Jones v. Compagnie Generale Maritime, Civ. A. No. 494-150.

• Decision Date: 04 April 1995
• Docket Number: Civ. A. No. 494-150.
• Citation: 882 F. Supp. 1079,1995 AMC 2573
• Parties: Warwick JONES, Plaintiff, v. COMPAGNIE GENERALE MARITIME, Defendant.
• Court: U.S. District Court — Southern District of Georgia

882 F. Supp. 1079

1995 AMC 2573

Warwick JONES, Plaintiff, v. COMPAGNIE GENERALE MARITIME, Defendant.

Civ. A. No. 494-150.

United States District Court, S.D. Georgia, Savannah Division.

April 4, 1995.

COPYRIGHT MATERIAL OMITTED

Edwin D. Robb, Jr., Savannah, GA, for plaintiff.

Gustave R. Dubus, III, Chamlee, Dubus & Sipple, Savannah, GA, for defendant.

ORDER

EDENFIELD, Chief Judge.

Now before the Court is a motion by Defendant Compagnie Generale Maritime ("CGM") for summary judgment on the issue of punitive damages. For reasons discussed below, the Court GRANTS the motion.

I.

The purpose of summary judgment is to explore the evidence and determine whether there is a genuine issue of material fact requiring a trial. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment is granted when no such issue is discovered and the movant is entitled to judgment as a matter of law. Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d 1575, 1578 (11th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). Summary judgment is appropriate only when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; Tidmore Oil Co. v. BP Oil Co., 932 F.2d 1384, 1387-88 (11th Cir.), cert. denied, 502 U.S. 925, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991).

After the movant successfully discharges his initial burden of demonstrating an absence of material issues of fact, Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53, the burden shifts to the nonmovant to establish, with evidence beyond the pleadings, that there indeed exists an issue material to the nonmovant's case. Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991). A dispute of material fact "is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). To defeat a properly supported motion for summary judgment the nonmovant must present "affirmative evidence" of material factual conflicts. Id. at 257, 106 S.Ct. at 2514. If the nonmovant's response to the summary judgment motion consists of nothing more than conclusory allegations, the Court must enter summary judgment for the movant. Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989). Where the parties' factual statements conflict or inferences are required, the Court will construe the facts in a light most favorable to the nonmovant. Barnes v. Southwest Forest Industries, 814 F.2d 607, 609 (11th Cir.1987).

II.

Plaintiff Warwick Jones ("Jones") contracted with an agent of CGM, a French ship owner, to transport his family's personal effects and automobile from Brisbane, Australia to Savannah, Georgia. The cargo was stored in two containers, both of which were sealed at the port in Australia and placed on the CGM RACINE in a location accessible to the ship's crew.

During discharge in Savannah United States Customs officials noticed that the seal on the container holding Jones' personal effects was missing. Upon further inspection of both containers it was discovered that several items were missing and that other items, including the automobile, were damaged. Found in the containers were footprints, seawater damage, and foreign objects, including a pack of French cigarettes, a fleece-lined glove, a pipe, and a fish hook.

Because CGM's vessel had custody of the cargo from receipt in Brisbane to discharge in Savannah, Jones concluded that crew members stole the goods. He then filed suit in state court for compensatory and punitive damages. CGM soon removed the action to this Court.

CGM denies that goods were stolen from the containers, and highlights some details implying that if pilferage indeed occurred, non-crew members had ample opportunity to commit it during the vessel's journey to the United States. The CGM RACINE docked at Lae, New Guinea; Jakarta, Indonesia; Columbo, Sri Lanka; Genoa, Italy; Marseilles, France; Antwerp, Belgium; Hamburg, Germany; and LeHavre, France, on its way to Savannah from Brisbane. To facilitate transport of other cargoes, at LeHavre — a CGM hub — the two containers were unloaded and then restowed to a different location within the vessel. Zeigler Affid. ¶ 4. CGM further contends that even if the crew pilfered the goods, neither the masters and officers of the vessel nor CGM managerial personnel were aware of it.

As to any cargo damage, CGM says that it either occurred prior to transport or was due to inadequate packing and failure to properly secure the goods during the ocean voyage.

III.

In its motion CGM argues that Jones' claim for punitive damages should be stricken because such a claim is not available under current law, and in the alternative, because he does not present sufficient evidence to sustain it.

A.

This action is governed by the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1300, et seq., which covers every bill of lading "for carriage of goods by sea to or from ports of the United States in foreign trade." Id. § 1312. COGSA was "clearly designed to protect the shipping industry," Heri v. Fritz Companies, Inc., 841 F.Supp. 1188, 1191 (N.D.Ga.1993), and regulates the liability of carriers on claims in both tort and contract. E.g., Crispin Co. v. Lykes Bros. S.S. Co., 134 F.Supp. 704, 706 (S.D.Tex.1955). As federal legislation in admiralty, it preempts common law in this area, e.g., National Automotive Pub. v. United States Lines, 486 F.Supp. 1094, 1099, 1101-02 (S.D.N.Y. 1980), and provides the exclusive remedy for loss of cargo. See id.; B.F. McKernin & Co. v. United States Lines, 416 F.Supp. 1068, 1071 (S.D.N.Y.1976). COGSA's preemption of general maritime and state law remedies extends to claims for conversion. Reisman v. Medafrica Lines, 592 F.Supp. 50, 52 (S.D.N.Y.1984) (stating that "breach of contract, negligence, and conversion claims are the common law equivalents of actions for which COGSA was meant to be an exclusive definition of liability in the shipper-carrier context"); B.F. McKernin, 416 F.Supp. at 1071 (no alternative liability under general maritime or state law for contract breach or conversion due to delayed delivery).

B.

The cases squarely addressing the subject have found that despite § 1304(5) of COGSA, which states that "in no event shall the carrier be liable for more than the amount of damage actually sustained," willfully tortious conduct is sufficient to allow punitive damages against a carrier in an action governed by COGSA. See Armada Supply v. S/T Agios Nikolas, 639 F.Supp. 1161, 1162-65 (S.D.N.Y.1986) (awarding punitive damages in COGSA action where carrier committed a series of intentionally tortious acts); Seguros Banvenez S.A. v. S/S Oliver Drescher, 761 F.2d 855, 861 (2d Cir.1985) (cargo case acknowledging availability of punitive award). Armada relied on dicta in Thyssen, Inc. v. S/S Fortune Star, 777 F.2d 57, 63 (2d Cir.1985), in which Judge Friendly, relying on the Second Restatement of Contracts, Farnsworth, and Corbin, observed that punitive damages would be available in maritime contract actions where there was a contract breach that also constituted an independent, willful tort. See Armada, 639 F.Supp. at 1162. Once characterized in tort, general maritime law outside of COGSA supports awarding punitive damages for some torts committed on navigable waters. See, e.g., The Amiable Nancy, 16 U.S. (3 Wheat) 546, 558-59, 4 L.Ed. 456 (1818) (piracy case, observing that punitive damages are an appropriate response to "lawless misconduct" or "gross and wanton outrage"); In re Merry Shipping, Inc., 650 F.2d 622, 624, 625 (5th Cir.1981) (wrongful death action, reviewing cases and finding punitive damages available under general maritime law where there is willful and wanton misconduct);¹ Hines v. J.A. Laporte, Inc., 820 F.2d 1187, 1188 (11th Cir.1987) (following In re Merry). See also CEH, Inc. v. F/V SEAFARER, 148 F.R.D. 469, 473 (D.R.I.1993) (tort action, acknowledging claim for punitive damages under general maritime law "based upon allegations of willful, reckless and malicious misconduct"). Cf. B.F. McKernin, 416 F.Supp. at 1073 (finding that under New York law, negligence, even amounting to "gross disregard for plaintiff's rights," is insufficient to warrant punitive damages against sea carrier).

Applying Armada and Thyssen to the case at bar, if CGM's crew did break into the cargo containers and steal Jones' belongings, this conduct would constitute a breach of contract that would also be intentional misconduct. The conduct would amount to, in its tortious incarnation, conversion. Thus expressed, such behavior would expose its perpetrators to the punitive liabilities of tortfeasors. See Restatement (Second) of Contracts § 355 (1979) (punitive damages not recoverable for contract breach unless conduct "is also a tort for which punitive damages are recoverable," i.e., an intentional or extremely reckless tort). In maritime tort cases, general maritime law applies, and that law, like state law, recognizes punitive claims. See In re Merry, 650 F.2d at 624-25. Compare O.C.G.A. § 13-6-10 (no punitive damages for breach of contract) with § 51-12-5.1(b) (allowing punitive damages in tort actions where defendant's behavior is willful, malicious, or exhibits sufficient disregard for the rights of others).

The problem with this analysis is that Thyssen and Armada create an unjustifiably low standard for imposition of punitive damages in cases governed by COGSA. By requiring only willfully tortious conduct, those cases underestimated both the reach and exclusivity of COGSA.²See David M. Blachman, Recent...