Amicus Curiae Brief — Danielsen v. Stacy

qe

No. 10-791

In The

Supreme Court of the Anited States

+

REDERIET OTTO DANIELSEN, A:S.;

K_S. ARIES SHIPPING,

Petitioners,

v.

BRIAN STACY,

Respondent.

— +

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF OF THE INTERNATIONAL GROUP

OF PROTECTION AND INDEMNITY CLUBS,

THE AMERICAN INSURANCE ASSOCIATION,

THE CHAMBER OF SHIPPING OF AMERICA,

AND THE INTERNATIONAL CHAMBER

OF SHIPPING AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

¢

MICHAEL F. STURLEY

Counsel of Record

727 East Dean Keeton Street

Austin, Texas 78705

(512) 232-1350

msturley@law.utexas.edu

January 10, 2011

COCKLE LAW BRIEF PRINTING €O (800) 225-6964

OR CALL COLMBCT (402) 342-2831

TABLE OF CONTENTS

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STATEMENT OF INTEREST OF AMICI CURIAE ...

SI i Naat Meade tas nih Annes beans en epee

Pea is as aha ebsites cutteanhes canes sneak iastegath es

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Il.

ITT.

This Court Should Grant Certiorari to Re-

store Uniformity to the General Maritime

Law on the Proper Standard for Imposing

Liability for the Negligent Infliction of

POTAOTARL EVAGEE OBE 5a o5oics cc ocecnecesstbecsvonnnccincene

This Court Should Grant Certiorari to

Minimize Conflicts between U.S. General

Maritime Law and the Laws of Other Mar-

SBN WN ois hice cine cdessceedapanuackt eecees ss

This Court Should Grant Certiorari to En-

force the Policies Recognized in Gottshall

and Avoid the Flood of Baseless Litigation

that the Ninth Circuit’s Decision Would Be

RAIN GO PROVE ooiricsicscasiessescnsccaeonscancexenns

RIE ths pire a bn cia nse Cnpscensicatonsanansashidianiidadsaes

13

TABLE OF AUTHORITIES

Page

CASES

Alcock v. Chief Constable of South Yorkshire

Police, [1992] 1 A.C. 310 (H.L. 1991)...................... 15

American Dredging Co. v. Miller, 510 U.S. 443

ace Lecce es elec el 10, 11

Benson v. Lee, [1972] V.R. 879 (Vict. S. Ct.).....00. 2. 15

Chan v. Society Expeditions, Inc., 39 F.3d 1398

ae CE oie eee 10, 11

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

CE 8 PE pices acs ctccsunsecancckecinsacdsencescgaceaeianeniin passim

De Lovio v. Boit, 7 Fed. Cas. 418 (C.C.D. Mass.

Pee) VR FO, 0D cson ence carseat cee 10

Gaston v. Flowers Transportation, 866 F.2d 816

ERNE tis BNET re cats ch snevsusassnsnsenienuenanceoueeanee il, 12, 20

Kernan v. American Dredging Co., 355 U.S. 426

PE Sc ca ussuisapeusectcucksnckatautscessacsesasaueabnaie anal ee eae Cee 11

The Lottawanna, 88 U.S. (21 Wall.) 558 (1875)....10, 13

McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.

ates eneacncesnzoie teeeucncravaseornesuaeeraaosi tee rea 14,15

Norfolk Southern Railway Co. v. James N.

Kirby, Pty Lid., 543 U.S. 14 (2004)... . 10

Tassinari v. Key West Water Tours, L.C., 480

F. Supp. 2d 1318 (S.D. Fla. 2007)........................... 10

Vimar Seguros y Reaseguros, S.A. v. M/V Sky

Fomefer, SES US. GEG (RIG) occscvnsesscnssecscgvescecserses 9,13

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Federal Employers’ Liability Act (FELA),

NR a. oo seis suscanabedvensbsunscoescbatsasansacs 11

Jones Act,

re nee. wvannuswebedeasenaseseesaees 2,11

Death on the High Seas Act,

I< « < ccnucacconncecovevcssdcncasccasevesssacss 2

OTHER MATERIALS

CRAIG H. ALLEN, FARWELL’S RULES OF THE

NAUTICAL ROAD 253 (8th ed. 2005) ..............0.......... 21

Box Ship Sets Records, PACIFIC MARITIME Mac-

ca dusebadeadasusdcuneecens 9

GRANT GILMORE & CHARLES L. BLACK, JkR., THE

LAW OF ADMIRALTY (2d ed. 1975)................. REAL BSE 1

Maersk Line, 7ranspacific 7 (TP7) — Westbound,

http//www.maerskline.com/link/?page=brochure

& path=/routemaps/newnetwork/transpacific/

TP7%20WEB (last visited Jan. 3, 2011) .................. )

Bo vON EYBEN & HELLE ISAGER, LAERERBOG I

ERSTATNINGSRET (6th ed. 2007) ..................00.0 0.20000 17

STATEMENT OF INTEREST

OF AMICI CURIAE'

The International Group of Protection and In-

demnity Clubs (the International Group) is an un-

incorporated association consisting of 13 principal

underwriting associations (the P&I Clubs) that insure

the liabilities of their shipowner and charterer

members. See generally, e.g., GRANT GILMORE &

CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 2-10,

at 76 (2d ed. 1975). Each P&I Club is an independent,

' Pursuant to Supreme Court Rule 37.6, amici affirm that

no counsel for a party authored this brief in whole or in part and

that no person other than amici, their members, and their

counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Counsel of record for

each party received timely notice under Supreme Court Rule

37.2(a) of amici’s intent to file this brief and the parties consent-

ed to the filing of this brief.

* The 13 principal P&I Clubs comprising the International

Group are: The American Steamship Owners Mutual Protection

and Indemnity Association, Inc.; Assuranceforeningen Skuld

(Gjensidig); The Britannia Steam Ship Insurance Association

Ltd.; Gard P&I (Bermuda) Ltd.; The Japan Ship Owners’ Mutual

Protection & Indemnity Association; The London Steam-Ship

Owners’ Mutual Insurance Association Ltd.; The North of

England Protecting and Indemnity Association Ltd.; The

Shipowners’ Mutual Protection and Indemnity Association

(Luxembourg); The Standard Steamship Owners’ Protection and

Indemnity Association (Bermuda) Ltd.; The Steamship Mutual

Underwriting Association (Bermuda) Ltd.; Sveriges Angfartygs

Assurans Foérening (Swedish Club); United Kingdom Mutual

Steam Ship Assurance Association (Bermuda) Ltd.; and The

West of England Ship Owners’ Mutual Insurance Association

(Luxembourg).

non-profit, mutual insurance association, providing

cover for its members against third-party liabilities

relating to the use and operation of ships. The P&I

Clubs cover a wide range of liabilities including

personal injury claims by seamen under the Jones

Act, 46 U.S.C. § 30104, or the general maritime law

and by non-seamen under other statutes (such as the

Death on the High Seas Act, 46 U.S.C. §§ 30301-08)

or the general maritime law; claims for cargo loss or

damage; pollution claims; claims arising out of colli-

sions with fixed and floating objects; and claims for

wreck removal. The P&I Clubs actively participate in

handling claims for their members, including the

appointment of lawyers, surveyors, and other experts,

and the expeditious settlement of claims. Together,

the P&I Clubs insure the liabilities of approximately

90% of the world’s ocean-going ship tonnage and

approximately 95% of the world’s ocean-going tanker

fleet. Virtually all oil tankers and dry cargo ships

trading to the United States are entered with one of

the P&I Clubs.

The International Group coordinates the opera-

tion and regulation of a claim-sharing agreement

under which claims in excess of $8 million up to an

amount of approximately $7.5 billion are shared by

the P&I Clubs. The International Group also provides

a forum for the P&I Clubs to develop common policy

and promote shipowners’ interests in relation to liabil-

ity and insurance issues. More specifically, it provides

an effective voice for the members of the individual

P&I Clubs to speak collectively on important industry

3

issues (such as the definition of the appropriate legal

standard to impose liability for personal injury

claims). Thus the International Group regularly

represents the P&I Clubs’ interests in the prepara-

tion of international conventions and legislation

affecting shipowners liabilities and related insurance

matters. It has similarly filed amicus briefs with this

Court and other courts in cases that raise issues that

are particularly important to the shipping industry.

Further information about the International Group is

available on its web site at www.igpandi.org.

The American Insurance Association (AIA) is a

leading national trade association that includes some

300 major property and casualty insurance compa-

nies. ALA members, ranging in size from small! com-

panies to the largest insurers with global operations,

collectively underwrote in excess of $117 billion in

premiums in 2008. They underwrite virtually all lines

of property and casualty insurance, including person-

al and commercial auto insurance, commercial prop-

erty and liability insurance (including ocean marine

and inland marine coverages), workers’ compensa-

tion, homeowners’ insurance, medical malpractice

coverage, and product liability insurance. On issues

of importance to the property and casualty insurance

industry and marketplace, AIA advocates sound and

progressive public policies in legislative and regu-

latory forums at the state and federal levels and files

amicus briefs in significant cases before state and

federal courts, including this Court. Further infor-

mation about AIA is available on its web site at

www.aiadc.org.

4

The Chamber of Shipping of America (CSA) is an

organization founded in 1917 and currently repre-

senting 33 U.S.-based companies that own, operate,

or charter ocean-going tankers, container ships, or

dry-bulk vessels engaged in domestic and inter-

national trades. CSA also represents companies that

maintain a commercial interest in the operation of

ocean-going vessels. Current members include com-

panies that own or operate U.S.-flag or foreign-flag

ships. CSA has filed amicus briefs with this Court in

some exceptional cases that raise unusually impor-

tant issues for the shipping industry. Further infor-

mation about CSA is available on its web site at

www.knowships.org.

The International Chamber of Shipping (ICS) is

the principal international trade association for

merchant shipowners and ship operators. The mem-

bership of ICS comprises national shipowner associa-

tions and represents all sectors and trades and about

80% of the world fleet. ICS enjoys consultative status

with the International Maritime Organization (IMO)

and all other international regulatory bodies that

impact upon shipping. The CSA is a full Member of

ICS. Further information about ICS is available on

its web site at www.marisec.org.

\

The P&I Clubs routinely handle claims against

shipowners such as respondent’s claim here. Although

it happens that no AIA member was directly involved

in this case, ALA’s members cover maritime risks and

could handle very similar claims in the future. More

significantly, ALA’s members recognize the influence

that federal maritime law decisions have had on the

development of state common law in the past and

thus the influence that the decision below could have

in the future. AIA’s members regularly underwrite

insurance that would cover claims under state com-

mon law for the negligent infliction of emotional

distress. CSA’s members and the members of ICS’s

other national shipowner associations are exposed to

claims such as respondent’s.

All four amici anticipate that many more claims

such as respondent’s will arise if the Ninth Circuit’s

decision is allowed to stand. Thus each amicus has a

deep interest in ensuring that the law is uniform and

predictable; that liabilities are rationally and clearly

defined; and that this Court understands the im-

portance of the question presented here not only to

the maritime shipping industry but also to the broad-

er community.

STATEMENT

The relevant facts are entirely straight-forward,

thus offering this Court an excellent vehicle to resolve

the legal issue presented. Respondent alleges — and in

the current procedural posture his allegations must

be accepted as true — that petitioners’ vessel, while

proceeding at an unsafe speed in dense fog, passed

his fishing vessel at close quarters after having been

on a collision course. Pet. App. 49a-50a. Thereafter

(unbeknownst to respondent at the time) petitioners’

6

vessel collided with and sank another fishing boat,

killing its captain. Jd. 50a. Respondent, not yet

suffering from emotional distress, resumed fishing.

Id. 51a. Four or more days later, respondent finally

learned of the fatal accident and alleges that he

suffered serious emotional distress as a result. Jd.

51a, 53a.

The district court dismissed respondent’s claim

for the negligent infliction of emotional distress. It

reasoned that respondent had not experienced a

psychic injury as a result of witnessing the accident.

Id. 37a-38a. Despite that ruling, respondent declined

to amend his complaint. Jd. 57a.

Reversing, a divided panel of the Ninth Circuit

held petitioners liable on the ground that respondent

was in “the zone of danger” at the time of the fatal

accident. The majority found it irrelevant that he did

not know of the actual accident or suffer any emo-

tional distress until days later (when he was safely

out of the zone of danger). See id. 5a.

¢

SUMMARY OF ARGUMENT

1. This Court should grant certiorari to restore

uniformity to the general maritime law of the United

States on the proper standard for imposing liability

for the negligent infliction of emotional distress. This

Court has consistently recognized the importance of

uniformity in maritime law, a field in which parties

regularly travel across jurisdictional boundaries and

opportunities for forum-shopping abound. The deci-

sion below conflicts with decisions of the Third and

Fifth Circuits. The conflict with the Fifth Circuit is

particularly troubling in view of that court’s promi.

nence in maritime personal injury litigation.

2. This case involves not only an inter-circuit

conflict but also an international conflict. This Court

has recognized the importance of maintaining uni-

formity, to the extent possible, between U.S. maritime

law and the laws of other maritime nations. The

decision below is out of line with the governing law in

other maritime nations. Under English law, for

example, which has long been influential throughout

the common-law and maritime law worlds, authorita-

tive decisions of the House of Lords (the predecessor

of the current U.K. Supreme Court) establish at least

three reasons why a claimant in respondent’s position

could not recover for the negligent infliction of emo-

tional distress. Under Danish law, to take a particu-

larly relevant civil-law example, respondent’s claim

would also fail.

3. This Court should also grant certiorari to

enforce the policies that it recognized in Consolidated

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

explained the importance of clear and predictable

limits defining when damages may be recovered for

the negligent infliction of emotional distress. Ignoring

those policies, the Ninth Circuit has announced a

misguided and erroneous rule that would adversely

affect the entire maritime industry. This Court should

correct the error now rather than permitting the

&

industry (and the judicial system) to be subjected to

years of pointless litigation.

—___— —- ——-- § —_ —___—-—

ARGUMENT

I. This Court Should Grant Certiorari to Re-

store Uniformity to the General Maritime

Law on the Proper Standard for Imposing

Liability for the Negligent Infliction of

Emotional Distress

This Court regularly exercises its discretionary

jurisdiction to promote uniformity in the interpreta-

tion of federal law, and the need for uniformity is

particularly compelling in the maritime context.

Unlike parties that are subject to the laws of only a

single state and the interpretations of a single federal

circuit, ships by their very nature call regularly at

different ports in different jurisdictions. Companies

that operate ships are typically subject to the laws ot

many countries and the interpretations of multiple

federal circuits. Major shipping companies commonly

do business in every maritime circuit and thus would

be subject to those circuits’ conflicting interpretations

of federal law if this Court did not resolve the con-

flicts.

It would not be unusual for a single ship in the

course of a single voyage to call at ports in three or

four different circuits. Maersk Line, for example,

operates a weekly service that calls at Savannah,

Georgia (in the Eleventh Circuit) each Sunday;

3

Charleston, South Carolina (in the Fourth Circuit) on

Monday; Newark, New Jersey (in the Third Circuit)

on Wednesday; Miami, Florida (in the Eleventh

Circuit) on Saturday; Los Angeles, California (in the

Ninth Circuit) on the Wednesday cleven days later

(after a stop in Panama); and Oakland, California (in

the Ninth Circuit) on Friday. The ship then transits

the Pacific to call at six Asian ports in four different

countries. See Maersk Line, Transpacific 7 (T'P7) — West-

bound, http://www.muerskline.com/ink/?page=brochure

&path=/routemaps/newnetwork/transpacific/TP7%20WEB

(last visited Jan. 3, 2011). If this Court does not

maintain the uniformity of the general maritime law,

therefore, all those involved in each voyage would be

required to adjust their behaviors to conform to a

different interpretation of the law on an almost daily

basis. That unfortunate result would “impose real

costs on the commercial system the [maritime law]

vovern(s).” Virnar Seguros y Reasezuros, S.A. v. M/V

Sky Reefer, 515 U.S. 528, 537 (1995).

This Court has consistently recognized the

special need to maintain uniformity in the interpre-

tation of the general maritime law. For example, the

Court recently explained “that Article II?’s grant of

Countless other examples could easily be piven. See, e.g.,

Box Ship Sets Records, PAci¥ttc: MARITIME MAGAZINE 18 (Dee

2010) (describing the liner service of the CMA CGM Figaro, the

largest ship ever to call at several North American ports, which

regularly serves ports in the Second. Fourth, Ninth. and Elev-

enth Circuits).

10

admiralty jurisdiction ‘““must have referred to a

system of law coextensive with, and operating unt-

formly in, the whole country.”’” Norfolk Southern

Railway Co. v. James N. Kirby, Pty Ltd., 5483 U.S. 14,

28 (2004) (emphasis added) (quoting American Dredg-

ing Co. v. Miller, 510 U.S. 443, 451 (1994) (which

quoted The Lottawanna, 88 U.S. (21 Wall.) 558, 575

(1875))). The Kirby Court cited over half a dozen of

this Court’s prior cases in support of the importance

of uniformity in maritime law, dating back to The

Lottawanna, see 543 U.S. at 28 (collecting cases), but

the principle is even older. Almost two centuries ago,

Justice Story on circuit justified his broad interpreta-

tion of the Constitution’s Admiralty Clause by refer-

ence to “(t}he advantages resulting to the commerce

and navigation of the United States from a= uni-

formily of rules and decisions in all maritime ques-

tions.” De Lovio v. Boit, 7 Fed. Cas. 418, 443 (C.C.D.

Mass. 1815) (Case No. 3,776).

Petitioner has already explained why the deci-

sion below conflicts with prior decisions from the

Third and Fifth Circuits.” Pet. 12-15. The conflict

* Petitioner claims a conflict with the Eleventh Circuit. but

cites only a district court decision from within the Eleventh

Circuit. See Pet. 15-16 (citing Tussinari v. Key West Water Tours,

L.C., 480 F. Supp. 2d 1318 (S.D. Fla. 2007)). As Tassinari was

not appealed to the Eleventh Circuit, no inter-circuit conflict has

been documented. That case instead helps to demonstrate the

confusion in the lower courts that calls for this Court’s attention.

Petitioner also claims that the panel below failed to follow the

Ninth Circuit’s earlier decision in Chan v. Society Expeditions,

(Continued on following page)

lL]

with the Fifth Circuit is particularly troubling be-

cause of that court’s prominence in maritime personal

injury litigation. In Gaston v. Flowers Transportation,

866 F.2d 816 (5th Cir. 1989), the Fifth Circuit cor-

rectly anticipated this Court’s holding tn Consoli

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

that the Federal Employers’ Liability Act (FELA),

45 U.S.C. §§ 51-60, and thus the Jones Act, 46 U.S.C.

§ 30104,” permit recovery for the negligent infliction

of emotional distress “for those within the zone of

danger.” 866 F.2d at 820. But it affirmed the district

court’s dismissal of the case (despite facts that were if

anything more sympathetic to the Gaston plaintiff

than respondent's allegations here). /d.

In Gaston, the plaintiff and his half-brother were

working together on the deck of a barge. When the

pushing vessel violently struck the barge, both sea-

men were thrown. The plaintiff landed on the barge’s

deck and his half-brother fell between the two ves-

sels. While the plaintiff sought to render aid, he

witnessed his half-brother’s being crushed to death

between the vessels. /d. at 816-817. Any distinction

Inc., 39 F.3d 1398 (9th Cir. 1994). See Pet. 16. But this appears

to be a complaint over the proper characterization of certain

aspects of the Chan opinion — an issue that the Ninth Circuit

has now resolved against petitioner

* This Court consistently has “held that the Jones Act

adopts ‘the entire judicially developed doctrine of liability’ under

the [FELA].” American Dredging Co. v. Miller, 510 U.S. 443, 456

(1994) (quoting Kernan v. American Dredging Co., 355 U.S. 426,

439 (1958)).

between Gaston and the present case would favor the

Gaston plaintiff. He actually witnessed the gruesome

death of a close relative and as a result suffered

immediate emotional distress. But the Fifth Circuit

affirmed the dismissal of his case because he present-

ed “no evidence ... tending to show that [he] was

ever concerned for his own safety.” Jd. at 819. Al-

though the Gaston plaintiff was exposed to exactly

the same risk as the victim of the fatal accident — it

was mere happenstance which one fell to the deck

and which one fell between the barge and the pushing

vessel — he did not satisfy the Fifth Circuit’s standard

for the “zone of danger” test.

If the court below had applied the Fifth Circuit’s

standard, the present case would undoubtedly have

been decided differently. Respondent alleged that

he saw petitioners’ vessel on his radar when it was

still about a mile away. Pet. App. 50a (complaint

{ 12). Although the vessel appeared to be on a colli-

sion course with his fishing vessel, there was still

adequate time to avert the collision. Thus there was

no reason for respondent to be “concerned for his own

safety.” He simply contacted petitioners’ vessel by

radio and it altered its course. Jd. The most he can

claim is that petitioners’ vessel “passed at close

quarters.” /d. He made “no [allegation] . . . tending to

show that |he} was ever concerned for his own safety.”

Cf. 866 F.2d at 819. In the Fifth Circuit, his claim

would necessarily have been dismissed.

ll. This Court Should Grant Certiorari to Min-

imize Conflicts between U.S. General Mari-

time Law and the Laws of Other Maritime

Nations

This Court has recognized not only the need to

maintain the uniformity of the U.S. general maritime

law but also the importance of keeping U.S. law in

line with the laws of other maritime nations. See, e.g.,

Sky Reefer, 515 U.S. at 536-537. Ships regularly call

at ports in different U.S. circuits and it is essential

that they be subject to the same rules in each port.

But most ships also call at foreign ports. Although

this Court lacks the power to ensure complete uni-

formity on an international scale, it can at least

ensure that U.S. interpretations of the general mari-

time law do not fall significantly out-of-line with the

laws of other maritime nations.

The practical importance of promoting interna-

tional uniformity (to the extent possible) is just as

significant as in the domestic context. The “real costs”

imposed on the commercial system, id. at 537, are at

least as onerous when a ship is subject to different

rules in the ports of different countries as when she

is subject to different rules in the ports of differ-

ent circuits. Indeed, the Sky Reefer Court referred

to the “real costs” imposed on the commercial sys-

tem in the international context. See id. And this

Court has consistently recognized the value of inter-

national uniformity in maritime law. See, e.g., The

Lottawanna, 88 U.S. (21 Wall.) 558, 572 (1875).

14

Despite this Court's recognition of the importance

of international uniformity in maritime law, the

decision below is significantly out-of-line with the

laws of other maritime nations. Amici are aware of no

other country in which a plaintiff suffering emotional

distress could recover on the allegations that re-

spondent has made here. Two examples (one from a

common-law country and one from a civil-law coun-

try) illustrate the extent to which the Ninth Circuit

has departed from international standards.

English law is particutarly relevant, both for its

influence on the development of the law in every

other common-law country (including the United

States) and for its prominence in the maritime legal

community. Respondent could not succeed under

English law for at least three independent reasons.

The seminal authority is Lord Wilberforce’s judgment

in the House of Lords (the predecessor of the current

U.K. Supreme Court) in McLoughlin v. O'Brian,

11983] 1 A.C. 410 (H.L. 1982). In McLoughlin, Lord

Wilberforce, after discussing the same sort of policy

concerns that this Court addressed in Consolidated

Rail Corp. v. Gottshall, 512 U.S. 532, 545-546, 557

(1994), recognized “a real need for the law to place

some limitation upon the extent of admissible claims.”

11983] 1 A.C. at 422. He identified three limitations:

First, “the class of persons whose claims should be

recognized” is generally limited to those with close

15

family ties.” Jd. Second, the plaintiff must satisfy a

requirement of “proximity to the accident.” English

law does not require “direct and immediate sight or

hearing,” but the plaintiff must have “‘direct percep-

tion of some of the events which go to make up the

accident as an entire event, and this includes ... the

immediate aftermath.” /d. (quoting Benson v. Lee,

[1972] V._R. 879, 880 (Vict. S. Ct.)). Third, “[t]he shock

[z.e., the emotional distress] must come through sight

or hearing of the event or of its immediate aftermath.”

Id. at 423. “[T]here is no case in which the law has

compensated shock brought about by communication

by a third party.” Jd. at 422-423. In Alcock v. Chief

Constable of South Yorkshire Police, [1992] 1 A.C.

310 (H.L. 1991), the House of Lords unanimously

approved Lord Wilberforce’s three requirements.

Applying Lord Wilberforce’s three requirements

to respondent’s allegations, the present case would be

dismissed on each of the three independent grounds.

Respondent fails to satisfy the first requirement

Lord Wilberforce did not say that the class of persons

must always be limited to those with close family ties. He

explained:

{Clases involving less close relationships must be very

carefully scrutinised. | cannot say that they should

never be admitted. The closer the tie (not merely in

relationship, but in care) the greater the claim for

consideration.

{1983] 1 AC. at 422. Thus the long-time friendship in Gottshall,

see 512 U.S. at 536, might have been adequate under English

law

16

because he had no relationship whatsoever with the

fisherman who was killed in the tragic collision. Not

only did he lack a close family tie, he did not even

allege that he knew the decedent. Second, respondent

fails the “proximity to the accident” requirement

because he had no direct perception of any of the

events that made up the accident or its immediate

aftermath. He heard petitioners’ vessel pass his but

he does not allege any direct perception of the fatal

accident on which he bases his claim. When he was in

the general vicinity of the accident, he was not even

sure that an accident had occurred. When respondent

“advised all concerned by radio” that he was safe, the

“search was ... suspended and [he] resumed fishing,”

Pet. App. 5la (complaint 7 15), apparently because

“all concerned” assumed that no collision had oc-

curred after all. Finally, respondent fails the “com-

munication” requirement because respondent’s

knowledge of the fatal accident, which is the basis for

his emotional distress claim, was “brought about by

communication by a third party.”

Recovery for the negligent infliction of emotional

distress would be just as difficult for the respondent

under Danish law. Amici have chosen Danish law as

a civil-law example for two principal reasons. First,

Denmark is a prominent maritime nation. Indeed, the

world’s largest shipping company is Danish. Second,

respondents are Danish companies. Although re-

spondents could not reasonably expect Danish law to

govern all of their activities wherever they travelled,

17

that would nevertheless represent the legal system

with which they were most familiar. And to the extent

that they anticipated any international uniformity in

maritime law, Danish law would most likely guide

their expectations.

Danish commentators conclude that only the

most closely connected relatives of a victim may hope

to obtain compensation for the negligent infliction of

emotional distress when they have not themselves

been involved in an accident but have instead wit-

nessed it. See, e.g., BO VON EYBEN & HELLE ISAGER,

LAEREBOG I ERSTATNINGSRET 272 (6th ed. 2007). It

appears that no decision of a Danish court, however,

has actually awarded damages. Even under the most

optimistic interpretation of Danish law, therefore,

respondent’s claim would fail. He did not even allege

that he knew the decedent, let alone that he was a

closely connected relative.

Ill. This Court Should Grant Certiorari to En-

force the Policies Recognized in Gottshall

and Avoid the Flood of Baseless Litigation

that the Ninth Circuit's Decision Would Be

Likely to Provoke

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

532 (1994), this Court recognized the continuing need

for significant hmitations on the right to recover for

18

the negligent infliction of emotional distress.’ In

justifying its adoption of the “zone of danger” rule, for

example, the Gottshall Court explained:

(T]he common law restricts recovery for neg-

ligent infliction of emotional distress on sev-

eral policy grounds: the potential for a flood

of trivial suits, the pc ssibility of fraudulent

claims that are difficult for judges and juries

to detect, and the specter of unlimited and un-

predictable liability. Although some of these

grounds have been criticized by commenta-

tors, they all continue to give caution to

courts. We believe the concerns that underlie

the common-law tests, and particularly the

fear of unlimited liability, to be well founded.

Id. at 557; see also id. at 545-546. Earlier in its opin-

ion, the Gottshall Court had expressly criticized the

Third Circuit for ignoring those policy concerns. Even

if the lower court’s approach could have guarded

against trivial and fraudulent claims, it did not

address “the specter of unlimited and unpredictable

liability.” The Gottshall Court explained:

A more significant problem {than fraudulent

and trivial claims] is the prospect that allow-

ing [actions for negligently inflicted emo-

tional distress} can lead to unpredictable and

' The Gottshall Court had previously explained that “sig-

nificant limitations ... are placed by the common law on the

right to recover for negligently inflicted emotional distress, and

have been since the right was first recognized late in the [19th]

century.” 512 U.S. at 545.

19

nearly infinite liability for defendants. The

common law consistently has sought to place

limits on this potential liability by restricting

the class of plaintiffs who may recover and

the types of harm for which plaintiffs may

recover. This concern underlying the common-

law tests has nothing to do with the potential

for fraudulent claims; on the contrary, it

is based upon the recognized possibility of

genuine claims from the essentially infinite

number of persons, in an infinite variety of

situations, who might suffer real emotional

harm as a result of a single instance of negli-

gent conduct.

Id. at 552. Not only did the Third Circuit’s test fail

to deal adequately with the specter of unlimited

liability, it “would be bound to lead to haphazard

results.” Jd. The Gottshall Court observed that

“[jJudges would be forced to make highly subjective

determinations concerning the authenticity of claims

for emotional injury,” that the Third Circuit’s test

could limit potential liability “only inconsistently,”

and that potential defendants “would be given no

standard against which to regulate their conduct.” Jd.

All of the Gottshall Court’s criticisms of the Third

Circuit’s test apply with equal force to the misguided

rule adopted by the Ninth Circuit. Most fundamen-

tally, the decision below raises the specter of unlim-

ited and unpredictable liability. By selectively quoting

20

excerpts of the Gottshall opinion out of context,’ the

decision below could be read to establish a rule

whereby any person who was once in the vicinity of a

negligent defendant can recover for the negligent

infliction of emotional distress if he or she there-

after learns that the defendant’s negligence injured

another person (even if the plaintiff neither witnessed

the accident nor knew the victim). In her dissent,

Judge Hall poses an extreme hypothetical to illus-

trate the potential for unlimited and unpredictable

liability, Pet. App. 26a-27a & nn.5-6, and the majority

actually admits that its rule would produce that

extreme result, Pet. App. 6a n.2.

The potential for “fraudulent and trivial claims”

is obvious. As the Gottshall Court observed, “the

authenticity of claims for emotional injury ... are far

less susceptible to objective medical proof than are

* It is telling that the Ninth Circuit quotes only the

Gottshall Court’s partial description of the common-law “zone of

danger” test. Pet. App. 4a-5a. In the portion of the opinion that

actually adopts the governing test, the Gottshall Court describes

it very differently: “Under this test, a worker within the zone of

danger of physical impact will be able to recover for emotional

injury caused by fear of physical injury to himself, whereas a

worker outside the zone will not.” 512 U.S. at 556 (emphasis

added). Respondent’s emotional distress, however, was not

“caused by fear of physical injury to himself.” As discussed above

(at 12), he made “no [allegation} ... tending to show that [he]

was ever concerned for his own safety.” Cf. Gaston v. Flowers

Transportation, 866 F.2d 816, 819 (5th Cir. 1989). Respondent’s

alleged emotional distress was instead caused by his learning

about another fisherman’s death four or more days after the fact

when he himself was not even arguably in any “zone of danger.”

21

their physical counterparts.” 512 U.S. at 552. Even if

the courts are able accurately to distinguish genuine

claims from fraudulent and trivial claims, full trials

(with all the attendant inconvenience and expense)

may often be necessary.

The Ninth Circuit’s test would also “lead to

haphazard results,” as potential liability is limited

“only inconsistently” and potential defendants “would

be given no standard against which to regulate their

conduct.” For example, the court below does not

explain why it thought respondent was in the “zone of

danger.” He alleged that his vessel and petitioners’

vessel “appeared to [have been] on a collision course,”

Pet. App. 50a (complaint { 12), but collision courses

are routine in navigation. So long as at least one of

the vessels alters its course or speed in time to avoid

a collision, which is what happened here, there is no

particular danger. He also alleges that the two ves-

sels passed “at close quarters,” id., but that is not

necessarily dangerous, either. Vessels often pass at

close quarters without incident.’ More fundamentally,

9 ry 7 ‘ :

The leading U.S. treatise on the rules of navigation ex-

plains

It should be noted that not every close-quarters situa

tion involves risk of collision. For example, two ves-

sels in sight and passing each other in opposite traffic

lanes at a range of five hundred yards are \ikely in

close-quarters, but the encounter does not necessarily

involve risk of collision.

CRAIG H. ALLEN, FARWELL’S RULES Or THE NAUTICAL ROAD 253

(8th ed. 2005) (footnote omitted).

the Ninth Circuit requires no causal connection

between a plaintiff’s presence in the zone of danger

and the emotional distress for which damages are

claimed. See Pet. App. 5a. When the factor triggering

liability bears no relationship to the damage suffered,

results are bound to be haphazard and inconsistent,

thus giving potential defendants “no standard against

which to regulate their conduct.”

Perhaps the district courts in the Ninth Circuit,

with interventions from the court of appeals, could

sort out more workable standards through several

years of litigation. But years of such pointless liti-

gation would adversely affect the entire maritime

industry. Nothing would be gained by allowing the

issue to percolate further. The Ninth Circuit’s deci-

sion is simply misguided and erroneous. Correcting

the problem requires more than clarification. This

Court should grant certiorari to enforce the policies

that it recognized in Gottshall and impose clear and

predictable limits defining when damages may be

recovered for the negligent infliction of emotional

distress.

23

CONCLUSION

The petition for a writ of certioran should be

granted

Respectfully submitted,

MICHAEL F. STURLEY

Counsel of Record

727 East Dean Keeton Street

Austin, Texas 78705

(512) 232-1350

msturley@law.utexas.edu

January 10, 2011