Further report from Don Haycraft of Liskow & Lewis on the oral argument in Dutra Group v. Batterton:

Five Key Questions Asked by Justices in Dutra Group v. Batterton Supreme Court Argument

As I reported immediately after the oral argument on March 25, 2019, many questions were lobbed at the advocates for Petitioner Dutra Group and Respondent Batterton.  Review of the oral argument’s transcript, available at the link below, reveals five questions that provide a potential look into that justice’s view of the outcome:

1.  Justice Sotomayor immediately interrupted Seth Waxman (counsel for Dutra Group) to ask, “I thought the Jones Act directly says it’s there to supplement whatever the remedies were, not to take remedies away.  It was there to give more protection to seamen, not less.”  This is a very strong indicator that Justice Sotomayor doesn’t see the statute passed in 1920 as a boundary on remedies and is therefore a likely vote for affirmance of the Ninth Circuit’s opinion that allows punitive damages in unseaworthiness claims by a Jones Act seaman.
2. Justice Kagan asked Waxman, “how is that kind of flashing yellow light [expressed in the Miles case about admiralty courts being limited to an extent by Congressionally-enacted remedial regimes] … consistent with all the changes that have occurred in the unseaworthiness action?”  This question challenges the concept that passage of the Jones Act in 1920 somehow placed a limitation on what common law admiralty courts could do in shaping the general maritime law.  I see Justice Kagan as another vote for affirmance.
3. Justice Alito asked David Frederick, counsel for Batterton, “But if there were an established general rule in maritime cases that you could get punitive damages, how do you account for the fact that there weren’t cases awarding punitive damages for unseaworthiness?”  Justice Alito sees the lack of historical precedent for punitive damages in the unseaworthiness cause of action as a reason not to extend the reasoning of the Townsend majority opinion in the maintenance and cure context to the unseaworthiness arena.  Thus, I believe Justice Alito will vote for reversal.
4. Chief Justice Roberts distinguished a typical unseaworthiness claim of “the hatch that doesn’t close right” from a withholding of maintenance and cure to an injured seaman “who’s seriously injured or isn’t taken care of.  And you can understand maybe allowing punitive damages in that situation but not necessarily in the other.”  Given that Roberts was in the dissent in Townsend, this comment strongly suggests he will vote to reverse.
5. Finally, Justice Kavanaugh asked two questions.  One was a softball thrown to Frederick, to ask him to counter the amicus briefs submitted by supporters of Dutra’s anti-punitive damages position (including one by the author) which cited the dire economic consequences that would follow an allowance of punitive damages for seamen’s claims.  The other one asked how a choice to follow Miles as opposed to Townsend would comport with admiralty law’s “special solicitude” allowed seamen who face the perils of the sea in an especially hazardous occupation.  My assessment of Kavanaugh’s questions leads me to predict that he will support affirmance, and that he is likely to hew to a position he expressed in his majority opinion last week in Air & Liquid Systems Corp. v. Devries.

With no questions from Justices Thomas and Gorsuch, and with the questions from Ginsberg and Breyer not particularly showing their own propensities, I’m unwilling to give a forecast.  The key vote will be that of Justice Thomas, who wrote the majority opinion in Townsend.  If he doesn’t deviate from that perspective, the die is cast for an affirmance, given what I predict to be Justice Kavanaugh’s view of the matter.

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-266_5536.pdf