Louisiana Job Injury Law Blog

By the end of this year, Ingalls Shipbuilding division of Northrop-Grumman plans to Layoff 642 people from its Pascagoula, Mississippi Shipyard. The first 292 affected workers were given 60 days notice under the Worker Adjustment and Retraining Notification (WARN) Act. This recent announcement follows Northrop Grumman's WARN announcment this month that it would layoff 205 employees at the Gulf Coast shipbuilding facilities at Avondale, La. and Tallulah, La.

Shipfitters and other employees from Avondale, Tallulah and Ingalls who have been injured on the job and who have returned to work with restrictions and then are laid off for economic reasons may have their wage loss indemnity benefits reinstated because the resulting job loss is of no fault of their own. Affected injured workers should contact FARA, the third party administrator for self-insured Northrop-Grumman and demand reinstatement of indemnity payments. FARA can be reached at (800) 259-8388.

Longshore and Harbor Workers Compensation Act, 33 U.S.C.A. §§ 901 et seq ("LHWCA") provides that if an alternative position within an injured employees work restrictions becomes unavailable with the employer of injury due to an economic layoff, full indemnity payments must be reinstated until such time as suitable alternative employment can be established by the employer.

Resources:

Workplace Standards: Notices for Plant Closings and Mass Layoffs

A U.S Army decision to continue an exclusive contract with KBR Inc. rather than solicit bids from other military service providers has many Washington lawmakers shaking their heads. KBR, a leading American engineering and construction company headquartered in Houston, holds the current contract with the U.S Army for provision of services in Iraq. These services include equipment maintenance, facility operations, dining, cleaning, laundry, sewage and trash pickup. KBR employs approximately 14,000 U.S. employees in Iraq to provide logistical support to U.S forces. Under the latest contract, KBR will receive $568 million to provide support services in Iraq until full troop withdrawal in December 2011.

In January 2010, the U.S Army responded to Congressional pressure for increased competition between private service providers and opened solicitation for competitive bids. Two rival companies, DynCorp International Inc and Fluor Corp submitted bids. While a spokesman for DynCorp stated their proposal was "designed to produce significant savings for taxpayers," an Army spokesperson defended the decision to retain KBR, citing KBR's satisfactory performance and the operational and financial costs associated with switching providers. According to Army officials, switching contractors would cost taxpayers $77 million and would result in an inevitably inefficient transitory period. The May 16 decision to retain KBR came despite two pending lawsuits filed by the U.S Justice Department against KBR as well as continued controversy over KBR's prices, politics, production quality, payroll size, and financial honesty. A civil fraud suit filed in April alleges KBR charged the government for unauthorized security services in Iraq while a separate lawsuit alleges KBR transportation department employees received unlawful kickbacks.

Both Democrats and Republican lawmakers on the U.S Senate Homeland Security and Governmental Affairs Subcommittee expressed their disappointment with the single-source contract, addressing concerns for fair competition and service oversight to Defense Secretary Robert Gates.

While KBR will remain the sole provider of services in Iraq, DynCorp and Fluor each received contracts to provide services to U.S troops in Afghanistan last July. According to Army officials, the Army remains open to contractual competition and is determined to "provide the best solution for our men and women in uniform as well as the U.S. taxpayers."

Army Awards Lucrative Iraq Contract to KBR

KBR warned to cut number of employees in Iraq

Staffing concerns, over-billing gov't, troop withdrawal/employee withdrawal

• In his books "Disposable Army: Civilian Contractors in Iraq and Afghanistan," and "Blood Money: Wasted Billions, Lost Lives and Corporate Greed in Iraq", Christian Miller investigates the medical services available to injured civilian employees operating oversees.
• The United States government has increasingly relied on private contractor services in Afghanistan and Iraq. Civilians risk injury and death in war zones to perform support services such as laundry, mail delivery, translation, and transportation of goods.
• Particularly in times of economic trouble, thousands of ordinary citizens are drawn to war zone contractor work because of the opportunity to make a higher salary while supporting their country.
• Approximately 1,700 contracted civilians have been killed in Afghanistan and Iraq while another 31,000 have been injured.
• Insurance guidelines for private contractors operating in war zones are outlined in Congress's Defense Base Act.
• The DBA requires every private contractor operating for the U.S government to purchase a specialized type of workers' compensation insurance for all employees. Premiums for this specialized insurance
• When enacted in 1940, the DBA was not intended to cover the types of war zone injuries private contractors in Iraq and Afghanistan now face. The typical slip and fall injuries experienced by private contractors of the 1940's have been replaced by injuries such as posttraumatic stress disorder, amputation, and death.
• Because the contractor buys the policy and taxpayers pay for the total price of the contract which reflects the insurance policy, taxpayers share the burden of the outdated DBA.
• If a contractor is injured in a combat situation, the U.S government reimburses the insurance company, effectively causing taxpayers to foot both the pricy insurance premium and hospital bill.
• According to a governmental audit, AIG, the primary provider of war zone civilian coverage, has collected over $1.5 billion in premiums and have earned approximately $600 million in profit.
• Because private contractors do not have a system of care similar to the healthcare received by U.S military members, emergency response in war zones is dependent on who you are and the situation.
• Back home, many claims made by private contractors operating in war zones are denied by private insurance while other injured contractors never file claims as a result of confusion over coverage.
• For example, Post Traumatic Stress Disorder is a psychological illness increasingly reported by civilian contractors. While members of the military may eventually receive counseling and care under military benefits, private insurance companies are less likely to approve costly therapy treatments for civilians.
• Nearly 44% of claims filed by injured contracted civilians are initially denied by insurance companies while nearly half of all psychological claims are denied, often spurring lengthy court battles.
• Many contracted employees, particularly foreign employees operating in war zones, are not aware of their insurance rights. Although taxpayers pay for their insurance, many people do not file claims and insurance companies such as AIG never pay out.
• Contracted civilians are in a strange position. Although often well paid, these individuals provide support service for military personnel and are at risk daily. Upon returning from Iraq or Afghanistan, civilian contractors do not have veteran status and often must fight with insurance companies to receive injury benefits.
• While studies show contracting out services in the short term often saves money, the long-term benefit of outsourcing jobs through private contractors in Iraq and Afghanistan is unknown.

Sources/Additional interest:

Injured War Zone Contractors Fight to Get Care From AIG and Other Insurers

J Lincoln, PhD, D Lucas, MS, Alaska Pacific Regional Office, National Institute for Occupational Safety and Health report in a July 16, 2010 report that:

• Commercial fishing is one of the most dangerous occupations in the United States;
• Of the 504 U.S. commercial fishing deaths, the majority occurred after a vessel disaster (261 deaths, 52%) or a fall overboard (155 deaths, 31%). By region, 133 (26%) deaths occurred off the coast of Alaska, 124 (25%) in the Northeast, 116 (23%) in the Gulf of Mexico, 83 (16%) off the West Coast, and 41 (8%) in the Mid- and South Atlantic.
• The fisheries with the highest number of fatalities were Gulf of Mexico shrimp (55), Atlantic scallop (44), and Alaskan salmon (39)

Source:

CDC's Commercial Fishing Deaths --- United States, 2000--2009

As some 34,000 workers labor to contain the oozing oil surging in to the Gulf of Mexico, concerns over the potential health effects of the BP oil spill have mounted.

In a U.S Institute of Medicine panel led last week by Linda McCauley, dean of Emory University's School of Nursing, McCauley expressed concern for the health of the clean-up workers and called for increased transparency from BP regarding safety precautions.
In the months following the April 20th spill, efforts to coordinate resources and organize health monitoring have been slow and reminiscent of post 9/11 efforts to access and monitor the health of emergency responders.

" Large gaps in the data" are making it difficult for scientists and health professionals to gather conclusive information on the health of spill workers. Many Institute of Medicine panel members shared McCauley's concerns and called for the U.S government to fund a long-term effort to routinely monitor and track levels of toxin exposure amongst clean up and maintain coherent data.

While much is unknown about the long-term health effects of such a massive oil spill, the National Institute of Health has pledged $10 million towards the study of the public health impact of the spill. Gulf residents and cleanup workers have already experienced acute exposure symptoms including headache, nausea, throat irritation, eye pain, cough, and dizziness. Over 450 oil exposure complaints have been reported to the American Association of Poison Control Centers, the majority concerning fume inhalation by cleanup workers.

Although spill workers are most likely to experience negative health consequences as a result of the spill, untrained cleanup volunteers and children also represent vulnerable populations. According to Irwin Redlener, member of the National Commission on Children and Disaster Preparedness, children are at an increased risk of health problems associated with ingestion, skin absorption, and inhalation of spill materials. Redlener also expressed concern for the psychological health of tGulf Coast children who may experience increased stress levels as a result of both 2005's Hurricane Katrina and the oil spill.

Kenneth Olden, dean of New York's CUNY School of Public Health at Hunter College, cited cancer, birth defects, and miscarriages amongst the oil spill's potential adverse human health effects. Although early data indicates the risk is low for pregnant women and their unborn babies, the Centers for Disease Control and Prevention has issued a warning to " everyone, including pregnant women" to avoid spill-affected areas and cautions spill workers to wear proper protective gear and avoid working in extreme heat.

As efforts to contain the oil and clean up the spill continue, the lasting impact of our nation's largest oil spill on human health is not yet estimable.

Governor Bobby Jindal of Louisiana said yesterday that Northrop has advised the State of Louisiana that Avondale Shipyard near New Orleans may shut down due to lack or orders beyond 2012. This move would put about 5,000 employees out of work.

Shipfitters and other Avondale employees who have been injured on the job and who have returned to work with restrictions and then are laid off for economic reasons may have their wage loss indemnity benefits reinstated because the resulting job loss is of no fault of their own.

Longshore and Harbor Workers Compensation Act, 33 U.S.C.A. §§ 901 et seq ("LHWCA") provides that if an alternative position within an injured employees work restrictions becomes unavailable with the employer of injury due to an economic layoff, full indemnity payments must be reinstated until such time as suitable alternative employment can be established by the employer.

Additional Resources:

Gov. Jindal: We Will Do Everything to Save Avondale Shipyard

At approximately 7 a.m. the Unified Command at the Incident Command Post in Mobile was notified that a master of a Vessel of Opportunity (VOO) died in Gulf Shores, Ala. The Gulf Shores Police Department is conducting an investigation. Questions should be directed to (251) 968-2431.

The Unified Command at the Incident Command Post in Houma, La. was notified of the death of a subcontractor. The death was not associated with the member's Deepwater Horizon Response duties. The incident is being investigated by the Gretna Police Department. Questions should be directed to (504) 363-1700.

Incident commanders from Houma and Mobile expressed their thoughts and prayers for the friends and family members of the lost members of the response teams.

Dredging in Louisiana has officially commenced, in an effort to create sand berms that will inhibit the spreading of oil from the Gulf to the shores and marshlands in the state. This massive project will place numerous individuals in jobs on dredging vessels, who will be tasked with removing the sand, storing it, and replacing it in areas where it is considered advantageous for stopping the oil.

Vessels equipped for this activity, namely the "hopper dredge," are extremely powerful machines. In addition to their capacity to transport massive quantities of sand, they have the capacity to cause harm to their operators, and other individuals who are situated in waterways near the vessel. The Army Corps of Engineer's list of hazards related to the hopper dredge is significant, describing how smaller boats could be capsized by the dredge's wake, and how the water pressure the dredge emits could force a person underwater, causing serious injury or death.

In light of the safety concerns surrounding these dredges, there are many standard procedures that are required of the companies who run these vessels to ensure, if nothing else, the workers' well being. The Mine Safety & Health Administration (MSHA)provides a meticulous checklist for one of the dredge vessels that is intended to make dredge operations foolproof, in terms of safety. Among the inspections, logs and general activities that are detailed are general safety procedures, such as what to do in case of a medical emergency, and maintaining an appropriate number of personal flotation devices (PFD's) on board.

Despite the existence of checklists, there is never complete assurance that a dredge operation will be in total compliance with safety requirements. A lack, or non usage, of PFD's can be particularly hazardous for workers. Individuals who are employed in the current dredge operations should keep their eyes open for instances where a dredge may not be following safety guidelines. In the event of an accident that could have been prevented by adherence to safety regulations, the operating company could be held liable for the mishap. The current atmosphere surrounding the oil spill in Louisiana is extremely frenetic, but this does not mean that dredge operations should cut corners for the sake of productivity when safety is concerned.

Additional Resources:

U.S. Department of the Interior - Bureau of Reclamation Requirements For Watercraft & Dredging Safety
U.S. Department of Labor- Mine Safety & Health Administration: Sand Dredge Operator Safety
U.S. Army Corps of Engineers: Safety Tips Around Dredges

I. Introduction

Chairman Leahy, Ranking Member Sessions and members of the Committee, thank you for inviting me to appear before you today. My name is Tom Galligan and since 2006 it has been my good fortune to serve as the President of Colby-Sawyer College in New London, New Hampshire where I am also a Professor in the Humanities Department. From 1998-2006, I was the dean of the University of Tennessee College of Law where I also held a distinguished professorship. From 1986-1998, I was a professor at the LSU Paul M. Hebert Law Center in Baton Rouge, where I also held an endowed professorship. From 1996-1998, I also served as the Executive Director of the Louisiana Judicial College. At both Tennessee and LSU, I taught and wrote about torts and maritime law. I am the author or co-author of several books and many articles on tort law and punitive damages. Along with Frank Maraist, I am the author of three books on maritime law, one of which is and another of which will soon be co-authored by Catherine Maraist. I have also written law review articles on various aspects of maritime law and given countless speeches on torts and maritime law; and I continue to speak and write on those subjects. It is an honor to appear before you today.

The disaster in the Gulf of Mexico has already resulted in death, injury, environmental devastation, and economic loss to individuals, businesses, and governmental entities. Additional damage is occurring every day; no end is yet in sight. The staggering consequences of the spill force us to ask whether applicable laws are fair, consistent, and up-to-date. Do they provide adequate compensation to the victims of maritime and environmental disasters? And, do our laws provide economic actors with proper incentives to ensure efficient investments in accident avoiding activities? Sadly, an analysis of the relevant laws reveals a climate of limited liability and under compensation.

The law under compensates, in part, because, the Jones Act and the Death on the High Seas Act (DOHSA), as interpreted, do not provide damages to the survivors of Jones Act seamen and those killed in high seas maritime disasters for the loss of care, comfort, and companionship suffered as a result of their loved one's deaths. Aggravating the situation, some courts have inappropriately relied on those recovery denying rules to further limit recovery of nonpecuniary damages in other maritime cases. These failures to fully compensate raise basic issues of fairness and corrective justice. Is it right, consistent with modern law and values, and just to deny recovery for very real damages such as the loss of care, comfort, and companionship one suffers when a loved on is killed? In addition, the failure to compensate raises important issues concerning tort law and deterrence.

If the law under compensates, economic actors, when deciding what to do and how to do it, face less than the total costs of their activities. This economic reality may, in turn, lead to under deterrence and increased risk. In the maritime setting, the climate of limitation is exacerbated by the existence of the 1851 Ship Owner's Limitation of Liability Act, which allows a ship owner to limit its liability to the post-disaster value of a vessel, providing the events occurred without the privity or knowledge of the ship owner. While punitive damages might make up for the lack of deterrence in some areas, the deterrent role of punitive damages in admiralty is less significant because of the rule that limits the recovery of punitive damages to compensatory damages in maritime cases at a 1:1 ratio.

I will begin my analysis with a discussion of the legal fact that loss of society damages are not recoverable by the survivors of many who are killed in maritime disasters. In failing to allow recovery of loss of society damages--damages for loss of care, comfort, or companionship--maritime law is contrary to the rule prevailing in the majority of the states. Katherine J. Stanton, The Worth of Human Life, 85 N.D. L. Rev. 123, 130-31 (2009). Consequently, maritime law under compensates the surviving families of seamen and those killed in high seas maritime tort disasters. Congress has the chance and ability to change this state of affairs by amending the relevant statutes. Second, I will discuss the extension of the seamen and high seas no loss of society recovery rules to other maritime cases, thereby further limiting potential overall liability. Third, I will describe the anomalous high seas death rule that pre-death pain and suffering damages are not recoverable in a maritime survival actions where death occurs on the high seas. Fourth, I will briefly explain how under compensation can lead to under deterrence and increased risk. Next, I will address the maritime doctrine of limitation of liability and, finally, I will review the impact of maritime punitive damages rules on risk and deterrence.

II. Loss of Society in Maritime Wrongful Death Cases--Seaman and the High Seas

Loss of society damages are not recoverable in Jones Act wrongful death cases and/or in any case where death occurs on the high seas. This harsh legal reality is inconsistent with modern American law and under compensates for loss arising from maritime wrongful death. The no recovery rule is also inconsistent with the more progressive recovery available in high seas commercial aviation disasters.

A. Seamen

The analytical starting point in any industrial maritime tort case is to determine whether an injured or deceased person was a seaman because that status determines the legal rights of the claimant. A seaman is a person who does the work of a vessel, McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991), and who has an employment-related connection to a vessel which is substantial in duration (more than 30% of one's work time is spent on a vessel or fleet of commonly owned or controlled vessels), Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), and nature (the worker is exposed to the perils of the sea). Harbor Tug and Barge Company v. Papai, 520 U.S. 548 (1997). Maritime law treats a semi-submersible drilling rig as a vessel. Marathon Pipe Line Co. v. Drilling Rig/Odessa, 761 F.2d 229,233 (5th Cir. 1985). The moveable drilling rig is a vessel because it is "capable of being used as a means of transportation on water." 3 U.S.C.A. § 3; Stewart v. Dutra Construction Company, 543 U.S. 481 (2005). The Deepwater Horizon was a moveable drilling rig and, therefore, under maritime law, it is a vessel. Interestingly, a permanently attached drilling platform, as opposed to a semi-submersible drilling rig, is not a vessel.

Assuming that the Deepwater Horizon was a vessel, workers with a substantial employment-related connection to the Deepwater Horizon would be seamen. A seaman has several possible claims against his or her employer: 1.) the right to recover maintenance and cure; 2.) the right to recover injury caused by the unseaworthiness of the vessel on which he or she served (a vessel is unseaworthy if it presents an unreasonably unsafe condition to the seamen on board); and 3.) a Jones Act, 46 U.S.C.A. § 30104, right to recover in negligence against his or her employer. Frank L. Maraist & Thomas C. Galligan, Jr., Admiralty in Nutshell, 194-99 (5th ed. 2005)

1. Jones Act Negligence

The Jones Act incorporates the provisions of the Federal Employers Liability Act (FELA). 45 U.S.C.A. § 51. The Jones Act (through the FELA) provides certain survivors of seaman killed as a result of their employer's negligence with wrongful death and survival action claims against the employer. Basically, a wrongful death action is an action that compensates certain beneficiaries for the loss they suffer as a result of the death of the victim. The survival action provides recovery for the damages that the decedent suffered before his or her death.

Critically, what do the recoverable damages include and what do they not include in a Jones Act negligence wrongful death action? The survivors can recover any loss of economic support, any lost services, and other traditional types of pecuniary damages. The survivors cannot recover loss of society damages. That is, they cannot recover for the loss of care, comfort, or companionship caused by the death. Loss of society damages are, in essence, those damages survivors suffer as a result of the fact that the deceased is no longer there to share the joys of life with the them. The inability of the Jones Act seaman's survivors to recover loss of society damages in the negligence action does not result from the language of the Jones Act or the FELA. Rather, it is the combination of a 1913 decision of the United States Supreme Court, Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59 (1913), which refused to recognize the right to recover loss of society damages under the FELA (and which actually predated the passage of the Jones Act by seven years) and the result of the Court's reliance on that decision in Miles v. Apex Marine, 498 U.S. 19 (1990).

One might arguably understand and appreciate the Vreeland holding in an era when the law of wrongful death was still in its relative infancy; human life spans were shorter, and given the state of technology, industry, and law, accidental death was a more common part of the American landscape than it is today. However, to deny recovery of loss of society damages in a wrongful death case today is out of the legal mainstream and is a throwback to a past era. A spouse, child, parent, or sibling of a seaman killed in a maritime disaster suffers a very real loss of society and the law should recognize it.
Congress could easily remedy this state of affairs by amending 45 U.S.C.A. § 51, the FELA wrongful death statute, to state that recovery by a named beneficiary in a wrongful death action shall "include nonpecuniary damages for loss of care, comfort, and companionship." That amendment would bring the Jones Act and FELA much more into line with modern tort law regarding the recovery of damages in wrongful death cases, as well as the economic, social, and familial realities of today.

2. Unseaworthiness

Moving from the negligence claim for wrongful death to the unseaworthiness claim for wrongful death, the general maritime law provides certain survivors with wrongful death and survival actions against a vessel owner (or operator under many circumstances) if the seaman is killed as a result of the vessel's unseaworthiness. If the death occurs on the high seas, then DOHSA, 46 U.S.C.A. § 30302, governs the recoverable wrongful death damages arising from the vessel's unseaworthiness. DOHSA limits recovery to "pecuniary loss." 46 U.S.C.A. § 30303. Thus, the survivors of seamen killed as a result of a vessel's unseaworthy condition on the high seas may not recover loss of society damages. Consequently, the spouse, parent, or child who has no claim for pecuniary damages recovers nothing for the losses caused by the death of a loved one and all of the issues raised concerning the inequity, incongruity, and antiquated nature of that limitation on recovery discussed above in conjunction with the Jones Act apply to DOHSA. One case worthy of note is Rux v. Republic of Sudan, 495 F.Supp.2d 541 (E.D. Va. 2007), which chillingly presents the operation of DOHSA. There, 56 surviving family members of the 17 sailors killed in the terrorist bombing of the U.S.S. Cole sued the Republic of Sudan under the Foreign Sovereign Immunities Act, 28 U.S.C.A. § 1605(a)(7) alleging that Sudan was at fault for providing material assistance and support to Al Qaeda, the group responsible for the attack. The court held that DOHSA applied and because nonpecuniary damages were not recoverable, 22 family members, including parents and siblings recovered nothing as a result of the deaths even though the court noted:

The court sympathizes greatly with plaintiffs, who continue to suffer terribly years after their loved ones died. But the court is bound to follow the legal precedent before it. Congress makes the laws; courts merely interpret them. Whether to amend DOHSA to allow more liberal recovery in cases of death caused by terrorism on the high seas, as Congress did in 2000 for cases of commercial aviation accidents on the high seas, is a question for Congress alone. Accordingly, plaintiffs' IIED [intentional infliction of emotional distress] and maritime wrongful death claims are dismissed for failure to state a claim upon which relief can be granted. 495 F.Supp.2d at 565. See also, Rux, 461 F.3d 461 (4th Cir. 2006), cert. denied, 127 S.Ct. 1325 (2007); Rux, 672 F.Supp.3d 726 (E.D.Va. 2009). See generally, Ross M. Diamond, Damage--Unequal Recovery for Death on the High Seas, 45 Sept.--Trial 34 (2009).

Here, as in Rux, in addition to the general and very substantial reasons to allow recovery of loss of society damages in DOHSA cases, there is an additional analytical prong involving a 2000 amendment to DOHSA (referred to in the quote from Rux above) that points to the need to amend DOHSA. In response to several highly publicized commercial airline disasters, (KAL 007 and TWA 800) Congress amended DOHSA to provide for recovery of nonpecuniary damages (loss of care, comfort, and companionship), 46 U.S.C.A. § 30307(a), for death resulting from "a commercial aviation disaster occurring on the high seas beyond 12 nautical miles from the shore of the United States?but punitive damages are not recoverable." 46 U.S.C.A. § 30307(b). See generally, Stephen R. Ginger and Will S. Skinner, DOHSA's Commercial Aviation Exception: How Mass Commercial Aviation Disasters Influenced Congress on Compensation for Deaths on the High Seas, 75 J. of Air Law & Comm. 137 (2010) (discussing the legislation and the jurisprudence). This amendment, which was made retroactive to the day before one of the relevant air disasters, brought DOHSA into the legal mainstream as far as the survivors of victims of commercial aviation disasters. But, while the survivors of the victims of a commercial aviation disaster on the high seas may now recover nonpecuniary damages the survivors of anyone else killed on the high seas (including for instance someone killed on a cruise ship or on a semi-submersible floating rig or even a helicopter) may not. It strains reason to come up with a meaningful, rational principle to justify the differential treatment, other than the very real social and political turmoil that followed the high profile tragic air disasters. The disaster of the Deepwater Horizon is, of course, a similarly tragic event, which presents an opportunity to bring the law into some logical, sensible, compassionate symmetry.

To add another relevant point to the analysis, OPA 90, 33 U.S.C.A. § 2701 et seq., allows victims of oil spills to recover various damages, including removal costs, § 2702(b)(1); damage to real or personal property, § 2702(b)(2)(B); damage to natural resources used for subsistence, § 2702(b)(2)(C); and economic damages because of damage to property or natural resources even if the claimant does not own the property. § 2702(b)(2)(E). These rights to recover damages assure compensation to persons injured in various ways by an oil spill.

But, critically, OPA 90 does not apply to personal injury or wrongful death claims. See generally, Gabrick v. Lauren Maritime (America), Inc., 623 F.Supp.2d 741 (E.D. La. 2009)(OPA does not cover bodily injury claims damage). Consequently, the survivors of the seaman (or others) killed on the high seas as a result of negligence or unseaworthiness do not recover for loss of society while the persons whose property was damaged or who lost profits do recover. This is not to say that recovery for damaged property or lost profits is not appropriate, it is merely to point out that currently recovery of economic loss is more readily available than recovery for loss of a loved one.

I have noted above how a possible amendment to the FELA would deal with the seaman's negligence claim; DOHSA could also be amended to delete the word "pecuniary" before "loss" in 46 U.S.C.A. § 30303 and to add the language, "including nonpecuniary damages for loss of care, comfort, and companionship" after "loss." This is basically the language that was originally included but taken out of the proposed Cruise Vessel Security and Safety Act of 2008, S. 3204, 110th Cong. (2008); Cruise Vessel Security and Safety Act of 2008, H.R. 6408, 110th Cong. (2008).

III. Seaman's Survivors Wrongful Death Claims Against Third-Parties and Non-Seaman Wrongful Death Claims

The beneficiaries of a seaman killed on the high seas may have claims not only against the vessel but may also have general maritime tort claims against other parties such as manufacturers, contractors, or others. Likewise, the survivors of non-seamen tortiously killed on the high seas may have maritime wrongful death claims. But by definition, if death results then DOHSA applies and nonpecuniary damages would not be recoverable.

As noted, if workers, who are not seaman, are killed as a result of a maritime disaster on the high seas, DOHSA would also govern their survivors' recovery which would be limited to pecuniary damages, as currently defined. The amendments to DOHSA, proposed above, making nonpecuniary damages and pre-death pain and suffering damages recoverable, would apply to those claimants as well. Concomitantly, if the death occurs in territorial waters, nonpecuniary damages would seem to more likely be recoverable. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974)(allowing the survivors of an LHWCA worker killed in territorial waters to recover loss of society). See also, Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1995)(allowing the survivors of a non-seafarer killed in territorial waters to rely on state law to seek recovery of loss of society damages). Thus where one dies may be more relevant to recovery than other critical circumstances, such as the injury to the relevant survivors.

If a worker is killed on a stationary drilling platform located over the high seas, as opposed to being killed on a semisubmersible mobile rig, state law would govern his or her tort recovery rights against third persons and state law very probably would mean survivors could recover loss of society and pre-death pain and suffering damages from third persons. This is because the Outer Continental Shelf Lands Act, 43 U.S.C.A. § (a)(2)(A), adopts the laws of each adjacent state as the governing law on OCS platforms, which are treated as islands in an upland state (recall that platforms, unlike rigs, are not vessels). See generally, Frank L. Maraist & Thomas C. Galligan, Jr., Admiralty in a Nutshell, 323-27 (5th ed. 2005); Alleman v. Omni Energy Services Corp, 580 F.3d 280 (5th Cir. 2009). Thus the measure of recovery in a fatal injury action on an off-shore oil or gas production facility (a rig or platform) would depend upon whether the relevant vehicle was a platform or a rig, even though the job that the killed worker was doing and the cause of the death was exactly the same. The point is that the potential recovery would illogically and unfairly depend upon happenstance not substance.

IV. Expanded Under Compensation

As noted above, the fact that the survivors of seamen and anyone killed on the high seas cannot recover for loss of society damages under compensates and is inconsistent with the current majority rule in America; however, some courts have actually extended the scope of the Jones Act and DOHSA no recovery rules beyond their express reach and have applied them to limit or deny recovery in other maritime contexts. In Moragne v. States Marine Lines, Inc., 389 U.S. 375 (1970), the United States Supreme Court created a general maritime law action for wrongful death that filled some of the gaps in maritime wrongful death law and to provide recovery to some of the factual situations which DOHSA and the Jones Act did not cover. Then in, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974) the Court held that the Moragne claim allowed the survivors of an LHWCA worker killed in territorial waters to recover loss of society damages. In so holding, the Court's decision was consistent with the modern American majority rule allowing recovery of loss of society in wrongful death cases. Thereafter, the Court, in American Export Lines, Inc. v. Alvez, 446 U.S. 274 (1980), held that the spouse of an injured long shore worker could recover loss of society/loss of consortium in a case where the worker was injured but not killed.

However, two years before Alvez, the Court began a trend of liability limiting decisions ostensibly based on Congressional intent. In Mobil Oil Corporation v. Higginbotham, 436 U.S. 618 (1978), the Court refused to allow the survivors of someone killed on the high seas to rely upon the Moragne claim to recover loss of society damages because those damages were not recoverable under DOHSA. The Court decided that because Congress had spoken to the subject in DOHSA (limiting recovery to punitive damages), the Court was not free to supplement the recovery through the general maritime law. The trend to extend liability limitation was on. Thereafter, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), the Court refused to allow the plaintiffs in a high seas death case to "borrow" state law to supplement DOHSA recovery. The limitation trend continued.

Then, in Miles v. Apex Marine Corporation, 498 U.S. 19 (1990), the Court considered a case involving a seaman killed in territorial waters. There, a seaman was brutally murdered by a bellicose fellow crew member, who repeatedly stabbed the decedent. The decedent's mother sued the employer alleging, among other things, a Jones Act negligence wrongful death claim and a Moragne general maritime law wrongful action claim arising out of an unseaworthy condition of the vessel (the presence of the bellicose seaman). In a somewhat surprising decision, the Court refused to allow the mother to recover her loss of society damages on the unseaworthiness general maritime law wrongful death claim. The Court reasoned that when Congress enacted the Jones Act in 1920 and incorporated the FELA, it must have been aware of the Vreeland decision holding that the FELA did not authorize wrongful death recovery for loss of society damages and so Congress must have incorporated that holding in the Jones Act as judicial "gloss." Id. at 32. The Miles Court then reasoned that since Congress supposedly did not intend to allow recovery for loss of society damages in a Jones Act based wrongful death claim for negligence, such damages were not available in a general maritime law (Moragne/Gaudet) wrongful death action based on unseaworthiness. This was because, the Court said: "It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault [unseaworthiness] than Congress has allowed in cases of death resulting from negligence." Id. at 32-33. See generally, David W. Robertson, Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend , 70 La. L. Rev. 463 (2010). The Miles decision was, of course, arguably inconsistent with the spirit, if not the holding, of Gaudet and Moragne, and scholars have criticized it. See Hon. John R. Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?, 24 J. Mar. L. & Com. 249 (1993); Robert Force, The Curse of Miles v. Apex Marine Corp.: The Mischief of Seeking "Uniformity" and "Legislative Intent" in Maritime Personal Injury Cases, 55 La. L. Rev. 745 (1995). Moreover the Supreme Court has twice refused to extend the holding of Miles. Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009)(recognizing right to recover punitive damages in case alleging willful failure to pay maintenance and cure); Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1995)(allowing the survivors of a non-seafarer killed in territorial waters to rely on state law to seek recovery of loss of society damages).

However, despite the scholarly criticism and the Court's failure to extend the holding of Miles, some lower courts have relied upon Miles, Tallentire, and Higginbotham to limit recovery of nonpecuniary damages in maritime cases that do not fall under their holdings. For instance, in Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir. 2004), the fifth circuit said that loss of society damages were not recoverable in any wrongful death action involving a seaman, even when the claim was against a third party, who was not the decedent seaman's employer or the owner of the vessel on which he or she was killed. In Doyle v. Graske, 579 F.3d 898 (8th Cir. 2009)(boat passenger and spouse brought action in admiralty for personal injuries and loss of consortium damages sustained in boating accident off the coast of Grand Cayman Island when steering linkage disengaged), the court held that general maritime law did not allow loss of consortium recovery for the spouse of a non-seafarer (non-seaman/non-longshore worker) injured, as opposed to killed, on the high seas. See also, Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994). And, in Tucker v. Fearn, 333 F.3d 1216 (11th Cir. 2003), the court, again relying upon Miles held that the father of a minor killed in a sailboat accident in Alabama territorial waters could not recover loss of society damages under the general maritime law. In Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995), the court relied on Miles to deny recovery of punitive damages in a case involving the alleged arbitrary failure to pay maintenance and cure. Of course the Supreme Court abrogated the holding of Guevera in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009)(allowing punitive damages).
Of course all courts have not extended Miles beyond its holding. See, Kahumoku v. Titan Maritime, LLC, 486 F.Supp.2d 1144 (D.Hawai'i 2007)(law entitles LHWCA worker to recover punitive damages in maritime tort case); Clark v. W & M Kraft, Inc., 2007 WL 120136 (S.D. Ohio 2007)(loss of consortium recovery claim available for seaman's spouse and son against third party); In re Consolidated Coal Co., 228 F.Supp.2d 764 (N.D.W.Va. 2001) (loss of consortium recovery claim available for seaman's spouse against third party); Rebardi v. Crewboats, Inc., 906 So.2d 455 (La. App. 1st Cir. 2005)(punitive damages available). The fact that some courts have not extended Miles beyond its holding and some have done so results in inconsistency. But more importantly, the fact that courts have extended Miles increases the number of cases in which the law fails to recognize the reality of injury and loss and in so doing either fails to compensate for that loss at all or, at best, under compensates. The extension of limited liability and under compensation expands the general climate of limited liability in maritime tort cases and hence maritime disasters. The extensions increase the possibility of under deterrence and the potential for increased inefficient risk. Amending the Jones Act (actually the FELA) and DOHSA, as suggested above to allow recovery for loss of care, comfort, and companionship would solve the problem because the amendments would do away with the language upon which courts have relied to limit recovery and increase risk.

V. Survival Action Pre-Death Pain and Pain and Suffering

Additionally, shifting from the wrongful death claim to the survival action claim, the Supreme Court in a case that did not involve a seaman has refused to allow recovery of pre-death pain and suffering as part of a survival action claim if death occurs on the high seas. Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116 (1998). The law does allow the Jones Act seaman's survivors to recover for pre-death pain and suffering. See, David W. Robertson & Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 32 Tul. Mar. L.J. 493 (2008). Thus Dooley does not apply to those seaman claims but in any case covered by Dooley, involving a death caused by events on the high seas, no matter how much the decedent may have suffered before his or her death, those damages are not recoverable.

To remedy this situation, Congress could amend the law to not only make loss of society damages recoverable, as suggested above, but also to make pre-death pain and suffering available in maritime survival actions. Congress could accomplish that by adding the following language at the end of 46 U.S.C.A. § 30303: "The individuals for whose benefit the action is brought may also recover damages for pre-death pain and suffering." This is precisely the language that was originally included but taken out of the proposed Cruise Vessel Security and Safety Act of 2008, S. 3204, 110th Cong. (2008); Cruise Vessel Security and Safety Act of 2008, H.R. 6408, 110th Cong. (2008).

VI. Under Compensation Leads to Under Deterrence and Increased Risk

Critically, in terms of the subject of this hearing, risk and corporate responsibility, if the law under compensates, it will, by definition, under deter which will lead to lower than optimal investments in safety. Lower investments in safety and accident avoidance can lead to increased risk. This is true because when deciding what to do and how to do it, the rational economic actor will consider the costs of its activities. To the extent that a person does not have to pay a cost, it is much less likely to take that unpaid cost into account when deciding what to do and how to do it. As Judge Guido Calabresi so ably noted many years ago in The Costs of Accidents: A Legal and Economic Analysis (1970), one of the costs economic actors must consider is the costs of accidents. The costs of accidents are just as real and important as the costs of goods, the costs of raw materials, and the costs of labor. The critical importance of encouraging actors to take account of accident costs is also at the heart of Judge Richard Posner's important law and economics scholarship and jurisprudence on negligence. See, e.g., Richard A. Posner, A Theory of Negligence, 1 J. of Legal Stud. 29 (1972). This truism about taking account of accident costs is also the crux of Judge Learned Hand's famous negligence formula that provides that one is negligent if the burden or cost of avoiding a loss is less than the probability of the loss occurring times the anticipated magnitude (or value) of the loss if the loss arises and the actor fails to incur the burden, i.e., the costs of accident avoidance. Put algebraically as Judge Hand himself did, one is negligent if B < P x L and the actor does not avoid the loss by making the investment in safety. Interestingly Judge Hand originally articulated his famous and influential negligence formula in a maritime tort case. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

If a person does not take account of the costs of accidents when deciding what to do and how to do it, he or she will under invest in safety. Of course, compensatory damages are based in corrective justice and are designed to make the plaintiff whole--to put him or her in the position he or she would have been in if the wrong had never occurred. Professor Douglas Laycock has called it the "plaintiff's rightful position." Douglas Laycock, Modern American Remedies 14 (1985). However, compensatory damages also play another role in the regulation of American tort law because tort law not only compensates, it also deters unsafe conduct. And compensatory damages play a critical role in deterrence. Damages in tort cases force people to consider the costs of accidents when making decisions about engaging in risk. Moreover, as I have written:
In addition to forcing actors to pay some accident costs, compensation performs a second efficiency related function. The tort system operates as a data bank providing actors access to information on the number of accidents that do occur, the damages that accident victims suffer, and the dollar value of those damages. In this regard the "fault" system facilitates actors' ex ante [beforehand] calculations by providing them with the data they need to calculate the value of the damages that their activities impose on others. Given a large number of similarly situated actors, over time damages paid might be expected to somewhat equal the actual value ex ante of an activity's accident costs ? But in order for our current system to operate most effectively, some real relationship must exist between the accident costs society wants the actor to consider beforehand and the damages we force the actor to pay after the fact. The damages we award to compensate plaintiffs in personal injury cases and the categories of accident costs we want actors to consider ex ante should highly correlate. If actual damages awarded in tort suits do not reflect the costs we want actors to consider ex ante, but the system relies upon those actual awards as a "definition" of accident costs, then the system will not optimally deter. If the damages awarded in tort suits are less than the total costs we want actors to discount ex ante, we are encouraging people to consider less than all of the costs of that activity and to overengage in it. Likewise, if we overcompensate accident victims we are encouraging actors to underengage in the activity. Thomas C. Galligan, Jr., Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3, 25-29 (1990)(footnotes omitted).

To reiterate, to the extent tort law does not adequately compensate, it under deters and contributes to a more dangerous world than people have a right to expect. And, in the maritime setting the law under compensates because it does not compensate for loss of society in seaman and high sea death cases (other than commercial aviation disasters) and because courts have extended those no recovery rules to other maritime contexts. Of course maritime disasters and oil spills can cause more harm than injury and death. They cause damage to the environment and that damage to the environment devastates lifestyle, culture, and global well-being. It harms everyone.

Moreover, there is evidence that environmental disasters can have devastating mental health effects. See, Brief Amici Curiae of Sociologists, Psychologists, and Law and Economic Scholars in Support of Respondents in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008)(No. 07-219) at 8. In natural disasters the effects typically subside within two years, id. (citing Catalina M. Arata et al., Coping with Technological Disaster: An Application of the Conservation of Resources Model to the Exxon Valdez Oil Spill, 13 J. Traumatic Stress 23, 24 (2000)). But, technological disasters resulting from breakdowns by humans "consistently have social, cultural and psychological effects that are both more severe and longer-lasting." Brief Amici Curiae of Sociologists, Psychologists, and Law and Economic Scholars, supra at 8 (citations omitted). The effects are particularly acute where the disaster impacts renewable resource communities like fisheries. Id. at 9. These effects manifested themselves in the Prince William Sound community in the wake of the Exxon Valdez spill in: chronic feelings of helplessness, betrayal, and anger; high rates of anxiety, depression, and post-traumatic stress; increased health care demands; increased crime rates; and more. Id. at 13-18. These injuries were very real and absent some compensation or device to force actors to consider them when deciding what to do and how to do it, they will not be forced to do so, tending towards under deterrence and increased risk.

While OPA 90 provides liability for removal costs, property damage, economic loss, and more, it does not cure the problem of under compensation and under deterrence in maritime personal injury and wrongful death cases because it does not apply to maritime personal injury and wrongful death cases. The under compensation resulting from the current state of maritime personal injury and wrongful death law and the serious emotional harm that can result from a maritime, environmental disaster is not only unfair and inconsistent but it will potentially lead to increased risk. These economic realities are exacerbated in the maritime setting by the existence of the 1851 Ship Owner's Limitation of Liability Act.

VII. Limitation of Liability

The Limitation of Liability Act, 46 U.S.C.A. § 30501 et seq., applies to these events. Originally passed in 1851 to encourage investment in maritime shipping and commerce, the limitation act allows a vessel owner (and some others) to limit its liability to the post-voyage value of the vessel if the liability is incurred without the privity or knowledge of the owner. 46 U.S.C.A. §§ 30505(a), (b), and 30506(e). And, the owner is entitled to retain any hull insurance. One may justifiably wonder whether an act passed at a time before the modern development of the corporate form (and other liability limiting devices) and the evolution of bankruptcy law is still salient; however, limitation is still extant as a matter of maritime law. The vessel owner creates a fund equal to the post-accident value of the ship (not including the hull insurance). The claimants then share the fund in proportion to the value of their claims. Personal injury and wrongful death claimants share with other claimants but if the vessel is a seagoing vessel and the fund is not adequate to provide the personal injury and wrongful death claimants with recovery equal to $420 times the gross tonnage of the vessel, the owner must provide the difference, up to $420 per ton but no more. 46 U.S.C.A. § 30506 (b).
OPA 90 has its own liability limitation scheme and the applicable limit in this matter seems to be $75,000,000. While the Supreme Court has not considered the matter, lower federal courts have held that the OPA 90 supersedes the limitation act on OPA 90 claims. See, e.g., Complaint of Metlife Capital Corp., 132 F.3d 818 (1st Cir. 1997); In re Southern Scrap Material Co., LLC, 541 F.3d 584, 595 (5th Cir. 2008) (dicta); Gabrick v. Lauren Maritime (America), Inc., 623 F.Supp.2d 741 (E.D. La. 2009).
But, as noted, OPA 90 does not apply to personal injury or wrongful death. Thus the Limitation of Liability Act is applicable in a maritime disaster to allow a vessel owner to limit its liability for personal injury and wrongful death claims. Clearly, this liability limiting device can lead to drastic under compensation to the victims of maritime disasters. Repealing the Limitation of Liability Act would, of course, cure the problem of under compensation and under deterrence in general. Making it inapplicable to personal injury and wrongful death claims would at least eliminate the problems in those areas.

VIII. Maritime Punitive Damages

The under compensation and under deterrence resulting from the dated, inconsistent no recovery rules described above and the Limitation of Liability Act might be alleviated by the availability of punitive damages; however, the U.S. Supreme Court in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008), held that punitive damages in most maritime cases are limited to or capped by a 1:1 ratio between the punitive damages awarded and the compensatory damages awarded.

Punitive damages are damages in addition to compensation which are designed to punish and deter. They are only awarded where the plaintiff has proven fault; compensatory damages are awarded; and the plaintiff proves that the defendant's conduct was worse than negligence; i.e, it was intentional, willful, wanton, or reckless.
But how could punitive damages potentially alleviate the under deterrence caused by under compensatory damage awards?

It is common ground among legal scholars and economists that inefficient behavior will not be deterred unless actors are forced to internalize all of the costs associated with their activities. Although adequate deterrence may generally be achieved through an award of compensatory damages, an award of punitive damages may be necessary to achieve complete deterrence in cases in which compensatory damages fail to fully account for the costs of a tortfeasor's actions. Brief Amici Curiae of Sociologists, Psychologists, and Law and Economic Scholars, supra at 2.

The United States Supreme Court has twice in the last two and one half years held that punitive damages are recoverable under general maritime law. See, e.g., Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009); Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008). After these two decisions punitive damages are arguably are available in seaman related cases given the holding in Townsend that a seaman may recover punitive damages under the general maritime law arising out of the arbitrary and willful failure to pay maintenance and cure. But punitive damages have not been traditionally recoverable in DOHSA cases. The matter will now be the subject of future argument and litigation. Notably, however, the potential absence of punitive damages in cases involving deaths for which no loss of society and/or no recovery of pre-death pain and suffering are available may inadequately deter those who engage in activities that may cause injury or loss of life because it can result in an undervaluing of human life and the tragic ramifications when it is lost. See, Thomas C. Galligan, Jr. Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3 (1990).
Additionally, even if available, the Court in Exxon Shipping Co. v. Baker, limited the amount of punitive damages recoverable in maritime cases to a 1:1 ratio between the punitive damages awarded and the compensatory damages awarded. Justice Stevens was among the dissenters and of one of the reasons for his disagreement with the majority was that maritime law was under compensatory.

The majority noted that studies did not indicate a "marked increase" in the frequency of punitive damages over recent years. Id. at 2624. It also noted that the dollars awarded had not grown over time in real terms. Id. And the Court pointed out that the mean ratio of punitive damages to compensatory damages in the cases studied was less than one to one. Id. But the Court was apparently concerned with the potential unpredictable spread between high and low punitive awards and it was that concern which prompted the decision to generally limit the ratio of punitives to compensatories to 1:1. Id. at 2625. Critically, the Court pointed out that the case before it involved conduct which was worse than negligence but not malicious. Id. at 2631. It also noted that the activity was "profitless" to the tortfeasor. Id. The decision and the ratios should arguably not apply to cases involving higher levels of blameworthiness or "strategic financial wrongdoing." Id. n.24.

Whatever one might argue about cases to which the Exxon Shipping Co. v. Baker 1:1 ratio should not apply, I believe that most lower court judges sitting in admiralty cases would apply the ratio to maritime cases they decide due to a concern about being overruled. The ratio cap then deprives a judge or jury of the traditionally available ability to tailor a punitive award, within Constitutional due process limits, see BMW of North America v. Gore, 517 U.S. 559 (1996), to the particular facts of the case, including the level of blameworthiness, the harm suffered, the harm threatened, the profitability of the activity, and other relevant factors. Indeed one wonders if the 1:1 ratio aspect of Exxon Shipping Co. v. Baker would have been decided the same way if another maritime environmental disaster had occurred before the decision.

Senator Whitehouse's proposed bill, S. 3345, would restore the traditional ability to tailor a punitive award to the facts of the case by providing: "[I]n a civil action for damages arising out of a maritime tort, punitive damages may be assessed without reference to the amount of compensatory damages assessed in the action." The effect of the proposed amendment would be to increase the deterrent impact of punitive damage awards in maritime cases.

Moreover, it should be noted that at common law any fines paid by the wrongdoer are taken into account in order to avoid any over punishment or over deterrence. Thus the increase in OCSLA fines proposed in Senator Whitehouse's bill S. 3346, would actually have the effect of potentially reducing any punitive awards in civil suits; at least those penalties would be taken into account in deciding the proper punitive award.
While the Supreme Court has never considered the issue, several courts have held that punitive damages are not available under OPA 90. See, e.g., South Port Marine LLC v. Gulf Oil Ltd., 234 F.3d 58 (1st Cir. 2000); Clausen v. M/V NEW CARISSA, 171 F.Supp.2d 1127 (D. Ore. 2001). See the discussion in: Wright, Roy, Stephens, and Colomb, BP Deepwater Horizon Gulf of Mexico Oil Pollution Disaster, Preliminary Analysis: Law, Damages, and Procedure May 2010 (Available from Louisiana State Bar Association and the authors). The cited decisions say that OPA 90 preempts maritime law and therefore punitive damages are not available in a case involving maritime law and OPA 90. Interestingly, OPA 90 actually provides that it does not affect admiralty or maritime law. 33 U.S.C.A. § 2751(e). Moreover, OPA 90 does not provide that punitive damages are not recoverable; it is merely silent on the subject. And both South Port Marine LLC v. Gulf Oil Ltd., 234 F.3d 58 (1st Cir. 2000) and Clausen v. M/V NEW CARISSA, 171 F.Supp.2d 1127 (D. Ore. 2001) were decided before the Supreme Court's affirmation of the right to recover punitive damages in Townsend and Exxon. Indeed in Exxon, the Court refused to find that the Clean Water Act, 33 U.S.C.A. § 1321 et seq., which was silent on the subject of punitive damages, precluded the recovery of punitive damages under maritime law. Finally, OPA 90 does not, as noted, apply to personal injury and wrongful death claims. Consequently, any preemptive affect OPA 90 might have on punitive damages in personal injury and wrongful death cases would seem to be limited.

IX. Conclusion

Recovery in maritime tort cases is under compensatory. The failure to allow recovery of loss of society damages in seaman and high seas maritime wrongful death cases (other than commercial aviations disasters) is unjust, dated, inconsistent, and out of alignment with current values. The rules not only fail to compensate but they arguably lead to under deterrence and increased risk because economic actors do not have to take those risks into account in deciding what to do and how to do it. The extension of those rules beyond the contexts in which they arose exacerbates the problems and extends the climate of liability limitation. This risky state of affairs is aggravated by the 1851 Ship Owner's Limitation of Liability Act and the potential positive effect of punitive damages is limited by the 1:1 punitive damages to compensatory damages rule of Exxon Shipping Co. v. Baker. Amendment and reform is both possible and necessary. The tragedy in the Gulf of Mexico provides a sad but necessary opportunity for our nation to reconsider and improve our law in the aftermath of this disaster.

Additional Resources:

Statement of Thomas C. Galligan, Jr

Seventy-one cases of oil spill-related illnesses have been reported to the Louisiana Department of Health and Hospitals (DHH) to date, according to a report released today. Fifty of those involved workers on oil rigs or those involved in the oil spill clean-up efforts, while 21 illnesses were reported by the general public.

Epidemiologists and scientists with DHH continue to work closely with other state, regional and local officials, as well as hospitals, clinics and mobile health units to monitor in the impacts of oil and dispersants on Louisiana residents, workers and volunteers along the coast.

The Department has put out calls for doctors and medical facilities to report all illnesses and injuries related to the oil spill for an ongoing database. Each exposure-related complaint is followed up on by Office of Public Health staff.

Worker Illnesses

Most workers who reported exposure-related illnesses experienced symptoms such as throat irritation, cough, shortness of breath, eye irritation, nausea, chest pain and headaches. Eight workers were hospitalized. These hospitalizations averaged one day.

Illness Reported by General Public

Most of the illnesses reported by the general public have been related to odors from the oil spill. Officials have urged those who may be sensitive to the odors to stay indoors with doors and windows closed, and to run their air conditioning. Residents with pre-existing medical conditions, such as asthma or other respiratory illness, should consider contacting their physician if they feel symptomatic.

Breakdown of Illness by Category

• Of the workers who reported illnesses, 48 were male, two were female. Of the general public, six were male, while 15 were female. Most of those individuals who reported illnesses were between the ages of 18 and 64.
• Most workers either utilized an emergency room or urgent care center, or a clinic or physician's office (18 and 28, respectively). For those members of the general public who reported illnesses, 13 called the Louisiana Poison center, four utilized an emergency room or urgent care center, three went to a clinic or physician's office and one called a DHH hotline.

Questions about exposure-related illnesses can be directed to the Louisiana Poison Center: 1-800-222-1222. The Poison Center is staffed 24-hours a day and can provide medical management advice. To report an exposure-related illness, call 1-888-293-7020.

The full Oil Spill Surveillance Report is available here. The report will be generated by DHH weekly and posted on www.dhhemergencynews.com.

DHH's Office of Public Health, Section of Environmental Epidemiology & Toxicology gathers and analyzes information provided by surveillance sites, including hospital emergency departments, outpatient clinics, physician's offices and the Louisiana Poison Center

The Subcommittee on Oversight and Investigations held a field hearing entitled "Local Impact of the Deepwater Horizon Oil Spill" on Monday, June 7, 2010, in Chalmette, Louisiana. The hearing examined the impact of the oil spill at the Deepwater Horizon drilling rig site on the Gulf region.

At that hearing, Wilma Subra testified on behalf of Subra Company, Louisiana Environmental Action Network (LEAN) and the Lower Mississippi Riverkeeper (LMRK) concerning the issues of human health associated with the Deepwater Horizon Crude Oil Spill. The main points of her testimony concerning human health are:

• The crude oil spill has resulted in human health impacts to residents in the coastal communities and to workers toiling to contain and clean up the oil in the Gulf of Mexico and the coastal wetlands and estuaries.
• BP's crude oil spill and ongoing failure to control the source of the spill have resulted in the formation of crude oil aerosols in the air which have moved on shore ahead of the crude oil slick and continues to move on shore. These crude oil aerosols have caused community members along the coast of Louisiana, Mississippi, Alabama and Florida to experience odors. In Louisiana, the crude oil aerosols have resulted in health impacts including headaches, nausea, respiratory impacts, irritation to eyes, nose, throat and lungs and asthma attacks and have been experienced by people living along the coastal areas in St. Bernard, Plaquemines, Jefferson, Lafourche and Terrebonne parishes as well as in the New Orleans metropolitan area. These symptoms have also been experienced by workers and fishermen in the general area of the crude oil slick and areas where tar balls have washed onshore.
• The Environmental Protection Agency (EPA) web site state "some of these chemicals may cause short-lived effects like headache, eye, nose and throat irritation, or nausea."
• Local Fishermen Hired To Contain and Cleanup the Crude Oil Spill and Resulting Health Impacts
• On May 4, 2010, Louisiana Environmental Action Network (LEAN) and Lower Mississippi Riverkeeper (LMRK) received and began distributing protective gear to the fishermen to utilize during cleanup activities. The protective gear consisted of half face respirators with organic cartridges, goggles, gloves and sleeve protectors. LEAN and LMRK have continued to provide protective gear to fishermen and individuals going into the polluted areas.
• Workers hired by BP began reporting health symptoms such as severe headaches, nausea, difficulty breathing, and dizziness. However, the workers including the fishermen were reluctant to report their health symptoms for fear they would lose their jobs. The wives of the fishermen spoke out over concern for the health of their husbands. Soon the wives stopped speaking out for fear their husbands would lose their jobs.
• The Louisiana Department of Environmental Quality (LDEQ) and Louisiana Department of Health and Hospital (LDHH) stated that oil cleanup workers "should avoid skin contact, and oral cavity or nasal passage exposure to oil spill products [by] using appropriate clothing, respiratory protection, gloves and boots."
• On May 7, 2010, returning to U.S. District Court, the fishermen challenged BPs attempt to put the responsibility for compliance with technical safety laws related to hazardous substances on the fishermen. Judge Engelhardt ordered a consent agreement wherein BP agreed to take responsibility to ensure workers were properly trained in Haz-mat protocol and provided all necessary equipment at BP's expense.
• BP continued to fail to provide adequate protective gear to the fishermen. Subra Company, LEAN, and LMRK provided information to the EPA on the lack of compliance by BP with the terms of the consent agreement in not providing proper training and protective gear to the employed fishermen, and the lack of the Occupational Safety and Health Administration (OSHA) enforcement of worker safety regulations in conjunction with the response efforts.
• On May 16, 2010, OSHA issued a detailed directive on the training required for specific task responders and stated that OSHA has officials monitoring the training and observing cleanup efforts to insure that the cleanup workers are provided protective equipment and comprehensive instruction.
• Still BP failed to provide respirators to the workers exposed to the crude oil and the workers experienced health impacts. The workers were afraid to speak up due to the potential to lose their jobs. Those fishermen who attempted to wear respirators while working were threatened to be fired by BP due to the workers using respirators.
• Shrimpers employed to use their shrimp boats as oil skimmers have not been provided with the appropriate protective gear. The oily skimmers and pads are being pulled into the shrimp boats, by the boat crews, with bare hands and no protective gear.
• On May 26, 2010, a number of worker became ill on the job and were transported to the hospital. The workers reported headaches, nausea, dizziness and chest pains. On Friday, Nay 28 two additional workers became ill with severe headaches and chest pains and were also transported to the hospital.
• The protection, safety and health of the fishermen and other workers performing the deployment of booms, collecting the crude oil residue and cleaning up the environment are of great concern to Subra Company, LEAN and LMRK.
• Decision have been made that have and will continue to result in detrimental impacts to human health and the environment as a trade off for attempts to reduce the quantity of crude oil from reaching the shores, estuaries and wetlands of the northern Gulf of Mexico.
• The actions to reduce the quantity of crude oil slick from reaching the shores, estuaries and wetlands of the northern Gulf of Mexico have included burning of the floating heavy portions of the crude oil slick, application of dispersants to the floating crude oil slick and subsurface application of dispersants to the crude oil near the point it flows into gulf waters near the well head, 5,000 feet below the surface of the Gulf of Mexico. These actions have resulted in negative impacts to human health by polluting the air, by burning of the heavy portions of the crude oil slick, and by aerial and ship board application of dispersants. The actions have had detrimental impacts to the water column, sediment, biota and wetland areas by dispersing the crude oil into the water column, sediments and wetland areas. The dispersing of the crude oil also has resulted in a much larger area of impact in the Gulf of Mexico than has been covered by the surface crude oil spill.
• The failure to control the source of the crude oil spill has resulted in the shutting down and evacuation of five production platforms in the Gulf of Mexico due to the presence of the crude oil slick in the area of the platforms. Other well locations have been warned to be prepared to shut-in their production and evacuate. One rig had to be shut-in due to workers on the rig becoming ill from the air emissions from the crude oil slick.
• BP is using the dispersants Corexit 9527 and Corexit 9500 to disperse the surface crude oil as well as the crude oil as it exits the well head, 5,000 feet below the surface of the Gulf of Mexico. These dispersants were preapproved for surface application for oil spills on water. The dispersants were not preapproved for sub-surface applications. Corexit 9527 contains propylene glycol and 2-Butoxyethanol (2-BE). Corexit 9500 contains propylene glycol. The other components in the dispersants are proprietary. Propylene glycol and 2-BE are toxic and bioaccumulate up the food chain.
• Initially BP used Corexit 9527 to disperse the crude oil on the surface of the Gulf waters through the use of air planes. When the supply ran out, BP switched to the slightly less toxic Corexit 9500. Additional supplies of Corexit 9527 were secured and are currently being used on an ongoing basis. The application of the dispersant to the crude oil on the waters surface is being applied by air planes and boats.
• Because the dispersants were not preapproved for sub-sea application, the Environmental Protection Agency required that the use of the dispersant sub-sea be suspended until test could be performed. The first two testing efforts were flawed. The third test was performed May 10th and 11th. As a result of the testing, the EPA and NOAA approved the use of the dispersant for subsurface application on Friday, May 14, 2010. The use of the dispersant for sub-sea application must follow requirements established in the EPA's Dispersant Monitoring and Assessment Directive. The Dispersant Monitoring and Assessment Directive should have included requirements to monitor sediments, establishment of requirements for a monitoring grid system and frequency of monitoring, establishment of action levels which require discontinuation of application of the dispersant when the action levels are exceeded, and analysis of the dispersants in the water column and the air.
• The dispersants being used by BP suspends the crude oil from the surface water into the entire water column and the sediment of the Gulf of Mexico. The dispersed crude oil and dispersants distribute throughout the water column, contaminate the water and sediment and damages and destroys aquatic species. The dispersed oil will be washed on shore and contaminate the wetlands and estuaries, will be distributed in the Gulf waters and sediments and serve as a source of contamination that will bioaccumulate up the food chain for a long period of time. In addition, the dispersed crude oil and dispersants will add additional stresses to the Dead Zone off the Louisiana coast.
• The Louisiana Department of Health and Hospitals, Department of Environmental Quality and Department of Wildlife and Fisher expressed their concerns to BP about the potential dispersant impacts on Louisiana's wildlife and fisheries, environment and public health. The agencies are concerned about the impacts of the use of the dispersants and requested BP's commitment that the dispersants being used will not cause irreparable, short-term or long-term harm to our wetlands, coast, environment, marine life wildlife or people.
• NOAA has issued predicted maps of the location of the oil slick plume along the coastal areas of the northern Gulf of Mexico on a daily basis. Subra Company, LEAN and LMRK have consistently requested that the federal agencies prepare and issue maps of the dispersed oil plume in order to prepare for the consequences of the movement of the dispersed crude oil and dispersants.
• Each decision being made in response to the Deepwater Horizon Oil Spill event has some positive and some very negative impacts to human health, the environment and the ecosystems along the coastal areas of the Northern Gulf of Mexico. These decision are being made for the most part by the federal agencies that make up the Incident Command and with limited input from the populations most impacted by these decisions.
• Subra Company, LEAN and LMRK have worked extensively with the communities being impacted by this catastrophic disaster to monitor the ongoing activities and detrimental impacts, provide information, education, and methods of addressing the situations, engage the communities in the response efforts and decision making processes and provide protective gear to community members and workers being exposed to the environmental impacts of the disaster.
• In order to capture and document the human heath impacts resulting from the various aspects of the Deepwater Horizon crude oil and natural gas spill, Subra Company developed a human health survey instrument and through LEAN, provided the instrument to community members in the impacted areas and areas to be impacted. The results of the human health impacts documented in the surveys will be used to assess the severity and magnitude of the human health impacts associated with the Deepwater Horizon disaster.
• Subra Company, LEAN and LMRK need the assistance of the Subcommittee on Oversight and Investigations of the Energy and Commerce Committee and the federal governmental agencies in order to protect the health of coastal community members and the fishermen from the destructive impacts associated with the crude oil disaster and desperately need the existing laws and regulations to be enforced.

There are ongoing reports of injuries and illness among workers hired by British Petroleum and its subcontractors and the number of reports are steadily increasing These reports concern the State given that BP is looking to bring and additional 3,000 more people to Louisiana's coast to aid in the clean-up efforts.

DHH is receiving daily reports of injuries and illnessesnd is concerned that proper protections are not being taken and protocols followed. DHH and DEQ request OSHA:

• An official report detailing that review, method of investigation, findings and any citations issued or recommendations made.
• Details of OSHA's footprint in the area including how many people are on site to monitor worker safety and plans for regular inspection and monitoring of worker safety.
• A list of any worker complaints made directly to OSHA and the disposition of those complaints.
• A comprehensive review of training protocols for workers that includes an investigation of how consistently and fully that training is done.
• A strategy for providing regular reports to us outlining ongoing monitoring, complaints and citations.
• Any information on monitoring, such as air monitoring, on vessels and other work sites as it pertains to worker safety.

Additional Resources:

Louisiana Department of Health And Hospitals News Release

Oil and gas companies last Friday began halting exploratory drilling in the deepwater of the U.S. Gulf of Mexico. The companies are following a federal government order mandating a six-month exploratory drilling ban. Job layoffs may be inevitable.

Louisiana officials estimate the administration's suspension order for the 33 rigs will cause the loss of 3,000 to 6,000 Louisiana jobs in the next two to three weeks and as many as 20,000 if the moratorium persists.

Injured workers who are covered by a job injury compensation scheme and who have returned to work with restrictions prior to being laid off, should know that they may be able to have their wage loss indemnity benefits reinstated because the resulting job loss is of no fault of their own. These compensation schemes include:

Louisiana Workers Compensation Act, LA-R.S. 23:1021 et seq Where an injured worker establishes a work-related injury and the inability to earn 90 percent of his average weekly pre-injury wage when his current position was temporarily eliminated due to the company lay-offs and the employer fails to successfully establish that a suitable job was available for him in their respective communities or in showing that a job had been offered to him that he was capable of performing, the injured workers indemnity benefits must be reinstated.

Longshore and Harbor Workers Compensation Act, 33 U.S.C.A. §§ 901 et seq ("LHWCA"). If an alternative position within an injured employees work restrictions becomes unavailable with the employer of injury due to an economic layoff, full indemnity payments must be reinstated until such time as suitable alternative employment can be established by the employer.

The Jones Act, 46 U.S.C. Sections 30104 et seq, Courts cannot speculate that a Jones Act Seaman would have been unable to find work if he had been laid off had the accident not occurred. This employer argument ignores the fact that plaintiff was working at the time of the accident and therefore, had actual earning capacity.

Also, please remember that an application for and collection of unemployment compensation benefits may affect your ability to receive indemnity payments. Please keep in mind that you may be facing important legal deadlines and should not delay in speaking with your work injury attorney immediately to protect your interests.

West Jefferson Medical Center (WJMC) has set up a first aid tent in Grand Isle. Oil spill workers suffering from medical conditions relating to the cleanup effort can use the tent if they can find it.

BP, WJMC and Jefferson Parish have not posted the location of the tent other than to state that it is located at the Jefferson Parish Emergency Management compound on Grand Isle. You can use your cell phone to call "911" or may want to try to look for the tent at the Tarpon Rodeo Pavilion, 4500 Highway 1, Grand Isle, La 70358.

Officials said the tent will be open seven days a week from 6 a.m. to 10 p.m. It will be staffed by two EMS professionals, a doctor and a nurse practitioner. WJMC is also providing ambulance service to the area.