The loss of a loved one in any type of circumstance is tragic, but when someone you love dies due to the negligence or misconduct of another person or entity, that loss becomes even more heartbreaking and stressful.
The family members of passengers who die while on a cruise ship may have a viable legal claim against the cruise line when the death occurs because of the negligence or carelessness of the cruise line or its medical team.
However, the law that covers these incidents is complex and governed primarily by an 1886 statute called the Death on the High Seas Act (DOHSA).
Ironically, the law was written to provide fair compensation to the family of crew members who died accidentally while working on commercial vessels while the ships were on the high seas. High seas are defined as three nautical miles from the shore of the United States. DOHSA is a federal law and therefore preempts state laws that would normally provide benefits under the wrongful death act.
History of the DOHSA
To get a better understanding of DOHSA, it helps to understand its background. DOHSA was initially created in 1920 as a way to provide financial compensation for family members of shipman who died while in the active line of duty. Since that time, the act has been amended a few times to account for other circumstances where relief was warranted. The most recent of these amendments occurred in 2000, where claims for lives lost in aircraft accidents were added.
Later amendments allowed for relatives and family members of the deceased to claim compensation for trauma and mental anguish experienced due to their loved one’s death at sea. However, what is covered under this compensation is significantly limited when compared to wrongful death actions in state civil court.
What Is Considered “At Sea”?
DOHSA covers any death that occurs beyond a distance of three nautical miles from the United States seashore. This definition of the “high seas” comes from principles of maritime law. Any death that occurs less than three nautical miles from the U.S. seashore would fall under the laws of the state where the shore is located. Those three small nautical miles make a huge difference in the relief you can seek.
What Damages Can Be Sought in a DOHSA Claim?
Unlike state wrongful death lawsuits, damages under DOHSA are limited to pecuniary or financial losses suffered by certain family members of the deceased person. DOHSA even limits who is a qualifying family member for purposes of compensation under the Act. These qualifying individuals include a surviving spouse, parent, child, or dependent relative.
A DOHSA claim allows the qualifying family member(s) to seek recovery for money that the deceased would have supplied as financial support had he or she not died. However, a financial claim for loss of support is not seen as the same as a claim for the deceased victim’s future earnings since those earnings would need to be reduced by taxes and would also include amounts the deceased would have spent himself or herself. Rather, the calculation of earnings are reduced to a present value at the after-tax earning rate on the most conservative available investments. This calculation can be complex and is one that needs to be done by an expert economist.
Also, under DOHSA, the surviving spouse is entitled to claim loss of financial support from earnings over the work-life expectancy of the deceased spouse. These calculations can come from projected retirement pensions or Social Security benefits unless those benefits are already being paid. Surviving children of the deceased can claim loss of financial support until the child reaches the age of 22.
Not everything is covered by DOHSA, which is what makes these claims so unfair to the loved ones of the deceased. Certain damages are excluded under the DOHSA. Claims for noneconomic damages are strictly prohibited, including claims for loss of consortium by the surviving spouse. Additionally, damages incurred by the victim, including medical expenses and funeral expenses, are not recoverable since these damages are incurred by the estate. However, if a qualifying family member ended up paying these bills out of pocket, they may be able to receive reimbursement through a DOHSA claim.
A DOHSA action may also cover compensation for damages for loss of household services performed by the deceased. Proof of this can be tricky in that it requires the qualifying family member to show that these services were expected and were likely to be provided had their family member not perished at sea. Loss of household services performed by the decease can include services, such as mowing the lawn, repairing family vehicles, performing repairs around the house, painting, and providing transportation to the qualifying family member. In order to be successful in one of these claims, the family member needs to provide testimony about the amount of time their deceased family member spent providing these services, as well as how much it costs to have someone else pay to perform them.
Another damage that can be sought in a DOHSA action includes loss of nurture, guidance, and instruction. Loss of nurture and guidance claims are brought normally by the minor children of the deceased. These kinds of losses also include the physical, intellectual, and moral training the minor children would have received from their parent had he or she not died at sea. However, calculating the value of this care, nurture and guidance can be difficult. Courts have found that there is a monetary value for these services. Hiring a skilled attorney to handle your DOSHA claim can help in proving these damages. Our firm uses the expert testimony of vocational counselors who can opine on the rates of pay in a given community for teachers, guidance counselors, and psychologists when proving these damages. It can be difficult, but we have successfully argued these claims in federal court.
Can Survival Actions under DOHSA Be Made?
DOHSA generally does not permit the victim’s estate to bring a survival action for damages incurred by the victim. However, survival damages may be pursued if the deceased victim filed the lawsuit for injuries sustained on the high seas only to die later from their injuries after the lawsuit was filed but before it was resolved. In these limited circumstances, the estate of the deceased can bring a claim under the DOHSA for medical bills and other economic damages the victim sustained before succumbing to his or her injuries. Because this circumstance is so limited and due to the complex nature of these types of cases, it is important that an attorney be retained by the victim who has suffered life-threatening injuries on the high seas as soon as possible. Immediate action is key to preserve the right of the estate to seek damages in the event the victim does not make it.
Other Remedies
Because the DOHSA is a federal law, it preempts state laws, as well as maritime common law. However, the family of a deceased seaman do have other options for seeking damages. They may bring a claim against the deceased seaman’s employer under what is known as the Jones Act. This action can be brought concurrently with DOHSA claim if the seaman’s employer and someone other than the employer was at fault for the death. They can also bring a civil claim under the laws of the foreign country in a U.S. court, but this cannot be done concurrently with a DOHSA claim against the same defendant. These claims can be brought concurrently, only if the two parties are considered different defendants.
If you are unsure of whether you or your family members have a valid claim for damages under the DOHSA, it is imperative you speak with a skilled attorney as soon as possible regarding your case. Cruise line companies have their own legal teams employed to help fight whatever claims you file in federal court, and you should not have to face this battle alone.
INJURED ON A CRUISE SHIP OR CRUISE SHIP EXCURSION? SPEAK TO A CRUISE SHIP ACCIDENT LAWYER TODAY: 1-866-597-4529.
Cruise lines are responsible for the injuries that passengers sustain on and off the ship. Florida law is clear that cruise lines have a non-delegable responsibility to make sure that passengers are safe when being transported between the ship and shore.
If you have been injured on a cruise ship, tender or in port, it is important that you seek immediate medical care and report the incident. Cruise lines often defend cases based upon a “lack of reported incident.” Immediately consult with an experienced cruise ship passenger injury lawyer who is admitted to practice in Federal Court.
Aronfeld Trial Lawyers has obtained millions of dollars in compensation for injured cruise ship passengers and crew members onboard the major cruise lines. We are constantly filing lawsuits against Carnival, Royal Caribbean and Celebrity and other cruise lines around the world in Federal Court. Since 1991, our law firm has helped injured passengers hold the cruise lines accountable. We work hard to get our clients compensation for lost wages, medical expenses and pain and suffering. The cruise lines are part of multi-billion dollar industry and employ the most aggressive and experienced lawyers–which is why you need experienced legal counsel on your side, too. Call Board Certified Civil Trial Lawyer, Spencer Aronfeld today for a free consultation.
Sources:
The Death on the High Seas Act and Fatal Maritime Accidents | Justia
