Wrongful Death claims under the Jones Act and General Maritime Law
WRONGFUL DEATH CLAIMS UNDER THE JONES ACT AND GENERAL MARITIME LAW
The Jones Act provides a remedy for seamen who are fatally injured during the course of their employment. If an injury causes the death of a seaman, the surviving widow or husband and children of the employee become the beneficiaries under the Jones Act. If the worker does not have a spouse of children, then the beneficiaries include the employee’s parents.
A personal representative, such as an executor, is entitled to bring an action that the diver (had he lived) would have possessed against his employer. The worker’s cause of action against the employer does not die with the diver. In death cases, damages go to the seaman’s survivors. This remedy is available only to the personal representative of a seaman and the action can be brought only against the seaman’s employer.
Because the Jones Act is the exclusive remedy available to the family of a seaman killed by his employer’s negligence, state statutes regarding wrongful death cannot be utilized. If, however, the seaman’s death is caused by the negligence of someone, in whole or in part, other than the employer, the diver’s representative can bring an action under the general maritime law which, in most cases, is similar to state wrongful death statutes. Additionally, seamen killed as a result of the unseaworthiness of a vessel owned by his employer, or a third-party, have an action under the general maritime law. Finally, a seaman (or anyone else) killed outside the territorial waters (beyond three nautical miles) has an action under the Death on the High Seas Act, which can be found at 46 United States Code, Section 72.
The family of a seaman killed as a result of negligence or the unseaworthiness of a vessel is entitled to recover funeral expenses, loss of financial support, value of lost services, loss of probable inheritance for children and loss of nurture, care, guidance, support and training. Additionally, the seaman’s estate can recover for pre- death conscious pain and suffering.
If the incident occurred aboard a fixed platform, either in state territorial waters or on the Federal Outer Continental Shelf waters, the law of the adjacent state would apply. Therefore, if a diver is killed off of the coast of Louisiana while aboard a fixed platform, the wrongful death laws of Louisiana would apply. On the other hand, should the incident occur on Federal waters, beyond three miles of the shoreline, the Death on the High Seas Act (DOHSA) would apply.
If the incident occurs within state territorial waters, either state law or a remedy created by the general maritime law would apply.
Suffice it to say, wrongful death in a maritime setting is perhaps the most complex, contradictory, and overlapping area of admiralty litigation. Depending on the act sued under, certain remedies will or will not be available. For example, under the Jones Act, a wife’s claim for “loss of society” is not available. Conversely, if the death occurs as a result of an incident occurring on a fixed platform in Louisiana waters or in federal waters off the coast of Louisiana, the State of Louisiana’s wrongful death statute would provide the “loss of society” remedy. Because of the complexities associated with wrongful death litigation in a maritime setting, it is strongly advised that the family of a deceased diver contact legal counsel experienced in admiralty litigation.