Child Drowns While on Norwegian Cruise – DOHSA
A 10-year old girl recently drowned in a swimming pool while aboard a Norwegian Cruise Line ship off the Carolina coast. This event apparently happened while the ship was around 75 miles offshore. Cruise lines routinely do not staff their pools with lifeguards. It is essentially “swim at your own risk” while aboard. What is the legal reasoning behind this policy? DUTY! There is a theory in the law called the undertaker’s duty. Essentially, if you volunteer to undertake a duty, you must do so reasonably. If the cruise lines never undertake the duty to provide lifeguards, then they are (in their minds) not responsible for any injuries or deaths that occur in their pools.
For non-maritime persons (those who are not crew or seamen), the cruise lines owe a duty of exercising reasonable care toward persons lawfully present aboard the vessel. Basically, the cruise line is liable when it, or an employee (under the doctrine of respondeat superior) negligently caused an injury to a person lawfully present aboard the vessel, namely, when it has breached its duty to exercise reasonable care.
For this unfortunate little girl and her family, the Death on the High Seas Act applies (DOHSA). DOHSA takes state court wrongful death remedies and supplants them with exclusive federal remedies. Congress enacted the DOHSA in 1920 in order to establish a cause of action for death “caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, dependency, or territory.” 46 U.S.C.A. §30302. At the time, the courts were holding that general maritime law did not afford a cause of action for wrongful death on the high seas. However, if the death occurred in State territorial waters then that State’s wrongful death statute would apply. DOHSA applies to any deaths outside of 3 miles of the United States.
The real issue with DOHSA for those families affected by the death of a loved one is damages. DOHSA claims must be brought by the personal representative of the decedent (family member). These personal representatives may only recover their pecuniary loss, including loss of services and loss of support. Pecuniary damages are damages that can be estimated and monetarily compensated, such as future wages had the decedent lived. This amount of damages may be able to partially compensate the family if the death were that of a young working adult. However, a 10-year old child’s death would not have any pecuniary value.
Congress needs to revisit and revise DOHSA in order to bring it up to modern times. When DOHSA was passed, it mirrored many State’s wrongful death acts that did not include non-economic remedies or damages. Over time most States have amended their wrongful death acts to include non-economic damages (such as pain and suffering) after realizing that human beings are more than just economic assets to their families. The Supreme Court has even ruled that general maritime law allows for punitive damages. However, if the death occurs outside 3 nautical miles of the US, then DOHSA applies. DOHSA usually has a 3 year statute of limitations to bring a claim. However, if the defendant is a cruise line, that statute is shortened by contract (cruise ticket) to one year. Obviously Congress needs to update this terrible Act in order to bring justice to those whose family members have died on the high seas.
Other aspects of maritime law can be harmful to passengers who are injured. One such feature is the ability of defendants to limit their liability. Shipowners have long been able to obtain a court decree granting limitation of liability with respect to marine casualties. The origin of this practice has been traced to the medieval sea laws. The modern law dates from 1734 in England and from 1851 in the United States. The Federal Limitation of Shipowner’s Liability Act (FLSLA) codifies this ability.
The FLSLA allows the owners of vessels that injure or kill others to limit their liability (total amount recoverable by the injured party) to the value of the vessel AFTER the accident. What this means is that a person injured on a Jet Ski is limited to the value of the Jet Ski. What if the Jet Ski is totally destroyed? Sorry, whatever the salvage value of the Jet Ski totals to be is the limit.
This is what makes the necessity of carrying UB coverage on your boat insurance. UB coverage is uninsured/underinsured boater insurance. It is essentially the same as UM (uninsured/underinsured motorist) insurance for automobile insurance. UB coverage kicks in when the at fault party of an incident does not have enough, or any, insurance to cover the injured party’s damages. All too often I see clients who are injured by a defendant who does not have enough coverage to fully compensate for the injuries they have caused. I always urge all Floridians to carry at least $50,000/$100,000 in both UM and UB coverage for this very reason.
The law on land is different than that on the water. Maritime law is based on principles from the law of Rhodes and ancient Roman times. Of course these principles need updating to today’s legal standards. Congress has the ability to accomplish this (well, not this Congress, but hopefully starting in 2016). Laws such as DOHSA and FLSLA need to be either amended or repealed in order to fully compensate injured victims and/or their families. An amendment to DOHSA allowing non-pecuniary damages would help to compensate the poor family of that 10-year old girl who recently passed away. Likewise, amending FLSLA to disallow a limitation of liability in injury cases would end negligent vessel owner’s ability to limit their exposure to the value of their vessel AFTER the accident (which may be a total loss).
The LaBovick Law Group has a team dedicated to parties injured on the water. If you have been injured while on a cruise, pleasure boat, or while working as a maritime employee call today for a free consultation.
Images courtesy of freedigitalphotos.net by Gualberto107