Opinion
Civ. No. 99-951 c/w 99-984, 1346, SECTION "A" (3).
February 23, 2000.
ORDER AND REASONS
Before the Court is a Motion to Amend to assert claims for punitive damages filed on behalf of claimants Fontenot, Thibodaux, and LeBlanc. Claimants cite FRCP Rule 15(a) for authority, arguing leave to amend should be freely granted. Counsel for claimants also cites this Court's pre-Guevara decision in Duplantis v. Texaco, Inc., 771 F. Supp. 787 (E.D. La. 1991). Trico Marine Assets, Inc., Trico Marine Operators, Inc., and Diamond B Marine Services, Inc. filed formal opposition to claimants' motion to amend arguing, inter alia, the futility of claimants' proposed amendment. Petitioners' position is that the wake of Miles and Guevara leaves no Fifth Circuit or Supreme Court authority for an award punitive damages under the general maritime law. Claimants filed a formal reply. The matter was deemed submitted for decision on the briefs and documents of record. For the reasons discussed below, claimants' motion is DENIED.
FRCP Rule 15(a) gives discretion to the trial court in allowing parties to amend their pleadings stating that "leave to amend shall be freely given when justice so requires." If the amendment is futile, the trial court can in its discretion deny the motion to amend the complaint as stated in Foman v. Davis, 83 S.Ct. 227, 230 (1962).
The decision of the Fifth Circuit in Guevara v. Maritime Overseas Corporation, 59 F.3d 1496 (5th Cir. 1995) (en banc),cert. denied, 116 S.Ct. 706 (1996), held that, in light of Miles, punitive damages are no longer available in cases of willful nonpayment of maintenance and cure under the general maritime law. Guevara, 59 F.3d at 1513.
This Court's decision in Duplantis, rests for its validity on the court's analysis in Dyer v. Merry Shipping, 650 F.2d 622 (5th Cir. 1981), which has been effectively overruled. Guevara, 59 F.3d at 1507.
I. BACKGROUND
These consolidated cases arise from the March 25, 1999 collision of Trico Marine's downbound vessel, the OSV CANE RIVER, and Diamond B Marine's upbound vessel, C/B MISS BERNICE, while operating in the fog on the Mississippi River below Venice, Louisiana. The cases which comprise these consolidated proceedings include: Trico Marine's complaint against Diamond B Marine for damages in admiralty, as well as Trico Marine's and Diamond B Marine's respective petitions for exoneration and/or limitation in liability. The amendments to the claims in the consolidated limitation proceedings presently sought by the claimants consist of allegations of "gross, wanton and outrageous conduct" which they now perceive as sufficiently gross to warrant the imposition of punitive damages, albeit in this classic admiralty scenario — that is, a ship collision involving commercial vessels operating in heavy fog on a heavily trafficked navigable waterway.
II. ANALYSIS
The Court denies claimants' Motion to Amend in these consolidated admiralty cases because as the opposition memoranda accurately points out, such amendment would be futile — that is, with the death of Merry Shipping, supra, there is no longer any authority in the Fifth Circuit for an award of punitive damages under the general maritime law. It follows then that no injustice will result from the denial of the claimants' motion to amend.
Whereas leave to amend should be freely granted, it is by no means automatic. Addington v. Farmer's Mutual Insurance Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 102 S.Ct. 672 (1981). The exercise of discretion pursuant to FRCP Rule 15(a) contemplates consideration of various factors including "undue delay, bad faith, undue prejudice to the opposing party by allowing the amendment, and the futility of the amendment." Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991)
The status of the law of the Fifth Circuit post-Miles and post-Guevara is that because punitive damages do not compensate pecuniary losses, they are not recoverable under the general maritime law, whether sought by a seaman against his employer or a non-seaman. A fair reading of the mile markers discussed below support this Court's conclusion that the amendment to add claims for punitive damages would be futile in this classic admiralty ship collision case.
Beginning with Miles v. Apex Marine Corp., 111 S.Ct. 317 (1990), the Supreme Court held that "loss-of-society" damages, a form of nonpecuniary damages, are not available in a general maritime law action for the wrongful death of a seaman. Citing Miles' uniformity principle, the Fifth Circuit denied punitive damages to an injured seaman in Guevara, noting that punitive damages are considered nonpecuniary. Guevara, 59 F.3d at 1505.
The Guevara court recognized that Miles effectively overruledDyer v. Merry Shipping Co., 650 F.2d 622 (5th Cir. 1981), which was the legal foundation for all punitive damage claims under the general maritime law in the Fifth Circuit, stating: "After Miles, it is clear that Merry Shipping has been effectively overruled."Guevara, 59 F.3d at 1507. The Fifth Circuit explained that the analysis it relied upon in Merry Shipping has been significantly undermined, to wit:
In reaching our holding in Merry Shipping — 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 — we relied on a key proposition: `It does not follow . . . that if punitive damages are not allowed under the Jones Act, they should also not be allowed under the general maritime law.' Merry Shipping, 650 F.2d at 626. . . . [W]e now view this proposition as problematic. . . .Guevara, 59 F.3d at 1504.
In Walker v. Braus, 995 F.2d 77 (5th Cir. 1993), the Fifth Circuit spoke to the issue of whether nonpecuniary damages (i.e., consortium damages) were recoverable by a fishing vessel operator, who was neither a seaman nor a longshoreman. The Walker court, consisting of Judges Garza, Higginbotham and DeMoss, opined:
The Supreme Court has clearly indicated its desire to achieve uniformity of damage recoveries in the exercise of admiralty jurisdiction. Allowing Trahan to recover loss of consortium damages would directly contradict the policy of uniformity emphasized and relied on by the Court in Miles; and without expressly so deciding at this time; we acknowledge the strength of the argument that damages for loss of society may no longer be permitted in a general maritime wrongful death action involving the operator of a fishing boat. Id. at 82.
Noting the "trend" in the Fifth Circuit, on remand, the district judge in Walker concluded that the concern in Miles for uniformity in maritime law must apply with equal force in cases involving non-employers. Walker v. Braus, 861 F. Supp. 527, 538 (E.D. La. 1994). The Walker court observed that permitting dependents of nonseaman to recover damages that the beneficiaries of seamen (i.e. wards of admiralty) cannot would thwart the goals of uniformity and provoke an anomalous result — "`those who are entitled the greatest degree of protection under maritime law — would be afforded a lesser degree of protection than non-seaman.'" Id. at 536 n. 12.
In Galveston County Navigation Dist. No. 1 v. Hopson Towing Co., 92 F.3d 353, 358 (5th Cir. 1996), the Fifth Circuit noted that there is arguably a question of whether there is some class of willful and wanton conduct for which punitive damages are available under the general maritime law. The lengthy discourse which presaged that note, however, would dictate a negative answer. The Galveston County court observed that the Supreme Court has never affirmed an award of punitive damages in an admiralty case. Id. at 359 n. 11. The court also noted that there was only one reported admiralty case, prior to Vaughan, which actually awarded punitive damages. Also, as noted below, in the Fifth Circuit's opinion, the award in Vaughan was for attorney's fees (pecuniary in nature), and not punitive in the tort sense.
The Fifth Circuit reiterated its observations in Guevara that some courts have misread Vaughan as authorizing punitive damages in admiralty. In its view, the Vaughan award was not punitive in the tort sense, but rather, bad-faith fee shifting which punishes abuses of the litigation process. 92 F.3d at 359 nn. 11 and 13.
See, Gallagher v. The Yankee, 9 Fd.Cas. 1091 (N.D. Cal. 1859), aff'd, 30 Fd.Cas. 781 (Cir.Ct. N.D.Cal. 1859) (involving the conduct of a master in executing the sentence of some California vigilantes, who seized a person on land, sentenced him to exile, and handed him over to the defendant ship's master to transport him to the Sandwich Islands and leave him there).Galveston County, 92 F.3d at 359 n. 11. The conduct at issue inThe Yankee involved "a marine tort of the most flagrant character" (i.e., the unlawful deportation of an American citizen pursuant to a sentence issued by an illegal and self-constituted body of men). 9 Fd.Cas. at 1091. By today's standards the conduct of the master at issue in The Yankee closely parallels conspiracy kidnaping — prosecutable as a federal felony offense.
As previously noted, the Guevara court observed that afterMiles, it is clear that Dyer v. Merry Shipping Co., 650 F.2d 622 (5th Cir. 1981) has been effectively overruled. The precise holding of Merry Shipping was that "in this [the Fifth] Circuit punitive damages may be recovered under the general maritime law upon a showing of willful and wanton misconduct by a shipowner.' 650 F.2d at 626.
As one district court judge has noted, "[w]ith the death ofMerry Shipping . . . [p]unitive damages claims under the general maritime law are no longer supported by the law of this circuit."Bardwell v. George G. Sharp, Inc., 1995 WL 517120 (E.D.La. August 30, 1995); see also, Hayden v. Acadian Pipeline System, 1997 WL 382059 (E.D.La. July 9, 1997). Moreover, and as previously noted by the Fifth Circuit in Galveston County, supra, there is no Supreme Court authority for an award for punitive damages under the general maritime law. 92 F.3d at 359 n. 11.
An additional consideration alluded to previously which counsels in favor of adherence to the Mile's refrain (i.e., uniformity of admiralty law), is that the circumstances of this particular case could not be more closely related to activity traditionally subject to admiralty law. Notwithstanding the fact that the claimants were nonseaman passengers of the crewboat MISS BERNICE, this is a vessel collision case involving alleged personal injury which bears a substantial connection to traditional maritime activity. This is not the "on the fringes" type of admiralty case involving jet skis or pleasure craft or an aircraft which happens to fall into navigable water. It is your typical admiralty case which involves a collision of commercial vessels in the ordinary course of maritime business, on a navigable waterway, which is subject to heavy commercial traffic.
As previously mentioned, the captioned consolidated proceedings arise out of the March 25, 1999 head-on collision between the OSV CANE RIVER and the CB MISS BERNICE in the fog on the Mississippi River near the Lower Jump Shoal Buoy, below Venice, Louisiana. On March 25, 1999, Trico Marine, owner/operator of the OSV CANE RIVER filed suit against Diamond B, owner/operator of the CB MISS BERNICE. Thereafter, on March 29, 1999 and April 30, 1999, respectively, Trico Marine and Diamond B filed complaints for exoneration from or limitation of liability. The Clerk of Court made an entry of default in the consolidated limitation proceedings on June 10, 1999 pursuant to petitioners' motion. The matter is presently set for trial in two months, on May 1, 2000.
In conclusion, the Court notes that other circuits, in addition to the Fifth, have concluded that the Miles rationale operates to preclude claimants other than seaman from recovering nonpecuniary damages under the general maritime law, including punitive damages. Also, the Fifth Circuit, in Galveston County which is discussed above, is not the only circuit which has noted the utter absence of Supreme Court authority for the recovery punitive damages under the general maritime law.
See e.g., In re Amtrak "Sunset Ltd." Train Crash, 121 F.3d 1421 (11th Cir. 1997), cert. denied sub nom, Altosino v. Warrior Gulf Navigation Co., 118 S.Ct. 1041 (1998) (distinguishingYamaha Motor Corp. v. Calhoun, 116 S.Ct. 619 (1996) and refusing to extend state law remedies to personal injury claimants (non-seamen) seeking non-pecuniary damages/punitive damages resulting from allision of a commercial tug and tow with a railroad bridge occurring in state territorial waters and holding that pure, unadulterated federal maritime law applied — that is, "a body of laws . . . that have been fitted over the years for just these types of situations."); Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495 (9th Cir. 1995); Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (1st Cir. 1994) (no right to recover loss of consortium or punitive damages in unseaworthiness action involving nonfatal injury); Smith v. Trinidad Corp., 992 F.2d 996 (9th Cir. 1993) (per curiam) (same); Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127, 132 (5th Cir.) (same), cert. denied, 113 S.Ct. 190 (1992); and Miller v. American President Lines, Ltd., 989 F.2d 1450, 1459 (9th Cir. 1993) (no punitive damages in wrongful death action alleging unseaworthiness).
The Eleventh Circuit in In re Amtrak "Sunset Ltd." Train Crash observed:
Unless and until the United States Supreme Court should decide to add state remedies for personal injury, personal injury claimants have no claim for nonpecuniary damages such as loss of society, loss of consortium or punitive damages. . . . We are aware of no decision of the Supreme Court . . . which has authorized punitive damages in a personal injury case. 121 F.3d at 1429.
Also, the Ninth Circuit's decision in Glynn v. Roy Al Boat, 57 F.3d 1495 (9th Cir. 1995) (holding punitive damages not available) fixated on the absence of Supreme Court authority for an award of punitive damages. Because Miles did not consider the availability of punitive damages, the Glynn court turned first toVaughan v. Atkinson — wherein "the [Supreme] Court for the first time allowed recovery beyond the expenses required for maintenance and cure." 57 F.3d at 1503. The Glynn court discerned "no support for punitive damages in addition to attorney's fees in Vaughan itself" as did the Fifth Circuit. According to the Ninth Circuit, "Vaughan provides seaman with an appropriate remedy for the `necessary expenses' and damages caused by the willful and persistent failure to pay what is due: hiring a lawyer, filing suit, and incurring legal expenses on top of expenses for their own maintenance and cure." 57 F.3d at 1504-05. In other words, the award in Vaughan appears to be pecuniary in nature.
In the absence of any Fifth Circuit or Supreme Court authority for an award of punitive damages under the general maritime law, the Court is of the opinion that the personal injury claimants' motion to amend their claims in these consolidated limitation proceedings is futile. Accordingly,
IT IS ORDERED that the Claimants' Motion to Amend is DENIED.
New Orleans, Louisiana, this 18th day of February, 2000.