Opposition Brief — Ann Wilma Petersen, Petitioner v. NCL (Bahamas) Ltd., dba Norwegian Cruise Line

No. 18-832

IN THE

Supreme Court of the United States

_________

ANN WILMA PETERSEN,

v.

Petitioner,

NCL (BAHAMAS), LTD.

D/B/A NORWEGIAN CRUISE LINE,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

_________

BRIEF IN OPPOSITION

_________

JACK ROY REITER

Counsel of Record

GRAYROBINSON, P.A.

333 SE 2nd Avenue

Suite 3200

Miami, FL 33131

(305) 420-3948

jack.reiter@grayrobinson.com

CATHERINE E. STETSON

KYLE M. DRUDING

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5491

cate.stetson@hoganlovells.com

Counsel for Respondent Norwegian Cruise Line

QUESTION PRESENTED

The Eleventh Circuit unanimously concluded in an

unpublished, per curiam opinion that the spouse of a

cruise-ship passenger could not recover loss-ofconsortium damages under federal maritime law

absent exceptional circumstances or intentional

misconduct, and remanded the passenger’s negligence claim for further proceedings.

The question presented is whether this Court

should review on an interlocutory basis the Eleventh

Circuit’s decision, which (as Petitioner acknowledges) is in line with every federal court of appeals to

have addressed this question.

(i)

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, as of today’s

date Respondent NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line states: it is a wholly owned subsidiary of NCL International, Ltd. (“NCLI”), a Bermuda

company; NCLI is a wholly owned subsidiary of

Arrasas Limited (“Arrasas”), an Isle of Man company; Arrasas is a wholly owned subsidiary of NCL

Corporation Ltd. (“NCLC”), a Bermuda company;

and NCLC is a wholly owned subsidiary of Norwegian Cruise Line Holdings Ltd. (“NCLH”), a Bermuda company publicly traded on the Nasdaq Global

Select Market as of January 31, 2016 (the listing was

transferred to the New York Stock Exchange in

December 2017). As of January 31, 2016, NCLH was

owned by: Star NCLC Holdings Ltd. (“Genting HK”),

a Bermuda company; AIF VI NCL (AIV), L.P., AIF

VI NCL (AIV II), L.P., AIF VI NCL (AIV III), L.P.,

AIF VI NCL (AIV IV), L.P., AAA Guarantor—CoInvest VI (B), L.P., Apollo Overseas Partners (Delaware) VI, L.P., Apollo Overseas Partners (Delaware

892) VI, L.P., Apollo Overseas Partners VI, L.P.,

Apollo Overseas Partners (Germany) VI, L.P., AAA

Guarantor—Co-Invest VII, L.P., AIF VI Euro Holdings, L.P., AIF VII Euro Holdings, L.P., Apollo

Alternative Assets, L.P., Apollo Management VI,

L.P., and Apollo Management VII, L.P. (collectively,

the “Apollo Funds”); TPG Viking, L.P., TPG Viking

AIV I, L.P., TPG Viking AIV II, L.P., and TPG Viking AIV-III, L.P. (collectively, the “TPG Viking

Funds”); and public shareholders. As of January 31,

2016, the relative ownership percentages of NCLH’s

ordinary shares were approximately: Genting HK

(11.2%), Apollo Funds (15.9%), TPG Viking Funds

(2.3%),

and

public

shareholders

(70.6%).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

CORPORATE DISCLOSURE STATEMENT ............ii

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

INTRODUCTION ........................................................ 1

COUNTERSTATEMENT ........................................... 3

ARGUMENT ............................................................... 5

I. THE QUESTION PRESENTED DOES

NOT

WARRANT

THIS

COURT’S

REVIEW .............................................................. 5

A. There Is No Circuit Split ............................... 5

B. The Lower Courts’ Unanimity Does Not

Conflict With This Court’s Precedent ........... 6

C. Dutra Group v. Batterton Has No Bearing On This Case .......................................... 11

II. THIS CASE IS AN EXTRAORDINARILY

POOR VEHICLE FOR THE QUESTION

PRESENTED..................................................... 12

III.THE PETITION DOES NOT RAISE AN

ISSUE OF NATIONAL IMPORTANCE .......... 15

CONCLUSION .......................................................... 17

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

American Exp. Lines, Inc. v. Alvez,

446 U.S. 274 (1980) ................................ 7, 8, 10, 14

Atlantic Sounding Co., Inc. v. Townsend,

557 U.S. 404 (2009) ...................................... passim

Chan v. Society Expeditions, Inc.,

39 F.3d 1398 (9th Cir. 1994) .................................. 5

Complaint of Midland Enters., Inc.,

886 F.2d 812 (6th Cir. 1989) .................................. 8

Doyle v. Graske,

579 F.3d 898 (8th Cir. 2009), as

amended (Oct. 21, 2009) .............................. passim

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) ................................................ 6

Faulkner v. Allstate Ins. Co.,

367 So. 2d 214 (Fla. 1979) ................................... 13

Fitzgerald v. United States Lines Co.,

374 U.S. 16 (1963) .................................................. 9

Gomez v. Pfizer, Inc.,

675 F. Supp. 2d 1159 (S.D. Fla. 2009)................. 13

Horsley v. Mobil Oil Corp.,

15 F.3d 200 (1st Cir. 1994) .................................... 5

Igneri v. Cie. de Transports Oceaniques,

323 F.2d 257 (2d Cir. 1963) ............................... 5, 6

In re Am. River Transp. Co.,

490 F.3d 351 (5th Cir. 2007) ................................ 16

In re Amtrak Sunset Ltd. Train Crash,

121 F.3d 1421 (11th Cir. 1997) .......................... 4, 5

v

TABLE OF AUTHORITIES—Continued

Page(s)

Michel v. Total Transp., Inc.,

957 F.2d 186 (5th Cir. 1992) .................................. 5

Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) ........................................ passim

Mobil Oil Corp. v. Higginbotham,

436 U.S. 618 (1978) ...................................... 7, 8, 11

Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970) ................................................ 6

Nichols v. Petroleum Helicopters, Inc.,

17 F.3d 119 (5th Cir. 1994) .................................... 7

Sea-Land Servs., Inc. v. Gaudet,

414 U.S. 573 (1974) .................................. 6, 7, 8, 11

Tucker v. Fearn,

333 F.3d 1216 (11th Cir. 2003) ............................ 16

Wahlstrom v. Kawasaki Heavy Indus., Ltd.,

4 F.3d 1084 (2d Cir. 1993) ................................... 16

CONSTITUTIONAL PROVISION:

U.S. Const. art. III, § 2, cl. 1 ....................................... 6

STATUTES:

33 U.S.C. § 901 ............................................................ 1

46 U.S.C. § 30302 ...................................................... 10

46 U.S.C. § 30303 ...................................................... 10

46 U.S.C. § 30104 ........................................................ 1

RULE:

Sup. Ct. R. 10............................................................... 5

vi

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES:

Dan B. Dobbs, Paul T. Hayden & Ellen M.

Bublick, The Law of Torts § 392 (2d ed.

2018) .................................................................... 13

Joseph V. Micallef, The Cruise Industry’s

Boom Is Primed To Continue, Forbes

(Sept. 1, 2018), available at

https://bit.ly/2VN0ivB .......................................... 15

IN THE

Supreme Court of the United States

_________

No. 18-832

_________

ANN WILMA PETERSEN,

v.

Petitioner,

NCL (BAHAMAS), LTD.

D/B/A NORWEGIAN CRUISE LINE,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

_________

BRIEF IN OPPOSITION

_________

INTRODUCTION

Petitioner challenges the limits on maritime lossof-consortium claims for spouses of nonseafarers1—

limits uniformly recognized by the lower federal

courts. She has failed to show any reason justifying

this Court’s review, much less a compelling one.

The question presented reflects no circuit split. As

Petitioner concedes, every court of appeals to consid1

A “nonseafarer” is someone who is neither a Jones Act seaman, 46 U.S.C. § 30104, nor a qualifying longshoreman or

harbor worker under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 901 et seq.

(1)

2

er the question has come to the same conclusion,

generating precisely the uniform body of law held

especially critical in the maritime context. Nor is

there any conflict between the Eleventh Circuit’s

precedent and its faithful application of this Court’s

decision in Atlantic Sounding Co., Inc. v. Townsend,

557 U.S. 404 (2009). Nor would the Court benefit

from granting certiorari here to further inform its

deliberations in Dutra Group v. Batterton, No. 18266, which raises different scope-of-liability questions in different procedural postures under different

causes of action that turn on different common-law

and statutory heritages.

Certiorari is also unwarranted because the underlying decision is an extraordinarily poor vehicle to

address the question presented. If the District Court

below resolves her husband’s negligence claim in

favor of Norwegian Cruise Line, Petitioner’s derivative loss-of-consortium claim will be extinguished.

Thus, the case may be mooted by developments in

the ongoing litigation at any time.

Finally, Petitioner has failed to identify any issue

of national importance that the question presented

implicates. The cruise-ship industry doubtless is a

vital and growing part of the American economy.

And maritime law does on occasion present questions

of significant import. This correct, nationally uniform, and unbroken body of lower-court precedent is

not one of them.

The petition should be denied.

3

COUNTERSTATEMENT

This petition arises from a slip-and-fall lawsuit.

Robert Petersen and his wife, Ann Wilma Petersen,

are experienced cruise-ship passengers, having taken

more than ten vacations at sea. Pet. App. 20. Walking barefoot from the “Spice H20 Bar” to the hot tub

on Deck 16 of Norwegian Cruise Line’s ship the

Breakaway, facing “strong winds” and “pelting

water” with drink in hand, Robert Petersen alleges

that he lost his footing and injured himself. Id. at

20–21. He later testified that he was familiar with

the hot-tub facilities at the time of his accident and

that knew that the deck on which he slipped was

wet. Ibid.

The Petersens sued in the Southern District of

Florida, claiming two bases for relief. Robert Petersen pressed negligence. Ann Petersen pressed

loss of consortium stemming from her husband’s

injuries—a derivative claim from her husband’s. The

Petersens lost on summary judgment before the

magistrate judge. In the resulting report and recommendation, the magistrate judge concluded that

Robert Petersen had failed to show a viable negligence claim because the “wet weather conditions”

were objectively “open and obvious” dangers of which

Petersen, as an “avid cruiser,” should have been—

and was in fact—aware. Id. at 24–29. As there was

no independent showing of negligence, the magistrate judge further concluded that “it logically follows that” Ann Petersen’s loss-of-consortium claim

“likewise fails.” Id. at 31.

The magistrate judge reasoned that Ann Petersen’s

claims also were barred for a more fundamental

reason: “general maritime law does not allow for loss

4

of support or loss of services in passenger injury

cases.” See id. at 31–32 (citing In re Amtrak Sunset

Ltd. Train Crash, 121 F.3d 1421 (11th Cir. 1997),

cert. denied sub nom. Altosino v. Warrior & Gulf

Navigation Co., 522 U.S. 1110 (1998)). The District

Court, on review of the Petersens’ objections, affirmed and adopted that report and recommendation.

Id. at 15.

On appeal, the Eleventh Circuit unanimously reversed in part and affirmed in part. In an unpublished, per curiam opinion decided without oral

argument, the panel reversed as to Robert Petersen’s

negligence claim, reasoning that “there is evidence in

the record from which a reasonable juror could

conclude that the deck was unreasonably slippery.”

Id. at 9. The Court of Appeals therefore remanded to

the District Court for further proceedings on a failure-to-warn theory as well as a negligentmaintenance theory the District Court had not

addressed. Id. at 9–11. In doing so, the Court

flagged the fact that Norwegian Cruise Line had

“raised additional alternative arguments in its

defense” and instructed the District Court to consider those “in the first instance.” Id. at 9. Robert

Petersen’s negligence claim remains pending.

The Eleventh Circuit agreed, however, that Ann

Petersen could not assert loss of consortium in any

event because such a claim is not available under the

facts alleged in the Petersens’ negligence complaint.

The Eleventh Circuit considered and rejected the

Petersens’ argument that this Court’s decision in

Townsend undermined that conclusion. Pet. App.

11–12. As the Eleventh Circuit explained, Townsend—which held that “as a matter of general maritime law, a seaman may recover punitive damages

5

for the willful and wanton disregard of the maintenance and cure obligation in the appropriate case”—

did not give rise to loss-of-consortium damages in

passenger negligence cases when “there are no

exceptional circumstances” and “no allegations of

intentional conduct.” Id. at 12.

This petition for certiorari, raising only Ann Petersen’s loss-of-consortium claim, followed. It should

be denied.

ARGUMENT

I. THE QUESTION PRESENTED DOES NOT

WARRANT THIS COURT’S REVIEW.

This Court exercises its discretionary certiorari

jurisdiction “only for compelling reasons.” See Sup.

Ct. R. 10. None exists here.

A.

There Is No Circuit Split.

Petitioner contends that loss-of-consortium damages should be generally available under federal maritime law for nonseafarers’ injuries arising from

negligent conduct. There is no circuit split over this

issue, as Petitioner candidly concedes. See Pet. 11

(“This issue does not involve a split among the circuit

courts of appeals.”). Indeed, every court of appeals to

have considered the issue has reached the same

conclusion, without so much as a dissenting vote.

See Pet. App. 12 (reaffirming In re Amtrak Sunset

Ltd. Train Crash, 121 F.3d 1421 (11th Cir. 1997));

Doyle v. Graske, 579 F.3d 898 (8th Cir. 2009), as

amended (Oct. 21, 2009), cert. denied, 559 U.S. 1036

(Mar. 29, 2010); Horsley v. Mobil Oil Corp., 15 F.3d

200 (1st Cir. 1994); Chan v. Society Expeditions, Inc.,

39 F.3d 1398 (9th Cir. 1994); Michel v. Total Transp.,

Inc., 957 F.2d 186 (5th Cir. 1992); Igneri v. Cie. de

6

Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963)

(Friendly, J.). And both the Eleventh Circuit below

and the Eighth Circuit in Graske did so after considering—and rejecting—the argument that this Court’s

Townsend decision warranted a different result.

This Court denied certiorari on this issue in Graske.

Nothing has changed.

Uniformity among the circuits generally weighs

strongly against certiorari—and all the more so in

the maritime context. Article III’s broad grant of

admiralty jurisdiction empowers the federal courts to

decide a wide range of issues, including the scope of

maritime loss-of-consortium actions, “in the manner

of a common law court, subject to the authority of

Congress to legislate otherwise.” See Exxon Shipping Co. v. Baker, 554 U.S. 471, 489–490 (2008)

(citing U.S. Const. art. III, § 2, cl. 1). Pursuant to

this Court’s guidance, that authority should be

exercised with two goals in mind: providing special

solicitude for the wellbeing of seafarers, and ensuring national uniformity so that the same body of law

governs actions arising from all waters regardless of

where suit may be filed. See Sea-Land Servs., Inc. v.

Gaudet, 414 U.S. 573, 577 (1974) (citing Moragne v.

States Marine Lines, Inc., 398 U.S. 375 (1970)).

Imposing a new categorical rule, and upending

established national consensus under maritime law,

should be reserved for those rare cases demonstrating an exceptionally compelling legal error. This is

not such a case.

B.

The Lower Courts’ Unanimity Does Not

Conflict With This Court’s Precedent.

The lower courts’ uniform rejection of a maritime

loss-of-consortium action for simple negligence is

7

perfectly consonant with this Court’s precedent.

There are four primary decisions, decided over the

last five decades, that inform the question presented:

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

404 (2009), Miles v. Apex Marine Corp., 498 U.S. 19

(1990), American Exp. Lines, Inc. v. Alvez, 446 U.S.

274 (1980), and Sea-Land Services, Inc. v. Gaudet,

414 U.S. 573 (1974). None suggests that the rule

Petitioner seeks is correct, much less adopts it as

controlling.

Petitioner nevertheless argues that the Eleventh

Circuit’s decision cannot “be reconciled with this

Court’s precedents”; indeed, she insists that this

Court has already “answer[ed]” the question presented here “in the affirmative” in Alvez, and that

every court since 1980 has “misapplied” the law. Pet.

i, 5, 4. Alvez did nothing of the sort. In line with

Gaudet, which contemplated maritime loss-ofconsortium claims for spouses of longshoremen

fatally injured in territorial waters, see 414 U.S. at

575, Alvez recognized that loss of consortium may be

recognized under maritime law for the spouse of a

harbor worker nonfatally injured in territorial waters. See 446 U.S. at 275–276. Gaudet and Alvez

have been widely recognized as confined to their

facts. See Miles, 498 U.S. at 30–31 & n.1 (declaring

that “[t]he holding of Gaudet applies only in territorial waters, and it applies only to longshoremen” and

that, in any event, Gaudet had been rendered “inapplicable on its facts” due to subsequent statutory

amendments); Mobil Oil Corp. v. Higginbotham, 436

U.S. 618, 623 (1978) (noting that Gaudet’s holding

“applies only to coastal waters”); see also Nichols v.

Petroleum Helicopters, Inc., 17 F.3d 119, 123 (5th

Cir. 1994) (noting the Supreme Court’s “explicit

8

limitation of Gaudet to its facts, as well as its implicit limitation of Alvez to its facts”). Contrary to Petitioner’s argument, therefore, neither Gaudet nor

Alvez adopted a per se rule making available loss-ofconsortium claims in all cases of maritime law—only

those occurring to longshoremen and harbor workers

in territorial waters.

Nor do Miles and Townsend help Petitioner’s cause.

Miles recognized for seafarers a general maritime

wrongful-death claim, but not a separate one for loss

of society,2 balancing principles of judge-made federal maritime law against the limitations on liability

Congress placed in the Death on the High Seas Act

and the Jones Act. See 498 U.S. at 37. As the Miles

Court explained, beyond Gaudet’s limited carve-out,

the Court otherwise intended to “restore a uniform

rule applicable to all actions for the wrongful death

of a seaman, whether under DOHSA, the Jones Act,

or general maritime law.” Id. at 33; see also Higgonbotham, 436 U.S. at 625–626 (denying loss-ofconsortium action for seafarer fatality outside territorial waters). Townsend, for its part, held that

punitive damages are available to remedy “willful

and wanton” conduct under the doctrine of maintenance and cure, based on that doctrine’s longstanding common-law application, which was unaltered by

the Jones Act. See 557 U.S. at 425.

The general approaches in Miles and Townsend

may appear at first glance to be in some degree of

2

“Loss of consortium” and “loss of society” are used interchangeably when, as here, the relevant parties are spouses.

Complaint of Midland Enters., Inc., 886 F.2d 812, 816 n.4 (6th

Cir. 1989).

9

conflict. But the disparate outcomes stem from the

original sources of seafarers’ rights, not from any

dissonance in analysis. “As this Court has repeatedly explained, ‘remedies for negligence, unseaworthiness, and maintenance and cure have different

origins and may on occasion call for application of

slightly different principles and procedures.’ ” Townsend, 557 U.S. at 423 (quoting Fitzgerald v. United

States Lines Co., 374 U.S. 16, 18 (1963)). The doctrine of maintenance and cure is a common-law

obligation to care for injured seafarers that “dates

back centuries as an aspect of general maritime law”;

the maritime wrongful-death cause of action, by

contrast, exists “only because of congressional action.” Id. at 413, 420. That punitive damages may

be allowed under the former, as a matter of historical

practice, but not the latter, in line with Congress’s

intent, is logically consistent. And in any event,

neither Miles nor Townsend addresses the question

presented here, much less answers it contrary to

every court to have ever considered the issue.

The Eighth Circuit explained why this is so in the

wake of Townsend. Writing for a unanimous court in

Graske, Judge Colloton rejected the precise argument Petitioner makes here, explaining why a maritime loss-of-consortium action was unavailable to the

spouse of a non-seafarer boat passenger claiming

negligent conduct arising beyond the territorial

waters of the United States. Beginning its analysis

with Townsend, this Court’s “most recent guidance

on how to approach this sort of problem,” the Eighth

Circuit concluded that “there is no well-established

admiralty rule, as there is with respect to punitive

damages, authorizing loss-of-consortium damages as

a general matter.” Graske, 579 F.3d at 905–906.

10

Because “general maritime law on loss-of-consortium

damages remains an area marked by few settled

principles,” Judge Colloton gave particular “heed” to

“the policy choices made by Congress” by considering

the “legislative enactments governing closely related

claims.” See id. at 906–907.

Under that framework, the Eighth Circuit gave

three independent reasons for declining to adopt the

rule pressed by Petitioner here. First, allowing a

loss-of-consortium claim under the circumstances

would lead to a disparity between the spouses of

those “injured nonfatally beyond state territorial

waters” and “those injured fatally,” because the

Death on the High Seas Act does not provide for

nonpecuniary damages for the latter. See id. at 907

(citing 46 U.S.C. §§ 30302, 30303). Second, allowing

for a loss-of-consortium claim for the spouses of nonseafarers injured beyond territorial waters would

make non-seafarer spouses’ rights greater than those

available to spouses of injured seamen, because the

Jones Act “does not authorize recovery by the seaman’s spouse for loss of consortium.” Id. (citing

Miles, 498 U.S. at 32). That “odd” disparity in turn

would impermissibly undercut the special solicitude

that maritime law recognizes for the “ ‘welfare of

seamen and their family.’ ” See id. (quoting Miles,

498 U.S. at 36). Finally, adopting a contrary rule

would scuttle “the value of uniformity,” as the Ninth

and Fifth Circuits had already come to the same

conclusion. Id. at 908. While the Graske court

recognized that its holding arguably “creates an

anomaly of its own,” because a loss-of-consortium

claim would be available to nonseafarer spouses

under Alvez for injuries suffered in territorial waters,

that “kind of disparity, however, already exists in

11

maritime law,” owing to Gaudet and Higgonbotham.

Id.

Petitioner cites Graske exactly once on other

grounds, Pet. 6, and nowhere distinguishes the

Eighth Circuit’s closely reasoned reconciliation of

this Court’s relevant precedent. As both the Eighth

Circuit’s opinion in Graske and the Eleventh Circuit’s affirmance below recognize, the conflict Petitioner seeks to drum up simply does not exist. There

is no grounding in either logic or precedent for the

assorted doctrinal extensions necessary to grant

Petitioner the relief she seeks.

C.

Dutra Group v. Batterton Has No Bearing

On This Case.

Petitioner alternatively argues that review should

be granted because this case supposedly is “related

to” Dutra Group v. Batterton, No. 18-266, which is

currently pending before this Court. Not so.

The issue raised here and that in Batterton share a

connection only when viewed at a sufficiently high

level of generality: namely, federal maritime law.

Consider the actual question presented on which this

Court granted certiorari in Batterton:

Whether punitive damages may be

awarded to a Jones Act seaman in a

personal injury suit alleging a breach of

the general maritime duty to provide a

seaworthy vessel.

This case does not involve punitive damages. It does

not involve a Jones Act seaman. And it does not

involve a seaworthiness claim. Each of these differences alone is material and would require additional,

12

distinct lines of legal inquiry far afield from the

Batterton question presented.

Moreover, a cursory peek behind the curtain confirms the meaningfully different paths by which

these cases arrived at this Court. Batterton arises

from a circuit split between the Fifth and Ninth

Circuits (as well as several state courts of last resort)

stemming from confusion about punitive-damagesspecific questions left after Townsend and Miles. See

Pet. for Cert., Dutra Grp. v. Batterton, No. 18-266 at

7–9 (Aug. 30, 2018).3 The Ninth Circuit—breaking

with the Fifth, the circuit with the “leading role in

adjudicating admiralty law (by a wide margin)”—

adopted a rule allowing Jones Act seamen to press

punitive damages in unseaworthiness actions. Id. at

11 & n.4. In addition to undermining national

uniformity, the Ninth Circuit’s expansion of the

availability of punitive damages held special significance because it would potentially allow plaintiffs to

select a favorable forum for their actions. See id. at

23–26. This case presents none of those considerations.

Given these obvious and pervasive differences, this

would-be tagalong case should be left behind, and

certiorari denied.

II. THIS CASE IS AN EXTRAORDINARILY

POOR VEHICLE FOR THE QUESTION

PRESENTED.

This Court’s review is further unwarranted because the underlying case is an extraordinarily poor

3

Available at https://bit.ly/2Uj0thL.

13

vehicle to address the question presented for two

reasons.

First, this case arrives in an interlocutory posture

and may be mooted at any time. Without an independent cause of action, there can be no loss-ofconsortium claim as a matter of black-letter law. See

Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick,

The Law of Torts § 392 (2d ed. 2018) (“[C]ourts

usually say that the consortium claim is derivative,

that is, that it will fail if the primary victim’s claim

would fail, and that damages will be reduced under

comparative fault rules if the primary victim’s damages would be reduced.” (footnote omitted)). The

Eleventh Circuit remanded Robert Petersen’s negligence claim to the District Court, specifically calling

the court’s attention to Norwegian Cruise Line’s

“additional alternative arguments in its defense.”

Pet. App. 9. The Petersens’ case, including that

contested negligence claim, is still pending.4 If any

one of Norwegian Cruise Lines’ alternative arguments prevails, Robert Petersen’s negligence claim

again fails, and so must Ann Petersen’s loss-ofconsortium claim. See, e.g., Gomez v. Pfizer, Inc., 675

F. Supp. 2d 1159, 1163–64 (S.D. Fla. 2009) (citing

Faulkner v. Allstate Ins. Co., 367 So. 2d 214, 217

(Fla. 1979)). Indeed, Petitioner’s loss-of-consortium

claim has already been rejected once on precisely

that basis below. Pet. App. 15, 31.

4

Since having their case remanded by the Eleventh Circuit,

the Petersens have continued to actively litigate, including by

amending their complaint to add new defendants and new

claims. See Second Am. Compl., Petersen v. NCL (Bahamas)

Ltd., No. 16-cv-24421 (S.D. Fla. Dec. 11, 2018), ECF 107.

14

Facing a similar procedural hurdle in Alvez, this

Court concluded that, while the “the question is a

close one,” review was appropriate for a loss-ofsociety claim when other claims were still being

contested because the outcome of that particular

claim had already been decided. See 446 U.S. at

277–279 (observing that the underlying case had by

that time “been tried and respondent Alvez has

prevailed,” and that counsel had conceded at oral

argument that petitioner “will not challenge that

element of the verdict which awarded damages for

loss of society.”); but see id. at 286 (Marshall, J.,

joined by Stewart and Rehnquist, JJ., dissenting)

(arguing that the Court lacked jurisdiction). Exactly

the opposite is true here, as the status of Petitioner’s

loss-of-consortium claim is anything but settled.

This case is also a poor vehicle to resolve the question presented because of the nature of the claim

below. Mrs. Petersen’s putative loss-of-consortium

claim arises from a routine slip-and-fall claim. But

as the Eleventh Circuit panel below recognized, even

if Townsend had some bearing on loss-of-consortium

claims brought by cruise-ship passengers arising

from conduct on the high seas, it would mean only

that such damages may be available in “exceptional

circumstances” or when there have been “allegations

of misconduct.” Pet. App. 12. Unless this Court

were to radically upend the lower courts’ consensus—by fashioning a rule providing that loss-ofconsortium claims are always available—any attempt to limit the scope of this newfound cause of

action would be rendered dicta.

The obvious shortcomings in this case’s posture

strongly counsel against granting certiorari.

15

III. THE PETITION DOES NOT RAISE AN

ISSUE OF NATIONAL IMPORTANCE.

Petitioner has further failed to identify any issue of

national importance implicated by the question

presented. Nor is there any. Petitioner argues that

the “sheer number” of cruise-ship passengers and the

variety of activities offered as part of the modern

cruise experience alone warrant this Court’s review.

See Pet. 12–13. Hardly. To be sure, the cruise-ship

industry is of great importance to the nation’s economy. See Joseph V. Micallef, The Cruise Industry’s

Boom Is Primed To Continue, Forbes (Sept. 1, 2018).5

That does not, however, make the routine application

of approximately six decades of unbroken precedent

worth examining.

This Court’s review is unwarranted for yet another

reason: the Eleventh Circuit—like every other court

of appeals to consider the question—got it right,

aptly striking the balance between a particular cause

of action’s common-law heritage and Congress’s

legislative and policy choices. Indeed, as the Eleventh Circuit observed, a loss-of-consortium remedy

may be available even in cases arising beyond territorial waters if the conduct involves intentional

wrongdoing or other exceptional circumstances

(which Petitioner’s case lacks). See Pet. App. 12.

Expanding that rule to further recognize an unprecedented right to recovery regardless of the nature of

the underlying conduct would dramatically increase

the potential liability against all vessel owners and

operators, from container ships and tankers to

5

Available at https://bit.ly/2VN0ivB.

16

ferries and water taxis to fishing boats and cruise

ships. Raising the costs of routine maritime litigation would unwisely and unnecessarily burden our

commercial fleet. These additional costs, in turn,

would necessarily be passed on to all of us who rely

upon the myriad goods and services American vessel

owners and operators provide.

Congress agrees. As the Eighth Circuit explained,

Congress declined to authorize an analogous source

of recovery for those injured fatally and for seafarer

spouses when enacting the Death on the High Seas

Act and the Jones Act. See Graske, 579 F.3d at 907.

Not only would creating the sort of carve-out Petitioner desires be bad policy; it would thus also break

with the clear thrust of the federal statutory regime

governing modern maritime law without any historically rooted contrary tradition.

The rule Petitioner seeks to advance thus directly

undermines both of the cardinal aims of maritime

law: It would upset a nationally uniform rule, and it

would provide favored treatment to non-seafarer

spouses in derogation of the special solicitude reserved for seafarers and their families. The lower

courts have—correctly and repeatedly—rejected

similar entreaties in analogous circumstances. See,

e.g., In re Am. River Transp. Co., 490 F.3d 351, 359

(5th Cir. 2007) (holding that loss-of-society damages

not available to non-dependent parents of fatally

injured longshoreman); Tucker v. Fearn, 333 F.3d

1216, 1222 (11th Cir. 2003) (holding that loss-ofsociety damages not available to parent of minor

child fatally injured in territorial waters); Wahlstrom

v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1092

(2d Cir. 1993) (same). This Court should as well.

17

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

JACK ROY REITER

Counsel of Record

GRAYROBINSON, P.A.

333 SE 2nd Avenue

Suite 3200

Miami, FL 33131

(305) 420-3948

jack.reiter@grayrobinson.com

CATHERINE E. STETSON

KYLE M. DRUDING

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5491

cate.stetson@hoganlovells.com

Counsel for Respondent Norwegian Cruise Line

MARCH 2019