In the US a shipowner may face emotional distress claims from third parties, passengers or crew who witness traumatic events that take place on or near an associated ship, Standard Club informs.
The test under most of the US case law is whether the claimant was in the ‘zone of danger’ when the incident happened. The US Court of Appeals in the Eleventh Circuit (which includes Florida) recently further defined the ‘zone of danger’ test.
Namely, the US Court of Appeals for the Eleventh Circuit ruled that a claimant must:
Sustain a physical impact as a result of a defendant’s negligent conduct, or [be] placed in immediate risk of physical harm by that conduct
… in order to bring a cognizable claim for bystander emotional distress.
In addition, the Eleventh Circuit ruling is consistent with the view of the Fifth Circuit (including Texas and Louisiana), which ruled that:
To award damages for observing a bad sight even one which involves a family member, would contravene the zone of danger test’s intent to compensate for physical dangers
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As a result, a crew may not claim compensation for emotional damages solely from witnessing the death of another without showing physical trauma or the fear of physical trauma from witnessing the event.
For Jones Act crewmembers, treatment for mental illness due to witnessing a traumatic event could be compensable according to the principle of maintenance and cure.
The established case law does not distinguish between physical and mental illness. However, the Jones Act employer’s obligation to pay for the treatment would only last until such time as a medical provider finds the crewmember is fit for duty or has reached maximum medical improvement
Standard Club explains.