Kasprik v. United States

           United States Court of Appeals, Eleventh Circuit.

                                 No. 95-4509.

 Andrew KASPRIK, Nancy Kasprik, his wife, Plaintiffs-Appellants,

                                       v.

 UNITED STATES of America, U.S. Department of the Navy, Military
Sealift Command, Defendants,

   OMI Ship Management Corp., OMI Corp., Defendants-Appellees.

                               July 9, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-6642-CIV-WJZ), William J. Zloch,
Judge.

Before EDMONDSON,      Circuit      Judge,   and   FAY   and    GIBSON*,   Senior
Circuit Judges.

     FAY, Senior Circuit Judge:

     Mr. and Mrs. Andrew Kasprik appeal the District Court's Final

Order of Dismissal as to defendants-appellees, OMI Ship Management

Corporation and OMI Corporation.            We AFFIRM.

                        I. STATEMENT OF THE CASE

     This action arises from an incident which occurred while

Andrew Kasprik was performing his duties as a second assistant

engineer aboard the U.S.S. Cape Charles, a public vessel owned by

the United States and operated, pursuant to contract, by OMI Ship

Management Corporation and OMI Corporation.              Kasprik was employed

by the United States as a crew member of a vessel owned by the

United States through the Maritime Administration. As noted in the

District    Court's   order,   it    is   undisputed     that   both   OMI   Ship

Management Corporation and OMI Corporation were acting as the


     *
      Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
agents of the United States at the time of the incident which forms

the basis of this action.

      Kasprik   allegedly      injured   his   wrist   while   attempting    to

manually engage the turning gear lever of the main engine and

incurred medical and support expenses as a result of his injury.

Kasprik filed suit against the United States claiming liability for

his injury, and against the United States and OMI for alleged

arbitrary and willful denial of maintenance and cure. OMI moved to

dismiss Kasprik's claim on the grounds that the claim is barred by

the exclusivity provision of the Suits in Admiralty Act ("SAA"), 46

U.S.C.App. § 745.     The District Court entered a Final Order of

Dismissal as to OMI, holding that under the exclusivity provision

of the SAA, plaintiffs-appellants were barred from bringing an

action for maintenance and cure and the failure to pay such against

OMI as agents of the United States.

                          II. STANDARD OF REVIEW

        Our review of a dismissal for failure to state a claim is de

novo.    Hunnings v. Texaco, 29 F.3d 1480, 1484 (11th Cir.1994).

                               III. DISCUSSION

      The issue raised for our consideration in this action is one

of   first   impression   in    this   circuit,   that   being   whether    the

exclusivity provision of the SAA prevents a seaman from seeking

punitive damages from an agent of the United States for arbitrary

and willful denial of maintenance and cure.

        It is a well recognized rule in admiralty that when a seaman

is injured or becomes ill while employed aboard a vessel, he is

entitled to daily subsistence and medical treatment until his
maximum cure has been reached.

          A seaman's right to maintenance and cure is implicit in
     the contractual relationship between the seaman and his
     employer, and is designed to ensure the recovery of these
     individuals upon injury or sickness sustained in the service
     of the ship ... Maintenance and cure are due without regard
     to the negligence of the employer or the unseaworthiness of
     the ship.

Nichols v. Barwick, 792 F.2d 1520, 1523 (11th Cir.1986) (quoting

Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979)).

     As noted above, Kasprik's claim against OMI is for straight

maintenance and cure payments and for punitive damages for the

arbitrary and willful denial of these benefits.         Hines v. J.A.

LaPorte, Inc., 820 F.2d 1187 (11th Cir.1987) is the leading case in

our circuit and is consistent with traditional admiralty law which

provides the highest safeguards for a seaman's right to maintenance

and cure. Hines considered whether a seaman could recover punitive

damages from a private vessel owner, in addition to reasonable

attorney's   fees,   for   the   arbitrary   and   willful   denial   of

maintenance and cure payments.     Id.   We held that "both reasonable

attorney's fees and punitive damages may be legally awarded in a

proper case."   Id. at 1189.

      Nevertheless, Hines is distinguishable from the instant case

in that this action lies against an operator of a vessel owned by

the United States, rather than a private vessel owner.       This being

so, seaman's claims arising from employment aboard vessels owned by

the United States are governed by the Clarification Act, and

enforced pursuant to the terms of the Suits in Admiralty Act.

McMahon v. United States, 342 U.S. 25, 26, 72 S.Ct. 17, 18-19, 96

L.Ed. 26 (1951), Gordon v. Lykes Bros. Steamship Co., 835 F.2d 96,
98 (5th Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 73, 102

L.Ed.2d 50 (1988).      The SAA does not provide a cause of action

against the United States but rather constitutes the United States'

limited waiver of sovereign immunity with respect to admiralty

suits.     Trautman v. Buck Steber, Inc.,     693 F.2d 440, 444 (5th

Cir.1982).     The United States cannot be sued for punitive damages

unless Congress explicitly authorizes such liability.         Missouri

Pacific Railroad Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed.

1087 (1921).    Sovereign immunity has not been waived with respect

to punitive damages.

     Section 745 of the Suits in Admiralty Act provides:

          Where a remedy is provided under this chapter it shall
     hereafter be exclusive of any other action by reason of the
     same subject matter against an agent or employee of the United
     States or of any incorporated or unincorporated agency thereof
     whose act or omission gave rise to the claim.

46 U.S.C.App. § 745.

         To date, the Fourth Circuit is the only circuit to have

determined the precise issue which is now before us.          However,

before addressing Manuel v. U.S., 50 F.3d 1253 (4th Cir.1995), we

want to recognize Shields v. U.S., 662 F.Supp. 187 (M.D.Fla.1987),

a noteworthy opinion written by then District Court Judge Black,

the first to have addressed this particular issue.        With facts

analogous to those in the instant case, the court in Shields found

that the exclusivity provision of the SAA does not preclude a

seaman's claim for punitive damages against an agent of the United

States for willful and arbitrary failure to pay maintenance and

cure.    Id.   We find the reasoning of the         Shields   decision

persuasive. First, the court reasoned that no "remedy" is provided
by the SAA "[w]ith regard to the "subject matter' of an arbitrary

and willful denial of maintenance and cure benefits."                 Id. at 190.

Judge Black saw a clear distinction between the simple failure to

provide maintenance and cure, for which a "remedy is provided," and

the arbitrary and willful denial of such, for which no such remedy

is    provided.1     Further, the opinion in           Shields        noted    that

"arbitrary claims handling is an entirely different subject matter

from the negligent conduct for which the SAA provides a remedy."

Id.    The Shields opinion is easily understandable. However, we are

also aware that its reasoning has been questioned and rejected.

Manuel v. United States, 50 F.3d 1253 (4th Cir.1995);                 Farnsworth

v. Sea-Land Serv. Inc., 1989 WL 20544 (E.D.La. Mar. 7, 1989);

Fratus v. U.S., 859 F.Supp. 991 (E.D.Va.1994);             Smith v. Mar, 896

F.Supp.    75   (D.R.I.1995);       Stewart   v.   U.S.,   903    F.Supp.      1540

(S.D.Ga.1995);        Manning v. U.S., No. 93-6711 (S.D.Fla. Aug. 8,

1994).

       In Manuel, the Fourth Circuit conducted an exhaustive review

of the legislative history behind § 745 and found that "the

exclusivity provision in 46 U.S.C. § 745 was intended to require a

seaman     injured    aboard   a   government-owned    ship      to    bring   his

maintenance and cure action against the United States." Manuel, 50

F.3d at 1259.        More specifically, with respect to the terms of §

745, the court concluded that the SAA does indeed "provide a

remedy" against the United States for failure to pay maintenance


       1
      The court granted defendant's motion to dismiss Counts One
and Two seeking damages from the United States for, inter alia,
breach of its obligation to provide maintenance and cure.
Shields, 662 F.Supp. at 189.
and cure.      Id. at 1260.    The court further found that "[t]he

"subject matter' of this claim under the SAA is the seaman's

entitlement to maintenance and cure resulting from his injury while

employed aboard the ship" and that "[a]lthough the claim against

the operator highlights the wrongful conduct of the operator's

administrative employees, the action nonetheless arises from the

seaman's entitlement to maintenance and cure resulting from his

injury while employed aboard the ship."     Id. at 1259.

     Although we ultimately agree with the reasoning in Manuel, we

recognize that this resolution draws a fine line of distinction.

We simply conclude that the phrase "by reason of the same subject

matter" is the key factor in this matter.    Any claim for failure to

pay maintenance and cure, even one alleging the arbitrary and

willful denial of such, is "by reason of the same subject matter"

as the seaman's entitlement to maintenance and cure resulting from

his injury.      Consequently, Kasprik's claim against OMI for the

arbitrary and willful denial of maintenance and cure has been

effectively abolished by Congress under the exclusivity provision

of the SAA.2

         Therefore, we conclude that the exclusivity provision of the

Suits in Admiralty Act precludes any action for punitive damages

     2
      If we have erred in our interpretation of this provision of
the SAA Congress can clarify or change the legislation. As so
clearly recognized by the court in Manuel, such a decision gives
private operators managing ships owned by the United States the
ability to willfully and arbitrarily deny maintenance and cure
without suffering any consequences. Manuel, 50 F.2d at 1260.
The court further noted that should Congress consider this to be
an unjust result, "it can correct the problem by carving out a
maintenance and cure exception to the exclusivity rule, by
waiving the United States' sovereign immunity, or by taking some
other legislative action. Id.
against OMI as the agent operating a vessel owned by the United

States.   Instead, any action for maintenance and cure lies solely

against the United States.3
                          IV. CONCLUSION

     The district court correctly granted OMI's motion to dismiss

for failure to state a claim.   Therefore, we AFFIRM the order of

the district court.




     3
      Although "[a]ttorney's fees are available to a plaintiff
when [a private party] refuses to provide maintenance and cure in
bad faith, callously, or unreasonably," Nichols v. Barwick, 792
F.2d 1520, 1524 (11th Cir.1986), attorney's fees may not be
awarded against the United States in the absence of specific
statutory authority. See Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240, 267-68, 95 S.Ct. 1612, 1626-27,
44 L.Ed.2d 141 (1975). Our examination of the terms of the Suits
in Admiralty Act reveal no explicit authorization for such an
award.

          However, with regard to compensatory damages, this
     court has held that "seaman have a claim for compensation
     for the suffering and for the physical injury which follow
     when the failure to give maintenance and cure aggravates the
     [injury]." Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1190
     (11th Cir.1987). See also, Cortes v. Baltimore Insular
     Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932)
     (aggravation of injury caused by failure to pay maintenance
     and cure gives seaman a right of action for the injury with
     recovery not limited to necessary expenses, but also
     compensation for the hurt.)