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denying claim for non-pecuniary damages because the deceased was a seaman
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No. 03 Civ. 7663 (SAS).
November 3, 2004
Ralph J. Mellusi, Esq., Tabak, Mellusi Shisha, New York, New York, for Plaintiffs.
Noreen Arralde, Esq., Kenny, Stearns Zonghetti, New York, New York, for Defendants.
OPINION AND ORDER
I. INTRODUCTION
Walter and Dorothy Radut are suing U.S. Ship Management, Inc. ("USSM"), owner of the MV Sea-Land Achiever (the "Achiever"), on various claims arising out of injuries sustained by Walter Radut while working on the Achiever. The Raduts allege both admiralty jurisdiction pursuant to 28 U.S.C. § 1333 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. USSM now moves for summary judgment on the Raduts' claim for unseaworthiness, arguing that because Walter Radut was not a seaman he is not entitled to pursue such a claim. Additionally, USSM moves to dismiss the Raduts' claims alleging non-pecuniary damages — specifically Walter Radut's claim for punitive damages, and Dorothy Radut's claim for loss of consortium.
By stipulation, plaintiffs have abandoned their claims against all defendants other than USSM and the Achiever itself.
The following facts are taken from the Complaint, the parties' Rule 56.1 statements, and relevant affidavits and declarations. Unless otherwise indicated, the facts are undisputed.
Walter Radut, a marine corrosion and coatings specialist, was retained by USSM in September 2000, as an independent contractor, to perform a "steel and coating survey" on three of USSM's vessels, beginning with the Achiever. Radut boarded the Achiever in Houston and went to sea on September 29, 2000. The work on the Achiever was to be carried out while the ship was at sea, in normal service. It was not unusual for Radut to do his work while ships were at sea. Radut's job was to inspect the Achiever's tanks and other spaces for corrosion, and to prepare a specification for repairs to be carried out at a later time.
September 25, 2000 Email from Eugene Van Rybach, USSM's Marine Technical Manager, to Walter Radut ("Sept. 25 Email"), Ex. 1 to Declaration of Ralph Mellusi, plaintiffs' counsel ("Mellusi Decl.").
See Deposition of Walter Radut ("Radut Dep."), Ex. D to Declaration of Noreen Arralde, defendants' counsel, at 111-13.
See id. at 92.
See id. at 82-83, 92.
Radut has half a century of experience in marine corrosion. He started his own company, W.H. Radut Associates, to carry out corrosion surveys, in 1983. While on board the Achiever, although he relied on the crew to guide him to specific areas of the ship, he worked according to his own standards. He testified that he was not required to follow orders, and that he could have refused to perform his duties if he believed that conditions were unsafe. He did not sign seamen's articles, and was not a member of the vessel's crew; his designation aboard ship was as a "supernumerary." However, he was provided with food and sleeping quarters alongside the ship's crew.
See id. at 39-52.
See id. at 84.
See id. at 185.
Id. at 83.
See id.
On October 2, 2004, the Achiever arrived in Freeport, in the Bahamas. On the morning of October 3, at 7:00 a.m., the Achiever departed Freeport for Charleston, South Carolina, where Radut was to disembark. At 11:30 a.m. on October 3, while the Achiever was on the high seas, Radut "fell through an unlighted and unguarded opening in the deck falling approximately 20 feet to a steel deck below, as a result of which he sustained multiple fractures. . . ." Radut alleges that his accident was a result of the Achiever's unseaworthy condition, and of USSM's negligence.
See Deposition of James Boak, Chief Mate of the Achiever, Ex. 5 to Mellusi Decl., at 66-71; October 3, 2004 Accident Report at Box 24; Sept. 25 Email.
Complaint ¶ 33.
See id.
III. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"
Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Id. (quoting Anderson, 477 U.S. at 248).
The movant has the burden of demonstrating that no genuine issue of material fact exists. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts," and it must "come forward with `specific facts showing that there is a genuine issue for trial.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. However, "[w]hile all factual ambiguities must be resolved in favor of the nonmoving party, the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation."
See Powell v. Nat'l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).
Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quotation omitted).
When one party has moved for summary judgment, a court may grant summary judgment in favor of the non-moving party "provided that party has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried." "[I]t is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had [the non-moving party] made a cross-motion for summary judgment." A court is not required to give notice of its intention to grant summary judgment sua sponte, because when one party has moved for summary judgment "the parties are . . . on notice that ultimate issues are before the court."
First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 115 (2d Cir. 1999). See also Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir. 2000) ("[W]here it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court, a sua sponte grant of summary judgment against that party may be appropriate if those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law.").
Local 33, Int'l Hod Carriers Bldg. Common Laborers' Union of Am. v. Mason Tenders Dist. Council of Greater N.Y., 291 F.2d 496, 505 (2d Cir. 1961).
First Fin. Ins. Co., 193 F.3d at 115.
The practice of granting summary judgment sua sponte without notice is generally disfavored, but may be appropriate where it is clear that the moving party will not be procedurally prejudiced.
A party is procedurally prejudiced if it is surprised by the district court's action and that surprise results in that party's failure to present evidence in support of its position. . . . If, however, the party either cannot claim to have been surprised by the district court's action or if, notwithstanding its surprise, the party had no additional evidence to bring, it cannot plausibly argue that it was prejudiced by lack of notice. "The threat of procedural prejudice is greatly diminished if the court's sua sponte determination is based on issues raised by the moving party."
See Bridgeway Corp., 201 F.3d at 139-40.
Id. (quoting Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991)).
B. Motion to Dismiss
A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." At the motion to dismiss stage, the issue "is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleading that a recovery is very remote and unlikely, but that is not the test."
Weixel v. Board of Educ. of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (alterations omitted)).
Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quotation omitted).
A complaint need not state the legal theory, facts, or elements underlying the claim except in certain instances. Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, "a complaint must include only `a short and plain statement of the claim showing that the pleader is entitled to relief.'" The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof." When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Rule 8(a)(2)).
Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (quotation and citations omitted).
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
III. DISCUSSION
A. The Claim For Unseaworthiness
The duty of seaworthiness obligates a vessel owner "to furnish a vessel and appurtenances reasonably fit for their intended use. . . . [T]he doctrine of seaworthiness imposes a very strict standard of liability. While not quite a standard of strict liability, the warranty of seaworthiness is completely divorced from concepts of negligence." "Unseaworthiness is a condition, and how that condition came into being — whether by negligence or otherwise — is quite irrelevant to the owner's liability for personal injuries resulting from it."
Clark v. Solomon Navigation, Ltd., 631 F. Supp. 1275, 1278 (S.D.N.Y. 1986) (citing Mitchell v. Trawler Racer, 362 U.S. 539 (1960)).
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 567 (1971).
An action for unseaworthiness may be brought by a plaintiff who is a "seaman" under the Jones Act. Plaintiffs concede that Walter Radut is not a seaman within the meaning of the Jones Act. However, under Seas Shipping Co. v. Sieracki, the duty of seaworthiness extends to those who are not "seamen" under the Jones Act, but who nonetheless are "doing a seaman's work and incurring a seaman's hazards." Under Sieracki, the duty of seaworthiness "is not confined to seamen who perform the ship's service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement." Sieracki thus creates a class of ` Sieracki seamen.' Sieracki seamen have been held to include independent contractors temporarily aboard ships, e.g., carpenters, river pilots, and divers. One need not be engaged in traditional maritime work to be a Sieracki seaman: the doctrine has been held to encompass a hairdresser employed by an independent contractor in a cruise ship's beauty salon.
46 U.S.C.S. App. § 688. The Jones Act provides remedies for seamen injured in the course of their employment. Under general maritime law prior to the enactment of the Jones Act in 1920, seamen were entitled to causes of action based on "maintenance and cure" and unseaworthiness, which were not available to other non-seamen, but, unlike non-seamen, could not recover for negligence. The Jones Act added a cause of action for negligence to the protections afforded to seamen. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). To qualify as a seaman under the Jones Act, it is necessary to show "a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature." Id. at 377.
See Plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss and for Summary Judgment ("Pl. Mem.") at 7; August 26, 2004 Stipulation of Voluntary Discontinuance.
328 U.S. 85, 99 (1946). Sieracki itself extended the warranty of seaworthiness to longshoremen. In 1972, Congress enacted the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 et seq., which removed the unseaworthiness remedy from longshoremen. The LHWCA left a class of Sieracki seamen who "fall into the crack between seamen and longshore workers," who may assert a claim for unseaworthiness though they are not covered by the Jones Act. Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376, 382 (E.D. La. 1997).
Sieracki, 328 U.S. at 95.
See Pope v. Talbot, Inc. v. Hawn, 346 U.S. 406 (1953).
See Clark, 631 F. Supp. at 1281; Blancq, 986 F. Supp. at 383.
See Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir. 1984).
See Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2d Cir. 1973).
USSM moves for summary judgment on plaintiffs' unseaworthiness claim, contending that "the undisputed facts establish Radut was not a seaman," and therefore was not entitled to the warranty of seaworthiness. USSM makes two arguments in support of this contention, neither of which is persuasive.
Memorandum of Law in Support of Motion to Dismiss and for Summary Judgment ("Def. Mem.") at 15.
First, USSM argues that "Radut was not subject to the rigid discipline that characterizes seamen's service." USSM points to Radut's testimony that he could have refused to perform his duties if he believed conditions to be unsafe. This argument is unavailing. It is true that courts have often stressed that the maritime law's special solicitude for seamen is partly due to the "relation of dependence and submission" between seamen and their employers. However, the question of whether and to what extent Radut was required to obey the orders of the Achiever's officers cannot be determinative of his status as a Sieracki seaman. The Sieracki doctrine was developed precisely for independent contractors who do the ship's work and are exposed to the ship's hazards, but are not members of the ship's crew or under the direction of its officers.
Id. at 17.
Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 377 (1932).
Second, USSM argues that Radut "was not performing seamen's work." USSM maintains that the record shows that Radut's work was highly specialized, and could not be performed by regular seamen, and that Radut provided his own equipment for his work. This argument is likewise unavailing. As noted above, courts have repeatedly found that independent contractors performing specialized services beyond the training of regular seamen, such as hairdressers and river pilots, are Sieracki seamen. Moreover, evidence submitted by the plaintiffs shows that seamen are trained in detecting and dealing with "the great marine problem, rust." Radut clearly had greater expertise on the subject than the ordinary seaman. However, it does not appear, when all inferences are drawn in plaintiffs' favor, that his work was wholly different in kind from that which might be performed by regular members of a ship's crew.
Def. Mem. at 17.
Merchant Marine Officers' Handbook, Ex. 7 to Mellusi Decl., at 14-49.
For the foregoing reasons, USSM's motion for summary judgment must be denied. Plaintiffs have not moved for summary judgment on this issue. However, this is an appropriate case for the Court to consider plaintiffs' opposition to USSM's motion for summary judgment as a cross-motion for summary judgment. Having moved for summary judgment on the issue of Radut's seaman status, USSM was on notice that the ultimate issue of Radut's status was before the Court. USSM has had a full and fair opportunity to come forward with evidence establishing that Radut was not a seaman.
The record, even when viewed in the light most favorable to USSM, clearly establishes that Radut was a Sieracki seaman. Even if the Court assumes the truth of USSM's assertions that Radut's work could not have been performed by an ordinary seaman, and that he was not required to obey the orders of the Achiever's officers, these factors are not determinative of Sieracki seaman status. The undisputed facts establish Radut's status as a Sieracki seaman: Radut worked, slept and ate alongside the crew; he went to sea with the ship; he was exposed to the same hazards as the crew; and, most importantly, he was performing the ship's service, at the owner's request. Accordingly, the Court finds that Walter Radut was a Sieracki seaman. Radut is therefore entitled to bring an action for unseaworthiness.
This factor clearly distinguishes this case from cases cited by defendants, including United New York New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613 (1959), McMahon v. M/V TOMIS SEA, Civ. A. No. 92-2368, 1993 WL 205055 (E.D. La. June 4, 1993), Dennis v. Central Gulf Steamship Corp., 323 F. Supp. 943 (E.D. La. 1971), and Royston v. Pacific Far East Lines, Inc., 190 F. Supp. 450 (N.D. Cal. 1960). In each of these cases, the plaintiff was injured while working on a docked ship.
B. The Claims for Non-Pecuniary Damages
USSM moves to dismiss Walter Radut's claim for punitive damages, and Dorothy Radut's claim for loss of consortium, on the ground that the maritime law does not permit claims for non-pecuniary damages. Plaintiffs concede that they could not recover such damages if the Jones Act were applicable to this case, but argue that because the Jones Act does not apply, they may recover non-pecuniary damages under the general maritime law. For the following reasons, USSM's motion is granted.
Although two maritime statutes — the Jones Act, and the Death on the High Seas Act, 46 U.S.C. § 761 ("DOHSA") — do not permit recovery for non-pecuniary damages, such recovery was traditionally possible in claims brought under the general maritime law. In 1990, however, the Supreme Court's decision in Miles v. Apex Marine Corp., called this traditional position into question. In Miles, the mother of a deceased Jones Act seaman sought recovery for loss of society, in a claim under general maritime law, based on unseaworthiness. The Court rejected this claim.
See In re Horizon Cruises Litig., 101 F. Supp. 2d 204, 210-212 (S.D.N.Y. 2000) (discussing history of punitive damages under maritime law).
498 U.S. 19 (1990).
Noting that such non-pecuniary relief was not available in a claim under either DOHSA or the Jones Act, the Miles Court held that "it would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases resulting from negligence." The Court recognized the value of uniformity for claims arising under maritime law, and stated that it was "restor[ing] a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law."
Miles, 498 U.S. at 32-33.
Id. at 33.
A number of courts read Miles as "endorsing a uniform maritime law" which rejects all claims for non-pecuniary damages, whether brought by Jones Act seamen or not. The Second Circuit's reading of Miles was somewhat unclear. Before it could become clear, the Supreme Court further complicated the issue in Yamaha Motor Corp., U.S.A. v. Calhoun, in which the parents of a child killed in a jet ski accident in territorial waters sought non-pecuniary damages, under state law, from the jet ski manufacturer. The Court rejected the manufacturer's argument that the principle of uniformity behind Miles required that the general maritime law should displace the state law and preclude the application of state law remedies.
See Friedman v. Cunard Line Ltd., 996 F. Supp. 303, 311 (S.D.N.Y. 1998) (collecting cases). See also Robert Force, The Curse of Miles v. Apex Marine Corp.: The Mischief of Seeking "Uniformity" and "Legislative Intent" in Maritime Personal Injury Cases, 55 LA. L.REV. 745, 795 (1995) (criticizing the "rigid and narrow adherence to uniformity" shown by some courts post- Miles).
Compare Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084, 1094 (2d Cir. 1993) (asserting, in dicta, that the principle of uniformity announced in Miles precludes recovery of non-pecuniary damages in all maritime actions) and Preston v. Franz, 11 F.3d 357, 358 (2d Cir. 1993) ("it would be anomalous to allow a nonseaman's estate to recover for future lost wages when a seaman's estate, under Miles, would not be entitled to such recovery") with Zicherman v. Korean Air Lines Co., 43 F.3d 18, 21 (2d Cir. 1994) ("While two maritime statutes — DOHSA and the Jones Act — preclude recovery for non-pecuniary loss, general maritime cases not brought under such statutory restrictions allow recovery") and In re Air Disaster at Lockerbie Scotland, 37 F.3d 804, 829 (2d Cir. 1994) ("General maritime law cases that are not bound by statutory restriction, in contrast, allow recovery for loss of society.").
516 U.S. 199 (1996).
The Yamaha Court noted that the principle of uniformity had arisen in Moragne v. States Marine Lines, Inc., a case which "centered on the extension of relief, not the contraction of remedies." In Moragne, the Court held that "`it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.'" The Yamaha Court read Miles as holding that "when Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is . . . no cause for enlargement of the damages statutorily provided." However, because "Congress has not prescribed remedies for the wrongful deaths of nonseafarers in territorial waters," the Court concluded that there was no basis for displacing state law remedies in that instance.
398 U.S. 375 (1970).
Yamaha, 516 U.S. at 213.
Moragne, 398 U.S. at 387 (quoting The Sea Gull, No. 12,578, 21 F. Cas. 909, 910 (C.C. Md. 1865)).
Yamaha, 516 U.S. at 215.
Id.
Courts across the country have split concerning the proper reading of Miles and Yamaha. Some courts continue to read Miles broadly, while limiting Yamaha to its particular facts, while others do the reverse. Within this district, two courts following Yamaha, have permitted claims for non-pecuniary damages under general maritime law, where no federal statute applies, and applicable state law exists to supplement the remedies available under maritime law. In Friedman v. Cunard Line, however, Judge Charles Haight denied a claim for loss of society brought under state law by the spouse of a passenger injured on a cruise ship. Judge Haight concluded that, notwithstanding Yamaha, the principle of uniformity stated in Miles militated against recognizing a right to non-pecuniary damages under maritime law, at least "where the injury occurred on the high seas, thereby eliminating any policy reason for applying the law of a particular state," and possibly in all cases. Judge Haight noted that "[i]t would be anomalous to grant the families of passengers on board a cruise ship a form of damages which the law denies to the families of seamen on board the same ship at the same time and injured in the same accident." Similarly, in O'Hara v. Celebrity Cruises, Judge Jed Rakoff refused, in a case brought under the general maritime law by an injured passenger, to permit an arguably applicable state law punitive damages remedy to supplement the general maritime law. Judge Rakoff found that punitive damages were "antagonis[tic]" to the uniformity of the federal maritime law.
See Taylor v. Costa Cruises, Inc., No. 90 Civ. 2630, 1996 U.S.Dist. LEXIS 22510 (S.D.N.Y. Mar. 14, 1996); Gravatt v. City of New York, 53 F.Supp. 2d 388 (S.D.N.Y. 1999).
Friedman, 996 F.Supp. at 313 n. 3.
Id. at 312.
979 F.Supp. 254 (S.D.N.Y. 1997).
O'Hara, 979 F.Supp. at 256.
In In re Horizon, by contrast, Magistrate Judge James C. Francis permitted a claim under the general maritime law for punitive damages by injured cruise ship passengers. Magistrate Judge Francis read Yamaha as holding that the principle of uniformity announced in Moragne and Miles does not sweep away traditional remedies, whether under a particular state's law or the general maritime law, unless Congress has provided a "comprehensive tort recovery scheme for a class of maritime actions." Having found that neither the Jones Act nor DOHSA, or any other federal statute, applied to the case, Magistrate Judge Francis held that punitive damages were therefore available under the general maritime law. He found the authority for non-pecuniary damages under the traditional general maritime law, rather than any specific state law.
In re Horizon, 101 F.Supp. 2d at 213. A number of courts in other districts have taken a similar position. See Stogner v. Central Boat Rentals, Inc., 326 F.Supp. 2d 754, 757 (E.D.La. 2004) ("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."). See also Robert Force, Tort Reform by the Judiciary; Developments in the Law of Maritime Personal Injury and Death Damages, 23 MAR. LAW. 351 (1999) (criticizing the "lack of insight or sensitivity" shown by those courts that have held that Miles prohibits non-pecuniary damages in contexts where no federal statute applies.").
In Re Horizon, 101 F.Supp. 2d at 214. In another stage of the same litigation, Magistrate Judge Francis permitted, without further explanation, a claim for loss of society. See Silivanch v. Celebrity Cruises, Inc., 171 F.Supp. 2d 241 (S.D.N.Y. 2001).
In order to resolve the present motion, the Court need not choose between Friedman and In re Horizon. Plaintiffs claim that because Radut is a Sieracki seaman, he is entitled to bring an action for unseaworthiness. As a result, plaintiffs assert they are entitled to the benefit of the `comprehensive tort recovery scheme' provided for seamen. It would be truly anomalous to allow plaintiffs to avail themselves of a cause of action available only to seamen, while claiming a measure of damages available only to non-seamen, merely because Radut, as a Sieracki seaman, falls under a judge-made extension of the Jones Act's scheme, rather than under the Jones Act itself. Miles made particular note of the anomaly of allowing damages greater than those allowed to seamen "in an action founded on strict liability" ( i.e., on the seaman's remedy of unseaworthiness). Consequently, plaintiffs are entitled to pursue a claim for unseaworthiness, but they may not recover non-pecuniary damages from a shipowner or employer defendant, any more than they could if Radut were covered by the Jones Act. USSM's motion to dismiss plaintiffs' claims for punitive damages and loss of consortium is therefore granted.
Miles, 498 U.S. at 36.
The cases cited by plaintiffs are not to the contrary. Yamaha, as noted, dealt with the claim of a jet ski user against its manufacturer. In re Horizon dealt with claims of non-seamen, based on negligence and product liability theories, and noted that "the Jones Act defines the remedies available to seamen." In re Horizon, 101 F. Supp. 2d at 214. Price v. Consolidation Coal Co., Inc., 2002 A.M.C. 1179 (N.D. W.Va. 2001) and Stogner permitted Jones Act seamen to maintain claims for non-pecuniary damages based on theories other than unseaworthiness, against third-party defendants who were neither employers nor shipowners.
IV. CONCLUSION
For the foregoing reasons, USSM's motion for summary judgment is denied. The Court concludes, as a matter of law, that Radut was a Sieracki seaman. USSM's motion to dismiss plaintiffs' non-pecuniary claims is granted. The Clerk is directed to close this motion [# 12 on the docket sheet]. A conference is scheduled for November 8, 2004 at 4:30 p.m.
SO ORDERED.