ORDER AND REASONS

CARL J. BARBIER, United States District Judge.

Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 2) brought by defendants Dravo Basic Materials Company, Inc. and Dravo Basic Materials Company (collectively "Dravo") in an action brought by plaintiffs Christopher Anthony Liner, Shellen Ann Liner, and David Christopher Liner (the "Liners") seeking, among other things, loss of consortium and punitive damages. The motion, set for hearing on September 13, 2000, is before the Court on briefs without oral argument. In their motion, defendants seek a ruling that plaintiffs are not entitled, as a matter of law, to loss of consortium and punitive damages. Because Louisiana law allows for loss of consortium damages and general maritime law likely allows for punitive damages, the Motion for Partial Summary Judgment is denied.

BACKGROUND

On the night of October 3, 1999, Christopher Anthony Liner and David Christopher Liner were operating a seventeen-foot fiberglass recreational vessel near the mouth of Bayou Dularge where it enters Sister Lake in Terrebonne Parish. At some point in the night, the Liners' boat struck an unmarked sunken barge, the Dravo #307, owned by Dravo. As a result of the allision, the Liners suffered personal injuries requiring Christopher Anthony to undergo knee surgery. The Liners filed suit under general maritime law pursuant to Rule 9(h) and under the applicable laws of the State of Louisiana. Their suit included a claim for punitive damages. Shellen Ann Liner, wife of Christopher Anthony, also filed suit for loss of consortium. Dravo responded with this Motion for Partial Summary Judgment, claiming that under Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317 (1990), general maritime law does not allow for either loss of consortium damages or punitive damages. In opposition, the Liners argue that the Supreme Court's ruling in Yamaha Motor Corporation, U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619 (1996) allows for State law remedies to supplement general maritime law in accidents involving non-seamen in territorial waters, and thus that they are entitled to claim punitive and loss of consortium damages.

DISCUSSION

Summary Judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). In reviewing a motion for summary judgment, a court shall draw all inferences most favorable to the party opposing the motion. See Arguello v. Conoco, Inc., 207 F.3d 803 (5th Cir. 2000).

Because this case involves a collision on navigable waters, it falls within the Court's of admiralty jurisdiction. See Yamaha, 516 U.S. at 206, 116 S.Ct. at 623; Sisson v. Ruby, 497 U.S. 358, 361-67; 110 S.Ct. 2892, 2895-98 (1990). When admiralty jurisdiction is invoked, substantive admiralty law applies. See Yamaha, 516 U.S. at 206, 116 S.Ct. at 623. However, the exercise of admiralty jurisdiction "does not result in automatic displacement of state law." Id. (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 545, 115 S.Ct. 1043, 1054 (1995)).

It is undisputed that Christopher Anthony Liner and David Christopher Liner are not traditional maritime workers covered by either the Jones Act or the LHWCA. It is also undisputed that the allision in this case occurred in state territorial waters rather than on the high seas. As a result, the Supreme Court's opinion in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619 (1996) is controlling in this case.

The tragic facts of that case involved the death of Natalie Calhoun, a 12-year-old vacationer from Pennsylvania who slammed into an anchored vessel while riding her personal watercraft. See id. at 202, 116 S.Ct. at 622. The Court was confronted with the issue of whether federal maritime law completely displaced state wrongful death law. The Court found that 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." Id. at 215, 116 S.Ct. at 628. However, regarding nonseafarers, workers who are not seamen, longshoremen, or otherwise engaged in maritime trade, Congress has not prescribed remedies for their wrongful deaths in territorial waters. See id. at 202, 215, 116 S.Ct. at 621-22, 628. As a result the Court preserved the application of State statutes to deaths of nonseafarers within territorial waters. See id. at 215, 116 S.Ct. at 628.

Yamaha stands for the proposition that nonseamen, those not covered by Congressional statute, pursuing a claim resulting from an accident in state territorial waters, may supplement that claim under general maritime law with applicable state law. The facts of Yamaha parallel those in the instant case. Both cases feature accidents involving nonseamen, not covered by federal statute, in the territorial waters of a state or province. The only distinction is that in Yamaha the girl died, whereas in the present case, the two fishermen were merely injured. Nothing in the language of the Yamaha decision suggests that such a distinction should be of any relevance. In fact, such a distinction would fly in the face of Moragne v. State Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970), a decision that recognized the inequities produced when the status of a claim is dependent on whether the plaintiff was merely injured or in fact killed. See id. at 395, 90 S.Ct. at 1784-85.

In Kelly v. Bass Enterprises Production Co., 17 F. Supp.2d 591 (E.D.La. 1998), a similar case involving a claim arising from an allision with a pipe in State territorial waters, the Court held "[a] fair reading of [Yamaha] reveals that the state statutory law applies to non-seafarers injured in state territorial waters regardless of whether their injury was fatal or non-fatal." Id. at 599. Further, Judge Fallon found that even though Yamaha dealt with a wrongful death claim rather than a personal injury claim, "[n]either logic nor maritime history supports restricting Yamaha to only fatal injury claims." Id.

Dravo erroneously relies on Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317 (1990), a decision that held loss of consortium damages to be unavailable under federal maritime statutes, and called into question the availability of non-pecuniary damage awards under the general maritime law. InMiles, the Court held that damages available under a general maritime wrongful death action are limited by the Death on the High Seas Act (DOSHA) to "pecuniary loss sustained by the persons for whose benefit the suit is brought." 46 U.S.C. app. § 762; Id. at 31, 111 S.Ct. at 325. The Court found such language to be explicit in limiting and foreclosing non-pecuniary losses, such as loss of society in a general maritime action. See id. Respondent in that case argued that the Court has power underMoragne to supplement maritime statutes. However, the Court found that Congress had spoken directly to the issue of recoverable damages on the high seas and that when Congress does speak directly, courts are not free to supplement its answer. See id.

While Dravo's analysis of the case is correct, its application to our facts is not. In Miles, the plaintiffs were seamen and thus covered by federal statute and general maritime law. The Liners are not seamen and are thus not covered by any of Congress's maritime statutes. As a result, under Yamaha, the Liners claim is governed by general maritime law and supplemented by any applicable state laws. Therefore, Louisiana law may supplement general maritime law regarding an accident occurring in its territorial waters. The remaining questions, then, are whether Louisiana law allows for loss of consortium damages and/or punitive damages in this situation, and if not, whether general maritime law allows such damages in the instant case.

1. Loss of Consortium Damages

Under Louisiana law, Shellen Ann Liner can maintain a claim for loss of consortium damages. Under article 2315 of the Louisiana Civil Code, "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Damages may include loss of consortium . . . ." Further, the elements of a loss of consortium claim may include "loss of service, loss of love and affection, loss of society and companionship, loss of sexual relations, loss of support, and loss of felicity." See Doe v. Roman Catholic Church for Archdiocese of New Orleans, 615 So.2d 410 (La.App. 4th Cir. 1993). Authority recognizing a loss of consortium claim under Louisiana law is too numerous to list. Because Louisiana law clearly allows for a loss of consortium claim, it becomes unnecessary to determine whether general maritime law also allows such a claim.

2. Punitive Damages

Louisiana law allows a punitive damage claim in only two circumstances, neither of which is present here. The first circumstance is when the tortfeasor is an intoxicated driver. La. Civ. Code art. 2315.4. The second circumstance is when the tortfeasor has sexually assaulted a minor child. La. Civ. Code art 2315.7. Obviously, the Liners claim does not fall into one of these narrowly tailored exceptions.

However, the Liners argue that under general maritime law, punitive damages are available. Many post-Miles decisions have questioned the availability of punitive and other non-pecuniary damages under the general maritime law. See, e.g., Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) (en banc),cert. denied, 516 U.S. 1046, 116 S.Ct. 706 (1996); Kelly v. Bass Enter. Prod. Co., 17 F. Supp.2d 591 (E.D.La. 1998). However, the current trend is that in certain limited circumstances, such damages are allowable.

In In re Horizon Cruises Litigation, 101 F. Supp.2d 204 (S.D.N.Y. 2000), plaintiffs brought suit after a defective whirlpool filter caused them to contract Legionnaire's Disease while aboard the defendant's cruise ship. The Court traced the long history of punitive damages in admiralty law and concluded that the thrust of the Miles decision "does not enunciate an absolute bar to recovery of punitive damages in all general maritime cases. Indeed, Miles does not signify a case for `universal uniformity of maritime tort remedy,' but rather `emphasizes the importance of uniformity in the face of applicable legislation.'" Id. at 213 (citations omitted) (emphasis added). Further, the Court found that Miles was not concerned with the awarding of non-pecuniary damages, but rather inconsistencies within statutory law. See id. Thus, in the interests of uniformity, Congressional legislation may displace both general maritime and State law. See id. at 213-14.

In addition, at least three decisions from this district have recognized that maritime plaintiffs who are not covered by a federal statute precluding such damages may have a claim for punitive damages. See Rutherford v. Mallard Bay Drilling, L.L.C., 2000 WL 805230 (E.D.La. June 21, 2000) (holding Longshoremen able to recover non-pecuniary damages because of continued vitality ofSea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806 (1974)); In the matter of Denet Towing Serv., Inc., 1999 WL 329698 (E.D.La. May 21, 1999) (holding no indication in Miles of disapproval of long line of cases allowing punitive damages under general maritime law and punitive damages are available under general maritime law where there is no statutory overlap);Maritrans Operating Partners v. Diana T. M/V, 1999 WL 144458 (E.D.La. Mar. 15, 1999) (holding punitive damage claim allowed when there is no overlap between general maritime law and a federal statute).

While the Fifth Circuit in Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) (en banc), cert. denied, 516 U.S. 1046, 116 S.Ct. 706 (1996), held punitive damages unavailable in the very limited context of willful nonpayment of maintenance and cure under general maritime law, in Galveston County Navigation Dist. No. 1 v. Hopson Towing Co., Inc., 92 F.3d 353 (5th Cir. 1996), the Court noted that "there is arguably some question as to whether or not there remains a class of conduct . . . for which punitive damages . . . are available under admiralty law."Galveston, 92 F.3d at 359 (citations omitted).

Thus, in the instant case, absent more guidance from above, the Liners should have the opportunity to argue their case for punitive damages. The current trend in the case law supports a punitive damages claim under the general maritime law when there is no overlap with federal statutes. Since that is the situation in the current case, summary judgment is not warranted to deny the Liners the opportunity to present their claim for punitive damages.

CONCLUSION

IT IS ORDERED that defendants' Motion for Partial Summary Judgment should be and hereby is DENIED.