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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0850%3A16

## Record

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

## Text

No. 18-266

In THE

Supreme Court of the United States

THE DUTRA GROUP,
Petitioner,
Vv.

SHRISTOPHER BATTERTON,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE
THE CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA AND
INTERNATIONAL GROUP OF P&I CLUBS

SUPPORTING PETITIONER
DARYL JOSEFFER Scort A. KELLER
JONATHAN URICK Counsel of Record
U.S. CHAMBER BAKER Borrts L.L.P.
LITIGATION CENTER 1299 Pennsylvania Ave. NW
1615 H St. NW onan DC 20004
pr 20062 (202) TT00
(202) scott. keller@bakerbotts.com
Counsel for Amicus J. MARK LITTLE

Curiae The Chamber of BAKER Borts L.L.P.

Commerce of the United 910 Louisiana St.

States of America Houston, TX 77002
(713) 229-1489

Counsel for Amici Curiae

Wit_son-Epes Paovrino Co. Inc. — (202) 789-0096 — Wasiinoron, D.C 20002

i
TABLE OF CONTENTS

Interest of Amici Curiae
Summary of Argument

Argument
I. The Framers’ Fundamental Interest In

Page
1
3
6

ii
TABLE OF AUTHORITIES

Page
CASES

AT&T Mobility LLC vy. Concepcion,

563 U.S. 333 (2011) 4,11
Atlantic Sounding Co. v. Townsend,

557 U.S. 404 (2009) 17, 18
Clausen v. Icicle Seafoods, Inc.,

272 P.3d 827 (Wash. 2012) 7
Exxon Corp. v. Cent. Gulf Lines, Inc.,

500 U.S. 608 (1991) 6
Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) 3, 7, 8, 14
Foremost Ins. Co. v. Richardson,

457 U.S. 668 (1982) 6
Garnerv. Energy Transp. Corp.,

No. 95-7969, 1996 WL, 346631 (2d Cir.

1996) 7
Ledet v. Smith Marine Towing Corp.,

455 F. App’x 417 (5th Cir. 2011) 7
Lewis v. Lewis & Clark Marine, Inc.,

531 U.S. 438 (2001) 18

Miles v. Apex Marine Corp.,
498 U.S. 19 (1990)................. 9, 10 ,14 ,15, 16, 17, 18

Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970) 17
Norfolk S. Ry. Co. v. Kirby,

543 U.S. 14 (2004) 3, 5, 6, 14
Pac. SS. Co. v. Peterson,

278 U.S. 130 (1928) 15, 16, 18

Patsy v. Bd. of Regents of State of Fla.,
457 U.S. 496 (1982) 15

TABLE OF AUTHORITIES—Continued
Page

Salazar v. Buono,
559 U.S. 700 (2010) 15

Sisson v. Ruby,
497 U.S. 358 (1990) 6

The Lottawanna,

88 U.S. (21 Wall.) 558 (1874) 3, 6, 7,9

CONSTITUTIONAL PROVISION AND STATUTE
U.S. Const. art. III, § 2 6
28 U.S.C. § 1333 6

MISCELLANEOUS

maritimepartnership.com/about/faq/ 13

Mar. L.J. 156 (2013) 10

(Le. Plunderers)?, 45 J. Mar. L.. & Com.

415 (2014) 13
Eisenberg et al., The Predictability of

Punitive Damages, 26 J. Legal Stud.

623 (1997) 11
Gilmore & Black, Law of Admiralty § 6-23

(2d ed. 1975) 18

iv

TABLE OF AUTHORITIES—Continued

Gotanda, Punitive Damages: A
Analysis, 42 Colum. J.

Page

14

Comparative
Transnat’!] L. 3914 (2004)

Henderson, The Impropriety of Punitive
Damages in Mass Torts, 52 Ga. L.. Rev.
719 (2018)

ll

Plitt et al., 12 Couch on Ins. § 172:43
(2018)

10

Polinsky & Shavell, Punitive Damages:
An Economic Analysis, 111 Harv. L.
Rev. 869 (1998)

- 12

Life Preserver: An Overview
of U.S. Maritime Law for Non-
Maritime Lawyers, 26 U.S.F. Mar. L.J.

1 (2014)

weve LI

42 Am. U.L. Rev. 1465 (1993)

v
TABLE OF AUTHORITIES—Continued

Page

Sunstein et. al., Assessing Punitive

Damages (with Notes on Cognition and

Valuation in Law), 107 Yale L.J. 2071

(1998) 8, 12
Viscusi, The Social Costs of Punitive

Damages Against Corporations in

Environmental and Safety Torts, 87

Geo. L.J. 285 (1998) 12
Yetka, Insurance Coverage for Punitive

Damages, 44-F ALL Brief 18 (ABA

2014) 10

IN THE
Supreme Court of the United States
No. 18-266

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
THE CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA AND
INTERNATIONAL GROUP OF P&I CLUBS
SUPPORTING PETITIONER

INTEREST OF AMICI CURIAE'’

The Chamber of Commerce of the United States of
America is the world’s largest business federation. It
represents 300,000 direct members and _ indirectly
represents the interests of 3 million companies and
professional organizations of every size, in every industry
sector, and from every region of the country. An

' Pursuant to Supreme Court Rule 37.6, amici curiae state that no
counsel for any party authored this brief in whole or in part and no
entity or person, aside from amici curiae, their members, and their
counsel, made any monetary contribution intended to fund the
preparation or submission of this brief. All parties have consented to
the filing of this brief.

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important function of the Chamber ia to represent the
interests of is members in mattiors before Congress, the

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SUMMARY OF ARGUMENT
ostablished goal of ensuring “uniformity and consistency”

in maritime law, The Lottawanna, 88 U.S. (21 Wall.) 558,

Es
é

Ht
TH

punitive damages at the amount of compensatory

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would cause maritime businesses to overcorrect and

§
maritime businesses, Yet many countries around the
world, using the civil-code tradition, do not allow punitive

“protecting!” it. Kirby, 543 U.S, at 25.
Congress has already recognized the problema in thin

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ARGUMENT

l. Toe FRAMERS’ FUNDAMENTAL INTEREST IN
PROTECTING MARITIME COMMERCE WOULD Br
UNDERMINED By ALLOWING PUNITIVE DAMAGES
FoR UNSEAWORTHINESS CLAIMB.

The Framers vested federal courta with maritime
jurisdiction to protect maritime commerce, The
Constitution extends the federal “judicial power” to “all
Cases of admiralty and maritime Juriadiction.” U.S,
Conat, art. IIL, $2. Likewise, Congress has long vested
federal district courts with original jurisdiction in “lalny
civil case of admiralty or maritime juriadiction.” 28
U.S.C, § 1393301), As this Court has repeatedly reiterated,
the “fundamental interest giving rise to [this grant of|
maritime jurisdiction is the protection of maritime
commerce,” Kirby, 643 U.S. at 25 (emphasis and internal
quotation marks omitted); Exxon Corp. v. Cent. Gulf
Linea, Ine., (OO US, 608, 608 (1991); Sisson vy. Ruby, 497
U.S. 368, 367 (1990),

Consequently, this Court has long recognized the
necessity for “uniformity and consistency” in maritime
law. The Lottawanna, 88 U.S. (21 Wall.) at 575. The
fundamental interest in protecting maritime commerce
“eannot be fully vindicated unless ‘all operators of vessels
on navigable waters are subject to uniform rules of
conduct,” Sisson, 497 U.S. at 367 (quoting Foremost Ina,
Co, v. Richardson, 457 U.S, 668, 675 (1982) (emphasis
omitted)),

Far from fulfilling the Framers’ aim of “protectil ng]

damages are available in maritime casos,
514, But this cap has proven to be leas effective in
practice than it might seem in theory,

Punitive damages can pose a multimillion-dollar risk
in maritime cases, As an initial matter,
“(njotwithatanding the Supreme Court's ruling, state

fell outside the seope of

. v.
Seafoods, Ine, 272 PAd B27, B34-8386 (Wash,
(upholding a $1.3 million punitive damages award on a
maintenance-and-cure claim despite the jury awarding
only $37,420 in compensatory damages).)

And even when courta do enforce the cap, the punitive
damages may still be substantial because plaintiffs can
secure large compensatory damages awards in maritime
casos, See, o.g., Ledety, Smith Marine Towing Corp., 466
¥. App’x 417, 421 (6th Cir, 2011) (upholding a $1.8 million
compensatory damages award); Garner v, Hnorpgy

Corp., No, 96-7909, 1996 WL, 346631, at *1 (2d
Cir, 1996) (upholding a $1.1 million compensatory
damages award).

8. Like most businesses, maritime businesses have a
substantial interest in and need for predictability in
connection with business risks and costs, As a result,
maritime law has always emphasized uniformity and
consistency. See The Lottawanna, 88 U.S, (21 Wall.) at

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:
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576, But punitive damages present a real and inherent
danger of arbitrariness,

remedially similar Jones Act statutory claim. Permitting

i)
that weighty remedy to turn on whether a plaintiff
asserts an alternative common-law claim for the same
injury fractures the “uniformity and consistency” that
should be the hallmark of maritime law. The Lottawanna,
88 U.S. (21 Wall.) at 575.

Proposed Changes to Discovery Rules in Aid of “Tort
Reform”: Has the Case Been Made?, 42 Am. U.L. Rev.
1465, 1487 (1993); see Redish & Amuluru, The Supreme

10
on the remedies available “for seamen’s injury or death,”
498 U.S. at 36 (emphasis added), and the Jones Act
prohibits punitive damages for both personal injury and
wrongful death claims, see Pet. Br. 26-28.
The Ninth Circuit’s effort to shove the square peg of

punitive damages into the round hole of an

jurisdictions hold that public policy prohibits

il

context. Concepcion, 563 US. at 350. “Faced with even a
small chance of a devastating loss, defendants will be
pressured into settling questionable claims.” Jbid.
Indeed, “{t}he risk of suffering a crushing punitive
damages penalty gives rise to so-called ‘blackmail
settlements’ in which defendants pay more than the * * *
claims are reasonably worth.” Henderson, The

of Punitive Damages in Mass Torts, 52 Ga.
L. Rev. 719, 747 (2018); see also Scheverman, Two
Worlds Collide: How the Supreme Court’ Recent
Punitive Damages Decisions Affect Class Actions, @
Baylor L. Rev. 880, 916 (2008) (demonstrating that the
presence of punitive damages “increases exponentially”
the pressure to settle and “creates acute settlement
leverage”); Eisenberg et al. The Predictability of
Punitive Damages, 26 J. Legal Stud. 623, 625 (1997)
(“Perhaps uncounted thousands of cases settle on terms
different than those on which they would otherwise settle
because of the possibility of punitive damages.”).

If maritime businesses cannot adequately predict the
scope of potential punitive damage liability, they will be
forced into overpriced settlements. Rather than litigate
to final judgment an unseaworthiness claim, a maritime
business would face significant pressure to settle the case
simply to avoid a significant punitive damages award.
This, too, undermines uniformity and consistency that
should be the hallmark of maritime law.

D. The overpriced settlements that unseaworthiness
plaintiffs could extract will come at a significant cost. The
American maritime industry will pay that cost not only in
the form of the substantial settlements themselves, but
also by the attendant overdeterrence of desirable
economic activity.

Liability for wrongful conduct must be commensurate
with the wrong involved so businesses can put in place
appropriate deterrents to wrongful conduct. This interest

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is substantially undermined by punitive damages. The
likely effect of allowing such an award is to make

maritime commerce (and hence the goods transported in
it) more expensive by injecting greater uncertainty into

the system.

13

another, even in that subset of cases in which insurance
coverage is available and effective. There is no reason to
upset the settled insurance expectations that reflect the
longstanding balance Congress struck in the Jones Act
between the interests of shipowners and the rights of
injured seafarers.

These insidious inefficiencies act as a drag on not only
the maritime industry, but the economy as a whole. The
American maritime industry is massive. Its

a calatnahd quadiive Gina en tee cat Oem
the generic common-law duty to provide a seaworthy

efficient means of shipping goods, see, e.g, Dubner &
Pastorius, On the Ninth Circuits New Definition of
Piracy: Japanese Whalers v. the Sea Shepherd-Who Are
the Real “Pirates” (ie. Plunderers)?, 45 J. Mar. L. &
Com. 415, 418 (2014)}—would become much more
expensive. Whether businesses will pay the inevitably
higher rates for maritime shipping or turn to less
efficient and more costly modes of transportation, the
result is the same: higher shipping costs that inflate
prices on goods for everyone. These reverberating

14
will necessarily be felt by businesses throughout the
economy. At a minimum, the Court should be cognizant
of these drastic costs when it acts as a common-law court

general maritime law.” 498 U.S. at 33. The Jones Act
does not allow punitive damages for maritime personal
injury claims, as petitioner correctly explains. See Pet.
Br. 17-19. And a Jones Act claim overlaps with a
common-law unseaworthiness claim. See Pet. Br. 19-21.

15
So in addition to thwarting the Framers’ goals in vesting
the federal courts with maritime jurisdiction, awarding
punitive damages for unseaworthiness would also defy
Congress’s expressed judgment on this question in the
Jones Act.

A. “Congress’s prerogative to balance opposing
interests and its institutional competence to do so * * *
[merits] deference to its policy determinations.” Salazar
v. Buono, 559 US. 700, 717 (2010) (plurality op.); see
Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 513
(1982) (“The very difficulty of these policy considerations,
and Congress’ superior institutional competence to
pursue this debate, suggest that legislative not judicial
solutions are preferable.”). The Court has honored this
“fundamental principle[|” in the maritime context. Miles,
498 U.S. at 27.

The Jones Act and unseaworthiness claims have
overlapping remedies. This Court made that clear shortly
after the Jones Act’s passage, when it explained that this
statute created an “alternative of the right to recover
indemnity under the old rules on the ground that the
injuries were occasioned by unseaworthiness.” Pac. S.S.
Co. v. Peterson, 278 U.S. 130, 138 (1928). In other words,
when a seaman’s injuries are caused by conduct covered
by an unseaworthiness claim or the Jones Act, “there is
but a single wrongful invasion of his primary right of
bodily safety and but a single legal wrong.” Ibid.

In Miles, the Court noted the “extensive[]” legislation
on maritime law and acknowledged that “Congress
retains superior authority in these matters.” 498 U.S. at
27. It follows, the Court explained, that “an admiralty
court should look primarily to these legislative
enactments for policy guidance.” [bid. Courts must “keep
strictly within the limits imposed by Congress” and be

not to overstep the well-considered boundaries
imposed by federal legislation.” Ibid.

16

“Cognizant of the constitutional relationship between
the courts and Congress,” Miles declined to “create,
under our admiralty powers, a remedy that * * * goes
well beyond the limits of Congress’ ordered system of
recovery for seamen’s injury and death.” Jd. at 36-37.
Instead, the Court “actjed] in accordance with the
uniform plan of maritime tort law Congress created in
*** the Jones Act,” and it held that “[bjecause [a
seaman’s| estate cannot recover for his lost future income
under the Jones Act, it cannot do so under general
maritime law.” Id. at 36.

That reasoning mandates reversal of the Ninth
Circuit’s decision here. As Miles recognized, Congress
has legislated “extensively” in the area of maritime law.
Id. at 27. The most important of these enactments, the
Jones Act, sought to “establish{| a uniform system of
seamen’s tort law.” Jd. at 29. That statute s
addresses the same “wrongful invasion of [a seaman’s|
primary right of bodily safety” that the common-law
unseaworthiness cause of action also protects. Peterson,
278 U.S. at 138. Exercising its legislative power to weigh
the costs and benefits of various remedies, Congress
chose to disallow punitive damages for that type of legal
wrong. See Pet. Br. 15-21. Miles thus controls this case.
Translated to this context, “[bjecause [a seaman’s| estate
cannot recover [punitive damages] under the Jones Act,
it cannot do so under general maritime law.” Miles, 498
U.S. at 36.

Permitting punitive damages for unseaworthiness
claims would severely undermine Congress's statutory
mandate on this issue. This Court’s “transformation of
the shipowner’s duty to provide a seaworthy ship into an
absolute duty”—to which strict applies—has
resulted in “unseaworthiness” displacing the Jones Act
as “the principal vehicle for recovery by seamen for
injury or death.” Moragne v. States Marine Lines, Inc.,

17

398 U.S. 375, 399 (1970). Awarding punitive damages for
these ubiquitous unseaworthiness claims would thus
drown out Congress’s considered judgment in
disallowing that exact remedy for this type of conduct.
Plaintiffs would not even have to go out of their way to
circumvent the congressional mandate. They would
merely do as they do now—file a common-law
unseaworthiness claim in lieu of or alongside a Jones Act
claim.

Congress’s determination about how to balance the
competing interests involved here cannot be so easily
thwarted by a court-created cause of action. Rather,
when the will of the legislature and the common law
clash, it is the common law that must yield: “{i}t would be
inconsistent with [this Court’s] place in the constitutional
scheme were [it! to sanction more expansive remedies in
a judicially created cause of action.” Miles, 498 U.S. at 32.

B. Atlantic Sounding Co. v. Townsend, 557 U.S. 404
(2009), changes none of this. As petitioner explained, the
maintenance-and-cure context of that case renders it
inapplicable in this unseaworthiness setting. See Pet. Br.
21-26.

The maintenance-and-cure cause of action differs
from the unseaworthiness cause of action in several key
respects. The most important here is that the
maintenance-and-cure claim is not an alternative,
overlapping remedy to a Jones Act claim—whereas an
unseaworthiness claim is an alternative to a Jones Act
claim. See Townsend, 557 U.S. at 420 (“[T]he Jones Act
does not address maintenance and cure or its remedy.”).
While the Jones Act “created a statutory cause of action
for negligence,” maintenance-and-cure “concerns the
vessel owner’s obligation to provide food, lodging, and
medical services to a seaman injured while serving the
ship.” Id. at 407-408, 415 (quoting Lewis v. Lewis & Clark
Marine, Inc., 531 U.S. 438, 441 (2001)).

18
Accordingly, “a seaman’s action for maintenance and
cure is *** ‘in no sense inconsistent with, or an
alternative of, the right to recover compensatory
damages [under the Jones Act]. Jd. at 423 (quoting
Peterson, 278 U.S. at 138-139) (alteration in original).
Stated another way, “both the Jones Act and the

and also one of the other two.” Id. at 424 (quoting
Gilmore & Black, Law of Admiralty § 6-23 (2d ed. 1975)).

outside the remedial scope of the Jones Act.

But here, the court of appeals’ treatment of the
unseaworthiness common-law claim puts it in direct
conflict with the Jones Act—just as in Miles. This case

at issue here. Thus, Miles, not Townsend, controls the
outcome here. And it mandates reversal of the Ninth

Circuit’s decision.

19

CONCLUSION
The judgment of the court of appeals should be

reversed.

DARYL JOSEFFER
JONATHAN URICK

U.S. CHAMBER LITIGATION
CENTER

1615 H St. NW

=

Counsel for Amicus Curiae
The Chamber of Commerce
of the United States of
America

January 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0850%3A16. Public record. Not legal advice.