to decide whether the nexus test would be satisfied if the
product were not affixed to the vessel; if, for example,
passengers became ill from tainted food served on a cruise. The
whirlpool spa filter was a physical part of the Horizon, and
there is admiralty jurisdiction over claims that it was
B. Punitive Damages Under Admiralty Law
Although the Essef defendants, and, to some extent, Celebrity,
have thus prevailed in their contention that general maritime law
applies to the claims now at issue, their victory is a Pyrrhic
one. That is because, contrary to the second prong of their
argument, punitive damages are available in admiralty cases.*fn2
The history of punitive damages in admiralty is critical to
this analysis. The earliest reported case in which such damages
were awarded by a court in this country is Chamberlain v.
Chandler, 5 F. Cas. 413 (C.C.D.Mass. 1823) (No. 2,575), in which
passengers sued the master of a vessel for his conduct toward
them on a voyage from Hawaii to Boston. Justice Story, sitting on
circuit, excoriated the defendant for "malicious tyranny" and for
"habitual obscenity, harsh threats, and immodest conduct" and
awarded the plaintiffs $400 in damages. Id. at 414-15. As one
scholar has noted, "[I]t is unsurprising that this earliest
reported maritime award of punitive damages occurred in behalf of
passengers. From very early times the common law had held that
the carrier-passenger relationship entailed special solicitude
for passengers and required the highest degree of care from
carriers." David W. Robertson, Punitive Damages in American
Maritime Law, 28 J. Mar. L. & Com. 73, 90 n. 79 (1997) (citation
omitted). Numerous other early maritime cases either granted
punitive damages to passengers or at least indicated that they
were available under proper circumstances. See, e.g., McGuire v.
The Golden Gate, 16 F. Cas. 141, 142-43 (C.C.N.D.Cal. 1856) (No.
8,815) (reducing award against vessel owner holding it not
responsible for assault on passengers by crew, but noting, "[i]n
an action against the perpetrator of the wrong, the aggrieved
party would be entitled to recover not only actual damages but
exemplary, — such as would vindicate his wrongs, and teach the
tort feasor the necessity of reform"); Gallagher v. The Yankee,
9 F. Cas. 1091, 1091, 1093 (N.D.Cal.) (No. 5,196), aff'd, 30 F.
Cas. 781 (C.C.N.D.Cal. 1859) (No. 18,124) (where vessel assisted
in "banishment" of plaintiff without proper trial, court
characterized conduct as "a marine tort of a very grave
character" and held that "for a tort of this kind — high-handed
and deliberate . . . the court should award exemplary damages");
Morrison v. The John L. Stephens, 17 F. Cas. 838, 839-40
(N.D.Cal. 1861) (No. 9,847) (punitive damages for breach of
contract where carrier sold passage to stranger in state room of
plaintiff and his wife).
While punitive damages were available in cases brought by
aggrieved passengers, they were not limited to such
circumstances. Punitive damages could be awarded in cases brought
by one vessel
owner against another for collisions, see Ralston v. The State
Rights, 20 F. Cas. 201, 209-10 (E.D.Pa. 1836) (No. 11,540)
(deliberate ramming of vessel by its competitor); Smurna,
Leipsic & Philad's Steamboat Co. v. Whilldin, 4 Harr. 228, 233
(Del.Super1845) (same), in cases involving the plunder of vessels
at sea, see The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 558, 4
L.Ed. 456 (1818), in vessel-seizure cases, see The Apollon, 22
U.S. (9 Wheat.) 362, 374, 6 L.Ed. 111 (1824); Gelston v. Hoyt,
16 U.S. (3 Wheat.) 246, 325, 4 L.Ed. 381 (1818) (vindictive
damages waived by concession that defendants acted without
malice), and in prize cases, see The Palmyra, 25 U.S. (12
Wheat.) 1, 15, 6 L.Ed. 531 (1827); La Amistad De Rues, 18 U.S.
(5 Wheat.) 385, 389, 5 L.Ed. 115 (1820). Finally, punitive
damages were available to seamen who were the victims of wanton
conduct. See The Ludlow, 280 F. 162, 163 (N.D.Fla. 1922)
(punitive damages denied because conduct of master not ratified
by vessel owners); Pacific Packing & Navigation Co. v.
Fielding, 136 F. 577, 580 (9th Cir. 1905) (punitive damages
award reversed because shipowner did not ratify tortious conduct,
but court noted that juries "are often warranted in giving
vindictive damages as a punishment inflicted for outrageous
conduct") (internal quotation omitted).
Thus, "[a]lthough rarely imposed, punitive damages have long
been recognized as an available remedy in general maritime
actions where defendant's intentional or wanton and reckless
conduct amounted to a conscious disregard of the rights of
others." CEH, Inc. v. F/V SEAFARER (ON 675048), 70 F.3d 694,
699 (1st Cir. 1995) (citations omitted). "Prior to 1990, under
some circumstances, courts had permitted punitive damage awards
for torts committed under federal admiralty jurisdiction."
Cochran v. A/H Battery Associates, 909 F. Supp. 911, 921
(S.D.N.Y. 1995) (citing In re Marine Sulphur Queen,
460 F.2d 89, 105 (2d Cir. 1972)).
However, in 1990 the legal seascape changed when the Supreme
Court decided Miles v. Apex Marine Corp., 498 U.S. 19, 111
S.Ct. 317, 112 L.Ed.2d 275 (1990). In Miles, the mother of a
deceased seaman sought damages under general maritime law for
loss of society. Id. at 21, 111 S.Ct. 317. In analyzing this
claim, the Court first determined that non-pecuniary relief was
not authorized for the survivor of a seaman under either the
Death on the High Seas Act ("DOHSA"), 46 U.S.C. § 761, or the
Jones Act, 46 U.S.C. § 688. See Miles, 498 U.S. at 31-33, 111
S.Ct. 317. It then went on to hold that "[i]t 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
32-33, 111 S.Ct. 317. The Court went on to note the value of a
uniform rule for remedies for claims arising on the high seas and
territorial waters and observed that it was restoring uniformity
for "all actions for the wrongful death of a seaman, whether
under DOHSA, the Jones Act, or general maritime law." Id. at
33, 111 S.Ct. 317.
Then in Wahlstrom v. Kawasaki Heavy Industries, Ltd.,
4 F.3d 1084, 1094 (2d Cir. 1993), the Second Circuit, in dicta,
construed Miles as supporting the conclusion that punitive
damages should not be allowed under the general maritime law.
That case arose in the context of injury not to a Jones Act
seaman, but to the operator of a pleasure craft. Id. at 1086.
Subsequently, in Preston v. Frantz, 11 F.3d 357, 358 (2d Cir.
1993), the Second Circuit rejected an argument that the reasoning
of Miles was limited to Jones Act seamen and that Wahlstrom
was therefore wrongly decided. The court stated that "`in view of
the special regard accorded by admiralty to seamen,' Wahlstrom,
4 F.3d at 1092, it would be anomalous to allow a nonseaman's
estate to recover for future lost wages when a seaman's estate,
under Miles, would not be entitled to such recovery."
Preston, 11 F.3d at 358. Thus, Wahlstrom and Preston
suggested that once a remedy had been prescribed by Congress for
seamen, two consequences followed: (1) nonseamen would no longer
be entitled to relief they had previously enjoyed under general
maritime law, and (2) state law remedies would not be permitted
to supplement the congressionally-dictated remedies.
The reasoning of these cases was not universally endorsed. In
CEH, 70 F.3d at 700, the First Circuit acknowledged the force
of the uniformity principle enunciated in Miles. However, the
court went on to reason as follows:
Though these principles of uniformity defy precise
limits, we think it clear that the Supreme Court had
in mind the need to defer to statutory enactments
addressing like issues. As the Court reasoned: "In
this era, an admiralty court should look primarily to
these legislative enactments for policy guidance . .
. [and] must be vigilant not to overstep the
well-considered boundaries imposed by federal
legislation." Miles, 498 U.S. at 27, 111 S.Ct. 317.
Miles, therefore, does not, as defendants contend,
signify a call for universal uniformity of maritime
tort remedy, but rather emphasizes the importance of
uniformity in the face of applicable legislation.
Id. Since, in CEH, the claim concerned the destruction of
property at sea — a subject that Congress had not addressed — the
court concluded that punitive damages were not barred.
If that were the end of the story, the conflict between CEH
on one hand and Wahlstrom and Preston on the other would be
easily resolved in this case: the latter cases control in this
circuit. However, Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578, sheds new light on
Miles, and, by extension, on Wahlstrom and Preston. In
Yamaha, the parents of a child killed in a jet ski accident in
territorial waters sought damages from the jet ski manufacturer
under state law. Id. at 201-02. However, the manufacturer,
Yamaha, argued that in the interest of uniformity, general
maritime law should occupy the field and oust any remedies not
available in admiralty. Id. at 209-10, 116 S.Ct. 619. The Court
rejected this contention. It noted that the principle of
uniformity had arisen in Moragne v. States Marine Lines, Inc.,
398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), a case which
"centered on the extension of relief, not the contraction of
remedies." Yamaha, 516 U.S. at 213, 116 S.Ct. 619. The Court
then went on to cite Miles, 498 U.S. at 30-36, 111 S.Ct. 317,
as holding that "[w]hen Congress has prescribed a comprehensive
tort recovery regime to be uniformly applied, there is, we have
generally recognized, no cause for enlargement of the damages
statutorily provided." Yamaha, 516 U.S. at 215, 116 S.Ct. 619.
But, observing that "Congress has not prescribed remedies for the
wrongful deaths of nonseafarers in territorial waters," id.
(citing Miles, 498 U.S. at 31, 111 S.Ct. 317), the Court
concluded that there was no basis for displacing state law
remedies in that instance. Id. at 215-16, 116 S.Ct. 619.
Since Yamaha, courts in this district have split concerning
its impact on Wahlstrom and the availability of punitive
damages in admiralty actions. In O'Hara v. Celebrity Cruises,
Inc., 979 F. Supp. 254, 256 (S.D.N.Y. 1997), the Honorable Jed S.
Rakoff acknowledged that Yamaha held that "otherwise applicable
state law may supplement the measure of damages available under
maritime law." But he then went on to deny punitive damages to a
passenger assaulted by members of a ship's crew, reasoning as
The thrust of Yamaha is to argue that
considerations of uniformity in federal maritime
wrongful death actions only require that standards of
liability be exclusively determined by federal
maritime law and that, once such liability has been
shown, there is no antagonism to
such a policy in supplementing federal remedies with
those available under otherwise applicable state law.
But just such an antagonism would be created if such
supplementation could include punitive damages. For,
as noted, punitive damages are distinct from all
other kinds of damages in that they serve, not to
compensate victims, but to punish and deter
malfeasors. Restatement 2d of Torts, § 908(1)
(1979). While a civil jury's prerogative to award
punitive damages may have common law antecedents, it
should not survive in those kinds of cases where the
relevant sovereign has clearly indicated an intent
not to permit civil juries in comparable cases to
punish the applicable conduct with such
Here, the relevant sovereign, the United States,
having constitutional jurisdiction over cases arising
in navigable waters, see Article III, sec. 2, has
determined, in the comparable situations arising
under the Jones Act and DOHSA, that no such
quasi-criminal sanctions should be imposed by a civil
The Honorable Allen G. Schwartz reached a different conclusion
in an unpublished opinion in Taylor v. Costa Cruises, Inc., No.
90 Civ. 2630 (S.D.N.Y. March 13, 1996). The facts were similar to
those in O'Hara: a passenger sought damages from a cruise line
for a rape committed by a crew member. Judge Schwartz noted the
precedent of Wahlstrom, but found that Yamaha was now
controlling. Yamaha taught that unless Congress prescribed a
comprehensive tort recovery scheme for a class of maritime
actions, admiralty remedies could be supplemental by those
available under state law. Since Congress had not legislated the
rights and remedies available to passengers, Judge Schwartz
concluded that state law punitive damages were not preempted.
Similarly, in Gravatt v. City of New York, 53 F. Supp.2d 388,
427-29 (S.D.N.Y. 1999), the Honorable Robert W. Sweet found that
a dock worker could recover punitive damages in a case brought
under general maritime law. He analyzed the progression from
Miles to Yamaha as follows:
In Miles, the Court held, inter alia, that damages
recoverable in an action for the wrongful death of a
seaman do not include loss of society. See Miles,
498 U.S. at 37, 111 S.Ct. 317. In reaching this
conclusion, the Court articulated principles of
uniformity relevant to wrongful death actions, and
more generally, to maritime tort law, which have
moved subsequent courts to limit recovery in other
similar contexts. See, e.g., CEH, Inc. v. FV
Seafarer, 148 F.R.D. 469, 472 (D.R.I. 1993)
(collecting cases). The Supreme Court's decision in
Miles, however, does not enunciate an absolute bar
to recovery of punitive damages in all general
maritime cases. Indeed, Miles does not signify a
case for "universal uniformity of maritime tort
remedy," but rather "emphasizes the importance of
uniformity in the face of applicable legislation."
CEH, Inc. v. FV Seafarer, 70 F.3d at 700. The
concern expressed in Miles was not with respect to
nonpecuniary damages in maritime cases in general,
but with inconsistency with statutory law; "[i]n this
era, an admiralty court should look primarily to
these legislative enactments for policy guidance . .
. [and] must be vigilant not to overstep the
well-considered boundaries imposed by federal
legislation." Miles, 498 U.S. at 27, 111 S.Ct. 317.
As the Supreme Court later held in Yamaha Motor
Corp. U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct.
619, 133 L.Ed.2d 578 (1996), "[w]hen Congress has
prescribed a comprehensive tort recovery regime to be
uniformly applied, there is no cause for enlargement
of the damages statutorily provided." 516 U.S. at
215, 116 S.Ct. 619.
Id. at 395. Then Judge Sweet found that nothing about the
Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. § 905(b), precluded an award
of punitive damages in admiralty. Id. at 428-29.
Although it is a close question, the reasoning in Taylor and
Gravatt is more persuasive than the rationale in O'Hara.
Miles and Yamaha taken together counsel that where Congress
has legislated with respect to a class of maritime cases, relief
under state law as well as traditional admiralty remedies may be
displaced in the interests of uniformity. However, Yamaha makes
clear that this uniformity principle does not sweep away the
common law unless Congress has spoken. Just as in Yamaha,
where "Congress has not prescribed remedies for the wrongful
deaths of nonseafarers in territorial waters," 516 U.S. at 215,
116 S.Ct. 619, so in this case Congress has passed no law
providing for claims by injured passengers or dictating the scope
of relief they are entitled to.
To be sure, the Jones Act defines the remedies available to
seamen who are injured or killed on the high seas. Those remedies
are limited to pecuniary damages and do not include exemplary
damages. Miles, 498 U.S. at 32, 111 S.Ct. 317. But in passing
this legislation, Congress was expanding the relief available to
maritime workers, see Yamaha, 516 U.S. at 213, 116 S.Ct. 619;
it gave no hint that it was implicitly repealing the remedies
that had traditionally been available to nonseamen.
Similarly, DOHSA provides a cause of action for the survivors
of both seamen and nonseamen who are killed on the high seas. It,
too, provides only for pecuniary damages and therefore precludes
the award of punitive damages. See 46 U.S.C.App. § 762;
Horsley v. Mobil Oil Corp., 15 F.3d 200, 202 (1st Cir. 1994).
However, DOHSA was intended to be remedial: it "provided a remedy
for wrongful death at sea where none had clearly existed before."
In re: Air Crash Off Long Island, New York on July 17, 1996,
209 F.3d 200, 203 (2d Cir. 2000). Initially, the drafters of the
bill sought to "achieve uniformity in maritime remedies,
displacing the patchwork of state statutory remedies that raised
difficult choice of law issues." Id. at 204 (citation omitted).
But in the face of objections, the drafters abandoned their
attempt to craft a uniform remedy and instead submitted a new
bill that "`does not interfere with the law in force. . . . It
simply covers waters that are not now covered.'" Id. (quoting
Right of Action Death on the High Seas: Hearing Before the
Committee on the Judiciary, Subcommittee No. 2, 64th Cong., 17
(1916)). In this case the waters have long been covered since, as
discussed above, passengers have traditionally been able to seek
punitive damages for personal injury claims. Thus, DOHSA did not
displace such remedies.
These conclusions undoubtedly create anomalies. A Jones Act
seaman would be denied exemplary damages that a nonseaman might
receive on the basis of the same conduct. See Adler v. Royal
Cruise Line, Ltd., No. C 95-1304, 1996 WL 438799, at *9
(N.D.Cal. March 20, 1996). Likewise, a tortfeasor might be
subject to punitive damages where the victim is injured but not
where he dies. See Chan v. Society Expeditions, Inc.,
39 F.3d 1398, 1408 (9th Cir. 1994). But these anomalies are an artifact
of the interaction between general maritime law and the
succession of specific congressional enactments. Their existence
does not justify using legislation intended to expand remedies
for one set of plaintiffs as a means for contracting remedies
otherwise available to a different group of plaintiffs whose
circumstances have not been addressed by Congress. Yamaha now
makes it clear that principles of uniformity do not reach so
broadly. Therefore, the punitive damages claims previously pled
will not be stricken.
C. Amendment of the Complaints
The question remains whether the Passenger Plaintiffs who had
not originally asserted claims for punitive damages may do so
A motion to amend is governed by Rule 15(a) of the Federal
Rules of Civil Procedure, which states that leave to amend "shall
be freely given when justice so requires." Fed.R.Civ.P. 15(a);
see Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990).
Notwithstanding the liberality of the general rule, "it is within
the sound discretion of the court whether to grant leave to
amend[,]" John Hancock Mutual Life Insurance Co. v. Amerford
International Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citation
omitted), and for the proper reasons, a court may deny permission
to amend in whole or in part. See H.L. Hayden Co. v. Siemens
Medical Systems, Inc., 112 F.R.D. 417, 419 (S.D.N.Y. 1986)
(citing Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 330-32, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971)). In
discussing the use of this discretion, the Supreme Court has
In the absence of any apparent or declared reason —
such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment,
etc. — the leave sought should . . . be "freely
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
Celebrity and the Essef Defendants argued both that the
proposed amendment would be futile and that the Passenger
Plaintiffs unduly delayed in seeking to add their punitive
damages claims. In light of my determinations that punitive
damages are available under general maritime law and that that
law applies to the personal injury claims in this case, the
futility argument is no longer viable.
On the other hand, the Passenger Plaintiffs who are now seeking
to amend were dilatory in doing so. As they acknowledge, the
principal facts on which they base their claim for punitive
damages came to light in depositions in March and April 1998 and
were confirmed through documents produced in June 1998.
(Affidavit of John P. James dated Jan. 14, 2000 ("James Aff.") ¶¶
14, 16). Yet it was not until a conference on December 16, 1999
that counsel raised with the Court the prospect of moving to
amend the complaints. (James Aff. ¶ 25).
Nevertheless, delay alone without some showing of bad faith or
prejudice is not a sufficient basis for denying leave to amend.
See Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir.
1993); Richardson Greenshields Securities, Inc. v. Lau,
825 F.2d 647, 653 n. 6 (2d Cir. 1987); State Teachers Retirement
Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1987). There
has been no suggestion of bad faith here. Moreover, because of
the nature of punitive damages and the format in which these
cases are being tried, there can be no prejudice. The purposes of
punitive damages are to punish the defendant for wanton or
reckless conduct and to deter the defendant and others from
engaging in similar conduct in the future. See Smith v. Wade,
461 U.S. 30, 50-51, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Lee
v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996). Therefore, in
theory at least, the magnitude of any punitive damage award
should not vary based on the number of plaintiffs asserting a
claim. In practice, the Passenger Plaintiffs here have agreed to
share any punitive damage award made in the bellwether case.
Thus, the defendants' maximum exposure is defined by any punitive
damages recovered by the Silivanch plaintiffs who have already
sought such a remedy in their complaint. Permitting the other
plaintiffs to seek punitive damages will reduce the Silivanchs'
share of such an award but will not increase the total.
Accordingly, the defendants are not prejudiced and the Passenger
Plaintiffs are entitled to amend their complaints.
For the reasons set forth above, the motion of the Essef
Defendants to strike
the claims for punitive damages asserted against them is denied.
The Passenger Plaintiffs' motions to amend are granted, and the
respective complaints are deemed amended to include claims for