What law governs wrongful death claims when a helicopter crashes into an offshore oil platform and falls into the sea? No fewer than seven federal opinions have focused on this exact question, the answer to which can make a big difference to the victim’s survivors. If the Outer Continental Shelf Lands Act (“OCSLA”) applies then the survivors may seek pecuniary, nonpecuniary, and possibly punitive damages under the law of the adjacent state. If the Death on the High Seas Act (“DOHSA”) applies, however, the survivors may seek only pecuniary damages, which in many cases will mean no recovery at all. Until 2009, every court to consider a fatality under these circumstances applied DOHSA, but in Alleman v. Omni Energy Services Corporation the Fifth Circuit ruled that OCSLA governed the survivors’ claims.
This article considers the District and Circuit opinions in Alleman in order to analyze the outrageous state of affairs currently prevailing in maritime death litigation. Although the Fifth Circuit decision was legally dubious, it produced the correct result if only because DOHSA as currently constructed is illogical and unfair. Its bar on nonpecuniary damages conflicts with the prevailing views on just compensation in nearly every state, and denies compensation to survivors merely because of the fortuity that their loved-ones died at sea rather than on land. Recognizing this injustice, Congress amended DOHSA in 2000, but only fixed it for survivors of commercial aviation accident victims, treating everyone else as second-class survivors. The only just and sensible solution to the jumbled mess that Congress has made of a maritime wrongful death remedy is to amend DOHSA to permit the recovery of nonpecuniary damages in all cases.
- wrongful death,
- pecuniary damages,
Available at: http://works.bepress.com/ryan_hackney/2/