When the Supreme Court agrees to hear a punitive damages case, that’s always news—even when the case involves something as arcane as the availability of punitive damages under maritime law.

But the Court’s grant of certiorari in Dutra Group v. Batterton on December 7 is all the more noteworthy because it will be the first punitive damages case in which Justices Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh will have participated as members of the Court. (Justice Alito was a member of the Court when it decided Exxon Shipping Co. v. Baker—coincidentally , another maritime case—but recused himself.)

The question that the Court will decide in Dutra is whether a seaman covered by the Jones Act may recover punitive damages in connection with an unseaworthiness claim. The maritime-law doctrine of unseaworthiness provides a cause of action to seamen who are injured due to their employer’s failure to provide a seaworthy vessel. This strict-liability cause of action exists alongside the Jones Act, which provides a cause of action for seamen injured or killed as a result of their employers’ negligence.

Courts have uniformly construed the Jones Act not to permit punitive damages. Although the Fifth Circuit has held that punitive damages are not available for unseaworthiness claims either, the Washington Supreme Court, and the Ninth Circuit in the current case, have held that punitive damages may be recovered for unseaworthiness claims.

Resolution of this circuit split will require the Supreme Court to reconcile two of its decisions that appear to point in different directions: Miles v. Apex Marine Corp. and Atlantic Sounding Co. v. Townsend.

The Court held in Miles that damages for loss of society and a decedent’s lost future income are unavailable in unseaworthiness cases because they are not available under the Jones Act. Putting that together with the uniform rejection of punitive damages under the Jones Act leads to the conclusion that punitive damages are likewise unavailable in unseaworthiness cases.

In Townsend, however, the Court held that punitive damages may be awarded for willful breach of the duty to provide maintenance and cure, which is a third cause of action available to maritime employees. The Court reasoned in Townsend that punitive damages were available in maritime cases before enactment of the Jones Act and that there was “no evidence” that maintenance-and-cure cases were “excluded from this general admiralty rule.”

So the question is whether what the Court said in Townsend about maintenance-and-cure claims applies to unseaworthiness claims, or instead whether what it said in Miles about damages for loss of society and a decedent’s lost future income applies to punitive damages.

In attempting to win this tug of war, the parties are likely to join issue over whether punitive damages really were available in maritime cases brought by injured seamen before enactment of the Jones Act. The petition and an amicus brief that my colleague Matt Waring and I filed on behalf of seafood-industry groups argue that the Supreme Court’s premise in Townsend that punitive damages were available in unseaworthiness cases was mistaken.

At the merits stage, we can expect a much more thorough canvassing of the law, which could give the Court the opportunity to discuss the changes in the nature and purposes of punitive damages that took place over the last few decades of the twentieth century.

When the Jones Act was enacted roughly a century ago, punitive damages were mainly a way to circumvent limitations on non-pecuniary damages. General verdicts that seemed to exceed the amount of the plaintiff’s economic damages were justified as containing a “punitive” component—but their real function was to provide complete compensation.

Today, in contrast, it is generally recognized that the sole legitimate purposes of punitive damages are retribution and deterrence. The shift in the purpose of punitive damages warrants reconsidering whether there really was any precedent for modern-day punitive damages as of the time of enactment of the Jones Act.

In addition to contesting Townsend’s premise, the petitioner and its amici can be expected to discuss the distortive role of punitive damages in an effort to persuade the Court to prohibit such damages in unseaworthiness cases under its authority to fashion federal common law.

The petitioner’s opening brief is due on January 21, 2019. Amicus briefs in support of the petitioner are due on January 28. Oral argument is likely to be held in March. I will report on the argument, which may illuminate not just the likely outcome in this case, but also the newer Justices’ views on punitive damages more generally.

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