Exxon Shipping Co. v. Baker

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

EXXON SHIPPING CO. ET AL. v. BAKER ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 07–219. Argued February 27, 2008—Decided June 25, 2008
In 1989, petitioners’ (collectively, Exxon) supertanker grounded on a
reef off Alaska, spilling millions of gallons of crude oil into Prince
William Sound. The accident occurred after the tanker’s captain, Jo-
seph Hazelwood—who had a history of alcohol abuse and whose blood
still had a high alcohol level 11 hours after the spill—inexplicably ex-
ited the bridge, leaving a tricky course correction to unlicensed sub-
ordinates. Exxon spent some $2.1 billion in cleanup efforts, pleaded
guilty to criminal violations occasioning fines, settled a civil action by
the United States and Alaska for at least $900 million, and paid an-
other $303 million in voluntary payments to private parties. Other
civil cases were consolidated into this one, brought against Exxon,
Hazelwood, and others to recover economic losses suffered by respon-
dents (hereinafter Baker), who depend on Prince William Sound for
their livelihoods. At Phase I of the trial, the jury found Exxon and
Hazelwood reckless (and thus potentially liable for punitive damages)
under instructions providing that a corporation is responsible for the
reckless acts of employees acting in a managerial capacity in the
scope of their employment. In Phase II, the jury awarded $287 mil-
lion in compensatory damages to some of the plaintiffs; others had
settled their compensatory claims for $22.6 million. In Phase III, the
jury awarded $5,000 in punitive damages against Hazelwood and $5
billion against Exxon. The Ninth Circuit upheld the Phase I jury in-
struction on corporate liability and ultimately remitted the punitive
damages award against Exxon to $2.5 billion.
Held:
1. Because the Court is equally divided on whether maritime law
allows corporate liability for punitive damages based on the acts of
managerial agents, it leaves the Ninth Circuit’s opinion undisturbed
2 EXXON SHIPPING CO. v. BAKER

Syllabus

in this respect. Of course, this disposition is not precedential on the
derivative liability question. See, e.g., Neil v. Biggers, 409 U. S. 188,
192. Pp. 7–10.
2. The Clean Water Act’s water pollution penalties, 33 U. S. C.
§1321, do not preempt punitive-damages awards in maritime spill
cases. Section 1321(b) protects “navigable waters . . . , adjoining
shorelines, . . . [and] natural resources,” subject to a saving clause re-
serving “obligations . . . under any . . . law for damages to any . . . pri-
vately owned property resulting from [an oil] discharge,” §1321(o).
Exxon’s admission that the CWA does not displace compensatory
remedies for the consequences of water pollution, even those for eco-
nomic harms, leaves the company with the untenable claim that the
CWA somehow preempts punitive damages, but not compensatory
damages, for economic loss. Nothing in the statute points to that re-
sult, and the Court has rejected similar attempts to sever remedies
from their causes of action, see Silkwood v. Kerr-McGee Corp., 464
U. S. 238, 255–256. There is no clear indication of congressional in-
tent to occupy the entire field of pollution remedies, nor is it likely
that punitive damages for private harms will have any frustrating ef-
fect on the CWA’s remedial scheme. Pp. 10–15.
3. The punitive damages award against Exxon was excessive as a
matter of maritime common law. In the circumstances of this case,
the award should be limited to an amount equal to compensatory
damages. Pp. 15–42.
(a) Although legal codes from ancient times through the Middle
Ages called for multiple damages for certain especially harmful acts,
modern Anglo-American punitive damages have their roots in 18th-
century English law and became widely accepted in American courts
by the mid-19th century. See, e.g., Day v. Woodworth, 13 How. 363,
371. Pp. 16–17.
(b) The prevailing American rule limits punitive damages to
cases of “enormity,” Day v. Woodworth, 13 How. 363, 371, in which a
defendant’s conduct is outrageous, owing to gross negligence, willful,
wanton, and reckless indifference for others’ rights, or even more de-
plorable behavior. The consensus today is that punitive damages are
aimed at retribution and deterring harmful conduct. Pp. 17–21.
(c) State regulation of punitive damages varies. A few States
award them rarely, or not at all, and others permit them only when
authorized by statute. Many States have imposed statutory limits on
punitive awards, in the form of absolute monetary caps, a maximum
ratio of punitive to compensatory damages, or, frequently, some com-
bination of the two. Pp. 21–23.
(d) American punitive damages have come under criticism in re-
cent decades, but the most recent studies tend to undercut much of it.
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Syllabus

Although some studies show the dollar amounts of awards growing
over time, even in real terms, most accounts show that the median
ratio of punitive to compensatory awards remains less than 1:1. Nor
do the data show a marked increase in the percentage of cases with
punitive awards. The real problem is the stark unpredictability of
punitive awards. Courts are concerned with fairness as consistency,
and the available data suggest that the spread between high and low
individual awards is unacceptable. The spread in state civil trials is
great, and the outlier cases subject defendants to punitive damages
that dwarf the corresponding compensatories. The distribution of
judge-assessed awards is narrower, but still remarkable. These
ranges might be acceptable if they resulted from efforts to reach a
generally accepted optimal level of penalty and deterrence in cases
involving a wide range of circumstances, but anecdotal evidence sug-
gests that is not the case, see, e.g., Gore, supra, at 565, n. 8. Pp. 24–
27.
(e) This Court’s response to outlier punitive damages awards has
thus far been confined by claims that state-court awards violated due
process. See, e.g., State Farm Mut. Automobile Ins. Co. v. Campbell,
538 U. S. 408, 425. In contrast, today’s enquiry arises under federal
maritime jurisdiction and requires review of a jury award at the level
of judge-made federal common law that precedes and should obviate
any application of the constitutional standard. In this context, the
unpredictability of high punitive awards is in tension with their pu-
nitive function because of the implication of unfairness that an eccen-
trically high punitive verdict carries. A penalty should be reasonably
predictable in its severity, so that even Holmes’s “bad man” can look
ahead with some ability to know what the stakes are in choosing one
course of action or another. And a penalty scheme ought to threaten
defendants with a fair probability of suffering in like degree for like
damage. Cf. Koon v. United States, 518 U. S. 81, 113. Pp. 28–29.
(f) The Court considers three approaches, one verbal and two
quantitative, to arrive at a standard for assessing maritime punitive
damages. Pp. 29–42.
(i) The Court is skeptical that verbal formulations are the best
insurance against unpredictable outlier punitive awards, in light of
its experience with attempts to produce consistency in the analogous
business of criminal sentencing. Pp. 29–32.
(ii) Thus, the Court looks to quantified limits. The option of
setting a hard-dollar punitive cap, however, is rejected because there
is no “standard” tort or contract injury, making it difficult to settle
upon a particular dollar figure as appropriate across the board; and
because a judicially selected dollar cap would carry the serious draw-
back that the issue might not return to the docket before there was a
4 EXXON SHIPPING CO. v. BAKER

Syllabus

need to revisit the figure selected. Pp. 32–39.
(iii) The more promising alternative is to peg punitive awards
to compensatory damages using a ratio or maximum multiple. This
is the model in many States and in analogous federal statutes allow-
ing multiple damages. The question is what ratio is most appropri-
ate. An acceptable standard can be found in the studies showing the
median ratio of punitive to compensatory awards. Those studies re-
flect the judgments of juries and judges in thousands of cases as to
what punitive awards were appropriate in circumstances reflecting
the most down to the least blameworthy conduct, from malice and
avarice to recklessness to gross negligence. The data in question put
the median ratio for the entire gamut at less than 1:1, meaning that
the compensatory award exceeds the punitive award in most cases.
In a well-functioning system, awards at or below the median would
roughly express jurors’ sense of reasonable penalties in cases like this
one that have no earmarks of exceptional blameworthiness. Accord-
ingly, the Court finds that a 1:1 ratio is a fair upper limit in such
maritime cases. Pp. 39–42.
(iv) Applying this standard to the present case, the Court takes
for granted the District Court’s calculation of the total relevant com-
pensatory damages at $507.5 million. A punitive-to-compensatory
ratio of 1:1 thus yields maximum punitive damages in that amount.
P. 42.
472 F. 3d 600 and 490 F. 3d 1066, vacated and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and in which STE-
VENS, GINSBURG, and BREYER, JJ., joined, as to Parts I, II, and III.
SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined. STE-
VENS, J., GINSBURG, J., and BREYER, J., filed opinions concurring in part
and dissenting in part. ALITO, J., took no part in the consideration or
decision of the case.
 Cite as: 554 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–219
_________________

EXXON SHIPPING COMPANY, ET AL., PETITIONERS v.
GRANT BAKER ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2008]

JUSTICE SOUTER delivered the opinion of the Court.
There are three questions of maritime law before us:
whether a shipowner may be liable for punitive damages
without acquiescence in the actions causing harm,
whether punitive damages have been barred implicitly by
federal statutory law making no provision for them, and
whether the award of $2.5 billion in this case is greater
than maritime law should allow in the circumstances. We
are equally divided on the owner’s derivative liability, and
hold that the federal statutory law does not bar a punitive
award on top of damages for economic loss, but that the
award here should be limited to an amount equal to com-
pensatory damages.
I
On March 24, 1989, the supertanker Exxon Valdez
grounded on Bligh Reef off the Alaskan coast, fracturing
its hull and spilling millions of gallons of crude oil into
Prince William Sound. The owner, petitioner Exxon Ship-
ping Co. (now SeaRiver Maritime, Inc.), and its owner,
petitioner Exxon Mobil Corp. (collectively, Exxon), have
settled state and federal claims for environmental dam-
2 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

age, with payments exceeding $1 billion, and this action
by respondent Baker and others, including commercial
fishermen and native Alaskans, was brought for economic
losses to individuals dependent on Prince William Sound
for their livelihoods.
A
The tanker was over 900 feet long and was used by
Exxon to carry crude oil from the end of the Trans-Alaska
Pipeline in Valdez, Alaska, to the lower 48 States. On the
night of the spill it was carrying 53 million gallons of
crude oil, or over a million barrels. Its captain was one
Joseph Hazelwood, who had completed a 28-day alcohol
treatment program while employed by Exxon, as his supe-
riors knew, but dropped out of a prescribed follow-up
program and stopped going to Alcoholics Anonymous
meetings. According to the District Court, “[t]here was
evidence presented to the jury that after Hazelwood was
released from [residential treatment], he drank in bars,
parking lots, apartments, airports, airplanes, restaurants,
hotels, at various ports, and aboard Exxon tankers.” In re
Exxon Valdez, No. A89–0095–CV, Order No. 265 (D.
Alaska, Jan. 27, 1995), p. 5, App. F to Pet. for Cert. 255a–
256a (hereinafter Order 265). The jury also heard con-
tested testimony that Hazelwood drank with Exxon offi-
cials and that members of the Exxon management knew of
his relapse. See ibid. Although Exxon had a clear policy
prohibiting employees from serving onboard within four
hours of consuming alcohol, see In re Exxon Valdez, 270
F. 3d 1215, 1238 (CA9 2001), Exxon presented no evidence
that it monitored Hazelwood after his return to duty or
considered giving him a shoreside assignment, see Order
265, p. 5, supra, at 256a. Witnesses testified that before
the Valdez left port on the night of the disaster, Hazel-
wood downed at least five double vodkas in the waterfront
bars of Valdez, an intake of about 15 ounces of 80-proof
 Cite as: 554 U. S. ____ (2008) 3

Opinion of the Court

alcohol, enough “that a non-alcoholic would have passed
out.” 270 F. 3d, at 1236.
The ship sailed at 9:12 p.m. on March 23, 1989, guided
by a state-licensed pilot for the first leg out, through the
Valdez Narrows. At 11:20 p.m., Hazelwood took active
control and, owing to poor conditions in the outbound
shipping lane, radioed the Coast Guard for permission to
move east across the inbound lane to a less icy path.
Under the conditions, this was a standard move, which the
last outbound tanker had also taken, and the Coast Guard
cleared the Valdez to cross the inbound lane. The tanker
accordingly steered east toward clearer waters, but the
move put it in the path of an underwater reef off Bligh
Island, thus requiring a turn back west into the shipping
lane around Busby Light, north of the reef.
Two minutes before the required turn, however, Hazel-
wood left the bridge and went down to his cabin in order,
he said, to do paperwork. This decision was inexplicable.
There was expert testimony that, even if their presence is
not strictly necessary, captains simply do not quit the
bridge during maneuvers like this, and no paperwork
could have justified it. And in fact the evidence was that
Hazelwood’s presence was required, both because there
should have been two officers on the bridge at all times
and his departure left only one, and because he was the
only person on the entire ship licensed to navigate this
part of Prince William Sound. To make matters worse,
before going below Hazelwood put the tanker on autopilot,
speeding it up, making the turn trickier, and any mistake
harder to correct.
As Hazelwood left, he instructed the remaining officer,
third mate Joseph Cousins, to move the tanker back into
the shipping lane once it came abeam of Busby Light.
Cousins, unlicensed to navigate in those waters, was left
alone with helmsman Robert Kagan, a nonofficer. For
reasons that remain a mystery, they failed to make the
4 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

turn at Busby Light, and a later emergency maneuver
attempted by Cousins came too late. The tanker ran
aground on Bligh Reef, tearing the hull open and spilling
11 million gallons of crude oil into Prince William Sound.
After Hazelwood returned to the bridge and reported the
grounding to the Coast Guard, he tried but failed to rock
the Valdez off the reef, a maneuver which could have
spilled more oil and caused the ship to founder.1 The
Coast Guard’s nearly immediate response included a blood
test of Hazelwood (the validity of which Exxon disputes)
showing a blood-alcohol level of .061 eleven hours after the
spill. Supp. App. 307sa. Experts testified that to have
this much alcohol in his bloodstream so long after the
accident, Hazelwood at the time of the spill must have had
a blood-alcohol level of around .241, Order 265, p. 5, supra,
at 256a, three times the legal limit for driving in most
States.
In the aftermath of the disaster, Exxon spent around
$2.1 billion in cleanup efforts. The United States charged
the company with criminal violations of the Clean Water
Act, 33 U. S. C. §§1311(a) and 1319(c)(1); the Refuse Act of
1899, 33 U. S. C. §§407 and 411; the Migratory Bird
Treaty Act, 16 U. S. C. §§703 and 707(a); the Ports and
Waterways Safety Act, 33 U. S. C. §1232(b)(1); and the
Dangerous Cargo Act, 46 U. S. C. §3718(b). Exxon pleaded
guilty to violations of the Clean Water Act, the Refuse Act,
and the Migratory Bird Treaty Act and agreed to pay a
——————
1 As it turned out, the tanker survived the accident and remained in

Exxon’s fleet, which it subsequently transferred to a wholly owned
subsidiary, SeaRiver Maritime, Inc. The Valdez “was renamed several
times, finally to the SeaRiver Mediterranean, [and] carried oil between
the Persian Gulf and Japan, Singapore, and Australia for 12 years. . . .
In 2002, the ship was pulled from service and ‘laid up’ off a foreign port
(just where the owners won’t say) and prepared for retirement, al-
though, according to some reports, the vessel continues in service under
a foreign flag.” Exxon Valdez Spill Anniversary Marked, 30 Oil Spill
Intelligence Report 2 (Mar. 29, 2007).
 Cite as: 554 U. S. ____ (2008) 5

Opinion of the Court

$150 million fine, later reduced to $25 million plus restitu-
tion of $100 million. A civil action by the United States
and the State of Alaska for environmental harms ended
with a consent decree for Exxon to pay at least $900 mil-
lion toward restoring natural resources, and it paid an-
other $303 million in voluntary settlements with fisher-
men, property owners, and other private parties.
B
The remaining civil cases were consolidated into this
one against Exxon, Hazelwood, and others. The District
Court for the District of Alaska divided the plaintiffs
seeking compensatory damages into three classes: com-
mercial fishermen, Native Alaskans, and landowners. At
Exxon’s behest, the court also certified a mandatory class
of all plaintiffs seeking punitive damages, whose number
topped 32,000. Respondents here, to whom we will refer
as Baker for convenience, are members of that class.
For the purposes of the case, Exxon stipulated to its
negligence in the Valdez disaster and its ensuing liability
for compensatory damages. The court designed the trial
accordingly: Phase I considered Exxon and Hazelwood’s
recklessness and thus their potential for punitive liability;
Phase II set compensatory damages for commercial fish-
ermen and Native Alaksans; and Phase III determined the
amount of punitive damages for which Hazelwood and
Exxon were each liable. (A contemplated Phase IV, set-
ting compensation for still other plaintiffs, was obviated
by settlement.)
In Phase I, the jury heard extensive testimony about
Hazelwood’s alcoholism and his conduct on the night of the
spill, as well as conflicting testimony about Exxon officials’
knowledge of Hazelwood’s backslide. At the close of Phase
I, the Court instructed the jury in part that
“[a] corporation is responsible for the reckless acts of
those employees who are employed in a managerial
6 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

capacity while acting in the scope of their employ-
ment. The reckless act or omission of a managerial of-
ficer or employee of a corporation, in the course and
scope of the performance of his duties, is held in law
to be the reckless act or omission of the corporation.”
App. K to Pet. for Cert. 301a.
The Court went on that “[a]n employee of a corporation is
employed in a managerial capacity if the employee super-
vises other employees and has responsibility for, and
authority over, a particular aspect of the corporation’s
business.” Ibid. Exxon did not dispute that Hazelwood
was a managerial employee under this definition, see
App. G, id., at 264a, n. 8, and the jury found both Hazel-
wood and Exxon reckless and thus potentially liable for
punitive damages, App. L, id., at 303a.2
In Phase II the jury awarded $287 million in compensa-
tory damages to the commercial fishermen. After the
Court deducted released claims, settlements, and other
payments, the balance outstanding was $19,590,257.
Meanwhile, most of the Native Alaskan class had settled
their compensatory claims for $20 million, and those who
opted out of that settlement ultimately settled for a total
of around $2.6 million.
In Phase III, the jury heard about Exxon’s manage-
ment’s acts and omissions arguably relevant to the spill.
See App. 1291–1320, 1353–1367. At the close of evidence,
the court instructed the jurors on the purposes of punitive
damages, emphasizing that they were designed not to
provide compensatory relief but to punish and deter the

——————
2 The jury was not asked to consider the possibility of any degree of

fault beyond the range of reckless conduct. The record sent up to us
shows that some thought was given to a trial plan that would have
authorized jury findings as to greater degrees of culpability, see App.
164, but that plan was not adopted, whatever the reason; Baker does
not argue this was error.
 Cite as: 554 U. S. ____ (2008) 7

Opinion of the Court

defendants. See App. to Brief in Opposition 12a–14a. The
court charged the jury to consider the reprehensibility of
the defendants’ conduct, their financial condition, the
magnitude of the harm, and any mitigating facts. Id., at
15a. The jury awarded $5,000 in punitive damages
against Hazelwood and $5 billion against Exxon.
On appeal, the Court of Appeals for the Ninth Circuit
upheld the Phase I jury instruction on corporate liability
for acts of managerial agents under Circuit precedent. See
In re Exxon Valdez, 270 F. 3d, at 1236 (citing Protectus
Alpha Nav. Co. v. North Pacific Grain Growers, Inc., 767
F. 2d 1379 (CA9 1985)). With respect to the size of the
punitive damages award, however, the Circuit remanded
twice for adjustments in light of this Court’s due process
cases before ultimately itself remitting the award to $2.5
billion. See 270 F. 3d, at 1246–1247; 472 F. 3d 600, 601,
625 (2006) (per curiam), and 490 F. 3d 1066, 1068 (2007).
We granted certiorari to consider whether maritime law
allows corporate liability for punitive damages on the
basis of the acts of managerial agents, whether the Clean
Water Act (CWA), 86 Stat. 816, 33 U. S. C. §1251 et seq.
(2000 ed. and Supp. V), forecloses the award of punitive
damages in maritime spill cases, and whether the punitive
damages awarded against Exxon in this case were exces-
sive as a matter of maritime common law. 552 U. S. ___
(2007). We now vacate and remand.
II
On the first question, Exxon says that it was error to
instruct the jury that a corporation “is responsible for the
reckless acts of . . . employees . . . in a managerial capacity
while acting in the scope of their employment.”3 App. K to
——————
3 Baker emphasizes that the Phase I jury instructions also allowed
the jury to find Exxon independently reckless, and that the evidence for
fixing Exxon’s punitive liability at Phase III revolved around the
recklessness of company officials in supervising Hazelwood and enforc-
8 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

Pet. for Cert. 301a. The Courts of Appeals have split on
this issue,4 and the company relies primarily on two cases,
The Amiable Nancy, 3 Wheat. 546 (1818), and Lake Shore
& Michigan Southern R. Co. v. Prentice, 147 U. S. 101
(1893), to argue that this Court’s precedents are clear that
punitive damages are not available against a shipowner
for a shipmaster’s recklessness. The former was a suit in
admiralty against the owners of The Scourge, a privateer
whose officers and crew boarded and plundered a neutral
ship, The Amiable Nancy. In upholding an award of com-
pensatory damages, Justice Story observed that,
“if this were a suit against the original wrong-doers, it
might be proper to . . . visit upon them in the shape of
exemplary damages, the proper punishment which be-
longs to such lawless misconduct. But it is to be con-
sidered, that this is a suit against the owners of the
privateer, upon whom the law has, from motives of
policy, devolved a responsibility for the conduct of the
officers and crew employed by them, and yet, from the
nature of the service, they can scarcely ever be able to
——————
ing Exxon’s alcohol policies. Thus, Baker argues, it is entirely possible
that the jury found Exxon reckless in its own right, and in no way
predicated its liability for punitive damages on Exxon’s responsibility
for Hazelwood’s conduct. Brief for Respondents 36–39.
The fact remains, however, that the jury was not required to state
the basis of Exxon’s recklessness, and the basis for the finding could
have been Exxon’s own recklessness or just Hazelwood’s. Any error in
instructing on the latter ground cannot be overlooked, because “when it
is impossible to know, in view of the general verdict returned whether
the jury imposed liability on a permissible or an impermissible ground,
the judgment must be reversed and the case remanded.” Greenbelt
Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6, 11 (1970)
(internal quotation marks omitted).
4 Compare Protectus Alpha Nav. Co. v. North Pacific Grain Growers,

Inc., 767 F. 2d 1379, 1386 (CA9 1985) (adopting Restatement (Second)
of Torts rule), with CEH, Inc. v. F/V Seafarer, 70 F. 3d 694, 705 (CA1
1995); In re P & E Boat Rentals, Inc., 872 F. 2d 642, 652 (CA5 1989);
United States Steel Corp. v. Fuhrman, 407 F. 2d 1143, 1148 (CA6 1969).
 Cite as: 554 U. S. ____ (2008) 9

Opinion of the Court

secure to themselves an adequate indemnity in cases
of loss. They are innocent of the demerit of this
transaction, having neither directed it, nor counte-
nanced it, nor participated in it in the slightest de-
gree. Under such circumstances, we are of opinion,
that they are bound to repair all the real injuries and
personal wrongs sustained by the libellants, but they
are not bound to the extent of vindictive damages.”
The Amiable Nancy, supra, at 558–559 (emphasis in
original).
Exxon takes this statement as a rule barring punitive
liability against shipowners for actions by underlings not
“directed,” “countenanced,” or “participated in” by the
owners.
Exxon further claims that the Court confirmed this rule
in Lake Shore, supra, a railway case in which the Court
relied on The Amiable Nancy to announce, as a matter of
pre-Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), general
common law, that “[t]hough [a] principal is liable to make
compensation for [intentional torts] by his agent, he is not
liable to be punished by exemplary damages for an intent
in which he did not participate.” 147 U. S., at 110. Be-
cause maritime law remains federal common law, and
because the Court has never revisited the issue, Exxon
argues that Lake Shore endures as sound evidence of
maritime law. And even if the rule of Amiable Nancy and
Lake Shore does not control, Exxon urges the Court to fall
back to a modern-day variant adopted in the context of
Title VII of the Civil Rights Act of 1964 in Kolstad v.
American Dental Assn., 527 U. S. 526, 544 (1999), that
employers are not subject to punitive damages for dis-
criminatory conduct by their managerial employees if they
can show that they maintained and enforced good-faith
antidiscrimination policies.
Baker supports the Ninth Circuit in upholding the
10 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

instruction, as it did on the authority of Protectus Alpha
Nav. Co., 767 F. 2d 1379, which followed the Restatement
rule recognizing corporate liability in punitive damages for
reckless acts of managerial employees, see 4 Restatement
(Second) of Torts §909(c) (1977) (hereinafter Restatement).
Baker says that The Amiable Nancy offers nothing but
dictum, because punitive damages were not at issue, and
that Lake Shore merely rejected company liability for the
acts of a railroad conductor, while saying nothing about
liability for agents higher up the ladder, like ship cap-
tains. He also makes the broader points that the opinion
was criticized for failing to reflect the majority rule of its
own time, not to mention its conflict with the respondeat
superior rule in the overwhelming share of land-based
jurisdictions today. Baker argues that the maritime rule
should conform to modern land-based common law, where
a majority of States allow punitive damages for the con-
duct of any employee, and most others follow the Restate-
ment, imposing liability for managerial agents.
The Court is equally divided on this question, and “[i]f
the judges are divided, the reversal cannot be had, for no
order can be made.” Durant v. Essex Co., 7 Wall. 107, 112
(1869). We therefore leave the Ninth Circuit’s opinion
undisturbed in this respect, though it should go without
saying that the disposition here is not precedential on the
derivative liability question. See, e.g., Neil v. Biggers, 409
U. S. 188, 192 (1972); Ohio ex rel. Eaton v. Price, 364 U. S.
263, 264 (1960) (opinion of Brennan, J.).
III
Exxon next says that, whatever the availability of mari-
time punitive damages at common law, the CWA preempts
them. Baker responds with both procedural and merits
arguments, and although we do not dispose of the issue on
procedure, a short foray into its history is worthwhile as a
cautionary tale.
 Cite as: 554 U. S. ____ (2008) 11

Opinion of the Court

At the pretrial stage, the District Court controlled a
flood of motions by an order staying them for any purpose
except discovery. The court ultimately adopted a case-
management plan allowing receipt of seven specific sum-
mary judgment motions already scheduled, and requiring
a party with additional motions to obtain the court’s leave.
One of the motions scheduled sought summary judgment
for Exxon on the ground that the Trans-Alaska Pipeline
Authorization Act, 87 Stat. 584, 43 U. S. C. §§1651–1656,
displaced maritime common law and foreclosed the avail-
ability of punitive damages. The District Court denied the
motion.
After the jury returned the Phase III punitive-damages
verdict on September 16, 1994, the parties stipulated that
all post-trial Federal Rules of Civil Procedure 50 and 59
motions would be filed by September 30, and the court so
ordered. App. 1410–1411. Exxon filed 11 of them, includ-
ing several seeking a new trial or judgment as a matter of
law on one ground or another going to the punitive dam-
ages award, all of which were denied along with the rest.
On October 23, 1995, almost 13 months after the stipu-
lated motions deadline, Exxon moved for the District
Court to suspend the motions stay, App. to Brief in Oppo-
sition 28a–29a, to allow it to file a “Motion and Renewed
Motion . . . for Judgment on Punitive Damages Claims”
under Rules 49(a) and 58(2) and, “to the extent they may
be applicable, pursuant to Rules 50(b), 56(b), 56(d), 59(a),
and 59(e),”5 App. to Brief in Opposition 30a–31a. Exxon’s
——————
5 Most of the rules under which Exxon sought relief are inapplicable
on their face. See Fed. Rules Civ. Proc. 49(a), 56(b), (d), and 58(2).
Rules 50 and 59 are less inapt: they allow, respectively, entry of judg-
ment as a matter of law and alteration or amendment of the judgment.
(At oral argument, counsel for Exxon ultimately characterized the
motion as one under Rule 50. Tr. of Oral Arg. 25.)
But to say that Rules 50 and 59 are less inapt than the other Rules is
a long way from saying they are apt. A motion under Rule 50(b) is not
12 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

accompanying memorandum asserted that two recent
cases, Glynn v. Roy Al Boat Management Corp., 57 F. 3d
1495 (CA9 1995), and Guevara v. Maritime Overseas
Corp., 59 F. 3d 1496 (CA5 1995), suggested that the rule of
maritime punitive damages was displaced by federal
statutes, including the CWA. On November 2, 1995, the
District Court summarily denied Exxon’s request to file
the motion, App. to Brief in Opposition 35a, and in Janu-
ary 1996 (following the settlement of the Phase IV com-
pensatory claims) the court entered final judgment.
Exxon renewed the CWA preemption argument before
the Ninth Circuit. The Court of Appeals recognized that
Exxon had raised the CWA argument for the first time 13
months after the Phase III verdict, but decided that the
claim “should not be treated as waived,” because Exxon
had “consistently argued statutory preemption” through-
out the litigation, and the question was of “massive . . .
significance” given the “ambiguous circumstances” of the
case. 270 F. 3d, at 1229. On the merits, the Circuit held
that the CWA did not preempt maritime common law on
punitive damages. Id., at 1230.
Although we agree with the Ninth Circuit’s conclusion,
its reasons for reaching it do not hold up. First, the reason
the court thought that the CWA issue was not in fact
——————
allowed unless the movant sought relief on similar grounds under Rule
50(a) before the case was submitted to the jury. See Rule 50(b); see
also, e.g., Zachar v. Lee, 363 F. 3d 70, 73–74 (CA1 2004); 9B C. Wright
& A. Miller, Federal Practice and Procedure §2537, pp. 603–604 (3d ed.
2008). Rule 59(e) permits a court to alter or amend a judgment, but it
“may not be used to relitigate old matters, or to raise arguments or
present evidence that could have been raised prior to the entry of
judgment.” 11 C. Wright & A. Miller, Federal Practice and Procedure
§2810.1, pp. 127–128 (2d ed. 1995) (footnotes omitted). Where Exxon
has been unable to demonstrate that any rule supported the motion, we
need not choose the best of the worst, and risk implying that this last-
minute motion was appropriate under any rule. Suffice it to say that,
whatever type of motion it was supposed to be, it was very, very late.
 Cite as: 554 U. S. ____ (2008) 13

Opinion of the Court

waived was that Exxon had alleged other statutory
grounds for preemption from the outset of the trial. But
that is not enough. It is true that “[o]nce a federal claim is
properly presented, a party can make any argument in
support of that claim; parties are not limited to the precise
arguments they made below.” Yee v. Escondido, 503 U. S.
519, 534 (1992). But this principle stops well short of
legitimizing Exxon’s untimely motion. If “statutory pre-
emption” were a sufficient claim to give Exxon license to
rely on newly cited statutes anytime it wished, a litigant
could add new constitutional claims as he went along,
simply because he had “consistently argued” that a chal-
lenged regulation was unconstitutional. See id., at 533
(rejecting substantive due process claim by takings peti-
tioners who failed to preserve it below); Browning-Ferris
Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257,
277, n. 23 (1989) (rejecting due process claim by Eighth-
Amendment petitioners).
That said, the motion still addressed the Circuit’s dis-
cretion, to which the “massive” significance of the question
and the “ambiguous circumstances” of the case were said
to be relevant. 270 F. 3d, at 1229. “It is the general rule,
of course, that a federal appellate court does not consider
an issue not passed upon below,” Singleton v. Wulff, 428
U. S. 106, 120 (1976), when to deviate from this rule being
a matter “left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases,”
id., at 121. We have previously stopped short of stating a
general principle to contain appellate courts’ discretion,
see ibid., and we exercise the same restraint today.6
——————
6 We do have to say, though, that the Court of Appeals gave short

shrift to the District Court’s commendable management of this gargan-
tuan litigation, and if the case turned on the propriety of the Circuit’s
decision to reach the preemption issue we would take up the claim that
it exceeded its discretion. Instead, we will only say that to the extent
the Ninth Circuit implied that the unusual circumstances of this case
14 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

As to the merits, we agree with the Ninth Circuit that
Exxon’s late-raised CWA claim should fail. There are two
ways to construe Exxon’s argument that the CWA’s penal-
ties for water pollution, see 33 U. S. C. §1321 (2000 ed.
and Supp. V), preempt the common law punitive-damages
remedies at issue here. The company could be saying that
any tort action predicated on an oil spill is preempted
unless §1321 expressly preserves it. Section 1321(b) pro-
tects “the navigable waters of the United States, adjoining
shorelines, . . . [and] natural resources” of the United
States, subject to a saving clause reserving “obligations . . .
under any provision of law for damages to any publicly
owned or privately owned property resulting from a dis-
charge of any oil,” §1321(o). Exxon could be arguing that,
because the saving clause makes no mention of preserving
punitive damages for economic loss, they are preempted.
But so, of course, would a number of other categories of
damages awards that Exxon did not claim were pre-
empted. If Exxon were correct here, there would be pre-
emption of provisions for compensatory damages for
——————
called for an exception to regular practice, we think the record points
the other way.
Of course the Court of Appeals was correct that the case was complex
and significant, so much so, in fact, that the District Court was fairly
required to divide it into four phases, to oversee a punitive-damages
class of 32,000 people, and to manage a motions industry that threat-
ened to halt progress completely. But the complexity of a case does not
eliminate the value of waiver and forfeiture rules, which ensure that
parties can determine when an issue is out of the case, and that litiga-
tion remains, to the extent possible, an orderly progression. “The
reason for the rules is not that litigation is a game, like golf, with
arbitrary rules to test the skill of the players. Rather, litigation is a
‘winnowing process,’ and the procedures for preserving or waiving
issues are part of the machinery by which courts narrow what remains
to be decided.” Poliquin v. Garden Way, Inc., 989 F. 2d 527, 531 (CA1
1993) (Boudin, J.) (citation omitted). The District Court’s sensible
efforts to impose order upon the issues in play and the progress of the
trial deserve our respect.
 Cite as: 554 U. S. ____ (2008) 15

Opinion of the Court

thwarting economic activity or, for that matter, compensa-
tory damages for physical, personal injury from oil spills
or other water pollution. But we find it too hard to con-
clude that a statute expressly geared to protecting “water,”
“shorelines,” and “natural resources” was intended to
eliminate sub silentio oil companies’ common law duties to
refrain from injuring the bodies and livelihoods of private
individuals.
Perhaps on account of its overbreadth, Exxon disclaims
taking this position, admitting that the CWA does not
displace compensatory remedies for consequences of water
pollution, even those for economic harms. See, e.g., Reply
Brief for Petitioners 15–16. This concession, however,
leaves Exxon with the equally untenable claim that the
CWA somehow preempts punitive damages, but not com-
pensatory damages, for economic loss. But nothing in the
statutory text points to fragmenting the recovery scheme
this way, and we have rejected similar attempts to sever
remedies from their causes of action. See Silkwood v.
Kerr-McGee Corp., 464 U. S. 238, 255–256 (1984). All in
all, we see no clear indication of congressional intent to
occupy the entire field of pollution remedies, see, e.g.,
United States v. Texas, 507 U. S. 529, 534 (1993) (“In order
to abrogate a common-law principle, the statute must
speak directly to the question addressed by the common
law” (internal quotation marks omitted)); nor for that
matter do we perceive that punitive damages for private
harms will have any frustrating effect on the CWA reme-
dial scheme, which would point to preemption.7
——————
7 In this respect, this case differs from two invoked by Exxon, Middle-

sex County Sewerage Authority v. National Sea Clammers Assn., 453
U. S. 1 (1981), and Milwaukee v. Illinois, 451 U. S. 304 (1981), where
plaintiffs’ common law nuisance claims amounted to arguments for
effluent-discharge standards different from those provided by the CWA.
Here, Baker’s private claims for economic injury do not threaten similar
interference with federal regulatory goals with respect to “water,”
16 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

IV
Finally, Exxon raises an issue of first impression about
punitive damages in maritime law, which falls within a
federal court’s jurisdiction to decide in the manner of a
common law court, subject to the authority of Congress to
legislate otherwise if it disagrees with the judicial result.
See U. S. Const., Art. III, §2, cl. 1; see, e.g., Edmonds v.
Compagnie Generale Transatlantique, 443 U. S. 256, 259
(1979) (“Admiralty law is judge-made law to a great ex-
tent”); Romero v. International Terminal Operating Co.,
358 U. S. 354, 360–361 (1959) (constitutional grant “em-
powered the federal courts . . . to continue the develop-
ment of [maritime] law”). In addition to its resistance to
derivative liability for punitive damages and its preemp-
tion claim already disposed of, Exxon challenges the size
of the remaining $2.5 billion punitive damages award.
Other than its preemption argument, it does not offer a
legal ground for concluding that maritime law should
never award punitive damages, or that none should be
awarded in this case, but it does argue that this award
exceeds the bounds justified by the punitive damages goal
of deterring reckless (or worse) behavior and the conse-
quently heightened threat of harm. The claim goes to our
understanding of the place of punishment in modern civil
law and reasonable standards of process in administering
punitive law, subjects that call for starting with a brief
account of the history behind today’s punitive damages.
A
The modern Anglo-American doctrine of punitive dam-
ages dates back at least to 1763, when a pair of decisions
by the Court of Common Pleas recognized the availability
of damages “for more than the injury received.” Wilkes v.
Wood, Lofft 1, 18, 98 Eng. Rep. 489, 498 (1763) (Lord Chief
——————

“shorelines,” or “natural resources.”

 Cite as: 554 U. S. ____ (2008) 17

Opinion of the Court

Justice Pratt). In Wilkes v. Wood, one of the foundations
of the Fourth Amendment, exemplary damages awarded
against the Secretary of State, responsible for an unlawful
search of John Wilkes’s papers, were a spectacular £4,000.
See generally Boyd v. United States, 116 U. S. 616, 626
(1886). And in Huckle v. Money, 2 Wils. 205, 206–207, 95
Eng. Rep. 768, 768–769 (K. B. 1763), the same judge who
is recorded in Wilkes gave an opinion upholding a jury’s
award of £300 (against a government officer again) al-
though “if the jury had been confined by their oath to
consider the mere personal injury only, perhaps [£20]
damages would have been thought damages sufficient.”
Awarding damages beyond the compensatory was not,
however, a wholly novel idea even then, legal codes from
ancient times through the Middle Ages having called for
multiple damages for certain especially harmful acts. See,
e.g., Code of Hammurabi §8 (R. Harper ed. 1904) (tenfold
penalty for stealing the goat of a freed man); Statute of
Gloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66
(treble damages for waste). But punitive damages were a
common law innovation untethered to strict numerical
multipliers, and the doctrine promptly crossed the Atlan-
tic, see, e.g., Genay v. Norris, 1 S. C. L. 6, 7 (1784); Coryell
v. Colbaugh, 1 N. J. L. 77 (1791), to become widely ac-
cepted in American courts by the middle of the 19th cen-
tury, see, e.g., Day v. Woodworth, 13 How. 363, 371 (1852).
B
Early common law cases offered various rationales for
punitive-damages awards, which were then generally
dubbed “exemplary,” implying that these verdicts were
justified as punishment for extraordinary wrongdoing, as
in Wilkes’s case. Sometimes, though, the extraordinary
element emphasized was the damages award itself, the
punishment being “for example’s sake,” Tullidge v. Wade,
3 Wils. 18, 19, 95 Eng. Rep. 909 (K. B. 1769) (Lord Chief
18 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

Justice Wilmot), “to deter from any such proceeding for
the future,” Wilkes, supra, at 19, 98 Eng. Rep., at 498–499.
See also Coryell, supra, at 77 (instructing the jury “to give
damages for example’s sake, to prevent such offences in
[the] future”).
A third historical justification, which showed up in some
of the early cases, has been noted by recent commentators,
and that was the need “to compensate for intangible inju-
ries, compensation which was not otherwise available
under the narrow conception of compensatory damages
prevalent at the time.”8 Cooper Industries, Inc. v.
Leatherman Tool Group, Inc., 532 U. S. 424, 437–438, n.
11 (2001) (citing, inter alia, Note, Exemplary Damages in
the Law of Torts, 70 Harv. L. Rev. 517 (1957)). But see
Sebok, What Did Punitive Damages Do? 78 Chi.-Kent
L. Rev. 163, 204 (2003) (arguing that “punitive damages
have never served the compensatory function attributed to
them by the Court in Cooper”). As the century progressed,
and “the types of compensatory damages available to
plaintiffs . . . broadened,” Cooper Industries, supra, at 437,
n. 11, the consequence was that American courts tended to
speak of punitive damages as separate and distinct from
compensatory damages, see, e.g., Day, supra, at 371 (puni-
tive damages “hav[e] in view the enormity of [the] offence
rather than the measure of compensation to the plaintiff”).
See generally 1 L. Schlueter, Punitive Damages §§1.3(C)–
(D), 1.4(A) (5th ed. 2005) (hereinafter Schlueter) (describ-
——————
8 Indeed, at least one 19th-century treatise writer asserted that there

was “no doctrine of authentically ‘punitive’ damages” and that “judg-
ments that ostensibly included punitive damages [were] in reality no
more than full compensation.” Pacific Mut. Life Ins. Co. v. Haslip, 499
U. S. 1, 25 (1991) (SCALIA, J., concurring in judgment) (citing 2 S.
Greenleaf, Law of Evidence 235, n. 2 (13th ed. 1876)). “This view,”
however, “was not widely shared.” Haslip, supra, at 25 (SCALIA, J.,
concurring in judgment) (citing other prominent 19th-century trea-
tises). Whatever the actual importance of the subterfuge for compensa-
tion may have been, it declined.
 Cite as: 554 U. S. ____ (2008) 19

Opinion of the Court

ing the “almost total eclipse of the compensatory function”
in the decades following the 1830s).
Regardless of the alternative rationales over the years,
the consensus today is that punitives are aimed not at
compensation but principally at retribution and deterring
harmful conduct.9 This consensus informs the doctrine in
most modern American jurisdictions, where juries are
customarily instructed on twin goals of punitive awards.
See, e.g., Cal. Jury Instr., Civil, No. 14.72.2 (2008) (“You
must now determine whether you should award punitive
damages against defendant[s] . . . for the sake of example
and by way of punishment”); N. Y. Pattern Jury Instr.,
Civil, No. 2:278 (2007) (“The purpose of punitive damages
is not to compensate the plaintiff but to punish the defen-
dant . . . and thereby to discourage the defendant . . . from
acting in a similar way in the future”). The prevailing rule
in American courts also limits punitive damages to cases
of what the Court in Day, supra, at 371, spoke of as
“enormity,” where a defendant’s conduct is “outrageous,” 4
Restatement §908(2), owing to “gross negligence,” “willful,
wanton, and reckless indifference for the rights of others,”
or behavior even more deplorable, 1 Schlueter §9.3(A).10
——————
9 See, e.g., Moskovitz v. Mount Sinai Medical Center, 69 Ohio St. 3d

638, 651, 635 N. E. 2d 331, 343 (1994) (“The purpose of punitive dam-
ages is not to compensate a plaintiff, but to punish and deter certain
conduct”); Hamilton Development Co. v. Broad Rock Club, Inc., 248 Va.
40, 45, 445 S. E. 2d 140, 143 (1994) (same); Loitz v. Remington Arms
Co., 138 Ill. 2d 404, 414, 563 N. E. 2d 397, 401 (1990) (same); Green Oil
Co. v. Hornsby, 539 So. 2d 218, 222 (Ala. 1989) (same); Masaki v.
General Motors Corp., 71 Haw. 1, 6, 780 P. 2d 566, 570 (1989) (same);
see also Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532
U. S. 424, 432 (2001) (punitive damages are “intended to punish the
defendant and to deter future wrongdoing”); State Farm Mut. Automo-
bile Ins. Co. v. Campbell, 538 U. S. 408, 416 (2003) (“[P]unitive dam-
ages . . . are aimed at deterrence and retribution”); 4 Restatement §908,
Comment a.
10 These standards are from the torts context; different standards

apply to other causes of action.
20 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

Under the umbrellas of punishment and its aim of
deterrence, degrees of relative blameworthiness are ap-
parent. Reckless conduct is not intentional or malicious,
nor is it necessarily callous toward the risk of harming
others, as opposed to unheedful of it. See, e.g., 2 Restate-
ment §500, Comment a, pp. 587–588 (1964) (“Recklessness
may consist of either of two different types of conduct. In
one the actor knows, or has reason to know . . . of facts
which create a high degree of risk of . . . harm to another,
and deliberately proceeds to act, or to fail to act, in con-
scious disregard of, or indifference to, that risk. In the
other the actor has such knowledge, or reason to know, of
the facts, but does not realize or appreciate the high de-
gree of risk involved, although a reasonable man in his
position would do so”). Action taken or omitted in order to
augment profit represents an enhanced degree of punish-
able culpability, as of course does willful or malicious
action, taken with a purpose to injure. See 4 id., §908,
Comment e, p. 466 (1979) (“In determining the amount of
punitive damages, . . . the trier of fact can properly con-
sider not merely the act itself but all the circumstances
including the motives of the wrongdoer . . .”); cf. Alaska
Stat. §09.17.020(g) (2006) (higher statutory limit applies
where conduct was motivated by financial gain and its
adverse consequences were known to the defendant); Ark.
Code Ann. §16–55–208(b) (2005) (statutory limit does not
apply where the defendant intentionally pursued a course
of conduct for the purpose of causing injury or damage).
Regardless of culpability, however, heavier punitive
awards have been thought to be justifiable when wrongdo-
ing is hard to detect (increasing chances of getting away
with it), see, e.g., BMW of North America, Inc. v. Gore, 517
U. S. 559, 582 (1996) (“A higher ratio may also be justified
in cases in which the injury is hard to detect”), or when
the value of injury and the corresponding compensatory
award are small (providing low incentives to sue), see, e.g.,
 Cite as: 554 U. S. ____ (2008) 21

Opinion of the Court

ibid. (“[L]ow awards of compensatory damages may prop-
erly support a higher ratio . . . if, for example, a particu-
larly egregious act has resulted in only a small amount of
economic damages”); 4 Restatement §908, Comment c, p.
465 (“Thus an award of nominal damages . . . is enough to
support a further award of punitive damages, when a tort,
. . . is committed for an outrageous purpose, but no signifi-
cant harm has resulted”). And, with a broadly analogous
object, some regulatory schemes provide by statute for
multiple recovery in order to induce private litigation to
supplement official enforcement that might fall short if
unaided. See, e.g., Reiter v. Sonotone Corp., 442 U. S. 330,
344 (1979) (discussing antitrust treble damages).
C
State regulation of punitive damages varies. A few
States award them rarely, or not at all. Nebraska bars
punitive damages entirely, on state constitutional
grounds. See, e.g., Distinctive Printing and Packaging Co.
v. Cox, 232 Neb. 846, 857, 443 N. W. 2d 566, 574 (1989)
(per curiam). Four others permit punitive damages only
when authorized by statute: Louisiana, Massachusetts,
and Washington as a matter of common law, and New
Hampshire by statute codifying common law tradition.
See Ross v. Conoco, 2002–0299, p. 14 (La. 10/15/02), 828
So. 2d 546, 555; Flesner v. Technical Communications
Corp., 410 Mass. 805, 813, 575 N. E. 2d 1107, 1112 (1991);
Fisher Properties v. Arden-Mayfair, Inc., 106 Wash. 2d
826, 852, 726 P. 2d 8, 23 (1986); N. H. Rev. Stat. Ann.
§507:16 (1997); see also Fay v. Parker, 53 N. H. 342, 382
(1872). Michigan courts recognize only exemplary dam-
ages supportable as compensatory, rather than truly
punitive, see Peisner v. Detroit Free Press, Inc., 104 Mich.
App. 59, 68, 304 N. W. 2d 814, 817 (1981), while Connecti-
cut courts have limited what they call punitive recovery to
the “expenses of bringing the legal action, including attor-
22 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

ney’s fees, less taxable costs,” Larsen Chelsey Realty Co. v.
Larsen, 232 Conn. 480, 517, n. 38, 656 A. 2d 1009, 1029, n.
38 (1995).
As for procedure, in most American jurisdictions the
amount of the punitive award is generally determined by a
jury in the first instance, and that “determination is then
reviewed by trial and appellate courts to ensure that it is
reasonable.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S.
1, 15 (1991); see also Honda Motor Co. v. Oberg, 512 U. S.
415, 421–426 (1994).11 Many States have gone further by
imposing statutory limits on punitive awards, in the form
of absolute monetary caps, see, e.g., Va. Code Ann. §8.01–
38.1 (Lexis 2007) ($350,000 cap), a maximum ratio of
punitive to compensatory damages, see, e.g., Ohio Rev.
Code Ann. §2315.21(D)(2)(a) (Lexis 2001) (2:1 ratio in most
tort cases), or, frequently, some combination of the two,
see, e.g., Alaska Stat. §09.17.020(f) (2006) (greater of 3:1
ratio or $500,000 in most actions). The States that rely on
a multiplier have adopted a variety of ratios, ranging from
5:1 to 1:1.12
Despite these limitations, punitive damages overall are
higher and more frequent in the United States than they
are anywhere else. See, e.g., Gotanda, Punitive Damages:
——————
11 A like procedure was followed in this case, without objection.
12 See, e.g., Mo. Rev. Stat. Ann. §510.265(1) (Vernon Supp. 2008)
(greater of 5:1 or $500,000 in most cases); Ala. Code §§6–11–21(a), (d)
(2005) (greater of 3:1 or $1.5 million in most personal injury suits, and
3:1 or $500,000 in most other actions); N. D. Cent. Code Ann. §32–03.2–
11(4) (Supp. 2007) (greater of 2:1 or $250,000); Colo. Rev. Stat. Ann.
§13–21–102(1)(a) (2007) (1:1).
Oklahoma has a graduated scheme, with the limit on the punitive
award turning on the nature of the defendant’s conduct. See Okla.
Stat., Tit. 23, §9.1(B) (West 2001) (greater of 1:1 or $100,000 in cases
involving “reckless disregard”); §9.1(C) (greater of 2:1, $500,000, or the
financial benefit derived by the defendant, in cases of intentional and
malicious conduct); §9.1(D) (no limit where the conduct is intentional,
malicious, and life threatening).
 Cite as: 554 U. S. ____ (2008) 23

Opinion of the Court

A Comparative Analysis, 42 Colum. J. Transnat’l L. 391,
421 (2004); 2 Schlueter §22.0. In England and Wales,
punitive, or exemplary, damages are available only for
oppressive, arbitrary, or unconstitutional action by gov-
ernment servants; injuries designed by the defendant to
yield a larger profit than the likely cost of compensatory
damages; and conduct for which punitive damages are
expressly authorized by statute. Rookes v. Barnard,
[1964] 1 All E. R. 367, 410–411 (H. L.). Even in the cir-
cumstances where punitive damages are allowed, they are
subject to strict, judicially imposed guidelines. The Court
of Appeal in Thompson v. Commissioner of Police of Me-
tropolis, [1998] Q. B. 498, 518, said that a ratio of more
than three times the amount of compensatory damages
will rarely be appropriate; awards of less than £5,000 are
likely unnecessary; awards of £25,000 should be excep-
tional; and £50,000 should be considered the top.
For further contrast with American practice, Canada
and Australia allow exemplary damages for outrageous
conduct, but awards are considered extraordinary and
rarely issue. See 2 Schlueter §§22.1(B), (D). Noncompen-
satory damages are not part of the civil-code tradition and
thus unavailable in such countries as France, Germany,
Austria, and Switzerland. See id., §§22.2(A)–(C), (E). And
some legal systems not only decline to recognize punitive
damages themselves but refuse to enforce foreign punitive
judgments as contrary to public policy. See, e.g., Gotanda,
Charting Developments Concerning Punitive Damages: Is
the Tide Changing? 45 Colum. J. Transnat’l L. 507, 514,
518, 528 (2007) (noting refusals to enforce judgments by
Japanese, Italian, and German courts, positing that such
refusals may be on the decline, but concluding, “American
parties should not anticipate smooth sailing when seeking
to have a domestic punitive damages award recognized
and enforced in other countries”).
24 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

D

American punitive damages have been the target of
audible criticism in recent decades, see, e.g., Note, Devel-
opments, The Paths of Civil Litigation, 113 Harv. L. Rev.
1783, 1784–1788 (2000) (surveying criticism), but the most
recent studies tend to undercut much of it, see id., at
1787–1788. A survey of the literature reveals that discre-
tion to award punitive damages has not mass-produced
runaway awards, and although some studies show the
dollar amounts of punitive-damages awards growing over
time, even in real terms,13 by most accounts the median
ratio of punitive to compensatory awards has remained

——————
13 See, e.g., RAND Institute for Civil Justice, D. Hensler & E. Moller,

Trends in Punitive Damages, table 2 (Mar. 1995) (finding an increase
in median awards between the early 1980s and the early 1990s in San
Francisco and Cook Counties); Moller, Pace, & Carroll, Punitive Dam-
ages in Financial Injury Jury Verdicts, 28 J. Legal Studies 283, 307
(1999) (hereinafter Financial Injury Jury Verdicts) (studying jury
verdicts in “Financial Injury” cases in six States and Cook County,
Illinois, and finding a marked increase in the median award between
the late 1980s and the early 1990s); M. Peterson, S. Sarma, & M.
Shanley, Punitive Damages: Empirical Findings 15 (RAND Institute for
Civil Justice 1987) (hereinafter Punitive Damages: Empirical Findings)
(finding that the median punitive award increased nearly 4 times in
San Francisco County between the early 1960s and the early 1980s,
and 43 times in Cook County over the same period). But see T.
Eisenberg et al., Juries, Judges, and Punitive Damages: Empirical
Analyses Using the Civil Justice Survey of State Courts 1992, 1996,
and 2001 Data, 3 J. of Empirical Legal Studies 263, 278 (2006) (herein-
after Juries, Judges, and Punitive Damages) (analyzing Bureau of
Justice Statistics data from 1992, 1996, and 2001, and concluding that
“[n]o statistically significant variation exists in the inflation-adjusted
punitive award level over the three time periods”); Dept. of Justice,
Bureau of Justice Statistics, T. Cohen, Punitive Damage Awards in
Large Counties, 2001, p. 8 (Mar. 2005) (hereinafter Cohen) (compiling
data from the Nation’s 75 most populous counties and finding that the
median punitive damage award in civil jury trials decreased between
1992 and 2001).
 Cite as: 554 U. S. ____ (2008) 25

Opinion of the Court

less than 1:1.14 Nor do the data substantiate a marked
increase in the percentage of cases with punitive awards
over the past several decades.15 The figures thus show an
overall restraint and suggest that in many instances a

——————
14 See, e.g., Juries, Judges, and Punitive Damages 269 (reporting

median ratios of 0.62:1 in jury trials and 0.66:1 in bench trials using
the Bureau of Justice Statistics data from 1992, 1996, and 2001);
Vidmar & Rose, Punitive Damages by Juries in Florida, 38 Harv. J.
Legis. 487, 492 (2001) (studying civil cases in Florida state courts
between 1989 and 1998 and finding a median ratio of 0.67:1). But see
Financial Injury Jury Verdicts 307 (finding a median ratio of 1.4:1 in
“financial injury” cases in the late 1980s and early 1990s).
15 See, e.g., Cohen 8 (compiling data from the Nation’s 75 most popu-

lous counties, and finding that in jury trials where the plaintiff pre-
vailed, the percentage of cases involving punitive awards was 6.1% in
1992 and 5.6% in 2001); Financial Injury Jury Verdicts 307 (finding a
statistically significant decrease in the percentage of verdicts in “finan-
cial injury” cases that include a punitive damage award, from 15.8% in
the early 1980s to 12.7% in the early 1990s). But see Punitive Dam-
ages: Empirical Findings 9 (finding an increase in the percentage of
civil trials resulting in punitive damage awards in San Francisco and
Cook Counties between 1960 and 1984).
One might posit that ill effects of punitive damages are clearest not
in actual awards but in the shadow that the punitive regime casts on
settlement negotiations and other litigation decisions. See, e.g., Finan-
cial Injury Jury Verdicts 287; Polinsky, Are Punitive Damages Really
Insignificant, Predictable, and Rational? 26 J. Legal Studies 663, 664–
671 (1997). But here again the data have not established a clear
correlation. See, e.g., Eaton, Mustard, & Talarico, The Effects of
Seeking Punitive Damages on the Processing of Tort Claims, 34
J. Legal Studies 343, 357, 353–354, 365 (2005) (studying data from six
Georgia counties and concluding that “the decision to seek punitive
damages has no statistically significant impact” on “whether a case
that was disposed was done so by trial or by some other procedure,
including settlement,” or “whether a case that was disposed by means
other than a trial was more likely to have been settled”); Kritzer &
Zemans, The Shadow of Punitives, 1998 Wis. L. Rev. 157, 160 (1998)
(noting the theory that punitive damages cast a large shadow over
settlement negotiations, but finding that “with perhaps one exception,
what little systematic evidence we could find does not support the
notion” (emphasis deleted)).
26 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

high ratio of punitive to compensatory damages is sub-
stantially greater than necessary to punish or deter.
The real problem, it seems, is the stark unpredictability
of punitive awards. Courts of law are concerned with
fairness as consistency, and evidence that the median
ratio of punitive to compensatory awards falls within a
reasonable zone, or that punitive awards are infrequent,
fails to tell us whether the spread between high and low
individual awards is acceptable. The available data sug-
gest it is not. A recent comprehensive study of punitive
damages awarded by juries in state civil trials found a
median ratio of punitive to compensatory awards of just
0.62:1, but a mean ratio of 2.90:1 and a standard deviation
of 13.81. Juries, Judges, and Punitive Damages 269.16
Even to those of us unsophisticated in statistics, the
thrust of these figures is clear: the spread is great, and the
outlier cases subject defendants to punitive damages that
dwarf the corresponding compensatories. The distribution
of awards is narrower, but still remarkable, among puni-
tive damages assessed by judges: the median ratio is
0.66:1, the mean ratio is 1.60:1, and the standard devia-
tion is 4.54. Ibid. Other studies of some of the same data
show that fully 14% of punitive awards in 2001 were
greater than four times the compensatory damages, see
Cohen 5, with 18% of punitives in the 1990s more than
trebling the compensatory damages, see Ostrom, Rottman,
& Goerdt, A Step Above Anecdote: A Profile of the Civil

——————
16 This study examined “the most representative sample of state court

trials in the United States,” involving “tort, contract, and property
cases disposed of by trial in fiscal year 1991–1992 and then calendar
years 1996 and 2001. The three separate data sets cover state courts of
general jurisdiction in a random sample of 46 of the 75 most populous
counties in the United States.” Juries, Judges, and Punitive Damages
267. The information was “gathered directly” from state-court clerks’
offices and the study did “not rely on litigants or third parties to re-
port.” Ibid.
 Cite as: 554 U. S. ____ (2008) 27

Opinion of the Court

Jury in the 1990s, 79 Judicature 233, 240 (1996). And a
study of “financial injury” cases using a different data set
found that 34% of the punitive awards were greater than
three times the corresponding compensatory damages.
Financial Injury Jury Verdicts 333.
Starting with the premise of a punitive-damages regime,
these ranges of variation might be acceptable or even
desirable if they resulted from judges’ and juries’ refining
their judgments to reach a generally accepted optimal
level of penalty and deterrence in cases involving a wide
range of circumstances, while producing fairly consistent
results in cases with similar facts. Cf. TXO Production
Corp. v. Alliance Resources Corp., 509 U. S. 443, 457–458
(1993) (plurality opinion). But anecdotal evidence sug-
gests that nothing of that sort is going on. One of our own
leading cases on punitive damages, with a $4 million
verdict by an Alabama jury, noted that a second Alabama
case with strikingly similar facts produced “a comparable
amount of compensatory damages” but “no punitive dam-
ages at all.” See Gore, 517 U. S., at 565, n. 8. As the
Supreme Court of Alabama candidly explained, “the dis-
parity between the two jury verdicts . . . [w]as a reflection
of the inherent uncertainty of the trial process.” BMW of
North America, Inc. v. Gore, 646 So. 2d 619, 626 (1994)
(per curiam). We are aware of no scholarly work pointing
to consistency across punitive awards in cases involving
similar claims and circumstances.17
——————
17 The Court is aware of a body of literature running parallel to anec-

dotal reports, examining the predictability of punitive awards by
conducting numerous “mock juries,” where different “jurors” are con-
fronted with the same hypothetical case. See, e.g., C. Sunstein, R.
Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How
Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating
About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000);
Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of
Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage
Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, &
28 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

E

The Court’s response to outlier punitive damages
awards has thus far been confined by claims at the consti-
tutional level, and our cases have announced due process
standards that every award must pass. See, e.g., State
Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408,
425 (2003); Gore, 517 U. S., at 574–575. Although “we
have consistently rejected the notion that the constitu-
tional line is marked by a simple mathematical formula,”
id., at 582, we have determined that “few awards exceed-
ing a single-digit ratio between punitive and compensatory
damages, to a significant degree, will satisfy due process,”
State Farm, 538 U. S., at 425; “[w]hen compensatory
damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost
limit of the due process guarantee,” ibid.
Today’s enquiry differs from due process review because
the case arises under federal maritime jurisdiction, and
we are reviewing a jury award for conformity with mari-
time law, rather than the outer limit allowed by due proc-
ess; we are examining the verdict in the exercise of federal
maritime common law authority, which precedes and
should obviate any application of the constitutional stan-
dard. Our due process cases, on the contrary, have all
involved awards subject in the first instance to state law.
See, e.g., id., at 414 (fraud and intentional infliction of
emotional distress under Utah law); Gore, supra, at 563,
and n. 3 (fraud under Alabama law); TXO, supra, at 452
(plurality opinion) (slander of title under West Virginia
law); Haslip, 499 U. S., at 7 (fraud under Alabama law).
These, as state-law cases, could provide no occasion to
consider a “common-law standard of excessiveness,”
——————

Schkade, Assessing Punitive Damages (with Notes on Cognition and

Valuation in Law), 107 Yale L. J. 2071 (1998). Because this research

was funded in part by Exxon, we decline to rely on it.

 Cite as: 554 U. S. ____ (2008) 29

Opinion of the Court

Browning-Ferris Industries, 492 U. S., at 279, and the only
matter of federal law within our appellate authority was
the constitutional due process issue.
Our review of punitive damages today, then, considers
not their intersection with the Constitution, but the desir-
ability of regulating them as a common law remedy for
which responsibility lies with this Court as a source of
judge-made law in the absence of statute. Whatever may
be the constitutional significance of the unpredictability of
high punitive awards, this feature of happenstance is in
tension with the function of the awards as punitive, just
because of the implication of unfairness that an eccentri-
cally high punitive verdict carries in a system whose
commonly held notion of law rests on a sense of fairness in
dealing with one another. Thus, a penalty should be
reasonably predictable in its severity, so that even Justice
Holmes’s “bad man” can look ahead with some ability to
know what the stakes are in choosing one course of action
or another. See The Path of the Law, 10 Harv. L. Rev.
457, 459 (1897). And when the bad man’s counterparts
turn up from time to time, the penalty scheme they face
ought to threaten them with a fair probability of suffering
in like degree when they wreak like damage. Cf. Koon v.
United States, 518 U. S. 81, 113 (1996) (noting the need “to
reduce unjustified disparities” in criminal sentencing “and
so reach toward the evenhandedness and neutrality that
are the distinguishing marks of any principled system of
justice”). The common sense of justice would surely bar
penalties that reasonable people would think excessive for
the harm caused in the circumstances.
F
1
With that aim ourselves, we have three basic ap-
proaches to consider, one verbal and two quantitative. As
mentioned before, a number of state courts have settled on
30 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

criteria for judicial review of punitive-damages awards
that go well beyond traditional “shock the conscience” or
“passion and prejudice” tests. Maryland, for example, has
set forth a nonexclusive list of nine review factors under
state common law that include “degree of heinousness,”
“the deterrence value of [the award],” and “[w]hether [the
punitive award] bears a reasonable relationship to the
compensatory damages awarded.” Bowden v. Caldor, Inc.,
350 Md. 4, 25–39, 710 A. 2d 267, 277–284 (1998). Ala-
bama has seven general criteria, such as “actual or likely
harm [from the defendant’s conduct],” “degree of repre-
hensibility,” and “[i]f the wrongful conduct was profitable
to the defendant.” Green Oil Co. v. Hornsby, 539 So. 2d
218, 223–224 (1989) (internal quotation marks omitted).
But see McClain v. Metabolife Int’l, Inc., 259 F. Supp. 2d
1225, 1236 (ND Ala. 2003) (noting but not deciding claim
that post-trial review under Green Oil “is unconstitution-
ally vague and inadequate”).
These judicial review criteria are brought to bear after
juries render verdicts under instructions offering, at best,
guidance no more specific for reaching an appropriate
penalty. In Maryland, for example, which allows punitive
damages for intentional torts and conduct characterized
by “actual malice,” U. S. Gypsum Co. v. Mayor and City
Council of Baltimore, 336 Md. 145, 185, 647 A. 2d 405,
424–425 (1994), juries may be instructed that
“An award for punitive damages should be:
“(1) In an amount that will deter the defendant and
others from similar conduct.
“(2) Proportionate to the wrongfulness of the defen-
dant’s conduct and the defendant’s ability to pay.
“(3) But not designed to bankrupt or financially de-
stroy a defendant.” Md. Pattern Jury Instr., Civil, No.
10:13 (4th ed. 2007).
In Alabama, juries are instructed to fix an amount after
 Cite as: 554 U. S. ____ (2008) 31

Opinion of the Court

considering “the character and degree of the wrong as
shown by the evidence in the case, and the necessity of
preventing similar wrongs.” 1 Ala. Pattern Jury Instr.,
Civil, No. §23.21 (Supp. 2007).
These examples leave us skeptical that verbal formula-
tions, superimposed on general jury instructions, are the
best insurance against unpredictable outliers. Instruc-
tions can go just so far in promoting systemic consistency
when awards are not tied to specifically proven items of
damage (the cost of medical treatment, say), and although
judges in the States that take this approach may well
produce just results by dint of valiant effort, our experi-
ence with attempts to produce consistency in the analo-
gous business of criminal sentencing leaves us doubtful
that anything but a quantified approach will work. A
glance at the experience there will explain our skepticism.
The points of similarity are obvious. “[P]unitive dam-
ages advance the interests of punishment and deterrence,
which are also among the interests advanced by the crimi-
nal law.” Browning-Ferris Industries, 492 U. S., at 275.18
See also 1977 Restatement §908, Comment a, at 464
(purposes of punitive damages are “the same” as “that of a
fine imposed after a conviction of a crime”); 18 U. S. C.
§3553(a)(2) (requiring sentencing courts to consider, inter
——————
18 This observation is not at odds with the holding in Browning-

Ferris, that the Excessive Fines Clause of the Eighth Amendment does
not apply to punitive damages. See Browning-Ferris, 492 U. S., at 275.
That conclusion did not reject the punitive nature of the damages, see
ibid., but rested entirely upon our conviction that “the concerns that
animate the Eighth Amendment” were about “plac[ing] limits on the
steps a government may take against an individual,” ibid. Thus the
Clause “does not constrain an award of money damages in a civil suit
when the government neither has prosecuted the action nor has any
right to receive a share of the damages awarded.” Id., at 264. We
noted the similarities of purpose between criminal penalties and
punitive damages and distinguished the two on the basis of their
differing levels of state involvement. See id., at 275.
32 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

alia, “the need for the sentence imposed . . . to provide just
punishment for the offense” and “to afford adequate deter-
rence to criminal conduct”); United States Sentencing
Commission, Guidelines Manual §1A1.1, comment. (Nov.
2007).
It is instructive, then, that in the last quarter century
federal sentencing rejected an “indeterminate” system,
with relatively unguided discretion to sentence within a
wide range, under which “similarly situated offenders
were sentenced [to], and did actually serve, widely dispa-
rate sentences.”19 Instead it became a system of detailed
guidelines tied to exactly quantified sentencing results,
under the authority of the Sentencing Reform Act of 1984,
18 U. S. C. §3551 et seq. (2000 ed. and Supp. V).
The importance of this for us is that in the old federal
sentencing system of general standards the cohort of even
the most seasoned judicial penalty-givers defied consis-
tency. Judges and defendants alike were “[l]eft at large,
wandering in deserts of uncharted discretion,” M. Frankel,
Criminal Sentences: Law Without Order 7–8 (1973), which
is very much the position of those imposing punitive dam-
ages today, be they judges or juries, except that they lack
even a statutory maximum; their only restraint beyond a
core sense of fairness is the due process limit. This federal
criminal law development, with its many state parallels,
strongly suggests that as long “as there are no punitive-
damages guidelines, corresponding to the federal and state
sentencing guidelines, it is inevitable that the specific
amount of punitive damages awarded whether by a judge
or by a jury will be arbitrary.” Mathias v. Accor Economy
Lodging, Inc., 347 F. 3d 672, 678 (CA7 2003).

——————
19 Nagel, Structuring Sentencing Discretion: The New Federal Sen-

tencing Guidelines, 80 J. Crim. L. & C. 883, 895–899 (1990) (citing
studies and congressional hearings).
 Cite as: 554 U. S. ____ (2008) 33

Opinion of the Court

2
This is why our better judgment is that eliminating
unpredictable outlying punitive awards by more rigorous
standards than the constitutional limit will probably have
to take the form adopted in those States that have looked
to the criminal-law pattern of quantified limits. One
option would be to follow the States that set a hard dollar
cap on punitive damages, see supra, at 22, a course that
arguably would come closest to the criminal law, rather
like setting a maximum term of years. The trouble is,
though, that there is no “standard” tort or contract injury,
making it difficult to settle upon a particular dollar figure
as appropriate across the board. And of course a judicial
selection of a dollar cap would carry a serious drawback; a
legislature can pick a figure, index it for inflation, and
revisit its provision whenever there seems to be a need for
further tinkering, but a court cannot say when an issue
will show up on the docket again. See, e.g., Jones &
Laughlin Steel Corp. v. Pfeifer, 462 U. S. 523, 546–547
(1983) (declining to adopt a fixed formula to account for
inflation in discounting future wages to present value, in
light of the unpredictability of inflation rates and varia-
tion among lost-earnings cases).
The more promising alternative is to leave the effects of
inflation to the jury or judge who assesses the value of
actual loss, by pegging punitive to compensatory damages
using a ratio or maximum multiple. See, e.g., 2 ALI En-
terprise Responsibility for Personal Injury: Reporters’
Study 258 (1991) (hereinafter ALI Reporters’ Study)
(“[T]he compensatory award in a successful case should be
the starting point in calculating the punitive award”);
ABA, Report of Special Comm. on Punitive Damages,
Section of Litigation, Punitive Damages: A Constructive
Examination 64–66 (1986) (recommending a presumptive
punitive-to-compensatory damages ratio). As the earlier
canvass of state experience showed, this is the model
34 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

many States have adopted, see supra, at 22, and n. 12, and
Congress has passed analogous legislation from time to
time, as for example in providing treble damages in anti-
trust, racketeering, patent, and trademark actions, see 15
U. S. C. §§15, 1117 (2000 ed. and Supp. V); 18 U. S. C.
§1964(c); 35 U. S. C. §284.20 And of course the potential
relevance of the ratio between compensatory and punitive
damages is indisputable, being a central feature in our
due process analysis. See, e.g., State Farm, 538 U. S., at
425; Gore, 517 U. S., at 580.
Still, some will murmur that this smacks too much of
policy and too little of principle. Cf. Moviecolor Ltd. v.
Eastman Kodak Co., 288 F. 2d 80, 83 (CA2 1961). But the
answer rests on the fact that we are acting here in the
position of a common law court of last review, faced with a
perceived defect in a common law remedy. Traditionally,
courts have accepted primary responsibility for reviewing
punitive damages and thus for their evolution, and if, in
the absence of legislation, judicially derived standards
leave the door open to outlier punitive-damages awards, it
is hard to see how the judiciary can wash its hands of a
problem it created, simply by calling quantified standards
legislative. See State Farm, supra, at 438 (GINSBURG, J.,
dissenting) (“In a legislative scheme or a state high court’s
design to cap punitive damages, the handiwork in setting
single-digit and 1-to-1 benchmarks could hardly be ques-
tioned”); 2 ALI Reporters’ Study 257 (recommending adop-
tion of ratio, “probably legislatively, although possibly
judicially”).
History certainly is no support for the notion that judges
——————
20 There are State counterparts of these federal statutes. See, e.g.,

Conn. Gen. Stat. §52–560 (2007) (cutting or destroying a tree intended
for use as a Christmas tree punishable by a payment to the injured
party of five times the tree’s value); Mass. Gen. Laws, ch. 91, §59A
(West 2006) (discharging crude oil into a lake, river, tidal water, or flats
subjects a defendant to double damages in tort).
 Cite as: 554 U. S. ____ (2008) 35

Opinion of the Court

cannot use numbers. The 21-year period in the rule
against perpetuities was a judicial innovation, see, e.g.,
Cadell v. Palmer, 1 Clark & Finnelly 372, 6 Eng. Rep. 956,
963 (H. L. 1833), and so were exact limitations periods for
civil actions, sometimes borrowing from statutes, see C.
Preston & G. Newsom, Limitation of Actions 241–242 (2d
ed. 1943), but often without any statutory account to draw
on, see, e.g., 1 H. Wood, Limitations of Actions §1, p. 4 (4th
ed. 1916). For more examples, see 1 W. Blackstone, Com-
mentaries on the Laws of England 451 (1765) (listing
other common law age cut-offs with no apparent statutory
basis). And of course, adopting an admiralty-law ratio is
no less judicial than picking one as an outer limit of con-
stitutionality for punitive awards. See State Farm, supra,
at 425.21
——————
21 To the extent that JUSTICE STEVENS suggests that the very subject
of remedies should be treated as congressional in light of the number of
statutes dealing with remedies, see post, at 1–4 (opinion concurring in
part and dissenting in part), we think modern-day maritime cases are
to the contrary and support judicial action to modify a common law
landscape largely of our own making. The character of maritime law as
a mixture of statutes and judicial standards, “an amalgam of tradi-
tional common-law rules, modifications of those rules, and newly
created rules,” East River S. S. Corp. v. Transamerica Delaval Inc., 476
U. S. 858, 865 (1986), accounts for the large part we have taken in
working out the governing maritime tort principles. See, e.g., ibid.
(“recognizing products liability . . . as part of the general maritime
law”); American Export Lines, Inc. v. Alvez, 446 U. S. 274 (1980) (recog-
nizing cause of action for loss of consortium); Moragne v. States Marine
Lines, Inc., 398 U. S. 375 (1970) (recognizing cause of action for wrong-
ful death). And for the very reason that our exercise of maritime
jurisdiction has reached to creating new causes of action on more than
one occasion, it follows that we have a free hand in dealing with an
issue that is “entirely a remedial matter.” Id., at 382. The general
observation we made in United States v. Reliable Transfer Co., 421
U. S. 397, 409 (1975), when we abrogated the admiralty rule of divided
damages in favor of proportional liability, is to the point here. It is
urged “that the creation of a new rule of damages in maritime collision
cases is a task for Congress and not for this Court. But the Judiciary
36 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

Although the legal landscape is well populated with
examples of ratios and multipliers expressing policies of
retribution and deterrence, most of them suffer from
features that stand in the way of borrowing them as para-
digms of reasonable limitations suited for application to
——————

has traditionally taken the lead in formulating flexible and fair reme-
dies in the law maritime, and Congress has largely left to this Court

the responsibility for fashioning the controlling rules of admiralty law”

(internal quotation marks and footnote omitted). See also Exxon Co.,

U. S. A. v. Sofec, Inc., 517 U. S. 830 (1996) (holding that proportional-
liability rule applies only to defendants proximately causing an injury);
McDermott, Inc. v. AmClyde, 511 U. S. 202 (1994) (adopting proportion-
ate-fault rule for calculation of nonsettling maritime tort defendants’
compensatory liability).
Indeed, the compensatory remedy sought in this case is itself entirely
a judicial creation. The common law traditionally did not compensate
purely economic harms, unaccompanied by injury to person or property.
See K. Abraham, Forms and Functions of Tort Law 247–248 (3d ed.
2007); see, e.g., Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449
(1925) (imposing rule in maritime context). But “[t]he courts have . . .
occasionally created exceptions to the rule. Perhaps the most notewor-
thy involve cases in which there has been natural-resource damage for
which no party seems to have a cause of action.” Abraham, supra, at
249 (discussing Union Oil Co. v. Oppen, 501 F. 2d 558 (CA9 1974)
(recognizing exception for commercial fishermen)). We raise the point
not to express agreement or disagreement with the Ninth Circuit rule
but to illustrate the entirely judge-made nature of the landscape we are
surveying.
To be sure, “Congress retains superior authority in these matters,”
and “[i]n this era, an admiralty court should look primarily to these
legislative enactments for policy guidance.” Miles v. Apex Marine
Corp., 498 U. S. 19, 27 (1990). But we may not slough off our responsi-
bilities for common law remedies because Congress has not made a first
move, and the absence of federal legislation constraining punitive
damages does not imply a congressional decision that there should be
no quantified rule, cf. Rapanos v. United States, 547 U. S. 715, 749
(2006) (plurality opinion) (noting the Court’s “oft-expressed skepticism
towards reading the tea leaves of congressional inaction”). Where there
is a need for a new remedial maritime rule, past precedent argues for
our setting a judicially derived standard, subject of course to congres-
sional revision. See, e.g., Reliable Transfer, supra, at 409.
 Cite as: 554 U. S. ____ (2008) 37

Opinion of the Court

this case. While a slim majority of the States with a ratio
have adopted 3:1, others see fit to apply a lower one, see,
e.g., Colo. Rev. Stat. Ann. §13–21–102(1)(a) (2007) (1:1);
Ohio Rev. Code Ann. §2315.21(D)(2)(a) (Lexis 2005) (2:1),
and a few have gone higher, see, e.g., Mo. Ann. Stat.
§510.265(1) (Supp. 2008) (5:1). Judgments may differ
about the weight to be given to the slight majority of 3:1
States, but one feature of the 3:1 schemes dissuades us
from selecting it here. With a few statutory exceptions,
generally for intentional infliction of physical injury or
other harm, see, e.g, Ala. Code §6–11–21(j) (2005); Ark.
Code Ann. §16–55–208(b) (2005), the States with 3:1 ratios
apply them across the board (as do other States using
different fixed multipliers). That is, the upper limit is not
directed to cases like this one, where the tortious action
was worse than negligent but less than malicious,22 expos-
ing the tortfeasor to certain regulatory sanctions and
inevitable damage actions;23 the 3:1 ratio in these States
also applies to awards in quite different cases involving
some of the most egregious conduct, including malicious
behavior and dangerous activity carried on for the purpose
of increasing a tortfeasor’s financial gain.24 We confront,
——————
22 Although the jury heard evidence that Exxon may have felt con-

strained not to give Hazelwood a shoreside assignment because of a
concern that such a course might open it to liabilities in personnel
litigation the employee might initiate, see, e.g., App. F to Pet. for Cert.
256a, such a consideration, if indeed it existed, hardly constitutes
action taken with a specific purpose to cause harm at the expense of an
established duty.
23 We thus treat this case categorically as one of recklessness, for that

was the jury’s finding. But by making a point of its contrast with
cases falling within categories of even greater fault we do not mean
to suggest that Exxon’s and Hazelwood’s failings were less than
reprehensible.
24 Two of the States with 3:1 ratios do provide for slightly larger

awards in actions involving this type of strategic financial wrongdoing,
but the exceptions seem to apply to only a subset of those cases. See
Alaska Stat. §09.17.020(g) (2006) (where the defendant’s conduct was
38 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

instead, a case of reckless action, profitless to the tortfea-
sor, resulting in substantial recovery for substantial in-
jury. Thus, a legislative judgment that 3:1 is a reasonable
limit overall is not a judgment that 3:1 is a reasonable
limit in this particular type of case.
For somewhat different reasons, the pertinence of the
2:1 ratio adopted by treble-damages statutes (offering
compensatory damages plus a bounty of double that
amount) is open to question. Federal treble-damages
statutes govern areas far afield from maritime concerns
(not to mention each other);25 the relevance of the govern-
ing rules in patent or trademark cases, say, is doubtful at
best. And in some instances, we know that the considera-
tions that went into making a rule have no application
here. We know, for example, that Congress devised the
treble damages remedy for private antitrust actions with
an eye to supplementing official enforcement by inducing
private litigation, which might otherwise have been too
rare if nothing but compensatory damages were available
at the end of the day. See, e.g., Reiter, 442 U. S., at 344.
That concern has no traction here, in this case of stagger-
——————
motivated by financial gain and the adverse consequences of the
conduct were actually known by the defendant or the person responsi-
ble for making policy decisions on behalf of the defendant, the normal
limit is replaced by the greater of four times the compensatory dam-
ages, four times the aggregate financial gain the defendant received as
a result of its misconduct, or $7 million); Fla. Stat. §§768.73(1)(b), (c)
(2007) (normal limit replaced by greater of 4:1 or $2 million where
defendant’s wrongful conduct was motivated solely by unreasonable
financial gain and the unreasonably dangerous nature of the conduct,
together with the high likelihood of injury, was actually known by the
managing agent, director, officer, or other person responsible for
making policy decisions on behalf of the defendant).
25 See, e.g., 15 U. S. C. §15 (antitrust); 18 U. S. C. §1964 (racketeer-

ing); 35 U. S. C. §284 (patent); 15 U. S. C. §1117 (trademark) (2000 ed.
and Supp. V); 7 U. S. C. §2564 (plant variety protections); 12 U. S. C.
§2607 (real estate settlement antikickback provision); 15 U. S. C.
§1693f (consumer credit protection).
 Cite as: 554 U. S. ____ (2008) 39

Opinion of the Court

ing damage inevitably provoking governmental enforcers
to indict and any number of private parties to sue. To
take another example, although 18 U. S. C. §3571(d)
provides for a criminal penalty of up to twice a crime
victim’s loss, this penalty is an alternative to other specific
fine amounts which courts may impose at their option, see
§§3571(a)–(c), a fact that makes us wary of reading too
much into Congress’s choice of ratio in one provision.
State environmental treble-damages schemes offer little
more support: for one thing, insofar as some appear to
punish even negligence, see, e.g., Mass. Gen. Laws, ch.
130, §27, while others target only willful conduct, see, e.g.,
Del. Code Ann., Tit. 25, §1401 (1989), some undershoot
and others may overshoot the target here. For another,
while some States have chosen treble damages, others
punish environmental harms at other multiples. See, e.g.,
N. H. Rev. Stat. Ann. §146–A:10 (2005) (damages of one-
and-a-half times the harm caused to private property by
oil discharge); Minn. Stat. Ann. §115A.99 (2005) (civil
penalty of 2 to 5 times the costs of removing unlawful solid
waste). All in all, the legislative signposts do not point the
way clearly to 2:1 as a sound indication of a reasonable
limit.
3
There is better evidence of an accepted limit of reason-
able civil penalty, however, in several studies mentioned
before, showing the median ratio of punitive to compensa-
tory verdicts, reflecting what juries and judges have con-
sidered reasonable across many hundreds of punitive
awards. See supra, at 25–26, and n. 14. We think it is
fair to assume that the greater share of the verdicts stud-
ied in these comprehensive collections reflect reasonable
judgments about the economic penalties appropriate in
their particular cases.
These studies cover cases of the most as well as the least
40 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

blameworthy conduct triggering punitive liability, from
malice and avarice, down to recklessness, and even gross
negligence in some jurisdictions. The data put the median
ratio for the entire gamut of circumstances at less than
1:1, see supra, at 25–26, and n. 14, meaning that the
compensatory award exceeds the punitive award in most
cases. In a well-functioning system, we would expect that
awards at the median or lower would roughly express
jurors’ sense of reasonable penalties in cases with no
earmarks of exceptional blameworthiness within the
punishable spectrum (cases like this one, without inten-
tional or malicious conduct, and without behavior driven
primarily by desire for gain, for example) and cases (again
like this one) without the modest economic harm or odds of
detection that have opened the door to higher awards. It
also seems fair to suppose that most of the unpredictable
outlier cases that call the fairness of the system into ques-
tion are above the median; in theory a factfinder’s delib-
eration could go awry to produce a very low ratio, but we
have no basis to assume that such a case would be more
than a sport, and the cases with serious constitutional
issues coming to us have naturally been on the high side,
see, e.g., State Farm, 538 U. S., at 425 (ratio of 145:1);
Gore, 517 U. S., at 582 (ratio of 500:1). On these assump-
tions, a median ratio of punitive to compensatory damages
of about 0.65:126 probably marks the line near which cases
like this one largely should be grouped. Accordingly, given
the need to protect against the possibility (and the disrup-
tive cost to the legal system) of awards that are unpredict-
able and unnecessary, either for deterrence or for meas-
ured retribution, we consider that a 1:1 ratio, which is
above the median award, is a fair upper limit in such
maritime cases.27
——————
26 See supra, at 25, n. 14, for the spread among studies.
27 The reasons for this conclusion answer JUSTICE STEVENS’s sugges-
 Cite as: 554 U. S. ____ (2008) 41

Opinion of the Court

The provision of the CWA respecting daily fines con-
firms our judgment that anything greater would be exces-
——————
tion, post, at 7–8, that there is an adequate restraint in appellate
abuse-of-discretion review of a trial judge’s own review of a punitive
jury award (or of a judge’s own award in nonjury cases). We cannot see
much promise of a practical solution to the outlier problem in this
possibility. JUSTICE STEVENS would find no abuse of discretion in
allowing the $2.5 billion balance of the jury’s punitive verdict here, and
yet that is about five times the size of the award that jury practice and
our judgment would signal as reasonable in a case of this sort.
The dissent also suggests that maritime tort law needs a quantified
limit on punitive awards less than tort law generally because punitives
may mitigate maritime law’s less generous scheme of compensatory
damages. Post, at 4–6. But the instructions in this case did not allow
the jury to set punitives on the basis of any such consideration, see
Jury Instruction No. 21, App. to Brief in Opposition 12a (“The purposes
for which punitive damages are awarded are: (1) to punish a wrongdoer
for extraordinary misconduct; and (2) to warn defendants and others
and deter them from doing the same”), and the size of the underlying
compensatory damages does not bespeak economic inadequacy; the
case, then, does not support an argument that maritime compensatory
awards need supplementing.
And this Court has long held that “[p]unitive damages by definition
are not intended to compensate the injured party, but rather to punish
the tortfeasor . . . and to deter him and others from similar extreme
conduct.” Newport v. Fact Concerts, Inc., 453 U. S. 247, 266–267 (1981);
see supra, at 18–19. Indeed, any argument for more generous punitive
damages in maritime cases would call into question the maritime
applicability of the constitutional limit on punitive damages as now
understood, for we have tied that limit to a conception of punitive
damages awarded entirely for a punitive, not quasi-compensatory,
purpose. See, e.g., Philip Morris USA v. Williams, 549 U. S. 346, 352
(2007) (“This Court has long made clear that ‘[p]unitive damages may
properly be imposed to further a State’s legitimate interests in punish-
ing unlawful conduct and deterring its repetition’ ” (quoting Gore, 517
U. S., at 568)); State Farm, 538 U. S., at 416 (“[P]unitive damages . . .
are aimed at deterrence and retribution”); Cooper Industries, 532 U. S.,
at 432 (“[C]ompensatory damages and punitive damages . . . serve
distinct purposes. The former are intended to redress the concrete
loss that the plaintiff has suffered . . . . The latter . . . operate as
‘private fines’ intended to punish the defendant and to deter future
wrongdoing”).
42 EXXON SHIPPING CO. v. BAKER

Opinion of the Court

sive here and in cases of this type. Congress set criminal
penalties of up to $25,000 per day for negligent violations
of pollution restrictions, and up to $50,000 per day for
knowing ones. 33 U. S. C. §§1319(c)(1), (2). Discretion to
double the penalty for knowing action compares to discre-
tion to double the civil liability on conduct going beyond
negligence and meriting punitive treatment. And our
explanation of the constitutional upper limit confirms that
the 1:1 ratio is not too low. In State Farm, we said that a
single-digit maximum is appropriate in all but the most
exceptional of cases, and “[w]hen compensatory damages
are substantial, then a lesser ratio, perhaps only equal to
compensatory damages, can reach the outermost limit of
the due process guarantee.” 538 U. S., at 425.28
V
Applying this standard to the present case, we take for
granted the District Court’s calculation of the total rele-
vant compensatory damages at $507.5 million. See In re
Exxon Valdez, 236 F. Supp. 2d 1043, 1063 (D. Alaska
2002). A punitive-to-compensatory ratio of 1:1 thus yields
maximum punitive damages in that amount.
We therefore vacate the judgment and remand the case
for the Court of Appeals to remit the punitive damages
award accordingly.
It is so ordered.

JUSTICE ALITO took no part in the consideration or
decision of this case.
——————
28 The criterion of “substantial” takes into account the role of punitive
damages to induce legal action when pure compensation may not be
enough to encourage suit, a concern addressed by the opportunity for a
class action when large numbers of potential plaintiffs are involved: in
such cases, individual awards are not the touchstone, for it is the class
option that facilitates suit, and a class recovery of $500 million is
substantial. In this case, then, the constitutional outer limit may well
be 1:1.
 Cite as: 554 U. S. ____ (2008) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–219
_________________

EXXON SHIPPING COMPANY, ET AL., PETITIONERS v.
GRANT BAKER ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2008]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
I join the opinion of the Court, including the portions
that refer to constitutional limits that prior opinions have
imposed upon punitive damages. While I agree with the
argumentation based upon those prior holdings, I continue
to believe the holdings were in error. See State Farm Mut.
Automobile Ins. Co. v. Campbell, 538 U. S. 408, 429 (2003)
(SCALIA, J., dissenting).
 Cite as: 554 U. S. ____ (2008) 1

Opinion of STEVENS, J.

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–219
_________________

EXXON SHIPPING COMPANY, ET AL., PETITIONERS v.
GRANT BAKER ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2008]

JUSTICE STEVENS, concurring in part and dissenting in
part.
While I join Parts I, II, and III of the Court’s opinion, I
believe that Congress, rather than this Court, should
make the empirical judgments expressed in Part IV.
While maritime law “ ‘is judge-made law to a great ex-
tent,’ ” ante, at 16 (quoting Edmonds v. Compagnie Gener-
ale Transatlantique, 443 U. S. 256, 259 (1979)), it is also
statutory law to a great extent; indeed, “[m]aritime tort
law is now dominated by federal statute.” Miles v. Apex
Marine Corp., 498 U. S. 19, 36 (1990). For that reason,
when we are faced with a choice between performing the
traditional task of appellate judges reviewing the accept-
ability of an award of punitive damages, on the one hand,
and embarking on a new lawmaking venture, on the other,
we “should carefully consider whether [we], or a legislative
body, are better equipped to perform the task at hand.”
Boyle v. United Technologies Corp., 487 U. S. 500, 531
(1988) (STEVENS, J., dissenting).
Evidence that Congress has affirmatively chosen not to
restrict the availability of a particular remedy favors
2 EXXON SHIPPING CO. v. BAKER

Opinion of STEVENS, J.

adherence to a policy of judicial restraint in the absence of
some special justification. The Court not only fails to offer
any such justification, but also ignores the particular
features of maritime law that may counsel against impos-
ing the sort of limitation the Court announces today.
Applying the traditional abuse-of-discretion standard that
is well grounded in the common law, I would affirm the
judgment of the Court of Appeals.
I
As we explained in Miles v. Apex Marine Corp., 498
U. S., at 27, “an admiralty court must be vigilant not to
overstep the well-considered boundaries imposed by fed-
eral legislation.” In light of the many statutes governing
liability under admiralty law, the absence of any limita-
tion on an award of the sort at issue in this case suggests
that Congress would not wish us to create a new rule
restricting the liability of a wrongdoer like Exxon.
For example, the Limitation of Shipowners’ Liability Act
(Limitation Act), 46 U. S. C. App. §1831, a statute that has
been part of the fabric of our law since 1851, provides in
relevant part:
“The liability of the owner of any vessel, whether
American or foreign, for any embezzlement, loss, or
destruction by any person of any property, goods, or
merchandise shipped or put onboard of such vessel, or
for any loss, damage, or injury by collision, or for any
act, matter, or thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity or knowl-
edge of such owner or owners, shall not, except in the
cases provided for in subsection (b) of this section, ex-
ceed the amount or value of the interest of such owner
in such vessel, and her freight then pending.” §183(a)
——————
1 The Limitation Act is now codified as amended at 46 U. S. C.

§30505. See Pub. L. 109–304, §3, 120 Stat. 1513.
 Cite as: 554 U. S. ____ (2008) 3

Opinion of STEVENS, J.

(emphasis added).
This statute operates to shield from liability shipowners
charged with wrongdoing committed without their privity
or knowledge; the Limitation Act’s protections thus render
large punitive damages awards functionally unavailable in
a wide swath of admiralty cases.2 Exxon evidently did not
invoke the protection of the Limitation Act because it
recognized the futility of attempting to establish that it
lacked “privity or knowledge” of Captain Hazelwood’s
drinking.3 Although the existence of the Limitation Act
does not resolve this case, the fact that Congress chose to
provide such generous protection against liability without
including a party like Exxon within that protection coun-
sels against extending a similar benefit here.
The Limitation Act is only one of several statutes that
point to this conclusion. In the Trans-Alaska Pipeline
Authorization Act (TAPAA), 87 Stat. 584, 43 U. S. C.
§1651 et seq., Congress altered the liability regime govern-
ing certain types of Alaskan oil spills, imposing strict
liability but also capping recovery; notably, it did not

——————
2 See Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 446 (2001)

(“Admiralty and maritime law includes a host of special rights, duties,
rules, and procedures. . . . Among these provisions is the Limitation
Act. . . . The Act allows a vessel owner to limit liability for damage or
injury, occasioned without the owner’s privity or knowledge, to the
value of the vessel or the owner’s interest in the vessel”); Coryell v.
Phipps, 317 U. S. 406, 412 (1943) (“One who selects competent men to
store and inspect a vessel and who is not on notice as to the existence of
any defect cannot be denied the benefit of the limitation as respects a
loss incurred by an explosion during the period of storage, unless
‘privity’ or ‘knowledge’ are to become empty words”).
3 Testimony at an early phase of this protracted litigation confirmed

as much. In a hearing before the District Court, one of Exxon’s attor-
neys explained that his firm advised Exxon in 1989 that Exxon would
“ ‘never be able to sustain its burden to show lack of privity or knowl-
edge with the use of alcohol by Captain Hazelwood.’ ” App. to Brief in
Opposition 43a.
4 EXXON SHIPPING CO. v. BAKER

Opinion of STEVENS, J.

restrict the availability of punitive damages.4 (Exxon
unsuccessfully argued that the TAPAA precluded punitive
damages at an earlier stage of this litigation, see App.
101–107.) And the Court today rightly decides that in
passing the Clean Water Act, Congress did not displace or
in any way diminish the availability of common-law puni-
tive damages remedies. Ante, at 14–15.
The congressional choice not to limit the availability of
punitive damages under maritime law should not be
viewed as an invitation to make policy judgments on the
basis of evidence in the public domain that Congress is
better able to evaluate than is this Court.
II
The Court’s analysis of the empirical data it has assem-
bled is problematic for several reasons. First, I believe
that the Court fails to recognize a unique feature of mari-
time law that may counsel against uncritical reliance on
data from land-based tort cases: General maritime law
limits the availability of compensatory damages. Some
maritime courts bar recovery for negligent infliction of
purely emotional distress, see 1 T. Schoenbaum, Admi-

——————
4 Although the issue has not been resolved by this Court, there is

evidence that in passing TAPAA, Congress meant to prevent applica-
tion of the Limitation Act to the trans-Alaskan transportation of oil.
The House Conference Report includes the following passage:
“Under the Limitation of Liability Act of 1851 (46 U. S. C. 183), the
owner of a vessel is entitled to limit his liability for property damage
caused by the vessel. . . The Conferees concluded that existing maritime
law would not provide adequate compensation to all victims . . . in the
event of the kind of catastrophe which might occur. Consequently, the
Conferees established a rule of strict liability for damages from dis-
charges of the oil transported through the trans-Alaska Pipeline up to
$100,000,000.” H. R. Conf. Rep. No. 93–624, p. 28 (1973).
See also In re Glacier Bay, 944 F. 2d 577, 583 (CA9 1991) (“[W]e hold
that TAPAA implicitly repealed the Limitation Act with regard to the
transportation of trans-Alaska oil”).
 Cite as: 554 U. S. ____ (2008) 5

Opinion of STEVENS, J.

ralty and Maritime Law §5–15 (4th ed. 2004),5 and, on the
view of many courts, maritime law precludes recovery for
purely “economic losses . . . absent direct physical damage
to property or a proprietary interest,” 2 id., §14–7, at 124.6
Under maritime law, then, more than in the land-tort
context, punitive damages may serve to compensate for
certain sorts of intangible injuries not recoverable under
the rubric of compensation.
We observed in Cooper Industries, Inc. v. Leatherman
Tool Group, Inc., 532 U. S. 424, 437–438, n. 11 (2001):
“Until well into the 19th century, punitive damages
frequently operated to compensate for intangible inju-
ries, compensation which was not otherwise available
under the narrow conception of compensatory dam-
ages prevalent at the time. . . . As the types of com-
pensatory damages available to plaintiffs have broad-
ened, see, e.g., 1 J. Nates, C. Kimball, D. Axelrod, & R.
Goldstein, Damages in Tort Actions §3.01[3][a](2000)
(pain and suffering are generally available as species
of compensatory damages), the theory behind punitive
damages has shifted toward a more purely punitive

——————
5 Schoenbaum explains that “[n]either the general maritime law nor

the Jones Act recognizes a right to recover damages for negligent
infliction of emotional distress unaccompanied by physical injury.” §5–
15, p. 239. See also Gough v. Natural Gas Pipeline Co. of Am., 996
F. 2d 763, 765 (CA5 1993) (purely emotional injuries are compensable
under maritime law when maritime plaintiffs “satisfy the ‘physical
injury or impact rule’ ”).
6 The latter limitation has its roots in the “dry dock doctrine” of Rob-

ins Dry Dock & Repair Co. v. Flint, 275 U. S. 303 (1927) (opinion for the
Court by Holmes, J.). See Barber Lines A/S v. M/V Donau Maru, 764
F. 2d 50 (CA1 1985) (opinion for the Court by Breyer, J.) (tracing the
history and purposes of the doctrine, and resolving to adhere to its
rule); see also Louisiana v. M/V Testbank, 752 F. 2d 1019, 1020 (CA5
1985) (en banc) (affirming rule denying recovery for economic loss
absent “physical damage to a proprietary interest . . . in cases of unin-
tentional maritime tort”).
6 EXXON SHIPPING CO. v. BAKER

Opinion of STEVENS, J.

. . . understanding.”
Although these sorts of intangible injuries are now
largely a species of ordinary compensatory damages under
general tort law, it appears that maritime law continues to
treat such injuries as less than fully compensable, or not
compensable at all. Accordingly, there may be less reason
to limit punitive damages in this sphere than there would
be in any other.
Second, both caps and ratios of the sort the Court relies
upon in its discussion are typically imposed by legisla-
tures, not courts. Although the Court offers a great deal of
evidence that States have acted in various ways to limit
punitive damages, it is telling that the Court fails to iden-
tify a single state court that has imposed a precise ratio,
as the Court does today, under its common-law authority.
State legislatures have done so, of course; and indeed
Congress would encounter no obstacle to doing the same
as a matter of federal law. But Congress is far better
situated than is this Court to assess the empirical data,
and to balance competing policy interests, before making
such a choice.7
——————
7 See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665–

666 (1994) (plurality opinion) (“As an institution . . . Congress is far
better equipped than the judiciary to amass and evaluate the vast
amounts of data bearing upon an issue as complex and dynamic as that
presented here” (internal quotation marks omitted)); Patsy v. Board of
Regents of Fla., 457 U. S. 496, 513 (1982) (when “relevant policy consid-
erations do not invariably point in one direction, and there is vehement
disagreement over the validity of the assumptions underlying many of
them[, t]he very difficulty of these policy considerations, and Congress’
superior institutional competence to pursue this debate, suggest that
legislative not judicial solutions are preferable”).
The Court points to United States v. Reliable Transfer Co., 421 U. S.
397 (1975), a case in which the Court adopted a rule of proportional
liability in maritime tort cases, as an illustrative example of the Court’s
power to craft “flexible and fair remedies in the law maritime.” Id., at
409. In that case, however, the Court noted that not only was the new
 Cite as: 554 U. S. ____ (2008) 7

Opinion of STEVENS, J.

The Court concedes that although “American punitive
damages have been the target of audible criticism in re-
cent decades,” “most recent studies tend to undercut much
of [that criticism].” Ante, at 24. It further acknowledges
that “[a] survey of the literature reveals that discretion to
award punitive damages has not mass-produced runaway
awards.” Ibid. The Court concludes that the real problem
is large outlier awards, and the data seem to bear this out.
But the Court never explains why abuse-of-discretion
review is not the precise antidote to the unfairness inher-
ent in such excessive awards.
Until Congress orders us to impose a rigid formula to
govern the award of punitive damages in maritime cases, I
would employ our familiar abuse-of-discretion standard:
“If no constitutional issue is raised, the role of the appel-
late court, at least in the federal system, is merely to
review the trial court’s ‘determination under an abuse-of-
discretion standard,’ ” Cooper Industries, Inc., 532 U. S., at
433; see also Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S.
1, 15 (1991) (“Under the traditional common-law ap-
proach, the amount of the punitive award is initially
determined by a jury instructed to consider the gravity of
the wrong and the need to deter similar wrongful conduct.
The jury’s determination is then reviewed by trial and
appellate courts to ensure that it is reasonable”).
On an abuse-of-discretion standard, I am persuaded
that a reviewing court should not invalidate this award.8
——————
proportional liability rule not barred by any “statutory or judicial
precept,” but also that its adoption would “simply bring recovery for
property damage in maritime collision cases into line with the rule of
admiralty law long since established by Congress for personal injury
cases.” Ibid. By contrast, the Court in this case has failed to demon-
strate that adoption of the rule it announces brings the maritime law
into line with expressions of congressional intent in this (or any other)
context.
8 The idiosyncratic posture of this case makes true abuse-of-discretion

appellate review something of a counterfactual, since the $5 billion
8 EXXON SHIPPING CO. v. BAKER

Opinion of STEVENS, J.

In light of Exxon’s decision to permit a lapsed alcoholic to
command a supertanker carrying tens of millions of gal-
lons of crude oil through the treacherous waters of Prince
William Sound, thereby endangering all of the individuals
who depended upon the sound for their livelihoods, the
jury could reasonably have given expression to its “moral
condemnation” of Exxon’s conduct in the form of this
award. Cooper Industries, Inc., 532 U. S., at 432.
I would adhere to the principle that “ ‘it better becomes
the humane and liberal character of proceedings in admi-
ralty to give than to withhold the remedy, when not re-
quired to withhold it by established and inflexible rules.’ ”
Moragne v. States Marine Lines, Inc., 398 U. S. 375, 387
(1970) (quoting Chief Justice Chase in The Sea Gull, 21
F. Cas. 909, 910 (CC Md. 1865)).
* * *
While I do not question that the Court possesses the
power to craft the rule it announces today, in my judgment
it errs in doing so. Accordingly, I respectfully dissent
from Parts IV and V of the Court’s opinion, and from its
judgment.

——————
award returned by the jury was, after several intervening steps, ulti-
mately remitted to $2.5 billion by the Ninth Circuit in order to conform
with this Court’s Due Process cases. 472 F. 3d 600 (2006) (per curiam).
Suffice it to say, for now, that although the constitutional limits and
the abuse-of-discretion standard are not identical, in this case the $2.5
billion the Ninth Circuit believed survived de novo constitutional
scrutiny would, in my judgment, also satisfy abuse-of-discretion review.
 Cite as: 554 U. S. ____ (2008) 1

Opinion of GINSBURG, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–219
_________________

EXXON SHIPPING COMPANY, ET AL., PETITIONERS v.
GRANT BAKER ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2008]

JUSTICE GINSBURG, concurring in part and dissenting in
part.
I join Parts I, II, and III of the Court’s opinion, and
dissent from Parts IV and V.
This case is unlike the Court’s recent forays into the
domain of state tort law under the banner of substantive
due process. See State Farm Mut. Automobile Ins. Co. v.
Campbell, 538 U. S. 408, 418–428 (2003) (reining in state-
court awards of punitive damages); BMW of North Amer-
ica, Inc. v. Gore, 517 U. S. 559, 574–585 (1996) (same).
The controversy here presented “arises under federal
maritime jurisdiction,” ante, at 28 (opinion of the Court),
and, beyond question, “the Court possesses the power to
craft the rule it announces today,” ante, at 8 (STEVENS, J.,
concurring in part and dissenting in part). The issue,
therefore, is whether the Court, though competent to act,
should nevertheless leave the matter to Congress. The
Court has explained, in its well stated and comprehensive
opinion, why it has taken the lead. While recognizing that
the question is close, I share JUSTICE STEVENS’ view that
Congress is the better equipped decisionmaker.
First, I question whether there is an urgent need in
maritime law to break away from the “traditional com-
mon-law approach” under which punitive damages are
determined by a properly instructed jury, followed by trial-
2 EXXON SHIPPING CO. v. BAKER

Opinion of GINSBURG, J.

court, and then appellate-court review, to ensure that [the
award] is reasonable.” Pacific Mut. Life Ins. Co. v. Haslip,
499 U. S. 1, 15 (1991). The Court acknowledges that the
traditional approach “has not mass-produced runaway
awards,” ante, at 24, or endangered settlement negotia-
tions, ante, at 25, n. 15. Nor has the Court asserted that
outlier awards, insufficiently checked by abuse-of-
discretion review, occur more often or are more problem-
atic in maritime cases than in other areas governed by
federal law.
Second, assuming a problem in need of solution, the
Court’s lawmaking prompts many questions. The 1:1 ratio
is good for this case, the Court believes, because Exxon’s
conduct ranked on the low end of the blameworthiness
scale: Exxon was not seeking “to augment profit,” nor did
it act “with a purpose to injure,” ante, at 20. What ratio
will the Court set for defendants who acted maliciously or
in pursuit of financial gain? See ante, at 37–38. Should
the magnitude of the risk increase the ratio and, if so, by
how much? Horrendous as the spill from the Valdez was,
millions of gallons more might have spilled as a result of
Captain Hazelwood’s attempt to rock the boat off the reef.
See ante, at 4 (opinion of the Court); cf. TXO Production
Corp. v. Alliance Resources Corp., 509 U. S. 443, 460–462
(1993) (plurality opinion) (using potential loss to plaintiff
as a guide in determining whether jury verdict was exces-
sive). In the end, is the Court holding only that 1:1 is the
maritime-law ceiling, or is it also signaling that any ratio
higher than 1:1 will be held to exceed “the constitutional
outer limit”? See ante, at 42, n. 28. On next opportunity,
will the Court rule, definitively, that 1:1 is the ceiling due
process requires in all of the States, and for all federal
claims?
Heightening my reservations about the 1:1 solution is
JUSTICE STEVENS’ comment on the venturesome character
of the Court’s decision. In the States, he observes, fixed
 Cite as: 554 U. S. ____ (2008) 3

Opinion of GINSBURG, J.

ratios and caps have been adopted by legislatures; this
Court has not identified “[any] state court that has im-
posed a precise ratio” in lieu of looking to the legislature
as the appropriate source of a numerical damage limita-
tion. Ante, at 6.
* * *
For the reasons stated, I agree with JUSTICE STEVENS
that the new law made by the Court should have been left
to Congress. I would therefore affirm the judgment of the
Court of Appeals.
 Cite as: 554 U. S. ____ (2008) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–219
_________________

EXXON SHIPPING COMPANY, ET AL., PETITIONERS v.
GRANT BAKER ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 25, 2008]

JUSTICE BREYER, concurring in part and dissenting in
part.
I join Parts I, II, and III of the Court’s opinion. But I
disagree with its conclusion in Parts IV and V that the
punitive damages award in this case must be reduced.
Like the Court, I believe there is a need, grounded in the
rule of law itself, to assure that punitive damages are
awarded according to meaningful standards that will
provide notice of how harshly certain acts will be punished
and that will help to assure the uniform treatment of
similarly situated persons. See BMW of North America,
Inc. v. Gore, 517 U. S. 559, 587 (1996) (BREYER, J., concur-
ring). Legal standards, however, can secure these objec-
tives without the rigidity that an absolute fixed numerical
ratio demands. In setting forth constitutional due process
limits on the size of punitive damages awards, for exam-
ple, we said that “few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a signifi-
cant degree, will satisfy due process.” State Farm Mut.
Automobile Ins. Co. v. Campbell, 538 U. S. 408, 425 (2003)
(emphasis added). We thus foresaw exceptions to the
numerical constraint.
In my view, a limited exception to the Court’s 1:1 ratio is
warranted here. As the facts set forth in Part I of the
Court’s opinion make clear, this was no mine-run case of
2 EXXON SHIPPING CO. v. BAKER

Opinion of BREYER, J.

reckless behavior. The jury could reasonably have be-
lieved that Exxon knowingly allowed a relapsed alcoholic
repeatedly to pilot a vessel filled with millions of gallons of
oil through waters that provided the livelihood for the
many plaintiffs in this case. Given that conduct, it was
only a matter of time before a crash and spill like this
occurred. And as JUSTICE GINSBURG points out, the dam-
age easily could have been much worse. See ante, at 2.
The jury thought that the facts here justified punitive
damages of $5 billion. See ante, at 6 (opinion of the
Court). The District Court agreed. It “engaged in an
exacting review” of that award “not once or twice, but
three times, with a more penetrating inquiry each time,”
the case having twice been remanded for reconsideration
in light of Supreme Court due process cases that the Dis-
trict Court had not previously had a chance to consider.
296 F. Supp. 2d 1071, 1110 (D. Alaska 2004). And each
time it concluded “that a $5 billion award was justified by
the facts of this case,” based in large part on the fact that
“Exxon’s conduct was highly reprehensible,” and it re-
duced the award (slightly) only when the Court of Appeals
specifically demanded that it do so. Ibid.; see also id., at
1075.
When the Court of Appeals finally took matters into its
own hands, it concluded that the facts justified an award
of $2.5 billion. See 472 F. 3d 600, 625 (CA9 2006) (per
curiam). It specifically noted the “egregious” nature of
Exxon’s conduct. Ibid. And, apparently for that reason, it
believed that the facts of the case “justifie[d] a considera-
bly higher ratio” than the 1:1 ratio we had applied in our
most recent due process case and that the Court adopts
here. Ibid.
I can find no reasoned basis to disagree with the Court
of Appeals’ conclusion that this is a special case, justifying
an exception from strict application of the majority’s nu-
merical rule. The punitive damages award before us
 Cite as: 554 U. S. ____ (2008) 3

Opinion of BREYER, J.

already represents a 50% reduction from the amount that
the District Court strongly believed was appropriate. I
would uphold it.