Monday, April 4, 2011
The paralyzing power of the status quo is more evident in law than anywhere else: stare decisis, the difficulty of passing or amending law, and packed legislative agendas. Of course law ought to be fair, up to date, and consistent. Sadly what law ought to be is sometimes frustrated by what law is. When that occurs law distances itself from current social reality, mores, and ultimately the people. We currently face one of those legal chasms and, to date, all we can manage to do is gawk. It was just about a year ago today (April 4 versus April 20) that the Deepwater Horizon exploded.
After a summer of spewing oil, they finally shut it off. Will the fish ever be the same? Will commercial fishers recover? What future damage might the dispersants used to break up the oil cause? How will the multi-district litigation play out? What will state courts do? How well will the Feinberg/BP ADR scheme work? All of these are interesting, indeed fascinating questions. We will argue about them. We will litigate them. We will analyze them. And then we will go on with our lives.
But eleven families will not go on with their lives the same way we went on with our lives. Why? Because eleven people died when the Deepwater Horizon exploded. And for the spouses, children, parents, siblings, and children of those eleven, the world won’t ever be even close to the same as it was on April 19. And what does the law do for them? As I explained to Congress three times last summer the answer is the law does not do enough. It does not do nearly enough.. The relevant laws are the Jones Act (because those killed were seamen) and the Death on the High Seas Act (DOHSA) (because they were killed more than three nautical miles offshore). Both of those statutes were passed in 1920, another era. As interpreted, neither of them allows recovery for loss of society damages to the survivors of those killed in high seas maritime disasters. Just what are loss of society damages? They are compensation for the loss of care, comfort, and companionship caused by the death of a loved one. They are compensation for the loss of the relationship itself. The majority of American jurisdictions today do recognize some right to recover for loss of society damages in wrongful death cases but not the Jones Act and not DOHSA. The Jones Act and DOHSA do allow the survivors of someone killed on the high seas to recover their pecuniary or economic loss but neither allows any recovery for the loss of the relationship itself. Thus, a surviving spouse may recover loss of economic support or loss of services, like cooking or cutting the lawn, but the survivor recovers nothing for the very real emotional loss of the loved one. And a parent who is not financially dependent upon a child who is killed on the high seas would recover nothing at all for their child’s death. Today under the Jones Act and DOHSA the relationship itself between the decedent and his or her spouse, child, or parent is treated as if it has no value. Friends, a spouse, child, or parent who loses a loved one, suffers a very real loss and the law, to be just, must recognize it. It is not fair not to allow that recovery. AND, the majority rule on land today IS to allow recovery of loss of society in a wrongful death case. So the law, as it applies to the eleven families of the eleven killed on the Deepwater horizon is neither fair nor up to date.
Now, there is one notable exception to the rule barring recovery of loss of society damages under DOHSA and that exception points up some current inconsistencies in the law. In 2000, after the KAL 007 and TWA 800 disasters, Congress retroactively amended DOHSA to provide recovery of loss of society to the survivors of those killed in high seas commercial aviation disasters but for anyone else killed on the high seas, including the eleven workers who died on the Deepwater Horizon, the survivors may not recover for loss of society. The law should be the same for all. The Jones Act and DOHSA should provide recovery for loss of society damages.
Of course, tort law is concerned with corrective justice—fairness, consistency, and compensation—but it is also concerned with deterring unsafe behavior posing risks to people, property and the environment. Law, including tort law, is concerned with holding people accountable. By not allowing recovery for loss of society the applicable maritime law under compensates. And, if tort law under compensates, it under deters because it does not hold those responsible accountable for all the real, direct damage they cause.
Last year the House passed legislation that would have made loss of society damages available for the survivors of those killed in maritime disasters. The Senate listened, smiled, and promised but it did nothing.
I could go on. I did when I testified in Congress three times last summer. I will again in a forthcoming article in the Louisiana Law review (LSU) and at an upcoming conference at a Roger Williams University Maritime Affairs Institute Program on April 13, 2011. But, for now, let me stop here. The law should fairly compensate the families of the eleven killed on the Deepwater Horizon. Being fair—allowing recovery of loss of society damage—would also be up to date and in line with the majority American rule. And it would be consistent with the recovery available to the survivors of those killed in a commercial aviation disaster.
--Thomas C. Galligan, Jr., President, Colby-Sawyer College