Amicus Curiae Brief — The Dutra Group, Petitioner v. Christopher Batterton
Supreme Court briefFeb 19, 2019
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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 INJURED CREWMEMBERS AS
AMICI CURIAE IN SUPPORT OF RESPONDENT
-----------------------------------------------------------------LYLE C. CAVIN, JR.
LYLE C. CAVIN, JR. &
ASSOCIATES
428 Alice St., Suite 128
Oakland, CA 94607
Counsel for Amicus
James Stelpstra
MICHAEL F. STURLEY
Counsel of Record
727 E. Dean Keeton St.
Austin, TX 78705
(512) 232-1350
msturley@law.utexas.edu
JAMES P. JACOBSEN
STACEY & JACOBSEN, PLLC
4039 21st Ave. West,
Suite 401
Seattle, WA 98199
Counsel for Amicus
Tevrin Narcisse
February 19, 2019
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
1
ARGUMENT ........................................................
4
I.
Punitive Damages Are Available in Actions Under the Jones Act Because They
Are Available Under FELA .......................
5
A. Injured railroad employees had both
a negligence cause of action and a
punitive-damages remedy prior to
FELA ....................................................
6
1. Injured railroad workers could
bring an action for negligence
against their employers prior to
FELA...............................................
7
2. Punitive damages were generally
available prior to FELA ..................
8
a. Punitive damages were available at common law prior to
FELA .........................................
8
b. Punitive damages were available in negligence actions prior
to FELA ..................................... 10
c. Punitive damages were available against railroads prior to
FELA ......................................... 10
ii
TABLE OF CONTENTS – Continued
Page
d. Punitive damages were in fact
awarded prior to FELA in actions against railroads .............. 11
e. Punitive damages were in fact
awarded prior to FELA in actions
against railroads for injuries suffered by railroad employees ....... 12
f.
In any event, the burden is on petitioner to show that an otherwise generally available remedy
such as punitive damages was
not available in this context ....... 14
B. Congress enacted FELA to expand the
rights and remedies available to injured railroad workers without limiting the rights and remedies previously
available to them ................................. 14
C. This Court has never held that punitive damages are categorically unavailable under FELA ........................... 18
D. Lower courts have erred in holding
that punitive damages are categorically unavailable under FELA ............ 25
II.
Even If Punitive Damages Were Unavailable Under FELA, They Are Still Available
Under the Jones Act .................................. 28
CONCLUSION..................................................... 32
iii
TABLE OF AUTHORITIES
Page
CASES:
American Railroad Co. v. Didricksen, 227 U.S.
145 (1913) .......................................................... 19, 26
The Amiable Nancy, 16 U.S. (3 Wheat.) 546
(1818) ............................................................. 9, 10, 31
The Arizona v. Anelich, 298 U.S. 110 (1936)...............29
Atlantic Sounding Co. v. Townsend, 557 U.S. 404
(2009) ............................................................... passim
Baptiste v. Superior Court, 106 Cal. App. 3d 87,
164 Cal. Rptr. 789 (1980) ........................................30
Barry v. Edmunds, 116 U.S. 550 (1886) .......................9
Benner v. Truckee River General Electric Co., 193
F. 740 (C.C.D. Nev. 1911) .........................................21
Brickman v. Southern Railway, 74 S.C. 306, 54
S.E. 553 (1906) .................................................. 13, 22
Brotherhood of Railroad Trainmen v. Virginia ex
rel. Virginia State Bar, 377 U.S. 1 (1964) ...............17
Brown v. Memphis & Charleston Railroad Co., 7
F. 51 (C.C. W.D. Tenn. 1881) .............................. 11, 12
Choctaw, Oklahoma & Gulf Railroad Co. v. Holloway, 191 U.S. 334 (1903) .................................... 7, 8
Consolidated Rail Corp. v. Gottshall, 512 U.S.
532 (1994) ........................................................ 2, 6, 25
Cortes v. Baltimore Insular Line, Inc., 287 U.S.
367 (1932) .......................................................... 28, 29
Cox v. Roth, 348 U.S. 207 (1955) .................................30
iv
TABLE OF AUTHORITIES – Continued
Page
Day v. Woodworth, 54 U.S. (13 How.) 363
(1852) ............................................................... 8, 9, 10
Denver & Rio Grande Railway Co. v. Harris, 122
U.S. 597 (1887) .................................................. 11, 12
Ennis v. Yazoo & Mississippi Valley Railroad
Co., 118 Miss. 509, 79 So. 73 (1918) ........................13
Exxon Shipping Co. v. Baker, 554 U.S. 471
(2008) ........................................................... 17, 18, 27
Fell v. Northern Pacific Railway Co., 44 F. 248
(C.C.D.N.D. 1890) .............................................. 11, 12
Guevara v. Maritime Overseas Corp., 59 F.3d
1496 (5th Cir. 1995) .................................................18
Gulf, Colorado & Santa Fe Railway Co. v.
McGinnis, 228 U.S. 173 (1913).......................... 19, 26
Johnson v. Southern Pacific Co., 196 U.S. 1
(1904) .......................................................................17
Koennecke v. Seaboard Air Line Railway, 101
S.C. 86, 85 S.E. 374 (1915) ......................................24
Kopczynski v. The Jacqueline, 742 F.2d 555 (9th
Cir. 1984) ....................................................... 5, 23, 26
Kozar v. Chesapeake & Ohio Railway Co., 449
F.2d 1238 (6th Cir. 1971) ............. 5, 19, 25, 26, 27, 28
Lake Shore & Michigan Southern Railway Co. v.
Prentice, 147 U.S. 101 (1893) ........................ 9, 10, 11
Louisville & Nashville Railroad Co. v. Kelly’s
Administratrix, 100 Ky. 421, 38 S.W. 852
(1897) .......................................................................21
v
TABLE OF AUTHORITIES – Continued
Page
McBride v. Estis Well Service, 768 F.3d 382 (5th
Cir. 2014) .................................................................30
McGuire v. The Golden Gate, 16 F. Cas. 141 (No.
8,815) (C.C.N.D. Cal. 1856) .....................................17
Michigan Central Railroad Co. v. Vreeland, 227
U.S. 59 (1913) .......................18, 19, 20, 21, 22, 26, 30
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ..... 18, 27
Miller v. American President Lines, Ltd., 989
F.2d 1450 (6th Cir. 1993) ............................... 5, 27, 28
Milwaukee & St. Paul Railway Co. v. Arms, 91
U.S. 489 (1876) .................................................. 10, 11
Missouri Pacific Railway Co. v. Humes, 115 U.S.
512 (1885) .......................................................... 11-12
Moberg v. Scott, 42 S.D. 372, 175 N.W. 559 (1919) ......22
New England Railroad Co. v. Conroy, 175 U.S.
323 (1899) ..................................................................8
Northern Pacific Railway Co. v. Dixon, 194 U.S.
338 (1904) .............................................................. 7, 8
Olsen v. Montana Ore Purchasing Co., 35 Mont.
400, 89 P. 731 (1907) ...............................................21
Panama Railroad Co. v. Johnson, 264 U.S. 375
(1924) .........................................................................6
Parsons v. Missouri Pacific Railway Co., 94 Mo.
286, 6 S.W. 464 (1888) .............................................21
Philadelphia, Wilmington & Baltimore Railroad Co. v. Quigley, 62 U.S. (21 How.) 202
(1859) .......................................................................11
vi
TABLE OF AUTHORITIES – Continued
Page
Santa Fe Pacific Railroad Co. v. Holmes, 202 U.S.
438 (1906) .............................................................. 7, 8
Savannah & Memphis Railroad Co. v. Shearer,
58 Ala. 672 (1877)....................................................21
Seaboard Air Line Railway v. Koennecke, 239
U.S. 352 (1915) ............................................ 22, 23, 24
Southern Pacific Co. v. Seley, 152 U.S. 145 (1894).........8
St. Louis, Iron Mountain & Southern Railway
Co. v. Roberson, 103 Ark. 361, 146 S.W. 482
(1912) .......................................................................21
Texas & Pacific Railway Co. v. Swearingen, 196
U.S. 51 (1904) ........................................................ 7, 8
Turner v. Norfolk & Western Railroad Co., 40 W.
Va. 675, 22 S.E. 83 (1895).................................. 13, 22
Union Railway Co. v. Carter, 129 Tenn. 459, 166
S.W. 592 (1914) ........................................................22
United States v. Texas, 507 U.S. 529 (1993) ...............27
Wildman v. Burlington Northern Railroad Co.,
825 F.2d 1392 (9th Cir. 1987) .................. 5, 19, 26, 27
STATUTES AND RULES:
Longshore and Harbor Workers’ Compensation
Act § 5(a), 33 U.S.C. § 905(a) ...................................12
Clean Water Act § 311, 33 U.S.C. § 1321 ....................18
Federal Employers’ Liability Act (FELA), 45
U.S.C. §§ 51-60................................................. passim
vii
TABLE OF AUTHORITIES – Continued
Page
FELA § 1, 45 U.S.C. § 51 ................................... 14, 23
FELA § 3, 45 U.S.C. § 53 .........................................15
FELA § 4, 45 U.S.C. § 54 .........................................15
Act of Apr. 22, 1908, ch. 149, § 4, 35 Stat. 65,
66 ..........................................................................15
Act of Aug. 11, 1939, ch. 685, § 1, 53 Stat.
1404, 1404 ............................................................15
Jones Act, 46 U.S.C. § 30104............................... passim
Merchant Marine Act, ch. 250, § 33, 41 Stat.
988, 1007 (1920) (codified as amended at 46
U.S.C. § 30104) ...................................................... 5-6
S.C. Civil Code § 2852 (1902) .....................................22
S.C. Civil Code § 3956 (1912) ............................... 22, 23
Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (U.K.) .......20
Supreme Court Rule 37.6 .............................................1
OTHER AUTHORITIES:
Dino Drudi, Railroad-Related Work Injury Fatalities, MONTHLY LAB. REV., July/Aug. 2007
(available at http://www.bls.gov/opub/mlr/2007/
07/art2full.pdf ) .................................................. 16-17
H.R. Rep. No. 60-1386 (1908) ............................... 16, 17
S. Rep. No. 60-460 (1908) ............................................15
S. Rep. No. 61-432 (1910), reprinted in 45 Cong.
Rec. 4040 (1910) ......................................................16
1
INTEREST OF AMICI CURIAE1
Amici curiae are crewmembers injured in the service of their ships who have pending claims under the
Jones Act, 46 U.S.C. § 30104, and the general maritime
law’s unseaworthiness doctrine. Each amicus claims
punitive damages based on his employer’s egregious
misconduct. Amicus Tevrin Narcisse’s action is pending in Washington Superior Court for the County of
King as Narcisse v. Crowley Liner Services, Inc. Amicus
James Stelpstra’s action is pending in California Superior Court for the County of Alameda as Stelpstra v.
Matson Navigation Co. Their ability to pursue their
punitive-damages claims may well depend on, and
amici accordingly have a strong interest in, the outcome of the present case.
SUMMARY OF ARGUMENT
Petitioner’s argument depends entirely on its erroneous assertion that punitive damages are categorically unavailable under the Jones Act, 46 U.S.C.
§ 30104. This Court need not address that assertion; it
can affirm the decision below on the ground that punitive damages are available in an unseaworthiness action regardless of whether they are available under the
Jones Act. But if this Court chooses to reach the issue,
1
Pursuant to Supreme Court Rule 37.6, counsel for amici
confirm that no counsel for a party authored this brief in whole or
in part, and that no person or entity other than amici or their
counsel made a monetary contribution intended to fund the preparation or submission of this brief. The parties have granted blanket consent to the filing of amicus briefs.
2
it should affirm the decision below because punitive
damages are available under the Jones Act.
1. When Congress incorporated the Federal
Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60,
by reference in the Jones Act, it gave injured crewmembers the rights that injured railroad workers
have under FELA. Applying the analytic framework
that this Court explained in Atlantic Sounding Co. v.
Townsend, 557 U.S. 404 (2009), punitive damages
are available under FELA. That approach is also
consistent with this Court’s direction in Consolidated
Rail Corp. v. Gottshall, 512 U.S. 532 (1994), to construe
FELA by reference to common-law principles when
deciding issues that the statute does not explicitly
address.
The relevant cause of action—negligence—was
well-established at common law. In the years immediately before FELA, this Court upheld several negligence claims by injured railroad employees against
their employers.
The remedy at issue—punitive damages—was
also well-established before the enactment of FELA,
both at common law and under the general maritime
law, including in negligence actions. Punitive damages
were available in actions against railroads, and punitive damages were awarded against railroads, including in actions for injuries suffered by their employees.
In any event, this Court has put the burden on the
party seeking to deny a traditional common-law remedy to show that a generally available remedy was unavailable in a particular context. See Townsend, 557
3
U.S. at 414-415, 418. Petitioner cannot carry that burden.
Nothing in FELA deprives injured railroad workers of the right to pursue punitive damages in appropriate cases. On the contrary, Congress’s intention was
to expand the remedies available to injured railroad
workers without depriving them of any remedies that
they previously possessed.
This Court has never held that punitive damages
are categorically unavailable under FELA. The
decisions cited to restrict the right to pursue punitive
damages did not involve the issue. Those decisions addressed only compensatory damages in the wrongfuldeath context, which has a unique history that does
not apply in non-fatal personal-injury cases. Lowercourt decisions to the contrary are inconsistent with
this Court’s decisions.
2. Even if punitive damages were unavailable
under FELA, they would still be available under the
Jones Act. FELA limitations do not limit Jones Act
claims when crewmembers have traditionally enjoyed
greater rights under the general maritime law. FELA
establishes a floor for crewmembers’ rights, not a ceiling. This Court has several times recognized situations
in which injured crewmembers have greater rights
than injured railroad workers. The general maritime
law recognized punitive damages before the nation
even had railroads.
4
ARGUMENT
Petitioner Dutra Group advocates a per se rule
that an injured crewmember can never recover punitive damages under the general maritime law doctrine
of unseaworthiness, no matter how egregious a defendant shipowner’s fault may be. That extreme rule would
apply even if a shipowner made a deliberate, callous
decision to send a doomed—but over-insured—rustbucket to sea because the anticipated insurance
proceeds would exceed the compensatory damages
payable to any injured sailors who survive the inevitable sinking. Petitioner’s argument for such a harsh
rule rests entirely on its assertion that punitive damages are categorically unavailable under the Jones Act.
But that assertion is incorrect. Properly understood,
the Jones Act permits the traditional remedy of punitive damages in an extreme case when the defendant
employer has been guilty of sufficiently egregious misconduct. As a result, petitioner’s entire analysis collapses.
Neither the Jones Act nor the Federal Employers’
Liability Act (FELA), which the Jones Act incorporates
by reference, addresses punitive damages. And this
Court has never held that punitive damages are
unavailable under either statute. Indeed, this Court in
Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424
n.12 (2009), explicitly recognized that the availability
of punitive damages under the Jones Act remains an
open question.
5
Some lower courts—including the court below—
have mistakenly held that punitive damages are unrecoverable under the Jones Act and FELA. See, e.g., Miller v. American President Lines, Ltd., 989 F.2d 1450,
1454-59 (6th Cir. 1993) (Jones Act); Kopczynski v. The
Jacqueline, 742 F.2d 555, 560-561 (9th Cir. 1984)
(same); Wildman v. Burlington Northern Railroad Co.,
825 F.2d 1392, 1393-95 (9th Cir. 1987) (FELA); Kozar
v. Chesapeake & Ohio Railway Co., 449 F.2d 1238,
1240-43 (6th Cir. 1971) (same). This Court need not decide that issue. It may affirm the decision below on the
ground that punitive damages would be available in an
action for unseaworthiness even if they were not allowed under the Jones Act. That is what the court below held. See Pet. App. 3a & n.7. It is essentially how
the Townsend Court upheld the availability of punitive
damages for the willful failure to pay maintenance and
cure. See 557 U.S. at 424 n.12. But this Court could also
resolve the question presented by recognizing that the
Jones Act permits the recovery of punitive damages
when the defendant employer has been guilty of sufficiently egregious misconduct.
I.
Punitive Damages Are Available in Actions
Under the Jones Act Because They Are
Available Under FELA.
The Jones Act gave crewmembers the right to
“maintain an action for damages at law” and provided
that “in such action all statutes of the United States
modifying or extending the common-law right or remedy in cases of personal injury to railway employees
shall apply.” Merchant Marine Act, ch. 250, § 33, 41
6
Stat. 988, 1007 (1920) (codified as amended at 46
U.S.C. § 30104). In Panama Railroad Co. v. Johnson,
264 U.S. 375, 391-392 (1924), this Court recognized
that Congress had by reference incorporated FELA
and its amendments. A proper analysis of the availability of punitive damages under the Jones Act therefore begins with FELA. And because FELA permits an
injured railroad worker to recover punitive damages in
an appropriate case, that remedy is also available under the Jones Act.
Under the analytical framework that this Court
established in Townsend, 557 U.S. at 414-415, 420, 424,
the test for determining whether an injured railroad
worker can seek punitive damages for an employer’s
egregious fault turns on whether the cause of action
(negligence) and the remedy (punitive damages) preexisted FELA, and whether FELA precluded the action
or the remedy. See also, e.g., Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532 (1994) (construing FELA by reference to common-law principles with respect to issues
not explicitly addressed by the statute). All three of the
Townsend factors point in favor of the continued availability of punitive damages under FELA.
A. Injured railroad employees had both a
negligence cause of action and a punitivedamages remedy prior to FELA.
Pre-FELA caselaw demonstrates that the first two
requirements—the pre-FELA existence of the cause of
action and the remedy—are easily satisfied.
7
1. Injured railroad workers could bring
an action for negligence against their
employers prior to FELA.
In the years immediately prior to FELA, this
Court regularly recognized that injured railroad workers could bring common-law negligence actions against
their employers. In Santa Fe Pacific Railroad Co. v.
Holmes, 202 U.S. 438 (1906), for example, an engineer
injured in a head-on collision recovered for his employer’s negligence in sending approaching trains on
the same track. In Texas & Pacific Railway Co. v.
Swearingen, 196 U.S. 51 (1904), an injured switchman
recovered for his employer’s negligence in placing a
scale box too close to the track. And in Choctaw, Oklahoma & Gulf Railroad Co. v. Holloway, 191 U.S. 334
(1903), an injured fireman recovered for his employer’s
failure to equip an engine with brakes.
Prior to FELA, railroads often escaped negligence
liability under three harsh common-law rules denying
recovery in many typical situations—the fellowservant rule, the contributory-negligence rule, and the
assumption-of-the-risk rule.2 In Northern Pacific Railway Co. v. Dixon, 194 U.S. 338 (1904), for example, a
fireman was killed in a head-on collision between two
2
In Holmes, the railroad asserted the fellow-servant doctrine; in Swearingen and Holloway, the railroads asserted the
assumption-of-the-risk rule; and in all three cases the railroads
asserted the contributory-negligence rule. See Holmes, 202 U.S.
at 438-439; Swearingen, 196 U.S. at 53; Holloway, 191 U.S. at
337. But the defenses failed on the facts and the injured employees succeeded in their negligence actions.
8
trains that occurred because a local telegraph operator
had negligently informed the dispatcher that one of the
trains had not yet passed his station when in fact it
had passed the station while the operator was asleep.
This Court ruled that “it is obvious that the local operator was a fellow servant with the fireman,” id. at 343,
and thus the railroad was not liable for the fireman’s
death. See also, e.g., New England Railroad Co. v.
Conroy, 175 U.S. 323, 327-347 (1899) (fellow-servant
rule); Southern Pacific Co. v. Seley, 152 U.S. 145, 154156 (1894) (assumption-of-the-risk rule); id. at 156
(contributory-negligence rule) (alternate holding).
2. Punitive damages were generally
available prior to FELA.
Although the plaintiffs in Holmes, Swearingen,
and Holloway did not seek punitive damages, other
pre-FELA cases establish that punitive damages were
then available at common law, available under the general maritime law, available in common-law negligence
actions, available against railroads, and in fact
awarded against railroads (including in actions for injuries to railroad employees).
a. Punitive damages were available
at common law prior to FELA.
This Court in Townsend documented that “[p]unitive damages have long been an available remedy at
common law.” 557 U.S. at 409 (citing U.S. and English
cases dating back to colonial times). Indeed, before the
enactment of FELA, this Court itself recognized the
general availability of punitive damages. In Day v.
9
Woodworth, 54 U.S. (13 How.) 363 (1852), for example,
this Court explained:
It is a well-established principle of the
common law, that in . . . all actions on the case
for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon
a defendant, having in view the enormity of
his offence rather than the measure of compensation to the plaintiff.
Id. at 371; see also, e.g., Barry v. Edmunds, 116 U.S.
550, 562 (1886) (“[A]ccording to the settled law of this
court, [a plaintiff ] might show himself, by proof of the
circumstances, to be entitled to exemplary damages
calculated to vindicate his right and protect it against
future similar invasions.”).
This Court similarly recognized punitive damages
as an available remedy under the general maritime
law (itself a form of common law) even earlier. Justice
Story, writing for the Court in The Amiable Nancy, 16
U.S. (3 Wheat.) 546 (1818), described “exemplary damages” as “the proper punishment which belongs to
[gross and wonton] lawless misconduct.” Id. at 558; see
also, e.g., Lake Shore & Michigan Southern Railway
Co. v. Prentice, 147 U.S. 101, 108 (1893) (recognizing
that “courts of admiralty . . . proceed, in cases of tort,
upon the same principles as courts of common law, in
allowing exemplary damages”).
10
b. Punitive damages were available
in negligence actions prior to
FELA.
The availability of punitive damages was not limited to cases of intentional misconduct, as in Day v.
Woodworth and The Amiable Nancy. This Court’s preFELA cases also recognized that punitive damages
were available in appropriate cases in which the plaintiff had brought a negligence action. In Milwaukee &
St. Paul Railway Co. v. Arms, 91 U.S. 489 (1876), for
example, this Court explicitly noted that the punitivedamages rule it had recognized in Day v. Woodworth
“is equally applicable to suits for personal injuries received through the negligence of others” if the defendant’s misconduct was serious enough. 91 U.S. at 493.
c. Punitive damages were available
against railroads prior to FELA.
Railroads were regularly subject to the general
rule recognizing the availability of punitive damages.
In Lake Shore & Michigan Southern Railway Co. v.
Prentice, 147 U.S. 101 (1893), a passenger sued a railroad for unlawful arrest, and the jury awarded punitive damages. This Court explained that the
availability of punitive damages was “well settled”:
In this court, the doctrine is well settled,
that in actions of tort the jury, in addition to
the sum awarded by way of compensation for
the plaintiff ’s injury, may award exemplary,
punitive or vindictive damages, sometimes
called smart money, if the defendant has acted
wantonly, or oppressively, or with such malice
11
as implies a spirit of mischief or criminal indifference to civil obligations.
Id. at 107. Not only did Prentice itself involve an action
against a railroad, but the Court cited eight of its prior
decisions in support of the quoted proposition—and
five of them were actions against a railroad. See, e.g.,
Arms, 91 U.S. at 492 (“well settled . . . that exemplary
damages may in certain cases be assessed”); Philadelphia, Wilmington & Baltimore Railroad Co. v. Quigley,
62 U.S. (21 How.) 202, 214 (1859) (“Whenever the injury complained of has been inflicted maliciously or
wantonly . . . the jury are not limited to the ascertainment of a simple compensation for the wrong. . . .”).
d. Punitive damages were in fact
awarded prior to FELA in actions
against railroads.
The railroads’ exposure to punitive damages in the
pre-FELA era was not an abstract principle. The courts
in fact ordered railroads to pay punitive damages in
appropriate cases. In Fell v. Northern Pacific Railway
Co., 44 F. 248, 252-253 (C.C.D.N.D. 1890), for example,
the court upheld a jury verdict awarding punitive damages to a passenger who had been forced to jump from
a moving train. In Brown v. Memphis & Charleston
Railroad Co., 7 F. 51, 63-64 (C.C. W.D. Tenn. 1881), the
court upheld a jury verdict awarding punitive damages
to a passenger who had wrongfully been excluded from
the “ladies’ car.” And in Denver & Rio Grande Railway
Co. v. Harris, 122 U.S. 597, 609-610 (1887), this Court
affirmed an award that included “punitive or exemplary damages.” Cf. Missouri Pacific Railway Co. v.
12
Humes, 115 U.S. 512, 522-523 (1885) (affirming an
award of statutory double damages as analogous to punitive damages).
e. Punitive damages were in fact
awarded prior to FELA in actions
against railroads for injuries suffered by railroad employees.
Prior to the enactment of statutory regimes obligating employers to pay compensation to injured employees, there was no conceptual distinction between
employees’ tort actions against the railroads that employed them and actions by other plaintiffs against
those railroads. With the enactment of FELA, of
course, employees had a unique statutory remedy
against their employers, unhampered by the harsh defenses that had so often denied recovery under the
common law. See supra at 7-8 & n.2.3 But until FELA
entered into force, an employee’s action against a railroad was subject to the same principles as applied in
Fell, Brown, and Harris (discussed in the previous
paragraph).
Despite the harsh common-law defenses that
made it particularly difficult for injured railroad employees to recover even compensatory damages prior to
3
In other contexts, employees were eventually covered by
workers’ compensation regimes that limited their ability to bring
tort actions against their employers. See, e.g., Longshore and Harbor Workers’ Compensation Act § 5(a), 33 U.S.C. § 905(a) (providing that an employer’s liability under the statute “shall be
exclusive and in place of all other liability of such employer to the
employee”) (originally enacted in 1927).
13
FELA,4 some plaintiffs succeeded in obtaining a
punitive-damages award against a railroad for injuries
suffered by an employee. In Turner v. Norfolk & Western Railroad Co., 40 W. Va. 675, 22 S.E. 83 (1895), for
example, a 16-year-old railroad employee was killed
when an engine collided with the hand car on which he
was riding. On appeal, West Virginia’s highest court
upheld the award, explaining “that the measure of
damages in the case of a man’s death is not limited to
the pecuniary value of his life to his estate; but may be
exemplary, punitive, and given as a solatium.” 22 S.E.
at 87. See also, e.g., Brickman v. Southern Railway, 74
S.C. 306, 54 S.E. 553, 557 (1906) (affirming a jury verdict that included punitive damages for the death of a
railroad employee in a train wreck); cf. Ennis v. Yazoo
& Mississippi Valley Railroad Co., 118 Miss. 509, 79 So.
73, 74-75 (1918) (upholding a jury verdict that apparently included punitive damages for the death of a railroad employee—and explicitly approving the jury
instruction authorizing an award of punitive damages—in a case that was not subject to FELA and was
accordingly governed by pre-FELA law).
4
See supra at 7-8 & n.2 (discussing the common-law defenses). Although the contributory-negligence rule could apply in
virtually any context, the assumption-of-the-risk rule was more
likely to apply in the workplace context and the fellow-servant
rule by its nature was a workplace doctrine.
14
f. In any event, the burden is on petitioner to show that an otherwise generally available remedy
such as punitive damages was
not available in this context.
Even if the availability of punitive damages
against railroads had not been so well-established
prior to FELA, this Court in Townsend put the burden
on the party seeking to deny a traditional common-law
remedy to show that the remedy was unavailable in a
particular context. See 557 U.S. at 414-415, 418. It is
accordingly petitioner’s burden to prove that railroad
workers’ cases were an exception to the general rule
permitting punitive damages. The cases discussed and
cited above make it impossible for petitioner to carry
that burden.
B. Congress enacted FELA to expand the
rights and remedies available to injured railroad workers without limiting the rights and remedies previously
available to them.
The third Townsend element—whether FELA precluded the cause of action or the remedy—requires attention to FELA itself. The statute’s primary purpose
was to expand the negligence action by eliminating the
harsh defenses that so often denied recovery, see supra
at 7-8 & n.2, and by creating a federal wrongful-death
cause of action for railroad workers. Three sections of
the Act accomplish those goals. Section 1, 45 U.S.C.
§ 51, expanded the common law in two ways. It eliminated the fellow-servant rule, which had allowed
15
employers to escape liability “for injuries sustained by
one employee through the negligence of a coemployee,”
S. Rep. No. 60-460, at 1 (1908). And it provided that
railroads engaged in interstate commerce “shall be liable in damages . . . , in case of the death of [an injured]
employee, to his or her personal representative.” Section 3, 45 U.S.C. § 53, modified the contributorynegligence rule, under which a plaintiff ’s negligence
had been a complete bar to recovery, and instead provided that “damages shall be diminished . . . in proportion to the amount of negligence attributable to [the]
employee.” See, e.g., S. Rep. No. 60-460, at 2 (“It is the
purpose of this measure to modify the law of contributory negligence.”). Finally, section 4, 45 U.S.C. § 54,
eliminated the assumption-of-the-risk rule, which had
allowed employers to avoid liability if the employee
had accepted the job with knowledge of the unsafe
work conditions.5
When enacting FELA to give greater rights and
remedies to injured railroad workers who sued their
employers for negligence, Congress did not intend to
deprive injured workers of any of the rights and remedies that they had already enjoyed under the common
law prior to FELA. The Senate Judiciary Committee
5
FELA originally eliminated the assumption-of-the-risk defense only when “the violation . . . of any statute enacted for the
safety of employees contributed to the injury or death of such employee.” Act of Apr. 22, 1908, ch. 149, § 4, 35 Stat. 65, 66. Then, in
1939, Congress completely eliminated the defense. Act of Aug. 11,
1939, ch. 685, § 1, 53 Stat. 1404, 1404.
16
explained that point emphatically in the course of describing the proposed 1910 amendments to FELA:
In considering the advisability of amending [the original FELA of 1908], it is important at the outset to understand that the
purpose of Congress in the passage of this act
was to extend further protection to employees.
This was its manifest purpose, as is apparent
from a consideration of the circumstances of
its enactment. It is manifest from a consideration of the reports, both of the Senate and
House committees, when the measure was
pending before those bodies prior to its enactment, that the purpose of the statute was to
extend and enlarge the remedy provided by
[the common] law to [railroad] employees. . . .
No purpose or intent on the part of Congress
can be found to limit or to take away from such
an employee any right theretofore existing by
which such employees were entitled to a more
extended remedy than that conferred upon
them by the act.
S. Rep. No. 61-432 (1910), reprinted in 45 Cong. Rec.
4040, 4044 (1910) (emphasis added).
Congress intended not only to provide more compensation to railroad workers but also to “greatly
lessen personal injuries. . . .” H.R. Rep. No. 60-1386, at
2 (1908). During the late nineteenth century, railroad
work was extraordinarily dangerous.6 “In 1888 the
6
Although conditions have improved, railroad work remains
dangerous. See, e.g., Dino Drudi, Railroad-Related Work Injury
Fatalities, MONTHLY LAB. REV., July/Aug. 2007, at 17 (available
17
odds against a railroad brakeman’s dying a natural
death were almost four to one,” and “the average life
expectancy of a switchman in 1893 was seven years.”
Brotherhood of Railroad Trainmen v. Virginia ex rel.
Virginia State Bar, 377 U.S. 1, 3 (1964). President Benjamin Harrison called it “a reproach to our civilization”
that rail workers were “subjected to a peril of life and
limb as great as that of a soldier in time of war.” Johnson v. Southern Pacific Co., 196 U.S. 1, 19 (1904). Congress accordingly sought to induce railroads “to
exercise the highest degree of care . . . for the safety of
[all employees] in the performance of their duties.”
H.R. Rep. No. 60-1386, at 2. Congress would have recognized that the threat of punitive damages for egregious misconduct contributed to those goals, for it was
understood then (as now) that one of the purposes of
punitive damages is to “teach the tort feasor the necessity of reform.” McGuire v. The Golden Gate, 16 F. Cas.
141, 143 (No. 8,815) (C.C.N.D. Cal. 1856). The threat of
both punitive and compensatory damages provides a
greater incentive for railroads to operate safely than
would the threat of compensatory damages alone.
It is implausible that Congress, in its effort to provide incentives for railroads to improve safety standards, would eliminate sub silentio a well-established
common-law remedy that created a powerful incentive
to improve safety standards. In Exxon Shipping Co.
v. Baker, 554 U.S. 471, 488-489 (2008), this Court
at http://www.bls.gov/opub/mlr/2007/07/art2full.pdf ) (noting that
railroad industry has “fatal injury rate more than twice the allindustry rate”).
18
addressed essentially the same situation. When
Exxon—relying on Miles v. Apex Marine Corp., 498 U.S.
19 (1990), and Guevara v. Maritime Overseas Corp., 59
F.3d 1496 (5th Cir. 1995) (en banc)—argued that the
penalties for water pollution under section 311 of the
Clean Water Act, 33 U.S.C. § 1321, displaced its liability to pay punitive damages following the Valdez spill,
this Court summarily (and unanimously) rejected the
argument:
[W]e find it too hard to conclude that a statute
expressly geared to protecting “water,” “shorelines,” and “natural resources” was intended
to eliminate sub silentio oil companies’ common law duties to refrain from injuring the
bodies and livelihoods of private individuals.
554 U.S. at 488-489. It is, if anything, even harder to
conclude that FELA, a statute expressly geared to protecting railroad workers and improving their remedies,
was intended to eliminate sub silentio the railroads’
corresponding liability to pay punitive damages for the
breach of their common-law duties to refrain from injuring their employees.
C. This Court has never held that punitive
damages are categorically unavailable
under FELA.
This Court has never addressed the availability of
punitive damages under FELA. Lower courts that
have denied their availability in FELA cases have directly or indirectly relied primarily on three decisions:
Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59
19
(1913); American Railroad Co. v. Didricksen, 227 U.S.
145 (1913); and Gulf, Colorado & Santa Fe Railway Co.
v. McGinnis, 228 U.S. 173 (1913).7 None of those cases
involved punitive damages (or even used the words
“punitive” or “exemplary”). Indeed none of them was
even a personal-injury case; all three were wrongfuldeath cases in which the analysis turned on the unique
history of wrongful-death statutes.
The Vreeland Court distinguished between survival and wrongful-death actions, see 227 U.S. at 65-70,
and held that—in a wrongful-death action—the widow
of a railroad worker killed in the railroad’s service
could not recover loss-of-society damages because
wrongful-death statutes historically did not permit
such damages, id. at 70-71.
In Didricksen, decided a week after Vreeland, the
Court again distinguished between survival and
wrongful-death actions, see 227 U.S. at 149, and held
(following Vreeland) that the surviving parents of a
railroad worker fatally injured in the service of the
railroad could not recover loss-of-society damages in
their wrongful-death action, id. at 149-150.
McGinnis (following Vreeland and Didricksen
later in the same Term) held that the non-dependent
child of an engineer killed in a derailment could not
recover compensatory damages in a wrongful-death
action. See 228 U.S. at 174-176. The rationale again
turned on the unique history of wrongful-death
7
See, e.g., Wildman, 825 F.2d at 1394; Kozar, 449 F.2d at
1241-42.
20
statutes—a history that has no relevance to whether
injured plaintiffs suing for their own damages may
claim a well-established remedy such as punitive damages.
The key paragraph in the Vreeland opinion explained the reasoning on which the subsequent decisions all depended:
The word “pecuniary” did not appear in
Lord Campbell’s Act, nor does it appear in our
act of 1908 [FELA]. But the former act and all
those which follow it have been continuously
interpreted as providing only for compensation for pecuniary loss or damage.
227 U.S. at 71. “Lord Campbell’s Act” is the Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (U.K.), the original
wrongful-death statute in the Anglo-American legal
world that responded to the common law’s failure to
provide a wrongful-death remedy.
Two conclusions follow from the quoted reasoning,
one self-evident and one less obvious. The self-evident
conclusion is that the Vreeland Court based its analysis entirely on the special history of wrongful-death
statutes. It concluded that FELA’s wrongful-death provision disallowed non-pecuniary damages based solely
on the premise that Lord Campbell’s Act “and all those
which follow it” had disallowed non-pecuniary damages. The Court said nothing about the remedies available for non-fatal personal injuries, a field in which a
long history of common-law remedies leads to a very
different analysis.
21
The less obvious conclusion is that the Vreeland
Court must have been addressing only compensatory
damages, and had nothing to say about punitive damages (even in the wrongful-death context). Because the
underlying premise of the reasoning was that certain
types of damages were unavailable under all of the
state wrongful-death statutes, the Vreeland Court
could only have been referring to those types of damages that were universally unavailable under state
wrongful-death statutes at the time of the decision.
That category does not include punitive damages,
which were then available in wrongful-death actions
in a number of states.8 For example, this Court, less
8
In addition to South Carolina, which is discussed in the
text, some of the other states that permitted the recovery of punitive damages under their wrongful-death statutes were Alabama,
see Savannah & Memphis Railroad Co. v. Shearer, 58 Ala. 672,
680 (1877) (affirming a punitive-damages award under the
wrongful-death statute); Arkansas, see St. Louis, Iron Mountain
& Southern Railway Co. v. Roberson, 103 Ark. 361, 146 S.W. 482,
485 (1912) (affirming a punitive-damages award for the death of
a passenger); Kentucky, see Louisville & Nashville Railroad Co.
v. Kelly’s Administratrix, 100 Ky. 421, 38 S.W. 852, 854 (1897)
(holding that the law “extend[ed] the common-law right of action
to recover both compensatory and exemplary damages for [nonfatal] injuries . . . to cases in which death ensued”); Missouri, see
Parsons v. Missouri Pacific Railway Co., 94 Mo. 286, 6 S.W. 464,
468 (1888) (“[T]wo elements of damage are to be considered by the
jury,—compensation . . . , and punishment to the wrong-doer
when the circumstances attending the wrongful act, neglect, or
default are such as to warrant it.”); Montana, see Olsen v. Montana Ore Purchasing Co., 35 Mont. 400, 89 P. 731, 734 (1907)
(holding that a general statute authorizing punitive damages applies in an action under the wrongful-death statute); Nevada, see
Benner v. Truckee River General Electric Co., 193 F. 740, 741
(C.C.D. Nev. 1911) (quoting the Nevada wrongful-death statute
22
than three years after its decision in Vreeland, described S.C. Civil Code § 3956 (1912) as “a statute in
South Carolina similar to Lord Campbell’s Act.” Seaboard Air Line Railway v. Koennecke, 239 U.S. 352, 353
(1915). That statute explicitly authorized “the jury [to]
give such damages, including exemplary damages
where [the defendant’s] wrongful act, neglect or default was the result of recklessness, willfulness or malice, as they may think proportioned to the injury.” See
also, e.g., Brickman, 54 S.E. at 556, 557 (affirming a
jury verdict that included punitive damages under S.C.
Civil Code § 2852 (1902), “the statute commonly
known as ‘Lord Campbell’s Act,’ ” which was substantially the same as § 3956 in the 1912 Code, for the
death of a railroad employee in a train wreck).
The strongest support that petitioner and its supporting amici could find to bolster their assertion that
this Court has disapproved of punitive damages under
FELA is Koennecke, 239 U.S. at 354.9 See Pet. Br. 18;
authorizing an award of “exemplary” damages); South Dakota, see
Moberg v. Scott, 42 S.D. 372, 175 N.W. 559, 561 (1919) (affirming
a punitive-damages award under the wrongful-death statute);
Tennessee, see Union Railway Co. v. Carter, 129 Tenn. 459, 166
S.W. 592, 593 (1914) (holding that “exemplary damages . . . are
recoverable in suits founded on [the wrongful-death] statute”);
and West Virginia, see Turner v. Norfolk & Western Railroad Co.,
40 W. Va. 675, 22 S.E. 83, 87 (1895) (affirming a punitive-damages award for the death of a railroad employee).
9
Petitioner also argues that respondent “recognizes that [punitive damages] are not available” under the Jones Act because
he “did not even request punitive damages for the Jones Act negligence claim in his complaint.” Pet. Br. 17 n.3. (Petitioner actually says that “petitioner” did not request punitive damages, but
23
Inland River Harbor and Fleeting Coalition Br. 6;
Waterways Council Br. 10. The issue in the purportedly
relevant portion of that opinion is whether a state
court violated a defendant’s due-process rights when it
permitted a plaintiff to amend her ambiguous complaint in the middle of trial to specify that she was
suing under FELA rather than the state’s wrongfuldeath statute. See 239 U.S. at 354. FELA § 1 limits
wrongful-death benefits in some situations to family
members of the deceased railroad employee who were
“dependent upon such employee,” while the state statute imposed no dependency requirement. On the other
hand, S.C. Civil Code § 3956 (1912), quoted above, explicitly authorized “exemplary damages,” while FELA
is silent on the availability of punitive or exemplary
damages. The Court explained the ambiguity of the
complaint by reference to those provisions:
If [the complaint] were read as manifestly demanding exemplary damages, that would
point to the state law, but the allegation of dependence was relevant only under the act of
Congress.
239 U.S. at 354. Whatever that sentence means, it
cannot be a holding that punitive damages are unavailable under FELA. It is unclear whether the
that is an obvious typographical error. Petitioner clearly intended
to say “respondent.”) It is far more likely that respondent recognized only that Kopczynski, 742 F.2d at 560-561, a binding Ninth
Circuit decision, had held that punitive damages are unavailable
under the Jones Act, and made a strategic decision not to seek a
remedy that neither the district court nor a three-judge panel of
the court of appeals had the power to grant.
24
Koennecke plaintiff even requested punitive or exemplary damages; in any event, the availability of punitive damages was not before this Court. The Court may
have meant simply that if the plaintiff had requested
“exemplary damages” it could have suggested reliance
on the state statute that explicitly authorizes “exemplary damages” (while saying nothing about whether
they might also be available under FELA). That would
be consistent with the reference to “the allegation of
dependence.” The Court believed that the dependency
reference suggested reliance on FELA because FELA
explicitly requires dependency in some circumstances,
but that does not mean that dependents were barred
from recovery under the state statute.10 And even if the
quoted sentence could be read to offer a subtle clue
about the availability of punitive damages under
FELA, it is important to recall that Koennecke was a
wrongful-death case. Any clues that it might provide in
that context would have little relevance in the context
of workers suing to recover for their own injuries.
10
The South Carolina Supreme Court, in the decision that
this Court was reviewing, made that point explicitly:
The allegation of the complaint that deceased left a
widow and four children, who were dependent upon
him, is appropriate to an action under the federal statute; and, while the allegation of dependency is not
strictly necessary, it is not wholly inappropriate to an
action under the state statute. . . .
Koennecke v. Seaboard Air Line Railway, 101 S.C. 86, 85 S.E. 374,
375, aff ’d, 239 U.S. 352 (1915).
25
D. Lower courts have erred in holding
that punitive damages are categorically unavailable under FELA.
Because Townsend’s three requirements are satisfied, injured railroad workers are entitled to seek punitive damages under FELA. Lower courts’ decisions
to the contrary are simply wrong.
The mistaken interpretation began in the Sixth
Circuit, which vacated a $70,000 punitive-damages
award to the widow of a railroad employee who was
killed when a 40-ton railroad car was negligently
dropped on him. See Kozar, 449 F.2d at 1239. Kozar
was decided before Townsend and Gottshall, so the
Sixth Circuit did not have the benefit of this Court’s
teachings in either of those subsequent cases, and thus
it did not conduct the analysis that would have led it
to the opposite conclusion. Cf. supra at 6-18 (applying
the Townsend analysis to demonstrate why punitive
damages are available under FELA). But even at the
time Kozar was decided, its reasoning was flawed.
The Kozar court’s first reason for rejecting the
punitive-damages award starkly illustrates its inconsistency with Townsend. Although it correctly recognized that FELA’s “provisions were not to limit or take
away any ‘remedy’ available at common law to an injured employee,” 449 F.2d at 1240; cf. supra at 14-18,
it nevertheless vacated the district court’s punitive
damages judgment because it believed that “the right
to recover punitive damages at common law” was not
“a ‘common law remedy,’ ” id. That belief is flatly
26
inconsistent with Townsend, in which this Court explicitly described punitive damages as “an available
remedy at common law,” 557 U.S. at 409; “an available
maritime remedy,” id. at 411, 412 n.2; a “remedy . . .
well established before the passage of the Jones Act,”
id. at 420; a “general maritime remedy,” id. at 422; and
“an accepted remedy under general maritime law,” id.
at 424. Simply put, Townsend precludes the argument
that punitive damages are not a “remedy.”
The Kozar court also relied heavily on a misreading of Vreeland, Didricksen, and McGinnis. See supra
at 18-22. As noted, the Vreeland Court was discussing
compensatory damages, not punitive damages. See
supra at 21-22. And even if Vreeland had limited the
availability of punitive damages under FELA’s
wrongful-death provisions—an issue that this Court
never addressed—the case would still have no relevance to FELA’s provisions governing non-fatal personal injuries, see supra at 20, and thus no relevance
to this case.
Subsequent decisions denying punitive damages
under FELA rely, either directly or indirectly, on Kozar
and the cases that the Sixth Circuit cited in Kozar. The
Ninth Circuit in Wildman, for example, relied primarily on Kopczynski, 742 F.2d at 560-561, which held that
punitive damages are categorically unavailable under
the Jones Act, and on Kozar. See Wildman, 825 F.2d at
1394-95. Kopczynski, in turn, relied primarily on Vreeland, McGinnis, and Kozar. See 742 F.2d at 560-561.
27
Two examples from Wildman illustrate the most
blatant inconsistencies with Townsend. First, Wildman
applied the “least common denominator” approach
that Townsend rejects, 557 U.S. at 424, reasoning that
by failing to authorize punitive damages FELA had
silently prohibited them. See Wildman, 825 F.2d at
1394-95. In that regard, Wildman also ignored the
established rule that “ ‘to abrogate a common-law
principle, a statute must speak directly to the question
addressed by the common law.’ ” Exxon Shipping, 554
U.S. at 489 (quoting United States v. Texas, 507 U.S.
529, 534 (1993)); cf. Miles, 498 U.S. at 31 (recognizing
Congress’s power when “Congress has spoken directly
to the question”). Second, the Wildman plaintiff (anticipating Townsend) argued “that punitive damages
were available at common law prior to the enactment
of the FELA, and that it was Congress’s expressed intent in enacting the law not to limit any existing remedies,” which meant that punitive damages were still
available. 825 F.2d at 1394. The Wildman court, repeating one of Kozar’s mistakes, rejected that argument because “ ‘the right to recover punitive damages
at common law’ ” was not “ ‘a “common law remedy,” ’ ”
id. (quoting Kozar, 449 F.2d at 1240). See supra at
25-26.
The only other lower-court case that petitioner
cites for the proposition that punitive damages are
unavailable under FELA, see Pet. Br. 17-19 & n.6, is
Miller, 989 F.2d at 1457, a Sixth Circuit wrongfuldeath case holding that punitive damages are unavailable under the Jones Act on the ground that they are
28
unavailable under FELA. The Miller court, however,
merely cites Kozar with no independent analysis of the
issue. The opinion instead focuses on whether punitive
damages are available under the Jones Act, basing its
reasoning on the (incorrect) assumption that they are
unavailable under FELA. See 989 F.2d at 1457-60.
None of the cited cases are sufficient to justify the
categorical prohibition of punitive damages that petitioner advocates.
II.
Even If Punitive Damages Were Unavailable Under FELA, They Are Still Available
Under the Jones Act.
Jones Act crewmembers have at least the same
rights that railroad workers have under FELA. But the
FELA-Jones Act linkage is not universally true. This
Court has recognized that FELA’s limitations do not
always constrain crewmembers; in some situations,
they and their families have greater rights. Townsend,
which upheld the right to seek punitive damages for
the “willful and wanton disregard of the maintenance
and cure obligation,” 557 U.S. at 424, offers a particularly relevant example. Injured railroad workers may
not seek punitive damages in that context because
they are not entitled to maintenance and cure in the
first place. Similarly, in Cortes v. Baltimore Insular
Line, Inc., 287 U.S. 367, 374-375 (1932), this Court
held that crewmembers can sue under the Jones Act
for the negligent withholding of maintenance and
cure—even though FELA does not give that right to
railroad workers.
29
The Townsend/Cortes example is not unique. Until
1939, FELA eliminated the assumption-of-the-risk defense only when the violation of a safety statute contributed to the injury or death. See supra at 15 & n.5.
In The Arizona v. Anelich, 298 U.S. 110, 120-123 (1936),
however, this Court recognized that crewmembers
have greater rights under the unseaworthiness doctrine, and thus were not subject to the assumption-ofthe-risk defense when an unseaworthy condition contributed to the seaman’s death.11 The Court explained:
The [Jones Act] was remedial, for the benefit
and protection of seamen who are peculiarly
the wards of admiralty. Its purpose was to enlarge that protection, not to narrow it. Its provisions . . . are to be liberally construed to
attain that end, and are to be interpreted in
harmony with the established doctrine of
maritime law of which it is an integral part.
Id. at 123 (citations omitted). Because maritime law
prior to the Jones Act did not recognize the assumptionof-the-risk defense in unseaworthiness actions and
“[n]o provision of the Jones Act is inconsistent with the
admiralty rule,” this Court would not assume “that
Congress intended, by [the Jones Act’s] adoption, to
modify that rule by implication.” Id. In other words,
FELA establishes a floor for crewmembers, not a
11
Anelich’s status as a fatal-injury case is particularly telling. The Court explicitly recognized that the plaintiff, as the administratrix of the deceased crewmember’s estate, would have
had no cause of action prior to the Jones Act. See 298 U.S. at 118.
But Anelich still held that her rights were not limited by FELA.
See id. at 123-124.
30
ceiling. They are guaranteed at least the rights that
FELA grants to railroad workers, but in some contexts
they have greater rights under maritime law. Asserting rights under the general maritime law’s warranty
of seaworthiness is one example of such a context.
This Court confirmed the principle that FELA
establishes a floor, not a ceiling, in Cox v. Roth, 348 U.S.
207 (1955), which held that the death of an individual
employer does not defeat a Jones Act claim even
though FELA does not provide for the survival of
actions against deceased tortfeasors. The Cox Court
explained:
The Jones Act, in providing that a seaman
should have the same right of action as would
a railroad employee, does not mean that the
very words of the FELA must be lifted bodily
from their context and applied mechanically
to the specific facts of maritime events.
Rather, it means that those contingencies
against which Congress has provided to ensure recovery to railroad employees should
also be met in the admiralty setting.
Id. at 209. This Court accordingly rejected the approach that a plurality opinion of the Fifth Circuit
later adopted in McBride v. Estis Well Service, 768 F.3d
382 (5th Cir. 2014) (en banc), which lifted the word “pecuniary” from Vreeland’s “gloss on FELA” in the
wrongful-death context and applied it mechanically to
the Jones Act personal-injury context. See also Baptiste v. Superior Court, 106 Cal. App. 3d 87, 102, 164
Cal. Rptr. 789, 797 (1980) (“FELA precedents do not
31
constitute a bar to punitive damages in Jones Act
cases” because “the kinship of railway workers and
seamen, as perceived by Congress, should not lead to
overly literal or rigid transplanting of principles from
land to sea.”).
Because nothing in FELA suggests that Congress
intended to deny injured railroad workers the right to
seek punitive damages from a railroad, see supra at
6-28, this case presents a typical situation in which an
injured plaintiff ’s rights are the same under FELA
and the Jones Act. But even if FELA did prohibit punitive damages, they would still be available under the
Jones Act. Punitive damages are even more firmly established in maritime law. Indeed, the general maritime law recognized the availability of punitive
damages before the nation even had railroads. See The
Amiable Nancy, 16 U.S. (3 Wheat.) 546, 558 (1818).
32
CONCLUSION
The judgment of the Ninth Circuit should be affirmed.
Respectfully submitted,
LYLE C. CAVIN, JR.
LYLE C. CAVIN, JR. &
ASSOCIATES
428 Alice St., Suite 128
Oakland, CA 94607
Counsel for Amicus
James Stelpstra
February 19, 2019
MICHAEL F. STURLEY
Counsel of Record
727 E. Dean Keeton St.
Austin, TX 78705
(512) 232-1350
msturley@law.utexas.edu
JAMES P. JACOBSEN
STACEY & JACOBSEN, PLLC
4039 21st Ave. West,
Suite 401
Seattle, WA 98199
Counsel for Amicus
Tevrin Narcisse
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.