LOSS OF SOCIETY AND CONSORTIUM IN MARITIME CASES:
A Guide of Current Legal Precedents
(Published June 1995)
For years U.S. courts have attempted to create uniformity in maritime law concerning recoverability of nonpecuniary damages such as loss of consortium and loss of society in tort litigation. Loss of society involves monetary compensation for losses of intimacy and companionship stemming from the familial relationship, while loss of consortium involves loss of the marital relationship. Although the courts have made some progress in clarifying when these damages are permitted in maritime actions, the issue is by no means resolved. Since awards for loss of consortium and loss of society can be quite significant, this article highlights the evolution of cases addressing the issue.
Historical Overview
Whether loss of society and consortium damages are recoverable turns on the status of the party (i.e. seaman, non-seaman, longshoreman, passenger); where the incident occurred; and whether there was an injury or death. Statutory maritime remedies are also a key factor, because certain statutory remedies bar non-pecuniary damages including loss of consortium and loss of society. For example, The Death on the High Seas Act ("DOHSA") limits damages in wrongful death suits to "pecuniary loss sustained by the persons for whose benefit the suit is brought." 46 App. U.S.C. § 762 (emphasis added). The courts have interpreted DOHSA to preclude recovery for either loss of society or consortium. See, eg, Mobil Oil v. Higginbotham, 436 US 618, 624, 1978 A.M.C. 1059, 1065 (1978), on remand 578 F.2d 565 (5th Cir. 1978), 2d reh'g denied, 439 US 884 (1978); Offshore Logistics, Inc. v. Tallentire, 477 US 207, 211, 1986 A.M.C. 2113, 2116 (1986). The Jones Act likewise bars recovery for non-economic damages such as loss of consortium and society.
A claim for unseaworthiness under the general maritime law, however, did historically permit recovery for loss of society or consortium. In Sea-Land Services v. Gaudet, 414 US 573 (1974),1973 A.M.C. 2572 (1973), reh'g denied, 415 US 986 (1974), the US Supreme Court considered whether a longshoreman's widow could state a claim for loss of society in a wrongful death action brought under general maritime law. The court noted the claim did not involve a seaman, so the Jones Act was inapplicable; nor was DOHSA applicable because the death occurred within territorial waters. The Supreme Court therefore held plaintiff was entitled to loss of society damages. The Supreme Court subsequently broadened its ruling to include non-death cases in American Export Lines. Inc. v. Alvez, 446 U. S.274 (1980), where it held the spouse of a harbor worker who was injured aboard a ship in territorial waters could recover loss of society damages. Gaudet and Alvez therefore allowed loss of society and consortium recovery in cases of either injury or death. However, since Gaudet did not strictly limit its holding to longshoremen injured in territorial waters, courts were soon asked to extend Gaudet's ruling to maritime actions brought under the Jones Act claims and DOHSA.
In Higginbotham, the Supreme Court expressly limited Gaudet to territorial waters and refused to allow a DOHSA claimant to supplement his remedies with a loss of society claim. The Supreme Court further clarified the extent of recoverability of loss of society and consortium damages in the landmark case of Miles v. Apex Marine Corp., 498 US 19,1991 A.M.C. 1 (1990). In Miles, a seaman was killed by a fellow seaman while their vessel was at a US port. The deceased seaman's mother brought suit on her own behalf and as representative of the estate for Jones Act negligence and unseaworthiness under general maritime law. A unanimous court denied the loss of society claim, holding that although a cause of action could be stated under general maritime law for unseaworthiness, the concurrently plead statutory remedy did not allow recovery of such nonpecuniary loss. The Miles court therefore concluded that an action based on the wrongful death of a seaman was limited to pecuniary loss whether brought under DOHSA, the Jones Act general maritime law. Miles, 498 US at 2934,1991 A.M. Cat 7-12. The effect of Miles was to specifically limit Gaudet to its facts, making non-pecuniary damages recoverable only in cases of non-seaman injured in territorial waters. Following Miles' strict interpretation of Gaudet, damages for loss of consortium were held not available in a claim by a platform worker, regarded as a longshoreman, who was injured in a helicopter crash some 80 miles from shore. Nichols v. Petrol Helicopters, 17 F.3d 119,1994 US App. LEXIS 5644, 1994 A.M.C. 1710 (5th Cir. 1994), rel denied, 1994 US App. LEXIS 16246 (5th Cir. 1994).
Subsequent cases followed Miles. In Michel v. Total Transportation, Inc., 957 F.2d 186 (5th Cir. 1992), the United States Court of Appeal for the Fifth Circuit held loss of consortium was not recoverable by the spouse of an injured Jones Act seaman. In Murray v. Anthony J. Bertucci Const. Co., 958 F.2d 127, 130-31, 1992 A.M.C. 2028, 2033-34 (5th Cir. 1992), the court held children of an injured seaman had no right to recover loss of society damages.
Recent Trends
Miles sought to put to rest the question of recoverability of non-pecuniary damages, but questions remained. Although it was clear post-Miles that non-pecuniary losses were not recoverable where maritime statutory remedies applied, what about cases for which those remedies were inapplicable, such as passenger claims? Are the spouse or dependents of a passenger entitled to loss of society or loss of consortium damages? There is a recent trend in some circuits to broadly apply the Miles restriction to such claims, but not all circuits have been willing to extend Miles. The following is a brief sampling of the various recent holdings of selected circuits.
The Ninth Circuit in Earles v. US, 26 F.3d903, 1994 A.M.C. 2007 (9th Cir. 1994), held that loss of society damages were available to parents of deceased pleasure boaters killed in territorial waters. Contrary to the Second, Fifth and Sixth Circuits, the Ninth Circuit stated Miles' restriction on recovery for non-pecuniary losses did not apply to cases not filed under DOHSA or the Jones Act. The court held Miles was inapplicable to death claims by persons in pleasure boats in territorial waters, whose damages remain allowable under Gaudet.
More recently, however, in a case which plaintiffs appealed to the US Supreme Court and certiorari was denied, the Ninth Circuit held loss of society and consortium were not available. Chan v. Society Expeditions Inc., 1994 US App. LEXIS 19090, 1994 A.M.C. 2642 (9th Cir. 1994) amended, reh'g en banc denied, 39 F.3d 1398, cert. denied, 131 L.Ed.2d 196(1994). In Chan, a shore employee of a cruise line was injured while on vacation as a passenger on his employer's cruise ship. The suit by his spouse and dependents included claims for loss of society and loss of consortium. The Chan court concluded the injured party was not a seaman and hence the Jones Act was not applicable, nor was there a fatal injury, so DOHSA did not control. Moreover, because he was not a longshoreman, Gaudet did not apply. The court therefore looked to general maritime case law to determine the applicable remedy for a case falling outside statutory maritime law.
The Chan court reasoned there was no sense in allowing damages for loss of consortium for an injured passenger when the same damages are not available if the passenger dies, for "to do so would effectively award a tortfeasor for killing rather than injuring victims." Id. at 2654 (emphasis added). The court further noted that allowing such damages would essentially create a new class of persons entitled to recovery, thus allowing passengers injured outside territorial waters to recover, but denying such recovery to passengers killed and seaman both injured and killed outside territorial waters. Citing the importance of uniformity in maritime remedies, and noting that Gaudet (which allowed recovery of loss of society and consortium) did not apply to injuries outside territorial waters, the Chan court denied plaintiffs' non-pecuniary damages.
Similarly, in Ludahl v. Seaview Boat Yard, 869 F.Supp.825, 1995 A.M.C. 440 (W.D. Wash. 1994), the estate of a seaman who died when his fishing vessel sank could not recover for non-pecuniary loss even in a suit against a repair yard rather than his employer, as it was barred by Miles, which overruled Ninth Circuit cases allowing such recovery. See also Choat v. Kawasaki Motors, 1994 A.M.C. 2626 (Ala. S.Ct. 1994), where the court held that Milles governed and barred recovery for loss of society in the case of a person killed while relaxing on an inflated float in territorial navigable waters when struck by a jet ski.
The Fifth Circuit has also concluded that personal injury claimants have no general maritime law claims against a non-employer defendant for loss of consortium or society. Earhart v. Chevron, 852 F.Supp. 515,1994 A.M.C. 762 (E.D. La. 1993). In Earhart, plaintiffs alleged a claim for loss of consortium when their fishing vessel struck an underwater object in a bay. The court noted that Fifth Circuit case law held that such non-pecuniary damages are not recoverable in an action against a non-employer defendant and dismissed plaintiff's claims.
Some courts have elected to read Miles more narrowly, reasoning that if Miles did not preclude recovery for loss of society under general maritime law where no statutory remedy applied, then such damages are recoverable to the same extent as prior to Miles. For example, in Emery v. The Rock Island Boatworks. Inc., 847 F.Supp. 114, 1994 A.M.C. 2329 (C.D. I11.1994),the court held a spouse of an injured passenger could claim loss of society or consortium damages since no statute, including the Jones Act or DOHSA, applied to limit such damages. The Emery court noted that the Miles decision was reached in part because statutory law overlapped general maritime law in that case. The court noted that in both Miles and Higginbotham, the Supreme Court did not define the available remedies when statutory law did not overlap maritime law. The Emery court questioned whether it was required to adopt the limits of statutory remedies to situations when the statute was not intended to apply. It answered "no" and found plaintiff could state a cause of action for loss of consortium damages. Although no one knew whether plaintiff's injury occurred in territorial or non-territorial waters, the court ignored that distinction in making its ruling.
Similarly, a Washington federal district court refused to apply the Miles' limitation and allowed loss of society damages in a wrongful death action brought under general maritime law by a seaman's family against a shipyard who was not the seaman's employer. Sugden v. Puget Sound Tug & Barge Co., 796 F.Supp.455, 1993 A.M.C. 347 (WD Wash. 1992). The Sugden court noted that Miles' primary focus was the need for uniformity in seaman wrongful death cases. The Sugden court held that the uniformity concerns addressed in Miles did not apply where statutory law was inapplicable and therefore applied the Gaudet rule allowing recovery. The court stated that although general maritime law cannot supply more expansive damages in cases where either DOHSA or the Jones Act applied (citing Miles and Higginbotham), neither statute limited recovery in actions under common law.
For other cases declining to follow Miles, see Cleveland Tankers. Lim. Proces., 843 F.Supp. 1157, 1994 A.M.C. 2538 (E.D. Mich. 1994) (non-pecuniary losses recoverable by a Jones Act seaman suing a non-employer); Randall v. Chevron. U.S.A., Inc., Inc., 13 F.3d 888, 1994 A.M.C. 1217 (5th Cir. 1994) corrected, reh'g en banc denied, 22 F.3d 568 (1994), cert. dismissed, l 29 L.Ed. 2d906, 1994 US LEXIS 5124 (1994) (loss of society damages allowed for children of fatally injured longshoreman in territorial waters); In re Morehead Marine, 844 F.Supp. 1193, 1994 A.M.C. 1961 (S.D. Ohio 1994) (recovery permitted for loss of society in the case of a death of a pleasure boater in a collision); Schumacher v. Cooper, 850 F.Supp. 438, 1994 A.M.C.2554 (D. S.C. 1994) (non-pecuniary losses recoverable by swimmer struck by pleasure boat); Powers v. Bavliner, 855 F.Supp.199, 1995 A.M.C. 449 (WD Mich. 1994) (personal representatives of deceased recreational boaters may recover loss of society damages); In re Nobles. Lim. Proc., 842 F.Supp. 1430,1994 A.M.C. 51 (N.D. Fla. 1994) (parents of son killed in pleasure boat accident entitled to recover for loss of society if financial dependence established).
While Miles purported to enunciate the law concerning recovery of non-pecuniary loss generally, the court did not, or could not, go far enough. As maritime law continues to evolve the Supreme Court may ultimately be forced to extend Miles in order to provide much needed uniformity. Meanwhile, depending on where a claim is brought, the status of the claimant, and the site of an injury, non-pecuniary losses may, or may not, still be available.
