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MARITIME LAW DEATH DAMAGES FOR PREDEATH PAIN AND SUFFERING AFFIRMED BY COURT OF APPEALS

The Fifth Circuit Court of Appeals has rejected a maritime employer’s attempt to deny a deceased crewman’s family $400,000 in damages awarded for the crewman’s predeath pain and suffering. The maritime death case involved a truck mounted drilling rig on a barge in a Louisiana Bayou. The truck was not properly secured and toppled over crushing one crewman to death and injuring another.

Although the employer admitted negligence and unseaworthiness the employer made the argument that the crewman did not have conscious predeath pain and suffering after the drill rig fell and crushed him. The Court of Appeals rejected the employer’s argument finding ample circumstantial evidence that the seaman had moments of terror and freight as he attempted to escape from being crushed by the falling oil rig.  Eyewitness testimony showed that the crewman was aware of the danger and running for his life immediately prior to the impact, and photographs at the scene showed that his body was positioned in a defensive manner trying to protect himself. An expert pathologist also testified that the deceased crewman would have been conscious for several minutes after the impact.

The case, McBride v. Estis Well Service, 2017 WL 1321979, confirms the maritime law principle that a seaman’s predeath pain and suffering, terror, freight and fear of death are compensable damages even if only momentary in nature.

The employer also contested the award of future economic support for the deceased crewman’s minor daughter. The Court rejected the argument that the loss of support should be based solely upon the amount of child support the crewman had been paying his daughter.   The Court held there was no law limiting a child’s loss of support claim to a child support obligation. The Court noted that the deceased crewman was a devoted father who was committed to providing economic support to his child when he was able to so.

With respect to the surviving crewman’s claim for future medical care expenses and lost earnings, the Court also rejected the maritime employer’s arguments. The Court held that a seaman may receive a lump sum award of future medical expenses both under the maintenance and cure doctrine, and also under the Jones Act, provided there is no duplication. The Court further held that an injured seaman who proves negligence is entitled to future medical care expenses even after he has reached maximum medical improvement. The Appellate Court also found unpersuasive a surveillance film showing the surviving injured crewman actively crabbing. The treating physician testified that the crabbing activities were consistent with the injuries, but that the injuries prevented returning to work aboard drilling rigs. The Appellate Court and the District Court Judge rejected the employer’s arguments that the videotapes showed the injured crewman to have no lost future earnings.

This appeal appears to have put to final end the battle for the McBride’s family to recover fair compensation for their father’s wrongful death. In appeals such as these the issue is whether there is adequate evidence to support the District Court Judge’s findings. Given this standard Estis Well Services appellate arguments attempting to overturn the damage awards was not well founded. Interpreting the wording of the opinion, the District Court Judge who decided the case as well as the Court of Appeals Judges appeared unimpressed with Estis’ attack on the deceased crewman’s character. The Appellate Court’s ruling again affirms the basic rights of seaman’s families to recover compensation under the maritime law and Jones Act.

Although not directly addressed by this appeal, the important bond between a parent and a child is an important category of damages. Damages, for compensation to a minor child for care, nurture and guidance of the deceased parent cannot be measured by the size of the deceased parents paycheck.

In previous proceedings in this case a divided Fifth Circuit Court of Appeals ruled that a Jones Act seaman could not recover punitive damages in a Jones Act negligence or unseaworthiness case. The Supreme Court of the United States refused to accept review of the case.   The issue of the right to punitive damages in a Jones Act case or unseaworthiness case is now before the Ninth Circuit Court of Appeals and is awaiting decision. The Washington State Supreme Court has recently ruled that an Alaska Fisherman was entitled to bring a punitive damage claim for unseaworthiness against the vessel owner, See Tabingo v. American Seafoods 2017 WL 959551.