MEMORANDUM AND ORDER
DUVAL, District Judge.
Poseidon's Motion for Partial Summary Judgment on the issue of loss of society damages presents a controversial admiralty issue the bench has faced with regularity recently: May a Jones Act plaintiff recover nonpecuniary damages from a nonemployer third-party tortfeasor for negligence under the general maritime law after Miles v. Apex Marine Corp.?
The instant case arises out of the fatality of three crewmembers of the S/V GALVESTON when it collided with the M/S ATTICOS near the mouth of the Mississippi River on the morning of March 24, 1993. Poseidon Compania Naviera, S.A. (hereinafter "Poseidon"), as owner and operator of the ATTICOS moves this court for Partial Summary Judgment dismissing the claims for non-pecuniary loss filed by the personal representatives of the three estates.
There are four basic theories upon which a true seaman may base a claim for recovery when suffering a personal injury or wrongful death. The first is a Jones Act negligence cause of action.
In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) the Court created a right for seamen to recover for wrongful death under the general maritime law. Id. at 409, 90 S.Ct. at 1792. Necessitated by this creation of a general maritime wrongful death remedy, the
The Moragne Court espoused two broad principles to "guide" lower courts when faced with the determination of the scope of a Moragne action. First, the Moragne Court sought uniformity in federal maritime law. This goal is illustrated by the Court's statement that "recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts." Id. at 401, 90 S.Ct. at 1788. The Court's second goal was to offer "special solicitude" to those persons and their beneficiaries who come within the admiralty jurisdiction of the federal court. Id. at 387, 90 S.Ct. at 1780-81.
The wrongful death remedy of the general maritime law prior to Miles did not restrict a plaintiff's recovery to pecuniary damages. This cornerstone of maritime jurisprudence was laid by the Supreme Court in Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). In a five-to-four decision written by Justice Brennan, the Court allowed the widow of a longshoreman to recover damages for loss of society. Id. at 577-78, 94 S.Ct. at 811-12. In words that would later be echoed in Miles, Justice Powell, in dissent, opined that the majority's sweeping holding was a "nearly total nullification of the congressional enactments previously governing maritime wrongful death" and clearly disregarded Moragne's concern for uniformity in maritime law. Id. at 595, 94 S.Ct. at 819-20 (Powell, J., dissenting).
Because Gaudet's broad language did not restrict loss of society damages to cases involving longshoremen injured in territorial waters, courts were soon asked to extend Gaudet's holding to general maritime wrongful death actions brought in conjunction with DOHSA and Jones Act claims.
Although, prior to Miles, the Supreme Court had not decided whether nonpecuniary damages were available in a wrongful death claim based on both the Jones Act and the general maritime law concept of unseaworthiness, the Fifth Circuit in In re Patton-Tully Transportation Co., 797 F.2d 206 (5th Cir. 1986) concluded that dependents of a seaman may recover loss of society damages in a wrongful death action based on unseaworthiness, in addition to any remedies that might be available under the Jones Act. Id. at 212-13. Recovery of nonpecuniary damages, however, was not universally allowed
The Supreme Court eliminated this inconsistency to some degree in Miles, holding that a Jones Act seaman may not recover nonpecuniary damages from his employer under a general maritime wrongful death action based on unseaworthiness. See Miles v. Apex Marine Corp., 498 U.S. 19, 37, 111 S.Ct. 317, 328, 112 L.Ed.2d 275 (1990). Noting that the Jones Act precluded the recovery of nonpecuniary losses, the Court reasoned that it could not sanction a more expansive remedy than that already given plaintiffs by Congress. Id. at 36, 111 S.Ct. at 327-28. The Court's final conclusion was that the holding in Miles restored "a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law." Id. at 33, 111 S.Ct. at 326.
Strictly interpreting the above-quoted phrase, then, Miles appears to have reached a very definitive conclusion: there is to be no recovery of any nonpecuniary damages by a Jones Act seaman if the suit results out of a wrongful death regardless whether the suit is brought under a claim of unseaworthiness or negligence. However, some district courts have read Miles narrowly limiting its holding to the denial of recovery of nonpecuniary damages only in suits brought against an employer thereby leaving open the possibility of such recovery against third-party nonemployer defendants. See Rebstock v. Sonat Offshore Drilling, 764 F.Supp. 75 (E.D.La. 1991).
Subsequent district court decisions, however, have relied on Miles to preclude recovery of nonpecuniary damages by injured Jones Act claimants against their employers and third-party nonemployers. See Turley v. Co-Mar Offshore Marine Corp., 766 F.Supp. 501 (E.D.La.1991); Dunbar v. American Commercial Barge Lines Co., 771 F.Supp. 151 (M.D.La.1991); Breland v. Western Oceanic, Inc., 755 F.Supp. 718 (W.D.La. 1991); Carnival Cruise Lines v. Red Fox Industries, Inc., 813 F.Supp. 1185, 1187 (E.D.La.1993); Ellender v. John E. Graham & Co., 821 F.Supp. 1136 (E.D.La.1992). After Miles the district courts have consistently ruled that a true seaman may recover only pecuniary damages against his employer for wrongful death or personal injury but the same consistency is lacking with regard to suits against a third-party nonemployer.
In the Fifth Circuit, prior to Miles, the spouse of an injured seaman could rely on Cruz v. Hendy International Co., 638 F.2d 719 (5th Cir. Feb. 1981), (overruled by Michel v. Total Transp., Inc., 957 F.2d 186 (5th Cir.1992)), as authority for allowing claims for loss of consortium. The Fifth Circuit in Cruz relied primarily on Gaudet, which allowed loss of society damages to the widow of a killed longshoreman. Gaudet, 414 U.S. at 585, 94 S.Ct. at 814-15. Cruz relied as well on the later American Export Lines v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) which allowed loss of society damages to the spouse of an injured harbor worker. In a well-reasoned decision, Cruz espoused a primary goal of the Miles court, that is, uniformity in maritime law. Cruz, 638 F.2d at 724 (citing Alvez, 446 U.S. at 281, 100 S.Ct. at 1677). However, because of the stringent limitations placed on Gaudet by Miles, the foundation on which Cruz stood has since crumbled. See Miles, 498 U.S. at 31, 111 S.Ct. at 325 ("The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen.").
Stripped of its foundation, Cruz soon collapsed. The Fifth Circuit in Michel v. Total Transportation, Inc., 957 F.2d 186 (5th Cir. 1992) joined a growing parade of federal district courts
Although the Miles decision definitively resolved the employer liability issue, as stated earlier, it left open the question whether the Court has also eliminated the seaman's right to recover nonpecuniary and exemplary damages from a third-party tortfeasor in a general maritime law negligence action. See Rebstock v. Sonat Offshore Drilling, 764 F.Supp. 75 (E.D.La.1991).
The first case in the Eastern District to recognize nonpecuniary damages, Rebstock v. Sonal Offshore Drilling, 764 F.Supp. 75 (E.D.La.1991), came six months after the Supreme Court decided Miles. In Rebstock, the District Court for the Eastern District of Louisiana, Judge Mentz, held that a seaman's wife could seek loss of consortium damages in a general maritime negligence action against a third party. Id. at 76. Acknowledging that the district courts in Louisiana had applied the Miles ban on nonpecuniary damages to Jones Act plaintiffs suing under the general maritime unseaworthiness theory
In distinguishing Miles, the court opined that the Miles court's emphasis on uniformity did not prevent its ruling. The court viewed Miles as creating a uniform rule for suits by seamen against their employers, without considering the issue of seamen suing third parties. Id. The court in Rebstock suggested that because of the LHWCA, to deny plaintiff the loss of consortium damages under the general maritime law of negligence would create the same type of inconsistency in maritime law that Miles had attempted to cure. The court noted that section 905(b) of the LHWCA (33 U.S.C. § 905(b)) permits the spouse of a longshoreman suing a nonemployer vessel for negligence to recover loss of consortium damages. If such recovery were denied in the instant case, the spouse of a Jones Act seaman suing a nonemployer for negligence could not equally recover the loss of consortium damages. Rebstock, 764 F.Supp. at 76. The court concluded that in the interest of uniformity, as expressed in Miles, the inconsistency may be avoided by allowing the nonpecuniary damages claim to stand against the third-party defendants in negligence. Id.
Another district addressed the nonpecuniary recovery issue with respect to nonemployer third-party tortfeasors in Sugden v. Puget Sound Tug & Barge Co., 796 F.Supp. 455 (W.D.Wash.1992). The decedent in Sugden, a Jones Act seaman working aboard a tug assigned to retrieve a barge from the third-party defendant's dock, allegedly drowned as a result of the third-party defendant's
After a brief review of maritime wrongful death actions and Miles' focus on the need for uniformity in admiralty, the court found that Miles did not reach the instant issue of nonemployer third-party liability for nonpecuniary damages. Id. The court noted that prior to Miles, in Sea-Land Services, Inc. v. Gaudet, the Supreme Court permitted a longshoreman's dependent to recover nonpecuniary damages, including loss of society, suffered as a result of a wrongful death in territorial waters under the general maritime law. Id. at 456. The Sugden court recognized that Miles eliminated the recovery for loss of society in a general maritime action for wrongful death of a Jones Act seaman. Id. Nevertheless, the district court ruled that because a nonemployer owes a duty of reasonable care under the circumstances to the employee of a third party, and because no third-party suits can be brought under the Jones Act, the duty of care applies without regard to the decedent's status as a Jones Act seaman. Id. at 457. Thus, the court held the principles of Miles do not apply and Gaudet controls. Id. In effect, the court in Sugden allowed the decedent plaintiff to shirk his true seaman status with respect to a third party in order to assure nonpecuniary recovery.
Based on the foregoing, it is clear that some district courts would read Miles narrowly to bar nonpecuniary damages only against an employer in general maritime unseaworthiness claims. See Rebstock v. Sonat Offshore Drilling, 764 F.Supp. 75 (E.D.La. 1991); Sugden v. Puget Sound Tug & Barge Co., 796 F.Supp. 455 (W.D.Wash.1992). Other courts, however, would read Miles broadly, reasoning that the sweeping language in Miles addressing nonpecuniary claims serves as a clear and unambiguous decree against such remedies for Jones Act seamen. See Carnival Cruise Lines v. Red Fox Industries, Inc., 813 F.Supp. 1185, 1187 (E.D.La. 1993); Ellender v. John E. Graham & Co., 821 F.Supp. 1136 (E.D.La.1992). This split in authority is problematical to all parties involved because it fails to promote the purposes underlying the uniformity doctrine.
Despite the foregoing split in authority, this court feels compelled by the broad language in Miles which states that "today we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law" as well as the Fifth Circuit's extension of Miles to
This court would be less inclined to apply Miles under the present facts if the Supreme Court had not included DOSHA in its analysis. DOSHA is obviously not restricted to an action against the employer, thus creating the present confusion. Therefore, to achieve the "uniformity" sought in Miles, at least viz-a-viz, DOSHA and the Jones Act, it would seem that employers and non-employers should be treated the same as to non-pecuniary damages.
The sea of non-pecuniary damages in maritime law is, indeed, difficult to navigate. If one happens to be a seaman, but institutes a suit for a maritime tort not pursuant to the Jones Act, is he precluded from recovering non-pecuniary damages? If one is not a seaman, and has a cause of action under the general maritime law, is he precluded from such recovery? See Sutton v. Earles, 26 F.3d 903 (9th Cir.1994)
Pursuant to 28 U.S.C. § 1292(b)
Considering the foregoing,
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order