PIRES v. Fernando Frota, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

S.M. PIRES, et al., Plaintiffs-Respondents, v. FROTA OCEANICA BRASILEIRA, S.A., Defendant-Appellant, Fernando Frota, et al., Defendants.

Decided: June 24, 1997

Before SULLIVAN, J.P., and MILONAS, WILLIAMS and TOM, JJ. Richard Godosky, for plaintiffs-respondents. Thomas E. Stiles, for defendant-appellant.

Judgment, Supreme Court, New York County (Edward Greenfield, J.), entered May 30, 1995, which, after a jury trial, awarded plaintiffs $4 million consequential damages, $1 million loss of consortium and $16 million punitive damages, plus interest and costs, unanimously modified, on the law, to the extent of vacating the award of punitive damages and loss of consortium damages, dismissing said claims, and remanding the matter for an award, if the trial court is so advised, of attorney fees to plaintiffs, and otherwise affirmed, without costs.

We previously held in Public Adm'r. v. Frota Oceanica Brasileira, 222 A.D.2d 332, 635 N.Y.S.2d 606, lv dismissed 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229, that damages for nonpecuniary loss are unavailable under general maritime law, and that punitive damages are nonpecuniary damages such that punitive damages are also unavailable under general maritime law.   It is now settled that, given the primacy of the concern for uniformity of maritime law as expressed in Miles v. Apex Mar. Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275, a plaintiff in a maintenance and cure case cannot obtain punitive damages (see, Guevara v. Maritime Overseas Corp., 5th Cir., 59 F.3d 1496), and damages for loss of consortium are also unavailable (see, Ellender v. Graham & Co., 821 F.Supp. 1136).   In light of the vacatur of the punitive damages award, the trial court may wish to consider an award of attorney's fee to plaintiffs (see, Paris v. Waterman S.S. Corp., 218 A.D.2d 561, 565, 630 N.Y.S.2d 716, app withdrawn 87 N.Y.2d 860, 639 N.Y.S.2d 309, 662 N.E.2d 789;  Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1501, cert denied 516 U.S. 1046, 116 S.Ct. 708, 133 L.Ed.2d 663).   We have considered defendant-appellant's remaining arguments and find them to be without merit.

MEMORANDUM DECISION.