Argument analysis: Justices navigating between different precedential paths on punitive damages for maritime personal injury
on Mar 26, 2019 at 2:06 pm
The Supreme Court heard oral argument yesterday in The Dutra Group v. Batterton, a maritime case that asks whether a Jones Act seaman can recover punitive damages in a personal-injury suit based on the unseaworthiness of a vessel on which he was working. Seven of the justices questioned one or both attorneys but, with a few exceptions, did not clearly signal a likely inclination. The argument did suggest that some division is likely.
Not only does the issue involve a split among various circuit courts regarding the general maritime law question presented, it also requires the Supreme Court to consider its role in fashioning judge-made admiralty law with reference to two of its recent precedents, with each party relying principally on a different decision.
Arguing for the seaman’s employer, Seth Waxman began by invoking Justice Sandra Day O’Connor’s unanimous 1990 opinion in Miles v. Apex Marine Corp. for the proposition that the Supreme Court should defer to Congress regarding matters relating to seamen’s personal injuries. The court in that case had denied recovery for non-pecuniary loss to the estate and survivors of a deceased Jones Act seaman under the general maritime law unseaworthiness doctrine because such relief was unavailable under the Jones Act. By analogy, Waxman argued that punitive damages were not recoverable in an unseaworthiness action because they were precluded under the Jones Act.
By contrast, David Frederick, for seaman Christopher Batterton, argued that general maritime law made punitive damages available based in part on the Supreme Court’s 5-4 decision in 2009 in Atlantic Sounding Co. v. Townsend holding that a Jones Act seaman could recover punitive damages for breach of the general maritime doctrine of maintenance and cure.
Waxman did not get far into his argument — 41 words to be exact — before he was interrupted by a barrage of statements from Justice Sonia Sotomayor. She began by asserting that Waxman’s opening formulation — that the Supreme Court had followed Congress in fashioning remedies for injured seamen — was “a little bit backwards.” The Jones Act was designed to expand, not contract, seamen’s remedies, said Sotomayor. When Waxman parried that the Jones Act and unseaworthiness afforded “alternative grounds for recovery of a single cause of action,” so they presumably should adopt identical postures on punitive damages, Sotomayor distinguished the two doctrines and countered that Congress had not intended the Jones Act to eliminate common-law remedies. Her point implied that under Townsend any pre-existing punitive damage remedy survived the Jones Act. Waxman, however, characterized Townsend as allowing punitive damages in maintenance-and-cure claims based on long-standing precedent, as distinguished from unseaworthiness, for which such authority was lacking.
Sotomayor seemed generally unreceptive to Waxman’s arguments, yet when Frederick began his argument by contending that punitive damages had long been available under general maritime law, Sotomayor interrupted to distinguish Batterton’s case from Townsend because of the absence of any historical authority authorizing punitive recovery in an unseaworthiness action.
Although Sotomayor did not press the point, Justice Samuel Alito, who wrote the dissent in Townsend, did, and forcefully so. He pointed out the absence of authority allowing punitive damages for unseaworthiness, or under the Jones Act or the Federal Employers Liability Act. But Frederick stuck to his argument that the Supreme Court’s discussion of punitive damages in maintenance-and-cure actions in Townsend applied equally to unseaworthiness. Ultimately, Justice Ruth Bader Ginsburg elicited a concession that evidence of punitive damages in unseaworthiness claims was “very slim,” although Frederick resisted her suggestion that appellate courts had uniformly denied them under the Jones Act and FELA.
Justice Elena Kagan asked Waxman how the unseaworthiness action could have grown so dramatically after the Jones Act was adopted in 1920 if the latter was “a signal to courts” to stop fashioning general maritime personal-injury law. She wondered when the Jones Act prevented, and when it allowed, judicial creation of general maritime law. After Waxman quoted Miles’ statement that admiralty courts “should look primarily to … legislative enactments for policy guidance” and must remain within boundaries Congress set, Kagan characterized that admonition as “a flashing yellow light” to the judiciary and asked Waxman to reconcile it with the changes in unseaworthiness doctrine. Waxman replied that the court had recognized the relationship of the Jones Act and unseaworthiness in creating and shaping the general maritime wrongful-death remedy in cases decided from 1970 to 1990.
Kagan seemed focused on the question of how the justices should harmonize their general maritime law-making role with the Jones Act. She returned to the question with Frederick. His answer tended to minimize Miles as, in Kagan’s characterization, “like a one-off,” which she thought was inconsistent with the language of that decision.
When Waxman argued that it would be anomalous for the Supreme Court to conclude that punitive damages were available for unseaworthiness but not for Jones Act negligence, Ginsburg and Sotomayor pushed back, stating respectively that the court had never held that remedy was not available under the Jones Act and that the court had reserved the question in Townsend. Although Alito’s Townsend dissent — for himself, Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy — had concluded that the Jones Act and FELA precluded punitive damages, the Townsend majority had regarded that issue as not determinative and had left it undecided in a footnote.
Waxman conceded that it was an “open question in this Court” but argued that for 111 years other courts and treatises had unanimously concluded that punitive damages were unavailable under the Jones Act and under FELA, on which the Jones Act was based and which it incorporated.
Justice Stephen Breyer, who several times tried unsuccessfully to pose questions of both attorneys, finally gained the floor and enlisted Frederick’s assistance in developing a list of differences between the Jones Act and unseaworthiness. Inasmuch as Waxman emphasized the similarities and Frederick the differences between the two causes of action, Breyer’s assessment of what he learned could tilt him in either direction.
Other than administering the oral argument, Roberts intervened only twice, to suggest distinctions between the Supreme Court’s decision in Townsend involving maintenance and cure and the present case. Justice Clarence Thomas, who wrote the majority opinion in Townsend, did not ask any questions, and neither did Justice Neil Gorsuch.
The argument presented the justices with discussions of esoteric aspects of maritime law and old and obscure cases. It is unlikely that The Noddleburn, an Oregon district-court case from 1886, has previously received such attention in a Supreme Court argument. Not surprisingly, several justices did not seem well-versed in maritime law and there was some confusion regarding the availability of remedies — for instance, whether passengers can sue for injuries arising out of vessel unseaworthiness.
Less than a week before yesterday’s oral argument, the newest member of the Supreme Court, Justice Brett Kavanaugh, began his majority opinion in the court’s other maritime case of the term, “In maritime tort cases, we act as a common-law court, subject to any controlling statutes enacted by Congress.”
Ultimately, Kavanaugh probably best summarized the Supreme Court’s challenge in this case. Near the end of Waxman’s argument, Kavanaugh observed that there are two ways the court could look at the case, through the lens of Miles or Townsend. “The question’s which of those principles to follow here.”
Editor’s Note: Analysis based on transcript of oral argument.