By Katie Beth Ryan
New London -- In recent weeks, Colby-Sawyer College President Thomas Galligan has found his maritime law expertise in high demand on Capitol Hill.
In the wake of the BP oil spill in the Gulf of Mexico, the deaths of 11 workers aboard the Deepwater Horizon drilling rig has brought a renewed focus on the financial settlements to which the victims' surviving family members are entitled.
Under what is known as the Death on the High Seas Act, they can sue for negligence on the part of the company and loss of economic support. But while the survivors of victims of land-based disasters can pursue damages for "loss of society," the loved ones of those killed in maritime disasters cannot.
"Exactly what is loss of society? It's the loss of the care, comfort and companionship of the loved one," Galligan said. Part of the problem, he said, is that the Death on the High Seas Act was passed 90 years ago, and has been amended only once.
Galligan first testified before the House Judiciary Committee on May 27, and returned to Washington on June 8 for a Senate Judiciary Committee hearing exploring the relationship between the compensation survivors can receive under the law, and the risks offshore companies may take.
Sen. Patrick Leahy, D-Vt., chairman of the committee, introduced legislation shortly afterward that would amend the law to allow survivors to sue for the emotional loss of their loved ones.
Galligan, who previously served as dean of the University of Tennessee College of Law and a professor at the Paul M. Hebert Law Center at Louisiana State University, returned to Washington for a third time last week to give testimony before the Senate Committee on Commerce, Science and Technology.
Before departing for Washington a third time, Galligan spoke with the Valley News about the flaws in maritime law that make it difficult for survivors to pursue claims, as well as the ways he incorporates his expertise into the classes he teachers at Colby- Sawyer.
Following is an edited transcript of the interview:
Valley News: What do you think you've lent to the discussion about the ramifications of the Gulf oil disaster?
Thomas Galligan: I hope what I've lent, or what I've tried to lend, is a legal scholar's view of the current state of the law in terms of the recovery, primarily for the survivors of the people who have died or people who have been injured.
VN: Speaking of them, what legal recourse do the families of maritime victims currently have when their loved ones die?
TG: If they worked on a moveable rig, which is treated as a vessel, and they're killed on the high seas, then if they're seamen, they can sue for negligence under the Jones Act, or they can sue under the Death on the High Seas Act. Or if they're not seamen, if they're workers, they can sue under the Death on the High Seas Act. Both of those statutes were passed in 1920, which really was a much, much different era, and neither of those laws, as interpreted, allows the surviving family members of someone killed to recover any thing for the loss of society. ...
VN: Now, those family members of victims whose loved ones die on land, they are able to sue for that. Is that correct?
TG: It is correct. It gets very complicated, because of the interaction of land-based workers compensation laws, which you usually can't sue the employer, but you can sue third parties, at fault. At sea, if you're a seaman, you can sue the employer, but whoever you sue, you do not recover for that loss of care, comfort and companionship.
VN: Why do you think there's that distinction between the land and the sea?
TG: I think the reason for the distinction is large part historical. The Jones Act and the Death on the High Seas Act were passed a long, long time ago, 90 years ago, and at the time, the world really was a much different place. The workplace was much more dangerous. ... Death in industry and the workplace was a much more common phenomenon than it is now, and the focus on the law was on compensating survivors for their purely economic loss. What's happened on land is, the law has evolved to where most American jurisdictions today, in wrongful death cases, do recognize some recovery for loss of society, but on the sea, the law really hasn't evolved.
There's one exception, under the Death on the High Seas Act. In 2000, after the Korean Airlines and TWA flight disasters, Congress amended the Death on the High Seas Act. If a plane crashes on the high seas, the Death on the High Seas Act applies. It amended it to say that the survivors of people killed in commercial aviation disasters can recover for loss of society. But it didn't change it for anybody else, so people on cruise ships, people on rigs, people on helicopters still receive the limited recovery, instead of the more modern recovery that's available in commercial aviation disasters.
VN: With that in mind, do you think it's safe to say that results in a lessened liability for the owners of these rigs and the oil companies?
TG: Yeah, inevitably. And for any other vessel owners ... they don't have to pay that loss of society.
Another way to think of loss of society is to think of it as the inherent value of the relationship. In other words, is there a value in the relationship? For the spouse who loses a wife or a husband on the high seas, they're going to recover for loss of support, they're going to recover for loss of service, like cooking or cutting the lawn or trimming the trees, if the person did those things. But they're going to recover nothing for the inherent value in the relationship.
So the law now on the high seas says that relationship is worthless. A parent who's not financially dependent on a child, if that child is killed on the high seas, recovers nothing. And I think we feel, at least I do, that the relationship has some value, but most modern law recognizes it, and it would be ... I think, more just, more consistent and more modern if the law on the high seas recognized that loss as well.
VN: Do you think there are going to be any great changes resulting from this oil disaster, from a legal standpoint, with the way families are treated?
TG: I don't know, but I hope so. I think that we can tend to inevitably respond to a crisis or a disaster, and I think that's what Congress did in 2000. ... Now the same issue presents itself in a slightly different maritime context, and I would hope that Congress will comprehensively look at the issue and fix it so that what's available for commercial aviation cases is available in maritime cases as well.
VN: You teach some classes at Colby-Sawyer. What did you teach this past year?
TG: This past year, in the fall, I taught a government course on the Constitution, which is really a constitutional law class, primarily for undergraduate students, since we're totally undergraduate. And in the spring, I taught a philosophy of law class. I've also taught business law and U.S. history here.
I absolutely love to teach. I got into higher education in the first place because I thought I wanted to teach, and I fell in love with it, and I have never looked back. So even in my position as president, I selfishly want to be in that classroom. ...
VN: Do you find that your research and your work in maritime law comes up in the classes you've taught?
TG: It comes up tangentially. It comes up a bit in constitutional law. It certainly came up in business law, because we talked about torts and my research and teaching interest in maritime law.
My focus is basically maritime tort law. What you and I just talked about, about risk and under-compensation and under- deterrence came up in philosophy law, when we talked about economic analysis of law, and certainly corrective justice notions of "Why do we compensate people for their loss, philosophically?" came up in philosophy of law.
In addition to my Colby-Sawyer teaching, I still manage to do a little bit of writing on maritime law and I give at least a couple of talks every year on maritime law and what's been happening in the past year.