Shelley Anderson, Jason’s widow, has not yet filed suit against Transocean, the owner of the rig, or BP, the owner of the well, in part because any compensation she might be awarded would be limited by maritime statutes — one of them 160 years old — that protect ship owners and limit damages in cases concerning death on the high seas.

“You don’t get the same remedy if you’re killed on water than if you’re killed on land,” said Ms. Anderson’s lawyer, Ernest H. Cannon.

A court can compensate Ms. Anderson for direct economic loss for a death that occurs on the high seas, like her husband’s estimated lifetime earnings, but not for the less tangible things like loss of care, comfort and companionship, as well as pain and suffering, that are a common part of suits concerning deaths on land.

Senator John D. Rockefeller IV, Democrat of West Virginia, introduced the Deepwater Horizon Survivors’ Fairness Act in January to address elements of the current laws that he called “antiquated and unfair.” The bill would amend the Shipowners Liability Act of 1851, the Death on the High Seas Act of 1920 and the Jones Act of 1920 to allow broader compensation for victims of the Deepwater Horizon blast.

“These widows and fatherless children should not lose financial support because of inequities in old and antiquated maritime laws,” Mr. Rockefeller said.

The bill, which will be considered by the Senate Commerce Committee on Wednesday, was narrowed in scope from a version that passed the House last year but was opposed by maritime business interests and stalled in the Senate.

Congress has looked at the question of death at sea in the past: a bill exempting air passengers who die over water from the Death on the High Seas Act was passed by Congress in 2000, after the loss of TWA Flight 800 off Long Island. Like the Deepwater Horizon bill, the air passengers bill was made retroactive so it could cover the 1996 accident.

The new Deepwater Horizon bill only affects the specific victims of the blast, and negotiators have agreed to drop a provision that was unpopular in certain precincts of the legal community. That provision would allow those claiming death and disability to sue in state court and avoid the enormous federal action that has consolidated most of the cases related to the spill.

Ms. Anderson said she did not want her case to be “lumped in” with “the guy who rents Sea-Doos on the beach in Florida” claiming lost tourism revenues.

To Mr. Cannon, the chance to appear before sympathetic jurors in state court would mean getting much more for his clients than dealing with a federal judge juggling thousands of other cases. “Who would not want these widows to get their day in court?” he asked.

With that provision gone and the likelihood of the remainder of the bill’s passage uncertain — and considering the delays involved in any large-scale litigation — many of those with death and disability claims are seeking to settle rather than to go to court. Six of the 11 death cases have been settled, either directly with the companies involved or through the $20 billion fund created by BP; those familiar with the terms have said that the payments have reached as much as $20 million apiece.

Many of the physical injury claims, too, are working their way through the fund. Tony Buzbee, a Houston lawyer, said he had reached settlements with the fund for two of his clients and would do so for more than a dozen others in the next week. Ultimately, all death and personal injury claims from the rig could total hundreds of millions of dollars.

Mr. Cannon said that even if he ultimately negotiated a settlement for Ms. Anderson, the Deepwater Horizon bill was important because it raised the range of what his client might receive.

The companies have approached the widows one by one, pledging to do right by them, Ms. Anderson said. But she said their efforts had seemed more like stalling than preparing an offer.

“Transocean people sat in my kitchen and said, ‘Don’t worry, Shelley — we will take care of you.’ ” But no offer has emerged, and Ms. Anderson said the wait for a final resolution of her losses was difficult for her and her children.

“I need the help now,” she said. “I don’t need it when they can drive themselves and have their own jobs and their own families.”

Transocean issued a statement that said, “From the first hours Transocean has focused on providing support for its employees and the families of those who were lost aboard the Deepwater Horizon, including continued full pay and benefits for eight months following the incident and professional counseling for those in need.”

BP declined to comment on the bill or the cases.

Courtney Kemp, whose husband, Wyatt Kemp, died on the rig, said she hoped Congress would pass the bill. “If any of them had had someone killed the way we did,” she said, “they would want the law changed.”


John Schwartz
New York Times
June 7, 2011