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Cruise ship passengers who contracted Legionnaires’ disease on a trip to Bermuda may seek punitive damages under general maritime law, a New York Southern District magistrate judge has ruled. The decision by Magistrate Judge James C. Francis IV cleared the way for a jury to award punitive damages in In re Horizon Cruises Litigation, 94 Civ. 5270. In July 1996, several passengers aboard the ship M/V Horizon contracted the disease, a potentially fatal form of pneumonia. At least 32 people suffered from the disease and one died. Several of the victims sued the owners and operators of the ship — respectively Celebrity Cruises Inc. and Fantasia Cruising Inc. — as well as Essef Corp., the company that manufactured the filter in the ship’s whirlpool spa system, which investigators believed was the source of the Legionnaires’ bacteria. Celebrity Cruises filed substantial cross-claims against Essef. Magistrate Judge Francis is presiding over several cases that were consolidated, including the bellwether case, Silivanch v. Celebrity Cruises Inc., 95 Civ. 0374. The first phase of Silivanch ended Tuesday with a jury finding the defendants liable. The jury will reconvene on today to decide the damages phase. In his decision, Magistrate Judge Francis first ruled that the cases fell within the court’s admiralty jurisdiction, notwithstanding the fact that the victims did not display symptoms of the disease until they had reached shore. However, while Essef and Celebrity wanted maritime law to apply, he said, “their victory is a Pyrrhic one. That is because, contrary to the second prong of their argument, punitive damages are available.” Interpreting decisions of the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit that touched on the issue, he said judges in the Southern District have been split on whether applicable state law can supplement the measure of damages under maritime law. In one case, Judge Jed S. Rakoff, in O’Hara v. Celebrity Cruises Inc., 979 FSupp. 254 (1997), found that the United States has “determined under comparable situations under the Jones Act and [the Death on the High Seas Act], that no such quasi-criminal sanctions should be imposed by a civil jury.” But Judge Allen G. Schwartz had a different interpretation of judicial precedent in an unpublished opinion in Taylor v. Costa Cruises Inc., 90 Civ. 2630 (March 13, 1996). Magistrate Judge Francis said Judge Schwartz found that unless “Congress prescribed a comprehensive tort recovery scheme for a class of maritime actions, admiralty remedies could be supplemented by those available under state law.” For Magistrate Judge Francis, the issue was whether a court can tolerate the anomaly of allowing non-seamen to pursue punitive damages when case law indicates that seamen or their families are prevented from seeking punitive damages under the Jones Act, 46 U.S.C. Section 688. Similarly, the Death on the High Seas Act (DOSHA), 46 U.S.C. �761, precludes punitive damages for both seamen and non-seamen killed on the high seas. But in both the Jones Act and DOSHA, Magistrate Judge Francis said Congress was trying to create a remedy for injury or death on the high seas where none existed before. However, he said, passengers have had the right to collect punitive damages for personal injury claims as far back as 1823 and, unless Congress specifically bars such a recovery, DOSHA and the Jones Act cannot be seen as repealing that right by implication. As much as Supreme Court precedent has tried to impose the principle of uniformity on recovery for injuries or death at sea, he said, “principles of uniformity do not reach so broadly.” ” …these anomalies are an artifact of the interaction between general maritime law and the succession of specific congressional enactments,” he said. “ 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.” Steven M. Hayes of Parcher Hayes & Snyder and Caspar F. Ewig of Hill Rivkins & Hayden were co-lead plaintiffs counsel for discovery purposes. Gregory O’Neill of Hill, Betts & Nash represented Celebrity Cruises Inc. and Fantasia Cruising Inc. Essef was represented by Thomas G. Hermann of Squire, Sanders & Dempsey.

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