Justices Assess Financial Damages in Exxon Valdez Case

But Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy were more sympathetic to that argument, wondering whether Hazelwood was senior enough in the corporate structure for his actions to open the entire company to what Dellinger called "vicarious liability."

Roberts said Hazelwood violated Exxon corporate policy that night both by drinking and by his actions on the ship. "So what can a corporation do to protect itself against punitive damages awards such as this?" Roberts asked Jeffrey L. Fisher, a lawyer and Stanford law professor representing the plaintiffs.

Fisher replied that Exxon had a "paper" policy but did not follow it. Despite years of evidence that Hazelwood was drinking again, Fisher said, Exxon kept him in place, "putting a drunken master in charge of a supertanker."

Ginsburg was the only justice active in the questioning who did not raise the issue of whether the punitive award is excessive. Souter wondered if a fair formula might be to double compensatory damages, which the U.S. Court of Appeals for the Ninth Circuit found to be around $500 million. Justice Antonin Scalia said the court might look to the amount of civil penalties available under the Clean Water Act. Justice Stephen G. Breyer wondered about principles for "creating a fair system that isn't just arbitrary."

The two attorneys reacted to the discussion with appeals that sounded as if they were intended for a jury.

Dellinger welcomed a discussion of lower awards, but returned to his argument that punitive damages should be to punish a company for wrongdoing related to profit or intentional harm.

"That is not true here," he said. "Exxon gains nothing by what went wrong in this case, and paid dearly for it."

But Fisher said Exxon had not learned a lesson from the disaster; Hazelwood was fired, and "everybody else . . . further up the chain of command who allowed this to happen received bonuses and raises."

Fisher closed: "What you have today are 32,000 plaintiffs standing before this court, each of whom have received only $15,000 for having their lives and livelihood destroyed, and haven't received a dime of emotional distress damages."

The case is Exxon Shipping Co. v. Baker.