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N O. 15-615

In the

Supreme Court of the United

States

CARL MORGAN Petitioner,

v. ROSHTO MARINE, INC.

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Brief for Respondent

ORAL ARGUMENT REQUESTED No. 15-615

Team TS

Counsel for Respondent

  1  

Questions Presented

I. Under the Jones Act, ship owners may be liable to seamen for negligence.

It is settled law punitive damages are not available in a cause of action for

wrongful death. Although subject to recent debate, the Jones Act’s

reliance on FELA, precedent, congressional intent, and the Supreme

Court’s uniformity principle suggest punitive damages also cannot be

recovered by injured seamen. As a matter of law, is Morgan precluded

from recovering punitive damages under a Jones Act injured seamen

negligence action?

II. General maritime law states ship owners may be liable to injured seamen

for the unseaworthiness of their vessel. Although punitive damages may

be granted in certain cases under general maritime law, historical

precedent, relevant legislation, and the Supreme Court’s uniformity

principle disallow the recovery of such damages in unseaworthiness

actions. As a matter of law, is Morgan precluded from recovering punitive

damages under a claim for unseaworthiness?

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Table of Contents

Questions Presented  .....................................................................................................................................  1  

Opinions Below  ................................................................................................................................................  6  Statement of Jurisdiction  ..........................................................................................................................  6  Statutory Provisions Involved  ................................................................................................................  6  Standard of Review  .......................................................................................................................................  6  Statement of the Case  ..................................................................................................................................  7  Statement of the Facts  .................................................................................................................................  7  Summary of the Argument  ........................................................................................................................  9  Argument  ...........................................................................................................................................................  10  

I.   Morgan cannot recover punitive damages under the Jones Act because the act does not allow recovery of non-pecuniary losses  .......................................................................  10  

A.   Punitive damages are non-pecuniary  ......................................................................................  10  B.   Damages under the Jones Act is deferred to the Federal Employers' Liability Act (FELA)  ...........................................................................................................................................  12  C.   FELA damages are limited to pecuniary losses  ..............................................................  12  D.   Congress did not intend for the Jones Act to permit recovery of non-pecuniary damages  .............................................................................................................................................  14  E.   Jones Act precedent informs that seamen cannot recover damages for non-pecuniary losses  .........................................................................................................................................  17  F.   The Supreme Court ought to strive for uniformity in the Jones Act remedy scheme  .......................................................................................................................................................  20  G.   Lower court cases discussing that punitive damages might be recoverable in ‘appropriate circumstances’ are not persuasive because they are unclear and inconsistent with most Jones Act precedent  ......................................  20  H.   The Judiciary should not undertake to change the Jones Act remedy scheme and should instead defer to Congress if there is a need to allow a new class of damages  ....................................................................................................................................................  21  

II.   History, the need for uniformity, and policy dictate the denial of punitive damages under a claim for unseaworthiness  .......................................................................................  22  

A.   The establishment of liability for unseaworthiness negates punitive damages  ........................................................................................................................................................................  23  B. The Court should seek to preserve uniformity in the law where it exists, and strive to create it where it does not exist  .............................................................................  28  C. The policy implications involved in such a large industry are best left to Congress  .......................................................................................................................................................................  33  

Conclusion  ........................................................................................................................................................  34  Prayer  ..................................................................................................................................................................  35  

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Table of Authorities Legislation

U.S. Const. art. I, § 8, cl. 3

U.S. Const. art. III, § 2, cl. 1

Supreme Court Cases

Am. R.R. of Porto Rico v. Didricksen, 227 U.S. 145, 150 (1913)

Anderson v. Texaco, Inc., 797 F. Supp. 531 (E.D. La. 1992).

Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009)

Day v. Woodworth, 54 U.S. 363 (1851)

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)

Kopczynski v. Jacqueline, 742 F.2d 555 (9th Cir. 1984)

Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101 (1893)

Mich. Cent. R.R. v. Vreeland, 227 U.S. 59 (1913)

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)

Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489 (1875)

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978)

Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135 (2003)

The Osceola, 189 U.S. 158 (1903)

Pac. S.S. Co. v. Peterson, 278 U.S. 130 (1928)

S. Pac. Co. v. Jensen, 244 U.S. 205 (1917)

Circuit and District Court Cases

Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282 (11th Cir. 2007)

Baltimore S.S. v. Phillips. Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138 (1928)

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Coats v. Constr. & Gen. Laborers Local No. 185, 15 Cal. App. 3d 908, 916 (Cal. Ct.

App. 1971)

Kozar v. Chesapeake & Ohio Ry., 449 F.2d 1238, 1240 (6th Cir. 1971)

Kozar v. Chesapeake & Ohio Ry., 320 F. Supp. 335, 339 (W.D. Mich. 1970)

McAllister v. S. Coast Air Quality Mgmt. Dist., 183 Cal. Rptr. 3d 653 (Cal. Ct. App.

1986)

McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014)

Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1457 (6th Cir.1993)

Rowe v. Hornblower Fleet, 2013 A.M.C. 873, 894 (N.D. Cal. 2012).

Tate v. C. G. Willis, Inc., 154 F. Supp. 402 (E.D. Va. 1957)

The City of Carlisle, 39 F. 807, (D.C. Or. 1889)

The Margharita v. Martinez, 140 F. 820 (5th Cir. 1905)

The Rolph v. Rolph Navigation & Coal Co., 293 F. 269 (N.D. Cal. 1923)

Wagner v. Kona Blue Water Farms, LLC, No. CIV.09-00600 JMS/BMK, 2010 WL

3566730 (D. Haw. Sept. 13, 2010)

Secondary Sources

Thomas M. DiBiago, Fostering Uniform Substantive Law and Recovery – the Demise

of Punitive Damages in Admiralty and Maritime Personal Injury and Death Claims,

25 U. BALT. L. REV. 1 (1995).

Phillip M. Smith, A Watery Grave for Unseaworthiness Punitive Damages: McBride

v. Estis Well Service, L.L.C., 76 LA. L. REV. 619, 649 (2015)

Andrew Tettenborn & Baris Soyer, Pollution at Sea: Law and Liability 93 (2012)

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Gilmore & Black, The Law of Admiralty 383 (2d ed. 1975)

Moore, Punitive Damages for Maritime Work Related Injuries, 8 LOY. MAR. L.J. 197

William H Theis, United States Admiralty Law as an Enclave of Federal Common

Law, 23 TUL. MAR. L.J. 73, 75 (1998)

Stevan C. Dittman, Amiable or Merry? An Update on Maritime Punitive Damages,

89 TUL. L. REV. 1059, 1060 (2015)

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Opinions Below

The opinion of the Ninth Circuit and the opinion of Judge Justinian

concurring in part and dissenting in part are reported at Morgan v. Roshto Marine,

Inc., 786 F.3d 1387, 2015 AMC 3333 (9th Cir. 2015); and in the Appendix to the

Petition for Certiorari (R. at 1a-4a).

The District Court’s opinion is reported at Morgan v. Roshto Marine, Inc.,

971 F. Supp. 2d 1349 (D. Haw. 2013) and in the Appendix to the Petition for

Certiorari (R. at 6a-10a).

Statement of Jurisdiction

The Ninth Circuit issued its opinions on May 5, 2015. Morgan’s May 12, 2015

petition for rehearing was denied on June 12, 2015. This Court has jurisdiction

under 28 U.S.C. 1254.

Statutory Provisions Involved

Provisions of the Jones Act 46 U.S.C. §30104, Federal Employers' Liability

Act (FELA), the Clean Water Act (CWA) and Death on the High Seas Act (DOHSA)

applicable to this case are reprinted in the Addendum to this brief.

Standard of Review

“Whether punitive damages are an available remedy under maritime law is a

question of law reviewed de novo.” McBride v. Estis Well Serv., L.L.C., 768 F.3d 382,

385 (5th Cir. 2014) (citing Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284

(11th Cir. 2007).

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Statement of the Case

This is a case about uniformity in Admiralty law, and whether an injured

seaman can recover punitive damages under the Jones Act or general judge-made

maritime law. Morgan filed suit against Roshto Marine in the United States

District Court for the District of Hawaii for injuries sustained during the course of

employment. Id. He is alleging entitlement to an award for punitive damages under

the Jones Act and general maritime law for unseaworthiness. R. at 6a. Roshto

Marine filed two motions to dismiss the punitive damages counts. Id. The District

Court granted Roshto Marine’s motion to dismiss Morgan’s Jones Act punitive

damages count citing Ninth Circuit jurisprudence. R. at 9a. The same court denied

Roshto Marine’s motion to dismiss Morgan’s unseaworthiness punitive damages

count. R. at 10a. Subsequently, the Ninth Circuit affirmed the dismissal of the

Jones Act punitive damages count and reversed the lower court’s denial of Roshto

Marine’s motion to dismiss the unseaworthiness punitive damages count. R. at 1a-

2a.

Statement of the Facts

Carl Morgan began working aboard Roshto Marine’s vessel, the Sally Mae, in

June 2010 replacing the former relief captain. R. at 7a. Archie Roshto, president

and owner of Roshto Marine, personally instructed Morgan on the operation of the

Sally Mae – a push boat purchased 18 months earlier. Id. The Sally Mae is

equipped with two towing winches on her bow, which are used to secure lines

joining the Sally Mae to the barges in her tow. Id. One towing winch is hydraulic

and the other is electric. Id. Mr. Roshto’s onboarding tour included an overview of

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the vessel’s layout and training on the equipment. Id. Mr. Roshto showed Morgan

the manual crank handle that accompanied the electric winch and told him that is

was to be used to override the electric switches on the winch if they failed.

Id. Morgan was instructed that when the winch does not engage by use of the

switch, it requires attaching the manual crank to the electric winch motor. Id. He

was instructed to wind it first, then press the ignition switch second. Id.

On the date of his injury, Morgan was performing a manual override when

the tension in the wires had become tight during an offloading operation in Hawaii.

R. at 8a. Morgan relieved the tension on the hydraulic starboard-side first. Id. As a

result, the electric side became even tighter. Id. When the electric winch failed,

Morgan attached the manual crank. Id. Rather than cranking first and then

pressing the switch, Morgan did both simultaneously. Id. Which caused the crank to

fly off and strike him in the face when the motor started. Id.

A similar incident, not known to Morgan, had occurred with the former relief

captain. Id. Mr. Roshto did not disclose the accident to Morgan. Id.

Morgan filed suit against Roshto Marine on October 11, 2011, alleging

negligence under the Jones Act and unseaworthiness under general maritime law.

Id. Roshto Marine sought dismissal of the punitive damages counts in the district

court proceeding. R. at 6a. Judge Portia of the United States District Court for the

District of Hawaii granted dismissal of the Jones Act punitive damages count, and

denied the dismissal of the unseaworthiness punitive damages count. R. at 7a-8a.

The Ninth Circuit held in Roshto Marine’s favor by affirming dismissal of the Jones

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Act punitive damages count, and reversing the dismissal of the unseaworthiness

punitive damages count. R. at 1a-2a. Morgan’s subsequent petition for rehearing

was denied on June 12, 2015. R. at 1a. The Supreme Court granted Morgan’s

petition for certiorari on December 7, 2014. R. at 4a. The only issue before this

Court is whether Morgan can claim punitive damages as a matter of law, regardless

of the egregiousness of Roshto Marine’s conduct. R. at 2a.

Summary of the Argument

I. The Court of Appeals for the Ninth Circuit correctly held that Morgan

cannot claim punitive damages under the Jones Act. The Jones Act

incorporates the substantive recovery provisions of the FELA, which

limits damages to pecuniary losses. Further, Jones Act precedent

instructs that punitive damages are not available. The Court should defer

to Congress if changes are needed in the Jones Act remedy scheme.

II. The Court of Appeals for the Ninth Circuit correctly held that Morgan

cannot recover punitive damages in his claim for unseaworthiness.

History, uniformity, and policy dictate the denial of punitive damages

under a claim for unseaworthiness.

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Argument

I. Morgan cannot recover punitive damages under the Jones Act because the act does not allow recovery of non-pecuniary losses

A. Punitive damages are non-pecuniary

Punitive damages cannot be awarded in this case because non-pecuniary

losses cannot be recovered under the Jones Act. There can be little doubt that

punitive damages are non-pecuniary in character. Anderson v. Texaco, Inc., 797 F.

Supp. 531, 534 (E.D. La. 1992). The Supreme Court has stated that pecuniary losses

are those that are monetarily quantifiable. Mich. Cent. R.R. v. Vreeland, 227 U.S.

59, 71 (1913). Compensatory damages such as medical bills are pecuniary and

restore individuals to their pre-tort status. Restatement (First) of Torts § 903 (Am.

Law Inst. 1939). Rather than compensating for a loss, punitive damages are

imposed to punish and deter by virtue of the gravity of the offense. Anderson, 797 F.

Supp. at 534. “The purposes of awarding punitive damages, or ‘exemplary’ damages

as they are frequently called, are to punish the person doing the wrongful act and to

discourage him and others from similar conduct in the future.” Restatement

(Second) of Torts § 908 (Am. Law Inst. 1979). “The consensus today is that punitive

damages are aimed at retribution and deterring harmful conduct.” Exxon Shipping

Co. v. Baker, 554 U.S. 471, 492 (2008). Jurisprudence from across the country

inform that punitive damages are non-pecuniary. Kopczynski v. Jacqueline, 742

F.2d 555 (9th Cir. 1984); Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1457

(6th Cir.1993).

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Unlike compensatory damages, punitive damages are not recoverable as a

matter of right. McAllister v. S. Coast Air Quality Mgmt. Dist., 183 Cal. Rptr. 3d

653, 659 (Cal. Ct. App. 1986). Awarding punitive damages falls within the

discretion of the trier of fact. Coats v. Constr. & Gen. Laborers Local No. 185, 15

Cal. App. 3d 908, 916 (Cal. Ct. App. 1971). Factors to be considered include “the

character of the defendant's act, the nature and extent of the harm to the plaintiff

which the defendant caused or intended to cause, and the wealth of the defendant.”

Id.

“Some argue that punitive damages are pecuniary because they are

susceptible of valuation in money and that Baker confirmed the pecuniary nature of

punitive damages by developing its ratio for recovery in maritime law.” Phillip M.

Smith, A Watery Grave for Unseaworthiness Punitive Damages: Mcbride v. Estis

Well Service, L.L.C., 76 LA. L. REV. 619, 649 (2015). However, this argument is not

at all compelling. First, members of Congress expressed their concern with the

Baker ratio in proposing in a Senate bill that “punitive damages may be assessed

without regard to the amount of compensatory damages assessed in the action.”

Andrew Tettenborn & Baris Soyer, Pollution at Sea: Law and Liability 93 (2012).

Second, basing punitive damages solely on the amount of compensatory damages

seems arbitrary and does not advance the purpose of punitive damages. How are we

to be sure that the joint goals of retribution and deterrence are achieved in this

ratio? These are goals that cannot easily be assigned a dollar figure because they

are computed inductively rather than deductively. Assigning a ratio emphasizes the

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non-pecuniary nature of punitive damages because they cannot easily and

independently be assigned a dollar figure.

B. Damages under the Jones Act is deferred to FELA

The Supreme Court in 1896 held that seamen could not sue their shipowner

employers for negligence. The Osceola, 189 U.S. 158 (1903). As a result, congress

embarked on a long journey to address the Supreme Court’s enunciation of

seamen’s rights. In 1920, “Congress passed the Jones Act...to permit a seaman to

recover for negligence.” McBride, 768 F.3d 382.

The Jones Act incorporates “all statutes of the United States modifying or

extending the common-law right or remedy in cases of personal injury to railway

employees” 46 U.S.C. § 688 (1976 & Supp. III 1979). Specifically, through

incorporation of the Federal Employers' Liability Act (FELA), the Jones Act

“extended to seamen the same negligence remedy for damages afforded to railroad

workers[.]” McBride v. Estis Well Serv., L.L.C., 768 F.3d 382. FELA and the Jones

Act do not contain any language specifically addressing what damages are, or are

not recoverable leaving the courts tasked with making this determination.

Ultimately, FELA damages cases have guided the courts in subsequent Jones Act

cases.

C. FELA damages are limited to pecuniary losses

In Vreeland, the Supreme Court held that FELA damages are limited to

those that are pecuniary. Vreeland, 227 U.S. 59. The Supreme Court has struck

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down punitive damages in pre-Jones Act FELA and has confirmed the FELA

pecuniary loss limitation in several opinions. Vreeland, 227 U.S. 59.

“It has been the unanimous judgment of the courts since before the

enactment of the Jones Act that punitive damages are not recoverable under

[FELA].” Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1457 (6th Cir.1993).

Consequently, the unavailability of punitive damages under FELA was established

by the time the Jones Act became effective.

Under FELA, pain and suffering are compensatory damages that can be

recovered. Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 149 (2003). Morgan might

argue that pain and suffering are non-pecuniary because they are not directly

associated with a medical bill, for example, and since pain and suffering can be

recovered, the Jones Act permits recovery of non-pecuniary losses generally.

However, this would be a misguided argument. The Restatement First of Torts

explains, compensation for pain and suffering “give to the injured person some

pecuniary return for what he has suffered or is likely to suffer.” Restatement (First)

of Torts § 903 (Am. Law Inst. 1939). This can be contrasted with loss of society,

which the Supreme Court has said is non-pecuniary because it is not the type of loss

that can be compensated for. Am. R.R. of Porto Rico v. Didricksen, 227 U.S. 145, 150

(1913). Courts in Jones Act cases have also denied recovery of non-pecuniary

damages such as loss of consortium and the economic value of a deceased seaman's

life. Tate v. C. G. Willis, Inc., 154 F. Supp. 402 (E.D. Va. 1957). One distinction

between pain and suffering and loss of companionship is that we can attempt to

  14  

understand pain and suffering in terms of length of time and severity, whereas the

length and depth of lost companionship cannot be immediately ascertained or as

easily understood by outside parties. The Supreme Court said “loss of society and

companionship, and of the acts of kindness which originate in the relation...are not

capable of being measured by any material standard.” Vreeland, 227 U.S. 59, 73.

Monetizing companionship offends the delicate nature of relationships. This can

explain why pain and suffering are pecuniary in nature, and loss of companionship

is not.

D. Congress did not intend for the Jones Act to permit recovery of non-pecuniary damages

1. Pre-Jones Act maritime case law discussing punitive damages is not persuasive because our definition of punitive damages has evolved

Congressional intent behind the Jones Act was to expand the rights available to

seamen. Pac. S.S. Co. v. Peterson, 278 U.S. 130 (1928). Since the Jones Act did not

take away any rights, seamen can use the Jones Act, general maritime law, or both

to seek remedies for shipowner negligence. Although negligence under the Jones Act

is broader in scope than a negligence action under general maritime law, the two

overlap. Gilmore & Black, The Law of Admiralty 383 (2d ed. 1975). As a result, a

single negligent act can raise both a claim for Jones Act negligence and general

maritime law unseaworthiness. “But, whether or not the seaman's injuries were

occasioned by the unseaworthiness of the vessel or by the negligence” of the

shipowner, the seaman is only entitled to recover compensatory damages once.

Baltimore S.S. v. Phillips. Pac. S.S. Co. v. Peterson, 278 U.S. 130, 138 (1928).

  15  

Some pre-Jones Act maritime cases have been used to argue that punitive

damages are allowable under the Jones Act because they were generally allowable

before the Jones Act. Kozar v. Chesapeake & Ohio Ry., 320 F. Supp. 335, 339 (W.D.

Mich. 1970). However, in Townsend, the court reflected back on punitive damages in

maintenance and cure cases, and in his dissent Justice Alito pointed out that “the

cases found are insufficient in number, clarity, and prominence.” Atl. Sounding Co.

v. Townsend, 557 U.S. 404, 431 (2009) (Alito, J., dissenting).

History is not a “sound basis for accepting an interpretation of the [Jones] Act

that would permit the unprecedented recovery of punitive damages.” Kozar v.

Chesapeake & Ohio Ry., 449 F.2d 1238, 1240 (6th Cir. 1971). The district court in

Kozar incorrectly cited early common law cases to support permitting recovery of

punitive damages because those cases were mostly about intentional torts and

“...are distinguishable from the case of a railroad employee or an employee's

administrator suing his employer for injuries or death suffered on the job. Kozar,

449 F.2d 1238. As Justice Alito opposed the majority’s proposition that punitive

damages were historically available to seamen because “upon closer look at the

cases the court cited...whether such damages were actually recovered is unclear”.

Atl. Sounding Co. v. Townsend, 557 U.S. 404, 431 (2009).

Despite the Jones Act’s intent not to limit existing common law remedies, it

is “a mistake to characterize the right to recover punitive damages at common law a

‘common law remedy’.” Kozar, 449 F.2d 1238. The distinction between remedy and

damages is important. Id. The Sixth Circuit distinguishes a remedy, “which

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Bouvier's Law Dictionary defines as ‘the means employed to enforce a right or

redress an injury’, and ‘damages’ which are defined as ‘the indemnity recoverable by

a person who has sustained an injury…[including] not only compensatory, but also

exemplary or punitive damages.’” The court reasons that since “[d]amages are

simply a measure of injury, to say that at common law there was "punitive damages

as a right of action" or there was available ‘the common law remedy action of

punitive damages’ or a ‘punitive damages remedy’ is a misuse of the legal

terminology.” Id.

Older maritime cases discussing damages may not be helpful because of how

the concept of punitive damages has evolved. The Supreme Court in Cooper

Industries discussed how punitive damages used to serve a different function.

Stating that because the scope of compensatory damages were so narrow, punitive

damages were necessary to make the plaintiff whole. Cooper Indus. V. Leatherman

Tool Grp., Inc., 532 U.S. 424 (2001). With the liberalization of compensatory

damages, along with the ability to monetize damages more accurately, punitive

damages no longer serve this original purpose. Id. Since the meaning of punitive

damages has changed, the use of early maritime cases in justifying current awards

is less compelling.

2. Congress incorporated FELA into the Jones Act, and even at that time FELA damages were limited to pecuniary losses

Prior to passage of the Jones Act, the Supreme Court established the rule

that non-pecuniary losses are not recoverable under FELA. Vreeland, 227 U.S. 59,

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68. Vreeland imposes the pecuniary damages limitation on FELA, and by extension,

on the Jones Act. Phillip M. Smith, A Watery Grave for Unseaworthiness Punitive

Damages: Mcbride v. Estis Well Service, L.L.C., 76 La. L. Rev. 619, 649 (2015).

Miles reasoned that “[i]ncorporating FELA unaltered into the Jones Act,

Congress must have intended to incorporate the pecuniary limitation on damages as

well.” Miles, 498 U.S. at 32. We assume that Congress is aware of existing law when

it passes legislation.” Id. Since the Jones Act was passed under this damages

landscape with no statutory language to the contrary, Congress created the act with

the pecuniary losses limitation. “No case under FELA has allowed punitive

damages, whether for personal injury or death. Because the Jones Act adopted

FELA as the predicate for liability and damages for seamen, no cases have awarded

punitive damages under the Jones Act.” McBride v. Estis Well Serv., L.L.C., 768

F.3d 382, 388.

E. Jones Act precedent informs that seamen cannot recover damages for non-pecuniary losses

The Supreme Court recently reviewed maritime punitive damages awards

carefully in a Fifth Circuit case. The Court in Miles used the Jones Act pecuniary

damages limitation to guide their decision in denying the mother of a seaman

violently killed by another member of the crew recovery of lost future earnings and

loss of society. Miles, 498 U.S. at 36. Despite the tragic fact pattern, the court

remained committed to the role of the judiciary in their decision. “Although Miles

did not address punitive damages, courts have uniformly interpreted Miles as

precluding plaintiffs from recovering punitive damages in Jones Act claims.”

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Wagner v. Kona Blue Water Farms, LLC, No. CIV.09-00600 JMS/BMK, 2010 WL

3566730 (D. Haw. Sept. 13, 2010).

“[T]he post-Miles district court cases, in this district and in others, speak

with one voice in concluding that punitive damages are non-pecuniary and,

therefore, are not recoverable under Miles's interpretation of the Jones Act.”

Anderson, 797 F. Supp. at 534. For example, the Fifth Circuit subsequently applied

the Supreme Court’s decision in holding that the spouse of an injured Jones Act

seaman no longer possessed a claim for loss of consortium should a claim based

upon unseaworthiness be proven. Stevan C. Dittman, Amiable or Merry? An Update

on Maritime Punitive Damages, 89 TUL. L. REV. 1059, 1071 (2015) citing Murray v.

Anthony J. Bertucci Construction Co.

Even before the Supreme Court’s decision in Miles, the Ninth Circuit has

been persuasive in Jones Act punitive damages cases because of the sound

reasoning in Kopczynski. The court was deciding a case about an injured seamen

who was ultimately denied recovery punitive damages. Kopczynski, 742 F.2d 555,

557. The Ninth Circuit found that since the Jones Act follows FELA remedies, and

the pre-Jones Act FELA case law established that only compensatory damages are

allowed, the same is also true for the Jones Act. Kopczynski, 742 F.2d 555.The

Ninth Circuit cited the Fifth Circuit decision in Merry Shipping, limiting Jones Act

remedies to pecuniary losses and ultimately finding that “[p]unitive damages are

non-pecuniary… therefore, they may not be awarded on a claim of negligence based

on the Jones Act.” Kopczynski, 742 F.2d 555. The Ninth Circuit has consistently

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applied this rule by affirming that punitive damages are not recoverable under the

Jones Act: “punitive damages are non-pecuniary damages unavailable under the

Jones Act.” Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir. 1987).

Morgan uses Townsend to support a punitive damages award, which is

problematic. The Townsend dissent points out that “[t[he Jones Act is significant

because…[the] statutory claim does not permit the recovery of punitive damages.”

Townsend, 557 U.S. 404. Even the majority agrees “that the Jones Act does not bar

a punitive damages claim for willful and wanton failure to pay maintenance and

cure.” Townsend. “What seems implied in the reading of the Townsend case is that

there is a bar to punitive damages under the Jones Act itself.” Moore, Punitive

Damages for Maritime Work Related Injuries, 8 LOY. MAR. L.J. 197. If the court

interpreted punitive damages to be allowed under the Jones Act in Townsend, then

much of reasoning in the opinion would be unnecessary.

The Townsend Court “explained that in Miles, it found that the remedies

available for a wrongful death action were limited by Congress's judgment, as

reflected in the Jones Act and DOHSA, because Congress both created the wrongful

death action and chose to limit the damages available on such an action.” Rowe v.

Hornblower Fleet, 2013 A.M.C. 873, 894 (N.D. Cal. 2012). The limitation being

referred to is the non-pecuniary damages exclusion. Id. Townsend says that because

of this, it would have been "illegitimate to create common-law remedies that

exceeded those remedies statutorily available under the Jones Act and DOHSA." Id.

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F. The Supreme Court ought to strive for uniformity in the Jones Act remedy scheme

The Miles Court emphasized the need for uniformity in assessing damages under

the Jones Act and the related maritime law. Miles, 498 U.S. 19, 319. This

“represented a decisive endorsement of the importance of achieving uniformity in

maritime law.” Thomas M. DiBiago, Fostering Uniform Substantive Law and

Recovery – the Demise of Punitive Damages in Admiralty and Maritime Personal

Injury and Death Claims, 25 U. BALT. L. REV. 1 (1995).

Although Miles created conformity between the Jones Act and general

maritime law recovery schemes, it is a logical extension of the Supreme Court’s

uniformity principle to dismiss Morgan’s Jones Act punitive damages claim even

though Miles was a wrongful death action.

G. Lower court cases discussing that punitive damages might be recoverable in ‘appropriate circumstances’ are not persuasive because they are unclear and inconsistent with most Jones Act precedent

In Jones Act negligence cases such as In re Den Norske, the court said

extreme or specific circumstances would need to exist for punitive damages to be

awarded. In re Den Norske Amerikalinje A/S 276 F. Supp. 163 (N.D. Ohio 1967).

The court never actually awarded punitive damages, and limited their discussion to

extreme negligent conduct in a respondeat superior like circumstance, leaving it

unclear as to what shipowner conduct would surpass the threshold of “extreme”.

“The Supreme Court has yet to decide whether punitive damages can be assessed

vicariously upon a vessel owner; i.e., to what extent a vessel owner must endorse or

  21  

ratify the egregiously bad conduct of its captain or crew before it can be found

answerable for a punitive damages award.” Stevan C. Dittman, Amiable or Merry?

An Update on Maritime Punitive Damages, 89 TUL. L. REV. 1059, 1060 (2015).

Decisions like In re Den Norske are difficult to apply to subsequent fact patterns

and contrary to most Jones Act precedent.

Morgan might argue that since the Clean Water Act also does not specifically

provide a punitive damages remedy in civil cases, that the Supreme Court in

allowing these damages in Baker supports the same result in this Jones Act case.

However, unlike the Jones Act, the CWA was drafted with built-in penalties for

pollution. When statutes with penalty language like the CWA are interpreted by the

Court to allow for punitive relief in a civil action, such as in Baker, Congressional

intent remains unoffended unlike when punitive damages are interpreted to be

allowed in Jones Act cases. Statutes with penalty language demonstrate legislative

approval of punishing or penalizing a wrongdoer, and drawing the line between

penalties and punitive relief is logical. It would have frustrated the purpose of the

CWA to limit damages to the pollution penalties provided for in the statute’s

language, because unlike the Jones Act, the CWA does not defer damages to

another statute.

H. The Judiciary should not undertake to change the Jones Act remedy scheme and should instead defer to Congress if there is a need to allow a new class of damages

We see no reason why punitive damages should be allowed under the Jones

Act. Should the court find to the contrary, it would be appropriate to defer to

  22  

Congress. The Supreme Court in Miles recognized that “[w]e no longer live in an era

when seamen and their loved ones must look primarily to the courts as a source of

substantive legal protection from injury and death; Congress and the States have

legislated extensively in these areas.” Miles, 498 U.S. 19. The Court recognized

“maritime tort law is now dominated by federal statute, and [the Court is] not free

to expand remedies at will simply because it might work to the benefit of seamen

and those dependent upon them." Miles, 498 U.S. 19. It is important for “[a]n

admiralty court [to] be vigilant not to overstep the well-considered boundaries

imposed by federal legislation.” Id.

Even if the Jones Act leaves room for judicial lawmaking concerning recovery

of punitive damages, the Court should not authorize recovery of such damages in

this case because it is inconsistent application of the law. In the Baker dissent,

Justice points to other maritime statutes that would be inconsistent with punitive

damages awards. Baker, 554 U.S. 471 (Stevens, J., concurring in part, dissenting in

part). For example, the Limitation of Ship Owners' Liability Act “operates to shield

from liability ship owners charged with wrongdoing committed without their privity

or knowledge; the Limitation Act's protections thus render large punitive damages

awards functionally unavailable in a wide swath of admiralty cases. Id.

II. History, the need for uniformity, and policy dictate the denial of punitive damages under a claim for unseaworthiness

The Ninth Circuit correctly denied Morgan’s claim for punitive damages. In

doing so, they followed precedent set in the creation of a ship owner’s liability for

unseaworthiness in The Osecola. As well as the court cited key reasoning in

  23  

relevant cases such as McBride, Miles, Townsend, and others. Additionally, the

relationship between Congress and the courts plays a role in liabilities in maritime

law. With both having the power to create law, it is essential that a uniform system

of law be in place in order to provide clear and consistent results to ship owners,

and all of those involved in the maritime industry.

A. The establishment of liability for unseaworthiness negates punitive damages

The courts and Congress have coexisting roles in creating and shaping

admiralty law. The courts have long created general admiralty law under the

powers granted through the Admiralty Clause of the Constitution. U.S. Const. art.

III, § 2, cl. 1. However, the Commerce Clause grants Congress the power to change

and shape maritime law through legislation. U.S. Const. art. I, § 8, cl. 3; S. Pac. Co.

v. Jensen, 244 U.S. 205 (1917). Understanding the relationship between these two

branches of government is key in the analysis of liability in unseaworthiness causes

of action. Unfortunately, muddled legislation and a history of confusing case law

have left courts baffled on how to address this issue. However, in light of recent

Supreme Court and Circuit decisions such as Townsend and McBride, it can be

shown that both longstanding, judge-made general maritime law, and relevant

Congressional legislation actually agree punitive damages are not permitted in a

claim for unseaworthiness. Because of this agreement, the Supreme Court should

follow the spirit and intent of Miles, and create uniformity for clear, consistent

results in the murky waters of unseaworthiness claims. Miles, 498 U.S. 19.

  24  

Under its Constitutional authority to set and establish general maritime law,

the Supreme Court in The Osceola sought to extend a protection to the seamen

earning their living aboard a vessel. Previously, seaman aboard their vessel of

employment had not been granted a method of recovery for an unsafe work

environment which was fixable by the owner. The Osceola, 189 U.S. 158. While

seamen did have a cause of action for failure to tend to injuries after they happened,

there was no cause of action for the injury itself. Id. Recognizing this gap in the law

-- allowing seamen recovery under a “maintenance and cure” claim, but not for the

actual unseaworthiness of the ship itself -- the court held that a ship owner is liable

to indemnify the victim for injuries received for the failure to supply and keep in

order the proper appliances appurtenant to the ship. Id.

The Pacific ruling provided further clarity regarding indemnification. The

court held that the “indemnity” in which ship owners were liable are strictly

compensatory in nature, and exemplary damages were not to be considered. Pac.

S.S. Co., 278 U.S. 130. Indeed, a further look back into the court’s history and

definition of the term “indemnity” proves the court could have only intended for

compensatory damages to exist for claims of unseaworthiness. In a decision pre-

dating both The Osceola and Pacific, the court went to great lengths to define the

meaning of “indemnify.” Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489, 492 (1875).

The Milwaukee court held that to grant any type of exemplary or punitive damages

would be beyond the scope of indemnification. Id. As a result, liability to indemnify

is strictly compensatory in nature. Id. This detailed definition in Milwaukee, along

  25  

with the clarification provided in the Pacific decision, shows the court knew exactly

what type of remedy they were granting to the injured party. Liability for

unseaworthiness was thus established. It may be argued, however, that punitive

damages are generally accepted in maritime law, much as they are in tort -- thus

they must be available in unseaworthiness cases. Townsend, 557 U.S. 404. But, if

the court in its establishment of the cause of action itself states something to the

contrary of that general rule, one must be bound by the court’s later determination.

Although punitive damages may be widely and generally available in judge-made

maritime law, we must grant power to the words the Supreme Court has used time

and time again. In unseaworthiness, it is clear the court did not err in stating the

liability for failure to provide a safe workplace is an indemnity, and no further. As a

result, Morgan cannot recover punitive damages in his unseaworthiness cause of

action because the cause of action was never meant to punish the tortfeasor, rather

just make the victim whole.

B. Precedent requires punitive damages be denied The Ninth Circuit decision in Roshto Marine’s favor relied heavily on the

decision made by the Fifth Circuit in McBride where punitive damages were

similarly denied. McBride used the Supreme Court’s reasoning in Miles and

Townsend. These cases have all been decided correctly and directly apply to this

case.

The Fifth Circuit in McBride was considering a case similar to Morgan’s, in

which representatives of deceased and personally injured seamen brought Jones Act

  26  

negligence and unseaworthiness claims against their employer for an accident that

occurred while working on a drilling rig. McBride, 768 F.3d 382. In an effort to

bring clarity to this muddled area of law, the court first sought to wade through the

history of the development of damages granted under unseaworthiness claims.

The court first recognized that under prior holdings, punitive and exemplary

damages are generally available in maritime law cases – a concept borrowed from

actions in general land based tort. Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S.

101 (1893); Day v. Woodworth, 54 U.S. 363 (1851). This general principle was one of

the major foundational assumptions used to allow punitive damages under a

maintenance and cure claim in the Townsend case – a case heavily relied upon by

the plaintiffs and dissent in McBride. Townsend, 557 U.S. 404; McBride, 768 F.3d

382.

The majority in Townsend cited cases in which it believed granted punitive

damages in the past, as purported evidence punitive damages were in fact generally

allowed in the maritime context, and as a result granted in unseaworthiness claims.

However, Justice Alito bluntly pointed out in his Townsend dissent that upon

deeper research of this issue reveals “strikingly slim results.” Townsend, 557 U.S.

404, 431. In looking to cases cited in the Townsend decision as proof of prior use of

punitive damages produces Justice Alito’s primary concern – a surprising lack of

proof. Id. In both The City of Carlisle and The Marghrita cases, the court awarded

“consequential” damages, however in the court’s detailing of the damages, there is a

lack of any type of language stating any portion of the judgment was for punitive

  27  

damages. The City of Carlisle, 39 F. 807, 817 (D.C. Or. 1889); The Margharita v.

Martinez, 140 F. 820 (5th Cir. 1905). Rather, the damages accounted for pecuniary

losses such as pain and suffering, and lost future wages. The City of Carlisle, 39 F.

807, 817 (D.C. Or. 1889); The Margharita, 140 F. 820 (5th Cir. 1905). These

damages are compensatory, and are awarded to make the plaintiff whole again

rather than punish and deter undesirable conduct. Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008). Even still, the Townsend majority acknowledged in a footnote

that neither of these cases referred to "punitive" or "exemplary" damages.

Townsend, 557 U.S. 404, 431 (2009). Even if these damages were intended to punish

– the most condemning fact is that the damages were reversed in the Fifth Circuit

on appeal. The Margharita, 140 F. 820.

Additionally, Justice Clement, in his concurring opinion in McBride stated

that if punitive damages existed in unseaworthiness claims, one would expect to

find a “plethora” of case law pre-dating the Jones Act of such awards. McBride, 768

F.3d 382. However, Justice Clement only found one case, The Rolph, which

seemingly allowed punitive damages. However, once again a deeper look reveals

that the damages were compensatory, this time for the lost earnings of the injured

parties. McBride, 768 F.3d 382; The Rolph v. Rolph Navigation & Coal Co., 293 F.

269 (N.D. Cal. 1923).

The clarity of hindsight made possible through the lens of history

demonstrates that the long-standing question of whether punitive damages in the

unseaworthiness context are allowed, is unclear. This is revealed through a

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complete understanding of the liability created for ship owners in the

unseaworthiness context and a detailed, logical analysis of case law that purports to

grant punitive damages. Both the establishment of liability and history of case law

in unseaworthiness prove that Morgan is not entitled to anything other than

recompense. Anything punitive or exemplary would expand the scope of the cause of

action and frustrate the Court’s intentions and goals of uniformity in admiralty law.

B. The Court should seek to preserve uniformity in the law where it exists, and strive to create it where it does not exist “The modern principle of uniformity, also directed at fostering a uniform

application of substantive law, was first recognized by the Supreme Court in

Moragne v. States Marine Lines and was later refined by Miles.” 25 U. BALT. L. REV.

1. In an attempt to further the principle of uniformity, the McBride court relied

heavily on the reasoning of the Miles case to make a definitive determination on the

award of punitive damages for a personal injury due to unseaworthiness. McBride,

768 F.3d 382. Looking to both the history discussed above and relevant legislation,

the Miles court held that Congress had intervened in this area through the Jones

Act – and as a result the general maritime law and the legislation should be aligned

to produce uniform results. Miles, 498 U.S. 19. In alignment with the Miles court,

scholars have found that “the modern principle of uniformity supports the

preclusion of punitive damages under general maritime law and should now be

utilized to restrict remedies available under general maritime law in order to

fashion an ordered system of recovery that is in pari materia with the federal

maritime statutes.” 25 U. BALT. L. REV. 1.

  29  

When passing the Jones Act, it is to be assumed Congress understood the

prior law in place as to general maritime law; and if they wanted to alter the law

they would need to do so by changing the legislation. McBride, 768 F.3d 382.

Knowing that punitive damages were previously unavailable in general maritime

law for actions for unseaworthiness, Congress would need to expressly legislate to

make such damages available. The majority decisions of both the Supreme Court in

Miles, and the Fifth Circuit in McBride found just the opposite. Miles, 498 U.S. 19;

McBride, 768 F.3d 382.

When creating the Jones Act, Congress considered the implications of the

remedies available in tort in two prior pieces of legislation – the Death on the High

Seas Act (DOHSA), and FELA. Miles, 498 U.S. 19. Under DOSHA, non-pecuniary

losses such as punitive damages were not available for the survivor of a seaman

killed on the high seas. This was cemented into law by the Supreme Court’s

interpretation of this rule in the Higginbothom case. Wanting to maintain

consistency between Congress and the judicial branch, the court denied the

plaintiff’s request to supersede the Congressionally passed law for punitive

damages. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978). The court held that

Congress had spoken to the point, and the court did not have the power to broaden

the scope of damages. Id.

More importantly, the court looked to Congress’ implementation of FELA, a

statute regarding tort liability in regards to railroad workers. This piece of

legislation is vitally important in the determination of punitive damages in

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unseaworthiness, as Congress directly incorporated FELA and its interpretations by

the courts directly into the Jones Act. Miles, 498 U.S. 19. Unlike DOSHA, there was

no explicit limitation for pecuniary losses under FELA. However, the Supreme

Court’s decision in Vreeland put a “gloss” on the statute which had the effect of

precluding recovery of non-pecuniary losses. Vreeland, 227 U.S. 59; Miles, 498 U.S.

19. Both the Miles and McBride court said that Congress must have known of this

“gloss” when incorporating FELA into the Jones Act. By extension, Congress must

have understood the denial punitive damages was to carryover into the

implementation of Jones Act, and as a result, into general maritime law. McBride,

768 F.3d 382.

Although it may be argued that Miles was about wrongful death, and here

Morgan is bringing his claim as an injured seamen; the reasoning from Miles is still

applicable. Courts have held that because FELA applies to both personal injury and

wrongful death actions, it should apply to the Jones Act in the maritime context as

well. McBride, 768 F.3d 382. Additionally, it may be argued that while the Jones

Act does not create liability for personal injury, general maritime law must still

allow for such damages. Townsend, 557 U.S. 404. However, the crux of the Supreme

Court’s reasoning in the Miles decision was the desperate need for uniformity and

harmonization between the two liabilities set by separate branches of government.

Miles, 498 U.S. 19. This court has continuously recognized that Congress has the

paramount power to fix and establish maritime law throughout the country – and

has “struck a balance” for the courts in this area of law. Jensen, 244 U.S. 205;

  31  

McBride, 768 F.3d 382. And even assuming punitive damages were available at

general maritime before the enactment of the Jones Act, the act itself along with

Miles, Townsend, and McBride have overruled this. In these situations general law

must follow relevant legislation, and find that punitive damages are unavailable to

those seeking recovery by way of unseaworthiness. McBride, 768 F.3d 382. Because

of the legislative and judicial history of punitive damages in this area of law, along

with the Supreme Court principle for uniformity of the laws outlines in Miles, this

court should affirm the ruling of the Ninth Circuit and deny Morgan’s claim for

punitive damages.

Morgan will argue that Townsend is the controlling case for this area of law,

and use it as evidence to provide a clear example of the availability of punitive

damages in general maritime law. However, this is an erroneous conclusion

because, Townsend deals with a separate and distinct maintenance and cure case –

not a claim for unseaworthiness. Townsend, 557 U.S. 404. As well, in its ruling the

Townsend court lauds the reasoning in Miles as sound, and does not take away from

that decision in any fashion.

Relying on the Townsend case is first and foremost incorrect, because

it is dealing entirely with a separate cause of action. The Townsend court is dealing

with a maintenance and cure case – in which the owner of the ship is liable for

failure to tend to a seaman after an injury has occurred. Id. An unseaworthiness

cause of action, as recognized by the courts in Townsend, Miles, and McBride, is

wholly separate and independent from a cause of action for maintenance and cure.

  32  

Although both are causes of action under general maritime law, the liabilities and

damages are distinct. Relying on this reasoning is a fallacy because while both

causes of action fall under the general maritime law umbrella, they both have

separate and distinct histories. Maintenance and cure does not have a “Siamese

twin” in legislation; like unseaworthiness and negligence under the Jones Act.

McBride, 768 F.3d 382, 393. Because Congress has spoken to the point of

unseaworthiness, and ultimately has the power to fix and establish maritime law --

liability for unseaworthiness should be treated differently than maintenance and

cure. McBride, 768 F.3d 382. Ultimately treating these two causes of action the

same leads to inconsistent results, and tears at the principle of uniformity set by

this Court in Miles.

Additionally, relying on Townsend is erroneous for this case as the Court in

Townsend upholds and edifies the ruling in Miles rather than overruling it. In fact

the Supreme Court stated in Townsend that “the reasoning of Miles remains

sound.” Townsend, 557 U.S. 404. Through this the Court made it clear that it was

not stepping on the toes of Miles in an attempt to determine damages for personal

injuries or wrongful death in unseaworthiness. Rather, the Court was clearly trying

to establish and clarify the damages available under a maintenance and cure claim.

Morgan’s reliance on Townsend is incorrect, and thus punitive damages must

be disallowed. Townsend clearly is addressing a separate and distinct issue. One

which does not have parallel legislation, and does not disturb the holdings in

regards to unseaworthiness.

  33  

C. The policy implications involved in such a large industry are best left to Congress The validity of punitive damages in certain circumstances have been

questioned by many. The lack of consistency and predictability in such awards are

a . Baker. Since they are non-pecuniary in nature, they are difficult to standardize.

These characteristics of punitive damages frustrate the Admiralty law uniformity

goal. If the remedy scheme requires changing, Congress should step in because

“admiralty court must be vigilant not to overstep the well-considered boundaries

imposed by federal legislation” Miles, 498 U.S. 19, 433.

Congress is a better forum for changing the maritime law remedy scheme

because it is an elected body that can better reflect the will of the people. Pac. S.S.

Co., 278 U.S. 130, 233. In Admiralty law, courts fill in only where no controlling

statute governs the matter. Id. “Congress has the paramount power to fix and

determine the maritime law which shall prevail throughout the country.” Id at 215.

The benefit to Congress having superior authority is two-fold. First, it creates

uniform rules for the country that foster consistency. Second, congress has more

time and resources to consider political, economic, and social factors than the courts

have. William H Theis, United States Admiralty Law as an Enclave of Federal

Common Law, 23 TUL. MAR. L.J. 73, 75 (1998).

Courts should be reluctant to award punitive damages in maritime cases

because of the implications on the shipping industry. There is an important

economic interest to consider. The maritime industry is a critical part of the overall

economy, and in these sensitive economic times, it is unwise to promote a remedy

  34  

scheme that might have the effect of slowing or deterring commerce. Punitive

damages in this context could discourage ship owners from creating employment

and taking economic risks. Further, the depressed state of the energy industry,

current unemployment rates, and uncertainty in the stock market suggest that

Congressional attention to this matter is required.

Conclusion

As a matter of law, Morgan cannot recover punitive damages under the Jones

Act or under unseaworthiness. The Jones Act damages are limited to pecuniary

losses. The most persuasive case law instructs that punitive damages are non-

pecuniary, and cannot be recovered under the Jones Act. The Court should not

extend the law to allow to allow recovery of punitive damages because it is

inconsistent with the goal of uniformity in Admiralty law.

The concept of indemnity is critical in the development of unseaworthiness

actions. As we know, indemnity is purely compensatory in nature and cannot

include punitive damages. In order to confirm with the goal of uniformity in

Admiralty law, the Court should not allow Morgan to recover punitive damages for

the unseaworthiness of the vessel. Even if a change to this law is required, as

Supreme Court Justices have repeatedly emphasized, this would be properly left to

Congress.

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Prayer

Respondent respectfully prays that this Court find, as a matter of law, that

Morgan cannot recover punitive damages under both the Jones Act claim and

unseaworthiness claim, and affirm the Ninth Circuit’s decision granting Roshto

Marine’s dismissal of both claims for punitive damages.

Respectfully submitted,

_______________________________

Team TS Counsel for Respondent