Federal judge gets into the weeds on damages in maritime death case

by Matthew H. Ammerman on April 23rd, 2017

William Bell died of mesothelioma alleged to have been caused by asbestos exposure working as an engineman, machinery repairman, and machinist mate aboard various U.S. Navy ships in the 1960s. His exposure occurred on land at a training facility in Idaho, in territorial waters, and on the high seas. Bell and his survivors, including his girlfriend and brother, sued several companies that manufactured pumps, valves, condensers, compressors, and turbines on the vessels upon which Bell served.

Several defendants moved for partial summary judgment to knock out some of the plaintiffs' damages claims.

Bell was a seaman. Non-pecuniary damages – those measurable in dollars and cents -- are not recoverable by seamen. But wait. Pain and suffering are non-pecuniary damages, right? Wrong. The Jones Act adopted FELA’s limitation to pecuniary damages. But pain and suffering damages were customary to an injured FELA worker, and, consequently, are recoverable under the Jones Act as well. The same applies for a seaman’s estate’s claim for pre-death pain and suffering. Therefore, Judge Lance Africk holds that William Bell’s pre-death pain and suffering are considered pecuniary damages “in the maritime context,” and those damages may be recoverable in the survival claim of the estate.

The defendants also challenged the claim of Bell’s brother, John Bell, arguing the Death on the High Seas Act (DOHSA) only permits a survival claim by the personal representative of the estate. William’s girlfriend, Vickie Campos, was the personal representative of his estate. But the judge held that DOHSA did not apply. First, state law applied to William’s alleged injurious exposure to asbestos when working on land. Second, general maritime law – not DOHSA – applies to William’s exposure on ships.

When an indivisible injury to a seaman occurs due to exposure in territorial waters and the high seas, DOHSA does not apply. The survival claim for exposure on water was governed by general maritime law, and, consequently, not barred by DOHSA. Also, John had a wrongful death claim under the general maritime law for John’s alleged pecuniary losses from his brother’s passing. But the general maritime law precludes non-pecuniary damages. Therefore, John had no claim for mental anguish, loss of society, and affection from the death of his brother – those damages being considered indeed non-pecuniary (unlike pain and suffering).

Last, the defendants scored a partial win by knocking out Campos’ claim in her personal capacity. Campos was not related to William. Therefore, she had no claim in her personal capacity under either state or general maritime law.

To sum it up: Vickie can sue on behalf of the estate, John can sue in his personal capacity, and no one gets non-pecuniary damages under general maritime law. But pre-death pain and suffering are pecuniary in the maritime context.

Bell v. Foster Wheeler Energy Corp., No. 15-6394, 2017 U.S. Dist. LEXIS 31119 (E.D. La. March 6, 2017)

Posted in not categorized    Tagged with general maritime law, pecuniary damages, non-pecuniary damages, jones act, seaman



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