The shipping industry is an extensive and foundational mode of global transportation and resource distribution. The men and women who work aboard the U.S. fleet are routinely exposed to varying types of cargo, machinery, and unfortunately, a vast array of harmful materials such as asbestos. According to the NGO Shipbreaking Platform, asbestos can still be found in over 65 percent of vessels, including 50 percent of all new-builds despite it being a banned material in shipbuilding since July 2002. It is estimated that a commercial vessel may hold as much as 10 tons of asbestos-containing materials (ACMs) applied throughout the entirety of the vessel. Conversely, U.S. Navy vessels are estimated to contain as much as 900 tons of ACMs. (Asbestos, NGO Shipbreaking Platform, 2022). As such, the maritime sphere continues to be a thriving source of asbestos litigation.
When asbestos exposure is alleged, plaintiffs have the option to pursue one of two legal recourses: they may elect to avail themselves of the protections available via congressional maritime statutes such as the Jones Act or Death on the High Seas Act (DOHSA), or they may pursue a claim under general maritime common law. However, unlike wrongful death and survivor actions under traditional common law, general maritime law limits the types of damages available to plaintiffs in certain cases, which has made these damages claims a highly contested area of law.
Available damages in maritime cases differ depending on who the plaintiff is and how they bring their lawsuit. For example, DOHSA provides for extremely limited damages, allowing only specific individuals to recover pecuniary loss sustained personally by those individuals. Unlike most other wrongful death and survival statutes, DOHSA does not generally allow for recovery of any non-pecuniary damages. As preemption is an element of DOHSA, the act is usually the exclusive remedy available, and claims may not be brought under state law or general maritime law in conjunction with DOHSA.
However, DOHSA does not preempt the Jones Act and some courts have allowed claims to be brought under general maritime law for deaths and injuries on the high seas, where claims were also brought under the Jones Act. Furthermore, the court in Hays v. John Crane, Inc., stated that “The Court is unaware of any case that has held that DOHSA restricts the recoverable damages for an indivisible injury in a case where some of the exposure to asbestos-containing products occurred on the high seas and some occurred in territorial waters.” Hays v. John Crane, Inc., No. 09-81881, 2014 U.S. Dist. LEXIS 184953, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014).
In the 2024 case of Banks v. 3M Co., the plaintiffs initiated a survival cause of action on behalf of decedent William Henry Banks, against 26 named defendants in Los Angeles County Superior Court, alleging that the defendants were responsible for exposing Banks to asbestos and ultimately caused his death from malignant epithelial mesothelioma. Additionally, plaintiffs pursued a wrongful death suit seeking recovery for damages they suffered as a result of Banks’s death. Plaintiffs alleged that Banks was exposed to asbestos while working for the U.S. Navy as a machinist mate aboard several different Navy vessels, from 1961-1984. They brought claims for negligence and product liability, alleging that the defendants manufactured and distributed asbestos and asbestos-containing products. Plaintiffs sought “general damages”; “burial expenses”; “medical and related expenses”; “exemplary or punitive damages”; prejudgment interest; and costs; as well as alleging, “sustained pecuniary loss resulting from the loss of love, comfort, society, attention, services and support of decadent. Banks v. 3M Co., No. 2:22-cv-06892-JLS-E, 2024 U.S. Dist. LEXIS 48735, at *2 (C.D. Cal. Feb. 13, 2024).
Defendants removed the case and defendant Air & Liquid Systems Corp. moved to apply general maritime law. Plaintiffs conceded to the application of general maritime law to the case and defendants argued that plaintiffs’ damages claims regarding pain and suffering; loss of society; loss of future earnings; and punitive damages, must be dismissed as they are unavailable under general maritime law. The plaintiffs argued that the court could set aside the U.S. Supreme Court’s recent admiralty decision in The Dutra Group v. Batterton because this case was a product liability and negligence action brought against third-party defendants instead of decedent’s employer. They stated that damages limitations only applied to actions initiated under federal maritime statutes such as the Jones Act and DOHSA.
Unconvinced, the court cited the Supreme Court case Miles v. Apex Marine Corporation, which held that if the suit was brought on behalf of a Jones Act seaman, plaintiffs could not recover all common-law remedies, sidestepping the damages limitations of the Jones Act, simply because they elected to bring a common-law action for unseaworthiness. Miles v. Apex Marine Corp., 498 U.S. 19, 32-33 (1990). Therefore, the Banks court found the damages limitations of the Jones Act were relevant as Banks qualified as a Jones Act seaman. Furthermore, the court disagreed with plaintiffs’ argument that suing third-party defendants and not decedent’s employer, permitted the disregard of the remedial limitations of the Jones Act. The court found that the identity of the defendants was irrelevant, citing to Ninth Circuit precedent via Davis v. Bender Shipbuilding & Repair Company which stated that “there is nothing in Miles[‘s] reasoning to suggest that the decision turned upon the identity of the defendant. Indeed, not all of the defendants in Miles were Jones Act employers.” 27 F.3d 426, 430 (9th Cir. 1994).
Next, the court addressed the various claims for damages sought by the plaintiffs. Regarding plaintiffs’ claims for damages related to the pain and suffering decedent suffered before his death, the court looked to early Jones Act litigation in St. Louis, Iron Mountain, Southern Railway Co. v. Craft where the Supreme Court held that the Jones Act permits recovery for pain and suffering in a survival action. 237 U.S. 648, 658, 35 S. Ct. 704, 59 L. Ed. 1160 (1915). Thus, the Banks court denied defendants motion to dismiss the claim on behalf of damages for pain and suffering, stating that such damages conformed to the federal statutory scheme.
Moving next to plaintiffs’ claim for “loss of love, comfort, society, attention, services and support.” The court found that these types of damages were held by Miles to be specifically unavailable in wrongful death actions regarding Jones Act seamen; and as the plaintiffs are unable to show a historical tradition of awarding damages for loss of society, the Jones Act’s remedial limitations apply. Furthermore, the court cites to previous holdings including other Ninth Circuit cases specifically withholding these damages in product liability cases involving asbestos. See Elorreaga v. Rockwell Automation, Inc., 2022 U.S. Dist. LEXIS 121911, 2022 WL 2528600, at *5 (N.D. Cal. July 7, 2022). Thus, the court granted defendant’s motion for loss of society and loss of future earnings.
Finally, the court addressed the availability of punitive damages, finding that, once again, case law such as Batterton has already addressed this issue finding punitive damages unavailable under the Jones Act without a showing of a historical tradition of awarding said damages, or a compelling policy argument in favor of awarding the damages in a products liability action. As neither was present, the Banks court granted defendant’s motion barring punitive damages.
Banks provides a comprehensive examination of available damages in current maritime asbestos litigation regarding Jones Act seamen. As the number of asbestos claims in both common law and the maritime sphere continue to increase, damages jurisprudence is likely to undergo further review as plaintiffs attempt to supplement general maritime with more favorable elements of common law damages.
