General Maritime Law Death Claims

General maritime law, also known as “maritime common law,” is comprised of the legal rules, rights, and remedies established by judicial precedent from prior legal cases. General maritime law is exclusively judge-made, and is distinguished from maritime statutes enacted by Congress such as the Jones Act or Death on the High Seas Act (DOHSA).

Historically, general maritime law did not provide a remedy for the death of any person. By the early twentieth century, most states had enacted “wrongful death” or “survival” statutes which allow the family of a person killed to recover damages for the death. In 1907, the U.S. Supreme Court held that claims could be brought under state law for deaths occurring within state territorial waters.

There was no remedy for deaths occurring outside of territorial waters until 1920 when Congress passed the Jones Act and Death on the High Seas Act (DOHSA). The Jones Act death remedy applies only to death claims against a deceased seaman’s employer. DOHSA applies to all other claims for deaths occurring more than three miles from the shore of the United States.

The Supreme Court first recognized maritime common law death claims in 1970 in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), acknowledging that the common law had evolved with the times. The Court held that wrongful death and survival claims may be brought under general maritime law, where not preempted by a maritime death statute.

“Wrongful death” claims are brought by a decedent’s surviving family members for damages suffered by those individuals, such as damages for loss of support or loss of companionship. A “survival action” is brought by the decedent’s estate for damages suffered by the decedent or the decedent’s estate. Although wrongful death and survival actions have quite a bit of overlap, these are two distinct types of claims.

For non-seamen, general maritime law death remedies are available for claims arising from accidents occurring within three miles of U.S. shore.

For seamen, general maritime law death remedies are available pursuant to (1) unseaworthiness claims against the seaman’s employer, whether or not within three miles of U.S. shore, and (2) negligence claims against third parties other than the seaman’s employer arising from accidents occurring within three miles of U.S. shore.

Under a concept called “preemption,” common law legal remedies are not available where there is a federal statute covering the subject matter. General maritime law death remedies are thus “preempted” where death claims are covered by other federal death statutes like DOHSA or the Jones Act. DOHSA is the exclusive wrongful death remedy for deaths more than three miles from U.S. shore, unless the Jones Act applies. DOHSA may not be supplemented by general maritime law death remedies.

The Jones Act applies to claims of negligence against a seaman’s employer arising from the seaman’s death. Jones Act claims may be supplemented by general maritime law “unseaworthiness” claims, even in cases where the accident that caused the death occurred more than three miles from shore.

The distinction between the various remedies is important because some elements of damages for wrongful death recognized by general maritime law, such as pre-death pain and suffering, loss of love and affection, and loss of consortium, are not available under DOHSA or the Jones Act.

General maritime law “wrongful death” damages allow pecuniary damages only, and may include:

• Loss of support – This is financial support that would have been provided to family members if the decedant had not died.
• Loss of services – This represents the value of services that would have been provided by the decedent to the beneficiaries if he/she had not died (i.e. the cost of paying a landscaping company performing yard work that was previously taken care of by the decedent).
• Funeral expenses (if paid by family members rather than the estate)
• Loss of nurture – This is defined as the value of parental guidance in matters material, moral and spiritual that are of a definite practical and financial value. Such damages are generally only recoverable by minor children.
• Loss of inheritance – This relates closely to loss of support damages and may not duplicate loss of support damages.
• Loss of fringe benefits – Where a decedent provided fringe benefits to family members through the decedent’s employment, such as health insurance, the value of lost fringe benefits may be recoverable.

General maritime law “survival” damages (i.e. damages suffered by the decedent or the decedent’s estate) may include:

• Pre-death pain and suffering
• Medical expenses
• Funeral expenses (if paid by the estate)
• Loss of wages prior to death

General maritime law death actions do not allow recovery for the mental anguish or grief of beneficiaries. Courts are split on whether loss of society and loss of consortium damages are recoverable by the decedent’s spouse pursuant to a “survival” action. In the Ninth Circuit, which includes most west-coast states, such damages are permitted. In the Second, Fifth, Sixth, and Eleventh Circuits, such damages are not allowed.