Haltom v. Lykes Bros. SS Co., Inc., 771 F. Supp. 179 (E.D. Tex. 1991)

*180 Don Bush, Beaumont, Tex., for Jo Ann Haltom.

J. Thad Heartfield, Edward Johnson, Beaumont, Tex., for Lykes Bros. S.S. Co., Inc.

Joseph Green, Beaumont, Tex., for Medical Advisory Systems, Inc.

SCHELL, District Judge.

On this day came on for consideration the defendant Lykes Bros. Steamship Co., Inc.'s Motion for Partial Summary Judgment, together with the plaintiff's response. The court finds that the motion is meritorious and should be granted.

The plaintiff seeks damages for the death of her husband, a seaman, who died aboard the M/V Sheldon Lykes. Lykes contends that her claims for loss of society, companionship and consortium seek recovery for nonpecuniary losses which are not recoverable under the Jones Act, 46 U.S.C.App. § 688, the Death on the High Seas Act (DOHSA), 46 U.S.C.App. § 761 et seq., or general maritime law. Lykes cites the Supreme Court case of Miles v. Apex Marine Corp., ___ U.S. ___, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990), wherein the Court held that not only do the Jones Act and DOHSA limit recovery in wrongful death actions to pecuniary losses and exclude nonpecuniary losses, such as loss of society, but that there is also "... no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman." Miles at 111 S. Ct. 326.

The plaintiff responds by stating that Miles involved a suit by a nondependent parent of a deceased seaman, whereas, here the plaintiff was dependent on the deceased. The Court in Miles, however, draws no such distinction in its ruling between dependent and nondependent survivors. In fact, the Court states that its ruling prohibiting recovery for nonpecuniary loss of society "... restore[s] 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 at 326 (emphasis added).

The plaintiff further responds by pointing out that the Supreme Court in Miles did not disturb its prior holding in Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), wherein the Court permitted recovery for nonpecuniary loss of society on behalf of a dependent plaintiff in a maritime wrongful death action. However, the Gaudet case is inapposite. "The holding of Gaudet applies only *181 in territorial waters, and it applies only to longshoremen. Gaudet did not consider the preclusive effect of the Jones Act for death of true seamen." Miles, 111 S. Ct. at 325. Gaudet applies only to longshoremen. The case now before this court involves a seaman. Nonpecuniary elements of losses of society, companionship and consortium are, therefore, not recoverable in this case.

Lykes further contends that punitive damages are nonpecuniary in nature and are, therefore, not available under the Jones Act, DOHSA, or under general maritime law pursuant to the logic of Miles. In Miles, the Court said that there could be no recovery for nonpecuniary losses in a general maritime action for wrongful death of a seaman since recovery for such losses was foreclosed by Congress in death claims based upon the Jones Act and DOHSA. The Court declined "... to sanction more expansive remedies in a judicially-created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence." Miles at 326.

The same reasoning is applicable to the claim here for punitive damages. As stated by the court in Rollins v. Peterson Builders, Inc., 761 F. Supp. 943, 948 (D.R.I.1991):

Punitive damages "are given to the plaintiff over and above the full compensation for his injuries, for the purpose of punishing the defendant, of teaching him not to do it again, and of deterring others from following his example." Prosser, Law of Torts, § 2 at p. 9 (4th ed.).

Punitive damages have been held in the Ninth Circuit to be "nonpecuniary" and, therefore, not recoverable under either the Jones Act or DOHSA. See Kopczynski v. The Jacqueline, 742 F.2d 555, 561 (9th Cir. 1984) and Bergen v. F/V St. Patrick, 816 F.2d 1345, 1348-49 (9th Cir. 1987). Moreover, the Fifth Circuit in dicta in the case of In Re: Complaint of Merry Shipping, Inc., 650 F.2d 622 (5th Cir.1981), expressed doubt about the recoverability of punitive damages under the Jones Act because "... Congress intended only pecuniary losses to be recoverable under the Act." Merry Shipping at 626.

Although the Fifth Circuit permitted the recovery of punitive damages under general maritime law in Merry Shipping, that case was decided prior to the Supreme Court's decision in Miles. This court is of the opinion that the Fifth Circuit, if presented today with the issue of whether punitive damages for the wrongful death of a seaman are recoverable under the Jones Act, DOHSA and general maritime law, would conclude that such damages are nonpecuniary and, consequently, not recoverable under the Supreme Court's holding in Miles.

It is, therefore, ORDERED that defendant Lykes' motion for partial summary judgment is GRANTED and that the plaintiff's claims for nonpecuniary losses and punitive damages are DISMISSED with prejudice.