On June 24, 2019, the Supreme Court, in an opinion written by Justice Alito, decided The Dutra Group v. Batterton, which answered the question, can a Jones Act seaman recover punitive damages on his or her unseaworthiness claim? The plaintiff, a Jones Act seaman employed by Dutra Group, was injured on the defendant’s dredge vessel on the West Coast. A hatch blew open and crushed his hand. The district court denied the defendant’s motion to strike the punitive damages claim; the Ninth Circuit affirmed. This decision set up a split in the circuits, because a couple of years earlier the en banc Fifth Circuit held that punitive damages were not available under the rationale of an earlier Supreme Court case, Miles v. Apex Marine.
The Supreme Court, by a vote of 6-3, reversed the Ninth Circuit and held that punitive damages are not available in an unseaworthiness cause of action. Don Haycraft will analyze the opinion and the dissent, written by Justice Ginsberg.
Don Haycraft, Of Counsel, Liskow & Lewis
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Thursday, June 27, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a "Courthouse Steps Decision Teleforum on The Dutra Group v. Batterton." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are fortunate to have with us Don Haycraft, who is Counsel at Liskow & Lewis. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Don, the floor is yours.
Don Haycraft: Thank you very much. Good afternoon, or good morning for some of you here. I want to thank The Federalist Society for hosting this teleforum.
I'm betting, given the busy week at the Court, that some of the listeners who are listening in today and our audience are not maritime lawyers and are tuning in, perhaps, to this call because of just plain old curiosity about a court decision – an important court decision in the admiralty field.
I just want to let everybody know that I'm a maritime lawyer on the defense side in the trenches here in New Orleans, which is a great maritime jurisdiction. I have a case right now, a Jones Act seaman's case against the employer, my client, going to trial in August, and this question that was answered on Monday in the Dutra case in the Supreme Court will make a difference. And I'll get into some of the implications later in my presentation.
But for admiralty lawyers, this'll be some basics, but for everybody else, some necessary context for the Court's decision. Basically, admiralty maritime law in the United States is, for the most part, federal common law with some important statutory law here and there. All of this stems from the U.S. Constitution, Article III Section 2, which grants the judicial power, that it shall extend to all cases of admiralty and maritime. Print from the Constitution comes the federal common law, which is federal law, not individual states' law. That means, and importantly for maritime lawyers, the U.S. Supreme Court is the ultimate, final decider of issues involving maritime law.
There is concurrent jurisdiction in the state courts, in particular for Jones Act cases. Those cases go up through to the highest court in those states, but, ultimately, important maritime issues that arise from time to time, even out of the state courts, will get finally decided by the U.S. Supreme Court. And for us maritime practitioners, we know and we look forward to every two or three or five years for the Supreme Court to decide a maritime case of great importance to our clients and our practices.
And now, as of Monday, we have the Dutra v. Batterton decision, which I want to give you an interesting side note, that is the ship owner, the employer of the plaintiff in this case, is the Dutra Group, which is a large, dredging concern. And Dutra was a litigant in the U.S. Supreme Court not too long ago in 2005 in another very important U.S. Supreme Court case called Stewart v. Dutra, where the Court had to decide what is a vessel for purposes of the Jones Act, for purposes of maritime law. And the Court, in that decision, decided that a large, huge, super scoop dredge digging a tunnel, The Great Dig in Boston Harbor, that that vessel, that thing that moved only a few inches at a time, was indeed a vessel under the Jones Act and under maritime law. So Dutra comes back to the Court, this time in the Dutra v. Batterton case, they emerged the victor, unlike in the previous case in the definition of vessel.
So, just to get down to it, on Monday, in the case, Judge Alito wrote a majority opinion joined by five justices. It was a 6-3 vote, with a question being before the Court whether a seaman in his claim against the employer has a claim for punitive damages for his unseaworthiness cause of action. And the 6-3 majority authored by Justice Alito decided, no, the unseaworthiness cause of action that a seaman has against his employer does not include a claim for punitive damages.
But by way of background to explain some of the intricacies involved in that decision, unlike land-based workers, a seaman on vessels can sue in tort his or her employer and is not confined or barred by workers' comp from engaging in a tort suit against the employer. And a Jones Act seaman, on a vessel assigned as a crewmember to a vessel, has three causes of action against the employer. One is something called a negligence action that arises under the Jones Act. This is a statute enacted by Congress in 1920 that gave seamen a negligence cause of action that they did not have prior to the 1920 statute enacted by Congress.
Seamen had had before that, also, something called an unseaworthiness cause of action. It doesn't arise because of the Jones Act; it's statutory. It's a common law cause of action arising under what we admiralty lawyers call the general maritime law. Unseaworthiness has been around for a long time, and it's unseaworthiness that gave rise to the question before the Court. That is, does a Jones Act seaman have an unseaworthiness claim including punitive damages?
The third cause of action, that I'll just mention in passing because it's also important to this discussion, is a remedy called maintenance and cure. Maintenance and cure is, you might say, the maritime equivalent of workers' comp for the injured or ill seaman whose injury or illness arises in the course of service to the vessel. Maintenance is the daily replacement of food and lodging that the seaman had on the vessel. Cure is basically the employer paying for the medical care involved in the injury or illness as long as the injury or illness persists. So maintenance and cure, Jones Act negligence, and general maritime law unseaworthiness are the trio of causes of action that a Jones Act seaman can bring in tort against his employer.
So in the case at hand, we had a majority opinion, as I mentioned, by Justice Alito joined by Justices Kagan, Thomas, Roberts, Gorsuch, and Kavanaugh. In dissent, in writing, was Justice Ginsburg joined by Justices Breyer and Sotomayor. So for just a couple of minutes, I'll give the basic synopsis of the majority opinion. The case really revolved around two Supreme Court decisions, one from 1990 and one from just a few years ago.
The 1990 decision is called Miles v. Apex. And in Miles v. Apex, a unanimous 9-0 Supreme Court, in an opinion written by Justice O'Connor, and as I said unanimous, held that under the Jones Act, non-economic damages were not available to, in this case, the parents of a -- or the parent of a deceased seaman. And in the course of the opinion, Justice O'Connor waxed eloquently about how common law courts, here the Supreme Court sitting in admiralty, should look first to congressional enactments in the general area and be limited by those congressional enactments so that a common law admiralty court doesn't just have free reign to conceive of and expand on remedies when Congress has spoken.
And so in Miles v. Apex, as I said, the remedies available to a deceased seaman's family did not include non-economic losses. Post-1990, most admiralty lawyers, including yours truly, believed and a lot of lower courts held over the ensuing decades that Miles v. Apex was the signal from the Court that when Congress has spoken in a particular area on damages and remedies, whether it be the Jones Act or the Death on the High Seas Act or, for that matter, the Longshore Act, that courts shouldn't just expand willy-nilly remedies to the maritime workers.
And so what happened in Justice Alito's decision is he looked back at history and noted that there wasn't a history of punitive damages being awarded in unseaworthiness causes of action. That is, there was almost nothing and even the one or two very ancient cases, upon close examination, showed Justice Alito—and he explains it very carefully in his opinion—that there really wasn't a cause of action for punitive damages for unseaworthiness.
And I'm just going to take a moment to explain what unseaworthiness is as opposed to negligence. Negligence, of course, is a fault-based cause of action. Unseaworthiness has evolved over the last half century into a strict liability cause of action. That is, a seaman can sue his employer for a defect or some equipment failure, some unseaworthy condition in the ship or the ship's equipment, even absent any negligence by the ship's crew or the ship owner, if the ship is unseaworthy, then the seaman can sue for unseaworthiness, and it's a[n] absolute liability doctrine. And the question that arose after the Miles decision in 1990 was whether -- even if the Jones Act negligence action did not have a punitive damages aspect to it, would the unseaworthiness action, which predates the passage of the Jones Act in 1920, would it allow punitive damages?
And, basically, over the last couple of decades, the answer generally in the lower courts was no. However, more recently, in 2009 -- and I'm going to talk about this decision next. The 2009 decision authored—and this is important—by Justice Clarence Thomas in a 5-4 decision, a very close case, in Atlantic Sounding v. Townsend. The Court decided 5-4 that punitive damages could be awarded to a Jones Act seaman in his or her maintenance and cure action. [Let me] remind you, there are three causes of action: Jones Act negligence, general maritime law unseaworthiness, and then maintenance and cure, which also is rooted in the general maritime law and is an ancient common law doctrine in the maritime world.
So when Justice Thomas wrote that 5-4 decision, court observers, maritime lawyers, and lower courts saw that as a signal that perhaps punitive damages were back on the table and that Miles v. Apex had now been delimited in Justice Thomas's decision. And so, basically, what developed was a split in the circuits that then was resolved on Monday by the Dutra decision. That split developed starting in 2014 with the U.S. Fifth Circuit, which is my circuit here in New Orleans, at an en banc decision, a 9-6 decision, on this very question with the nine judges saying that, no, there is no history of punitive damages for unseaworthiness. We common law courts are not going to expand the remedies beyond what the Congress did in the Jones Act for negligence causes of action and so no punitive damages.
A very strong dissent was written by Judge Higginson here in the Fifth Circuit. And then a Washington Supreme Court decision followed what Judge Higginson had done in the Fifth Circuit and held that punitive damages were available to a Jones Act seaman bringing his case in state court. And that was then followed in the Ninth Circuit, first the Central District of California and the underlying case here, Mr. Batterton's case against Dutra, the district court granted a motion to strike -- excuse me, denied the defendant's, Dutra's, motion to strike, the punitive damages count that Mr. Batterton had brought. That went up to the Ninth Circuit, which a 3-0 decision affirmed, and then that set up the conflict in the circuits between the Fifth and the Ninth Circuit together with that Washington Supreme Court case, which is why the Supreme Court then granted cert back in December of 2018, setting up the present case that was decided on Monday.
So, as I said, Justice Alito used an historical approach. His opinion -- I have to point out, being a devotee of the Fifth Circuit here as the best maritime circuit in the country, Justice Alito did a little shout out to a concurring opinion in the Fifth Circuit case, the en banc Fifth Circuit case, that is Judge Clement cited her concurrence twice in Justice Alito's opinion.
Now, I want to dwell a bit on what I presume is the behind-the-scenes aspect of this 6-3 decision. As I mentioned earlier, a lot of maritime lawyers saw Justice Thomas's opinion in Atlantic Sounding v. Townsend as, perhaps, opening the door wide to the possibility of punitive damages for Jones Act seamen under the general maritime law. The maintenance and cure action is a common law, general maritime law action, and Justice Thomas explained that because punitive damages were given in maintenance and cure cases before the Jones Act was enacted in 1920, that historical reference meant that the Supreme Court, sitting as a common law court, could countenance that expansion of the remedies beyond what Congress did for the negligence action in the Jones Act.
So, the watchers were waiting for what Justice Thomas would do, and he didn't write a separate decision. He joined Justice Alito's decision, and that clearly was the key vote to make this opinion on Monday a 6-3 decision and with Justice Kagan joining the typical -- the usual conservatives, but, as I said, Justice Thomas was the wild card here, and I was certainly watching. I thought, perhaps, Justice Thomas would adhere to the 2009 majority opinion he wrote in the Atlantic Sounding case and would find a case for punitive damages for the unseaworthiness cause of action.
Now, I want to say that this decision is very important for the maritime industry. Anybody who has seamen employees know[s] that the tort exposure for seamen cases only is much greater when the seamen's lawyers can bring a punitive damages count on the unseaworthiness cause of action. And Justice Alito mentioned in his majority opinion that one of the goals of maritime law and the Supreme Court's jurisprudence is to promote uniformity and to maintain the vitality of American maritime commerce -- maritime shipping business. He noted that a number of other shipping nations, that the U.S. stands apart from them in many instances of allowing punitive damages where those other countries don't. And so a decision to allow a seaman to bring punitive damages for an unseaworthiness action would be to the detriment of the American shipping business comparatively speaking. And so this was an important decision for the maritime industry.
And for my upcoming case going to trial in August, I quickly wrote a motion to the court to alert it to the Dutra decision so that the punitive damages count of the plaintiff's petition would be struck, and, fingers crossed, that the state court judge will pay attention to what the U.S. Supreme Court has said.
I'll spend one minute or two on Justice Ginsburg's dissent, contrasted with Justice Alito instead of looking to Miles v. Apex as the standard to adhere to. She looked to Justice Thomas's opinion in the Atlantic Sounding v. Townsend case and noted that there was a strong, common law tradition of allowance of punitive damages and that when the Congress passed the Jones Act in 1920, it was intended not to limit a seaman's remedies but rather to expand a seaman's remedies. Heretofore, there had not been a negligence cause of action for a Jones Act -- for a seaman until the Jones Act. And so she noted that historically speaking, punitive damages should therefore be allowed since Congress in 1920 didn’t specifically or explicitly or textually limit punitive damages.
With that being said, that primer on Jones Act seamen's causes of actions, as well as a fairly brief synopsis of the majority and dissent opinions, I'm ready for audience questions.
Micah Wallen: Thank you, Don, for those opening remarks. We have two questions coming through already, so without further ado, we'll move to the first question.
Bob Fitzpatrick: Hi, this is Bob Fitzpatrick in D.C. One quick question, the biggest one of all is what was so persuasive to Justice Thomas that got him to join Justice Alito and not write anything separately. And then just two -- or a trivia question. You said there was a motion to strike granted in the Central District of California. How did that get appellate jurisdiction a denial of a motion to strike to get up to the Court of Appeals? And then, lastly, with punitive damages now off the board and two out of three of the causes of action, what incentivizes ship owners to keep seaworthy vessels? But I'm particularly interested in the first question of what brought Justice Thomas over to create a majority of six?
Don Haycraft: Yeah, yeah. Those are great questions, Bob, and I'll do them in the order that you gave them. And, of course, the first one, no one but Justice Thomas and his clerks -- well, presumably the other justices know, but I would surmise -- I attended oral argument on March 25, and a number of the justices had a lot of questions. In fact, all of the justices had questions, say for Justice Thomas and Justice Gorsuch. So seven out of the nine had 30 or 40 questions for the advocates. Justice Thomas did not send any hints in any way, shape, or form but trying to read his mind and knowing his opinion very well in the Atlantic Sounding case, I think probably what tipped him over was he's probably neutral on whether punitives are a good thing or a bad thing, just as a general matter.
I haven't studied all his opinions in the multiple punitive damages cases in Supreme Court jurisprudence, but I judge that in this particular case, he saw that there was no historical precedent -- ancient, in the 19th century or the earliest, early 20th century or up until the recent decades for anybody or any court to ever allow punitive damages for unseaworthiness. So I think that would be the number one reason why Justice Thomas would sign on to Justice Alito's opinion and be persuaded that there was a significant difference in the historical reference points between unseaworthiness and maintenance and cure.
In getting to your third question, in trying to answer your first question, Bob, I would also mention on the incentivization question, which could play a role in Justice Thomas's mind, that in maintenance and cure, without punitive damages or attorney's fees, it was said that ship owners, employers of seamen, there wasn't much advantage to erring on the side of caution in paying maintenance and cure immediately upon injury or illness. And so that employers who would arbitrarily and capriciously, without good reason, withhold maintenance and cure, that is daily payments and medical expenses to an injured or ill seaman, that was leaving the seaman in the lurch.
And so I think with unseaworthiness as distinct from maintenance and cure, as Justice Alito did mention in his opinion, a ship owner has every incentive in the world to have a seaworthy ship because the ship itself and its cargo, economically speaking, it's important for that ship to be seaworthy for economic reasons, not just for tort reasons. So I think that that, perhaps, answers your third question and also may provide some insight into what Justice Thomas may be thinking.
Your procedural question is a nice one. Yes, Dutra -- right after the complaint was filed in Central District of California, Dutra moved to strike, basically on the pleadings, no discovery, and because of the McBride en banc decision that had come down two or three years before—and this is a closely watched issue in the maritime practice and in maritime cases—and then the Washington State Supreme Court issuing their decision. It was definitely a nascent split in the circuits. So it was a certified appeal by the district court, then accepted by the Ninth Circuit, and then the Ninth Circuit affirmed 3-0. So that's from which -- that affirmance of the district court's denial of the motion to strike that the case went up on cert to the Supreme Court. And given the very strong 9-6 en banc with very good opinions by numerous judges now on the Fifth Circuit and then on the Ninth Circuit, it was a case perfect for cert grant and for full development as just happened on Monday.
Micah Wallen: We'll now move to the next caller.
Nick Steinman (sp): Hi, my name is Nick Steinman, and I'm a law student at the University of Virginia. My question is does Dutra continue Atlantic Sounding's historical approach, even though it came to a different result as to the punitive damages?
Don Haycraft: Let me think about that for a minute, Nick. It is definitely noteworthy that Atlantic Sounding spends a lot of time, both the majority and the dissent -- and I'll take this moment for another side note. That is, the dissent, it was a 5-4 decision in 2009 to allow punitive damages for the seaman in his or her maintenance and cure claim, again, written by Justice Thomas for the 5-4 majority.
The dissent was written by Justice Alito -- okay, so everybody take note. Justice Alito got to write the majority opinion now and in the case on Monday Dutra v. Batterton. So, yes, both the majority and the dissent in Atlantic Sounding v. Townsend -- and this happens in admiralty cases. It's one of the fascinating parts of being a student of the maritime law is that you often read ancient cases from the 19th century. You dust the cover of the Supreme Court, the old [Wheaton Reports], and you read those rather obscure opinions from those 1888 or 1874, and that's a practice -- a habit of the admiralty jurisprudence.
And so it's not unusual that it happened in Atlantic Sounding v. Townsend. It happened; it was very carefully done. Justice Thomas found -- the advocates found for him several cases where ancient courts—by ancient I mean pre-1920 courts—where a seaman was denied maintenance and cure by the ship owner where exemplary damages were granted. And so that approach then was turned around by Justice Alito in this 6-3 decision, and it was definitely one of the questions -- or several of the questions at oral argument. I can't remember, I think it was Justice Ginsburg, frankly, who asked David Frederick, counsel for Chris Batterton, "There are no cases, are there, where punitive damages have been awarded for unseaworthiness?" And David Frederick had to acknowledge that, that basically that was true. There was some ambiguous wording of some old cases. But, Nick, good question. Thank you.
Micah Wallen: Not seeing any other questions lining up the lines here. Don, did you have any closing remarks?
Don Haycraft: Thank you very much. No, those were good questions. It was a good discussion. I appreciate the opportunity to give everybody a little insight into maritime law. I know they're weighty decisions that everybody's interested in, and it's a busy week at the Supreme Court and a busy day at The Federalist Society, so thank you.
Micah Wallen: And on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
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