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

Andrea FRAZER, et al., Plaintiffs–Respondents, v. The CITY OF NEW YORK, Defendant,

Circle Line Sightseeing Yachts, Inc., et al., Defendants–Appellants. Linda GLEANER, et al., Plaintiffs–Respondents, v. CIRCLE LINE SIGHTSEEING YACHTS, INC., et al., Defendants–Appellants. [And Another Action].

Decided: June 24, 1997

Before MILONAS, J.P., and NARDELLI, WILLIAMS and ANDRIAS, JJ. Edward S. Minzner, for Plaintiffs–Respondents. James M. Kenny, for Defendants–Appellants.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered February 5, 1996, which denied defendants-appellants' motion to dismiss plaintiffs' claims for punitive damages, unanimously reversed, on the law, without costs, the motion granted and plaintiffs' claims for punitive damages are dismissed.   The Clerk is directed to enter judgment accordingly.

Plaintiffs, who were passengers on a Circle Line sightseeing boat on the afternoon of May 25, 1986 when it struck the Willis Avenue Bridge over the Harlem River, seek compensatory and punitive damages for their alleged injuries.

Although the law has not been entirely settled by the Supreme Court's holding that exemplary damages are not recoverable in a general maritime cause of action for the wrongful death of a seaman (Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275), both this Court, in Public Administrator v. Frota Oceanica Brasileira, 222 A.D.2d 332, 333, 635 N.Y.S.2d 606, appeal dismissed 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229, and the Second Circuit, in Wahlstrom v. Kawasaki Heavy Industries, Ltd., 2nd Cir., 4 F.3d 1084, cert. denied 510 U.S. 1114, 114 S.Ct. 1060, 127 L.Ed.2d 380, have adhered to the prevailing rule that punitive damages are unavailable under general maritime law.   Plaintiffs' attempt to distinguish this case on the ground that plaintiffs were passengers rather than seamen or seafarers is unavailing and their reliance upon Yamaha Motor Corp, U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 and CEH, Inc. v. F/V Seafarer, 1st Cir., 70 F.3d 694 is misplaced since both cases were decided upon specific exceptions to general maritime law.   In Yamaha, the Supreme Court held that the provisions of the Death on the High Seas Act specifically preserved the application of State statutes to deaths in territorial waters (516 U.S. supra, at 215, 116 S.Ct. supra, at 628), while in CEH, the First Circuit permitted a claim for punitive damages due to the absence of any legislation that touches upon circumstances involving the reckless or willful destruction of property (70 F.3d, supra, at 701).

As noted by the court in Cochran v. A/H Battery Assocs., 909 F.Supp. 911, 922, a similar case involving a passenger on a ferry which collided with a dock, the crux of the Supreme Court's decision in Miles, supra, is that “when Congress has legislated in an area of maritime law, judicially created remedies must conform with that legislation.   To allow a punitive damage claim would be to expand maritime jurisprudence beyond Congress' intention.”   Likewise, in Preston v. Frantz, 2nd Cir., 11 F.3d 357, cert. dismissed 512 U.S. 1279, 115 S.Ct. 31, 129 L.Ed.2d 928, where the plaintiffs sought recovery of exemplary damages for a passenger killed in a helicopter crash on the high seas and contended that Wahlstrom was wrongly decided because the holding in Miles, upon which that ruling was based, applies only to Jones Act seamen, the Second Circuit disagreed, stating that “even if Miles were applicable only to Jones Act seamen, it would not render our decision in Wahlstrom infirm.  ‘[I]n view of the special regard accorded by admiralty to seamen’, Wahlstrom, 4 F.3d at 1092, it would be anomalous to allow a nonseaman's estate to recover for [exemplary damages] when a seaman's estate, under Miles, would not be entitled to such recovery”.   The same rationale applies in this case.