A remedy for the death of a seaman caused by negligence is afforded under the Jones Act, 46 U.S.C. §688, by virtue of its adoption of the Federal Employer Liability Act, 45 U.S.C. §51, et seq., affording remedies for injury or death of a railroad worker in the course of employment. A remedy for death of a seaman caused by an unseaworthy condition of the vessel, while at sea, is provided by the Death on the High Seas Act, 46 U.S.C. §761, et seq. Since the decision in Moragne v. States Marine Lines, Inc.,supra, an unseaworthiness remedy for the death of a seaman in state waters has been provided under the common law death remedy recognized in that case.

The Jones Act death remedy was restricted by case law to the recovery of pecuniary losses. Ivy v. Security Barge Line, Inc., 606 F. 2d 524 (5th Cir. 1979); Docarmo v. F/V PILGRIM I Corp., 612 F. 2d 11 (1st Cir. 1979); Nygaard v. Peter Pan Seafoods, Inc., 701 F. 2d 77 (9th Cir. 1983). This result is based on the original interpretation of the FELA as allowing only for the recovery of pecuniary loss. Michigan Central RR Co. v. Breland, 227 U.S. 59, 33 S.Ct. 192 (1913). In this respect, the damages are identical to those allowed under the Death on the High Seas Act. Mobil Oil Corp. v. Higginbotham, supra. The pecuniary losses recoverable include the loss of financial support to dependent family members and the loss of inheritable estate, the loss of the value of the services of the decedent to the household, and the loss of the value of parental guidance to minor children. See, for example: Higginbotham v. Mobil Oil Corp., 360 F. Supp. 1140 (W. D. La. 1973); and DeCenteno v. Gulf Fleet Crews, Inc., 798 F.2d 138 (5th Cir. 1987).

Since the decision in Higginbotham holding that in cases governed by the Death on the High Seas Act, damages for loss of society could not be recovered, the circuits uniformly reached the same result in cases where death resulted from Jones Act negligence. Ivy v. Security Barge Line, Inc., supra. However, where a seaman's death resulted from unseaworthiness and occurred in state waters, the circuits were fairly uniform in applying the maritime common law death recognized in Moragne v. States Marine Lines, Inc., supra, and Sea Land Services, Inc. v. Gaudet, supra, to allow the recovery of damages for loss of society of the deceased, at least by dependent family members. Smith v. Ithica Corp., 612 F. 2d 215 (5th Cir. 1980); Miles v. Melrose, 882 f. 2d 976 (5th Cir. 1989). By virtue of the adoption of the FELA, the Jones Act also provides the estate of a deceased seaman with the benefit of 45 U.S.C. §59, providing that the injured seaman's cause of action shall survive to his estate. This statute allows the estate of a deceased seaman to recover damages for any loss of earnings between injury and death, any medical expenses prior to death, and damages for the conscious pain and suffering of the deceased. Snyder v. Whittaker Corp, 839 F. 2d 1085 (5th Cir. 1988); Greene v. Vantage S.S. Corp., 466 F. 2d 159 (4th Cir. 1972); Cook v. Ross Island Sand and Gravel Co., 626 F.2d 746 ( 9th Cir. 1980).

The decision of the Supreme Court in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317 (1990), ended most argument about the damages recoverable in a seaman's death case. There the court was directly confronted with the question of whether the deceased seaman's parents could recover damages for loss of society under the maritime common law death remedy recognized in Moragne and Gaudet. The court answered in the negative, holding that it was controlled by the logic of Higginbotham to restrict the damages to those allowed under the Jones Act death remedy: "It would be in consistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence. We must conclude that there is no recovery for loss of society in a general maritime cause of action for the wrongful death of a Jones Act seaman." [498 U.S. at 33, 34]

The court also addressed the question of whether, in the survival action permitted by 45 U.S.C. §59, the estate of the deceased seaman can recover his lost future earnings. In this case, as in many others, the decedent was not married and had no dependents, so that there were no beneficiaries entitled to recover damages for loss of economic support. The court declined to address the question of whether the general maritime law affords a common law survival action independent of statute. See Barbe v. Drummond, 507 F. 2d 794 (1st Cir. 1974); Law v. Sea Drilling Corp., 523 F. 2d 793 (5th Cir. 1975). Although the court again recognized that ". . . it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy" The Seagull, 21 F. Cas. 909 (C.C. Md. 1865), the court held that recovery under the statutory survival remedy is limited to losses suffered during the decedent's lifetime. These rulings left the parents of the deceased seaman with only a relatively small award for pre-death pain and suffering.

Although Miles did not mention the question of punitive damages, the decision has almost uniformly been interpreted as also precluding the recovery of punitive damages in a seaman's case, including maintenance and cure claims. Guevara v. Maritime Overseas Corp., 59 F. 3rd 1496 (5th Cir. 1995); Glynn v. Roy Al Boat Mgmt. Corp., (9th Cir. 1995).

In the death of a non-seaman, including a passenger, occurring on the high seas, the Death on the High Seas Act allows only the recovery of pecuniary losses, which include loss of financial support to dependent family, loss of inheritable estate, and loss of the services of the decedent to the household. The statutory remedy cannot be supplemented by general maritime law to permit recovery of damages for loss of society, nor may state law be used to supplement DOHSA. Offshore Logistics, Inc. v. Tallentire, supra. In a more recent decision, Zicherman v. Korean Airlines Co., Ltd. 516 U.S. 217, 116 S. Ct. 629 (1996), the court reaffirmed that damages for loss of society are not recoverable in any case governed by DOHSA:

"Section 762 of DOHSA provides that the recovery in a suit under s 761 "shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." 46 U.S.C.App. s 762. Thus, petitioners cannot recover loss-of-society damages under DOHSA. Moreover, where DOHSA applies, neither state law, see Offshore Logistics, Inc. v. Tallentire . . . nor general maritime law, see Mobil Oil Corp. v. Higginbotham, . . . can provide a basis for recovery of loss-of-society damages. [516 U.S. at 230]

A footnote in Zicherman points out that the award of damages for pain and suffering was not challenged in the petition for certiorari, and therefore that question was not addressed by the court. Unfortunately, that question was addressed in the most recent decision of the Supreme Court in a marine death case. In Dooley v. Korean Airlines Co., Ltd. _____U.S.________, 118 S.Ct. 1890 (1998), the court, in its most restrictive opinion yet, held that DOHSA preempts any maritime common law survival action. Thus, the court held that the estates of the decedents in this air crash could not recover any damages for pre-death pain and suffering:

DOHSA provides a cause of action for "the death of a person ... caused by wrongful act, neglect, or default occurring on the high seas," §761; this action must be brought by the decedent's personal representative "for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative," ibid. The Act limits recovery in such a suit to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought." § 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, "the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762." §765. . . . DOHSA does not authorize recovery for the decedent's own losses, nor does it allow damages for non-pecuniary losses. [118 S.Ct. at 1894]

Conceding that DOHSA does not authorize recovery for a decedent's pre-death pain and suffering, petitioners seek to recover such damages through a general maritime survival action. Petitioners argue that general maritime law recognizes a survival action, which permits a decedent's estate to recover damages that the decedent would have been able to recover but for his death, including pre-death pain and suffering. And, they contend, because DOHSA is a wrongful death statute--giving surviving relatives a cause of action for losses they suffered as a result of the decedent's death--it has no bearing on the availability of a survival action.

We disagree. DOHSA expresses Congress' judgment that there should be no such cause of action in cases of death on the high seas. By authorizing only certain surviving relatives to recover damages, and by limiting damages to the pecuniary losses sustained by those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas. [118 S.Ct. at 1894, 1895]

The comprehensive scope of DOHSA is confirmed by its survival provision, see supra, at 1894, which limits the recovery in such cases to the pecuniary losses suffered by surviving relatives. The Act thus expresses Congress' "considered judgment," Mobil Oil Corp. v. Higginbotham, . . . on the availability and contours of a survival action in cases of death on the high seas. For this reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision. Indeed, Congress did so in the same year that it incorporated into the Jones Act, which permits seamen injured in the course of their employment to recover damages for their injuries, a survival action similar to the one petitioners seek here. . . . Even in the exercise of our admiralty jurisdiction, we will not upset the balance struck by Congress by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt. [118 S.Ct. at 1895]

This decision all but eliminates any damage recovery for the children killed in that air crash, as it probably also will in the more recent TWA Flight 800 disaster if DOHSA is ultimately applied to that case. Indeed, the parents of children killed in DOHSA accidents may only have claims for loss of services and support expected to be received from their children as they aged, if such can be proven. Saavedra v. Korean Air Lines Co. Ltd., 93 F.3d 547 (9th Cir. 1996).

Since the adoption of the Death on the High Seas Act, the courts have struggled with the question of what law should apply to deaths occurring in state waters when Jones Act status is absent and DOHSA cannot apply. Before the adoption of DOHSA, the courts had looked to applicable state wrongful death statutes. The Hamilton, 207 U.S. 398, 28 S.Ct. 133 (1907). After DOHSA, the courts applied state statutes, where they provided a remedy, to all actions from deaths occurring in state waters, except those governed by the Jones Act. This created a number of anomalies, such as a seaman's death due to negligence resulting in recovery of Jones Act damages, while the remedy for death caused by unseaworthiness alone was the measure of damages provided by applicable state law, Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308 (1964); or even a absence of a remedy for death caused by an unseaworthy condition, where state law did not allow liability without fault, The Tungus v. Skovgard, 358 U.S. 588, 79 S.Ct. 503 (1959); Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207 (1930). This led to the decisions in Moragne and Gaudet, creating a maritime common law remedy applying in state waters.

All of this changed, however, with the decision in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619 (1996). With a recognition that remedies fashioned for the deaths of seamen and others who work aboard commercial vessels frequently provide an inadequate remedy where the victim is a child, or is elderly, without dependent family. The court prescribed the application of state wrongful death statutes to actions not governed by federal law, by its strict reading of DOHSA:

Section 7 of DOHSA states: "The provisions of any State statute giving or regulating rights of action or remedies for death [516 U.S. 216] shall not be affected by this chapter." 46 U.S.C.App. s 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See Miles, 498 U.S., at 25, 111 S.Ct., at 321-322; Tallentire, 477 U.S., at 224-225, 106 S.Ct., at 2495-2496; Moragne, 398 U.S., at 397-398, 90 S.Ct., at 1785-1786. Taking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters. [516 U.S. at 214]

The result in Calhoun permits the application of the state wrongful death remedy to a variety of pleasure boat and other accidents not involving commercial marine activities, to permit the recovery of non-pecuniary damages. American Dredging Co. v. Lambert, 81 F. 3rd 127 (11th Cir. 1996) (applying the Florida Wrongful Death Act). In Louisiana, for example, the provisions of Louisiana Civil Code §2315 would apply to a death on a pleasure boat, permitting the recovery of general damages for loss of consortium, service and society of the deceased. Kelly v. Bass Enterprises, 17 F.Supp.2d 591 (E.D.La. 1998). Another recent case is Brodtmann v. Duke, 708 So. 2d 447 (La.App.4th Cir.1998), where the court affirmed the award of $500,000.00 in general damages to the widow of the decedent, plus a total of $450,000.00 in general damages to his children, in addition to the amount awarded for loss of economic support.

It is apparent that only in Alabama, where the state wrongful death statute permits the recovery of only punitive damages for negligence, will state law not be applied. See In Re Amtrak "Sunset Ltd." Train Crash, 121 F. 3rd 1421 (11th Cir. 1997), where the court held that application of the Alabama Wrongful Death Statute would not be permitted because it ". . . would deprive the litigants of substantial admiralty rights. . . ." The court held that the wrongful death plaintiffs would have damage recoveries provided under Moragne v. States Marine Lines, supra, which presumably would include pecuniary losses plus damages for loss of society and damages for pain and suffering before death. The court also held that the wrongful death plaintiffs ". . . may recover punitive damages upon a showing of ‘intentional or wanton and reckless conduct' on the part of defendants amounting to a ‘conscious disregard of the rights of others' ", under the standards for imposition of punitive damages under Admiralty law.

The final irony in the current state of the law is that in third party wrongful death actions, where the decedent was covered by the Longshore and Harborworker's Compensation Act, 33 U.S.C. §901, et seq., the maritime common law wrongful death remedy recognized in Moragne v. States Marine Lines, supra, and Sea Land Services, Inc. v. Gaudet, supra, remains applicable. The Supreme Court, in its decision in Miles v. Apex Marine Corp., supra, narrowed the application of Gaudet, allowing the recovery of damages for loss of society, only to deaths occurring in territorial waters, and held it applies only to longshoremen. The subsequent decision in Yamaha Motor Corp. v. Calhoun, supra, did not extend state death remedies to longshoremen or others engaged in traditional maritime commercial activity. Therefore, in the death of a longshoreman or other marine worker similarly situated, the Moragne-Gaudet remedy would still apply to allow the recovery of damages for pecuniary losses, damages for loss of society, and damages for pre-death pain and suffering. Obviously, under the above decisions, the death of a longshoreman occurring on the high seas would be limited to damages for pecuniary losses only.

A collateral issue of interest is where the line is drawn between state waters and the high seas. Traditionally, that line was one marine league from land, or three miles. However, President Reagan's 1988 proclamation establishing the boundary for U.S. territorial waters at 12 nautical miles may also have changed the DOHSA high seas boundary to twelve miles from shore, although lower court decisions are in conflict on this. In Francis v. Hornbeck Offshore (1991) Corp., 1997 W.L. 20740 (E.D.La 1997) Judge Eldon Fallon ruled that the proclamation did not act to extend the DOHSA line beyond the three mile limit. On the other hand, In Re Air Crash off Long Island, 1998 WL 292333 (S.D.N.Y .June 2,1998), the District Court denied a motion to dismiss non-pecuniary damages because the plane crash occurred eight miles from the shore and was not controlled by DOHSA. In a later published opinion, the court certified the question for appeal to the Second Circuit, 27 F.Supp.2d 431 ( S.D.N.Y. Nov. 12, 1998).

As this paper is written, interested parties are lobbying the U.S. Congress for the passage of some type of amendment to the Death on the High Seas Act. The impetus from this was the application of DOHSA to the victims of the TWA Flight 800 casualty, combined with the recent decisions in Zicherman v. Korean Airlines, and Dooley v. Korean Airlines, virtually eliminating damages for the deaths of children and elderly people who died in that crash. A bill to exempt aviation accidents from the application of DOHSA was introduced and passed in the House last year, but the Senate bill failed in committee. Efforts to add an amendment which would expand damages recoverable in marine disasters also failed. Similar legislation has recently been re-introduced in Congress, but the bills are presently written in such a manner as to grant relief from DOHSA only to the victims of aviation--not marine--tragedies.

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