Baker

Volume 1 of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: THE EXXON VALDEZ, 

GRANT BAKER; SEA HAWK

SEAFOODS, INC.; COOK INLET

PROCESSORS, INC.; SAGAYA CORP.;

WILLIAM MCMURREN; PATRICK L.

MCMURREN; WILLIAM W. KING;

GEORGE C. NORRIS; HUNTER CRANZ;

RICHARD FEENSTRA; WILDERNESS No. 04-35182 SAILING SAFARIS; SEAFOOD SALES,  D.C. No.

INC.; RAPID SYSTEMS PACIFIC LTD.; CV-89-00095-HRH

NAUTILUS MARINE ENTERPRISES,

INC.; WILLIAM FINDLAY ABBOTT,

JR.,

Plaintiffs-Appellees, v.

EXXON MOBILE CORP; EXXON

SHIPPING CO.,

Defendants-Appellants. 

6033 6034 IN RE: THE EXXON VALDEZ

In re: THE EXXON VALDEZ, 

GRANT BAKER; SEA HAWK

SEAFOODS, INC.; COOK INLET

PROCESSORS, INC.; SAGAYA CORP.; No. 04-35183

WILLIAM MCMURREN; PATRICK L.

D.C. No.

MCMURREN; WILLIAM W. KING;

CV-89-00095-HRH

GEORGE C. NORRIS; HUNTER CRANZ;

RICHARD FEENSTRA; WILDERNESS ORDER

SAILING SAFARIS; SEAFOOD SALES,  AMENDING

INC.; RAPID SYSTEMS PACIFIC LTD.; OPINION AND

NAUTILUS MARINE ENTERPRISES, DISSENTS TO

INC.;…

Order; Dissent to Order by Judge KOZINSKI; Dissent to Order by Judge BEA; Per Curiam Opinion; Dissent by Judge BROWNING.

ORDER

IT IS ORDERED THAT:

The opinion in In re Exxon Valdez, 472 F.3d 600 (9th Cir.2006) is amended as follows: On page 621, delete the first full paragraph commencing with “There is also a limit on the law of the case doctrine ...” and concluding with “... may not generally be used as part of the calculation of harm.”

With that amendment, the panel has voted to otherwise deny the petition for panel rehearing.

The petition for panel rehearing is DENIED.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonreeused active judges in favor of en banc consideration. Fed. RApp. 35.

The petition for rehearing en banc is DENIED.

KOZINSKI, Circuit Judge, dissenting from the order denying the petition for rehearing en banc:

For two centuries, maritime law has protected ship owners from liability for punitive damages based solely on the fault of captain and crew. See Thomas J. Schoenbaum, Admiralty & Maritime Law…

dissenting:

Because I believe the punitive damages award in this case is not “grossly excessive,” I would affirm. In reviewing the size of a punitive damages award, our sole duty is to ensure its imposition does not violate due process. Where an award lies within the bounds of due process, as this one does, we may not substitute a figure we consider more reasonable for one fairly awarded by a jury and properly reviewed by a district court. Therefore, I respectfully dissent.

1. Due Process Review of Punitive Damages

To comport with the Constitution, a punitive damages award must strike the proper balance between the state goals of deterrence and retribution and a defendant’s due process right to be free from arbitrary punishment. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-17 , 123 S.Ct. 1513 , 155 L.Ed.2d 585 (2003). The Supreme Court has determined the balance is upset at the point an award becomes “grossly excessive,” reasoning that, “[t]o the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Id. at 417 , 123 S.Ct. 1513 (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 ,…