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

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## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0850%3A22. Public record. Not legal advice.