Federal Law Regarding Compensating Wrongful Death at Sea Is, Like New York's Wrongful Death Law, Unfair and Harsh

June 25, 2010

Thumbnail image for flowerongrave.jpgLaws should be fair and just, but are sometimes unfair and harsh. Think of the laws that allowed slavery, and later the Jim Crow laws. Think of the Nazi laws that allowed Jews to be arrested and deported or worse just for being Jews. Or think of the Roman laws that allowed Jesus to be crucified. All these laws were perfectly "legal" and they were carried out "by the book"!. So don't think that just because it's the law, it's right.

Those, of course, are extreme examples of unfair, harsh laws. But lesser examples of harsh, unfair laws abound in our law books even today.

The families of the 11 workers who died in the Deepwater Horizon explosion are now discovering how unfair and harsh one of our laws is. In their lawsuit against BP for the loss of their loved ones, they are limited, by a 90-year old Federal law, known as the Death on the High Seas Act, to "pecuniary loss" compensation, which consists mostly of lost income stemming from their loved one's death. They have no right at all to claim compensation for their grief, loss of care, comfort and companionship, and emotional suffering.

But when someone dies, his or her close family members lose far more than just money. Indeed, the emotional loss that death provokes is one of the most profoundly painful experiences a human can endure. Maritime law, however, does not recognize that loss, or compensate it. This harsh law will limit compensation to YOUR family, too, if you die at sea, for example in a cruise ship.

But here's good news: The BP Gulf of Mexico rig explosion that killed 11 workers has brought to the fore the harshness and injustice of this old law. As a result, a bill has been proposed in Congress, HR 5503, entitled "Securing Protections for the Injured from Limitations on Liability Act" (SPILL Act), which would, if passed, change this old, outdated law to (among other things) permit recovery of non-pecuniary damages (e.g., grief, loss of care, comfort, and companionship of the dead family member) by the family of a decedent killed at sea. You can read all about it on this CNN report.

It is time we recognize the gross injustice of denying a grieving family compensation beyond mere "pecuniary loss". But don't take it from me. Take it from Keith Jones, who lost his son, Gordon Jones, aboard the Deepwater Horizon rig. Gordon left behind a pregnant wife and a small child. Under current law, they will get nothing for their sadness, suffering and grief. BP won't have to compensate the fatherless children for the loss of their dad's love, guidance and nurture. Before the House Judiciary Committee, Gordon Jones testified that: "I want to say how offensive it is when the law recognizes only pecuniary loss in cases like these eleven deaths. . . Please believe me; no amount of money can ever compensate us for Gordon's death. We know that. But this is the only means available to begin to make things right."

Now let's shift the spotlight from Federal Law to New York State law. As a Central New York personal Injury and wrongful death lawyer, I am outraged and embarrassed to have to tell you that New York is one of the few States in the Union that does NOT recognize emotional loss in wrongful death cases. Compensation is limited to pecuniary loss. In other words, New York's wrongful death law is just like the Death on the High Seas Act that some in Congress are proposing to change. And it is just as outdated, unfair and harsh. And it is just as in need of change.

I have blogged about this before. Now's the time. New York should follow Congress' lead and revamp its Wrongful Death law.

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