IN THE Supreme Court of the United States CARL MORGAN, ROSHTO MARINE, INC., Respondent.

Transcription

1 1 IN THE Supreme Court of the United States CARL MORGAN, v. Petitioner, ROSHTO MARINE, INC., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR THE RESPONDENT X

2 2 QUESTIONS PRESENTED This maritime tort action seeks damages from the Respondent, Roshto Marine, Inc., based upon actions taken by the Petitioner, Carl Morgan, seeking recovery of punitive damages for a personal injury that occurred on the Sally Mae during the course of the Petitioner s employment. The questions presented are: 1. the availability of punitive damages under the Jones Act, and 2. the availability of punitive damages in general maritime law actions for unseaworthiness.

3 3 TABLE OF CONTENTS QUESTIONS PRESENTED... 2 TABLE OF CONTENTS... 3 TABLE OF AUTHORITIES... 5 OPINIONS BELOW... 9 BASIS FOR JURISDICTION CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED STATEMENT OF THE CASE I. Introduction and factual background SUMMARY OF ARGUMENT ARGUMENT I. Morgan is not entitled to punitive damages for his Jones Act negligence claim A. The intent of Congress in enacting the Jones Act was to mirror FELA, which does not allow punitive damages i. Congress s intention behind FELA and the Jones Act was not to include a remedy for non-pecuniary damages B. Current law confirms the proposition that the Jones Act does not grant punitive damages, and no superseding precedent cases have ruled to the contrary II. The Supreme Court Has Never Recognized Punitive Damages As An Available Remedy Under The General Maritime Law Doctrine Of Unseaworthiness A. This Court in Miles reaffirmed the time-tested principle that Federal admiralty law is a body of law that coextends and operates uniformly within the whole country B. Congress intended to not award punitive damages to seaworthiness claims when it enacted the Jones Act, and historically, punitive damages have not been awarded for personal injury claims of unseaworthiness C. Maintenance and Cure are separate and distinct contractual obligations, therefore Townsend does not apply to the case at bar..40

4 4 D. Congress has enacted a statute that criminalizes a ship owner s knowledge of sending out an unseaworthy vessel, thereby vanquishing any arguments that punitive damages are required to punish wrongdoers CONCLUSION... 48

5 5 TABLE OF AUTHORITIES CASES American Railroad Co. of Porto Rico v. Didricksen, 227 U.S. 145, (1913)...26 Anderson v. Texaco, Inc., 797 F. Supp. 531, 534 (E.D. La. 1992)..29, 44, 45 Anguilar v. Standard Oil Co., 318 U.S. 724, (1943).41 Atlantic Sounding v. Townsend, 557 U.S. 404, (2009)...15, 17, 18, 19, 31 Bergen v. F/V St. Patrick, 816 F.2d 1345, (9th Cir. 1987)..17, 27, 31 Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, (1959) 23, 36 Evich v. Morris, 819 F.2d 256, (9 th Cir. 1987)...17, 38 Exxon Shipping v. Baker, 554 U.S. 471 (2008).17 Fitzgerald v. United States Lines Co., 306 F.2d 461, (2d Cir. 1962) 36

6 6 Guevara v. Mar. Overseas Corp., 59 F.3d 1496, (5th Cir. 1995).29, 41 Gulf, Colorado and Santa Fe Railway Co. v. McGinnis, Admin. etc., 228 U.S. 173, (1913).26 Horsley v. Mobil Oil Corp., 15 F.3d 200, (1st Cir. 1994).29 In re Marine Sulphur Queen, 460 F.2d 89, (2d Cir.1972)...39 Kopczynski v. The Jacqeline, 742 F.2d 555, (9 th Cir. 1984) 17, 27, 29, 30, 31 Kozar v. Chesapeake, 449 F.2d 1238, (1971)..22 Lirette v. K & B Boat Rentals, Inc. 579 F.2d 968 (1978).42 Louviere v. Fidelity & Casualty Co., 20 F.Supp.260 (W.D.La.1962)...42 McAllister v. Magnolia Petroleum Co., 357 U.S. 221, (1958)...37, 39, 40, 44 McBride v. Estis Well Service L.L.C., 768 F.3d 382 (5th Cir. 2014).29, 30, 32, 34, 36, 37, 38, 43, 44, 45, 46, 47 Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, (1913).27

7 7 Miles v. Apex Marine Corp., 498 U.S. 19 (1990)....15, 18, 19, 24, 25, 26, 33, 34, 35, 36, 41 Miller v. Am. President Lines, Ltd., 989 F.2d 1450, (6th Cir. 1993) 30 Muratore v. M/S Scotia Prince, 845 F.2d 347, (1st Cir.1988)..38, 39 Pacific Steamship v. Peterson, 278 U.S. 130, (1928) 42 Pope & Talbot Inc. v. Hawn, 346 U.S. 406, (1953)...34 Protectus Alpha Navigation Co. v. North Pacific Grain Growers, 767 F.2d 1379, (9th Cir.1985)..39 Robinson v. Pocahontas, Inc., 477 F.2d 1048, (1st Cir.1973) 39 Rogers v. Missouri Pac. R. Co., 352 U.S. 500, (1957) 21, 22 The Amiable Nancy, 16 U.S. 546, (1818) 38 The Osecola, 189 U.S. 158, (1903) 21 United States v. Rivera, 131 F.3d 222, (1st Cir. 1997) 46 Urie v. Thompson, 337 U.S. 163, (1949).22

8 8 Wagner v. Kona Blue Water Farms, L.L.C., NO. CIV , 2010 WL (D. Haw. Sept. 13, 2010)..21, 24, 29, 32, 40, 41 Wildman v. Burlington Northern R. Co., 825 F.2d 1392, (9th Cir. 1987)...23 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES Jones Act, 46 U.S.C , 21, 24, 36 Federal Employers Liability Act, 45 U.S.C , 23, 26 Death on the High Seas Act, 46 U.S.C U.S.C. 1254(1)...11, U.S.C , 19, 46

9 9 OPINIONS BELOW The opinion of the court of appeals is at 1a of the Appendix to the Petition for Certiorari. The order of the court of appeals for the ninth circuit denying rehearing is at 5a of the Appendix to the Petition for Certiorari. The opinion of the district court is at 6a of the Appendix to the Petition for Certiorari.

10 10 BASIS FOR JURISDICTION The judgment of the court of appeals for the ninth circuit was filed and entered on May 5, A petition for rehearing was denied on June 12, The petition for a writ of certiorari was filed on September 10, 2015, and was granted on December 7, The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

11 11 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 28 U.S.C. 1254(1): Cases in the courts of appeals may be reviewed by the Supreme Court by writ of certiorari granted upon the petition of any party The Jones Act, 46 U.S.C (b): A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section. [A] civil action for maintenance and cure or for damages for personal injury or death may not be brought under a maritime law of the United States if the individual suffering the injury was not a citizen or permanent

12 12 resident alien of the United States the incident occurred in the territorial waters overlaying the continental shelf of a country other than the United States and the individuals suffering the injury was employed by a person engaged in the exploration of energy resources. The Federal Employers Liability Act, 45 U.S.C. 51: Every common carrier by railroad while engaging in commerce shall be liable in damages to any person suffering injury while he is employed by such carrier or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow for such injury or death resulting in whole or in part from the negligence of such carrier. The Death on the High Seas Act, 46 U.S.C :

13 13 When the death of an individual is caused by wrongful act occurring on the high seas of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The recovery in an action under this chapter shall be a fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought. The relevant section of 46 U.S.C (2006) provides that A person that knowingly sends or attempts to send, or that is a party to sending or attempting to send, a vessel of the United States to sea, in an unseaworthy state that is likely to endanger the life of an individual, shall be fined not more than $1,000, imprisoned for not more than 5 years, or both.

14 14 STATEMENT OF THE CASE I. INTRODUCTION AND FACTUAL BACKGROUND The Supreme Court s holding in Atlantic Sounding v. Townsend, 557 U.S. 404, (2009), allowing a Jones Act seaman to recover punitive damages under the general maritime law doctrine of maintenance and cure is contrary to the uniformity principle articulated by the Supreme Court in Miles v. Apex Marine Corp., 498 U.S. 19 (1990). Miles holds that courts must not expand the damages remedies beyond those allowed by Congress in enacting the Jones Act, 46 U.S.C , and the Death on the High Seas Act, 46 U.S.C , ( DOHSA ). Miles, 498 U.S. at 29. According to longstanding judicial interpretation, the Jones Act limits recovery to pecuniary damages, the same remedial restrictions of the Federal Employers Liability Act. Despite this Court s holding in Miles confirming the uniformity principle, Petitioner, Carl Morgan ( Morgan ),

15 15 demands punitive damages as a remedy for both his Jones Act and unseaworthiness claim.

16 16 SUMMARY OF ARGUMENT Morgan pursues remedies under the Jones Act and general maritime law. This appeal focuses on Morgan s claim for punitive damages which is a non-pecuniary remedy, and therefore not an available remedy under the Jones Act. The Ninth Circuit was correct when it upheld the clear rule that punitive damages may not be sought in Jones Act actions. See Kopczynski v. The Jacqeline, 742 F.2d 555, (9 th Cir. 1984); Evich v. Morris, 819 F.2d 256, 258 (9 th Cir. 1987); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir. 1987). The Ninth Circuit was correct when it upheld that Morgan s allegations seeking punitive damages under the Jones Act must be dismissed. Further, the Ninth Circuit was correct that neither this Court s decision in Exxon Shipping v. Baker, 554 U.S. 471 (2008) nor in Atlantic Sounding v. Townsend Co., 129 S.Ct (2009) is availing.

17 17 The Ninth Circuit, also correctly granted Roshto s motion to dismiss the unseaworthiness-based count for punitive damages. For Miles made it clear that the judicial branch must look to statutes for policy guidance rather than overstep their place in the constitutional scheme by expanding remedies for the mere reason that it might benefit seamen in the case at hand. Miles v. Apex Marine Corp, 498 U.S. 19, 30 (1990). There is no Supreme Court case to date that has specifically said that punitive damages are available under the general maritime law doctrine of unseaworthiness. As such, Atlantic Sounding v. Townsend Co., 557 U.S. 404 (2009) is unpersuasive to the case at bar as it differs significantly from cases where an employer s alleged failure to maintain a seaworthy vessel caused the seaman to suffer injury. Townsend instead confirmed that Miles remains good

18 18 law. 557 U.S. at 418. Punitive damages are furthermore not required to punish ship owner s for the action of sending out unseaworthy vessels, as Congress has enacted a statute that criminalizes these actions. 46 U.S.C (2006).

19 19 ARGUMENT I. MORGAN IS NOT ENTITLED TO PUNITIVE DAMAGES FOR HIS JONES ACT NEGLIGENCE CLAIM. Morgan alleges that he is permitted to pursue punitive damages on his Jones Act claim. However, as a matter of law, the statute does not permit for the recovery of punitive damages. When enacting the Jones Act, it was Congress s intention that the Jones Act incorporate by reference the standards of the Federal Employers Liability Act (FELA), 45 U.S.C , including limiting losses to pecuniary damages. Furthermore, the Jones Act was established to create a cause of action for injured seaman, thereby creating uniformity via statutory enactment. A broad reading of Townsend must be rejected. As such, punitive damages are not an available remedy under the Jones Act. A. The intent of Congress in enacting the Jones Act was to mirror FELA, which does not allow punitive damages.

20 20 The Jones Act was enacted in 1920 in response to the Supreme Court s decision in The Osecola, 189 U.S. 158, 487 (1903) (overturning the third proposition that, the seaman is not allowed to recover an indemnity for the negligence of the master or any member of the crew ). The Jones Act provides a remedy that didn t exist under general maritime law to seamen, and their survivors, to sue for compensation for personal injury and wrongful death based on the negligence of the seaman s employer. 46 U.S.C The statute was recodified in 2006 to provide for clarity as well as to eliminate unnecessary words. See, Wagner v. Kona Blue Water Farms, L.L.C., NO. CIV , 2010 WL (D. Haw. Sept. 13, 2010). Congress enacted FELA in 1908 in response to its dissatisfaction with the common law duty of the master to his servant. Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506 (1957). The rationale behind FELA was to supplant the duty of the master to his servant with the more drastic duty of paying damages for injury or death in the course of

21 21 the servant s employment, due in whole or in part, to the employer s negligence. Id. Early cases interpreted FELA to be founded on common law concepts of negligence and injury. Urie v. Thompson, 337 U.S. 163, 182 (1949) (holding that if recovery for occupational diseases were incorporated in the category of injuries compensable under the FELA, this would only serve to thwart the congressional purpose). For the first time, in 1971, a circuit court addressed whether a plaintiff could recover punitive damages for a FELA claim. Kozar v. Chesapeake, 449 F.2d 1238, 1239 (1971). In Kozar, the estate of a deceased foreman of a wrecker crew brought an action for both compensatory and punitive damages under FELA. Id. The Sixth Circuit, clearly held that punitive damages are not recoverable under FELA. 449 F.2d at Furthermore, the court explained the distinction between the terms remedy and damages. Id. It held that since the purpose of damages is to measure injury, to say that at common law there was punitive damages as a right of action or there was

22 22 available the common law remedy action of punitive damages or a punitive damages remedy is a misuse of the legal terminology. 449 F.2d at This set a precedent for other circuits that Congress did not intend for the enactment of FELA to extend beyond pecuniary damages. Wildman v. Burlington Northern R. Co., 825 F.2d 1392, 1396 (9th Circ. 1987) (holding that a railroad employee could not recover punitive damages under FELA for injuries that ensued from being thrown from a caboose when the train made an emergency stop). When the Jones Act was enacted, it was Congress s intention to extend to maritime workers the negligence remedy provided for interstate railroad workers by FELA. 45 US.C. 51, Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 131 (1959). This Court explained that that the Jones Act makes applicable to seamen the substantive recovery provisions of the older FELA. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990). Furthermore, Congress by incorporating FELA into the Jones Act, intended to keep

23 23 the recovery limitations on damages from FELA intact. Id. As such, Congress hasn t authorized the recovery of nonpecuniary damages in the Jones Act. 46 U.S.C In Miles, this Court distinguished between pecuniary and nonpecuniary damages holding that families of seamen cannot recover damages for loss of society. 498 U.S. at 36. The Jones Act prohibits non-pecuniary damages, therefore punitive damages are not recoverable. i. Congress s intention behind FELA and the Jones Act was not to include a remedy for nonpecuniary damages This Court s decision in Miles illustrates that legislation serves as an important source of admiralty law principles. Miles emphasized the importance of congressional intent. Wagner v. Kona Blue Water Farms, L.L.C., NO. CIV , 2010 WL (D. Haw. Sept. 13, 2010). In other words, it is the role of Congress to exercise its legislative powers to determine what a statute allows and doesn t

24 24 allow. Miles, 498 U.S. at 25. This Court stressed the importance of Congressional intent by holding that: We no longer live in an era when seamen and their loved ones must look primarily to the courts as a course 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 the uniform vindication of such policies consistent with our constitutional mandate, but we must also keep strictly within the limits imposed by Congress. 498 U.S. at 28 It is therefore prudent that this Court leave it to Congress to create the law in this area. The judicial branch must not create an even broader reading of statutes as this is clearly not in line with the constitutional scheme. Therefore, this Court must not redefine the meaning of the Jones act and the legislative history pre-dating its enactment by allowing recovery for punitive damages under the Jones Act.

25 25 FELA doesn t specifically list the damages recoverable under the statute and instead reads shall be liable in damages. 45 U.S.C. 51. This phrase has consistently been interpreted by the courts to mean that it was Congress s intention to limit recovery under FELA to pecuniary damages, thereby restricting punitive damages. See Gulf, Colorado and Santa Fe Railway Co. v. McGinnis, Admin. etc., 228 U.S. 173, 174 (1913) (holding that FELA is intended to compensate for the actual pecuniary loss); see also American Railroad Co. of Porto Rico v. Didricksen, 227 U.S. 145, 150 (1913) (holding that damages are limited strictly to financial losses sustained). This Court in Miles clearly distinguished between pecuniary and non-pecuniary losses, denying recovery for loss of society in a wrongful death action as the Jones Act limits recovery to pecuniary losses. Miles, 498 U.S. at 31. As such, although the Jones Act does not explicitly limit damages to any particular form, Congress intention was to make available to seamen the recovery provisions available to injured railroad

26 26 workers in FELA. See, e.g. Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 63 (1913); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir. 1987), ( Punitive damages are nonpecuniary damages unavailable under the Jones Act ). The Ninth Circuit s explanation in Kopczynski, of the relationship between the Jones Act and FELA is also notable and persuasive. Kopczynski v. The Jacqueline, 742 F.2d 555 (1984). Relying on earlier Supreme Court decisions, the Ninth Circuit stated that prior to enactment of the Jones Act in 1920, it had been established that only compensatory damages were available in FELA actions. Kopczynski, 742 F.2d at 560. The Ninth Circuit went on to conclude that since the Jones Act incorporates the standards of FELA, including limiting recovery to pecuniary losses only, punitive damages may not be awarded on a claim of negligence based on the Jones Act. Id. Therefore, based on the extensive case law there is no reason to question Congress intention with respect to the

27 27 statutory limitations found within FELA, later subsumed in the Jones Act. The Jones Act must be read as originally intended, that being to provide seamen with a statutory cause of action, including its limitation on remedies, similarly available to railway employees entitled to recovery under FELA. Thus, it must be left to Congress to address any argument that punitive damages should be available under the Jones Act. Until then, it is not for the judicial branch to step into Congress s shoes and expand the scope of remedies that Congress has made available under the statute. B. Current law confirms the proposition that the Jones Act does not grant punitive damages, and no superseding precedent cases have ruled to the contrary. The interpretation of Miles by the courts to date has generally meant that Jones Act seamen cannot recover nonpecuniary damages under the statute. See Guevara v. Mar. Overseas Corp., 59 F.3d 1496, 1506 (5th Cir. 1995); Horsley

28 28 v. Mobil Oil Corp., 15 F.3d 200, (1st Cir. 1994); Miller v. Am. President Lines, 989 F.2d 1450, (6th Cir. 1993); Anderson v. Texaco, Inc., 797 F. Supp. 531, 534 (E.D. La. 1992) ( [T]he post-miles district court cases, in this district and in others, speak with one voice in concluding that punitive damages are nonpecuniary and, therefore, are not recoverable under Miles s interpretation of the Jones Act. ). Punitive damages are considered nonpecuniary in nature. Kopczynski, 772 F.2d at 560. Miles is persuasive in the case at bar to limit the Petitioner s recovery to pecuniary damages because of its examination of the Jones Act s recovery limitations imposed by its predecessor, FELA. See Wagner v. Kona Blue Water Farms, L.L.C., NO. CIV , 2010 WL (D. Haw. Sept. 13, 2010). The most recent court of appeals decision on the availability of punitive damages in Jones Act cases is McBride v. Estis Well Service L.L.C., 768 F.3d 382 (5th Cir. 2014). The Fifth Circuit, sitting en banc, concluded that the

29 29 issue of whether both the injured seamen and the personal representative of the deceased seaman could recover punitive damages under the Jones Act is controlled by the Supreme Court s decision in Miles. 768 F.3d at 517. The Fifth Circuit held that the Jones Act limits a seaman s recovery to pecuniary losses where liability is predicated on the Jones Act. Id. The Fifth Circuit also made clear that since punitive damages, which are designed to punish the wrongdoer rather than compensate the victim, are by definition not pecuniary losses, they are not recoverable in a Jones Act case. 768 F.3d at 510. For punitive damages simply do not fit under the case law as a subset of pecuniary losses. McBride, 768 F.3d at 391. This decision was not only predicated on Miles, but other circuit authority as well. See Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1457, (6th Cir. 1993) ( Punitive damages are not therefore recoverable under the Jones Act. ) citing Kopczynski 742 F.2d at ; Bergen 816 F.2d at 1347, opinion modified

30 30 on reh'g, 866 F.2d 318 (9th Cir.1989). ( Punitive damages are non-pecuniary damages unavailable under the Jones Act... ) citing Kopczynski 742 F.2d at 561. (9th Cir.1984)). In Townsend, this Court allowed an injured seaman to recover punitive damages based on his employer s willful failure to provide him with maintenance and cure. Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 406 (2009). The contention that Townsend overruled or severely undermined this court s holding in Miles is unfounded. 557 U.S First, Townsend involved a seaman s claim for punitive damages for the willful failure of an employer to pay maintenance and cure. 557 U.S. at 405. Townsend was not a Jones Act personal injury case nor an unseaworthiness case. 557 U.S. at 425. This Court noted that an action for maintenance and cure is independent from other claims, and as such, remedies under the Jones Act would be in addition to the maintenance and cure claim. 557 U.S. at 414. Second, the most recent court of appeals decision relied on Miles, not Townsend, in holding

31 31 that punitive damages are non-pecuniary losses and therefore not recoverable in personal injury actions by seamen brought under the Jones Act. McBride, 768 F.3d at 389. It must be made clear, that although this Court held that punitive damages are available in maintenance and cure cases, Townsend, in turn, does not call into question Miles holding concerning the damages limitations applicable to the Jones Act. Wagner v. Kona Blue Water Farms, L.L.C., NO. CIV , 2010 WL (D. Haw. Sept. 13, 2010). The case at bar concerns the Petitioner s ability to collect non-pecuniary damages pursuant to his Jones Act negligence claim. Townsend must not be read incorrectly. As a maintenance and cure case, Townsend does nothing to counter the proposition that punitive damages are precluded by the Jones Act.

32 II. 32 THE SUPREME COURT HAS NEVER RECOGNIZED PUNITIVE DAMAGES AS AN AVAILABLE REMEDY UNDER THE GENERAL MARITIME LAW DOCTRINE OF UNSEAWORTHINESS A. This Court in Miles reaffirmed the time-tested principle that Federal admiralty law is a body of law that coextends and operates uniformly within the whole country. In Miles, the Petitioner requested that this Court expand the remedies provided under DOHSA and the Jones Act to include loss of society and lost future earnings under the guise of general maritime law. Miles v. Apex Marine Corps., 498 U.S (1990). This Court, holding to the doctrine of uniformity in maritime law, declined to do so. 498 U.S. at 36. Based on the same rationale, Morgan s attempt to rewrite maritime law to include punitive damages, where none exist under the Jones Act, and therefore must be turned aside.

33 33 Since the enactment of the Jones Act, courts have corroded the separation between unseaworthiness claims and Jones Act negligence claims by extending the scope of unseaworthiness to include remedies that were once outside the pre-jones Act enactment. McBride v. Estis Well Service, L.L.C., 768 F.3d 382 (5th Cir. 2014) (Edith, J., concurring). Miles demonstrates this by showing that the expansion of remedies went beyond merely permitting wrongful death actions under unseaworthiness. Id., citing Miles v. Apex Marine Corp, 498 U.S. 19, 30 (1990). Unseaworthiness has been transformed into a strict liability action, thus expanding the scope to allow recovery for an injured seaman who would have only traditionally had a negligence claim under the Jones Act. 738 F.3d at 418, (citing Pope & Talbot Inc. v. Hawn, 346 U.S. 406, 418, (1953) (Frankfurter, J., concurring) ( Since unseaworthiness affords... recovery without fault and has been broadly construed by the courts... it will be rare that

34 34 the circumstances of an injury will constitute negligence but not unseaworthiness. ). For this reason, punitive damage awards should not be an available remedy under the Jones Act, nor unseaworthiness. To award Morgan punitive damages under the doctrine of unseaworthiness, but not under the Jones Act, would be inconsistent with our place in the constitutional scheme... to sanction 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. 498 U.S. at Therefore, as in Miles, this Court should confirm the uniform rule applicable to all actions for pecuniary damages and eliminate punitive damages as a deterrent and penalty for willful and malicious actions whether under FELA, the Jones Act, or the general maritime law doctrine of unseaworthiness. We sail in occupied waters. Maritime tort law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might

35 35 work to the benefit of seamen and those dependent upon them. Congress has placed limits on recovery in survival actions that we cannot exceed. Miles, 498 U.S. at 36. Enforcing the existing uniform rule against punitive damages such as this does not demonstrate that the Court is unmindful that alternative theories exist, but rather that such theories are outliers and inapplicable in this case. Id. B. Congress intended to not award punitive damages to seaworthiness claims when it enacted the Jones Act, and historically, punitive damages have not been awarded for personal injury claims of unseaworthiness. It is assumed that Congress is cognizant of existing law when it passes legislation. 46 U.S.C The case at bar involves existing law for claims of injury to seaman, hence, this Court must look to the Jones Act and will find that punitive damages are not mentioned. Id. This is demonstrated in Miles, where the Court relied on the close affinity between the Jones Act and unseaworthiness causes

36 36 of action, which have aptly been termed Siamese twins. McBride 768 F.3d at 392; see Fitzgerald v. United States Lines Co., 306 F.2d 461, 471 (2d Cir. 1962). ( The Jones Act claim and the maritime claim of unseaworthiness are so intertwined factually that they cannot as a matter of practice be separated. ) Id. The Court in Miles explains that the pecuniary limitations imposed are founded on the reasoning that the Jones Act, as per Congress s intent, precludes a court from awarding damages beyond those for which Congress has provided. However, even before Miles this Court had examined the issue of creating uniformity in personal injury negligence cases. For example, in McAllister v. Magnolia Petroleum Co., 357 U.S. 221, (1958), this Court refused to allow different limitation periods for filing a cause of action under the Jones Act and an unseaworthiness claim. This Court explained that it wouldn t make logical sense to apply a shorter limitation periods for an unseaworthiness action than what Congress prescribed for a Jones Act action, when the two actions are

37 37 brought together. Id. Thus, this Court stressed early on the importance of maintaining uniformity within admiralty law and the need to eliminate inconsistencies thereby following what Congress has prescribed. Counsel for the Petitioner will likely argue that Morgan is entitled to punitive damages under Evich, where the court noted that punitive awards have been granted under general maritime claims. Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987). Though, Evich is a maritime survival action and as such is distinct from the doctrine of unseaworthiness for personal injury claims. Rather, a look at history reveals that punitive damages were not awarded in personal injury claims under the doctrine of seaworthiness. McBride, 768 F.3d at 394 (stating we cannot blithely assume that because they are available in a wholly different type of maritime action that pre-dates the Magna Carta they are necessarily available in a maritime action ). Although punitive damages have been available as a remedy in general maritime actions, they have rarely

38 38 been imposed. The cases that do impose punitive damages, have not been cases of personal injury for seaman as qualified under the Jones Act. See The Amiable Nancy, 16 U.S. 546, 558 (1818) (criminal trespass); Muratore v. M/S Scotia Prince, 845 F.2d 347, 354 (1st Cir.1988) (intentional infliction of emotional distress); Protectus Alpha Navigation Co. v. North Pacific Grain Growers, 767 F.2d 1379, 1385 (9th Cir.1985) (destruction of property); Robinson v. Pocahontas, Inc., 477 F.2d 1048, (1st Cir.1973) (willful failure to pay maintenance and cure); In re Marine Sulphur Queen, 460 F.2d 89, 105 (2d Cir.1972) (wrongful death). A further argument will be made that based on the above reasoning, there would be no point in suing under the common law should a plaintiff want to recover more, if an action is filed and stems from the same cause of action, they should not be given more expansive remedies. Even before Miles this Court had examined the issue of creating uniformity in personal injury negligence cases. For

39 39 example, in McAllister, this Court refused to allow different limitation periods for filing a cause of action under the Jones Act and an unseaworthiness claim. McAllister v. Magnolia Petroleum Co. 357 U.S. 221, 224 (1958) This Court explained that it wouldn t make logical sense to apply a shorter limitation period for an unseaworthiness action than what Congress prescribed for a Jones Act action, when the two actions are brought together. 357 U.S. at Thus, this Court stressed early on the importance of maintaining uniformity within admiralty law and the need to eliminate inconsistencies in the application of maritime law whether under statute or the general maritime law of the United States. Id. Furthermore, [T]he post-miles district court cases... speak with one voice in concluding that punitive damages are nonpecuniary and, therefore are not recoverable under Mile s interpretation of the Jones Act. Wagner, 2010 WL at *3-4. For example, in Wagner the district court of Hawaii held that Townsend s rejection of the view that

40 40 Miles adopted a uniform rule limiting recovery in all maritime cases to the remedies available by statute does not cast doubt on this Court s holding that the Jones Act incorporated FELA s pecuniary limitation on damages. Wagner, 2010 WL at * 3, (citing Miles 498 U.S. at 32.) The district court of Hawaii cited the Fifth Circuit s holding in Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1506 (5th Cir.1995) (en banc), which lent strong support to the Miles uniformity principle. The Fifth Circuit stated that [I]f the situation is covered by a statute like the Jones Act or DOSHA [Death on the High Seas Act] and the statute informs and limits the available damages, the statute directs and delimits the recovery available under the general maritime law as well. Id. C. Maintenance and Cure are separate and distinct contractual obligations, therefore Townsend does not apply to the case at bar. The obligation to pay maintenance and cure has consistently been recognized as separate and distinct from

41 41 a claim under the Jones Act and unseaworthiness. Anguilar v. Standard Oil Co., 318 U.S. 724, 728 (1943) (where the Supreme Court stated that this obligation has been recognized consistently as an implied provision in contracts of marine employment ). This divide between the three causes of action underlies the Townsend decision. Since maintenance and cure stems from a contractual obligation that the seaman has with his or her employer, the cause of action does not have to be joined with the tort indemnity claims. Pacific Steamship v. Peterson, 278 U.S. 130, 135 (1928). Furthermore, maintenance and cure claims differ from Jones Act claims not just substantively, but also procedurally. For example, multiple maintenance and cure claims can be filed for a single injury until the seaman reaches maximum medical improvement. See Lirette v. K & B Boat Rentals, Inc. 579 F.2d 968 (1978), (citing Louviere v. Fidelity & Casualty Co., 20 F.Supp.260 (W.D.La.1962)) (this includes claims for future maintenance and cure to recover, for example, after an operation). This notion of

42 42 serial suits to collect maintenance and cure as they come due is what separates this cause of action from a Jones Act cause of action. The idea of uniformity from Miles is applicable as this is a personal injury action not a maintenance and cure case. The Petitioner s reliance on Exxon to support his argument that he is entitled to punitive damages is unpersuasive. Townsend s holding did not overrule Miles. McBride, 768 F.3d at 393. Rather, the Court expressly accepted Miles's reasoning by recognizing that Congress' judgment must control the availability of remedies for wrongful-death actions brought under general maritime law. Id. For the differences between unseaworthiness actions and maintenance and cure is a poor guide for determining unseaworthiness remedies. Id. The Court could not have been clearer in signaling its approval of Miles when it added: The reasoning of Miles remains sound. 768 F.3d at 390. The court goes even further to distinguish that remedies for negligence, unseaworthiness, and

43 43 maintenance and cure have different origins and may call for slightly different principles and procedures. Id. For in maintenance and cure cases there may be overwhelming concerns for rapid payment that justify the availability of punitive damages that do not exist in unseaworthiness cases. 768 F.3d at 394. For the capricious and arbitrary failure to pay maintenance and cure would make the seamen a victim, that could quite possibly deprive him of life-sustaining medical care. Id. Unlike unseaworthiness that is not a worker s compensation scheme. Id. Hence punitive damages fit better for the purpose of providing immediate medial and financial support as opposed to seaworthiness that provides a remedy in damages. Furthermore, maintenance and cure does not have a statutory counterpart. That is why courts are allowed to award punitive damages at their own discretion. Anderson v. Texaco, Inc., 797 F. Supp. 531, 536 (E.D. La. 1992) ( punitive damages for willful failure to pay maintenance and cure, a firmly rooted general maritime law claim, is

44 44 unaffected by Miles because failure to pay is a... claim not reached by any maritime statute. )Hence why punitive damages are awarded under maintenance and cure, but not under the doctrine of unseaworthiness or the Jones Act. Id. Therefore, courts are allowed to award punitive damages at their discretion.797 F.Supp at 538. Moreover, the availability of punitive damages to penalize the wrongful withholding of maintenance and cure is intimately tied to the special solicitude for the welfare of seamen and their families, and peculiar role of maintenance and cure in providing a seaman with food and lodging when he becomes sick or injured in the ship's service. McBride, 768 F.3d at 393. That is why it is important for this Court to continue to use this line of reasoning and keep the uniformity of the law by not awarding Morgan punitive damages.

45 45 D. Congress has enacted a statute that criminalizes a ship owner s knowledge of sending out an unseaworthy vessel, thereby vanquishing any arguments that punitive damages are required to punish wrongdoers. Previous Court rulings that grant punitive damages by requiring a finding of a ship owner's wanton and willful misconduct in maintaining or creating unseaworthy conditions are misguided. For these courts overlook the crucial fact that Congress has already criminalized knowingly sending an unseaworthy vessel that poses danger to a seaman s life. This statute delivers an appropriately harsh penalty for ship owners that knowingly put their seamen s lives at jeopardy. 46 U.S.C (2006). Originally created in 1840 as a series of maritime legislation for the protection of seamen and the safety of vessels, this statute was amended and recodified in See United States v. Rivera, 131 F.3d 222, (1st Cir. 1997).

46 46 For this reason punitive damages are an inappropriate remedy for unseaworthiness. Furthermore, this Court has good reason to be cautious before signing off on an aggressive expansion of punitive damages in the unseaworthiness context. McBride, 768 F.3d at 401. The availability of insurance for punitive damages varies from jurisdiction to jurisdiction, and simple logic suggests that any increased costs on shippers will be eventually passed along to consumers. Given the sizeable percentages of the world's goods that travel on ships, and the fact that the prices of the remainder of the world's goods are indirectly influenced by the prices of the goods that do travel on ships (e.g., oil prices ultimately affect the price of a vast range of items), the decision in this case needs to have only the minutest impact on shipping prices to have a significant aggregate cost for consumers. In light of the potentially sizable impact, this court should not venture too far and too fast in these largely uncharted waters without a clear signal from Congress. Id. This Court must enforce the doctrine of uniformity to preserve the integrity of maritime law. The general maritime law does not recognize punitive damages as a remedy for unseaworthiness, and the cased cited by the

47 47 Petitioner do not support otherwise. Therefore this Court should not create, under its admiralty powers, a remedy that is disfavored by a number of States and that exceeds well beyond the limits of Congress s ordered system of recovery for seamen s injuries. Because Morgan cannot recover punitive damages under the Jones Act, he cannot do so under general maritime law. Motion to dismiss for unseaworthiness should therefore be granted.

48 48 CONCLUSION It is therefore respectfully submitted that the Court should affirm the Ninth Circuit s decision and hold that as a matter of law seamen may not recover punitive damages in actions under the Jones Act or the general maritime law of unseaworthiness. Respectfully submitted, X