December 07, 2011
Jane Doe (a minor) v. Oceania Cruises, Inc.
Reply Brief in Motion to Amend to Add Punitive Damages
In this reply brief, attorney Carlos Llinas advocates on behalf of a minor sexually assaulted on a cruise ship. Due to the outrageous nature of the case and recent United States Supreme Court precedent, Mr. Llinas asked the court to allow the Plaintiff to seek punitive damages. The Plaintiff’s request was later granted, allowing the Plaintiff to seek punitive damages against the Defendant in this case.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-XXXXX-CIV-King/Bandstra
JANE DOE, as mother
And natural guardian of JANE DOE 2, a minor,
OCEANIA CRUISES, INC.,
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO AMEND COMPLAINT BY INTERLINEATION TO MORE SPECIFICALLY PLEAD PRAYER FOR PUNITIVE DAMAGES
Plaintiff, by and through undersigned counsel, files her Reply in Support of her Motion to Amend the Complaint by Interlineation to More Specifically Plead Prayer for Puntive Damages. In support thereof, Plaintiff alleges as follows:
I. Pursuant to Binding United States Supreme Court Precedent in Atlantic Sounding Co., Inc., v. Townsend, 129 S. Ct. 2661 (2009), Punitive Damages are Available in All General Maritime Actions.
A. This matter asserts causes of action under the general maritime law of the United States.
On or about October 4, 2009, JANE DOE 2 was a paying passenger with her mother JANE DOE 1 aboard Defendant’s vessel, Regatta. D.E.1, [ 9. On the subject date, JANE, then 13 years old, was sexually assaulted and raped by one of Defendant’s crew members, a 29 year-old waiter. Id., [ 10].
Defendant’s conduct, allowing the brutal sexual assault of a minor passenger was so egregious, that the Plaintiff should be allowed to claim punitive damages.
Plaintiff filed suit against Defendant Oceania Cruises, Inc. (hereinafter “Oceania”) on December 3, 2010. Plaintiff’s causes of action include: Negligence for Sexual Assault/Rape, Vicarious Liability, and False Imprisonment for Rape/Sexual Assault.
In its Response [D.E. 53], Oceania does not dispute that all three of these claims are maritime causes of action under the general maritime law of the United States. In fact, in Doe v. Celebrity Cruises, 394 F. 3d 891 (11th Cir. 2004), the Eleventh Circuit reaffirmed the longstanding notion that under general maritime law a ship-owner “owe[s] a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their cruise passengers.” Id., at 913. Moreover, the ship-owner is strictly liable for crew member assaults on their passengers during the cruise, including sexual batteries. See Doe, at 918: “We readily conclude that a sexual battery by a crewmember is within the class of crewmember assaults for which a ship, as a common carrier, is strictly liable to a passenger.”
Thus, it is undisputed that this is an action under general maritime law.
B. In Atlantic Sounding the Supreme Court made clear that punitive damages are available in all actions under general maritime law. Because Plaintiff’s case involves an action under general maritime law, punitive damages are available to her.
There is a long history of awarding punitive damages in maritime claims. In 1818, Justice Story in The Amiable Nancy, 16 U.S. (3 Wheat.) 546 (1818), recognized that punitive damages may be awarded in cases of gross, wanton, and outrageous conduct. Moreover, as part of this history, punitive damages have been made available in general maritime law personal injury cases. See In re Marine Sulphur Queen, 460 F. 2d 89 (2d Cir. 1972); Complaint of Merry Shipping, Inc., 650 F. 2d 622 (5th Cir. 1981).
In recognition of this country’s long-standing tradition of allowing punitive damages in maritime claims, in Atlantic Sounding Co., Inc., v. Townsend, 129 S. Ct. 2661 (2009) the United States Supreme Court, considering an Eleventh Circuit decision, unequivocally held: “punitive damages have long been available at common law[, and] the common law tradition of punitive damages extends to maritime claims.” See Atlantic Sounding, at p. 2565 – 2569:
Historically, punitive damages have been available and awarded in general maritime actions … Punitive damages have long been an available remedy at common law for wanton, willful or outrageous conduct. Under English law during the colonial era, juries were accorded broad discretion to award damages as they saw fit … includ[ing] the authority to award punitive damages …. American courts have likewise permitted punitive damages in appropriate cases since at least 1784. … By the middle of the 19th century, “punitive damages were undoubtedly an established part of the American common law of torts [and] no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of such damages or their amount.”
… The general rule that punitive damages were available at common law extended to claims arising under federal maritime law. One of this Court’s first cases indicating that punitive damages were available involved an action for maritime trespass. See The Amiable Nancy, 16 U.S. (3 Wheat.) 546 (1818)
… The lower federal courts followed suit, finding punitive damages were available in maritime actions for tortuous acts of a particularly egregious nature … In short … “maritime jurisprudence was replete with judicial statements approving punitive damages, especially on behalf of passengers and seamen.
… The settled legal principles discussed above establish three central points central to resolving this case. First, punitive damages have long been available at common law. Second, the common law tradition of punitive damages extends to maritime claims.
Id., (emphasis added).
C. In light of Atlantic Sounding, the Armtrack case is inapposite and is no longer the rule of decision in the Eleventh Circuit.
In its Response [D.E. 53], Oceania relies in In re Armtrack Sunset Ltd. Train Crash, 121 F. 3d 1421, 1429 (11th Cir. 1997), for the proposition that under that case “punitive damages are not authorized in personal injury cases brought under general maritime law.” Contrary to Oceania’s assertions, however, Armtrack is inapposite.
Following the Supreme Court’s holding in Atlantic Sounding, this Honorable Court in the matter of Lobegeiger v. Celebrity Cruises, Inc., 2011 U.S. Dist. LEXIS 93933 (S.D. Fla. Aug. 23, 2011) (Altonaga, J.), held that, after Atlantic Sounding a passenger can recover punitive damages for personal injury under general maritime law. See Lobegeiger at p. 9 – 10:
The opinion in Atlantic Sounding II indicates punitive damages are available in all actions under general maritime law unless specifically limited by Congress. Justice Thomas, writing for the majority explained, “[t]he general rule that punitive damages were available at common law extended to claims arising under federal maritime law.”
… Here, like in Atlantic Sounding, Congress has not enacted any legislation to limit a passenger’s right to recover punitive damages in a personal injury action under general maritime law.
… Accordingly, a plaintiff may recover punitive damages under general maritime law, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s “wanton, willful, or outrageous conduct.”
Id., (emphasis added).
The Court also held that “Armtrack, to the extent that it foreclosed a plaintiff’s right to seek punitive damages in a personal injury case under general maritime law, is clearly inconsistent with Atlantic Sounding and is no longer the correct rule of decision in the Eleventh Circuit.” Id., (emphasis added). At footnote 7 of the opinion the Court explained the significance of that inconsistency as follows:
In Amtrack, the Eleventh Circuit announced “[u]nless or until the United States Supreme Court should decide to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for pecuniary damages such as … punitive damages.” 121 F. 3d at 1429. Thereafter, in Atlantic Sounding, the Supreme Court decided that punitive damages did not need to be added to the remedies available in admiralty, but instead recognized that punitive damages have traditionally been, and still remain, available as a remedy under general maritime law. Therefore, according to the standard by which Armtrack asked that it be judged, it is no longer good law.
Id., (emphasis added).
Thus, Defendant’s reliance on Amtrack is misplaced. Armtrack is no longer good law because it is clearly inconsistent with the Supreme Court’s holding in Atlantic Sounding. Accordingly, a plaintiff may recover punitive damages under general maritime law, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s “wanton, willful, or outrageous conduct.” Lobegeiger, at 10.
Wherefore, the Plaintiff moves this Court for an Order permitting the Plaintiff to amend by interlineation Plaintiff’s Complaint and Demand for Jury Trial in the following particulars:
By inserting at the conclusion of each of the three Causes of Action within the Plaintiff’s Complaint after the words “WHEREFORE, Plaintiff demands judgment for all damages” the following words: “,including punitive damages,” before the remaining words “recoverable under the law against the Defendant and demands trial by jury”; all three Count clauses under Causes of Action of the complaint then reading as follows: “WHEREFORE, Plaintiff demands judgment for all damages, including punitive damages, recoverable under the law against the Defendant and demands trial by jury.
 Plaintiff submits that its prayer for “all damages recoverable under the law” already includes punitive damages; however, the Plaintiff moves this Court to allow the proposed amendment by interlineation, in an abundance of caution.
 To recover punitive damages, the claimant must show deliberate wrongdoing – willful, wanton, grossly negligent, or unconscionable conduct so as to show a callous disregard for the rights of others. Thomas J. Schoenbaum, Admiralty and Maritime Law, Fourth Edition, p. 170.
Thus, the issue of whether Oceania’s conduct was willful, wanton, grossly negligent or unconscionable, involves questions of fact for the jury.