United States District Court, E.D. Arkansas, Jonesboro Division
KASSANDRA NIEVES, Individually and as Personal Representative of the Estate of Juan Nieves, and His Surviving Heirs and Dependents PLAINTIFF
COOPER MARINE & TFMBERLANDS CORPORATION; LOGISTIC SERVICES, INC.; STEEL DYNAMICS COLUMBUS, LLC; KINDER MORGAN BULK TERMINALS, INC.; and KINDER MORGAN MARINE SERVICES, LLC DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Nieves suffered a fatal accident while unloading a barge for
Kinder Morgan Bulk Terminals, Inc., in Arkansas territorial
waters in the Mississippi river. Kassandra Nieves, as the
representative for the estate of Juan Nieves, commenced this
action against Cooper Marine & Timberlands Corporation,
Logistic Services, Inc., Steel Dynamics Columbus, LLC, Kinder
Morgan Bulk Terminals, Inc., Kinder Morgan Marine Services,
LLC, and Kinder Morgan Energy Partners, L.P. This Court
granted Kinder Morgan Energy Partners summary judgment and
dismissed it from the case. Document #175. The claims that
remain in the amended complaint are as follows: wrongful
death and survival claims against Cooper Marine based on its
negligence; wrongful death and survival claims against Steel
Dynamics under negligence and strict products liability
theories; wrongful death and survival claims against Logistic
Services under negligence and strict products liability
theories; and wrongful death and survival claims against
Kinder Morgan Bulk Terminals and Kinder Morgan Marine
Services for their negligence. Nieves seeks pecuniary and
nonpecuniary-including punitive-damages under both general
maritime law and Arkansas state law.
separate motions Cooper Marine, Logistic Services, Steel
Dynamics, and the Kinder Morgan defendants all move for
summary judgment on Kassandra Ni eves's claim for damages
under Arkansas state law. These same defendants also move for
summary judgment on Nieves's claim for punitive damages
under both general maritime law and Arkansas law. Cooper
Marine and Logistic Services move for summary judgment on
Nieves's claim for nonpecuniary damages under general
maritime law. Finally, Cooper Marine and Kinder Morgan Marine
Services move for summary judgment on any claim based on the
unseaworthiness of their vessels. These motions are
well-suited to be considered together and ruled on jointly.
For the following reasons, the motions are granted in part
and denied in part.
should enter summary judgment if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511,
91 L.Ed.2d 202 (1986); Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). A genuine dispute of material fact exists only if the
evidence is sufficient to allow a jury to return a verdict
for the nonmoving party. Anderson, 477 U.S. at 249,
106 S.Ct. at 2511.
Court has set out the facts of this case in prior orders. It
is sufficient to note that no party contests that Nieves was
unloading steel coils from a barge on the Mississippi river
in Arkansas territorial waters at the time of the accident.
The issues raised in the defendants' motions are purely
issues of law regarding the law and remedies that apply to
the claims in this case. As such, summary judgment is
"particularly appropriate." Crain v. Bd. of
Police Comm 'rs of Metro. Police Dep 't of St.
Louis, 920 F.2d 1402, 1406 (8th Cir. 1990).
accident at issue here undoubtedly falls within
admiralty's domain. See Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 623, 133
L.Ed.2d 578 (1996) (involving pleasure craft accident in
territorial waters); Sisson v. Ruby, 497 U.S. 358,
361-367, 110 S.Ct. 2892, 2895-2898, 111 L.Ed.2d 292 (1990)
(involving fire on noncommericial vessel at marina on
navigable waterway); Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 675 n.5, 102 S.Ct. 2654, 2658,
73 L .Ed. 2d 300 (1982) (involving collision between two
pleasure crafts on navigable waters and noting that when a
watercraft sinks in navigable waters and bears a substantial
relationship with traditional maritime activity, admiralty
jurisdiction is appropriate). When a court exercises
admiraltyjurisdiction, it applies substantive admiralty law.
Yamaha, 516U.S. at206, 116 S.Ct. at 623. This does
not mean, however, that state law is automatically preempted
or displaced. Id. Indeed, a fundamental feature of
admiralty law is that state law sometimes applies. Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527, 546, 115 S.Ct. 1043, 1054, 130 L.Ed.2d 1024
wrongful-death actions have a somewhat turbulent history. As
most do, the Court begins its review of maritime
wrongful-death law with The Harrisburg, 119U.S. 199,
7 S.Ct. 140, 30 L.Ed. 358 (1886). There, the Supreme Court
held that general maritime law did not recognize a cause of
action for wrongful death. Id. at213, 7 S.Ct.
146-47. The Court reasoned that wrongful-death actions are
statutory creations and may not be judicially added to
general maritime law-a type of federal common law that has
developed through case law. Id; see also Yamaha, 516
U.S. at 206, 116 S.Ct. at 624. Nevertheless, federal
admiralty courts allowed state wrongful-death statutes to
provide a remedy. Id. at 207, 116 S.Ct. at
624. In Western Fuel Co. v.
Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921),
the Supreme Court blessed this practice when it held that a
widow of a maritime worker killed in California's
territorial waters could supplement general maritime law by
bringing a wrongful-death action under California law.
Id. at 238-42, 42 S.Ct. at 89-90. The Supreme Court
later held that state survival statutes may be applied in
cases where the injury occurs in territorial waters. See
Just v. Chambers, 312 U.S. 383, 391-392, 61 S.Ct. 687,
692-693, 85 L.Ed. 903 (1941). The state of admiralty law
remained this way for many years: no wrongful-death remedy
under general maritime law but state statutes could
supplement federal law and provide a cause of action.
Supreme Court revisited The Harrisburg mMoragne v. States
Marine Lines, Inc., 398 U.S. 375, 375, 90 S.Ct. 1772,
1775, 26 L.Ed.2d 339 (1970). Moragne overruled
The Harrisburg and held "that an action does
lie under general maritime law for death caused by violation
of maritime duties." Id. at 409, 90 S.Ct. at
1792. Moragne involved a widow of a longshoreman
killed in Florida territorial waters who had brought suit
under Florida's wrongful-death and survival statutes.
Following Moragne, the Supreme Court then decided
Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 94
S.Ct. 806, 39 L.Ed.2d 9 (1974). In Gaudet, the Court
held that a widow of a longshoreman who died aboard a vessel
in navigable waters could recover for loss of support,
services, society, and funeral expenses in a wrongful-death
action. Id. at 591, 94 S.Ct. at 818. The Court
recognized that nonpecuniary damages are not recoverable
under the Death on the High Seas Act noting that the Act does
not extend to state territorial waters. Id. at 588
n.22, 94 S.Ct. at 816.
Gaudet explained that "[t]he term
'society' embraces a broad range of mutual benefits
each family member receives from the others' continued
existence, including love, affection, care, attention,
companionship, comfort, and protection, " the Court
expressly excluded damages based on mental anguish or grief.
Id. at 585 n. 17, 94 S.Ct. at 815. Damages for
mental anguish or grief are "not compensable under the
maritime wrongful-death remedy." Id. The Court
subsequently extended Gaudef s ruling to nonfatal
maritime injuries to longshoremen occurring in state
territorial waters. See Am. Exp. Lines, Inc. v.
Alvez, 446 U.S. 274, 281, 100 S.Ct. 1673, 1677, 64
L.Ed.2d 284 (1980).
the defendants contend that Gaudet is no longer
controlling and that Nieves is barred from recovering
nonpecuniary damages, such as for loss of
society. Congress overruled Gaudet in part
when it passed the 1972 amendments to the Longshore Act.
These amendments barred "recovery from shipowners for
the death or injury of a longshoreman or harbor worker
resulting from breach of the duty of seaworthiness."
Miles v. ApexMarine Corp., 498 U.S. 19, 28, 111
S.Ct. 317, 323, 112 L.Ed.2d 275 (1990). Otherwise,
Gaudet has not been overruled. These defendants rely
on Miles and Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d
581 (1978), to support their argument that, despite
Gaudet, wrongful-death damages are limited to
pecuniary losses. These two decisions, however, addressed
cases that arose under statutes other than the Longshore Act,
and in them the Court distinguished but did not overrule
Gaudet. Miles, 498 U.S. at 33, 111 S.Ct. at 326
(Jones Act); Higginbotham, 436 U.S. at 625, 98 S.Ct.
at 2015 (Death on the High Seas Act). It is true that
Gaudefs holding has been construed
narrowly-"Gaudet applies only in territorial
waters, and it applies only to longshoremen"-but Nieves
was a longshoreman in territorial waters. Id. at 31,
111 S.Ct. at 325; see also Moore v. M/V ANGELA, 353
F.3d 376, 383 (5th Cir. 2003) ("The loss of consortium
award is permissible in this § 905(b) case.").
defendants also contend that Nieves is unable to recover
punitive damages. Logistic Services stands alone in arguing
that because punitive damages are a type of nonpecuniary
damages, they are not compensable under general maritime law.
The remaining defendants assume they can be awarded when the
facts support such an award but argue that the facts do not
support an award in this case. Logistic Services so argues in
the alternative to its contention that maritime law does not
permit punitive damages.
Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129
S.Ct. 2561, 174 L.Ed.2d 382 (2009), the Supreme Court
considered whether punitive damages are available under
general maritime law for the willful and wanton disregard of
the maintenance and cure obligation. The Court noted that
"[p]unitive damages have long been an available remedy
at common law for wanton, willful, or outrageous
conduct." Id. at 409, 129 S.Ct. at 2566. The
Court then explained that "[t]he general rule that
punitive damages were available at common law extended to
claims arising under federal maritime law." Id.
at 411, 129 S.Ct. at 2567. Addressing the issue before it,
the Court concluded that" [n]othing in maritime law
undermines the applicability of this general rule in the
maintenance and cure context." The Court then considered
whether Congress had legislatively altered this rule and held
that Congress had not. Id. at 415, 129 S.Ct. at
leaves an important framework in its wake. See Doyle v.
Graske, 579 F.3d 898, 906 (8th Cir. 2009) (adopting the
Townsend approach). To determine whether punitive
damages are available in a maritime tort action, a court
should approach the question by noting that punitive damages
have long been recoverable at common law and that the
common-law rule allowing punitive damages extends to maritime
torts. Townsend, 557 U.S. at 415, 129 S.Ct. at 2569.
The Eighth Circuit has not directly addressed whether a
longshoreman may recover punitive damages against negligent
third-parties, but it has recognized that punitive damages
are recoverable under general maritime law. See
Graske, 579 F.3d at 906. A leading admiralty treatise,
likewise, recognizes that punitive damages may be recovered
under general maritime law. 1 Thomas J. Schoenbaum, Admiralty
and Maritime Law § 5-18 (5th ed. 2011). The remaining
question is whether any federal statute undermines the
availability of punitive damages for Nieves. Unlike the Jones
Act and the Death on the High Seas Act, the Longshore Act
does not create a statutory cause of action for negligence.
See Alvez, 446 U.S. at 281, 100 S.Ct. at 1677
(explaining that "general federal maritime law is a
source of relief for a longshoreman's personal injury
just as it is a source of remedy for wrongful death"
(internal citation omitted)). Nieves's punitive damages
claims, then, are governed by general maritime law, which, as
Townsend holds, is in accord with the common-law
rule permitting recovery for punitive damages.
Eighth Circuit Committee on Model Jury Instructions (Civil)
has provided the following pattern instruction for punitive