In order to fall outside of COGSA's reach and within that of general maritime remedies, behavior should be something worse than merely an intentional tort. This Court finds that criminally culpable behavior fits the bill, and will allow a plaintiff to claim punitive damages against a carrier in actions governed by COGSA if he can present clear and convincing evidence of criminally culpable behavior. These cases will be few, and clearly identifiable. In fashioning this rule the Court does recall that COGSA § 1304(5) says that “[i]n no event shall the carrier be liable for more than the amount of damage actually sustained.” But while this Court believes in applying statutes according to their “plain language,” Pennsylvania Dep't of Welfare v. Davenport, 495 U.S. 552, 557, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990), the language above cannot bar punitive damages in every single law suit involving goods carried at sea. Clearly it applies to tortious conduct, but a reading of COGSA as a whole shows that it does not extend to criminally culpable conduct. Cases of theft and other intentional criminal wrongdoing were beyond the scope of what Congress could have reasonably intended to govern with these provisions, and so in those instances common law maritime remedies, like punitive damages, are not preempted by COGSA.3 For discussion on this point, see Blachman, Recent Development, 62 Wash.L.Rev. at 542.
Jones v. Compagnie Generale Maritime, 882 F.Supp. 1079, 1084 (S.D.Ga.,1995)
Punitive damages are recoverable under general maritime law upon a showing of egregious tortious or criminal misconduct. See Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1189 (11th Cir. 1987) (holding that both punitive damages and attorney's fees may be awarded).7 While the COGSA sets a limit in most cases for cargo loss, “[c]ases of theft and other intentional criminal wrongdoing were beyond the scope of what Congress could have reasonably intended to govern with these provisions, and so in those instances common law maritime remedies, like punitive damages, are not preempted by COGSA.” Jones v. Compagnie Generale Mar., 882 F. Supp. 1079, 1084 (S.D. Ga. 1995). Punitive damages are not limited to any particular claim, and courts allow “punitive damages against a carrier in actions governed by COGSA if [a plaintiff] can present clear and convincing evidence of criminally culpable behavior.” Id. Criminally culpable behavior is “behavior revealing both a reckless indifference (at least) to the rights of others, and an intent to commit criminal acts.” Id. at 1085.
Ciber Office 2013, C.A. v. SeaFreight Line Ltd., 2010 WL 11505132, at *8 (S.D.Fla., 2010)
In light of the general maritime principle allowing the imposition of punitive damages when justified by “sufficient moral culpability” and the COGSA's silence on the issue, the corporate Defendants can be held liable for punitive damages related to the stolen computer equipment. See B.F. McKernin, 416 F. Supp. at 1073. But even if punitive damages are available, SeaFreight and SeaTruck contend they are not criminally culpable for SeaTruck's employees' misconduct. (See SFgt Mot. 14–17, 19). While the corporate Defendants did not themselves engage in the theft of the cargo, some courts apply the law of agency in these circumstances to allow a party to recover punitive damages from a principal for the actions of its agent if the principal authorized or approved the actions, or “was somehow reckless in allowing them to happen....” Jones, 882 F. Supp. at 1085; see also Lake Shore & Mich. S. Ry. Co. v. Prentice, 147 U.S. 101, 107–08 (1893); Restatement (Second) of Torts § 909. “Federal maritime law embraces the principles of agency.” Archer v. Trans/Am. Servs., Ltd., 834 F.2d 1570, 1573 (11th Cir. 1988). However, to invoke agency a plaintiff must “establish a link between the Defendant and the alleged misconduct of its agents....” Jones, 882 F. Supp at 1086 (granting summary judgment to carrier where plaintiff failed to provide evidence carrier's employees engaged in pilfering or carrier knew of or authorized criminal acts).
Ciber Office 2013, C.A. v. SeaFreight Line Ltd., 2010 WL 11505132, at *9 (S.D.Fla., 2010)
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