DISTRICT COURT REFUSES TO EXTEND MCBRIDE TO CLAIM OF “NON-SEAMAN” INJURED DUE TO ALLEGED VESSEL NEGLIGENCE

District Court Refuses to extend McBride to Claim of “non-seaman” Injured Due to Alleged Vessel Negligence

By: Andrea R. Jones

Cook v. Kim Susan L.L.C., No: 13-451, 2015 WL 575168 (E.D. La. Feb 11, 2015)

Patrick Cook (Plaintiff) was injured while disembarking from a vessel owned by Kim Susan (Defendant). At the time of Mr. Cook’s accident, the vessel was under charter to McMoran Oil.McMoran Oil contracted with several entities for tank cleaning aboard the vessel; Mr. Cook was, at the time of his accident, under the employ of Quality Pre-Heat and Pressure Washers, who assigned Mr. Cook as a tank cleaner aboard the vessel. On July 26, 2011 Mr. Cook was disembarking from the vessel when the gangway flipped over, causing him to fall to the dock below and seriously injure his knees.The Plaintiff filed suit against Kim Susan (the vessel owner) in the Eastern District of Louisiana, alleging that the acts or omissions of Kim Susan and the vessel’s crew in inadequately securing the gangway caused plaintiff’s injuries; and further alleging that Kim Susan’s conduct amounted to negligence per se due to a failure to provide safe ingress/egress as required by Coast Guard regulations. Kim Susan and two of the joined defendants (hereinafter “Defendants”) filed a motion for partial summary judgment on the issues of Defendant’s liability and the availability of punitive damages in the case.On the issue of liability, Mr. Cook’s evidence that the two joined defendants were sufficiently involved with the securing of the gangway to be held liable proved insufficient and summary judgment was granted in favor of the two joined defendant contractors.On the issue of the availability of punitive damages in the case, the Defendants argued that the recent Fifth Circuit decision of McBride v. Estis Well Serv. L.L.C., 768 F.3d 382 (5th Cir. 2014) barred the plaintiff from collecting punitive damages in addition to non-pecuniary damages. In McBride, the Fifth Circuit reasoned that because of the nature of punitive damages, they are unavailable under the Federal Employee Liability Act (designed to protect railroad workers) and, therefore, held them similarly unavailable under the Jones Act for “seamen” plaintiffs. Defendants, in the instant case, took the position that the McBride decision precluded plaintiff’s recovery of punitive damages.The Plaintiff argued that, despite McBride, punitive damages remained available to him under the general maritime law. The Plaintiff contended that the prohibition on punitive damages established in McBride apply only to “seamen” (the Congressionally intended protected class for Jones Act claims) and not to punitive damages recoverable for “non-seamen”, like the Plaintiff, under general maritime law.The trial judge denied summary judgment to the Defendants on the punitive damages issue, reasoning that: “No act of Congress applicable to Plaintiff incorporated a limitation on punitive damages that should further limit the availability of punitive damages under the general maritime law as it applies to him. Absent any such limitation, the Court concludes that punitive damages remain available to Plaintiff in this case.”He agreed with the plaintiff that the limitation on punitive damages and reasoning of the en banc Fifth Circuit in McBride applied to seamen and the survivors of deceased seamen only; rendering the Defendants’ attempted extension of the McBride rule, ultimately, unsuccessful.