Wrongful Death Claims: When A Loved One Is Fatally Injured In A Maritime Accident

When a death occurs, it is a time of grieving that can last months or years, but for many people — if the decedent had dependents — it can also be a time of considerable worrying and anxiety that can also last months to years. Making matters worse is when the death was unexpected, like an accident at work. The maritime industry is one of the most dangerous industries for its workers, and the high rates of serious or fatal injuries is proof of it. When someone applies for a position in the industry, he or she should probably understand the inherent hazards, but still — if a fatal accident occurs, no one ever thinks or dare thinks that it will be a loved one.

If you have suffered a loss or a wrongful death of a family member to an accident occurring in the maritime industry, you deserve compensation. It can never bring back the loved one, but it can help soothe financial fears that compound the grieving process.

At Gilman & Bedigian, LLC, our experienced trial attorneys are here to help. Maritime law itself is very dense and convoluted. To file a wrongful death claim in this industry requires thorough knowledge and understanding as much as it requires resources and compassion. We have all these things and are ready to pursue your case on day one.

Maritime Death Benefits: How It Helps

As anyone can imagine, the loss of a loved one that carries with it also the loss of income can pose serious concern and stress on grieving family members. Death benefits are meant to relieve this part of the pain and suffering by providing family members with a degree of financial security. This helps in multiple ways.

First, of course, death benefits allow surviving family members to grieve rather than stress over financial hardship. Thus, you need not worry about finances immediately, which frees up time and space for you to come to terms with the loss of your loved one.

Second, death benefit replace the income that your loved one would have provided to his or her dependents for living expenses. Death benefits can also be used to cover funeral expenses, which can be a great stress all by itself.

Third, death benefits can be used to pay for counseling or medical assistance if you are struggling to deal with the loss of your loved one. This benefit can be particularly helpful if children are dealing with the death of a parent. Losing a parent is a tragic experience accompanied by short- and long-term effects.

Thus, death benefits does more than provide financial security, it provides a means to cope and heal.

Maritime Death Benefits: How to Get It

If you have lost a loved one to a maritime job, you are experiencing the grief that comes with the loss and the frustration and anxiety that accompanies a maritime wrongful death claim. Questions go unanswered. Layers of laws pile up. And in the meantime, the clock ticks, and with every passing day, the time for you to file a claim decreases. You should consult an attorney experienced in maritime wrongful death claims. It is the only means to ensure you are compensated appropriately and justly. An experienced maritime personal injury lawyer knows the law, the system, and the process. Below is a summary highlighting what an experienced lawyer will do for you.

1. Determine if you qualify to bring a wrongful death claim. Not everyone can bring a wrongful death claim. Generally, it is only a spouse and/or children, the latter of whom were dependent on the decedent.
2. Determine which law and jurisdiction applies and should be used. In maritime law, sometimes different laws apply and sometimes different jurisdictions can be used, which makes it difficult to determine what is best for you. Through an analysis of the specific facts, evidence and the laws, your attorney will identify the right course to pursue.
3. Determine if negligence was involved, and if so, if it can be pinned to the employer. In some cases, negligence is required, and in other cases, it may increase compensation. An attorney will identify if any of these scenarios applies in your unique circumstances.
4. Determine what just and fair compensation is. In many instances, survivors can recover non-economic damages and, in rarer cases, punitive damages. In both cases, the value is undetermined and must be calculated. An attorney will identify the best means for calculation and ascertain a value that is cogent with the law.
5. File a complete, thoroughly investigated and supported claim or lawsuit in due time. Filing a claim that is well supported, thoughtful and legally well-argued is second only to filing the claim before the statute of limitations expires.
6. Negotiating and arguing on your behalf for the best possible compensation, regardless if it’s to settle a claim or win a trial.

And that — in a nutshell — is how maritime death benefits are sought and awarded. Though it is simplified here, the process can be time-consuming and arduous, depending on the nature of the incident and the circumstances surrounding the death.

There’s one caveat: sometimes the employer and its insurer are already ready to provide you an offer. Be vigilant. In these cases, you want to review it with an attorney. Insurance companies take advantage of grief and offer a devalued settlement in the hopes you will accept immediately and not challenge it. In most cases, this happens: the offer goes unchallenged. Don’t let it happen to you. Get what the law allows and what you deserve.

Damages in a Wrongful Death Maritime Lawsuit

There are a number of damages that can be sought in a wrongful death suit. These include compensation for pecuniary and nonpecuniary losses. The following is a summary of the more typical types of damages.

Pecuniary Losses

Pecuniary damages include damages that have a value attached to it or have a value that can relatively be uncomplicated to determine. They refer to compensation for objectively verifiable monetary losses and can include:

• Medical expenses, including appointments, operations, therapy, rehabilitation
• Funeral and burial costs
• Lost wages of the deceased
• Loss of financial support to dependents (financial contributions to spouse, children, and other dependents over the decedent’s expected work life expectancy)
• Loss of support and services (monetary value of household duties and chores, yard work, etc., the deceased would have contributed)
• Loss of nurture and guidance (specific to dependent children)
• Loss of inheritance (the accrued wealth expected to be left for dependents)
• Disability benefits
• Pre-death medical expenses.

Non-Pecuniary Losses

Non-pecuniary damages include damages that require calculations because a value isn’t easily attached to them. In other words, they refer to compensation for subjective, nonmonetary losses and can include:

• Pre-death pain and suffering felt by the deceased
• Loss of consortium
• Loss of society and companionship
• Mental anguish, emotional distress.

Punitive Damages

Punitive damages are awarded in rare circumstances. They refer to damages awarded for the purpose of punishment and deterrence in response to malicious, wanton, intentional or reckless behavior or acts. Punitive damages are neither pecuniary or nonpecuniary damages; they are not awarded to compensate loss.

The damages you are awarded is dependent upon the law under which you file the wrongful death suit and the specific facts and circumstances of the case.

Death Benefit Sources in Maritime Wrongful Death Actions

The compensation you receive for your loved one’s wrongful death will derive from the maritime law specific to the decedent’s line of work and place of work and/or where the accident causing the fatal injury occurred.

The Joes Act

The Jones Act, passed in 1920, specifically covers seamen, and if a seaman dies during the course of his work while at sea, then the Jones Act provides a remedy to compensate his dependents. Beneficiaries of wrongful death claims under the Jones Act include the spouse and/or dependent children, or in the absence of the latter, the seaman’s parents.

To qualify for compensation, the claimant must prove negligence on the part of the employer, shipowner, ship captain, and/or crew. The wrongful death claim must be brought within three years of the seaman’s passing.

Persons eligible to bring a wrongful death claim include:

• Spouses at the time of death, either through marriage or common law
• Minor children dependent on the deceased for financial support
• Adult children dependent on the deceased for financial support
• Parents dependent on the deceased for financial support
• Siblings dependent on the deceased for financial support.

Compensable damages include pecuniary losses only with the exception of compensation for the deceased’s pain and suffering before he passed. Damages can potentially include but may not be limited to:

• Lost wages
• Funeral costs
• Loss of services
• Loss of care and guidance
• Pre-death medical expenses
• Pre-death pain and suffering.

If your loved one was a crew member killed in U.S. territory, you may be able to file a claim under the Jones Act.

Death on the High Seas Act (DOHSA)

The Death on the High Seas Act (DOHSA) was passed in 1920, roughly at the same time the Jones Act was passed. Its purpose in part was to fill the void in the Jones Act, i.e., the Jones Act lacked a remedy for family members to file wrongful death suits if their loved one was killed beyond U.S. waters. DOHSA applies to families of deceased persons who were either workers or passengers:

1. on a water vessel and was killed beyond the three-mile territorial limit; or
2. On a commercial airline and was killed beyond the 12-mile international waters limit.

Persons eligible to bring a wrongful death claim include:

• Spouses at the time of death, either through marriage or common law
• Minor children dependent on the deceased for financial support
• Adult children living at home and dependent on the deceased for financial support
• Financially dependent family members (parents, siblings, grandparents) of the deceased.

To note, surviving family members of workers killed on a commercial vessel are eligible for compensation, but if the worker was fatally injured on a private vessel, then a wrongful death suit under DOHSA is not applicable.

Compensable damages can potentially include but may not be limited to:

• Funeral costs
• Medical expenses for counseling (related to death)
• Lost wages (including pension and benefits)
• Loss of support and services
• Loss of care and guidance
• Pre-death medical expenses
• Pre-death pain and suffering.

Non-pecuniary damages are awarded only in the case of the deceased who meet the aviation accident requirements; these damages are not available to maritime workers or seamen through a claim under DOHSA. Additionally, if the deceased maritime worker contributed at all to the accident that led to his or her death, compensation is still available, but it may be reduced in proportion to his or her contribution.

Like the Jones Act, compensation under DOHSA is only available if negligence or wrongdoing is proven, but you can also file for a legal remedy if you can prove the vessel was unseaworthy. Also like the Jones Act, you have three years from the date of the wrongful death to file a claim or lawsuit.

General Maritime Law

Legal remedies under general maritime law for wrongful deaths that occur within territorial waters may be filed for both maritime and non-maritime workers, e.g., cruise passengers, crew members, and oilfield workers. General maritime law may apply to a wrongful death claim under two circumstances:

1. The worker was a longshore worker who could have had a claim against a non-vessel third party tortfeasor; or
2. The worker or passenger aboard a ship or aircraft died within territorial waters.

In cases where the deceased is not a maritime worker, state law remedies may supplement general maritime law (Yamaha Motor Corp., v. Calhoun, 516 U.S. 199, 216 (1996).

Family members eligible to file a wrongful death claim under general maritime law include the deceased’s spouse and dependent children. Compensation available under general maritime law is more extensive than most other death benefits to be provided under any other legislation. Compensation could include any and all pecuniary and nonpecuniary losses as well as punitive damages. The deadline to file depends on the case and circumstances.

The Longshore and Harbor Workers’ Compensation Act

The Longshore and Harbor Workers’ Compensation Act (LHWCA) protects longshoremen, dock workers and harbor workers, among others, if one of them is injured. Congress extended these protections to contract workers on U.S. military bases via the Defense Base Act (DBA) and offshore workers via the Outer Continental Shelf Lands Act (OCSLA). If any one these workers dies from the injury sustained while working, benefits can be claimed by family members, particularly the deceased’s spouse and dependent children. The LHWCA also provides death benefits to the deceased’s grandparents, siblings, and/or grandchildren, if any of them were dependent on the maritime deceased worker.

Death benefits are provided through the Office of Worker Compensation Plans (OWCP), the Department of Labor division assigned to manage the LHWCA. Available compensation includes medical expenses, pension benefits and burial expenses up to $3,000. Spouses and dependents are also provided regular payments equal to the deceased’s average weekly wages (AWW). The OWCP will determine what the average was according to the deceased’s workers last 52 weeks of pay. The survivors’ benefits distribution formula for spouses and surviving children, based on the deceased’s AWW at the time of death include the following formulae:

• Widow/Widower only: 50% of AWW
• Widow/Widower and one child: 66 ⅔% of AWW
• Widow/Widower and children: 66 ⅔% of AWW
• One child: 50% of AWW
• Two or more children: 66 ⅔% of AWW.

Benefits end when the widow/widower remarries, at which time a lump sum compensation package covering two years’ worth of benefits will be provided. For children, siblings, and grandchildren, benefits end on their 18th birthday or extended through their 23rd birthday so long as they are enrolled in an accredited academic institution.

Death benefits claims must be filed with the OWCP within one year of the deceased worker’s death or else compensation will be forfeited.

Resourceful, Comprehensive Trial Lawyers for Maritime Wrongful Deaths

Being out at sea and/or working on harbors, offshore, or on the high seas is always laden with risk. When negligence or wrongful act are involved, the risks are exacerbated. If your loved one has died while working in the maritime industry either on the high seas, within territorial waters, or on docks and harbors, you should know your rights and should rely only on an experienced maritime lawyer to help you navigate the claim or lawsuit process. At Gilman & Bedigian, LCC, we are knowledgeable and experienced in these matters. We also have the resources and compassion to provide you with thorough investigation and analysis of the case and to determine what is rightfully owed to you and your family.

Contact Gilman & Bedigian trial attorneys online or call our law office at (800) 529-6162 for a free consultation. And remember: you do not pay us until we help you secure a successful claim or lawsuit in your favor.