Kelly v. Bass Enterprises Production Co., Civil Action No. 97-1225.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Citation17 F.Supp.2d 591
Docket NumberCivil Action No. 97-1225.
Decision Date05 August 1998

Gilbert V. Andry, IV, Gilbert V. Andry, III, Andry & Andry, New Orleans, LA, for Plaintiffs.

Michael A. McGlone, Glenn Paul Orgeron, Lemle & Kelleher, Pan American Life Center, New Orleans, LA, for Defendants.


FALLON, District Judge.

Before the Court are two motions for summary judgment addressing the availability of damages for nonseafaring plaintiffs who were injured and/or killed in state territorial waters. The first is a motion filed by defendant Bass Enterprises Production Company ("Bass") seeking dismissal of plaintiffs' punitive damages claims. The second is Bass' motion seeking dismissal of plaintiffs' nonpecuniary claims for emotional distress, Lejeune damages, loss of society, loss of consortium, and punitive damages. For the reasons presented below, this Court finds that nonpecuniary damages for emotional distress, Lejeune damages, loss of society, and loss of consortium are available to the plaintiffs involved in this case as well as to the representatives of the deceased plaintiff. However, neither the facts nor the law support an award for punitive damages.


On October 4, 1996, Michael Kelly was operating his 20-foot aluminum flatboat in an inland canal in Plaquemines Parish, Louisiana. At approximately 8:30 p.m., Kelly's boat allided with a low pressure gathering pipe and its wooden support structure, owned and operated by Bass. Kelly and passenger Roderick Abadie were injured and passenger Edward Abadie was killed.1 Kelly and his passengers were returning from a fishing trip. They were clearly nonseamen. The allision occurred in navigable state territorial waters.

Kelly filed suit, claiming that Bass was negligent in failing to adequately mark and light its structure, in allowing a hazardous navigational condition to persist, and in failing to take into account the safety of others and adequately to warn other vessels. Edward Abadie's widow and daughters filed a separate wrongful death and survivorship suit against Bass on the same theory of liability, and against Kelly for failure to keep a proper lookout, operate at a safe speed under the circumstances, properly equip the vessel, use illumination, and return to harbor earlier (given weather conditions). Roderick Abadie filed a similar action against Bass and Kelly. The claims were filed under both Louisiana law and the general maritime law.

Bass initially moved for summary judgment to strike plaintiffs' nonpecuniary claims asserted under state law and to strike plaintiff's punitive damages claims under general maritime law. The Court's preliminary ruling on January 20, 1998 was that since nonpecuniary and punitive claims were in theory available to plaintiffs, Bass' motion for summary judgment had to be denied at that time.

The parties have since conducted additional discovery and extensively briefed the availability of damages for emotional distress, nonpecuniary, and punitive damages to the nonseaman plaintiffs in this case who were injured and/or killed in state territorial waters. These issues are now properly before the Court for disposition.


Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. In this analysis, the Court must view the facts and inferences from the evidence in the light most favorable to the non-moving party. See Crescent Towing v. M/V Anax, 40 F.3d 741, 743 (5th Cir.1994). Once the moving party has demonstrated that there is no genuine issue of material fact, the burden shifts to the nonmoving party to prove that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party may not depend solely on denials contained in the pleadings, but must submit specific facts. Fed. R.Civ.P. 56(e). Mere conclusory rebuttals by the non-moving party will not defeat a motion for summary judgment. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). Moreover, if the factual context makes the non-moving party's claims implausible, the party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. General Principals

This case raises the issue of the existence, nature and/or extent of nonpecuniary damages when nonseafarers are killed or injured in state territorial waters. This area of the law has been turbulent since the Supreme Court's opinion in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Taking note of Justice Holmes' observation that often a page of history is worth more than a book of logic, a brief historical voyage is helpful to put the matter in perspective.

Any journey exploring this area of the law must begin with The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), which held that in the absence of an applicable state or federal statute, the general maritime law did not afford a wrongful death cause of action to the survivors of individuals killed in navigable waters. The harshness of this rule prompted reaction first from the courts and then from Congress.

The district and appellate courts began to allow state death acts to supplement the general maritime law with regard to deaths within state territorial waters. See Calhoun v. Yamaha Motor Corp., U.S.A., 40 F.3d 622, 631 (3d Cir.1994). With the advent and expansion of the unseaworthiness doctrine this approach began to result in inequities which caused uncertainty and threatened chaos. See generally Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 212-14, 116 S.Ct. 619, 627, 133 L.Ed.2d 578 (1996); Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Congress passed the Jones Act, 46 U.S.C. § 688, and the Death on the High Seas Act ("DOHSA"), 46 U.S.C. § 761, both of which created statutory death remedies. Problems nevertheless remained, particularly in state territorial waters. Finally, the Supreme Court took action. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Supreme Court overruled The Harrisburg and for the first time recognized the presence of a nonstatutory maritime wrongful death claim for a widow of a longshoreman killed while working aboard a vessel in state territorial waters. The Moragne Court declined to define the nature and scope of this new cause of action, believing "final resolution should await further sifting through the lower courts in future litigation." Id. at 408, 90 S.Ct. 1772. It suggested that the lower courts in dealing with "particular questions of the measure of damages" should look for guidance to DOHSA and the "numerous state wrongful death acts." Id. at 408, 90 S.Ct. 1772.

District and appellate courts started to flesh out this new cause of action. See Gaudet, 414 U.S. at 584-91, 94 S.Ct. 806. Eventually, the Supreme Court focused on the substance of the remedies. In Gaudet, the widow of a longshoreman fatally injured on a vessel in Louisiana territorial waters brought a wrongful death action against the vessel owner under this newly recognized nonstatutory maritime death remedy. The Court in Gaudet defined the contours of the remedy. Using the navigational aids suggested by Moragne—namely the "numerous state wrongful death acts"the Court allowed recovery not only for pecuniary damages but also for nonpecuniary losses. Id. at 584-592, 94 S.Ct. 806.2 The nonpecuniary damage allowed by Gaudet was a widow's loss of society. Id. at 587, 94 S.Ct. 806.

In American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980), the claim for loss of society was extended to the wife of a harbor worker who sustained non-fatal injuries aboard a vessel in state territorial waters. This extension is more accurately termed loss of consortium. Considerable "sifting" continued in the lower courts in an effort to define the boundaries of the Moragne/Gaudet/Alvez remedy in state territorial waters,3 but the Supreme Court remained silent on this issue for the next 10 years.4

Then in 1990, the Court in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), considered the claim of the mother of a seaman killed in state territorial waters and held she had no claim under the general maritime law for nonpecuniary damages such as loss of society. In its analysis, the Court recognized that since Moragne there are in effect two causes of action for the wrongful death of seamen: one under the Jones Act (statutory) based on negligence and the other under the general maritime law (judge made federal common law) based on unseaworthiness. Id. at 30, 111 S.Ct. 317. The issue presented in Miles was whether the measure of damages under the nonstatutory cause of action could be greater than under the statutory cause of action.

The Court reasoned that since the measure of damages for the death of a seaman under the Jones Act is limited to pecuniary loss, recovery under the nonstatutory maritime death remedy also should be limited to pecuniary losses. The Court concluded:

It would be inconsistent with our place in the constitutional scheme were we 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.

Id. at 33, 111 S.Ct. 317.

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