Amicus Curiae Brief — Regal Fish Ltd. v. Fish

(2)

FILED

No. 01-756 D&C 13 200

dn The

Supreme Court of the Huites-Srates—

Supreme Court, U.S. |

REGAL FISH LTD., PETITIONER

Vv.

JEFFREY P. FISH

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR

THE INTERNATIONAL GROUP

OF PROTECTION AND INDEMNITY CLUBS,

AMERICAN INSTITUTE OF MARINE UNDERWRITERS,

THE CHAMBER OF SHIPPING OF AMERICA AND

THE INTERNATIONAL COUNCIL OF CRUISE LINES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

DAVID C. FREDERICK

Counsel of Record

Kellogg, Huber, Hansen, Todd &

Evans, P.L.L.

1615 M Street,

Suite 400

C.

NW

Washington, D.C. 20036

(202) 326-7900

a

QUESTION PRESENTED

Whether an injured seaman may recover

prejudgment interest on a damages award under the

Jones Act, 46 U.S.C. App. § 688(a), even though this

Court has held that the Jones Act incorporates the

substantive law of the Federal Employers’ Liability

Act, which this Court held in Monessen Southwestern

Railway Co. v. Morgan, 486 U.S. 330 (1988), does not

permit courts to award prejudgment interest.

(I)

TABLE OF CONTENTS

Page

Interest of the Amici Curiae ...............65-- 1

i ee ee OE. ek kobe ten ws veee os 3

Reasons for Granting the Petition .............. 4

I. The Court of Appeals’ Decision Cannot Be 5

Reconciled With Monessen ..............45.

A. The Jones Act incorporates the substantive

ee ER np ANODE b oeb dete des ee ceusees 5

B. Prejudgment interest is not permitted under

La wks CaN Us 6.4.6 d:06bOe obo oeee'e 6

C. There is no sound reason to construe the

Jones Act differently than FELA with

respect to prejudgment interest .......... 7

D. The Ninth Circuit’s analysis is flawed ..... 9

II. State And Federal Courts Conflict Over

Whether The Jones Act Authorizes The

Award Of Prejudgment Interest ............. 11

A. The Ninth Circuit’s decision conflicts with

the decisions of other courts foreclosing

prejudgment interest under the Jones Act .. 11

B. The jurisdiction-based approach has created

conflicts among the federal courts on the

applicability of prejudgment interest in 13

SS o's a6 040 0406 6 Hebe eveese

III. This Case Presents A Recurring And Important

Issue To The Maritime Industry ............. 18

A. There is no need for the Court to allow

i cc cccwoecrcvence 18

B. The issue is of great importance to the

ek chews bebesccore 19

RE ee Nid a no be We 6 e506 60 0000 4s 20

(IID)

TABLE OF AUTHORITIES

Cases:

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

CRED on bv vevveccvceseedd ccNCeueeeeeesse 5, 6, 19

Anderson v. Whittaker Corp., 894 F.2d 804 (6th Cir.

BED 6 wh c bes ovusencuncdeeeeerisess ees 12, 15, 19

Argentine Republic v. Amerada Hess Shipping

Corporation, 488 U.S. 428(1989) .............45. 2

Barrios v. Louisiana Construction Materials Co., 465 F.2d

Sy GG Sa i-vob ho 0-090 e ern 504 Cebues en 13

Borges v. Our Lady of the Sea Corp., 935 F.2d 436 (1st

Cie, SOU) 6 6665 0bevan bars Cie resudacvintews 13, 19

California v. Deep Sea Research, 523 U.S. 491 (1998) .. 2

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585

CED kccussdbcvvecectectaberctivesiesss ci. 2

Ceja v. Mike Hooks, Inc., 690 F.2d 1191 (5th Cir. 1982) 13

Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485

CR a cee c Feb bb 800 ed un ee Cewee er eeeeteVeeerts 7

City of Boston v. S.S. Texaco Texas, 773 F.2d 1396 (1st

CE, BE bv avo vck'ec et 6 2eeee eee eds lebbee rons 14

City of Milwaukee v. National Gypsum Co., 515 U.S. 189

CRUD hcccccindccscunceeherastveue desaves 10, 11

Cleveland Tankers, Inc. v. Tierney, 69 F.2d 622 (6th Cir.

BD bd é chicas neces cacddincdese ee lreerte 12

Colburn v. Bunge Towing, Inc., 883 F.2d 372 (5th Cir.

SERED oe cdc ecdévicnecetersb tere teasvedistet 15

Domangue v. Penrod Drilling Co., 748 F.2d 999 (5th Cir.

TER ST GUNGNED 6c vive cccck se teres eed tei tedee 13

Dooley v. Korean Air Lines, 524 U.S. 116(1998) .... 8,9

Gillespie v. United States Steel Corp., 379 U.S. 148

(PPP Peer e Titre reer re Tete ee 8

(IV)

Jones v. Pool Offshore Co., 893 F.2d 713 (5th Cir.

Ne PEs PR rb eee bh borers Use dee etN enna 19

Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2d Cir.

Ws. ik bt CaN % Cea eo cad 004 0 Cae Oia 17, 19

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

ER a 5 5 bo cd cb ele eked bee? cakene Ss Gane 6, 7

Lindgren v. United States, 281 U.S. 38 (1930) ........ 8

Magee v. United States Lines, Inc., 976 F.2d 821 (2d Cir.

BE aS edule sb bb on oa ch beewde sees aanet 13, 16, 19

Martin v. Walk, Haydel & Associates, Inc., 794 F.2d 209

(5th Cir. 986) (percuriam) ............--05. 16,17

Miles v. Apex Marine Corp., 498 U.S. 19

CR Sos oo al ba ced otek Gadde beeeaes 6, 8, 9, 16

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618

nae véaats nak obo sth adsense a anes 8

Monessen Southwestern Railway Co. v. Morgan, 486 U.S.

i or See 4, 6, 7, 9, 11,12, 18, 20

Oglebay Norton Co. v. CSX Corp., 788 F.2d 361 (6th Cir.

ee a ee re ere meee 12

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

Cds «ass bbne ond ieee ee vusabuesdbaee 5

Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d 732 (6th

Ce «ba Wak eG sete ee AUER es Oeee eas 15

St. Louis, I.M. & S.R. Co. v. Craft, 237 U.S. 648

CE og i ca nincig Se wkewds GARE RA Ris oe eke wae 9

Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th

Gey EE b-o ad Wi Wh ode ae ee a heeas heres 13

Simeonoff v. Hiner, 249 F.3d 883 (9th Cir. 2001) . 4,9, 19

Snyder v. Whittaker Corp., 839 F.2d 1085 (5th Cir.

ivnid ck ondiniaed E evisinn a aed eis mks a> aren 18

Theriot v. J. Ray McDermott & Co., 742 F.2d 877 (5th Cir.

| PRA Ss: re ee Deru rere Sei Pumaren pees" 14

(V)

Tio Mario, Inc. v. Matos, 778 S.W.2d 529 (Tex. Civ. App.

SEED ccccccenccévtccsbatebaneesstsciessvem 12

United States v. Locke, 529 U.S. 89 (2000) ......... 1,2

United States Steel Corp., In re, 436 F.2d 1256 (6th Cir.

BONED. o ccvccvcccdvccecevestiveteveters th 12

Van Beek v. Sabine Towing Co., 300 U.S. 342 (1937) ... 9

Vance v. American Hawaii Cruises, Inc., 789 F.2d 790

| rr rrr ee Pee 4, 10

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

co ee rrr, Pree ere re 1,2

Webster v. Oglebay Norton Co., 1995 Ohio App. LEXIS

PPT eri cee 12

Williams v. Reading & Bates Drilling Co., 750 F.2d 487

Bila Gir. TED co 64 Heh b FSI CPR MINH 14

Williamson v. Western Pacific Dredging Corp., 441 F.2d

CPG GU. SOFA) occ coceedvedsevecevererernwwns 14

Wyatt v. Penrod Drilling Co., 735 F.2d 951 (5th Cir.

TBD ciccccusetceeesd Werte ecetineeeere 15

Yamaha Motor Corporation v. Calhoun, 516 U.S. 201

(BOSD ode cv cdcdécevecs clever tutes 1

Statute:

SOURS. CI 66 NN ca NT eee 10

GBUBC. Raw. $GGMA) occcccccesecvcedveces passim

(V1)

INTEREST OF THE AMICI CURIAE’

The International Group of Protection and Indemnity

Clubs (the P&I Clubs) consists of nonprofit, mutual

insurance companies which insure the liabilities of their

shipowner members. Together, the P&I Clubs insure the

liabilities of over 95% of the world’s ocean-going

merchant fleet, including virtually all oil tankers and

dry cargo ships trading to the United States. The P&I

Clubs are linked by reinsurance arrangements covering

the larger liability risks of shipowners throughout the

United States and the rest of the world. See generally G.

GILMORE & C. BLACK, THE LAW OF ADMIRALTY 76 (2d ed.

1975). They actively participate in handling claims for

their shipowner members, including the appointment of

lawyers, surveyors, and other experts, and the

expeditious settlement of claims of all types, including

those by seaman seeking recovery under the Jones Act,

46 U.S.C. App. § 688(a). Over the years, the P&I Clubs

have participated as amici curiae in cases before this

Court, most recently United States v. Locke, 529 U.S. 89

(2000); Yamaha Motor Corporation v. Calhoun, 516 U.S.

201 (1996); and Vimar Seguros y Reaseguros, S.A. v.

M/V Sky Reefer, 515 U.S. 529 (1995).

The Chamber of Shipping of America represents

twenty-one U.S.-based companies that own, operate, or

charter ocean-going tankers, container ships, and other

merchant vessels engaged in both domestic and

1 Pursuant to this Court’s Rule 37.6, undersigned counsel

represents that no counsel for any party had any role in authoring

this brief, and no persons or entities other than the amici curiae

made any monetary contribution to its preparation or submission.

Written consents from the parties to the filing of this brief are on file

with the Clerk of the Court.

(1)

2

international trade. The Chamber also represents other

entities that maintain a commercial interest in the

operation of such ocean-going vessels. As a member of

the International Chamber of Shipping, the Chamber

participated as amicus curiae in United States v. Locke,

supra.

The American Institute of Marine Underwriters

(AIMU) has over a century of service as the trade

association representing the marine insurance industry

as an advocate, educator, and center for education. The

AIMU represents approximately 90 percent of the

commercial marine insurance companies in the United

States. It routinely participates in a broad array of

advocacy forums before lawmakers, regulators, and

international bodies. AIMU has participated as amicus

curiae in California v. Deep Sea Research, 523 U.S. 491

(1998); Argentine Republic v. Amerada Hess Shipping

Corporation, 488 U.S. 428 (1989); and M/V Sky Reefer,

supra.

The International Council of Cruise Lines is a

_ domestic non-profit membership association that

includes the largest passenger cruise lines operating in

excess of eighty vessels that call on hundreds of ports in

the United States and abroad. ICCL members employ

thousands of seamen and call on major U.S. ports in

Florida, Alaska, California, Louisiana, New York, Texas,

and Massachusetts. Those ports are in States within the

geographical boundaries of the courts of appeals that

conflict over whether the Jones Act permits prejudgment

interest. The ICCL has participated as amicus curiae in

cases at the certiorari stage in this Court. A precursor

to the ICCL, the International Committee of Passenger

Lines, participated as amicus curiae in Carnival Cruise

Lines, Inc. v. Shute, 499 U.S. 585 (1991).

Together, the amici represent a substantial portion of

38

the insurance-related and shipowning interests that pay

claims to injured seamen under the Jones Act. As such,

they have a vital interest in the proper construction of

that Act.

STATEMENT

Respondent was injured during the course of his

employment on a fishing vessel owned and operated by

petitioner. He subsequently filed this admiralty action

in federal district court, seeking personal injury damages

under the Jones Act, 46 U.S.C. App. § 688(a), damages

for unseaworthiness under the general maritime law,

and maintenance and cure under the general maritime

law.

The district court rendered a split judgment. Pet.

App. B8-B9. The court upheld respondent’s claim for

damages under the Jones Act, awarding substantial

damages (subject to a 15 percent reduction for

respondent’s contributory negligence). Jd. at B7-B8. The

court, however, rejected respondent’s claim that the

vessel was unseaworthy under the general maritime law,

rendering judgment for petitioner on that issue. Jd. at

B8. The court held that petitioner was liable for

maintenance and cure payments to respondent, virtually

all of which had been paid to respondent prior to trial.

Id. at BY.

Respondent moved for an award of prejudgment

interest on the entire award, the damages under the

Jones Act and the maintenance and cure under the

general maritime law. Petitioner opposed that motion in

substantial part, arguing that prejudgment interest was

not available under the Jones Act, because of this

Court’s holdings that the Jones Act incorporates the

substantive law of the Federal Employers’ Liability Act

(FELA) and that "ELA does not authorize courts to

a

4 -

award prejudgment interest. See Monessen

Southwestern Railway Co. v. Morgan, 486 U.S. 330, 336-

339 (1988). Without citing or discussing Monessen, the

district court awarded in excess of $144,000 in

prejudgment interest. Pet. App. B9 (calculation based on

award of damages). The court opined that, “ijn

admiralty cases, prejudgment interest must be awarded

unless peculiar circumstances justify its denial.” Ibid.

Petitioner appealed on the issues whether the

damages award was excessive and whether the Jones

Act authorized prejudgment interest. Respondent did

not cross-appeal the district court’s judgment that

petitioner’s vessel was seaworthy. The court of appeals

rejected petitioner’s contentions, holding that the award

was not excessive and that it is “the norm” for a “court

sitting in admiralty” to “award[] prejudgment interest.”

Pet. App. A2. The court did not address the applicability

of Monessen to whether the Jones Act, properly

construed, authorizes courts to award prejudgment

interest. Ibid. Rather, it treated the matter as settled

law under existing circuit precedent, citing Simeonoff v.

Hiner, 249 F.3d 883, 894 (9th Cir. 2001), and Vance v.

American Hawaii Cruises, Inc., 789 F.2d 790, 794-795

(9th Cir. 1986). Pet. App. A2.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision incorrectly construes the

Jones Act contrary to the manner dictated by this Court

in Monessen Southwestern Railway Co. v. Morgan, 486

U.S. 330 (1988). In so doing, the court’s holding deepens

the disagreements among federal and state courts over

whether the Jones Act authorizes courts to award

prejudgment interest. By resolving the issue presented,

the Court’s decision would also bring clarity to related

questions that have also divided the courts of appeals.

5

The question whether Congress intended in the passage

of the Jones Act for prejudgment interest to be awarded

is recurring and of enormous financial importance to the

maritime industry.

I. THE COURT OF APPEALS’ DECISION

CANNOT BE RECONCILED WITH MONESSEN

A. The Jones Act incorporates the substantive

law of FELA

1. The Jones Act provides that “[aJny seaman who

shall suffer personal injury in the course of his

employment may * * * maintain an action for damages

at law, * * * and in such action all statutes of the United

States modifying or extending the common-law right or

remedy in cases of personal injury to railway employees

shall apply.” 46 U.S.C. App. § 688(a). In its very first

case construing the Jones Act, this Court held that this

language refers to the FELA “and its amendments” and

that Congress intended that language as “a recognized

mode of incorporating one statute or system of statutes

into another,” thereby serving “to bring into the latter all

that is fairly covered by the reference.” Panama

Railroad Co. v. Johnson, 264 U.S. 375, 391-392 (1924).

2. This Court’s subsequent decisions confirm that

Congress intended for the Jones Act to be construed to

incorporate judicial decisions interpreting FELA. As the

Court has explained, the Jones Act “adopts the entire

judicially developed doctrine of liability under the

Federal Employers’ Liability Act (FELA).” American

Dredging Co. v. Miller, 510 U.S. 4438, 456 (1994)

(quotation omitted).

The Court’s decisions also establish that this

3 incorporation is to be neutrally applied: if Congress

intended for FELA to be construed to incorporate a legal

6

principle, then that principle also applies in Jones Act

cases; but if FELA does not incorporate that principle, it

is not incorporated into the Jones Act. Thus, this Court

has confirmed that “(t]he Jones Act created a federal

right of action for the wrongful death of a seaman based

on the statutory action under the Federal Employers’

Liability Act.” Kernan v. American Dredging Co., 355

U.S. 426, 429 (1958). The Court has also held that “the

Jones Act — which in terms incorporates the provisions

of the FELA —- permits recovery for the death of a

seaman resulting from a violation of a statutory duty.”

Id. at 431. See also Miles v. Apex Marine Corp., 498 U.S.

19, 32 (1990) (stating that “the Jones Act makes

applicable to seamen the substantive recovery provisions

of the older FELA”).

Conversely, when the FELA has not been construed

to incorporate a judicial doctrine, as in the case of forum

non conveniens, this Court has held that an action filed

under the Jones Act also does not incorporate that

principle. See American Dredging, 510 U.S. at 456

(holding that, because a state court is free under FELA

“to decide the availability of the principle of forum non

conveniens in these suits according to its own local law,”

the same rule should apply to Jones Act suits).

B. Prejudgment interest is not permitted under

FELA

In Monessen, this Court squarely addressed “whether

state courts may award prejudgment interest pursuant

to local practice in actions brought under the FELA.”

486 U.S. at 334. In holding that FELA does not

authorize awards of prejudgment interest, the Court

reasoned as follows. First, the Court explained that

courts “are required to apply federal substantive law in

adjudicating FELA claims.” Id. at 335. The Court then

-

7

reasoned that the correct measure of damages is

“inseparably connected with the right of action,’ and

therefore is an issue of substance that ‘must be settled

according to general principles of law as administered in ~

the Federal courts.” Ibid. (quoting Chesapeake & Ohio

R. Co. v. Kelly, 241 U.S. 485, 491 (1916)). Third, the

Court concluded that prejudgment interest is properly

considered “part of the actual damages sought to be

recovered.” Ibid. The Court rejected the notion that a

rule of procedure could trump the application of

substantive federal statutory law in determining the

availability of prejudgment interest. Jd. at 335-336.

The Court then analyzed whether Congress intended

for courts to award prejudgment interest under FELA.

486 U.S. at 336-339. The Court noted that FELA was

silent on the question of prejudgment interest, id. at

336-337, but explained that “a sufficiently clear

indication of legislative intent” emerged from “Congress’

silence on this matter in the appropriate historical

context,” id. at 337. The Court found that “[iJn 1908,

when Congress enacted the FELA, the common law did

not allow prejudgment interest in suits for personal

injury or wrongful death.” Ibid. (collecting cases and

treatise authorities). The Court concluded, therefore,

that “[i]f prejudgment interest is to be available under

the FELA, then Congress must expressly so provide.” Jd.

at 339.

C. There is no sound reason to construe the

Jones Act differently than FELA with

respect to prejudgment interest

1. Except when the maritime context otherwise

dictates, Congress intended for injured seamen to receive

the same types of remedies as injured rail workers. See

Kernan, 355 U.S. at 439 (incorporating FELA into the

8

Jones Act to hold that an employer's violation of a

statutory duty will give rise to liability to an injured

seaman because “[t]he deceased seaman here was in a

position perfectly analogous to that of the railroad

workers allowed recovery in the line of cases we have

discussed”). “{TJhe Jones Act establishes a uniform

system of seaman’s tort law parallel to that available to

employees of interstate railway carriers under FELA.”

Miles, 498 U.S. at 29.

2. This Court has emphasized that the maritime

statutes creating remedies for death and injury should

be construed to include only remedies intended by

Congress. See, e.g., Dooley v. Korean Air Lines, 524 U.S.

116, 123 (1998) (Death on the High Seas Act (DOHSA)

“expresses Congress's judgment that there should be no

such cause of action [for pre-death pain and suffering] in

cases of death on the high seas”); Miles, 498 U.S. at 29

(holding that enactment of the Jones Act precludes

seaman from recovering for loss of society in a wrongful

death action); Mobil Oil Corp. v. Higginbotham, 436 U.S.

618 (1978) (DOHSA action can not be supplemented with

additional recovery for loss of society under general

maritime law); Gillespie v. United States Steel Corp.,379

U.S. 148, 154-156 (1964) (Jones Act precludes recovery

under a state statute for wrongful death of a seamen due

to unseaworthiness because Congress did not include

that remedy in the Jones Act); Lindgren v. United States,

281 U.S. 38, 44 (1930) (Jones Act preempts state law

wrongful death action for person not a beneficiary under

the Jones Act).

Similarly, the remedies recognized by statute in the

Jones Act (and through FELA as incorporated into the

Jones Act) do not support a claim for any type of

damages; rather, the remedies include only those

measures of damages contemplated by Congress. For

———— —s

9

example, in a survival action created under the Jones

Act, through the incorporation of FELA, “recovery is

limited to losses suffered during the decedent’s lifetime.”

Miles, 498 U.S. at 35 (citing Van Beeck v. Sabine Towing

Co.,300 U.S. 342, 347 (1937); St. Louis, I.M. & S. R. Co.

v. Craft, 237 U.S. 648, 658 (1915)).

3. Prejudgment interest is the type of legal remedy

Congress contemplated and rejected for inclusion in the

Jones Act and FELA when it enacted those statutes. In

Miles, for example, the Court noted that Congress was

aware of a pecuniary limitation on damages for loss of

society under common law when it enacted FELA. “We

assume that Congress is aware of existing law when it

passes legislation,” thus holding that “[t]here is no

recovery for loss of society in a Jones Act wrongful death

action.” 498 U.S. at 32. Because Congress understood

that prejudgment interest was not available at common

law when it enacted the FELA, its incorporation of

FELA into the Jones Act necessarily means that

prejudgment interest may not be awarded under the

Jones Act. See Monessen, 486 U.S. at 337. See also

Dooley, 524 U.S. at 123 (“Because Congress has already

decided these issues, it has precluded the judiciary from

enlarging the class of beneficiaries or the recoverable

damages.”).

D. The Ninth Circuit’s analysis is flawed

Although its discussion is cursory, the Ninth Circuit

apparently views the availability of prejudgment

interest as dependent on the nature of jurisdiction

invoked by the plaintiff, and not on the substantive law

of the Jones Act. That reasoning is flawed.

The court below (Pet. App. A2) rested its affirmance

of the district court’s award of prejudgment interest on

prior Ninth Circuit decisions in Simeonoff v. Hiner, 249

10

F.3d 883, 893 (9th Cir. 2001), and Vance v. American

Hawaiian Cruises, Inc., 789 F.2d 790, 792 (9th Cir.

1986). Those cases, however, rely on the rule allowing

prejudgment interest under the general maritime law,

which is distinguishable from the context of awarding

prejudgment interest under the Jones Act.

Under admiralty law, an award of prejudgment

interest is the general rule, “subject to a limited

exception for ‘peculiar’ or ‘exceptional’ circumstances.”

City of Milwaukee v. National Gypsum Co., 515 U.S. 189,

195 (1995). That case, however, does not provide

support for the Ninth Circuit’s view that prejudgment

interest may also be awarded in a Jones Act case, even

if that action is brought under the court’s admiralty

jurisdiction. In holding that the general rule of

maritime Jaw allowed an award of prejudgment interest

for the maritime collision claim at issue, the Court in

City of Milwaukee noted that Congress “has enacted a

statute governing the award of postjudgment interest in

federal court litigation, see 28 U.S.C. § 1961, [but] there

is no comparable legislation regarding prejudgment

interest.” Id. at 194. As the Court explained, “the

absence of a statute merely indicates that the question

is governed by traditional judge-made principles.” Jbid.

The Court then cited Monessen as support for the

proposition that a congressional statute would supplant

“judge-made principles.” Ibid.

The Court’s decision in City of Milwaukee did not rest

on the jurisdictional basis for the court’s authority to

render judgment, but rather on the underlying

substantive law giving rise to the cause of action for

damages. That conclusion derives from two points

stressed by the Court. First, City of Milwaukee (515 U.S.

at 194) cited Monessen, which itself was unequivocal

that prejudgment interest is a question of substantive

11

law. See 486 U.S. at 334-336. Second, the Court’s

discussion of the reasons for permitting prejudgment

interest in admiralty cases rests on the substantive

principles of admiralty law and not its jurisdictional

requisites. See 515 U.S. at 194 (“admiralty decrees have

included provisions for prejudgment interest”); id. at 195

(“general rule that prejudgment interest should be

awarded in maritime collision cases”).

Thus, this Court’s decisions establish that, even

though prejudgment interest may be awarded when a

claim arises under the substantive law of admiralty, see

City of Milwaukee, 515 U.S. at 195, prejudgment interest

may not be awarded when the claim arises under the

substantive iaw of a statute that does not authorize an

award of prejudgment interest, see Monessen, 486 U.S.

at 336. The jurisdictional basis of the court’s power to

issue a remedial decree simply has no bearing on

whether the substantive law authorizes an award of

prejudgment interest.

II. STATE AND FEDERAL COURTS CONFLICT

OVER WHETHER THE JONES ACT

AUTHORIZES THE AWARD OF

PREJUDGMENT INTEREST

A. The Ninth Circuit’s decision conflicts with

the decisions of other courts foreclosing

prejudgment interest under the Jones Act

1. The Ninth Circuit’s decision directly conflicts with

the longstanding rule in the Sixth Circuit that, “[wJith

respect to Jones Act cases, this Court has noted that in

a seaman’s action to recover for personal injury or death,

the general rule is that interest is awarded from the date

that the damages have been judicially determined, and

not prejudgment interest from the date of injury.”

12

Anderson v. Whittaker Corp., 894 F.2d 804, 808 (6th Cir.

1990) (internal quotation marks omitted). The Sixth

Circuit has consistently applied that rule even when the

Jones Act claim is brought under the court’s admiralty

jurisdiction. See Oglebay Norton Co. v. CSX Corp., 788

F.2d 361, 362 (6th Cir. 1986); In re United States Steel

Corp., 436 F.2d 1256, 1279 (6th Cir. 1970) (limitation of

liability action brought in admiralty denying

prejudgment interest for claimant’s Jones Act claim);

Cleveland Tankers; Inc. v. Tierney, 69 F.2d 622, 626 (6th

Cir. 1948) (holding that the FELA rule that “an award of

interest is not permitted prior to the judicial

determination of damages * * * applies under the Jones

Act”). Petitioner thus clearly would have prevailed if

this case had been litigated in the Sixth Circuit.

2. After Monessen, a number of state courts have

correctly analyzed the applicability of prejudgment

interest as a question of substantive law, and not of the

court’s jurisdiction over the claim, and thereby held that

prejudgment interest cannot be awarded in a Jones Act

suit. In Webster v. Oglebay Norton Co., 1995 Ohio App.

LEXIS 238, at *19-*20 (Ohio App. 1995), for example,

the Ohio court of appeals followed Monessen to hold that

“the availability of prejudgment interest is a substantive

matter governed by federal law” and “state courts cannot

avoid the application of FELA [through incorporation

into the Jones Act] by characterizing the state

prejudgment statute as procedural rather than

substantive.” See also Tio Mario, Inc. v. Matos, 778

S.W.2d 529, 532 (Tex. Civ. App. 1989) (following

Monessen to rule that trial court erred in awarding

prejudgment interest under the Jones Act).

13

B. Thejurisdiction-based approach has created

conflicts among the federal courts on the

applicability of prejudgment interest in

Jones Act cases

1. The Fifth Circuit appears to be largely responsible

for creating confusion on this issue by establishing a

complex set of rules governing prejudgment interest that

is triggered in part by the plaintiffs invocation of

jurisdiction in Jones Act cases:

Courts have generally recognized that the award

of prejudgment interest may be appropriate in Jones

Act cases tried in admiralty. E.g., Sanford Bros.

Boats, Inc. v. Vidrine,412 F.2d 958, 972-73 (5th Cir.

1969). Further, when a Jones Act claim is tried

jointly with a maritime claim before a judge,

prejudgment interest may be awarded at the judge’s

discretion. See Ceja v. Mike Hooks, Inc., 690 F.2d

1191, 1196 (5th Cir. 1982). It is equally well

established in this Circuit that prejudgment interest

is not available in Jones Act cases tried at law.

Barrios v. Louisiana Construction Materials Co., 465

F.2d 1157 (5th Cir. 1972); Vidrine, 412 F.2d at 972-

73.

Domangue v. Penrod Drilling Co., 748 F.2d 999, 1000

(5th Cir. 1984) (per curiam). In articulating those

“rules,” however, the Fifth Circuit has not provided an

explicable rationale for its holdings. Consequently, other

courts have divided over the application of some of those

rules, which has led to significant confusion among

federal courts over when prejudgment interest may be

awarded in a Jones Act suit.

2. Some courts hold that a seaman is not entitled to

prejudgment interest in a Jones Act suit tried to a jury.

See, e.g., Magee v. United States Lines, Inc., 976 F.2d

821, 822 (2d Cir. 1992); Borges v. Our Lady of the Sea

14

Corp., 935 F.2d 436, 443 n.1 (1st Cir. 1991); Theriot v. J.

Ray McDermott & Co., 742 F.2d 877, 883 (5th Cir. 1984).

Those decisions appear to be based on a purported

rationale that the plaintiffs request for a trial by jury

negates his entitlement to prejudgment interest in a

Jones Act suit. That explanation - that the case is being

decided “at law” rather than “at admiralty,” however, is

merely a label for a result and not a coherent

explanation of why the substantive law of the Jones Act

logically depends on the forum where the case is tried.

Other courts — many from the same circuits as

mentioned above — hold that prejudgment interest is

authorized under the Jones Act when the suit-is tried in

admiralty. See, e.g., City of Boston v. S.S. Texaco Texas,

773 F.2d 1396, 1401 (1st Cir. 1985); Williams v. Reading

& Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985)

(stating that “it is well settled that in an action at law

under the Jones Act, the recovery of prejudgment

interest is not permitted, [but] the same rule does not

apply to Jones Act cases brought under the court’s

admiralty jurisdiction”) (citations omitted). Thus, in

Williams, the court held that “when a Jones Act claim is

brought under the court’s admiralty jurisdiction, and

hence the case is tried to the court and not to the jury,

the allowance of prejudgment interest is within the

discretion of the trial court even if there is not a finding

of unseaworthiness.” 750 F.2d at 491. See also

Williamson v. Western Pacific Dredging Corp., 441 F.2d

65, 67 (9th Cir. 1971). The Sixth Circuit rule conflicts

with the holdings of those circuits and the court below

(Pet. App. A2). See pp. 11-12, supra.

3. The inconsistency between those positions invites

forum-shopping by plaintiffs and promotes confusion

among courts, which exacerbates the difficulties of

marine insurers and shipowners in allocating risks. In

15

suits with the types of claims brought by respondent in

this case — a Jones Act claim and an unseaworthiness

claim brought in the same action — two circuits hold that

prejudgment interest is not permitted and one circuit

holds that it is.

In Wyatt v. Penrod Drilling Co., 735 F.2d 951, 953

(5th Cir. 1984), the Fifth Circuit explained that it was

publishing its opinion “primarily to address * * *

whether [the plaintiff] is entitled to prejudgment

interest.” Noting that problems were being “created by

our somewhat conflicting precedents,” id. at 956, the

court in that case ruled that, when a plaintiff brings a

case for Jones Act negligence and admiralty

unseaworthiness, and the jury awards damages that

cannot be differentiated between the two claims, a court

may not award prejudgment interest, in view of the

circuit rule “disapproviing] the award of prejudgment

interest in a Jones Act tried to a jury,” id. at 955. See

also Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378

(5th Cir. 1989). ;

The Sixth Circuit, in this respect, is in accord with

the Fifth Circuit. See,e.g., Anderson v. Whittaker Corp.,

894 F.2d 804, 808 (6th Cir. 1990) (holding that because

“(t]he jury’s verdict does not disclose whether the

damage award was based upon the Jones Act or upon the

unseaworthiness claim” and “[wJhere it is impossible to

determine if the damages awarded relate only to the

unseaworthiness claim, prejudgment interest will not be

awarded at all”) (quoting Petersen v. Chesapeake & Ohio

Ry. Co., 784 F.2d 732, 741 (6th Cir. 1986)).

In direct conflict with the Fifth and Sixth Circuits on

this rule is the Second Circuit, which has held that when

a plaintiff is awarded damages for a Jones Act claim

along with an unseaworthiness claim, a court may

award prejudgment interest. Indeed, the Second Circuit

16

has explicitly acknowledged a conflict on this issue. See,

e.g., Magee, 976 F.2d at 822 (“with all due respect for our

learned colleagues in these two circuits [Fifth and Sixth],

we reach a different conclusion in the instant case”).’

4. The judicial confusion over when a court may

award prejudgment interest for a Jones Act claim is

compounded still further by the vagaries of litigation. A

Fifth Circuit case illustrates the conundrums faced by

injured seamen, shipowners, and insurers alike. In

Martin v. Walk, Haydel & Associates, Inc., 794 F.2d 209

(5th Cir. 1986) (per curiam), a dredging inspector was

injured while stepping off a barge and onto a flatboat.

After settling with one party, the plaintiff abandoned his

original request for a jury trial. The case proceeded with

findings of negligence and unseaworthiness against the

inspector’s employer and negligence against the flatboat

operator. The court of appeals reversed as to employer’s

unseaworthiness and as to the flatboat operator’s

negligence, but affirmed on the employer’s negligence

2 This Court’s proper resolution of the question presented —

whether a court may award prejudgment interest under the

substantive law of the Jones Act — would also shed light on the

proper rule to apply with respect to the unapportioned damages

issue as well. If the Court were to rule, as petitioners and amici

urge, that prejudgment interest may not be awarded under the

Jones Act, there would be no legal basis for the Second Circuit’s rule

that such interest may be awarded when such an award is combined

with a claim for unseaworthiness. See, e.g., Miles, 498 U.S. at 24

(holding that, when the Jones Act addresses an issue, the general

maritime law cannot provide a supplemental remedy as to that

issue). Conversely, if this Court were to agree with respondent that

the Jones Act permits prejudgment interest to be awarded, then the

Fifth and Sixth Circuit rules prohibiting such interest in cases with

combined Jones Act and unseaworthiness claims would be

insupportable.

eet a

17

and remanded the case for reapportionment of fault and

an appropriate reduction of the judgment. The remand

order was silent as to prejudgment interest. Id. at 210.

On remand, the district court found the liability for

unseaworthiness and negligence to have been equal,

dismissed the flatboat operator, and entered an award

for damages and prejudgment interest against the

seaman’s employer. Ibid. On appeal again, the Fifth

Circuit addressed only the issue of prejudgment interest.

The court recalled its prior mandate, held that the

plaintiffs decision to forego a jury trial in mid-litigation

vested the district court with discretion to award

prejudgment interest (as the case was now in admiralty),

and then held that the district court had improperly

awarded prejudgment interest as to future damages,

which was not permitted under circuit law. Jd. at 211-

212. For the reasons stated above, however, that

decision is incorrect. See pp. 5-11, supra.

A recent Second Circuit provides another illustration

of how the vagaries of procedure have been held to affect

the award of prejudgment interest. In Jones v.

Spentonbush-Red Star Co., 155 F.3d 587, 593 (2d Cir.

1998), the court upheld a district court’s decision not to

exercise its discretion to award prejudgment interest

based on the delay of plaintiff in bringing the lawsuit —

nearly three years after the injury but still within the

statute of limitations period.

As the foregoing cases and those cited throughout

Part II confirm, ship operators and their insurers face

liability for prejudgment interest in Jones Act suits in

some courts if the injured seaman (a) sues in admiralty;

(b) abandons his request for a jury in mid-litigation and

proceeds with an admiralty action; or (c) combines his

Jones Act claim with an unseaworthiness claim and

prevails on both. They do not face liability for

18

prejudgment interest in Jones Act suits in some courts

if the injured seaman (a) sues in federal court and seeks

a jury trial; (b) sues in state court under the Jones Act

and invokes. state procedural rules to obtain

prejudgment interest; (c) delays too long in bringing suit;

(d) sues in federal court on the law side, combines his

Jones Act and unseaworthiness claims, and the jury

cannot reasonably differentiate between the two in

assessing damages; or (e) sues in the Sixth Circuit,

where the court has properly held that prejudgment

interest may not awarded under the Jones Act as a

matter of substantive law.

That state of the law is flatly inconsistent with this

Court’s admonition that “prejudgment interest

constitutes too substantial a part of a defendant’s

potential liability” to be left to the vagaries of a “rule of

procedure.” Monessen, 486 U.S. at 336. As the Fifth

Circuit aptly put it, “[tlo make prejudgment interest

depend on the route by which a plaintiff arrived in

federal court is to confuse jurisdiction with remedy in a

way no longer accepted in other areas of the law.”

Snyder v. Whittaker Corp. , 839 F.2d 1085, 1095 (5th Cir.

1988). This Court should grant certiorari to clarify the

proper rule to be applied in Jones Act cases.

Ill. THISCASE PRESENTS A RECURRING AND

IMPORTANT ISSUE TO THE MARITIME

INDUSTRY

A. There is no need for this Court to allow

further “percolation”

As set forth in Part II, the conflicting approaches and

confusion among the lower courts over when

prejudgment interest may be awarded in a Jones Act

suit are longstanding. The lower courts should have, but

19

did not, appreciate this Court’s decision in Monessen as

providing the requisite guidance. Numerous decisions

after Monessen have continued to hew to the pre-existing

circuit approaches. See, e.g., Simeonoff, 249 F.3d at 894;

Jones, 155 F.3d at 593; Magee, 976 F.2d at 822-823;

Borges, 935 F.2d at 443 n.1; Anderson,894 F.2d at 808;

Jones v. Pool Offshore Co., 893 F.2d 713, 719-720 (5th

Cir. 1990): Those decisions make clear- that the

prevailing circuit confusion is simply being entrenched

or extended.

B. The issue is of great importance to the

maritime industry

This Court has made clear that the Jones Act

“establishes a uniform federal law that state as well as

federal courts must apply to the determination of

employer liability to seamen.” American Dredging, 510

U.S. at 455 (emphasis added). That uniformity, which

provides crucial assurance to the maritime industry, is

completely unsettled by a legal regime that hinges the

payment of awards for prejudgment interest on the

vagaries of where a case arises, how a plaintiff invokes

jurisdiction in the complaint, or how the case proceeds

through litigation. The conflicting approaches of the

Second, Fifth, Sixth, and Ninth Circuits embrace the

major sea ports of the United States and river traffic

along the Mississippi River.

Although the amici do not keep specific records on the

amount of claims paid for Jones Act cases, they can

represent to this Court that approximately 25 percent of

all insured claims in any given year will be paid for crew

member personal injuries, with a total exposure into the

tens of millions of dollars annually. Interests

represented by the amici thus face uncertain

consequences on a large scale depending on where an

20

injured seaman might choose to bring suit. For many of

the amici operating in the coastal trade and which

routinely call into ports from different judicial circuits on

the same voyage, that uncertainty creates an arbitrary

and wholly irrational application of the law. Such

uncertainty has particularly large consequences when,

as this Court has recognized, “prejudgment interest may

constitute a significant portion of [a Jones Act] plaintiffs

total recovery” — as in Monessen, increasing the total

recovery “by more than 20 percent.” 486 U.S. at 335.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DAVID C. FREDERICK

Counsel of Record

Kellogg, Huber, Hansen,

Todd & Evans, P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

Counsel for Amici Curiae

DECEMBER 2001