EXXON SHIPPING CO. et al. v. BAKER et al.

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471 OCTOBER TERM, 2007
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, Joseph Hazel
wood—who had a history of alcohol abuse and whose blood still had a
high alcohol level 11 hours after the spill—inexplicably exited the
bridge, leaving a tricky course correction to unlicensed subordinates.
Exxon spent some $2.1 billion in cleanup efforts, pleaded guilty to crimi
nal violations occasioning fines, settled a civil action by the United
States and Alaska for at least $900 million, and paid another $303 million
in voluntary payments to private parties. Other civil cases were con
solidated into this one, brought against Exxon, Hazelwood, and others
to recover economic losses suffered by respondents (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 act
ing in a managerial capacity in the scope of their employment. In
Phase II, the jury awarded $287 million 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 dam
ages against Hazelwood and $5 billion against Exxon. The Ninth Cir
cuit upheld the Phase I jury instruction on corporate liability and ulti
mately 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 man
agerial agents, it leaves the Ninth Circuit’s opinion undisturbed in this
respect. Of course, this disposition is not precedential on the deriva
tive liability question. See, e. g., Neil v. Biggers, 409 U. S. 188, 192.
Pp. 482–484.
2. The Clean Water Act’s (CWA) 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 reserving “obli

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472 EXXON SHIPPING CO. v. BAKER
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gations . . . under any . . . law for damages to any . . . privately owned
property resulting from [an oil] discharge,” § 1321(o). Exxon’s admis
sion that the CWA does not displace compensatory remedies for the
consequences of water pollution, even those for economic 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 result, and the Court has rejected
similar attempts to sever remedies from their causes of action, see Silk
wood v. Kerr-McGee Corp., 464 U. S. 238, 255–256. There is no clear
indication of congressional intent to occupy the entire field of pollution
remedies, nor is it likely that punitive damages for private harms will
have any frustrating effect on the CWA’s remedial scheme. Pp. 484–489.
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. 489–515.
(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. 490–491.
(b) The prevailing American rule limits punitive damages to cases
of “enormity,” Day, supra, at 371, in which a defendant’s conduct is
outrageous, owing to gross negligence, willful, wanton, and reckless in
difference for others’ rights, or even more deplorable behavior. The
consensus today is that punitive damages are aimed at retribution and
deterring harmful conduct. Pp. 491–495.
(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 combi
nation of the two. Pp. 495–497.
(d) American punitive damages have come under criticism in recent
decades, but the most recent studies tend to undercut much of it. Al
though 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

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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 ac
ceptable if they resulted from efforts to reach a generally accepted opti
mal level of penalty and deterrence in cases involving a wide range of
circumstances, but anecdotal evidence suggests that is not the case, see,
e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559, 565, n. 8.
Pp. 497–501.
(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 unpre
dictability of high punitive awards is in tension with their punitive func
tion because of the implication of unfairness that an eccentrically 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. 501–503.
(f) The Court considers three approaches, one verbal and two quan
titative, to arrive at a standard for assessing maritime punitive dam
ages. Pp. 503–515.
(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 busi
ness of criminal sentencing. Pp. 503–506.
(ii) Thus, the Court looks to quantified limits. The option of set
ting 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 drawback that the
issue might not return to the docket before there was a need to revisit
the figure selected. Pp. 506–512.
(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 allowing multi
ple damages. The question is what ratio is most appropriate. An ac
ceptable standard can be found in the studies showing the median ratio
of punitive to compensatory awards. Those studies reflect the judg
ments of juries and judges in thousands of cases as to what punitive

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474 EXXON SHIPPING CO. v. BAKER
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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 sys
tem, 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. Accordingly, the Court finds that a 1:1
ratio is a fair upper limit in such maritime cases. Pp. 512–515.
(iv) Applying this standard to the present case, the Court takes
for granted the District Court’s calculation of the total relevant compen
satory damages at $507.5 million. A punitive-to-compensatory ratio of
1:1 thus yields maximum punitive damages in that amount. P. 515.
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 Stevens,
Ginsburg, and Breyer, JJ., joined, as to Parts I, II, and III. Scalia, J.,
filed a concurring opinion, in which Thomas, J., joined, post, p. 515. Ste
vens, J., post, p. 516, Ginsburg, J., post, p. 523, and Breyer, J., post,
p. 525, filed opinions concurring in part and dissenting in part. Alito, J.,
took no part in the consideration or decision of the case.
Walter Dellinger argued the cause for petitioners. With
him on the briefs were John F. Daum, Jonathan D. Hacker,
and E. Edward Bruce.
Jeffrey L. Fisher argued the cause for respondents. With
him on the brief were David W. Oesting, Stephen M. Rum
mage, David C. Tarshes, James vanR. Springer, and Brian
B. O’Neill.*
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States of America by Carter G. Phillips, Virginia
A. Seitz, Robin S. Conrad, and Amar D. Sarwal; for the International
Chamber of Shipping et al. by Chester Douglas Hooper, Jovi Tenev, Den
nis L. Bryant, Richard J. Reisert, Joseph G. Grasso, and Raymond L.
Massey; for the Product Liability Advisory Council, Inc., by Malcolm E.
Wheeler and Craig R. May; for the Transportation Institute et al. by Mark
I. Levy, James L. Henry, and C. Jonathan Benner; and for the Washington
Legal Foundation by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of
Alaska by Talis J. Colberg, Attorney General of Alaska, Craig J. Tillery,

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Cite as: 554 U. S. 471 (2008) 475
Opinion of the Court
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
Deputy Attorney General, Joanne Grace, Chief Assistant Attorney Gen
eral, David C. Frederick, and Scott H. Angstreich; for the State of Mary
land et al. by Douglas F. Gansler, Attorney General of Maryland, John B.
Howard, Jr., Deputy Attorney General, and Steven M. Sullivan, Solicitor
General, and by the Attorneys General for their respective States as fol
lows: Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California,
Richard Blumenthal of Connecticut, Joseph R. Biden III of Delaware,
Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence Was
den of Idaho, Lisa Madigan of Illinois, Tom Miller of Iowa, Jack Conway
of Kentucky, James D. Caldwell of Louisiana, G. Steven Rowe of Maine,
Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. Nixon
of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Cather
ine Cortez Masto of Nevada, Kelly Ayotte of New Hampshire, Anne Mil
gram of New Jersey, Gary King of New Mexico, Andrew Cuomo of New
York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota,
Marc Dann of Ohio, Hardy Myers of Oregon, Patrick Lynch of Rhode
Island, Henry McMaster of South Carolina, Larry Long of South Dakota,
Robert E. Cooper of Tennessee, Mark Shurtleff of Utah, Rob McKenna of
Washington, and Darrell V. McGraw, Jr., of West Virginia; for the Alaska
Legislative Council et al. by Jared A. Goldstein; for the American Associa
tion for Justice et al. by Jeffrey Robert White, Robert S. Peck, Arthur H.
Bryant, Kathleen Flynn Peterson, and Leslie A. Brueckner; for Experts
on Alcohol in the Workplace by Vanya Hogen and Colette Routel; for the
National Congress of American Indians et al. by David S. Case, Richard
A. Guest, Carol H. Daniel, and Riyaz Kanji; for the National Fisheries
Institute by John R. Hillsman; for the Pacific Coast Federation of Fisher
men’s Associations et al. by Amy J. Wildermuth; for the Prince William
Sound Regional Citizens’ Advisory Council et al. by William M. Walker;
for Former Ship Masters et al. by Paul Edelman; for Sociologists et al.
by Amy Howe and Kevin K. Russell; for Trustees for Alaska et al. by
Howard A. Learner; for Jean-Michel Cousteau et al. by Gerson H. Smoger
and Steven Bronson; for Thomas J. Schoenbaum; and for United States
Senator Theodore F. Stevens et al. by Mr. Stevens, pro se.
Briefs of amici curiae were filed for American Maritime Safety, Inc., by
Lee Seham; for the American Petroleum Institute et al. by Andrew L.
Frey, Evan M. Tager, Nickolai G. Levin, Harry M. Ng, Janice K. Raburn,
Donald D. Evans, Jan S. Amundson, Quentin Riegel, and Kevin M. Fong;
and for Arthur R. Miller by Stanley D. Bernstein and Mr. Miller, pro se.

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476 EXXON SHIPPING CO. v. BAKER
Opinion of the Court
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 di
vided 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 compensatory 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 Shipping Co.
(now SeaRiver Maritime, Inc.), and its owner, petitioner
Exxon Mobil Corp. (collectively, Exxon), have settled state
and federal claims for environmental damage, with payments
exceeding $1 billion, and this action by respondent Baker
and others, including commercial fishermen and native Alas
kans, was brought for economic losses to individuals depend
ent 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 Hazel
wood, who had completed a 28-day alcohol treatment pro
gram while employed by Exxon, as his superiors knew, but
dropped out of a prescribed followup 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 treat
ment], he drank in bars, parking lots, apartments, airports,

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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 contested testimony that Hazelwood drank with
Exxon officials 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 con
sidered giving him a shoreside assignment, see Order 265,
p. 5, supra, at 256a. Witnesses testified that before the Val
dez left port on the night of the disaster, Hazelwood downed
at least five double vodkas in the waterfront bars of Valdez,
an intake of about 15 ounces of 80-proof 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, ra
dioed 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

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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 re
main a mystery, they failed to make the 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 Hazel
wood (the validity of which Exxon disputes) showing a
blood-alcohol level of .061 11 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
1 As it turned out, the tanker survived the accident and remained in
Exxon’s fleet, which it subsequently transferred to a wholly owned subsid
iary, SeaRiver Maritime, Inc. The Valdez “was renamed several times,
finally to the SeaRiver Mediterranean, [and] carried oil between the Per
sian 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, although, 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).

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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 $150 million fine, later re
duced to $25 million plus restitution of $100 million. A civil
action by the United States and the State of Alaska for envi
ronmental harms ended with a consent decree for Exxon to
pay at least $900 million toward restoring natural resources,
and it paid another $303 million in voluntary settlements
with fishermen, 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 com
pensatory damages into three classes: commercial 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. Respond
ents 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 neg
ligence in the Valdez disaster and its ensuing liability for
compensatory damages. The court designed the trial ac
cordingly: Phase I considered Exxon and Hazelwood’s reck
lessness and thus their potential for punitive liability; Phase
II set compensatory damages for commercial fishermen and

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Native Alaskans; and Phase III determined the amount of
punitive damages for which Hazelwood and Exxon were each
liable. (A contemplated Phase IV, setting compensation for
still other plaintiffs, was obviated by settlement.)
In Phase I, the jury heard extensive testimony about Ha
zelwood’s alcoholism and his conduct on the night of the spill,
as well as conflicting testimony about Exxon officials’ knowl
edge 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 ca
pacity while acting in the scope of their employment.
The reckless act or omission of a managerial officer or
employee of a corporation, in the course and scope of the
performance of his duties, is held in law to be the reck
less 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 author
ity over, a particular aspect of the corporation’s business.”
Ibid. Exxon did not dispute that Hazelwood was a manage
rial employee under this definition, see App. G, id., at 264a,
n. 8, and the jury found both Hazelwood 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 compensatory
damages to the commercial fishermen. After the court de
ducted released claims, settlements, and other payments, 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 author
ized 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.

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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 settle
ment ultimately settled for a total of around $2.6 million.
In Phase III, the jury heard about Exxon’s management’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 compen
satory relief but to punish and deter the defendants. See
App. to Brief in Opposition 12a–14a. The court charged the
jury to consider the reprehensibility of the defendants’ con
duct, 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 up
held 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 bil
lion. 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 excessive as a mat
ter of maritime common law. 552 U. S. 989 (2007). We now
vacate and remand.

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482 EXXON SHIPPING CO. v. BAKER
Opinion of the Court
II
On the first question, Exxon says that it was error to in
struct 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
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 shipmas
ter’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 compensatory damages,
Justice Story observed that,
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 enforcing 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).

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“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 consid
ered, that this is a suit against the owners of the priva
teer, 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 secure
to themselves an adequate indemnity in cases of loss.
They are innocent of the demerit of this transaction,
having neither directed it, nor countenanced it, nor par
ticipated in it in the slightest degree. Under such cir
cumstances, we are of opinion, that they are bound to
repair all the real injuries and personal wrongs sus
tained 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 liabil
ity against shipowners for actions by underlings not “di
rected,” “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 par
ticipate.” 147 U. S., at 110. Because maritime law remains
federal common law, and because the Court has never revis
ited 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),

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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 anti
discrimination policies.
Baker supports the Ninth Circuit in upholding the instruc
tion, as it did on the authority of Protectus Alpha Nav. Co.,
767 F. 2d 1379, which followed the Restatement rule recog
nizing 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 captains. He also makes the
broader point 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 overwhelm
ing 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 dam
ages for the conduct of any employee, and most others follow
the Restatement, 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 ar
guments, and although we do not dispose of the issue on pro

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cedure, a short foray into its history is worthwhile as a cau
tionary tale.
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 summary
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 availability of punitive dam
ages. 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, including several
seeking a new trial or judgment as a matter of law on one
ground or another going to the punitive-damages award, all
of which were denied along with the rest. On October 23,
1995, almost 13 months after the stipulated motions deadline,
Exxon moved for the District Court to suspend the motions
stay, App. to Brief in Opposition 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 id., at 30a–31a. Exxon’s accompa
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 judgment 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
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,

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nying 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 Ex
xon’s request to file the motion, App. to Brief in Opposi
tion 35a, and in January 1996 (following the settlement of
the Phase IV compensatory 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 “con
sistently argued statutory preemption” throughout the liti
gation, 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 waived
was that Exxon had alleged other statutory grounds for pre
emption from the outset of the trial. But that is not enough.
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 dem
onstrate that any Rule supported the motion, we need not choose the best
of the worst, and risk implying that this last-minute motion was appro
priate under any Rule. Suffice it to say that, whatever type of motion it
was supposed to be, it was very, very late.

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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 un
timely motion. If “statutory preemption” 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 challenged regulation was unconstitutional.
See id., at 533 (rejecting substantive due process claim
by takings petitioners 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 discre
tion, 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 princi
ple 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 gargantuan liti
gation, 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 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

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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 penalties
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 ac
tion predicated on an oil spill is preempted unless § 1321 ex
pressly preserves it. Section 1321(b) (2000 ed.) protects
“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 discharge of any
oil,” § 1321(o). Exxon could be arguing that, because the
saving clause makes no mention of preserving punitive dam
ages 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 preempted. If Exxon
were correct here, there would be preemption of provisions
for compensatory damages for thwarting economic activity
or, for that matter, compensatory damages for physical, per
sonal injury from oil spills or other water pollution. But we
find it too hard to conclude that a statute expressly geared
to protecting “water,” “shorelines,” and “natural resources”
required to divide it into four phases, to oversee a punitive-damages class
of 32,000 people, and to manage a motions industry that threatened 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 deter
mine when an issue is out of the case, and that litigation 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 proce
dures 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.

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was intended to eliminate sub silentio oil companies’ com
mon law duties to refrain from injuring the bodies and liveli
hoods of private individuals.
Perhaps on account of its overbreadth, Exxon disclaims
taking this position, admitting that the CWA does not dis
place compensatory remedies for consequences of water pol
lution, 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 compensatory
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 ad
dressed by the common law” (internal quotation marks omit
ted)); nor for that matter do we perceive that punitive dam
ages for private harms will have any frustrating effect on the
CWA remedial scheme, which would point to preemption.7
IV
Finally, Exxon raises an issue of first impression about pu
nitive damages in maritime law, which falls within a federal
court’s jurisdiction to decide in the manner of a common law
7 In this respect, this case differs from two invoked by Exxon, Middlesex
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 pri
vate claims for economic injury do not threaten similar interference with
federal regulatory goals with respect to “water,” “shorelines,” or “natu
ral resources.”

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court, subject to the authority of Congress to legislate other
wise 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) (“Admi
ralty law is judge-made law to a great extent”); Romero v.
International Terminal Operating Co., 358 U. S. 354, 360–
361 (1959) (constitutional grant “empowered the federal
courts . . . to continue the development of [maritime] law”).
In addition to its resistance to derivative liability for puni
tive damages and its preemption claim already disposed of,
Exxon challenges the size of the remaining $2.5 billion
punitive-damages award. Other than its preemption argu
ment, 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 consequently heightened threat of harm. The claim
goes to our understanding of the place of punishment in mod
ern civil law and reasonable standards of process in adminis
tering 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 damages
dates back at least to 1763, when a pair of decisions by the
Court of Common Pleas recognized the availability of dam
ages “for more than the injury received.” Wilkes v. Wood,
Lofft 1, 18, 98 Eng. Rep. 489, 498 (1763) (Lord Chief 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 gener
ally 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

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Wilkes gave an opinion upholding a jury’s award of £300
(against a government officer again) although “if the jury
had been confined by their oath to consider the mere per
sonal 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 an
cient times through the Middle Ages having called for multi
ple damages for certain especially harmful acts. See, e. g.,
Code of Hammurabi § 8, p. 13 (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 Atlantic, 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 accepted in American
courts by the middle of the 19th century, 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 em
phasized 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 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 exam
ple’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 injuries,

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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 Puni
tive Damages Do? 78 Chi.-Kent L. Rev. 163, 204 (2003) (ar
guing that “punitive damages have never served the compen
satory function attributed to them by the Court in Cooper”).
As the century progressed, and “the types of compensatory
damages available to plaintiffs . . . broadened,” Cooper In
dustries, supra, at 438, n. 11, the consequence was that
American courts tended to speak of punitive damages as sep
arate and distinct from compensatory damages, see, e. g.,
Day, supra, at 371 (punitive damages “hav[e] in view the
enormity of [the] offence rather than the measure of compen
sation to the plaintiff ”). See generally 1 L. Schlueter, Puni
tive Damages §§ 1.3(C)–(D), 1.4(A) (5th ed. 2005) (hereinafter
Schlueter) (describing the “almost total eclipse of the com
pensatory 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 com
pensation but principally at retribution and deterring harm
ful conduct.9 This consensus informs the doctrine in most
8 Indeed, at least one 19th-century treatise writer asserted that there
was “no doctrine of authentically ‘punitive’ damages” and that “judgments
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 treatises). Whatever the actual im
portance of the subterfuge for compensation may have been, it declined.
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 damages
is not to compensate a plaintiff, but to punish and deter certain conduct”);

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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 deter
mine whether you should award punitive damages against
defendant[s] . . . for the sake of example and by way of pun
ishment”); 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 defendant . . . and thereby to dis
courage 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 indiffer
ence for the rights of others,” or behavior even more deplor
able, 1 Schlueter § 9.3(A).10
Under the umbrellas of punishment and its aim of deter
rence, degrees of relative blameworthiness are apparent.
Reckless conduct is not intentional or malicious, nor is it nec
essarily callous toward the risk of harming others, as op
posed to unheedful of it. See, e. g., 2 Restatement § 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
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 dam
ages are “intended to punish the defendant and to deter future wrongdo
ing”); State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408,
416 (2003) (“[P]unitive damages . . . are aimed at deterrence and retribu
tion”); 4 Restatement § 908, Comment a.
10 These standards are from the torts context; different standards apply
to other causes of action.

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degree of risk of . . . harm to another, and deliberately pro
ceeds to act, or to fail to act, in conscious 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 real
ize or appreciate the high degree 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 punishable culpability, as of course does
willful or malicious action, taken with a purpose to injure.
See 4 id., § 908, Comment e, p. 466 (1977) (“In determining
the amount of punitive damages, . . . the trier of fact can
properly consider not merely the act itself but all the circum
stances 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 wrongdoing
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., ibid. (“[L]ow
awards of compensatory damages may properly support a
higher ratio . . . if, for example, a particularly 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 significant harm has resulted”).
And, with a broadly analogous object, some regulatory
schemes provide by statute for multiple recovery in order to

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induce private litigation to supplement official enforcement
that might fall short if unaided. See, e. g., Reiter v. Sono
tone Corp., 442 U. S. 330, 344 (1979) (discussing antitrust tre
ble damages).
C
State regulation of punitive damages varies. A few
States award them rarely, or not at all. Nebraska bars puni
tive damages entirely, on state constitutional grounds. See,
e. g., Distinctive Printing & 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 mat
ter of common law, and New Hampshire by statute codifying
common law tradition. See Ross v. Conoco, Inc., 02–0299,
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, Inc. 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
damages supportable as compensatory, rather than truly pu
nitive, see Peisner v. Detroit Free Press, Inc., 104 Mich. App.
59, 68, 304 N. W. 2d 814, 817 (1981), while Connecticut courts
have limited what they call punitive recovery to the “ex
penses of bringing the legal action, including attorney’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
11 A like procedure was followed in this case, without objection.

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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:
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, ar
bitrary, or unconstitutional action by government 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 stat
ute. Rookes v. Barnard, [1964] 1 All E. R. 367, 410–411
(H. L.). Even in the circumstances where punitive damages
are allowed, they are subject to strict, judicially imposed
guidelines. The Court of Appeal in Thompson v. Commis
sioner of Police of Metropolis, [1998] Q. B. 498, 518, said that
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 de
rived by the defendant, in cases of intentional and malicious conduct);
§ 9.1(D) (no limit where the conduct is intentional, malicious, and life
threatening).

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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
exceptional; 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). Noncompensatory damages
are not part of the civil-code tradition and thus unavailable
in such countries as France, Germany, Austria, and Switzer
land. 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 refus
als 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”).
D
American punitive damages have been the target of audi
ble criticism in recent decades, see, e. g., Note, Developments,
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 discretion to award punitive
damages has not mass-produced runaway awards, and al
though some studies show the dollar amounts of punitive
damages awards growing over time, even in real terms,13 by
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 Fran
cisco and Cook Counties); Moller, Pace, & Carroll, Punitive Damages in

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most accounts the median ratio of punitive to compensatory
awards has remained less than 1:1.14 Nor do the data sub
stantiate a marked increase in the percentage of cases with
punitive awards over the past several decades.15 The fig-
Financial Injury Jury Verdicts, 28 J. Legal Studies 283, 307 (1999) (herein
after 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);
RAND Institute for Civil Justice, M. Peterson, S. Sarma, & M. Shanley,
Punitive Damages: Empirical Findings 15 (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: Empiri
cal Analyses Using the Civil Justice Survey of State Courts 1992, 1996,
and 2001 Data, 3 J. of Empirical Legal Studies 263, 278 (2006) (hereinafter
Juries, Judges, and Punitive Damages) (analyzing Bureau of Justice Statis
tics 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 popu
lous counties and finding that the median punitive-damages award in civil
jury trials decreased between 1992 and 2001).
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 (find
ing 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 populous
counties, and finding that in jury trials where the plaintiff prevailed, 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 signifi
cant decrease in the percentage of verdicts in “financial injury” cases that
include a punitive-damages award, from 15.8% in the early 1980s to 12.7%
in the early 1990s). But see Punitive Damages: Empirical Findings 9
(finding an increase in the percentage of civil trials resulting in punitive

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ures thus show an overall restraint and suggest that in many
instances a high ratio of punitive to compensatory damages
is substantially 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 accept
able. The available data suggest it is not. A recent com
prehensive study of punitive damages awarded by juries in
state civil trials found a median ratio of punitive to compen
satory 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 sta
damages 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 settle
ment negotiations and other litigation decisions. See, e. g., Financial In
jury Jury Verdicts 287; Polinsky, Are Punitive Damages Really Insignifi
cant, 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 im
pact” 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 set
tled”); Kritzer & Zemans, The Shadow of Punitives, 1998 Wis. L. Rev. 157,
160 (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)).
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

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tistics, 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 distri
bution of awards is narrower, but still remarkable, among
punitive damages assessed by judges: the median ratio is
0.66:1, the mean ratio is 1.60:1, and the standard deviation 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 compen
satory damages, see Ostrom, Rottman, & Goerdt, A Step
Above Anecdote: A Profile of the Civil 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 puni
tive 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 desir
able if they resulted from judges’ and juries’ refining their
judgments to reach a generally accepted optimal level of pen
alty and deterrence in cases involving a wide range of cir
cumstances, 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 suggests that nothing of
that sort is going on. One of our own leading cases on puni
tive 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 dam
ages” but “no punitive damages at all.” See Gore, 517 U. S.,
at 565, n. 8. As the Supreme Court of Alabama candidly
and 2001. The three separate data sets cover state courts of general ju
risdiction in a random sample of 46 of the 75 most populous counties in
the United States.” Juries, Judges, and Punitive Damages 267. The in
formation was “gathered directly” from state-court clerks’ offices and the
study did “not rely on litigants or third parties to report.” Ibid.

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explained, “the disparity 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
E
The Court’s response to outlier punitive-damages awards
has thus far been confined by claims at the constitutional
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 constitutional line is marked by
a simple mathematical formula,” id., at 582, we have deter
mined that “few awards exceeding a single-digit ratio be
tween 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 guaran
tee,” ibid.
Today’s enquiry differs from due process review because
the case arises under federal maritime jurisdiction, and we
17 The Court is aware of a body of literature running parallel to anec
dotal reports, examining the predictability of punitive awards by conduct
ing numerous “mock juries,” where different “jurors” are confronted 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 Sever
ity 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, & 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.

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are reviewing a jury award for conformity with maritime
law, rather than the outer limit allowed by due process; we
are examining the verdict in the exercise of federal maritime
common law authority, which precedes and should obviate
any application of the constitutional standard. Our due
process cases, on the contrary, have all involved awards sub
ject 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 Ala
bama 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 pro
vide no occasion to consider a “common-law standard of ex
cessiveness,” Browning-Ferris Industries, 492 U. S., at 279,
and the only matter of federal law within our appellate au
thority was the constitutional due process issue.
Our review of punitive damages today, then, considers not
their intersection with the Constitution, but the desirability
of regulating them as a common law remedy for which re
sponsibility lies with this Court as a source of judge-made
law in the absence of statute. Whatever may be the consti
tutional 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 impli
cation of unfairness that an eccentrically high punitive ver
dict 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 sever
ity, 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.

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Cf. Koon v. United States, 518 U. S. 81, 113 (1996) (noting the
need “to reduce unjustified disparities” in criminal sentenc
ing “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 approaches
to consider, one verbal and two quantitative. As mentioned
before, a number of state courts have settled on criteria for
judicial review of punitive-damages awards that go well be
yond traditional “shock the conscience” or “passion and prej
udice” tests. Maryland, for example, has set forth a nonex
clusive 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). Alabama has seven general crite
ria, such as “actual or likely harm [from the defendant’s con
duct],” “degree of reprehensibility,” 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 un
constitutionally 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 pen
alty. In Maryland, for example, which allows punitive dam
ages for intentional torts and conduct characterized by “ac
tual malice,” U. S. Gypsum Co. v. Mayor and City Council

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of Baltimore, 336 Md. 145, 185, 647 A. 2d 405, 424–425 (1994),
juries may be instructed that
“[a]n 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 defend
ant’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 con
sidering “the character and degree of the wrong as shown
by the evidence in the case, and the necessity of prevent
ing 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. Instructions
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 experience with at
tempts to produce consistency in the analogous 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 damages
advance the interests of punishment and deterrence, which
are also among the interests advanced by the criminal law.”
Browning-Ferr is Industries, supra, at 275.18 See also
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 492 U. S., at 275. That conclusion did not re
ject the punitive nature of the damages, see ibid., but rested entirely upon

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1977 Restatement § 908, Comment a, at 464 (purposes of pu
nitive damages are “the same” as “that of a fine imposed
after a conviction of a crime”); 18 U. S. C. § 3553(a)(2) (requir
ing sentencing courts to consider, inter alia, “the need for
the sentence imposed . . . to provide just punishment for
the offense” and “to afford adequate deterrence to criminal
conduct”); United States Sentencing Commission, Guidelines
Manual § 1A1.1, comment. (Nov. 2007).
It is instructive, then, that in the last quarter century fed
eral sentencing rejected an “indeterminate” system, with
relatively unguided discretion to sentence within a wide
range, under which “similarly situated offenders were sen
tenced [to], and did actually serve, widely disparate sen
tences.” 19 Instead it became a system of detailed guidelines
tied to exactly quantified sentencing results, under the au
thority 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 consistency.
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 damages today,
be they judges or juries, except that they lack even a statu
tory maximum; their only restraint beyond a core sense of
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 prose
cuted 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.
19 Nagel, Structuring Sentencing Discretion: The New Federal Sentenc
ing Guidelines, 80 J. Crim. L. & C. 883, 895–899 (1990) (citing studies and
congressional hearings).

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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).
2
This is why our better judgment is that eliminating unpre
dictable outlying punitive awards by more rigorous stand
ards 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 495–496, 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 fig
ure, 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
variation 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 Enterprise Re
sponsibility for Personal Injury: Reporters’ Study 258 (1991)
(hereinafter ALI Reporters’ Study) (“[T]he compensatory

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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) (recom
mending a presumptive punitive-to-compensatory damages
ratio). As the earlier canvass of state experience showed,
this is the model many States have adopted, see supra, at
496, and n. 12, and Congress has passed analogous legislation
from time to time, as for example in providing treble dam
ages in antitrust, racketeering, patent, and trademark ac
tions, 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 po
tential relevance of the ratio between compensatory and pu
nitive 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 pol
icy and too little of principle. Cf. Moviecolor Ltd. v. East
man Kodak Co., 288 F. 2d 80, 83 (CA2 1961). But the an
swer 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 dam
ages 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 dam
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).

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ages, the handiwork in setting single-digit and 1-to-1 bench
marks could hardly be questioned”); 2 ALI Reporters’ Study
257 (recommending adoption of ratio, “probably legislatively,
although possibly judicially”).
History certainly is no support for the notion that judges
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, Limitation of Actions § 1, p. 4 (4th D. Moore ed.
1916). For more examples, see 1 W. Blackstone, Commen
taries on the Laws of England 451 (1765) (listing other com
mon law age cutoffs 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 constitutionality 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 516–519 (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 traditional 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 gov
erning 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) (recognizing cause of action for loss of
consortium); Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970)
(recognizing cause of action for wrongful 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

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Opinion of the Court
Although the legal landscape is well populated with exam
ples of ratios and multipliers expressing policies of retribu
tion and deterrence, most of them suffer from features that
stand in the way of borrowing them as paradigms of reason
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 mari
time collision cases is a task for Congress and not for this Court. But
the Judiciary has traditionally taken the lead in formulating flexible and
fair remedies in the law maritime, and Congress has largely left to
this Court the responsibility for fashioning the controlling rules of admi
ralty 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
proportionate-fault rule for calculation of nonsettling maritime tort de
fendants’ 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 . . . occasion
ally created exceptions to the rule. Perhaps the most noteworthy 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 responsibilities 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 con
gressional 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 toward reading the tea leaves of con
gressional 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 congressional revision. See, e. g., Reliable Transfer,
supra, at 409.

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510 EXXON SHIPPING CO. v. BAKER
Opinion of the Court
able limitations suited for application to 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
exposing the tortfeasor to certain regulatory sanctions and
inevitable damages 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 increas
ing a tortfeasor’s financial gain.24 We confront, instead, a
22 Although the jury heard evidence that Exxon may have felt con
strained not to give Hazelwood a shoreside assignment because of a con
cern 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 motivated by fi
nancial gain and the adverse consequences of the conduct were actually
known by the defendant or the person responsible for making policy deci

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case of reckless action, profitless to the tortfeasor, resulting
in substantial recovery for substantial injury. Thus, a legis
lative 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 compen
satory 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 governing rules in patent or
trademark cases, say, is doubtful at best. And in some in
stances, we know that the considerations that went into mak
ing a rule have no application here. We know, for example,
that Congress devised the treble-damages remedy for pri
vate antitrust actions with an eye to supplementing official
enforcement by inducing private litigation, which might oth
erwise have been too rare if nothing but compensatory dam
ages 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 staggering damage inevitably provoking governmen
tal enforcers to indict and any number of private parties to
sue. To take another example, although 18 U. S. C. § 3571(d)
sions on behalf of the defendant, the normal limit is replaced by the
greater of four times the compensatory damages, 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 moti
vated solely by unreasonable financial gain, and the unreasonably danger
ous 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 (racketeering);
35 U. S. C. § 284 (patent); 15 U. S. C. § 1117 (2000 ed. and Supp. V) (trade
mark); 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).

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512 EXXON SHIPPING CO. v. BAKER
Opinion of the Court
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 envi
ronmental treble-damages schemes offer little more support:
for one thing, insofar as some appear to punish even negli
gence, see, e. g., Mass. Gen. Laws, ch. 130, § 27 (2007), while
others target only willful conduct, see, e. g., Del. Code Ann.,
Tit. 25, § 1401 (1989), some undershoot and others may over
shoot 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 11⁄ 2 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 reasonable
civil penalty, however, in several studies mentioned before,
showing the median ratio of punitive to compensatory ver
dicts, reflecting what juries and judges have considered
reasonable across many hundreds of punitive awards. See
supra, at 497–498, and n. 14. We think it is fair to assume
that the greater share of the verdicts studied in these com
prehensive 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
blameworthy conduct triggering punitive liability, from mal
ice and avarice, down to recklessness, and even gross negli
gence in some jurisdictions. The data put the median ratio
for the entire gamut of circumstances at less than 1:1, see
supra, at 497–498, and n. 14, meaning that the compensatory
award exceeds the punitive award in most cases. In a well

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functioning system, we would expect that awards at the me
dian or lower would roughly express jurors’ sense of reason
able penalties in cases with no earmarks of exceptional
blameworthiness within the punishable spectrum (cases like
this one, without intentional or malicious conduct, and with
out behavior driven primarily by desire for gain, for exam
ple) and cases (again like this one) without the modest eco
nomic 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 question are above the median; in theory a
factfinder’s deliberation 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 constitu
tional 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 0.65:1 26 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 disruptive
cost to the legal system) of awards that are unpredictable
and unnecessary, either for deterrence or for measured retri
bution, we consider that a 1:1 ratio, which is above the me
dian award, is a fair upper limit in such maritime cases.27
26 See n. 14, supra, for the spread among studies.
27 The reasons for this conclusion answer Justice Stevens’s suggestion,
post, at 521–522, 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.
Justice Stevens also suggests that maritime tort law needs a quanti
fied limit on punitive awards less than tort law generally because punitives

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514 EXXON SHIPPING CO. v. BAKER
Opinion of the Court
The provision of the CWA respecting daily fines confirms
our judgment that anything greater would be excessive 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 discretion to double the civil
liability on conduct going beyond negligence and meriting
punitive treatment. And our explanation of the constitu
tional upper limit confirms that the 1:1 ratio is not too low.
In State Farm, we said that a single-digit maximum is appro
may mitigate maritime law’s less generous scheme of compensatory dam
ages. Post, at 519–520. 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 compen
satory 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 492–493. 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 punishing unlawful conduct and deterring
its repetition’ ” (quoting BMW of North America, Inc. v. Gore, 517 U. S.
559, 568 (1996))); 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’ in
tended to punish the defendant and to deter future wrongdoing”).

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priate 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 relevant
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 deci
sion of this case.
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 im
posed upon punitive damages. While I agree with the ar
gumentation 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).
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 substan
tial. In this case, then, the constitutional outer limit may well be 1:1.

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516 EXXON SHIPPING CO. v. BAKER
Opinion of Stevens, J.
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 mari
time law “ ‘is judge-made law to a great extent,’ ” ante, at
490 (quoting Edmonds v. Compagnie Generale Transatlan
tique, 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 acceptability of an award of punitive
damages, on the one hand, and embarking on a new lawmak
ing 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 re
strict the availability of a particular remedy favors adher
ence 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 imposing the sort of
limitation the Court announces today. Applying the tradi
tional 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 federal legisla
tion.” In light of the many statutes governing liability
under admiralty law, the absence of any limitation on an
award of the sort at issue in this case suggests that Congress

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Opinion of Stevens, J.
would not wish us to create a new rule restricting the liabil
ity of a wrongdoer like Exxon.
For example, the Limitation of Shipowners’ Liability Act
(Limitation Act), 46 U. S. C. App. § 183,1 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 Amer
ican or foreign, for any embezzlement, loss, or destruc
tion by any person of any property, goods, or merchan
dise shipped or put on board of such vessel, or for any
loss, damage, or injury by collision, or for any act, mat
ter, or thing, loss, damage, or forfeiture, done, occa
sioned, or incurred, without the privity or knowledge
of such owner or owners, shall not, except in the cases
provided for in subsection (b) of this section, exceed the
amount or value of the interest of such owner in such
vessel, and her freight then pending.” § 183(a) (empha
sis 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
1 The Limitation Act is now codified as amended at 46 U. S. C. § 30505.
See Pub. L. 109–304, § 6, 120 Stat. 1513.
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 in it
cannot be denied the benefit of the limitation as respects a loss incurred
by an explosion during the period of storage, unless ‘privity’ or ‘knowl
edge’ are to become empty words”).

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518 EXXON SHIPPING CO. v. BAKER
Opinion of Stevens, J.
invoke the protection of the Limitation Act because it recog
nized 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 re
solve this case, the fact that Congress chose to provide such
generous protection against liability without including a
party like Exxon within that protection counsels against ex
tending a similar benefit here.
The Limitation Act is only one of several statutes that
point to this conclusion. In the Trans-Alaska Pipeline Au
thorization Act (TAPAA), 87 Stat. 584, 43 U. S. C. § 1651
et seq., Congress altered the liability regime governing cer
tain types of Alaskan oil spills, imposing strict liability but
also capping recovery; notably, it did not restrict the avail
ability of punitive damages.4 (Exxon unsuccessfully argued
that 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, Con
3 Testimony at an early phase of this protracted litigation confirmed as
much. In a hearing before the District Court, one of Exxon’s attorneys
explained that his firm advised Exxon in 1989 that Exxon would “ ‘never
be able to sustain its burden to show lack of privity or knowledge with the
use of alcohol by Captain Hazelwood.’ ” App. to Brief in Opposition 43a.
4 Although the issue has not been resolved by this Court, there is evi
dence that in passing TAPAA, Congress meant to prevent application 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 mari
time 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”).

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gress did not displace or in any way diminish the availability of
common-law punitive damages remedies. Ante, at 488–489.
The congressional choice not to limit the availability of pu
nitive damages under maritime law should not be viewed as
an invitation to make policy judgments on the basis of evi
dence 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 assembled
is problematic for several reasons. First, I believe that the
Court fails to recognize a unique feature of maritime law
that may counsel against uncritical reliance on data from
land-based tort cases: General maritime law limits the avail
ability of compensatory damages. Some maritime courts
bar recovery for negligent infliction of purely emotional dis
tress, see 1 T. Schoenbaum, Admiralty and Maritime Law
§ 5–15 (4th ed. 2004),5 and, on the view of many courts, mari
time 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
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.” Admiralty and
Maritime Law § 5–15, at 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 Robins
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 ex rel. Guste v. M/V Testbank, 752 F. 2d 1019, 1020 (CA5 1985)
(en banc) (affirming rule denying recovery for economic loss absent “physi
cal damage to a proprietary interest . . . in cases of unintentional mari
time tort”).

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520 EXXON SHIPPING CO. v. BAKER
Opinion of Stevens, J.
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, 438, n. 11 (2001):
“Until well into the 19th century, punitive damages fre
quently operated to compensate for intangible injuries,
compensation which was not otherwise available under
the narrow conception of compensatory damages preva
lent at the time. . . . As the types of compensatory dam
ages available to plaintiffs have broadened, 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 dam
ages), the theory behind punitive damages has shifted
toward a more purely punitive . . . 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 legislatures,
not courts. Although the Court offers a great deal of evi
dence that States have acted in various ways to limit puni
tive damages, it is telling that the Court fails to identify 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 com
peting 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

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521 Cite as: 554 U. S. 471 (2008)
Opinion of Stevens, J.
The Court concedes that although “American punitive
damages have been the target of audible criticism in recent
decades,” “most recent studies tend to undercut much of
[that criticism].” Ante, at 497. 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 inherent in such
excessive awards.
Until Congress orders us to impose a rigid formula to gov
ern 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 appellate
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)
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 considerations 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 diffi
culty of these policy considerations, and Congress’ superior institutional
competence to pursue this debate, suggest that legislative not judicial solu
tions 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 propor
tional 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 con
trast, the Court in this case has failed to demonstrate that adoption of the
rule it announces brings the maritime law into line with expressions of
congressional intent in this (or any other) context.

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522 EXXON SHIPPING CO. v. BAKER
Opinion of Stevens, J.
(“Under the traditional common-law approach, the amount of
the punitive award is initially determined by a jury in
structed 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 In light
of Exxon’s decision to permit a lapsed alcoholic to command
a supertanker carrying tens of millions of gallons 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 reason
ably have given expression to its “moral condemnation” of
Exxon’s conduct in the form of this award. Cooper Indus
tries, Inc., 532 U. S., at 432.
I would adhere to the principle that “ ‘it better becomes
the humane and liberal character of proceedings in admiralty
to give than to withhold the remedy, when not required to
withhold it by established and inflexible rules.’ ” Moragne
v. States Marine Lines, Inc., 398 U. S. 375, 387 (1970) (quot
ing Chief Justice Chase in The Sea Gull, 21 F. Cas. 909, 910
(No. 12,578) (CC Md. 1865)).
* * *
While I do not question that the Court possesses the
power to craft the rule it announces today, in my judgment
8 The idiosyncratic posture of this case makes true abuse-of-discretion
appellate review something of a counterfactual, since the $5 billion award
returned by the jury was, after several intervening steps, ultimately re
mitted 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.

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523 Cite as: 554 U. S. 471 (2008)
Opinion of Ginsburg, J.
it errs in doing so. Accordingly, I respectfully dissent
from Parts IV and V of the Court’s opinion, and from its
judgment.
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 do
main 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 America,
Inc. v. Gore, 517 U. S. 559, 574–585 (1996) (same). The con
troversy here presented “arises under federal maritime ju
risdiction,” ante, at 501 (opinion of the Court), and, beyond
question, “the Court possesses the power to craft the rule
it announces today,” ante, at 522 (Stevens, J., concurring
in part and dissenting in part). The issue, therefore, is
whether the Court, though competent to act, should never
theless leave the matter to Congress. The Court has ex
plained, 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 mari
time law to break away from the “traditional common-law
approach” under which punitive damages are determined by
a properly instructed jury, followed by trial-court, and then
appellate-court review, “to ensure that [the award] is reason
able.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 15
(1991). The Court acknowledges that the traditional ap
proach “has not mass-produced runaway awards,” ante, at
497, or endangered settlement negotiations, ante, at 498–499,
n. 15. Nor has the Court asserted that outlier awards, insuf
ficiently checked by abuse-of-discretion review, occur more

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524 EXXON SHIPPING CO. v. BAKER
Opinion of Ginsburg, J.
often or are more problematic 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 494. What ratio will the
Court set for defendants who acted maliciously or in pursuit
of financial gain? See ante, at 510–511. Should the magni
tude of the risk increase the ratio and, if so, by how much?
Horrendous as the spill from the Valdez was, millions of gal
lons more might have spilled as a result of Captain Hazel
wood’s attempt to rock the boat off the reef. See ante, at
478 (opinion of the Court); cf. TXO Production Corp. v. Alli
ance Resources Corp., 509 U. S. 443, 460–462 (1993) (plurality
opinion) (using potential loss to plaintiff as a guide in deter
mining whether jury verdict was excessive). 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
515, n. 28. On next opportunity, will the Court rule, defini
tively, 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 Jus
tice Stevens’ comment on the venturesome character of
the Court’s decision. In the States, he observes, fixed ratios
and caps have been adopted by legislatures; this Court has
not identified “[any] state court that has imposed a precise
ratio” in lieu of looking to the legislature as the appropriate
source of a numerical damages limitation. Ante, at 520.
* * *
For the reasons stated, I agree with Justice Stevens
that the new law made by the Court should have been left

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525 Cite as: 554 U. S. 471 (2008)
Opinion of Breyer, J.
to Congress. I would therefore affirm the judgment of the
Court of Appeals.
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 puni
tive 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 ensure 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 ensure the uniform treatment of similarly situ
ated persons. See BMW of North America, Inc. v. Gore,
517 U. S. 559, 587 (1996) (Breyer, J., concurring). Legal
standards, however, can secure these objectives 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 example, we said that “few
awards exceeding a single-digit ratio between punitive and
compensatory damages, to a significant 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
reckless behavior. The jury could reasonably have believed
that Exxon knowingly allowed a relapsed alcoholic repeat
edly 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 mat
ter of time before a crash and spill like this occurred. And
as Justice Ginsburg points out, the damage easily could
have been much worse. See ante, at 524 (opinion concurring
in part and dissenting in part).

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526 EXXON SHIPPING CO. v. BAKER
Opinion of Breyer, J.
The jury thought that the facts here justified punitive
damages of $5 billion. See ante, at 480–481 (opinion of the
Court). The District Court agreed. It “engaged in an ex
acting 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 District 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 con
duct was highly reprehensible,” and it reduced the award
(slightly) only when the Court of Appeals specifically de
manded 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 con
duct. Ibid. And, apparently for that reason, it believed
that the facts of the case “justifie[d] a considerably 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 numerical
rule. The punitive damages award before us already repre
sents a 50% reduction from the amount that the District
Court strongly believed was appropriate. I would uphold it.