Exxon v. Baker and the Sources of Federal Maritime Law

[John Paul Jones is Professor of Law at Richmond Law School and is an expert in maritime law.]

I’ve been invited to call your attention to the case of Exxon Shipping Co. v. Baker, for which a writ of certiorari went to the U.S. Court of Appeals for the Ninth Circuit. Oral argument before the Supreme Court is scheduled for this morning. The case presents claims by Alaskan fishermen for loss of fishing opportunities and loss of value in their boats and licenses resulting from the oil spilled by the tank vessel Exxon Valdez when it grounded in Prince William Sound. The questions of law before the Court today are whether a ship’s owner may be vicariously liable to the extent of punitive damages for misconduct at sea by her master and whether omission from the Clean Water Act of any provision for punitive damages forecloses their award by resort to general maritime law on proof of misconduct of the sort covered in the Act.

Acting for several American law professors who pay particular attention to the maritime law of the United States and the admiralty practice of our federal courts, I submitted a brief amicus curiae urging that the Court issue the writ and resolve these questions because of their importance in admiralty cases. Our brief was intended to remind the Court of the special role created for federal courts by Article III, section 2 of the Constitution in the development through case decision of a body of substantive law for “cases of admiralty and maritime jurisdiction”. It is generally conceded that when the Supreme Court abandoned in Erie Railroad Co. v. Tompkins (1938) the position that there was a national or federal corpus of common law separate and distinct from that of each of the States, there remained intact a separate and distinct corpus of federal maritime law the product of case decisions, that is, the “general maritime law”. Thus, there is presented in any case within admiralty jurisdiction not just an occasion for a federal court to say what the law is, but also a duty to do so, and therefore an occasion as well for the Supreme Court to correct an inferior court on the matter. In our view, the decisions in this case by the District of Alaska and the Ninth Circuit, preoccupied with the evolving constitutional law of Due Process as a limit on punitive damages, had paid too little attention to antecedent questions about maritime law’s limits on punitive damages.

Our brief was also intended to remind the Court of the variety of sources to which the Court had resorted in the past when making American maritime law through case decision. In particular, citing Insurance Co. v. Dunham (1870) and Columbian Ins. Co. of Alexandria v. Ashby and Stribling (1839), we reminded the Court of its enduring habit of recourse to the codes of the maritime nations of Europe and its reference as recently as 1994 in McDermott, Inc. v. AmClyde to a consensus among the world’s maritime nations. (In AmClyde, the Court recalled that it had found such support in 1975 for its decision in United States v. Reliable Transfer, Inc. to substitute comparative fault for division of damages by moieties in maritime cases, but admitted that none could be found on the question in AmClyde of how a non-settling tortfeasor should be credited for a settlement between the plaintiff and another joint tortfeasor. What mattered to us is that the Court again went looking for consensus abroad to buttress maritime law of the United States.)

We were also moved to remind the Court of its continuing interest in Restatements of the Law as sources for fresh maritime law and of the care the Court exhibits routinely for harmony in its work and that of the Congress.

After the writ was granted, we did not return to the Supreme Court with a second brief urging a particular resolution of either issue. Indeed, as we admitted in our brief in favor of the writ, we differ on how the issues of maritime law argued today should be resolved, both generally and in the particular circumstances of this case. Needless to say, perhaps, we await decision with much anticipation.

None of the others joined in our brief should be called to answer for what I have written above. It is no more than my “take” on our work together embodied in the brief itself.