Opinion
Civil Action No. 01-1914 Section "C" (2)
October 25, 2001
This matter comes before the Court on motion for partial dismissal filed by Galiano Tugs, Inc. and James Danos, Inc. Having reviewed the record, the memoranda of counsel and the law, the Court has determined that the motion has merit for the following reasons.
The plaintiff, Michael Thompson ("Thompson") filed a "Seaman's Complaint" specifically invoking the Jones Act, 46 U.S.C. S 688 and general maritime law. While the complaint also states "The non-maritime actions are brought ancillary to the Jones Act Claim," no non-maritime claims are specified in the complaint. (Rec. Doc. 1, ¶ I). Thompson's wife seeks damages for a loss of consortium, society and services. (Rec. Doc. 1, ¶ XVIII).
The movers challenge the viability of the wife's claim under the general maritime law after the decision of Miles v. Apex Marine Corp., 498 U.S. 19 (1990), which determined that there is no cause of action against an employer for loss of consortium by a seaman's wife under either the Jones Act or the general maritime law. The issue presented in this matter, whether the seaman's wife can sue a non-employer under the general maritime law for such damages, has not been directly addressed by the Supreme Court or the Fifth Circuit. As noted by the parties, there is a split in the decisions of the courts addressing the issue in this district.
The Court joins ranks with the majority of the judges in this district in finding that the wife's claim against a nonemployer is unavailable under the general maritime law. See Mastrodonato v. Sea Mar, Inc., 2000 WL 739284 (E.D.La.) (J. McNamara); Trident Marine, Inc. v. M/V ATTICOS, 876 F. Supp. 832 (E.D.La. 1994); Carnival Cruise Lines v. Red Fox Industries, Inc., 813 F. Supp. 1185 (E.D.La. 1993); Ellender v. John E. Graham Co., 821 F. Supp. 1136 (E.D.La. 1992). The uniformity sought by the Supreme Court in Miles warrants extending the preclusion of such claims against third parties. The only contrary authority from this district, Rebstock v. Sonat Offshore Drilling, 764 F. Supp. 75 (E.D.La. 1991), relies on questionable jurisprudence which pre-dated Miles, and did not involve a Jones Act claim at all. The guest for uniformity announced in Miles is not well-served by recognizing a loss of consortium claim against a nonemployer third party and not against a Jones Act employer.
On supplemental opposition, however, the plaintiff suggested a new factual claim, that the incident and injury occurred not on a vessel or water, but on land, invoking Louisiana law instead of general maritime law. This claim, and the facts underlying it, are not set forth in the complaint.
Accordingly,
IT IS ORDERED that the motion for partial dismissal filed by Galiano Tugs, Inc. and James Danos, Inc. is GRANTED, reserving to the plaintiff the right to move to amend the complaint to include a state law claim, if appropriate. Any motion to amend should be properly supported with relevant legal authority directed to the claim, or agreed to by counsel for the defendants, and shall be filed by November 5, 2001, or be deemed waived. Any hearing shall on the motion to amend should be noticed in front of the Magistrate Judge.