIRALTY AND MARITIME LAW

"7 Following Miles, the court concluded that the widow could not recover punitive, loss of consortium, or other nonpecuniary damages against the defendant under her maritime action for wrongful death.8 In another case confronting post-Townsend non-pecuniary damages, Eduard Perez-Mossetty was injured while aboard a vessel moored in the Mississippi River when an air tank exploded near him.9 Mossetty, his wife, and their "conjugal partnership" filed suit under the Jones Act and general maritime law against Mossetty's employer and against the owner of the landing where the vessel was moored.10 The plaintiffs' claims included loss of consortium, causing the court to examine whether loss of consortium is available to spouses of injured Jones Act seamen.* 11 The plaintiffs argued that the Supreme Court's holding in Townsend permitted recovery of punitive damages because (1) they had long been available under general maritime law; and (2) Congress had not limited their availability, allowing recovery for loss of consortium damages for the general maritime law claims.12 The court held that Townsend's logic did not extend to loss of consortium damages, which were not historically an available remedy under general maritime law, and found plaintiffs' loss of consortium claim was barred by Miles.13 B. McCorpen Defense Recent activity among Jones Act employers has tested the limits of the McCorpen14 defense by seeking declaratory judgments and asserting affirmative claims against seamen for wrongly paid maintenance and cure. For nearly five years, Transocean paid maintenance and cure to Boudreaux for an alleged back injury.17 While defending an action that Boudreaux initiated, Transocean discovered evidence that allowed it to prevail on the basis of McCorpen and end maintenance and cure payments to Boudreaux.18 Transocean then filed a counterclaim against Boudreaux, moving for summary judgment to recover the payments it had already made for maintenance and cure.19 Transocean argued that a successful McCorpen defense gave it an affirmative right of action to recover the maintenance and cure payments.20 The district court agreed and granted summary judgment.21 The Fifth Circuit reversed, finding the shipowner may not recover wrongly paid maintenance and cure by an independent suit seeking affirmative recovery against the seaman.22 "[0]nce a shipowner pays maintenance and cure to [an] injured seaman, the payments [may] be recovered only by offset against the seaman's damag