Trial Magazine

Last January when the current Congress was sworn in, at least one-third of the members of the House Transportation and Infrastructure Committee were freshmen. These new members had to learn transportation policy, and AAJ advocates also had to educate them on how civil justice issues intersect with transportation safety. As Rep. Peter DeFazio (D-Ore.) assumed the chair of one of the largest House committees responsible for all aspects of transportation policy, there was an immediate need for congressional oversight in the wake of the Boeing 737 Max crashes. A year later, we’re seeing progress on a variety of transportation priorities that affect AAJ members.

Maritime safety. In November, for the first time in about a decade, the Transportation Committee’s Coast Guard and Maritime Subcommittee held a hearing on commercial and passenger vessel safety. Paul Sterbcow, a former chair of AAJ’s Admiralty Law Section, testified about maritime laws that desperately need updating, including the Limitation of Liability Act (LOLA). This statute, dating back to 1851, allows vessel owners to reduce their liability to the current value of their vessel—which may be zero for vessels now sitting at the bottom of an ocean or lake.

LOLA was enacted to protect U.S. maritime interests at a time when vessel owners could not communicate with their ships, but modern technology allows owners to be in constant contact with their vessels and actively monitor for hazards. Nevertheless, the owners of the Conception—a diving boat that burned off the California coast in September, killing all 33 passengers on board—are attempting to use LOLA to limit their liability.

Sterbcow also testified about updating the Death on the High Seas Act (DOHSA), enacted in 1920 to provide pecuniary damages for seafarers who die on the high seas due to vessel owners’ negligence. The statute assumed that only young men would be on the high seas and did not anticipate that others would die as a result of airplane crashes into the ocean, cruise vessels sinking, and other tragedies involving passengers.

In 1996, after TWA Flight 800 crashed in the Atlantic Ocean, Congress amended DOHSA to establish a commercial aviation exception. In his testimony, Sterbcow advocated for broader nonpecuniary damages for those who lose loved ones on the high seas, including damages for pre-death pain and suffering. Finally, Sterbcow called for eliminating forced arbitration clauses in the contracts that passengers must sign before embarking on recreational trips and that crew members must sign to work on cruise ships.

There were five witnesses from the private sector at the hearing. A representative from the cruise lines’ trade association, Cruise Lines International Association, testified about steps the cruise line industry is taking to report crimes and missing people on voyages and to make ships safer for the public. However, it was clear that Chairman DeFazio and other subcommittee members had ongoing concerns about the safety operations of these floating cities, which cater to U.S. passengers and sail in and out of U.S. ports but have foreign flags to avoid complying with U.S. law.

A look ahead. Several members of Congress are considering introducing legislation to address the maritime civil justice issues raised at the hearing. Meanwhile, AAJ also is looking beyond maritime issues and fighting the use of forced arbitration in several transportation contexts—for example, Amtrak is forcing injured passengers into arbitration, even though federal law caps Amtrak’s damages.

Do you have a compelling transportation case you’d like to share with a member of Congress? Please contact me (susan.steinman@justice.org) or Bonnie Johnston (bonnie.johnston@justice.org) with details.

Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.