Mother Jones just published what I think is a stupid article - so I wrote an essay about it.
A Carnival ship docked in New Orleans can still sail around the oil spill - but for how long?
Cruise Lines' Doing BP's Dirty Work?
By paul motter Two obscure maritime laws have come under scrutiny since the BP Oil Rig disaster. First is the Death on the High Seas Act (DOHSA), second is the Jones Act. Both laws were enacted in 1920, during the presidency of Woodrow Wilson.
The Death on the High Seas Act limits the liability of a "carrier" operating in international waters (whether it is a ship, jet or oil rig) in the case of death due to negligence. It says the deceased worker's dependents are entitled to compensation equal to what he would have earned over his lifetime in the same job.
DOHSA critics say this is unfair, that if a person dies "in the line of duty" the family should be entitled to pain and suffering, alienation of affection and punitive damages.
Now, if a soldier or a policeman is killed in the line of duty his family is not entitled to sue the government for anything. Why? Because the people knew the dangers when they took the job and the amount of family compensation is pre-determined by law. Without these limits these jobs could not exist.
However, it is extremely important that we warn you, as cruise ship passengers, that the Death on the High Seas Act also applies to you. Should you be killed while cruising on a cruise ship, by some highly extraordinary set of circumstances, the amount for which your family can sue the cruise line has the same limitations. This is yet another reason to recommend travel insurance to cruisers for anywhere from one to twenty million dollars in the case of accidental death.
The Jones Act is a law that I never expected to see in national headlines. It limits the right to conduct business in U.S. territorial waters to vessels that were built in the U.S., are currently flagged in the U.S. and only employ legal United States residents as crewmembers.
Cruise ships from Carnival, Royal Caribbean and other major cruise lines are not U.S.-flagged and so they are limited by the Jones Act.
Many people are now calling on President Obama to suspend the Jones Act so non-U.S.-flagged ships can work in our territorial waters cleaning up the oil spill. President Bush suspended it within two weeks of the Katrina Hurricane crisis, for example. But Obama has yet to give clearance to some 20 foreign nations who are ready to assist in the cleanup.
Apparently, the Dutch have ships with vacuum technology that could clean up the oil spill about five times faster than any U.S.-flagged technology. To be clear, most are not volunteering their efforts, they expect to be paid.
But here is one context Mother Jones and many other pundits have missed; Repealing the Jones Act now would have an immediate benefit to the oil spill cleanup. But for the DOHSA; ex post facto law (the application of a new law to an instance that occurred before the law was changed) is expressly forbidden by Article One of the Constitution. Therefore, repealing the DOHSA wouldn't help the BP widows in any way.
Very well stated. It strikes me that anyone who thinks that the cruise lines are somehow doing the "dirty work" certainly has such a tunnel vision of what they believe, that they are completely unwilling to look at the big picture and see things for what they truly are. Sadly, there are also a few that have such a hatred of the cruise industry, that they will take just about any opportunity to create some conspiracy theory, that the particular industry is behind something that they aren't.
My thoughts go out to those families that lost loved ones in the BP disaster. No one can say it was anything but tragic. Someone saying that the cruise lines are doing something backhanded, truly is an insult to those who lost their lives.
Last edited by Warren; June 14th, 2010 at 05:27 PM.
In the same sense I believe that the trial lawyers who are the ones behind spreading this nonsense about the cruise industry are the same people who go to (so-called) CRUISE victims and tell them "this is all the cruise lines' fault" whenever there is a suicide (as the vast majority of missing persons are) at sea.
A lawyer who goes to the parents of a child who has jumped overboard and says "if the cruise ship had been watching more closely, and hadn't been serving alcohol, and had more security guards your child would still be alive" is exploiting the emotions of those parents, stirring up anger and angst, for their own financial gain. It's a travesty.
The main person spreading this nonsense about the cruise lines is a well-known (anti)-cruise lawyer who would love to see DOHSA repealed just so he could sue more cruise lines more easily.
Those who despise the cruise industry - and I'll make the safe assumption that includes those on the Mother Earth News staff - take great pleasure in tying the cruise industry to as many disasters and tragedies as possible. Before this is over I will not be surprised if the cruise lines are named as co-defendants in the coming wave of lawsuits against BP. No doubt the anti-cruise crowd is feverishly trying to learn which cruise lines have bulk fuel contracts with BP.
I don't think an oil rig should be included in the DOHSA definition, but it is so that is moot. It is ridiculous that so many people are more caught up in bellicose rhetoric, who should be sued, who to boycott, etc., than they are in dispensing with the red tape and getting the necessary assistance to the scene. Those Dutch ships should have been in the Gulf weeks ago. Instead we get bureaucrats running around pointing fingers and making threats, and left wing news outlets espousing conspiracies and collusion between BP and the cruise industry. How dare the cruise industry lobbyists look out for those who hired them.
Ex Post Facto rulings can be surprising. In a case argued before the Supreme Court this past February, the justices are considering an appeal where the Seventh Circuit Court rejected the Ex Post Facto argument. The Seventh held that the Ex Post Facto Clause didn't apply as long as “at least one of the acts” “required for punishment” takes place after the statute went into effect. Thus, if BP were to be charged with doing something wrong under a revised DOHSA, there is some precedence (at least until SCOTUS rules) where a legal challenge could be made that prior acts were actionable since they were linked to the acts that took place after the new law was in effect.
I should have looked further before posting the above. The Supreme Court ruled last week and side-stepped the Ex Post Facto argument. The case I cited had to do with a criminal prosecution and the court simply decided other factors would lead them to overturn the circuit court ruling. So - more muddy waters.
Last edited by Dave Beers; June 14th, 2010 at 06:00 PM.
Reason: updated info
I know the person you are referring to, and have since blocked him on Twitter so that I don't see his regularly scheduled, tunnel visioned, negativity regarding the cruise industry. I am aware that there are issues with ANY vacation, not just cruises, but if I actually believed his constant ramblings, my god, I would be afraid to leave my house, let alone go on a cruise!
I know several lawyers, a few who are very good friends and a few that are clients of mine. They are amazing people. I think the "ambulance chasing" by some gives them a bad name certainly. As you say, those that are trying only to build a repuation and financial gain are the ones that are making a mockery of the profession.
As with ANY lawsuit, the only ones that truly win...are the lawyers.
Both DOHSA and the Jones Act need to be changed, to be up to date with today's world.
The problem is way too often actions by the government is reactionary, rather than with advance thoughtfullness and visionary foresight.
Attaching the cruise industry to the present situation with BP is ludicrous, and just an attempt to pull on the emotional reactions of people who just want "someone to pay" to cool their outrage.
If the DOHSA is changed the changes need to come with specific standards of rule and definitions.
Personally I am a big fan of regulartory bodies. But they need specificity, and efficiencies that for some strange reason are difficult to come by.... mostly as a result of people lobbying to protect their interests, and some lawyers who seek a niche they believe will be profitable for their business.
It makes finding regulators who are most aware and interested in the public good harder than capping an oil spill.
I was going to say the same as Kuki, that both acts need to be updated and brought into today's world. Much has changed since the 20's.
As for "protection, insurance, claims, lawsuits, etc." what ever happened to plain old responsibility for self?
It's interesting but there was a show on TV last Friday about Woodrow Wilson. Apparently he was a pretty radical activist. He was the prez responsible for the 17th amendment which changed how senators are elected.
Under the original constiution they were appointed by state senates (which would have made them much immediately accountable to the state they came from) - now they are just accountable to themselves because the voters rarely vote them out of office.
The tragedies for this BP situation are almost endless! I feel so badly for the wives and children left without their spouse or parent. And to have your loved one pass in such a tragic event. How does one recover from that nightmare?
Although no amount of money can replace a loved one, it sure will help the one left behind to raise the family alone.
Yes, the original intent was for U.S. senators to represent the states at the federal level, while the House was for the representatives of the people. The 17th amendment rolled in as a populist measure at a time when there was much radicalism across the globe. The fact is while Vietnam now has an official representative to the U.S. government, the governments of Alabama, etc., don't, at least in an official capacity.
Back to the point - I do think the Jones Act and DOHSA need to be updated. Frankly I believe the Jones Act and the Passenger Services Act (which is often confused with the Jones Act) should be repealed. It is laughable to think the U.S. will ever have it's own robust shipping industry.
I was surprised to learn that oil rigs are considered ships, but then learned that many are floating and not attached to anything, that they have a crew structure similar to ships, with 1st Mates, 2nd Mates, etc., and a Master - which in the case of Deepwater Horizon was called the Captain although the more common title of Offshore Installation Manager (OIM).
I am personally fine with the DOHSA act as it stands now.
A good example is the death of George Allen Smith, the famous Honeymoon cruiser who died in the Mediterranean.
Even the widow has finally comeout publicly and said his death was very most likely (it was never determined how he died) the man's own fault. There was no evidence of wrongdoing, he was alone when he went overboard.
Either he committed suicide or he decided to try to sit on the railing and he fell. He is known to have been extremely drunk that night - having smuggled booze onboard earlier in the cruise, including annisette, a liquir said to have hallucinogenic properties.
In any case - his widow settled for $1.1 million - which a court determined he would have earned for his wife's support during his lifetime.
Only dependents are entitled to compensation under the DOHSA, but I have no problem with that in cases where the death is accidental.
Now - if it can be proven that the cruise line was negligent in any person's death that is different. I would agree to some punitive damages in those cases, but in fact I highly doubt any cruise line these days would be responsible for any passengers death.
In the past, the truth is that the industry has been cavalier. There were workers on ships who felt like they were beyond the law being on a vessel far out at sea. This attitude was almost a shipboard tradition with certain people, like the old west.
Over the years the cruise lines have really wised up - you won't find that kind of attitude on ships anymore - there is too much at stake.
What I fear are those very people who are out to taint the cruise industry by bringing up the past ad nauseum and trying to convince people (future juries) that same attitude still prevails. It doesn't, but that doesn't fit into the livelihood of certain lawyers who want a green light to sue the cruise lines.
In fact - most workers who die receive NOTHING from the company they worked for. I do not have the statistics but I am hoping a policeman and a veteran will come in here and tell us what kind of compensation is given the family in the case of death.
I did some research, but I didn't want to put it in an article unless I was sure, but it looks to me like the family of a fallen police officer may get about $1100/month - of course it varies a lot by state.
Military people get something based on retirement pay, but it is taxed, etc. For lower positions it can be very little.
A $1,000,000 lump sum payment is enough to set your self up for life - modestly, but it can be done, assuming you are willing to invest the money and continue to work it. If you have a job for yourself $1,000,000 is a pretty nice windfall, not to sound crass about losing a loved one, but can you put a "price" on losing a loved one?
I mean people lose loved ones by other means than death all the time - people have accidents, they run away, become alcoholics, etc. There is always someone at fault but life doesn't generally come with guarantees.
In fact - most workers who die receive NOTHING from the company they worked for.
As you know, I retired from TVA after 26 years in their nuclear power division. As I recall, if I had died in the line of work the agency wouldn't have paid my estate anything other than cashing out my accrued vacation and sick days, plus any work hours up until I died. The only substantial benefits would have come from my federal life insurance policies (which I paid for), and a death benefit from the TVA Retirement System based on my contributions to my retirement account and my salary. The retirement system is separate from TVA. I think this is similar to most scenarios for police, fire, military.
I've been in the fire service here in Illinois for about 20 years now. If I die in the line of duty, the State pays an initial cash benefit of somewhere in the $200,000 range and then my widow gets 2/3 of my salary tax free until I would've retired, then she gets what my retirement benefit would be. There are some local organizations that also would pay a small cash benefit, and the State would also let my children attend a State College for free.
Majesty of the Seas - 10/03 & 02/07 & 11/08
Enchantment of the Seas - 10/04 & 10/11
Mariner of the Seas - 10/05
Vision of the Seas - 10/06 & 09/07
Carnival Liberty - 10/07
Adventure of the Seas - 9/08
Ruby Princess - 12/09
Voyager of the Seas - 9/10
Carnival Spirit - 11/10
Oasis of the Seas - 9/13
Speaking of colleges - Alabama also waives tuition to state colleges for the children of disabled or deceased veterans depending on various factors. It can range from a free ride for 4 years to 2 years of free tuition for those down to a 20% disability rating.
I have to agree, both these acts need some updating/changing to be more functional in today's world. They've had their time and place, but need to be looked at carefully. I'm also for anyway the oil spill can be cleaned up more effectively and as quick as possible...