before this court in a maritime workplace injury case it's not a third party case it's a workplace injury case the question that the court needs to address is where an employee seaman brings an  seaworthiness action against a vessel owner employer does the congressional scheme for workplace injuries govern the scope of damages and i would answer that resoundingly yes but that's what govern course from lot of juana to jensen have discussed the scope of congress in the courts a lot of want to said the courts cannot make the maritime law they can only declares janssen said that congress is paramount in the maritime law so in our kids we need to look is there congressional action and that takes us to the jones act professor i was drawn in his amethyst brief  adroitly brought us through the history and referenced the senate reports and discussed it with the jones that came into being in one nine hundred twenty eight intended to occupy the field for maritime workplace injuries the united states said much as the jones act a much as a as feel occupies the space for interstate railway and injuries the jones act occupation occupies a space for maritime seamen injuries i just have a little trouble with that i thought we still had the trilogy of claims usually asserted you  necessarily when there's a workplace injury that's the great distinction made you think you cure as an example sometimes it does sometimes it doesn't exactly the same you can just get sick without getting hurt and he's entitled to insecure or you can get hurt and he's entitled to meet and secured in the latter case he also may have been a unseaworthy of this claim in a negligence claim under the jones act that's exactly correct that those are two separate distinct remedies that you have the injury scheme usually occupation of the field means whatever remedy you get it's under the statute for workplace injuries that's the case then and since your is not necessarily that's america you're saying you can't get maintenance security more if the need for resulted from a workplace injury on the boat and that's obviously not so that's not what i'm saying i'm saying that we have the siamese twins as i've been called for workplace injuries and se act those deal with workplace injuries and the scope of the damages sure deals with something completely different which may overlap or may not overlap as you pointed out but it's not the scope of what congress intended when they occupy the area what lingering tells us is that when a senior has an injury they have occupied the field so you have to you have to disregard lingering language and the subsequent progeny after lingering to come to the conclusion that somehow now for workplace century i think the answer is yes so going back to your central argument how how can congress have so occupied to feel and allowed this other run body to exist because that would be inconsistent one deals with a workplace injury scheme the other deals with service to the vessel you can have a seller that's in port that contract the disease there's no one seaworthiness there's no negligence he's entitled to your that's quite different from the authority that is subsequent the circuit is not bound and we have towns and miles subsequent that the old the situation superior well miles you would agree did not directly address punitive damages it addressed the compels a different result it's the logical conclusion of the uniformity and the language in miles is replete that we no longer live in an era we seem in need to look to the courts congress has made those decisions for us and spoken and to which is separating the sting from the main and secure which does not require proof of negligence or of any sort of liability strict or otherwise that's just service of the vessel and that's what justice thomas the other justice thomas in the supreme judge his justice and justice thomas did in the supreme court he gave us the roadmap townsend gives us an absolute roadmap it says we can do this is storable scavenger hunt unless congress has legislated in the area congress says we have if a semen has an injury or death the jones act applies and here is the scope of damages that's what that's what's occurred so the cure is quite distinct and what justice thomas did was go through the historical and says the jumpy he had his actual language the roadmap is you look to see has congress talked about this area about workplace injuries if they have you don't go through the historical hunt for whether or not it existed in and from our briefing you know that we find correct that's correct that there is one there and that's not just from recent case law if we look at the process the progeny of the cases we have more rain where there's no wrongful death action under general maritime law what is the court do it brings it into harmony and to unity with the jones act every one of the cases we look at higginbottom we look at all of these up from towns in the miles they all try to bring these two together these sign these twins together and we have to remember that on seaworthiness when the jones act was passed was quite a different remedy it was it was a remedy of due diligence of a snapshot in time of of a vessel that so when congress and acted the jones act and when lyndon tells us later that this is the remedy the scope of remedy for injured seamen they clearly knew what they were doing but even if we soon that congress did not know the full scope of what they were doing brain tells us that the goal of maritime courts is to bring about uniformity so yes i can support his father be somewhat is the unitary damages are out but what i think has been consistent throughout all these cases including majlis where you have a statute and a workplace injury the statute is going to govern the scope of recovery there's there's nothing to the that they are basically well what they mean when they say siamese twin is that you hardly ever see a complaint for a seaman's injury that those simply both know that they're identical well you know more in black tell us that the differences have largely been obliterated their words not mine and the jones act requires import i have a duty to have a safe workplace which is very much overlapping with unseeded overlap but they're not the same they're not exactly seaworthiness is directed toward the condition of the vessel correct but many times there is overlap between those two where the safety issues overlap but i think we need to look at how the courts treated these when there's a when there's a statute involved in as higginbottom says where you have a statutory remedy for a scope of damages you're not free to supplement that model fell for that too so the towns in case i like the just a dress that is directly on point with our position is that justice thomas says you go through this historical scope search only unless congress hasn't gotten there and congress in our case has talked about a seaman's action against his employer so that hat has been there and that the courts have consistently tried to harmonize if we look at lorain they didn't try to make the un seaworthiness different they tried to make it the same as the statute they they saw an anomaly and in rain they said we see an anomaly and we want to make this as the jones act is these are two but to put two grounds for one  day townsend all the way through miles tells us the attempt to reconcile let's hope of damages and to bring about uniformity is what is needed and justice thomas and townsend says well there's a lot of a quest for uniformity but we don't want to go there if congress hasn't spoken i concur with that but where you have a scope of maritime workplace injury damages congress has spoken and you're not free to accept what the court should not be free to expand those random that's where we've been with thank you counsel thank covers the entire field of interest for semen it is paragraph it is paramount and exclusive and supersedes the operation of all state statutes dealing with that subject there's not a mandarin about statutory displacement of federal case law it's altogether a preemption case altogether a preemption case it's about the effect of a jones act on the law of the here's what counts and says about the effect of the jones act on general maritime law claims this is the pages for twenty three and four twenty four of council as this court has repeatedly explained remedies for negligence on seaworthiness and maintenance and cure have different origins and may on occasion cover application of different principles and procedures he goes on to say the l quest for uniformity in admiralty does not require the narrowing of available damages for the lowest to the lowest common denominator approved by congress four distinct causes of action can be  plainer they are saying the jones act does not ratchet down damages for other american i find that part of your argument quite persuasive i'd like to confront you with a different approach so that you can address it and help me on it  supreme court said that other types of damages which we have subsequently said include punitive damages as non are not available for the un seaworthiness claim of a murdered seaman now wrongful death is historically different from injury and because of lord campbell's act and the previous rejection of torque remedies in a wrongful death claim for semen and the claim is the issue is whether to distinguish that or not and we know from atlantic sa vs townsend that not all other maritime remedies are precluded by the jones act remedy it's not exclusive my big concern is a fifth the fifth amendment has come down with an  can the question is whether we should ordinarily circuit uniformity is desirable we have a lot of deference to our sister circuits why shouldn't we follow the but with respect to punitive damages for personal injury it was actually eight to seven the other way judge hears pains and override broke off from the majority to say we don't see any basis in the reasoning of the majority precludes unity of damages on account of they're not peculiar in nature assumes that every time you see the words that word nineteen every it or pneumatically is meant to include everything that could possibly be thought of  specifically any in the context of an seaworthiness the lower court and for some reason found this was not i don't see where the ship of the murder their man drinking habits and judge truth of the facts are not there for recklessness for that he was he did not read the facts as aiding and abetting would simply have been turning a blind eye so my point is is that punitive damages were in the m its way to say they're not available and of course we know from cases all the way through the history of this concept that the supreme court every time it's confronted the issue of punitive damages in maritime cases says spoken a constituent of the class of plaintiffs there were commercial fishermen i just businesses but blue collar seamen who are making their living fishing before seamen they're not suing for personal injury and under the trilogy but they are seeking damages for loss of their livelihood and punitive damages were available supreme court signed off on that and said by the way in terms of the idea that statutory law is all always paramount when the when the court came to the to  direct consideration of the curative damages awarded the appropriate amount or said in the absence of a direct statutory command to the contrary we come from like a common law court to develop the maritime  as it moves own just like the law in any jurisdiction where the supreme court it's not alone pardon is the form of the action in other words miles is a wrongful death action even as a survival action and here we have a personal injury action looking here at a brand new cause of action which is miles court itself created the more rain court back in one nine hundred seventy said there's a general american law right of action for death but miles said with the first court to have to answer the question whether that cover se underpinnings have been overturned i don't know how that's unassailable so if if the even score today was was given the case and they did exactly what they did in one nine hundred eighty seven which was let's look to the fifth circuit they would find mcbride they would find the case that mr robinson argued which was mcbride and i didn't hear compelling reasons why mcbride is incorrect other than we just should have punitive damages and miles to read f miles it says to quote it well the supreme court has really been pretty receptive to punitive damages repeatedly and they've also repeatedly restated that semen are the darlings of admiralty partly to justify choosing statutes regarding oil spills and all kinds of stuff and the supreme court said no purity of our traditional an admiral to even raise three great points one and let me take on baker baker it's not a workplace injury case it is a third party case i have no qualms with third parties under general maritime law getting punitive damages but baker supports our position because baker says under the clean water act let's look through there like justice thomas did in townsend let's look through the of damages that we need to put a limitation on the plaintiffs no there wasn't so then we're free to go to the general historical search like justice thomas did in townsend so baker supports it baker is along the progeny of towns and in miles in looking for the statutory scheme and when you say that the supreme court likes punitive damages i think we need to say the supreme court considers do we augment or do we supplement the statutory scheme higginbot all of these cases miles down to say we don't if congress has spoken higginbottom says congress has made the decision for us with regard to pain and suffering the courts have traditionally treated this composite of the compensatory damages there are circuit court decisions that say they get this is part of their compensatory damages punitive damages are to punish they're not to compensate they're completely different and i just want to indicate that to get to the point of saying that punitive damages are allowed this court has to to do three amazing things which were being asked by the appellee one is to assume that congress when they enacted the jones act didn't know what the maritime law was in effect at the time which miles and the other supreme court cases say we must do the opposite we must assume that congress knew what it was when it then acted it secondly if they didn't know what it was we have to make the determination we have to also throw that out to two things we have to throw out to get the peanuts the third what i heard my adversary say is we should punish injure use but not punish an employer when they cause of death i can't fathom anything more on logical than that and against policy than that and does uniform then that everybody agrees on that i think including your opposing counsel but wrongful death is british when we've been treated directly on point here and it is a contortion to say that it's the opposite and the basis that they have for their argument is a historical scavenger hunt which townsend tells us is not necessary big or tells us is not necessary miles  uniformity all of the cases all the way up to tell us about that uniformity thank you counsel thank you i thank you both for your arguments