Judge Kozinski's dissent from denial of rehearing en banc makes a pretty persuasive case for Supreme Court review. According to the dissent, both U.S. Supreme Court admiralty law precedent and the law of other circuits "protect[s] ship owners from liability for punitive damages based solely on the fault of captain and crew." The Ninth Circuit is apparently the one outlier.
This sort of circuit split, coupled with the importance of the issue -- both in this $2.5 billion case and in the multi-billion-dollar shipping business generally -- should make Supreme Court review quite likely (and appropriate). If the Solicitor General's office weighs in with a brief supporting review, that would further increase the likelihood of certiorari. (Judge Kozinski also argues that there's an intracircuit split on the legal question, with different Ninth Circuit panel decisions resolving the issue in different ways. The presence of the intracircuit split is not itself much of a factor in favor of Supreme Court review, though it should have been a factor in favor of en banc review.)
I know very little about admiralty law, which is why I make clear here that I am relying on Judge Kozinski's opinion. But I have found Judge Kozinski's work to be extremely trustworthy (and I know the man well, having worked for him). If he says there's a square split here, that's good enough for me.
Check out, incidentally, how the earlier panel decision in this case explains its resolution of the intracircuit split, by reasoning that Pacific Mutual Life Ins. Co. v. Haslip -- a 1991 decision about the constitutionality of punitive damages, which said nothing about admiralty law principles -- implicitly superseded preexisting precedent on the admiralty law question. 270 F.3d 1215, 1235-36 (9th Cir. 2001). That's the one part of the Kozinski opinion I did check out, simply because I found it interesting, and Kozinski's criticism of the earlier panel decision strikes me as completely apt.
Thanks to How Appealing for the pointer.
So if Exxon didn't direct the captain to run the ship aground, nor approved the running of the ship aground nor ran the ship aground itself, it is free from liability. This result just plain defies common sense.
Real case:
This is the opposite of the tort lawyer going after Circle K's big bucks when one of their (underpaid) employees gets into an auto accident while on an errand for the company and kills somebody by their (the employee's) negligence. Common sense? Hardly. Circle K wasn't driving, had no control over the employee's actions while at the wheel. All they have is the money. Lawyers have a fancy name for this liability which I have forgotten. The tort lawyers love it of course, and it may be the law, but it is not justice in any real sense of the word. Speaking generally, IMO and within my moral compass, justice should trump the law which is how I
voted on the jury.
The 9th Circuit was just doing its typical 9th Circuit thing, it isn't the law that matters, it's the result.
Excellent, you've agreed to my fundamental point that the company need not have an active role in the accident in order to justify punitive damages. Since Exxon's actions may have been reckless we ought to let a jury decide on that.
Admirality Law by its very nature is International Law. US Admirality and Maritime Law is structured by the way of Treaty Obligations. Specific International Treaties outline the liabilities of owners, captain, operators, etc of ships.
To me, this decision seems to fly in the face of these international treaties which limit the owners liability to actual damages. Despite what people think about the current administration, the Courts are not free to rewrite the terms of treaties because they don't like the results.
Have they paid hundreds of millions in actual damages? Not in clean-up costs, in actual damages? I don't think so. More importantly, the actual damages caused were well above the hundreds of millions, and are still being felt.
But, as Judge Holland said..."Exxon officials knew that carrying huge volumes of crude oil through Prince William sound was a dangerous business, yet they knowingly permitted a relapsed alcoholic to direct the operation of the Exxon Valdez through Prince William Sound."
I'd say that blows that defense out of the water, so to speak. Exxon is not being punished for what Capt. Hazelwood did, Exxon is being punished for what Exxon did. (or didn't do more to the point)