IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
SANDINO BRITO DIAZ and MARIA BRITO, ) ) Plaintiffs, ) ) v. ) Case No. 3:21-cv-0036 ) JUNGERHANS MARITIME SERVICES ) GmbH & CO. KG and/or a/k/a ) JUNGERHANS REEDEREI, MARLOW ) NAVIGATION COMPANY LIMITED, ) and MARCREW SCHIFFAHRTS GmbH, ) ) Defendants. ) )
ORDER BEFORE THE COURT is Defendants’ Motion to Dismiss Count IV of the Third Amended Complaint for Failure to State a Cause of Action. (ECF No. 73.) Plaintiffs opposed the motion. (ECF No. 77.) Defendants filed a reply. (ECF No. 84.) For the reasons that follow, the Court will deny the motion. I. BACKGROUND
Plaintiff Sandino Brito Diaz (“Diaz”) alleges that, on May 10, 2020, he suffered serious injuries when a heavy metal bar was dropped from the deck of the Deneb J container vessel onto his head and shoulder. Plaintiffs allege that the container vessel was docked at Crown Bay Marina, St. Thomas, and that he was he was working as a longshore/harbor worker for his employer, Crowley Caribbean Services. Diaz was a crane operator and was standing on the dock coordinating daily work with his co-worker when the metal bar landed on him, causing him to collapse. Diaz alleges that the metal bar used to secure containers of the type that the Deneb J was transporting was negligently dropped by a crew member or someone under control of Defendants. Diaz asserts claims pursuant to 33 U.S.C. § 905(b) and his spouse, Maria Brito (“Brito”), asserts a claim for loss of consortium. Plaintiffs invoke Case N2o. 34:21-cv-0036 Order Page of
jurisdiction under 28 U.S.C. § 1333 and, alternatively, diversity jurisdiction under 28 U.S.C. § 1332. Defendants filed a motion to dismiss contending that loss of consortium is not a viable claim under maritime law. II. LEGAL STANDARD On a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “all well-pleaded allegations of the complaint must be taken as true McTernan v. City of York and interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.” , 577 F.3d 521, 526 (3d Cir. 2009). To avoid dismissal under Rule 12(b)(6), a complaint must allege sufficient factual matter to allow “the Ashcroft v. Iqbal court to draw the reasonable inference that the defendant is liable for the misconduct alleged. , 556 U.S. 662, 678 (2009). Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that “[i]n the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title.” 33 U.S.C. § 905 (b). III. DISCUSSION Defendants argue that loss of consortium is not a cogM na izla ab v l. e M ca ar uin see S oe f r av c. tM iog nm ut. nNdeor. m20a0r6i-t1im20e, law, which governs this action, relying primarily on , 2009 WL 2170071 (D.V.I. July 20, 2009). Plaintiffs do not dispute that maritime law governs this action but argue that recent caselaw indicates that the issue of whether loss of consortium is cognizable under maritime law is not settled in this jurisdiction, and Dadgostar v. St. Croix Financial Center, Inc. numerous courts have permitted loss of consortium damages under maritime law, including , No. 1:10-cv-00028, WL 4383424, at *1 (D.V.I. Sept. 20, 2011). In reply, Defendants contend that allowing a loss of consortium claim would place the families of longshoremen in a better position than those of seaman whose damages are expressly limited, which would be contrary to the principle of uniformity in maritime law. Case N3o. 34:21-cv-0036 Order Page of Mala
In , plaintiff was injured when a fuel that was spilled into the hull of his boat due to a malfunctioning pump in Crown Bay Marina ignited after he left the marina and burned Mala the boat and plaintiff. Plaintiff asserted negligent training and maintenance of a gas pump claims, and his spouse asserted a loss of consortium claim. , 2009 WL 2170071, at *1. Horsley v. Mobil Oil Corp., The court found that general maritime law does not allow damages for loss of consortium, citing cases involving seamen or relying on the Jones Act, namely, “ Smith v. Trinidad Corp., 15 F.3d 200, 203 (1st Cir.1994) (declining to allow damages for loss of society under general Lollie maritime law); 992 F.2d 996, 996 (9th Cir.1993) (holding wives of v. Brown Marine Serv., Inc., injured mariners cannot recover for loss of consortium under general admiralty law); 995 F.2d 1565, 1565 (11th Cir.1993)(per curium) (‘we hold that Murray v. Anthony J. Bertucci Constr. Co., neither the Jones Act nor general maritime law authorizes recovery for loss of society or cert. denied, consortium in personal injury cases’); 958 F.2d 127, 132 (5th Cir.1992), 506 U.S. 865 (1992) (holding ‘that the spouse of an injured Collazo v. Owens–Corning Fiberglas Corp., seaman has no cause of action for loss of society under the general maritime law’)” and “ Civ. No. 94–1754, 1995 U.S. Dist. LEXIS 1796, at *5 Ruberto v. Maritrans Operating Partners, L.P., (E.D.Pa. Feb. 10, 1995) (noting that ‘loss of consortium is not compensable in admiralty’); Civ. No. 91–7654, 1993 U.S. Dist. LEXIS 11612, Mala at *7–8 (E.D.Pa. Aug. 20, 1993) (holding there can be no recovery for loss of consortium in a physical injury case brought under general maritime law).” , 2009 WL 2170071, at *2- Dadgostar 3. In , plaintiff was injured when he was struck by a fishing boat while Dadgostar swimming in the Green Cay Channel in St. Croix. Plaintiff alleged negligent failure to warn Dadgostar claim, and his spouse asserted a loss of consortium claim. , 2011 WL 4383424, at *1. The Court in found that “whether the loss of consortium claim is barred by Id maritime law is not a settled question and may depend on facts not addressed in” the complaint. . at 5. This action involves injuries to the longshoreman, not a seaman, incurred while working on the dock of the marina when a heavy metal bar was dropped on him from the vessel docked at the marina. The issue of whether the loss of consortium claim by a spouse Case N4o. 34:21-cv-0036 Order Page of
Alvez of an injured longshoreman is barred by maritime law is still not settled. The Court is mindful nonfatally of the holding in that “general maritime law authorizes the wife of a harbor worker Alvez injured aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband's society” , 446 U.S. 274, 276, and the Supreme SeeNorfolk Shipbuilding & Drydock Court’s concerns about inconsistencies between wrongful death and personal injury actions Corp. v. Garris resulting from unbalanced development of maritime law. Moragne v. States Marine Lines, Inc.
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IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
SANDINO BRITO DIAZ and MARIA BRITO, ) ) Plaintiffs, ) ) v. ) Case No. 3:21-cv-0036 ) JUNGERHANS MARITIME SERVICES ) GmbH & CO. KG and/or a/k/a ) JUNGERHANS REEDEREI, MARLOW ) NAVIGATION COMPANY LIMITED, ) and MARCREW SCHIFFAHRTS GmbH, ) ) Defendants. ) )
ORDER BEFORE THE COURT is Defendants’ Motion to Dismiss Count IV of the Third Amended Complaint for Failure to State a Cause of Action. (ECF No. 73.) Plaintiffs opposed the motion. (ECF No. 77.) Defendants filed a reply. (ECF No. 84.) For the reasons that follow, the Court will deny the motion. I. BACKGROUND
Plaintiff Sandino Brito Diaz (“Diaz”) alleges that, on May 10, 2020, he suffered serious injuries when a heavy metal bar was dropped from the deck of the Deneb J container vessel onto his head and shoulder. Plaintiffs allege that the container vessel was docked at Crown Bay Marina, St. Thomas, and that he was he was working as a longshore/harbor worker for his employer, Crowley Caribbean Services. Diaz was a crane operator and was standing on the dock coordinating daily work with his co-worker when the metal bar landed on him, causing him to collapse. Diaz alleges that the metal bar used to secure containers of the type that the Deneb J was transporting was negligently dropped by a crew member or someone under control of Defendants. Diaz asserts claims pursuant to 33 U.S.C. § 905(b) and his spouse, Maria Brito (“Brito”), asserts a claim for loss of consortium. Plaintiffs invoke Case N2o. 34:21-cv-0036 Order Page of
jurisdiction under 28 U.S.C. § 1333 and, alternatively, diversity jurisdiction under 28 U.S.C. § 1332. Defendants filed a motion to dismiss contending that loss of consortium is not a viable claim under maritime law. II. LEGAL STANDARD On a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “all well-pleaded allegations of the complaint must be taken as true McTernan v. City of York and interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.” , 577 F.3d 521, 526 (3d Cir. 2009). To avoid dismissal under Rule 12(b)(6), a complaint must allege sufficient factual matter to allow “the Ashcroft v. Iqbal court to draw the reasonable inference that the defendant is liable for the misconduct alleged. , 556 U.S. 662, 678 (2009). Longshore and Harbor Workers’ Compensation Act (“LHWCA”) provides that “[i]n the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title.” 33 U.S.C. § 905 (b). III. DISCUSSION Defendants argue that loss of consortium is not a cogM na izla ab v l. e M ca ar uin see S oe f r av c. tM iog nm ut. nNdeor. m20a0r6i-t1im20e, law, which governs this action, relying primarily on , 2009 WL 2170071 (D.V.I. July 20, 2009). Plaintiffs do not dispute that maritime law governs this action but argue that recent caselaw indicates that the issue of whether loss of consortium is cognizable under maritime law is not settled in this jurisdiction, and Dadgostar v. St. Croix Financial Center, Inc. numerous courts have permitted loss of consortium damages under maritime law, including , No. 1:10-cv-00028, WL 4383424, at *1 (D.V.I. Sept. 20, 2011). In reply, Defendants contend that allowing a loss of consortium claim would place the families of longshoremen in a better position than those of seaman whose damages are expressly limited, which would be contrary to the principle of uniformity in maritime law. Case N3o. 34:21-cv-0036 Order Page of Mala
In , plaintiff was injured when a fuel that was spilled into the hull of his boat due to a malfunctioning pump in Crown Bay Marina ignited after he left the marina and burned Mala the boat and plaintiff. Plaintiff asserted negligent training and maintenance of a gas pump claims, and his spouse asserted a loss of consortium claim. , 2009 WL 2170071, at *1. Horsley v. Mobil Oil Corp., The court found that general maritime law does not allow damages for loss of consortium, citing cases involving seamen or relying on the Jones Act, namely, “ Smith v. Trinidad Corp., 15 F.3d 200, 203 (1st Cir.1994) (declining to allow damages for loss of society under general Lollie maritime law); 992 F.2d 996, 996 (9th Cir.1993) (holding wives of v. Brown Marine Serv., Inc., injured mariners cannot recover for loss of consortium under general admiralty law); 995 F.2d 1565, 1565 (11th Cir.1993)(per curium) (‘we hold that Murray v. Anthony J. Bertucci Constr. Co., neither the Jones Act nor general maritime law authorizes recovery for loss of society or cert. denied, consortium in personal injury cases’); 958 F.2d 127, 132 (5th Cir.1992), 506 U.S. 865 (1992) (holding ‘that the spouse of an injured Collazo v. Owens–Corning Fiberglas Corp., seaman has no cause of action for loss of society under the general maritime law’)” and “ Civ. No. 94–1754, 1995 U.S. Dist. LEXIS 1796, at *5 Ruberto v. Maritrans Operating Partners, L.P., (E.D.Pa. Feb. 10, 1995) (noting that ‘loss of consortium is not compensable in admiralty’); Civ. No. 91–7654, 1993 U.S. Dist. LEXIS 11612, Mala at *7–8 (E.D.Pa. Aug. 20, 1993) (holding there can be no recovery for loss of consortium in a physical injury case brought under general maritime law).” , 2009 WL 2170071, at *2- Dadgostar 3. In , plaintiff was injured when he was struck by a fishing boat while Dadgostar swimming in the Green Cay Channel in St. Croix. Plaintiff alleged negligent failure to warn Dadgostar claim, and his spouse asserted a loss of consortium claim. , 2011 WL 4383424, at *1. The Court in found that “whether the loss of consortium claim is barred by Id maritime law is not a settled question and may depend on facts not addressed in” the complaint. . at 5. This action involves injuries to the longshoreman, not a seaman, incurred while working on the dock of the marina when a heavy metal bar was dropped on him from the vessel docked at the marina. The issue of whether the loss of consortium claim by a spouse Case N4o. 34:21-cv-0036 Order Page of
Alvez of an injured longshoreman is barred by maritime law is still not settled. The Court is mindful nonfatally of the holding in that “general maritime law authorizes the wife of a harbor worker Alvez injured aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband's society” , 446 U.S. 274, 276, and the Supreme SeeNorfolk Shipbuilding & Drydock Court’s concerns about inconsistencies between wrongful death and personal injury actions Corp. v. Garris resulting from unbalanced development of maritime law. Moragne v. States Marine Lines, Inc. , 532 U.S. 811, 816 (2001) (pointing out the “anomaly occasioned by providing a federal remedy for injury but not death”); , 398 U.S. 375, 395 (1970) (noting that the same violation of federal law “produces liability if the victim is see also Calhoun v. Yamaha merely injured, but frequently not if he is killed” and stating that “such a distinction is not Motor Corp., U.S.A. compatible with the general policies of federal maritime law.”); , 40 F.3d 622, 643–44 (3d Cir. 1994), aff'd, 516 U.S. 199, 116 S. Ct. 619, 133 Dadgostar L. Ed. 2d 578 (1996) (“Even within maritime law, differing recoveries based on status occur all of the time.”) Convinced by the reasoning in and in the absence of binding legal See authority on the issue, the Court finds that dismissing the spouse’s loss of consortium claim Morgan v. Almars Outboards, Inc. at this stage of the proceedings and in the circumstance of this case is not warranted. Moore v. , 316 F. Supp. 3d 828, 841–42 (D. Del. 2018) (claims for “loss M/V ANGELA of consortium have historically been available and awarded in maritime actions”); Petition of Cleveland Tankers, , 353 F.3d 376, 383 (5th Cir. 2003)(the surviving spouse of longshoreman’s Inc. “loss of consortium award is permissible in this § 905(b) case”); , 843 F. Supp. 1157, 1159 (E.D. Mich. 1994) (“[T]his Court believes that loss of consortium Miles. Koernschild v. W.H. Streit, Inc. damages remain viable under general maritime law, except as specifically held otherwise by Miles ”); , 834 F. Supp. 711, 720 (D.N.J. 1993) (“[W]e do not read as barring a longshoreman injured in territorial waters from asserting a loss of consortOiuRmD EclRaEimD.”). Accordingly, it is hereby that Defendants’ Motion to Dismiss CounDt EINV IEoDf the Third Amended CDoamtepdl:a int for Failure to Stat e a Cau se of Ac tion, E CF No. /7s 3/ , R iso bert A. M . o lloy ROBERT A. MOLLOY August 22, 20 23 Chief Judge