act it took principle responsibility for fashioning remedies for injured seamen and again and again this court has followed congress's summary that that's a little bit backwards doesn't say anything about remedies but our case law has said it repeatedly you what this court said just a few years after the jones act was enacted was that the jones act provides seaworthiness alternative grounds for recovery of a single cause of action and the court also said in mitchell versus trawler racer several years later that with the passage of the jones act congress obliterated all distinctions between the kinds of negligence for which ship owners are liable and it sent doesn't tell me that their intent was to take away common law remedies and i thought that's what sound since which is if unless there is some proof contrary evidence those common law remedies still remain and so my question is that's a different statement than what you started well i have it's the exclusive remedy no i think my i'm not sure that it is a different statement the question is and this court has made clear not only in this area of the law visa v the jones act and in cases like more rain and monica and miles itself that when congress exercise but also in cases like i'd point the court to the court's decision in milwaukee versus illinois in which the court stated the general broader rule that when federal when this court sits as a federal common law court and announces and expounds the scope of federal common law remedies it has the authority to do that interstitial law making function but when then congress then comes in and legislate in that particular area and sets out particular remedies the previous scope of the common law remedies subside that's exactly what this just chief justice rehnquist explained for the court in milwaukee and it's what happened in this case and his what ought to happen in this case now as t towns in townsend is very much not to the contrary because it is involved in maintenance and fewer rather than on seaworthiness and that makes a tremendous difference in several action the remedies may overlap but not the cause of that action the cause at the time that the jones act was enacted the contours of the particular cause of action differed significantly the jones act was much reached much broader but this court none the less said in the one nine hundred twenty s in philips and in townsend and baltimore steamship that and peterson rather rendered in the osceola in one thousand nine hundred five and as to which the jones act was addressed there are several points number one following the enactment of the jones act this court in a succession of cases on the incremental differences between the two so that it now is recognized as a virtual substitute as gilmore and black said several decades ago it is a it's even a little bit better sometimes right a strict liability offenses and so it's it's not it is frequently said that is a strict liability defense whereas the jones act is a negligence standard both of those terms are somewhat misleading in application every court that has considered the question and the treatise writers say that negligence under the jones act is what's called featherweight negligence if they are really meets any standard of negligence rule because it's not recognised in the jones act i mean maybe i guess one of the points in your brief that confused me and maybe you're kind of providing an answer to it but i'll just you say several times in your brief a signal to courts to stop doing stuff because the jones act is now taken over the field essentially if you are right as to your basic theory how as a possible that this action of an seaworthiness could have changed as much as you admit that it did well there are some differences as just the so tomorrow there were reasons why the court when it in acted the jones act didn't preempt other federal existing federal common law remedies and the situation of preemption and the effect of a statutory scheme of remedies viz of the preexisting common law is markedly different when the common law is federal rather than state but for example even to this day the defendant in a jones act case and the defendant on seaworthiness case may be different the former is the employer the latter is the shipowner and sometimes they're waxman is when does the jones say stop don't do stuff to the courts and when does it allow courts to keep thinking about revising developing these common law actions well i think this court came pretty close to attempting to articulate that line in miles itself where it says and i'm quoting from page twenty seven in this era and admiralty court should look primarily to these legislative in ackermann's for policy guidance we may supplement these statutory remedies were doing sheaves the uniform vindication of such policies consistent with our constitutional mandate but we must also keep strictly within the limits and i guess i would imagine the congress how is that kind of flashing yellow light which i agree with you that sounds like a flashing yellow light to me how is that consistent with all the changes that have occurred in the us on seaworthiness action and what you see is that the  those sentences i just read in miles itself in light of the scope of the jones act congress not only eliminated in mocking at first for an seaworthiness the defense of fellow servant and then eliminated in light of the jones act the defense of contributory negligence under un seaworthiness but in miles following the rain the courts said well the jones act recognizes a wrongful death remedy for claims under the jones act and because of the jones in cases brought in and see worthiness now importantly what happened was after this court decided more rain and said well the jones act allows a recovery for wrongful death and on seaworthiness so we're going to to the question then came before the court in sea land surfaces versus quad debt well what does that involve like what are the remedies that you get for wrongful death and what this court held was that the remedies you get for wrongful death include the loss of society the next case that comes along is mobile oil vs higginbotham raises the wrongful death for an seaworthiness but for a wrongful death that occurred on the high seas and this time what this court says is well the death on the high seas act doesn't only allows for recovery of peculiar damages loss of society is not the community or damages so we need to constrict federal common law remedies that we recognized in quad day in cases that occur on the high seas and then finally in miles the court gets the same question loss of society for on you know for somebody who is a jones axeman and what the court says is under the jones act which is the twin cognate cause of action for wast resulting from wrongfully caused injury we don't allow loss of society damages and therefore again not withstanding the broader ruling inquired day which took place in a in an environment in which there was no congressional well the three cases that i identified just now justice ginsburg were wrongful death cases although miles itself also included a claim for a right of survivorship which is a form of injury and once again the court said the jones accepts the limits for common law recoveries for injury or death the jones act seaman and held on the injury side of that the representative of the deceased pursuing a personal injury action on behalf of the deceased could not recover future lost wages because the jones act doesn't allow it now in monika it was not a wrongful death case in the the other cases which are cited in i believe it's footnote five of your opinion in austin or which relate all the respects in which in light of the jones act this court changed modified both the contours of what on seaworthiness constitutes and the remedies available now i do want to get to i think it was justice i can't remember whose question it was about about towns and the other distinction of towns  because even if miles didn't exist and even if miles didn't import into this case the constitutional commands of separation of power and uniform towns and what this court said was look maintenance secure is an ancient remedy that goes back at least until the thirteenth century if not before it is a it reflects a fundamental humanitarian imperative to provide sustenance and care for seamen who fall ill during the voyage is the end and this court said at common law in particularly your greed just cases punitive damages were available in certain maritime actions which the court identified punitive damages if not awarded when there is loose language suggesting that they could be awarded against the malfeasance or and we if we look at maintenance and cure  we don't see any reason to create an exception because as the court explained in in section two to see of its opinion over pages let's go back and look there were treatise writers i believe three different treat recognize that punitive damages were available for egregious refusals to provide made and secure there were decided cases the troop and the carlyle in the at the same time there is nothing no failure to provide maintenance and cure but not for on seaworthiness now i can't cite you a case either before the jones act was passed or after four decades and decades after in which a and if you look at and this this court certainly has a rich body of unseaworthy in this decisions between eight hundred eighty s and the and the present time there are there is case after case of what is reported as shocking egregious conduct in which there is no reflection in the briefs or in any of the opinions that punitive damages was even sought and a reason may be and this is the other towns and related reason i want to address prior to we have a somewhat of a disagreement between us as to the exact date at the very end of the nineteenth century in which any court first recognize that compensatory damages could be paid to an injured seaman for failure of seaworthiness but at least until the middle eight hundred eighty days at a time when the treatises and the cases were saying you can get punitive damages for a willful refusal to provide medical care to an ill seaman you couldn't even get under an seaworthiness compensatory damages the remedy for  seaman was the privilege to refuse to embark on a vessel that was on sea worthy and yet to claim your wages and that's the reason that's the major distinction if we're talking just on are either awarding or considering punitive damages for the failure to provide maintenance since you are like the novel burn and at the other hand a from the other side for all these centuries at least up until a couple of cases wouldn't come up because an unsealing the next action is basically you've taken deliberate action to ensure that your own ship sinks so most people don't munch the ship they own to sink right so you know and it might just be that when people bring this kind of action their not bringing it on the basis of the kind of behavior that would justify a punitive damages awards to skate and i have read you the court's opinion in the which finds that the ship owners not only knew of the on sea worthy condition but they were well i do think that night and i question is not answerable by point in a single case ok so i can i can i give you just a couple of other examples in support of my assertion that there are many many cases that the federal courts and this court have looked at in which the allegation which the findings of seaworthiness indicated he greets this conduct the first one is the the now i guess for purposes of this case the ralf about which much ink is spilled in the briefs about whether it did or didn't involve punitive damages for the as as explained in the documents that we've sought permission to lodge there is no question that the damages awarded in that case and sought were compensatory but the the opinion of both the court of appeals and the district court in that case demonstrate is probably not going to be one of the ones that drowned so if the owner does a cost benefit analysis of the cost of getting a better ship or repairing the ship versus the amount of money that could be obtained from  from going ahead with the voyage using that ship is not always going to come out in favor of safety is it generally done did it did it always did it generally come out in favor of safety in the in the nineteenth century so i would suggest i mean i did live in the nineteenth century and although i feel like at this point i've read most of the cases decided in one thousand nine hundred three i haven't seen a policy discussions on this point but i will say that when congress enacted the jones act and for that matter when congress enacted feel i mean the owners of the corporations that own railroads were riding on the railroads themselves congress made a pot an obvious policy judgment to create to not go all the way to a workman's compensation statute where if you're injured you just file a claim in front of the state administrative agency and you get the following kinds of recovery but not many others but that is the spirit of what feel and the  provide a much broader much more certain remedies sweeping away the defenses of assumption of risk and contributory negligence and the fellow servant rule in exchange  for a judgment that in dealing with the policies and thinking of what went on in people who ran railroads and ran steamship companies and people who worked there congresses choice was to say very easy streamlined recovery for compensatory damages no recovery for punitive damages and he is pain and suffering compensatory yes pain and suffering is compensatory and if you not seaworthiness there's no pain and suffering recovery but in a claim for injury that is maintained by in a survivorship action pain and suffering is recoverable and you know one of the many anomalies that would occur if this court were to affirm the court below and find that although punitive damages are not available under the jones act they are available that's right four hundred eleven years the treatise writers and courts have all been unanimous that punitive damages are not available under field or and therefore under the joey preserve the question you did reserve that question so that's still an open question well i mean it is an open question in this court at the time that the jones act was enacted there were multiple treatise writers who said under feel a punitive damages are available this court although not deciding it had said on several occasions that  injury for a real worker the remedy was compensation and indeed in the st louis and iron mountain railway company which was not a wrongful death case it was a survivorship case this court said on whether peculiarly damages are not whether puny or damages are available under the jones act or not what the way they came about is because damages are not available under the death on the high seaworthiness cases and and the extreme anomaly that would that that is being invited in this case is is what the other side asked for is ok look we know that if an injured seaman di he can't recover under the jones act and therefore under an seaworthiness for it can't get punitive damages won't be awarded but because they say there's no damage limitation in injury actions if he doesn't die then punitive damages can be awarded and i say i would would respectfully submit there is no policy there seem to be ferreted to create that anomaly two ways we can look at this one as the miles precedent jones act when causes of action the other is townsend says putin is have historically been available and awarded in general maritime actions questions which of those principles to follow here where it is the special solicitude for the welfare of sailors principle factor and how we should think about that i think i think it factors in exactly i mean this court has said over and over again that the special solicitude the wards of the admiralty does not dictate a result that the seaman always wins otherwise you wouldn't have had a situation at the time that that that phrase was coined in which seamen could get no compensation at all for any injuries and or if they died or anything like that the the way to find your way through this is the way that miles explained it which is yes the jones act and this court following the lead of the jones act has greatly broadened the amount of compensation that injured c men can recover that is a reflection of congress's solicitude and this court's admiralty lost solicitude it doesn't mean that you add punitive damages on to that may i reserve the balance of my to certainly counsel damages have long been available under general maritime law and there is no evidence of cases precluding punitive in and see where he claims prior to the one nine hundred twenty x of the jones act except somewhat different historical picture it's slightly different just the sort of myra but i would say that what the court decided in townsend which controls here is does the general rule of allowing damages apply i'm less there are some express case holding that says otherwise or congress expressly said otherwise and certainly the discussion that my friend offers of the novel  close question whether to give exemplary damages on this record i'm deciding not to do that now if you want to say that there is a difference between a discussion which this court in towns and gave several examples of discussions of exemplary damages certainly just a story in the amiable nancy offered that giving exemplary damages was important and the reason why it was important was for the reason that justice alito adverted to which is that the vessel owner needs to be held to a higher standard so that when the vessel owner chooses to over ensure eros bucket is not sent to sea and that policy point is quite important in these particular cases because even though these situations are extremely rare the cases have always talked about the availability of exemplary damages and there was an eight hundred fifty s case called the golden gate where a what would be deemed now to be an unseaworthy condition injured passengers and the passengers instead of bringing a suit from seaworthiness brought it for breach of contract and the judge there said essentially had this been brought right that the remedy for and see whether this was her period of time only the ability to collect wages the yes and when did that change it started to change in the eighteen hundreds and this was an importation of a wall that was adopted in great britain where although the concept of on seaworthiness existed from the founding of our republic and there are cases from seven hundred eighty nine that we say and see where the condition would be an excuse for the crew member to decide not to go with the ship on the voyage that principle expanded during the eighteen hundreds through decisions in great britain to allow for compensation for the injury to the sea worker as a result of the unseaworthy in his condition those cases were then adopted by courts in this country and in the judge d d and district court judge in oregon explains where all of this came from and he explains that this idea of on seaworthiness leading to a compensatory type principle was one that was designed injured worker from an unseaworthy in this condition can obtain compensation both for the end seaworthiness of the vessel as well as for a failure to provide maintenance and cure those principles i think are were very well established well before the jones act was enacted and nothing in the jones act itself points where congress would have said that punitive damages the general rule of the common law or the general maritime law are not available now importantly my friend starts to talk about some of the differences between the un seaworthiness claim and a jones act claim but he only got so far it is true in an is the owner but it is also important that the plaintive could be different as between those two claims and here is a very significant difference between townson that works in our favor seaworthiness was a substantial cause of the passenger's injury the jones act only speaks to the relationship between employees and employers not the not disputing that they're often referred to as twin causes of action no they're not they are often and this is this discussion started in the cortez in one nine hundred thirty ish and followed in mitchell and the reason why they are considered that way is because as my friend points out in the peterson case this court announced the rule that you can't get double recovery we're not asking for double recovery just as in any common law claim where there's a statutory claim you have one injury you can only get one recovery  let me step back and say first that what this court decided in townsend we think controls and that if you were to substitute maintenance in cure for the words on seaworthiness in almost every paragraph of the first three parts of the maritime cases that you get punitive damages how do you account for the fact that there weren't cases awarding punitive damages for on scene where these the i thought did this general will escape everybody's attention it didn't escape everybody's attention for the cases that we cite in our case where the court considered whether to award them but decided on the basis of the special facts they're not to do so i would submit that having punitive damages available has been a very powerful did current to vessel owners not providing seaworthy fesses and that's a good thing but i mean i think that i wasn't around in the nineteenth century either but i think and then and earlier there were an awful lot of very unseaworthy vessels that were sent out to sea by owners and they just took the risk and it wasn't their life that was at stake and so it would be as it seems strange that there wouldn't be punitive damages claims in this case in any on seaworthiness case well does not mean that the court said as a matter of law i don't have to just question or the power to award it and that was the very important point i think that this court threw out of townsend that the fact that there is a general background rule that doesn't come into play very often is not a situation where one needs to be concerned and the fact that you you have a deterrent out there serves as a very powerful situation particularly in an environment now where you have overlapping employers having operations on various vassals cruise ships are a very good example of that where you might have multiple employers doesn't close right or something like that it ensures that the main maintenance and cure something very different makes maintenance and cures you're talking about somebody who can't do anything for himself was serious seriously injured or isn't taken care of and you can understand maybe allowing punitive damages that situation but not necessarily in the other well your honor i think that they're both agreed to situations and i would not want to fight the promise of your question that the willful withholding of maintenance and cure  is is egregious because it certainly is but in towns and what the court held was that just because there is overlap between the willful withholding of maintenance and cure does not mean that with the jones act remedy does not mean willful way with conscious disregard of the safety so really what we're talking about are those situations in maintenance and cure where the captain or the master of the vessel is acting in a wanton way that causes the danger to  e crew member to exacerbate the same kind of wantonness is what we're talking about in the end seaworthiness situation where as in this case air pressure was not invented yet and instructions for the i'm informed there have been a couple of court of appeals decisions that have talked about the f t l way and the jones act but remember about seventy percent of these kinds of cases arise in state court and most state court judgments are not with reported decisions and what i'm informed by lawyers who filed amicus briefs on our side of the case is that they have obtained on occasion punitive damages awards in state court proceedings that have not led to reported judgments and not been appealed and that have been paid now these are not run away still have for court of appeals who have given they're listed in petitioners brief that's correct and we end but my point is that the existence of punitive damages and seaworthiness cases in those circuits that have been there for decades the fact that what nearly ten is now a lapse since towns and we don't have a runaway jury for maintenance in cure claims this court in exxon vs baker noted the literature and said it's in fact not the case that in those rare circumstances when punitive damages are awarded that there has been some disproportionate problem of runaway and i would offer you that in exxon this court consider a question closely analogous to the one here which is whether or not the penalties under the clean water act for pollution displaced the general maritime law general rule of punitive damages and every justice said no can i just want to get my list i'm making a list of differences between the three i have is one the jury yes number two the shipowner versus the employer yes and number three is you say passengers can sue i don't know if there are a lot of passenger suits or not ok that's what i have what else should  the on seaworthiness condition but a higher causation standard in the jones act you have a more rigid rule negligent standard for liability but a more relaxed causation stand here and so there are circumstances now let me give you an example of one where the vessel owner might provide get a brand new piece of equipment put it on the vessel it goes out to sea but it doesn't work there is no negligence in that circumstance because the vessel acted with due care there is an unseaworthy use condition because the equipment did not perform as it was intended to for it's suited purpose and so you can see in an example where if the quitman was what caused the attach the vessel and that is an ancient remedy that is designed to ensure protection of the award of the admiralty you cannot attach the vessel in a jones act claim and so if you are looking at these just strictly from a bottom line perspective what the court recognized in patterson and in cortez and in the chill is that the worker very often brings off reclaims maintenance and cure and seaworthiness and jones act but that can only lead to one remedy and then the court will decide after the conclusion of the proceedings you know what that is but the but the owner is not going to have to double rick but for those reasons it's very important for the court not to take the view line but they subcontract out to a broadway company to have a traveling music show on the cruise ship now under the jones act it's the broadway company that is the employer of the musician but if the on seaworthiness condition causes an injury that worker that worker has a suit against the owner of the vessel for the seaworthiness causing the condition but not a jones act remedy against his or her employer for that particular injury and so you can see that there's overlap but it's not a perfect overlap to how do you think mr frederick we shouldn't think about the question of the relationship between the jones act on the one hand and the common law maritime  function on the other because there is this language in miles which seems to say broadly that given the jones act given that the jones act exists courts should be wary of of doing things with their common law hat so how should we think about that while being out of line who hears the wind first start with a statute what the statute says is that the injured worker can allow act remedies and what the court in townson explained is that that statutory language was meant to preserve the preexisting common law remedies where wrongful death comes in is kind of an in a store a whole and akron ism and it resulted from frankly a mistake of this co the harrisburg which wasn't recognized for some ninety years until moraine was decided and that mistake in the harrisburg which held that wrongful death claims were not permissible under the general maritime law ended up spawning a number of statutory fixes that were arose in state legislatures as well as congress through the death on the high seas act the special wrongful death provision of the jones act and then ultimately this court's reassessment of the correctness or incorrectness as it were of the harrisburg in overruling it in more rain and so by that time what the court decided was that in the area of war on full death which is where congress so that ma sound like a one off but miles in in some parts at least does not read like a one off a green it's like a general statement about the relationship between the jones act and the common law maritime law able to rule that because of the special progeny of the way wrongful death occurred because remember wrongful death claims were not cognizable of the common law personal injury claims were and so if you want to draw a line right there you have a very distinctive history between wrongful death and survivorship my friend points out that the survivorship part of the miles holding that also was not a claim recognizable as common law and the reason was very strict view that the law was there to protect living persons and it was not there to compensate me if i'm to had died isn't that an anomaly as mr waxman says though if we were to agree with your position here no i think that the anomaly actually works in the other direction because the fact that many state courts and there are footnotes in around the case of briefs that point out there were you know dozens of state course that recognized p damages for wrongful death claims even aware they had allowed for only a more circumscribed compensatory damages in the wrongful death space suggest that state legislatures did not view an inconsistency punitive damages which were done to deter and compensatory damages which needed to look at the economic realities of what the deceased worker was providing as livelihood to his or her family and so for that reason the wrongful death area has a very long different lineage and therefore also gives rise to different views about how the interplay between this court acting under its powers of the general maritime law should interface where congress has spoken in the area of wrongful death and servant one other question which was you've talked about the deterrent value of the punitive damages we have an impressive impressive array of amicus briefs on the other side from you that  use severe language saying this would harm the maritime industry in the national economy so i just want to give you an opportunity to respond to those amicus brief thank you justice cavanaugh i'm happy to do that because in notwithstanding all the rhetoric there is no citation of any situation where a particular holding created the kind of economic harm that they expose chelated and this is an important thing as was pointed out that for decades damages have been allowed in and see where yunus claims in the ninth circuit and the eleventh circuit both two of the major maritime circuits and if that harm were to come to pass you would have expected to see some evidence of that but in fact there is no evidence of that and i except that many of the employers on the other side would rather not face the specter of having their own willful and wanton misconduct punished but i would submit that part of the objective of the law is to d d her people from acting in a way where the cost benefit analysis is such that you want to make the cost too high in order to deter that will harm is going to result or at least be put at substantial risk so for these reasons notwithstanding the array of the meeting on the other side i would ask you to look at what the actual evidence that they cite and it's  very very scant and in fact what this court in the exxon versus baker case did was to look at the evidence of the affected communities damages of course unfair there was an extraordinarily high compensatory award and this court concluded that notwithstanding the very high over half a billion dollar compensatory award that punitive damages was also available for the interests of the  a crew member who is often working at very very low wages the idea that you would cut off the one incentive that the employer has to ensure that there is a safe workplace for a functioning vessel the to the sea work or against the operator your honor at the answer to your question depends on what kind of charter is arranged between the owner of the vessel and the operator  a pro hockey chair for this purpose in many other instances the employer is not acting as the owner of pro hockey chain and it depends on the particular chartering arrangement that is established between the owner and the employer trivial question yes or not i notice that in the heat it came from the district of massachusetts which was the original admiralty court and they still have to put in or over the judge's head and at the end of laundry list of little things that are different it's not our contention that there is no question that even in one nine hundred twenty in the one nine hundred twenty s this court repeatedly said that these are that the jones act is an alternative remedy for loss resulting from wrongfully caused injury and now nowadays i cannot think of a case and no one has cited one in which you could get a recovery  under the jones act but not for on seaworthiness these specific differences between the two were well known to the court in miles they were well known to the court in peterson and all the other cases that have said that the two are substitutes for each other on the other hand viz of the maintenance ensure the notion that well because there could be cases where there is injury suffered after and as a result of a failure to undertake the humane duty of maintenance and sure and that could be brought under the jones act well they both overlap consider this and it's very first decision on after the jones act was enacted in the baltimore steamship case and then again in peterson this court explain that brace judicata off applies as between brought at the same time emphatically not true for maintenance and q or the court has held that the three year statute of limitations for causes of action under general maritime law applies to maintenance and cure but following an accident of the jones act can no longer be applied to on seaworthiness because they are cognate causes of action for the same injury and therefore the shorter statute of limitations under the jones act governs the evidence with respect justice ginsburg the evidence of punitive damages in an seaworthiness cases with all due respect is not slim it is orderly non existant and it's utterly nonexistent because at the time that this court and english courts were recognizing that punitive damages exemplary damages could be applied in maintenance if you are in the treatise writers all obligingly verified that even compensatory damages were not available for a violation of the general maritime law and see where th thank you counsel the case is submitted