Opinion
December 21, 1995
Appeal from the Supreme Court, New York County (Edward J. Greenfield, J.).
The consolidated actions underlying this appeal were commenced by the Public Administrator on behalf of the representatives of fifteen Uruguayan and Brazilian seamen who were lost when the S.S. Sylvia Ossa, a cargo ship owned and operated by the various Omnium defendants and bearing Panamanian registration, sank on October 12, 1976 while transporting iron ore from Rio de Janeiro to Philadelphia. Plaintiffs alleged violations of the Jones Act (46 U.S.C. Appendix § 688), general maritime law, and the Death on the High Seas Act (DOHSA; 46 U.S.C. Appendix § 761 et seq.) and sought to recover damages for various injuries as well as, inter alia, punitive damages.
This matter had been pending before the same Justice since 1977 and the motions to dismiss the claims for punitive damages were originally submitted in 1991. By order entered February 7, 1995, this Court granted defendants' application for a writ of prohibition against the Trial Justice to the extent of directing that the matter be assigned to another Justice ( see, Matter Omnium Transp. Co. v Greenfield, 212 A.D.2d 388). However, three days prior to the issuance of this Court's order, the respondent Justice issued the order appealed herein erroneously denying defendants' motion to dismiss the claims for punitive damages.
Damages for nonpecuniary loss are unavailable under either the Jones Act or DOHSA ( see, Mobil Oil Corp. v Higginbotham, 436 U.S. 618, 621-623), and are similarly unavailable under general maritime law ( Miles v Apex Mar. Corp., 498 U.S. 19). Punitive damages are nonpecuniary damages and are therefore precluded by the Jones Act and DOHSA ( Mobil Oil v Higginbotham, supra; Bergen v F/V St. Patrick, 816 F.2d 1345, cert denied 493 U.S. 871; Kopczynski v The Jacqueline, 742 F.2d 555, 560-561, cert denied 471 U.S. 1136). It is the prevailing rule that punitive damages are also unavailable under general maritime law as well ( Guevara v Maritime Overseas Corp., 59 F.3d 1496; Horsley v Mobil Oil Corp., 15 F.3d 200; Miller v American President Lines, 989 F.2d 1450, cert denied 510 U.S. 915; Sky Cruises v Andersen, 592 So.2d 756 [Fla], cert denied 506 U.S. 975). The trial court's reliance on cases decided prior to Miles (supra), one of which, Dyer v Merry Shipping Co. ( 650 F.2d 622), having been effectively overruled in Guevara v Maritime Overseas Corp. ( 59 F.3d 1496, supra), was misplaced.
Plaintiff has not pleaded that either Panamanian or Liberian law applies to this matter ( see, CPLR 3016 [e]), and has maintained this action under the Jones Act, DOHSA and general maritime law for the past 19 years. It is now estopped from taking the contrary position that this matter should be tried under foreign law ( Karasik v Bird, 104 A.D.2d 758). We have reviewed plaintiff's other contentions and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Asch, JJ.