Collins v. A.B.C. Marine Towing, L.L.C. et al

Filing 213

ORDER & REASONS that the 153 Board of Commissioners Port of New Orleans' Motion to Dismiss for Failure to State a Claim is DENIED. Signed by Judge Eldon E. Fallon. (Reference: 14-1900)(dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MICHELLE COLLINS, INDIVIDUALLY AND
*
AS PERSONAL REPRESENTATIVE OF THE ESTATE *
OF MICHAEL COLLINS
*
*
VERSUS
*
*
A.B.C. MARINE TOWING, L.L.C. AND
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BOARD OF COMMISSIONERS PORT
*
OF NEW ORLEANS
*

CIVIL ACTION

NO. 14-1900
SECTION: “L” (3)

ORDER & REASONS
Before the Court is a Rule 12(b)(6) motion to dismiss Plaintiff’s punitive damage claims
alleging gross negligence under general maritime law. (R. Doc. 153). The Court has reviewed
the briefs and the applicable law and now issues this Order and Reasons.
I.

BACKGROUND
This case arises out of a fatal allision with the Florida Avenue lift bridge (the “Bridge”),

which spans the Inner Harbor Navigational Canal in Orleans Parish, Louisiana. On, or about,
August 12, 2014, the M/V CORY MICHAEL (“CORY MICHAEL”) was towing the 4600
Ringer Crane Barge and Manitowic 4600 Ringer Crane (collectively the “Crane Barge”) through
the Canal from the Intercoastal Waterway towards the Mississippi River. The COREY
MICHAEL was owned and operated by ABC Marine whereas the Crane Barge was owned by
Boh Bros. At approximately midnight on August 13, 2014, the mast of Crane Barge allided with
the bridge, causing the crane boom to fall onto the pilot house from which Michael Collins was
operating the CORY MICHAEL, which resulted in his death.
Decedent’s widow, Michelle Collins (“Plaintiff”), sued ABC Marine L.L.C. as
decedent’s Jones Act employer/vessel owner alleging negligence under the Jones Act, 46 U.S.C.

§ 30104, et seq., and vessel unseaworthiness; sued Boh Bros. Construction Co. as owner of the
Crane Barge alleging general maritime law negligence; and sued the Board of Commissioners of
the Port of New Orleans (the “Board”) as owner and operator of the Bridge alleging general
maritime law negligence. Following discovery, on July 8, 2015, Plaintiff filed a Second
Amended Complaint alleging gross negligence by the Board and seeking punitive damages. (R.
Doc. 148). The Board has brought the present Rule 12(b)(6) motion to dismiss Plaintiff’s claims
for punitive damages arguing that punitive damages are not recoverable as a matter of law under
either the Jones Act or general maritime law.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim if the claimant

fails to set forth a factual allegation in support of its claim that would entitle it to relief. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). Those “ ‘[f]actual allegations must be
enough to raise a right to relief above the speculative level.’ “Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir.2009) (quoting Twombly, 550 U.S. at 555).“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ “Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The Court must accept all well-pleaded facts as true and draw
all reasonable inferences in favor of the non-moving party, Lormand v. U.S. Unwired, Inc., 565
F.3d 228, 232 (5th Cir.2009), but the Court need not accept as true legal conclusions couched as

factual allegations. Iqbal, 556 U.S. at 678. “[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 679.
III.

PRESENT MOTION
The fact in the complaint which is most relevant to the instant motion is that the Decedent

was a seaman killed in Louisiana territorial waters allegedly due to the gross negligence of the
Board, a third party tortfeasor who was not the Decedent’s employer. Plaintiff brings a claim for
punitive damages against the Board under the general maritime law. The Board argues that the
Plaintiff does not possess a cause of action for punitive damages based on Miles v. Apex Marine
Corp., 498 U.S. 19 (1990), McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014) (en
banc), and Scarborough v. Clemenco Industries, 391 F.3d 660 (5th Cir. 2004). The Plaintiff
opposes the Defendant’s motion, arguing that none of those three cases are controlling in the
instant matter.
The issue plainly before this Court is whether the prohibition of a seaman’s recovery
under general maritime law for non-pecuniary damages against an employer, as set forth in Miles
and affirmed in McBride, extends to a non-employer third party tortfeasor.
IV.

GOVERNING LAW ON MARITIME PUNITIVE DAMAGES
A brief history of federal maritime law in regards to non-pecuniary and punitive damages

is useful here. In 1920, Congress enacted the Jones Act, 46 U.S.C. § 30104, which extended to
seamen the same negligence remedy afforded to railway employees under the Federal
Employers’ Liability Act (“FELA”). Under the Jones Act, seamen and their survivors are
permitted to sue for compensation for personal injury or wrongful death based on the negligence
of the seamen’s employers.

a. Miles v. Apex
The recognition of punitive damages as a remedy under common law and general
maritime law for wilful and wanton misconduct pre-dates the adoption of the Constitution. See
Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 409-11 (2009) (re-affirming the “general rule
that punitive damages were available at common law [and] extended to claims arising under
federal maritime law.”) Yet, despite this long-standing tradition of permitting punitive damages,
the Supreme Court held in Miles v. Apex that “there is no recovery for loss of society in a general
maritime action for the wrongful death of a Jones Act seaman.” 498 U.S. at 32. In so holding,
the Miles Court ruled that a Jones Act seaman unable to sue his employer for non-pecuniary
damages directly under a Jones Act negligence claim should not be able to sue his employer for
the same damages under a general maritime law unseaworthiness claim. The Miles Court
reasoned, “It would be inconsistent with our place in the constitutional scheme were we to
sanction more expansive remedies in a judicially created cause of action in which liability is
without fault than Congress has allowed in cases of death resulting from negligence.” The Miles
rationale was extended in subsequent decisions, nearly eliminating punitive damages as a
maritime remedy in personal injury and wrongful death litigation. See e.g., Michel v. Total
Transp., Inc., 957 F.2d 186, 191 (5th Cir. 1992)(“follow[ing] the lead of Miles [and] hold[ing]
that damages recoverable in general maritime causes of action for personal injury of a Jones Act
seaman do not include loss of consortium.”)
b. Atlantic Sounding Co. v. Townsend
In Townsend, the Supreme Court revisited the expansive interpretation of Miles. The
issue in Townsend was whether an injured seaman could recover punitive damages for his

employer’s willful failure to furnish maintenance and cure. Despite noting that the “reasoning of
Miles remains sound,” the Court held that Miles did not preclude punitive damages for wanton
and wilful failure to pay maintenance and cure. 557 U.S. at 420. Moreover, the Townsend Court
went on to criticize the expansive interpretation of Miles that had been relied upon to preclude
the recovery of punitive damages:
[This] reading of Miles is far too broad. Miles does not address either
maintenance and cure actions in general or the availability of punitive damages
for such actions. The decision instead grapples with the entirely different
question whether general maritime law should provide a cause of action for
wrongful death based on unseaworthiness. By providing a remedy for wrongful
death suffered on the high seas or in territorial waters, the Jones Act and DOHSA
displaced a general maritime rule that denied any recovery for wrongful death…
Unlike the situation presented in Miles, both the general maritime cause of action
(maintenance and cure) and the remedy (punitive damages) were well established
before the passage of the Jones Act… Because punitive damages have long been
an accepted remedy under general maritime law, and because nothing in the Jones
Act altered this understanding, such damages for the wilful and wanton disregard
of the maintenance and cure obligations should remain available in the
appropriate case as a matter of general maritime law.
Id. at 419-420. In holding that a Jones Act seaman has a general maritime law punitive damage
remedy for wilful failure to pay maintenance and cure, the Townsend Court stated that the
“laudable quest for uniformity does not require narrowing of damages to the lowest common
demoninator approved by Congress for distinct causes of action.” Id. at 424. In the wake of
Townsend, the law with respect to punitive damages in maritime cases became somewhat
unsettled as lower courts were forced to determine the extent to which the reasoning of Miles
remained “sound.”
c. McBride v. Estis Well Service
On rehearing en banc, in an effort to to clarify some of the post-Townsend uncertainty,
the Fifth Circuit sought to determine whether the Supreme Court’s decision in Miles, holding

that the Jones Act limits a seaman’s recovery against his employer for personal injuries or
wrongful death resulting from negligence or unseaworthiness under the general maritime law to
“pecuniary losses,” is still good law and whether that holding precludes plaintiffs’ claims for
punitive damages. McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, 385 (5th Cir. 2014) cert.
denied, (2015)
Emphasizing the fact that the Townsend court distinguished maintenance and cure from
the seamen’s remedies for compensatory damages based on negligence and unseaworthiness, the
McBride court held that there is no right to recover punitive damages from a Jones Act employer
under the general maritime law for gross unseaworthiness. Id. at 391.
V.

ANALYSIS
It is indisputable that Miles and McBride involve claims for wrongful death of a seaman

against a Jones Act employer. In other words, neither the Miles nor the McBride opinions
address an action by a seaman against a non-employer third party tortfeasor. The Jones Act
forecloses recovery for non-pecuniary loss in general maritime law cases only with respect to the
relationship between a seaman and his employer. A seaman’s status is relevant only in actions
under the Jones Act or, after Miles and McBride, under the general maritime law against his
employer. The Jones Act has no bearing on Plaintiff’s claim against the Board. As far as the
Board is concerned, it should make no difference whether the Plaintiff was a seaman, a
longshoreman or a passenger. Thus, there is no need for uniform treatment of an employer and a
third party tortfeasor where there is no statutory remedy that is different than the general
maritime law remedy.
For example, if a seaman was transporting goods on land in the course and scope of his
employment and was struck by a drunk driver, he may bring a claim against the drunk driver.

The seaman may also have a claim against his or her employer as he was acting within the course
and scope of his employment; however, his status as a seaman is irrelevant in his action against
the drunk driver. The only relevant question is whether he does, in fact, have a cause of action
for punitive damages under Louisiana law, which he undoubtedly does. La. Civ. Code Ann. art.
2315.4. Similarly, here, the Plaintiff’s status as a seaman is irrelevant in his action against the
Board. Again, the only relevant question is whether he has a gross negligence claim for punitive
damages under general maritime law. And, the relevant case law answers this question in the
affirmative. See Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009) (holding that a Jones
Act seaman has a general maritime law punitive damage remedy for wilful failure to pay
maintenance and cure because of the long-standing historical availability of punitive damages
under general maritime law); see also Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)(holding
that fishermen could recover punitive damages under general maritime law for pure economic
harm following the Exxon Valdes disaster because such damages were not pre-empted by
Congress. 1).
Despite the foregoing, it must be recognized that in Scarborough v. Clemenco Industries,
the Fifth Circuit held “that neither one who has invoked his Jones Act seaman status nor his
survivors may recover nonpecuniary damages from non-employer third parties.” 391 F.3d 660,
668 (5th Cir. 2004). In Scarborough, the family of a deceased Jones Act seaman sued nonemployer third parties under general maritime products liability law. Specifically, and relying
heavily of Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995)(en banc),
1

“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, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (“In order to abrogate a
common-law principle, the statute must speak directly to the question addressed by the common law” (internal
quotation marks omitted)); nor for that matter do we perceive that punitive damages for private harms will have any
frustrating effect on the CWA remedial scheme, which would point to preemption.” Exxon Shipping Co. v. Baker,
554 U.S. 471, 489 (2008).

Scarborough held that Miles precluded a seaman’s survivors from recovery of non-pecuniary
damages from non-employer third parties, stating:
In Guevara, this court found that no Congressional remedial scheme prohibited
the award of non-pecuniary damages in general maritime suits for maintenance
and cure. The court still found, however, that non-pecuniary damages should not
be allowed based on two factors. First, although no Congressional act was
directly applicable, the court found that Congressional acts apply to highly
analogous factual scenarios and that the judiciary should not allow more
expansive remedies in a judicially created cause of action then Congress had
allowed in related remedial schemes. Second, the court found that a concern for
uniformity in federal admiralty law, as strongly expressed in Miles, militated
against allowing punitive damages in one class of maintenance and cure actions
but not in another. Similar concerns are applicable in this case.
Scarborough, 391 F.3d at 668. The Fifth Circuit in Scarborough used the analysis in
Guevara to justify broadening the Miles limitation of general maritime law punitive
damage recovery to third party claims.
While the Court understands its obligation to follow Fifth Circuit precedent, the basis of
Scarborough is Guevara, which was abrograted by Townsend. Thus, Scarborough has been
effectively overruled. Townsend, which was decided after Scarborough in 2009, calls into
question the legal reasoning and conclusions espoused in Scarborough. In Townsend, the
Supreme Court reined in the expansive interpretation of Miles, finding that the “laudable quest
for uniformity does not require narrowing of damages to the lowest common denominator
approved by Congress for distinct causes of action.” Townsend, 557 U.S. at 424. Thus, given
that the Townsend court not only abrogated Guevara, but specifically limited the broad
application of Miles, Scarborough is inconsistent with current Supreme Court precedent. The
takeaway from Townsend, the governing Supreme Court law on the availability of punitive
damages under general maritime law, is that a seaman can recover punitive damages under
general maritime law if the Jones Act is not implicated. In fact, if the Jones Act is not implicated,
the seaman is treated no differently in his ability to bring a cause of action than a non-seaman.

Neither the Jones Act nor the Death on the High Seas Act (DOHSA) apply to Plaintiff’s
claim against the Board. Plaintiff is asserting a non-seaman general maritime law claim for
punitive damages. The general maritime law as created in Baker and Townsend no longer
support denial of this remedy. And, in light of Townsend, which emphasizes the fact that Miles
deals with whether general maritime law should provide a remedy for wrongful death actions for
damages in actions that have been limited by Congress, it can no longer be stated that Miles
applies to a non-pecuniary claim against a non-employer third party. Moreover, notably,
survivors of maritime workers governed by the Longshore & Harbor Workers’ Compensation
Act and survivors of non-seafarers have the right to recover consortium and punitive damages
under general maritime law for territorial water deaths. See Sea-Land Services, Inc. v. Gaudet,
414 U.S. 573, 591 (1974)(loss of consortium available to spouse of maritime worker killed in
state waters); Rutherford v. Mallard Bay Drilling, LLC, 2000 WL 805230 at *4 (E.D.La.
6/21/00)(punitive damages available to maritime employee injured in state waters); Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199 (1996)(holding that state remedies remain applicable in
wrongful death and survival actions arising from accidents to nonseamen in territorial waters).
VI.

CONCLUSION
Accordingly, IT IS ORDERED that Defendant’s 12(b)(6) motion to dismiss is DENIED.

Nonetheless, the Court notes that under Matter of P&E Boat Rentals, Inc., punitive damages may
not be imposed against an organization when one or more of its employees decides on its own to
engage in malicious or outrageous conduct. 872 F.2d 642, 652 (5th Cir. 1989) (“If the
corporation has formulated policies and directed its employees properly, no purpose would be
served by imposing punitive damages against it except to increase the amount of the judgment.”).
Therefore the Court may need to revisit this issue on summary judgment. Thus, this Court will

no doubt be required to consider the availability of this remedy on a future motion for summary
judgment.