McBride v. Estis Well Service L L C
Filing
47
MEMORANDUM RULING granting 27 Motion to Dismiss. The Court finds that nothing in Townsend makes punitive damages available to the plaintiffs in these consolidated lawsuits or abrogates the jurisprudential authority holding that punitive damages ar e not available to these plaintiffs. Therefore, the Court finds that, to the extent the plaintiffs in these consolidated actions seek to recover punitive damages, they have failed to present a plausible claim for relief. Accordingly, the defendants motion to dismiss (Rec. Doc. 27) is GRANTED, and the plaintiffs claims for punitive damages are DISMISSED. Signed by Magistrate Judge Patrick J Hanna on 5/16/2012. (crt,Kennedy, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
HALEIGH JANEE McBRIDE,
ET AL.
CIVIL ACTION NO. 6:11-cv-0557 (Lead)
6:11-cv-01726 (Member)
6:11-cv-01686 (Member)
6:11-cv-01544 (Member)
VERSUS
MAGISTRATE JUDGE HANNA
ESTIS WELL SERVICE, LLC
BY CONSENT OF THE PARTIES
MEMORANDUM RULING
These consolidated cases come before this Court by consent pursuant to 28
U.S.C. § 636(c). Jurisdiction is premised on 28 U.S.C. §§ 1331 and 1333 in that the
claims are based on the Jones Act, 46 U.S.C. § 30104 (a), and general maritime law.
No party has sought trial by jury. Pending before the Court is the defendant’s motion
to dismiss the plaintiffs’ claims for punitive damages under Fed. R. Civ. P. 12(b)(6).1
At issue is whether the remedy of punitive damages is legally cognizable under the
Jones Act and/or general maritime law in the context of a wrongful death/survival
action, or a personal injury action, for seamen who were killed or injured in Louisiana
1
As the defendant has already filed answers in all of these consolidated actions, the
motion may more appropriately be treated as a motion under Rule 12(c), pursuant to Rule
12(h)(2)(B). Regardless, the motions are treated in the same manner. In re Great Lakes Dredge and
Dock Co. LLC., 624 F.3d 201, 209-10, (5th Cir. 2010).
territorial waters after the decision of Atlantic Sounding Co., Inc. vs. Townsend, 557
U.S. 404 (2009). For the reasons explained below, the motion is GRANTED.
BACKGROUND
On March 9, 2011, the barge Estis Rig 23 was operating in Bayou Sorrell, a
navigable waterway in the State of Louisiana. As the barge crew, all of whom were
employed by Estis, was attempting to straighten the twisted monkey board in the
derrick, the pipe in the derrick shifted, and the derrick and rig fell over. One crew
member died, and three more claim that they were injured.
Skye Sonnier died, and in the lead case, Haleigh Janee McBride sued Estis in
her capacity as the administratrix of Mr. Sonnier’s estate and on behalf of Mr.
Sonnier’s minor child, I.M.S. Saul C. Touchet claims that he sustained both physical
and psychological injuries.2 Brian Joseph Suire3 and Joshua Bourque4 claim that they
sustained psychological injuries because they were present when the incident
occurred.
All of the plaintiffs seek to recover under the Jones Act for Estis’s alleged
negligence, and all of them seek to recover under the general maritime law for the
2
Civil Action No. 6:11-cv-01686, Rec. Doc. 1 at ¶ 7.
3
Civil Action No. 6:11-cv-01544, Rec. Doc. 1.
4
Civil Action No. 6:11-cv-01726, Rec. Doc. 1. After the instant motion was filed but
before it was decided, Mr. Bourque settled his claims, which have been dismissed. Rec. Doc. 44.
-2-
alleged unseaworthiness of the vessel.5 All of the plaintiffs have also asserted claims
for punitive and/or exemplary damages due to Estis’s alleged gross, willful, wanton,
and/or reckless conduct that allegedly constituted a callous disregard of, or showed
indifference to, the safety of the crew members.6
Estis has indicated that it is willing to stipulate to liability for the incident but
states that it cannot do so while the claims for punitive damages exist.7 Estis is
specifically not seeking to dismiss any cause of action, nor is it seeking to dismiss any
claims for punitive damage arising out of the failure to pay maintenance and cure.
The motion is limited solely to the availability, or not, of a punitive damages remedy
under the Jones Act and/or general maritime law.
ANALYSIS
A.
THE STANDARD FOR A RULE 12(B)(6) MOTION TO DISMISS
A motion to dismiss for failure to state a claim, under Rule 12(b)(6), is
appropriate when a defendant attacks the complaint because it fails to state a legally
5
Although the plaintiffs made alternative allegations under the general maritime law
pursuant to 33 U.S.C. § 905(b), their status as seamen is uncontested.
6
Civil Action No. 6:11-cv-00557, Rec. Doc. 1 at ¶ 13 (McBride’s complaint); Civil
Action No. 6:11-cv-01544, Rec. Doc. 1 at ¶ 14 (Suire’s complaint); Civil Action No. 6:11-cv-01726,
Rec. Doc. 1 at ¶ 18 (Bourque’s complaint); Civil Action No. 6:11-cv-01686, Rec. Doc. 1 at ¶ 18
(Touchet’s complaint).
7
Rec. Doc. 27-1 at 6.
-3-
cognizable claim.8 The defendant does not challenge the factual allegations of the
complaints. Rather, as the issue is postured solely in the context of this motion, the
standard is whether “with every doubt resolved in the pleader's behalf, the complaint
states any legally cognizable claim for relief.”9
B.
THE PARTIES’ CONTENTIONS
Estis contends that the Jones Act only permits recovery of pecuniary losses
whether for personal injury or wrongful death. Because punitive damages are not
pecuniary in nature, Estis contends that punitive damages cannot be recovered on the
Jones Act claims. Estis further contends that, notwithstanding the decision in
Townsend, under the reasoning of Miles v. Apex Marine Corp.,10 the plaintiffs cannot
recover punitive damages because their unseaworthiness claims overlap their Jones
Act claims.
The plaintiffs contend that Townsend left open the question whether punitive
damages are available under the Jones Act, however, even if punitive damages are not
available for their Jones Act claims, the plaintiffs contend that the Supreme Court’s
8
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
9
Wilson v. Birnberg, 667 F.3d 59, 595 (5th Cir. 2012), citing 5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1357, at 640 (3d ed.2004) (emphasis added).
10
Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
-4-
ruling in Exxon Shipping Co. v. Baker11 suggests that they should be permitted to
recover punitive damages by way of their general maritime law claims.12 They also
contend that the Supreme Court’s ruling in Townsend, which abrogated the en banc
decision of Guevara v. Maritime Overseas Corporation,13 reinstated the holding of
In Re Merry Shipping14 as the controlling precedent in this circuit and permits the
recovery of punitive damages.
C.
NON-PECUNIARY DAMAGES UNDER THE JONES ACT
In 2006, Congress amended the Jones Act,15 to provide that the “[L]aws of the
United States regulating recovery for personal injury to, or death of, a railway
employee (FELA)16 apply to an action under this section.” The Jones Act provides
the sole basis upon which a seaman or his beneficiaries may sue the seaman’s
employer for negligence.17 Neither the Jones Act nor FELA limit damages in any
11
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).
12
Intertwined into this argument is the assertion that punitive damages should not be
considered “non-pecuniary.”
13
Guevara v. Maritime Overseas Corporation, 59 F.3d 1496 (5th Cir. 1995).
14
In Re Merry Shipping, 650 F.2d 622 (5th Cir. 1981).
15
46 U.S.C. § 30104, et seq.
16
45 U.S.C. § 51, et seq.
17
Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1489 (5th Cir. 1992);
Beltia v. Sidney Torres Marine Transport, Inc., 701 F.2d 491, 493 (5th Cir. 1983).
-5-
form.18 When the Seamen’s Welfare Act of 1915 was amended in 1920 to what
became the Jones Act, it generically referred to “damages” and incorporated “all
statutes of the United States modifying or extending the common law right or remedy
in cases of personal injury to railway employees. . .” (Emphasis added)19 However,
in 1913, the Supreme Court held in Michigan Central Railroad Co. v. Vreeland that
only pecuniary damages were available under FELA.20 This decision was based on
the jurisprudential gloss applied to Lord Campbell’s Act which also had no pecuniary
limitation on damages.21 Nearly seventy-five years later, in Miles v. Apex Marine, the
Court stated:
When Congress passed the Jones Act, the Vreeland gloss on FELA, and
the hoary tradition behind it, were well established. Incorporating
FELA unaltered into the Jones Act, Congress must have intended to
incorporate the pecuniary limitation on damages as well.22
Based on this interpretation, the Court stated the Jones Act “limits recovery to
pecuniary loss,” and held loss of society, as an item of non-pecuniary damages, was
18
Miles, 498 U.S. at 32.
19
Ch. 250, Sec. 33, 41 Stat. 1007, June 5, 1920.
20
Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 69-71 (1913).
21
Id. at 71.
22
Miles, 498 U.S. at 32.
-6-
not available in a wrongful death claim brought under the Jones Act.
23
The
jurisprudence is consistent that punitive damages are non-pecuniary, and since the
jurisprudence has interpreted the Jones Act to permit only the recovery of pecuniary
damages, punitive damages would not be available as a remedy under that statute.24
Townsend does not hold that punitive damages are recoverable under the Jones
Act. In response to the dissent’s argument, the majority stated in a footnote:
Because we hold that Miles does not render the Jones Act's damages
provision determinative of respondent's remedies, we do not address the
dissent's argument that the Jones Act, by incorporating the provisions of
the Federal Employers' Liability Act, see 46 U.S.C. § 30104(a),
prohibits the recovery of punitive damages in actions under that
statute.25
The “respondent’s remed[y]” in Townsend was a seaman’s entitlement to
punitive damages under the general maritime law cause of action for maintenance and
cure. Townsend “does not call into question Miles’ holding concerning the damages
23
Miles, 498 U.S. at 32-33.
24
Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (9th Cir. 1984), cert. denied, 471
U.S. 1136 (1985); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir. 1987); Miller v. American
President Lines 989 F.2d 1450, 1454-59 (6th Cir 1993); Horsely v. Mobil Oil Corp., 15 F.3d 200,
202-03 (1st Cir. 1994); Guevara, 59 F.3d at 1506, abrogated by Townsend, 129 S.Ct. 2561; Neal v.
Barisich, Inc., 707 F.Supp. 862, 873 (E.D. La. 1989); Anderson v. Texaco, Inc. 797 F.Supp. 531, 534
(E.D. La. 1992) and cases cited therein.
25
Townsend, 129 S.Ct. at 2575 n. 12.
-7-
limitations applicable to the Jones Act”26 and “does not . . . cast doubt on the [Miles]
Court’s holding that the Jones Act incorporated FELA’s ‘pecuniary limitation on
damages.’”27 Following this analysis, the district court in Wagner v. Kona Blue Water
Farms, LLC concluded that the Ninth Circuit’s prohibition on punitive damages
under the Jones Act set forth in Kopczynski v. The Jacqueline was consistent with
Townsend and remained good law.28 This Court agrees with that conclusion.
Since Miles, the courts of this circuit have consistently followed the rule that
punitive damages are non-pecuniary in nature and, therefore, they are not recoverable
under the Jones Act.29 Townsend does not create a new rule abrogating those cases
or the proposition that punitive damages are non-pecuniary and, therefore, not
recoverable under the Jones Act. Therefore, the Court grants the motion to dismiss
26
Wagner v. Kona Blue Water Farms, LLC, No. 09-00600, 2010 WL 3566730 at *7 (D.
Hi. Sept. 13, 2010). The court specifically did not address whether punitive damages were a viable
remedy under the general maritime law cause of action for unseaworthiness. See Footnote 1 therein.
27
Id.
28
Id. at 7-8.
29
See, e.g., Seaman v. Seacor Marine LLC, No. 07-3354, 2008 WL 360783, at *2 (E.D.
La. Jan. 17, 2008) (“In this circuit, punitive damages are classified as non-pecuniary in nature. . . .
Therefore, as a Jones Act seaman Plaintiff cannot recover them.”); Anderson, 797 F.Supp. at 534
(“[T]he post-Miles district court cases, in this district and in others, speak with one voice in
concluding that punitive damages are non-pecuniary and, therefore, are not recoverable under Miles’s
interpretation of the Jones Act.”)
-8-
as it applies to the plaintiffs’ claims for punitive damages under the Jones Act,
whether arising out of wrongful death or personal injury.
D.
ARE PUNITIVE DAMAGES A REMEDY AVAILABLE TO SEAMEN UNDER THE
GENERAL MARITIME LAW FOR CAUSES OF ACTION OTHER THAN
MAINTENANCE AND CURE?
Multiple courts who have considered the impact of Townsend on the remedies
available to non-seamen arising out of a general maritime cause of action have
concluded that non-pecuniary damages, including punitive damages, are available
even in contravention of pre-existing appellate court precedent.30 Other courts have
allowed claims for non-pecuniary damages, including punitive damages, to proceed
given the current uncertainty in the law.31
30
See, e.g., Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL
3703329, at *6-7 (S.D. Fla. Aug. 23, 2011), and Doe v. Royal Caribbean Cruises Ltd., No. 1123323-CIV, 2012 WL 920675, at *3-4 (S.D. Fla. Mar. 19, 2012) (finding that In re Amtrak Sunset
Ltd. Train Crash in Bayou Canot, Al., 121 F.3d 1421, 1429 (11th Cir. 1997), which held personal
injury plaintiffs were not entitled to pursue “such non-pecuniary [punitive] damages” under the
general maritime law, was no longer good law). See, also, Barrette v. Jubilee Fisheries, Inc., No.
C10-01206 MJP, 2011 WL 3516061, at *6-7 (W.D. Wa. Aug. 11, 2011) (holding spouse of injured
seaman entitled to recover loss of consortium arising out of unseaworthiness cause of action contrary
to Smith v. Trinidad, Corp., 992 F.2d 996 (9th Cir. 1993) (per curiam)); In re Oil Spill by the Oil Rig
“Deepwater Horizon” in the Gulf of Mexico, MDL No. 2179, 2011 WL 4575696, at *11 (E.D. La.
Oct. 4, 2011) (holding that seamen do not have a remedy of punitive damages for personal injuries
but non-seamen do).
31
See, e.g., Rogers v. Resolve Marine, No. 09-4141, 2009 WL 2984199, at *1 n. 1 (E.D.
La. Sept. 11, 2009) (punitive damages under general maritime law for an injured seaman); In Re
Maryland Marine, 641 F.Supp.2d 579 (E.D. La. 2009) (loss of society for relatives of vessel
passengers killed in state territorial waters not available but court would consider adding to avoid
retrial). See also Ryan Marine Services, Inc. v. Houston Drydocks, Inc., No. 06-2245, 2011 WL
6209801, at *5 (W.D. La. Dec. 13, 2011).
-9-
The plaintiffs argue that the Supreme Court’s decision in Exxon Shipping v.
Baker suggests that punitive damages should be a viable remedy for their cause of
action of unseaworthiness under the general maritime law despite the existence of
their Jones Act claims. Baker involved claims against Exxon arising from the Exxon
Valdez oil spill. The claimants were not Jones Act seamen; they were commercial
fishermen, Native Alaskans, and landowners. The Supreme Court granted certiorari
“to consider whether maritime law allows corporate liability for punitive damages on
the basis of the acts of managerial agents. . . .”32 The Ninth Circuit had affirmed the
district court’s jury instruction on punitive damages based on circuit precedent.33 The
Court was equally divided on the issue and, therefore, had to leave the Ninth Circuit
opinion undisturbed stating, “[i]t should go without saying that the disposition here
is not precedential on the derivative liability question.”34
Pertinent to this Court’s inquiry are the issues raised in other portions of the
opinion where the Court was not equally divided. In Part III, Exxon, citing the Fifth
Circuit’s en banc decision of Guevara v. Maritime Overseas Corp., argued that the
“rule of maritime punitive damages was displaced by federal statutes, including the
32
Exxon, 554 U.S. at 481.
33
Id. See also In Re Exxon Valdez, 270 F.3d 1215, 1236 (9th Cir. 2001), citing
Protectus Alpha Nav. Co. v. North Pacific Grain Growers, Inc. 767 F.2d 1379 (9th Cir. 1985).
34
Exxon, 554 U.S. at 484.
-10-
CWA.”35 The Court rejected this argument indicating “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.”36
In Part IV, to which Justice Stevens specifically dissented, the Court, citing
Miles, reiterated that admiralty courts should look to legislative enactments for policy
guidance, but where Congress had not specifically acted, the Court had responsibility
to fashion controlling rules and remedies in maritime law:
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 2634 – 2636 (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, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986),
accounts for the large part we have taken in working out the governing
maritime tort principles. See, e.g., ibid. (“recognizing products liability
... as part of the general maritime law”); American Export Lines, Inc. v.
Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980)
(recognizing cause of action for loss of consortium); Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (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
35
Id. at 486-489.
36
Id. at 489.
-11-
a free hand in dealing with an issue that is “entirely a remedial matter.”
Id., at 382, 90 S.Ct. 1772. The general observation we made in United
States v. Reliable Transfer Co., 421 U.S. 397, 409, 95 S.Ct. 1708, 44
L.Ed.2d 251 (1975), when we abrogated the admiralty rule of divided
damages in favor of proportional liability, is to the point here. It is urged
“that the creation of a new rule of damages in maritime collision cases
is a task for Congress and not for this Court. But the Judiciary 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 admiralty law”
(internal quotation marks and footnote omitted).
.
.
.
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, 111 S.Ct. 317, 112 L.Ed.2d 275 (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
congressional decision that there should be no quantified rule, cf.
Rapanos v. United States, 547 U.S. 715, 749, 126 S.Ct. 2208, 165
L.Ed.2d 159 (2006) (plurality opinion) (noting the Court's
“oft-expressed skepticism towards reading the tea leaves of
congressional inaction”). Where there is a need for a new remedial
maritime rule, past precedent argues for our setting a judicially derived
standard, subject of course to congressional revision.37
Thus, the Supreme Court has held, notwithstanding the existence of federal
statutory schemes including the Clean Water Act and the Jones Act, that punitive
damages are a viable remedy afforded under the general maritime law for causes of
37
Id., at 508, n. 21.
-12-
action arising out of (1) a maritime tort suffered by non-seamen, and (2) the failure
to pay maintenance and cure to seamen.
In Yamaha Motor Corp., U.S.A. v. Calhoun, the Court showed its willingness
to allow punitive damages in another maritime context.38 When an accident in state
territorial waters resulted in the wrongful death of a non-seafarer, the Court held state
remedies for wrongful death/survival actions that include non-pecuniary damages are
available to supplement the general maritime law, notwithstanding the uniformity
sought by Miles. However, the Calhoun Court stated:
When Congress has prescribed a comprehensive tort recovery regime to
be uniformly applied, there is, we have generally recognized, no cause
for enlargement of the damages statutorily provided. See Miles, 498
U.S., at 30-36, 111 S.Ct., at 324-328 (Jones Act, rather than general
maritime law, determines damages recoverable in action for wrongful
death of seamen); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207,
232, 106 S.Ct. 2485, 2499, 91 L.Ed.2d 174 (1986) (DOHSA, which
limits damages to pecuniary losses, may not be supplemented by
nonpecuniary damages under a state wrongful-death statute); Mobil Oil
Corp. v. Higginbotham, 436 U.S. 618, 624-625, 98 S.Ct. 2010,
2014-2015, 56 L.Ed.2d 581 (1978) (DOHSA precludes damages for loss
of society under general maritime law). But Congress has not prescribed
remedies for the wrongful deaths of nonseafarers in territorial waters.
See Miles, 498 U.S., at 31, 111 S.Ct., at 325. There is, however, a
relevant congressional disposition. Section 7 of DOHSA states: “The
provisions of any State statute giving or regulating rights of action or
remedies for death shall not be affected by this chapter.” 46 U.S.C.
App. § 767. This statement, by its terms, simply stops DOHSA from
displacing state law in territorial waters. See Miles, 498 U.S., at 25, 111
38
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996).
-13-
S.Ct., at 321-322; Tallentire, 477 U.S., at 224-225, 106 S.Ct., at
2495-2496; Moragne, 398 U.S., at 397-398, 90 S.Ct., at 1785-1786.
Taking into account what Congress sought to achieve, we preserve the
application of state statutes to deaths within territorial waters.39
Finally, in Mobil Oil Corporation v. Higginbotham, the Court did not allow the
general maritime law to be used to supplement the Death on the High Seas Act
(DOHSA), 46 U.S.C. §30303, to afford non-pecuniary damages in the form of loss
of society for the survivors of a decedent.40
Stating, “there is a basic difference
between filling a gap left by Congress’ silence and rewriting rules that Congress has
affirmatively and specifically enacted,” the Court refused to “prescribe a different
measure of damages” than the specific pecuniary damages provided by the statute
itself.41
Against these precedents, the opinions of Miles and Townsend must be
compared. The Townsend majority concluded its opinion by stating that:
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 willful and wanton disregard of the
maintenance and cure obligation should remain available in the
appropriate case as a matter of general maritime law.”42
39
Id., at 215-16.
40
Mobil Oil Corporation v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010 (1978).
41
Id., 625.
42
Townsend, 129 S.Ct. at 2575.
-14-
At the end of this statement is footnote 12 which states “we hold that Miles
does not render the Jones Act’s damages provision determinative of respondent’s
remedies. . . .”43
Without Miles, it would seem clear that the three criteria utilized in Townsend
militate in favor of allowing punitive damages as a remedy available to a Jones Act
seaman for causes of action brought under the general maritime law. That was the
case in this circuit prior to Miles being decided by the Supreme Court, and absent
Miles, the reasoning of Townsend would reinforce the holding of Merry Shipping.
The Townsend Court stated that “the reasoning of Miles remains sound.”44 In
affirming the Court of Appeals, Miles specifically held:
Cognizant of the constitutional relationship between the courts and
Congress, we today act in accordance with the uniform plan of maritime
tort law Congress created in DOHSA and the Jones Act. We hold that
there is a general maritime cause of action for the wrongful death of a
seaman, but that damages recoverable in such an action do not include
loss of society. We also hold that a general maritime survival action
cannot include recovery for decedent's lost future earnings. 45
However, the reasoning for excluding loss of society damages was, with
respect, not statutorily based. The Court stated:
43
Townsend, 129 S.Ct. at 2575 n. 12.
44
Townsend, 129 S.Ct. at 2572.
45
Miles, 498 U.S. at 37.
-15-
The Jones Act also precludes recovery for loss of society in this case.
The Jones Act applies when a seaman has been killed as a result of
negligence, and it limits recovery to pecuniary loss. The general
maritime claim here alleged that Torregano had been killed as a result
of the unseaworthiness of the vessel. 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. We must conclude that there is no recovery for loss of
society in a general maritime action for the wrongful death of a Jones
Act seaman.
Our decision also remedies an anomaly we created in Higginbotham.
Respondents in that case warned that the elimination of loss of society
damages for wrongful deaths on the high seas would create an
unwarranted inconsistency between deaths in territorial waters, where
loss of society was available under Gaudet, and deaths on the high seas.
We recognized the value of uniformity, but concluded that a concern for
consistency could not override the statute. Higginbotham, supra, 436
U.S., at 624, 98 S.Ct., at 2014. Today we restore a uniform rule
applicable to all actions for the wrongful death of a seaman, whether
under DOHSA, the Jones Act, or general maritime law.46
DOHSA was enacted in March 1920.47 The Jones Act was an amendment to
the Seaman’s Welfare Act of 191548 that was enacted three months after DOHSA by
the same Sixty-sixth Congress.49
The former was designed to overrule The
Harrisburg to the extent it applied on the high seas, and the latter to overrule The
46
Id. at 32-33.
47
Ch. 111, Sec. 1(a), 41 Stat. 537, March 30, 1920.
48
Ch. 153, Sec. 20, 38 Stat. 1185, March 4, 1915.
49
Ch. 250, Sec. 33, 41 Stat. 1007, June 5, 1920, 46 U.S.C. 688.
-16-
Osceola.50 Both created remedies where none previously existed. In enacting
DOHSA, Congress specifically limited recovery to “pecuniary loss.”51 The Jones Act
had no damage limitation, nor did FELA, the statute from which the damage
provision was incorporated. However, when FELA was enacted, Congress limited
recovery in the survival provision to losses suffered in the decedent’s lifetime, and
therefore, loss of future earnings was not available as a remedy. This was statutorily
incorporated into the Jones Act in 1920, and thus, the ruling to this effect in Miles is
statutorily based. However, it was the Court that created the pecuniary damage
limitation in FELA based on the jurisprudence interpreting Lord Campbell’s Act.52
This pecuniary limitation was carried over by the Court into the Jones Act based on
the absence of any limitation on damages in the statute.53 Congress did not
specifically limit the damages in FELA or the Jones Act as it did in DOHSA.
In 2006, Congress completed the codification of Title 46 as positive law.54
Section 2 provides:
50
The Harrisburg, 119 U.S. 199 (1886), The Osceola, 189 U.S. 158 (1903).
51
46 U.S.C. § 30303, formerly 46 U.S.C.§ 762.
52
Miles, 498 U.S. at 32.
53
Id.
54
Pub.L. 109-304, HR 1442, October 6, 2006.
-17-
(a) PURPOSE.—The purpose of this Act is to complete the codification
of title 46, United States Code, “Shipping”, as positive law, by
reorganizing and restating the laws currently in the appendix to title 46.
(b) CONFORMITY WITH ORIGINAL INTENT.—In the codification
of laws by this Act, the intent is to conform to the understood policy,
intent, and purpose of the Congress in the original enactments, with such
amendments and corrections as will remove ambiguities, contradictions,
and other imperfections, in accordance with section 205(c)(1) of House
Resolution No. 988, 93d Congress, as enacted into law by Public Law
93–554 (2 U.S.C. 285b(1)).
In Subtitle III, various maritime liability provisions have been restated
including the Jones Act and DOHSA. In §30104, which is the restatement of the
Jones Act, the statute as it existed under 46 U.S.C. §688 was amended to delete the
words “for damages” as “unnecessary.”55 At the same time, §30303 of DOHSA
specifically retained the pecuniary limitation. Thus, while DOHSA retained the
specific reference by Congress to pecuniary damages, Congress completely
eliminated any reference to damages in the Jones Act.
In abrogating Guevara v. Maritime Overseas Corp., the Townsend Court held
that nothing in the Jones Act “altered th[e] understanding” that punitive damages
have long been an accepted remedy under general maritime law, and that Miles “does
55
2006 U.S. Code Cong. and Adm. News p. 972
-18-
not render the Jones Act’s damages provision determinative of respondent’s
remedies.” 56
Taking these statements out of the maintenance and cure context and applying
them to other aspects of the general maritime law, there is nothing specifically in the
Jones Act damages provision that was enacted in 1920 (which no longer exists) that
would be determinative of the plaintiffs’ remedies under the general maritime law in
this case. Where Congress is silent, the Court is free to fashion remedies in general
maritime law as it stated in Exxon Shipping v. Baker. It is equally free to restrict
remedies where Congress is silent as it has done in Miles. The reasoning of Miles
was to promote uniformity between the statutes and the general maritime law.
DOHSA did not allow for non-pecuniary damages by statute. The Jones Act did not
allow for non-pecuniary damages based on the jurisprudential interpretation of FELA.
In promoting uniformity, the Court decided that the same rule would apply to the
general maritime law applicable to a wrongful death/survival action of a Jones Act
seaman and there is nothing in the holding of Townsend that alters that result.
The plaintiffs urge this Court to ignore Guevara and reinstate Merry Shipping
as the rule of this circuit. This is an invitation that has some merit.57 One could
56
Townsend, 129 S.Ct. at 2575, n. 12.
57
See e.g. Nelton v. Cenac Towing Co. LLC 2011 WL 289040 (E.D. La. 1/25/2011)
applying Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir. 1987) to the determination of damages for
-19-
argue that the uniformity sought by Miles would be better served if punitive damages
were allowed since the Court has recognized them as a viable remedy in multiple
maritime contexts.58 Further, the standard that must be met to provide this remedy
would not necessarily be more expansive of the negligence standard imposed by
Congress in the Jones Act.
Lost in the discussions of Miles, which involved the wrongful death of a Jones
Act seaman, is the directed verdict granted by the district court on a factual basis
dismissing the plaintiff’s punitive damage claim arising out of the unseaworthiness
cause of action. That ruling was affirmed on appeal where Judge Rubin, after ruling
on the loss of society and future lost wage claims which were the subject of the
holding by the Supreme Court, stated:
Punitive damages are recoverable under the general maritime law “upon
a showing of willful and wanton misconduct by the shipowner” in
failing to provide a seaworthy vessel. Because punitive damages are
designed to punish the wrongdoer, more than simple negligence is
required. The defendant must have been guilty of “ ‘gross negligence,
failure to pay maintenance and cure.
58
For example, as discussed infra, a non-seaman injured in the same casualty has the
remedy under the general maritime law, yet the seaman does not. See In re Oil Spill by the Oil Rig
“Deepwater Horizon” in the Gulf of Mexico, MDL No. 2179, 2011 WL 4575696, at *11 (E.D. La.
Oct. 4, 2011).
-20-
or actual malice or criminal indifference which is the equivalent of
reckless and wanton misconduct.’”59
Guevara did not overrule Merry Shipping. As stated in Guevara, it was Miles
that “effectively overruled” Merry Shipping:
After Miles, it is clear that Merry Shipping has been
effectively overruled. Its holding – that punitive damages
are available in a wrongful death action brought by the
representative of a seaman under the unseaworthiness
doctrine of the general maritime law – is no longer good
law in light of the Miles uniformity principle because, in
the factual scenario of Merry Shipping, the Jones Act
damages limitations control.60
Therefore, while this Court may disagree that there is anything in the Jones Act
that would preclude the availability of punitive damages as a remedy under the
general maritime law, whether for wrongful death or personal injury, an en banc
panel of the Fifth Circuit has concluded that the Supreme Court foreclosed that
possibility in Miles and Townsend did not abrogate Miles.
CONCLUSION
In summary, the Court finds that nothing in Townsend makes punitive damages
available to the plaintiffs in these consolidated lawsuits or abrogates the
jurisprudential authority holding that punitive damages are not available to these
59
Miles v. Melrose, 882 F.2d 976, 989 (5th Cir. 1989) quoting In Re Merry Shipping,
650 F.2d 622, 624-626 (5th Cir. 1981).
60
Guevara, 59 F.3d at 1507.
-21-
plaintiffs. Therefore, the Court finds that, to the extent the plaintiffs in these
consolidated actions seek to recover punitive damages, they have failed to present a
plausible claim for relief. Accordingly, the defendant’s motion to dismiss (Rec. Doc.
27) is GRANTED, and the plaintiffs’ claims for punitive damages are DISMISSED.
Signed at Lafayette, Louisiana on this 16th day of May, 2012.
______________________________
PATRICK J. HANNA
MAGISTRATE JUDGE
-22-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?