Opinion
CIVIL ACTION No. 02-2969, c/w 02-3189, SECTION "T"(3).
July 24, 2003.
Before the Court is a Motion for Partial Summary Judgment, filed by Danos Curole Marine, as to the non-pecuniary damage claims of Justin Bankston and the heirs of Ryan Robin. This motion was set for hearing on July 2, 2003, and is to come before this Court for non-jury trial on August 25, 2003. Having considered the law, the memoranda of the parties, and the applicable jurisprudence, this Court is now ready to rule.
I. BACKGROUND AND PROCEDURE
This case arises from an allision between a Carolina Skiff, owned by Ryan Robin, and the M/V RITA II, owned by Stone Energy Corporation (`Stone') and operated by Danos Curole Marine Contractors, Inc., (`DC'), in Barataria Bay on or about September 19, 2002 at approximately 0540. Later that same day, at approximately 1100, United States Coast Guard Chief Warrant Officer Jo Wildman, accompanied by Officer Chris Hogan of the United States Coast Guard 8th District Office, performed a Maritime Casualty Investigation pursuant to 46 U.S.C. § 6301, et. seq. The investigation involved an inspection of the Carolina Skiff and its running light wiring. A report entitled "Report of Investigation Into Circumstances Surrounding the Incident Involving RITA II Collision on 09/19/2002" was subsequently issued.
Stone, as owner, and DC, as charterer/owner pro hac vice, filed Petitions for Exoneration from and Limitation of Liability. These motions were consolidated. Robin, a commercial crabber, died as a result of the casualty. His heirs have filed claims in the limitation action demanding damages as a result of his death. Additionally, Justin Bankston, also a commercial crabber and an employee of Robin, has filed a claim demanding damages for injuries allegedly sustained in the collision.
The demands of the wife, children, and parents of Robin, decedent, include both pecuniary and non-pecuniary damages. Paragraphs 22, 23, and 25 of the petition read:
22. Claimants in litigation seek all damages caused by this boat collision including, but not limited to loss of past support, loss of future support, loss of past nurture and guidance, loss of future nurture and guidance, loss of past and future household services, loss of past and future love, affection, and consortium, pre-death pain and suffering, burial expenses, loss of inheritance, loss of consortium, damage to decedent's vessel and all other recoverable damages.
23. Claimants in limitation seek not only these damages, but also seek exemplary damages, including attorney's fees, litigation expenses, court costs and expert witness fees.
25. Claimants in limitation aver that they are entitled to punitive damages due to wanton and reckless disregard to the boating public exhibited by the operators of petitioner in limitation, Danos Curole Marine Contractors, Inc., vessels.
II. ARGUMENTS OF THE PARTIES
The Petitioner asks this Court for summary judgment on the issue of non-pecuniary and punitive damages requested by Claimant. See FN 1, infra. Petitioner asks the Court to dismiss the claims for non-pecuniary and punitive damages under the jurisprudential precedent in the Fifth Circuit Court of Appeals as well as the United States Supreme Court in Miles v. Apex Marine, 498 U.S. 19, supra.
Claimants asks the Court to deny the motion for summary judgment against the recovery of non-pecuniary damages as the rule under general maritime law allows for wrongful death actions. For this proposition, the Claimants cite cases in which courts have allowed non-pecuniary damages in certain factual scenarios. In support, Claimants argue that the recovery of non-pecuniary damages is available based upon whether there is a statutory scheme that governs the cause of action, and is not dependant upon the label given to the mariner.
III. LAW AND ANALYSIS
A. Law on Motion for Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Availability of Non-pecuniary damages
General maritime law provides a theory of recovery for individuals injured in admiralty cases who may not have the benefit of the Jones Act, 46 U.S.C. § 688 et. seq., the Death on the High Seas Act, 46 U.S.C. App. § 761, or the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 901, et. seq.
The Jones Act, 46 U.S.C. § 688 et. seq., provides a negligence cause of action or a tort action for a `seaman' engaged in the course of employment regardless of whether the situs of the injury is in territorial waters or on the high seas. For a Jones Act claim to be viable, an employee/employer status must be present. Wheatley v. Gladden, 660 F.2d 1024, 1026 (4th Cir. 1981). Under the Jones Act, damages are restricted to pecuniary damages.
The Death on the High Seas Act, 46 U.S.C. App. § 761, applies to any person, seaman or non-seaman, injured on the high seas due to the wrongful acts or negligence of another party. For DOHSA to apply, the injury must take place within one marine league, or approximately 3 nautical miles from shore. Damages under DOHSA are limited to pecuniary damages.
The Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 901, et. seq., grants the ability to bring a negligence action under general maritime law for longshoremen and other specifically covered maritime workers.
The United States Supreme Court has recognized that a remedy exists for wrongful death under general maritime law. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Following the rationale used in Moragne, the Supreme Court recently held that the heirs of someone killed in state territorial waters has a general maritime negligence claim for breach of a general maritime duty of care, Norfolk Shipping Drydock Corp. v. Garris, 532 U.S. 121 S.Ct. 1927 (2001) (Scalia, J.). This extended the Moragne rationale of duty of unseaworthiness to include remedies for negligence actions as well. However, Norfolk is limited by the employment status of the victim. In Norfolk, the injured party was employed as a `non-seafarer', see Yamaha, infra, harbor worker who had been working on behalf of a sub-contractor of a drydock company. The injured party was defined by the Supreme Court as a non-seaman maritime worker covered by the LHWCA. Id. at 1932. The turning point is that there is nothing in the LHWCA that prevents the ability of a longshoreman to bring a negligence action under general maritime law. In addition to Norfolk, the Claimants reference and make prayers under a number of cases which have allowed non-pecuniary damages; however, the cases cited by the Claimant are factually different and limited in their application. In Bardwell v. George Sharp, Inc., 1995 WL 386895 (E.D.La. 1995), the factual scenario involved a longshoreman killed in territorial waters; in Sealand Services, Inc., v. Gaudet, 414 U.S. 573 (1970) (allowing loss of society damages to the widow of a longshoreman killed in territorial waters), the factual scenario involved a longshoreman, and in fact, has been limited in its applicability to only longshoremen. See Miles at 31, infra. Hence, the Gaudet rule cannot apply to this matter.
In certain circumstances, general maritime law allows recovery for both pecuniary and non-pecuniary damages. For example, where a decendent is not a "seaman, longshore worker, or person otherwise engaged in a maritime trade, and is killed in state waters, federal maritime law does not supplant state wrongful death and survival statutes which provide for the recovery of non-pecuniary damages." Yamaha Motor Corp. v. Calhoun, ___ U.S. ___, 116 S.Ct. 619, 133 L.E.2d 578 (1996). The United States Supreme Court reasoned that in situations where Congress has not legislated statutory remedies, such as in the wrongful deaths of non-seafarers in territorial waters, the court could allow such damages under general maritime law, as state law allows. This holding created a narrow exception known as the Yamaha exception by allowing non-pecuniary damages under general maritime law for non-seafarers; however, Justice Ginsburg created a class of possible claimants thereby excepting "seaman, longshore worker, or person otherwise engaged in a maritime trade." Id. at 622. It follows that `seamen' or `seafarers' not covered under a federal statutory scheme, as defined in Yamaha, are precluded from utilizing state wrongful death or other remedies that permit recovery of non-pecuniary damages.
Grief, bereavement, mental anguish, loss of society and consortium are non-pecuniary damages and are not recoverable. See generally, Shoenbaum, Admiralty Maritime Law, Section 8-3, 484 (3rd Ed. 2001).
The question turns upon whether a person who is a `seaman, seafarer, or otherwise engaged in a maritime trade' is able to recover non-pecuniary damages against a non-employer. This Court holds that he is not. Since the claimant is engaged in the maritime trade, and asserted claims for punitive damages under the General Maritime Law, the law in this Court and the Fifth Circuit dictate that punitive damages are not recoverable since those damages do not compensate for pecuniary losses. See, Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317 (1990) (O'Connor, J.) (there is no recovery for non-pecuniary loss of society damages in an action for the wrongful death of a seaman); see also, Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) (punitive damages are not available in any action for maintenance and cure); Frazier v. Callais Sons, Inc., 1999 WL 717666 (E.D. La. Sept. 13, 1999) (only damages recoverable under the General Maritime Law are pecuniary losses); Galveston County Navigation Dist. No. 1 v. Hopson Towing Co., 92 F.3d 353, 358 (5th Cir. 1996) (punitive damages are unavailable under the Jones Act).
In Miles, 498 U.S. 19, a Jones Act seaman's mother sued her son's employer for unseaworthiness under general maritime law for the recovery of loss of society. The United States Supreme Court ruled that non-pecuniary damages are not available due to the fact that such damages are not available under the Jones Act, such damages should not otherwise be available under a general maritime claim. Similar holdings which follow the Miles logic of uniformity have been issued in this district as well. In Mastrodonato v. Seamar, Inc., 2000 WL 739 (E.D. La. 2000) (McNamara, J.), the Court found that "the uniformity sought by the Court in Miles is best served by a rule that denied loss of consortium damages against a third party . . . just as they are denied against a seaman's employer. Such a holding has been predominantly accepted in the Eastern District of Louisiana." The Court agrees with the overwhelming majority of cases, which have found that the reasoning of Miles extends to loss of consortium claims against non-employers as well as against employers. See, In re Diamond B Marine Services, Inc., 2000 WL 805235 at *3; Trident Marine, Inc. v. M/VATTICOS, 876 F. Supp. 832, 837 (E.D. La. 1994) (personal representatives of a Jones Act seaman who died in a collision may not recover non-pecuniary damages from a non-employer third-party tortfeasor for negligence under general maritime law, relying on Miles and reasoning that employers and non-employers should be treated the same with respect to non-pecuniary damages); Earhart v. Chevron U.S.A. Inc., 852 F. Supp. 515, 516 (E.D.La. 1993); Ellender v. John E. Graham Co., 821 F. Supp. 1136, 1136-37 (E.D.La. 1992); Duplantis v. Texaco, Inc., 771 F. Supp. 787 (E.D.La. 1991); see also Trahan v. Texaxo, Inc., 625 So.2d 295, 297 (La.Ct.App. 4th Cir. 1993) (wife of injured seaman has no cause of action for loss of consortium against non-employer under general maritime law); Phillips v. Water Towing, Inc., D. W., 620 So.2d 1387, 1390 (La.Ct.App. 4th Cir. 1993) (same). "To make a distinction between employer and non-employer defendants, as plaintiffs suggest, would result in exactly the kind of inconsistency that the Supreme Court and the Fifth Circuit sought to avoid in Miles, Michel, and Murray." Williams v. Chemoil Corp., 2002 WL 662958 (E.D. La. 2002) (Vance, J.); Lishka v. Tidewater Services, Inc., 1997 WL 27066, *9 (E.D.La. 1997) (citing Dixon v. Cliffs Drilling Company, 633 So.2d 277, 279-80 (La.Ct.App. 1st Cir. 1993) ("As stated in Miles and reiterated in Murray and Michel, the holding in Miles stemmed from a desire for consistency under DOHSA, the Jones Act and general maritime law. To . . . allow consortium claims against non-employer defendants, but not against employer defendants would result in the antithesis of consistency.").
In In Re: Gooseneck Trawlers, Inc., 972 F. Supp. 946 (E.D.N.C. 1997), the Court considered a claim involving a self-employed commercial shrimper who was killed in a collision in state waters, and was considered to be a "person otherwise engaged in a maritime trade" and thus a "seafarer." The claimant contended that since decedent was a self-employed fisherman and therefore not covered under any various federal statutory scheme, his estate would be allowed under the Yamaha exception, to supplement his remedies allowed under general maritime law with the North Carolina wrongful death statutes such as the Supreme Court allowed in Yamaha. The District Court felt differently, and held that a self-employed commercial fisherman was a "person otherwise engaged in a maritime trade," as defined in Yamaha at 621-22. Thus, his estate could not recover non-pecuniary damages and lost future earnings under the North Carolina wrongful death and survival statutes under the Yamaha exception to the rule established in Miles precluding recovery of non-pecuniary damages in general maritime actions for wrongful death, as the Yamaha exception is applicable only when a decedent is not a "seaman, longshore worker, or person other wise engaged in a maritime trade," and is killed in state territorial waters.
Ryan Robin and Justin Bankston were self-employed crabbers operating in Barataria Bay. They do not fit under the statutory scheme established by Congress for the Jones Act nor do they qualify for the protections as longshoremen. Like the factual scenario in Gooseneck Trawlers, there is no employer/employee relationship, thus putting Claimants outside of the scope of the Jones Act. There is also no relief for Claimants under DOHSA as the incident took place within state territorial waters. The remedies which are provided to longshoremen under the LHWCA are not available to Claimants as they were not longshoremen. Thus, although Ryan Robin and Justin Bankston are not covered by a comprehensive federal statutory scheme, the "plain defining language in Yamaha prevents claimant from benefitting under the narrow exception for non-seafarers." Gooseneck Trawlers at 950. As the Court in Gooseneck Trawlers explained, the very nature of his livelihood was as a "person otherwise engaged in a maritime trade." Id. Claimants attempt to persuade the Court that the current factual scenario is more similar to a non-seafarer longshoreman, as described in Norfolk and its factually similar comparative cases as described infra, than the factual scenario of a Jones Act seaman as described in Miles; however, this Court is unpersuaded by the Claimants arguments, finding the opposite to be true. This Court finds that failure to follow Miles would be inconsistent with the goal of uniformity as expressed by Justice O'Connor and followed by the Judges of the Fifth Circuit Court of Appeals and the Eastern District of Louisiana.
In Walker v. Braus, 861 F. Supp. 527 (E.D.La. 1994) (Heebe, J.), the Court supported the notion that the Miles concern for a rule of uniformity was undeniably crucial. The court stated,
Finally, in Powers v. Bayliner Marine Corp., 855 F. Supp. 199, 202 (W.D.Mich. 1994); Petition of Cleveland Tankers, Inc., 843 F. Supp. 1157, 1158-60 (E.D.Mich. 1994); and Sugden v. Puget Sound Tug Barge Co., 796 F. Supp. 455, 457 (W.D.Wash. 1992), the courts held that loss-of-society damages are recoverable under general maritime law in an action against a non-employer. Because the plaintiffs had sued a non-employer, the courts concluded that the uniformity requirement expressed in Miles (which involved a claim against a Jones Act employer) was inapplicable. However, Powers, Cleveland Tankers, and Sugden read Miles too narrowly. The concern in Miles for uniformity in maritime law must apply with equal force in cases involving non-employers, otherwise Miles' concern for uniformity would be hollow. Indeed, district courts in this circuit have already expressly held that the uniformity requirement in Miles compels the conclusion that loss-of-society damages are not available in a general maritime action brought against a non-employer. Ellender, 821 F. Supp. at 1136-37.
Claimants seek a result which the Court is unable to reach. If the Court were to allow the non-pecuniary damage claims to stand, it would need to adopt an expanded view of the Powers, Cleveland Tankers, and Sugden line of cases; this would produce a result which this Court will not entertain.
The Court concludes that this case is controlled by the law in this Circuit as well as the Supreme Court under Miles and its progeny, and as such, maintains the existence of principles of uniformity as to the availability of non-pecuniary damages for seamen or seafarers. Additionally, this Court declines to expand the scope of inclusion of Gaudet or Bardwell, to the immediate factual scenario. It was the intention of the Supreme Court to limit the application of Gaudet to longshoremen, and the action in Miles did just that. While Justin Bankston may have been in the `zone of danger', to allow the mental anguish actions of Justin Bankston to go forward while defeating the non-pecuniary damages of the heirs of Ryan Robin would be inconsistent.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment be and the same is hereby GRANTED as to the non-pecuniary damages claims of the heirs of Ryan Robin as well as claimant Justin Bankston.