1 DAMAGES RECOVERABLE UNDER THE DEATH ON THE HIGH SEAS ACT Ross Diamond III Mobile, Alabama (251) History Lessons Any discussion of e Dea on e High Seas Act needs to begin wi e historical fact at, prior to e adoption of e statute, e courts of e United States did not recognize e existence of any wrongful dea remedy under e General Maritime Law. The Harrisburg, 119 U.S. 199 (1886). Occasionally, based on e wording of individual state statutes, e courts had allowed wrongful dea recovery under a state dea statute which would oerwise apply to e parties, for a dea occurring on e high seas. The Hamilton, 207 U.S. 398 (1907). However, many state dea statutes were not applicable out of e state. Congress sought to remedy is situation by e adoption of e Dea on e High Seas Act in 1920, which was originally codified at 46 U.S.C. 761, et seq. Title 46 was recently re-codified and e statute is now found at 46 U.S.C rough The statute, for seafarers and vessel passengers, provides as follows: Short title This ch apter may be cited as e "Dea on e High Seas Act" Cause of action When e dea of an individual is caused by wrongful act, neglect, or default occurring on e high seas beyond 3 nautical miles from e shore of e United States, e personal representative of e decedent may bring a civil action in admiralty against e person or vessel responsible. The action shall be for e exclusive benefit of e decedent's spouse, parent, child, or dependent relative Amount and apportionment of recovery The recovery in an action under is chapter shall be a fair compensation for e pecuniary loss sustained by e individuals for whose benefit e action is brought. The court shall apportion e recovery among ose individuals in proportion to e loss each has sustained Contributory negligence In an action under is chapter, contributory negligence of e decedent is not a
2 bar to recovery. The court shall consider e degree of negligence of e decedent and reduce e recovery accordingly Dea of plaintiff in pending action If a civil action in admiralty is pending in a court of e United States to recover for personal injury caused by wrongful act, neglect, or default described in section of is title and e individual dies during e action as a result of e wrongful act, neglect, or default, e personal representative of e decedent may be substituted as e plaintiff and e action may proceed under is chapter for e recovery auorized by is chapter. In Moragne v. United States Lines, Inc., 398 U.S. 375 (1970), e Supreme Court overruled The Harrisburg, holding at e General Maritime Law does include a common law wrongful dea remedy; and in Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573 (1974), held at e common law damages included not only loss of support, but also loss of e companionship and society of e decedent, and a survival action for e pain and suffering of e decedent. However, e Supreme Court was quick to confine e common law wrongful dea remedy to cases in which e measure of damages is not governed by a federal statute. In Mobil Oil Corp. v. Higginboam, 436 U.S. 618 (1978), e court held at since Congress had specified in DOHSA at e damages recoverable were... a fair compensation for e pecuniary loss sustained by e individuals for whose benefit e action is brought..., e courts were not free to supplement at measure of damages under a common law remedy. The court later extended e same logic to Jones Act dea cases in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), holding at e parents of a deceased seaman could not recover damages for loss of society because e Jones Act (formerly 46 U.S.C. 688, re-codified as 46 U.S.C ) had been uniformly interpreted as allowing e recovery of only pecuniary losses for e dea of a seaman. The Jones Act provides seaman wi e remedies for injury and dea provided e railroad workers under e Federal Employer s Liability Act, 45 U.S.C. 51. That statute had been interpreted as allowing only e recovery of pecuniary losses for e dea of a railroad worker at least since e decision in Michigan Central R. Co. v. Vreeland, 227 U.S. 59 (1913). Therefore, in cases governed by DOHSA involving e deas of seaman, oer marine employees, or vessel passengers, e wrongful dea damages are now limited to e recovery of
3 pecuniary losses sustained by surviving family members. The one exception to is is at under e Jones Act, a seaman s claim for personal injuries survives to his estate by virtue of F.E.L.A. 59, permitting e estate of e deceased seaman to recover damages for e decedent s conscious pre-dea pain and suffering (along wi any loss of earnings or medical expenses between injury and dea) where ose losses are proven by e evidence. Deal v. A.P. Bell Fish Co., 728 F.2d 717 (5 Cir.1984); Thompson v. Offshore Co., 440 F. Supp. 752 (S.D. Tex.1977). However, in Miles, e Supreme Court held at e survival remedy did not include recovery of e deceased seaman s loss of future earnings over work life expectancy. Unfortunately, non-seamen do not have a survival remedy under DOHSA. The Supreme Court, in Dooley v. Korean Airlines Co., Ltd., 524 U. S. 116 (1998), declined to extend general maritime law to permit recovery for pre-dea pain and suffering under a general maritime law survival cause of action. In Dooley, e Court rejected e argument at DOHSA, which does not auorize recovery for pre-dea pain and suffering, did not bar such damages under general maritime law because DOHSA is a wrongful-dea statute raer an a survival statute. The Court stated at: DOHSA expresses Congress' judgment at ere should be no such cause of action in cases of dea on e high seas. By auorizing only certain surviving relatives to recover damages, and by limiting damages to e pecuniary losses sustained by ose relatives, Congress provided e exclusive recovery for deas at occur on e high seas. The Court noted at "Because Congress has already decided ese issues, it has precluded e judiciary from enlarging eier e class of beneficiaries or e recoverable damages." Finally, state wrongful dea statutes cannot be used to supplement damages in cases where DOHSA applies, under e decision in Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207 (1986).
4 Pecuniary Damages Recoverable under DOHSA Loss of Support The Dea on e High Seas Act specifically allows for e recovery of e financial support and contributions e deceased would have made to dependent family if he or she had lived. See, for a good example, e district court opinion on damages in Higginboam v. Mobil Oil Corp., 360 F.Supp (W.D. La. 1973). For a comprehensive listing of cases on recovery of financial support, see Dea on e High Seas Act--Damages, 16 A.L.R. Fed Recovery for loss of support requires some showing of dependence on e deceased or an expectation of support. Bergen v. F/V St. Patrick, 816 F.2d 1345 (9 Cir. 1987). The claim for loss of support is not e same as a claim for e decedent s future earnings, since e earnings must be reduced by income taxes and also by e amounts at e deceased would have consumed himself in order to reach an amount (hereafter referred to for e purposes of is paper as disposable Income ) available for e support of family members. Martinez v. Puerto Rico Marine Management, Inc., 755 F. Supp (S.D. Ala. 1990); Matter of Adventure Bound Sports, Inc., 858 F.Supp (S.D.Ga. 1994); and Rohan v. Exxon Corp., 896 F. Supp. 666 (S.D.Tex. 1996). As ose cases illustrate, e awards should be adjusted for expected increases in e decedent s earnings, and en reduced to present value at e after-tax earnings rates on e safest available investments. This absolutely requires e testimony of an economics expert. See, for example, e loss calculation tables prepared by e plaintiffs economist which were incorporated into e opinion in Martinez. Spouses are normally entitled to claim loss of support from earnings over e work life expectancy of e deceased, and from projected retirement pension or Social Security benefits unless ose benefits are already being paid. Adventure Bound Sports, supra. Children are usually permitted to recover support until e age of majority, alough under exceptional circumstances proven by e evidence, some cases have awarded support beyond at. In Hamilton v. Canal Barge Co., 1977 A.M.C (E.D. La. 1975), e court awarded loss of support until e child reached age 22 because it appeared likely at he would attend college.
5 In some cases, on an appropriate showing, e courts have awarded damages for e cost of a college education. Solomon v. Warren, 540 F.2d 777 (5 Cir. 1976). Compare e awards to e families of e two decedents in Adventure Bound Sports, supra. In at case, one decedent left a widow and two sons, who had all lived togeer. Since at family was being compensated for all of e decedent s after-tax earnings at he would not have consumed himself, and from which he would have paid e cost of college educations, no additional funds were awarded for at purpose. The oer decedent was divorced and left two children who did not live wi him. Those children were awarded loss of e child support he was required to pay under state law. Since ose amounts would not consume his disposable earnings, and e court found at e children were likely to attend college, ose additional costs were awarded to each child. Loss of Inheritance Spouses and children, whose life expectancies exceed e life expectancy of e deceased, have a reasonable expectation of benefiting from any prospective accumulation of e decedent s estate. Therefore, loss of inheritance can be a legitimate pecuniary loss in a DOHSA action. Solomon v. Warren, supra; Cox v. Norwest Airlines, Inc., 379 F.2d 893 (7 Cir. 1967); National Airlines, Inc. v. Stiles, 268 F.2d 400 (5 Cir. 1959). Again, compare e awards to e two families in Adventure Bound Sports, supra, which make it clear at loss of inheritance can be a separate item of pecuniary loss only when e support awards do not consume all of e decedent s disposable income. The pecuniary losses sustained by children do not necessarily end at e age of majority. If e evidence in a case indicates at e decedent would have continued to accumulate assets and enlarge his inheritable estate had he lived, at can constitute a separate pecuniary loss recoverable by e family. In e case of adult children surviving a decedent, at may be e only pecuniary loss ey can claim. If e decedent was a young, high wage earner, is loss can be substantial. See Rohan v. Exxon Corp., supra, where e plaintiff s economist projected at e inheritance of e decedent s daughter would exceed $1,200,
6 Loss of Services of e Deceased The loss of e household services performed by e decedent, such as lawn maintenance work, painting and repair of e family home, maintenance of e family vehicles, and providing transportation to family members, constitutes pecuniary losses to e family. Sea-Land Services, Inc., v. Gaudet, 414 U.S. 573 (1974); and Tallentire v. Offshore Logistics, Inc., 754 F.2d 1274, 1287 (1985), reversed on oer grounds 477 U.S. 207 (1986) where e Fif Circuit had remanded e case to e District Court to determine e value of e decedent s repair work on e home and family automobiles. To recover for is pecuniary loss, a claimant must present testimony assigning a value to e services performed by e decedent. Ivy v. Security Barge Lines, 585 F.2d 732, 740 (5 Cir. 1978). One way of proving at value is to have e widow or oer family members testify as to e number of hours per week e decedent spent performing household chores, and how much e family has paid for oer persons to perform ose services after e decedent s dea. Adventure Bound Sports, supra at The plaintiff need not prove e value of such services wi maematical precision. In e District Court opinion in Higginboam, supra at 1144, no specific evidence was cited, and e opinion simply states at The Court is aware at services such as ese have a value which e Court estimates at approximately $50.00 per mon. Recovery of damages for loss of household services requires proof at such services were expected and likely to be provided, but for e wrongful dea. Bergen v. F/V St. Patrick, supra; Verdin v. C & B Boat Co., Inc., 860 F.2d (5 Cir. 1979). However, where some evidence of e value of e services performed by e decedent has not, or can not, be offered at trial, no damages can be awarded for loss of services. In Martinez v. Puerto Rico Marine Management, Inc., supra, e decedents were Honduran fishing boat captains and it was not possible to produce any reliable evidence of e value of eir services in e economy of at country. Loss of Nurture, Guidance and Instruction The loss to children of e nurture, instruction, guidance and e physical, intellectual and moral training at ey would have received from eir parent, but for e wrongful dea of a
7 parent, constitutes a pecuniary loss recoverable under DOHSA. This pecuniary value was illustrated by e District Court opinion in Higginboam, supra at 1144, where e court found: Higginboam provided e guidance, care and discipline of a good faer to e minor child Donna, who was residing in his household. His moral qualities, sense of values, beliefs and experiences in life, when considered wi e close relationship at existed between him and his child, leads is Court to conclude at e minor child has sustained, during her minority, and will continue to sustain, furer loss from e lack of her faer s care, guidance and discipline. This item of damages is assessed at $2, a year for e child roughout her minority and school years. See also Solomon v. Warren, supra, and Nygard v. Peter Pan Fisheries, 701 F.2d 77 (9 Cir. 1983). Solomon contains a lengy discussion of e loss of care, nurture and guidance wi much favorable language. In at case, e ree children of e decedent had all reached e age of eighteen at e time of his dea. The issue was wheer e court s award of $25, per child for post-majority loss of care and guidance was appropriate. The Fif Circuit found at ere was no evidence in is case to support such an award. However, in reaching at decision, e court reviewed e law wi respect to care, nurture and guidance for children under e age eighteen. In describing ese losses, e court stated: Wiout serious dispute, children may suffer a pecuniary deprivation, apart from e loss of support and financial contribution, from e dea of eir parents in e loss of parental guidance and training, commonly identified as a loss of nurture... Alough is item damages can not be computed wi any degree of maematical certainty, e courts in applying e strictured pecuniary loss test of DOHSA have held at e loss to children of e nurture, instruction, and physical, intellectual, and moral training at ey would have received from eir parents, but for e parent s wrongful dea, may constitute a pecuniary loss, and as such may be a recoverable element of damages under DOHSA. [Solomon, 540 F. 2d at 788.] In at case, e court indicated at claimants must present evidence at ey would have received or did received in e past care, nurture and guidance from eir parent prior to his or her dea. In declining to award such damages to e children who were past e age of majority in at particular case, e Solomon court specifically noted at damages of is type were important for minors in eir formative years.
8 Alough e value of care, nurture and guidance may not be capable of computation wi any maematical certainty, e child of e decedent must noneeless present evidence as to e monetary value of e services. Martinez v. Port Rico Marine Management, Inc., supra. One way of producing at type of evidence would be rough e testimony of a vocational counselor who can testify as to e rates of pay in various occupations in e community. In Adventure Bound Sports, supra at 1201, e court pointed out at e plaintiffs had offered evidence concerning e salaries of teachers, guidance counselors, and psychologists, professions at ey analogize to e roles at e faer would have filled in raising his sons. Considering is evidence and acknowledging e difficulty of reducing to an economic figure what is to ese children an invaluable loss, e court went on to award each of e decedent s sons $10, per year rough eir eighteen birday. Wheer e child lived wi e decedent is a factor at e courts have considered in e determining e amount of damages to award for loss of care, nurture and guidance. See Barrett v. United States, 660 F. Supp (S.D.N.Y. 1987) where e court held at is element of damages must be limited because e child was in her moer s custody at e time of her faer s dea. See also matter of Adventure Bound Sports, Inc., supra, where e court awarded more money in loss of care, nurture and guidance to e children who lived at home wi eir faer, an to e children of e oer decedent who was divorced and his children lived wi eir moers. Finally, attempts to maximize e decedent s earning capacity in order to increase e loss of support claim may have e effect of limiting e damages recoverable for loss of nurture and guidance. In Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138 (5 Cir. 1986) e plaintiff argued at e decedent would have worked at sea twelve mons out of e year. The Fif Circuit remanded e case for a new trial on damages because, among oer ings, e damage award for loss of nurture and guidance was too high, considering e limited amount of time he would have left to spend wi his children. Funeral Expenses Funeral expenses are allowed as pecuniary loss only if paid by e decedent s dependents. Sea-Land Services v. Gaudet, supra at 591; Wilhelm Seafoods, Inc. v. Moore, 328 F.2d 868 (5 Cir. 1964). At least one case has held at funeral expenses are not a pecuniary loss
9 under DOHSA if paid by e decedent s estate raer an by e decedent s dependents. Barbe st v. Drummond, 507 F.2d 794 (1 Cir. 1974). Commercial Aviation Amendment It is obvious at when e U.S. Congress was drafting e Dea on e High Seas Act in 1920, e focus was on e men and women who went to sea on ships to work and support eir families. The damages allowed by e statute would replace e support being provided by e family bread winner. However, in oer contexts, e DOHSA limits on damages can be cruel. Where e decedent is an elderly retiree, no longer supporting anyone and consuming, raer an accumulating, and inheritable estate, or is a teenage boy who has no income and no dependents, but is e pride and joy of his family, e Dea on e High Seas Act can leave surviving family members wi a great loss, but no recoverable damages. One of e harshest examples of e results of DOHSA damages is found in e decision in Tucker v. Fearn, 333 F.3d 1216 (11 Cir. 2003). In at case, e plaintiff s eighteen year old son was killed in a pleasure boat collision in Alabama state waters. DOHSA does not apply on its face to at accident. However, e Eleven Circuit had previously held at e Alabama Wrongful Dea Act could not be applied in pleasure boat accidents because it allowed only e recovery of punitive damages for negligence, ereby conflicting wi established maritime law principles. The plaintiff argued for loss of society damages under Moragne v. States Marine Lines, Inc., supra, and Sea-Land Services, Inc., v. Gaudet, supra. The Eleven Circuit rejected at argument based on dicta by e Supreme Court in Miles v. Apex Marine, 498 U.S. at 31, to e effect at e Moragne-Gaudet remedy applies only to longshoremen. The Eleven Circuit ereby felt constrained to allow only damages recoverable under DOHSA, leaving e faer wi only funeral expenses as a recoverable loss if he prevailed on liability. There was no such ing as commercial aviation when e Dea on e High Seas Act was adopted in However, e deas of commercial aircraft passengers at sea come wiin e maritime law and e coverage of e Dea on e High Seas Act. See Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), rejecting claims for loss of society damages based on DOHSA, and Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998), denying recovery of damages for pre-dea pain and suffering on e basis at e survival section of DOHSA, 46
10 U.S.C , permitted e personal representative of e decedent to pursue only e remedies provided by e Act. It took a major disaster to motivate Congress to make a partial change in e Dea on e High Seas Act. On July 17, 1996, TWA Flight 800 departed New York for Paris, France, and Rome, Italy. Shortly after takeoff, e plane exploded in mid air and crashed approximately eight nautical miles sou of e shore of Long Island, New York. Everyone on board died, including a large number of high school students from Pennsylvania. Their families were shocked to learn at e Dea on e High Seas Act would allow em no damages for eir losses, and persuaded Republican Senator Arlen Specter to take e lead on an amendment to e Dea on e High Seas Act to eliminate is draconian result under DOHSA. In 2000 bo houses of Congress passed a bill to amend e Act, calling it to be retroactive to commercial aviation crashes occurring on or after July 16, That amendment is now found in 46 U.S.C , which provides as follows: (a) Definition. In is section, e term "nonpecuniary damages" means damages for loss of care, comfort, and companionship. (b) Beyond 12 nautical miles. In an action under is chapter, if e dea resulted from a commercial aviation accident occurring on e high seas beyond 12 nautical miles from e shore of e United States, additional compensation is recoverable for nonpecuniary damages, but punitive damages are not recoverable. (c) Wiin 12 nautical miles. This chapter does not apply if e dea resulted from a commercial aviation accident occurring on e high seas 12 nautical miles or less from e shore of e United States. Therefore, for commercial aviation accidents only, e amendment made ree major changes. One was allowing e recovery of damages for loss of care, comforting and companionship, as nonpecuniary damages; anoer was extending e boundary line for DOHSA to apply to aviation accidents to twelve nautical miles offshore, and extend e operation of state wrongful dea statutes out to twelve nautical miles for aviation accidents; leaving e demarcation line for vessel casualties at ree nautical miles. Interestingly, before e amendment was signed into law e Second Circuit issued an nd opinion in In Re: Air Crash off Long Island, New York on July 17, 1996, 209 F.3d 200 (2 Cir. 2000) holding at a presidential proclamation extending e territorial sea of e United States to twenty four nautical miles had e effect of altering e definition of High Seas to e
11 oceans beyond at distance. The effect of is ruling would have excluded claims arising out of e crash of TWA Flight 800 from DOHSA, and placed em under e New York Wrongful Dea Act. After e passage of e commercial aviation amendment, it is doubtful at is decision has any value as precedent for non-aviation cases. Does is change in DOHSA make a difference? Yes, and it can be substantial. One example can be found in Makary v. EgyptAir (In Re Air Crash Near Nantucket Island, Massachusetts), 462 F.Supp.2d 360 (E.D.N.Y. 2006), where e damages awarded by e District Court, sitting non-jury, added reasonable damage awards for loss of society to e nominal pecuniary damages awarded to most of e eight plaintiffs in at case. CONCLUSION We now have e Dea on e High Seas Act in a form which is not only illogical, but now provides remedies for air crashed victims which are so disparate from e remedies allowed to victims of vessel causalities as to have equal protection implications. Will it take a major disaster, such as e crash of an airliner into a cruise ship, for Congress to take action and do what is right? The statute is now grossly unfair and Congress should act immediately to amend DOHSA so as to allow e recovery of nonpecuniary damages for loss of society to e victims of all marine causalities, wheer by air or by sea.