Generally speaking, United States courts have held that loss of society is not recoverable in maritime wrongful death actions. Despite this general trend, there currently remains one area of United States maritime law where loss of society damages can still be awarded; Death of a longshore or harbor worker in state territorial waters. It has long been unclear, however, whether financial dependency is required to claim those damages. The Fifth Circuit has removed any remaining uncertainty that dependency is required (at least in the states comprising the Fifth Circuit) in their recent decision In re American River Transportation Company v U.S. Maritime Servs., Inc., 2007 U.S. App. LEXIS 14464 (5th Cir. 2007).
In American River, the Fifth Circuit dispelled any doubt that financial dependency is a requirement for loss of society damages to survivors of a deceased longshoreman or harborworker killed in state territorial waters. Id. Although the facts of that case technically limit the ruling to non-dependent parents, the Court makes clear in its analysis that the “line between dependents and non-dependents, appears to be the most rational, efficient and fair” in determining a suitable class of beneficiaries. Id. at *28, citing Miles v Melrose, 882 F.2d 976, 988-89 (5th Cir. 1989), aff’d sub nom. on different grounds Miles v Apex Marine Corp., 498 U.S. 19 (1990).
In February 2003, Jacques Allemand (“Allemand”), a longshoreman employed by American River Transportation Co. (“ARTCO”), was killed in state territorial waters while he was attempting to save a co-worker who had fallen from the barge where they were working. Allemand was a work-release inmate performing barge-cleaner services on ARTCO’S Barge ART 529 on the Mississippi River when the incident occurred. Allemand had been incarcerated for five years immediately prior to his death and he had not provided any financial support to his parents, either before or during his incarceration. The Fifth Circuit affirmed the lower court’s holding that Allemand’s parents could not recover for loss of society, because they had not been financially dependent on their son.
This decision by the Fifth Circuit leaves at least one major unresolved issue in this area of loss of society damages. That issue is what level of financial dependence is required to claim loss of society damages. As the lower court had clearly found no financial support was provided in Allemand’s case, the Fifth Circuit was not required to address this issue. Other case law (as well as the overall tone of the opinion) suggests that substantial financial dependence may be required to claim this benefit. Unfortunately as this issue is unsettled, it will have to be addressed in future litigation.
The Fifth Circuit also strongly hints in their opinion that they are more than willing to consider whether loss of society damages to nonseaman should not be abolished altogether. In footnote 27, the court notes “it would be inconsistent . . . for the survivors of nonseaman to have a greater right to recovery than the survivors of seaman.” Id. citing Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F. 3d 1084 (2d Cir. 1993). The Fifth Circuit is unable to reach this question in this case because the parties and the district court framed their question “more narrowly, asking only whether the non-dependent survivors of a deceased longshoreman or harborworker may recover for loss of society when the death occurs in state waters.” Id. Again, this question is left to be answered on another day.
In the end, the Fifth Circuit has taken a giant step forward in limiting, if not altogether abolishing, awards for loss of society damages to nonseaman on state territorial waters. By clarifying that financial dependence (on some level) is required for these awards, a significant amount of uncertainty has been removed. We must look to future cases to see how this element of damages is further defined going forward.
With thanks to David Walker and Rachel A. de Cordova of Royston Rayzor Vickery & Williams, Houston, for preparing this article.
