Judge Kozinski's dissent from denial of rehearing en banc makes a pretty persuasive case for Supreme Court review. According to the dissent, both U.S. Supreme Court admiralty law precedent and the law of other circuits "protect[s] ship owners from liability for punitive damages based solely on the fault of captain and crew." The Ninth Circuit is apparently the one outlier.

This sort of circuit split, coupled with the importance of the issue -- both in this $2.5 billion case and in the multi-billion-dollar shipping business generally -- should make Supreme Court review quite likely (and appropriate). If the Solicitor General's office weighs in with a brief supporting review, that would further increase the likelihood of certiorari. (Judge Kozinski also argues that there's an intracircuit split on the legal question, with different Ninth Circuit panel decisions resolving the issue in different ways. The presence of the intracircuit split is not itself much of a factor in favor of Supreme Court review, though it should have been a factor in favor of en banc review.)

I know very little about admiralty law, which is why I make clear here that I am relying on Judge Kozinski's opinion. But I have found Judge Kozinski's work to be extremely trustworthy (and I know the man well, having worked for him). If he says there's a square split here, that's good enough for me.

Check out, incidentally, how the earlier panel decision in this case explains its resolution of the intracircuit split, by reasoning that Pacific Mutual Life Ins. Co. v. Haslip -- a 1991 decision about the constitutionality of punitive damages, which said nothing about admiralty law principles -- implicitly superseded preexisting precedent on the admiralty law question. 270 F.3d 1215, 1235-36 (9th Cir. 2001). That's the one part of the Kozinski opinion I did check out, simply because I found it interesting, and Kozinski's criticism of the earlier panel decision strikes me as completely apt.

Thanks to How Appealing for the pointer.