In an earlier post, I discussed the Supreme Court’s grant of certiorari in Dutra Group v. Batterton, which presents the question whether punitive damages may be awarded under federal maritime law in connection with an unseaworthiness claim.

On behalf of six fishing-industry trade associations, my colleague Matt Waring and I submitted an amicus brief in Dutra arguing that the Court should not allow punitive damages to infiltrate this unique body of law.

In addition to discussing the deleterious effects that would result from allowing punitive damages in unseaworthiness cases, the amicus brief explains that tacking punitive damages onto unseaworthiness claims would undermine the remedial scheme of the Jones Act, a statute that provides a remedy for precisely the same harms as the unseaworthiness doctrine—and under which punitive damages undeniably are unavailable.

The amicus brief also explains that there is no historical precedent for awarding such extra-compensatory damages in unseaworthiness cases.

And it further demonstrates that, even if there were a case or two in which punitive damages were awarded before the enactment of the Jones Act in 1920, the nature and purposes of such damages have changed so markedly in the ensuing century as to constitute an entirely different remedy.

In particular, before 1920 (and, indeed, for half a century after), punitive damages were infrequent, served the purpose of affording full compensation for otherwise non-compensable non-economic damages, and tended to account for a small fraction of the total judgment.

Today, in contrast, punitive damages are much more common, are deemed to serve the purposes of retribution and deterrence (not compensation), and can often materially exceed the amount of compensatory damages—notwithstanding the Supreme Court’s statement in Exxon Shipping Co. v. Baker that punitive damages in maritime cases generally should not exceed the amount of compensatory damages.

Because punitive damages today are different in kind from punitive damages a century ago, even if punitive damages were awarded sporadically in unseaworthiness cases before enactment of the Jones Act, that would be no reason for allowing this much-altered remedy in unseaworthiness cases today.

Oral argument in this case is scheduled for March 25, 2019.