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

LYLE C. CAVIN, JR. MICHAEL F. STURLEY

LYLE C. Cavin, Jr. & Counsel of Record

ASSOCIATES 727 E. Dean Keeton St.

428 Alice St., Suite 128 Austin, TX 78705

Oakland, CA 94607 (512) 232-1350

Counsel for Amicus msturley@law. utexas.edu

James Stelpstra JAMES P. JACOBSEN

Stacey & JACOBSEN, PLLC

4039 21st Ave. West,

Suite 401

Seattle, WA 98199

Counsel for Amicus

Tevrin Narcisse

February 19, 2019

TABLE OF CONTENTS

Page

TABLE OF AUTHORITING .........0..200..00002000c0c0se0- iii

INTEREST OF AMICI CURIAE ...............0000000+- 1

SUMMARY OF ARGUMENT ...00.o0.. oo. ..-.cceeeeee 1

PRENSA an 4

I. Punitive Damages Are Available in Ac-

tions Under the Jones Act Because They

Are Available Under FELA ....................... 5

A. Injured railroad employees had both

ble at common law prior to

ble in negligence actions prior

Op ee itteiteccietnetnnsnntneeries 10

c. Punitive damages were availa-

ble against railroads prior to

0 = 10

i

TABLE OF CONTENTS — Continued

Page

d. Punitive damages were in fact

awarded prior to FELA in ac-

titioner to show that an other-

B. Congress enacted FELA to expand the

rights and remedies available to in-

jured railroad workers without limit-

ing the rights and remedies previously

Te

C. This Court has never held that puni-

tive damages are categorically una-

vailable under FELA...........................

D. Lower courts have erred in holding

that punitive damages are categori-

cally unavailable under FELA ............

Il. Even If Punitive Damages Were Unavail-

able Under FELA, They Are Still Available

Under the Jones Act ...................ccccceeeeeeees

ee ce snscccnsecenssnvesnssocessesesssnemnenencessusesss

11

12

14

14

18

25

ses

TABLE OF AUTHORITIES

Page

CASES:

American Railroad Co. v. Didricksen, 227 U.S.

TIE ccresninternttennnndesneinenbeiguteinnnmimmmtiiients 19, 26

The Amiable Nancy, 16 U.S. (3 Wheat.) 546

i ctcenistinteinsinineisanasicieisnpienetniuasmiaintieniiptimmanios 9, 10, 31

The Arizona v. Anelich, 298 U.S. 110 (1936)............... 29

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

ee ennassnnsienssnenecdssenenscantitnantninniennmenentsaneedsenen passim

Baptiste v. Superior Court, 106 Cal. App. 3d 87,

164 Cal. Rptr. 789 (1980) .................-.:-s0seeeeeeeeeeeeeeee 30

Barry v. Edmunds, 116 U.S. 550 (1886) ....................... i)

Benner v. Truckee River General Electric Co., 193

Ue 21

Brickman v. Southern Railway, 74 S.C. 306, 54

Se II ccccistrinincinnenepiannicientpeaneninttinenniieeen 13, 22

Brotherhood of Railroad Trainmen v. Virginia ex

rel. Virginia State Bar, 377 U.S. 1 (1964) ............... 17

Brown v. Memphis & Charleston Railroad Co., 7

F. 51 (C.C. W_D. Tenn. 1881)................ccccccccee00- 11,12

Choctaw, Oklahoma & Gulf Railroad Co. v. Hol-

loway, 191 U.S. 334 (1903) ................cccccccceceeeeeeeees 7,8

Consolidated Rail Corp. v. Gottshall, 512 U.S.

El icihictisiinitpintareisetnerntnnemensenniiaiiidiinanianes 2, 6, 25

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

Cg Ee 28, 29

iv

TABLE OF AUTHORITIES — Continued

Page

Day v. Woodworth, 54 U.S. (13 How.) 363

iia hdibcisenisthtintinindesincinnsientienasanitiiaiinmimeeeianeeans 8, 9, 10

Denver & Rio Grande Railway Co. v. Harris, 122

ee I tticiencenetinninitinibcrmaniebanencssuneiensnerses 11,12

Ennis v. Yazoo & Mississippi Valley Railroad

Co., 118 Miss. 509, 79 So. 73 (1918)........................ 13

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

Seea eae cnusisniainceinsciainnsecanintsnininidinitiiatendaainiccines 17, 18, 27

Fell v. Northern Pacific Railway Co., 44 F. 248

ERE SS EON ae 11,12

Guevara v. Maritime Overseas Corp., 59 F.3d

I TT ricitisaieiinistintiitiimnanininictateinnnetwens 18

Gulf, Colorado & Santa Fe Railway Co. v.

McGinnis, 228 U.S. 173 (1913)..........0......cccc000 19, 26

Johnson v. Southern Pacific Co., 196 US. 1

ei rcscsesiternssinntammennsineassensabnansventsennegememmennmnauatenenes 17

Koennecke v. Seaboard Air Line Railway, 101

S.C. 86, 85 S.E. 374 (1915) .............ccccccceeeeseeeeeeeeees 24

Kopezynski v. The Jocqueline, 742 F.2d 555 (9th

ORE Sea ncisiepinisdsinnsctensntenitaasauteinttpitenieatinniaiiantia 5, 23, 26

Kozar v. Chesapeake & Ohio Railway Co., 449

F.2d 1238 (6th Cir. 1971)............. 5, 19, 25, 26, 27, 28

Lake Shore & Michigan Southern Railway Co. v.

Prentice, 147 U.S. 101 (1893) ........................ 9, 10,11

Louisville & Nashville Railroad Co. v. Kelly’s

Administratrix, 100 Ky. 421, 38 S.W. 852

v

TABLE OF AUTHORITIES — Continued

Page

McBride v. Estis Well Service, 768 F.3d 382 (5th

SME Seal inicesiictinnaibcenrinreninreseenepiindinannaieiniamamsinninntienmeaticnsts 30

McGuire v. The Golden Gate, 16 F. Cas. 141 (No.

8,815) (C.C.N.D. Cal. 1856) ...0........cccccccceeeeeeeeeeeeeeees 17

Michigan Central Railroad Co. v. Vreeland, 227

es IED cxtcnececncensssntconee 18, 19, 20, 21, 22, 26, 30

Miles v. Apex Marine Corp., 498 U.S. 19 (1990).....18, 27

Miller v. American President Lines, Lid., 989

F.2d 1450 (6th Cir. 1993) .0.00000........cccccccceseeees 5, 27, 28

Milwaukee & St. Paul Railway Co. v. Arms, 91

Fe EE eR 10, 11

Missouri Pacific Railway Co. v. Humes, 115 U.S.

PE iidcicninncipinsnnesinncenenpiinarntanegneimmndaninies 11-12

Moberg v. Scott, 42 S.D. 372, 175 N.W. 559 (1919) ......22

New England Railroad Co. v. Conroy, 175 U.S.

TN ae en OE 8

Northern Pacific Railway Co. v. Dixon, 194 U.S.

Tee hnsnissshshnistatintasedenpiniiinnzuntiahibndtidesemenpisitnipencestein 7,8

Olsen v. Montana Ore Purchasing Co., 35 Mont.

Ee ee CH ED ctcnccetccpssnnenstnnscepsentntencepnenesseecs 21

Panama Railroad Co. v. Johnson, 264 U.S. 375

Gee eiscissieuninnticnsbesmecmunieninnsesntiemansstsenmnvemnecsened 6

Parsons v. Missouri Pacific Railway Co., 94 Mo.

286, 6 S.W. 464 (1888) 20.00... ccccccccceeceeeeeeeeeeeeeeeeeees 21

Philadelphia, Wilmington & Baltimore Rail-

road Co. v. Quigley, 62 U.S. (21 How.) 202

CFI Ne tp ocssrecesessssorunesusrmecsenunscnsvenseunesasnnanemneanssensvocnanss 11

vi

TABLE OF AUTHORITIES — Continued

Page

Santa Fe Pacific Railroad Co. v. Holmes, 202 U.S.

i ciiteranchetnicsunenttennsemencimsesesentendiatenemmine 7,8

Savannah & Memphis Railroad Co. v. Shearer,

ee Se renenticntstmsenscntecneensestennesinaintieermnce 21

Seaboard Air Line Railway v. Koennecke, 239

ee SII cccnsiinccotsusennscencesecsemnsennteten vee 22, 23, 24

Southern Pacific Co. v. Seley, 152 U.S. 145 (1894)......... 8

St. Louis, Iron Mountain & Southern Railway

Co. v. Roberson, 103 Ark. 361, 146 S.W. 482

Cie bisnadineienssocnsarsipesmevensesnenteesqusemnntsenqesimsntnindemacavens 21

Texas & Pacific Railway Co. v. Swearingen, 196

ee Se I icencttintininictcceennserecmmmenisininbibadsenneaseneiees 7,8

Turner v. Norfolk & Western Railroad Co., 40 W.

Va. 675, 22 S.E. 83 (1895)...........ccccceceeeeeeeeeeeeeee 13, 22

Union Railway Co. v. Carter, 129 Tenn. 459, 166

SPURTE sietiitticiitenhicicieniieneaistainasasinuiaiteptcumtantesenss 22

United States v. Texas, 507 U.S. 529 (1993) ............... 27

Wildman v. Burlington Northern Railroad Co.,

825 F.2d 1392 (9th Cir. 1987).................. 5, 19, 26, 27

STATUTES AND RULES:

Longshore and Harbor Workers’ Compensation

Act § 5(a), 33 U.S.C. § 9O5(a).......... cece cccccccccce eens 12

Clean Water Act § 311, 33 U.S.C. § 1321.................... 18

Federal Employers’ Liability Act (FELA), 45

|RSS eae ie AE a passim

vii

TABLE OF AUTHORITIES — Continued

Page

Be a Se ee I hcccncascessstnanstceunsroccnsennia 14, 23

ee ts Ot icrerccsccanssccnveuntnenennentinnincnnin 15

ee 15

Act of Apr. 22, 1908, ch. 149, § 4, 35 Stat. 65,

Ee a: ee Ne ae Re 15

Act of Aug. 11, 1939, ch. 685, § 1, 53 Stat.

es Bvt nisisinisceiatttniinenatibentisunsispeniatietamaicimanenendie 15

Jones Act, 46 U.S.C. § 301040... cece eeeeeeeeeee passim

Merchant Marine Act, ch. 250, § 33, 41 Stat.

988, 1007 (1920) (codified as amended at 46

SE STINT iiciidintintpidrcidentnacotandacentstnienaieeiitentetans 5-6

S.C. Civil Code § 2862 (1902) ................ccccccccsccereeeseees 22

S.C. Civil Code § 3956 (1912) ..0..0.........ccccccccceeeeees 22, 23

Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (ULK.)....... 20

EL ee 1

OTHER AUTHORITIES:

Dino Drudi, Railroad-Related Work Injury Fa-

talities, MONTHLY LAB. REv., July/Aug. 2007

(available at http://www.bls.gov/opub/mlr/2007/

iss nitaicinditadesintndnimnnstneresenneneetetniinne 16-17

H.R. Rep. No. 60-1386 (1908) ......................cceeeeeee 16, 17

Oe i eeieinipetnais 15

S. Rep. No. 61-432 (1910), reprinted in 45 Cong.

Bk Sr NET cecthctihitheciichacntactionnnnenihiendenmessnanabedouitsiti 16

1

INTEREST OF AMICI CURIAE'

Amici curiae are crewmembers injured in the ser-

vice of their ships who have pending claims under the

Jones Act, 46 U.S.C. § 30104, and the general maritime

law’s unseaworthiness doctrine. Each amicus claims

punitive damages based on his employer's egregious

misconduct. Amicus Tevrin Narcisse’s action is pend-

ing in Washington Superior Court for the County of

King as Narcisse v. Crowley Liner Services, Inc. Amicus

James Stelpstra’s action is pending in California Su-

perior Court for the County of Alameda as Stelpstra v.

Matson Navigation Co. Their ability to pursue their

punitive-damages claims may well depend on, and

amici accordingly have a strong interest in, the out-

come of the present case.

SUMMARY OF ARGUMENT

Petitioner’s argument depends entirely on its er-

roneous assertion that punitive damages are categori-

cally unavailable under the Jones Act, 46 U.S.C.

§ 30104. This Court need not address that assertion; it

can affirm the decision below on the ground that puni-

tive damages are available in an unseaworthiness ac-

tion regardless of whether they are available under the

Jones Act. But if this Court chooses to reach the issue,

' Pursuant to Supreme Court Rule 37.6, counsel for amici

confirm that no counsel for a party authored this brief in whole or

in part, and that no person or entity other than amici or their

counsel made a monetary contribution intended to fund the prep-

aration or submission of this brief. The parties have granted blan-

ket consent to the filing of amicus briefs.

2

it should affirm the decision below because punitive

damages are available under the Jones Act.

1. When Congress incorporated the Federal

Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60,

by reference in the Jones Act, it gave injured crew-

members the rights that injured railroad workers

have under FELA. Applying the analytic framework

that this Court explained in Atlantic Sounding Co. v.

Townsend, 557 U.S. 404 (2009), punitive damages

are available under FELA. That approach is also

consistent with this Court’s direction in Consolidated

Rail Corp. v. Gottshall, 512 U.S. 532 (1994), to construe

FELA by reference to common-law principles when

deciding issues that the statute does not explicitly

address.

The relevant cause of action—negligence—was

well-established at common law. In the years immedi-

ately before FELA, this Court upheld several negli-

gence claims by injured railroad employees against

their employers.

The remedy at issue—punitive damages—was

also well-established before the enactment of FELA,

both at common law and under the general maritime

law, including in negligence actions. Punitive damages

were available in actions against railroads, and puni-

tive damages were awarded against railroads, includ-

In any event, this Court has put the burden on the

party seeking to deny a traditional common-law rem-

edy to show that a generally available remedy was un-

available in a particular context. See Townsend, 557

3

US. at 414-415, 418. Petitioner cannot carry that bur-

den.

Nothing in FELA deprives injured railroad work-

ers of the right to pursue punitive damages in appro-

priate cases. On the contrary, Congress’s intention was

to expand the remedies available to injured railroad

workers without depriving them of any remedies that

they previously possessed.

This Court has never held that punitive damages

are categorically unavailable under FELA. The

decisions cited to restrict the right to pursue punitive

damages did not involve the issue. Those decisions ad-

dressed only compensatory damages in the wrongful-

death context, which has a unique history that does

not apply in non-fatal personal-injury cases. Lower-

court decisions to the contrary are inconsistent with

this Court’s decisions.

2. Even if punitive damages were unavailable

under FELA, they would still be available under the

Jones Act. FELA limitations do not limit Jones Act

claims when crewmembers have traditionally enjoyed

greater rights under the general maritime law. FELA

establishes a floor for crewmembers’ rights, not a ceil-

in which injured crewmembers have greater rights

than injured railroad workers. The general maritime

law recognized punitive damages before the nation

even had railroads.

4

ARGUMENT

Petitioner Dutra Group advocates a per se rule

that an injured crewmember can never recover pur:

tive damages under the general maritime law doctrine

of unseaworthiness, no matter how egregious a defend-

ant shipowner’s fault may be. That extreme rule would

apply even if a shipowner made a deliberate, callous

decision to send a doomed—but over-insured—rust-

bucket to sea because the anticipated insurance

proceeds would exceed the compensatory damages

payable to any injured sailors who survive the inevita-

ble sinking. Petitioner’s argument for such a harsh

rule rests entirely on its assertion that punitive dam-

ages are categorically unavailable under the Jones Act.

But that assertion is incorrect. Properly understood,

the Jones Act permits the traditional remedy of puni-

tive damages in an extreme case when the defendant

employer has been guilty of sufficiently egregious mis-

conduct. As a result, petitioner's entire analysis col-

lapses.

Neither the Jones Act nor the Federal Employers’

Liability Act (FELA), which the Jones Act incorporates

by reference, addresses punitive damages. And this

Court has never held that punitive damages are

unavailable under either statute. Indeed, this Court in

Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424

n.12 (2009), explicitly recognized that the availability

of punitive damages under the Jones Act remains an

open question.

5

Some lower courts—including the court below—

have mistakenly held that punitive damages are unre-

coverable under the Jones Act and FELA. See, e.g. , Mil-

ler v. American President Lines, Lid., 989 F.2d 1450,

1454-59 (6th Cir. 1993) (Jones Act); Kopezynski v. The

Jacqueline, 742 F.2d 555, 560-561 (9th Cir. 1984)

(same); Wildman v. Burlington Northern Railroad Co.,

825 F.2d 1392, 1393-95 (9th Cir. 1987) (FELA); Kozar

v. Chesapeake & Ohio Railway Co., 449 F.2d 1238,

1240-43 (6th Cir. 1971) (same). This Court need not de-

cide that issue. It may affirm the decision below on the

ground that punitive damages would be available in an

action for unseaworthiness even if they were not al-

lowed under the Jones Act. That is what the court be-

low held. See Pet. App. 3a & n.7. It is essentially how

the Townsend Court upheld the availability of punitive

damages for the willful failure to pay maintenance and

cure. See 557 U.S. at 424 n.12. But this Court could also

resolve the question presented by recognizing that the

Jones Act permits the recovery of punitive damages

when the defendant employer has been guilty of suffi-

ciently egregious misconduct.

I. Punitive Damages Are Available in Actions

Under the Jones Act Because They Are

Available Under FELA.

The Jones Act gave crewmembers the right to

“maintain an action for damages at law” and provided

that “in such action all statutes of the United States

modifying or extending the common-law right or rem-

edy in cases of personal injury to railway employees

shall apply.” Merchant Marine Act, ch. 250, § 33, 41

6

Stat. 988, 1007 (1920) (codified as amended at 46

U.S.C. § 30104). In Panama Railroad Co. v. Johnson,

264 U.S. 375, 391-392 (1924), this Court recognized

that Congress had by reference incorporated FELA

and its amendments. A proper analysis of the availa-

bility of punitive damages under the Jones Act there-

fore begins with FELA. And because FELA permits an

injured railroad worker to recover punitive damages in

an appropriate case, that remedy is also available un-

der the Jones Act.

Under the analytical framework that this Court

established in Townsend, 557 U.S. at 414-415, 420, 424,

the test for determining whether an injured railroad

worker can seek punitive damages for an employer's

egregious fault turns on whether the cause of action

(negligence) and the remedy (punitive damages) pre-

existed FELA, and whether FELA precluded the action

or the remedy. See also, e.g., Consolidated Rail Corp. v.

Gottshall, 512 U.S. 532 (1994) (construing FELA by ref-

erence to common-law principles with respect to issues

not explicitly addressed by the statute). All three of the

Townsend factors point in favor of the continued avail-

ability of punitive damages under FELA.

A. Injured railroad employees had both a

negligence cause of action and a punitive-

damages remedy prior to FELA.

Pre-FELA caselaw demonstrates that the first two

requirements—the pre-FELA existence of the cause of

action and the remedy—are easily satisfied.

7

1. Injured railroad workers could bring

an action for negligence against their

employers prior to FELA.

In the years immediately prior to FELA, this

Court regularly recognized that injured railroad work-

ers could bring common-law negligence actions against

their employers. In Santa Fe Pacific Railroad Co. v.

Holmes, 202 U.S. 438 (1906), for example, an engineer

injured in a head-on collision recovered for his em-

ployer’s negligence in sending approaching trains on

the same track. In Texas & Pacific Railway Co. v.

Swearingen, 196 U.S. 51 (1904), an injured switchman

recovered for his employer's negligence in placing a

scale box too close to the track. And in Choctaw, Okla-

homa & Gulf Railroad Co. v. Holloway, 191 U.S. 334

(1903), an injured fireman recovered for his employer's

failure to equip an engine with brakes.

Prior to FELA, railroads often escaped negligence

liability under three harsh common-law rules denying

recovery in many typical situations—the fellow-

servant rule, the contributory-negligence rule, and the

assumption-of-the-risk rule.* In Northern Pacific Rail-

way Co. v. Dixon, 194 U.S. 338 (1904), for example, a

fireman was killed in a head-on collision between two

* In Holmes, the railroad asserted the fellow-servant doc

trine; in Swearingen and Holloway, the railroads asserted the

assum ption-of-the-risk rule; and in all three cases the railroads

asserted the contributory-negligence rule. See Holmes, 202 U.S.

at 438-439; Swearingen, 196 U.S. at 53; Holloway, 191 U.S. at

337. But the defenses failed on the facts and the injured employ

ees succeeded in their negligence actions.

8

trains that occurred because a local telegraph operator

had negligently informed the dispatcher that one of the

trains had not yet passed his station when in fact it

had passed the station while the operator was asleep.

This Court ruled that “it is obvious that the local oper-

ator was a fellow servant with the fireman,” id. at 343,

and thus the railroad was not liable for the fireman’s

death. See also, eg., New England Railroad Co. v.

Conroy, 175 U.S. 323, 327-347 (1899) (fellow-servant

rule); Southern Pacific Co. v. Seley, 152 U.S. 145, 154-

156 (1894) (assumption-of-the-risk rule); id. at 156

(contributory-negligence rule) (alternate holding).

2. Punitive damages were generally

available prior to FELA.

Although the plaintiffs in Holmes, Swearingen,

and Holloway did not seek punitive damages, other

pre-FELA cases establish that punitive damages were

then available at common law, available under the gen-

eral maritime law, available in common-law negligence

actions, available against railroads, and in fact

awarded against railroads (including in actions for in-

juries to railroad employees).

a. Punitive damages were available

at common law prior to FELA.

This Court in Townsend documented that “(p)uni-

tive damages have long been an available remedy at

common law.” 557 U.S. at 409 (citing U.S. and English

cases dating back to colonial times). Indeed, before the

enactment of FELA, this Court itself recognized the

general availability of punitive damages. In Day v.

9

Woodworth, 54 U.S. (13 How.) 363 (1852), for example,

this Court explained:

It is a well-established principle of the

common law, that in . . . all actions on the case

for torts, a jury may inflict what are called ex-

ernplary, punitive, or vindictive damages upon

a defendant, having in view the enormity of

his offence rather than the measure of com-

tion to the plaintiff

Id. at 371; see also, eg, Barry v. Edmunds, 116 US.

550, 562 (1886) (“[Alccording to the settled law of this

court, [a plaintiff] might show himself, by proof of the

circumstances, to be entitled to exemplary damages

calculated to vindicate his right and protect it against

future similar invasions.”).

as an available remedy under the general maritime

law (itself a form of common law) even earlier. Justice

Story, writing for the Court in The Amiable Nancy, 16

U.S. (3 Wheat.) 546 (1818), described “exemplary dam-

ages” as “the proper punishment which belongs to

\gross and wonton] lawless misconduct.” Jd. at 558; see

also, e.g., Lake Shore & Michigan Southern Railway

Co. v. Prentice, 147 U.S. 101, 108 (1893) (recognizing

that “courts of admiralty . . . proceed, in cases of tort,

upon the same principles as courts of common law, in

allowing exemplary damages”).

10

b. Punitive damages were available

in negligence actions prior to

FELA.

The availability of punitive damages was not lim-

ited to cases of intentional misconduct, as in Day v.

Woodworth and The Amiable Nancy. This Court’s pre-

were available in appropriate cases in which the plain-

tiff had brought a negligence action. In Milwaukee &

St. Paul Railway Co. v. Arms, 91 U.S. 489 (1876), for

example, this Court explicitly noted that the punitive-

damages rule it had recognized in Day v. Woodworth

“is equally applicable to suits for personal injuries re-

ceived through the negligence of others” if the defend-

ant’s misconduct was serious enough. 91 U.S. at 493.

c. Punitive damages were available

against railroads prior to FELA.

Railroads were regularly subject to the general

rule recognizing the availability of punitive damages.

In Lake Shore & Michigan Southern Railway Co. v.

Prentice, 147 U.S. 101 (1893), a passenger sued a rail-

availability of punitive damages was “well settled”:

In this court, the doctrine is well settled,

that in actions of tort the jury, in addition to

the sum awarded by way of compensation for

the plaintiff’s injury, may award exemplary,

called smart money, if the defendant has acted

wantonly, or oppressively, or with such malice

11

as implies a spirit of mischief or criminal in-

difference to civil obligations.

Id. at 107. Not only did Prentice itself involve an action

against a railroad, but the Court cited eight of its prior

decisions in support of the quoted proposition—and

five of them were actions against a railroad. See, ez,

Arms, 91 U.S. at 492 (“well settled . . . that exemplary

damages may in certain cases be assessed”); Philadel-

phia, Wilmington & Baltimore Railroad Co. v. Quigley,

62 U.S. (21 How.) 202, 214 (1859) (“Whenever the in-

jury complained of has been inflicted maliciously or

wantonly .. . the jury are not limited to the ascertain-

ment of a simple compensation for the wrong. . . .”).

The railroads’ exposure to punitive damages in the

pre-FELA era was not an abstract principle. The courts

in fact ordered railroads to pay punitive damages in

appropriate cases. In Fell v. Northern Pacific Railway

Co., 44 F. 248, 252-253 (C.C.D.N.D. 1890), for example,

the court upheld a jury verdict awarding punitive dam-

ages to a passenger who had been forced to jump from

a moving train. In Brown v. Memphis & Charleston

Railroad Co., 7 F. 51, 63-64 (C.C. W.D. Tenn. 1881), the

court upheld a jury verdict awarding punitive damages

to a passenger who had wrongfully been excluded from

the “ladies’ car.” And in Denver & Rio Grande Railway

Co. v. Harris, 122 U.S. 597, 609-610 (1887), this Court

affirmed an award that included “punitive or exem-

plary damages.” Cf. Missouri Pacific Railway Co. v.

12

Humes, 115 U.S. 512, 522-523 (1885) (affirming an

award of statutory double damages as analogous to pu-

nitive damages).

e. Punitive damages were in fact

awarded prior to FELA in actions

against railroads for injuries suf-

fered by railroad employees.

Prior to the enactment of statutory regimes obli-

gating employers to pay compensation to injured em-

ployees, there was no conceptual distinction between

employees’ tort actions against the railroads that em-

ployed them and actions by other plaintiffs against

those railroads. With the enactment of FELA, of

course, employees had a unique statutory remedy

against their employers, unhampered by the harsh de-

fenses that had so often denied recovery under the

common law. See supra at 7-8 & n.2.* But until FELA

entered into force, an employee’s action against a rail-

road was subject to the same principles as applied in

Fell, Brown, and Harris (discussed in the previous

paragraph).

Despite the harsh common-law defenses that

made it particularly difficult for injured railroad em-

ployees to recover even compensatory damages prior to

* In other contexts, emp!oyees were eventually covered by

workers’ compensation regimes that limited their ability to bring

tort actions against their employers. See, e.g., Longshore and Har-

bor Workers’ Compensation Act § 5(a), 33 U.S.C. § 905(a) (provid-

ing that an employer's liability under the statute “shall be

exclusive and in place of all other liability of such employer to the

employee”) (originally enacted in 1927).

13

FELA,* some plaintiffs succeeded in obtaining a

punitive-damages award against a railroad for injuries

suffered by an employee. In Turner v. Norfolk & West-

ern Railroad Co., 40 W. Va. 675, 22 S.E. 83 (1895), for

example, a 16-year-old railroad employee was killed

when an engine collided with the hand car on which he

was riding. On appeal, West Virginia’s highest court

upheld the award, explaining “that the measure of

damages in the case of a man’s death is not limited to

the pecuniary value of his life to his estate; but may be

exemplary, punitive, and given as a solatium.” 22 S.E.

at 87. See also, e.g., Brickman v. Southern Railway, '74

S.C. 306, 54 S.E. 553, 557 (1906) (affirming a jury ver-

dict that included punitive damages for the death of a

railroad employee in a train wreck); cf. Ennis v. Yazoo

& Mississippi Valley Railroad Co., 118 Miss. 509, 79 So.

73, 74-75 (1918) (upholding a jury verdict that appar-

ently included punitive damages for the death of a rail-

road employee—and explicitly approving the jury

instruction authorizing an award of punitive dam-

ages—in a case that was not subject to FELA and was

accordingly governed by pre-FELA law).

* See supra at 7-8 & n.2 (discussing the common-law de-

fenses). Although the contributory-negligence rule could apply in

virtually any context, the assumption-of-the-risk rule was more

likely to apply in the workplace context and the fellow-servant

rule by its nature was a workplace doctrine.

14

f. In any event, the burden is on pe-

titioner to show that an other-

wise generally available remedy

such as punitive damages was

not available in this context.

Even if the availability of punitive damages

against railroads had not been so well-established

prior to FELA, this Court in Townsend put the burden

on the party seeking to deny a traditional common-law

remedy to show that the remedy was unavailable in a

particular context. See 557 U.S. at 414-415, 418. It is

accordingly petitioner's burden to prove that railroad

workers’ cases were an exception to the general rule

permitting punitive damages. The cases discussed and

cited above make it impossible for petitioner to carry

that burden.

B. Congress enacted FELA to expand the

rights and remedies available to in-

jured railroad workers without limit-

ing the rights and remedies previously

available to them.

The third Townsend element—whether FELA pre-

cluded the cause of action or the remedy—requires at-

tention to FELA itself. The statute’s primary purpose

was to expand the negligence action by eliminating the

harsh defenses that so often denied recovery, see supra

at 7-8 & n.2, and by creating a federal wrongful-death

cause of action for railroad workers. Three sections of

the Act accomplish those goals. Section 1, 45 U.S.C.

§ 51, expanded the common law in two ways. It elimi-

nated the fellow-servant rule, which had allowed

15

employers to escape liability “for injuries sustained by

one employee through the negligence of a coemployee,”

S. Rep. No. 60-460, at 1 (1908). And it provided that

railroads engaged in interstate commerce “shall be li-

able in damages .. . , in case of the death of [an injured!

employee, to his or her personal representative.” Sec-

tion 3, 45 U.S.C. §53, modified the contributory-

negligence rule, under which a plaintiff’s negligence

had been a complete bar to recovery, and instead pro-

vided that “damages shall be diminished . . . in propor-

tion to the amount of negligence attributable to [the]

employee.” See, eg., S. Rep. No. 60-460, at 2 (“It is the

purpose of this measure to modify the law of contribu-

tory negligence.”). Finally, section 4, 45 U.S.C. § 54,

eliminated the assumption-of-the-risk rule, which had

allowed employers to avoid liability if the employee

had accepted the job with knowledge of the unsafe

work conditions.°

When enacting FELA to give greater rights and

remedies to injured railroad workers who sued their

employers for negligence, Congress did not intend to

deprive injured workers of any of the rights and reme-

dies that they had already enjoyed under the common

law prior to FELA. The Senate Judiciary Committee

* FELA originally eliminated the assumption-of-the-risk de-

fense only when “the violation . . . of any statute enacted for the

safety of employees contributed to the injury or death of such em-

ployee.” Act of Apr. 22, 1908, ch. 149, § 4, 35 Stat. 65, 66. Then, in

1939, Congress completely eliminated the defense. Act of Aug. 11,

1939, ch. 685, § 1, 53 Stat. 1404, 1404.

16

explained that point emphatically in the course of de-

scribing the proposed 1910 amendments to FELA:

In considering the advisability of amend-

ing [the original FELA of 1908], it is im-

portant at the outset to understand that the

purpose of Congress in the passage of this act

was to extend further protection to employees.

This was its manifest purpose, as is apparent

from a consideration of the circumstances of

its enactment. It is manifest from a consider-

ation of the reports, both of the Senate and

House committees, when the measure was

pending before those bodies prior to its enact-

ment, that the purpose of the statute was to

extend and enlarge the remedy provided by

[the common] law to [railroad] employees. . . .

No purpose or intent on the part of Congress

can be found to limit or to take away from such

an employee any right theretofore existing by

which such employees were entitled to a more

extended remedy than that conferred upon

them by the act.

S. Rep. No. 61-432 (1910), reprinted in 45 Cong. Rec.

4040, 4044 (1910) (emphasis added).

Congress intended not only to provide more com-

pensation to railroad workers but also to “greatly

lessen personal injuries. . . .” H.R. Rep. No. 60-1386, at

2 (1908). During the late nineteenth century, railroad

work was extraordinarily dangerous.® “In 1888 the

® Although conditions have improved, railroad work remains

dangerous. See, e.g., Dino Drudi, Railroad-Related Work Injury

Fatalities, MONTHLY LAB. REV., July/Aug. 2007, at 17 (available

17

odds against a railroad brakeman’s dying a natural

death were almost four to one,” and “the average life

expectancy of a switchman in 1893 was seven years.”

Brotherhood of Railroad Trainmen v. Virginia ex rel.

Virginia State Bar, 377 U.S. 1, 3 (1964). President Ben-

jamin Harrison called it “a reproach to our civilization”

that rail workers were “subjected to a peril of life and

limb as great as that of a soldier in time of war.” John-

son v. Southern Pacific Co., 196 U.S. 1, 19 (1904). Con-

gress accordingly sought to induce railroads “to

exercise the highest degree of care . . . for the safety of

[all employees] in the performance of their duties.”

H.R. Rep. No. 60-1386, at 2. Congress would have rec-

ognized that the threat of punitive damages for egre-

gious misconduct contributed to those goals, for it was

understood then (as now) that one of the purposes of

punitive damages is to “teach the tort feasor the neces-

sity of reform.” McGuire v. The Golden Gate, 16 F. Cas.

141, 143 (No. 8,815) (C.C_N.D. Cal. 1856). The threat of

both punitive and compensatory damages provides a

greater incentive for railroads to operate safely than

would the threat of compensatory damages alone.

It is implausible that Congress, in its effort to pro-

vide incentives for railroads to improve safety stand-

ards, would eliminate sub silentio a well-established

common-law remedy that created a powerful incentive

to improve safety standards. In Exxon Shipping Co.

vu. Baker, 554 U.S. 471, 488-489 (2008), this Court

at http//www.bis.gov/opub/mir/2007/07/art2full_ pdf ) (noting that

railroad industry has “fatal injury rate more than twice the all-

industry rate”).

18

addressed essentially the same situation. When

Exxon—relying on Miles v. Apex Marine Corp., 498 U.S.

19 (1990), and Guevara v. Maritime Overseas Corp., 59

F.3d 1496 (5th Cir. 1995) (en banc)—argued that the

penalties for water pollution under section 311 of the

Clean Water Act, 33 U.S.C. § 1321, displaced its liabil-

ity to pay punitive damages following the Valdez spill,

this Court summarily (and unanimously) rejected the

argument:

[Wle find it too hard to conclude that a statute

expressly geared to protecting “water,” “shore-

lines,” and “natural resources” was intended

to eliminate sub silentio oil companies’ com-

mon law duties to refrain from injuring the

bodies and livelihoods of private individuals.

554 U.S. at 488-489. It is, if anything, even harder to

conclude that FELA, a statute expressly geared to pro-

was intended to eliminate sub silentio the railroads’

corresponding liability to pay punitive damages for the

breach of their common-law duties to refrain from in-

C. This Court has never held that punitive

damages are categorically unavailable

under FELA.

This Court has never addressed the availability of

punitive damages under FELA. Lower courts that

have denied their availability in FELA cases have di-

rectly or indirectly relied primarily on three decisions:

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

19

(1913); American Railroad Co. v. Didricksen, 227 U.S.

145 (1913); and Gulf, Colorado & Santa Fe Railway Co.

v. McGinnis, 228 U.S. 173 (1913).’ None of those cases

involved punitive damages (or even used the words

“punitive” or “exemplary”). Indeed none of them was

even a personal-injury case; all three were wrongful-

death cases in which the analysis turned on the unique

history of wrongful-death statutes.

The Vreeland Court distinguished between sur-

vival and wrongful-death actions, see 227 U.S. at 65-70,

and held that—in a wrongful-death action—the widow

of a railroad worker killed in the railroad’s service

could not recover loss-of-society damages because

wrongful-death statutes historically did not permit

such damages, id. at 70-71.

In Didricksen, decided a week after Vreeland, the

Court again distinguished between survival and

wrongful-death actions, see 227 U.S. at 149, and held

(following Vreeland) that the surviving parents of a

railroad worker fatally injured in the service of the

railroad could not recover loss-of-society damages in

their wrongful-death action, id. at 149-150.

McGinnis (following Vreeland and Didricksen

later in the same Term) held that the non-dependent

child of an engineer killed in a derailment could not

recover compensatory damages in a wrongful-death

action. See 228 U.S. at 174-176. The rationale again

turned on the unique history of wrongful-death

" See, e.g., Wildman, 825 F.2d at 1394; Kozar, 449 F.2d at

1241-42.

20

statutes—a history that has no relevance to whether

injured plaintiffs suing for their own damages may

claim a well-established remedy such as punitive dam-

ages.

The key paragraph in the Vreeland opinion ex-

plained the reasoning on which the subsequent deci-

sions all depended:

The word “pecuniary” did not appear in

Lord Campbell’s Act, nor does it appear in our

act of 1908 [FELA]. But the former act and all

those which follow it have been continuously

interpreted as providing only for compensa-

tion for pecuniary loss or damage.

227 US. at 71. “Lord Campbell’s Act” is the Fatal Acci-

dents Act 1846, 9 & 10 Vict. c. 93 (U.K.), the original

wrongful-death statute in the Anglo-American legal

world that responded to the common law’s failure to

provide a wrongful-death remedy.

Two conclusions follow from the quoted reasoning,

one self-evident and one less obvious. The self-evident

conclusion is that the Vreeland Court based its analy-

sis entirely on the special history of wrongful-death

statutes. It concluded that FELA’s wrongful-death pro-

vision disallowed non-pecuniary damages based solely

on the premise that Lord Campbell’s Act “and all those

which follow it” had disallowed non-pecuniary dam-

ages. The Court said nothing about the remedies avail-

able for non-fatal personal injuries, a field in which a

long history of common-law remedies leads to a very

different analysis.

21

The less obvious conclusion is that the Vreeland

Court must have been addressing only compensatory

damages, and had nothing to say about punitive dam-

ages (even in the wrongful-death context). Because the

underlying premise of the reasoning was that certain

types of damages were unavailable under all of the

state wrongful-death statutes, the Vreeland Court

could only have been referring to those types of dam-

ages that were universally unavailable under state

wrongful-death statutes at the time of the decision.

That category does not include punitive damages,

which were then available in wrongful-death actions

in a number of states.* For example, this Court, less

* In addition to South Carolina, which is discussed in the

text, some of the other states that permitted the recovery of puni-

tive damages under their wrongful-death statutes were Alabama,

see Savannah & Memphis Railroad Co. v. Shearer, 58 Ala. 672,

680 (1877) (affirming a punitivedamages award under the

wrongful-death statute); Arkansas, see St. Louis, Iron Mountain

& Southern Railway Co. v. Roberson, 103 Ark. 361, 146 S.W. 482,

485 (1912) (affirming a punitive-damages award for the death of

a passenger); Kentucky, see Louisville & Nashville Railroad Co.

v. Kelly's Administratriz, 100 Ky. 421, 38 S.W. 852, 854 (1897)

(holding that the law “extend/|ed) the common-law right of action

to recover both compensatory and exemplary damages for {non

fatal] injuries . . . to cases in which death ensued”); Missouri, see

Parsons v. Missouri Pacific Railway Co., 94 Mo. 286, 6 S.W. 464,

468 (1888) (“[T] wo elements of damage are to be considered by the

jury,—compensation ... , and punishment to the wrong-doer

when the circumstances attending the wrongful act, neglect, or

default are such as to warrant it”); Montana, see Olsen v. Mon-

tana Ore Purchasing Co., 35 Mont. 400, 89 P. 731, 734 (1907)

(holding that a general statute authorizing punitive damages ap

plies in an action under the wrongful-death statute); Nevada, see

Benner v. Truckee River General Electric Co., 193 F. 740, 741

(C.C.D. Nev. 1911) (quoting the Nevada wrongful-death statute

22

than three years after its decision in Vreeland, de-

scribed S.C. Civil Code § 3956 (1912) as “a statute in

South Carolina similar to Lord Campbell’s Act.” Sea-

board Air Line Railway v. Koennecke, 239 U.S. 352, 353

(1915). That statute explicitly authorized “the jury [to]

where [the defendant’s] wrongful act, neglect or de-

fault was the result of recklessness, willfulness or ma!-

ice, as they may think proportioned to the injury.” See

also, eg., Brickman, 54 S.E. at 556, 557 (affirming a

jury verdict that included punitive damages under S.C.

Civil Code § 2852 (1902), “the statute commonly

known as ‘Lord Campbell’s Act,’” which was substan-

tially the same as § 3956 in the 1912 Code, for the

death of a railroad employee in a train wreck).

The strongest support that petitioner and its sup-

porting amici could find to bolster their assertion that

this Court has disapproved of punitive damages under

FELA is Koennecke, 239 U.S. at 354.° See Pet. Br. 18;

authorizing an award of “exemplary” damages); South Dakota, see

Moberg v. Scott, 42 S.D. 372, 175 N.W. 559, 561 (1919) (affirming

a punitive damages award under the wrongful-death statute);

Tennessee, see Union Railway Co. v. Carter, 129 Tenn. 459, 166

S.W. 592, 593 (1914) (holding that “exemplary damages .. . are

recoverable in suits founded on |the wrongful-death) statute”),

and West Virginia, see Turner v. Norfolk & Western Railroad Co.,

40 W. Va. 675, 22 S.E. 83, 87 (1895) (affirming a punitive-dam-

ages award for the death of a railroad employee).

°® Petitioner also argues that respondent “recognizes that |pu-

nitive damages} are not available” under the Jones Act because

he “did not even request punitive damages for the Jones Act neg-

ligence claim in his complaint.” Pet. Br. 17 n.3. (Petitioner actu-

ally says that “petitioner” did not request punitive damages, but

23

Inland River Harbor and Fleeting Coalition Br. 6;

Waterways Council Br. 10. The issue in the purportedly

relevant portion of that opinion is whether a state

court violated a defendant's due-process rights when it

permitted a plaintiff to amend her ambiguous com-

plaint in the middle of trial to specify that she was

suing under FELA rather than the state’s wrongful-

death statute. See 239 U.S. at 354. FELA § 1 limits

wrongful-death benefits in some situations to family

members of the deceased railroad employee who were

“dependent upon such employee,” while the state stat-

ute imposed no dependency requirement. On the other

hand, S.C. Civil Code § 3956 (1912), quoted above, ex-

plicitly authorized “exemplary damages,” while FELA

is silent on the availability of punitive or exemplary

damages. The Court explained the ambiguity of the

complaint by reference to those provisions:

If [the complaint] were read as manifestly de-

manding exemplary damages, that would

point to the state law, but the allegation of de-

pendence was relevant only under the act of

Congress.

239 U.S. at 354. Whatever that sentence means, it

cannot be a holding that punitive damages are un-

available under FELA. It is unclear whether the

to say “respondent.”) It is far more likely that respondent recog-

nized only that Kopczynski, 742 F 2d at 560-561, a binding Ninth

Circuit decision, had held that punitive damages are unavailable

under the Jones Act, and made a strategic decision not to seek a

remedy that neither the district court nor a three-judge pane! of

the court of appeals had the power to grant.

24

Koennecke plaintiff even requested punitive or exem-

plary damages; in any event, the availability of puni-

tive damages was not before this Court. The Court may

have meant simply that if the plaintiff had requested

“exemplary damages” it could have suggested reliance

on the state statute that explicitly authorizes “exem-

plary damages” (while saying nothing about whether

they might also be available under FELA). That would

be consistent with the reference to “the allegation of

dependence.” The Court believed that the dependency

reference suggested reliance on FELA because FELA

explicitly requires dependency in some circumstances,

but that does not mean that dependents were barred

from recovery under the state statute."° And even if the

quoted sentence could be read to offer a subtle clue

about the availability of punitive damages under

FELA, it is important to recall that Koennecke was a

wrongful-death case. Any clues that it might provide in

that context would have little relevance in the context

of workers suing to recover for their own injuries.

“ The South Carolina Supreme Court, in the decision that

The allegation of the complaint that deceased left a

widow and four children, who were dependent upon

him, 1s appropriate to an action under the federal stat

ute; and, while the allegation of dependency is not

strictly necessary, it is not wholly inappropriate to an

Koennecke v. Seaboard Air Line Railway, 101 S.C. 86, 85 S_E. 374,

375, aff'd, 239 U.S. 352 (1915).

25

D. Lower courts have erred in holding

that punitive damages are categori-

cally unavailable under FELA.

Because Townsend's three requirements are satis-

fied, injured railroad workers are entitled to seek pu-

nitive damages under FELA. Lower courts’ decisions

to the contrary are simply wrong.

The mistaken interpretation began in the Sixth

Circuit, which vacated a $70,000 punitive-damages

award to the widow of a railroad employee who was

killed when a 40-ton railroad car was negligently

dropped on him. See Kozar, 449 F.2d at 1239. Kozar

was decided before Townsend and Gottshall, so the

Sixth Circuit did not have the benefit of this Court’s

teachings in either of those subsequent cases, and thus

it did not conduct the analysis that would have led it

to the opposite conclusion. Cf. supra at 6-18 (applying

the Townsend analysis to demonstrate why punitive

damages are available under FELA). But even at the

time Kozar was decided, its reasoning was flawed.

The Kozar court’s first reason for rejecting the

punitive-damages award starkly illustrates its incon-

sistency with Townsend. Although it correctly recog-

nized that FELA’s “provisions were not to limit or take

away any ‘remedy’ available at common law to an in-

jured employee,” 449 F.2d at 1240; cf. supra at 14-18,

it nevertheless vacated the district court's punitive

damages judgment because it believed that “the right

to recover punitive damages at common law” was not

“a ‘common law remedy,’” id. That belief is flatly

26

inconsistent with Townsend, in which this Court ex-

plicitly described punitive damages as “an available

remedy at common law,” 557 U.S. at 409; “an available

maritime remedy,” id. at 411, 412 n.2; a “remedy ...

well established before the passage of the Jones Act,”

id. at 420; a “general maritime remedy,” id. at 422; and

“an accepted remedy under general maritime law,” id.

at 424. Simply put, Townsend precludes the argument

that punitive damages are not a “remedy.”

The Kozar court also relied heavily on a misread-

ing of Vreeland, Didricksen, and McGinnis. See supra

at 18-22. As noted, the Vreeland Court was discussing

compensatory damages, not punitive damages. See

supra at 21-22. And even if Vreeland had limited the

availability of punitive damages under FELA’s

wrongful-death provisions—an issue that this Court

never addressed—-the case would still have no rele-

vance to FELA’s provisions governing non-fatal per-

sonal injuries, see supra at 20, and thus no relevance

to this case.

Subsequent decisions denying punitive damages

under FELA rely, either directly or indirectly, on Kozar

and the cases that the Sixth Circuit cited in Kozar. The

Ninth Circuit in Wildman, for example, relied primar-

ily on Kopezynski, 742 F.2d at 560-561, which held that

punitive damages are categorically unavailable under

the Jones Act, and on Kozar. See Wildman, 825 F.2d at

1394-95. Kopezynski, in turn, relied primarily on Vree-

land, McGinnis, and Kozar. See 742 F.2d at 560-561.

27

Two examples from Wildman illustrate the most

blatant inconsistencies with Townsend. First, Wildman

applied the “least common denominator” approach

that Townsend rejects, 557 U.S. at 424, reasoning that

by failing to authorize punitive damages FELA had

silently prohibited them. See Wildman, 825 F.2d at

1394-95. In that regard, Wildman also ignored the

established rule that “‘to abrogate a common-law

principle, a statute must speak directly to the question

addressed by the common law.’” Exxon Shipping, 554

U.S. at 489 (quoting United States v. Texas, 507 US.

529, 534 (1993)); cf Miles, 498 U.S. at 31 (recognizing

Congress’s power when “Congress has spoken directly

to the question”). Second, the Wildman plaintiff (antic-

ipating Townsend) argued “that punitive damages

were available at common law prior to the enactment

of the FELA, and that it was Congress’s expressed in-

tent in enacting the law not to limit any existing rem-

edies,” which meant that punitive damages were still

available. 825 F.2d at 1394. The Wildman court, re-

peating one of Kozar’s mistakes, rejected that argu-

ment because “‘the right to recover punitive damages

at common law’” was not “‘a “common law remedy,”’”

id. (quoting Kozar, 449 F.2d at 1240). See supra at

25-26.

The only other lower-court case that petitioner

cites for the proposition that punitive damages are

unavailable under FELA, see Pet. Br. 17-19 & n.6, is

Miller, 989 F.2d at 1457, a Sixth Circuit wrongful-

death case holding that punitive damages are unavail-

able under the Jones Act on the ground that they are

28

unavailable under FELA. The Miller court, however,

merely cites Kozar with no independent analysis of the

issue. The opinion instead focuses on whether punitive

damages are available under the Jones Act, basing its

reasoning on the (incorrect) assumption that they are

unavailable under FELA. See 989 F.2d at 1457-60.

None of the cited cases are sufficient to justify the

categorical prohibition of punitive damages that peti-

tioner advocates.

Il. Even If Punitive Damages Were Unavaila-

ble Under FELA, They Are Still Available

Under the Jones Act.

Jones Act crewmembers have at least the same

rights that railroad workers have under FELA. But the

FELA-Jones Act linkage is not universally true. This

Court has recognized that FELA’s limitations do not

always constrain crewmembers; in some situations,

they and their families have greater rights. Townsend,

which upheld the right to seek punitive damages for

the “willful and wanton disregard of the maintenance

and cure obligation,” 557 U.S. at 424, offers a particu-

larly relevant example. Injured railroad workers may

not seek punitive damages in that context because

they are not entitled to maintenance and cure in the

first place. Similarly, in Cortes v. Baltimore Insular

Line, Inc., 287 U.S. 367, 374-375 (1932), this Court

held that crewmembers can sue under the Jones Act

for the negligent withholding of maintenance and

cure—even though FELA does not give that right to

railroad workers.

29

The Townsend/Cortes example is not unique. Until

1939, FELA eliminated the assumption-of-the-risk de-

fense only when the violation of a safety statute con-

tributed to the injury or death. See supra at 15 & n.5.

In The Arizona v. Anelich, 298 U.S. 110, 120-123 (1936),

however, this Court recognized that crewmembers

have greater rights under the unseaworthiness doc-

trine, and thus were not subject to the assumption-of-

the-risk defense when an unseaworthy condition con-

tributed to the seaman’s death."' The Court explained:

The |Jones Act] was remedial, for the benefit

and protection of seamen who are peculiarly

the wards of admiralty. Its purpose was to en-

large that protection, not to narrow it. Its pro-

visions ... are to be liberally construed to

attain that end, and are to be interpreted in

harmony with the established doctrine of

maritime law of which it is an integral part.

Id. at 123 (citations omitted). Because maritime law

prior to the Jones Act did not recognize the assumption-

of-the-risk defense in unseaworthiness actions and

“[njo provision of the Jones Act is inconsistent with the

admiralty rule,” this Court would not assume “that

Congress intended, by [the Jones Act's] adoption, to

modify that rule by implication.” Jd. In other words,

FELA establishes a floor for crewmembers, not a

"' Anelich’s status as a fatal-injury case is particularly tell.

ing. The Court explicitly recognized that the plaintiff, as the ad-

ministratrix of the deceased crewmember’s estate, would have

had no cause of action prior to the Jones Act. See 298 U.S. at 118.

But Anelich still held that her rights were not limited by FELA.

See id. at 123-124.

30

ceiling. They are guaranteed at least the rights that

FELA grants to railroad workers, but in some contexts

they have greater rights under maritime law. Assert-

ing rights under the general maritime law’s warranty

of seaworthiness is one example of such a context.

This Court confirmed the principle that FELA

establishes a floor, not a ceiling, in Cox v. Roth, 348 U.S.

207 (1955), which held that the death of an individual

employer does not defeat a Jones Act claim even

though FELA does not provide for the survival of

actions against deceased tortfeasors. The Cox Court

explained:

The Jones Act, in providing that a seaman

should have the same right of action as would

a railroad employee, does not mean that the

very words of the FELA must be lifted bodily

from their context and applied mechanically

to the specific facta of maritime events.

Rather, it means that those contingencies

against which Congress has provided to en-

sure recovery to railroad employees should

also be met in the admiralty setting.

Id. at 209. This Court accordingly rejected the ap-

proach that a plurality opinion of the Fifth Circuit

later adopted in McBride v. Estis Well Service, 768 F.3d

382 (5th Cir. 2014) (en banc), which lifted the word “pe-

cuniary” from Vreeland’s “gloss on FELA” in the

wrongful-death context and applied it mechanically to

the Jones Act personal-injury context. See also Bap-

tiste v. Superior Court, 106 Cal. App. 3d 87, 102, 164

Cal. Rptr. 789, 797 (1980) (“FELA precedents do not

31

constitute a bar to punitive damages in Jones Act

cases” because “the kinship of railway workers and

seamen, as perceived by Congress, should not lead to

overly literal or rigid transplanting of principles from

land to sea.”).

Because nothing in FELA suggests that Congress

intended to deny injured railroad workers the right to

seek punitive damages from a railroad, see supra at

6-28, this case presents a typical situation in which an

injured plaintiff's rights are the same under FELA

and the Jones Act. But even if FELA did prohibit puni-

tive damages, they would still be available under the

Jones Act. Punitive damages are even more firmly es-

tablished in maritime law. Indeed, the general mari-

time law recognized the availability of punitive

damages before the nation even had railroads. See The

Amiable Nancy, 16 U.S. (3 Wheat.) 546, 558 (1818).

32

CONCLUSION

The judgment of the Ninth Circuit should be af-

firmed.

Respectfully submitted,

LYLE C, CAVIN, JR. MICHAEL F. STURLEY

LYLE C. Cavin, Jr. & Counsel of Record

ASSOCIATES 727 E. Dean Keeton St.

428 Alice St., Suite 128 Austin, TX 78705

Oakland, CA 94607 (512) 232-1350

Counsel for Amicus maturley@law.utexas.edu

James Stelpstra JAMES P. JACOBSEN

Sracey & JAconsEN, PLLC

4039 21at Ave. Weat,

Suite 401

Seattle, WA 98199

Counsel for Amicus

Tevrin Narciase

February 19, 2019