No In the CARL MORGAN, ROSHTO MARINE, INC., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

Transcription

1 i No In the 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 TEAM M

2 i QUESTIONS PRESENTED 1. Whether the Court of Appeals for the Ninth Circuit was correct to hold that the Jones Act excludes punitive damages for negligence claims? 2. Whether the Court of Appeals for the Ninth Circuit was correct to hold that the general maritime law excludes punitive damages for unseaworthiness claims?

3 ii TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii OPINIONS BELOW... 1 JURISDICTION... 1 STATUTORY PROVISIONS INVOLVED... 2 STATEMENT OF THE CASE... 3 SUMMARY OF THE ARGUMENT... 4 STATEMENT OF FACTS... 5 STANDARD OF REVIEW... 7 ARGUMENT... 7 I. BECAUSE CONGRESS INTENDED TO MAKE SEAMEN WHOLE BY PASSING THE JONES ACT AND BECAUSE THE JONES ACT INCORPORATES THE FEDERAL EMPLOYERS LIABILITY ACT, WHICH DOES NOT PERMIT PUNITIVE DAMAGES, PUNITIVE DAMAGES ARE UNAVAILABLE IN A JONES ACT NEGLIGENCE ACTION, AND THE NINTH CIRCUIT S JUDGMENT SHOULD BE AFFIRMED A. Because the Federal Employers Liability Act is Incorporated Into the Jones Act, Punitive Damages Are Unavailable in Jones Act Negligence Claims... 8 B. Permitting Punitive Damages Would Be Inconsistent with Congress intent in Enacting the Jones Act and the Larger Maritime Safety Regime II. BECAUSE PUNITIVE DAMAGES ARE NOT AVAILABLE UNDER THE GENERAL MARITIME LAW FOR CLAIMS ALLEGING UNSEAWORTHINESS, THE NINTH CIRCUIT S JUDGMENT SHOULD BE AFFIRMED A. Because the Jones Act and Unseaworthiness Act as Alternative Theories of Recovery, the Jones Act, By Means of Its Incorporation of the Federal Employers Liability Act, Preempts Damages for Unseaworthiness Under the General Maritime Law B. Unlike Maintenance and Cure, Seamen s Claims for Unseaworthiness Under the General Maritime Law Do Not Have Historical Antecedents That Permitted Punitive Damages CONCLUSION... 21

4 iii TABLE OF AUTHORITIES Cases Am. R.R. Co. of P.R. v. Didricksen, 227 U.S. 145 (1913)... 9 Associated Metals & Minerals Corp. v. Alexander s Unity MV, 41 F.3d 1007 (5th Cir. 1995) Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009)... passim Barnes v. Sea Haw. Rafting, LLC, Civ. No ACK-RLP, 2015 WL (D. Haw. Dec. 22, 2015) Basista v. Weir, 340 F.2d 74 (3d Cir. 1965) Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987) Best v. Sperling Shipping & Trading Co., No S, 1969 WL , 1969 AMC 39 (C.D. Cal. Feb. 4, 1969) Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336 (1955) Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S. 424 (2001)... 7, 11 Cox v. Roth, 348 U.S. 207 (1955)... 8 Engel v. Davenport, 271 U.S. 33 (1926)... 8, 9 Equilease Corp. v. M/V Sampson, 793 F.2d 598 (5th Cir. 1986) Evich v. Morris, 819 F.2d 256 (9th Cir. 1987)... 20, 21 Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972) Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495 (9th Cir. 1995) Governor & Co. of Bank of Scot. v. Sabay, 211 F.3d 261 (5th Cir. 2000) Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968) Guevara v. Mar. Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) Gulf, Colo. & Santa Fe Ry. Co. v. McGinnis, 228 U.S. 173 (1913)... 9 Hunley v. Ace Mar. Corp., 927 F.2d 493 (9th Cir. 1991) In re Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001) In re Marine Asbestos Cases, 265 F.3d 861 (9th Cir. 2001) In re Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B Jul. 1981) Kernan v. Am. Dredging Co., 355 U.S. 426 (1958) Kopczynski v. The Jacqueline, 742 F.2d 555 (9th Cir. 1984)... 8, 17, 18 Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d 1238 (6th Cir. 1971)... 9, 18 Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252 (1964). 12 Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944) McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958) McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014)... passim Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59 (1913)... 7, 9 Miles v. Apex Marine Corp., 498 U.S. 19 (1990)... passim Miller v. Am. President Lines, 989 F.2d 1450 (6th Cir. 1993)... 8 Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) Morgan v. Roshto Marine, Inc., 786 F.3d 1387 (9th Cir. 2015)... 1, 4 Morgan v. Roshto Marine, Inc., 971 F. Supp. 2d 1346 (D. Haw. 2013)... 1

5 iv Pac. S.S. Co. v. Peterson, 278 U.S. 130 (1928)... passim S. Pac. Co. v. Jensen, 244 U.S. 205 (1917)... 8, 21 Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959) The Imperator, 288 F. 372 (5th Cir. 1923) The Osceola, 189 U.S. 158 (1903)... 18, 19, 20 The Plymouth, 70 U.S. (3 Wall.) 20 (1865) United Mine Workers of Am. v. Patton, 211 F.2d 742 (4th Cir. 1954) Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724 (1967) Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 (S.D. Cal. 1961) Statutes 14 U.S.C. 2(3) (2012)... 4, U.S.C. 15 (2012) U.S.C. 504 (2012) U.S.C. 1254(1) (2012) U.S.C. 1292(b) (2012) U.S.C (2012)... 4, U.S.C. 284 (2012) U.S.C (2012)... 4, 8, U.S.C (2012)... 4, 8, 10, U.S.C (5)(B) (2012) U.S.C. 688 (1920)... 9 Seaman's Act of 1915, Pub. L. No , 38 Stat (1915)... 9, 10 Rules Fed.R.App.P Fed.R.Civ.P. 12(b)(6)... 1, 3 Treatises Grant Gilmore & Charles L. Black, The Law of Admiralty (2d ed. 1975) Restatement (Second) of Torts (1979) Thomas J. Schoenbaum & Jessica L. McClellan, Admiralty and Maritime Law (5th ed. 2012) Journal Articles & Other Authorities Robert Dahlquist, Punitive Damages Under the Jones Act, 6 Mar. Law. 1 (1981)... passim Timothy J. Runyan, The Rolls of Oleron and the Admiralty Court in Fourteenth Century England, 19 Am. J. Legal Hist. 95 (1975)... 19

6 1 OPINIONS BELOW The opinion of the United States Court of Appeals for the Ninth Circuit is reported at Morgan v. Roshto Marine, Inc., 786 F.3d 1387, 2015 AMC 3333 (9th Cir. 2015). Pet.App.1a. The order of the Ninth Circuit denying the petition for an en banc rehearing of the matter is included at Pet.App.5a. The opinion of the United States District Court for the District of Hawaii is reported at Morgan v. Roshto Marine, Inc., 971 F. Supp. 2d 1346 (D. Haw. 2013). Pet.App.6a. JURISDICTION The United States District Court for the District Court of Hawaii granted Respondent s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on September 10, The District Court certified its judgment on this motion for interlocutory appeal pursuant to 28 U.S.C. 1292(b) (2012). Both parties filed timely appeals to the United States Court of Appeals for the Ninth Circuit, which considered the appeal and issued an opinion on May 5, Petitioner subsequently filed a timely petition for rehearing en banc on May 12, 2015 pursuant to Fed.R.App.P. 40. The Court of Appeals denied Petitioner s request on June 12, Petitioner filed a timely petition for a writ of certiorari to this Court, which granted the petition on December 7, 2015, thereby taking jurisdiction of the matter pursuant to 28 U.S.C. 1254(1) (2012).

7 2 STATUTORY PROVISIONS INVOLVED Section of Title 46 of the United States Code provides in relevant part: 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, with the right of trial by jury, 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. Sections 51 through 59 of Title 45 of the United States Code provide in relevant part: Every common carrier by railroad... shall be liable in damages to any person suffering injury while he is employed by such carrier.... Section 2 of Title 14 of the United States Code provides in relevant part: The Coast Guard shall... administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States, covering all matters not specifically delegated by law to some other executive department.... Section 1232 of Title 33 of the United States Code provides in relevant part: Any person who is found by the Secretary, after notice and an opportunity for a hearing, to have violated this chapter or a regulation issued hereunder shall be liable to the United States for a civil penalty... Any person who willfully and knowingly violates this chapter or any regulation issued hereunder commits a class D felony. Section 284 of Title 35 of the United States Code provides in relevant part: Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.

8 3 When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d). Section 504 of Title 17 of the United States Code provides in relevant part: In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years. Section 15 of Title 15 of the United States Code provides in relevant part: Except as provided in subsection (b) of this section, any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee. The court may award under this section, pursuant to a motion by such person promptly made, simple interest on actual damages... if the court finds that the award of such interest for such period is just in the circumstances. STATEMENT OF THE CASE On September 10, 2013, the United States District Court for the District of Hawaii granted Roshto Marine s motions under Fed.R.Civ.P. 12(b)(6) to strike the claims for seeking punitive damages, with an opinion. On September 24, Roshto Marine filed timely notice of appeal, with Morgan following suit on Oct. 2, On

9 4 May 5, 2015 the United States Court of Appeals for the Ninth Circuit reported as Morgan v. Roshto Marine, Inc., 786 F.3d 1387, 2015 AMC 3333 (9th Cir. 2015) filed its opinion and entered judgment. When the Ninth Circuit denied Morgan s petition for rehearing on June 12, 2015, Morgan filed petition for certiorari filed presenting two issues: (1) the availability of punitive damages in actions under the Jones Act, and (2) the availability of punitive damages in general maritime law actions for unseaworthiness. This Court granted certiorari on December 7, SUMMARY OF THE ARGUMENT The Jones Act, 46 U.S.C (2012), imports its substantive law from the Federal Employers Liability Act (FELA), 45 U.S.C (2012), to grant seamen a negligence cause of action against their employer for damages. See Miles v. Apex Marine Corp., 498 U.S. 19, 32, 1991 A.M.C. 1, 12 (1990). Neither the Jones Act, nor the Federal Employer s Liability Act (FELA), defines damages. 45 U.S.C ; 46 U.S.C The Jones Act only permits pecuniary damages. See Miles, 498 U.S. at 31, 1991 AMC at 9-10 (no non-pecuniary damages for wrongful death actions). Also, reading implied punitive damages into the act would be inconsistent with Congress ordering of responsibility in maritime safety enforcement. See 14 U.S.C. 2(3) (2012) (Coast Guard creates and enforces maritime safety regulations); 33 U.S.C (2012) (violators of maritime safety laws subject to civil and criminal penalties). Punitive damages are also unavailable on a general maritime law unseaworthiness claim because Jones Act negligence and unseaworthiness are

10 5 alternative theories of recovery. See Atl. Sounding Co. v. Townsend, 557 U.S. 404, 419, 2009 AMC 1521, 1533 (2009) (citing Miles, 498 U.S. at 21, 31-32, 1991 AMC at 2, 9-10); Miles, 498 U.S. at 32, 1991 AMC at 10-11; Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138, 2014 AMC 1932, 1937 (1928). Where a statute creates a cause of action and constrains the damages available on that claim, an analogous general maritime law claim is similarly bound in its damages. See Miles, 498 U.S. at 32-33, 1991 AMC at 11 (loss of society damages unavailable in a Jones Act wrongful death action, so also unavailable on a general maritime law wrongful death claim). Also, the unique nature of unseaworthiness claims makes other maritime actions poor guides to the availability of punitive damages in unseaworthiness cases. Whereas maintenance and cure has historically provided for punitive damages in general maritime law, unseaworthiness claims have not. See McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, , 2014 AMC 2409, (2014) (Clement, J., concurring), cert. denied, 135 S. Ct (2015). The fundamental differences between the two actions make comparisons of their means of recovery under the general maritime law improper, and accordingly, the historical evidence dictates that this Court deny the availability of punitive damages in unseaworthiness. STATEMENT OF FACTS When Archie Roshto owner of the Sally Mae hired Carl Morgan, he had already lost one captain to injury. Pet.App.7a.

11 6 Roshto did not want to lose another captain, so he told the vessel s permanent captain, Dan Perkins, not to inform Morgan about the other injuries that had happened on the vessel. Id. at 8a. About four months after being hired, Morgan was serving as the relief captain on the vessel while she was off-loading a barge in tow. Id. When Roshto hired Morgan, he gave Morgan a tour of the vessel and instructed him on how to operate it. Id. at 7a. The Sally Mae has two winches: electric and hydraulic. Id. A manual crank accompanies the electric winch. Id. Roshto showed Morgan the two winches, without instructing that the manual crank should not be used while pressing the ignition on the electric crank. Id. at 7a-8a. The manual crank is an override to the ignition switches on the electric winch if they fail. Id. at 7a. If the winch becomes bound up and cannot be engaged by use of electric ignition switch, the manual crank should be put on the motor and turned a few times to unbind it. Id. As Morgan was off-loading the barge in tow, he noticed that the barge was rising in the water, causing the towlines to become taut. Id. at 8a. In order to relieve the tension in the wires, Morgan began to unwind them from the winches. Id. After he released the other winch, he attempted to release the electric winch, but it would not work. Id. To unbind the winch, Morgan attached the manual crank and began to turn the crank while simultaneously pressing the ignition switch. Id. When the motor started, the crank handle flew off the winch and injured Morgan. Morgan now seeks to recover from these damages. Id.

12 7 STANDARD OF REVIEW The questions in this case are strictly questions of law. Accordingly, this Court reviews the decisions of the lower courts de novo for legal error. Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436 (2001) (whether or not punitive damages are available on a claim is a matter of law subject to de novo review on appeal). ARGUMENT I. BECAUSE CONGRESS INTENDED TO MAKE SEAMEN WHOLE BY PASSING THE JONES ACT AND BECAUSE THE JONES ACT INCORPORATES THE FEDERAL EMPLOYERS LIABILITY ACT, WHICH DOES NOT PERMIT PUNITIVE DAMAGES, PUNITIVE DAMAGES ARE UNAVAILABLE IN A JONES ACT NEGLIGENCE ACTION, AND THE NINTH CIRCUIT S JUDGMENT SHOULD BE AFFIRMED. The Court may dispose of this issue in either of two ways, both of which result in upholding the Ninth Circuit s treatment of the matter. First, it could employ the approach the majority of courts of appeals have taken and hold that the early twentieth century Federal Employers Liability Act cases denying non-pecuniary damages in wrongful death actions control today to exclude punitive damages from the remedies available to a Jones Act seaman. E.g., Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 74 (1913) (limiting recovery to non-pecuniary damages in a FELA wrongful death action); McBride v. Estis Well Service, L.L.C., 768 F.3d 382, , 2014 AMC 2409, 2421 (5th Cir. 2014) (en banc) (applying Vreeland to deny punitive damages in Jones Act negligence cases), cert. denied, 135 S. Ct (2015); Miller v. Am. President Lines, 989 F.2d 1450, 1457, 1993 AMC 1217, 1224 (6th Cir.

13 8 1993); Kopczynski v. The Jacqueline, 742 F.2d 555, , 1985 AMC 769, (9th Cir. 1984) (applying Vreeland to deny punitive damages in Jones Act negligence cases). Alternatively, the Court could reason that FELA and the Vreeland gloss do not apply, and it would be free to create an entirely new interpretation of the Jones Act. In doing so, however, the Court will nevertheless find that limiting the Jones Act negligence remedy to compensatory damages conforms Congress s intent behind the Act. See generally Robert Dahlquist, Punitive Damages Under the Jones Act, 6 Mar. Law. 1, 9-11, 26 (1981). A. Because the Federal Employers Liability Act is Incorporated Into the Jones Act, Punitive Damages Are Unavailable in Jones Act Negligence Claims. Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, 389, 2014 AMC 2409, 2413 (5th Cir. 2014) (quoting S. Pac. Co. v. Jensen, 244 U.S. 205, 215, 1996 AMC 2076, 2083 (1917)), cert. denied, 135 S. Ct (2015). Congress chose to do so by enacting the Jones Act, 46 U.S.C (2012), which incorporated the Federal Employers Liability Act s provisions for damages. 45 U.S.C (2012). Accordingly, the statutes are linked and jurisprudence on one controls the other, subject to occasional exceptions. Engel v. Davenport, 271 U.S. 33, 38, 39, 1926 AMC 679, 682 (1926) (mandating the uniform operation of Jones Act and FELA); see also Cox v. Roth, 348 U.S. 207, 210, 1955 AMC 942, 944 (1955) (allowing Jones Act claim to proceed against deceased employer even though FELA bars analogous claims against nonexistent railways); The Arizona v. Anelich, 298 U.S.

14 9 110, 1936 AMC 627, 634 (1936) (permitting assumption of risk defense in Jones Act case even though unavailable under FELA). When an enacted law adopts an earlier statute by reference, it is as though the earlier statute had been incorporated at full length. Engel, 271 U.S. at 38, 1926 AMC at 683. Congress did not explicitly provide for punitive damages in either the Jones Act or FELA. In the Jones Act, Congress grants an injured seaman the right to maintain an action for damages at law, and extends to the seaman all the rights and remedies available to railway employees under FELA. 46 U.S.C. 688 (1920). Neither statute defines damages, but this Court has held that only compensatory damages may be recovered in FELA cases. See Gulf, Colo. & Santa Fe Ry. Co. v. McGinnis, 228 U.S. 173, 176 (1913); Am. R.R. Co. of P.R. v. Didricksen, 227 U.S. 145, 149 (1913); Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, (1913); accord Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d 1238, 1241 (6th Cir. 1971). Moreover, although the Jones Act is general in nature and affords the courts discretion in its interpretation, it also evinces a carefully crafted balance between modified common law doctrines and new statutory remedies for seaman. Robert Dahlquist, Punitive Damages Under the Jones Act, 6 Mar. Law. 1, 32 (1981) (Jones Act and FELA reduce significantly the amount of negligence, as compared to common law, that will give rise to an employer's liability and to have reduced the plaintiff's burden of proof as to negligence and causation ). In creating these remedies, Congress sought to promote the welfare of seamen and to ensure their safety at sea. Seaman's Act of 1915, Pub. L. No , 38 Stat (1915). To accomplish its purpose of promoting seamen s

15 10 welfare, the Jones Act provided seamen a cause of action for negligence against their employers and an action for wrongful death to the family members of deceased seamen. B. Permitting Punitive Damages Would Be Inconsistent with Congress intent in Enacting the Jones Act and the Larger Maritime Safety Regime. The Jones Act provides remedies to seamen that they historically lacked under the general maritime law. See Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138, 1928 AMC 1932, 1937 (1928) (Jones Act provides rights not available to seamen under the general maritime law). Specifically, Congress intended with the Jones Act, 46 U.S.C (2012), and its predecessors to promote the welfare of the American seamen in the merchant marine of the United States... and to promote safety at sea. Seaman's Act of 1915, Pub. L. No , 38 Stat (1915). 1 In this way, the Act is directed at curing a gap in seamen s rights and ensuring that they are made whole for their injuries, rather than establishing a quasi-criminal regime of punitive damages. Punitive damages, on the other hand, are meant to punish tortfeasors: Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct. The latter, which have been described as quasi-criminal, operate as private fines intended to punish the defendant and to deter future wrongdoing. A jury's assessment of the extent of a plaintiff's injuries is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation. 1 The Jones Act of 1920 was functionally an amendment of the 1915 Seaman s Act to cure perceived deficiencies in that piece of legislation. The two statutes purposes were identical. See Robert Dahlquist, Punitive Damages Under the Jones Act, 6 Mar. Law. 1, 9-11, 26 (1981).

16 11 Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 431 (2001) (citations omitted). If Vreeland applies only to wrongful death actions, therefore, the Court must still return to the Jones Act to divine its purpose using tenets of statutory interpretation alone. The text of the Act and the Court s contemporary comments on the Act s purpose suggest that Congress did not intend the Act to provide injured seamen punitive damages, and to read punitive damages into the Jones Act would stretch the law beyond Congress intent and undermine the Act s purpose. The awarding of punitive damages would undermine the purposes of the Act because punitive damages are retributive. Both the Jones Act and FELA give workers liberalized standards for recovery while limiting statutory remedies. See Kernan v. Am. Dredging Co., 355 U.S. 426, 432, 1958 AMC 251, (1958) (recognizing the clear intent of Congress in drafting the Jones Act and FELA to provide liberal recovery for injured workers); see also Dahlquist, supra at 26, 32. Punitive damages do not further the welfare of seamen because they inherently focus on the wrongdoer. See Restatement (Second) of Torts 908 (1979). They may even be detrimental to a seaman s proportionate recovery. See also Green v. Wolf Corp., 406 F.2d 291, 303 (2d Cir. 1968) (holding that damages available should not exceed those provided for by controlling statute for fear that after examining legislative history and text of statute damages could be recovered that are grossly disproportionate to the harm done. ). The Jones Act, through FELA, permits injured parties to recover in damages, although the Act does not contain a definition of in damages. See 45 U.S.C (2012); 46 U.S.C (2012). Yet when Congress desires to

17 12 provide punitive damages on a statutory cause of action, it can do so explicitly. E.g., 15 U.S.C. 15 (2012) (allowing punitive damages in antitrust actions); 17 U.S.C. 504 (2012) (allowing punitive damages in copyright infringement cases); 35 U.S.C. 284 (2012) (allowing punitive damages in patent infringement cases); see also Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, (1964) (limiting recovery to compensatory damages where Congress did not explicitly provide punitive damages); United Mine Workers of Am. v. Patton, 211 F.2d 742, (4th Cir. 1954) ( Where Congress has intended that damages in excess of the actual damages sustained by plaintiff may be recovered in an action created by statute, it has found no difficulty in using language to that end.... In the absence of anything in the act itself or in its history indicating an intention on the part of Congress to authorize the recovery of punitive damages... the courts would not be justified, we think, in construing it to permit such recovery. ). Although several courts have provided plaintiffs punitive damages when Congress did not explicitly provide for them, these cases seem to be limited to cases involving civil rights violations where compensatory damages are relatively small. See, e.g., Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965) (providing punitive damages for improper arrest and denial of medical and legal assistance while in jail and with no compensatory damages); Wills v. Trans World Airlines, Inc., 200 F. Supp. 360, 367 (S.D. Cal. 1961) (providing punitive damages against unjustly discriminating airline when compensatory damages were $1.54). The trend from the cases above recommend that the Court refuse Jones Act plaintiffs punitive damages because Congress has not explicitly provided for them.

18 13 Reviewing Congress larger maritime safety regime also shows that the Act meant to compensate injured seamen while leaving responsibility for enforcing safety standards to public agencies. In admiralty, plaintiffs are provided generous mechanisms for remedying their injuries. See, e.g., Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, , 1960 AMC 10, (1959) (lowered standard of causation for Jones Act negligence claims); Thomas J. Schoenbaum & Jessica L. McClellan, Admiralty and Maritime Law 4-25, 4-28 (5th ed. 2012) (noting maintenance and cure and unseaworthiness both strict liability causes of action). Notwithstanding these allowances, these causes of action are meant to remedy injuries, not police maritime employers conduct. The federal government, specifically the Coast Guard and the Department of Justice, is responsible for establishing and enforcing maritime safety standards. See 14 U.S.C. 2(3) (2012) ( The Coast Guard shall... administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States, covering all matters not specifically delegated by law to some other executive department.... ); 33 U.S.C (2012) (violators of the Port and Waterways Safety Act subject to civil and criminal penalties at the discretion of the Secretary of Homeland Security). If Congress had made no other allowance for maritime safety oversight and enforcement, perhaps it would be appropriate for the Courts to take on that role through an implied punitive remedy under the Jones Act. That is not the case. Congress has identified the party

19 14 responsible for punishing unsafe maritime activity, and the Courts must respect Congress choice in the matter. The Court may choose to expand its holding in Vreeland and Miles to deny Jones Act negligence plaintiffs punitive damages. It may also follow the intent of Congress and hold that, because of Congress silence on the issue of punitive damages and its appointment of government agencies as the penalizer for unsafe maritime operations, Congress did not intend to permit Jones Act negligence plaintiffs punitive damages against their tortfeasor employers. II. BECAUSE PUNITIVE DAMAGES ARE NOT AVAILABLE UNDER THE GENERAL MARITIME LAW FOR CLAIMS ALLEGING UNSEAWORTHINESS, THE NINTH CIRCUIT S JUDGMENT SHOULD BE AFFIRMED. The duty of seaworthiness is an absolute one upon a shipowner, who must furnish a vessel and appurtenances reasonably fit for their intended use. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 1960 AMC 1503, (1960) (citing Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 339, 1955 AMC 488 (1955)). The vessel must be staffed by a qualified crew and by a crew of sufficient size. See Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, , 1967 AMC 579, (1967); Boudoin, 348 U.S. at 339, 1955 AMC at 491. Finally, a latent condition that makes the vessel unseaworthy but that was not discovered reasonably or not before it left the dock is nevertheless grounds for a claim of unseaworthiness. See Mitchell, 348 U.S. at 550, 1960 AMC at 1510 (citations omitted). Again, the shipowner s duty is absolute and is completely divorce[d]... from concepts of negligence, id., and

20 15 therefore requires no showing of negligence to perfect, see In re Marine Asbestos Cases, 265 F.3d 861, 868, 2001 AMC 2686, 2690 (9th Cir. 2001). A. Because the Jones Act and Unseaworthiness Act as Alternative Theories of Recovery, the Jones Act, By Means of Its Incorporation of the Federal Employers Liability Act, Preempts Damages for Unseaworthiness Under the General Maritime Law. The Jones Act does not permit seaman to receive punitive damages for negligence claims against their employers, see discussion supra, section I. Because the Jones Act does not permit seaman to recover punitive damages against their employers for negligence, they may not recover under the closely related claim of unseaworthiness. See Miles v. Apex Marine Corp., 498 U.S. 19, 32, 1991 AMC 1, (1990). To the contrary, seamen may receive punitive damages under general maritime law claims for maintenance and cure because no statute preempts damages. See Atl. Sounding Co. v. Townsend, 557 U.S. 404, , 2009 AMC 1521, (2009). In Townsend, the Court stated that this was logical extension of the holding of Miles, which determined that where the Jones Act limits damages for wrongful death, recovery under a general maritime claim for wrongful death is preempted and equally bound by that limitation. Townsend, 557 U.S. at 419, 2009 AMC at 1533 (citing Miles, 498 U.S. at 21, 31-32, 1991 AMC at 2, 9-10). Accordingly, since Townsend dealt with a maritime claim with no statutory analogue, it left Miles s holding unimpeached and affirmed that [t]he reasoning of Miles remains sound. Townsend, 557 U.S. at 420, 2009 AMC at The Ninth Circuit has also recognized that statutory analogues frame the analysis for punitive damages, and in fact, it predicted the holding of Townsend: Because Miles did not consider the availability

21 16 of punitive damages, and was not faced with a claim for maintenance and cure that has no statutory analog, it does not directly control the question of whether punitive damages are available for the willful failure to pay maintenance. Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1503, 1995 AMC 2022, 2033 (9th Cir. 1995) (emphasis added), cert. denied, 516 U.S. 1046, 1996 AMC 2998 (1996) ( A seaman may not recover punitive damages in addition to attorney s fees for shipowner s arbitrary failure to pay maintenance and cure. ); see also In re Exxon Valdez, 270 F.3d 1215, , 2002 AMC 1, (9th Cir. 2001). 2 Just as the Jones Act preempted the cause of action in Miles, it is also the statutory analogue to a claim alleging personal injury due to unseaworthiness and preempts any means of recovery inconsistent with those the statute allows. This Court implied this analogous relationship in Townsend, when it noted that the harms suffered in Jones Act negligence and unseaworthiness cases were exclusive of each other. See Townsend, 557 U.S. at , 2009 AMC at 1537 (quoting Grant Gilmore & Charles L. Black, The Law of Admiralty 6-23 at 342 (2d ed. 1975)). The claims are two sides of the same coin: they provide recovery for the same harm, and a seaman may recover only under one theory. See Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138, 1928 AMC 1932, 1937 (1928) (citations omitted) (noting that, between Jones Act 2 This rationale also explains the holding of Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), in which the Court imposed respondeat superior punitive damages on Exxon after determining that the Clean Water Act, which provided for damages for natural harms caused by oil spills but not for harm to public or private property, did not preempt punitive damages for economic or bodily harm to private individuals. 554 U.S. at 488. For what it is worth, the Court also expressed serious doubts about whether this claim should have been heard by the Ninth Circuit when it had not been raised at trial. See id. at The Court then proceeded much as it later would in Townsend: It determined that, without a statutory analogue, common-law notions of damages were relevant and instructive, and it set the standard calculation for these damages in the stances in which they are applied.

22 17 negligence and unseaworthiness, a seaman is entitled to but one indemnity by way of compensatory damages ); McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, 398 n.22, 2014 AMC 2409, 2415 n.22 (5th Cir. 2014) (en banc) (Clement, J., concurring) (citations omitted), cert. denied, 135 S. Ct (2015); Kopczynski v. The Jacqueline, 742 F.2d 555, 560, 1985 AMC 769, 774 (9th Cir. 1984) (citations omitted), cert. denied, 471 U.S. 1136, 1985 AMC 2397 (1985). 3 To the contrary, Petitioner may claim that because the Jones Act and unseaworthiness do not share elements or standards of causation, they may not be considered interdependent. Cf. McBride, 768 F.3d at 417, 2014 AMC at 2462 (Higginson, J., dissenting). Requiring that they share these attributes, however, would make them literally the same cause of action and fails to recognize that the two causes of action compensate for different things. See Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138, 2014 AMC 1932, 1937 (1928) ( Unseaworthiness, as is well understood, embraces certain species of negligence; while the [Jones Act] includes several additional species not embraced in that term. ). Accordingly, distinguishing between the two would create a system in which the differing standards of causation would create anomalous results. For example, unseaworthiness, a strict liability action, would permit punitive damages, whereas the more demanding theory of Jones Act negligence would not. 4 This would undermine the Jones Act regime. Cf. Miles, 3 Seaman are no longer required to pick one theory or the other at the beginning of the case, however; they may prosecute both claims, although they will ultimately recover under only one. See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 222 (1958). 4 Another potentially anomalous situation involves punitive damages in in rem proceedings. Both maintenance and cure and unseaworthiness permit plaintiffs to recover against the vessel itself in in rem actions, which are created by maritime liens. Maritime liens are a property right in the vessel, arising... by operation of law as security for a debt or claim. Governor & Co. of Bank of Scot. v. Sabay,

23 U.S. at 32-33, 1991 AMC at 11. ( It would be inconsistent with our place in the constitutional scheme were we 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. ). In sum, because the Jones Act is the statutory analogue of unseaworthiness and compensates seamen for the same harm, the reasoning of Miles applies fully. Specifically, Miles dictates that the options for recovery under the Jones Act define those available under a general maritime law claim for unseaworthiness, excluding punitive damages for an unseaworthiness claim. See Kopczynski, 742 F.2d at 561, 1985 AMC at 776 (citations omitted). B. Unlike Maintenance and Cure, Seamen s Claims for Unseaworthiness Under the General Maritime Law Do Not Have Historical Antecedents That Permitted Punitive Damages. Many seamen s remedies date to the Rolls of Oléron, a series of precepts that were foundational to the English and American admiralty law and of French origin. 211 F.3d 261, 267, 2000 AMC 1532, 1539 (5th Cir. 2000) (quoting Equilease Corp. v. M/V Sampson, 793 F.2d 598, 602, 1986 AMC 1826, 1832 (5th Cir. 1986) (en banc), cert. denied, 479 U.S. 984, 1987 AMC 2406), cert. denied, 531 U.S Additionally, a preferred maritime lien may be created by damage arising out of maritime tort. 46 U.S.C (5)(B) (2012); Associated Metals & Minerals Corp. v. Alexander s Unity MV, 41 F.3d 1007, , 1995 AMC 1006, (5th Cir. 1995). In admiralty, a maritime tort occurs when the harm is consummated. See Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, , 1973 AMC 1, 4-5 (1972) (quoting The Plymouth, 70 U.S. (3 Wall.) 20, 35, 36, 1999 AMC 2403, 2404, 2406 (1865)). On the one hand, a claim for punitive damages does not give rise to a maritime lien[,] Hunley v. Ace Mar. Corp., 927 F.2d 493, 496, 1991 AMC 1217, 1220 (9th Cir. 1991) (citing Best v. Sperling Shipping & Trading Co., No S, 1969 WL , 1969 AMC 39 (C.D. Cal. Feb. 4, 1969)), yet punitive damages are a method of recovery and a measure of injury not a claim. Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d 1238, 1240 (6th Cir. 1971). Personal injuries from a condition of unseaworthiness create a maritime lien. See The Osceola, 189 U.S. 158, 175, 2000 AMC 1207, 1215 (1903); The Imperator, 288 F. 372, , 1923 AMC 503, 504 (5th Cir. 1923); Barnes v. Sea Haw. Rafting, LLC, Civ. No ACK-RLP, 2015 WL , at *4 (D. Haw. Dec. 22, 2015), appeal docketed, No (9th Cir. Jan. 7, 2016). To consider that a potential plaintiff could levy punitive damages against a ship demonstrates that the extension of punitive damages in admiralty has gone too far, and this Court should halt this progression now.

24 19 See generally Timothy J. Runyan, The Rolls of Oleron and the Admiralty Court in Fourteenth Century England, 19 Am. J. Legal Hist. 95 (1975). One of these remedies is the seamen s right to maintenance and cure against his employer. See id. at 101. Maintenance and cure allows a seaman who is injured in the service of a ship to recover his medical expenses to maximum medical cure ( cure ) and his living expenses during his convalescence ( maintenance ). He may also recover wages during this time. The Osceola, 189 U.S. 158, 175, 2000 AMC 1207, 1215 (1903). Additionally, The Osceola also specifies that the vessel and her owner are... liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. The Osceola, 189 U.S. at 175, 2000 AMC at The claim, however, did not reach its modern form until it became an action for strict liability in the middle of the Twentieth Century, allowing plaintiffs to recover without regard to any considerations of negligence. Miles v. Apex Marine Corp., 498 U.S. 19, 25, 1991 AMC 1, 5 (1990) (citing Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 1944 AMC 1, 5 (1944)) (shipowners liable irrespective of fault and irrespective of the intervening negligence of crewmembers ). Maintenance and cure has a long history of providing punitive or exemplary damages, but unseaworthiness does not. See McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, , 2014 AMC 2409, (2014) (Clement, J., concurring), cert. denied, 135 S. Ct (2015). But see In re Merry Shipping, Inc., 650 F.2d 622, 625, 1981 AMC 2839, 2843 (5th Cir. Unit B Jul. 1981) [hereinafter Merry Shipping],

25 20 overruled by Guevara v. Mar. Overseas Corp., 59 F.3d 1496, 1507, 1995 AMC 2409, 2425 (5th Cir. 1995) (finding punitive damages unavailable in unseaworthiness by reasoning that Miles necessitates overruling), cert. denied, 516 U.S. 1046, 1996 AMC 2999 (1996); Evich v. Morris, 819 F.2d 256, 258, 1988 AMC 74, 76 (9th Cir. 1987) (relying on Merry Shipping), cert. denied, 484 U.S. 914, 1988 AMC 2398; Bergen v. F/V St. Patrick, 816 F.2d 1345, 1349, 1987 AMC 2024, 2030 (9th Cir. 1987) (relying on Merry Shipping), modified, 866 F.2d 318 (1989). 5 This distinction between the two relates to the fact that unseaworthiness under the Osceola required the shipowner to pay an indemnity to the seaman, which was understood to constitute compensatory damages for the seaman s injuries. See McBride, 785 F.3d at 398, 398 n.24, 2014 AMC at 2433, 2433 n.24 (citing Pac. S.S. Co. v. Peterson, 278 U.S. at 138, 2014 AMC 1932, 1937) (collecting cases). Maintenance and cure was to collect on money already owed under the quasi-contractual relationship between the seaman and his employer. See Atl. Sounding Co. v. Townsend, 557 U.S. 404, 432, 2009 AMC 1521, 1545 (2009) (Alito, J., dissenting); Pac. S.S. Co., 278 U.S. at 138, 2014 AMC at 1937 ( In short, the right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence; and these two rights are consistent and cumulative. ); The Osceola, 189 U.S. at 175, 2000 AMC at Even the prevalence of punitive damages in the maintenance and cure context has been contested. See, e.g., Atl. Sounding Co. v. Townsend, 557 U.S. 404, , 2009 AMC 1521, (2009) (Alito, J., dissenting).

26 21 Moreover, this Court in Townsend, took great pains to highlight the distinction between maintenance and cure and unseaworthiness claims. See McBride, 768 F.3d at 389, 2014 AMC at 2418 (5th Cir. 2014) (citing Townsend, 557 U.S. at 423, 2009 AMC at 1537). The reason for this distinction is that the unseaworthiness claim is meant to make the seaman whole rather than to punish the shipowner or to fulfill a contractual obligation. The Court of Appeals in the instant case inferred such a distinction when reaching its judgment. See Pet.App.3a (overruling Evich, 819 F.2d at , 1988 AMC at 77). This brought the Ninth Circuit into line with the Fifth Circuit and implicitly acknowledged that the support it had given to Merry Shipping s conflation of maintenance and cure with unseaworthiness had collapsed with the Fifth Circuit s repudiation of Merry Shipping. Pet.App.3a. The fundamental differences between the two actions stem from their purpose, and it is reasonable for unique causes of action to have unique means of recovery. The Court of Appeals recognized this, and the Court should affirm its judgment. CONCLUSION Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, 389, 2014 AMC 2409, 2413 (5th Cir. 2014) (quoting S. Pac. Co. v. Jensen, 244 U.S. 205, 215, 1996 AMC 2076, 2083 (1917)), cert. denied, 135 S. Ct (2015). Congress did not provide for punitive damages in the Jones Act, or by incorporation, in FELA and did not intend to. In fact, Congress knew that FELA did not provide these damages. See Atl. Sounding Co. v. Townsend, 557 U.S. 404, 422, 2009 AMC

27 , 1536 (2009) (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 32, 1991 AMC 1, 10 (1990)) (presuming Congress is aware of the existing law when it passes new law). To the contrary, the Jones Act is general in nature and affords the courts discretion in interpretation; it also evinces a carefully crafted balance between modified common law doctrines and new statutory remedies for seaman. Robert Dahlquist, Punitive Damages Under the Jones Act, 6 Mar. Law. 1, 32 (1981). Congress was aware that FELA prohibits punitive damages when it incorporated FELA into the Jones Act, see Townsend, 557 U.S. at 422, 2009 AMC at 1536, and the same prohibition on punitive damages therefore applies to the Jones Act. Similarly, punitive damages are unavailable under the general maritime law for claims of unseaworthiness. The Jones Act and unseaworthiness provide seamen with recovery for the same harm or injury. See Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138, 1928 AMC 1932, 1937 (1928) (citations omitted) (noting that, between Jones Act negligence and unseaworthiness, a seaman is entitled to but one indemnity by way of compensatory damages ). The Jones Act s limitations on the methods of recovery therefore preempt any inconsistent means of recovery under the general maritime law. See Miles, 498 U.S. at 32, 1991 AMC at Additionally, it is not clear that such damages ever were available to seamen in claims of unseaworthiness and may have been limited to claims for maintenance and cure. See McBride, 768 F.3d at , 2014 AMC at (Clement, J., concurring). In either scenario, however, punitive damages are unavailable to seamen in these actions.

28 23 Considering the foregoing, this Court should hold that punitive damages are unavailable for claims of Jones Act negligence and for claims alleging unseaworthiness under the general maritime law, and it should affirm the Court of Appeals judgment.