Amicus Curiae Brief — The Dutra Group, Petitioner v. Christopher Batterton

No. 18-266

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------THE DUTRA GROUP,

Petitioner,

v.

CHRISTOPHER BATTERTON,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE FISHING VESSELS’

RESERVE, UNITED MARINE FUND,

UNITED RESERVE FUND, WEST COAST

MARINE FUND, PACIFIC MARINE FUND,

AND AMERICAN MARINE FUND

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------MICHAEL J. CUMMINS

Counsel of Record

GIBSON ROBB & LINDH LLP

201 Mission Street, Ste. 2700

San Francisco, CA 94105

(415) 348-6000

mcummins@gibsonrobb.com

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT ........................................................

5

I.

II.

The Preclusive Effect of the Jones Act Limits

Recoverable Damages on Unseaworthiness

Claims to Pecuniary Losses Only.................

5

The Lower Court Misread Miles and

Townsend....................................................

8

III.

The Jones Act Bars Recovery of Punitive

Damages .................................................... 14

IV.

Awarding Punitive Damages Will Result

In Significant Financial Harm, Which

Could Prove Irreparable ............................ 17

CONCLUSION..................................................... 19

ii

TABLE OF AUTHORITIES

Page

CASES

Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724

(1943) .........................................................................9

Allen v. Simmons, 533 A.2d 541 (R.I. 1987) ...............17

American R.R. Co. of Puerto Rico v. Didricksen,

227 U.S. 145 (1913) .................................................15

Atlantic Sounding Co., Inc. v. Townsend, 557 U.S.

404 (2009) ........................................................ passim

Bergen v. St. Patrick, 816 F.2d 1345 (9th Cir.

1987) ........................................................................17

Guevara v. Mar. Overseas Corp., 59 F.3d 1496

(5th Cir.1995) ...................................................... 7, 15

Gulf, Colorado and Santa Fe Ry. Co. v. McGinnis,

228 U.S. 173 (1913) .................................................15

Harden v. Gordon, 11 F. Cas. 480 (C.C.D. Me.

1823) .................................................................... 9, 14

Home Ins. Co. v. Am. Home Prod. Corp., 75 N.Y.S.

2d 196 (App. 1990) ..................................................17

Horsley v. Mobil Corp., 15 F.3d 200 (1st Cir.1994).... 8, 15

Johnson & Johnson v. Aetna Cas. & Sur. Co., 285

N.J.Super. 575 (App.Div. 1995) ...............................17

Kopczynski v. The Jacqueline, 742 F.2d 555 (9th

Cir.1984) ..................................................................15

Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d

1238 (6th Cir.1971) .................................................15

iii

TABLE OF AUTHORITIES – Continued

Page

Mahnich v. Southern S.S. Co., 321 U.S. 96

(1944).............................................................. 11, 12

McBride v. Estis Well Service, L.L.C., 768 F.3d

382 (5th Cir.2014), cert. denied, 135 S.Ct. 2310

(2015) ............................................................. 8, 15, 16

Michel v. Total Transp., Inc., 957 F.2d 186 (5th

Cir.1992) ....................................................................8

Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59

(1913) .......................................................................15

Miles v. Apex Marine, 498 U.S. 19 (1990) ........... passim

Miller v. American President Lines, Ltd., 989

F.2d 1450 (6th Cir.1993)..........................................15

Milwaukee & St. Paul Railway v. Arms, 91 U.S.

489 (1875) ................................................................16

Mitchell v. Trawler Racer, Inc., 360 U.S. 539

(1960) .......................................................................12

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618

(1978) ............................................................... 5, 6, 17

Moragne v. States Marine Lines, Inc., 398 U.S.

375 (1970) ........................................................ 5, 6, 12

Omar v. Sea-Land Service, Inc., 813 F.2d 986

(9th Cir.1987) ..........................................................10

Pacific Steamship Co. v. Peterson, 278 U.S. 130

(1928) ....................................................... 8, 10, 13, 16

Scarff v. Metcalf, 107 N.Y. 211 (1887) ........................12

Smith v. Trinidad Corp., 992 F.2d 996 (9th

Cir.1993) ....................................................................7

iv

TABLE OF AUTHORITIES – Continued

Page

St. Louis, Iron Mtn. & Southern Ry. Co. v. Craft,

237 U.S. 648, 35 S.Ct. 704 (1915) ............................15

The Osceola, 189 U.S. 158 (1903).............. 11, 12, 13, 16

U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061

(Fl. 1983)..................................................................17

Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4

F.3d 1084 (2d Cir.1993) ...........................................15

Wildman v. Burlington N. R.R. Co., 825 F.2d

1392 (9th Cir.1987) .................................................15

Zicherman v. Korean Airlines Co., Ltd., 516 U.S.

217 (1996) ................................................................14

STATUTES

Cal. Ins. Code § 533 (2010) .........................................17

OTHER AUTHORITIES

Editors, Law Review (1962), “A New Look at the

Unseaworthiness Doctrine: The Roper Case,”

Univ. Chicago Law Rev. Vol. 29, Issue 3 .................12

Francis L. Tetreault, Seamen Seaworthiness

and the Rights of Harbor Workers, 39 Cornell

L.Q. 381 (1954) .................................................... 9, 12

Gilmore & Black, § 6-23 .............................................10

Thomas J. Schoenbaum, Admiralty and Maritime Law § 5:10 (6th ed. Oct. 2018 Update).............8

1

INTEREST OF AMICI CURIAE1

Fishing Vessels’ Reserve (“FVR”) was formed in

1944 by small groups of fishing vessel owners, and currently has approximately 175 members based from

California to Alaska and Hawaii. The members of FVR

and other amici listed below (collectively “funds”) own

“traditional” fishing vessels, generally smaller in size

and owned by long-time fishing families.

United Marine Fund (“UMF”) was formed in 1957

by small groups of fishing vessel owners, and currently

has approximately 275 fishing vessel members based

from California to Alaska and Hawaii.

United Reserve Fund (“URF”) was formed around

the same time as UMF by small groups of fishing vessel owners, and currently has approximately 125 fishing vessel members, primarily based in California.

West Coast Marine Fund (“WCMF”) was formed in

1948 by small groups of fishing vessel owners, and currently has approximately 82 fishing vessel members,

operating from California to Alaska.

Pacific Marine Fund (“PMF”) was formed in 1973

by small groups of fishing vessel owners, and currently

1

Pursuant to Rule 37.6, the following certifications are

made: The undersigned counsel authored this brief in whole; no

party or party’s counsel made a monetary contribution intended

to fund preparing or submitting this brief; and no person, other

than amici curiae, made a monetary contribution intended to fund

preparing or submitting this brief. All parties consented to the

filing of this amici curiae brief by filing written blanket consents.

2

has approximately 48 fishing vessel members, operating from California to Alaska.

American Marine Fund (“AMF”) was formed in

1985 by small groups of fishing vessel owners, and currently has approximately 43 fishing vessel members,

operating from California to Alaska.

The funds were established as the vessel owners

were having difficulty obtaining insurance coverage

through normal markets, and thus the owner members

believed that if membership was limited to conscientious and responsible owners like themselves, they

could minimize losses and obtain coverage at reasonable costs. The funds thus provide vessel insurance

coverage for its owner members and operate as unincorporated associations for the benefit of its members,

not for profit.

Since formation, the purpose and goals of the

funds remains unchanged – to create an association of

fishing vessel owners who share responsibility for each

other’s losses in order to encourage safe operation of

members’ vessels and eliminate accidents. In furtherance of this goal, each fund carefully screens new member applicants to ensure that vessels are sound and

properly maintained and operated by experienced captain and crew. The funds have been widely recognized

as outstanding examples of what can be accomplished

in the fishing industry through cooperative efforts,

with members working together to minimize accidents

and losses.

3

Recognition of punitive damages for an unseaworthiness claim will adversely affect the funds’ fishing

vessel owners. As seamen invariably plead both Jones

Act negligence and unseaworthiness claims, the threat

of punitive damage exposure will result in higher settlement payments, which in turn will be passed onto

the vessel owners through increased insurance costs,

and in some instances, could render an owner uninsurable. Further, as punitive damages are generally excluded from coverage and many states bar insurers

from insuring them, it will also result in significant uninsured exposure for vessel owners.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

While admiralty courts possess the ability to

provide supplemental remedies (e.g. recognize a new

cause of action or measure of damages) when a maritime statute addresses a claim, Congress’ judgment

controls. Miles v. Apex Marine, 498 U.S. 19, 32-33

(1990). This express limitation precludes a court, under its admiralty powers, from creating a remedy for a

general maritime law claim that exceeds those remedies available under the statute. As the Jones Act limits recoverable damages for injury and death claims to

pecuniary loss damages only, this same limitation applies to an unseaworthiness claim [injury and death]

involving a Jones Act seamen, as Miles makes clear.

4

Because punitive damages do not involve a pecuniary

loss, they cannot be recovered.

The court of appeal misread Atlantic Sounding

Co., Inc. v. Townsend, 557 U.S. 404 (2009) to provide for

a different result. In so doing, the court failed to recognize that Townsend confirmed Miles’ holding and reasoning to be correct, but avoided application of the

preclusive effects of the Jones Act by finding that, unlike an unseaworthiness claim, “the Jones Act does not

address maintenance and cure.” 557 U.S. at 420. As a

result, the Court in Townsend was not constrained, as

it was in Miles, by the fundamental principle that prevents an admiralty court from going “beyond the limits

of Congress’ ordered system of recovery for seamen’s

injury and death.” Id.

In contrast to maintenance and cure, the Jones Act

addresses unseaworthiness claims, as Miles held and

Townsend affirmed. The governing principles thus apply to preclude supplementation and bar recovery of

punitive damages. Further, the purpose for permitting

punitive damages for maintenance and cure, which remains a necessary and foundational right of seamen

dating back centuries, does not apply to unseaworthiness. Allowing punitive damages for an unseaworthiness claim would also result in significant harm,

especially to vessel owners, which in some cases could

prove irreparable.

------------------------------------------------------------------

5

ARGUMENT

I.

The Preclusive Effect of the Jones Act Limits Recoverable Damages on Unseaworthiness Claims to Pecuniary Losses Only

In Miles, the Court applied fundamental principles that guide and limit an admiralty court’s ability

to provide supplemental remedies under general maritime law and held that the preclusive effect of the

Jones Act barred recovery of non-pecuniary damages

under a unseaworthiness wrongful death claim. See

498 U.S. at 32-33. In so ruling, the Court thus established a “uniform rule applicable to all actions for the

wrongful death of a seaman, whether under DOSHA,

the Jones Act, or general maritime law.” Id. at 33.

In reaching this result, the Court relied heavily on

Moragne v. States Marine Lines, Inc., 398 U.S. 375

(1970) and Mobil Oil Corp. v. Higginbotham, 436 U.S.

618 (1978), finding the reasoning and logic of those decisions to be controlling. 498 U.S. at 27, 31. In Moragne,

the Court applied these principles to hold that the

Jones Act did not preclude recognition of a general

maritime wrongful death action claim involving a longshoreman. See 398 U.S. at 400-401. Conversely, in Higginbotham, the Court found application of these

principles limited recoverable damages for a maritime

law death action to those statutorily available under

the Death on High Seas Act. See 436 U.S. at 625.

Using Moragne and Higginbotham as examples of

permissible and impermissible supplementation, the

6

Miles Court thus reinforced how a court must apply

these long-established and fundamental principles in

determining whether maritime statutory remedies can

be supplemented, explaining:

Respondents argued that admiralty courts

have traditionally undertaken to supplement

maritime statutes. The Court’s answer in

Higginbotham is fully consistent with those

principles we have derived from Moragne:

Congress has spoken directly to the question

of recoverable damages on the high seas, and

“when it does speak to a question, the courts

are not free to ‘supplement’ Congress’ answer

so thoroughly that the act becomes meaningless.” Moragne involved gap filling in an area

left open by the statute; supplementation was

entirely appropriate. But in an “area covered

by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of

limitations, or a different class of beneficiaries.”

Miles, 498 U.S. at 31, quoting Higginbotham, 436 U.S.

at 625.

Because the Jones Act addresses recoverable damages for death claims, the Miles Court held that application of these principles precluded supplementation,

as it did in Higginbotham. In thus holding that recoverable damages for an unseaworthiness wrongful

death claim could not exceed those available for a

Jones Act death claim, the Miles Court stressed “it

7

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 than Congress has allowed in cases resulting from negligence.” Id. at 32-33.

Miles thus makes clear that uniformity and concurrence with statutory law control and strictly limit

an admiralty court’s ability to provide supplemental

remedies under general maritime law. While Miles involved a wrongful death action, application of these

governing principles necessarily extend to personal injury actions. The court of appeals’ erroneous suggestion that Miles does not apply to claims involving living

seamen, see App. 14a, not only makes no sense and creates disuniformity, but reflects a fundamental misunderstanding of Miles.

Miles reinforces that limits imposed by Congress

in maritime statutes control. As the Jones Act applies

to personal injury and death actions, the statutory limits on recoverable damages likewise apply to all unseaworthiness claims involving seamen. Unsurprisingly,

courts consistently interpret Miles and the governing

principles to apply to personal injury actions. See Guevara v. Mar. Overseas Corp., 59 F.3d 1496, 1506 (5th

Cir.1995) (“it should be clear that actions under the

general maritime law for personal injury are also subject to the Miles uniformity principle”); Smith v. Trinidad Corp., 992 F.2d 996 (9th Cir.1993) (“We agree . . .

Miles has changed the law, and that wives of injured

mariners may no longer sue the ship [under general

maritime law] for damages for their nonpecuniary

8

losses”); Horsley v. Mobil Corp., 15 F.3d 200, 202-203

(1st Cir.1994); see Michel v. Total Transp., Inc., 957 F.2d

186, 191 (5th Cir.1992); McBride v. Estis Well Service,

L.L.C., 768 F.3d 382, 388 (5th Cir.2014), cert. denied,

135 S.Ct. 2310 (2015), abrogated on other grounds by

Townsend, 557 U.S. 404 (2009).

As correctly noted by one respected commentator,

“what the Court did in Miles is to decree that the measure of damages available to a Jones Act seaman for

negligence and unseaworthiness under the general

maritime law are identical in cases involving personal

injury or death.” Thomas J. Schoenbaum, Admiralty

and Maritime Law § 5:10, p.4 (6th ed. Oct. 2018 Update) (italics omitted). Stated more accurately, Miles

made explicit what this Court held long ago. See Pacific

Steamship Co. v. Peterson, 278 U.S. 130, 138-139 (1928)

(“whether or not the seaman’s injuries were occasioned

by the unseaworthiness of the vessel or the negligence

of the master or members of the crew . . . there is but a

single legal wrongful invasion of his primary right of

bodily safety . . . for which he is entitled to but one indemnity by way of compensatory damages”).

II.

The Lower Court Misread Miles and Townsend

In Townsend, the Court did not criticize or limit

Miles holding. Instead, the Court not only found Miles’

reasoning to be “sound” but agreed that a court could

not create a supplemental remedy for a general maritime claim that exceeds the limits established by

9

Congress. See 557 U.S. at 419-420. The Townsend

Court, though, avoided application of this principle by

factually distinguishing Miles, noting that unlike an

unseaworthiness wrongful death action, “[t]he Jones

Act does not address maintenance or cure or its remedy.” Townsend, 557 U.S. at 420-421.

For purposes of showing that Congress left to admiralty courts the job of fashioning damage and liability rules for a maintenance and cure claim, the Court

pointed to the fact that maintenance and cure was

“well-established before passage of the Jones Act.” 557

U.S. at 420. As recognized by the Court, this right

“dates back centuries as an aspect of general maritime

law” and was well-established in this country when

recognized by Justice Story in 1823. Id. at 413, citing

Harden v. Gordon, 11 Fed.Cas. 480 (C.C.D. Me. 1823).

Indeed, it traces back to the medieval sea codes, with

the earliest authenticated statement of this right appearing around 1150 A.D. in the Laws of Oleron.2 See

Harden, 11 F. Cas. at 482-483; Aguilar v. Standard Oil

Co. of N.J., 318 U.S. 724, 730, fn. 6 (1943).

From ancient times to present, this foundational

right remains relatively unchanged, and thus imposes

an absolute obligation on the employer to pay for a

seaman’s medical care and wages if the seamen falls

ill or becomes injured while in the service of the

ship. Townsend, 557 U.S. at 413 (citations omitted). As

2

These laws were promulgated by Eleanor, Duchess of

Guinne, for Oleron, an island off of the coast of France. See Francis L. Tetreault, Seamen Seaworthiness and the Rights of Harbor

Workers, 39 Cornell L.Q. 381, 382-83 (1954).

10

maintenance and cure remains a no-fault obligation,

neither negligence nor causation possess any relevance to an employer’s obligation to pay. See Pacific

Steamship, 278 U.S. at 137. Further, while an implied

contractual provision in a seaman’s contract, it cannot

be waived by contract. Omar v. Sea-Land Service, Inc.,

813 F.2d 986, 989 (9th Cir.1987) (citations omitted).

The Townsend Court also stressed the distinctive

nature of the claim as further evidence that the preclusive effects of the Jones Act do not apply. Unlike

unseaworthiness and negligence, which are merely alternative causes of action to establish liability for the

same wrong, maintenance and cure is “independent

and cumulative.” 557 U.S. at 423. As it is separate and

apart from these other two claims, a “seaman may

have maintenance and cure and also one of the other

two.” Id. at 424, quoting Gilmore & Black, § 6-23, at

342 (internal quotation marks omitted).

With these reasons in hand, the Court found it

“possible to adhere to this traditional understanding of

maritime actions and remedies without abridging or

violating the Jones Act [because] this traditional understanding is not a matter to which ‘Congress has

spoken directly.’ ” Id. at 420-421, quoting Miles, 498 U.S.

at 31. For purposes of supporting its holding that punitive damages were proper for penalizing the wrongful holding of this necessary and foundational right,

the Court also stated that failure to provide adequate

medical care served “the basis for rewarding punitive

11

damages in cases decided as early as the 1800’s.”3 See

557 U.S. at 413.

In contrast to maintenance and cure, the Jones Act

addresses unseaworthiness claims, as Miles clearly

held and Townsend acknowledged. The governing principles thus apply to preclude supplementation and

limit recoverable damages to those statutorily available for Jones Act claims. While this alone precludes an

award of punitive damages, the court of appeals also

failed to appreciate that the other reasons the Townsend Court relied on do not apply to an unseaworthiness claim.

Unlike maintenance and cure, unseaworthiness

remained far from being a long-established general

maritime claim when the Jones Act passed in 1920. At

best, it was “an obscure and relatively little used remedy; largely because a shipowner’s duty at that time

was only to use due diligence to provide a seaworthy

ship.” Miles, 498 U.S. at 25 (quote omitted). It continued

to remain unused until transformed into a strict liability obligation by this Court in Mahnich v. Southern S.S.

Co., 321 U.S. 96 (1944).

By way of historical background, expansion of the

unseaworthiness doctrine from cargo, insurance and

wage forfeiture cases into injury cases began with dictum in The Osceola, 189 U.S. 158 (1903). In that case,

the sole question before the Court involved whether a

3

In his dissenting opinion, Justice Alito noted that these

cases do not resolve the question of punitive damage availability.

See 557 U.S. at 429-31.

12

seaman could recover for injuries resulting from a negligent order given by the master. Prior to addressing

this question, Justice Brown set forth four propositions

that were allegedly “settled” in maritime law, with the

second one declaring “the vessel and her owner are . . .

liable to an indemnity for injuries received by seamen

in consequence of the unseaworthiness of the ship. . . .”

Id. at 175. As recognized by Justice Frankfurter and

many commentators, this second proposition is dictum,

as unseaworthiness was not before the Court. See

Mitchell v. Trawler Racer, Inc., 360 U.S. 539, 562 (1960)

(Frankfurter, J., dissenting); Tetreault, 39 Cornell L.Q.

at 391.4

According to one commentator, the process of turning Justice Brown’s dictum into “settled” law commenced with Mahnich. See Editors, Law Review

(1962), “A New Look at the Unseaworthiness Doctrine:

The Roper Case,” Univ. Chicago Law Rev. Vol. 29, Issue

3, Article 7, pg. 523. Mahnich changed the “shipowner’s

duty to provide a seaworthy ship into an absolute duty

not satisfied by due diligence.” Moragne, 398 U.S. at

399. Following Mahnich, this Court continued to expand the unseaworthiness doctrine in a series of cases,

and it “has [now] become the principal vehicle for recovery by seamen for injury or death, overshadowing

the negligence action made available by the Jones Act.”

398 U.S. at 399.

4

Further, the authority cited by Justice Brown for this proposition, Scarff v. Metcalf, 107 N.Y. 211 (1887), does not appear to

support it. Scarff involved a different issue, with the court holding

the owners of the ship liable for negligence of the ship’s master in

failing to provide adequate medical care for an ill seaman.

13

This judicially created maritime claim, which undeniably did not exist in the same form in 1920 as today, differs in marked contrast to the maintenance and

cure claim at issue in Townsend which has been an established foundational right of seamen since the Middle Ages.

Further, unlike maintenance and cure, unseaworthiness does not provide cumulative or additional damages separate and apart from a Jones Act negligence

claim. Instead, it merely provides an alternative cause

of action to a Jones Act claim to recover the same compensatory damages for the seaman’s injuries or death.

See Pacific Steamship, 278 U.S. at 138-139.

Finally, no court has ever awarded punitive damages for an unseaworthiness claim prior to the Jones

Act. While this can be explained by the fact that unseaworthiness was an obscure and little known remedy when the Jones Act passed, it can also be explained

by this Court’s decisions in The Osceola and Pacific

Steamship which show that only compensatory damages could be recovered on an unseaworthiness claim.5

Another reason involves the fact that the justifications

for establishing the foundational right of maintenance

5

The dictum in The Osceola provides in relevant part that a

vessel and her owner are “liable to an indemnity for injuries received by seamen” resulting from unseaworthiness. 189 U.S. at

175. Pacific Steamship clarified that the phrase “liable to an indemnity” means “indemnity by way of compensatory damages.”

278 U.S. at 138.

14

and cure6 and protecting it through punitive damages

do not exist with an unseaworthiness claim.

The court of appeal failed to appreciate the foregoing significant differences between unseaworthiness

and maintenance and cure claims, and in so doing, did

not recognize that the reasons Townsend relied on to

permit punitive damages for a maintenance and cure

claim do not apply to an unseaworthiness claim. Miles

makes clear that the Jones Act limit on recoverable

damages apply instead.

III. The Jones Act Bars Recovery of Punitive

Damages

As held by Miles and reconfirmed by this Court,

the Jones Act limits recovery to pecuniary loss damages. Miles, 498 U.S. at 32; Zicherman v. Korean Airlines Co., Ltd., 516 U.S. 217, 224 (1996) (confirming

Miles’ holding that the Jones Act “permits compensation only for pecuniary loss”). The Federal Employers’

6

In explaining the justifications supporting creation of this

ancient right, Justice Story explained: “Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. . . . If some

provision be not made for them in sickness at the expense of the

ship, they must often in foreign ports suffer the accumulated evils

of disease, and poverty, and sometime perish from want of suitable nourishment. Their common earnings in many instances are

wholly inadequate to provide for the expenses of the sickness; and

if liable to be so applied, the great motives for good behavior might

be ordinarily taken away by pledging their future as well as past

wages for the redemption of the debt.” Harden, 11 F. Cas. at 483.

15

Liability Act (“FELA”), which Congress incorporated

into the Jones Act, contains this same pecuniary loss

damage limitation. See Miles, 498 U.S. at 32; American

R.R. Co. of Puerto Rico v. Didricksen, 227 U.S. 145, 149

(1913); Michigan Cent. R.R. Co. v. Vreeland, 227 U.S.

59, 65, 69-71 (1913); Gulf, Colorado and Santa Fe Ry.

Co. v. McGinnis, 228 U.S. 173, 175-176 (1913); St. Louis,

Iron Mtn. & Southern Ry. Co. v. Craft, 237 U.S. 648,

656, 657 (1915).

Pecuniary loss means damages that provide compensation for an actual financial loss. See Didricksen,

227 U.S. at 149 (recoverable damages “limited strictly

to the financial loss thus sustained”); McGinnis, 228

U.S. at 175-76 (stating recovery is “limited to compensating those relatives for whose benefit the administrator sues as are shown to have sustained some

pecuniary loss”). As punitive damages do not provide

compensation for financial loss, but instead serve to

punish and deter, courts uniformly hold punitive damages cannot be recovered under the Jones Act and

FELA. Kopczynski v. The Jacqueline, 742 F.2d 555, 560561 (9th Cir.1984); Horsley, 15 F.3d 200, 203; Miller v.

American President Lines, Ltd., 989 F.2d 1450, 1457

(6th Cir.1993); McBride v. Estis Well Service, L.L.C.,

768 F.3d 382, 389 (5th Cir.2014), cert. denied, 135 S.Ct.

2310 (2015); Kozar v. Chesapeake & Ohio Ry. Co., 449

F.2d 1238, 1240 (6th Cir.1971); Wildman v. Burlington

N. R.R. Co., 825 F.2d 1392, 1395 (9th Cir.1987); see also

Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d

1084, 1094 (2d Cir.1993); Guevara, 59 F.3d at 1506

16

(“punitive damages . . . are also rightly classified as

non-pecuniary”).

Further, even if considered in the absence of the

preclusive effects of the Jones Act and viewed solely in

the context of whether punitive damages could be recovered on a pre-Jones Act unseaworthiness claim,

the result barring recovery remains unchanged. Putting aside that there are no cases awarding punitive

damages, this Court has made clear that only “indemnity by way of compensatory damages” could be recovered on this claim. See Pacific Steamship, 278 U.S. at

138. As explained in Milwaukee & St. Paul Railway v.

Arms, which involved injury to a passenger, a court

“goes beyond the limit of indemnity” when it awards

“exemplary” damages. 91 U.S. 489, 493-494 (1875). Numerous lower courts have made similar observations,

and thus treat the term indemnity to preclude punitive

damages. See McBride, 768 F.3d at 388 (citing to cases).

As noted by Judge Clement in McBride, “taking The

Osceola and Pacific Steamship Courts at their word –

as contemporaneous plaintiffs did when they filed

Jones Act cases rather than unseaworthiness cases –

unseaworthiness defendants are [therefore] liable for

an indemnity by way of compensatory damages and

nothing more.” 768 F.3d at 399 (Clement, J., concurring).

Presumably in an attempt to avoid the foregoing

bar to recovery of punitive damages, the court of appeals stated that such damages do not constitute a pecuniary loss or non-pecuniary loss. See App. 14a. While

not clear from the decision, the court appears to

17

suggest that this distinction, which is legally incorrect,

somehow avoids Miles and permits recovery of punitive damages. Even assuming arguendo that punitive

damages did not involve a non-pecuniary loss, they

would still be barred, as only pecuniary loss damages

can be recovered under a general maritime law claim

for unseaworthiness, as Miles makes clear.7

IV. Awarding Punitive Damages Will Result In

Significant Financial Harm, Which Could

Prove Irreparable

Traditional commercial fishermen, like the approximate 750 vessel owners that are members of the

funds, depend on protection and indemnity insurance

to protect against liabilities arising from injuries to

crew members. Punitive damages are generally excluded from such coverage. Further, many states, including California, New York, Florida, New Jersey and

Rhode Island, preclude insurance coverage for punitive

damages.8 In those instances where no coverage exists,

7

A prior Ninth Circuit panel rejected a similar argument to

recover punitive damages under DOSHA; wherein, the plaintiffs

claimed that punitive damages did not involve the type of nonpecuniary damages that Higginbotham barred. See Bergen v. St.

Patrick, 816 F.2d 1345, 1349 (9th Cir.1987).

8

See Cal. Ins. Code § 533 (2010) (California); Home Ins. Co.

v. Am. Home Prod. Corp., 75 N.Y.S. 2d 196, 200-201 (App. 1990)

(New York); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1064

(Fl. 1983) (Florida); Johnson & Johnson v. Aetna Cas. & Sur. Co.,

285 N.J.Super. 575, 587-89 (App.Div. 1995) (New Jersey); Allen

v. Simmons, 533 A.2d 541, 544-545 (R.I. 1987) (Rhode Island).

18

the vessel owner will be left exposed to significant uninsured liability.

Further, as seamen almost invariably plead both

Jones Act negligence and unseaworthiness claims, the

threat of punitive exposure will force vessel owners

and their insurers to pay more to settle claims than

they are worth. This in turn will adversely affect the

vessel owner’s loss history and not only result in increased insurance costs but could render the owner uninsurable. The inability to obtain insurance would

effectively put a commercial fisherman out of business

and require the sale of their vessels.

While vessel owners may be able to pass on some

of these increased insurance costs to purchasers of

their fish catches, the majority of these costs will be

borne by the owners. This in turn will affect their ability to remain in business, and could cause many to

leave the industry. Further, for those cases that do not

resolve and go to trial, the vessel owner could find itself

liable for an uninsured punitive damage award. Given

the awards handed out in the current climate, this

would likely lead to financial ruin.

Small businesses, like fishing vessel owners, are

the basis upon which the United States was founded.

While they remain a vital and integral part of the economy, they do far more. They provide people with entrepreneurial spirits and the will to work hard an

opportunity to succeed, and thus help keep alive the

“American Dream.” Fishing vessel owners already face

significant perils and risks in performing their work,

19

which they have readily accepted for years without

complaint. The risk of punitive damages is a risk too

far, especially since it could bring an abrupt end to

many family owned businesses.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted,

MICHAEL J. CUMMINS

Counsel of Record

GIBSON ROBB & LINDH LLP

201 Mission Street, Ste. 2700

San Francisco, CA 94105

(415) 348-6000

mcummins@gibsonrobb.com

Counsel for Amici Curiae