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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0850%3A05. Public record. Not legal advice.