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

No. 18-266

IN THE

Supreme Court of the United States

THE DUTRA GROUP,

v.

CHRISTOPHER BATTERTON,

Respondent.

On Warr or Certiorari To THE Unrrep States

Court or APPEALS For THE Nints Cirecurr

BRIEF OF AMICUS CURIAE AMERICAN

MARITIME ASSOCIATION, INC.

IN SUPPORT OF PETITIONER

JANE B. Jacoss

Counsel of Record

Joan Espert RoTHeERMEL

Davip A. Gop

KLEIN ZELMAN ROTHERMEL JACOBS

& Scuess LLP

485 Madison Avenue, Suite 1301

New York, New York 10022

(212) 935-6020

jbjacobs@kleinzel

Counsel for Amicus Curiae

COUNSEL PRESS

(800) 274 3221 » (800) 359 6859

i

TABLE OF CONTENTS

I. The Balance of Competing Interests

Militates against the Availability of

a. “Unseaworthiness” Requires A

Modest Showing But Imposes Strict

a

TABLE OF CITED AUTHORITIES

Boudoin v. Lykes Bros. S. S. Co.,

348 U.S. 336, amended sub nom. Boudoin

v. Lykes Bros. Steamship Co., 350 U.S. 811

Ges 6cbd dendcduchincasnchscbveneccescancess

Casbon v. Waterman S. S. Corp.,

274 F. Supp. 481 (E.D. La. 1967), aff'd,

417 F.2d 1040 (5th Cir. 1969)... ..............045.

Claborn v. Star Fish & Oyster Co., Inc.,

OTS P-2e GES Gi Cllr BMD. 2... cc cccccccccccccces

Deal v. A. P. Bell Fish Co.,

674 F.2d 438 (5th Cir. 1982). ....... 2.2.26. eee eee

Faraola v. O'Neill,

576 F.2d 1364 (Oth Cir. 1978)... ...........0ceeees

Mahnich v. S. S. S. Co.,

ee ae ok oe i ec cceckovewed

Martinez v. Dixie Carriers, Inc.

GD ee Ge Gan Cie BTR ccc ccc cccccccccccced

itt

Cited Authorities

Martinez v. Sea Land Servs., Inc.,

763 F.2d 26 (1st Cir. 1985)... ... 6... e eee ee

McBride v. Estis Well Serv., L.L.C.,

768 F.3d 382 (5th Cir. 2014)... ... 2... 6.6666.

Moore v. The Sally J.

27 F. Supp. 2d 1255 (W.D. Wash. 1998) .......

Rannals v. Diamond Jo Casino,

265 F.3d 442 (6th Cir. 2001) ................

Reyes v. Vantage S. S. Co.,

558 F.2d 238 (5th Cir. 1977), on reh’g,

609 F.2d 140 (5th Cir. 1980).................

Rofail v. United States,

No. 04-CV-2502 (CBA), 2009 WL 1703236

(E.D.N-Y. June 18, 2009)... . 2... 6... 66 ees

Smith v. Ithaco Corp.,

612 F.2d 215 (Sth Cir. 1980). ...............

w

Cited Authorities

Page

The State of Maryland,

85 F.2d 944 (4th Cir. 1936)... . 2.0... cece cece eens 6

Usner v. Lackenbach Overseas Corp.,

SF Se ES wa wah bh cecdawesaccccedincnces 4

Wiradihardja v. Bermuda Star Line, Inc.,

802 F. Supp. 989 (S.D.N-Y. 1992) ................. 5

STATUTES AND OTHER AUTHORITIES

GR in 6. dhucbdidccuctacnsedesuecuscun 4

er eee 7

America’s Maritime Industry: The foundation

of American seapower, NAVY LEAGUE OF THE

1

INTEREST OF AMICUS CURIAE'

The American Maritime Association, Inc. (“AMA”) is

a non-profit employer trade association whose members

own and/or operate U.S.flag vessels in coastwise

and ocean-going trade. AMA’s members are Alaska

Tanker Company, LLC (“Alaska”); Crowley Maritime

Corporation (“Crowley”); Horizon Lines, LLC

(“Horizon”); Maersk Line, Limited (“Maersk”); OSG

Ship Management, Inc. (“OSG”); and TOTE Services

(“TOTE”) (formerly Interocean American Shipping Corp.)

AMA member companies collectively account for the

majority of oceangoing vessels now operating under the

U.S.flag and are subject to the Jones Act and general

maritime law. As such, they have a critical interest in

whether seamen and others asserting unseaworthiness

claims against vessel operators and owners may assert

BACKGROUND

The U.S. merchant marine plays a critical role in

supporting the U.S. economy and its national security,

1. Both Petitioner and Respondent have filed blanket

consents to the filing of amicus curiae briefs in this matter.

In accordance with Rule 37.6, counsel certifies that the

undersigned authored this brief in its entirety and that no counse!

for any party authored any portion of this brief; that no party or

party’s counsel contributed money to fund the preparation or

submission of this brief; and that no party other than the Amicus

Curiae contributed money intended to fund the preparation or

submission of this brief.

2

oo wa 9 ee Se Se See

some $100 billion in annual economic output.” When trade

dependent jobs are included, the maritime industry related

employment is estimated to be approximately 13 million

jobs.’ It is anticipated that ocean trade will continue to

grow, with the value of U.S. imports and exports reaching

some $10.5 trillion in 2038.‘

The AMA member companies together operate more

than 150 vessels in both U.S. coastal and international

waters. As discussed in more detail below, many of these

vessels are under contract with the U.S. government,

providing military support for operations overseas, ready

to be called into duty on a moment’s notice. This fleet

transports military vehicles, hardware, combat cargo and

supplies to support U.S. troops wherever needed.

SUMMARY OF ARGUMENT

AMA adopts but does not here repeat in detail

arguments thoroughly and ably made by counsel for

2. TRANSPORTATION INSTITUTE, https://www.

transportationinstitute.org (last visited January 28, 2019);

America’s Maritime Industry: The foundation of American

seapower, NAVY LEAGUE OF THE UNITED sTaTes, (May 3, 2012),

available at https-//www.navyleague.org/file/programs/Maritime-

Policy-Statement-Report.pdf (last visited January 28, 2019).

3. America’s Maritime Industry: The foundation of

American seapower, supra note 2.

4. Id.

3

however, whether punitive damages should be available in

a claim for unseaworthiness under general maritime law,

has critical implications for the U.S. maritime industry

and the national security of the United States. AMA

brings before the Court the practical implications of this

issue on the industry, on its members, and on national

security.

The bar for establishing that a vessel is “unseaworthy”

caused or contributed to the unseaworthy condition, would

inevitably force employers to settle even non-meritorious

claims and could compromise the economic vitality of an

industry critical to the transportation of goods; which

supports and supplies the nation’s military; which is vital

to the balance of trade; and which provides much needed

emergency and humanitarian relief when supplies must be

moved in large quantities to areas devastated by natural

disasters.

The case before the Court presents a choice between

expanding the range of remedies available to individual

damages in these cases.

4

4 SGUMENT

I. The Balance of Competing Interests Militates

against the Availability of Punitive Damages

a. “Unseaworthiness” Requires A Modest

Showing But Imposes Strict Liability

As repeatedly noted in the Courts below and by the

Act. See 46 U.S.C.A. § 30104 (West); see also McBride

v. Estis Well Serv., L.L.C., 768 F.3d 382, 384 (5th Cir.

2014) (precluding punitive damages). Mariners asserting

claims under the Jones Act must show negligence. See,

e.g.. Rannals v. Diamond Jo Casino, 265 F.3d 442, 447

(6th Cir. 2001) (citing 46 U.S.C.A. § 30104). By contrast,

common law unseaworthiness actions require no showing

of negligence or fault. See Rofail v. United States, No.

04-CV-2502 (CBA), 2009 WL 1703236, at *7 (E.D.N-Y.

June 18, 2009) (“The Supreme Court has explained that

‘unseaworthiness is a condition, and how that condition

came into being—whether by negligence or otherwise—

is quite irrelevant to the owner’s liability for personal

injuries resulting from it.””) (quoting Usner v. Luckenbach

Overseas Corp., 400 U.S. 494, 498 (1971)). It would be a

paradox to prohibit punitive damages where there is an

actual showing of fault but to permit punitive damages

where a minimal showing of unseaworthiness results in

absolute liability regardless of fault.

“Unseaworthiness” requires a showing that the vessel

is unfit for its intended use. Faraola v. O’Neill, 576 F.2d

1364, 1366 (9th Cir. 1978) (quoting Mitchell v. Trawler

Racer, Inc., 362 U.S. 539, 550 (1960)). This standard is

5

almost comically easy to meet, and has been established

where a drunk mariner returned to his vessel, passed

out in the ship’s recreation room, and burned himself on

a radiator.’ Supplying beer to a crew “without adequate

control” constitutes unseaworthiness.* “The failure to

instruct about the use of life preservers and the failure to

provide a working bathroom resulted in unseaworthiness

as a matter of law.’ A seaman could bring an unseaworthy

claim for a back injury allegedly sustained after tripping

on a loose plastic sleeve on a carton of soft drinks in the

ship’s stores.* While an injury caused by a mariner with

violent proclivities certainly establishes unseaworthiness,’

so does employment of an officer with no history of

violence who injures another crew member.” One court

has held that the lack of adequate supplies to clean a stove

constituted an unseaworthy condition."

5. Bentley v. Albatross S. S. Co., 203 F.2d 270-71 (d Cir.

1953).

6. Reyes v. Vantage S. S. Co., 558 F.2d 238, 244-45 (5th Cir.

1977), on reh’'g, 609 F.2d 140 (Sth Cir. 1980).

7. Dealv. A. P. Bell Fish Co., 674 F.2d 438, 442 (Sth Cir. 1982).

8. Martinez v. Sea Land Servs., Inc., 763 F.2d 26, 28 (ist

Cir. 1985).

9. Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, 339-40

amended sub nom. Boudoin v. Lykes Bros. Steamship Co., 350 U.S.

811 (1955); Wiradihardja v. Bermuda Star Line, Inc., 802 F. Supp.

989, 994 (S.D.N.Y. 1992) citing Claborn v. Star Fish & Oyster Co.,

Inc., 578 F.2d 983, 985-87 (Sth Cir.1978).

10. Casbon v. Waterman S. S. Corp., 274 F. Supp. 481, 484

(E.D. La. 1967), aff'd, 417 F.2d 1040 (Sth Cir. 1969).

11. Moore v. The Sally J.,27 F. Supp. 2d 1255, 1261 (W.D. Wash.

6

Once unseaworthiness is established and regardless

of fault, owners are subject to strict liability even if a

crew member’s own negligence or misconduct created the

condition at issue. Miles v. Apex Marine Corp., 498 U.S.

19, 25 (1990); see also Mahnich v. S. S. S. Co., 321 U.S. 96,

100 (1944). Once a mariner meets the exceedingly low bar

of unseaworthiness, liability is absolute. /d.

The bar is set exceedingly low because mariners are

considered wards of the court and there is a well-deserved

effort to protect them." That does not mean, however, that

the interests of an individual mariner outweigh those of a

critical industry. This is not an industry that can sustain

the financial assault that would be imposed if punitive

damages were available to individual mariners. AMA’s

1998). As one court has observed, “. . .unseaworthiness can arise not

only from something as nautical as a faulty anchor windlass but from

something as unmaritime as the presence on a ship of a hazardous

chemical.” Austin v. Unarco Industries, Inc., 705 F.2d 1, 12 (1* Cir.

1983); see also Smith v. Ithaco Corp., 612 F.2d 215 (Sth Cir.1980),

abrogated on other ground by Beech Aircraft Corp. v. Rainey, 488

U.S. 153 (1988) (unseaworthiness claim based on seaman’s exposure

to benzene fumes escaping from the ship’s storage tanks); Martinez

v. Diaie Carriers, Inc., 529 F.2d 457 (5th Cir.1976) (anseaworthiness

claim based on exposure to noxious fumes escaping from the chemical!

tank of a barge).

12. “Seamen are the wards of admiralty, and the policy of the

maritime law has ever been to see that they are accorded proper

protection by the vessels on which they serve.... [Thus] the owners

owe[ | to the seamen the duty of furnishing a seaworthy vessel

and safe and proper appliances in good order and condition; and ...

for failure to discharge such duty there [is] liability on the part of

the vessel and her owners to a seaman suffering injury as a result

thereof.” Austin, 705 F.2d at 12 (quoting The State of Maryland, 85

F.2d 944, 945—46 (4th Cir. 1936)).

7

members compete with foreign owned and crewed vessels

that do not provide the same wages and benefits to their

employees or meet the same safety and environmental

standards. If punitive damages are available in these

fish-in-a-barrel cases, even if available only in response

to egregious conduct, just the threat of such damages will

force higher settlements from companies unwilling to risk

an adverse verdict. Moreover, plaintiffs will hardly be

left with an inadequate remedy if punitive damages are

unavailable; they will still have access to the full panoply

of pecuniary damages. Injecting punitive damages into

the litigation calculus skews that balance too heavily

toward plaintiffs who already enjoy adequate protection

and receive full compensation.

b. Maritime Companies Are Crucial to The

National Interest And Must Be Protected from

Excessive Penalties

The nation has a vital interest in the economic well-

being of the maritime industry. AMA’s members are not

“merely” commercial operations that add to the economy;

they are critical to it and to national security. The U.S.

merchant marine fleet, “is necessary for the national

defense. . .that the United States shall have a merchant

marine of the best equipped and most suitable types

of vessels sufficient to carry the greater portion of its

commerce and serve as a naval or military auxiliary in

time of war or national emergency.” Merchant Marine

Act of 1936, 46 U.S.C. App. § 861.

Most AMA companies perform services directly for

the United States government through several programs:

8

* Maritime Administration (“MARAD”) serves

as strategic reserve sealift capacity. In times of

national crisis, these ships are among the first to

be called to action to carry cargo, be it for disaster

relief or national defense.”

* Maritime Security Program (“MSP”) is a group of

more than 60 vessels that receive subsidies from

the United States Government in return for being

first available to carry cargo in times of a threat

to national security. These vessels carried the vast

majority of goods during Operation Desert Storm

and other similar conflicts in the Middle East.“

* T-AGOS ships operate in contested environments,

helping gather intelligence for the Air Force and

Navy.”

* The Military Prepositioning Force is a fleet

of government-owned ships pre-positioned in

strategic areas with military equipment and

operated by AMA members.”

13. MARAD Marrrowe Apsinisrration, https://www.maritime.

dot.gov/ (ast visited January 28, 2019).

14. Maritime Security Program (“MSP”), MARAD

Maritime ApMINISTRATION, https://origin-www.marad.dot.gov/

ships- security-program-

msp/ (last visited January 28, 2019).

15. Oceans Surveillance Ships —T-AGOS, Navy, https://www.

navy.mil/navydata/fact_display.asp?cid= 4500&tid=600&ct = 4

(last visited January 28, 2019).

16. Muvrrary Seauier Commann, https://www.mac.navy.mil

(last visited January 28, 2019).

9

All of these programs could be compromised from the

residual fallout if punitive damages are available. More

specifically, OSG, which owns and/or operates a 22-vessel

U.S.-flag fleet, operates the only two tankers in the U.S.

Maritime Security Program. Maersk operates tankers

chartered to the U.S. government and manages vessels

for MSC and other U.S. government agencies. Crowley,

a third-generation family-owned company, operates a

fleet of 107 U.S.-flagged vessels covering all of the United

States from Florida to Alaska and in international trade.

Crowley operates more than 20 vessels owned by the U.S.

Government, both for MARAD and MSC, performing

critical sealift and national security functions, and was

instrumental in the destruction of chemical weapons in

Syria. TOTE has numerous government contracts. It

acts as the ship operator to MSC’s USNS VADM KR

WHEELER, an offshore petroleum distribution system

that can transfer fuel from a tanker to depots ashore from

up to eight miles off the coast. Similarly, it manages the

SS Petersburg, a tanker owned by MARAD that pumps

fuel from a position four miles offshore, which is of obvious

utility in times of war. TOTE managed the ‘echnical

conversion of two government owned tracking and

telemetry ships in service to the Missile Defense Agency.

It also provides ship management for six MARAD vessels

that are part of the MARAD Ready Reserve Force.

TOTE is responsible for the maintenance, surveillance

and monitoring of a nuclear ship in decommissioning

protective storage.

Not only is the availability of these ships critical

to national security, but perhaps even more critical is

the training and knowledge of a crew of U.S. citizens to

operate these tankers immediately in a time of crisis.

10

Loyalty to the U.S., the knowledge of AMA crews as to

navigating foreign ports, and their relationships with

those operating foreign ports and terminals provide

necessary elements and support for our national security.

Forcing these companies to pay (or to be threatened

with) punitive damages could cripple the industry and,

by extension, the national defense.

AMA members’ ships also are critical to emergency

relief. After Hurricane Maria devastated Puerto Rico

in September 2016, Crowley was able to reopen its local

terminal and warehouse within two days. Crowley was

delivering commercial and government relief within two

hours after San Juan harbor opened. In the ensuing

months, Crowley transported goods for FEMA, U.S. AID

and others, and increased its capacity to Puerto Rico by 67

percent, transporting more than 100,000 TE Us" of relief

and recovery supplies, including 40,000 electrical poles

and more than 7,000 transformers for the electrical grid.

In one 182-day stretch, Crowley unloaded 200 vessels."

Similarly, TOTE responded to hurricane relief situations

by operating additional vessels with only a few days’

notice, providing housing for FEMA workers responding

to hurricane aid. Like Crowley, TOTE companies

17. A “TEU”, or a Twenty Foot Equivalent Unit is the

volume of goods that can be placed in a twenty-foot shipping

container. FLexport, https://www.flexport.com/giossary/twenty-

foot-equivalent-unit (last visited January 28, 2019).

18. Crowley receives humanitarian award for Puerto

Rico relief efforts, Marine Loc, https://www.marinelog.com/

index.php?option=com_ k2&view=iteméid=

humanitarian-award-for-puerto-rico-relief-efforts& Itemid = 231

(last visited January 28, 2019).

11

responded during Hurricane Maria to bring supplies to

Puerto Rico by contracting additional support barges to

provide relief to those in need facing the devastation left

by the Hurricane.

AMA members operate with enviable success. In

almost 17 years, Alaska has carried 1.4 billion barrels of

crude and has spilled less than 2.2 gallons. In recent years

Crowley has invested billions of dollars in the Jones Act

trade, including two new state of the art, environmentally

friendly ships fueled by liquid natural gas. Horizon’s

four Jones Act vessels often are the sole lifeline to island

economies and remote locations in Alaska. Without those

ships, those communities would be at risk.

Thus, AMA members, who perform these vital roles,

are faced with an untenable economic threat, one that is

largely uninsurable. Again, the competing interest here

is that of individual mariners who already have access to

a full remedy. The balance seems clear.

12

CONCLUSION

The U.S.-flag fleet is critical to national defense,

to emergency preparedness, to the balance of trade,

and to emergency and humanitarian relief. Mariners

injured because a vessel meets the slight standard of

unseaworthiness have a full range of pecuniary recovery

available to them in such actions and under the Jones

Act. Adding the threat of punitive damages will injure an

industry critical to the nation’s well-being for the benefit

of individual mariners with access to other relief. Such

an expansion of remedies is unnecessary and potentially

devastating to an industry upon which the United States

so heavily relies.

Respectfully submitted,

JANE B. Jacoss

Counsel of Record

Joan Epert RorHerRMeL

Davin A. GoLp

KLEIN ZELMAN ROTHERMEL JACOBS

& Scuess LLP

485 Madison Avenue, Suite 1301

New York, New York 10022

(212) 935-6020

jbjacobs@kleinzel

Counsel for Amicus Curiae