Frazer v. City of New York
| Decision Date | 14 April 1994 |
| Docket Number | No. 3,No. 1,No. 2,1,2,3 |
| Citation | 161 Misc.2d 38,612 N.Y.S.2d 806 |
| Parties | Andrea FRAZER, Jefferey McKay, Wilna Wimpel, Clementina Wimpel, and Michael Wimpel both infants under the age of 14 years by Ronald Wimpel, their father and natural guardian and Ronald Wimpel, individually, Plaintiffs, v. The CITY OF NEW YORK, Circle Line Sightseeing Yachts, Inc., MV CIRCLE LINE XII and Patrick Patten, Defendants. ActionLinda GLEANER and Irving Gleaner, Plaintiffs, v. CIRCLE LINE SIGHTSEEING YACHTS, INC., MV CIRCLE LINE XII and Patrick Patten, Defendants. ActionFranklin KERN, Plaintiff, v. The CITY OF NEW YORK, New York City Department of Transportation, Bureau of Highway Operations, New York City Department of Ports, International Trade and Commerce, Circle Line Sightseeing Yachts, Inc. d/b/a/ Circle Line, Circle Line, Inc. d/b/a Circle Line and Patrick Patten, Defendants. Action |
| Court | New York Supreme Court |
Juron & Minzner, New York City, for plaintiffs in Frazer.
Jerome I. Katz, Gair, Conason, Steigman & Mackauf, New York City, for plaintiff in Kern.
Stephen J. Buckley, Kenny, Stearns & Broderick, New York City, for defendant Circle Line.
Victor A. Kovner, Corp. Counsel (Myron J. Weiss, of counsel), New York City, for defendant City of New York.
These motions in related cases arise from the same facts and Action 3 is consolidated solely for the purpose of decision.
These actions in admiralty arise from the allision of a vessel owned and operated by the defendant Circle Line Sightseeing Yachts, Inc. ("Circle Line") with the Willis Avenue Bridge owned and operated by the City of New York ("The City"). Plaintiffs allege that they were passengers on the vessel and were injured by the allision. Circle Line sued, in the United States District Court for the Southern District of New York, for exoneration or limitation of liability. The City and Circle Line agreed to apportion compensatory damages between themselves: they would share equally up to $1,000,000 and the City would pay the rest. The order of Judge Knapp lifted the stay of all proceedings and permitted the parties to proceed in state court. The order further provided that if exemplary damages were awarded against Circle Line enforcement of any judgment was stayed pending a resolution of the limitation proceeding (Matter of Circle Line Sightseeing Yachts, 86 Civ 9051 [WK].
Plaintiffs in the Frazer and Gleaner cases served an amended complaint which asserted claims for punitive damages against the City on the ground that for at least four years prior to the incident the Coast Guard had issued citations, with potential fines, for the deteriorated fender system surrounding the bridge and obstructing the draw. The State Department of Transportation had also issued reports to the City on the poor condition of the bridge. Plaintiffs contend that after ample notice of the defective conditions, the City made a conscious decision to ignore those violations.
This court had previously granted the motion by Frazer plaintiffs for summary judgment on liability for compensatory damages. The City was granted leave to file an untimely answer. The answer alleged that the City was immune from punitive damages. The City moves to dismiss the punitive damage claims. In Kern plaintiff moves for summary judgment on liability. The City and Circle Line oppose on the ground that the existing complaint does not properly allege punitive damages and, if the court grants leave to amend, that the City is immune from those damages.
The parties agree that the reported cases do not discuss whether a municipality may be liable for punitive damages in an action in admiralty.
Under well established law the rights of parties in a maritime tort must be determined by the admiralty and maritime law, regardless of whether the action is brought in state or federal court (see, e.g. Spencer Kellogg & Sons v. Hicks, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903; Hess v. United States, 361 U.S. 314, 316, 80 S.Ct. 341, 344, 4 L.Ed.2d 305; 46 USC App. § 740). Federal maritime law, not state law, governs (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 204, 98 L.Ed. 143 [1953]; Alvez v. American Export Lines, 46 N.Y.2d 634, 638-39, 415 N.Y.S.2d 979, 389 N.E.2d 461 [1979] affd. 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 [1980]; Scholl v. Town of Babylon, 95 A.D.2d 475, 481, 466 N.Y.S.2d 976). The parties all agree that punitive damages are generally available under maritime law. They acknowledge that the rule has been established at least since 1818 (e.g. The Amiable Nancy, 16 U.S. [3 Wheat.] 546, 558-559, 4 L.Ed. 456 [1818]; Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 [1962]; see also Lake Shore & Mich. So. Ry. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 [1893].
The issue of the availability of punitive damages is not as well settled as the parties believe. Most circuits acknowledge that punitive damages are available (e.g., Matter of P & E Boat Rentals v. Ennia Gen. Ins. Co., 872 F.2d 642, 650-52 [5th Cir.1989]; Protectus Alpha Nav. Co. v. No. Pacific Grain Growers, 767 F.2d 1379, 1386 [9th Cir.1985]; Muratore v. M/S Scotia Prince, 845 F.2d 347, 356 [1st Cir.1988]; Matter of Merry Shipping 650 F.2d 622, 625 [5th Cir.1981]; Robinson v. Pocahontas Inc., 477 F.2d 1048, 1051 [1st Cir.1973]; Kraljic v. Berman Enterprises, 575 F.2d 412, 415-16 [2d Cir.1978]. At least one circuit refused to reach the issue (e.g. Phillip v. United States Lines Co., 355 F.2d 25 [3rd Cir.1966] while others have been less than enthusiastic (e.g. Petition of Den Norske Amerikalinje, 276 F.Supp. 163, 173-74 [N.D.Ohio 1967] revd. sub nom. U.S. Steel Corp. v. Fuhrman, 407 F.2d 1143, 1146 [6th Cir.1969]; Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085, 1091 [4th Cir.1985] []. There is "disagreement and confusion as to recovery of punitive damages in actions under the general maritime law" (Waddell Punitive Damages in Admiralty, J of Maritime Law & Commerce [Jan. 1988], 73).
The matter was further complicated when, in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 [1990], the Supreme Court limited general maritime law damages, at least in cases under the Jones Act (46 USC App. § 688) and Death on the High Seas Act ("DOHSA", 46 USC App. § 761 et seq.) to actual damages. A few federal cases have discussed Miles and held that punitive damages are available other than under Jones Act and Death on the High Seas Act. (CEH, Inc. v. FV "Seafarer", 148 F.R.D. 469, 471-73 [D.R.I.1993] affd. 153 F.R.D. 491 [D.R.I.1994]; Duplantis v. Texaco, 771 F.Supp. 787, 788 [E.D.La.1991]. Most cases have applied Miles to bar punitive damages under the Jones Act. (e.g. Boykin v. Bergesen, D.Y.A/S, 822 F.Supp. 324, 326 [E.D.Va.1993]; Matter of Waterman Steamship Corp., 780 F.Supp. 1093 [E.D.La.1992]; Horsley v. Mobil Oil Corp., 825 F.Supp. 424 [D.Mass.1993].
The court must first reach the issue, not definitely resolved in the cases, whether punitive damages are permissible in admiralty after Miles. In Miles the High Court held that since the statutory Jones Act and DOHSA claims permitted only pecuniary damages, the recovery on an unseaworthiness claim should be similarly limited. As one court has noted: Miles holds that "a plaintiff who is statutorily barred from receiving a punitive award cannot recover punitive damages by couching his claim in the judge-made general maritime law of negligence and unseaworthiness." (Anderson v. Texaco, 797 F.Supp. 531, 535 [E.D.La.1992].
The post-Miles cases each appear to turn on whether the claim before the court relates to the Jones Act or DOHSA. Vaughan v. Atkinson, supra, had specifically upheld limited punitive damages for "willful and persistent" failure to pay maintenance and cure. Where the claim is for maintenance and cure some courts have let punitive damages stand, since Miles did not state that it overruled Vaughan. (Anderson v. Texaco, supra; Ortega v. Oceantrawl Inc., 822 F.Supp. 621, 624 [D.Alaska 1992]; Ridenour v. Holland Am. Line Westours, 806 F.Supp. 910, 911 [W.D.Wash.1992] while others have denied a claim for punitive damages in the same situation (La Voie v. Kualoa Ranch & Activity Club, 797 F.Supp. 827, 829-31 [D.Hawaii 1992]; Matter of Mardoc Asbestos Case, 768 F.Supp. 595, 599-600 [E.D.Mich.1991]. In a separate line of cases the courts have held that Miles did not seek to go beyond developing a consistency between general maritime law and the Jones Act and DOHSA (CEH Inc v. FV "Seafarer," supra, 148 F.R.D. at 472-73; Duplantis v. Texaco, supra ). The Second Circuit, without extensive discussion, has recently stated in dictum that Miles precludes punitive damages in a general maritime law survival claim. (Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084, 1094 [2d Cir.1993]. The Court limited its holding to denying punitive damages when other non-pecuniary damages were also barred (4 F.3d at 1094).
This court's review of Miles establishes that the High Court had no intention of going beyond the issues presented. The court's decision was grounded in the legislative history of DOHSA which limited damages recoverable in a wrongful death as to "pecuniary loss sustained by the persons for whose benefit the suit is brought" (Miles, 498 U.S. at 31, 111 S.Ct. at 325). While the Jones Act on its face does not contain the same restrictions on relief, the Jones Act incorporates the substantive provisions of the Federal Employers' Liability Act ("FELA"; 45 U.S.C. § 51). As a result of Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 69-71, 33 S.Ct. 192, 195, 57 L.Ed. 417 [1913], with which Congress was familiar when it passed the Jones Act, FELA limited damages to pecuniary loss (Miles, 498 U.S. at 32, 111 S.Ct. at 325). Since there was no recoverable non-pecuniary loss under Jones Act or DOHSA the Court...
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...v Burlington N. R.R., 825 F.2d 1392, 1395 (9th Cir. 1987); Kozar v Chesapeake & O. R. Co., 449 F.2d 1238 (6th Cir. 1971); Frazer v City of New York, 161 Misc. 2d 38, 42 (Sup. Ct. Bronx Co. Apr. 14, 1994). However, NYCAL actions involve many defendants who are not covered by FELA, and to con......