Verlisha Robinson and Jouan Jackson v. American Overseas Marine and Patton Caldwell , 2012 Tex. App. LEXIS 7665 ( 2012 )

Opinion issued August 30, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00745-CV
———————————
VERLESHIA ROBINSON AND JOUAN JACKSON, Appellants
V.
AMERICAN OVERSEAS MARINE AND PATTON CALDWELL, Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2009-47081
OPINION
In this maritime case, Verleshia Robinson and Jouan Jackson sued American
Overseas Marine and its employee Patton Caldwell.1 The two defendants sought
summary judgment against the plaintiffs on the ground that the plaintiffs’ claims
are barred by two federal statutes: the Suits in Admiralty Act2 and the Public
Vessels Act.3 The trial court granted the motion and rendered judgment dismissing
Robinson’s and Jackson’s claims with prejudice.
On appeal, Robinson and Jackson challenge the trial court’s judgment
dismissing their claims. Raising two issues, they contend that the trial court erred
by rendering summary judgment against them.
We affirm.
Background Summary
At the time of the alleged incidences giving rise to this suit, Verleshia
Robinson and Jouan Jackson worked as crew members aboard the USNS
Benavidez. They were employees of American Overseas Marine (“AMSEA”).
1
In the trial court and on appeal, Robinson has spelled her first name four different
ways: Verleshia, Velisha, Verlishia, and Verlisha. We use the spelling contained
in the trial court’s judgment which is “Verleshia.”
2
See 46 U.S.C. §§ 30901–30918.
3
See 46 U.S.C. §§ 31101–31113.
2
As represented in the vessel’s certificate of ownership, the Benavidez is a
public vessel owned by the United States of America, represented by the Navy
Department and operated by the Military Sealift Command. The vessel is used to
transport military personnel and cargo.
In 2004, the United States, through the Military Sealift Command,
contracted with AMSEA to operate and to maintain the Benavidez. Pursuant to the
contract, the United States delivered the Benavidez to AMSEA’s care and custody
in May 2005.
In 2009, Robinson and Jackson filed suit against AMSEA and its employee
Patton Caldwell, the Benavidez’s chief steward. In their first amended petition,
Robinson and Jackson alleged as follows:
While working as a member of the crew of the USNS Benavidez
Plaintiff, Jouan Jackson, informed the captain of the ship and the
designated person ashore, Robin Booth, of an assault upon crew
member Verleshia Robinson by the Chief Steward, Patton Caldwell,
while in the course and scope of her duties. Verleshia Robinson and
Jouan Jackson also informed the Captain and the designated person
ashore, Robin Booth, of the Chief Steward’s lack of hygiene and lack
of observance of health practices necessary to protect the safety of the
crew of the ship including allowing human blood to contaminate the
food stuffs of the USNS Benavidez. Verleshia Robinson and Jouan
Jackson also informed the designated person ashore of the Chief
Steward’s and Captain’s drunkenness while aboard ship during the
course of their duties and informed the designated person ashore that
such drunkenness endangered the entire crew and the seaworthiness of
the vessel.
3
AMSEA had terminated Jackson’s employment in July 2007. Jackson
alleged that AMSEA fired him in retaliation for reporting the misconduct of
Caldwell and the ship’s captain. Jackson averred that he “was discharged in a
foreign port and forced to fend for himself and to pay for his travel back to the
United States from Crete, Greece in violation of the shipping agreement.” Jackson
also alleged that prior to his termination he was subjected to “cruel treatment and
humiliation” onboard the vessel.
Jackson sued AMSEA and Caldwell for breach of his employment
agreement and for wrongful termination. In addition, he asserted claims for
negligence and vessel unseaworthiness under the Jones Act and for
unseaworthiness and negligence under the general maritime law. Jackson sought,
“[b]y reason of the shipping agreement,” recovery for “pay and vacation and
lodging in getting back to the United States.” He also sought “pre-judgment
interest for breach of contract, attorney fees and exemplary damages for the
humiliation and damages caused by making a seaman have to fend for himself in a
foreign port when he was deserted by the master of the vessel in a foreign port.”
In the petition, Robinson alleged that Caldwell assaulted her while she was
performing her duties onboard the Benavidez. She averred that Caldwell “attacked
[her] while in the course and scope of [Caldwell’s] duties while she was on duty in
the galley of the ship.” Specifically, Robinson alleged that Caldwell assaulted her
4
“by forcefully and aggressively poking his finger into her breast area.” She
averred that AMSEA has “condoned and ratified such assault.” Robinson alleged
that, after she reported shipboard misconduct, she “was subjected to abuse, cruel
treatment, harassment and humiliation during her remaining period aboard the
vessel by [Caldwell].”
Robinson asserted claims for negligence and vessel unseaworthiness under
the Jones Act and for unseaworthiness and negligence under the general maritime
law. In addition, Robinson asserted a civil assault claim. She sought “actual
damages, exemplary damages and attorney fees” “[b]y reason of the physical
assault upon her person.”
After answering the suit, AMSEA and Caldwell filed a Rule 166a(c)
traditional motion for summary judgment. They argued that the Suits in Admiralty
Act and the Public Vessels Act barred Jackson’s and Robinson’s claims against
them. Citing those two federal acts, the defendants asserted that, because they
were acting as agents of the United States while operating the Benavidez,
plaintiffs’ exclusive remedy lies against the United States. On this ground, the
defendants requested summary judgment and dismissal of the plaintiffs’ claims.
Robinson and Jackson responded. They argued that, under the Suits in
Admiralty Act and the Public Vessels Act, a plaintiff’s remedy is exclusively
against the United States only when a remedy against the United States is
5
permitted. The plaintiffs pointed out that two of the remedies they sought,
attorney’s fees and punitive damages, are not permitted against the United States.
Thus, they argued, their claims are not barred by the two federal acts.
The trial court granted AMSEA’s and Caldwell’s motion for summary
judgment and dismissed Jackson’s and Robinson’s claims with prejudice. This
appeal followed. Robinson and Jackson raise two issues on appeal challenging the
trial court’s summary judgment. Jackson and Robinson (hereinafter “Appellants”)
contend that the Suits in Admiralty Act and the Public Vessels Act do not bar their
claims against AMSEA and Caldwell (hereinafter “Appellees”).
Applicable Law and Standards
A. Standard of Review
To prevail on a traditional summary judgment motion, a movant must prove
that there is no genuine issue regarding any material fact and that it is entitled to
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of
Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant moving for
summary judgment must either (1) disprove at least one element of the plaintiff’s
cause of action or (2) plead and conclusively establish each essential element of an
affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth, 900 S.W.2d
339, 341 (Tex. 1995).
6
The movant must conclusively establish its right to judgment as a matter of
law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is
conclusively established if reasonable people could not differ as to the conclusion
to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816
(Tex. 2005). In our de novo review, we consider all the evidence in the light most
favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009).
If the movant meets its burden, the burden then shifts to the nonmovant to
raise a genuine issue of material fact precluding summary judgment. See Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a
genuine issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary judgment evidence. Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Appellees moved for summary judgment on the basis that the undisputed
facts and plain language of the Suits in Admiralty Act and the Public Vessels Act
established, as a matter of law, that Appellants’ claims against them are barred
because Appellants’ exclusive remedy lies against the United States. To the extent
that the issues presented in this appeal involve statutory construction and the
7
application of a statute to undisputed facts, we determine the issues as a matter of
law. See Tex. Dep’t of Family & Protective Services v. Alternatives in Motion,
Inc., 210 S.W.3d 794, 798 (Tex. App.—Houston [1st Dist.] 2006, pet. denied);
Gramercy Ins. Co. v. Auction Fin. Program, Inc., 52 S.W.3d 360, 363 (Tex.
App.—Dallas 2001, pet. denied).
B. The Suits in Admiralty Act and the Public Vessels Act
The Suits in Admiralty Act (“SAA”), 46 U.S.C. §§ 30901–30918, and the
Public Vessels Act (“PVA”), 46 U.S.C. §§ 31101–31113, permit admiralty suits to
be brought against the United States for causes of action arising out of the
operation of vessels owned by or operated for the United States. See 46 U.S.C.
§ 31102 (providing that “a civil action in personam in admiralty may be
brought . . . against the United States for . . . damages caused by a public vessel of
the United States”); id. § 30903 (providing, “In a case in which, if a vessel were
privately owned or operated, . . . or if a private person or property were involved, a
civil action in admiralty could be maintained, a civil action in admiralty in
personam may be brought against the United States . . . .”). Each act operates as a
waiver of the sovereign immunity of the United States in admiralty cases,
providing a “jurisdictional hook” on which to hang a traditional admiralty claim.
See Williams v. Central Gulf Lines, 874 F.2d 1058, 1059 (5th Cir. 1989).
8
Litigants seeking to recover from the United States must, however, abide by
the terms of the statutes. One of those terms is the exclusivity provision, found in
section 30904 of the SAA. That provision states, “If a remedy is provided by [the
SAA], it shall be exclusive of any other action arising out of the same subject
matter against the officer, employee, or agent of the United States . . . whose act or
omission gave rise to the claim.” 46 U.S.C. § 30904. The PVA incorporates the
exclusivity provision by reference. See 46 U.S.C. § 31103. Consequently,
recovery against an agent of the United States operating a government-owned
vessel is precluded on any claim for which either the SAA or the PVA provides a
remedy. See Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995, 997 (9th Cir.
1997) (“[W]here a remedy lies against the United States, a suit against an agent of
the United States ‘by reason of the same subject matter’ is precluded’”); Manuel v.
United States, 50 F.3d 1253, 1255 (4th Cir. 1995) (explaining that SAA’s
exclusivity provision “precludes recovery against an agent of the United States
operating a government-owned vessel on any claim for which the SAA or the PVA
provides a remedy against the United States”).
Analysis
On appeal, Appellants identify two issues in which they assert that the
exclusivity provision of the SAA does not bar their claims against Appellees.
9
A. Agent of the United States
In their first issue, Appellants contend that “Appellees do not qualify as
agents of the United States for the actions giving rise to the claims in this case.”
To show that they were “agents” of the United States, Appellees offered
summary judgment evidence, including the affidavit of Christopher Nette,
AMSEA’s vice president of marine operations. Nette’s affidavit mentions the
document entitled “Certificate of Delivery and Acceptance.” That document is
appended to the motion for summary judgment. It indicates that AMSEA accepted
delivery of the Benavidez on May 6, 2005 and states that AMSEA “assumes
responsibility for the care and custody of the vessel.”
In his affidavit, Nette also testified that the United States had “contracted
with AMSEA to provide operation and maintenance services for the U.S.N.S.
Benavidez under Contract No. N00033–04–C–5300.” Excerpts from the contract
are attached to the motion for summary judgment. The contract indicates that the
United States engaged AMSEA to operate the Benavidez. The contract also shows
that the government maintained a degree of operational control over the vessel.
For example, the contract requires AMSEA “to use only experienced, responsible,
and capable people to perform the work.” The contract provides that the
government maintained the power to require AMSEA “[to] remove from the job,
10
employees who endanger persons or property, or whose continued employment
under this contract is inconsistent with military security.”
Additionally, the contract expressly contemplated and discussed the
application of the SAA and PVA in the event that suit was filed against AMSEA.
The contract states, “As operators of public vessels of the United States, the
Contractor [AMSEA] may become involved in litigation maintainable against the
United States under the [PVA].” The contract mentions that the PVA incorporates
provisions of the SAA. The contract indicates a presumption that the government
will be the target of such suit and shows that, if such a suit is filed, the government
will maintain control of the litigation.
Turning to the relevant jurisprudence regarding agency, courts have held that
a contract operator of a naval vessel is an agent of the United States for purposes of
the SAA’s exclusivity clause. See Tarver v. U.S., Buck, 785 F. Supp. 607, 611
(S.D. Miss. 1991); Buck Kreihs Co. v. Int’l Marine Carriers, Inc., 741 F. Supp.
1249, 1250–51 (E.D. La. 1990). As one court summarized, “A long line of cases
establishes that a contract operator of a naval vessel . . . is an agent of the United
States for purposes of [the exclusivity clause].” River & Offshore Servs. Co., Inc.
v. United States, 651 F. Supp. 276, 278 (E.D. La. 1987); see also, e.g., Doyle v.
Bethlehem Steel Corp., 504 F.2d 911, 912 (5th Cir. 1974) (holding that company
“engaged to manage and conduct the business of the Government with respect to
11
the operation of certain Navy tankers” was agent of the United States under
exclusivity clause).
Courts have also held that the term “agent,” as used in exclusivity provision,
applies to those engaged by the United States “to manage and conduct the
business” of a government vessel, suggesting that the exclusivity provision applies
to general agents who manage and conduct the business of the vessel. See Petition
of United States, 367 F.2d 505, 510 (3d Cir. 1966); see also Servis v. Hiller
Systems Inc., 54 F.3d 203, 207–09 (4th Cir. 1995). Other courts have held that
some degree of operational control must be maintained by the government for the
private operator to be an agent under the SAA. See, e.g., Nelsen v. Research Corp.
of Univ. of Hawaii, 805 F. Supp. 837, 847 (D. Haw. 1992) (citing LeBlanc v.
United States, 732 F. Supp. 709 (E.D. Tex. 1990); Cruz v. Marine Transport Lines,
634 F. Supp. 107 (D. N.J. 1986)).
In this case, the summary judgment evidence shows that AMSEA contracted
with the United States to operate and to maintain the Benavidez on behalf of the
government. In other words, the evidence shows that AMSEA was engaged to
manage and to conduct the maritime business of the government vessel. The
evidence also shows that the government maintained a degree of operational
control of the vessel indicative of an agency relationship.
12
Moreover, Appellants’ allegations in their petition also support this
conclusion. Appellants alleged that Caldwell committed the assault against
Robinson “in the course and scope of his duties” as chief steward of the Benavidez.
Appellants allege that they also were performing their duties as crewmembers of
the Benavidez’s when the events giving rise to their claims occurred.
In addition, Jackson alleges that his employment was wrongfully terminated
under the pretext of insubordination in violation of the shipping articles, which
govern the conduct of seamen onboard the vessel. Employment decisions such as
hiring and firing a crewmember for onboard conduct are necessarily a part of, and
directly related to, a vessel’s operation and mission.
We note that the court in Moos v. Crowley Liner Services, Inc. held that a
private operator of a United States owned vessel was the government’s agent
within the meaning of the exclusivity provision in a suit brought by the operator’s
employee for wrongful termination. No. C 06-03791 SI, 2006 WL 2263904, at *2
(D.C. Cal. Aug. 8, 2006). To reach this conclusion, the court relied on the
allegations in the plaintiff’s complaint and the contract between the operator and
the government indicating that the government had maintained general operational
control. See id. In this case, a degree of operational control by the government
regarding, inter alia, employment issues is evidenced by the contract provision in
which the government (1) requires AMSEA to man the vessel “with only
13
experienced, responsible, and capable people to perform the work” and (2) retains
the power to require AMSEA to remove an employee.
We conclude that AMSEA, and by extension its employee, Caldwell, offered
sufficient evidence to conclusively establish that they were agents of the United
States within the meaning of the SAA’s exclusivity provision. See Dearborn, 113
F.3d at 1000 (holding that that private charterer was “agent” of the United States
within meaning of SAA because provisions in agreement with government
indicated that charterer consented to operate ship on the government’s behalf and
subject to its overall control); Favorite v. Marine Personnel & Provisioning, Inc.,
955 F.2d 382, 388 (5th Cir. 1992) (“Because ‘the general statement of an agency
concept . . . include[s] any instrumentality through and by which the public vessels
are operated,’ MTL was an agent of the United States.”); Petition of United States,
367 F.2d at 509–510 (concluding private operator was agent of United States
because it agreed to manage and conduct business of government with respect to
the vessel and government retained overall control and direction of operations).
Thus, we hold that Appellees met their summary-judgment burden as movants.
See TEX. R. CIV. P. 166a(c). The burden then shifted to Appellants, as
nonmovants, to raise a genuine issue of material fact regarding whether Appellees
were agents within the meaning of the exclusivity provision. See Palmer v.
Enserch Corp., 728 S.W.2d 431, 435 (Tex. App.—Austin 1987, writ ref’d n.r.e.)
14
(explaining that once summary movant meets its burden with respect to
establishing affirmative defense, then non-movant must adduce evidence raising a
material fact issue on his counter-defense in avoidance of affirmative defense).
In their summary-judgment response, Appellants made no argument and
offered no proof for the purpose of showing that a material fact issue existed on the
question of agency. Indeed, on appeal, Appellants do not dispute that Appellees
were the government’s agents for purposes of conducting the business operations
of the Benavidez. Rather, Appellants contend that the intentional torts giving rise
to their claims, such as assault, “are outside the scope of an agency relationship.”
Without supporting legal authority, Appellants contend, “The course and scope of
the agency relationship, and whether an agent is acting within it or not, are, at the
very least, questions of material fact and thus inappropriate for summary
judgment.” Appellants, however, did not raise this argument in the trial court.
We recognize that, if a defendant moves for summary judgment based on the
assertion that suit against it is barred by the exclusivity clause, it is the defendant’s
burden to prove conclusively such defense as a matter of law. See Alexander v.
Walker, 355 S.W.3d 709, 711 (Tex. App.—Houston [1st Dist.] 2011, no pet.). We
also recognize that the non-movant’s failure to answer or to respond cannot supply
by default the summary-judgment proof necessary to establish the movant’s right.
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).
15
However, as discussed, Appellees met their summary-judgment burden to show
that they were agents within the meaning of the exclusivity provision in the context
of this litigation.
It is well-established that a response to a motion for summary judgment
must fairly inform the movant and the trial court of the arguments that the
nonmovant contends defeats the motion. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also TEX. R. CIV. P. 166a(c)
(providing that “[i]ssues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as grounds for
reversal”). We cannot reverse a summary judgment based on arguments not
expressly presented to the trial court by written motion or other response to the
summary judgment motion. See TEX. R. CIV. P. 166a(c); Clear Creek Basin Auth.,
589 S.W.2d at 678. To the extent that Appellants now assert that the alleged
tortious conduct by Appellees exceeded the scope of the agency, Appellants should
have presented this argument in the trial court for it to be considered on appeal. 4
See TEX. R. CIV. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678. Because
they did not assert the argument in the trial court, we do not consider it on appeal.
4
We note that at least one court has rejected the argument that the exclusivity
provision does not apply when the intentionally tortious conduct of a private
vessel operator exceeds the scope of its agency authority granted by the
government. See, e.g., River & Offshore Servs. Co. v. United States, 651 F. Supp.
276, 280 (E.D. La. 1987).
16
See TEX. R. CIV. P. 166a(c); see also TEX. R. APP. P. 33.1(a)(1) (requiring that, as a
prerequisite for presenting a complaint for appellate review, record must show that
the complaint was made to trial court by timely request, objection, or motion);
Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied) (reasoning that argument not expressly presented to trial court in
response to motion for summary judgment was waived).
We overrule Appellants’ first issue.
C. Punitive Damages and Attorney’s Fees
In their second issue, Appellants contend, as they did in the trial court, that
the SAA’s exclusivity provision does not bar their claims against Appellees for
attorney’s fees and punitive damages because a plaintiff’s remedy is exclusively
against the United States only when a remedy against the United States is
permitted. To reiterate, the SAA’s exclusivity provision states, “If a remedy is
provided by [the SAA], it shall be exclusive of any other action arising out of the
same subject matter against the officer, employee, or agent of the United States . . .
whose act or omission gave rise to the claim.” 46 U.S.C. § 30904. Appellants
correctly point out that they cannot seek attorney’s fees and punitive damages
against the United States.5 Appellants assert that, because they cannot pursue these
5
Punitive damages are unavailable in actions against the United States absent
specific statutory authorization. See Kasprik v. United States, 87 F.3d 462, 465
(11th Cir. 1996) (citing Missouri Pacific R.R. Co. v. Ault, 256 U.S. 554, 564, 41 S.
17
claims against the United States, the SAA permits them to pursue the claims
against Appellees.
In support of their position, Appellants cite the following federal district
court cases: Shields v. United States, 662 F. Supp. 187 (M.D. Fla. 1987);
Henderson v. Int’l Marine Carriers, 1990 A.M.C. 400 (E.D. La. 1989), aff’d mem.,
921 F.2d 275 (5th Cir. 1990); and Abogado v. Int’l Marine Carriers, 890 F. Supp.
626 (S.D. Tex. 1995). In Shields, the court determined that the exclusivity
provision did not prevent the plaintiff from seeking punitive damages and
attorney’s fees from his employer, a private operator of a government vessel,
which had failed to pay him maintenance and cure benefits. 662 F. Supp. at 188.
To reach this conclusion, the court relied on the requirement in the exclusivity
provision that a claim will be precluded against an agent only when it arises out of
the same subject matter as a claim for which he has a remedy against the United
States. See id. at 189. In permitting the claim against the agent operator, the
Shields court reasoned that the plaintiff’s claim against the vessel operator, arising
from the arbitrary and willful conduct of its insurance department’s handling of his
Ct. 593 (1921) (“It is well established that in the absence of specific statutory
provision for penalties the federal government may not be held liable for damages
which do not merely compensate but punish.”)). Similarly, attorney’s fees may
not be awarded against the United States in the absence of specific statutory
authority. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 267–
68, 95 S. Ct. 1612, 1626–27 (1975). Neither the SAA or nor the PVA contains a
provision permitting the recovery of attorney’s fees or punitive damages against
the United States.
18
maintenance and cure benefits, was “an entirely different subject matter” from the
his negligence and unseaworthiness claims against the United States. Id. at 190.
Taking an approach similar to that in Shields, the court in Abogado allowed
a plaintiff to pursue his suit for punitive damages against the private operator of a
vessel owned by the United States for the operator’s failure to pay him
maintenance and cure benefits. Abogado, 890 F. Supp. at 631. The court found it
significant that the plaintiff’s punitive damages claim did not arise from “any
action that occurred in the operation of the vessel.” Id. at 632. Instead, the
plaintiff premised his claim on allegations that the private vessel operator’s
employees, who were responsible for administering insurance benefits, had
willfully withheld maintenance and cure benefits from him. Id. The court allowed
the claims; it reasoned that “such office-based, administrative action” by the vessel
operator could not “realistically be said to be part of the possession or operation of
merchant vessels.” Id. The court agreed with the plaintiff that the punitive
damages claim was not part of the same subject matter as the plaintiff’s general
maintenance and cure claims, which could be asserted against the United States.
See id. Thus, the punitive damages claim was not covered by the exclusivity
provision. See id. at 631, 634.
Relying on Shields, the court in Henderson also permitted the plaintiff’s
claim against the operator agent for willful and arbitrary failure to pay maintenance
19
and cure. 1990 A.M.C. at 402. The court based its decision on evidence showing
that the operator agent’s employees, and not those of the United States, were
responsible for the failure to disburse payments to the plaintiff. See id.
As pointed out by Appellees, the Third, Fourth, and Eleventh Circuits have
analyzed and rejected the reasoning of Shields, Abogado, and Henderson. See
Manuel, 50 F.3d at 1260 (disagreeing with Shields); Kasprik v. United States, 87
F.3d 462, 465–66 (11th Cir. 1996) (adopting Manuel and rejecting Shields); accord
O’Connell v. Interocean Mgmt. Corp., 90 F.3d 82, 85–87 (3d Cir. 1996) (adopting
Manuel and rejecting Shields, Abogado, and Henderson).
In Manuel, the Fourth Circuit determined as follows:
The subject matter of this claim under the SAA is the seaman’s
entitlement to maintenance and cure resulting from his injury while
employed aboard the ship. We find that the seaman’s action against
the operator for the arbitrary and willful failure to pay maintenance
and cure deals with the same subject matter.
50 F.3d 1259. The Fourth Circuit reasoned that “[a]lthough the claim against the
operator highlights the wrongful conduct of the operator’s administrative
employees, the action nonetheless arises from the seaman’s entitlement to
maintenance and cure resulting from his injury while employed aboard the ship.”
Id.
After a thorough review of the legislative history of the SAA and the
pertinent jurisprudence, the Manuel court explained,
20
We conclude that Congress intended [the exclusivity provision] to
require seamen to sue the United States on any maritime action arising
out of an injury on a ship owned by or operated for the government,
even if the action arises from the negligence of an agent’s employee.
Therefore, we conclude that the exclusivity provision . . . was
intended to require a seaman injured aboard a government-owned ship
to bring his maintenance and cure action against the United States
[and not against the private operator of the vessel].
Id. at 1259. The court held that all of the plaintiff’s claims must be brought solely
against the United States, including the willful failure to pay maintenance and cure
for which the plaintiff sought punitive damages and attorney’s fees. See id.
In reaching its holding, the Manuel court offered the following critique of
Shields:
Apparently, the Shields court went astray by treating the arbitrary and
willful refusal to pay maintenance and cure as a cause of action
separate from the simple failure to pay maintenance and cure benefits
when due. There is no cause of action specifically for the arbitrary
and willful refusal to pay maintenance and cure. Under general
maritime law, a seaman injured while employed aboard a ship is
entitled to receive maintenance and cure, and he can bring an
admiralty suit to recover any unpaid maintenance and cure benefits.
Courts have long awarded punitive damages to seamen where
maintenance and cure benefits have been arbitrarily and willfully
denied. Punitive damages, however, is merely an additional remedy
in the seaman’s maintenance and cure action. The Shields court, in
effect, turned the punitive damages remedy into a separate cause of
action.
Id. at 1259–60 (citations omitted).
At the end of its opinion, the Manuel court offered the following summary:
Having rejected the reasoning of Shields, we conclude that the
exclusivity provision . . . bars [plaintiff] Manuel’s proposed action
21
against [operator agent] IMC for the arbitrary and willful failure to
pay maintenance and cure. The SAA provides Manuel with a remedy
against the United States to vindicate his entitlement to maintenance
and cure. Because of the exclusivity provision, the remedy provided
by the SAA precludes any action against IMC that deals with the same
subject matter. Manuel’s proposed action against IMC, although
highlighting IMC’s wrongful handling of his benefits claim,
nonetheless arises from his entitlement to maintenance and cure
resulting from his injury while employed aboard a ship. Because the
SAA provides a remedy by reason of that subject matter, Manuel
cannot bring a maintenance and cure claim against IMC.
Id. at 1260 (citations omitted).
In O’Connell, the Third Circuit adopted Manuel’s holding. 90 F.3d at 86–
87. The O’Connell court explained that “the reasoning of . . . Manuel is
persuasive, and we have no reluctance in following that rationale. . . . We agree
that an action for arbitrary denial of maintenance and cure benefits when due arises
‘by reason of the same subject matter’ as the available claim against the United
States for maintenance and cure.” Id. Similarly, in Kasprik, the Eleventh Circuit
concluded that “any claim for failure to pay maintenance and cure, even one
alleging the arbitrary and willful denial of such, is ‘by reason of the same subject
matter’ as the seaman’s entitlement to maintenance and cure resulting from his
injury” and thus, per the exclusivity clause, could not be maintained against an
agent of the United States. 87 F.3d at 466.
Besides the Third, Fourth, and Eleventh Circuit courts, a number of federal
district courts, and the Supreme Court of Alaska, have rejected Shields’s reasoning.
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Those courts have also held that a plaintiff seaman cannot pursue a willful failure
to pay maintenance and cure claim under the SAA against a private operator agent
of a government-owned vessel. Instead, the plaintiff must pursue all of his claims
against the United States, even though he will not be permitted to recover punitive
damages or attorney’s fees against the government. See, e.g., Reece v. Keystone
Shipping Co., No. C09-1610JLR, 2010 WL 2331068, at *3 (W.D. Wash. Mar. 25,
2010); Sharian v. United States, No. C 98–4578, 1999 WL 1427723, at *3 (N.D.
Cal. Oct. 5, 1999); Stone v. Int’l Marine Carriers, Inc. 918 P.2d 551, 556–57
(Alaska S. Ct. 1996); Stewart v. United States, 903 F. Supp. 1540, 1545 (S.D. Ga.
1995); Smith v. Mar, Inc., 896 F. Supp. 75, 77 (D. R.I. 1995); Fratus v. United
States, 859 F. Supp. 991, 995 (E.D. Va. 1994). In contrast, no reported case has
followed the holdings of Shields, Abogado, and Henderson.
Unlike the preceding cases, the instant case does not involve the issue of
whether a plaintiff may, under the SAA’s exclusivity clause, pursue a claim for the
willful failure to pay maintenance and cure benefits against a private operator
agent of a government-owned vessel. Nonetheless, the analyses in those cases—
including that found in both the Manuel and the Shields lines of cases—are useful
in determining the issue with which we are presented.
In plaintiffs’ petition, Robinson “seeks actual damages, exemplary damages
and attorney fees” “[b]y reason of the physical assault upon her person.” Jackson
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seeks “attorney fees and exemplary damages for the humiliation” arising from the
alleged retaliatory acts and discharge following Jackson’s report of Caldwell’s and
the captain’s misconduct to company representatives.
The basis for their punitive damages and attorney’s fees claims is also
specifically addressed in Appellants’ summary-judgment response:
This is a case about a crew member assaulting another crew member
and the employer openly and callously ignoring and disregarding the
violent propensities of the attacker. Later, the employer retaliated
against a witness who stood up and confirmed the attack by the
perpetrator and Defendant, Patton Caldwell. This is why my clients
are seeking punitive damages and attorney fees.
A review of these allegations shows no distinction between them and the
allegations asserted by Appellants to support their maritime claims for which they
seek compensatory damages. In this regard, the present case is distinguishable
from both the Shields and the Manuel lines of cases. All of those cases involved
specific conduct relied on by the plaintiff to support punitive damages and
attorney’s fees that was arguably distinct from the specific conduct alleged to
support the claim for compensatory damages. That distinction was critical in those
cases.
Here, Appellants’ punitive damages and attorney’s fees claims are not only
“by reason of the same subject matter” but also by reason of the same specific
conduct as their claims for compensatory damages. This is true regardless of
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whether it can be agreed upon that the claims in the Shields and the Manuel lines
of cases were by reason of the same subject matter.
Moreover, unlike the allegations in those cases, the conduct asserted to
support the punitive damages and attorney’s fees claims in this case occurred
onboard the Benavidez and, as alleged, relate to, and arise from, the management
and operation of the vessel. Cf. Shields, 662 F. Supp. at 190 (“In the present case,
the plaintiff seeks recovery from Sea-Land not for the wrongful acts of its master
or crew in the management of a United States vessel, but for the arbitrary and
willful conduct of its insurance department.”). In other words, Appellees were
acting as agents of the United States at the time of the alleged misconduct giving
rise to Appellants’ claims. The SAA provides a remedy against the United States
for compensatory damages suffered as a result of the maritime claims alleged by
Appellants.6 See 46 U.S.C. §§ 31102; 30903. Simply because the remedy
6
A review of the case law indicates that, for example, Appellants would be
permitted to pursue—though they may not prevail—an unseaworthiness claim against the
United States based on the assaultive and retaliatory conduct, which Appellants allegedly
experienced onboard the Benavidez. See Sloan v. United States, 603 F. Supp. 2d 798,
811 (E.D. Pa. 2009) (evaluating, in suit brought under PVA and SAA against United
States as vessel owner, seaman’s unseaworthiness claims arising from assault and
emotional abuse by fellow crewman onboard vessel); see also Len v. American Overseas
Marine Corp., 171 Fed. App’x. 489, 492 n.2 (5th Cir. 2006) (recognizing that SAA
provides remedy against United States as vessel owner for seaman’s claim of retaliatory
discharge by vessel operator). We do not, however, delve into the merits of any potential
claim at this stage in the analysis. See Nelsen v. Research Corp. of Univ. of Haw., 752 F.
Supp. 350, 355–56 (D. Haw. 1990) (“Plaintiff confuses the question [of] whether he
could actually recover against the United States on the merits of his hypothetical claim
with the narrower jurisdictional inquiry sufficient to satisfy [the SAA],” recognizing that
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contemplated by the SAA does not encompass punitive damages and attorney’s
fees does not render the remedy permitted under the SAA any less exclusive. See
Stiward v. U.S., Marine Transp. Lines, Inc., No. Civ. A. 05-1926, 2005 WL
3543736, at *5 (E.D. La. Oct. 13, 2005).
In sum, Appellants seek punitive damages and attorney’s fees for the alleged
assault and subsequent retaliatory conduct by Appellees. Because the SAA
provides a remedy by reason of that subject matter, Appellants’ claims against
Appellees are barred by the exclusivity provision. See 46 U.S.C. § 30904; Manuel,
50 F.3d at 1260. We hold that the trial court correctly granted Appellees’ motion
for summary judgment and properly dismissed Appellants’ claims with prejudice.
See 46 U.S.C. § 30904.
We overrule Appellants’ second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
Justice Sharp, concurring with the judgment, in an opinion to follow.
the SAA does not require courts “to conduct a mini-trial to determine whether the
plaintiff would in fact prevail against the United States”).
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