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

No. 18-266

Hn the

Supreme Court of the United States

re Oa ee

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 AMICUS CURIAE

THE INLAND RIVER HARBOR

AND FLEETING COALITION

IN SUPPORT OF PETITIONER

NEAL W. SETTERGREN

COUNSEL OF RECORD

GILES B. HOWARD

GOLDSTEIN AND PRICE, L.C.

ONE MEMORIAL DRIVE, SUITE 1000

St. Louis, MO 63102

(314) 516-1700

NEAL@GP-LAW.COM

JANUARY 28, 2019 COUNSEL FOR AMICUS CURIAER

SUPREME COURT PRESS ‘ (#88) 968-6706 + BOSTON, MASSACHUSETTS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .....................cccccceeeeeeeeees iv

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ........0.00..00......-....eeeeeeee 2

ET 5

I. THE NINTH CIRCUIT ERRED IN CONCLUDING

THAT SEAMEN MAY RECOVER PUNITIVE

DAMAGES FOR A BREACH OF THE DUTY OF

a 5

A. Congress Has Limited Seamen’s Tort

Recoveries Under the Jones Act to Pecu-

niary Losses, Which Exclude Punitive

Ea 5

B. Unlike the Maintenance and Cure Claim

in Townsend, There Is No Historical

Tradition of Punitive Damage Awards

for Seamen Injured by Unseaworthy

ERE ce 9

1. The Type of Strict Liability Unsea-

worthiness Claim Brought by

Respondent Did Not Exist When the

Jones Act Was Passed in 1920............ 10

2. Punitive Damages Were Not Histor-

ically Available for Unseaworthiness

el 12

TABLE OF CONTENTS — Continued

Page

C. Tort Claims Under the Jones Act and

for Vessel Unseaworthiness Are “Siamese

Twins” Under the Law and This Court

Should Not Authorize a Remedy for

One That Congress Has Refused for the

a a 16

ll. Tuts Court SAILS IN WATERS ALREADY

CHARTED BY CONGRESS, WHICH CREATED A

UNIFORM SYSTEM OF MARITIME TORT

RECOVERY FOR SEAMEN THAT EXCLUDES

EE EE RR aE 21

A. Congress Has Created a Uniform

System of Tort Recovery for Injured

Maritime Workers That Excludes

IE ciccncnesedntetstdatmiiiidaeeniaes 21

B. Congress Has Occupied the Field of

Vessel Seaworthiness by Enacting a

Comprehensive Federal Scheme to Regu-

late Vessel Safety, and to Deter and

Punish Those Who Operate Unseaworthy

THI scssniieenichenstehthiahitaeeasinertahitniahtamaehdaiitinanians 23

C. Extension of Remedies Beyond Congress's

Uniform Plans for Maritime Tort Law

and Seaworthiness Is Unnecessary to

Deter Unseaworthiness and Will Impair

the Ability of Maritime Parties to Settle

Chelate) TRIIIIIOIT. ...0cccececcccccccccesccsceseceseses 27

TABLE OF CONTENTS — Continued

Page

IIL. ALLOWING SEAMEN TO RECOVER PUNITIVE

DAMAGES FOR UNSEAWORTHINESS WOULD

FORMITY OF MARITIME LAW...................-----++++- 28

A. The Insurability of Punitive Damages

, EE ARISE AR SE pe 29

B. Holding for Respondent Will Create

Unjustifiable Anomalies in General

I a csemaiaiiaiinsitees 31

| ES I SE ae an ee 5 SP aear A 33

iv

TABLE OF AUTHORITIES

Page

CASES

Anthony v. Frith,

394 So.2d 867 (Miss. 1981) .....000...0. 0... ccccccccceeee 30

Atlantic Sounding Co. v. Townsend,

gC passim

Baltimore S.S. Co. v. Phillips,

ERE TS a 11

Batterton v. Dutra Group,

880 F.3d 1089 (th Cir. 2018)... cece 6

Beaver v. Country Mutual Insurance Co.,

420 N.E.2d 1058 (Ill. 1981) ...0..0.......0..cccceeeeee 30

Bergen v. F/V St. Patrick,

816 F.2d 1345 (9th Cir. 1987) ........0.0......c cece 15

Brown v. Maxey,

369 N.W.2d 677 (Wis. 1985)....................00000..... 30

Calmar S.S. Corp. v. Taylor,

I neues 9

Carlisle Packing Co. v. Sandanger,

8 | ER a 12, 14, 15

City of Newport v. Fact Concerts, Inc.,

4 14, 15

Clausen v. Icicle Seafoods, Inc.,

272 P.3d 827 (Wash. 2012)... ....-cccccceeccnees 28

Consolidated Rail Corp. v. Gottshall,

a 25

Continental Ins. Cos. v. Hancock,

507 S.W.2d 146 (Ky. 1973) .................cccccceeeeeees 30

TABLE OF AUTHORITIES—Continued

Page

DeShong v. Mid-States Adjustment, Inc., 876

S.W.2d 5 (Mo. Ct. App. 1994).................cccccccceeee 31

Detroit Trust Co. v. The Thomas Barlum,

RE CN 5

Dooley v. Korean Air Lines Co.,

Ee 22

Exxon Corp. v. Central Gulf Lines, Inc.,

i sseuunounabion 28

Exxon Shipping Co. v. Baker,

EK 15, 30, 33

Fuszek v. Royal King Fisheries,

98 F.3d 514 (th Cir. 1996) ..0000.. 0. eee. 25

General Casualty Co. of America v. Woodby,

238 F.2d 452 (6th Cir. 1956)... 30

Horsley v. Mobil Oil Corp.,

15 F.3d 200 (ist Cir. 1994) ................................ 22

Karvelis v. Constellation Lines S_A.,

806 F.2d 49 (2d Cir. 1986)... eee. 20

Kernan v. American Dredging Co.,

i 25

Lozman v. City of Riviera Beach,

EE FE 9

Magee v. United States Lines, Inc.,

976 F.2d 821 (2d Cir. 1992) ...0000. eee. 20

Mahnich v. Southern SS. Co.,

SS 12, 14

TABLE OF AUTHORITIES—Continued

Page

McAllister v. Magnolia Petroleum Co.,

kG | 10, 19

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

768 F.3d 382 (5th Cir. 2014) (en banc)............... &

McDermott, Inc. v. AmClyde,

ke ns 9, 27

Michigan Central R. Co. v. Vreeland,

a eiaiee 6

Miles v. Apex Marine Corp.,

Ls passim

Miller v. American President Lines, Ltd,

989 F.2d 1450 (6th Cir. 1993) ..................... 22, 23

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

i euueenenasene 13, 15

Mitchell v. Trawler Racer, Inc.

EE 11

Mobil Oil Corp. v. Higginbotham,

A 8

Norfolk & Western Railway Co. v. Hartford

Accident & Indemnity Co.,

420 F. Supp. 92 (N.D. Ind. 1976) ...................... 30

Norfolk Southern R. Co. v. James N. Kirby,

Pty Ltd, 543 U.S. 14 (2004) 00... oocccccccccccccees 28

Pacific S.S. Co. v. Peterson,

Tee 14, 15, 19

Seaboard Air Line Ry. v. Koennecke,

IE ot a 6

TABLE OF AUTHORITIES—Continued

Page

Seas Shipping Co. v. Sieracki,

5 12

Sisson v. Ruby,

A I I as aeciscitemasnnnntnsiionnn 28

Southern Farm Bureau Casualty Insurance

Co. v. Daniel, 440 S.W.2d 582 (Ark. 1969)....... 30

Taylor v. Lloyd’s Underwriters of London,

972 F.2d 666 (5th Cir. 1992) .0000.0.. 0.0... cccccccccceees 29

The Amiable Nancy,

ID ocisiccisncutipneninsinnapesenseainense ean

The Lottawanna,

ERS NT ae mare nee tare a 29

The Osceola,

I 11,13

The Rolph,

293 F. 269 (N.D. Cal. 1923), affd, 299 F.

a cedimimunpeneniaian 17

The Rolph,

I cnet 17

United States Fire Ins. Co. v. Goodyear Tire &

Rubber Co., 920 F.2d 487 (8th Cir. 1990)......... 31

United States v. Rivera,

131 F.3d 222 (ist Cir, 1997) ...0...........cccccccceeeees 26

Usner v. Luckenbach Overseas Corp.,

400 U.S. 494 (1971) .00.......cccccecceeeecceceeeeeeeeees 12, 16

Wilburn Boat Co. v. Fireman’s Fund Ins. Co.,

a csssitulenduabiunl 29

vill

TABLE OF AUTHORITIES—Continued

Page

STATUTES

I cineca rtiatacmadamients 4, 22

CE a PI eS 26

46 U.S.C. §§ $901-3318..................cecececeseceees 24, 25, 26

EEE ee eR ee oa 2

46 U.S.C. §§ S0301—BOBOB ...............cccccsscserscrcsesesees A, 22

Coast Guard and Maritime Transportation

Act. 108 P.L. 293, 118 Stat. 1028...................... 24

REGULATIONS

46 C.F.R. Chapter I,

Subchapter M, Parts 136-144....0....0.0cccccccccccceee 24

OTHER AUTHORITIES

Black’s Law Dictionary (1st ed. 1891).................... 13

Black's Law Dictionary (2d ed. 1910)... 13

Black's Law Dictionary (3d ed. 1933)....................«: 13

G. Gilmore & C. Black,

Law of Admiralty (2d ed. 1975) .................... 20

Marc C. Hebert & Lindsey M. Ajubita,

Managing Liability and Insuring Risk in

the World of Subchapter M: Legal Issues

to Consider and the Obligations of Marine

Operators, 16 LOY. MAR. LJ. 289

RN aie RSS ee 25

TABLE OF AUTHORITIES—Continued

Page

T. Schoenbaum,

Admiralty and Maritime Law

ee 8

United States Coast Guard, Flag State Control

in the United States: 2017 Domestic Annual

Report, https://www.dco.uscg.mil/Portals/9/

DCO%20 Documents/5p/CG-5PC/CG-CVC/

CVC1/AnnualRpt/2017DomesticAnnual

INTEREST OF AMICUS CURIAE!

The Inland River Harbor and Fleeting Coalition

(“The Coalition”) is an association of companies that

operate on the Inland or Western Rivers of the United

States. The Coalition is made up of Evansville Marine

Service, Inc., JB Marine Service, Inc., Osage Marine

Services, Inc., Upper River Services, L.L.C., and Wepfer

Marine, Inc. The Coalition works together to address

certain issues that are common to their segment of

the maritime industry.

Collectively, the companies of The Coalition oper-

ate approximately 100 commercial vessels, which

are crewed by many hundreds of seamen. These

vessels and seamen work regularly in at least nine

states: Arkansas, Illinois, Indiana, Kentucky, Minne-

sota, Missouri, Mississippi, Tennessee, and Wisconsin.

As a whole, the domestic maritime industry moved

873,100,000 short tons of cargo in 2017. The important

work performed by the companies of The Coalition is

one crucial link in America’s network of river trans-

portation. As such, The Coalition is uniquely positioned

to inform this Court about several key aspects of the

legal issue presented in this case.

This is the first time The Coalition has filed an

Amicus Curiae Brief. The Coalition is interested in

the issue before the Court as each of its members are

routinely involved in defending unseaworthiness and

! Pursuant to Rule 37.6, no counsel for any party authored this

brief in whole or in part, and no person or entity other than

amicus curiae made a monetary contribution to the preparation

or submission of this brief Pursuant to Rule 37.2, counsel of

record for all parties have filed a blanket consent to amicus

curiae briefs.

other maritime claims. The stakes of this decision

are enormous for The Coalition and the country’s

entire maritime industry. For the reasons set forth

below, The Coalition supports Petitioner and urges

the Court to reverse the decision of the Ninth Circuit

Court of Appeals.

————

SUMMARY OF ARGUMENT

Respondent asks this Court to permit the recov-

ery of punitive damages for unseaworthiness in con-

travention of the tort recovery system Congress created

for seamen. Doing so requires setting aside this Court’s

precedents and disregarding the policy judgments of

Congress. Moreover, affirming the Ninth Circuit's

decision will create several anomalies harmful to the

constitutionally-mandated uniformity of maritime

law.

In 1920, Congress enacted the Jones Act, 46 U.S.C.

§ 30104, which authorized seamen to recover against

their employers for negligence. A seaman’s recovery

for negligence under the Jones Act is limited to pecu-

niary losses. In 1990, this Court held that the Jones

Act’s bar on the recovery of non-pecuniary damages in

a seaman’s negligence action meant that the recovery

of non-pecuniary damages was similarly barred in an

unseaworthiness suit for a seaman’s wrongful death.

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

Miles, a unanimous Court reasoned that it would be

inconsistent with the Court’s Constitutional role to

sanction a more expansive remedy for the judicially-

created cause of action for unseaworthiness than the

remedies Congress had sanctioned in the Jones Act.

Under Miles, Respondent should likewise be barred

from recovering punitive damages for unseaworthi-

ness.

The Supreme Court's 2009 decision in At/antic

Sounding Co. v. Townsend, 557 U.S. 404 (2009) is dis-

tinguishable and does not change the outcome dictated

by Miles and this Court's pre-Mi/es unseaworthiness

decisions. In Townsend, the Court held that punitive

damages were an available remedy to seamen for an

employer's willful failure to pay maintenance and

cure. However, such claims are contractual obligations

arising out of a seaman’s employment. In authorizing

this remedy, the Court reasoned that both the claim

(maintenance and cure) and remedy sought (punitive

damages) were well-established in the law when the

Jones Act was enacted in 1920. The same cannot be

said of Respondent’s unseaworthiness claim. To the

contrary, the strict liability unseaworthiness claim

asserted by Respondent sounds in tort and was first

recognized after 1920. Unseaworthiness previously

referred to a fault-based claim concerning whether the

shipowner exercised due diligence. This Court has

repeatedly held—both before and after 1920—that the

remedy for a breach of the duty of seaworthiness is

compensatory damages. This Court has never approved

punitive damages for a breach of the duty of sea-

worthiness and, applying the rationale of Miles and

Townsend, it should not do so now.

Congress’s policy decision against the availabil-

ity of punitive and other non-pecuniary damages for

maritime workers is evident in the ordered system of

tort recovery that Congress created in three statutes

in the 1920s: The Jones Act, the Death on the High

Seas Act (DOHSA), 46 U.S.C. §§ 30301-30308, and the

Longshore and Harbor Workers Compensation Act, 33

U.S.C. §§ 901-950. Together, these three statutes gov-

ern the statutory tort remedies available to maritime

workers. None of these statutes permit the recovery

of punitive damages. Congress has further occupied

this field by comprehensively regulating vessel seawor-

thiness through a system of inspections and certifica-

tions for most commercial vessels. This Court’s prece-

dents caution against the creation of more expansive

remedies for judge-made general maritime claims

than statutory claims. In addition, punitive damages

are not a necessary remedy for unseaworthiness since

vessels are already thoroughly regulated by Congress

and operators have strong financial incentives to

avoid unseaworthy vessels. Moreover, unseaworthi-

ness and negligence are “Siamese Twins” in maritime

law. This Court should not recognize punitive damages

as a remedy for unseaworthiness when Congress has

made a policy decision against such damages for its

“Siamese Twin” (Jones Act negligence).

A ruling in Respondent's favor would undermine

a fundamental purpose of maritime jurisdiction: the

fostering of a uniform maritime law whose nation-

wide predictability encourages and safeguards mari-

time commerce. The holding below introduces several

harmful anomalies into maritime tort law. First,

because no federal maritime law rule governs the

insurability of punitive damages and because not all

states allow punitive damages to be covered by insur-

ance, vessel operators and their insurers would be

confronted with an unequal patchwork of varying state

laws that will disrupt interstate commerce. Second, if

5

this Court overrules Miles in holding for Respondent,

the availability of punitive damages for a seaman’s

wrongful death on the high seas (covered exclusively

by DOHSA) would depend on an arbitrary geographic

test whether the seaman was more or less than three

nautical miles away from the Coast. Third, if this Court

does not overrule Miles but instead limits the holding

in Miles to wrongful death, a seaman’s unseaworthi-

ness claim for personal injury would inexplicably per-

mit greater recovery than a wrongful death claim

arising out of the same unseaworthy condition. This

Court should stand by the uniform rule set forth in

Miles and avoid the creation of these anomalies in

the maritime law.

—_——_@—__

ARGUMENT

I. Tae NINTH CrRcurT ERRED IN CONCLUDING THAT

SEAMEN MAY RECOVER PUNITIVE DAMAGES FOR A

BREACH OF THE DUTY OF SEAWORTHINESS.

A. Congress Has Limited Seamen’s Tort Recov-

eries Under the Jones Act to Pecuniary Losses,

Which Exclude Punitive Damages.

Congress “has paramount power to determine the

maritime law which shall prevail throughout the

country.” Detroit Trust Co. v. The Thomas Barlum, 293

U.S. 21, 43 (1934). In passing the Jones Act in 1920,

Congress extended to seamen the same claim and

remedy that were available to railroad workers under

the Federal Employers Liability Act (FELA). Under

both the FELA and the Jones Act, it is settled that

the remedy Congress provided is limited to recovering

“pecuniary” losses. Michigan Central R. Co. v. Vree-

land, 227 U.S. 59 (1913); Miles, 498 U.S. 19, 32 (1990).

Congress’s choice to exclude recovery of non-pecuni-

ary losses under the Jones Act supports a similar

prohibition against recovering punitive damages for

Because punitive damages are not pecuniary in

nature, the law has barred their recovery under both

the FELA and the Jones Act. Seaboard Air Line Ry.

v. Koennecke, 239 U.S. 352, 354 (1915) (a complaint

requesting punitive damages points to state law

rather than the FELA as the basis for the claim); Miles,

498 U.S. at 32 “Incorporating FELA unaltered into the

Jones Act, Congress must have intended to incorporate

the pecuniary limitation on damages as well.”).

This Court has never approved an award of

punitive damages for an injury or death under the

Jones Act or the FELA. The Ninth Circuit’s decision

below acknowledges that punitive damages are unavail-

able under the Jones Act. Batterton v. Dutra Group, 880

F.3d 1089, 1092 (9th Cir. 2018) (“‘Iplunitive damages

are non-pecuniary and so are not allowable under the

Jones Act”) (quoting Kopczynski v. The Jacqueline,

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

In 1990, this Court addressed whether two cate-

gories of non-pecuniary damages—loss of society and

lost future earnings—could be recovered under gen-

eral maritime law for the death of a seaman caused by

unseaworthiness.2 To answer these questions, the

2 The district court had already dismissed the seaman’s claim

for punitive damages. Miles, 498 U.S. at 22.

Court was guided by the Jones Act’s pecuniary limi-

tation on damages, noting.

We no longer live in an era when seamen

and their loved ones must look primarily to

the courts as a source of substantive legal

protection from injury and death; Congress

and the States have legislated extensively

in these areas. In this era, an admiralty court

should look primarily to these legislative

enactments for policy guidance. We may

supplement these statutory remedies where

doing so would achieve uniform vindication

of such policies consistent with our constitu-

tional mandate, but we must also keep strictly

within the limits imposed by Congress. Con-

gress retains superior authority in these

matters, and an admiralty court must be

vigilant not to overstep the well-considered

boundaries imposed by federal legislation.

Miles, 498 U.S. at 27.

Because the Jones Act limits recovery to pecuniary

damages, this Court unanimously held that loss of

society was unavailable in a general maritime law

unseaworthiness claim for wrongful death. /d. at 32-

33. On this point, the Court reasoned:

It would be inconsistent with our place in

the constitutional scheme were we to sanc-

tion more expansive remedies in a judicially

created cause of action in which liability is

without fault than Congress has allowed in

cases of death resulting from negligence.

Id. at 32-33; see also Mobil Oil Corp. v. Higginbotham,

436 U.S. 618, 623 (1978) (there is no occasion to

supplement maritime damages when “Congress has

struck the balance for us”).3

Miles similarly barred recovery for lost future

earnings since allowing such a recovery would go “well

beyond the limits of Congress’ ordered system of

recovery for seamen’s injury and death.” 498 U.S. at

36. Because Miles’ representative could not recover

for his lost future earnings under the Jones Act, this

Court held the representative could likewise not do

so under the general maritime law. /d.

Despite the Jones Act’s bar on recovering non-

pecuniary damages and this Court’s decision in Miles,

the Ninth Circuit authorized Respondent to seek

recovery of punitive damages for unseaworthiness.

The Ninth Circuit's decision cannot be reconciled

with this Court’s rulings in Miles. See 1 T. Schoen-

baum, Admiralty and Maritime Law § 5:10 (6th ed.

2019) (“Thus, it appears that Miles applies to exclude

apply equally to non-fatal claims as well See also McBride v.

neem ge. 768 F.3d 382, 388 (5th Cir. 2014) (en

has suggested why [Miles’] holding and

not apply to an injury case”). A contrary rule

pa lynn = apn f= pen of dragon ob aa

would allow recovery for more categories of damages

than a death claim. McBride, 768 F.3d 382.

23

[the Court’s 2009 decision in] Townsend? The answer

to this question is yes, on several grounds.”).4

B. Unlike the Maintenance and Cure Claim in

Townsend, There Is No Historical Tradition

of Punitive Damage Awards for Seamen

Injured by Unseaworthy Conditions.

Nineteen years after Miles, this Court decided

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

(2009), which held that seamen could recover punitive

damages for an employer's willful failure to pay

“maintenance and cure” under general maritime law.

Maintenance and cure refer to the no-fault system for

seamen to receive curative medical care and a daily

living allowance while recuperating from an injury or

illness that arises while in service to a vessel. 557

U.S. at 407-08. Maintenance and cure claims arise

from a seaman’s employment, are contractual in nature,

and are distinct from tort claims. See Calmar S_S.

Corp. v. Taylor, 303 U.S. 525, 527-28 (1938). Important-

ly, the decision in Townsend noted that the “reasoning

of Miles remains sound.” 557 U.S. at 420.

In explaining its decision in Townsend, the Court

examined the history of the obligation to provide

maintenance and cure to seamen, which “dates back

centuries as an aspect of general maritime law’ and

was first recognized in American maritime law “in

4 This Court regularly cites to Schoenbaum’s treatise on Admiralty

and Maritime Law in its maritime decisions. See, e.g, Lozman

v. City of Riviera Beach, 568 U.S. 115 (2013); McDermott, Inc.

v. AmClyde, 511 U.S. 202 (1994). Townsend is compatible with

the applicable holdings of Miles for reasons that are discussed

in Sections I.B and I.C, infra.

10

two lower court decisions authored by Justice Story”

in 1823 and 1832. 557 U.S. at 413. The Court rea-

soned that the general maritime claim at issue in

Townsend (maintenance and cure) and the remedy

sought (punitive damages) were both well-estab-

lished before the passage of the Jones Act in 1920. /d.

at 420. Neither part of that proposition, however, is

true for unseaworthiness claims. Unlike in Townsend,

Congress could not have been “envisioning the con-

tinued availability” of Respondent’s unseaworthiness

claim seeking punitive damages since neither the

claim (strict liability unseaworthiness) nor the remedy

(punitive damages) existed when the Jones Act was

passed in 1920. /d@. at 416.

1. The Type of Strict Liability Unseawor-

thiness Claim Brought by Respondent

Did Not Exist When the Jones Act Was

Passed in 1920.

The Court in Townsend cautioned that the three

primary maritime claims for injury or death of a sea-

man—negligence, unseaworthiness, and mainten-

ance and cure—are not necessarily interchangeable

due to each one’s own unique development:

As this Court has repeatedly explained,

“remedies for negligence, unseaworthiness,

and maintenance and cure have different

origins and may on occasion call for appli-

cation of slightly different principles and

procedures.”

557 U.S. at 423 (quoting Fitzgerald v. United States

Lines Co., 374 US. 16 (1963)); see also McAllister v.

1]

Magnolia Petroleum Co., 357 U.S. 221, 224—25 (1958),

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

Like in Miles, this case concerns a claim for

unseaworthiness. Different from the maintenance and

cure claim at issue in Townsend, a seaman’s ability

to recover for personal injury through unseaworthiness

is not centuries-old, but instead arose in “the late

nineteenth century.” Mitchell v. Trawler Racer, Inc.

362 U.S. 539, 544 (1960). At its inception, a seaman

could not recover for unseaworthiness on the basis of

strict liability, but could only recover if he was

“injured in the service of a ship as a consequence of

the owner’s failure to exercise due diligence.” /d. This

Court first recognized such a recovery for unseawor-

thiness in The Osceola5, when it held “[t}hat the

vessel and her owner are ... liable to an indemnity for

injuries received by seamen in consequence of the

unseaworthiness of the ship, or a failure to supply

and keep in order the proper appliances appurtenant

to the ship.” 189 U.S. 158, 175 (1903).6 Such was the

state of a general maritime law claim for

unseaworthiness at the time Congress promulgated

the Jones Act.

5 The Osceola denied seamen a claim for negligence, which

prompted Congress, 17 years later, to enact the Jones Act to pro-

vide seamen with a statutory tort recovery for injury or death

due to their employer's negligence. Townsend, 557 U.S. at 415.

6 As the majority in Mitchell recognized, the decisions of this

Court following The Osceola suggest that the import of the

enunciation of the unseaworthiness doctrine in The Osceola

“was not to broaden the shipowner’s liability, but, rather, to

limit liability for negligence to those situations where his negli-

gence resulted in the vessel's unseaworthiness.” Mitchell, 362

U.S. at 546.

12

In contrast, the modern claim for unseaworthi-

ness being pursued by Respondent is a strict liability

claim that has its “humble origin as a dictum in an

obscure case in 1922”—two years after passage of the

Jones Act. Usner v. Luckenbach Overseas Corp., 400

U.S. 494, 496-97 (1971) (citing Carlisle Packing Co. v.

Sandanger, 259 U.S. 255, 259 (1922)). It was not until

1944, more than two decades after passage of the

Jones Act, that the dictum in Carlisle Packing Co.

became authoritative and this Court, in MaAnich v.

Southern S.S. Co., held “the exercise of due diligence

does not relieve the owner of his obligation to the

seaman to furnish adequate appliances... .” 321 U.S.

96, 100 (1944). As the Miles Court recognized, this

transformation of unseaworthiness in the 1940s into

“a species of liability without fault”? constituted a

“radical change” in the general maritime law. Miles,

498 U.S. at 25. When the Jones Act was passed in

1920, the concept of unseaworthiness bore almost no

resemblance to the claim being asserted by Respondent

here.

2. Punitive Damages Were Not Historically

Available for Unseaworthiness Claims.

Just as Respondent’s strict liability unseaworthi-

ness claim did not exist when the Jones Act was

enacted, the remedy Respondent seeks (punitive dam-

ages) did not exist as a remedy for violating the duty

of seaworthiness in 1920 or before. To the contrary,

this Court repeatedly has recognized compensatory

damages as the remedy for a breach of the duty of

seaworthiness. Neither the district court nor the

7 Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95 (1946).

13

Ninth Circuit below cited a single pre~Jones Act case

awarding punitive damages for unseaworthiness.

This telling omission demonstrates the lack of his-

torical legal authority supporting Respondent's argu-

ment. This Court’s precedents before and after the

passage of the Jones Act demonstrate that compen-

satory damages were the remedy for unseaworthi-

ness.

In 1903, the Court held that a seaman could not

recover an “indemnity” for negligence, but could recover

an “indemnity” for unseaworthiness. 7he Osceola, 189

U.S. at 175. The meaning of an “indemnity” in this

context is significant because it demonstrates that

the remedy for unseaworthiness contemplated by the

Court before the Jones Act was compensatory damages.

According to the first three editions of Black’s Law

Dictionary (1891, 1910, and 1933), the term “indem-

nity” was, at this time, “used to denote a compensation

given to make the person whole from a loss already

sustained”. Black's Law Dictionary 614 (ist ed.

1891); Black’s Law Dictionary 616 (2d ed. 1910):

Black’s Law Dictionary 949 (3d ed. 1933); see also

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

489, 493-94 (1875) (exemplary/punitive damages

went beyond the limit of indemnity). Accordingly, the

remedy, or “indemnity”, referred to in The Osceola

was one of compensatory damages.

In the decade immediately following passage of

the Jones Act, this Court twice more made explicit

that the remedy for unseaworthiness was an “indem-

nity” for compensatory damages. In Pacific Steam-

ship Co. v. Peterson, the Court determined, first, that

a seaman’s right to maintenance, cure, and wages

14

was independent of a seaman’s rights under the Jones

Act; these two rights being “consistent and cumulative.”

278 U.S. 130, 138 (1928) (emphasis added). Second,

the Court in Pacific Steamship held that seamen

could still elect to pursue an alternative right to

recovery for unseaworthiness. /d. at 138-39. In reaching

this second conclusion, the Court remarked that

seamen were entitled only to compensatory damages

under either the Jones Act or unseaworthiness:

[W]hether or not the seaman’s injuries were

occasioned by the unseaworthiness of the

vessel or by the negligence of the master or

members of the crew, or both combined,

there is but a single wrongful invasion of his

primary right of bodily safety and but a

single legal wrong, for which he is entitled to

but one indemnity by way of compensatory

damages.

278 U.S. at 138 (citation omitted); see also Carlisle

Packing Co., 259 U.S. at 259 (if one of the crew was

injured as the direct result of unseaworthiness, “he

was entitled to recover compensatory damage”) (cita-

tions omitted).8

“Punitive damages by definition are not intended

to compensate the injured party, but rather to punish

the tortfeasor whose wrongful action was intentional

or malicious, and to deter him and others from similar

extreme conduct.” City of Newport v. Fact Concerts,

8 Keven when the Court, in 1944, explicitly altered unseaworthiness

to make it a strict liability claim, the remedy remained an

“indemnity.” Mahnich, 321 U.S. at 97-99.

15

Inc., 453 U.S. 247, 266-67 (1981).9 Never once does

the Court mention punitive damages in Milwaukee &

St. Paul Railway, Carlisle Packing Co, Pacific Steam-

Ship Co, Mahnich, Usner, or any other decision as a

remedy for unseaworthiness.!0 Instead, the Court con-

sistently spoke, both before and after the enactment of

the Jc\es Act, of the remedy for unseaworthiness as

being an indemnity for compensatory damages.

In sum, Jownsend is distinguishable because

neither Respondent's unseaworthiness claim nor the

remedy of punitive damages he seeks were well-

established when the Jones Act was passed.!! This is

notably different from the ancient maintenance and

cure claim at issue in 7ownsend. Precedent demon-

strates that Respondent's unseaworthiness claim

was first hinted at in dictum by this Court in a 1922

decision and did not realize its final transformation

9 The issue presented in this appeal is whether a claim may be

stated to recover punitive damages for unseaworthiness under

the general maritime law. If the Court answers that question in

the affirmative, the next question is: what standard of proof will

be required for such a recovery? In the event the Court addresses

the second question, The Coalition submits that the standard of

intentional or malicious misconduct from City of Newport should

be the required quantum of proof. 453 U.S. at 266-67.

10 The Ninth Circuit's decision below acknowledges that punitive

damages are not compensatory damages. 880 F.3d at 1094; see

also Exxon Shipping Co. v. Baker, 554 U.S. 471, 492-93 (2008)

(punitive damages are aimed not at compensation).

11 Even the Ninth Circuit, as recently as 1987, concluded that

the availability of punitive damages for unseaworthiness was

not well-established. Bergen v. F/V St. Patrick, 816 F.2d 1345,

1347 n.1 (9th Cir. 1987) (“‘lwlhether or when punitive damages

are available under the general maritime law is not entirely clear.”).

16

into a strict liability claim until 1944 in MaAnich.

Usner, 400 U.S. at 496-97. Moreover, the remedy for

the “relatively little used” claim of unseaworthiness

was—hboth before and after the Jones Act was

passed—compensatory damages (ie. an “indemnity”),

not punitive damages. Miles, 498 U.S. at 25 (cita-

tions omitted).

C. Tort Claims Under the Jones Act and for

Vessel Unseaworthiness Are “Siamese Twins”

Under the Law and This Court Should Not

Authorize a Remedy for One That Congress

Has Refused for the Other.

Unlike maintenance and cure—which are con-

tractual obligations arising out of a seaman’s employ-

ment—-unseaworthiness is a tort claim that, as

explained in Pacific Shipping, provides the same

compensatory remedy as a negligence claim under

the Jones Act. Although the Ninth Circuit below ack-

nowledged that it was Miles, and not 7ownsend, that

involved an unseaworthiness claim, it nonetheless con-

cluded there was no persuasive reason to distinguish

maintenance and cure actions from unseaworthiness

actions. The Coalition submits that the Ninth Circuit

is incorrect.

None of the general maritime law cases cited by

the Court in 7ownsend addressed the availability of

punitive damages for unseaworthiness.!2 In his brief

12 The case cited in Townsend on the more general subject of

punitive damages in maritime law was The Amiable Nancy, \6

U.S. 546 (1818). That case was a marine trespass case in which

members of the crew of the Scourge, a privateer owned by the

defendants, boarded and plundered the Amiable Nancy. 16 U.S.

at £47-48. While the Court recognized that exemplary damages

17

in opposition to the petition for writ of certiorari in

this case, Respondent alleged that “evidence points to

the availability of punitive damages in pre-Jones Act

unseaworthiness cases” and identified three cases as

supporting this proposition. Brief for Respondent in

Opposition at 16, Dutra Group v. Batterton, No. 18-

266. But two of the cases relied on by Respondent are

not unseaworthiness cases at all and the other

neither awarded punitive damages nor pre-dated the

Jones Act.13

might be available against those who perpetrated this intentional

act of piracy, it also held that exemplary damages were unavail-

able against the Scourge’s owners who did not participate in or

countenance the trespass. /d. at 558-59. The Court in Townsend

also cited The City of Carliale, 39 F. 807 (DC Ore. 1889) and

The Troop, 118 F. 769 (D.C. Wash. 1902) as maintenance and

cure cases where “the failure of a vessel owner to provide proper

medical care for seamen has provided the impetus for damages

awards that appear to contain at least some punitive element.”

557 U.S. at 414.

13 Respondent relies on The Rolph, 293 ¥. 269 (N.D. Cal. 1923),

aff'd, 299 F. 52 (C.A.9 1924), The Troop, 118 F. 769 (D. Wash.

1902), affd, 128 F. 856 (9th Cir. 1904), and The City of Carliale,

39 F. 807 (D. Ore. 1889). Brief for Respondent in Opposition at

16 1.6, Dutra Group v. Batterton, No. 18-266. Of these three,

The Rolph is the only case where the court found that the vessel

in question was unseaworthy. 293 F. at 272. That case does not,

however, address (or even mention) punitive damages. Moreover,

it post-dates the Jones Act and therefore should not serve as

evidence of what Congress understood the maritime law to be in

1920. Nothing in the opinion suggests that the award in The

Rolph was for anything but compensatory damages. Notably,

the district court quoted The Osceola's language regarding indem-

nity and the Ninth Circuit, in affirming, phrased the question

presented as “whether the vessel can be held liable to an indemnity

for injuries... .” The Rolph, 293 F. at 272; The Rolph, 299 ¥F. 52,

54 (C.A.9 1924). As noted above, 7ownsend recognized The City

18

In addition to the significant historical differ-

ences between claims for unseaworthiness and for

maintenance and cure, 7ownsend expressly states

that “[t}he reasoning of Miles remains sound.” 557

U.S. at 420. Accordingly, any suggestion that Miles has

been weakened or abrogated by Townsend should be

rejected. Unlike 7ownsend, Miles’ holding directly bar-

red non-pecuniary remedies for unseaworthiness claims

under general maritime law. Therefore, Miles cannot

be fairly squared with the Ninth Circuit's decision

below. If this Court extends Townsends holding to

allow punitive damages in unseaworthiness claims,

the holding and rationale of Miles will be under-

mined or abrogated altogether. To maintain the

holdings of both Miles and Townsend, this Court should

conclude that Respondent's unseaworthiness claim

seeking punitive damages is barred under Miles and

is distinguishable from Townsend on at least two

grounds. First, 7ownsend involved a non-tort claim

for maintenance and cure. Second, 7ownsce id involved

a claim and remedy that were well-established in the

law prior to the Jones Act, which cannot be said of

Respondent's unseaworthiness claim seeking punitive

damages.

Claims for negligence and unseaworthiness, while

legally distinct, are nonetheless too closely related in

the law to have different remedies:

of Carlisle and The Troop as instances where punitive damages

appeared to have been awarded for the violation of the duty to

provide maintenance and cure. Neither The Troop nor The City

of Carlisle mention unseaworthiness and both were, as recog-

nized in Townsend, instances where the courts applied the law

of maintenance and cure.

19

When a seaman is injured, he has three

means of recovery against his employer: (1)

maintenance and cure, (2) negligence under

the Jones Act, and (3) unseaworthiness.

Without elaborating on the nature of these

three actions, it is sufficient to say that they

are so varied in their elements of proof, type

of defenses, and extent of recovery that a

seaman will rarely forego his right to sue for

all three. But if the seaman is to sue for

both unseaworthiness and Jones Act negli-

gence, he must do so in a single proceeding.

That is a consequence of this Court’s deci-

sion in Baltimore S.S. Co. v. Phillips, 274

U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, which

held that these claims were but alternative

‘grounds’ of recovery for a single cause of

action.

McAllister, 357 U.S. at 224-25; see also Pacific Steam-

ship, 278 U.S. at 138. Legal scholars have also explained

that the two claims (negligence and unseaworthiness)

are “Siamese Twins” under the law. A leading treatise

on admiralty and maritime law, describes the rela-

tionship between the two claims, as follows:

The Jones Act count and the unseaworthi-

ness count overlap completely: they derive

from the same accident and look toward the

same recovery. As a matter of jurisprudential

elegance or even of common sense it would

have been desirable (and would still be desi-

rable) to abandon the cumbersome fiction that

two causes of action are involved and to

restate the seaman’s cause of action for death

20

or injury as being what it is. That has not

been done and, in all probability, will never

be done. After ten or fifteen years of confusion,

the admiralty lawyers and the admiralty

judges came to understand that the Jones

Act count and the unseaworthiness count

are Siamese Twins.

G. Gilmore & C. Black, Law of Admiralty § 6-38, p. 383

(2d ed. 1975)14; see also Magee v. United States

Lines, Inc., 976 F.2d 821, 823 (2d Cir. 1992); Karvelis

v. Constellation Lines S_A., 806 F.2d 49, 51-52 (2d Cir.

1986). This “Siamese Twins” analogy aptly describes

Respondent’s injury claims, which involve allegations

of both an unseaworthy condition and his employer's

negligence arising from the same operative facts. His

claims for unseaworthiness and negligence truly are

but “a single cause of action” that should not have

different legal remedies.

For more than 100 years, this Court has repeatedly

stressed that uniformity is an overriding goal in

establishing maritime law. Miles, 498 U.S. at 33; 1

Schoenbaum, Admiralty & Maritime Law § 5.10 (6th ed.

2018) (“The reasoning of Miles rests on two ideas,

that the courts should not create damage awards that

go beyond those mandated by applicable statutes; and

that uniformity is an overriding goal in maritime

law”). This arises from the constitutionally-based

principle that federal maritime law should be a system

14 This Court regularly cites to Gilmore and Black’s treatise for

principles of admiralty and maritime law. See, e.g Townsend, 557

U.S. 404; Miles, 498 U.S. 19.

21

of law coextensive with, and operating uniformly in,

the whole country.

Permitting the recovery of punitive damages for

an unseaworthiness claim while Congress has barred

such a recovery for its “Siamese Twin” claim of negli-

gence would undermine the uniformity that the law

strives to achieve in maritime matters.

Il. Tas Court SAILS IN WATERS ALREADY CHARTED

BY CONGRESS, WHICH CREATED A UNIFORM SYSTEM

OF MARITIME TORT RECOVERY FOR SEAMEN THAT

EXCLUDES PUNITIVE DAMAGES.

Tort recovery for injured seamen and vessel

seaworthiness are both areas of law exhaustively

regulated by Congress. This is another important dis-

tinction from the contractual maintenance and cure

claim at issue in JVownsend. In only two limited

instances during the past 200 years has Congress

enacted laws about maintenance and cure. 7ownsend,

557 U.S. at 415-17 (Congress has only addressed

maintenance and cure issues in the context of: (1)

foreign workers on offshore oil and mineral produc-

tion facilities and (2) sailing school students and

instructors). The same, however, cannot be said for

either tort recovery for maritime workers or vessel

seaworthiness issues. As discussed below, Congress

has legislated expansively about both subjects.

A. Congress Has Created a Uniform System of

Tort Recovery for Injured Maritime Workers

That Excludes Punitive Damages.

While Congress has largely refrained from legis-

lating regarding seamen’s ancient contractual rights

22

to maintenance and cure, it has legislated broadly

concerning tort recovery for injuries and death of

maritime workers. Congress has enacted an “ordered

system of recovery for seaman’s injury and death.”

Miles, 498 U.S. at 36.

In 1920, Congress enacted the Jones Act to pro-

vide seamen with a negligence claim against their

employers for injury or death. Remedies available

under the Jones Act are limited to pecuniary losses.

Miles, supra. That same year, Congress enacted the

Death on the High Seas Act (DOHSA). 46 U.S.C.

§§ 30301-30308. DOHSA created a claim for ary person

(including seamen) killed on the high seas, which are

defined as beyond three nautical miles from shore.

Id. When applicable, DOHSA is the exclusive remedy;

liability may be based on negligence, unseaworthiness

(for seamen), intentional conduct, or products liability

law.15 The measure of recovery under DOHSA is

statutorily limited to pecuniary loss. 46 U.S.C. § 30303;

Dooley v. Korean Air Lines Co., 524 U.S. 116, 122

(1998); Horsley v. Mobil Oil Corp., 15 F.3d 200, 201

(1st Cir. 1994) (DOHSA only permits recovery of dam-

ages for pecuniary loss); Miller v. American President

Lines, Ltd., 989 F.2d 1450, 1457 n.3 (6th Cir. 1993).

In 1927, Congress passed the Longshore and

Harbor Workers Compensation Act, 33 U.S.C. § 901-

15 Upholding the Ninth Circuit’s decision would also create the

troubling anomaly that seamen who are fatally injured due to a

willful breach of the duty of seaworthiness on the high seas

(within DOHSA’s coverage) would be barred from recovering

punitive damages, while seamen who are killed closer to shore

(outside DOHSA’s coverage) would be permitted such recovery.

See Section II1.B, infra.

23

950. The Longshore Act generally provides maritime

workers who do not qualify as seamen with both injury

and death benefits payable by their employers. Similar

to state workers’ compensation laws, the Longshore

Act does not permit maritime workers to recover against

their employers for punitive damages. Miller, 989

F.2d at 1457.

In summary, all three of the major Congression-

al enactments in the area of maritime tort recovery

for injury and death demonstrate that Congress has

made a policy determination against allowing mari-

time workers to recover punitive damages. Miller,

989 F.2d 1450. This Court should not permit the

uniform policy judgments reflected in these Congres-

sional enactments to be circumvented by allowing

seamen to recover punitive damages for a judicially-

created general maritime law unseaworthiness claim,

especially when such a claim did not exist in its pre-

sent form when Congress enacted the laws. Miles, 498

U.S. at 27 (admiralty courts should look primarily to

Congress’s legislative enactments for policy guidance).

B. Congress Has Occupied the Field of Vessel

Seaworthiness by Enacting a Comprehensive

Federal Scheme to Regulate Vessel Safety,

and to Deter and Punish Those Who Operate

Unseaworthy Vessels.

In addition to the pecuniary limit it placed on

tort remedies for injured maritime workers, Congress

has also legislated exhaustively in the area of vessel

seaworthiness and safety standards. Townsend, 557

U.S. at 420 (“Congress and the States have legislated

extensively in these areas.”); see also Miles, 498 U.S.

at 27. As shown below, Congress has enacted a system

24

of laws to address vessel seaworthiness, which

includes civil and criminal penalties to deter and

punish those who operate unseaworthy vessels.

Because Congress has so comprehensively regulated

vessel seaworthiness issues, this Court should not

create a new means of punishment and deterrence in

the form of punitive damages.

Congressional regulation of the shipping industry

is far-reaching and includes a comprehensive safety

and inspection protocol for vessels. 46 U.S.C. §§ 3301-

3318; see also United States Coast Guard, Flag State

Control in the United States 2017 Domestic Annual

Report, https://www.dco. uscg.mil/Portals/9/DCO%20

Documents/5p/CG-5PC/CG-CVC/CVC 1/AnnualRpt/

2017DomesticAnnualReport.pdf (documenting 18,424

Coast Guard inspections on 12,189 U.S. flag vessels).

The scope of federal regulations governing vessel

seaworthiness issues continues to grow. By way of

example, in 2004, Congress passed the Coast Guard

and Maritime Transportation Act. 108 P.L. 293, 118

Stat. 1028. This statute sought to enhance vessel sea-

worthiness of towing vessels, including those operated

by members of The Coalition, through a stringent (and

mandatory) system of vessel inspections and uniform

safety standards. This Act began a more-than-decade-

long process of rulemaking that resulted in 46 C.F.R.

Chapter I, Subchapter M, Parts 136-144, which mainly

took effect in 2018 (collectively “Subchapter M”). Sub-

chapter M is a landmark development for the towboat

and barge industry because towing vessels must

undergo extensive safety inspections to ensure com-

pliance with uniform standards established by the

Coast Guard.

25

A central feature of the federal vessel inspection

programs (including Subchapter M) is that vessels

must have Certificates of Inspection (COD to operate.

46 U.S.C. §§ 3301-3318. Although the requirements

vary based on the precise type of vessel involved, a

COI may only be obtained through compliance with a

Coast Guard approved safety and inspection program.

Absent a vessel owner’s compliance with these fed-

erally-enacted programs for the monitoring of vessel

seaworthiness, a COI will not be issued and serious

penalties may result. 46 U.S.C. § 3318. The Coast

Guard is also equipped with the power to enforce

regulatory violations through penalties and may sus-

pend or revoke necessary maritime licenses.

As a result of Congress’s expanding regulatory

schemes, distinctions between the “Siamese Twins” of

unseaworthiness and Jones Act negligence are increa-

singly difficult to decipher. Under the negligence per

se doctrine applied in maritime law, violation of a

maritime safety statute or regulation establishes neg-

ligence. See Kernan v. American Dredging Co., 355

U.S. 426 (1958); Consolidated Rail Corp. v. Gottshall,

512 U.S. 532 (1994).16 This legal principle is applicable

“without regard to whether the injury flowing from

the breach was the injury the statute sought to pre-

vent.” Kernan, 355 U.S. at 433. Moreover, comparative

fault may provide no defense to negligence per se.

Fuszek v. Royal King Fisheries, 98 F.3d 514, 517 (9th

Cir. 1996). Accordingly, the “Siamese Twins” are too

16 See also Marc C. Hebert & Lindsey M. Ajubita, Managing

Liability and Insuring Risk in the World of Subchapter M: Legal

Issues to Consider and the Obligations of Marine Operators, 16

Loy. MAR. L.J. 289, 312 (Summer 2017).

26

interconnected in today’s expansive regulatory scheme

to permit different remedies.

The availability of punitive damages for unsea-

worthiness would fundamentally alter the balance of

the system Congress created. Judge-made general

maritime law should not supplement these laws to

permit punitive damages when Congress has already

acted to standardize vessel safety rules and enforcement

mechanisms to govern nearly every type of commercial

vessel. This Court should not second-guess Congress’s

Congress has also imposed criminal liability for

knowingly sending or attempting to send an unsea-

worthy vessel to sea that is likely to endanger a life.

46 U.S.C. § 10908; see also 46 U.S.C. § 3318 (criminal

and civil penalties for violations of vessel inspection

statutes). Section 10908 authorizes punishment of up

to five years imprisonment, a fine of up to $1,000, or

both. Other portions of the same chapter address

procedures for seamen to report unseaworthy vessels.

See, e.g., United States v. Rivera, 131 F.3d 222 (1st Cir.

1997).

Despite the extensive federal statutory and regu-

latory laws regarding vessel seaworthiness, Congress

has never sought to deter unseaworthiness through

punitive damages. Therefore, this Court too should

decline Respondent’s invitation that it do so.

27

C. Extension of Remedies Beyond Congress's

Uniform Plans for Maritime Tort Law and

Seaworthiness Is Unnecessary to Deter Unsea-

worthiness and Will Impair the Ability of

Maritime Parties to Settle Claims Efficiently.

Apart from civil and criminal liabilities, there is

a more fundamental reason that punitive damages

are unnecessary to deter unseaworthiness. Namely,

vessel owners and operators have inherent financial

incentives to avoid vessel unseaworthiness. Unsea-

worthy vessels are not profitable because they are

more likely to sink, cause pollution, damage cargo,

and injure crewmembers and others. In light of these

already existing risks and liabilities, it is most

unlikely that a vessel operator would gain financially

by intentionally operating unsafe vessels.17

One practical impact of authorizing punitive

damages is that it would inhibit a central goal of

maritime law: the promotion of settlement and judi-

cial economy. McDermott, 511 U.S. at 211. If author-

ized by this Court, claims seeking punitive damages

for unseaworthiness will become boilerplate in sea-

men’s complaints. The availability of punitive damages

will prolong and complicate the resolution of mari-

time injury claims. The scope and expense of mari-

time litigation will increase. The very threat of punitive

damages will bring unjustified value to these claims

because the cost and risk of defending against such

claims will be too steep. The danger of an astronom-

17 There are fewer inherent incentives for shipowners to

fulfill maintenance and cure obligations, which were at issue in

Townsend.

28

ical verdict for punitive damages!8, will discourage

prudent maritime employers from defending meritless

claims because they will instead be forced to avoid the

risk of highly unpredictable and potentially devastating

punitive damage awards. Moreover, as set forth in Sec-

tion III, infra, whether such damages are insurable is

governed by varying state laws, which further harms

maritime commerce and uniformity.

Ill. ALLOWING SEAMEN TO RECOVER PUNITIVE

DAMAGES FOR UNSEAWORTHINESS WOULD

CREATE SEVERAL ANOMALIES HARMFUL TO THE

CONSTITUTIONALLY-MANDATED UNIFORMITY OF

MARITIME LAW.

This Court has repeatedly held that the “funda-

mental interest giving rise to maritime jurisdiction

is the protection of maritime commerce.” Norfolk

Southern R. Co. v. James N. Kirby, Pty Ltd, 543

U.S. 14, 25 (2004) (internal quotation marks omitted)

(emphasis in original); Exxon Corp. v. Central Gulf

Lines, Inc., 500 U.S. 603, 608 (1991); Sisson v. Ruby,

497 U.S. 358, 367 (1990). One way in which the feder-

al courts have protected and fostered maritime

commerce is by maintaining a uniform and consistent

maritime law. The importance of uniformity is well

documented in this Court’s jurisprudence, with the

Court’s pronouncement in The Lottawanna being a

particularly famous enunciation of this doctrine:

18 See, e.g, Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash.

2012) (affirming award of $1,300,000 in punitive damages under

Townsend when actual damages due seaman on maintenance and

cure claim was $37,420).

29

One thing, however, is unquestionable; the

Constitution must have referred to a system

of law coextensive with, and operating uni-

formly in, the whole country. It certainly

could not have been the intention to place

the rules and limits of maritime law under

the disposal and regulation of the several

States, as that would have defeated the

uniformity and consistency at which the

Constitution aimed on all subjects of a com-

mercial character affecting the intercourse

of the States with each other or with foreign

states.

The Lottawanna, 88 U.S. 558, 575 (1874).

Allowing an injured seaman to recover punitive

damages under the general maritime law for unsea-

worthiness would create undesirable anomalies in

federal maritime law. These anomalies would disrupt

uniformity and deprive maritime operators of the

consistency and predictability necessary to foster

thriving maritime commerce.

A. The Insurability of Punitive Damages Varies

by State.

There is no general maritime law rule governing

whether punitive damages may be lawfully covered

by insurance. Taylor v. Lloyd’s Underwriters of London,

972 F.2d 666, 669 (5th Cir. 1992). Because there is no

specific and controlling federal maritime law rule,

state law would apply to determine whether punitive

damages are insurable. Wilburn Boat Co. v. Fireman’s

Fund Ins. Co., 348 U.S. 310 (1955). However, the insur-

ability of punitive damages varies by state. Accord-

30

ingly, a ruling in favor of Respondent would create

an unlevel interstate playing field where some vessel

owners will be able to insure against the possibility

of a punitive damage award for unseaworthiness but

others will not.19

The patchwork of contradictory state laws is

apparent in an examination of just those nine states

in which members of The Coalition regularly operate.

Punitive damages are insurable in Arkansas20,

Mississippi2!, Tennessee22, and Wisconsin23. Under

Illinois24 and Indiana25 law, punitive damages are

insurable when vicariously assessed but are not

insurable when directly assessed. Under Kentucky law,

punitive damages are insurable so long as “the punitive

damages are imposed for a grossly negligent act of

the insured rather than an intentional wrong of the

insured.” Continental Ins. Cos. v. Hancock, 507 S.W.2d

19 The effect of permitting seamen to recover punitive damages

as well as interstate maritime commerce. Baker, 554 U.S. at 496

(“Punitive damages overall are higher and more frequent in the

United States than they are anywhere else”).

20 Southern Farm Bureau Casualty Insurance Co. v. Daniel, 440

S.W.2d 582, 584 (Ark. 1969).

21 Anthony v. Frith, 394 So.2d 867 (Miss. 1981).

22 General Casualty Co. of America v. Woodby, 238 F.2d 452

(6th Cir. 1956).

23 Brown v. Maxey, 369 N.W.2d 677 (Wis. 1985).

24 Reaver v. Country Mutual Insurance Co., 420 N.E.2d 1058, 1061

(Il. 1981).

25 Norfolk & Western Railway Co. v. Hartford Accident & Indem-

nity Co., 420 F. Supp. 92, 95 (N.D. Ind. 1976).

31

146, 151-52 (Ky. 1973). Punitive damages are not

insurable under Minnesota law when directly assessed,

and it is unclear if they are insurable when vicariously

assessed. U/nited States Fire Ins. Co. v. Goodyear Tire

& Rubber Co., 920 F.2d 487 (8th Cir. 1990). Whether

public policy prohibits the insurability of punitive

damages is an open question in Missouri. See DeShong

v. Mid-States Adjustment, Inc., 876 S.W.2d 5 (Mo. Ct.

App. 1994) (finding the insurance policy did not cover

punitive damages without deciding whether public

policy would prohibit enforcement).

As the above survey of just nine states demon-

strates, if this Court were to hold for Respondent,

vessels could be operated on the same inland

waterway (the Mississippi River, for example), per-

forming the same work, but an operator whose insur-

ance is governed by Wisconsin law could insure

against punitive damages for unseaworthiness while

an owner just across the river, whose insurance is

governed by Minnesota state law, could not. The

principle of maritime uniformity calls for this Court

to avoid such inconsistencies and unfairness.

B. Holding for Respondent Will Create Unjusti-

fiable Anomalies in General Maritime Law.

In Miles, this Court held that Congress must

have intended to incorporate FELA’s “pecuniary limi-

tation on damages” into the Jones Act. 498 US at 32.

The Miles Court, therefore, did not allow recovery for

loss of society (a category of nonpecuniary damages)

for unseaworthiness, holding, “It would be inconsis-

tent with our place in the constitutional scheme were

we to sanction more expansive remedies in a judi-

cially created cause of action in which liability is with-

32

out fault than Congress has allowed in cases of death

resulting from negligence.” /d. at 32-33. The Court

described this holding as “restorling] a uniform rule

applicable to all actions for the wrongful death of a

seaman, whether under DOHSA, the Jones Act, or

general maritime law.” /d. at 33. Absent reversal, this

Court will recognize that a class of workers (seamen)

may recover a remedy (punitive damages) against

their employers that every other class of workers,

including railroad workers, is denied. Doing so will

defeat the uniform rule that the Court restored in

Miles.

If this Court holds for Respondent by overruling

Miles, it will create a troubling anomaly in maritime

law. If a seaman is killed as a result of a breach of

the duty of seaworthiness while more than three

nautical miles from shore, DOHSA’s exclusive appli-

cation will limit tort recovery to pecuniary losses.

However, if that same seaman is less than three

nautical miles from shore, the general maritime law

will permit his representative to seek punitive damages.

Such vastly different remedies based merely on the

distance the vessel is from shore would violate this

Court’s long-held objective of pursuing uniformity in

maritime matters with a healthy regard for Congress’s

policy judgments. Miles, 498 U.S. at 27, 32-33; Mobil

Oil Corp., 436 U.S. 618.

On the other hand, if this Court holds for Res-

pondent without overruling its unanimous decision in

Miles, a different anomaly is nonetheless created.

Whether an injury is fatal should not be the key dis-

tinction regarding whether punitive damages are

available to a seaman for a willful and wanton breach

33

of the duty of seaworthiness. Yet, that is the alterna-

tive to holding for Respondent without overruling

Miles. Such an anomalous and illogical result should

be avoided because it creates the perverse incentive

that fatal injuries are worth less than non-fatal injuries

due to the availability of punitive damages. If punitive

damages “are aimed not at compensation but princi-

pally at retribution and deterring harmful conduct,”

such a result is unwarranted. Baker, 554 U.S. at 492.

cs Js,

CONCLUSION

Amicus Curiae respectfully requests that the

Court reverse the Ninth Circuit's decision below and

hold that punitive damages are not an available

remedy for unseaworthiness.

Respectfully submitted,

NEAL W. SETTERGREN

COUNSEL OF RECORD

GILES B. HOWARD

GOLDSTEIN AND PRICE, L.C.

ONE MEMORIAL DRIVE, SUITE 1000

St. Louis, MO 63102

(314) 516-1700

NEAL@GP-LAW.COM

COUNSEL FOR AMICUS CURIAE

THE INLAND RIVER HARBOR

AND FLEETING COALITION

JANUARY 28, 2019