Opinion issued August 30, 2012




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                       ————————————
                           NO. 01-11-00745-CV
                         ———————————
      VERLESHIA ROBINSON AND JOUAN JACKSON, Appellants
                                   V.
AMERICAN OVERSEAS MARINE AND PATTON CALDWELL, Appellees




                 On Appeal from the 333rd District Court
                          Harris County, Texas
                    Trial Court Case No. 2009-47081
                                    OPINION

      In this maritime case, Verleshia Robinson and Jouan Jackson sued American

Overseas Marine and its employee Patton Caldwell.1 The two defendants sought

summary judgment against the plaintiffs on the ground that the plaintiffs’ claims

are barred by two federal statutes: the Suits in Admiralty Act2 and the Public

Vessels Act.3 The trial court granted the motion and rendered judgment dismissing

Robinson’s and Jackson’s claims with prejudice.

      On appeal, Robinson and Jackson challenge the trial court’s judgment

dismissing their claims. Raising two issues, they contend that the trial court erred

by rendering summary judgment against them.

      We affirm.

                               Background Summary

      At the time of the alleged incidences giving rise to this suit, Verleshia

Robinson and Jouan Jackson worked as crew members aboard the USNS

Benavidez. They were employees of American Overseas Marine (“AMSEA”).




1
      In the trial court and on appeal, Robinson has spelled her first name four different
      ways: Verleshia, Velisha, Verlishia, and Verlisha. We use the spelling contained
      in the trial court’s judgment which is “Verleshia.”
2
      See 46 U.S.C. §§ 30901–30918.
3
      See 46 U.S.C. §§ 31101–31113.
                                           2
      As represented in the vessel’s certificate of ownership, the Benavidez is a

public vessel owned by the United States of America, represented by the Navy

Department and operated by the Military Sealift Command. The vessel is used to

transport military personnel and cargo.

      In 2004, the United States, through the Military Sealift Command,

contracted with AMSEA to operate and to maintain the Benavidez. Pursuant to the

contract, the United States delivered the Benavidez to AMSEA’s care and custody

in May 2005.

      In 2009, Robinson and Jackson filed suit against AMSEA and its employee

Patton Caldwell, the Benavidez’s chief steward. In their first amended petition,

Robinson and Jackson alleged as follows:

      While working as a member of the crew of the USNS Benavidez
      Plaintiff, Jouan Jackson, informed the captain of the ship and the
      designated person ashore, Robin Booth, of an assault upon crew
      member Verleshia Robinson by the Chief Steward, Patton Caldwell,
      while in the course and scope of her duties. Verleshia Robinson and
      Jouan Jackson also informed the Captain and the designated person
      ashore, Robin Booth, of the Chief Steward’s lack of hygiene and lack
      of observance of health practices necessary to protect the safety of the
      crew of the ship including allowing human blood to contaminate the
      food stuffs of the USNS Benavidez. Verleshia Robinson and Jouan
      Jackson also informed the designated person ashore of the Chief
      Steward’s and Captain’s drunkenness while aboard ship during the
      course of their duties and informed the designated person ashore that
      such drunkenness endangered the entire crew and the seaworthiness of
      the vessel.




                                          3
      AMSEA had terminated Jackson’s employment in July 2007.               Jackson

alleged that AMSEA fired him in retaliation for reporting the misconduct of

Caldwell and the ship’s captain. Jackson averred that he “was discharged in a

foreign port and forced to fend for himself and to pay for his travel back to the

United States from Crete, Greece in violation of the shipping agreement.” Jackson

also alleged that prior to his termination he was subjected to “cruel treatment and

humiliation” onboard the vessel.

      Jackson sued AMSEA and Caldwell for breach of his employment

agreement and for wrongful termination.       In addition, he asserted claims for

negligence and vessel unseaworthiness under the Jones Act and for

unseaworthiness and negligence under the general maritime law. Jackson sought,

“[b]y reason of the shipping agreement,” recovery for “pay and vacation and

lodging in getting back to the United States.” He also sought “pre-judgment

interest for breach of contract, attorney fees and exemplary damages for the

humiliation and damages caused by making a seaman have to fend for himself in a

foreign port when he was deserted by the master of the vessel in a foreign port.”

      In the petition, Robinson alleged that Caldwell assaulted her while she was

performing her duties onboard the Benavidez. She averred that Caldwell “attacked

[her] while in the course and scope of [Caldwell’s] duties while she was on duty in

the galley of the ship.” Specifically, Robinson alleged that Caldwell assaulted her

                                         4
“by forcefully and aggressively poking his finger into her breast area.”         She

averred that AMSEA has “condoned and ratified such assault.” Robinson alleged

that, after she reported shipboard misconduct, she “was subjected to abuse, cruel

treatment, harassment and humiliation during her remaining period aboard the

vessel by [Caldwell].”

      Robinson asserted claims for negligence and vessel unseaworthiness under

the Jones Act and for unseaworthiness and negligence under the general maritime

law. In addition, Robinson asserted a civil assault claim. She sought “actual

damages, exemplary damages and attorney fees” “[b]y reason of the physical

assault upon her person.”

      After answering the suit, AMSEA and Caldwell filed a Rule 166a(c)

traditional motion for summary judgment. They argued that the Suits in Admiralty

Act and the Public Vessels Act barred Jackson’s and Robinson’s claims against

them. Citing those two federal acts, the defendants asserted that, because they

were acting as agents of the United States while operating the Benavidez,

plaintiffs’ exclusive remedy lies against the United States. On this ground, the

defendants requested summary judgment and dismissal of the plaintiffs’ claims.

      Robinson and Jackson responded. They argued that, under the Suits in

Admiralty Act and the Public Vessels Act, a plaintiff’s remedy is exclusively

against the United States only when a remedy against the United States is

                                        5
permitted.   The plaintiffs pointed out that two of the remedies they sought,

attorney’s fees and punitive damages, are not permitted against the United States.

Thus, they argued, their claims are not barred by the two federal acts.

      The trial court granted AMSEA’s and Caldwell’s motion for summary

judgment and dismissed Jackson’s and Robinson’s claims with prejudice. This

appeal followed. Robinson and Jackson raise two issues on appeal challenging the

trial court’s summary judgment. Jackson and Robinson (hereinafter “Appellants”)

contend that the Suits in Admiralty Act and the Public Vessels Act do not bar their

claims against AMSEA and Caldwell (hereinafter “Appellees”).

                         Applicable Law and Standards

A.    Standard of Review

      To prevail on a traditional summary judgment motion, a movant must prove

that there is no genuine issue regarding any material fact and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of

Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant moving for

summary judgment must either (1) disprove at least one element of the plaintiff’s

cause of action or (2) plead and conclusively establish each essential element of an

affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth, 900 S.W.2d

339, 341 (Tex. 1995).




                                          6
      The movant must conclusively establish its right to judgment as a matter of

law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is

conclusively established if reasonable people could not differ as to the conclusion

to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816

(Tex. 2005). In our de novo review, we consider all the evidence in the light most

favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009).

      If the movant meets its burden, the burden then shifts to the nonmovant to

raise a genuine issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in their

conclusions in light of all of the summary judgment evidence. Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

      Appellees moved for summary judgment on the basis that the undisputed

facts and plain language of the Suits in Admiralty Act and the Public Vessels Act

established, as a matter of law, that Appellants’ claims against them are barred

because Appellants’ exclusive remedy lies against the United States. To the extent

that the issues presented in this appeal involve statutory construction and the

                                        7
application of a statute to undisputed facts, we determine the issues as a matter of

law. See Tex. Dep’t of Family & Protective Services v. Alternatives in Motion,

Inc., 210 S.W.3d 794, 798 (Tex. App.—Houston [1st Dist.] 2006, pet. denied);

Gramercy Ins. Co. v. Auction Fin. Program, Inc., 52 S.W.3d 360, 363 (Tex.

App.—Dallas 2001, pet. denied).

B.    The Suits in Admiralty Act and the Public Vessels Act

      The Suits in Admiralty Act (“SAA”), 46 U.S.C. §§ 30901–30918, and the

Public Vessels Act (“PVA”), 46 U.S.C. §§ 31101–31113, permit admiralty suits to

be brought against the United States for causes of action arising out of the

operation of vessels owned by or operated for the United States. See 46 U.S.C.

§ 31102 (providing that “a civil action in personam in admiralty may be

brought . . . against the United States for . . . damages caused by a public vessel of

the United States”); id. § 30903 (providing, “In a case in which, if a vessel were

privately owned or operated, . . . or if a private person or property were involved, a

civil action in admiralty could be maintained, a civil action in admiralty in

personam may be brought against the United States . . . .”). Each act operates as a

waiver of the sovereign immunity of the United States in admiralty cases,

providing a “jurisdictional hook” on which to hang a traditional admiralty claim.

See Williams v. Central Gulf Lines, 874 F.2d 1058, 1059 (5th Cir. 1989).




                                          8
      Litigants seeking to recover from the United States must, however, abide by

the terms of the statutes. One of those terms is the exclusivity provision, found in

section 30904 of the SAA. That provision states, “If a remedy is provided by [the

SAA], it shall be exclusive of any other action arising out of the same subject

matter against the officer, employee, or agent of the United States . . . whose act or

omission gave rise to the claim.” 46 U.S.C. § 30904. The PVA incorporates the

exclusivity provision by reference.      See 46 U.S.C. § 31103.        Consequently,

recovery against an agent of the United States operating a government-owned

vessel is precluded on any claim for which either the SAA or the PVA provides a

remedy. See Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995, 997 (9th Cir.

1997) (“[W]here a remedy lies against the United States, a suit against an agent of

the United States ‘by reason of the same subject matter’ is precluded’”); Manuel v.

United States, 50 F.3d 1253, 1255 (4th Cir. 1995) (explaining that SAA’s

exclusivity provision “precludes recovery against an agent of the United States

operating a government-owned vessel on any claim for which the SAA or the PVA

provides a remedy against the United States”).

                                      Analysis

      On appeal, Appellants identify two issues in which they assert that the

exclusivity provision of the SAA does not bar their claims against Appellees.




                                          9
A.    Agent of the United States

      In their first issue, Appellants contend that “Appellees do not qualify as

agents of the United States for the actions giving rise to the claims in this case.”

      To show that they were “agents” of the United States, Appellees offered

summary judgment evidence, including the affidavit of Christopher Nette,

AMSEA’s vice president of marine operations. Nette’s affidavit mentions the

document entitled “Certificate of Delivery and Acceptance.” That document is

appended to the motion for summary judgment. It indicates that AMSEA accepted

delivery of the Benavidez on May 6, 2005 and states that AMSEA “assumes

responsibility for the care and custody of the vessel.”

      In his affidavit, Nette also testified that the United States had “contracted

with AMSEA to provide operation and maintenance services for the U.S.N.S.

Benavidez under Contract No. N00033–04–C–5300.” Excerpts from the contract

are attached to the motion for summary judgment. The contract indicates that the

United States engaged AMSEA to operate the Benavidez. The contract also shows

that the government maintained a degree of operational control over the vessel.

For example, the contract requires AMSEA “to use only experienced, responsible,

and capable people to perform the work.”           The contract provides that the

government maintained the power to require AMSEA “[to] remove from the job,




                                         10
employees who endanger persons or property, or whose continued employment

under this contract is inconsistent with military security.”

      Additionally, the contract expressly contemplated and discussed the

application of the SAA and PVA in the event that suit was filed against AMSEA.

The contract states, “As operators of public vessels of the United States, the

Contractor [AMSEA] may become involved in litigation maintainable against the

United States under the [PVA].” The contract mentions that the PVA incorporates

provisions of the SAA. The contract indicates a presumption that the government

will be the target of such suit and shows that, if such a suit is filed, the government

will maintain control of the litigation.

      Turning to the relevant jurisprudence regarding agency, courts have held that

a contract operator of a naval vessel is an agent of the United States for purposes of

the SAA’s exclusivity clause. See Tarver v. U.S., Buck, 785 F. Supp. 607, 611

(S.D. Miss. 1991); Buck Kreihs Co. v. Int’l Marine Carriers, Inc., 741 F. Supp.

1249, 1250–51 (E.D. La. 1990). As one court summarized, “A long line of cases

establishes that a contract operator of a naval vessel . . . is an agent of the United

States for purposes of [the exclusivity clause].” River & Offshore Servs. Co., Inc.

v. United States, 651 F. Supp. 276, 278 (E.D. La. 1987); see also, e.g., Doyle v.

Bethlehem Steel Corp., 504 F.2d 911, 912 (5th Cir. 1974) (holding that company

“engaged to manage and conduct the business of the Government with respect to

                                           11
the operation of certain Navy tankers” was agent of the United States under

exclusivity clause).

      Courts have also held that the term “agent,” as used in exclusivity provision,

applies to those engaged by the United States “to manage and conduct the

business” of a government vessel, suggesting that the exclusivity provision applies

to general agents who manage and conduct the business of the vessel. See Petition

of United States, 367 F.2d 505, 510 (3d Cir. 1966); see also Servis v. Hiller

Systems Inc., 54 F.3d 203, 207–09 (4th Cir. 1995). Other courts have held that

some degree of operational control must be maintained by the government for the

private operator to be an agent under the SAA. See, e.g., Nelsen v. Research Corp.

of Univ. of Hawaii, 805 F. Supp. 837, 847 (D. Haw. 1992) (citing LeBlanc v.

United States, 732 F. Supp. 709 (E.D. Tex. 1990); Cruz v. Marine Transport Lines,

634 F. Supp. 107 (D. N.J. 1986)).

      In this case, the summary judgment evidence shows that AMSEA contracted

with the United States to operate and to maintain the Benavidez on behalf of the

government. In other words, the evidence shows that AMSEA was engaged to

manage and to conduct the maritime business of the government vessel. The

evidence also shows that the government maintained a degree of operational

control of the vessel indicative of an agency relationship.




                                         12
      Moreover, Appellants’ allegations in their petition also support this

conclusion.    Appellants alleged that Caldwell committed the assault against

Robinson “in the course and scope of his duties” as chief steward of the Benavidez.

Appellants allege that they also were performing their duties as crewmembers of

the Benavidez’s when the events giving rise to their claims occurred.

      In addition, Jackson alleges that his employment was wrongfully terminated

under the pretext of insubordination in violation of the shipping articles, which

govern the conduct of seamen onboard the vessel. Employment decisions such as

hiring and firing a crewmember for onboard conduct are necessarily a part of, and

directly related to, a vessel’s operation and mission.

      We note that the court in Moos v. Crowley Liner Services, Inc. held that a

private operator of a United States owned vessel was the government’s agent

within the meaning of the exclusivity provision in a suit brought by the operator’s

employee for wrongful termination. No. C 06-03791 SI, 2006 WL 2263904, at *2

(D.C. Cal. Aug. 8, 2006).      To reach this conclusion, the court relied on the

allegations in the plaintiff’s complaint and the contract between the operator and

the government indicating that the government had maintained general operational

control. See id. In this case, a degree of operational control by the government

regarding, inter alia, employment issues is evidenced by the contract provision in

which the government (1) requires AMSEA to man the vessel “with only

                                          13
experienced, responsible, and capable people to perform the work” and (2) retains

the power to require AMSEA to remove an employee.

      We conclude that AMSEA, and by extension its employee, Caldwell, offered

sufficient evidence to conclusively establish that they were agents of the United

States within the meaning of the SAA’s exclusivity provision. See Dearborn, 113

F.3d at 1000 (holding that that private charterer was “agent” of the United States

within meaning of SAA because provisions in agreement with government

indicated that charterer consented to operate ship on the government’s behalf and

subject to its overall control); Favorite v. Marine Personnel & Provisioning, Inc.,

955 F.2d 382, 388 (5th Cir. 1992) (“Because ‘the general statement of an agency

concept . . . include[s] any instrumentality through and by which the public vessels

are operated,’ MTL was an agent of the United States.”); Petition of United States,

367 F.2d at 509–510 (concluding private operator was agent of United States

because it agreed to manage and conduct business of government with respect to

the vessel and government retained overall control and direction of operations).

Thus, we hold that Appellees met their summary-judgment burden as movants.

See TEX. R. CIV. P. 166a(c).        The burden then shifted to Appellants, as

nonmovants, to raise a genuine issue of material fact regarding whether Appellees

were agents within the meaning of the exclusivity provision.        See Palmer v.

Enserch Corp., 728 S.W.2d 431, 435 (Tex. App.—Austin 1987, writ ref’d n.r.e.)

                                        14
(explaining that once summary movant meets its burden with respect to

establishing affirmative defense, then non-movant must adduce evidence raising a

material fact issue on his counter-defense in avoidance of affirmative defense).

      In their summary-judgment response, Appellants made no argument and

offered no proof for the purpose of showing that a material fact issue existed on the

question of agency. Indeed, on appeal, Appellants do not dispute that Appellees

were the government’s agents for purposes of conducting the business operations

of the Benavidez. Rather, Appellants contend that the intentional torts giving rise

to their claims, such as assault, “are outside the scope of an agency relationship.”

Without supporting legal authority, Appellants contend, “The course and scope of

the agency relationship, and whether an agent is acting within it or not, are, at the

very least, questions of material fact and thus inappropriate for summary

judgment.” Appellants, however, did not raise this argument in the trial court.

      We recognize that, if a defendant moves for summary judgment based on the

assertion that suit against it is barred by the exclusivity clause, it is the defendant’s

burden to prove conclusively such defense as a matter of law. See Alexander v.

Walker, 355 S.W.3d 709, 711 (Tex. App.—Houston [1st Dist.] 2011, no pet.). We

also recognize that the non-movant’s failure to answer or to respond cannot supply

by default the summary-judgment proof necessary to establish the movant’s right.

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

                                           15
However, as discussed, Appellees met their summary-judgment burden to show

that they were agents within the meaning of the exclusivity provision in the context

of this litigation.

       It is well-established that a response to a motion for summary judgment

must fairly inform the movant and the trial court of the arguments that the

nonmovant contends defeats the motion. See City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also TEX. R. CIV. P. 166a(c)

(providing that “[i]ssues not expressly presented to the trial court by written

motion, answer or other response shall not be considered on appeal as grounds for

reversal”).   We cannot reverse a summary judgment based on arguments not

expressly presented to the trial court by written motion or other response to the

summary judgment motion. See TEX. R. CIV. P. 166a(c); Clear Creek Basin Auth.,

589 S.W.2d at 678. To the extent that Appellants now assert that the alleged

tortious conduct by Appellees exceeded the scope of the agency, Appellants should

have presented this argument in the trial court for it to be considered on appeal. 4

See TEX. R. CIV. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678. Because

they did not assert the argument in the trial court, we do not consider it on appeal.


4
       We note that at least one court has rejected the argument that the exclusivity
       provision does not apply when the intentionally tortious conduct of a private
       vessel operator exceeds the scope of its agency authority granted by the
       government. See, e.g., River & Offshore Servs. Co. v. United States, 651 F. Supp.
       276, 280 (E.D. La. 1987).
                                          16
See TEX. R. CIV. P. 166a(c); see also TEX. R. APP. P. 33.1(a)(1) (requiring that, as a

prerequisite for presenting a complaint for appellate review, record must show that

the complaint was made to trial court by timely request, objection, or motion);

Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009,

pet. denied) (reasoning that argument not expressly presented to trial court in

response to motion for summary judgment was waived).

      We overrule Appellants’ first issue.

C.    Punitive Damages and Attorney’s Fees

      In their second issue, Appellants contend, as they did in the trial court, that

the SAA’s exclusivity provision does not bar their claims against Appellees for

attorney’s fees and punitive damages because a plaintiff’s remedy is exclusively

against the United States only when a remedy against the United States is

permitted. To reiterate, the SAA’s exclusivity provision states, “If a remedy is

provided by [the SAA], it shall be exclusive of any other action arising out of the

same subject matter against the officer, employee, or agent of the United States . . .

whose act or omission gave rise to the claim.” 46 U.S.C. § 30904. Appellants

correctly point out that they cannot seek attorney’s fees and punitive damages

against the United States.5 Appellants assert that, because they cannot pursue these


5
      Punitive damages are unavailable in actions against the United States absent
      specific statutory authorization. See Kasprik v. United States, 87 F.3d 462, 465
      (11th Cir. 1996) (citing Missouri Pacific R.R. Co. v. Ault, 256 U.S. 554, 564, 41 S.
                                           17
claims against the United States, the SAA permits them to pursue the claims

against Appellees.

      In support of their position, Appellants cite the following federal district

court cases: Shields v. United States, 662 F. Supp. 187 (M.D. Fla. 1987);

Henderson v. Int’l Marine Carriers, 1990 A.M.C. 400 (E.D. La. 1989), aff’d mem.,

921 F.2d 275 (5th Cir. 1990); and Abogado v. Int’l Marine Carriers, 890 F. Supp.

626 (S.D. Tex. 1995).      In Shields, the court determined that the exclusivity

provision did not prevent the plaintiff from seeking punitive damages and

attorney’s fees from his employer, a private operator of a government vessel,

which had failed to pay him maintenance and cure benefits. 662 F. Supp. at 188.

To reach this conclusion, the court relied on the requirement in the exclusivity

provision that a claim will be precluded against an agent only when it arises out of

the same subject matter as a claim for which he has a remedy against the United

States. See id. at 189. In permitting the claim against the agent operator, the

Shields court reasoned that the plaintiff’s claim against the vessel operator, arising

from the arbitrary and willful conduct of its insurance department’s handling of his


      Ct. 593 (1921) (“It is well established that in the absence of specific statutory
      provision for penalties the federal government may not be held liable for damages
      which do not merely compensate but punish.”)). Similarly, attorney’s fees may
      not be awarded against the United States in the absence of specific statutory
      authority. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 267–
      68, 95 S. Ct. 1612, 1626–27 (1975). Neither the SAA or nor the PVA contains a
      provision permitting the recovery of attorney’s fees or punitive damages against
      the United States.
                                         18
maintenance and cure benefits, was “an entirely different subject matter” from the

his negligence and unseaworthiness claims against the United States. Id. at 190.

      Taking an approach similar to that in Shields, the court in Abogado allowed

a plaintiff to pursue his suit for punitive damages against the private operator of a

vessel owned by the United States for the operator’s failure to pay him

maintenance and cure benefits. Abogado, 890 F. Supp. at 631. The court found it

significant that the plaintiff’s punitive damages claim did not arise from “any

action that occurred in the operation of the vessel.” Id. at 632. Instead, the

plaintiff premised his claim on allegations that the private vessel operator’s

employees, who were responsible for administering insurance benefits, had

willfully withheld maintenance and cure benefits from him. Id. The court allowed

the claims; it reasoned that “such office-based, administrative action” by the vessel

operator could not “realistically be said to be part of the possession or operation of

merchant vessels.”    Id.   The court agreed with the plaintiff that the punitive

damages claim was not part of the same subject matter as the plaintiff’s general

maintenance and cure claims, which could be asserted against the United States.

See id. Thus, the punitive damages claim was not covered by the exclusivity

provision. See id. at 631, 634.

      Relying on Shields, the court in Henderson also permitted the plaintiff’s

claim against the operator agent for willful and arbitrary failure to pay maintenance

                                         19
and cure. 1990 A.M.C. at 402. The court based its decision on evidence showing

that the operator agent’s employees, and not those of the United States, were

responsible for the failure to disburse payments to the plaintiff. See id.

      As pointed out by Appellees, the Third, Fourth, and Eleventh Circuits have

analyzed and rejected the reasoning of Shields, Abogado, and Henderson. See

Manuel, 50 F.3d at 1260 (disagreeing with Shields); Kasprik v. United States, 87

F.3d 462, 465–66 (11th Cir. 1996) (adopting Manuel and rejecting Shields); accord

O’Connell v. Interocean Mgmt. Corp., 90 F.3d 82, 85–87 (3d Cir. 1996) (adopting

Manuel and rejecting Shields, Abogado, and Henderson).

      In Manuel, the Fourth Circuit determined as follows:

      The subject matter of this claim under the SAA is the seaman’s
      entitlement to maintenance and cure resulting from his injury while
      employed aboard the ship. We find that the seaman’s action against
      the operator for the arbitrary and willful failure to pay maintenance
      and cure deals with the same subject matter.

50 F.3d 1259. The Fourth Circuit reasoned that “[a]lthough the claim against the

operator highlights the wrongful conduct of the operator’s administrative

employees, the action nonetheless arises from the seaman’s entitlement to

maintenance and cure resulting from his injury while employed aboard the ship.”

Id.

      After a thorough review of the legislative history of the SAA and the

pertinent jurisprudence, the Manuel court explained,

                                          20
      We conclude that Congress intended [the exclusivity provision] to
      require seamen to sue the United States on any maritime action arising
      out of an injury on a ship owned by or operated for the government,
      even if the action arises from the negligence of an agent’s employee.
      Therefore, we conclude that the exclusivity provision . . . was
      intended to require a seaman injured aboard a government-owned ship
      to bring his maintenance and cure action against the United States
      [and not against the private operator of the vessel].

Id. at 1259. The court held that all of the plaintiff’s claims must be brought solely

against the United States, including the willful failure to pay maintenance and cure

for which the plaintiff sought punitive damages and attorney’s fees. See id.

      In reaching its holding, the Manuel court offered the following critique of

Shields:

      Apparently, the Shields court went astray by treating the arbitrary and
      willful refusal to pay maintenance and cure as a cause of action
      separate from the simple failure to pay maintenance and cure benefits
      when due. There is no cause of action specifically for the arbitrary
      and willful refusal to pay maintenance and cure. Under general
      maritime law, a seaman injured while employed aboard a ship is
      entitled to receive maintenance and cure, and he can bring an
      admiralty suit to recover any unpaid maintenance and cure benefits.
      Courts have long awarded punitive damages to seamen where
      maintenance and cure benefits have been arbitrarily and willfully
      denied. Punitive damages, however, is merely an additional remedy
      in the seaman’s maintenance and cure action. The Shields court, in
      effect, turned the punitive damages remedy into a separate cause of
      action.

Id. at 1259–60 (citations omitted).

      At the end of its opinion, the Manuel court offered the following summary:

      Having rejected the reasoning of Shields, we conclude that the
      exclusivity provision . . . bars [plaintiff] Manuel’s proposed action
                                         21
      against [operator agent] IMC for the arbitrary and willful failure to
      pay maintenance and cure. The SAA provides Manuel with a remedy
      against the United States to vindicate his entitlement to maintenance
      and cure. Because of the exclusivity provision, the remedy provided
      by the SAA precludes any action against IMC that deals with the same
      subject matter. Manuel’s proposed action against IMC, although
      highlighting IMC’s wrongful handling of his benefits claim,
      nonetheless arises from his entitlement to maintenance and cure
      resulting from his injury while employed aboard a ship. Because the
      SAA provides a remedy by reason of that subject matter, Manuel
      cannot bring a maintenance and cure claim against IMC.

Id. at 1260 (citations omitted).

      In O’Connell, the Third Circuit adopted Manuel’s holding. 90 F.3d at 86–

87.   The O’Connell court explained that “the reasoning of . . . Manuel is

persuasive, and we have no reluctance in following that rationale. . . . We agree

that an action for arbitrary denial of maintenance and cure benefits when due arises

‘by reason of the same subject matter’ as the available claim against the United

States for maintenance and cure.” Id. Similarly, in Kasprik, the Eleventh Circuit

concluded that “any claim for failure to pay maintenance and cure, even one

alleging the arbitrary and willful denial of such, is ‘by reason of the same subject

matter’ as the seaman’s entitlement to maintenance and cure resulting from his

injury” and thus, per the exclusivity clause, could not be maintained against an

agent of the United States. 87 F.3d at 466.

      Besides the Third, Fourth, and Eleventh Circuit courts, a number of federal

district courts, and the Supreme Court of Alaska, have rejected Shields’s reasoning.

                                        22
Those courts have also held that a plaintiff seaman cannot pursue a willful failure

to pay maintenance and cure claim under the SAA against a private operator agent

of a government-owned vessel. Instead, the plaintiff must pursue all of his claims

against the United States, even though he will not be permitted to recover punitive

damages or attorney’s fees against the government. See, e.g., Reece v. Keystone

Shipping Co., No. C09-1610JLR, 2010 WL 2331068, at *3 (W.D. Wash. Mar. 25,

2010); Sharian v. United States, No. C 98–4578, 1999 WL 1427723, at *3 (N.D.

Cal. Oct. 5, 1999); Stone v. Int’l Marine Carriers, Inc. 918 P.2d 551, 556–57

(Alaska S. Ct. 1996); Stewart v. United States, 903 F. Supp. 1540, 1545 (S.D. Ga.

1995); Smith v. Mar, Inc., 896 F. Supp. 75, 77 (D. R.I. 1995); Fratus v. United

States, 859 F. Supp. 991, 995 (E.D. Va. 1994). In contrast, no reported case has

followed the holdings of Shields, Abogado, and Henderson.

      Unlike the preceding cases, the instant case does not involve the issue of

whether a plaintiff may, under the SAA’s exclusivity clause, pursue a claim for the

willful failure to pay maintenance and cure benefits against a private operator

agent of a government-owned vessel. Nonetheless, the analyses in those cases—

including that found in both the Manuel and the Shields lines of cases—are useful

in determining the issue with which we are presented.

      In plaintiffs’ petition, Robinson “seeks actual damages, exemplary damages

and attorney fees” “[b]y reason of the physical assault upon her person.” Jackson

                                        23
seeks “attorney fees and exemplary damages for the humiliation” arising from the

alleged retaliatory acts and discharge following Jackson’s report of Caldwell’s and

the captain’s misconduct to company representatives.

         The basis for their punitive damages and attorney’s fees claims is also

specifically addressed in Appellants’ summary-judgment response:

         This is a case about a crew member assaulting another crew member
         and the employer openly and callously ignoring and disregarding the
         violent propensities of the attacker. Later, the employer retaliated
         against a witness who stood up and confirmed the attack by the
         perpetrator and Defendant, Patton Caldwell. This is why my clients
         are seeking punitive damages and attorney fees.

         A review of these allegations shows no distinction between them and the

allegations asserted by Appellants to support their maritime claims for which they

seek compensatory damages. In this regard, the present case is distinguishable

from both the Shields and the Manuel lines of cases. All of those cases involved

specific conduct relied on by the plaintiff to support punitive damages and

attorney’s fees that was arguably distinct from the specific conduct alleged to

support the claim for compensatory damages. That distinction was critical in those

cases.

         Here, Appellants’ punitive damages and attorney’s fees claims are not only

“by reason of the same subject matter” but also by reason of the same specific

conduct as their claims for compensatory damages. This is true regardless of


                                         24
whether it can be agreed upon that the claims in the Shields and the Manuel lines

of cases were by reason of the same subject matter.

      Moreover, unlike the allegations in those cases, the conduct asserted to

support the punitive damages and attorney’s fees claims in this case occurred

onboard the Benavidez and, as alleged, relate to, and arise from, the management

and operation of the vessel. Cf. Shields, 662 F. Supp. at 190 (“In the present case,

the plaintiff seeks recovery from Sea-Land not for the wrongful acts of its master

or crew in the management of a United States vessel, but for the arbitrary and

willful conduct of its insurance department.”). In other words, Appellees were

acting as agents of the United States at the time of the alleged misconduct giving

rise to Appellants’ claims. The SAA provides a remedy against the United States

for compensatory damages suffered as a result of the maritime claims alleged by

Appellants.6    See 46 U.S.C. §§ 31102; 30903.            Simply because the remedy


6
       A review of the case law indicates that, for example, Appellants would be
permitted to pursue—though they may not prevail—an unseaworthiness claim against the
United States based on the assaultive and retaliatory conduct, which Appellants allegedly
experienced onboard the Benavidez. See Sloan v. United States, 603 F. Supp. 2d 798,
811 (E.D. Pa. 2009) (evaluating, in suit brought under PVA and SAA against United
States as vessel owner, seaman’s unseaworthiness claims arising from assault and
emotional abuse by fellow crewman onboard vessel); see also Len v. American Overseas
Marine Corp., 171 Fed. App’x. 489, 492 n.2 (5th Cir. 2006) (recognizing that SAA
provides remedy against United States as vessel owner for seaman’s claim of retaliatory
discharge by vessel operator). We do not, however, delve into the merits of any potential
claim at this stage in the analysis. See Nelsen v. Research Corp. of Univ. of Haw., 752 F.
Supp. 350, 355–56 (D. Haw. 1990) (“Plaintiff confuses the question [of] whether he
could actually recover against the United States on the merits of his hypothetical claim
with the narrower jurisdictional inquiry sufficient to satisfy [the SAA],” recognizing that
                                            25
contemplated by the SAA does not encompass punitive damages and attorney’s

fees does not render the remedy permitted under the SAA any less exclusive. See

Stiward v. U.S., Marine Transp. Lines, Inc., No. Civ. A. 05-1926, 2005 WL

3543736, at *5 (E.D. La. Oct. 13, 2005).

      In sum, Appellants seek punitive damages and attorney’s fees for the alleged

assault and subsequent retaliatory conduct by Appellees.        Because the SAA

provides a remedy by reason of that subject matter, Appellants’ claims against

Appellees are barred by the exclusivity provision. See 46 U.S.C. § 30904; Manuel,

50 F.3d at 1260. We hold that the trial court correctly granted Appellees’ motion

for summary judgment and properly dismissed Appellants’ claims with prejudice.

See 46 U.S.C. § 30904.

      We overrule Appellants’ second issue.

                                   Conclusion

      We affirm the judgment of the trial court.



                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Justice Sharp, concurring with the judgment, in an opinion to follow.


the SAA does not require courts “to conduct a mini-trial to determine whether the
plaintiff would in fact prevail against the United States”).
                                        26
