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United States District Court, S.D. New York

November 3, 2004.

STATE STREET BANK & TRUST CO. as Owner Trustee, HURON LEASING, LLC, U.S. SHIP MANAGEMENT, INC., MAERSK, INC., MAERSK LINE LIMITED d/b/a Maersk Sealand, and the MV SEA-LAND ACHIEVER, her engines, tackle, gear, appurtenances, etc., Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Walter and Dorothy Radut are suing U.S. Ship Management, Inc. ("USSM"), owner of the MV Sea-Land Achiever (the "Achiever"), on various claims arising out of injuries sustained by Walter Radut while working on the Achiever.*fn1 The Raduts allege both admiralty jurisdiction pursuant to 28 U.S.C. § 1333 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. USSM now moves for summary judgment on the Raduts' claim for unseaworthiness, arguing that because Walter Radut was not a seaman he is not entitled to pursue such a claim. Additionally, USSM moves to dismiss the Raduts' claims alleging non-pecuniary damages — specifically Walter Radut's claim for punitive damages, and Dorothy Radut's claim for loss of consortium.


  Walter Radut, a marine corrosion and coatings specialist, was retained by USSM in September 2000, as an independent contractor, to perform a "steel and coating survey" on three of USSM's vessels, beginning with the Achiever.*fn3 Radut boarded the Achiever in Houston and went to sea on September 29, 2000.*fn4 The work on the Achiever was to be carried out while the ship was at sea, in normal service. It was not unusual for Radut to do his work while ships were at sea.*fn5 Radut's job was to inspect the Achiever's tanks and other spaces for corrosion, and to prepare a specification for repairs to be carried out at a later time.*fn6

  Radut has half a century of experience in marine corrosion. He started his own company, W.H. Radut Associates, to carry out corrosion surveys, in 1983.*fn7 While on board the Achiever, although he relied on the crew to guide him to specific areas of the ship, he worked according to his own standards.*fn8 He testified that he was not required to follow orders, and that he could have refused to perform his duties if he believed that conditions were unsafe.*fn9 He did not sign seamen's articles, and was not a member of the vessel's crew; his designation aboard ship was as a "supernumerary."*fn10 However, he was provided with food and sleeping quarters alongside the ship's crew.*fn11

  On October 2, 2004, the Achiever arrived in Freeport, in the Bahamas. On the morning of October 3, at 7:00 a.m., the Achiever departed Freeport for Charleston, South Carolina, where Radut was to disembark.*fn12 At 11:30 a.m. on October 3, while the Achiever was on the high seas, Radut "fell through an unlighted and unguarded opening in the deck falling approximately 20 feet to a steel deck below, as a result of which he sustained multiple fractures. . . ."*fn13 Radut alleges that his accident was a result of the Achiever's unseaworthy condition, and of USSM's negligence.*fn14


  A. Summary Judgment

  Summary judgment is appropriate if the evidence of record "show[s] 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." Fed.R. Civ. P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn15 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn16

  The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn17 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn18 and it must "come forward with `specific facts showing that there is a genuine issue for trial.'"*fn19 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn20 However, "[w]hile all factual ambiguities must be resolved in favor of the nonmoving party, the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation."*fn21

  When one party has moved for summary judgment, a court may grant summary judgment in favor of the non-moving party "provided that party has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried."*fn22 "[I]t is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had [the non-moving party] made a cross-motion for summary judgment."*fn23 A court is not required to give notice of its intention to grant summary judgment sua sponte, because when one party has moved for summary judgment "the parties are . . . on notice that ultimate issues are before the court."*fn24 The practice of granting summary judgment sua sponte without notice is generally disfavored, but may be appropriate where it is clear that the moving party will not be procedurally prejudiced.*fn25


A party is procedurally prejudiced if it is surprised by the district court's action and that surprise results in that party's failure to present evidence in support of its position. . . . If, however, the party either cannot claim to have been surprised by the district court's action or if, notwithstanding its surprise, the party had no additional evidence to bring, it cannot plausibly argue that it was prejudiced by lack of notice. "The threat of procedural prejudice is greatly diminished if the court's sua sponte determination is based on issues raised by the moving party."*fn26
B. Motion to Dismiss
  A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief."*fn27 At the motion to dismiss stage, the issue "is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleading that a recovery is very remote and unlikely, but that is not the test."*fn28

  A complaint need not state the legal theory, facts, or elements underlying the claim except in certain instances. Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, "a complaint must include only `a short and plain statement of the claim showing that the pleader is entitled to relief.'"*fn29 The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of evidence which might be offered in support thereof."*fn30 When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor.*fn31


  A. The Claim For Unseaworthiness The duty of seaworthiness obligates a vessel owner "to furnish a vessel and appurtenances reasonably fit for their intended use. . . . [T]he doctrine of seaworthiness imposes a very strict standard of liability. While not quite a standard of strict liability, the warranty of seaworthiness is completely divorced from concepts of negligence."*fn32 "Unseaworthiness is a condition, and how that condition came into being — whether by negligence or otherwise — is quite irrelevant to the owner's liability for personal injuries resulting from it."*fn33

  An action for unseaworthiness may be brought by a plaintiff who is a "seaman" under the Jones Act.*fn34 Plaintiffs concede that Walter Radut is not a seaman within the meaning of the Jones Act.*fn35 However, under Seas Shipping Co. v. Sieracki, the duty of seaworthiness extends to those who are not "seamen" under the Jones Act, but who nonetheless are "doing a seaman's work and incurring a seaman's hazards."*fn36 Under Sieracki, the duty of seaworthiness "is not confined to seamen who perform the ship's service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement."*fn37 Sieracki thus creates a class of `Sieracki seamen.' Sieracki seamen have been held to include independent contractors temporarily aboard ships, e.g., carpenters,*fn38 river pilots,*fn39 and divers.*fn40 One need not be engaged in traditional maritime work to be a Sieracki seaman: the doctrine has been held to encompass a hairdresser employed by an independent contractor in a cruise ship's beauty salon.*fn41

  USSM moves for summary judgment on plaintiffs' unseaworthiness claim, contending that "the undisputed facts establish Radut was not a seaman," and therefore was not entitled to the warranty of seaworthiness.*fn42 USSM makes two arguments in support of this contention, neither of which is persuasive.

  First, USSM argues that "Radut was not subject to the rigid discipline that characterizes seamen's service."*fn43 USSM points to Radut's testimony that he could have refused to perform his duties if he believed conditions to be unsafe. This argument is unavailing. It is true that courts have often stressed that the maritime law's special solicitude for seamen is partly due to the "relation of dependence and submission" between seamen and their employers.*fn44 However, the question of whether and to what extent Radut was required to obey the orders of the Achiever's officers cannot be determinative of his status as a Sieracki seaman. The Sieracki doctrine was developed precisely for independent contractors who do the ship's work and are exposed to the ship's hazards, but are not members of the ship's crew or under the direction of its officers.

  Second, USSM argues that Radut "was not performing seamen's work."*fn45 USSM maintains that the record shows that Radut's work was highly specialized, and could not be performed by regular seamen, and that Radut provided his own equipment for his work. This argument is likewise unavailing. As noted above, courts have repeatedly found that independent contractors performing specialized services beyond the training of regular seamen, such as hairdressers and river pilots, are Sieracki seamen. Moreover, evidence submitted by the plaintiffs shows that seamen are trained in detecting and dealing with "the great marine problem, rust."*fn46 Radut clearly had greater expertise on the subject than the ordinary seaman. However, it does not appear, when all inferences are drawn in plaintiffs' favor, that his work was wholly different in kind from that which might be performed by regular members of a ship's crew.

  For the foregoing reasons, USSM's motion for summary judgment must be denied. Plaintiffs have not moved for summary judgment on this issue. However, this is an appropriate case for the Court to consider plaintiffs' opposition to USSM's motion for summary judgment as a cross-motion for summary judgment. Having moved for summary judgment on the issue of Radut's seaman status, USSM was on notice that the ultimate issue of Radut's status was before the Court. USSM has had a full and fair opportunity to come forward with evidence establishing that Radut was not a seaman.

  The record, even when viewed in the light most favorable to USSM, clearly establishes that Radut was a Sieracki seaman. Even if the Court assumes the truth of USSM's assertions that Radut's work could not have been performed by an ordinary seaman, and that he was not required to obey the orders of the Achiever's officers, these factors are not determinative of Sieracki seaman status. The undisputed facts establish Radut's status as a Sieracki seaman: Radut worked, slept and ate alongside the crew; he went to sea with the ship;*fn47 he was exposed to the same hazards as the crew; and, most importantly, he was performing the ship's service, at the owner's request. Accordingly, the Court finds that Walter Radut was a Sieracki seaman. Radut is therefore entitled to bring an action for unseaworthiness.

  B. The Claims for Non-Pecuniary Damages

  USSM moves to dismiss Walter Radut's claim for punitive damages, and Dorothy Radut's claim for loss of consortium, on the ground that the maritime law does not permit claims for non-pecuniary damages. Plaintiffs concede that they could not recover such damages if the Jones Act were applicable to this case, but argue that because the Jones Act does not apply, they may recover non-pecuniary damages under the general maritime law. For the following reasons, USSM's motion is granted.

  Although two maritime statutes — the Jones Act, and the Death on the High Seas Act, 46 U.S.C. § 761 ("DOHSA") — do not permit recovery for non-pecuniary damages, such recovery was traditionally possible in claims brought under the general maritime law.*fn48 In 1990, however, the Supreme Court's decision in Miles v. Apex Marine Corp.,*fn49 called this traditional position into question. In Miles, the mother of a deceased Jones Act seaman sought recovery for loss of society, in a claim under general maritime law, based on unseaworthiness. The Court rejected this claim.

  Noting that such non-pecuniary relief was not available in a claim under either DOHSA or the Jones Act, the Miles Court held that "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 resulting from negligence."*fn50 The Court recognized the value of uniformity for claims arising under maritime law, and stated that it was "restor[ing] a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law."*fn51

  A number of courts read Miles as "endorsing a uniform maritime law" which rejects all claims for non-pecuniary damages, whether brought by Jones Act seamen or not.*fn52 The Second Circuit's reading of Miles was somewhat unclear.*fn53 Before it could become clear, the Supreme Court further complicated the issue in Yamaha Motor Corp., U.S.A. v. Calhoun,*fn54 in which the parents of a child killed in a jet ski accident in territorial waters sought non-pecuniary damages, under state law, from the jet ski manufacturer. The Court rejected the manufacturer's argument that the principle of uniformity behind Miles required that the general maritime law should displace the state law and preclude the application of state law remedies.

  The Yamaha Court noted that the principle of uniformity had arisen in Moragne v. States Marine Lines, Inc.,*fn55 a case which "centered on the extension of relief, not the contraction of remedies."*fn56 In Moragne, the Court held that "`it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.'"*fn57 The Yamaha Court read Miles as holding that "when Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is . . . no cause for enlargement of the damages statutorily provided."*fn58 However, because "Congress has not prescribed remedies for the wrongful deaths of nonseafarers in territorial waters," the Court concluded that there was no basis for displacing state law remedies in that instance.*fn59

  Courts across the country have split concerning the proper reading of Miles and Yamaha. Some courts continue to read Miles broadly, while limiting Yamaha to its particular facts, while others do the reverse. Within this district, two courts following Yamaha, have permitted claims for non-pecuniary damages under general maritime law, where no federal statute applies, and applicable state law exists to supplement the remedies available under maritime law.*fn60 In Friedman v. Cunard Line, however, Judge Charles Haight denied a claim for loss of society brought under state law by the spouse of a passenger injured on a cruise ship. Judge Haight concluded that, notwithstanding Yamaha, the principle of uniformity stated in Miles militated against recognizing a right to non-pecuniary damages under maritime law, at least "where the injury occurred on the high seas, thereby eliminating any policy reason for applying the law of a particular state," and possibly in all cases.*fn61 Judge Haight noted that "[i]t would be anomalous to grant the families of passengers on board a cruise ship a form of damages which the law denies to the families of seamen on board the same ship at the same time and injured in the same accident."*fn62 Similarly, in O'Hara v. Celebrity Cruises,*fn63 Judge Jed Rakoff refused, in a case brought under the general maritime law by an injured passenger, to permit an arguably applicable state law punitive damages remedy to supplement the general maritime law. Judge Rakoff found that punitive damages were "antagonis[tic]" to the uniformity of the federal maritime law.*fn64

  In In re Horizon, by contrast, Magistrate Judge James C. Francis permitted a claim under the general maritime law for punitive damages by injured cruise ship passengers. Magistrate Judge Francis read Yamaha as holding that the principle of uniformity announced in Moragne and Miles does not sweep away traditional remedies, whether under a particular state's law or the general maritime law, unless Congress has provided a "comprehensive tort recovery scheme for a class of maritime actions."*fn65 Having found that neither the Jones Act nor DOHSA, or any other federal statute, applied to the case, Magistrate Judge Francis held that punitive damages were therefore available under the general maritime law. He found the authority for non-pecuniary damages under the traditional general maritime law, rather than any specific state law.*fn66

  In order to resolve the present motion, the Court need not choose between Friedman and In re Horizon. Plaintiffs claim that because Radut is a Sieracki seaman, he is entitled to bring an action for unseaworthiness. As a result, plaintiffs assert they are entitled to the benefit of the `comprehensive tort recovery scheme' provided for seamen. It would be truly anomalous to allow plaintiffs to avail themselves of a cause of action available only to seamen, while claiming a measure of damages available only to non-seamen, merely because Radut, as a Sieracki seaman, falls under a judge-made extension of the Jones Act's scheme, rather than under the Jones Act itself. Miles made particular note of the anomaly of allowing damages greater than those allowed to seamen "in an action founded on strict liability" (i.e., on the seaman's remedy of unseaworthiness).*fn67 Consequently, plaintiffs are entitled to pursue a claim for unseaworthiness, but they may not recover non-pecuniary damages from a shipowner or employer defendant, any more than they could if Radut were covered by the Jones Act.*fn68 USSM's motion to dismiss plaintiffs' claims for punitive damages and loss of consortium is therefore granted.


  For the foregoing reasons, USSM's motion for summary judgment is denied. The Court concludes, as a matter of law, that Radut was a Sieracki seaman. USSM's motion to dismiss plaintiffs' non-pecuniary claims is granted. The Clerk is directed to close this motion [# 12 on the docket sheet]. A conference is scheduled for November 8, 2004 at 4:30 p.m. SO ORDERED.

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