Are Punitive Damages Available When a Master Assaults a Deckhand? A Tale of Two Cases

By John Merriam

Miles v. Apex, 498 U.S. 19 (1990), held that non-pecuniary damages, including punitive damages, are not available to an injured seaman from the employer or the shipowner. Recovery is limited to compensatory damages like wage loss, pain and suffering. What about from tortfeasors other than employers or vessel owners? What damages are available to non-seaman on vessels, and from whom? Since Miles, court decisions are widely divergent. As Judge Coughenour pointed out in a passenger case, the availability of punitive damages in maritime cases is unclear. Jameson v. Holland America Lines, 2004 A.M.C. 771 (W.D. Wash 2004).

This article explores whether a deckhand can seek punitive damages from the master of a vessel when the master is neither the employer nor the shipowner in relation to the assaulted deckhand. Despite Miles, courts in the Ninth Circuit and elsewhere recognize that punitive damages are still generally available in admiralty. See, In Re: Exxon Valdez, 2004 A.M.C. 305 (D.Ak. 2004). See also, e.g., Rebardi v, Crewboats, 2005 A.M.C. 1272 (La.App. 2005) (occupants of a skiff flipped over by the wake of a passing boat entitled to punitive damages from the owner of the boat). That availability is more clear-cut in cases of assault, at least for some victims: "Punitive damages may be awarded in cases of intentional torts in admiralty . . . ." Schoenbaum, Admiralty and Maritime Law, § 5-17 (4 th ed. 2004).

CASE I: LANDGREBE V. CHANEY

Ted Landgrebe's big mistake was bringing his girlfriend along on a fishing trip to Alaska.

Landgrebe was a deckhand on the F/V Tiffany Rose, a 54-foot salmon seiner out of Tacoma. Doug Chaney was the master. The owner of the vessel and the employer of Landgrebe were shell corporations controlled by Chaney. The Tiffany Rose left Tacoma on March 7, 2003 bound for the herring roe fishery in Southeast Alaska. By the time she fetched Ketchikan, Landgrebe was accusing his girlfriend of sleeping with Chaney. In Wrangell, Alaska, a day or two later, there was a physical confrontation between the deckhand and the master. After quitting his job, Landgrebe claimed that Chaney threw him around the galley and then forcibly ejected him from the vessel. The Tiffany Rose left Landgrebe on the dock in Wrangell with no wages, no plane ticket, no job and no girlfriend.

Landgrebe managed to get back to Tacoma, where he hired a lawyer. Landgrebe's second lawyer, this writer, filed suit in federal court in Tacoma. The case was assigned to Judge Ronald Leighton. In a pretrial motion, plaintiff requested a declaration on the theoretical availability of punitive damages for assault from Chaney, personally. Plaintiff argued that neither the Jones Act nor the general maritime law doctrine of unseaworthiness were involved because the assailant was not Landgrebe's employer and not the vessel owner. Defense counsel argued that Chaney was the de facto employer of Landgrebe and the beneficial owner of the Tiffany Rose, so that the case should be decided in line with Miles v. Apex, supra.

Judge Leighton agreed with Chaney and denied the motion. The linchpin of his order was the following statement: "The case at bar implicates the Jones Act." Landgrebe v. Diamond K, Inc., at al., No. C04-5266 RBL, Order of February 15, 2005 (W.D. Wash). The judge went on to state: "A Jones Act seaman cannot recover exemplary damages even when a non seaman might receive such damages on the basis of the same conduct." Id.

Judge Leighton's decision left this practitioner fuming. The Jones Act was designed to allow an injured seaman to bring a lawsuit following injury against the seaman's employer, only. Chaney created a shell corporation to be Landgrebe's employer so that Chaney, personally, could avoid the responsibilities of a Jones Act employer, and created a different shell corporation so he could avoid the responsibilities of a shipowner. I started outlining a motion for reconsideration. The court was letting Chaney effectively pierce his own corporate veil(s), I argued. Even if the master of a vessel is viewed as an agent of the vessel owner and/or the employer, whether or not an assault is within the scope of his agency is an issue of fact that should await trial for resolution. The order left all masters virtually immune from punitive damages for assaulting their seamen. The part of Judge Leighton's order that particularly rankled me was his statement that, effectively, a Jones Act seaman cannot recover punitive damages from anyone. Passengers have more protection against assault than seamen do?! That seemed to fly in the face of the policy of protection for seamen.

Before I drafted the motion for reconsideration, however, the Fifth Circuit reported a case that echoed Judge Leighton's ruling that a Jones Act seaman cannot sue anyone for punitive damages. Scarborough v. Clemco, 2005 A.M.C. 96 (November 18, 2004). With the Fifth Circuit in Judge Leighton's corner, a motion for reconsideration seemed futile. I consulted with my client. Unless the judge was generous at trial, Landgrebe agreed with my suggestion that an appeal should be taken.

In cases before Miles, at least in dictum, the Ninth Circuit stated that punitive damages were available from seamen, personally, who assaulted other seamen. California Home Brands v. Ferreira, 871 F.2d 830 (9th Cir. 1989). Judge Rothstein allowed non-pecuniary damages against a shipyard for the death of a Jones Act seaman who was not a shipyard employee, reasoning that uniformity was not needed because the decedent was 'not a Jones Act seaman for purposes of the lawsuit against the shipyard'. Sugden v. Puget Sound Tug and Barge Co., 796 F.Supp 455, 1993 A.M.C. 347 (W.D. Wash 1992). If the master was neither the employer nor the shipowner of the assaulted seaman, why should such an assailant be treated any differently?

Settlement negotiations failed. Mediation was a bust. I got ready for trial.

CASE II: GRUVER V. LESMAN

Jeff Gruver was savagely beaten by the master of a vessel he no longer worked for.

Gruver is no choirboy. He has a record of multiple arrests and four felony convictions, many stemming from methamphetamine. Gruver was trying to do better by early 2004 but he had a warrant out for his arrest in Oregon---for domestic violence---and thought it prudent to look for work elsewhere, like in Washington. In Westport, he got a job fishing for shrimp aboard the F/V Sunset Charge, a 49-foot shrimp and crab boat owned and operated by Bob Lesman. He and Lesman didn't get along. Gruver quit during a pay dispute, after which hostile words were exchanged.

Gruver got another job in Westport as deckhand aboard the F/V Adventurous, a 55-foot seiner. In the wee hours of the morning on June 18, 2004, after earlier leaving a tavern, Lesman and another man walked down Float 3 in Westport toward the Adventurous. The facts are in contention at this point but medical records suggest that Gruver was beaten within an inch of his life, suffering broken ribs and a punctured lung. Lesman claims he administered the beating all by himself, after Gruver started the fight. Gruver claims that Lesman had help from a 380-pound deckhand named Jimmy Hoff. According to Gruver, he was lying in his bunk on the Adventurous waiting for his new master to show up so they could head out to the fishing grounds. His old master showed up instead. Lesman and Jimmy Hoff told Gruver they were going to kill him because Gruver had left threatening messages on Lesman's answering machine. Gruver escaped, bloodied and half-naked. He crawled off the dock and asked a homeowner to call an ambulance.

Gruver got a lawyer and suit was filed in federal court in Tacoma. The case was assigned to Judge Robert Bryan.

There was no written contract of employment for the F/V Sunset Charge, between Gruver and Lesman, as required by 46 U.S.C. § 10601. My client claimed that Lesman had stiffed him on his wages even under their verbal agreement. I filed a motion asking the judge to declare that wage penalties under state law---RCW 49.52.050 and .070---were available to fishermen with no written employment contract who sought a higher crewshare pursuant to 46 U.S.C. § 11107. In other words, I wanted Gruver's wages increased under federal law, and penalties imposed upon that increase under state law. Judge Bryan granted the motion. Gruver v. Lesman, 2005 A.M.C. 1434 (W.D. Wash. 2005).

Gruver's lawsuit against Lesman included an in rem claim against the F/V Sunset Charge, even though the alleged assault occurred aboard the F/V Adventurous. Plaintiff asserted that the wage claim against the Sunset Charge led to an assault by her master, Lesman, and it made no difference where the assault occurred. Lesman's lawyer filed a motion to dismiss the in rem claim, nervous that the Sunset Charge would be arrested by the Marshal. Plaintiff filed a counter-motion asking for punitive damages. I argued that the assault aboard the Adventurous stemmed from a wage dispute aboard the Sunset Charge and in rem jurisdiction against the Sunset Charge should be available. If the court disagreed, that the previous connection with the Sunset Charge was too attenuated to support in rem jurisdiction, then I asserted in the alternative that punitive damages should be available against Lesman, personally. I wrote that the assault either was connected to employment aboard the Sunset Charge, or it was not. If it was, then damages should be available against the vessel, in rem. If it was not, then punitive damages should be available against Lesman---not as plaintiff's former master but personally, as an individual who assaults another individual.

Judge Bryan didn't decide the legal issues, ruling instead that more facts were needed. He denied Lesman's motion to dismiss the in rem claim, hinting in dictum that Gruver might be able to proceed against the Sunset Charge.

Courts have not established a bright line rule, as defendants suggest, that requires that a former seaman owed wages may not sue in rem.

Gruver v. Lesman Fisheries, No. C04-5428RJB, Order of July 5, 2005 at p. 8.

Regarding punitive damages, Judge Bryan walked a fine line. He didn't slam the door shut on Gruver, nor did he directly contradict the Fifth Circuit in Scarborough or Judge Leighton in Landgrebe.

In Scarborough v. Clemco, 391 F.3d 660, 668 (5th Cir. 2004),
the Fifth Circuit determined that Miles v. Apex Corp., supra,
precludes seamen from obtaining punitive damages against a
third party defendant who is not the seaman's employer. Id. . . .
To the extent plaintiff can be considered a seaman
, in the
interest of uniform application of maritime law, punitive
damages are unavailable in a case such as this, where claims
based on assault are brought pursuant to the general maritime law.

Id., Order of July 5, 2005 at p. 9 (emphasis added). Judge Bryan went on to observe that some courts have held that non-seamen, like passengers, could seek punitive damages---suggesting that Gruver might be entitled to punitive damages if he could show at trial that he was 'not a seaman'. But 'not a seaman' in relation to whom? Gruver was a seaman for the F/V Adventurous on June 18, 2004, if no longer a 'seaman' for the F/V Sunset Charge. In Scarborough, supra, the plaintiff was a Jones Act seaman, according to the jury, aboard some vessels but was denied punitive damages against those who were not his employer. In Landgrebe v. Chaney the plaintiff was a Jones Act seaman aboard the Tiffany Rose but was denied punitive damages against Doug Chaney who, technically, was neither his employer nor the vessel owner. In Sugden, supra, by contrast, the plaintiff was a Jones Act seaman aboard a vessel but was allowed to seek non-pecuniary damages against a shipyard that was neither his employer nor the vessel owner.

Judge Bryan continued:

At this point, a determination whether plaintiff could be
characterized as a seaman or in some other status depends on
development of the facts involving the nexus between the
assault, the parties, and each of the two vessels. A decision on
whether plaintiff can state a claim for punitive damages is
premature. Plaintiff's motion for an order declaring that punitive
damages are available against Mr. Lesman should be denied
without prejudice to raise the issue at an appropriate time during
the trial.

Gruver v. Lesman, supra, Order of July 5, 2005 at p. 10. Judge Bryan seemed to be saying that Gruver could seek punitive damages if he was 'not a seaman' in relation to Lesman at the time of the assault. But was the judge really saying that? The writer confesses confusion on this point.

Judge Bryan concluded his order with the following language:

The Court questions whether maritime law applies to this case
and, if not, whether the court has jurisdiction. The parties
should be prepared to discuss this issue at the pretrial
conference.

Id. (emphasis in original). Lesman's lawyer immediately filed a motion to dismiss. Admiralty jurisdiction over two seamen allegedly trying to beat the tar out of each other, on a boat in navigable waters, seemed like a given and I wasn't too worried about Lesman's motion.

While the parties were feuding over when mediation would occur, Judge Bryan dismissed the case for lack of subject matter jurisdiction.

The failure to pay wages due . . . does not bear a substantial relationship
to traditional maritime activity. Employers pay wages to employees in all
industries, not just the fishing industry. Wage disputes can be resolved in
state courts, under state law. . . . In any event, wage claims are no
longer at issue in this case.
If the general activity in this case is the alleged assault itself, this
activity does not bear a substantial relationship to maritime law. . . .
Fighting can occur in any number of places. In this case (it) happened
on a vessel. . . . State law provides a remedy for an assault; there is no
need for application of the specialized body of admiralty law. . . .
The court should dismiss the case without prejudice for lack of subject
matter jurisdiction. . . .

Order of August 29, 2005 at pp. 6-7, 2005 AMC ___ (W.D. Wash.).

The plaintiff didn't want to re-file the case in state court. Washington courts allow neither punitive damages nor jurisdiction in rem over vessels. And, given Mr. Gruver's checkered past, he couldn't be expected to fare too well with a jury in Grays Harbor County Superior Court.

EPILOGUE

Landgrebe v. Chaney was tried to the bench in May 2005. Judge Leighton apparently did not believe a single word that came out of Ted Landgrebe's mouth. The judge ruled against the plaintiff on all counts and entered a verdict of $603.90, the amount of wages stipulated to before trial as owing to Landgrebe. Judge Leighton made a specific Finding of Fact that no assault had occurred. Without an assault, punitive damages couldn't even be claimed and there was nothing to appeal.

The dismissal in Gruver v. Lesman has been appealed.

It remains to be seen whether the Ninth Circuit will follow the Fifth Circuit in limiting the rights of seamen. Will the Ninth Circuit embrace the reasoning of Judge Leighton and of Scarborough, or will it choose the better policy analysis of Judge Rothstein in Sugden and of Judge Bryan's mysterious dictum before dismissal in Gruver v. Lesman? Nothing is decided.

John Merriam was the second lawyer for the deckhands in both cases. The master and other defendants in Landgrebe v. Chaney were represented by Robert Kehoe of the Purse Seine Vessel Owners' Association. The master and other defendants in Gruver v. Lesman were represented by Philip Sanford of Holmes Weddle & Barcott.

Eagle John Merriam is a former merchant seaman, now a sole practitioner at Fishermen's Terminal representing seamen on wage and injury claims.

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