Wrongful Death at Sea: Liability, Non-Pecuniary Damages, and Survivors’ Legal Remedies
Maritime law, already one of the most complex areas of American law, presents particular challenges in the context of a wrongful death at sea.
The 2011 U.S. District Court (Western District of Washington) case of Michael Mechling, et al. v. Holland America Line, Inc., et al. highlights two key factors in determining legal remedies for survivors of non-seafaring individuals who suffer fatal injuries at sea.
The first issue in contention, in this case, was whether the defendant, the Holland America cruise line, was liable for the negligence of an independent contractor whose actions caused an accidental death. Assuming liability was established, the second challenge facing the plaintiffs was whether the Death on the High Seas Act (DOHSA) applied to this case to limit their damages. DOHSA does not provide for damages related to the death of someone who was not employed at the time of death. To get around this limitation, the plaintiffs alleged that they were entitled to damages for the emotional distress Mr. Mechling suffered through witnessing to the accident and his wife’s resulting death.
This case illustrates the complexity of wrongful death at sea cases, drawing particular attention to the issues of liability and the Death on the High Seas Act as they relate to the rights of the surviving party.
Mechling v. Holland America: Factual Background
In [month year] Michael and Diana Mechling embarked on a fourteen-day Holland America cruise aboard the vessel, M/S RYNDAM. The itinerary included stops throughout the Caribbean and cruise-related excursions at several of the ports of call. Among the excursions, the Mechlings purchased from Holland America was a snorkeling trip in Belize City, Belize, operated by Cruise Solutions, a Belizean cruise excursion company.
On the day of their snorkeling outing, the Mechlings and other cruise passengers boarded the Reef Rocket, a boat manned and operated by Cruise Solutions employees and/or agents. As the day was windy, the Reef Rocket’s crew determined that their passengers should snorkel off the off the stern of the boat rather than nearer to land. Mrs. Mechling entered the water as instructed by the excursion guides, while Mr. Mechling waited on the rear dive platform to enter the water after his wife. The Reef Rocket’s engines were still engaged as Mrs. Mechling entered the water and at the very moment that Mrs. Mechling submerged herself, the captain of the Reef Rocket, responding to rough waters, put the engines into reverse in an attempt to steady the boat. Tragically, the sudden start of the engines caused the boat to lurch backward over Mrs. Mechling, sucking her underneath the Reef Rocket and directly into its propellers. The boat’s backward lurch also caused Mr. Mechling to lose his balance and nearly fall from the dive platform into the water toward the boat’s propellers.
The two excursion guides already in the water attempted to extricate Mrs. Mechling from under the boat, but they were unable to do so because her swimsuit was caught on one of the propellers. The guides were eventually able to free Mrs. Mechling from the propeller by using a knife to cut away her swimsuit. Mrs. Mechling was trapped beneath the boat for several minutes, sustaining severe injuries from the score of the propeller blades, including a fractured femur and a laceration so deep that the bone was exposed.
Once the crew managed to lift Mrs. Mechling back onto the boat, the Reef Rocket headed back to shore at high speed. Mrs. Mechling remained on the back dive platform, which was not designed to transport passengers at high speeds and had no guardrails. Mr. Mechling remained with his wife, cradling her head and body the entire trip back, to prevent her from falling into the water or bleeding to death. The Reef Rocket had no first aid kit on board.
When the boat arrived at the Belize City pier about 30 to 40 minutes later, paramedics immediately boarded the vessel and carried Mrs. Mechling in a stretcher to a local hospital. Mr. Mechling was forced to wait about twenty minutes at the pier but was then transported to the hospital to be with his wife. Upon his arrival at the hospital, doctors informed Mr. Mechling that his wife had died. The autopsy report eventually determined that Mrs. Mechling died from exsanguination, or bleeding to death, as a result of the propeller-inflicted lacerations.
Mr. Mechling was subsequently diagnosed with Post Traumatic Stress Disorder and has received ongoing counseling for the trauma and grief from having witnessed his wife’s traumatic death. His doctors reported that Mr. Mechling “has gone from initial shock to reliving the horror of his wife’s death to fears about the future to again focusing on his wife’s death . . . Mr. Mechling reported that he has relived the events of his wife’s death repeatedly. He still relives the details of her death and her injuries, stating, ‘I can’t get the images out of my mind.’”
Determining Liability against Both Holland America and Cruise Solutions
Mr. Mechling subsequently sued both Holland America and Cruise Solitions. In his complaint, Mr. Mechling alleged that the defendants had failed to inform the Mechlings of any hazards aboard the Reef Rocket on the day of the accident and that they owed a duty to warn their guests of the hazards posed by the unique circumstances of maritime travel, including those on the snorkeling excursion. The complaint also alleged that the companies owed a duty to the Mechlings to operate the cruise excursion in a safe and reasonable manner and that they knew and/or should have known that their failure to adequately warn passengers could lead to injuries or death.
A ship-owner owes a duty of “reasonable care under the circumstances” to its passengers. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959). “The degree of care required is always that which is reasonable, but the application of reasonable will of course change with the circumstances of each particular case.” In re: Catalina Cruises, Inc., 137 F.3d 1422, 1425 (9th Cir. 1998).
Various passengers aboard the Reef Rocket the day of Mrs. Mechling’s death stated that they were immediately aware of a lack of safety awareness on the part of the crew, and that the Reef Rocket was not designed to accommodate snorkeling, and characterized the trip as “a disaster” as no one knew what to do or how to do it. In his lawsuit, Mr. Mechling alleged that Cruise Solutions failed to protect the passengers against maritime dangers, which included the dangerous conditions on the Reef Rocket and its inadequate safety measures. A Belizean Justice of the Peace eventually found the captain of the Reef Rocket guilty of “Negligently Causing Loss of Life.”
Though cruise ship owners cannot be held vicariously liable for the negligence of an independent contractor, they may be held liable for negligently hiring or retaining a particular contractor. See Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1318 (S.D. Fla. 2011). In Tikva Wolff v. Holland America Lines, Inc., Cause No. C09-0050 RAJ, Holland America admitted in a brief to the Court that the cruise line “does owe [to its cruise ship passengers] a duty of care in the selection of independent contractors allowed to provide off-ship excursions.” In Smolnikar, the district court identified the “salient inquiry” as being “whether [the cruise line] failed to ‘diligently inquire’ into [the excursion contractor]'s initial or ongoing suitability to operate a zip line excursion tour.” Smolnikar at 1320.
Because Cruise Solutions liability policy to cover claims on its excursion vessels was inadequate to remedy Mrs. Mechling’s wrongful death, Mr. Mechling’s attorneys took on the task of proving Holland America’s direct liability for the death. Counsel retained an expert witness to evaluate Holland America’s compliance with International Safety Management Code risk assessment principles. That expert witness’s report described Holland America as using an “all talk and no action” methodology in selecting the independent contractors it engages port-of-call excursions for its passengers, even though Holland America retains a healthy percentage of the revenue generated by these side trips. Despite exhaustive discovery efforts on the part of Mr. Mechling’s counsel, Holland America failed to produce any evidence of even a single affirmative act it took to assess the potential risks of selling its passengers snorkeling excursions operated by Cruise Solutions. Rather, the evidence indicated that Holland America failed to diligently inquire into Cruise Solution’s suitability to operate a snorkeling tour where passengers would be dropped into the water from the stern of the Reef Rocket.
Negligent Infliction of Emotional Distress and the “Zone of Danger” Test
The plaintiffs were additionally able to demonstrate that defendants’ negligence caused Mr. Mechling to suffer severe emotional distress. Maritime law applies a “zone of danger” test to negligent infliction of emotional distress claims. See Conrail v. Gottshall, 512 U.S. 532, 547 (U.S. 1994). The “zone of danger” has been defined as the area encircling a negligently caused accident, with the accident forming the nucleus of the zone. Corgan v. Muehling, 143 Ill. 2d 296, 306 (Ill. 1991). A person is within an accident's zone of danger when he is sufficiently close to that accident such that he is subjected to a high risk of physical impact emanating from the accident itself. Id. Under the zone of danger test, recovery is allowed “for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.” (emphasis added) Gottshall at 547-548.
A physical impact is sustained by “any degree of physical impact, however slight.” Zelinksy v. Chimics, 196 Pa. Super. 312, 175 A.2d 351, 354 (1961). Even if a plaintiff is not at risk of physical harm at the exact instant as the primary victim, rescue attempts that place the plaintiff at risk of physical harm in the aftermath of an accident are sufficient to support a claim for negligent infliction of emotional distress. Wallace v. Parks Corp., 212 A.D.2d 132, 142 (N.Y. App. Div. 4th Dep’t 1995). To recover on a maritime law negligent infliction of emotional distress claim, a plaintiff need not be injured or at risk of injury by the same mechanism that injured the primary victim; rather it is sufficient that the plaintiff is at risk of any injury emanating from the same accident. Tassinari v. Key West Tours, L.C., 480 F. Supp. 2d 1318, 1320 (S.D. Fla. 2007). Ultimately, the “zone of danger” test recognizes that "a near miss may be as frightening as a direct hit." Gottshall at 549.
The “zone of danger” test applied in this case because the defendants’ negligence took place at sea, with the moment and location in which Mrs. Mechling was sucked beneath the Reef Rocket creating the nucleus of the zone of danger. The rear dive platform of the Reef Rocket, its propellers, and the surrounding waters where the accident occurred simultaneously created the area encompassing the “zone of danger.” Mr. Mechling’s lawsuit alleged that he had suffered serious and lasting emotional distress from physical impact, as well as from having been placed in immediate risk of physical harm while in the “zone of danger” as a result of Defendants’ negligence, Mr. Mechling first experienced great emotional distress in the “zone of danger,” through physical impact, when he lost his balance on the Reef Rocket as it lurched from backing over Mrs. Mechling. Mr. Mechling was also in the “zone of danger” when he experienced the physical impacts of anxiety and fright from not being able to see his wife in the water while she was tied up in the Reef Rocket’s propellers and from cradling her for 30 to 40 minutes during the return trip to port while she lay dying on the rear dive platform.
DOHSA’s Impact on Damages
In response to the lawsuit, Holland America argued that the Death on the High Seas Act precluded Mr. Mechling from recovering anything other than pecuniary damages resulting from the death of his wife. DOHSA would normally prevent a plaintiff from collecting any damages for emotional pain and suffering, as the Ninth Circuit Court of Appeals has held that loss of society, grief, and pre-death pain and suffering damages are not available under DOHSA.
DOHSA provides a cause of action where the death of an individual is caused by wrongful act, neglect, or default occurring “on the high seas” which is defined as any waters more than three nautical miles from U.S. shores. 46 U.S.C. § 30302; Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986, 993 (9th Cir. Cal. 2011). The statute preempts state wrongful death causes of action as well as those under general maritime law, see Saavedra v. Korean Air Lines Co., 93 F.3d 547, 553‐554 (9th Cir. Cal. 1996), but does not preempt foreign causes of action for death by wrongful act or neglect and it allows such actions to be brought in U.S. Courts. 46 U.S.C. § 30306.
DOHSA limits recoverable damages in wrongful death suits to "pecuniary loss sustained by the persons for whose benefit the suit is brought." 46 U.S.C. § 30303. “This express limitation has been held to preclude recovery for nonpecuniary losses, such as loss of society or consortium, for deaths that occur on the high seas.” Chan v.
Society Expeditions, 39 F.3d 1398, 1407 (9th Cir. Wash. 1994) (citing Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624 (1977); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 211 (1986)). As one court stated “We are . . . compelled to hold that because DOHSA does not allow recovery for nonpecuniary damages, we cannot 'supplement' Congress' remedy, allowing a general maritime survival action for nonpecuniary damages, including the pre‐death pain and suffering claimed here. Saavedra v. Korean Air Lines Co., 93 F.3d 547, 553‐554 (9th Cir. Cal. 1996). “The Supreme Court, in holding that DOHSA cannot be supplemented by general maritime law in order to obtain loss of society damages, gave no indication that there was any material difference between loss of society damages and any other nonpecuniary damages, all of which DOHSA expressly disallows. Nor can we find any basis for such a distinction.” Saavedra v. Korean Air Lines Co., 93 F.3d 547, 553‐554 (9th Cir. Cal. 1996).
Though damages under DOHSA are limited to only pecuniary damages, the courts have interpreted pecuniary damages in different ways. “Recovery for loss of support has been universally recognized, and includes all the financial contributions that the decedent would have made to his dependents had he lived. Similarly, the overwhelming majority of state wrongful‐death acts and courts interpreting the Death on the High Seas Act have permitted recovery for the monetary value of services the decedent provided and would have continued to provide but for his or her wrongful death. Such services include, for example, the nurture, training, education, and guidance that a child would have received had not the parent been wrongfully killed. Services the decedent performed at home or for his spouse are also compensable.”1 SeaLand Servs. v. Gaudet, 414 U.S. 573, 584‐585 (1974). Loss of nurture (for minor children) is a pecuniary loss recoverable under DOHSA. Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 81 (9th Cir. Wash. 1983).
Though punitive damages are recoverable under general maritime law, they are not available under DOHSA. See Churchill v. F/V Fjord, 892 F.2d 763, 772 (9th Cir. 1988).Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623 (1978); Nygaard v. Peter Pan Seafoods, Inc., 701F.2d 77, 79 (9th Cir. 1983). Punitive damages are non‐pecuniary damages and thus not available under DOHSA. Bergen v. F/V St. Patrick, 816 F.2d 1345, 1347 (9th Cir. Alaska 1987).
While the parties were able to successfully mediate this case and reach a satisfactory settlement, this case illustrates some of the complexities in maritime passenger personal injury law, including problems plaintiffs face when confronted with DOHSA claims.
ABOUT THE AUTHOR: Charles Moure
Attorney Charles Moure has more than 20 years of experience working with companies and individuals to resolve disputes through arbitration, mediation, or litigation. He assists clients by planning and executing smart legal strategies, applying his broad experience, knowledge and skill in maritime law.
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