By Tod Everage
Last December, we posted an article addressing the recent conflicted decisions out of the Eastern District of Louisiana on the remaining availability of punitive damages against third parties under general maritime law. You can find that article here. In 2016, the conflict continues…
As we mentioned, Judge Fallon allowed a claim for punitive damages against a third party under general maritime law to proceed against a third party on the basis that the prohibition against such damages set forth in Scarborough v. Clemenco Indus., 391 F.3d 660 (5th Cir. 2004) was indirectly abrogated by Atlantic Sounding v. Townsend, 557 U.S. 407 (2009). See Collins v. A.B.C. Marine Towing, LLC, 2015 WL 5254710 (E.D. La. 9/9/2015). Therein, Judge Fallon held that a seaman can recover punitive damages under general maritime law if the Jones Act is not implicated. A few months later, Judge Morgan twice held the opposite view. See Howard v. Offshore Liftboats, LLC, 2015 WL 7428581 (E.D. La. 11/20/15); Lee v. Offshore Logistical and Transports, LLC, 2015 WL 7459734 (E.D. La. 11/24/15). In Judge Morgan’s opinion, Scarborough remains precedent in the Fifth Circuit.
Last month, Judge Zainey joined the fray in Hume v. Consolidated Grain & Barge, Inc., 2016 WL 1089349 (E.D. La. 3/21/16). That case involved personal injury claims of two workers, working for Consolidated Grain & Barge (“CGB”) aboard the M/V BAYOU SPECIAL. At the time of the incident, the M/V BAYOU SPECIAL was being pushed by the M/V MR. LEWIS, which was owned and operated by Quality Marine. Plaintiffs sued CGB and Quality Marine, asserting the usual array of claims under the Jones Act and general maritime law, including a demand for punitive damages. In response to a Motion to Dismiss filed by Quality Marine, Plaintiffs conceded that their punitive damages claims were unavailable against Quality Marine for Jones Act negligence and unseaworthiness; however, they contested Quality Marine’s argument that punitive damages were unavailable under the general maritime law.
Not surprisingly, Quality Marine relied upon McBride and Scarborough to argue that punitive damages are not available to the Plaintiffs. In Opposition, Plaintiffs relied on Judge Fallon’s decision in Collins. Judge Zainey found Judge Fallon’s reasoning in Collins persuasive and denied Quality Marine’s motion. Judge Zainey agreed that “there is no need for uniform treatment of an employer and a third party tortfeasor where there is no statutory remedy that is different than the general maritime law remedy.” Because the Jones Act is not implicated by Plaintiffs’ punitive damages claims against Quality Marine, the prohibition of such claims under the Jones Act has no bearing. Accordingly, Plaintiffs’ claims for punitive damages against Quality Marine were allowed to proceed.
The current score sits at 2-1 in favor of punitive damages against a third party under general maritime law. Until the U.S. 5th Circuit weighs in to settle this issue, the availability of such claims appears to be guided by the judicial lottery.