The law ought to be fair, consistent, and up to date. It ought to make people whole for their losses and compensate them for the real damage they suffer. Now, in wrongful death cases on the high seas, it does none of those things but the U.S. Senate currently has a chance to fix this defect and it is time to do so.
11 men died in the initial explosion on the Deepwater Horizon. Their survivors have appeared before several Congressional committees and explained why the law today is unfair. It is unjust because neither the Jones Act nor the Death on the High Seas Act (DOHSA) – the maritime statutes that define survivors’ rights in the Deepwater Horizon tragedy-provide “loss of society” damages to compensate for the lost comfort, care and companionship of their deceased loved ones. The majority of American jurisdictions today do recognize these rights in wrongful death cases, but not under these maritime laws, both passed in 1920.
All of the survivors-two wives, a father, and a brother–eloquently described the terrible emotional loss they have suffered and the devastating effects of the deaths of their loved ones on the children of the deceased workers. Yet today, none of those very real emotional damages are recoverable under the applicable law. All that is recoverable is purely economic damage, such as loss of support, loss of services, and funeral expenses. But, the law treats the relationship itself—the essence of the connection between people—as worthless. In terms of the love and care lost, the lost life is treated as if it has no value. That fact is morally offensive and logically incoherent. Loss of society damages are, as noted, available in most tort cases on land and are available for the survivors of those killed in high season commercial aviation disasters. The law should be the same for all and it is time to make it so.
President Obama has met with some of the survivors and pledged his support, and Congress has held hearings to discern whether current laws adequately protect the victims of this catastrophe. On July, the House passed a bill, Rep. Conyers’ H.R. 5503, that would allow the survivors of someone killed on the high seas to recover loss of society damages. Now, the Senate can and should do the same thing. Legislation is already pending in the Senate that would implement the necessary change, Senator Patrick Leahy’s S. 3463. It is time to pass that law.
I have been honored to have appeared with the survivors before the U.S. House and Senate Judicial Committees and the Senate Committee on Commerce, Science, and Transportation. No one at those hearings spoke against the changes described above. Now, I have heard that there are companies who claim that allowing recovery of loss of society damages might increase the cost of doing business for some. If this change in the law would now force maritime actors to have to consider the real emotional costs of deaths they cause, so be it. Perhaps if they were forced to do so, the world would be a safer place and none of this would ever have happened.Read Full
Following the BP Deepwater Horizon disaster and Transocean’s limit of liability lawsuit, the U.S. House Judiciary Committee passed H.R. 5503, Securing Protections for the Injured from Limitations on Liability Act (SPILL Act). The SPILL Act will update the provisions of the following three bills dating from the mid 1800s to the early 1900s: Death on High Seas Act (1920), Jones Act (1920), and the Limitation on Liability Act (1851).
Specifically, HR 5503 would:
Amend the Death on the High Seas Act (dating from 1920) to permit recovery of non-pecuniary damages (e.g., pain and suffering and loss of care, comfort, and companionship) by the decedent’s family, as well as standardizing the geographic threshold for its application, and permitting surviving family members to bring suit directly rather than through a personal representative.
Amend the Jones Act (dating from 1920) to permit recovery of non-pecuniary damages by the families of seamen who are killed.
Repeal the outmoded Limitation on Liability Act (dating from 1851) which limits the liability of vessel owners to the value of the vessel and its cargo.
Clarify the class action rules so that impacted States can seek effective legal remedies in their own courts.
Render unenforceable restrictions on disclosing information about offshore spills of oil and other pollutants.
Strengthen bankruptcy rules to prevent corporations responsible for widespread damages under the Oil Pollution Act from seeking to sever their assets from the legal liabilities they owe to innocent victims.
Apply these changes to pending and future legal claims.
This legislation allows a spouse, child and/or parent to potentially recover “non-pecuniary” damages in maritime death cases. Currently, the law only permits pecuniary damages and pre-death pain and suffering, if any, as legal elements of recovery. This change is necessary to bring these types of claims in line with modern day recognition of injuries associated with the loss of a close family member.Read Full
Attorney Richard J. Arsenault, of Neblett, Beard, and Arsenault in Alexandria, Louisiana was recently named to the Best Lawyers in America.
Best Lawyers in America is a highly regarded publication listing exceptional attorneys throughout the country. The distinction is based upon a peer-review system with input from over three million attorneys. The American Lawyer has described the Best Lawyers publication as “the most respected referral list of attorneys in practice.” List exerts are posted in The Washington Post, The Los Angeles Times, and New York Magazine. Best Lawyers in America also recently joined with U.S. News & World Report by adding a Best Lawyers Search Engine on the U.S. News website.
Arsenault’s legal career spans more than thirty years, and he has frequently been recognized for his contributions as both a litigator and published author. In addition, Arsenault serves as an instructor with Louisiana State University Law School’s Trial Advocacy Program.
Arsenault has been selected for inclusion in Bar Register of Preeminent Lawyers, American Trial Lawyer’s Association’s Top 100 Trial Lawyers, Louisiana Super Lawyers, Best of the United States and currently holds an AV Rating from Martindale-Hubbell, the highest rating available. His legal expertise has been featured by the National Law Journal, Associated Press, the Wall Street Journal, the New York Times, CBS, Business Week, NPR and BBC.
Neblett, Beard, and Arsenault would like to extend congratulations to Mr. Arsenault for this outstanding honor.Read Full