Amicus Curiae Brief — Dutra Grp. v. Batterton, 139 S. Ct. 627 (2018) (No. 18-266)

Iu Te

Supreme Court of the United States

*

THE DUTRA GROUP.

Petitioner,

v.

CHRISTOPHER BATTERTON,

a 713.629- 1580

713.629-5027

kengerrand@brownsims.com

Counsel for Amicus Curiae

Atlantic Sounding Company, Inc.

.

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............<.csscsssc000eeeeneeeee000s i

TABLE OF AUTHORITIES ...................<cccccssecee0000 ii

INTEREST OF AMICUS CURIAE....................... 1

SUMMARY OF ARGUMENT ............................ 2

ARGUMENT AND AUTHORITIBSG...................... 2

|. The Roles of Congress and the Courts in

Formulating Maritime Remedies ............ ee

Il. Congress “Occupied the Field” of “Liabil-

ity for Injuries to Seamen” ........................ 4

Ill. Seamen May Not Recover Punitive Damages

in Actions Alleging Unseaworthiness............ 18

ss

TABLE OF AUTHORITIES

Page

CASES

The A. Heaton, 43 F. 592 (C.C.D. Maas. 1890)............ 19

Am. R.R. vu. Didricksen, 227 U.S. 145 (1913) .............. 13

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

i eecennsenstecsescsessenmsssssntestermnsmsiemnemenmanuets passim

Aul. Transp. Co. v. Imbrovek, 234 U.S. 52 (1914).......... 5

Cortes v. Baltimore Insular Line, Inc., 287 U.S.

Saar Cet casicnnccnnenscecnadnoentendensenndenteaneanastacemnentincceseneed 4

Fitzgerald v. United States Lines Co., 374 U.S. 16

Ei icvsmnaceccnssenssasencsinnsonsennscnsnencentacsonnsedaeneesnesensenss 17

The Genesee Chief, 53 U.S. (12 How.) 443 (1851)......... 4

Gillespie v. United States Steel Corp., 379 U.S.

RE ee cccncarceccccsscensnseevesonsecesseensnnncocesnsies 17, 18, 32

Gulf, Colo, & Santa Fe Ry. v. McGinnis, 228 U.S.

SPD ee ccscncsenncsuceccsctncascsnssenseusnscsentenssorstmsesssenssetes 13

The Harrisburg, 119 U.S. 199 (1886) ........... 5, 6, 21, 22

Horsley v. Mobil Oil Corp., 15 F.3d 200 (ist Cir.

PiU ctancancsoncscnsteccanscsesntanccsancsssansaseaneusesesnesansentel 29, 30

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

Gi vscsccssenssesscansnscsscsantsnssensssnconensssossnassncsinesnssensieceed 6

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

GUE TEI cccucnnsnsnsenssscnccnsenscssscccsnnosscsnscnncsssocnetintenceees 29

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

GD GR ire a ctessccesercsccssscsssnnsnessesnsesonnsssnssecsensccccces 29

Law v. Sea Drilling Corp., 510 F.2d 242 (5th Cir.),

reh'g denied, 523 F.2d 793 (5th Cir. 1975) ......... 22, 23

iii

TABLE OF AUTHORITIES — Continued

Page

Lindgren v. United States, 281 U.S. 38

GI cssscccnntecavensesenscsnttnnnmsessscensnentenses 4, 14, 15, 16, 18

The Lottawanna, 88 U.S. (21 Wall.) 558 (1874) ...3, 4, 6

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

FEED Gel ccneseccvcascenccscenssecsennsensnecsenscstccnscsenesnsets 21, 28

Michigan Cent. R.R. v. Vreeland, 227 US. 59

Gite camiccnsccsseunsensensessecersesensnenenssnctascunesonsesesets passim

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

Miller v. Am. President Lines, Lid., 989 F.2d

ee Se Ba cevccccnccsccecccssersccsccsssnesccsasccnssesees 29

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

Gi Ul nncsncsscccecenensancsenentenesenseneasecsstonsiotie 23, 24, 25, 26

The Montezuma, 19 F.2d 355 (2d Cir. 1927)................ 19

Moragne v. States Marine Lines, Inc., 398 US.

IGE Ci ccancccncccscnnccnesescscscicsasensacessetentencnsncssnesseecees 22

Nogueira v. N_LY., N.H. & HR. Co., 281 U.S. 128

Gia ncecesensinnnnssensennsnsncenetncssncseciane ashesnnsstnestesncesticees 11

The Osceola, 189 U.S. 158 (1903)...............0.0000 5, 6,8

Pac. 8.8. Co. v. Peterson, 278 U.S. 130 (1928) ..... passim

Panama R.R. v. Johnson, 264 U.S. 375 (1924) .....14, 15

Patrone v. Howlett, 237 N.Y. 394, 143 N_E. 232

Gili cccoctasndescnrsasscsesecnsannernesanddnintinpespenatenabennescsnesctees 4

Scheude v. Zenith S.S. Co., 216 F. 566 (N.D. Ohio

ISIE enccccntnnscnnansesnnsccnassccstacaneesseneensaeasemeaseseseeqsnseses 7,8

iv

TABLE OF AUTHORITIES — Continued

Page

The St. Lawrence, 66 U.S. (1 Black) 522 (1861)........... 3

Tilley v. Hudson River R_R., 24 N.Y. 471 (1862) ........ 13

Washington v. W.C. Dawson & Co., 264 U.S. 219

Ei ncdinsacadctsennbenianensensaestesesapennenecenensibesstesmbenessesresel 4

STATUTES

Act of July 20, 1790, ch. 29, § 6, 1 Stat. 133.................. A

Act of Oct. 6, 1917, ch. 97, 40 Stat. 3956..................00000 6

Act of June 10, 1922, ch. 216, 42 Stat. 634 ................... 7

Death on the High Seas Act, 46 U.S.C. §§ 30301-

STEED ccsunsesccssncncocsscesnsenmnteneniantervestsecssienenenasiines 23, 26

Federal Employers’ Liability Act, 45 US.C.

GBD —ccccccscsssccccccscscscsssssescnscsecscsscsncsecesossesees passim

Jones Act, Act of June 5, 1920, ch. 250, § 33, 41

Stat. 988, 1007, currently codified at 46 U.S.C.

Bp SE i ccccccccscscscscccsnccsccsessssccscsccsesseeees passim

& Harbor Workers’

Act, 33 U.S.C. §§ 901-950 00000 ccccccecceeeenneee 9, 11, 27

Seamen's Employment, 46 U.S.C. §§ 10301-10321,

10501-10609, 10601-10603, 10701-10711, 10901-

Re IE cccatnccccscccsnsccsscsasserssnsesecssassenseseees 4

v

TABLE OF AUTHORITIES — Continued

LEGISLATIVE MATERIALS

Hearing on H.R. No. 9498, Before the House

Committee on the Judiciary, To Provide Com-

pensation for Employees Injured and Depend-

ents of Employees Killed in Certain Maritime

Employments, 69th Cong., 1st Sess. (1926) .......

Hearing on S. 3170, Before the House Commit

(statement of Rep. Graben) .........scscccccscccee--

(statement of Rep. O'Connor). secstnsainsenntenscentesese

68 Conc. Rec. 5908, 69th Cong., 2d Sess. (1927)

(statement of Sen. Norris) ..................6..66.00c00000

OrueR MATERIAL

W. Eugene Davis, The Role of Federal Courts in

Kenneth G. Engerrand, The Fleet Rule for Sea-

man Status: The Peril of Perils, 2 Loy. Man.

Rade GED GHUUD coccccccccssccsscccscscsecscsccossccesscscsccsecssese

9, 10

vi

TABLE OF AUTHORITIES — Continued

Kenneth G. Engerrand & Scott R. Brann, Trou-

bled Waters for Seamen's Wrongful Death Ac-

tions, 12 J. Man. L. & Com. 327 (1981)..............0 28

Grant Gitmore & CHances L. Back, Ja, THe

LAw or ApmIRmauty (2d ed. 1975).................. 21, 22, 28

1

INTEREST OF AMICUS CURIAE

Atlantic Sounding Co., Inc. employs seamen in its

marine operations across the United States and has a

direct interest in the remedies available to those work-

ers under the general maritime law, as exemplified in

the decision of this Court in Atlantic Sounding Co. v.

Townsend, 557 U.S. 404 (2009), which was relied upon

by the Ninth Circuit below to hold that punitive

damages are available in seamen’s unseaworthiness

actions. Batterton v. Dutra Group, 880 F.3d 1089, 1091-

96 (9th Cir. 2018).

Atlantic Sounding has engaged the services of

Kenneth G. Engerrand, who has taught admiralty law

for more than 40 years and published numerous arti-

cles on the roles of Congress and the Courts on the for-

mation of principles of general maritime law, to

address in detail the critical issue in this case—the

relationship between the Jones Act and the principles

of judicially declared maritime law.'

—

' In accordance with Rule 37.6., counsel for Amicus Curiae

certifies the following:

(A) The undersigned authored this brief in whole, and

no counsel for any party authored this brief in

whole or in part.

(B) No party or party's counsel contributed money

that was intended to fund preparing or submit-

2

SUMMARY OF ARGUMENT

The general maritime law has been dominated by

civil codes and legislation for thousands of years, and

that is exemplified in the United States where Con-

gress has exercised its paramount authority over sea-

men’s remedies since the first Congress. Unlike its

decision to retain the seamen’s contract-based remedy

of maintenance and cure, Congress has modified sea-

men’s tort remedies for injury and death with the in-

tent to occupy the field. Having exercised its superior

authority over seamen’s tort claims with respect to (he

specific issue in this case—damages in the seamen’s

tort liability cause of action—Congress has left this

Court with no role in our constitutional scheme to sup-

plement the settled plan of rights and responsibilities

established by Congress.

~~.

ARGUMENT AND AUTHORITIES

I. The Roles of Congress and the Courts in

Formulating Maritime Remedies

The issue presented to this Court involves the

roles of Congress and the courts in formulating

(C) No person, other than the Amicus Curiae, contrib-

uted money that was intended to fund preparing

or submitting this brief.

The written consent of all parties to the filing of this brief has

been provided as both Petitioner and Respondent have filed blan-

ket consents to the filing of amicus curiae briefs in support of

either or neither party.

3

maritime remedies, particularly the authority of

judges to fashion elements of recovery in an area

where Congress has repeatedly legislated and has oc-

cupied the field. This issue is not new to admiralty, nor

is it a creation of recent decisions like Miles v. Apex

Marine Corp.’ “The view that admiralty judges fashion

enlightened legal doctrines free of legislative restraint

does not reflect the course that admiralty judges have

steered in formulating the general maritime law in

seas that have been dominated by civil codes and leg-

islation for thousands of years.”

The “[j)udicial power, in all cases of admiralty and

maritime jurisdiction, is delegated by the Constitution

to the Federal Government in general terms,™ reflect-

ing “the adoption by all commercial! nations (our own

included) of the general maritime law as the basis and

groundwork of al! their maritime regulations.”* Once

the general maritime law was adopted, however, the

question arose as to which branch of government had

the authority to modify the maritime law. Over 160

years ago, Chief Justice Taney declared that the mari-

time law was subject to regulation by Congress: “The

power of Congress to change the mode of proceeding in

this respect in its courts of admiralty, will, we suppose,

* 498 U.S. 19 (1990).

* W. Eugene Davis, The Role of Federal Courts in Admiralty:

The Challenges Facing the Admiralty Judges of the Lower Federal

Courts, 75 Tut. L. Rev. 1355, 1359 (2001).

* The St. Lawrence, 66 U.S. (1 Black) 522, 526 (1861).

* The Lottawanna, 88 U.S. (21 Wall.) 558, 572-73 (1874).

4

hardly be questioned.” Justice Bradley later ex-

plained: “But we must always remember that the court

cannot make the law, it can only declare it. If, within

its proper scope, any change is desired in its rules,

other than those of procedure, it must be made by the

legislative department.” Therefore, the Court summa-

rized: “{I]t must now be accepted as settled doctrine

that in the consequence of these provisions Congress

has paramount power to fix and determine the mari-

time law which shall prevail throughout the country.”

Il. Congress “Occupied the Field” of “Liabil-

ity for Injuries to Seamen”

Exercising its “paramount power” to determine

maritime law, Congress has formulated rights and

remedies for maritime workers since the inception of

the nation. In fact, the first Congress enacted a statute

regulating the payment of wages to seamen.” In the

context of the remedies available to injured seamen

and longshoremen, Congress has enacted maritime leg-

* The Genesee Chief, 53 U.S. (12 How.) 443, 459-60 (1851).

" The Lottawanna, 88 U.S. at 576-77.

* So. Pac. Co. v. Jensen, 244 U.S. 205, 215 (1917).

* Lindgren v. United States, 281 U.S. 38, 45, 47 (1930) (quot-

ing Patrone vu. Howlett, 237 MY. 394, 397, 143 N_E. 232, 233

(192A4)).

® Act of July 20, 1790, ch. 29, § 6, 1 Stat. 133. Congress has

periodically amended the statute, and current legislation regulat-

ing the employment of seamen is codified at 46 U.S.C. §§ 10301-

10321, 10501-10509, 10601-10603, 10701-10711, 10901-10998,

11101-11112.

5

of general maritime law that had been enunciated by

this C

As it was “established that in the courts of the

United States no action at law can be maintained for

[wrongful death] in the absence of a statute giving the

right,”" the Court held in The Harrisburg that no ac-

tion for wrongful death “will lie in the courts of the

United States under the general maritime law.””

While land-based workers such as longshoremen were

afforded a negligence remedy against their employer

by the general maritime law,” the Court in The Osce-

ola denied seamen the same relief, holding that “

negligence of another member of the crew beyond the

expense of his maintenance and cure.” Thus, the gen-

maintenance and cure, and “indemnity for injuries re-

ceived by seamen in consequence of the unseaworthi-

ness of the ship.””

Lacking a maritime remedy, the widow of a long-

shoreman who was killed on navigable waters sought

relief under a state workers’ compensation statute, but

the Court struck down her attempt in Southern Pacific

Co. v. Jensen because it violated the Constitution’s re-

quirement that the grant of admiralty jurisdiction to

" 119 US. 199, 213 (1886).

™ Id.

" See Atl. Transp. Co. v. Imbrovek, 234 U.S. 52, 63 (1914).

“ 189 US. 158, 175 (1903).

Id.

6

the federal courts “must have referred to a system of

law coextensive with, and operating uniformly in, the

whole country.”” The Court decreed that the cure for

the absence of a remedy lies with Congress, which has

the “paramount power” to amend the general maritime

law."

Congress overhauled the remedies for both sea-

men and longshoremen in response to the decisions of

this Court in The Harrisburg, The Osceola, and South-

ern Pacific Co. v. Jensen. In 1917, Congress enacted

legislation to afford a state workers’ compensation

remedy to both seamen and longshoremen.” Although

the Supreme Court recognized that “Congress could

have enacted a compensation act applicable to mari-

time injuries,” the Court did not believe it was consti-

tutional for Congress to authorize states to provide the

compensation remedy for maritime workers as “such

an authorization would inevitably destroy the har-

mony and uniformity” required by the Constitution.”

After its effort to provide seamen and longshore-

men with a workers’ compensation remedy was in-

validated, Congress decided to treat seamen and

land-based workers differently, giving special treat-

ment to seamen while treating land-based maritime

244 US. at 215 (quoting The Lottawanna, 88 U.S. at 575).

" Id. The Court stated: “Congress can alone act upon it and

provide the needed regulations.” Jd. at 217.

“ See Act of Oct. 6, 1917, ch. 97, 40 Stat. 395.

' Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920).

” Id.

7

workers like other non-maritime laborers. Thus, Con-

gress enacted the Jones Act,”' extending to seamen the

same negligence remedy afforded to interstate railroad

workers in the Federal Employers’ Liability Act,” and

granting a state workers’ compensation remedy to non-

seamen.”

The congressional committee recognized the dif-

ference between the seamen’s remedy of maintenance

and cure and their tort claim for damages for unsea-

worthiness when it legislated the tort cause of action

based on negligence under the Jones Act:

A seaman is entitled to maintenance, care,

and cure at the expense of the ship and to his

wages to the end of the voyage without regard

to the question of negligence. ... The rules

which govern his right to recover damages for

an injury happening at sea because of negli-

gence or fault are different from those which

govern the right of recovery of any other class

of workmen. ([Schuede] v. Zenith S. S. Co., 216

Fed., 566, 570) [((N.D. Ohio 1914)]. The special

treatment which seamen have always had un-

der the acts of Congress was recently empha-

sized by the provision in the merchant marine

act of 1920 extending to seamen but not to

other maritime workers the same rights of

” Act of June 5, 1920, ch. 250, § 33, 41 Stat. 988, 1007, cur-

rently codified at 46 U.S.C. §§ 30104-30105.

” 45 U.S.C. §$§ 51-60 (hereinafter referred to as “FELA”).

® Act of June 10, 1922, ch. 216, 42 Stat. 634.

8

recovery in case of work accidents now en-

joyed by interstate railway employees.”

Consequently, after Congress had initially granted

both seamen and longshoremen a workers’ compensa-

tion remedy, Congress decided that seamen should be

treated differently. Congress modified the seamen’s

tort cause of action for “negligence or fault” by enacting

the Jones Act while retaining the seamen’s distinct ac-

tions for maintenance and cure and wages that arise

from the seamen’s contract of employment.”

The Congressional effort to provide a state work-

ers’ compensation remedy to land-based maritime

workers met with the same fate in this Court as the

original attempt to provide a state workers’ compensa-

tion remedy to seamen and longshoremen. However, in

Washington v. W.C. Dawson & Co., the Court explained

the wide discretion Congress had “to alter, amend, or

revise the maritime law by statutes of general applica-

tion embodying its will and judgment,” such as “a gen-

eral Employers’ Liability Law.””

™ S. Rep. No. 94, 67th Cong., lst Sess. 2 (1921). Schuede in-

volved an unseaworthiness action for damages brought in state

court based on defective rigging. Schuede, 216 F. at 566.

* See, eg., Cortes uv. Baltimore Insular Line, Inc., 287 U.S.

367, 371 (1932), in which Justice Cardozo explained that mainte

nance and cure is a “duty . . . imposed by the law itself as one

annexed to the employment. . . . Contractual it is in the sense that

it has its source in a relationship that is contractual in origin, but

given its relation, no agreement is competent to abrogate the in-

cident.” (Citing The Osceola).

* 264 U.S. 219, 227 (1924).

9

Recognizing that the way to accomplish the goal of

providing a workers’ compensation remedy to mari-

time workers had been “clearly pointed out””’ by this

Court, Congress debated the scope of the federal com-

pensation statute that became the Longshore and Har-

bor Workers’ Compensation Act.” One of the major

subjects of debate was whether all maritime workers,

including seamen, should be subject to the uniform fed-

eral remedy that became the LHWCA:

Initially, Congress was “reluctant” to include

seamen in the bill for the reasons it had pre-

viously articulated.“ However, the subject

was reopened on the request of the shipping

companies that seamen be included™ and be-

cause “it was felt that perhaps the very bill

might be imperiled if it did not have uni-

formity.”*"' Consequently the counsel for the

*” 68 Cona. Rec. 5413, 69th Cong., 2d Sess. (1927) (statement

of Rep. O’Connor).

* The Longshore & Harbor Workers’ Compensation Act, 33

U.S.C. $§ 901-950 (hereinafter referred to as “LHWCA”).

” 68 Cona. Rec. 5410, 69th Cong., 2d Sess. (1927) (statement

of Rep. Graham).

” See, eg., Hearing on 8S. 3170, Before the House Committee

on the Judiciary, To Provide Compensation for Employees Injured

and Dependents of Employees Killed in Certain Maritime Em-

ployments, 69th Cong., 1st Sess. 202, 216 (1926); Hearing on H.R.

9498, Before the House Committee on the Judiciary, To Provide

Compensation for Employees Injured and Dependents of Employ-

ees Killed in Certain Maritime Employments, 69th Cong., lst

Seas. 50, 58, 101, 153, 196 (1926) (hereinafter cited as Hearing on

HLR. 9498).

*! 68 Cona. Rec. 5410, 69th Cong., 2d Sess. (1927) (statement

of Rep. Graham).

10

American Steamship Owners’ Association tes-

tified™ “that if workmen’s compensation is a

sound economic policy,” then “everybody in

the industry,” should be covered, including the

“master and crew and everybody connected

with the steamship.”

Seamen protested being included in the federal

compensation statute because they did not want to

give up their maintenance and cure remedy in ex-

change for workers’ compensation. They spoke through

Andrew Furuseth, President of the International Sea-

men’s Union of America:

One of the best arguments in favor of compen-

sation on shore is, that the help comes practi-

cally at once, while liability is at best slow. On

shore and in harbor, as applied to harbor

workers, that is true. The worker is at home

or with friends and the commission is near

and accessible; but the seaman is away from

country, home, and friends. The vessel is away

from the commission. She may be in Asia,

South Sea Islands, Australia, or Africa, away

even from consuls or commercial agents, and

if the care and cure is abolished, the men are

likely to be thrown on shore to be eaten by

strange dogs.”

™ Hearing on H.R. 9498, supra note 30, at 50.

* Kenneth G. Engerrand, The Fleet Rule for Seamen Status,

2 Loy. Mar. L.J. 92, 104 (2003). See id. at 94-107 for a comprehen-

sive discussion of the legislative history of the Jones Act.

™ Hearing on H.R. 9498, supra note 30, at 112.

11

Siding with the seamen, Congress decided not to in-

clude seamen within the federal workers’ compensation

statute,” excluding “a master or member of a crew of

any vessel” when the LHWCA was enacted.”

The Jones Act extends to seamen the rights of re-

covery in the FELA: “Laws of the United States regu-

lating recovery for personal injury to, or death of, a

railway employee apply to an action under this sec-

tion.”*” The FELA contains provisions setting forth the

liability of the carrier for negligence,” and the diminu-

tion of recovery for the employee's negligence,” but the

compensation for liability is simply “in damages.””

The “damages” were defined by the Court in Michigan

Central R.R. v. Vreeland“ seven years before the incor-

poration of the FELA by the Jones Act.

* Chief Justice Hughes recognized the effect of the seamen’s

preference to remain outside the provisions of the federal compen-

sation statute in Nogueira v. N.Y., N.H. & H.R. Co., 281 U.S. 128,

136 (1930), citing the Congressional debate at 68 Conca. Rec. 5908,

69th Cong., 2d Seas. (1927). in the debate cited by Chief Justice

be included in this law.” 68 ConG. Rec. 5908, 69th Cong., 2d Seas.

(1927) (statement of Sen. Norris).

" The crewmember exclusion is currently codified at 33

U.S.C. § 902(3XG).

" 46 U.S.C. § 30104.

* See 45 U.S.C. § 51.

” See id. § 53.

” Id. $51.

*! 227 U.S. 59 (1913).

12

Construing the FELA in Vreeland, the Court

stated: “By this act Congress has undertaken to cover

the subject of the liability of railroad companies to

their employees injured while in interstate commerce.

This exertion of a power which is granted in express

terms must supersede all legislation over the same

subject by the states.” With respect to damages, the

Court concluded: “It is a liability for the loss or damage

sustained by relatives dependent upon the decedent. It

is therefore a liability for the pecuniary damage result-

ing to them, and for that only."“ The Court noted that

“in giving an action for the benefit of certain members

of the family of the decedent, [the FELA|] is essentially

identical with . . . Lord Campbell’s Act,“ and that Act

and “all those which follow it have been continuously

interpreted as providing only for compensation for pe-

cuniary loss or damage.”

As with Lord Campbell’s Act, the Court stated

that the damages under the FELA “are such as flow

from the deprivation of the pecuniary benefits which

the beneficiaries might have reasonably received if the

deceased had not died from his injuries."“ As there

must be “some reasonable expectation of pecuniary as-

sistance or support of which they have been deprived,”

the Court held that “[clompensation for such loss

* Id. at 66.

* Id. at 69.

“ Id.

* id. at 71.

“ Id. at 70.

13

manifestly does not include damages by way of recom-

pense for grief or wounded feelings.”“ Similarly, the

term pecuniary “ ‘excludes, also, those losses which re-

sult from the deprivation of the society and compan-

ionship, which are equally incapable of being defined

by any recognized measure of value.’”™ As the jury in-

struction in Vreeland was not “confined to a consider-

ation of the financial benefits which might reasonably

be expected from [the decedent] in a pecuniary way”

and which were “capable of being measured by any ma-

terial standard,” the verdict had to be reversed.”

The Court explained the damages recoverable in

FELA cases in American R.R. v. Didricksen: “The dam-

ages recoverable are limited to such loss as results to

them because they have been deprived of a reasonable

expectation of pecuniary benefits by the wrongful

death of the injured employee. The da”iage is limitec

strictly to the financial loss thus sustained.”” Conse-

quently, by enacting the Jones Act, Congress know-

ingly amended the tort remedy for seamen provided by

the general maritime law with the favorable negli-

gence standard provided in the FELA but with the lim-

itations on recovery provided by that statute, as the

*" Id.

“ Id. at 71 (quoting Tilley v. Hudson River R.R., 24 N.Y. 471,

476 (1862)).

* Vreeland, 227 U.S. at 73. The Court distinguished care and

advice, which can be measured by a pecuniary standard. See id.

at 73-74.

227 U.S. 145, 149 (1913); see also Gulf, Colo., & Santa Fe

Ry. v. McGinnis, 228 U.S. 173, 175-76 (1913).

14

Court recognized in Miles: “When Congress passed the

Jones Act, the Vreeland gloss on FELA, and the hoary

tradition behind it, were well established. Incorporat-

ing FELA unaltered into the Jones Act, Congress must

have intended to incorporate the pecuniary limitation

on damages as well.”

In summary, after this Court held that seamen

had maritime remedies of wages, maintenance and

cure, and an indemnity for unseaworthiness of the ves-

sel, but no negligence remedy, Congress tried to give

seamen a state workers’ compensation remedy, but

that statute was declared unconstitutional. Next, Con-

gress amended the seamen’s tort remedy by extending

to seamen “the same rights of recovery in case of work

accidents [then] enjoyed by interstate railway employ-

ees.” Finally when enacting a uniform federal com-

pensation statute for maritime workers, Congress

considered providing seamen with a simple, uniform

federal workers’ compensation remedy, but instead

decided that seamen should retain their tort rem-

edy, modified by the Jones Act, to supplement their

contract-based remedies of maintenance and cure and

wages.

The effect of the Jones Act on seamen’s mari-

time remedies was addressed by this Court in Panama

R.R. v. Johnson™ and Lindgren v. United States." In

*! Miles, 498 U.S. at 32.

" S. Rep. No. 94, supra note 24, at 2.

' 264 U.S. 376 (1924).

™ 281 U.S. 38 (1930).

15

Panama R.R. the seaman’s employer argued that the

Jones Act was unconstitutional because it “enables a

seaman asserting a cause of action essentially mari-

time to withdraw it from the reach of the maritime law

and the admiralty jurisdiction, and to have it deter-

mined according to the principles of a different sys-

tem applicable to a distinct and irrelevant field.””

Although the Court considered that argument to pre-

sent a “grave question” with respect to the “constitu-

tional validity” of the Jones Act,” the Court was able

to interpret the Act in a way so as to preserve its con-

stitutionality. When the Jones Act provided that sea-

men may maintain an action for damages at law and

that the FELA would apply to that action, the Court

distinguished between the tort action for damages,

to which the FELA applied, and the contract-based

remedies of maintenance and cure and wages: “So we

think the reference is to all actions brought to recover

compensatory damages under the new rules as distin-

guished from the allowances covered by the old rules,

usually consisting of wages and the expense of mainte-

nance and cure.”®*’

Just as the FELA “took possession of the field of

the employers’ liability to employees in interstate

transportation by rail," so too did the Jones Act take

possession of “the entire field of liability for injuries to

* Panama R.R., 264 U.S. at 387.

Id. at 390.

* Id. at 391.

Lindgren, 281 U.S. at 45.

16

seamen.” Comparing the Jones Act and FELA, the

Court in Lindgren found it “plain that the [Jones Act!

is one of general application intended to bring about

the uniformity in the exercise of admiralty jurisdiction

required by the Constitution,” and that “there is noth-

ing in it to cause its operation to be otherwise than uni-

form.”” The Court explained that the incorporation of

the FELA “establishes as a modification of the prior

maritime law a rule of general application in reference

to the liability of the owners of vessels for injuries to

seamen” and that the Jones Act “is as comprehensive

of those instances in which by reference to the [FELA!

it excludes liability, as of those in which liability is im-

posed.”™' Thus, the Court stat. | that the Jones Act “co-

vers the entire field of liability for injuries to seaman”

and is “paramount and exclusive.”” As the Jones Act

“occupied the field and became a part of the general

maritime law,”™ the Court held that the plaintiff had

“no resort” to state law “to establish a measure of dam-

ages not provided by that Act.™ Thereafter, this Court

has not wavered from its deference to Congress’s par-

amount role in defining seamen’s remedies: “Whatever

may be this Court’s special responsibility for fashion-

ing rules in maritime affairs, we do not believe that we

* Id. at 47.

” Id. at 44.

* Id. at 46-47.

* Id. at 47.

* Id. at 45.

™ Id. at 47.

17

should now disturb the settled plan of rights and lia-

bilities established by the Jones Act.”

The reference in Gillespie to this Court’s special

responsibility for fashioning rules in maritime cases is

as determinative in the present case as it was in Gil-

lespie and later in Miles. When Congress has ad-

dressed the damages for workers such as seamen, as it

did in the enactment of the Jones Act, the special solic-

itude shown to seamen must give way to the “settled

plan of rights and responsibilities established by the

Jones Act.” And the effect of Congressional legislation

is not limited to preemption of state remedies but has

a greater impact with respect to displacement of fed-

eral remedies in light of the preeminent role of Con-

gress in fashioning principles of general maritime law,

as discussed infra.”

Gillespie uv. United States Steel Corp., 379 U.S. 148, 155

(1964) (citing Fitzgerald v. United States Lines Co., 374 U.S. 16,

20-21 (1963)).

* Gillespie, 379 U.S. at 155.

* Thus, although this Court .o Miles stated that “[t)/he Jones

Act . . . does not disturb seamen’s general maritime claims for in-

juries from unseaworthiness,” 498 U.S. at 29, the Court displaced

the damages available in unseaworthiness cases in deference to

the damages available in the Congressional Jones Act remedy

that had occupied the field:

The Jones Act also precludes recovery for loss of society

in this case. The Jones Act applies when a seaman has

been killed as a result of negligence, and it limits recov-

ery to pecuniary loss. The general maritime claim here

alleged that Torrengano had been killed as a result of

the unseaworthiness of the vessel. It would be incon-

sistent with our place in the constitutional scheme

18

Ill. Seamen May “ot Recover Punitive Dam-

ages in Actior +» Alleging Unseaworthiness

The issue presented to this Court is not whether

Miles addresses punitive damages or whether Miles

should be applied narrowly or broadly. The question is

simply whether the Court should, by supplementing

the damages provided by Congress with an element of

recovery that was not afforded by the Jones Act, “dis-

turb the settled plan of rights and remedies estab-

lished by the Jones Act,™ in which Congress “cover|ed|

the entire field of liability for injuries to seamen.””

That issue was not new to the Court in Miles. Its an-

swer was not affected by the Court’s decision in Atlan-

tic Sounding Co. v. Townsend.” Like Congress, this

seamen’s remedies arising from their employment re-

lationship (maintenance and cure and wages) and

their separate tort remedy based on negligence or un-

seaworthiness.

In Pacific S.S. Co. v. Peterson, the Court addressed

the effect of the Jones Act on seamen’s general

were we to sanction more expansive remedies in a ju-

dicially created cause of action in which liability is

without fault than Congress has allowed in cases of

death resulting from negligence. We must conclude

that there is no recovery for loss of society in a genera!

maritime action for the wrongful death of a Jones Act

seaman.

Id. at 32-33.

* Gillespie, 379 U.S. at 155.

® Lindgren, 281 U.S. at 47.

" 557 U.S. 404 (2009).

19

maritime claims: wages, maintenance and cure,

and “indemnity for injuries received by a seaman in

consequence of the unseaworthiness of the ship.”” The

seaman’s employer argued that the recovery of mainte-

nance and cure was an election that barred recovery

under the Jones Act.” The Court disagreed as “the new

rule to compensatory damages for injuries caused by

negligence is not an alternative of the right under the

old rule to maintenance, cure and wages,” which the

Court considered to “grow/] out of” “the ‘personal in-

denture’ created by the relation of the seaman to his

vessel.” The remedies of wages and maintenance and

cure do not “ ‘displace or affect the right of the seaman

to recover against the master or owners for injuries by

their unlawful or negligent acts,’”“* and “a recovery in

one proceeding for wages and maintenance and cure

does not preclude the recovery in a subsequent pro-

ceeding of indemnity for injuries resulting from unsea-

worthiness.”” “(T]he right to maintenance, cure and

wages, implied in law as a contractual obligation aris-

ing out of the nature of employment, is independent

of the right to indemnity or compensatory damages

for any injury caused by negligence.” The Court ex-

plained that, in contrast to maintenance and cure,

" 278 US. 130, 134 (1928).

™ See id. at 135.

™ Id. at 136-37 (quoting The Montezuma, 19 F.2d 355, 356

(2d Cir. 1927)).

™ Peterson, 278 U.S. at 137 (quoting The A. Heaton, 43 F. 592,

596 (C.C.D. Mass. 1890)).

™ Peterson, 278 U.S. at 137.

Id. at 138.

20

there is a single legal wrong for negligence and unsea-

worthiness for which the seaman “is entitled to but one

indemnity by way of compensatory damages:”

The right to recover compensatory dam-

ages under the new rule for injuries caused by

negligence is, however, an alternative of the

right to recover indemnity under the old rules

on the ground that the injuries were occa-

sioned by unseaworthiness; and it is between

these two inconsistent remedies for an injury,

both grounded on tort, that we think an elec-

tion is to be made under the maritime law as

modified by the statute. ... But, whether or

not the seaman’s injuries were occasioned 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 invasion of his primary right of bod-

ily safety and but a single legal wrong .. . for

which he is entitled to but one indemnity by

way of compensatory damages.””

In consideration of the difference between mainte-

nance and cure and the damage remedies of negligence

and unseaworthiness, seamen are not required to elect

between “the right to recover compensatory damages

for a tortious injury under the new rule and the con-

tractual right to maintenance, cure and wages under

the old rules.””

™ Id.

Id. at 139.

21

The effect of the Jones Act on the seaman’s dam-

age claim for unseaworthiness is much different than

its effect on the claims for wages and maintenance and

cure. In McAllister v. Magnolia Petroleum Co. the

Court imposed a similar time limitation for bringing

unseaworthiness cases as that contained in the Jones

Act.” In contrast to maintenance and cure, the Court

stated that “if the seaman is to sue for both unsea-

worthiness and Jones Act negligence, he must do so

n a single proceeding.” The Court explained that

unseaworthiness and negligence are “but alternative

‘grounds’ of recovery for a single cause of action.”

Consequently, “[a] judgment in the seaman’s libel for

unseaworthiness was held to be a complete ‘bar’ to his

subsequent action for the same injuries under the

Jones Act.” Professors Gilmore and Black summa-

rized the relationship between the Jones Act and un-

seaworthiness counts: “The Jones Act count and the

unseaworthiness count overlap completely: they derive

from the same accident and look toward the same re-

covery.” “[T]he Jones Act count and the unseaworthi-

ness count are Siamese twins.”™

When this Court overruled The Harrisburg and

held “that an action does lie under general maritime

357 U.S. 221, 225 (1958).

® Id. at 224.

* Td. at 225.

3 Id.

53 Grant GiLMoRE & CHARLES L. BLAcK, Jr., Toe LAw or Ap-

MIRALTY § 6-38 at 383 (2d ed. 1975).

“ Id.

22

law for death caused by maritime duties” in Moragne

v. States Marine Lines, Inc.,” the Court proceeded cau-

tiously in light of the “numerous and broadly applica-

ble statutes.”“ The Court explained: “The legislative

establishment of policy carries significance beyond the

particular scope of each of the statutes involved.” The

policy thus established has become itself a part of our

law.”*’ The Court described the effect of congressional!

action: “The legislature does not, of course, merely en-

act general policies. By the terms of a statute, it also

indicates its conception of the sphere within which the

policy is to have effect.”

The effect of the sphere of Congressional enact-

ments on the damages that could be recovered in ac-

tions under the general maritime law was presented to

the Fifth Circuit in Law v. Sea Drilling Corp.” Con-

signing the federal statutes to “the scrap heap,””

the court freely supplemented the congressional bal-

ance (that limited recovery to pecuniary damages) by

permitting recovery of non-pecuniary loss of society,

stating: “It is time that the dead hand of The Harris-

burg—whether in the courts or on the elbow of the

* 398 U.S. 375, 409 (1970).

Id. at 390.

* Id. at 390-91.

Id. at 392.

® 510 F.2d 242 (5th Cir), reh’g denied, 523 F.2d 793 (5th Cir.

1975).

” Law, 523 F.2d at 796 (quoting Tue LAW OF ADMIRALTY, su-

pra note 83, § 6-33 at 370).

23

congressional draftamen of DOHSA—follow the rest of

the hulk to an honorable rest in the briney |sic] deep.”

In Mobil Oil Corp. v. Higginbotham™ this Court

disagreed sharply with the Fifth Circuit’s consignment

of federal statutes to the scrap heap. Following its de-

cision in Law v. Sea Drilling, the Fifth Circuit held that

damages for loss of society were recoverable in the case

of deaths on the high seas.” The issue presented to this

Court was whether damages for loss of society were re-

coverable under the general maritime law where the

death occurred on the high seas. The plaintiffs argued

“that admiralty courts have traditionally undertaken

to supplement maritime statutes and that such a step

is necessary in this case to preserve the uniformity of

maritime law.“ The Court did not “pause to evaluate

the opposing policy arguments,” reasoning: “Congress

has struck the balance for us. It has limited survivors

to recovery of their pecuniary losses.“ The Court

stated: “DOHSA should be the courts’ primary guide

as they refine the nonstatutory death remedy, both

because of the interest in uniformity and because

Congress’ considered judgment has great force in

its own right."” The Court recognized that DOHSA

”" Law, 523 F.2d at 798 (referring to the Death on the High

Seas Act, 46 U.S.C. $§ 30301-30308, hereinafter referred to as

DOHSA).

™ 436 U.S. 618 (1978).

* Id. at 618-19 & n.1.

™ Id. at 624.

* Id. at 623.

* Id. at 624.

24

“announces Congress’ considered judgment on such is-

sues as the beneficiaries, the limitations period, con-

tributory negligence, survival, and damages.”” The

Court concluded: “In the area covered by the statute, it

would be no more appropriate to prescribe a different

measure of damages than to prescribe a different stat-

ute of limitations, or a different class of beneficiaries.””

As “Congress did not limit DOHSA beneficiaries to re-

covery of their pecuniary losses in order to encourage

the creation of nonpecuniary supplements,” the

Court reversed the decision of the Fifth Circuit that

the beneficiaries could recover nonpecuniary damages

for loss of society.

Miles v. Apex Marine Corp. involved the death of a

seaman in state waters as a result of both negligence

and unseaworthiness.'” As recovery was permitted un-

der the Jones Act (negligence) and general maritime

law (unseaworthiness), the issue was presented

whether nonpecuniary loss of society was available be-

cause of the unseaworthiness finding. The Court in

Miles discussed the effect of statutory enactments on

the maritime law, noting: “Admiralty is not created in

a vacuum; legislation has always served as an im-

portant source of both common law and admiralty

* Id. at 625.

* Id.

” Id.

See id. at 21-22.

25

principles.”"*' The Court described the effect of con-

gressional enactments on the general maritime law:

In this era, an admiralty court should look

primarily to these legislative enactments for

policy guidance. We may supplement these

statutory remedies where doing so would

achieve the uniform vindication of such poli-

cies consistent with our constitutional man-

date, but we must also keep strictly within the

limits imposed by Congress. Congress retains

superior authority in these matters, and an

admiralty court must be vigilant not to over-

step the well-considered boundaries imposed

by federal legislation. These statutes both di-

rect and delimit our actions.'”

Although the enactment of the Jones Act “does not

disturb seamen’s general maritime claims for injuries

resulting from unseaworthiness,” the Court held that

“the Jones Act establishes a uniform system of sea-

men’s tort law parallel to that available to employees

of interstate railway carriers under FELA.”'” Thus,

the damages for the maritime unseaworthiness count

do not “supplement” the damages allowed by the Jones

Act negligence count, as the “logic of Higginbotham

controls our decision here.”’** The Court reiterated

its reasoning from Higginbotham for the “preclusive

‘© Id. at 24.

2 Td. at 27.

8 Id. at 29.

® Id. at 31.

26

effect of the Jones Act for deaths of true seamen:”'”

“But in an ‘area covered by the statute, it would be no

more appropriate to prescribe a different measure of

damages than to prescribe a different statute of limi-

tations, or a different class of beneficiaries.’”'”

Like DOHSA, which contains an express provision

for recovery of pecuniary damages,’ the FELA, whose

provisions were adopted by the Jones Act, “consistently

[has] been interpreted as providing recovery only for

pecuniary loss.”"* Thus, the Jones Act incorporates the

FELA’s pecuniary loss limitation and “precludes recov-

ery for loss of society,”"” which, like punitive damages,

is a nonpecuniary loss.

As it had done in Higginbotham with respect to

DOHSA, the Court in Miles limited recovery under the

general maritime law to the damages allowed by Con-

gress in the Jones Act:

The Jones Act applies when a seaman has

been killed as a result of negligence, and it

limits recovery to pecuniary loss. The general

® Id. at 32.

* Jd. at 31 (quoting Higginbotham, 436 U.S. at 625).

See 46 U.S.C. § 30303.

‘ Miles, 498 U.S. at 32 (citing Vreeland, 227 U.S. at 69-71).

” Id. As noted above, the Court explained:

When Congress passed the Jones Act, the Vreeland

gloss on FELA, and the hoary tradition behind it, were

well established. Incorporating FELA unaltered into

the Jones Act, Congress must have intended to incorpo-

rate the pecuniary limitation on damages as well.

Id.

27

maritime claim here alleged that Torregano

had been killed as a result of the unseawor-

thiness of the vessel. It would be inconsistent

with our place in the constitutional scheme

were we to sanction more expansive remedies

in a judicially created cause of action in which

liability is without fault than Congress has al-

lowed in cases of death resulting from negli-

gence. We must conclude that there is no

recovery for loss of society in a general mari-

time action for the wrongful death of a Jones

Act seaman.'"®

Thus, the Court established “a uniform rule applicable

to all actions for the wrongful death of a seaman,

whether under DOHSA, the Jones Act, or general mar-

itime law.”""

The decision of this Court in Atlantic Sounding Co.

vu. Townsend draws the same distinction in remedies

that Congress sought to enact in its amendment of the

general maritime law in the Jones Act and LHWCA.

Townsend involved a seaman’s claim for punitive dam-

ages for the willful failure to pay maintenance and

cure. The Court reiterated its reasoning from Miles,

which the Court advised “remains sound.”'” The Court

stated: “It would have been illegitimate to create com-

mon-law remedies that exceeded those remedies stat-

utorily available under the Jones Act and DOHSA.”'"

"® Jd. at 32-33.

"! Td. at 33.

'@ Townsend, 557 U.S. at 420.

iu Id.

28

In comparison to the Siamese twins of unseaworthi-

ness and Jones Act negligence, where the two theories

are “inseparable and indivisible parts of a single cause

of action,”""* the Court in Townsend recognized that “a

seaman’s action for maintenance and cure is ‘inde-

pendent’ and ‘cumulative’ from other claims such as

negligence, and that the maintenance and cure right is

‘in no sense inconsistent with, or an alternative of, the

right to recover compensatory damages [under the

Jones Act].’”"* The Court agreed that “the Jones Act

and the unseaworthiness remedies are additional to

maintenance and cure: the seaman may have mainte-

nance and cure and also one of the other two.”'"* Unlike

the seaman’s remedy for damages based on negligence

and unseaworthiness, where Congress has occupied

the field, “the Jones Act does not address maintenance

and cure or its remedy.”""’ Thus, in contrast to unsea-

worthiness, for maintenance and cure it is “possible to

adhere to the traditional understanding of maritime

™ Kenneth G. Engerrand & Scott R. Brann, Troubled Waters

for Seamen’s Wrongful Death Actions, 12 J. Mar. L. & Com. 327,

348 (1981) (citing McAllister, 357 U.S. at 224-25). Although the

Court in McAllister recognized the three bases for recovery,

maintenance and cure, negligence under the Jones Act, and un-

seaworthiness, id. at 224, the Court differentiated the negligence

and unseaworthiness remedies from maintenance and cure, de-

scribing the Jones Act and unseaworthiness claims as “but alter-

native ‘grounds’ of recovery for a single cause of action.” Jd. at 225.

"® Townsend, 557 U.S. at 423 (quoting Peterson, 278 U.S. at

138, 139).

"6 Td. at 424 (quoting Turk LAw OF ADMIRALTY, supra note 83,

$ 6-23 at 342).

"’ Townsend, 557 U.S. at 420.

29

actions and remedies without abridging or violating

the Jones Act; unlike wrongful-death actions, this tra-

ditional understanding is not a matter to which ‘Con-

gress has spoken directly.’”'”

As Congress has occupied the field for seamen’s

damage actions and has spoken directly to the amount

of damages recoverable in the seamen’s liability action

for damages, the issue is whether the limitation to pe-

cuniary damages with the FELA and Jones Act pre-

cludes an award of punitive damages for the tort action

based on unseaworthiness. For the reasons expressed

by this Court in Vreeland, the courts recognize that:

“Punitive damages are non-pecuniary. Under our prec-

edent, therefore, they may not be awarded on a claim

of negligence based on the Jones Act. Any argument

that they should be available ought to be addressed to

Congress.”"”” “It has been the unanimous judgment of

the courts since before the enactment of the Jones Act

that punitive damages are not recoverable under the

[FELA].””° Consequently, “since the Supreme Court’s

authoritative interpretation of FELA antedated enact-

ment of the Jones Act, Miles mandates the conclusion

"8 Id. at 420-21 (quoting Miles, 498 U.S. at 31).

"® Kopcezynski v. The Jacqueline, 742 F.2d 555, 561 (9th Cir.

1984).

™ Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1457

(6th Cir. 1993); see also Horsley v. Mobil Oil Corp., 15 F.3d 200,

203 (ist Cir. 1994); Kozar v. Chesapeake & Ohio Ry., 449 F.2d

1238, 1240 (6th Cir. 1971).

30

that punitive damages are not available in an unsea-

worthiness action under general maritime law.”

The distinction Congress made between the cause

of action for damages and the distinct remedy for

maintenance and cure is no different in the case of in-

jury than it is for death. The Jones Act was enacted to

create a damage remedy for injury or death to supple-

ment the maintenance and cure remedy afforded by

the general maritime law. The occupation of the field

by the enactment of the Jones Act is the same in both

cases, and the same incorporation of the limitations of

the FELA applies. In fact, Townsend's careful distin-

guishing of Miles, while acknowledging that the anal-

ysis in Miles remains sound, was based on decisions

such as Pac. S.S. Co. v. Peterson, which involved an in-

jury to a seaman, not a wrongful death. Quoting Peter-

son, the Court in Townsend “emphasizled] that a

seaman’s action for maintenance and cure is “inde-

pendent” and “cumulative” from other claims such as

negligence and that the maintenance and cure right is

“in no sense inconsistent with, or an alternative of, the

right to recover compensatory damages [under the

Jones Act].”™

Whether the seaman was killed, as in Miles, or in-

jured, as in Peterson, this Court has recognized that

“whether or not the seaman’s injuries were occasioned

by the unseaworthiness of the vessel or by the

™! Horsley, 15 F.3d at 203.

™ Townsend, 557 U.S. at 423 (quoting Peterson, 278 U.S. at

138).

31

negligence 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 . . . for which he is entitled to but one in-

demnity by way of compensatory damages.”'” Conse-

quently, Congress’ occupation of the field for a

seaman’s liability claim, whether for death or injury

and whether for negligence or unseaworthiness, or

both, simply leaves this Court with nothing to supple-

ment.

»

a

CONCLUSION

Congress exercised its paramount power to amend

the maritime law when it occupied the field for sea-

men’s damages by the enactment of the Jones Act. Con-

gress had given seamen state workers’ compensation

remedies and debated including them in the uniform

federal compensation statute, the LHWCA. However,

Congress decided to retain seamen’s contract-based

remedies of wages and maintenance and cure while oc-

cupying the field of tort liability for injuries to seamen

with the Jones Act. In contrast to the claims for

maintenance and cure and wages, the damage claims

of unseaworthiness and Jones Act negligence overlap

completely as Siamese twins because a seaman is “en-

titled to but one indemnity by way of compensatory

damages” for a “single wrongful invasion of his pri-

mary right of bodily safety and but a single legal

™ Peterson, 278 U.S. at 138.

32

wrong,” whether the “injuries were occasioned by the

unseaworthiness of the vessel or by the negligence of

the master or members of the crew, or both com-

bined.”™ Thus, when Congress adopted the pecuniary

to supplement that limitation. As Congress has exer-

cised its superior authority with respect to the specific

issue presented—damages in the seaman’s liability

claim—this Court should not “disturb the settled plan

of rights and remedies established by the Jones Act”’”

by consigning the congressional determination of dam-

ages to the scrap heap.

Respectfully submitted,

KENNETH G. ENGERRAND

Counsel of Record

Brown Sims PC.

1177 West Loop South, Tenth Floor

Houston, Texas 77027

Telephone: 713.629-1580

Facsimile: 713.629-5027

kengerrand@brownsims.com

Counsel for Amicus Curiae

Atlantic Sounding Company, Inc.

™ Id.

™® Gillespie, 379 US. at 155.