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

by Matthew H. Ammerman on April 23rd, 2017

U.S. District Judge Lance Africk got into the weeds on damages in Bell v. Foster Wheeler Energy Corp.,[1] holding that general maritime law rather than DOHSA controlled the damages issues involving alleged exposure in territorial waters and the high seas.

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 are not recoverable by seamen.[2] The Jones Act adopted FELA’s limitation to pecuniary damages.[3] But a worker’s pain and suffering damages were customary to an injured FELA worker, and, consequently, are recoverable under the Jones Act as well.[4] The same applies for a seaman’s estate’s claim for pre-death pain and suffering. [5] Therefore, Judge Africk holds that William Bell’s pre-death pain and suffering are considered pecuniary damages “in the maritime context,” and those damages are recoverable in the survival claim by Bell’s estate.

The defendants also challenged the claim of Bell’s brother, John Bell, because general maritime law only permits a survival claim by the personal representative of the estate. William’s girlfriend, Vickie Campos, was the personal representative of his estate. The judge held that state law applied to William’s alleged injurious exposure to asbestos when working on land. general maritime law applies to William’s exposure on ships. Therefore, John Bell could not bring a survival claim.

As to the application of DOHSA, the court holds that DOHSA does not apply to an indivisible injury to a seaman from exposure in territorial waters and the high seas.[6] Therefore, Campos’ 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 girlfriend Vickie Campos’ claim in her personal capacity. Campos was not related to William Bell. Therefore, she had no claim in her personal capacity under state or general maritime law.[7]

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.[8] But pre-death pain and suffering are pecuniary in the maritime context.


[1] Bell v. Foster Wheeler Energy Corp., No. 15-6394, 2017 WL 889074, 2017 U.S. Dist. LEXIS 31119 (E.D. La. March 6, 2017).
[2] Kelly v. Panama Canal Comm'n, 26 F.3d 597, 601 (5th Cir. 1994)(“Under the general maritime law, non-pecuniary damages are not available to seamen.”).
[3] 46 USCS § 30104.
[4] See, e.g., Schwartz v. Neches-Gulf Marine, Inc., 67 F. Supp. 2d 698, 701 (S.D. Tex. 1999)(“ Given this framework, the Court is nevertheless aware of no controlling case proscribing damages claims based on pain and suffering, mental anguish, or loss of enjoyment of life in nonfatal maritime personal injury cases.”); See also Fifth Circuit Civil Jury Instructions (rev. 10/2016) (2014), § 4.8, “Damages.”(“In determining compensatory damages, you should consider only the following elements, … past and future physical pain and suffering, including physical disability, impairment, and inconvenience, and the effect of Plaintiff [name]’s injuries and inconvenience on the normal pursuits and pleasures of life; past and future mental anguish and feelings of economic insecurity ….”).
[5] Bell, 2017 U.S. Dist. LEXIS 31119, at *18, citing In re Denet Towing Serv., No. 98-1523 C/W 98-1583 SECTION "S" (1), 1999 U.S. Dist. LEXIS 8058, at *5 (E.D. La. 1999)(“Decedent's pain and suffering are recoverable under well settled law. 2 Benedict on Admiralty § 84b[1] (7th ed. 1997).”).
[6] Id., 2017 U.S. Dist. LEXIS 31119, at *10 (E.D. La. 2017), citing Hays v. John Crane, Inc., No. 09-81881, 2014 U.S. Dist. LEXIS 184953, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014).
[7] Id., 2017 U.S. Dist. LEXIS 31119, at *12.
[8] McBride v. Estis Well Serv., L.L.C., 768 F.3d 382, 388 (5th Cir. 2014)(en banc), cert. denied, 135 S. Ct. 2310, 191 L. Ed. 2d 978, 2015 U.S. LEXIS 3402 (2015).

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



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