Petition for Writ of Certiorari — The Dutra Group, Petitioner v. Christopher Batterton
Supreme Court briefAug 30, 2018
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No. 18IN THE
Supreme Court of the United States
THE DUTRA GROUP,
Petitioner,
v.
CHRISTOPHER BATTERTON,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT CERTIORARI
BARRY W. PONTICELLO
RENEE C. ST. CLAIR
ENGLAND, PONTICELLO &
ST. CLAIR
701 B. Street Suite 1790
San Diego, CA 92101
(619) 225-6450
bponticello@eps-law.com
SETH P. WAXMAN
Counsel of Record
PAUL R. Q. WOLFSON
DAVID M. LEHN
CHRISTOPHER ASTA
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
QUESTIONS PRESENTED
Whether punitive damages may be awarded to a
Jones Act seaman in a personal injury suit alleging a
breach of the general maritime duty to provide a seaworthy vessel.
(i)
CORPORATE DISCLOSURE STATEMENT
The Dutra Group is not aware of any parent corporation or any publicly held company that owns 10% or
more of its stock.
(ii)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................ i
CORPORATE DISCLOSURE STATEMENT ............. ii
TABLE OF AUTHORITIES ........................................... v
OPINIONS BELOW .......................................................... 1
JURISDICTION ................................................................. 1
INTRODUCTION .............................................................. 2
STATEMENT ..................................................................... 4
REASONS
FOR
GRANTING
THE
PETITION............................................................................ 7
A. The Decision Below Conflicts With
Numerous
Federal
And
State
Appellate Decisions .............................................. 7
B. The Decision Below is Erroneous..................... 12
1.
Miles And Other Precedents Make
Clear Punitive Damages Are Not
Available In Unseaworthiness
Actions ........................................................... 12
2.
Townsend’s Framework Does Not
Apply To Unseaworthiness Actions ........... 17
3.
Miles Applies To Both Wrongful
Death Actions And Personal
Injury Actions .............................................. 20
C. The Importance Of The Question
Presented Warrants This Court’s
Immediate Review.............................................. 23
CONCLUSION ................................................................. 28
iv
TABLE OF CONTENTS—Continued
Page
APPENDIX A: Opinion of the United States
Court of Appeals for the Ninth Circuit,
dated January 23, 2018 .............................................. 1a
APPENDIX B: Order of the United States
District Court for the Central District of
California denying petitioner’s motion to
strike or dismiss respondent’s claim for punitive damages, dated December 15, 2014 ............ 17a
APPENDIX C: Order of the United States
Court of Appeals for the Ninth Circuit
denying petition for rehearing and rehearing en banc, dated May 2, 2018 ............................... 23a
APPENDIX D: Order of the United States
District Court for the Central District of
California granting in part and denying in
part defedant’s motion to certify interlocuroty appeal and stay proceedings, dated
February 6, 2015 ....................................................... 25a
v
TABLE OF AUTHORITIES
CASES
Page(s)
American Railroad Co. of Porto Rico v.
Didricksen, 227 U.S. 145 (1913) ............................... 14
The Arizona v. Anelich, 298 U.S. 110 (1936) ................. 21
Atlantic Sounding Co. v. Townsend, 557 U.S.
404 (2009) ............................................................ passim
Baltimore Steamship Co. v. Phillips, 274 U.S.
316 (1927) ..................................................................... 16
Bergen v. F/V St. Patrick, 816 F.2d 1345
(9th Cir. 1987).............................................................. 13
Calmar Steamship Corp. v. Traylor, 303 U.S.
525 (1938) ..................................................................... 19
Complaint of Merry Shipping, Inc., 650 F.2d
622 (5th Cir. Unit B July 1981) ................................. 16
Day v. Woodworth, 54 U.S. 363 (1851) ..................... 13, 14
Evich v. Morris, 819 F.2d 256 (9th Cir. 1987) ........... 5, 17
Exxon Shipping Co. v. Baker, 554 U.S. 471
(2008) ............................................................................ 14
Gaither v. Hunter Marine Transportation,
Inc., 990 F.2d 442 (8th Cir. 1993) ............................... 9
Guevara v. Maritime Overseas Corp., 59 F.3d
1496 (5th Cir. 1995)..................................................... 16
Gulf, Colorado, & Santa Fe Railway Co. v.
McGinnis, 228 U.S. 173 (1913).................................. 14
Horsley v. Mobil Oil Corp., 15 F.3d 200
(1st Cir. 1994) ................................................................ 8
vi
TABLE OF AUTHORITIES—Continued
Page(s)
In re Korean Air Lines Disaster of September
1, 1983, 932 F.2d 1475 (D.C. Cir. 1991) .................... 25
In re Marine Sulphur Queen, 460 F.2d 89
(2d Cir. 1972) ............................................................... 16
In re McDonnell-Douglas Corp., 647 F.2d 515
(5th Cir. Unit A 1981) ................................................ 12
Kopczynski v. The Jacqueline, 742 F.2d 555
(9th Cir. 1984).............................................................. 13
Kozar v. Chesapeake & Ohio Railway Co., 449
F.2d 1238 (6th Cir. 1971) ........................................... 14
Lake Shore & Michigan Southern Railway Co.
v. Prentice, 147 U.S. 101 (1893) ................................ 14
The Lottawanna, 88 U.S. 558 (1874) ............................... 26
McAllister v. Magnolia Petroleum Co.,
357 U.S. 221 (1958) ............................................... 16, 18
McBride v. Estis Well Service, LLC, 768 F.3d
382 (5th Cir. 2014), cert. denied, 135 S. Ct.
2310 (2015) .......................................................... passim
McBride v. Estis Well Service, LLC, 853 F.3d
777 (5th Cir. 2017), cert. denied sub nom.
Touchet v. Estis Well Service, LLC, 138 S.
Ct. 644 (2018) ............................................................... 10
Michigan Central Railroad Co. v. Vreeland,
227 U.S. 59 (1913) ....................................................... 14
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) .... passim
Miller v. American President Lines, Ltd.,
989 F.2d 1450 (6th Cir. 1993) ................................ 8, 13
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Moragne v. States Marine Lines, Inc., 398 U.S.
375 (1970) ..................................................................... 22
Pacific Mutual Life Insurance Co. v. Haslip,
499 U.S. 1 (1991) ......................................................... 25
Pacific Steamship Co. v. Peterson, 278 U.S. 130
(1928) .......................................................... 15, 16, 18, 19
Penrod Drilling Corp. v. Williams, 868 S.W.2d
294 (Tex. 1993) .............................................................. 8
Seaboard Air Line Railway v. Koennecke,
239 U.S. 352 (1915) ..................................................... 13
Self v. Great Lakes Dredge & Dock Co.,
832 F.2d 1540 (1987) ............................................... 9, 17
Sky Cruises, Ltd. v. Andersen, 592 So. 2d 756
(Fla. Dist. Ct. App. 1992) ............................................ 9
Tabingo v. American Triumph LLC, 391 P.3d
434 (Wash. 2017), cert. denied, 138 S. Ct.
648 (2018) ....................................................................... 9
Wahlstrom v. Kawasaki Heavy Industries
Ltd., 4 F.3d 1084 (2d Cir. 1993) ................................... 8
Weeks Marine, Inc. v. Garza, 371 S.W.3d 157
(Tex. 2012) ................................................................... 19
Wildman v. Burlington Northern Railroad
Co., 825 F.2d 1392 (9th Cir. 1987)............................. 14
viii
TABLE OF AUTHORITIES—Continued
Page(s)
STATUTORY PROVISIONS
28 U.S.C.
§ 1254 .............................................................................. 2
§ 1292 .............................................................................. 5
§ 1333 ............................................................................ 11
45 U.S.C. § 51 ..................................................................... 21
46 U.S.C. § 30104 ........................................................... 2, 21
OTHER AUTHORITIES
American Maritime Partnership, Frequently
Asked Questions, https://www.americanmari
timepartnership.com/faq/ (visited Aug. 22,
2018) ............................................................................. 23
American Maritime Partnership, What We Do,
https://www.americanmaritimepartnership
.com/about-amp/what-we-do/ (visited Aug.
22, 2018) ....................................................................... 24
Baker, Tom, Transforming Punishment into
Compensation: In the Shadow of Punitive
Damages, 1998 Wis. L. Rev. 211 (1998) .................. 27
Berch, Michael A. & Rebecca White Berch, An
Essay Regarding Gasperini v. Center for
Humanities, Inc. and the Demise of the
Uniform Application of the Federal Rules
of Civil Procedure, 69 Miss. L.J. 715 (1999) ........... 27
Dougherty, Francis M., et al., Maritime Law &
Procedure, 23 Fed. Proc., L. Ed. § 53:52
(West 2018) .................................................................. 12
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Garwood, William L. & Kenneth G. Engerrand,
Recent Developments in Admiralty Law in
the United States Supreme Court, the Fifth
Circuit, and the Eleventh Circuit, 18 Hous.
J. Int’l L. 709 (1996).................................................... 11
Navy League of the United States, America’s
Maritime Industry: The Foundation of
American Seapower, https://navyleague.org/
files/legislativeaffairs/americas-maritimeindustry.pdf (visited Aug. 22, 2018)............. 23, 24, 25
Restatement (Second) of Torts § 908(1) (1979) ............. 14
Sales, James B. & Kenneth B. Cole, Punitive
Damages: A Relic That Has Outlived Its
Origins, 37 Vand. L. Rev. 1117 (1984) ..................... 26
Scheuerman, Sheila B., Two Worlds Collide:
How the Supreme Court’s Recent Punitive
Damages Decisions Affect Class Actions,
60 Baylor L. Rev. 880 (2008) ..................................... 26
Texas Transportation Institute, Center for
Ports
and
Waterways,
A
Modal
Comparison
of
Domestic
Freight
Transportation Effects on the General
Public (Dec. 2007), https://www.marad.dot
.gov/wp-content/uploads/pdf/Phase_II_Rep
ort_Final_121907.pdf ................................................. 24
U.S. Army Corps of Engineers, Inland
Waterway Navigation: Value to the
Nation, http://www.mvp.usace.army.mil/
Portals/57/docs/Navigation/InlandWaterwa
ys-Value.pdf (visited Aug. 22, 2018) ........................ 24
x
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Court of Appeals—Civil and Criminal
Cases Commenced, by Circuit and Nature
of Suit or Offense, During the 12-Month
Period Ending June 30, 2015 (2015), tbl. B-7,
http://www.uscourts.gov/sites/default/files/
b07jun15_0.pdf ............................................................ 11
U.S. Court of Appeals—Civil and Criminal
Cases Commenced, by Circuit and Nature
of Suit or Offense, During the 12-Month
Period Ending June 30, 2017, tbl. B-7 (2017),
http://www.uscourts.gov/sites/default/files/
data_tables/stfj_b7_630.2017.pdf ............................. 11
IN THE
Supreme Court of the United States
No. 18THE DUTRA GROUP,
Petitioner,
v.
CHRISTOPHER BATTERTON,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Dutra Group respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-15a) is
reported at 880 F.3d 1089. The order of the district
court denying petitioner’s motion to strike or dismiss
respondent’s claim for punitive damages (App. 17a-21a)
is available at 2014 WL 12538172.
JURISDICTION
The court of appeals entered judgment on January
23, 2018. App. 1a. A petition for rehearing was denied
2
on May 2, 2018. App. 23a. On June 7, 2018, Justice
Kennedy extended the time for filing a petition for certiorari to August 30, 2018. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
INTRODUCTION
As the court of appeals observed, this case presents
an issue “of considerable importance in maritime law”
that has “divided” the lower courts: whether punitive
damages may be awarded to a seaman in a personal injury suit based on an alleged breach of the general maritime duty to provide a seaworthy vessel. App. 2a. In
the decision below, the Ninth Circuit ruled that punitive damages are available on such a claim. That ruling,
the court recognized, is in direct conflict with a recent
decision of the en banc Fifth Circuit, which held that
punitive damages are not available in unseaworthiness
cases. McBride v. Estis Well Serv., LLC, 768 F.3d 382,
388-391 (5th Cir. 2014), cert. denied, 135 S. Ct. 2310
(2015).
The disagreement between the Fifth and Ninth
Circuits turns largely on how to reconcile this Court’s
decisions in Miles v. Apex Marine Corp., 498 U.S. 19
(1990), and Atlantic Sounding Co. v. Townsend, 557
U.S. 404 (2009). In Miles, the Court unanimously held
that damages for loss of society and lost future income
may not be awarded in an unseaworthiness action under general maritime law. 498 U.S. at 32-33, 36. The
Court stressed that Congress did not authorize either
form of damages in negligence actions under the Jones
Act, 46 U.S.C. § 30104, which provides remedies for
seamen injured or killed in the course of their employment as a result of the employer’s negligence. 498 U.S.
at 32. The Court explained that respect for Congress’s
preeminent role in maritime law required that the
3
scope of recovery under the judge-made action for unseaworthiness—which emerged in its current form as a
strict liability claim in the mid-twentieth century—be
no more expansive than under the remedies Congress
had authorized for negligence in the Jones Act. See id.
at 32-33.
But in Townsend, a closely divided Court held that
punitive damages may be awarded in claims based on
the separate general maritime doctrine of maintenance
and cure.1 The Townsend Court stressed that “[t]he
reasoning of Miles remains sound.” 557 U.S. at 420.
Nonetheless, the Court concluded that Miles did not
control the scope of remedies for maintenance and cure,
which (unlike unseaworthiness) was “well established”
as a claim before the Jones Act was enacted, and which
has “different origins” from and is “independent” of unseaworthiness. Id. at 420, 423. The Court also emphasized that there was a “common-law tradition of punitive damages” in the maritime context before the Jones
Act was enacted, and it found “no evidence that claims
for maintenance and cure were excluded from this general admiralty rule.” Id. at 414-415, 418.
In the decision below, the Ninth Circuit concluded
that Townsend rather than Miles governs punitive
damages in unseaworthiness claims. App. 11a-12a.
Miles, according to the court, precludes only nonpecuniary damages in unseaworthiness actions. But, the
court reasoned, punitive damages are neither pecuniary
1
Maintenance and cure is a general maritime legal duty requiring a vessel owner to provide wages, food, lodging, and medical treatment to a seaman while he is wounded or ill in the service
of the vessel as long as the voyage continues, whether or not the
vessel owner caused the injury or illness. See Townsend, 557 U.S.
at 407-408, 413.
4
nor nonpecuniary, and so Miles does not speak to the
availability of punitive damages. App. 12a-13a. By
contrast, the Fifth Circuit concluded that punitive damages in unseaworthiness claims are precluded by the
reasoning of Miles, which limited damages in unseaworthiness claims to those available for negligence under the Jones Act (which does not authorize punitive
damages), and that Townsend, which concerns the distinct claim for maintenance and cure, is irrelevant to
unseaworthiness actions. See McBride, 768 F.3d at 388391.
The courts of appeals—including two that hear the
most admiralty cases—are thus irreconcilably divided
on whether punitive damages are available in unseaworthiness actions and on how to read this Court’s two
leading recent decisions on remedies in maritime actions. Only this Court can resolve that conflict. Moreover, the decision below is incorrect and has the potential to harm the economy, the environment, and national security. And the division among the lower courts on
this issue undermines the fundamental principle that
maritime law should be uniform across the nation. This
Court’s review is therefore warranted.
STATEMENT
Respondent Batterton alleges that he suffered an
injury while he was employed by petitioner as a Jones
Act seaman. He sued in the United States District
Court for the Central District of California, asserting
three claims (as is typical in lawsuits of this nature):
breach of the duty to provide a seaworthy vessel under
general maritime law, negligence under the Jones Act,
and breach of the duty to provide maintenance and
cure. App. 2a-3a, 18a. He sought punitive damages on
his unseaworthiness claim. App. 18a.
5
Petitioner moved to strike or dismiss respondent’s
punitive damages claim on the ground that punitive
damages are not available in unseaworthiness actions.
The district court denied that motion but certified the
issue for interlocutory appeal under 28 U.S.C. § 1292(b).
App. 21a, 32a.
Recognizing the issue’s “considerable importance in
maritime law,” the Ninth Circuit accepted the interlocutory appeal. App. 2a. The court then affirmed, and
held that punitive damages are “awardable to seamen
for their own injuries in general maritime unseaworthiness actions.” App. 15a. The panel first determined
that the Ninth Circuit had previously answered the
question in Evich v. Morris, 819 F.2d 256, 258 (9th Cir.
1987), a pre-Miles decision holding that punitive damages are available on unseaworthiness claims. App. 3a.
The panel then concluded that this Court’s subsequent
decisions in Miles and Townsend did not change the result, and that it still “would reach the same conclusion
Evich did.” App. 15a.
The court of appeals believed that this case was
controlled not by Miles, which—like this case—
involved an unseaworthiness claim, but by Townsend,
which involved a claim for maintenance and cure, a
cause of action that is not at issue in this petition.
Pointing to this Court’s language in Townsend that
there was a “common-law tradition of punitive damages” in the maritime context before the Jones Act was
enacted, 557 U.S. at 414, the court of appeals found “no
persuasive reason to distinguish maintenance and cure
actions from unseaworthiness actions with respect to
the damages awardable.” App. 4a-5a, 14a.
In contrast, the court of appeals deemed Miles irrelevant. Miles, it noted, “did not address punitive
6
damages,” and the court found it “not apparent why
barring damages for loss of society should also bar punitive damages.” App. 10a, 13a. Despite the extensive
discussion in Miles about the need to conform remedies
under the judge-made unseaworthiness action to those
available under the Jones Act, see 498 U.S. at 32-33, the
court read Miles to concern only the narrow question
whether compensatory damages for unseaworthiness
extend to nonpecuniary loss or are limited to pecuniary
loss. App. 12a-15a. Because punitive damages “are not
compensation for loss at all,” the court concluded that
Miles was inapposite. App. 14a-15a.
The court of appeals expressly rejected the contrary conclusion of the en banc Fifth Circuit in McBride,
which relied on the reasoning of Miles to conclude that
punitive damages may not be awarded for unseaworthiness claims. 768 F.3d at 388-391. The court
acknowledged that the majority and concurring opinions in McBride were “scholarly and carefully reasoned,” but nonetheless found the dissenting opinions
“more persuasive.” App. 14a. In particular, the court
believed that the historical rationales for limiting remedies for wrongful death—which, it believed, had been
at issue in Miles—were inapplicable in personal injury
suits like this one. App. 10a-11a. Moreover, according
to the court, “[t]he purposes of punitive damages, punishment and deterrence, apply equally” to both unseaworthiness and maintenance and cure. App. 14a (footnote omitted). Thus, the court concluded, “unless Congress legislates on the matter,” the availability of punitive damages in unseaworthiness actions is “clearly established.” App. 14a-15a.
7
REASONS FOR GRANTING THE PETITION
The decision below—holding that punitive damages
may be awarded in a personal injury case brought under the general maritime doctrine of unseaworthiness—conflicts with decisions of several other appellate
courts, most notably that of the en banc Fifth Circuit.
The decision also cannot be reconciled with this Court’s
decision in Miles v. Apex Marine Corp., 498 U.S. 19
(1990), which held that the damages available in unseaworthiness cases may not exceed the damages Congress allowed when it comprehensively addressed remedies for seamen in the Jones Act. And the decision is
deeply troubling as a matter of maritime policy; it
threatens to deter productive economic activity, jeopardize national security, and render maritime law incoherent, in an area where uniformity is of fundamental
importance. This Court should therefore grant review.
A. The Decision Below Conflicts With Numerous
Federal And State Appellate Decisions
1. In Miles, this Court held that a seaman asserting an unseaworthiness claim cannot recover damages
for loss of society and that a seaman’s estate cannot recover his lost future income. 498 U.S. at 30, 32-33, 36.
Essential to the Court’s decision was its recognition
that it “sail[s] in occupied waters.” Id. at 36. Whereas
seamen and their loved ones once had to “look primarily
to the courts as a source of substantive legal protection
from injury and death,” “[m]aritime tort law is now
dominated by federal statute.” Id. at 27, 36. Thus, the
Court stated, “an admiralty court should look primarily
to these legislative enactments for policy guidance,”
and “must … keep strictly within the limits imposed by
Congress.” Id. at 27.
8
Given those limits on the courts’ institutional role
in fashioning maritime tort remedies, the Court concluded that any “limit” on damages that Congress has
judged appropriate for negligence claims under the
Jones Act “forecloses more expansive remedies in a
general maritime action founded on strict liability”—
i.e., unseaworthiness. Miles, 498 U.S. at 31, 36. Indeed,
the Court observed, “[i]t would be inconsistent with our
place in the constitutional scheme were we to sanction
more expansive remedies in a judicially created cause
of action in which liability is without fault”—again referring to unseaworthiness—than Congress has allowed in cases resulting from negligence under the
Jones Act. Id. at 32-33. Because the Jones Act permits
recovery only for pecuniary loss in negligence actions,
the Court held that the Act “precludes” a seaman from
recovering for non-pecuniary loss—such as loss of society and lost future income—in claims for unseaworthiness as well. Id. at 32 (“The Jones Act … precludes recovery for loss of society in this case.”); id. at 36 (“Because [the seaman’s] estate cannot recover for his lost
future income under the Jones Act, it cannot do so under general maritime law.”).
2. The court of appeals’ ruling that punitive damages are available in unseaworthiness actions deepens
and solidifies a split between appellate courts.
Until recently, federal and state appellate courts
had consistently recognized that this Court’s reasoning
in Miles precludes punitive damages in unseaworthiness actions. See McBride, 768 F.3d at 388-389; Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (1st Cir. 1994);
Miller v. American President Lines, Ltd., 989 F.2d
1450, 1455, 1457-1459 (6th Cir. 1993); Wahlstrom v.
Kawasaki Heavy Indus. Ltd., 4 F.3d 1084, 1094 (2d Cir.
1993); Penrod Drilling Corp. v. Williams, 868 S.W.2d
9
294, 296-297 (Tex. 1993); Sky Cruises, Ltd. v. Andersen,
592 So. 2d 756, 756 (Fla. Dist. Ct. App. 1992) (per curiam).2
That consensus was undone last year when the
Washington Supreme Court ruled that “a seaman making a claim for general maritime unseaworthiness can
recover punitive damages as a matter of law.” Tabingo
v. American Triumph LLC, 391 P.3d 434 (Wash. 2017),
cert. denied, 138 S. Ct. 648 (2018). The Ninth Circuit
has now joined the Washington Supreme Court in rejecting the contrary, and previously uniform, view of
appellate courts on that issue.
In McBride, the Fifth Circuit comprehensively reviewed the availability of damages in maritime cases
and concluded that punitive damages are not available
in unseaworthiness actions. McBride, 768 F.3d at 389390; see also id. at 391-401 (Clement, J., concurring); id.
at 401-404 (Haynes, J., concurring).3 As the Fifth Cir2
But cf. Gaither v. Hunter Marine Transp., Inc., 990 F.2d
442, 442 (8th Cir. 1993) (per curiam) (without analyzing the question, affirming jury verdict apparently awarding “punitive damages” for claim based on unseaworthiness). A few decisions predating Miles, such as the Ninth Circuit’s earlier decision in Evich and
the Eleventh Circuit’s decision in Self v. Great Lakes Dredge &
Dock Co., 832 F.2d 1540 (1987), held that punitive damages were
available in unseaworthiness actions, but those decisions cannot
survive Miles and would conflict with the Fifth Circuit’s decision
in McBride and other appellate decisions. See p.16 n.10, infra.
3
Judge Davis’s opinion expressed the view of nine of the fifteen judges on the en banc court that punitive damages may not
be awarded in unseaworthiness actions. See McBride, 768 F.3d at
384-391 (Davis, J.); see also id. at 391 (Clement, J., joined by Jolly,
Jones, Smith, and Owen, JJ., concurring); id. at 401 (Haynes, J.,
joined by Elrod, J., concurring). Although two of the concurring
judges perceived a possible distinction between wrongful death
cases and personal injury cases, they concurred in the en banc
10
cuit explained, Miles rather than Townsend provides
the most direct guidance on that question. Miles instructs that courts considering a remedy in unseaworthiness cases should look to whether Congress has authorized that remedy in the Jones Act. See id. at 387390. Townsend did not disturb that understanding; indeed, “[t]he Court [in Townsend] could not have been
clearer in signaling its approval of Miles when it added:
‘The reasoning of Miles remains sound.’” Id. at 390
(quoting Townsend, 557 U.S. at 420). Townsend expressly distinguished claims for maintenance and cure,
which were at issue there, from claims for unseaworthiness, which were at issue in Miles (and are at issue
in this case): Whereas “the maintenance and cure right
is ‘in no sense inconsistent with, or an alternative of,
the right to recover compensatory damages under the
Jones Act,’” “the [Jones Act] negligence/unseaworthiness actions are alternative, overlapping actions derived from the same accident and look toward the same
recovery.” Id. at 389 & n.36 (quoting Townsend, 557
U.S. at 423) (brackets omitted).
Thus, the Fifth Circuit concluded that the available
remedies must be assessed by reference to the particucourt’s affirmance of the dismissal of all of the punitive damages
claims in that case, and they expressly rejected the dissenters’
submission that punitive damages should be available in personal
injury cases based on an unseaworthiness claim. See id. at 402, 404
(Haynes, J., concurring). They also observed that the arguable
“tension … between (at least) two Supreme Court precedents” can
be “definitive[ly] resol[ved]” only by this Court. Id. at 404. A
subsequent panel in the same case confirmed that the en banc decision “foreclosed” the claims for punitive damages in personal
injury unseaworthiness actions (and in negligence actions under
the Jones Act). McBride v. Estis Well Serv., LLC, 853 F.3d 777,
780 n.1 (5th Cir. 2017), cert. denied sub nom. Touchet v. Estis Well
Serv., 138 S. Ct. 644 (2018).
11
lar cause of action at issue, and that Miles remains undisturbed as the controlling precedent for unseaworthiness actions. Contrary to that analysis, the Ninth
Circuit here thought the assessment of available remedies is divorced from the cause of action and thus concluded that Townsend—which involved punitive damages but not unseaworthiness—provides the governing
framework. That disagreement between the Fifth and
Ninth Circuits is especially significant because of the
Fifth Circuit’s leading role in adjudicating admiralty
law (by a wide margin).4
Given the division between the Ninth Circuit and
the Washington Supreme Court on the one hand, and
the Fifth Circuit and several other circuits and state
appellate courts on the other hand, the availability of
punitive damages in unseaworthiness cases will often
turn on the happenstance of where suit is brought.5
4
See, e.g., U.S. Court of Appeals—Civil and Criminal Cases
Commenced, by Circuit and Nature of Suit or Offense, During the
12-Month Period Ending June 30, 2017, tbl. B-7 (2017),
http://www.uscourts.gov/sites/default/files/data_tables/stfj_b7_630
.2017.pdf (17 of 33 cases involving “marine injury” were appealed
to the Fifth Circuit); U.S. Court of Appeals—Civil and Criminal
Cases Commenced, by Circuit and Nature of Suit or Offense, During the 12-Month Period Ending June 30, 2015 (2015), tbl. B-7,
http://www.uscourts.gov/sites/default/files/b07jun15_0.pdf (21 of
39 cases involving “marine injury” were appealed to the Fifth Circuit); Garwood & Engerrand, Recent Developments in Admiralty
Law in the United States Supreme Court, the Fifth Circuit, and
the Eleventh Circuit, 18 Hous. J. Int’l L. 709, 710 (1996) (“the Fifth
Circuit continues to deal with the greatest number of admiralty
cases”).
5
A seaman bringing an unseaworthiness claim under general
maritime law can choose to file in federal court invoking federal
admiralty jurisdiction under 28 U.S.C. § 1333, or in state court
under the “saving to suitors” clause of Section 1333. In admiralty,
venue is proper in any court that has personal jurisdiction over the
12
This Court should grant review to resolve the lower
courts’ disagreement on this important issue and avoid
such an arbitrary and inconsistent regime.
B. The Decision Below is Erroneous
1. Miles And Other Precedents Make Clear
Punitive Damages Are Not Available In
Unseaworthiness Actions
The resolution of the question presented is
straightforward: Punitive damages are not available in
unseaworthiness actions by seamen. This Court’s decisions in Miles and other cases lead inexorably to that
conclusion.
In Miles, this Court held that any “limit” that Congress has placed on damages in a negligence action under the Jones Act “forecloses more expansive remedies
in a general maritime action founded on strict liability,”
i.e., unseaworthiness. 498 U.S. at 36. The Court
stressed that, were it “to sanction more expansive remedies” in the “judicially created cause of action” for unseaworthiness than Congress has sanctioned for claims
of negligence under the Jones Act, it would step outside
its proper “place in the constitutional scheme.” Id. at
32-33.6 Thus, the Court ruled in Miles that, because
Congress had not authorized damages for loss of sociedefendant. See In re McDonnell-Douglas Corp., 647 F.2d 515, 516
(5th Cir. Unit A 1981); Dougherty et al., 23 Fed. Proc., L. Ed. §
53:52 (West 2018).
6
See also 498 U.S. at 24 (“Congress, in the exercise of its legislative powers, is free to say ‘this much and no more.’ An admiralty court is not free to go beyond those limits.”); id. at 27 (“Congress retains superior authority in these matters, and an admiralty court must be vigilant not to overstep the well-considered
boundaries imposed by federal legislation.”).
13
ty and lost future earnings for negligence actions under
the Jones Act, the courts also should not award such
remedies under the judge-made claim for unseaworthiness. See id. at 32-33, 36.
The same is true of punitive damages. It is well
settled that punitive damages are not available in negligence actions brought under the Jones Act. As the
Fifth Circuit has explained, “no cases have awarded
punitive damages” under the nearly century-old Jones
Act. McBride, 768 F.2d at 388; see Miller, 989 F.2d at
1457; Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347
(9th Cir. 1987); Kopczynski v. The Jacqueline, 742 F.2d
555, 560-561 (9th Cir. 1984). Under Miles, therefore,
punitive damages also should not be awarded for unseaworthiness claims.
In Miles, the Court determined that the Jones Act
precludes awards of loss of society and lost future earnings by looking to the remedies authorized under the
Federal Employers Liability Act (“FELA”), which the
Jones Act incorporates “unaltered.” Miles, 498 U.S. at
32. As with loss of society and lost future earnings, punitive damages are not available under FELA. This
Court held as much in Seaboard Air Line Railway v.
Koennecke, 239 U.S. 352, 354 (1915), when the Court
reviewed a wrongful death complaint brought by heirs
of a railroad worker that was ambiguous as to the
source of the cause of action, and observed that “[i]f
[the complaint] were read as manifestly demanding exemplary damages” (i.e., punitive damages), “that would
point to the state law” rather than FELA as the basis
for the claim.7 Courts of appeals have consistently
7
The terms “‘exemplary, punitive, [and] vindictive’” damages
are synonymous. See Townsend, 557 U.S. at 410 (quoting Day v.
Woodsworth, 54 U.S. 363, 371 (1851)).
14
reached the same conclusion: Punitive damages are not
available under FELA. See Wildman v. Burlington N.
R.R. Co., 825 F.2d 1392, 1395 (9th Cir. 1987); Kozar v.
Chesapeake & Ohio Ry. Co., 449 F.2d 1238, 1240 (6th
Cir. 1971).
In FELA and the Jones Act, Congress limited recovery to compensatory damages. See, e.g., Gulf, Colo.,
& Santa Fe Ry. Co. v. McGinnis, 228 U.S. 173, 175
(1913) (“The recovery [under FELA] must … be limited to compensating those relatives … as are shown to
have sustained some pecuniary loss.”); Michigan Cent.
R.R. Co. v. Vreeland, 227 U.S. 59, 65, 69-71 (1913)
(FELA provides “only for compensation for pecuniary
loss”); American R.R. Co. of Porto Rico v. Didricksen,
227 U.S. 145, 149 (1913) (“The damage [under FELA] is
limited strictly to the financial loss thus sustained”).
As this Court has recognized since before FELA was
enacted, punitive damages are not compensatory damages. See Lake Shore & Mich. S. Ry. Co. v. Prentice,
147 U.S. 101, 107 (1893) (“Exemplary or punitive damages [are] awarded, not by way of compensation to the
sufferer, but by way of punishment of the offender, and
as a warning to others ….”).8 Miles instructs that the
same limitation should apply to unseaworthiness
8
See also Exxon Shipping Co. v. Baker, 554 U.S. 471, 490-493
(2008) (explaining that historically and today, “punitives are aimed
not at compensation but principally at retribution and deterring
harmful conduct,” and are “separate and distinct from compensatory damages”); Day, 54 U.S. at 371 (describing “exemplary” damages as stemming from “‘the enormity of [the] offense rather than
the measure of compensation to the plaintiff’” (alteration in original)); Restatement (Second) of Torts § 908(1) (1979) (“Punitive
damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous
conduct and to deter him and others like him from similar conduct
in the future.” (emphasis added)).
15
claims, and so punitive damages are also not available
on such claims.
The court of appeals recognized that punitive damages “are not compensation for loss at all,” see App. 14a,
but it misunderstood the significance of that fact to this
case. In the court’s view, Miles is irrelevant here because that decision addressed only the types of compensatory damages available in unseaworthiness actions—pecuniary, or also nonpecuniary—and did not
consider punitive damages at all. See App. 12a-15a.
But that crabbed reading of Miles improperly divorces
the result in that case from its fundamental rationale.
In Miles, this Court stressed over and over that due
regard for Congress and for the Judiciary’s proper constitutional role requires the courts to limit remedies for
unseaworthiness claims to those authorized by Congress in the Jones Act. See 498 U.S. at 32-33, 36. Nothing in Miles limits that reasoning to distinguishing
among the kinds of compensatory damages that are
available, or suggests that courts may freely award punitive damages in unseaworthiness cases even though
Congress has precluded punitive damages for Jones
Act negligence claims, to which unseaworthiness claims
are closely connected.
Indeed, decades before Miles, this Court observed
that the remedies available for unseaworthiness claims
are coextensive with those available for Jones Act negligence claims, and that the remedies for both types of
claims are limited to compensatory damages. In Pacific Steamship Co. v. Peterson, 278 U.S. 130 (1928), the
Court emphasized the close relation between unseaworthiness claims and Jones Act negligence claims
when it explained that “[t]he right to recover compensatory damages under the new rule for injuries caused
by negligence [i.e., the Jones Act] is … an alternative of
16
the right to recover indemnity under the old rules [i.e.,
general maritime law] on the ground that the injuries
were occasioned by unseaworthiness.” Id. at 138 (emphasis added). Therefore, the Court stressed, “whether
or not the seaman’s injuries were occasioned by the unseaworthiness of the vessel or by the negligence of the
master or members of the crew [under the Jones Act],
or both combined, there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong, for which he is entitled to but one indemnity by way of compensatory damages.” Id. (emphasis added).9 And in Townsend, the Court reaffirmed
its prior recognition that unseaworthiness is “‘an alternative of[] the right to recover compensatory damages
under the Jones Act.’” 557 U.S. at 423 (quoting Peterson, 278 U.S. at 138).10
9
See also McAllister v. Magnolia Petroleum Co., 357 U.S.
221, 225 (1958) (unseaworthiness and Jones Act negligence are
“alternative ‘grounds’ of recovery for a single cause of action” (citing Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927))).
10
A handful of pre-Miles appellate decisions indicated that
punitive damages could be available for claims of unseaworthiness.
The leading decisions to that effect were In re Marine Sulphur
Queen, 460 F.2d 89 (2d Cir. 1972), and Complaint of Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B July 1981). As Judge
Clement explained in McBride, those cases failed to account for
the Court’s emphasis in cases such as Peterson on the close connection between Jones Act negligence and unseaworthiness, and
relied on older cases that did not involve unseaworthiness. 768
F.3d at 395-401 (Clement, J., concurring). Further, Merry Shipping and similar decisions relied on cases indicating that loss of
society damages were available in unseaworthiness claims—a
premise specifically rejected by this Court in Miles. See 650 F.2d
at 624-625. The Fifth Circuit has therefore properly determined
that Miles “effectively overruled” Merry Shipping. See Guevara
v. Maritime Overseas Corp., 59 F.3d 1496, 1507 (5th Cir. 1995),
abrogated by Townsend on other grounds, 557 U.S. 504. Other
17
The court of appeals thought it could not read
Miles to foreclose punitive damages in unseaworthiness
actions because this Court had stated in Miles, “The
Jones Act evinces no general hostility to recovery under maritime law. It does not disturb seamen’s general
maritime claims for injuries resulting from unseaworthiness.” 498 U.S. at 29, quoted in App. 9a. But that
passage in Miles did not concern the scope of remedies
for unseaworthiness claims; it was addressed to the
available causes of action. That remark was made in
the Court’s discussion of whether to recognize a cause
of action for wrongful death based on unseaworthiness,
not in its later analysis of whether to permit recovery
for nonpecuniary loss in such actions. See 498 U.S. at
29. The Court did recognize the wrongful death action—but separately, it also refused to allow damages
for nonpecuniary loss because such damages are not
available for Jones Act negligence. See id. at 29-30.
Nothing in Miles supports the decision below; to the
contrary, Miles makes clear that the court of appeals
erred.
2. Townsend’s Framework Does Not Apply
To Unseaworthiness Actions
The court of appeals read Townsend to hold that
punitive damages should be available for all maritime
claims unless Congress has affirmatively withdrawn
them as a remedy. App. 14a-15a. That decision reflects
a profound misunderstanding of Townsend—including
its express reaffirmance of Miles as “sound,” 557 U.S.
at 420. Miles and Townsend make clear that the remedies available for general maritime claims depend on
cases following Merry Shipping are similarly flawed. See Evich,
819 F.2d at 258; Self, 832 F.2d at 1550.
18
the particular cause of action—and especially on the
understanding that Congress has limited the remedies
for cognate causes of action. Compare Miles, 498 U.S.
at 32 (stressing that Congress had limited remedies for
Jones Act negligence), with Townsend, 557 U.S. at 419
(noting that Congress had not addressed remedies for
maintenance and cure).
The Court in Townsend addressed only punitive
damages in maintenance and cure actions and expressly
distinguished its ruling on unseaworthiness actions in
Miles. 557 U.S. at 420. There are several reasons why
the remedies available for the two causes of action
might differ. First, unseaworthiness is a twin of Jones
Act negligence, but maintenance and cure is not. As
the Court in Townsend explained, unseaworthiness is
“‘an alternative of[] the right to recover compensatory
damages under the Jones Act,’” such that “the seaman
may have … one of the … two.” Townsend, 557 U.S. at
423-424; see Peterson, 278 U.S. at 138 (Jones Act negligence is “an alternative of the right to recover indemnity … [for] unseaworthiness”); McAllister, 357 U.S. at
225 (unseaworthiness and Jones Act negligence are “alternative ‘grounds’ of recovery for a single cause of action”). Both unseaworthiness and Jones Act negligence
claims may be brought to redress a seaman’s personal
injury or death occurring in the scope of his employment.
In contrast, “the maintenance and cure right is ‘in
no sense inconsistent with, or an alternative of, the
right to recover compensatory damages under the
Jones Act,’” and thus “the seaman may have maintenance and cure and” a Jones Act negligence (or unseaworthiness) recovery. Townsend, 557 U.S. at 423-424
(quoting Peterson, 278 U.S. at 138) (emphasis added).
Indeed, maintenance and cure is not even a tort but ra-
19
ther is a “contractual right.” Peterson, 278 U.S. at 139;
see also Weeks Marine, Inc. v. Garza, 371 S.W.3d 157,
163 (Tex. 2012).
Second, the judicial origins of the contemporary
theory of unseaworthiness liability are quite different
from the origins of maintenance and cure—a point
stressed by this Court in Miles. More than two decades
after the Jones Act was enacted, unseaworthiness underwent a “revolution” in which “this Court transformed the warranty of seaworthiness into a strict liability obligation.” Miles, 498 U.S. at 25-26 (quotation
marks omitted). “As a consequence of this radical
change, unseaworthiness” went from “an obscure and
relatively little used remedy” to “the principal vehicle
for recovery by seamen for injury or death.” Id. at 2526 (quotation marks omitted). After that dramatic
broadening of the doctrine of unseaworthiness, this
Court deemed it “inconsistent with [its] place in the
constitutional scheme” to extend unseaworthiness yet
further, and “to sanction more expansive remedies” for
unseaworthiness than Congress did for negligence under the Jones Act. Id. at 32-33; see also McBride, 768
F.3d at 399-401 (Clement, J., concurring).
Again in contrast, the doctrine of maintenance and
cure has not undergone a “revolution.” Miles, 498 U.S.
at 25 (quotation marks omitted). Rather, “the legal obligation to provide maintenance and cure dates back
centuries.” Townsend, 557 U.S. at 413. A “seaman’s
right to maintenance and cure is ‘ancient,’” McBride,
768 F.3d at 393 (Clement, J., concurring) (quoting
Calmar S.S. Corp. v. Traylor, 303 U.S. 525, 527 (1938)),
and “has remained unchanged in substance for centuries,” McBride, 768 F.3d at 415 (Higginson, J., dissenting).
20
Those differences led this Court to conclude in
Townsend that the congressional remedial judgments
embodied in the Jones Act did not foreclose the courts
from awarding punitive damages in claims for maintenance and cure. But unseaworthiness and Jones Act
claims remain as closely connected as they were before,
and the reasoning in Miles cannot be confined to any
specific remedy. Thus, allowing punitive damages in
unseaworthiness actions when Congress has foreclosed
them in negligence actions—as with allowing nonpecuniary damages for lost society or lost income—would go
“well beyond the limits of Congress’s ordered system of
recovery.” Miles, 498 U.S. at 36.11
3. Miles Applies To Both Wrongful Death
Actions And Personal Injury Actions
The court of appeals also suggested that the limits
on remedies for unseaworthiness claims that this Court
recognized in Miles apply only to wrongful death actions, and not personal injury suits like this case. The
court believed that the “limitations” on recovery under
the Jones Act are “based on the restrictive recoveries
permitted for wrongful death,” which “have no application to general maritime claims by living seamen for injuries.” App. 14a. That reading of Miles is plainly
wrong.
The central holding of Miles is that the courts may
not expand the scope of recovery for the judge-made
action of unseaworthiness beyond what Congress has
allowed for negligence under the Jones Act. See 498
11
Even under the Townsend framework, however, punitive
damages would not be available here; as Judge Clement explained
in McBride, there is no tradition of recognizing punitive damages
in unseaworthiness actions. 768 F.3d at 395-399.
21
U.S. at 22-23, 32-33. That holding is not limited to
wrongful death cases. To the contrary, the Court noted
in Miles that “[t]he Jones Act provides an action in negligence for the death or injury of a seaman.” Id. at 29
(emphasis added).12 The separation of powers concerns
that animated the Court’s analysis do not depend on
whether the action is for death or injury. This Court
said so in Miles itself: “We will not create, under our
admiralty powers, a remedy … that goes well beyond
the limits of Congress’ ordered system of recovery for
seamen’s injury and death.” Id. at 36 (emphasis added).13
The “constitutional mandate” to achieve “uniform”
maritime law—which this Court heeded in Miles, both
in recognizing wrongful death actions and in disallowing recovery for loss of society and survival rights in
unseaworthiness actions, see 498 U.S. at 27, 29-30, 33,
35, 37—also precludes recognition of punitive damages
for personal injury claims based on unseaworthiness.
Reading Miles to reach only wrongful death claims
would make a crazy quilt of remedies for seamen’s injuries. As discussed, the Jones Act disallows punitive
damages based on negligence in both personal injury
and wrongful death actions. See pp. 12-14, supra. Al12
See 46 U.S.C. § 30104 (“A seaman injured in the course of
employment or, if the seaman dies from the injury ….”).
13
FELA, which the Jones Act incorporates, also provides
remedies for an employee’s personal injury or death. See 45
U.S.C. § 51 (“Every common carrier by railroad while engaging in
commerce … shall be liable in damages to any person suffering
injury ….” (emphasis added)); The Arizona v. Anelich, 298 U.S.
110, 118 (1936) (“the Federal Employers’ Liability Act, thus incorporated in the Jones Act by reference, gives a right of recovery
for the injury or death of an employee of a common carrier by rail”
(emphasis added)).
22
lowing recovery of punitive damages for unseaworthiness (but not negligence) if a seaman was injured (but
not killed) would create serious “anomalies” in maritime law. Miles, 498 U.S. at 26.
There is no justification for such anomalies. In the
nineteenth century, personal injury claims and wrongful death actions may have followed different paths of
development, but this Court long ago rejected those
happenstances of legal history as a guide to the maritime remedies that should be available today. The ancient common law rule permitting suit based on personal injury but not death “had little justification except in primitive English legal history,” and “it is difficult to discern an adequate reason for its extension to
admiralty.” Moragne v. States Marine Lines, Inc., 398
U.S. 375, 379, 381 (1970). This Court therefore jettisoned the old rule and recognized wrongful death actions under general maritime law because “there is no
present public policy” to treat death differently from
injury in this context—a judgment Congress also
reached in the Jones Act. Id. at 382-383, 388-390; id. at
405 (old “rule … produces different results for breaches
of duty in situations that cannot be differentiated in
policy”); see Miles, 498 U.S. at 27-30.
The Court has consistently recognized the importance of adopting “a uniform rule” of recovery for
injuries under maritime law. Miles, 498 U.S. at 33. It
would be strange for the more serious penalty (punitive
damages) to be available only for the less serious result
(injury). That would be stranger still given that sometimes a seaman’s death may occur long after the accident, when the full effects of the injury are finally felt.
A plaintiff’s entitlement to punitive damages, and a
vessel owner’s liability for them, should not shift and
23
spring depending on the vagaries of whether a particular seaman eventually dies of his injuries.
C. The Importance Of The Question Presented
Warrants This Court’s Immediate Review
This case presents an important question of federal
law warranting this Court’s review. The court of appeals’ decision will have serious and adverse consequences for the maritime industry and the nation as a
whole.
The domestic maritime industry may often go unnoticed by the average American, but it has a substantial effect on the economy. The nation’s commercial
fleet comprises more than 40,000 fishing boats, tankers,
container ships, tugboats, barges, ferryboats, cruise
ships, water taxis, and other working vessels.14 Operating along the country’s seacoasts and throughout its
internal waterways, those vessels transport about 100
million passengers for work and pleasure each year, as
well as every conceivable type of raw material and consumer goods for export or distribution, including seafood, agricultural products, crude and finished petroleum products, and steel.15 For example, in 2009, U.S.
marine vessels transported $1 trillion worth of imports
14
American Maritime Partnership, Frequently Asked Questions, https://www.americanmaritimepartnership.com/faq/ (visited
Aug. 22, 2018).
15
Navy League of the United States, America’s Maritime
Industry: The Foundation of American Seapower 7-8, 14, https://
navyleague.org/files/legislativeaffairs/americas-maritime-industry.
pdf (visited Aug. 22, 2018); Frequently Asked Questions, supra
n.14.
24
and exports.16 All told, the maritime industry annually
accounts for about $30 billion in wages, $11 billion in
taxes, and $100 billion in economic output.17
In particular, the dredging work performed by
companies such as petitioner is essential to maintaining
the vitality of our economy and ensuring commerce is
carried out safely and efficiently. That dredging, performed by companies on behalf of the U.S. Army Corps
of Engineers and others, ensures that thousands of
miles of internal waterways that span the nation remain navigable.18
A financially healthy maritime
transportation industry is essential to those operations.
Maritime transportation does all this in a relatively
cost-effective and environmentally friendly way.19
Maritime shipping costs have been declining, whereas
the costs for other modes of freight transportation have
16
The Foundation of American Seapower, supra n.15, at 12-
13.
17
Id. at 14; American Maritime Partnership, What We Do,
https://www.americanmaritimepartnership.com/about-amp/whatwe-do/ (visited Aug. 22, 2018).
18
U.S. Army Corps of Engineers, Inland Waterway Navigation: Value to the Nation, http://www.mvp.usace.army.mil/Portals/
57/docs/Navigation/InlandWaterways-Value.pdf (visited Aug. 22,
2018).
19
The Foundation of American Seapower, supra n.15, at 4, 7,
11, 15; see also Texas Transportation Institute, Center for Ports
and Waterways, A Modal Comparison of Domestic Freight
Transportation Effects on the General Public 34, 38 (2007),
https://www.marad.dot.gov/wp-content/uploads/pdf/Phase_II_Report_Final_121907.pdf (comparing the energy efficiencies and
emissions generated by highway, railroad, and maritime
transport, and finding maritime transport to be consistently more
energy efficient and to generate fewer emissions).
25
been increasing.20 Maritime transportation thus keeps
costs down to consumers—and also to the American
taxpayer, since U.S. commercial vessels play a vital
role in transporting our servicemembers and their supplies around the world, including 95% of the dry cargoes to U.S. and Coalition Forces in Iraq and Afghanistan since 2008.21 Indeed, a robust domestic maritime
industry is essential to American military readiness
and strength.22
By exposing vessel owners and operators to punitive damages for claims of unseaworthiness, the decision below creates “devastating potential for harm” to
the industry and the national economy, environment,
and security. Pacific Mut. Life Ins. Co. v. Haslip, 499
U.S. 1, 42 (1991) (O’Connor, J., dissenting). As Judge
Clement explained in McBride, the increased cost to
owners and operators resulting from potential liability
for punitive damages are likely to “be eventually
passed along to consumers,” whether private or governmental. 768 F.3d at 401; see also, e.g., In re Korean
Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1490
(D.C. Cir. 1991) (“The award of punitive damages …
would increase the amount of litigation, the cost of insurance, and ultimately the price of air transportation.”). And “[g]iven the sizeable percentages of the
world’s goods that travel on ships, … the decision in
this case needs to have only the minutest impact on
shipping prices to have a significant aggregate cost for
consumers.” McBride, 768 F.3d at 401 (Clement, J.,
concurring). Faced with higher prices, consumers may
20
21
22
The Foundation of American Seapower, supra n.15, at 15.
Id. at 16-17.
Id. at 16-18.
26
choose to buy less, and manufacturers, distributors, and
exporters may shift to other modes of transportation,
which may be less environmentally friendly and which
cannot substitute for the maritime industry’s role in
supporting U.S. military and homeland security operations.
The decision below also contravenes “the constitutionally based principle that federal admiralty law
should be a system of law coextensive with, and operating uniformly in, the whole country.” Miles, 498 U.S. at
27 (quotation marks omitted); see also The Lottawanna,
88 U.S. 558, 575 (1874). As explained above (pp. 8-9),
the court of appeals’ decision deepens a conflict among
appellate courts about the availability of punitive damages, increasing uncertainty and costs. The decision also creates inconsistency between claims based on negligence and claims based on unseaworthiness, as well as
between personal injury and wrongful death actions.
Supra pp. 12-15, 19-20, 22.
In light of all of those detrimental effects of the
court of appeals’ decision, this Court’s review is warranted now, even though there has not yet been a trial
in this case. The Ninth Circuit has definitively ruled
that punitive damages are available in unseaworthiness
cases. Its decision is likely to have an in terrorem effect, pressuring maritime employers to settle even
meritless unseaworthiness claims to avoid the prospect
of an overwhelming award of punitive damages.23 That
23
See Sales & Cole, Punitive Damages: A Relic That Has
Outlived Its Origins, 37 Vand. L. Rev. 1117, 1156 (1984) (describing “the now universal practice of plaintiffs alleging and demanding punitive damages in an effort … to compel defendants to settle
meritless cases because of the fear that a jury will return an outrageous punitive damage award”); Scheuerman, Two Worlds Collide: How the Supreme Court’s Recent Punitive Damages Deci-
27
settlement pressure is particularly strong for strict liability claims like unseaworthiness, where no allegation
of fault is necessary to survive a dispositive motion and
any trial carries the possibility of a runaway jury verdict.
This Court granted review in Townsend when that
case was in the same procedural posture. Like the district court here, the district court in Townsend denied a
motion to dismiss the punitive damages claim but certified the question for interlocutory appeal. 557 U.S. at
408. Like the court of appeals here, the Eleventh Circuit agreed to hear the interlocutory appeal and affirmed the district court’s ruling. Id. This Court
granted certiorari, recognizing the importance of immediately resolving a conflict on the availability of punitive damages in maintenance and cure actions. The
same is true here, and it is appropriate and imperative
for the Court to grant immediate review of the court of
appeals’ decision in this case.
sions Affect Class Actions, 60 Baylor L. Rev. 880, 916 (2008)
(when a case “includes a claim for punitive damages claim, the
combined settlement pressure increases exponentially”); Baker,
Transforming Punishment into Compensation: In the Shadow of
Punitive Damages, 1998 Wis. L. Rev. 211, 229-232 (1998) (noting
that insurance companies have a good-faith obligation to settle
compensatory damages claims to protect their insureds from a
possible punitive damages verdict); id. at 212 (“it is possible that
the ‘shadow’ cast by punitive damages awards in the settlement
process is much larger than would be predicted by simple extrapolation from trial verdicts”); Berch & Berch, An Essay Regarding
Gasperini v. Center for Humanities, Inc. and the Demise of the
Uniform Application of the Federal Rules of Civil Procedure, 69
Miss. L.J. 715, 727 n.49 (1999) (describing “the concomitant increase in the settlement value of a case once a claim for punitive
damages is added”).
28
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
BARRY W. PONTICELLO
RENEE C. ST. CLAIR
ENGLAND, PONTICELLO &
ST. CLAIR
701 B. Street Suite 1790
San Diego, CA 92101
(619) 225-6450
bponticello@eps-law.com
AUGUST 2018
SETH P. WAXMAN
Counsel of Record
PAUL R. Q. WOLFSON
DAVID M. LEHN
CHRISTOPHER ASTA
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.