Posted by Patrick M. Regan
When a BP refinery in Texas exploded in 2005, killing 15 workers and injuring 300, the company paid out $1.6 billion in settlements to compensate those workers and their families. But the families of those killed in the April 20, 2010, explosion on board the Deepwater Horizon stand to recover far less.
It turns out that deaths on the Deepwater Horizon fall under the authority of the Death on the High Seas Act (DOHSA) of 1920, an antiquated statute that severely restricts the liability of negligent corporations operating more than 3 nautical miles offshore, as BP was on the Deepwater Horizon.
Under DOHSA, the families of the workers killed on the Deepwater Horizon stand only to recover economic damages (in this case essentially the equivalent of a worker’s anticipated wages for the rest of his life), NOT any compensation for pain and suffering or for the family’s loss of the victim in their lives. Future wages cannot possibly compensate for a family’s permanent loss of a husband and father.
However, there is at least one precedent that offers hope to the families of those lost on the Deepwater Horizon. In the wake of the fatal TWA Flight 800 crash in 2000, Congress amended DOHSA to allow commercial airline passengers to sue for non-economic damages, retroactively allowing those families to obtain a more just recovery. On June 8, 2010, Senator Patrick Leahy (D-VT) introduced legislation, under the name "Survivors Equality Act," that seeks to do the same for the victims of the Deepwater Horizon tragedy.
As reported by The Atlantic:
"Gordon Jones, a mud engineer killed on the Deepwater rig, left behind a pregnant wife who had quit her job to stay home with their two-year-old son. But thanks to DOHSA, the most BP could owe them is the equivalent of Gordon’s salary over his working life, minus what he would have paid out in taxes and personal expenses. So if Gordon made $60,000 a year for the next 30 years, BP could owe the family less than a million dollars.
The math works out even worse for workers without dependents. Jones’s brother Chris testified before the Senate Judiciary Committee that one of the other Deepwater workers who was killed was single and childless. That means his family would only be entitled to recover funeral expenses under DOHSA. But because his body was never recovered after the explosion, the funeral costs will be lower. BP could end up paying his family as little as $1,000 for their loss."
The Atlantic also points out that Senator Leahy and his cosponsors, Senators Whitehouse (D-RI) and Durbin (D-IL), may be facing a tougher battle than one might expect to get his bill passed. Over the years, the most aggressive opposition to the expansion of the protections under DOHSA has come not from the airlines, not from big oil corporations, but from the cruise line lobby.
When Senator John Kerry (D-MA) succeeded in introducing legislation that would have expanded liability for non-economic damages to all victims at sea into DOHSA in 2009, the cruise line industry spent $2.2 million lobbying (successfully) to stall the bill. Why?
According to a 2007 article in The Guardian, between just 2003 and 2007, 34 passengers and 2 crew members went missing on cruises in international waters, not including known suicides with bodies never recovered. Many of these disappearances took place under shady circumstances. An update to the protections offered to passengers by DOHSA would mean, simply put, that cruise lines could be held far more accountable for the safety of their passengers.
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