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Editor: Rod Sullivan
Profession: Maritime Attorney

Category: Boating Accidents

The Supreme Court in Yamaha Motor Corp, U.S.A. v. Calhoun, 516 U.S. 189 (1996) divided the potential decedents in maritime wrongful death cases into three categories: seamen, maritime workers, and non-seamen. There are apparently two reasons why the Supreme Court has made that distinction. The first is because of its ruling in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1974), which asserted that a dependent spouse of a longshoreman could recover damages for loss of society, and the second is because the LHWCA prohibits causes of action against a vessel for unseaworthiness.

So, when a death occurs on territorial waters, when does the State's wrongful death act apply? It is a tough, and not a consistently answered question.

NON-SEAMEN AND NON-PECUNIARY DAMAGES
UNDER THE FLORIDA WRONGFUL DEATH ACT

Under 11th Circuit precedent, non-pecuniary damages under Florida's Wrongful Death Act are recoverable by the personal representative of the estate of a non-seaman. American Dredging Co. v. Lambert, 81 F.3d 127, 130-131 (11th Cir. 1996) involved a recreational boating accident in Florida territorial waters where three people were killed. The personal representatives filed under both Florida's Wrongful Death Act and Moragne (the "belt and suspenders"approach) seeking both pecuniary and non-pecuniary damages. The Defendant didn't challenge the award of pecuniary damages but did challenge the award of non-pecuniary damages. The 11th Circuit affirmed the award of non-pecuniary damages stating:

We now turn to the question of whether personal representatives may recover non-pecuniary damages in wrongful death actions involving non-seamen killed in territorial waters. The law governing the availability of non-pecuniary damages in admiralty actions has a long and convoluted history. However, in Yamaha Motor Corporation, U.S.A. v. Calhoun, U.S. , 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996), the Supreme Court has recently resolved the question presented in this appeal. In this case, the personal representatives sued for non-pecuniary damages under both federal maritime law [i.e. Moragne] and Florida state law [i.e. Florida's Wrongful Death Act]. American Dredging took the position that prior caselaw provided for a uniform federal scheme that applied to all deaths governed by admiralty law and that displaced state non-pecuniary damages laws in actions involving non-seamen killed in territorial waters. That position has now been rejected by the Supreme Court in Yamaha. There, the Court held that, when the claimants are not seamen or longshore workers, federal maritime law does not displace state wrongful death and survival statutes permitting non-pecuniary damages in wrongful death actions arising out of accidents in territorial waters and that state remedies remain applicable in such cases. Because, under Calhoun, no federal statute or common law precedent precludes the personal representatives from recovering non-pecuniary damages under Florida law, we affirm the denial of partial summary judgment on the issue of the recoverability of non-pecuniary damages.

Also under 11th Circuit precedent in Tucker v. Fearn, 333 F.3d 1216, 1222 (11th Cir. 2003) a non-dependent parent of a child killed in a recreational boating accident in Alabama was not permitted to recover damages for loss of society. While the two decisions would appear to be in conflict, they can be reconciled. Where a case involves the death of an adult who leaves behind dependents, Tucker does not apply. 

MARITIME WORKERS UNDER MORAGNE/GAUDET

There are few differences between the classes of damages available to dependents of a non-seaman killed in Florida's territorial waters under the Florida Wrongful Death Act, and the classes of damages available to the dependents of a maritime worker killed in Florida's territorial waters under Moragne/Gaudet. If the damages are uniform, regardless of whether Moragne is applied or the Florida Wrongful Death Act is applied, that uniformity of result is a good thing.

In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1974) the Supreme Court said that the dependent spouse of a deceased maritime worker could recover for loss of support, services, and society. While the decedent in Gaudet apparently left no dependent children, it would be illogical to suggest that they would be treated any differently.

The "services" and "society" provided for in Gaudet are indistinguishable from the "companionship," "protection," "parental companionship," and "instruction and guidance" which are recoverable by dependent spouses and children under sections subsections (2) and (3) of Section 768.21, Florida Statutes (Florida Wrongful Death Act.) The mental pain and suffering of the spouse and dependent children could be distinguished, but for what purpose? Does anyone deny that they experience mental pain and suffering when they learn that their husband or father was crushed to death and no longer with them? Of course not. Does anyone suggest that Congress intended to foreclose these types of damages by enacting the Death on the High Seas Act? If they did, they wouldn't have specifically left it to the States to decide how to compensation spouses and children of persons killed on territorial waters.

WHERE THE LAW GOES FROM HERE

The Supreme Court doesn't give advisory opinions on questions which are not before it, but it is possible to read between the lines. If you read between the lines in Yamaha Motor Corp, U.S.A. v. Calhoun, 516 U.S. 189 (1996) and in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811 (U.S. 2001) what you can discern is that Court is reaffirming what the law has been from 1921 in Western Fuel Co. v. Garcia, 257 U.S. 233, 241-242 (U.S. 1921)--that families of non-seamen (whether they are a recreational boaters or a longshoreman) killed in territorial waters recover under state wrongful death acts, and that the new cause of action approved in Moragne v States Marine Lines (1970) 398 US 375 (1970) supplements, and operates concurrently with state wrongful death acts, but does not displace them.

This result comports with principles of federalism, the dictates of the 11th Amendment, and the wishes of Congress as expressed in the Death on the High Seas Act. Congress clearly didn't want to legislate on the question of deaths occurring in territorial waters. The legislative history of that Act discloses a clear congressional purpose to leave "unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States." S. Rep. No. 216, 66th Cong., 1st Sess. 3; H. R. Rep. No. 674, 66th Cong., 2d Sess. 3. For the Courts to complicate was Congress made simple, and then say "it's for Congress to fix" is contrary to what the Constitution intends. Congress fixed it once--the States decide what remedies are available upon the death of a non-seamen in territorial waters. Just because the Courts don't like the result, or because the Courts are hostile to non-pecuniary damages, is no reason to torpedo what Congress did. What Congress intended couldn't be any clearer---and that is what the Supreme Court is saying.