Thanks to a 90-year-old legal loophole, the families of the 11 workers killed on the Deepwater Horizon oil rig may be denied full compensation for the loss of their loved ones. Currently, the Death on the High Seas Act (DOHSA) severely limits the liability of negligent corporations operating in international waters. Last week, Sen. Patrick Leahy (D‑Vt.) introduced legislation to close the loophole but his proposed reform is likely to face stiff opposition from the oil and cruise ship industries.
The Death on the High Seas Act is a relic frozen in amber, even its title sounds archaic. When the law was passed in the 1920s, it seemed like a progressive measure to ensure that the children of sailors lost at sea would get their fathers’ wages. However, over the years, liability laws for other sectors evolved while DOHSA remained largely static.
If an employer’s negligence kills a worker on dry land, the worker’s family can sue for both pecuniary and non-pecuniary damages. Pecuniary damages represent the wages that the worker would have earned over the course of his or her career, minus taxes and expenses. Non-pecuniary damages attempt to compensate survivors for the loss of the victim’s presence in their lives.
The families of the 15 workers killed in the fire and explosion at BP’s Texas City refinery received both kinds of damages; but the families of the victims of the Deepwater Horizon disaster are only eligible to recoup lost wages.
Under DOHSA, a negligent cruise ship operator, oil rig owner, or ferry boat captain is not liable for non-pecuniary damages.
Limiting compensation to lost wages effectively imposes a very low cap on damages. If a worker was earning $60,000, the company could end up owing less than $1 million.
The families of the lowest-paid workers fare especially poorly under the status quo because lost wages are a function of how much the deceased was earning when s/he died. The family of a $30,000/year worker can expect half the compensation of the family of a worker making $60,000 — even though the two deaths are equally unjust. Opening the door for non-pecuniary damages would be an equalizer. When it comes to compensation for the loss of a loved one, all families are equal in their grief. The pain of losing a parent or a spouse isn’t a function of base salary.
The threat of non-pecuniary damages might also make employers more cautious with the lives of their workers. From a strictly budgetary standpoint, the de facto liability cap makes workers seem more expendable, especially low paid workers.
At a Senate Judiciary Committee hearing earlier this month, the brother of a rig worker who died on the Deepwater Horizon begged legislators to fix DOHSA and compensate his family for the shattering loss of his brother, Gordon.
Jones brought some snapshots to illustrate the void Gordon’s death had left in the family: a half-finished backyard fort that Gordon started to build with his older son; the delivery room where Gordon’s widow gave birth to a son who will never meet his father; Gordon giving a golf lesson to his older son before he set out on the Deepwater Horizon for the last time.
Jones pointed out that there is a precedent for retroactively tweaking DOHSA to ensure justice for survivors. In the wake of two highly publicized commercial air disasters, Congress amended DOHSA to allow the families of survivors to seek compensation for the loss of their loved ones. Unfortunately, the fix only covers commercial airline passengers. Anyone else who dies on a U.S. vessel in international waters is out of luck. Leahy’s amendment would update DOHSA to put all victims of negligent corporations on the same footing.