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 CLAIMANT SEEKING RECOVERY

FOR WRONGFUL DEATH OF CREWMEMBER

AS AMICUS CURIAE SUPPORTING RESPONDENT

-----------------------------------------------------------------WILLIAM L. BANNING

BANNING LLP

16409 Via de Santa Fe

P.O. Box 9600

Rancho Santa Fe, CA 92067-9600

(858) 756-0056

wbanning@banningllp.com

ERIN GLENN BUSBY

Counsel of Record

LISA R. ESKOW

411 Highland Street

Houston, TX 77009

(713) 966-0409

egbusby@swbell.net

EDWARD M. BULL

KURT L. MICKLOW

BRODSKY MICKLOW BULL

& WEISS LLP

1070 Marina Village Parkway

Suite 200

Alameda, CA 94501

ebull@bmbwlawfirm.com

February 28, 2019

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

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

2

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

4

I.

PUNITIVE DAMAGES ARE AN AVAILABLE

REMEDY FOR UNSEAWORTHINESS

CLAIMS INVOLVING WILLFUL AND

WANTON MISCONDUCT, EVEN IN CASES

ARISING FROM A CREWMEMBER’S

DEATH ......................................................

4

A. Punitive Damages Are Available

Under The Jones Act ...........................

5

B. Allowing Recovery Of Punitive Damages

For Unseaworthiness Claims Would

Be Consistent With The Long History

Of Authorizing Such Damages Under

State Statutes That Governed Claims

For Deaths On The Water Prior To The

Jones Act .............................................. 11

II.

ANY LIMITATIONS ON RECOVERY OF

“NONPECUNIARY” DAMAGES FOR

WRONGFUL DEATHS DO NOT APPLY

TO PUNITIVE DAMAGES ........................ 21

CONCLUSION..................................................... 24

ii

TABLE OF AUTHORITIES

Page

CASES

Am. R.R. Co. v. Didricksen, 227 U.S. 145 (1913) ........23

Atlantic Sounding Co. v. Townsend, 557 U.S. 404

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

Austin v. United States, 509 U.S. 602 (1993) .............21

Benner v. Truckee River Gen. Elec. Co., 193 F. 740

(C.C.D. Nev. 1911) ............................................. 14, 20

Bennett v. Owens-Corning Fiberglas Corp., 896

S.W.2d 464 (Mo. 1995) .............................................17

Boott Mills v. Bos. & M.R.R., 106 N.E. 680 (Mass.

1914) ............................................................................ 16

Brickman v. S. Ry., 54 S.E. 553 (S.C. 1906) ................15

Buckalew v. Tenn. Coal, Iron & R.R. Co., 20 So.

606 (Ala. 1896) ........................................................16

Calcaterr v. Iovaldi, 100 S.W. 675 (Mo. 1906) ............17

Chi. Mill & Lumber Co. v. Bryeans, 209 S.W. 69

(Ark. 1919) ...............................................................19

Christensen v. Floriston Pulp & Paper Co., 92 P.

210 (Nev. 1907) ........................................................14

Exxon Shipping Co. v. Baker, 554 U.S. 471

(2008) ................................................................. 8, 13, 21

Faulk v. Kansas City Rys. Co., 247 S.W. 253 (Mo.

Ct. App. 1922) ..........................................................18

Folz v. State, 797 P.2d 246 (N.M. 1990) ......................14

Goode v. Cent. Coal & Coke Co., 151 S.W. 508

(Mo. App. 1912) ........................................................17

iii

TABLE OF AUTHORITIES – Continued

Page

Gulf, Colo. & Santa Fe Ry. Co. v. McGinnis, 228

U.S. 173 (1913) ........................................................23

Haley v. Mobile & O. R. Co., 66 Tenn. 239 (1874) ......18

The Hamilton, 207 U.S. 398 (1907) ........... 11, 12-13, 20

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

1823) ..........................................................................2

The Harrisburg, 119 U.S. 99 (1886) ...........................12

Keck v. United States, 172 U.S. 434 (1899) .................22

Kennedy v. Davis, 55 So. 104 (Ala. 1911) ...................16

Klepsch v. Donald, 30 P. 991 (Wash. 1892) .................15

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

Cir. 1984) .................................................................21

Louisville & N.R. Co. v. Kelly’s Adm’x, 38 S.W.

852 (Ky. 1897) .................................................... 13, 18

Matthews v. Warner’s Adm’r, 70 Va. (29 Gratt.)

570 (1877) ................................................................16

McBride v. Estis Well Serv., L.L.C., 768 F.3d 382

(5th Cir. 2014) (en banc) .........................................21

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

(1913) ....................................................... 9, 17, 22, 23

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

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

375 (1970) ...................................................... 6, 12, 13

Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981) .......................................................................21

iv

TABLE OF AUTHORITIES – Continued

Page

Nichols v. Winfrey, 79 Mo. 544 (1883) ........................17

Okla. ex rel. W. v. Gulf, C. & S.F.R. Co., 220 U.S.

290 (1911) ................................................................21

Olsen v. Mont. Ore Purchasing Co., 89 P. 731

(Mont. 1907) ............................................................19

Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924) .... 7, 9

Parker v. Fies & Sons, 10 So. 2d 13 (Ala. 1942) .........16

Parsons v. Mo. Pac. Ry. Co., 6 S.W. 464 (Mo. 1888) ...... 17

Seaboard Airline R.R. v. Koennecke, 239 U.S. 352

(1915) .......................................................................20

Stang v. Hertz Corp., 463 P.2d 45 (N.M. App.),

aff ’d, 467 P.2d 14 (N.M. 1969) ................................14

St. Louis, Iron Mountain & S. Ry. v. Roberson,

146 S.W. 482 (1912) .................................................20

Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d

848 (Tex. 1995) ........................................................15

The Tungus v. Skovgaard, 358 U.S. 588 (1959) ..........12

Turner v. Norfolk & W.R. Co., 22 S.E. 83 (W. Va.

1895) ........................................................................16

Vickery v. Ballentine, 732 S.W.2d 160 (Ark. 1987) ........19

Workman v. City of N.Y., 179 U.S. 552 (1900) ...... 11, 20

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.

199 (1996) ................................................................13

v

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTION, STATUTES & LEGISLATIVE MATERIALS

Death on the High Seas Act, ch. 111, § 5, 41 Stat.

537 (1920) .......................................................... 12, 13

Federal Employers Liability Act

45 U.S.C. § 51................................................. 5, 7, 8, 9

S. Rep. No. 61-432 (1910), reprinted in 45

Cong. Rec. 4040 (1910) .......................................... 7, 8

Jones Act

46 U.S.C. § 30104.......................................................7

Merchant Marine Act, ch. 250, § 33, 41 Stat.

988 (1920) .............................................................. 7, 9

TEX. CONST. art. 16, § 26 note (Vernon 1993)

(amendment added in 1869) ...................................15

OTHER MATERIALS

Brian C. Colomb, McBride v. Estis Well Service,

LLC: The Seaman’s Case for Punitive Damages Under His Unseaworthiness Claim and

How the U.S. Fifth Circuit Got It Wrong,

Again, 14 LOY. MAR. L.J. 205 (2015).......................13

RESTATEMENT (SECOND) OF TORTS (AM. LAW. INST.

1975) ........................................................................22

vi

TABLE OF AUTHORITIES – Continued

Page

David W. Robertson, Punitive Damages in American Maritime Law, 28 J. MAR. L. & COMM. 73

(1997) ................................................................6-7, 22

David W. Robertson, Punitive Damages in U.S.

Maritime Law: Miles, Baker, and Townsend,

70 LA. L. REV. 463 (2010) ........................................13

1

INTEREST OF AMICUS CURIAE1

Amicus curiae Claimant Seeking Recovery for

Wrongful Death of Crewmember, Maren Miller, has a

pending claim under the general-maritime-law, unseaworthiness doctrine arising from the wrongful death of

a crewmember killed in the service of his ship. Amicus

seeks punitive damages in connection with that claim,

alleging that the crewmember’s death wrongfully resulted from the vessel owner’s reckless and callous disregard for the vessel’s safety.

Although the question presented addresses the

availability of punitive damages to a non-fatal-injury

claimant, see Pet. Br. i; Resp. Br. i, petitioner relies

principally on cases decided in the wrongful-death

context, in which unique historical considerations

suggest some limitations that are irrelevant in the

non-fatal-injury context. This Court may therefore resolve the question presented based on the absence of

non-fatal-injury authority supporting the categorical

ban on punitive damages that petitioner seeks.

If the Court does discuss historical considerations

unique to wrongful death, however, amicus contends

that those considerations are not determinative of the

availability of punitive damages to wrongful-death

claimants under the general maritime law. Because

1

The parties have granted blanket consent to the filing of

amicus briefs. Pursuant to Rule 37.6, amicus confirms that no

counsel for a party authored this brief in whole or in part and that

no person or entity other than amicus or her counsel made a monetary contribution intended to fund the preparation or submission

of this brief.

2

the parties have not fully briefed this distinct issue,

amicus seeks to provide this Court with a broader understanding of why punitive damages are available

whenever unseaworthiness claims arise from a vessel

owner’s sufficiently egregious conduct—not only when

a crewmember seeks to recover for his or her own

non-fatal injuries, but also when a fatally injured crewmember’s surviving family members seek to recover

for the crewmember’s death.

The ability of all unseaworthiness claimants to

seek punitive damages not only facilitates punishment

of egregious maritime practices, but also incentivizes

vessel owners to keep safe the “wards of the admiralty.”

Harden v. Gordon, 11 F. Cas. 480, 483 (C.C.D. Me. 1823)

(Story, J.). Amicus therefore urges this Court to reaffirm that punitive damages have longstanding roots in

maritime law as a general tort remedy available in unseaworthiness actions whenever a defendant’s misconduct satisfies the rigorous standard for awarding such

damages. That result should not turn on whether the

misconduct caused injury or death.

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

SUMMARY OF ARGUMENT

Because the question presented concerns the

availability of punitive damages for an unseaworthiness claim alleging personal injury, Pet. Br. i;

Resp. Br. i, this Court need not resolve whether punitive damages likewise would be available for an

3

unseaworthiness claim arising in the distinct context

of a crewmember’s wrongful death. If, however, this

Court discusses that issue, it should confirm that a

plaintiff in a general-maritime-law suit based on the

death of a crewmember may recover punitive damages

in an appropriate case that satisfies the rigorous

standard for such an award.

Two independent reasons support this result.

First, punitive damages are an available remedy under

the Jones Act, a non-determinative reference point this

Court has considered when addressing the scope of

damages available to crewmembers under the general

maritime law for claims that mirror causes of action

previously created by Congress. See Miles v. Apex Marine Corp., 498 U.S. 19, 31-33 (1990); see also Atlantic

Sounding v. Townsend, 557 U.S. 404, 415-24 & n.24

(2009). Although petitioner flatly asserts that the

Jones Act does not permit punitive-damages awards,

Pet. Br. 15, the Act’s enactment history refutes that assertion, as does the Act’s role as a remedial statute intended to maximize and safeguard the interests of the

wards of the admiralty.

Regardless, this Court may look beyond the Jones

Act because the remedies it affords are not always determinative of remedies under the general maritime

law. See Townsend, 557 U.S. at 424 n.12. And in the

context of wrongful death, a second basis for allowing

punitive damages exists, drawing on their long history

of availability under the state statutes that governed

wrongful-death claims prior to the Jones Act. While

this Court concluded in Miles that the history of

4

wrongful-death claims did not support allowing compensatory damages for nonpecuniary losses, 498 U.S.

at 32-33, the record for punitive damages is different.

Therefore, if the Court chooses to discuss whether punitive damages would be an available remedy for an

unseaworthiness claim arising from a crewmember’s

death, it should hold that such damages are recoverable in appropriate cases when a vessel owner’s conduct

warrants such an award.

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

ARGUMENT

I.

PUNITIVE DAMAGES ARE AN AVAILABLE

REMEDY FOR UNSEAWORTHINESS

CLAIMS INVOLVING WILLFUL AND

WANTON MISCONDUCT, EVEN IN CASES

ARISING FROM A CREWMEMBER’S

DEATH.

This Court should hold that punitive damages

may be recovered in connection with unseaworthiness

claims. The availability of such damages should turn

on the willful and wanton nature of the vessel owner’s

conduct, not on whether the conduct injures or kills the

crewmember. Two factors bolster this result—the

availability of punitive damages under the Jones Act,

and the long history, prior to the Jones Act, of state

statutes’ authorizing punitive damages in wrongfuldeath cases.

5

A. Punitive Damages Are Available Under

The Jones Act.

For general-maritime-law claims that mirror a

cause of action previously authorized by Congress, this

Court has held that the types of damages available to

plaintiffs should be consistent with the damages available under the Jones Act. See Miles, 498 U.S. at 32-33

(evaluating the availability of loss-of-society damages

for a wrongful-death, unseaworthiness claim in light of

remedies under the Jones Act); see also Resp. Br. 30-32.

And the enactment history and remedial purpose of

the Jones Act refutes petitioner’s claim that it does not

authorize recovery of punitive damages. See Pet. Br. 15.

To the contrary, the Jones Act’s incorporation of the

Federal Employers Liability Act (FELA), 45 U.S.C.

§§ 51-60, confirms the availability of such damages under the Act. See Injured Crewmembers Amicus Br. 528. Moreover, nothing in the Act demonstrates an intent to strip crewmembers of their longstanding right

under maritime jurisprudence to recover punitive

damages for unseaworthiness claims.

This Court considered Jones Act remedies when

assessing the damages sought in both Miles and Townsend. In Miles, this Court considered the claim of a

crewmember’s mother under the general maritime law

for “loss of society” damages after a fellow crewmember

murdered her son. 498 U.S. at 21-22. As no generalmaritime-law claim for wrongful death existed prior to

the Jones Act, this Court reasoned that its own subsequent recognition of that claim should not afford remedies greater than the cause of action defined in the

6

preexisting statute. Id. at 23, 31-33. Because this

Court concluded that loss-of-society damages were not

permitted in wrongful-death cases under the Jones

Act, it held, in turn, that damages for loss of

society could not be recovered in connection with a

general-maritime-law claim for wrongful death. Id. at

32-33.2

This Court in Miles did not address punitive damages, and it has never held that punitive damages are

unavailable under the Jones Act. See Townsend, 557

U.S. at 424 n.12. This Court did address the issue of

punitive damages in Townsend, however, assessing the

availability of that remedy under general maritime law

in the context of claims for failure to provide maintenance and cure. See id. at 409-14. In that context, this

Court allowed punitive damages because, “[u]nlike the

situation presented in Miles, both the general maritime cause of action (maintenance and cure) and the

remedy (punitive damages) were well established before the passage of the Jones Act.” Id. at 420. Indeed,

after looking at the history of actions in general maritime law, this Court concluded that “prior to enactment

of the Jones Act in 1920, ‘maritime jurisprudence was

replete with judicial statements approving punitive

damages, especially on behalf of passengers and seamen.’” Id. at 412 (quoting David W. Robertson, Punitive

2

Because there was no general-maritime-law cause of action

for wrongful death prior to the enactment of the Jones Act in

1920, see Moragne v. States Marine Lines, Inc., 398 U.S. 375, 39394 (1970), there consequently was no pre-1920 general-maritimelaw precedent awarding loss-of-society damages in connection

with crewmembers’ deaths.

7

Damages in American Maritime Law, 28 J. MAR. L. &

COMM. 73, 115 (1997)).

Although the Court in Townsend did not decide

whether punitive damages can be recovered under the

Jones Act, 557 U.S. at 424 n.12, the historical availability of punitive damages in maritime jurisprudence,

along with the enactment history of the Jones Act itself, confirms that punitive damages are recoverable in

connection with Jones Act claims. As the Injured Crewmembers Amicus Brief (at 5-28) documents, the Jones

Act incorporated the rights and remedies previously

available to railway workers at common law because

(i) FELA preserved those rights and (ii) the Jones Act,

in turn, incorporated FELA’s rights and remedies. See

Merchant Marine Act, ch. 250, § 33, 41 Stat. 988, 1007

(1920) (codified as amended at 46 U.S.C. § 30104); see

also Panama R.R. Co. v. Johnson, 264 U.S. 375, 391-92

(1924) (recognizing incorporation of FELA and its

amendments). Those rights included the ability at

common law to recover punitive damages for egregious

misconduct by railroad employers. See Injured Crewmembers Amicus Br. 10-13. Moreover, FELA’s purpose

was not merely to incorporate but also to expand railway workers’ rights and remedies while leaving in

place all previously available forms of recovery. Id. at

14-18; see also S. Rep. No. 61-432 (1910), reprinted in

45 Cong. Rec. 4040, 4044 (1910).

One of FELA’s expansions was the creation of a

cause of action for wrongful death that did not previously exist at common law. See 45 U.S.C. § 51. Yet,

Congress did not differentiate remedies for the newly

8

created wrongful-death claim from remedies for

injury-related claims that the common law previously

recognized. Congress stated solely that railroads

would be “liable in damages” for both. See id.3 And

those “damages” would have encompassed the punitive

damages for injury claims that were previously available at common law, which FELA preserved and,

through 45 U.S.C. § 51, made uniformly applicable to

injury and wrongful-death claims. See Injured Crewmembers Amicus Br. 10-18 (discussing, inter alia, S.

Rep. No. 61-432 (1910)).

It is implausible, therefore, to construe FELA, a

remedial enactment designed to promote railroad

safety and protect railway workers’ rights, as somehow

implicitly abrogating the common-law availability of

punitive damages. Id. at 14-18; cf. Exxon Shipping Co.

v. Baker, 554 U.S. 471, 488-89 (2008) (rejecting

3

The “liable in damages” language states in full that “[e]very

common carrier by railroad” in interstate commerce

shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his

or her personal representative, for the benefit of the

surviving widow or husband and children of such employee; and, if none, then of such employee’s parents;

and, if none, then of the next of kin dependent upon

such employee, for such injury or death resulting in

whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason

of any defect or insufficiency, due to its negligence, in

its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C. § 51.

9

argument that the Clean Water Act, a statute protective of water rights, was meant to overturn, “sub silentio,” oil companies’ common-law duties and exposure

for punitive damages in appropriate cases). And as punitive damages are available under FELA, so too must

they be available under the Jones Act. See Panama,

264 U.S. at 391-92.

Although this Court in Michigan Central Railroad

Co. v. Vreeland, 227 U.S. 59 (1913), concluded that a

FELA wrongful-death claim affords only pecuniary

damages, thereby precluding an award of loss-ofsociety damages, id. at 71, that decision did not address the availability of punitive damages, which are

distinct from nonpecuniary damages for loss of society.

See infra Part II. And the availability of punitive damages under FELA’s “liability in damages” language,

which applies equally to injury and death claims, 45

U.S.C. § 51, establishes, in turn, the availability of punitive damages for both injury and wrongful-death

claims under the Jones Act. See 41 Stat. 1007.4

4

This Court should reject the flawed contention of petitioner

(at 28-29) and some of its amici that it would be anomalous to

allow punitive damages for a vessel owner’s misconduct that results in injury, given that those damages are unavailable when

misconduct produces the more severe consequence of death. That

argument rests on the false premise that punitive damages are

not allowed in wrongful-death cases. The enactment histories and

purposes of both FELA and the Jones Act, as discussed, refute

that premise. See supra at 5-9. Regardless, even assuming the

Jones Act does not affirmatively authorize punitive damages, it

certainly does not clearly abrogate the common-law availability

of punitive damages for general-maritime-law injury claims,

which this Court has recognized. See, e.g., Townsend, 557 U.S. at

10

Moreover, the Jones Act, while incorporating the

rights and remedies available under FELA, does not

limit its protections to those available under FELA.

This Court has recognized that crewmembers and

their families have rights beyond those available to

railway workers. See, e.g., Townsend, 557 U.S. at 424

(authorizing punitive damages awards for “the willful

and wanton disregard of the maintenance and cure obligation”—an obligation that does not exist in the railroad context); see also Injured Crewmembers Amicus

Br. 29-30 (discussing additional situations in which

crewmembers’ rights exceed those available to railway

workers under FELA). The availability of punitive

damages under the Jones Act, in conjunction with the

fact that maritime jurisprudence, prior to the Jones

Act, “was replete with judicial statements approving

punitive damages, especially on behalf of passengers

and seamen,” Townsend, 557 U.S. at 412, favors authorizing punitive damages for unseaworthiness claims

under general maritime law, whether the claim is one

arising from a personal injury or death.

415-18 (explaining why, as to maintenance-and-cure claims, “the

Jones Act does not provide the punitive damages bar that petitioners seek”); see also Resp. Br. 32-42; Injured Crewmembers

Amicus Br. 28. The most appropriate way to avoid an anomalous

result would be to recognize the availability of punitive damages

when a vessel owner’s willful and wanton misconduct causes injury or death. That approach would enable punitive damages to

fulfill their dual punishment and deterrent purposes in the context—death—where such damages are needed most.

11

B. Allowing Recovery of Punitive Damages

for Unseaworthiness Claims Would Be

Consistent With The Long History of

Authorizing Such Damages Under State

Statutes That Governed Claims for

Deaths On The Water Prior To The Jones

Act.

Although the history of wrongful-death actions

under the general maritime law is not as unbroken as

the history of the maintenance-and-cure action, there

is nonetheless a long history—prior to the Jones Act—

of state statutes affording both a cause of action and a

remedy for wrongful deaths. Those state-created

causes of action and remedies were available to claimants seeking recovery for deaths on the water, even at

a time when no such cause of action existed under general maritime law. See, e.g., The Hamilton, 207 U.S.

398, 405-07 (1907) (citing, inter alia, Workman v. City

of N.Y., 179 U.S. 552, 562-63 (1900) (“[I]t has been decided that although at the time of the adoption of the

Constitution, in courts of admiralty as in courts of common law, a cause of action for a personal injury abated

by the death of the injured party, nevertheless, when,

by a state statute, a right of recovery in such a case

was conferred, the admiralty courts would recognize

and administer the appropriate relief.”)). And a number of states authorized recovery of punitive damages,

when appropriate, in connection with wrongful-death

claims.

The history of wrongful death in the maritime context underscores the important role state statutes

12

played in the late nineteenth and early twentieth centuries in protecting the interests of the wards of the

admiralty. In 1886, this Court held that no action for

wrongful death was available under the general maritime law. The Harrisburg, 119 U.S. 99 (1886). And that

remained the law until Moragne v. States Marine

Lines, Inc., 398 U.S. 375 (1970). Moragne overruled The

Harrisburg and held that—in a legal landscape in

which every state had a wrongful-death statute and

Congress had enacted two statutes (DOHSA and the

Jones Act) that provided for wrongful-death actions by

crewmembers and others on the high seas—the general maritime law also should provide recovery for

wrongful death. Id. at 390.

Even when recovery for wrongful death was not

available under general maritime law, however, there

was often an alternative source of recovery for wrongful death on the water. “At the time Congress passed

the Jones Act and DOHSA, federal courts uniformly

applied state wrongful-death statutes for deaths occurring in state territorial waters.” Miles, 498 U.S. at 2324 (citing 41 Stat. 537, 1007); see also The Tungus v.

Skovgaard, 358 U.S. 588, 591 (1959) (referring to the

“long-settled doctrine” that admiralty courts would

hear such cases in accordance with the recovery afforded under state law). In fact, recovery under state

wrongful-death statutes was available even after The

Harrisburg held that recovery was not available under

general maritime law.5 See, e.g., The Hamilton, 207 U.S.

5

The available state statutes may not have provided recovery for wrongful death based on strict-liability unseaworthiness,

13

at 405-06. And, prior to the enactment of DOHSA, recovery grounded in state law even extended beyond

territorial waters. Id.6

At the time the Jones Act was enacted, all 48 thenexisting states had wrongful-death statutes. Brian C.

Colomb, McBride v. Estis Well Service, LLC: The Seaman’s Case for Punitive Damages Under His Unseaworthiness Claim and How the U.S. Fifth Circuit Got

It Wrong, Again, 14 LOY. MAR. L.J. 205, 237 (2015) (“By

the end of the nineteenth century, all states had

adopted some form of death damages: wrongful death,

survival, or both.”). And a significant number of those

states—at least 15 of 48—had statutes (or constitutional provisions) in place that allowed for the recovery

of punitive or exemplary damages in wrongful-death

cases.7 The Nevada statute, for example, provided that

see Moragne, 398 U.S. at 377, instead requiring a showing of negligence to establish liability. See, e.g., Louisville & N.R. Co. v.

Kelly’s Adm’x, 38 S.W. 852, 853 (Ky. 1897) (discussing Kentucky’s

statute allowing recovery for death resulting “from an injury inflicted by negligence or wrongful acts”). However, any case in

which punitive damages are appropriate would involve, at the

least, negligence. See, e.g., Baker, 554 U.S. at 492-93 (discussing

the prevailing rule in American courts requiring heightened degrees of culpability for an award of punitive damages); David W.

Robertson, Punitive Damages in U.S. Maritime Law: Miles,

Baker, and Townsend, 70 LA. L. REV. 463, 464 (2010) (“Punitive

damages aim at punishing reprehensible behavior, teaching the

perpetrator not to do it again, and admonishing others never to

do it”).

6

State wrongful-death statutes still apply to deaths of

non-seafarers within territorial waters. Yamaha Motor Corp.,

U.S.A. v. Calhoun, 516 U.S. 199, 216 (1996).

7

See infra at 13-20 (discussing statutes from Alabama,

Arkansas, Kentucky, Massachusetts, Mississippi, Missouri,

14

“[t]he jury in every such action may give such damages,

pecuniary and exemplary, as they shall deem fair and

just.” Benner v. Truckee River Gen. Elec. Co., 193 F. 740,

741 (C.C.D. Nev. 1911); see also Christensen v. Floriston

Pulp & Paper Co., 92 P. 210, 216-17 (Nev. 1907) (explaining that the only relevant difference between the

Nevada and California wrongful-death statutes was

that the Nevada statute permitted recovery of punitive

damages).

The New Mexico statute was more specific on how

a jury should determine the amount of “fair and just”

damages awarded, but it was just as clear that exemplary damages were permitted. Like the Nevada statute, it states that “the jury in every such action may

give such damages, compensatory and exemplary, as

they shall deem fair and just,” but it then continues,

instructing the jury to “tak[e] into consideration the

pecuniary injury or injuries resulting from such death

to the surviving party . . . and also hav[e] regard to the

mitigating or aggravating circumstances attending

such wrongful act, neglect or default.” Stang v. Hertz

Corp., 463 P.2d 45, 49 (N.M. App.), aff ’d, 467 P.2d 14

(N.M. 1969); see also Folz v. State, 797 P.2d 246, 255-56

(N.M. 1990) (explaining that, in 1891, New Mexico supplemented its original 1882 wrongful-death statute to

add an express provision allowing for punitive damages).

Montana, Nevada, New Mexico, South Carolina, Tennessee, Virginia, Washington, and West Virginia, as well as the Texas constitution).

15

Similarly, the South Carolina statute provided

that “the jury may give such damages, including exemplary damages, where such wrongful act, neglect or default was the result of recklessness, willfulness or

malice, as they may think proportional to the injury.”

Brickman v. S. Ry., 54 S.E. 553, 557 (S.C. 1906). Washington also included in its statute the direction that

“pecuniary and exemplary” damages were permissible,

with its supreme court holding that exemplary damages were allowed “in cases of injuries caused by moral

or legal wrong amounting to willfulness.” Klepsch v.

Donald, 30 P. 991, 994 (Wash. 1892).

Texas enacted a wrongful-death statute in 1860,

drawing on English law. Travelers Indem. Co. of Ill. v.

Fuller, 892 S.W.2d 848, 851 (Tex. 1995). But the Texas

statute left an “ambiguity” regarding the availability

of punitive damages to the decedent’s heirs. See id.

Rather than amend the statute, Texas resolved the ambiguity by amending the state constitution in 1869 “to

allow for punitive damages in favor of the wrongful

death beneficiaries.” Id.; see also TEX. CONST. art. 16,

§ 26 note (Vernon 1993) (amendment added in 1869).

Other states had wrongful-death statutes that did

not include the words “exemplary” or “punitive” in

their text, but state courts construed them to provide

for exclusively punitive damages based on the fault of

the defendant, not the loss suffered by the plaintiff. In

Alabama, for example, the relevant statute was the

16

“Homicide Act.”8 See Parker v. Fies & Sons, 10 So. 2d

13, 15 (Ala. 1942). The “purpose of the [Homicide Act]

was not to compensate or recompense any one, but to

mete civil punishment to the wrongdoer, and thereby

prevent homicides,” with the amount of damages left

entirely in the discretion of the jury. Kennedy v. Davis,

55 So. 104, 105 (Ala. 1911). Similarly, the Massachusetts wrongful-death act was solely a punitive, rather

than compensatory, provision. Boott Mills v. Bos. &

M.R.R., 106 N.E. 680 (Mass. 1914). West Virginia also

had a statute that lacked any reference to punitive or

exemplary damages per se, but that state’s supreme

court nonetheless held that juries had authority to

award “fair and just” damages, subject to a statutory

cap, that were “exemplary and punitive, as well as

compensatory,” and “[a]ny damages imposed in such

cases are a forfeiture for the wrong done.” Turner v.

Norfolk & W.R. Co., 22 S.E. 83, 87 (W. Va. 1895).

The Virginia Supreme Court determined that the

expansive wording of its wrongful-death statute authorized all forms of damages, including punitive damages. See Matthews v. Warner’s Adm’r, 70 Va. (29

Gratt.) 570, 576-77 (1877). The Virginia statute “declared that ‘the jury in any such action may award such

damages as to it may seem fair and just,’” the court

noted, with “no words of limitation.” Id. at 576-77.

8

Although called the “Homicide Act,” the statute covered

negligence as well as intentional killing. Buckalew v. Tenn. Coal,

Iron & R.R. Co., 20 So. 606, 609 (Ala. 1896) (noting that the Homicide Act authorizes recovery of damages for death caused by “the

wrongful act, omission or negligence of any person”).

17

The Mississippi Supreme Court undertook a similar analysis with its statute, which allowed “such damages as the jury may determine to be just, taking into

consideration all of the damages of every kind to the

decedent and all damages of every kind to any and all

parties interested in the suit.” Id. This expansive language, the Mississippi Supreme Court held, was “broad

enough to include damages of every kind and nature

which might have been awarded to the decedent had

he lived and brought suit, and which could be given to

those persons who could bring the suit after his death.”

Id. Thus, a wrongful-death plaintiff could recover punitive damages under the statute. Id.

Incorporation of the phrase “aggravating circumstances” also was viewed as signaling an expansion of

the types of available damages. As the Missouri Supreme Court observed, “[e]arly cases interpreted the

authorization for damages based on aggravating circumstances to allow exemplary or punitive damages.”

Bennett v. Owens-Corning Fiberglas Corp., 896 S.W.2d

464, 466 (Mo. 1995) (citing Parsons v. Mo. Pac. Ry. Co.,

6 S.W. 464, 468 (Mo. 1888), Nichols v. Winfrey, 79 Mo.

544 (1883), and Goode v. Cent. Coal & Coke Co., 151

S.W. 508, 511 (Mo. App. 1912)); see also Calcaterr v.

Iovaldi, 100 S.W. 675, 677 (Mo. 1906) (determining that

exemplary damages are appropriate in cases of “wantonness” or “gross negligence”).9

9

In addition to allowing punitive damages under the general

wrongful-death statute, Missouri courts also allowed punitive

damages under a statute governing claims for deaths caused by

18

The absence of a statutory limitation on the type

of available damages was sufficient, in other states, to

indicate that a general right to punitive damages had

been extended to cases in which an injury resulted in

death. In Kentucky, the state constitution stated:

“Whenever the death of a person shall result from an

injury inflicted by negligence or wrongful acts, then, in

every such case, damages may be recovered for such

death from the corporations and persons so causing the

same.” Louisville & N.R. Co. v. Kelly’s Adm’x, 38 S.W.

852, 853 (Ky. 1897). The Kentucky Supreme Court

held that this language was “intended to extend the

common-law right of action to recover both compensatory and exemplary damages for injuries not resulting

in death to cases in which death ensued.” Id. at 854.

Other state courts were similarly unconstrained

by the absence of an express authorization of punitive

damages in their wrongful-death statutes. Thus, even

though the Tennessee statute made no mention of punitive damages per se, the Tennessee Supreme Court

unhesitatingly held that, “[o]ur statute provides that

the right of action which a person, who dies from injuries received, would have had, had death not ensued,

shall pass to his personal representative,” and those

rights included the right to exemplary damages. Haley

v. Mobile & O. R. Co., 66 Tenn. 239, 242 (1874).

The Montana Supreme Court looked to a general

civil-damages statute to inform its interpretation of its

railroads. Faulk v. Kansas City Rys. Co., 247 S.W. 253, 253 (Mo.

Ct. App. 1922).

19

wrongful-death act, which provided only that “such

damages may be given as under all the circumstances

of the case may be just.” Olsen v. Mont. Ore Purchasing

Co., 89 P. 731, 734 (Mont. 1907). The state civil code,

by contrast, expressly authorized exemplary or punitive damages, stating that “[i]n any action for a breach

of an obligation not arising from contract, where the

defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of

example, and by way of punishing the defendant.” Id.

The court found “no reason” that the general provision

regarding punitive damages should not also apply to

wrongful-death actions. Id.

Finally, the Arkansas Supreme Court approved

punitive-damages awards even though Arkansas’s

wrongful-death statute did not explicitly authorize

such awards. The statute did, however, include language explicitly authorizing damages for loss of society

and mental anguish, as allowing “such damages as will

be fair and just compensation for the pecuniary injuries, including a spouse’s loss of the services and companionship of a deceased spouse and/or mental

anguish resulting from such death, to the surviving

spouse and next of kin of such deceased person.” Vickery v. Ballentine, 732 S.W.2d 160, 161 (Ark. 1987).

Although this language did not speak to the availability of punitive damages, the Arkansas Supreme Court

nevertheless approved such awards in early cases. See

Chi. Mill & Lumber Co. v. Bryeans, 209 S.W. 69 (Ark.

20

1919); St. Louis, Iron Mountain & S. Ry. v. Roberson,

146 S.W. 482 (Ark. 1912).

As this survey shows, the recovery of punitive

damages under state wrongful-death statutes was not

consistent across all states, but a significant number of

states did approve of the award of such damages.

Punitive damages would, therefore, have been available to many plaintiffs bringing suit under state

wrongful-death laws for deaths on the water, even

prior to the Jones Act’s enactment. See, e.g., The Hamilton, 207 U.S. at 407; Workman, 179 U.S. at 562-63.

And federal courts, including this Court, were aware of

that fact. See, e.g., Seaboard Airline R.R. v. Koennecke,

239 U.S. 352, 354 (1915) (acknowledging that the

South Carolina wrongful-death statute under which

plaintiff could have brought suit allowed recovery of

exemplary damages); Benner, 193 F. at 741 (quoting

Nevada statute that specifies exemplary damages may

be awarded). This history, in conjunction with the fact

that, “prior to enactment of the Jones Act in 1920,

‘maritime jurisprudence was replete with judicial

statements approving punitive damages, especially

on behalf of passengers and seamen,’” Townsend,

557 U.S. at 412, militates in favor of authorizing recovery of punitive damages, when appropriate, for unseaworthiness claims, even when a crewmember’s injury results in death.

21

II.

ANY LIMITATIONS ON RECOVERY OF

“NONPECUNIARY”

DAMAGES

FOR

WRONGFUL DEATHS DO NOT APPLY TO

PUNITIVE DAMAGES.

Some courts mistakenly have expanded the holding in Miles, 498 U.S. at 32-33, that one type of

“nonpecuniary” damages—loss of society—may not be

recovered in a wrongful-death action under the general

maritime law as an automatic rejection of punitive

damages in maritime cases. See, e.g., McBride v. Estis

Well Serv., L.L.C., 768 F.3d 382, 390-91 (5th Cir. 2014)

(en banc); Kopczynski v. The Jacqueline, 742 F.2d 555,

560-61 (9th Cir. 1984). That expansion is unwarranted

for two reasons. First, it is inaccurate to put punitive

damages into the category of “nonpecuniary” damages.

Second, whatever label is applied to punitive damages,

those damages are categorically different from the

damages considered in Miles and in the cases on which

Miles relied.

Punitive damages are not properly classified as

“nonpecuniary” damages. And this Court has never

characterized punitive damages as “nonpecuniary,”

distinguishing instead between punitive damages and

compensatory damages (which may include both pecuniary and nonpecuniary losses). See, e.g., Baker, 554

U.S. at 489; Newport v. Fact Concerts, Inc., 453 U.S. 247,

266-67 (1981). Moreover, this Court has described a variety of fines and penalties as “pecuniary punishment.”

See, e.g., Austin v. United States, 509 U.S. 602, 614 n.7

(1993); Okla. ex rel. W. v. Gulf, C. & S.F.R. Co., 220 U.S.

22

290, 299 (1911); Keck v. United States, 172 U.S. 434, 448

(1899).

Nor does the Restatement of Torts endorse classifying punitive damages as “nonpecuniary.” Instead, it

lists four types of damages: “Compensatory Damages

for Nonpecuniary Harm”; “Compensatory Damages for

Pecuniary Harm”; “Nominal Damages”; and “Punitive

Damages.” RESTATEMENT (SECOND) OF TORTS §§ 905-08

(AM. LAW. INST. 1975). Compensatory damages for nonpecuniary harm, which includes damages for bodily

harm and for emotional distress, are damages that

can be awarded “without proof of pecuniary loss.” Id.

§ 905. Punitive damages are damages “other than

compensatory or nominal damages.” Id. § 908; see also

Robertson, 28 J. MAR. L. & COMM. at 80-81 (explaining

that the pecuniary/nonpecuniary distinction is

properly applied only to compensatory damages).

The Court in Miles based its denial of loss-of-society

damages on a determination that the Jones Act allowed recovery of only pecuniary damages. Miles, 498

U.S. at 32-33. That interpretation was not based

directly on the text of the Jones Act, but on the incorporation in that act of standards drawn from FELA.

Id. at 32; see also Resp. Br. 4. And, previously, this

Court had held that FELA allowed only pecuniary

damages—a limitation not stated explicitly in FELA’s

text. Miles, 498 U.S. at 32 (citing Vreeland, 227 U.S. at

69-71). Instead, to interpret FELA, this Court looked

in Vreeland to Lord Campbell’s Act, the English predecessor to state wrongful-death statutes, as the first

statute to permit recovery for wrongful death. 227 U.S.

23

at 71. As this Court stated, “[t]he word ‘pecuniary’ did

not appear in Lord Campbell’s act, nor does it appear

in our act of 1908. But the former act and all those

which follow it have been continuously interpreted as

providing only for compensation for pecuniary loss or

damage.” Id. Thus, this Court held that damages for

loss of society are not recoverable under FELA. Id. at

74.

The distinct issue of punitive damages, however,

was not before this Court in either Vreeland or

Miles. In fact, this Court has never addressed the

availability of punitive damages under FELA.10

Indeed, the Court’s reference in Vreeland to the

unavailability of nonpecuniary damages in “all those

[statutes] which follow” Lord Campbell’s Act, id. at

271, supports excluding punitive damages from the

nonpecuniary category, given that many of those state

statutes in fact allowed recovery of punitive damages

in connection with wrongful-death claims. See supra at

11-20; see also Injured Crewmembers Amicus Br.

21-22. This Court’s FELA and general maritime-law

precedent, therefore, neither establishes that punitive

10

Lower courts that mistakenly have relied on Vreeland to

prohibit awards of punitive damages often cite two other FELA

wrongful-death cases decided by this Court that same year, but

neither addressed punitive damages. See Gulf, Colo. & Santa Fe

Ry. Co. v. McGinnis, 228 U.S. 173, 174-76 (1913) (addressing a

non-dependent child’s claim for compensatory damages); Am.

R.R. Co. v. Didricksen, 227 U.S. 145, 149-50 (1913) (addressing

loss-of-society damages); see also Injured Crewmembers Amicus

Br. 25-28 (exposing lower courts’ flawed reasoning that punitive

damages were categorically unavailable under FELA).

24

damages are nonpecuniary in nature, nor precludes

their availability in unseaworthiness claims, whether

arising from a crewmember’s injury or death.

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

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

WILLIAM L. BANNING

BANNING LLP

16409 Via de Santa Fe

P.O. Box 9600

Rancho Santa Fe, CA 92067-9600

(858) 756-0056

wbanning@banningllp.com

EDWARD M. BULL

KURT L. MICKLOW

BRODSKY MICKLOW BULL

& WEISS LLP

1070 Marina Village Parkway

Suite 200

Alameda, CA 94501

ebull@bmbwlawfirm.com

February 28, 2019

ERIN GLENN BUSBY

Counsel of Record

LISA R. ESKOW

411 Highland Street

Houston, TX 77009

(713) 966-0409

egbusby@swbell.net