Petition — Chevron Shipping Co. v. Baptiste

Supreme Court brief1981

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Supreme Court, U.S.

ds: PASO

80-586 OCT 14 1980

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1980

CHEVRON SHIPPING COMPANY (STANDARD OIL COMPANY

OF CALIFORNIA),

Petitioner,

vs.

GILBERT A. BAPTISTE,

Respondent.

On Writ of Certiorari to the Court of

Appeal of California,

Second Appellate District — Division One.

PETITION FOR WRIT OF CERTIORARI.

THOMAS E. WORKMAN, JR.,

Counsel of Record,

JANE H. BARRETT,

Mary J. BusH,

LAWLER, FELIX & HALL,

700 South Flower,

Los Angeles, Calif. 90017,

(213) 629-9300,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented.

Whether punitive damages are recoverable under the

Jones Act (46 U.S.C. § 688) and the federal doctrine of

unseaworthiness given that:

A. The California court’s decision, allowing recovery

of punitive damages, conflicts with this Court’s holdings

that the Jones Act provides only for the recovery of com-

pensatory damages;

B. The California court’s decision conflicts with the

decision of the Sixth Circuit Court of Appeals holding that

punitive damages are not available under the Federal Em-

ployers’ Liability Act (45 U.S.C. § 51 et seq.), (‘‘FELA’’)

an act expressly incorporated into the Jones Act;

C. Under established federal law, the doctrine of

unseaworthiness and the Jones Act are independent theories

of liability allowing for only one recovery of compensatory

damages;

D. By judicially creating a new federal measure of dam-

ages, the California court has made an unconstitutional and

unwarranted intrusion into the power of Congress to legislate

in the area of maritime law.

Additional Parties.

The Superior Court of Los Angeles County of the State

of California is an additional party to this action.

TABLE OF CONTENTS A

Page

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acti ecb ehdnahinvdesdecnsssinchuanindnduess J

Re Md va gtiv cos sescihes ses seccbenseninnhan l

Statutory Provisions Involved ....................00ceeeeees l

IN nc ide des ictadnnaccoocernteveseevececvas l

ee cline inenb sgh iwcdennds udedeas+sscaens 4

I A NO di ives ceetccetecssanhisecoevedser 4

II.

The Measure of Recovery in Jones Act Cases Is Lim-

ited to Compensatory Damages ...................... 5

II.

Since the Jones Act Is Governed by the Federal Em-

ployers’ Liability Act, the California Court’s De-

cision Conflicts With the Circuit Court of Appeals’

Decision Which Specifically Precludes Punitive

SIRE CRESS a EAE a

A. The Law of the FELA Is Controlling in Jones

cael xrsecicedeccsscevecevcseese

B. Since Punitive Damages Are Not Recoverable

Under the Federal Employers’ Liability Act,

They Are Not Recoverable Under the Jones

RARE Sivctupiscbhétiderccassececssansscsescivese

IV.

The Doctrine of Unseaworthiness and the Jones Act

Are Independent Theories of Liability Allowing for

the Recovery of the Same Measure of Compen-

hed otis Sirs sc pesevebeshviorcaccoveacnses

ili

Page

A State Court Cannot Judicially Legislate a Federal

DASOINS CE TONING 6 ics Sa ei ccc sbiccecssediccessedse 13

A. The California Court’s Decision Is a Consti-

tutionally Impermissible Intrusion Into Fed-

ge rpprrerrrerieere Loo prery y 43

B. The California Court’s Decision is an Inap-

propriate Expansion of a Federal Statute ..... 16

SOI us Kani aAlR nin oth Gaiintauswhetesakiacnecnasecaaea 19

INDEX TO APPENDICES

Appendix A. Opinion of the Court of Appeal

Boe a pan (° MAE TP PY) SOG SFDC ED App. p. 1

Dissenting Opinion, Hanson, J. .................:0eeee es 21

sas cbse dnas des tontages 25

Minute Order, Dated Nov. 5, 1979 .................... 26

Order Denying Petition for Writ of Mandate/

NEE creole suited iclat iiss po tvanasénevecbess + vas 28

SR PUI BUI as civ sceesvccvennteveccesseneese 29

Appendix B. Statutory Provisions Involved ........... 30

TABLE OF AUTHORITIES

Cases Page

Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684

Askew v. American Waterways Operators, Inc., 411

Se A EO ta anc cudhinsadoonnen hua th tikcanabemaes

Baltimore S.S. Co. v. Phillips, 274 U.S. 316

CRIED bs:ii's uns cca caleba Fev onstnen teunte eee 11,

Baptiste v. Superior Court, 106 Cal.App.3d 87

SRP OE satarennvFaciietedsveguacns: 4, 5, 9, 10, 11, 13,

Blake v. Port Everglade Towing Co., 425 F.2d 662 (Sth

es RUPE Ba rin aie shaw o vWbu hs aha ence @eama taka ee ean

Butwinski v. Pennsylvania R.R. Co., 249 F.2d 644 (2d

ee PR hieueswodecntukcsikenntsis eon onsen

Chelentis v. Luckenback S.S. Co., Inc., 247 U.S. 372

EE Sees CeAc'vhds okeiciedcaeunubeh kb ewieks ce diekas 15,

Cleveland Tankers v. Tierney, 169 F.2d 622 (6th Cir.

Dorsey v. Steelman, 1 Wash.App. 85, 459 P.2d 416

Ck waclilaidnbhaus id is Midday cpt advevaicnedont spaubetwtas

Downie v. U.S. Lines Co., 359 F.2d 344 (3rd Cir.

DD viysHaeeCOuc le Shd Nines nkatecceciepseermnnaads 6,

Engel v. Davenport, 271 U.S. 33 (1926) ............ 8,

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ......

ray-v; Poteet, 33 NB. S42 CBT) occas cvecaccecscvscces

Ferguson v. Moore-McCormack Lines, Inc., 352 U.S.

ee RNUPER ee chisaiwebekidsnisaxentadshbditielsvayniecinadens

Foudree v. Iron City Sand & Gravel Co., 315 F.2d 647

Ca BEE op bkdan cciigtaecen sea ach k ontphads sabaaien bien

Garrett v. Moore-McCormack Co., 317 U.S. 239

PPI ia Lak sca dia dhdmaadtele ty tate cai dh whoneenkey abbas eiawnue

Page

German v. Carnegie-Illinois Steel Corp., 156 F.2d 977

COS UID adnkc aces dneaal debate bendunbensdentniadds

Hopson v. Texaco, 383 U.S. 262 (1966) ................

Int’l Bhd. Elec. Workers v. Foust, 442 U.S. 42

SPR irs dacictnrcbhnsinkastébunnsbadiie tebbaimecawasgeekes

International Stevedore Co. v. Haverty, 272 U.S. 50

GUE ab cccven biks banaekgecncs da chacheaeeuaenbansesnees

Jamison v. Encarnacion, 281 U.S. 635 (1930) .........

Johnson v. United States, 333 U.S. 46 (1948) ..........

Jordine v. Walling, 185 F.2d 662 (3rd Cir. 1950)

Sendyagt ovas eth leenednikadenniaulasegnin Ciehendekatvedne ll,

Kelley v. Midland S.S. Line, Inc., 162 F.Supp. 68

SPN: BUEN Kis dnd cached nnédepghtinsetenesigsongnine

Kernan v. American Dredging Co., 355 U.S. 426

EN chi i20 sil Mec cilidai guabrdbaavass Goa dueeeswenininbenns

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

RR SATE aI erent. EP PCL Rat ROOD Bt eke BE YF

Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d 1238

GE Sis, GPTER vacates caborscsancgeibessceaptanebehin 7

Lakeshore & Michigan Southern Ry. Co. v. Prentice,

BOF RED FER FID <i vi nesscvacicencndetapiapthebiopetns

Lee v. Pacific Far East Line, Inc. , 566 F.2d 65 (9th Cir.

Lindgren v. United States, 281 U.S. 38 (1930) ........

Maki v. Aluminum Building Producis, 436 P.2d 186

PI TI a blew cinic sdaigsncssices cccunsenpeconseuncenein

Maryland Casualty v. Cushing, 347 U.S. 409 (1954)

-*7>

Page

McAllister v. Magnolia Petroleum Co., 357 U.S. 221

RRR NaGAtekaC ana scale CaaUk cea gihishantey aah cayacauins 11,

McCarthy v. American Eastern Corp., 175 F.2d 724

NE Ves A EPS TERS Uhiah ac aaieawais co's koi censdbckGevdnch

McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143

Sh, ee ME ath oneoisubncctvevcicconcccdbevvnenens

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

DUN Febancass teehee ecetedeesspelAusiebetinssscocrdvotses

Miller v. Kingsley, 194 Neb. 123, 230 N.W.2d 472

DRUM c ay adi cabaachetdiclsa dase edscaebRdios <cnscuehanchoen’

Munson v. Raudonis, 387 A.2d 1174 (N.H. 1978) ....

O’Donnell v. Great Lakes Dredge & Dock Co., 318

ENE ch veosdaackevbbslsslpbasVonhgucdsieneieddesba

Pacific §.S. Co. v. Peterson, 278 U.S. 130 (1928)

OSE Se TES Sa DOME SS eRe S. 3.

Ann sehekodE Rais serckNediedbsbiadbeestsesxdéen’ 6, 8,

Paris Air Crash v. Plaintiffs in MDL 172, 622 F.2d

LEE. NOOR divecsascdeecsndvchestdecuesianvs 16,

Pate v. Standard Dredging Corp., 193 F.2d 498 (Sth

A CS aatehnecibadesbinctcicususss’ Dine scigecaualakitegenes

Paumier v. Barge BT 1793, 395 F.Supp. 1019 (E.D. Va.

MPR Liuhisehpdates ictas cad ead scabbedelpas thvesnbinsyhawsdee

Prather v. Eisenmann, 202 Neb. 1, 261 N.W.2d 766

FRIST E LO AERO REA SEES FRE SE PEEP Ch: I an

Renner v. Rockwell, 403 F.Supp. 849 (C.D.Cal.

Renner v. Rockwell, 587 F.2d 1030 (9th Cir. 1978) ..

Ryan v. Lines Co., 303 F.2d 430 (2d Cir. 1962) ......

Vii

Page

Southern Pacific v. Jensen, 244 U.S. 205 (1917)

Fah eibsasd 6s OGRA ROU MNEs ach eeeS ha aT eau Gels pusdh acd poate 14,

State Ex Rel. Burlington Northern, Inc. v. District

Court, 548 P.2d 1390 (Mont. 1976) .................5.

Steele v. Johnson, 458 P.2d 889 (Wash. 1969) ........

The Lottawana, 88 U.S. (21 Wall.) 558 (1874) ........

Troupe v. Chicago Duluth and Georgian Bay Transit

CO.5: Bae We eee Ce Cake ADDS sc osikveisvesceddains

‘United Mine Workers v. Patlin, all F.2d 742 (1954)

Van Beek v. Sabine Towing Co., 300 U.S. 342

CUE Ac ei evisnneicubstesandcecabid Woniced knees oh eaekiets 6,

Ventoza v. Anderson, 14 Wash.App. 882, 545 P.2d

PET CAFC 5 css iribaoesadecslsoas sath sachupeaniceonbereteeuh

Vratsenes v. N.H. Auto. Inc., 289 A.2d 66 (N.H.

SH 615 15 deCTAERL Sag pancubbeyaae Maudcgereaerons Checieantaee

Constitution

United States Constitution, Art, I, Sec. 8 ............ Fr

United States Constitution, Art. III, Sec. 2 .......... l,

Statutes

Federal Employers’ Liability Act, Sec. 1 (45 U.S.C.

PRD bias akc neue sea cae ben snkseiecict dates \csineeines 1, 6,

Federal Employers’ Liability Act, Sec. 2 (45 U.S.C

SEE sieve van dileava radars inaeenr shades chakdsatbdenonees a;

Federal Employers’ Liability Act, Sec. 6 (45 U.S.C

PPE bch cidade hoXer one daptuvewdacticbetaesccpunaustes bn l,

Federal Employers’ Liability Act, Sec. 7 (45 U.S.C

adds vis pics ccd)a oak cank dees wonananbuaes permminaboone l,

Vili

Page

United States Code, Title 28, Sec. 1333 (Judiciary

PEE ans inc Sana nh uelav cea codes dbabh 1elemenes let eben ae

United States Code, Title 28, Sec. 1441(c) .............. 12

United States Code, Title 45, Sec. 51, et seq. (Federal

Employers” Liability Act) .........: vccocccsccccsesses eee

United States Code, Title 46, Secs. 563-568 ............ 13

United States Code, Title 46, Sec. 688, et seq. (Jones

PU inves lcdsthconsukdendee oad aarsie canes i, 1, 5, 8, 14

Textbooks

1A Benedict, The Law of Admiralty, Sec. 32 (7th ed.

EOOE idk sidsld son siihcasancpapn a ieradadeanePeatelrai setaiadlen 6

2 Benedict, The Law of Admiralty, Sec. 86 (7th ed.

ROUT n+ nib) osnndatghauhas négeas apabaia anes SeaaeniNades 6

Long, Punitive Damages: An Unsettled Doctrine, 25

Drake L.Rev., pp. 875-876, 877, 880, 881 (1976)

Norris, M., The Law of Seamen, Sec. 678, p. 336 (3rd

OB TEPID Rants onesies cxckdigacnh igucattdenetivesndurbeeneens 11

Note, Exemplary Damages in the Law of Torts, 70 Harv.

EIOV., BD. SET, SO SSe CUSSED nconessvnsecvscccessas 18

eee kate

OPINION BELOW.

The opinion of the Court of Appeal of the State of Cal-

ifornia, Second Appellate District — Division One, reported

at 106 Cal.App.3d 87, appears in the Appendix A at pp.

1-24 infra. The California Supreme Court’s denial of the

Petition for Hearing also appears in Appendix A at p. 25

infra.

JURISDICTION.

The Court of Appeal of the State of California, Second

Appellate District — Division One entered its judgment and

opinion on May 23, 1980 and denied a timely Petition for

Rehearing without a ruling on June 22, 1980. The Supreme

Court of the State of California denied a timely Petition for

Hearing on July 16, 1980 and Petitioner filed its Petition

for Certiorari within ninety days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

STATUTORY PROVISIONS INVOLVED.

The text of the following pertinent constitutional and

statutory provisions are set forth in Appendix B infra:

UNITED STATES CONSTITUTION article I, section 8 &

article III, section 2

46 U.S.C. § 688

45 U.S.C. §§ 51, 52, 56 & 57.

STATEMENT OF THE CASE.

A seaman, Gilbert Baptiste (Baptiste), brought suit in a

California state court, against his employer, Standard Oil

Company of California (Standard), for alleged personal in-

juries sustained while in the course of his employment.' The

‘Jurisdiction of the state court to hear the case rests on the Jones Act

(46 U.S.C. § 688, et seq.) and the ‘‘saving to suitors’’ clause of the

Judiciary Act (28 U.S.C. § 1333).

rise, a

complaint was generally pled under the Jones Act and the

maritime doctrine of unseaworthiness and sought compen-

satory damages.

Four and one-half years after filing his complaint, Bap-

tiste amended his complaint to allege punitive damages.

Standard filed Demurrers and a Motion to Strike the punitive

damage allegations on the ground that the Jones Act and

the federal doctrine of unseaworthiness provide only for

recovery of compensatory damages. After oral argument,

the trial court granted Standard’s motion and struck the

punitive damage allegations. In his ruling the trial judge

acknowledged that only- federal law applies, and that under

federal law there is no reliable authority to support the

imposition of punitive damages. (A copy of the Minute

Order of the Los Angeles County Superior Court appears

in Appendix A at p. 26 infra.) Baptiste then filed a Petition

for Writ of Mandate and/or Prohibition with the California

Court of Appeal. The California Court of Appeal denied the

Writ. (A copy of the denial appears in Appendix A at p.

28 infra.) Baptiste then petitioned for hearing before the

California Supreme Court. The court granted a hearing and

ordered the action transferred to the California Court of

Appeal which ordered briefing and oral argument. (A copy

of the Order appears in Appendix A at p. 29 infra.)

In a two to one decision, the California Court of Appeal

granted Baptiste’s petition and issued its writ directing the

trial court to reinstate the punitive damage allegations and

prayer in Baptiste’s amended complaint. To obtain review

of this decision, Standard filed a timely Petition for Re-

hearing in the California Court of Appeal which was denied

by operation of law on June 22, 1980. Standard then sought

further review of the decision by filing a timely Petition for

Hearing with the California Supreme Court. The California

ee, xem

Supreme Court denied Standard’s petition without comment

on July 16, 1980. This Petition has been filed within ninety

days of that date.

7’,

at We

ARGUMENT.

Summary of Argument.

The published decision and order of the California court

is totally unprecedented. For the first time in United States

legal history a court has held, as a matter of law, that a

seaman is entitled to recover punitive damages against his

maritime employer. The decision ignores Congress’ legis-

lative mandate and this Court’s decisions holding that the

Jones Act provides only for recovery of compensatory

damages.

The decision is also in direct conflict with a decision of

the Sixth Circuit Court of Appeals denying recovery of

punitive damages in FELA cases and squarely rejects nu-

merous decisions of this Court holding that FELA law is

controlling in Jones Act cases. The decision will encourage

forum shopping, create conflicts between state and federal

courts and seriously erode the power of Congress under the

United States Constitution to legislate in the area of maritime

law.

The California court has thus totally disrupted federal law

as it affects maritime employers and employees and

destroyed the ..ecessary uniformity of federal maritime law.’

Since a substantial federal question is presented and the

California decision is in conflict with a decision of the Sixth

7As the dissenting California justice stated:

**In my opinion it is not only highly improper and

but also ly unwise for a California state court of review

judicial fiat to invade the federal jurisdiction and to

onto federal maritime law a punitive damage claim none

presently exists, thereby destroying the important concept of the

need to e uniformity in maritime tort law regardless of the

- of injury.”’ Baptiste v. Superior Court, 106 Cal.App.3d

7, 106 (1980) (Appendix A at p. 23).

Be ede

Circuit Court.of Appeals and holdings of this Court, it is

essential that this Court review the California decision.

Il.

The Measure of Recovery in Jones Act Cases Is Limited

to Compensatory Damages.

Rationalizing its erroneous decision allowing recovery of

punitive damages in maritime cases, the California court

relied upon an opinion vacated by the Ninth Circuit’ and

displayed its misunderstanding of federal law by relying

upon a single pre-Erie diversity case to generalize about

federal comunon law.* The California court also hinged its

decision on the fallacious premise that this Court has never

waivered from its support of punitive damages as a common

law measure of recovery. Baptiste v. Superior Court, supra

at 96 (Appendix A at p. 9). By failing to rely upon applicable

federal law, the court’s decision is in direct conflict with

decisions of this Court limiting the measure of recovery in

a Jones Act case to compensatory damages.

In 1920, Congress enacted what has become known as

the Jones Act. 46 U.S.C. § 688. Upholding the constitu-

tionality of the statute, this Court in 1923 recognized that

the measure of recovery in a Jones Act action is for com-

‘In support of its opinion, the California court relied upon the district

court gee in Renner v. Rockwell, 403 F.Supp. 849 (C.D.Cal. 1975).

Since the Ninth Circuit vacated and remanded that decision, the opinion

is not legal authority. Renner v. Rockwell, 587 F.2d 103%, 1031 (9th

Cir. 1978).

“The California court cited Lakeshore & Michigan Southern Ry. Co.

v. Prentice, 147 U.S. 101 (1893) for the proposition that punitive

damages have long been an integral part of federal common law. The

California court’s singular reliance upon Lakeshore is improper given

the modern definition of federal common law after Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938), the fact that Lakeshore is neither a

FELA nor a Jones Act case, and the fact that in 87 years the case has

never been cited for the proposition that punitive damages are embodied

in federal common law.

a ae

pensatory damages.° Panama R.R. Co. v. Johnson, 264

U.S. 375, 391 (1923). In 1928, this Court emphasized:

‘*whether or not the seaman’s injuries were occasioned

by the unseaworthiness of the vessel or by the negli-

gence of the master or members of the crew, or both

combined, there is but a single wrongful invasion of

his primary right of bodily safety and but a single legal

wrong, Baltimore §.S. Co. v. Phillips, supra, 321, for

which he is entitled to but one indemnity by way of

compensatory damages.’’ Pacific S.S. Co. v. Peterson,

278 U.S. 130, 138 (1928).

See generally 1A Benedict, The Law of Admiralty, § 32

(7th ed. 1980). $5

Thus, it is the rule that a seaman injured by the tortious

conduct of his employer is entitled to a damage award com-

mensurate with the nature and extent of his injury. Downie

v. U.S. Lines Co., 359 F.2d 344 (3rd Cir. 1965). Such a

damage award will include reimbursement for lost earnings,

Ryan v. Lines Co., 303 F.2d 430 (2d Cir. 1962); medical

expenses, Butwinski v. Pennsylvania R.R. Co., 249 F.2d

644 (2d Cir. 1957); and pain and suffering, Blake v. Port

Everglade Towing Co., 425 F.2d 662, 663 (Sth Cir. 1970).

‘In an action brovght under the death provisions of the Jones Act,

the measure of recovery is limited to compensation for pecuniary loss.

Van Beek v. Sabine Towing Co., 300 U.S. 342, 347 (1937). The Sixth

Circuit, while interpreting § 1 of the FELA (45 U.S.C. § Si), as it

applies to the Jones Act discussed this measure of damages:

‘the damages recoverable under the statute are held to be

equivalent to compensation for deprivation of the reasonable ex

pectation of pecuniary benefits that would ffave resulted for the

continued life of the deceased. Chesapeake & Ohio Ry. Co. v.

Kelly, 241 U.S. 485 (citation omitted); American R.R. Co. of

Porto Rico v. Didrickson, 227 U.S. 145, 149 (citation omitted).

The liability is for pecuniary damages and for that only. Michigan

Central R.R. Co. v. Vreeland, 227 U.S. 59 (citation omitted).”’

(Emphasis added) Cleveland Tankers v. Tierney, 169 F.2d 622,

624 (6th Cir. 1948).

See 2 Benedict, The Law of Admiralty, § 86 (7th Ed. 1980).

Fest, at

If a seaman’s injuries are permanent, he is entitled to reim-

bursement for loss of future earning capacity. Foudree v.

Iron City Sand & Gravel Co., 315 F.2d 647, 650-651 (3rd

Cir. 1962). In addition, he may recover compensation for

the physical and mental effects of the injury on his ability

to normally contribute to the enjoyment of life. Downie v.

U.S. Lines Co., supra at 347.

As outlined above, compensatio.. for the loss or injury

incurred is recognized as the sole measure of damages in

an action maintained under the Jones Act. The California

court’s novel decision to now allow punitive damages is

clearly in conflict with long established federal law and

must be reversed.

Ill.

Since the Jones Act Is Governed by the Federal Em-

ployers’ Liability Act, the California Court’s De-

cision Conflicts With the Sixth Circuit Court of

Appeals’ Decision Which Specifically Precludes

Punitive Damages.

The California court’s decision expressly repudiates the

long standing principle that the law of the Federal Employ-

ers’ Liability Act is applicable and controlling in Jones Act

cases. Despite the express incorporation of the Federal Em-

ployers’ Liability Act in the Jones Act, the California court

refused to follow applicable law. By so holding, the Cali-

fornia court rejected the decision of the Sixth Circuit Court

of Appeals in Kozar v. Chesapeake & Ohio Ry. Co., 449

F.2d 1238 (6th Cir. 1971). In Kozar the Court held as a

matter of law that punitive damages are not available under

the Federal Employers’ Liability Act.

A. The Law of the FELA Is Controlling in Jones Act Cases.

The Jones Act adopts the law of the Federal Employers’

Liability Act (45 U.S.C. § 51 et seq.) governing actions

against railroads brought by their employees.° In 1926, this

Court discussed this incorporation by stating:

‘**The adoption of an earlier statute by reference,

makes it as much a part of the latter act as though it

had been incorporated at full length. (Citations omitted)

It brings into the latter act ‘all that is fairly covered by

the reference (Citations omitted) that is to say, all the

provisions of the former act which, from the nature of

the subject matter, are applicable to the later act.’ ”’

Engel v. Davenport, 271 U.S. 33, 38 (1926).

In compliance with the statute, this Court has adopted for

the Jones Act not only the FELA statutory provisions but

the entire FELA judicially developed doctrine of liability.’

For example, this Court in Jones Act cases has applied the

statute of limitations from § 6 of the FELA (45 U.S.C.

§ 56) rather than from California law, Engel v. Davenport,

271 U.S. 33 (1926); utilized the FELA statutory abolishment

of the fellow servant rule and accompanying FELA case

*The Jones Act states in unequivocal terms:

**Any seaman who shall suffer personal injury in the course of

his employment may, at his election, maintain an action for dam-

ages at law, with the right of a trial by jury, and in such actions

all statutes in the United States modifying or extending the com-

mon law right or remedy in cases of personal injury to railroad

employees shall apply . . .’’ (Emphasis added). 46 U.S.C. § 688.

See Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924) (upholding the

constitutionality of the Jones Act incorporation of the FELA).

"In Kernan v. American Dredging Co., 355 U.S. 426 (1958), a case

permitting recovery for the death of a seaman resulting from the

violation of a statutory duty, this Court held:

““We find no difficulty applying these principles, developed

under the FELA. to the present action under the Jones Act, for

the latter Act expressly provides for seamen the cause of action

— and consequently the entire judicially developed doctrine of

liability — granted to railroad workers by the FELA. The de-

ceased seaman here was in a position perfectly analogous to that

of the railroad workers allowed recovery in the line of cases we

have discussed, and the principles governing those cases clearly

should apply here.’’ /d. at 439.

gillian

law while extending the term ‘‘seaman’’ to stevedores, /n-

ternational Stevedore Co. v. Haverty, 272 U.S. 50 (1926);

utilized § 1 of the FELA (45 U.S.C. § 51) and FELA case

law to determine that an administrator is not entitled to

maintain an action where a seaman dies leaving no survivors

designated as beneficiaries, Lindgren v. United States, 281

U.S. 38 (1930); defined negligence utilizing FELA case

law, Jamison v. Encarnacion, 281 U.S. 635 (1930); inter-

preted §§ 1 and 2 of the FELA (45 U.S.C. §§ 51 and 52)

holding that a mother’s claim for pecuniary loss caused by

her son’s death does not abate upon her death, Van Beek

v. Sabine Towing Co., 300 U.S. 342 (1936); determined

a course of employment issue utilizing FELA case law,

O’ Donnell v. Great Lakes Dredge & Dock Co., 318 U.S.

36, 38-39 (1943); applied res ipsa loquitur as utilized under

the FELA, Johnson v. United States, 333 U.S. 46 (1948);

utilized § 7 of the FELA (45 U.S.C. § 57) to hold that a

Jones Act action survives the action of a tortfeasor, Cox v.

Roth, 348 U.S. 207, 208-209 (1955); followed an FELA

test to determine sufficiency of evidence on the issue of

negligence, Ferguson v. Moore-McCormack Lines, Inc.,

352 U.S. 521 (1957); and determined an agency issue by

interpreting § 1 of FELA (45 U.S.C. § 51) and FELA case

law, Hopson v. Texaco, 383 U.S. 262 (1966).

The California court ignored these numerous decisions

and the express language of the Jones Act by holding that

decisions under the Federal Employers’ Liability Act are

not controlling in Jones Act cases. Baptiste v. Superior

Court, supra at 104 (Appendix A at p. 19). This blatant

rejection by the California court of long standing federal

law creates unnecessary controversy as to whether this

Court’s previous holdings are still law. California’s rejection

of federal law must be reversed.

aay, vem

B. Since Punitive Damages Are Not Recoverable Under the Fed-

eral Employers’ Liability Act, They Are Not Recoverable Un-

der the Jones Act.

The Sixth Circuit, in Kozar v. Chesapeake & Ohio Ry.

Co., 449 F.2d 1238 (6th Cir. 1971), as well as the Montana

Supreme Court, in State Ex Rel. Burlington Northern, Inc.

v. District Court, 548 P.2d 1390 (Mont. 1976), held that

punitive damages are not available under the Federal Em-

ployers’ Liability Act as a matter of law. In Kozar, the Sixth

Circuit squarely faced the issue of whether punitive damages

were available under the Federal Employers’ Liability Act.

In its decision, the court not only reviewed the legislative

history and purpose of the FELA, but also cited numerous

decisions in which damages under the FELA have been

limited to actual pecuniary loss. Kozar, supra at pp. 1240-

1243. The Sixth Circuit quoted from Michigan Central R.R.

Co. v. Vreeland, 227 U.S. 59 (1913) in which this Court

commented:

‘It is a liability for the loss and damages sustained

by relatives dependent upon the decedent. It is therefore

a liability for the pecuniary damage resulting to them

and for that only.’’ Kozar, supra at 1243, quoting

Michigan Central, supra at 68.

The California court’s failure to follow applicable law as

pronounced by the Sixth Circuit is indefensible. The deci-

. sion creates a direct conflict in an area which requires uni-

formity of decision. By establishing this conflict, litigants

are now encouraged to forum shop and as the dissenting

opinion in Baptiste states:

‘It is reasonably foreseeable that litigants and law-

yers from all over the United States (indeed the world)

may rush into California courts with their maritime

cases seeking ‘windfall’ exemplary damages, thus

either sinking our already overcrowded courts into the

briny deep or requiring the long suffering California

ae eae

taxpayers to add more courts to act as bilge pumps to

process such out of state claims in order to stay afloat.

This possibility punctuates the desirability of a uniform

maritime law and any changes in the present law should

be left to federal authorities in order to insure the case

load is spread throughout the various states.’’ Baptiste

v. Superior Court, 106 Cal.App.3d 87, 107 n.3 (1980)

(Appendix A at p. 24).

IV.

The Doctrine of Unseaworthiness and the Jones Act Are

Independent Theories of Liability Allowing for the

Recovery of the Same Measure of Compensatory

Damages.

Although an action under the Jones Act and an action

based upon the doctrine of unseaworthiness were thought

at one time to be separate and distinct causes of action, this

Court in 1927 held that these claims were merely alternative

grounds of recovery of a single cause of action. Baltimore

S.S. Co. v. Phillips, 274 U.S. 316 (1926); McAllister v.

Magnolia Petroleum Co., 357 U.S. 221, 225 (1958); Jor-

dine v. Walling, 185 F.2d 662, 670 (3rd Cir. 1950); M.

Norris, The Law of Seamen § 678 at 336 (3rd ed. 1970).

In 1928, this Court reaffirmed this principle by stating:

‘(Whether or not the seaman’s injuries were oc-

casioned by the unseaworthiness of the vessel or by

the negligence of the master or members of the crew,

or both combined, there is but a single wrongful in-

vasion of his primary right of bodily safety and but a

single legal wrong, Balfimore S.S. Co. v. Phillips,

supra, 321, for which he is entitled to but one in-

demnity by way of compensatory damages.”’ Pacific

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

(Emphasis added). ~~

Oe, RN

Today, a Jones Act negligence action is viewed not as

an alternative to unseaworthiness but rather as a cumulative

remedy allowing a seaman to plead both in the same action.

Paumier v. Barge BT 1793, 395 F.Supp. 1019, 1032

(E.D.Va. 1974); Kelley v. Midland §.S. Line, Inc., 162

F.Supp. 68 (W.D.N.Y. 1956). Baptiste followed this

practice in his complaint.

Since both liability theories are based upon the same

operative facts construing a single cause of action, a judg-

ment rendered upon either a Jones Act claim or an unsea-

worthiness claim will bar a subsequent lawsuit based upon

the other theory. Baltimore S.S. Co. v. Phillips, 274 U.S.

316 (1927); Troupe v. Chicago Duluth and Georgian Bay

Transit Co., 234 F.2d 253, 258 (2nd Cir. 1956). The claims

are not separate and independent claims under Title 28

United States Code Section 1441(c), so as to allow for

removal. Pate v. Standard Dredging Corp., 193 F.2d 498,

501 (Sth Cir. 1952). Nor are claims for unseaworthiness

entitled to a shorter period of limitations than claims under

the Jones Act. McAllister v. Magnolia Petroleum Co., supra

at 224-225.

The California court ignored federal decisional law lim-

iting a plaintiff who brings a cause of action under both

unseaworthiness and the Jones Act to a single recovery for

compensatory damages. Lee v. Pacific Far East Line, Inc.,

566 F.2d 65, 68 (9th Cir. 1977); McCarthy v. American

Eastern Corp., 175 F.2d 724, 727 (3rd Cir. 1949); Jordine

v. Walling, supra; German v. Carnegie-Illinois Steel Corp.,

156 F.2d 977, 979 (3rd Cir. 1946). This single recovery

is compelled, since unseaworthiness and Jones Act negli-

gence counts are considered to ‘‘seek the same damages for

ce, ee

a single injury. Only the legal liability differs.’’ Leith v.

World Transport Co., 321 F.2d 591, 592 (3rd Cir. 1963).°

Because federal decisional law is unwavering in its view

that the same measure of compensatory damages must be

recovered in actions based on unseaworthiness and the Jones

Act, the California court’s ruling allowing punitive

damages must be reversed.

A State Court Cannot Judicially Legislate a Federal

Measure of Damages.

A. The California Court’s Decision Is a Constitutionally Imper-

missible Intrusion Into Federal Maritime Law.

The United States Constitution mandates a national body

of maritime law.’ The admiralty clause extends the federal

judicial power ‘‘to all Cases of admiralty and maritime

Jurisdiction,’’ while article I, § 8 recognizes that Congress

has the paramount power to legislate in the area of maritime

law. U.S. Const., art. Ill, § 2; art. I, § 8. Utilizing that

power, Congress has deliberately and consistently legislated

in such areas as maritime employment and personal injury

compensation. E.g. 46 U.S.C. §§ 563-568. Interpreting and

supplementing such legislation, federal courts have enun-

*The California court recognized the two theories to in reality be

only one. In referring to them as ‘‘Siamese twins,’’ it acknowledged

there could be only one measure of recovery. Baptiste v. Superior

Court, 106 Cal.App.3d 87, 99 (1980).

*By virtue of the United States Constitution and the ‘‘saving to suit-

ors’’ clause of the Judiciary Act, state courts have concurrent jurisdic-

tion with federal courts to entertain and try actions pled pursuant to the

Jones Act and under general maritime law. U.S. Const. art. III § 2;

28 U.S.C. § 1333. Because of the multiplicity of conceivable judicial

forums, this Court since 1874 has consistently recognized the need to

preserve uniformity so that the remedies and rights of the parties will

remain consistent regardless of the tribunal. The Lottawana, 88 U.S.

(21 Wall.) 558, 595 (1874). Consequently, United States maritime law

= by necessity a national body of law requiring uniform application.

pore Yee

ciated a body of national maritime law. Totally ignoring

this constitutional design, the California court’s decision

expands and alters federal law to allow the recovery of

punitive damages under the Jones Act (46 U.S.C. § 688,

et seq.) and the federal maritime doctrine of unseaworthi-

ness. This attempt to judicially legislate federal maritime

law cannot withstand constitutional scrutiny and must be

reversed.

In early landmark decisions, this Court enunciated what

has become known as the Jensen Doctrine. Southern Pacific

v. Jensen, 244 U.S. 205 (1917); Knickerbocker Ice Co. v.

Stewart, 253 U.S. 149 (1920). As first proclaimed, this

doctrine prohibits a state from modifying, expanding or

interfering with any law governing maritime matters.'° Al-

In an earlier decision, this Court stated:

‘*As the plain result of these recent opinions and the earlier

cases upon which they are based, we accept the following doc-

trine: The Constitution itself adopted and established, as part of

the laws of the United States, approved rules of the general mar-

itime law and empowered Congress to legislate in respect of them

and other matters within the admiralty and maritime jurisdiction.

Moreover, it took from the States all power, by legislation or

judicial decision, to contravene the essential purposes of, or to

work material injury to, characteristic features of such law or

to interfere with its proper harmony and uniformity in its inter-

national and interstate relations. To preserve adequate harmony

and ag te gone uniform rules relating to maritime matters and

bring them within control of the Federal Government was the

fundamental purpose; and to such definite end Congress was

empowered to legislate within that sphere.

**Since the beginning, Federal courts hay? recognized and

applied the rules and principles of maritime law as something

distinct from laws of the several States — not derived from or

dependent on their will. The foundation of the right to do this,

the purposes for which it was granted, and the nature of the

system so administered, were distinctly pointed out long ago.

“That we have a maritime law of our own, operative throughout

the United States, cannot be doubted. . . . One thing, however,

is unquestionable; the Constitution must have referred to a system

of law coextensive with, and operating uniformly in, the whole

country. /t certainly could not have been the intention to place

the rules and limits of maritime law under the disposal and reg-

ulation of the several States, as that would have defeated the

uniformity and consistency at which the Constitution aimed on

ao ae

though this Court has lessened this once intractable rule by

allowing states to provide in limited areas for application

of state law, the Jensen Doctrine is still viable in ‘‘suits

relating to the relationship of vessels, plying the high seas

and our navigable waters and to their crews.’’ Askew v.

American Waterways Operations, Inc., 411 U.S. 325, 344

(1973).'’ Consequently, whenever states have attempted to

modify, alter or expand maritime law in the context of

seaman’s litigation, this Court has struck down such

encroachments.

This Court has consistently refused to allow modification

of federal maritime law by state action. For example this

Court disallowed the use of the Pennsylvania burden of

proof rule in Jones Act cases. Garrett v. Moore-McCormack

Co., 317 U.S. 239 (1942). Similarly, this Court held that

neither California nor Florida could apply state laws re-

garding statute of limitations in Jones Act cases. Engel v.

Davenport, 271 U.S. 33 (1926); Cox v. Roth, 348 U.S. 207

(1954). In another case, this Court faced the sole issue of

whether a Louisiana direct action statute violated ‘‘the Jones

Act, the Limited Liability Act, and a Constitutional grant

to the Federal government of exclusive jurisdiction in mar-

itime matters.’’ Answering the issue in the affirmative, this

Court held the Louisiana statute could not be applied in a

seaman’s case. Maryland Casualty v. Cushing, 347 U.S.

409, 412 (1954).

To prevent modification of maritime law, this Court held

prior to the enactment of the Jones Act:

“Under the doctrine approved in Southern Pacific

Co. v. Jensen, no State has power to abolish the well

all subjects of a commercial character affecting the intercourse

of the States with each other or with foreign states.’ The Lotta-

wanna, 21 Wall. 558, 574, 575." Knickerbocker Ice Co. v.

Stewart, supra at 160-161 (emphasis added).

"In Askew v. American aed vy Operators, Inc., 411 U.S, 325

(1975), this Court allowed to stand a Florida statute which was designed

to protect the coastline of Florida from pollution.

recognized maritime rule concerning measure of re-

covery and substitute thereof the full indemnity rule

of the common law. Such a substitution would dis-

tinctly and definitely change or add to the settled mar-

itime law; and it would be destructive of the ‘uniformity

and consistency at which the Constitution aimed on all

subjects of a commercial character affecting the inter-

course of the States with each other or with foreign

states.’ ’’ (Emphasis added). Chelentis v. Luckenback

S.S. Co. Inc., 247 U.S. 372, 382 (1918).

Two years after this Court’s decision in Chelentis, Congress

enacted the Jones Act granting seamen the right to recover

compensatory damages under a negligence standard. Yet

the holding of Chelentis, that a state does not have the power

to change the measure of damages recoverable in a maritime

case, is still valid. Since the measure of damages in Jones

Act cases is limited to compensatory damages, Pacific S.S.

Co. v. Peterson, 278 U.S. 130, 138 (1928); see Panama

R.R. Co. v. Johnson, 264 U.S. 375, 391 (1924), a state

court does not have the power to change this measure of

damages to include punitive damages.

B. The California Court’s Decision Is an Inappropriate Expansion

of a Federal Statute.

Where a federal statute such as the Jones Act does not

expressly provide for the recovery of punitive damages, a

court and particularly a state court, should not judicially

legislate such. The Ninth Circuit recently followed that prin-

ciple upholding the constitutionality of California’s wrong-

ful death statute which precludes punitive damages. Paris

Air Crash v. Plaintiffs in MDL 172, 622 F.2d 1315 (9th

Cir. 1980). In so holding, the Ninth Circuit rationalized its

decision with two points of compelling interest.

ROR”, sos

First, by recognizing that the legislature should be given

broad discretion, the Ninth Circuit refused*to substitute its

judgment for that of the legislature. In contrast to the Ninth

Circuit’s deference to the California legislature, the Cali-

fornia Court of Appeal has judicially restructured maritime

damages by allowing punitive damages. The clearest anal-

ysis of the refusal to interfere with legislative prerogatives

was provided by the Fourth Circuit Court of Appeals when

it said:

‘*Where Congress has intended that damages in ex-

cess of actual damage sustained by plaintiff may be

recovered in action created by statute, it has found no

difficulty in using language appropriate to that end.

Thus, in copyright cases, 17 U.S.C.A. § 1, in patent

cases, 35 U.S.C.A. § 284, and in anti-trust cases, 15

U.S.C.A. § 15, the right to recover treble damages is

expressly given.’’ United Mine Workers v. Patlin, 211

F.2d 742, 744 (1954).

The decision in Paris Air Crash also demonstrates the

tendency of federal courts to apply a ‘“‘restraining’’ hand

rather than a ‘“‘liberal’’ one when faced with a punitive

damage issue. Paris Air Crash v. Plaintiffs in MDL 172,

622 F.2d 1315, 1318 (9th Cir. 1980). Such restraint is

needed because of the serious and often unpredictable effects

of allowing punitive damage actions. /d. at 1320. The Ninth

Circuit emphasized that:

‘Judicial restructuring of a matter as complex as the

incidence and effects of punitive damages would be

especially prone to unforeseeable error.’’ Jd. at 1319

n.5.

The California court using its ‘‘liberal hand’’ and without

consideration of the United States Congress severely altered

federal maritime law. Judicial tinkering on the state level

with a federal statute which directly affects the workings

—

of an industry that operates in many states and abroad is

grossly unwarranted and unwise.

Recently, this Court restrained from providing for pu-

nitive damages in an action under the Railway Labor Act.

Int’l Bhd. Elec. Workers v. Foust, 442 U.S. 42, 52 (1979).

Just as the fundamental purpose of unfair representation

suits is to compensate for injuries caused by violations of

employees’ rights, /d. at 48-49, the fundamental purpose

of the Jones Act is to compensate seamen injured in the

course of their employment for their pecuniary loss. Such

a compensatory purpose will not be served by applying

punitive damages.

To allow a punitive damage claim, in a seaman’s action,

will play havoc with federal maritime law and destroy nec-

essary uniformity. A California court should not and con-

Stitutionally cannot presume punitive damage law should

be engrafted upon federal maritime law forcing its social

views upon its sister states,'? the federal court and the United

“Although most states allow the recovery of punitive damages, there

is no neticnwide consistency as to whether they should be imposed,

when they should be i and the type of conduct required to

support an award. Several states refuse to award them. In those states

allowing punitive es, the conduct required to support them ranges

from “oppression, , or malice’’ on the one extreme to ‘‘rudeness"’

or mere b 9 on the other. Long, Punitive Damages: An Unsettled

Doctrine, DRAKE L.REV. 870, 881 (1976). Not only does the

range of conduct vary from state to state, the rationale wo aed yee

the awards differ. Some view them as damages to punish deter

while others view them as purely compensatory in nature. /d. at 875-

876; Note, Exemplary Damages in the Law of Torts, 70 HARV. L.REV.

517, 520-522 (1957). Still others view them as vindictive in nature to

be awarded only for revenge. Long, supra at 877.

Several states specifically forbid imposing punitive damages in civil

cases. Nebraska and New Hampshire award only compensatory dam-

ages in civil cases. Similarly, Louisiana and Washington prohibit

punitive damage awards absent statutory authorization. This lack of

support for punitive vag is exemplified by the following detailed

= of Nebraska, New H ire, Louisiana and Washington

aw.

(1) In Nebraska, the measure of cecovery in all civil cases is com-

pensation for the injury sustained and punitive, vindictive, or exemplary

baie

States Congress. California’s decision is an unconstitutional

expansion of federal maritime law and must be reversed.

CONCLUSION.

Without review by this Court, the California court’s de-

cision will be permitted to stand as published precedent for

seamen in all federal and state courts to seek and perhaps

recover a measure of damages not authorized by Congress

and specifically not permitted by federal law. Like the trial

judge in this case, who first ruled punitive damages were

not recoverable, the California court in its majority and in

its dissent pointed to the necessity of review by this Court:

damages are not allowed. Prather v. Eisenmann, 200 Neb. 1, 261

N.W.2d 766, 772 (1978); Miller v. Kingsley, 194 Neb. 123, 230

N.W.2d 472, 474 (1975); Abel v. Conover, 170 Neb. 926, 104N.W.2d

684, 688 (1960).

(2) In New Hampshire, the punitive nature of exemplary damages

has been colorfully rejected. ‘‘The idea is wrong. It is a monstrous

heresy. It is an unsightly and unhealthy excrescence deforming the

symmetry of the body of law.’’ Fay v. Parker, 53 N.H. 342, 382

(1872). Although no damages other than compensatory damages will

be awarded in New Hampshire, Munson v. Raudonis, 387 A.2d 1174,

1177 (N.H. 1978); Vratsenes v. N.H. Auto. Inc., 289 A.2d 66, 68

(N.H. 1972), compensatory damages may reflect any aggravating cir-

cumstances where the act involved is wanton, malicious or oppressive.

Id. However, compensatory damages in New Hampshire will be in-

creased only to compensate for the distress caused to the plaintiff by

the defendant’s conduct and will reflect the resulting actual material

loss. Jd. at 67.

(3) It is well settled in Louisiana that punitive damages will not be

allowed unless authorized by statute. McCoy v. Arkansas Natural Gas

Co., 175 La. 487, 143 So. 383 (1932).

(4) The Washington Supreme Court has declared that the doctrine

of punitive damages is unsound in principle and such damages will not

be recovered absent statutory authorization. Steele v. Johnson, 458 P.2d

889, 890 (Wash. 1969); Maki v. Aluminum Building Products, 436

P.2d 186, 187 (Wash. 1968). In limited circumstances punitive damages

can be awarded but only with express statutory authority. For instance,

Washington statutes provide that treble damages will be awarded for

waste to real property. Dorsey v. Steelman, 1 Wash.App. 85, 459 P.2d

416 (1969) and the measure of damages for a timber trespass is treble

the ‘‘stumpage value’’ at the time of the trespass. Ventoza v. Anderson,

14 Wash.App. 882, 545 P.2d 1219, 1226 (1976).

ee, eee

**[W]e have been cited to no authority and we have

found none, which declares this to be the current state

of the law; there is no United States Supreme Court

decision which can be said to constitute a holding on

this point.’’ Baptiste v. Superior Court, 106 Cal.App.3d

87, 100 (1980) (Majority Opinion) (Appendix A at

p. 14).

‘*The majority opinion concedes that recent case law

reflects an overwhelming reluctance on the part of the

courts sitting in admiralty to award punitive damages

and then flatly concludes that since no federal law

precludes the plaintiff from presenting the issue of pu-

nitive damages to a jury, it is proper for a state court

to authorize such damages by decisional law.’’ /d. at

106 (Dissenting Opinion) (Appendix A at p. 22).

Unless reviewed by this Court, the California decision will

Stand in stark contrast to long established federal law and

as a bold intrusion upon the judgment of this Court and the

powers of the Congress of the United States. For these

reasons, a writ of certiorari should issue forthwith.

Respectfully submitted,

THOMAS E. WORKMAN, JR.,

Counsel of Record,

JANE H. BARRETT,

MARY J. BusH,

LAWLER, FELIX & HALL,

Attorneys for Petitioner.

Bt Sa

APPENDIX ‘‘A’’.

Opinion.

[Civ. No. 58176. Second Dist., Div. One, May 23,

1980.

Gilbert A. Baptiste, Petitioner, v. The Superior Court of

Los Angeles County, Respondent; Chevron Shipping

Company, Real Party in Interest.

SUMMARY

In a maritime tort action by a seaman against his corporate

employer, the trial court granted defendant’s motion to strike

allegations added by amendment to the complaint setting

forth plaintiff’s entitlement to punitive damages. The court

granted the motion on the ground that punitive damages

were not recoverable in an action pleaded pursuant to the

Jones Act, 46 U.S.C. § 688, and the doctrine of unsea-

worthiness. The amended complaint alleged that defendant

made an informed and calculated decision to practice econ-

omy in providing its seamen with the safe environment

required by the federal law of admiralty and the doctrine

of unseaworthiness. The amended complaint further alleged

that defendant’s decision involved acceptance of the risk

that certain seamen might be exposed to substantial injury

from high-level noises during the course of their employ-

ment, and that plaintiff suffered a hearing loss due to such

high-level noises while employed for defendant.

The Court of Appeal issued a peremptory writ of mandate

directing the trial court to vacate its order insofar as that

order struck plaintiff's allegations concerning punitive dam-

ages, and to reinstate those allegations and the prayer as

contained in plaintiff’s first amended complaint. The court

held that state courts have concurrent jurisdiction with fedeal

courts to entertain and to try actions pleaded pursuant to the

ms, WE

Jones Act and the general maritime law. The court also held

that federal maritime law does not preclude the imposition

of punitive damages as a matter of law. The court further

held that precedents under the Federal Employers’ Liability

Act, 45 U.S.C. §$§ 51-60, do not constitute a bar to punitive

damages in Jones Act cases. Thus, the court held that plain-

tiff had alleged a good and valid cause of action for punitive

damages.

(Opinion by Jefferson (Bernard), P. J., with Marshall,

J.,* concurring. Separate dissenting opinion by Hanson, J.)

COUNSEL

Silver & McWilliams, Lawrence R. Booth, Donna Silver

and Leonard Sacks for Petitioner.

No appearance for Respondent.

Lawler, Felix & Hall, Thomas E. Workman, Jr., Jane

H. Barrett and Mary J. Bush for Real Party in Interest.

OPINION

JEFFERSON (Bernard), P.J.—This petition for mandate

compels resolution of the question of whether Gilbert A.

Baptiste, the petitioner (hereinafter plaintiff), who is pros-

ecuting in the superior court a maritime tort action against

his corporate employer, Chevron Shipping Company

(Standard Oil Company of California), real party in interest

before us (hereinafter defendant), may there seek an award

of punitive damages in addition to other relief. As we shall

articulate, we have determined that petitioner may do so.

The Procedural Facts

Plaintiff filed a personal injury complaint in the superior

court on December 4, 1974, in which he sought damages

from defendant pursuant to the Jones Act' and general mar-

*Assigned by the Chairperson of the Judicial Council.

'46 United States Code section 688, added by the Merchant Marine

Act of 1920, section 33, but commonly referred to as the Jones Act.

The pertinent section will be set forth in full, infra.

ida

itime law. He alleged that he had been employed by de-

fendant from 1966 to 1974 as a seaman on various vessels

owned and operated by defendant in navigable waters, and

had sustained injuries due to defendant’s negligence and

failure to provide and maintain the seaworthiness of the

vessels upon which plaintiff had worked.

In a second cause of action, plaintiff alleged that he was

entitled to damages for maintenance and cure, and that de-

fendant had ‘‘failed and refused to furnish plaintiff, with

the same.’’ Plaintiff sought general damages of $200,000,

maintenance and cure damages of $5,000, and damages

according to proof for medical expenses, loss of earnings,

costs of suit, and ‘‘[f]or such other and further relief as the

Court deems proper.’”’

Defendant’s answer, denying liability, was filed February

12, 1975; thereafter discovery was pursued. In 1979, plain-

tiff received some documents from defendant which caused

plaintiff to reevaluate his case.

On August 14, 1979, plaintiff moved to amend his com-

plaint to include allegations concerning his entitlement to

punitive damages; the proposed amendment sought $200

million in punitive damages and $1 million in general dam-

ages. Accompanying the motion were certain copies of doc-

uments received from defendant and the affidavit of plain-

tiff’s counsel which revealed that in 1970 defendant was

informed and made aware of the fact that there were im-

permissibly high noise levels in the engine rooms of two

of defendant’s ships, described as ‘‘five to 10 times [a

man’s] suggested allowable daily exposure limit’’ and that

**{cJontinued unprotected exposure at these levels will result

in a gradual but permanent loss of hearing.’’ In 1971, a

similar problem was detected on a third vessel. The rec-

ommendation to defendant was that ‘‘[i]mmediate steps

should be taken to reduce noise exposures. Personal hearing

seca

protection should be provided and its use required until noise

reduction is achieved.’”’

In 1972, it had been determined that the impermissibly

high noise levels that permeated the engine rooms resulted

from gears in the engine rooms of the affected vessels;

certain financial projections were made with respect to the

alternatives available to reduce the noise; the cost of re-

duction ranged from $800 per vessel to $6,500 per vessel,

the latter estimate constituting the cost of gear replacement.

It was pointed out, however, that ‘‘the cheapest solution

. . is to provide and enforce use of earphones while in the

engine room.’’ Shortly thereafter the alternatives were again

listed, and ear plugs for the seamen were recommended due

to the ‘‘short remaining life’’ of the vessels involved. On

October 31, 1972, a directive was issued to the masters of

defendant’s ships requiring that warning signs be posted in

the engine rooms and that ear plugs or muffs be worn by

all personnel while on duty there.

According to the declaration of plaintiff's counsel, plain-

tiff had served on ships in the same fleet as those tested,

of the same vintage—in service since World War II. Plain-

tiff, and other seamen, had not only worked in the engine

rooms of these vessels but had lived in close proximity to

them while not on duty. Plaintiff had discovered in 1974

that he was becoming deaf, and had instituted this action,

but, until 1979, was unaware of defendant’s specific knowl-

edge of the dangerous condition in the engine rooms and

the actions taken as the result of that knowledge.

The amended complaint alleged that defendant had

‘‘willfully, wantonly, intentionally and with reckless dis-

regard for the safety of the plaintiff and other seamen em-

ployed by said defendant, permitted extremely high noise

levels to exist in the environment in which the plaintiff and

other seamen were required to work, with full knowledge

silica

that such noise would cause permanent hearing loss to said

plaintiff and others.”’

On August 30, 1979, the trial court granted plaintiff's

motion to amend the complaint. Defendant then filed a

motion to strike the amended allegations which set forth

plaintiff's entitlement to punitive damages, on the ground

that, “‘as a matter of law punitive damages are not recover-

able in an action pled pursuant to the Jones Act and doctrine

of unseaworthiness.”’

On November 5, 1979, the trial court granted defendant’s

motion to strike, declaring that ‘‘[i]n this regard the Court

notes the following: (a) federal law is applicable; (b) there

is no authority for punitive damages in a maritime case,

though there is some dicta to that effect; (c) in the absence

of maritime law on this subject, FELA cases are the most

persuasive available authority; (d) punitive damages are not

allowable in FELA cases; (e) extensions of substantive law,

regardless of their desirability, are better left to the appellate

courts—the judicial system functions more effectively if

litigants can, at the trial court level, rely on what appears

to be the existing status of the law.’’

Plaintiff then sought a writ of mandate in the appellate

court, seeking to have vacated the order granting the motion

to strike and to have reinstated the punitive damages alle-

gations. The writ was denied. Plaintiff then sought a hearing

before the California Supreme Court; on February 20, 1980,

the high court granted plaintiff's petition for a hearing and

ordered the matter transferred to this court, with directions

for us to issue an alternative writ and place the matter on

calendar. This was done on March 3, 1980. We now

consider the matter on the merits.

indi

II.

Jurisdiction to Entertain Jones Act and

General Maritime Law Actions

State courts have concurrent jurisdiction with federal

courts to entertain and try actions pleaded pursuant to the

Jones Act and the general maritime law. Federal jurisdiction

is derived from article III, section 2 of the United States

Constitution, which confers that jurisdiction on ‘‘United

States Courts’’ over ‘‘all cases of admiralty and maritime

jurisdiction.’”’

Section 1333 of title 28 of the United States Code provides

for exclusive federal jurisdiction in admiralty cases with the

exception of ‘‘saving to suitors in all cases all other remedies

to which they are otherwise entitled.’’ The exception allows

such litigants as plaintiff to pursue recovery in a state court.

(See Engel v. Davenport (1926) 271 U.S. 33 [70 L.Ed.

813, 46 S.Ct. 410].)

The prevailing rule is that, regardless of the forum, federal

substantive law applies. Numerous United States Supreme

Court cases have discussed this principle—e.g., Engel,

supra; Garrett v. Moore-McCormack Co. (1942) 317 U.S.

239 [87 L.Ed. 239, 63 S.Ct. 246]; Pope & Talbot, Inc. v.

Hawn (1953) 346 U.S. 406 [98 L.Ed. 143, 74 S.Ct. 202];

Kermarec v. Compagnie Generale (1959) 358 U.S. 625

[3 L.Ed.2d 550, 79 S.Ct. 406]. The rationale is the per-

ceived need for uniformity in maritime tort law, regardless

of the place of injury or forum of trial. In addition, it has

been of historical importance to fashion and apply federal

law liberally with protection of the rights of injured seamen

as the goal; as a consequence, some obstacles traditionally

posed by state law have been avoided.

The California courts have recognized that, in the area

of maritime torts, their task has been that of ascertaining

tar, NOM

and applying appropriate legal principles derived from the

considerable body of federal maritime law that has devel-

oped in the United States. (See, e.g., Dixon v. Grace Lines,

Inc. (1972) 27 Cal.App.3d 278 [103 Cal.Rptr. 595];

Catania v. Halcyon Steamship Co. (1975) 44 Cal.App.3d

348 [118 Cal.Rptr. 513].) As with any body of law, conflicts

and confusing signals may exist within it; it remains the

task of the reviewing court to explicate and determine the

issues presented. (See, e.g., Prohoroff v. Kawasaki Kisen

Kaisha, Ltd. (1979) 90 Cal.App.3d 640, 644-645 [153

Cal.Rptr. 287].)

III.

The Concept of Punitive

Damages in General

There is substantial controversy in all American jurisdic-

tions concerning the imposition of punitive damages. As

Prosser explains, ‘‘[s]omething more than the mere com-

mission of a tort is always required for punitive damages.

There must be circumstances of aggravation or outrage,

such as spite or ‘malice’ or a fraudulent or evil motive on

the part of the defendant, or such a conscious and deliberate

disregard of the interests of others that his conduct may be

called wilful or wanton.’’ (Prosser on Torts (4th ed. 1971)

§ 2, pp. 9-10; see also, Stein, Damages and Recovery,

Personal Injury and Death Actions (Ist ed. 1972), ch. 12,

p. 347 et seq.)

Punitive damages have been condemned as undue com-

pensation of the plaintiff beyond his just deserts and de-

fended as a salutary method of discouraging evil motives.

The major modern rationale supporting their imposition is

that of placing value on their ‘‘deterrent’’ quality. It has

been urged that the ‘‘windfall’’ to an individual plaintiff

can be avoided by the adoption of some system of diversion

Pee TER

of punitive-damage awards from the plaintiff into a public

fund, thereby removing the personal gain involved while

retaining a traditional method of punishing a wrongdoer

who will, because of such punishment, modify his future

conduct accordingly.

The present debate invariably involves the question of to

what extent, if any, punitive-damage awards should be im-

posed on corporate enterprises, whose activities may have

a deleterious effect—not on just one individual—but on

many. It has been argued—unsuccessfully so far—that pu-

nitive damages should be abandoned against such corporate

activity because, in fact, they constitute no deterrent to

corporate misconduct, but, rather, penalize the shareholders

of corporations who have not participated in any wrongdoing

and have no method of curtailing misconduct on the part

of corporate agents. (See, Punitive Damages Under FELA,

(1971) 71 Colum.L.Rev. 1113, 1115.)

It seems abundantly clear, however, that punitive dam-

ages ‘‘are an established part of our legal system, and there

is no indication of any desire or tendency to abandon them.’’

(Prosser, supra, § 2, p. 11.)

IV.

Punitive Damages as a Part

of Federal Common Law

We note that punitive damages have long been regarded

as an integral part of federal common law. Thus, in the

early case of Lake Shore &c. Railway Co. v. Prentice (1893)

147 U.S. 101 [37 L.Ed. 97, 13 S.Ct. 261], the United States

Supreme Court was reviewing such an award imposed upon

a corporate railway because one of its conductors had inexpl-

icably subjected the plaintiff passenger to verbal abuse and

harassment during a journey on one of the corporation’s

trains. The Prentice court declared that ‘‘[i]n this court, the

calsies

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, .. .”’ (/d. at p. 107 [37 L.Ed. at p.

101].) However, the Prentice court also held that while a

corporation, like an individual, may be held liable for such

damages, it could only be held to the extent that it authorized

or ratified the evil conduct of its agent. In that case, no such

authorization or ratification existed, and, thus, no punitive

damages could be imposed; but the court’s acceptance of

the principles of a punitive-damage award remains intact.

There is considerable distance between ‘‘smart money,”’

given for temporary discomfort and inconvenience, no mat-

ter how galling, to an individual plaintiff, and a punitive-

damage award imposed to ensure a change in corporate

policy. Insofar as we have been able to discover, the United

States Supreme Court has not wavered on the concept of

the punitive-damage award as a viable principle of federal

common law.

The Viability of Punitive Damages in

Federal Maritime Actions

An overall view of federal maritime law warrants the

conclusion that, while numerous courts have expounded on

the availability of punitive damages in a proper case, few

have approved their imposition in the actual cases before

the courts. (See, for example, the analysis of this situation

presented in Punitive Damages in Admiralty (1967) 18 Has-

tings L.J. 995.) We have found no federal case flatly pre-

cluding a punitive-damage award in admiralty as a matter

of law; much of the admiralty case law, as in Prentice,

supra, 147 U.S. 101, rests denial of a particular punitive-

ra oe

damage award on the absence of some factual element in

the case under consideration.

Punitive damages were discussed in admiralty as early

as 1818. In The Amiable Nancy (1818) 16 U.S. (3 Wheat.)

546 [4 L.Ed. 456], where a marine trespass had been com-

mitted, the court alluded to the possibility—indeed the de-

sirability—of punishing the wrongdoers with a monetary

award to the plaintiff; unfortunately, however, the particular

wrongdoers at which the court was incensed were not before

the court. Damages of a punitive nature were awarded in

1859, in Gallagher v. The Yankee (C.C.N.D. Cal.) 9

Fed.Cas. 1091 (No. 5196), affd. 30 Fed.Cas. 781 (No.

18124); in that matter, the plaintiff had been taken invol-

untarily to the Sandwich Islands, and the court detected a

positive element of conscious wrongdoing.

Ever since Gallagher, however, the decisional law re-

flects an overwhelming reluctance on the part of courts

sitting in admiralty to award punitive damages although

discussion of such an award has never been predicated on

the ground that it cannot be done, but rather is contra

indicated in the case before it. An example of the typical

discussion of the issue may be found in /n re Marine Sulphur

Queen (2d Cir. 1972) 460 F.2d 89, 105, wherein it was

said: ‘‘A condition precedent to awarding [punitive dam-

ages] is a showing by the plaintiffs that the defendant was

guilty of gross negligence, or actual malice or criminal

indifference which is the equivalent of reckless and wanton

misconduct. There is no evidence in this case to support a

finding of any of these elements. [Citation.] Even if there

were some evidence of this sort, the award of punitive

damages is discretionary with the trial court.’’

In Gunnip v. Warner Co. (E.D.Pa. 1968) 43 F.R.D. 365,

368, the issue surfaced in a case concerned with federal

procedure. Plaintiff attempted to amend his complaint,

ee | aoe

brought pursuuat to the Jones Act, to include punitive .

damages; the court held that he could do so.

There are some fairly recent cases which indicate that,

at least in some well-defined areas, federal courts, sitting

in admiralty, are overcoming their reluctance to impose

punitive damages on a defendant in an appropriate case;

these decisions will be discussed, infra.

A. Nature of Causes of Action Available

to an Injured Seaman

In order to clarify the arguments advanced by the parties

herein, we very briefly review the nature of the causes of

action available to an injured seaman, or, in the case of his

death, to his personal representative; our review is general

rather than exhaustive.’

First. The most basic remedy afforded an injured sea-

man is that of damages for items given the name—main-

tenance and cure; the objective is primarily the same as that

of land-based worker’s compensation laws. The plaintiff

seaman is almost always entitled to food, lodging and med-

ical care to be provided by his employer when the former

is injured or becomes ill during the course of his employ-

ment; the entitlement lasts until some type of stability has

attached to his condition. However, the maintenance and

cure remedy differs markedly from land-based worker’s

compensation in that it is not the seaman’s exclusive remedy

when he is injured during the course of his employment.

Second. The seaman may also sue his employer for

damages for personal injury.

*For such discussion and much helpful case analysis, see Gilmore

& Black, The Law of Admiralty (2d ed. 1975) chapter VI.

saline

After 1920, when the Jones Act was enacted into law’

it was extensively utilized by seamen to pursue negligence

actions against their employers, as the act provided for trial

by jury and also afforded a remedy not available under

general maritime law—for wrongful death. While the usual

basic elements of negligence, duty, breach and proximate

causation, are involvec! in these actions, it is not inaccurate

to characterize them as subject to extremely liberal inter-

pretations by the courts, interpretations that have favored

the seaman-litigant.

The references in the Jones Act to ‘‘all statutes of the

United States’’ applicable to ‘‘railway employees’’ are to

the Federal Employers’ Liability Acts (45 U.S.C. §§ 51-

60), commonly known as FELA, and which govern the

recovery available for personal injury and death to railroad

workers. It has long been held that Congress intended sea-

men and their land-based counterparts—railroad workers

—to be treated in as uniform a fashion as possible. Judicial

interpretations of FELA are regarded as persuasive authority

in Jones Act litigation. (Kernan v. American Dredging Co.

(1958) 355 U.S. 426 [2 L.Ed.2d 382, 78 S.Ct. 394]; Cox

v. Dravo Corp. (3d Cir. 1975) 517 F.2d 620, 622.)

Third. The third avenue to recovery for an injured sea-

man results from acceptance of the principle that it has long

*The Jones Act provides: ‘‘Any seaman who shall suffer personal

injury in the course of his employment may, at his election, maintain

an action for damages at law, with the right of trial by jury, and 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; and in case of the death of any seaman as a

result of any such personal injury the personal representative of such

seaman may maintain an action for damages at law with the right of

trial by jury, and in such action all statutes of the United States con-

ferring or — the right of action for death in the case of railway

ea ey 1 be licable. Jurisdiction in such actions shall be

under the court of the district in which the defendant employer resides

or in which his principal office is located."’

Bas ed

been a shipowner’s duty to provide his seaman with safe

surroundings during his employment—a seaworthy vessel.

This duty is not based on statute but has developed over

centuries through decisional admiralty law. In recent times

it has been expanded to the point where it is now considered

a form of absolute liability. Writers such as Gilmore and

Black (see fn. 2) identify the case of Mahnich v. Southern

S. S. Co. (1944) 321 U.S. 96 [88 L.Ed. 561, 64 S.Ct. 455],

as the beginning of what may be identified as an explosion

of the unseaworthy cause of action. In Mahnich, the United

States Supreme Court determined that ‘‘operational negli-

gence’’ that involved a vessel could be classified as ‘‘un-

seaworthiness.’’ This cause of action now outranks Jones

Act actions as the most used remedy for the injured seaman.

Some early case law held that an injured seaman-plaintiff

must elect between a cause of action pursuant to the Jones

Act and a general maritime action based on the unseawor-

thiness doctrine. But this early case law no longer prevails.

It is common and acceptable practice for a plaintiff to plead

both the Jones Act and the unseaworthiness doctrine and

place both causes of action before the jury, although there

- is but one recovery. Since Mahnich, the distinctions between

the two remedies have been largely obliterated, and, ‘‘[a]fter

ten or fifteen years of confusion the admiralty lawyers and

the admiralty judges came to understand that the Jones Act

court and the unseaworthiness count are Siamese twins.”’

(Gilmore & Black, supra, p. 383).

These, then, are the ordinarily utilized causes of action

available to an injured seaman, and plaintiff, in the case at

bench, pleads them all.

7’?

Re nee

B. Does Federal Maritime Law Preclude the

Imposition of Punitive Damages as a

Matter of Law?

Defendant contends here that federal maritime law pre-

cludes the imposition of punitive damages as a matter of

law. For this assertion, defendant relies on the reality that

few cases in admiralty have afforded such relief. However,

as we have pointed out previously herein, we have been

cited to no authority, and we have found none, which de-

clares this to be the current state of the law; there is no

United States Supreme Court decision which can be said

to constitute a holding to this effect.

What has actually happened when punitive damages have

been sought in an admiralty case is illustrated by the history

of the case of Petition of Den Norske Amerikalinje A/S

(N.D. Ohio 1967) 276 F.Supp. 163. There the litigation

arose from a collision of vessels. The district court judge,

in a lengthy opinion, declared that ‘‘[t]he fact that punitive

damages have never been visited upon a tortfeasor in an

admiralty proceeding is no reason for precluding such a

recovery. . . . Exemplary damages are the product of the

common law and are not a creature of legislation. Thus,

while certain statutes may specifically authorize the recov-

ery of punitive damages, such specific reference is neither

common nor necessary.’’ (Den Norske, supra, 276 F.Supp.

163, 174-176.)

The Den Norske court relied upon Vaughan v. Atkinson

(1962) 369 U.S. 527 [8 L.Ed.2d 88, 82 S.Ct. 997], in which

a majority of the United States Supreme Court affirmed an

award of attorney’s fees to the seaman-litigant wrongfully

denied maintenance and cure by his employer; it was said

that the award was actually compensatory, and was to be

given only in situations where oppressive or unjustifiable

tik Mais

conduct had occurred. Justice Stewart, in a separate opinion,

indicated that the award was actually one of punitive dam-

ages and, in the appropriate case, there was nothing wrong

with making such an award.* The trial court awarded

$70,000 in punitive damages in Den Norske.

In United States Steel Corp. v. Fuhrman (6th Cir. 1969)

407 F.2d 1143 — the appeal from the Den Norske decision

— the Sixth Circuit reversed the award of punitive damages

but placed the reversal on the ground that the evidence

adduced below had not established corporate liability for

the misconduct which was the subject of the seaman’s com-

plaint. The Fuhrman court observed: ‘‘We think the better

rule is that punitive damages are not recoverable against the

owner of a vessel for the act of the master unless it can be

shown that the owner authorized or ratified the acts of the

master either before or after the accident. Punitive damages

also may be recoverable if the acts complained of were

those of an unfit master and the owner was reckless in

employing him.’’ (Fuhrman, supra, 407 F.2d 1143, 1148.)

(Italics added.)

Our analysis of Fuhrman leads inexorably to the conclu-

sion that, once again, a maritime court was acknowledging

the principle of law of the acceptability and viability of a

punitive-damage award in maritime law, while finding

against the award on the facts before it. In addition, the

Fuhrman court was wrestling with what has been identified

as one of the basic dilemmas inherent in the punitive damage

area, i.e., the extent of corporate liability for the oppressive

conduct of an agent. (See Prosser, supra, § 2, p. 12.)

“It was held in Kraljic v. Berman Enterprises, Inc. (2d Cir. 1978)

575 F.2d 412, that the Vaughan ruling by the majority did not indicate

approval of the imposition of punitive damages on occasion but was

strictly limited to its facts; thus, a seaman wrongfully deprived of

maintenance and cure was limited to recovery of attorney fees only.

°3

In 1973, employing Vaughan v. Atkinson, supra, 369

U.S. 527, as the authoritative precedent, the First Circuit

upheld a punitive-damage award imposed upon an employer

who had failed, with no apparent justification, to provide

seaman Robinson with maintenance and cure. (Robinson v.

Pocahontas, Inc. (1st Cir. 1973) 477 F.2d 1048.)° Declaring

that the evidence had shown sufficiently reprehensible con-

duct on the part of the defendant, the punitive-damage award

was upheld; it is significant that the award was not limited

to recovery of attorney fees.

Two years later, in Renner v. Rockwell International

Corporation (C.D.Cal. 1975) 403 F.Supp. 849, 852, the

district court judge declared (in a pleading case) that punitive

damages would be potentially recoverable by the plaintiffs

in the trial of a wrongful death action. The trial judge relied

on two United States Supreme Court cases which demon-

strate rather emphatically the continuing emphasis placed

by that court in the area of maritime tort law on a liberal

and protective application of rules of law that benefit those

injured in a maritime setting. The cases referred to were

Moragne v. States Marine Lines (1970) 398 U.S. 375 [26

L.Ed.2d 339, 90 S.Ct. 1772] and Sea-Land-Services, Inc.

v. Gaudet (1974) 414 U.S. 573 [39 L.Ed.2d 9, 94 S.Ct.

806].

In Moragne the United States Supreme Court overruled

a long-established precedent in general maritime law and

created a new cause of action for wrongful death. In Gaudet,

a case involving the death of a seaman in state territorial

waters, the nation’s high court reaffirmed the concept of an

independent body of federal maritime law that is dependent

‘This case was the subject of a note in 15 San Diego Law Review

at pages 309-330. On page 309 the author declared that ‘*[c]Jourts sitting

in admiralty have so seldomly awarded punitive damages for maritime

torts that the evept in itself is noteworthy.’’

a Bee)

on no state or federal statute but is subject to continuing

delineation by the federal courts sitting in admiralty.

The Robinson (477 F.2d 1048) and Renner (403 F.Supp.

849) cases appear to us to be persuasive indications that

substantial inroads are being made upon the prior reluctance

to impose punitive damages in admiralty cases. We consider

the extension made in Robinson as totally consistent with

the policy of many land-based worker’s compensation stat-

utes which penalize the land-based employer who engages

in similar reprehensible conduct. It, of course, remains the

province of the United States Supreme Court, as well as the

individual circuits, to determine the parameters of recovery

for a Moragne-type wrongful death action.

C. FELA Precedents Do Not Constitute a Bar

to Punitive Damages in Jones Act Cases

Defendant advances the argument: (1) that Jones Act

cases are governed by FELA precedents; and (2) that under

those FELA precedents, punitive damages are precluded as

a matter of law; so that (3) none can be awarded in a Jones

Act case even when the Jones Act cause of action is ac-

companied by a cause of action for unseaworthiness; be-

. cause (4) the Jones Act and unseaworthiness causes of action

are virtually the same. We reject the argument as untenable

and unsupportable.

As we have already indicated, there is ample authority

for the first premise advanced by defendant, i.e., that Jones

Act cases are governed by FELA precedent. But this premise

is not absolute as defendant would have us hold. It is well

to be mindful of the admonition of the United States Su-

preme Court, set forth in Cox v. Roth (1955) 348 U.S. 207

[99 L.Ed. 260, 75 S.Ct. 247], that the kinship of railway

workers and seamen, as perceived by Congress, should not

lead to overly literal or rigid transplanting of principles from

ean) Ye

land to sea, or vice versa. Clearly, FELA decisions are

persuasive with respect to the Jones Act, but may not be

considered to be the ultimate authority.

We recognize that one federal circuit has determined that,

in a FELA case, there can be no recovery of punitive dam-

ages. In Kozar v. Chesapeake and Ohio Railway Company

(W.D.Mich. 1970) 320 F.Supp. 335, the district court

awarded punitive damages against defendant railway.° On

appeal, the Sixth Circuit, in 1971, reversed the award on

the ground that FELA afforded damages as compensation

only rather than for punishment. (Kozar v. Chesapeake and

Ohio Railway Company (6th Cir. 1971) 449 F.2d 1238.)’

Thus, if the Jones Act cause of action in the instant case

were controlled by the FELA precedent set forth in Kozar,

it would appear that punitive damages would be barred on

that cause of action in the case before us. But we do not

consider that Kozar is either controlling or persuasive on

the question of whether a Jones Act cause of action auto-

matically precludes a recovery of punitive damages. But

beyond that, neither Kozar nor any of its progeny can be

permitted to place limitations on a seaman’s cause of action

founded on general maritime law that recognizes the un-

seaworthiness doctrine.

The demonstrated tendency of the United States Supreme

Court has been to regard the Jones Act as primarily an

addition to an even larger body of federal maritime law

whenever FELA precedent would in some manner limit the

liability imposed on a defendant shipowner. (See, e.g., The

Arizona v. Anelich (1936) 298 U.S. 110 [80 L.Ed. 1075,

56 S.Ct. 707] and Beadle v. Spencer (1936) 298 U.S. 124

°A decision roundly criticized in a note in 71 Columbia Law Review

entitled Punitive Damages Under FELA at page 1113.

’The Kozar ruling was followed by a Montana decision (State ex rel.

Burlington Northern, Inc. v. Dist. Ct. (1976) 169 Mont. 480 [548 P.2d

1390].)

[80 L.Ed. 1082, 56 S.Ct. 712].) On such occasions, the

United States Supreme Court has called attention to the

existence of an independent body of federal law, of which

the Jones Act is only a party, and has not allowed the Jones

Act to be utilized as a conduit through which limitations on

liability could pass from land-based law such as FELA doc-

trines.

While there is considerable overlapping between Jones

Act negligence and the doctrine of unseaworthiness, there

is simply neither authoritative precedent nor reasons of pol-

icy for imposing whatever limitations exist in Jones Act

litigation on general federal admiralty law, from which the

doctrine of unseaworthiness is derived. On the contrary, all

present indications — as expressed in Moragne and Gaudet

— lead to the conclusion that the United States Supreme

Court continues to regard tort actions based on general ad-

miralty law as the particular province of decisional law

development and an area where principles are applied with

a liberal rather than a restraining hand.

In the context of the present action, the corporate conduct

complained of purportedly consisted of making an informed

and calculated decision to practice economy in providing

defendant’s seamen with the safe environment required by

the federal law of admiralty and the doctrine of unseawor-

thiness. The defendant’s decision assertedly involved ac-

ceptance of the risk that certain seamen might be exposed

to substantial injury from high-level noises during the course

of their employment. Since we are at the pleading stage,

we have before us only the dim outlines of the situation

upon which this litigation is based. It is generally recog-

nized, however, that ‘‘[e]mployers appear to be in the best

position to know or discover workplace health hazards that

produce disease [or disability] and to control these hazards.’”’

ca, ; ae

(Compensating Victims of Occupational Disease (1980) 93

Harv.L.Rev. 916, 933.)

It is not necessary for us to determine whether a corporate

decision, consciously made for economic reasons, may, on

occasion, constitute an evil for which the law allows no

redress. Here the plaintiff has alleged a good and valid cause

of action for punitive damages, unless federal law precludes

the statement of such a cause of action. We hold unequi-

vocally that plaintiff is entitled to present the issue of pu-

nitive damages to a jury that there is sufficient authority in

federal admiralty law in support of our holding.

Let a peremptory writ of mandate issue, directing the trial

court to vacate its order of November 5, 1979, insofar as

that order struck plaintiff's allegations concerning punitive

damages, and to reinstate those allegations and the prayer

as contained in plaintiff’s first amended complaint.

Marshall, J.,* concurred.

“Assigned by the Chairperson of the Judicial Council.

act

HANSON, J. — I respectfully dissent for the reasons

stated in the majority opinion.

In my opinion the ball game is over and the petition

should be denied once the majority opinion correctly con-

cluded, as it did, (1) that while litigants may elect to pursue

recovery pursuant to the Jones Act (46 U.S.C. § 688) and

under the general maritime law doctrine of unseaworthiness

in state courts, as distinguished from federal courts (prob-

ably for some perceived procedural reasons), ‘“The pre-

vailing rule is that, regardless of the forum, federal [mar-

itime] substantive law applies’’ (original italics); (2) that

the remedies available under the Jones Act and the unsea-

worthiness doctrine can produce only one recovery and are

now considered ‘‘Siamese twins’’; and (3) that no federal

Statute has expressly authorized nor has any federal deci-

sional law awarded punitive damages under circumstances

presented in the instant case.

In the clear language the Jones Act adopts the law of the

Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51

et seq.)' which governs actions against railroads (which

criss-cross the United States) by their employees, thus mak-

ing FELA part of the Jones Act for the purposes announced.

(See Engel v. Davenport (1926) 271 U.S. 33, 38 [70 L.Ed.

813, 817, 46 S.Ct. 410]; Bell v. Tug Shrike (E.D.Va. 1963)

215 F.Supp. 377, aff'd. 332 F.2d 330, cert. den. 379 U.S.

844 [13 L.Ed.2d 49, 85 S.Ct. 84]; Cox v. Dravo Corpo-

ration (3d Cir. 1975) 517 F.2d 620, cert. den. 423 U.S.

'The Jones Act in pertinent part provides: ‘‘Any seaman who shall

suffer personal injury in the course of his employment may, at his

election, maintain an action for damages at law, with the right of a trial

by jury, and in such action all statutes of the United States modifying

or extending the common law right or remedy in cases of personal

injury to railroad employees shall apply; . . .’’ (Italics added.)

°>

ae, |

1020 [46 L.Ed.2d 392, 96 S.Ct. 457]; Dixon v. Grace Lines,

Inc. (1972) 27 Cal.App.3d 278 [103 Cal.Rptr. 595].)

It is also clear that in FELA actions only compensatory

damages are recoverable. Punitive damages are not allowed.

(See Kozar v. Chesapeake and Ohio Railway Company (6th

Cir. 1971) 449 F.2d 1238; see also State ex rel. Burlington

Northern, Inc. v. District Court (1976) 169 Mont. 480 [548

P.2d 1390, 1392-1393]; Orona v. Isbrandtsen Co. (S.D.N.Y.

1962) 204 F.Supp. 777, 779; Cleveland Tankers v. Tierney

(6th Cir. 1948) 169 F.2d 622, 624; Vanbeek v. Sabine

Towing Co. (1937) 300 U.S. 342 [81 L.Ed. 685, 57 S.Ct.

452]; Mpiliris v. Hellenic Lines Ltd. (S.D.Tex. 1970) 323

F.Supp. 865, 874, aff'd. (1971) 449 F.2d 1163.)

Accordingly, since federal maritime substantive law

adopting FELA, as noted above, applies and not California

substantive law, and since the ‘‘Siamese twins’’ remedies

under the Jones Act and Unseaworthiness doctrine can pro-

duce only one recovery, it is axiomatic that one ‘‘twin’’

(unseaworthiness doctrine) cannot recover exemplary dam-

ages while the other ‘‘twin’’ (the Jones Act) is limited to

compensatory damages only. To allow such a result in a

**Siamese twin’’ situation would be illogical.

The majority opinion concedes that recent case law re-

flects an overwhelming reluctance on the part of the courts

sitting in admiralty to award punitive damages and then

flatly concludes that since no federal law precludes the plain-

tiff from presenting the issue of punitive damages to a jury,

it is proper for a state court to authorize such damages by

decisional law. ° rf

While reasonable minds may differ construing statutory

and decisional law, in my view there is no federal authority

in admiralty whatsoever supporting the majority opinion’s

determination. The cases cited are factually distinguishable

a ee

and the language referred to in those opinions is mere dicta

and not binding authority. Nor does the fact that federal law

does not expressly prohibit punitive damages in any way

license a state court to impress upon the federal system its

proclivity to expand the circle of civil liability to infinity.

To the contrary, the fact that federal law only allows com-

pensatory damages and does not expressly include exem-

plary damages indicates that it was not intended that such

damages be included in the overall carefully thought out

statutory scheme concerning maritime personal injury claims.

In my opinion it is not only highly improper and pres-

umptuous but also grossly unwise for a California state court

of review by judicial fiat to invade the federal jurisdiction

and attempt to graft onto federal maritime law a punitive

damage claim where none presently exists, thereby destroy-

ing the important concept of the need to preserve uniformity

in maritime tort law regardless of the place of injury.” The

practicality and desirability of preserving a uniform federal

law in this field is apparent in view of the many states which

border the Atlantic and Pacific Oceans, the great Saint Law-

rence Seaway into the Great Lakes, and the Gulf of Mexico

as well as the numerous interior states by and through which

a labyrinth of inland navigable waterways pass.

I would therefore hold as a matter of law that the petitioner

may not seek an award of punitive damages in addition to

compensatory damages. I would leave to the United States

Congress and to the federal courts interpreting federal sta-

tutory enactments the determination as to whether or not

The major gory of the Jensen Doctrine (see Southern Pacific Co.

v. Jensen ¢19 7) 244 U.S. 205 [61 L.Ed. 1086, 37 S.Ct. 524]), which

remains good and sound law today, is that maritime law should be

uniform within the United States. The need for national maritime unity

was confirmed by the United States Supreme Court in Knickerbocker

Ice Co. v. Stewart (1920) 253 U.S. 149 [64 L.Ed. 834, 40 S.Ct. 438,

11 A.L.R. 1145).

- |

sical is

exemplary damages should be allowable in maritime tort

claims.

I would affirm the trial court’s order striking plaintiff

allegations concerning punitive damages and deny the pe-

tition for writ of mandate.’

*The result of the majority opinion in my view is disturbing in two

other practical aspects which should not be ignored.

First, such a pronouncement by a single state within the union will

tend to unnecessarily snarl and foul the lines in the field of maritime

tort law which in recent years have slowly become unsnarled and un-

fouled. (See The Tangled Seine: A survey of Maritime Personal Injury

Remedies (1947) 57 Yale L.J. 243-274.)

Secondly, there are a great number of companies or individuals who

own fleets of vessels, with large crews which sail the seven seas and

which are either located in or have business contacts in California, thus

subjecting them to the jurisdiction of our state courts. It is reasonably

forseeable that litigant’s and lawyers from all over the United States

(indeed the world) may rush into California courts with their maritime

cases seeking ‘‘windfall’’ exemplary damages, thus either sinking our

already overcrowded courts into the briny deep or requiring the long

suffering California taxpayers to add more courts to act as bilge pumps

to process such out of state claims in order to stay afloat. This possibility

unctuates the desirability of a uniform maritime law and any charges

in the present law should be left to federal authorities in order to insure

the case load is spread throughout the various states.

al” ae

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

July 16, 1980. I have this day filed Order Hearing Denied.

In re: 2 Civ. No. 58176. Baptiste vs. Superior Court, Los

Angeles.

Respectfully,

Clerk

ye a

Minute Order.

Dept. SO J. Date November 5, 1979 Superior Court of

California, County of Los Angeles. Honorable Robert A.

Wenke, Judge. A. Wick, Deputy Sheriff. V. Morgan, Dep-

uty Clerk. None, Reporter. (Parties and counsel checked

if present).

SO C 37003. Gilbert A. Baptiste, vs. Chevron Shipping

Company, etc., et al.

NATURE OF PROCEEDINGS:

SUBMITTED MATTER PI OTHER

The demurrers and motion to strike of the defendant,

Standard Oil Company of California, having heretofore been

submitted on October 26, 1979, the Court now rules as

follows:

1. The motion to strike is granted in its entirety. In this

regard the Court notes the following: (a) federal law is

applicable; (b) there is no authority for punitive damages

in a maritime case, though there is some dicta to that effect;

cases are the most persuasive available authority; (d) pu-

nitive damages are not allowable in FELA cases; (e) exten-

sions of substantive law, regardless of their desirability, are

better left to the appellate courts—the judicial system func-

tions more effectively if litigants can, at the trial court level,

rely on what appears to be the existing status of the law.

2. The motion to strike having been granted, all of the

demurrers are overruled. Defendant shall have thirty days

in which to answer.

A copy of this minute order is sent by U. S. Mail this

date to the following counsel of record: |

Lawrence R. Booth, Esq.

Silver and McWilliams

1121 North Avalon Blvd.

Wilmington, Ca. 90744

Jane H. Barrett, Esq.

Lawler, Felix & Hall

700 S. Flower St.

Los Angeles, Ca. 90017

Received: Nov. 8, 1979.

Dept: SO J, Minutes Entered 11-5-79, County Clerk.

a, oe

Order.

In the Court of Appeal of the State of California. Second

Appellate District, Division One.

Gilbert A. Baptiste, Petitioner, v. The Superior Court of

Los Angeles County, Respondent, Chevron Shipping Co.

(Standard Oil Co. of California), Real Party in Interest. 2

Civil No. 58176. (Super. Ct. No. SO C 37003). (Robert

A. Wenke, Judge).

Filed: Jan. 24, 1980.

THE COURT:

The petition for writ of mandate/prohibition, filed De-

cember 28, 1979, and real party in interest’s reply memo-

randum, filed January 4, 1980, have been read and consid-

ered.

The petition is denied for failure to set forth facts suffi-

cient to justify relief by extraordinary writ.

Received: Jan. 29, 1980. JHB.

In the Supreme Court of the State of California, In Bank.

2nd Civil No. 58176.

Filed: Feb. 20, 1980.

Baptiste, Petitioner, v. The Superior Court of Los An-

geles County, Respondent; Chevron Shipping Company,

Etc., Real Party in Interest.

Petition for hearing granted. The matter is transferred to

this court and retransferred to the Court of Appeal, Second

District, Division One, with directions to issue an alternative

writ of mandamus and/or prohibition to be heard before that

court when the proceeding is ordered on calendar.

BIRD, Chief Justice.

MOSK, Justice.

MANUEL, Justice.

NEWMAN, Justice.

APPENDIX ‘‘B.’’

United States Constitution, Article I:

Section 8. The Congress shall have Power To lay and

collect Taxes, Duties, Imposts and Excises, to pay the Debts

and provide for the common Defence and general Welfare

of the United States; but all Duties, Imposts and Excises

shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uni-

form Laws on the subject of Bankruptcies throughout the

United States;

To coin Money, regulate the Value thereof, and of foreign

Coin, and fix the Standard of Weight and Measures;

To provide for the Punishment of counterfeiting the Se-

curities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by

securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed

on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal,

and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of

Money to that Use shall be for a longer Term than two

Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the

land and naval Forces;

ee, ae

To provide for calling forth the Militia to execute the

Laws of the Union, suppress Insurrections and repel Inva-

sions;

To provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the Service of the United States, reserving to

the States respectively, the Appointment of the Officers,

and the Authority of training the Militia according to the

discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever,

over such District (not exceeding ten Miles square) as may,

by Cession of particular States, and the Acceptance of Con-

gress, become the Seat of the Government of the United

States, and to exercise like Authority over all Places pur-

chased by the Consent of the Legislature of the State in

which the Same shall be, for the Erection of Forts, Mag-

azines, Arsenals, dock-Yards, and other needful Buildings;

- And

To make all Laws which shall be necessary and proper

for carrying into Execution the foregoing Powers, and all

other Powers vested by this Constitution in the Government

of the United States, or in any Department or Officer

thereof.

United States Constitution, Article III:

Section 2, Clause 1. JURISDICTION OF COURTS.

Section 2. The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority; — to all Cases affecting Am-

bassadors, other public Ministers and Consuls; — to all

Cases of admiralty and maritime Jurisdiction; — to Con-

troversies to which the United States shall be a Party; —

to Controversies between two or more States; between a

he, ee

State and Citizens for another State; — between Citizens

of different States; — between Citizens of the same State

claiming Lands under Grants or different States, and be-

tween a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

United States Code, Title 46:

§ 688. RECOVERY FOR INJURY TO OR DEATH OF

SEAMAN.

Any seaman who shall suffer personal injury in the course

of his employment may, at his election, maintain an action

for damages at law, with the right of trial by jury, and in

such action all statutes of the United States modifying or

extending the common-law right or remedy in cases of per-

sonal injury to railway employees shall apply; and in case

of the death of any seaman as a result of any such personal

injury the personal representative of such seaman may main-

tain an action for damages at law with the right of trial by

jury, and in such action all statutes of the United States

conferring or regulating the right of action for death in the

case of railway employees shall be applicable. Jurisdiction

in some actions shall be under the court of the district in

which the defendant employer resides or in which his prin-

cipal office is located.

United States Code, Title 45:

§51. LIABILITY OF COMMON CARRIERS BY RAIL-

ROAD, IN INTERSTATE OR FOREIGN COM-

MERCE, FOR INJURIES TO EMPLOYEES FROM

NEGLIGENCE; DEFINITION OF EMPLOYEES.

Every common carrier by railroad while engaging in com-

merce between any of the several States or Territories, or

between any of the States and Territories, or between the

District of Columbia and any of the States or Territories,

ee We

or between the District of Columbia or any of the States or

Territories and any foreign nation or nations, shall be liable

in damages to any person suffering injury while he is em-

ployed by such carrier in such commerce, or, in case of the

death of such employee, to his or her personal representa-

tive, for the benefit of the surviving widow or husband and

children of such employee; and, if none, then of such em-

ployee’s parents; and, if none, then of the next of kin de-

pendent upon such employee, for such injury or death re-

sulting 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.

Any employee of a carrier, any part of whose duties as

such employee shall be the furtherance of interstate or for-

eign commerce; or shal!, in any way directly or closely and

substantially, affect such conimerce as above set forth shall,

for the purposes of this chapter, be considered as being

employed by such carrier in such commerce and shall be

considered as entitled to the benefits of this chapter.

§ 52. CARRIERS IN TERRITORIES OR OTHER POS-

SESSIONS OF UNITED STATES.

Every common carrier by railroad in the Territories, the

District of Columbia, the Panama Canal Zone, or other

possessions of the United States shall be liable in damages

to any person suffering injury while he is employed by such

Carrier in any of said jurisdictions, 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

ok, eee

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.

§ 56. ACTIONS; LIMITATION; CONCURRENT JU-

RISDICTION OF COURTS.

No action shall be maintained under this chapter unless

commenced within three years from the day the cause of

action accrued.

Under this chapter an action may be brought in a district

court of the United States, in the district of the residence

of the defendant, or in which the cause of action arose, or

in which the defendant shall be doing business at the time

of commencing such action. The jurisdiction of the courts

of the United States under this chapter shall be concurrent

with that of the courts of the several States.

§ 57. WHO INCLUDED IN TERM ‘‘COMMON

CARRIER’.

The term ‘‘common carrier’ as used in this chapter shall

include the receiver or receivers or other persons or cor-

porations charged with the duty of the management and

operation of the business of a common carrier.

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.