What Your Child is Worth in the Eyes of One Law

October 1999 - What Your Child is Worth in the Eyes of One Law

by Richard H. Middleton, Jr. & Leah S. Guerry

When TWA flight 800 exploded and crashed off Long Island in 1996, the parents of 16 Pennsylvania teenagers twice received devastating news: First they learned their children had perished in a fiery plane crash, and later, they discovered their children's lives were literally worth nothing in the eyes of an antiquated federal law.

In 1920, lawmakers passed the Death on the High Seas Act (DOHSA) to help the wives and families of seafarers. The law was intended to provide compensation to widows whose husbands were killed on the high seas. Now, on the cusp of the 21st century, men, women and children cruise the world's oceans on ships of all sizes and hurtle from continent to continent aboard planes.

If one of these ships or planes is lost in international waters, DOHSA offers only compensation for the pecuniary or economic loss sustained by families of the victims. In other words, DOHSA recognizes only damages such as the deceased's projected earnings, the cost of replacing a boat or plane, and burial costs. Losses like the death of a child — or any other non-wage-earner — are not compensated, even in cases of gross negligence and willful misconduct.

"These parents wanted to know what rights they had," says New Orleans admiralty lawyer Stevan Dittman of the TWA crash. "And they were told, pursuant to DOHSA, they didn't have any rights at all."

In response to the TWA flight 800 crash, Pennsylvania Senators Arlen Specter and Rick Santorum and former Pennsylvania Representative Joe McDade fought admirably last Congress on behalf of their constituents to right this injustice. After negotiating with some lawmakers who opposed changing DOHSA, a compromise was reached that would allow the survivors of victims of commercial aviation crashes to recover up to $750,000 in non-pecuniary losses, such as loss of companionship. Through their amendment, they tried to let families know that the value of a person's life should not depend solely upon how much money a person makes.

The bill proposed as a DOHSA-fix failed last Congress, but lawmakers are trying in the current congressional session to loosen DOHSA restrictions and ensure fair remedies for all victims, whether lost in a boat or plane. However, lawmakers have come to an agreement more readily that DOHSA should be amended to extend recovery of non-economic damages to victims of aviation disasters, rather than maritime disasters.

Senator Ron Wyden (D-OR) has worked particularly hard to amend DOHSA to help people who were killed while boating. One of Mr. Wyden's constituents, Judith Sleavin, lost her husband and two young children in 1995 after a Korean ship slammed into their yacht 25 miles off the coast of New Zealand. Under DOHSA, Ms. Sleavin can make no claim for loss of companionship for the death of her family, no claim for pain and suffering and no claim for punitive damages against the Korean shipping company.

"[DOHSA] limits accountability," says C. Steven Fury, a Seattle, Washington, attorney who represents the family of a young woman who was killed while on board a cruise ship.

"How many parents are there who depend on their young children for economic support? DOHSA basically exonerates a cruise line that negligently kills a child," says Fury.

Many lawmakers agree that people should have a legal remedy and access to rights irrespective of where a tragedy has occurred. Sadly enough, it has taken nearly eight decades -- and too many deaths -- for lawmakers of today to even consider changing DOHSA. It will be a good day for families when those considerations become reality.

Richard H. Middleton, Jr., president of the Association of Trial Lawyers of America, is a partner in the Savannah, GA, law firm of Middleton, Mathis, Adams & Tate, P.C.

Leah S. Guerry is the executive director of the Louisiana Trial Lawyers Association.

Reprinted with permission of Louisiana Trial Lawyers Association, P. O. Box 4289, Baton Rouge; (225) 383-5554 or (800) 354-6267.