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

IN Tl.

Supreme Court of the Anited States

THE DUTRA GROUP,

Petitioner,

Vv.

CHRISTOPHER BATTERTON,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

ALASKAN LEADER FISHERIES LLC,

COASTAL MARINE FUND, FISHERMEN’S

FINEST, INC., GLOBAL SEAS LLC, GOLDEN

ALASKA SEAFOODS, LLC, NORTH STAR

FISHING COMPANY LLC, NORTH STAR

INSURANCE SERVICES, LLC, OCEAN

PEACE, INC., OHARA CORPORATION,

TRIDENT SEAFOODS CORPORATION,

UNITED CATCHER BOATS ASSOCIATION,

AND UNITED STATES SEAFOODS, LLC

IN SUPPORT OF PETITONER

MICHAEL A. BARCOTT

Counsel of Record

ROBERT J. BOCKO

HOLMES WEDDLE & BARCOTT

TABLE OF CONTENTS

I. MILES, NOT TOWNSEND, APPLIES TO

THE UNSEAWORTHINESS QUES-

A. Since this Court radically changed it

in the 1940’s, a seaman’s general

maritime law claim for unseaworthi-

ness has focused solely on the vessel's

. In 1920, the Jones Act gave seamen a

claim for compensatory damages for

employer negligence based on FELA,

including FELA’s judicial gloss limit-

ing recovery to pecuniary damages ....

. Claims for unseaworthiness and

Jones Act negligence are two distinct

theories of liability on the same

indivisible cause of action for the

. A seaman’s right to receive mainte-

stands completely independent of

claims for unseaworthiness and Jones

Act negligence, and it has no

om m= E

II.

Ill.

ss

TABLE OF CONTENTS—Continued

E. Miles, not Townsend, controls the

unseaworthiness damages question

presented in this case..........................

: ages on an unseaworthiness claim .....

G. It would be manifestly improper to

allow more expansive remedies on a

judicially created species of liability

without fault than Congress allows in

cases of harm caused by negligence....

CONGRESS HAS SUPERIOR AUTHOR-

ITY TO SHAPE AND LIMIT MARITIME

LAW, AND THE COURTS MUST

ABIDE BY STATUTORY LIMITS ON

UNIFORMITY LIKEWISE COMMANDS

A DECISION THAT SEAMEN CANNOT

RECOVER PUNITIVE DAMAGES FOR

LEADING MARITIME SCHOLAR

PROFESSOR SCHOENBAUM CON-

CLUDED IN HIS TREATISE THAT

SEAMEN CANNOT RECOVER PUNI-

TIVE DAMAGES FOR UNSEAWOR-

Page

10

11

15

16

19

la

iii

TABLE OF AUTHORITIES

CASES Page(s)

American Dredging Co. v. Miller,

510 U.S. 443 (1994).............00.cccccesecereeeeeees 16

American Railroad v. Didricksen,

kB ae 6, 10

Atlantic Sounding Co., Inc. v. Townsend,

557 U.S. 404 (2009) 0.00... ccccceecceeeeeeeneee passim

Baltimore Steamship Co. v. Phillips,

| 8 ERE 6

Exxon Co., U.S.A. v. Sofec, Inc.,

of! 17

Exxon Shipping Co. v. Baker,

ee ey ee iiciitniiniceernncsattcstnstebiedania 9,17

Gulf, Colorado & Santa Fe Railway Co.

v. McGinnis,

| EER 6, 10

Lewis v. Lewis & Clark Marine, Inc.,

Fee We Qo ee ocecscuissnnconsccsdsndecnsntsesens 7

Lust v. Sealy,

383 F.3d 580 (7th Cir. 2004)...........00........ 10

Mahnich v. Southern S. S. Co.,

ee 5

Michigan Central Railroad v. Vreeland,

Be Ce Se rsivisssstescnccetvesvecenesdicmetia 5, 6,9

Miles v. Apex Marine Corp.,

SG eee passim

Mitchell v. Trawler Racer, Inc.,

SES WD, GE Cap covvcccccccsossscccecesssccessooss 10

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Mobil Oil Corp. v. Higginbotham,

436 U.S. 618 (1978)............cccccceceeeeeees 12, 13, 14

Moragne v. States Marine Lines, Inc.,

ee passim

Norfolk Shipbuilding & Drydock Corp.

v. Garris, 532 U.S. 811 (2001).................. 13, 14

ific Steamship Co. v. Peterson,

i cc ccncccnes 5, 10, 14

Seas Shipping Co. v. Sieracki,

eR 5

Southern Pacific Co. v. Jensen,

a 11

Tabingo v. American Triumph LLC,

391 P.3d 434 (2017), cert. denied,

8 19

The ’

I ates 12, 15

The Lottawanna,

I ic ceeceinsnteiesiemineanten 15

The Osceola,

1BO U.S. 166 (1903B)..........ccccccceececseceeeeseeees 4

Zicherman v. Korean Air Lines Co.,

ee 13, 14

STATUTES

IEEE 0) WHIED cctecccecscnesescsnsscccseseusucccsnsseseesee 13

Vv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page(s)

G. Gilmore & C. Black, The Law of Admi-

pe EE AR ETE 4, 6,7

R. Seamon, An Erie Obstacle to State Tort

Reform, 43 Idaho L. Rev. 37 (2006).......... 10

Thomas J. Schoenbaum, Admiralty and

Maritime Law (6th ed. 2018).................. _passim

INTEREST OF THE AMICI CURIAE

Amici Curiae Alaskan Leader Fisheries LLC,

Coastal Marine Fund, Fishermen’s Finest, Inc., Global

Seas LLC, Golden Alaska Seafoods, LLC, North

Star Fishing Company LLC, North Star Insurance

Services, LLC, Ocean Peace, Inc., O’Hara Corporation,

Trident Seafoods Corporation, United Catcher Boats

Association, and United States Seafoods, LLC, submit

this brief to support The Dutra Group’s position that a

Jones Act seaman cannot recover punitive damages on

a claim for unseaworthiness.'

They and their members and clients operate

American fishing vessels in the Atlantic Ocean, Pacific

Ocean, and Bering Sea, employing many hundreds of

seamen in challenging environments. They value safe

working conditions as well as uniform maritime law to

compensate seamen when liability exists under Jones

Act and/or unseaworthiness theories of liability.’

SUMMARY OF ARGUMENT

This brief addresses four points to demonstrate why

the Court should rule that a seaman cannot recover

Miles although punitive damages can be recovered for

willful or wanton denial of maintenance and cure

under Townsend.

First, a seaman’s general maritime law claim for

unseaworthiness has a distinct history and nature

' Pursuant to Rule 37.6, Amici Curiae disclose that no counsel

for a party authored any part of this brief. Likewise, no person or

entity other than the amici or their members contributed money

to fund its preparation. Letters on file with the Clerk show that

all parties consent to its submission.

* The subjoined Addendum sets out more complete descriptions

of the Amici Curiae and their operations.

2

that puts this case within the ambit of Miles, not

Townsend. In the 1940's, this Court radically changed

unseaworthiness to a theory of liability without fault.

Since then, it has been popularly paired with a

seaman’s statutory Jones Act claim based on fault —

two distinct theories of liability on a single cause of

action for the same compensatory damages.

A seaman’s cause of action to recover damages

either for unseaworthiness or Jones Act negligence is

entirely distinct from a seaman’s independent right to

receive maintenance and cure, for which there is no

statutory analog. Maintenance and cure was the only

subject of Townsend. Miles addressed unseaworthi-

ness, the claim presented in this case. Under Miles, a

seaman cannot recover punitive damages for unsea-

worthiness under general maritime law because no

such damages are allowed under the Jones Act.

Second, this Court has consistently held thai Con-

gress has the superior role when it comes to seiting

are not at liberty to grant more expansive remedies for

personal injury or death under general maritime law

than what Congress allowed in maritime personal

Third, the overarching goal of uniformity in mari-

time law also weighs heavily against allowing a

seaman to recover punitive damages on an unseawor-

thiness theory of liability where the same seaman has

no such remedy under the Jones Act.

Fourth, in the 2018 edition of his treatise, noted mar-

itime law scholar Professor Thomas J. Schoenbaum

objectively analyzed the very question presented by

this case. He concluded that Miles applies and bars

recovery of punitive damages on a seaman’s personal!

injury claim for unseaworthiness.

3

ARGUMENT

lI. MILES, NOT TOWNSEND, APPLIES TO

THE UNSEAWORTHINESS QUESTION

PRESENTED.

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

that damages recoverable on a claim for unseaworthi-

ness cannot exceed pecuniary damages recoverable on

a negligence claim for the same incident under the

Jones Act. The rationale is that Congress has superior

authority to decide maritime law and courts cannot

exceed whatever limits are imposed by maritime

personal injury and death statutes. The Jones Act is

the statutory scheme that governs seamen’s personal

injury or death claims for compensatory damages.

Unseaworthiness is an alternative judge-made theory

of liability for the same injury. The Jones Act therefore

constrains courts to limit damages on unseaworthi-

ness claims by the same limits that apply to a Jones

Act claim.

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

404 (2009), addressed the very different issue of willful

denial of maintenance and cure. That issue was

beyond the reach and contemplation of Miles. Unlike

unseaworthiness, maintenance and cure has no statu-

tory counterpart. Seamen have long had an independ-

ent general maritime law right to maintenance and

cure separate and apart from claims for compensatory

damages under the Jones Act and for unseaworthi-

ness. The Jones Act simply does not speak to the post-

injury misconduct of willful or wanton failure to pay

maintenance and cure examined in Townsend.

Townsend, 557 U.S. at 420-21.

Miles, not Townsend, controls the unseaworthiness

damages question presented in this case.

4

A. Since this Court radically changed it in

the 1940's, a seaman’s general maritime

law claim for unseaworthiness has

focused solely on the vessel’s condition

regardless of fault.

The modern seaman’s general maritime law claim

for unseaworthiness looks only at the condition of the

vessel or its equipment in relation to the injurious

incident. Fault concepts play no role. Either the vessel

was reasonably fit for its intended purpose or it was

not. But before Congress enacted the Jones Act in

1920, the unseaworthiness claim was quite different.

The trigger for liability was fault of the owner —

namely, whether the owner had failed to exercise due

diligence to provide a seaworthy vessel.

Aside from sharing the same name, today’s claim for

unseaworthiness bears little resemblance to its

predecessor. In its prior form, “[u]Jnseaworthiness was

‘an obscure and relatively little used remedy,’ largely

because a shipowner’s duty at that time was only to

use due diligence to provide a seaworthy ship.” Miles,

498 U.S. at 25, quoting G. Gilmore & C. Black, The

Law of Admiralty, § 6-38 at 383 (2d ed. 1975). In other

words, liability could only attach for the vessel owner’s

“failure to supply and keep in order the proper appli-

ances appurtenant to the ship.” The Osceola, 189 U.S.

158, 175 (1903). Due to the now defunct “fellow

servant rule,” no liability could attach for negligence

of crewmembers aside from a vessel owner’s independ-

ent obligation to pay maintenance and cure. Id.

5

In the 1940’s, this Court radically changed the trig-

ger for unseaworthiness liability from owner miscon-

duct to a vessel’s injurious condition regardless of how

the condition developed — a species of liability regard-

less of owner fault or crew negligence. Miles, 498 U.S.

at 25; Mahnich v. Southern S. S. Co., 321 U.S. 96, 100

(1944); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94-

95 (1946). “As a consequence of this radical change,

unseaworthiness ‘[became] the principal vehicle for

recovery by seamen for injury or death.” Miles, 498

U.S. 25-26, quoting Moragne v. States Marine Lines,

Inc., 398 U.S. 375, 399 (1970).

B. In 1920, the Jones Act gave seamen a

including FELA’s judicial gloss limiting

recovery to pecuniary damages.

Several years after the Jones Act was enacted in

1920, this Court explained that seamen had thereby

acquired a new and independent “right under the new

rule to compensatory damages for injuries caused by

negligence [that] is not an alternative of the right

under the old rule to maintenance, cure and wages.”

Pacific Steamship Co. v. Peterson, 278 U.S. 130, 136-

37 (1928) (emphasis added).

Jones Act damages are limited to actual pecuniary

losses because “[w|hen Congress passed the Jones

Act, the Vreeland gloss on (the Federal Employers’

Liability Act or FELA], and the hoary tradition

behind it, were well established. Incorporating FELA

unaltered into the Jones Act, Congress must have

intended to incorporate the pecuniary limitation on

damages as well.” Miles, 498 U.S. at 32. Vreeland said

that recovery under FELA was limited to pecuniary

damages and “l\a| pecuniary loss or damage must be

6

one which can be measured by some standard.”

Michigan Central Railroad v. Vreeland, 227 U.S. 59,

71 (1913). Thus, alleged losses that could not be so

measured, such as for loss of society or grief, could not

be recovered under FELA.

In quick succession, this Court twice further empha-

sized that FELA was intended only to compensate for

a plaintiffs actual pecuniary loss. American Railroad

v. Didricksen, 227 U.S. 145, 149 (1913) (FELA

damages are “limited strictly to the financial loss thus

sustained”); Gulf, Colorado & Santa Fe Railway Co. v.

McGinnis, 228 U.S. 173, 175 (1913) (FELA “intended

only to compensate . . . for the actual pecuniary loss”

suffered).

C. Claims for unseaworthiness and Jones

Act negligence are two distinct theories

of liability on the same indivisible

cause of action for the same compensa-

tory damages.

A claim for unseaworthiness is merely an alterna-

tive theory of liability to a claim for Jones Act negli-

gence on the very same cause of action. Baltimore

Steamship Co. v. Phillips, 274 U.S. 316, 325 (1927)

(res judicata barred injured seaman’s second suit for

Jones Act negligence after he lost first suit alleging

unseaworthiness because the two claims were a single

indivisible cause of action); Gilmore & Black, § 6-38, at

383 (describing unseaworthiness and Jones Act counts

as conjoined twin theories on a single cause of action).

As they are merely alternative theories of liability

on the same cause of action, it necessarily follows that

recoverable damages for unseaworthiness and Jones

Act negligence cannot differ. Schoenbaum, Admiralty

and Maritime Law, § 5:10, at 336, 337 (6th ed. 2018).

7

D. A seaman’s right to receive mainte-

nance and cure after an injury arises

stands completely independent of

claims for unseaworthiness and Jones

Act negligence, and it has no statutory

counterpart.

Maintenance and cure has ancient root» that long

predate enactment of the Jones Act in 1920. The

modern claim for unseaworthiness pressed in this case

focused solely on the alleged injurious condition of the

vessel did not even exist until the 1940’s.

A seaman’s right to maintenance and cure aims to

save her or him from being left destitute after illness

or injury strikes while in service to a vessel. “Mainte-

nance” includes food and lodging at the expense of the

injured seaman’s vessel, and “cure” refers to medica!

treatment. Townsend, 557 U.S. at 413, citing Lewis v.

Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001),

and Gilmore & Black, § 6-12, at 267-68.

Seamen hold this separate and independent right to

maintenance and cure in addition to their claims for

compensatory damages under theories of unseawor-

thiness and Jones Act negligence. Townsend, 557 U.S.

at 423-24. It is a stop-gap protective device and does

not address compensatory damages.

The right to maintenance and cure attaches

immediately upon injury or illness that arises while a

seaman is in service to a vessel. That is completely

unlike seamen’s claims for compensatory damages

where a condition of unseaworthiness or negligence

must be proven before liability exists. Those claims for

compensatory damages are very different animals

with entirely distinct histories as discussed above.

8

Maintenance and cure differs from unseaworthiness

in another critical way. Congress granted seamen a

Jones Act negligence claim — a statutory counterpart

to a general maritime unseaworthiness claim to com-

pensate for the same injury. There exists no such

statutory counterpart to a seaman’s right to mainte-

nance and cure, however.’

Townsend was not constrained by Miles because it

only addressed willful and wanton failure to pay

maintenance and cure, a right which stands separate

and apart from a seaman’s cause of action for com-

pensatory damages on theories of unseaworthiness

and Jones Act negligence. Congress never enacted any

statutory analog for maintenance and cure. Thus,

Congress did not speak to maintenance or cure at all,

let alone limit the remedy for willful or wanton failure

to pay maintenance and cure.‘

* The culpable conduct for which punitive damages were

allowed in Townsend underscores another important distinction.

Under Townsend, a vessel owner is exposed to punitive damages

for willful or wanton refusal to pay maintenance and cure, a

second level claims handling transgression that happens after an

handling misconduct is a world away from allowing them on a

claim for liability without fault.

* Historical maritime cases cited in Townsend to support the

conclusion that punitive damages were already an established

remedy under general maritime law involved plunder, callous

refusals to provide medica! treatment to seamen in need, or other

9

The question presented here only involves unsea-

worthiness, however. That brings this case within the

ambit of Miles because the Jones Act provides a claim

for compensatory damages for personal injury or death

just as unseaworthiness does under general maritime

law. Schoenbaum, § 5:10, at 337-38.

F. Miles bars recovery of punitive dam-

ages on an unseaworthiness claim.

Townsend plainly stated that “the reasoning of

Miles remains sound.” Townsend, 557 U.S. at 420.

Although Miles did not control the maintenance and

cure claim presented in Townsend, it certainly applies

to unseaworthiness claims.

Miles decreed that recoverable damages on a claim

for unseaworthiness cannot exceed those available

under a claim for Jones Act negligence. Because puni-

tive damages cannot be recovered on a Jones Act

claim, they likewise cannot be recovered on an unsea-

worthiness claim. Schoenbaum, § 5:10, at 336-39.

First, punitive damages are not measureable by any

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

497-500 (2008) (observing that punitive damages are

neither predictable nor consistent).° Thus, just like

loss of society damages that were disallowed in Miles,

they fail to meet the definition for pecuniary damages

prescribed in Vreeland.

egregious tortious acts. None appear to have awarded punitive

damages for mere breach of a warranty of unseaworthiness.

* That Baker said when punitive damages can be recovered

tory damages does not make them subject to any standard com-

putation. It simply means there is an upper limit. Schoenbaum,

§ 5:10, at 336 0.36.

10

Second, punitive damages would not compensate for

any actual loss — the standard for recoverable damages

laid out by Didricksen and McGinnis as to FELA and

Peterson as to the Jones Act. Instead, they punish and

deter willful and wanton misconduct.*®

G. It would be manifestly improper to

allow more expansive remedies on a

judicially created species of liability

without fault than Congress allows in

cases of harm caused by negligence.

Decisions of this Court have “undeviating 7

reflected an understanding that the owner’s duty to

furnish a seaworthy ship is absolute and completely

independent of his duty under the Jones Act to

exercise reasonable care” such that unseaworthiness

liability is completely divorced from fault concepts.

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50

(1960) (reviewing cases).

That liability for unseaworthiness attaches irrespec-

tive of fault is the very point that led Miles to declare

that “lijt would be inconsistent with our place in

* Routine demands for punitive damages are exploitive and

confound adjudication meant to compensate for actual loss. Lust

v. Sealy, 383 F.3d 580, 591 (7th Cir. 2004) (punitive damages

claims are “potentially catastrophic for the defendants subjected

to them and, in prospect, a means of coercing settlement”). See

also, R. Seamon, An Erie Obstacle to State Tort Reform, 43 Idaho

L. Rev. 37, 89-90 (2006) (“the mere pleading of a large punitive

damage request can force a defendant to settle the case quickly

in unfavorable terms. This dynamic can rise regardless of the

merits of the claim. It is a particularly strong dynamic when

the defendant’s insurance company refuses to defend against

punitive damages claims.”). Allowing punitive damages on an

unseaworthiness claim sets up that precise dynamic “regardless

of the merits of the claim.” Id.

11

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 allowed in cases of death resulting from negli-

gence.” Miles, 498 U.S. at 32-33. That precept applies

forcefully to the question presented in this case con-

sidering that punitive damages aim to punish and

deter reprehensible conduct while notions of fault do

not even factor into a seaman’s modern claim for

unseaworthiness.

Instead, the hair trigger for unseaworthiness liabil-

ity is the condition of the vessel, regardless of whether

any conduct of the owner is to blame. Permitting a

seaman to recover punitive damages meant to punish

and deter egregious conduct on a theory of liability

without fault while the Jones Act limits the same

seaman to compensatory and pecuniary damages upon

proof of fault would impermissibly elevate this Court’s

place in the constitutional scheme, the hierarchy of

which this brief addresses next.

Il. CONGRESS HAS SUPERIOR AUTHOR-

ITY TO SHAPE AND LIMIT MARITIME

LAW, AND THE COURTS MUST ABIDE

BY STATUTORY LIMITS ON DAMAGES.

More than a century ago, this Court considered it

“settled doctrine that . . . Congress has paramount

power to fix and determine the maritime law which

shall prevail throughout the country.” Southern

Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917).

Many decades later, Miles confirmed that Congress

still holds superior authority when it comes to

formulating maritime law. It further allowed that

supplementing statutory remedies was permissible to

12

the extent that would achieve uniformity with

statutory policy, but that

we must also keep strictly within the limits

imposed by Congress. Congress retains supe-

rior 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

direct and delimit our actions.

Miles, 498 U.S. at 27. From there, Miles followed the

footsteps of earlier decisions applying the same

precepts.

First was Moragne. It overruled The Harrisburg,

119 U.S. 199 (1886), which held general maritime law

afforded no remedy for a wrongful death in the absence

of an applicable state or federal statute. Moragne, 398

U.S. at 409. Taking its cue from Congress’ creation

in 1920 of wrongful death actions for most maritime

deaths through the Jones Act and Death on the High

Seas Act or DOHSA, Moragne filled a gap by providing

a like claim for non-seamen deaths within state

territorial waters. Miles, 498 U.S. at 23-28. Thus,

Moragne supplemented to achieve uniformity between

maritime statutes and general maritime law, but it

exceeded no limits imposed by the Jones Act and

DOHSA.

Then came Mobil Oil Corp. v. Higginbotham, 436

U.S. 618 (1978), which held loss of society damages

could not be recovered on a general maritime law

wrongful death claim because they cou!d not be

recovered under DOHSA.

Congress made the decision for us. DOHSA,

by its terms, limits recoverable damages

in wrongful death suits to “pecuniary loss

13

sustained by the persons for whose benefit

the suit is brought.” 46 U.S.C. App. § 762

(emphasis added). This explicit limitation

forecloses recovery for nonpecuniary loss,

such as loss of society, in a general maritime

action.

Miles, 498 US. at 31.

Miles further noted that Higginbotham rejected the

argument that general maritime law should supple-

ment the remedies afforded by maritime statutes. “[I|n

an ‘area covered by the statute, it would be no more

appropriate to prescribe a different measure of dam-

ages than to prescribe a different statute of limita-

tions, or a different class of beneficiaries.” /d., quoting

Higginbotham, 436 U.S. at 625.

The key principles and logic of Higginbotham

controlled this Court’s decision in Miles. Congress has

addressed what damages are recoverable in the area

of maritime personal injury and death, and “when it

does speak directly to a question, the courts are not

free to ‘supplement’ Congress’ answer so thoroughly

that tne Act becomes meaningless.” Miles, 498 U.S.

at 31, quoting Higginbotham, 436 U.S. at 625.

Since Miles, this Court has twice reaffirmed that

maritime personal injury and death claims under

maritime statutes and general maritime law should be

coextensive. Zicherman v. Korean Air Lines Co., 516

U.S. 217 (1996), ruled that non-pecuniary loss of

society damages could not be recovered for wrongful

death of a commercial airline passenger under genera!

maritime law where Congress limited damages | to

pecuniary losses under DOHSA. Norfolk

& Drydock Corp. v. Garris, 532 U.S. 811, 815 (2001),

found “no rational basis .. . for distinguishing

14

negligence from seaworthiness” and recognized a

general maritime law negligence claim for death of a

vessel repairman, just as maritime law recognizes

seamen’s personal injury and death claims for

unseaworthiness and both the Jones Act and DOHSA

Moragne, Higginbotham, Miles, Zicherman, and

Garris together teach several lessons. One is that a

hierarchy exists in the constitutional scheme that

places superior authority with Congress to set mari-

time law policy. A second is that general maritime law

remedies should be coextensive with their statutory

counterparts. And a third is that courts must abide by

whatever limits are included in the statutes that

Congress enacts. “An admiralty court is not free to go

beyond those limits” that are included in the Jones Act

and DOHSA. Miles, 498 U.S. at 24.’

Here Congress spoke directly through the Jones Act

to the very cause of action that respondent pursues on

a theory of unseaworthiness. Because he seeks a more

what the Jones Act would allow on the same cause of

' The allowance of punitive damages for willful refusal to pay

maintenance and cure in Townsend did not abridge or violate

Congressional policy because no statute spoke to the mainte

nance and cure issue presented there. The Jones Act and DOHSA

address liability for maritime injury and death, not the separate

and independent obligation of a vessel owner to pay maintenance

and cure to a seaman after injury occurs. Townsend, 557 U.S. at

420-21; Peterson, 278 U.S. at 136-37 (“the right under the new

rule to compensatory damages for injuries caused by negligence

is not an alternative of the right under the old rule to mainte

nance, cure and wages —- which arises, quite independently of

negligence, when the seaman falls sick or is injured in the service

of the ship”).

15

action, Miles applies and disallows recovery of puni-

tive damages.

itl. UNIFORMITY LIKEWISE COMMANDS

A DECISION THAT SEAMEN CANNOT

Uniformity between statutory pronouncements and

general maritime law has been a consistent force

driving decisions of this Court. The holding of Miles

itself strongly illustrates this point.

Cognizant of the constitutional relationship

between the courts and Congress, we today

act in accordance with the uniform plan

of maritime tort law Congress created in

DOHSA and the Jones Act. We hold that there

is a general maritime cause of action for

the wrongful death of a seaman, but that

damages recoverable in such an action do not

include loss of society.

Miles, 498 U.S. at 37 (emphasis added).

Uniformity likewise bolstered the decision in

Moragne to overrule The Harrisburg and create a

general maritime wrongful death cause of action.

This result was not only consistent with the

general policy of both 1920 Acts favoring

wrongful death recovery, but also effectuated

“the constitutionally based principle that fed-

eral admiralty law should be ‘a system of law

coextensive with, and operating uniformly in,

the whole country.’ Moragne, supra, 398 U.S.

at 402, quoting The Lottawanna, 21 Wall.

558, 575 (1875).”

Miles, 498 U.S. at 27.

16

This Court has clearly identified the Jones Act as

the leading maritime tort statute to which genera!

maritime law should conform. “While there is an

established and continuing tradition of federal com-

mon lawmaking in admiralty, that law is to be

developed, insofar as possible, to harmonize with the

enactments of Congress in the field. Foremost among

those enactments in the field of maritime torts is the

Jones Act . . ..” American Dredging Co. v. Miller, 510

U.S. 443, 455-56 (1994).

Just as this Court announced uniform rules as to

seamen’s unseaworthiness claims in Moragne® and

Miles to conform to maritime tort statutes, here it

should likewise announce a uniform rule that seamen

cannot recover punitive damages for unseaworthiness

just as they cannot recover them for Jones Act

Professor Thomas J. Schoenbaum has spent much

of his professional life in the practice, teaching,

and research of admiralty and maritime law. He has

taught law since 1968 and has written many books

major work Admiralty and Maritime Law is a leading

authority — the treatise so often cited by state and

time. In 1972, Congress amended the Longshore and Harbor

Workers’ Compensation Act to eliminate longshoremen claims for

unseaworthiness.

17

federal courts, including by this Court. E.g., Exxon Co.,

U.S.A. v. Sofec, Inc., 517 U.S. 830, 837-38 (1996).

He objectively analyzed the very question presented

by this case in the sixth edition of his treatise

published in 2018. His detailed analysis led him to

conclude that “Jones Act seamen may not recover

punitive damages in suits for unseaworthiness against

their employers or against vessel owners or operators.”

Schoenbaum, § 5:10, at 335 and 336-39.

Professor Schoenbaum framed the general question

as “what is the proper reach of Miles after Baker and

Townsend?” He recognized that Baker and Townsend

express a general rule that punitive damages are

available in appropriate general maritime law cases.

But he further observed that Townsend did not

overturn or disturb the holding and reasoning of Miles.

He noted that Townsend not only said “|t)he reasoning

of Miles remains sound,” but also “expressly agreed,

stating: it would be ‘illegitimate to create common law

remedies that |exceed] those remedies statutorily

available under the Jones Act and DOHSA.” Id. at

335, quoting Townsend, 557 U.S. at 420.

As to punitive damages for Jones Act seamen,

Professor Schoenbaum first determined that Miles

had effectively decreed that in cases of both seamen

personal injury and death, damages for general

maritime law unseaworthiness are the same as those

for Jones Act negligence. Id. at 336. From there, he

turned to the pecuniary damages limitation expressed

in Miles to analyze whether punitive damages are

pecuniary. He said the clear answer to this question

was “no” because punitive damages are not capable of

any standardized measurement — just as Baker, lower

court decisions, and learned commentary agreed. /d.

Consequently, Professor Schoenbaum said “it appears

18

that Miles applies to exclude the recovery of punitive

damages by Jones Act seamen in suits against their

employers or a vessel for unseaworthiness.” Jd. at 336-

37.

But Professor Schoenbaum did not end his analysis

there. He next addressed whether his conclusion

squared with Townsend. He said “the answer to this

question is yes, on several grounds.” /d. at 337.

First, he noted that tort damages did not apply to

maintenance and cure (the right at issue in Townsend)

and judicial authority instructed that tort damages for

Jones Act negligence and unseaworthiness claims

were identical. Second, Professor Schoenbaum deter-

mined that when Congress enacted the Jones Act as a

supplemental tort remedy in 1920, it was well aware

of a seaman’s pre-existing right to maintenance and

cure but it “could not have foreseen” the subsequent

radical development of unseaworthiness and “the

complications this caused.” Third, he contrasted mainte-

nance and cure’s ancient origins in general maritime

law against the relatively recent development in the

1940's of the modern unseaworthiness claim. Fourth,

he explained that the Jones Act was passed to

enhance, not replace seamen’s preexisting right to

maintenance and cure, while unseaworthiness was

developed to provide seamen an alternative ground to

prove liability, “but not to provide new remedies.” /d.

at 337-38.

* Professor Schoenbaum explained in his treatise that complete

uniformity between all classes of claims does not exist because

some claims fall within the ambit of the Jones Act and DOHSA

while others do not. Thus, recoverable damages in the case of

a cruise passenger are not limited by the Jones Act while those in

the case of a seaman plainly are. Such disparate treatment is

the product of how Congress exercised its constitutional power

19

Professor Schoenbaum closed his analysis by

explaining how the Ninth Circuit below and the

Washington Supreme Court in Tabingo v. American

Triumph LLC, 391 P.3d 434 (2017), cert. denied, 138

S. Ct. 648 (2018), both incorrectly analyzed the

question. He said those courts mistakenly applied

Townsend and improperly distinguished Miles, failing

to adequately analyze Miles and its rulings excluding

non-pecuniary damages and mandating uniform

maritime tort remedies. Jd. at 338-39.

CONCLUSION

The Court should reverse the Ninth Circuit’s

decision.

Respectfully submitted,

January 28, 2019

to sculpt maritime claims and

oS ee os ae aa ee as Gos coe

Schoenbaum, § 5:10, at 338.

ADDENDUM

la

ADDENDUM

ALASKAN LEADER FISHERIES LLC

Alaskan Leader Fisheries LLC is one of the most

progressive, innovative, and vertically integrated

“hook and line” fishing companies in Alaska. It knows

that its most valuable resources are the more than 100

incredible crewmembers who work hard and live on

their vessels. Alaskan Leader Fisheries is known for

its commitment to providing comfortable accommoda-

tions, a safe work environment, and a network of

support for those crewmembers.

It operates four super long liners year round in the

Bering Sea, using the latest technology for harvesting

and processing Alaska seafood. Built in the United

States and operated in compliance with Coast Guard

requirements, they are the newest, safest, and clean-

est vessels in the long line fleet. They proudly fly the

Maltese Falcon Cross — the symbol of inspection

excellence from the American Bureau of Shipping.

COASTAL MARINE FUND

Coastal Marine Fund is an_ unincorporated

association licensed to do business in the State of

Washington. Its members include about 350 owners of

“traditional” fishing vessels — typically under 100 feet

long and operated by long-time fishing families. These

vessels fish along and off the coasts of Alaska,

Washington, Oregon, California, and, to a lesser

extent, the East Coast. The men and women who serve

aboard Coastal Marine Fund member vessels are

classic commercial fishermen.

Coastal Marine Fund uses group buying power to

procure marine insurance for members at favorable

premium rates. It limits membership to vessel owners

2a

with better than average loss records to maintain

strong buying power and keep insurance premiums as

low as possible.

FISHERMEN’S FINEST, INC.

Based in Kirkland, Washington, Fishermen’s Finest,

Inc., provides safe, good paying careers for more than

240 employees in Alaska and Washington State. It

strongly advocates progressive safety standards in US

offshore fishing operations.

Fishermen’s Finest owns and operates three US

factory catcher processor ships. They harvest and

process approximately 120 million pounds of fish per

year in US EEZ waters of the Bering Sea and North

Pacific Ocean, outside state territorial waters. Each

ship is either load lined or classed, and operates with

up to 43 crewmembers for 10 to 11 months each year.

GLOBAL SEAS LLC

Global Seas LLC is a private management company

with headquarters in Seattle, Washington. Since

forming in 2001, it has grown and evolved into an

internationally diverse entity. Known for combining

experience and knowhow from the past and with

technology of the future, Global Seas has a variety of

marine businesses lines that include fish harvesting,

fish processing, and marine research.

Global Seas views it as a mission to provide its crews

“with the most advanced, dynamic and quality vessels”

that are safe, efficient, and well maintained. And that

it does.

Global Seas operates a variety of fishing trawlers on

both the East and West Coasts. Two recent additions

to the Alaska fishing fleet are equipped with the latest

technology, safety equipment, and exceptional living

3a

spaces for the crew. Two other trawlers are regularly

updated to exceed the industry standards.

It also owns and manages several research vessels.

Global Seas has equipped them with state-of-the-art

full ocean mapping capability. Surveys and research

conducted by these vessels provide critical data that

the maritime industry can use to make operations at

sea safer and more predictable.

GOLDEN ALASKA SEAFOODS, LLC

Golden Alaska Seafoods is a Washington limited

liability company that operates a 305 foot long fish

processing vessel M/V GOLDEN ALASKA in waters

off the coasts of Alaska, Washingtun, and Oregon. The

vessel does not catch fish but takes deliveries from

a number of catcher vessels whose crews, in turn,

depend on the GOLDEN ALASKA for their living. As

such, the vessel is commonly referred to as a “mother-

ship.”

The GOLDEN ALASKA carries around 150 hard-

working crewmembers of various nationalities, reli-

gions, and backgrounds who compose a true cultural

melting pot. They live on the vessel at sea for months

at a time, with brief stops in ports every 10 days

or so to unload product and replenish supplies.

Golden Alaska works cooperatively with the crew to

make their floating work place and home a safe

environment.

NORTH STAR FISHING COMPANY LLC

North Star Fishing Company, founded in 1987, is

based in Seattle, Washington. Operating a fleet of four

trawl catcher processors in Alaska, it fishes for a

variety of species. It is known for its commitment to

4a

providing sustainable catch, harvesting natural, wild

fish to feed a hungry world.

North Star Fishing strives every day to maintain an

environmental balance that promotes healthy and

productive oceans. For example, the company prides

itself on working with scientists and using modified

fishing gear to reduce adverse effects on the seafloor

habitat.

It takes a team effort to safely achieve sustainable

catch in the rough and unforgiving environment of

Alaskan waters — something North Star Fisheries has

successfully achieved for many years. Crewmembers

of North Star Fishing vessels proudly participate

in the company’s conservation efforts. In turn, the

company proudly employs its crewmembers, and it

makes their safety a priority.

NORTH STAR INSURANCE SERVICES, LLC

North Star Insurance Services offers a broad range

of insurance coverage options to bring peace of mind to

fishing vessel operators, from small mom-and-pop

operations to large factory trawlers. With locations

both in Seattle, Washington, and Fairhaven,

Massachusetts, the company is familiar with the

unique needs of the fishing industry on both coasts.

North Star Insurance knows that safety is a top

priority for its clients wherever they fish. Its clients

promote safe practices and continuously work to

improve safety to minimize injuries. That, in turn,

helps keep insurance premiums as low as possible.

When mishaps do occur, the insurance services that

North Star Insurance offers help vessel owners handle

resulting claims, consider steps to try to prevent such

events, and ultimately keep insurance premiums low.

5a

North Star Insurance supports its clients’ desire for

uniform maritime law that fairly compensates injured

crewmembers for their actual losses when liability

exists.

OCEAN PEACE, INC.

Ocean Peace is located in in Seattle, Washington,

and operates a fleet of four large factory trawlers 215

to 230 feet long and one catcher vessel. The company

employs hundreds of hardworking crewmembers who

catch, process and freeze fish on the vessels, which

operate seven days each week for 24 hours per day

from January to November each year.

Unquestionably, the extreme conditions of the

Bering Sea and Aleutian Islands present a unique

environment for working and living at sea. Success for

all involved requires dedication and hard work, with

an emphasis on safety.

Ocean Peace considers crew safety the highest

priority on all of its vessels. It regularly updates its

safety practices and work spaces on board the vessels

and openly communicates with crewmembers regard-

ing any safety concerns they may have. In addition to

conducting training and drills as required by the Coast

Guard, Ocean Peace requires all crewmembers to

attend safety courses and crew safety meetings prior

to each trip.

O”’HARA CORPORATION

For over 110 years, O’Hara Corporation has with-

stood the test of time operating fishing vessels in both

the Atlantic and Pacific Oceans. Francis J. O'Hara

began building his sailing fleet in 1903 starting in

Boston, Massachusetts.

6a

After four generations, the business has grown.

From setting a seine net off the coast of Maine for

herring, to participating in the scallop fishery out

of New Bedford, Massachusetts, to operating factory

processing vessels in the North Pacific, O’Hara has

diversified into a multinational family business. While

its roots are still planted in Maine where O’Hara

maintains significant marine and land-based opera-

tions, its catcher processor vessels that fish in waters

of the Bering Sea, the Aleutian Islands, and the Gulf

of Alaska are the heart of the company. O’Hara

continuously invests in safety training for employees

and crewmembers working ashore and at sea.

TRIDENT SEAFOODS CORPORATION

Trident Seafoods is one of the largest seafood compa-

nies in North America. The company was founded

in 1973 by fisherman Chuck Bundrant when he built

and skippered the first modern crab catcher/processor

vessel to operate in the Bering Sea.

The company now owns trawl catcher/processor ves-

sels, trawl catcher vessels, floating processing vessels,

crab catcher vessels, freighters, and fish tenders that

operate throughout waters off Alaska. It also owns

shore-based seafood processing facilities in some of

Alaska’s most remote coastal areas.

Trident Seafoods employs thousands of hard

working individuals at sea and on land. In addition, it

partners with thousands of independent and dedicated

Alaskan fishermen who run family-owned boats. Led

by executives who began their careers fishing and

understand firsthand what it means to work at sea,

Trident Seafoods strives to provide a safe and secure

work environment for crewmembers on all of its

vessels.

7a

UNITED CATCHER BOATS ASSOCIATION

United Catcher Boats or UCB is a non-profit trade

association established in 1993 that serves two main

purposes. It provides critical information to its mem-

national levels. UCB also represents vessel owners,

giving them a unified voice to air their concerns and

positions regarding fisheries management and policy

when addressing various government agencies and

isati

UCB members own 68 vessels that traw! for ground

fish in Bering Sea, Gulf of Alaska, and West Coast

employs five crewmembers to the 295 foot factory

trawler SEAFREEZE ALASKA that employs 85.

In this era of consolidation and highly capitalized

fisheries, Mr. Doherty is a one of the few remaining