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Dr. Fozdar is the primary neuropsychiatrist with Triangle Forensic Neuropsychiatry, PLLC, Raleigh, NC; Consulting Assistant Professor of Psychiatry, Duke University Medical Center, Durham, NC; and Adjunct Associate Professor of Psychiatry, Campbell University Osteopathic School of Medicine, Lillington, NC.
The comments by two greats of science capture the essence of this editorial. The first quotation calls for scientific curiosity and inclusion. The second professes healthy skepticism and humility. The exponential growth of neuroscience discoveries fueled primarily by rapid advances in technology has lifted the veil on many hitherto poorly understood brain disorders. This knowledge applies to both organic brain disorders and, unfortunately misnamed, functional brain disorders. Collectively, we have failed to capitalize on this new knowledge at several levels as practitioners of forensic psychiatry, and this is the paradox discussed herein.
We have failed to inform legal policy makers of these newly gained insights into brain disorders. By this failure, we are missing an opportunity to construct an evidence-based forensic practice. Eagleman and Flores3 argue this point eloquently by proposing a neurocompatibility index for developing modern criminal jurisprudence. Newer brain-imaging techniques, such as functional magnetic resonance imaging (fMRI), positron emission tomography (PET) scans, neuroreceptor mapping, and diffusion tensor imaging (DTI) have enhanced our understanding of the brain–behavior relationship. The field of cognitive neuropsychology has contributed significantly to this revolution by providing us an objective roadmap of cognitive networks.
Despite these advances, expert testimonies are increasingly disparate when presented with the same set of data in a particular case. This lack of cohesiveness leads to confusion and mistrust among the triers of fact. Contradictions must be eliminated by collaborative efforts of different disciplines. Doing so will undoubtedly result in evidence-based criminal and civil forensic practice by reducing the role of intuition and sociopolitical forces. We can integrate well-established scientific principles at different levels of the judicial process: trial proceedings, sentencing guidelines, parole hearings, future risk determination, disability guidelines, personal injury cases, competency hearings, and juvenile adjudication. On the other hand, the application of neuroscience to the law must not be so overzealous as to raise concerns about scientific reliability, misapplication, and overreliance on a developing science.
The following discussion is my earnest attempt to make a case for thoughtful incorporation of neurobiology into our forensic practice. I will discuss the areas of neuroscience where there is more chaos in this relationship than there is harmony.
Convicted murderer Edward Rulloff was executed in 1871. Scientists acquired his brain to study the neurobiological underpinnings of criminal behavior.4 More than a century later, a PET scan was allowed into evidence during the murder trial of Herbert Weinstein in New York City.5 Although the actual evidence was never heard in the court, because the trial ended in a plea bargain, much has been written about the trial in general and Judge Carruthers' decision to allow the defense to use the PET scan evidence in particular. It is important to note that the judge did not allow the defense to establish any causal relationship between the PET scan abnormality (frontal lobe hypometabolism) and the criminal act (first-degree murder).
There has been a steep increase in the number of legal proceedings where neuroimaging evidence is used since its historic introduction in the Weinstein case. Duke law professor Nita Farahany has been keeping count of cases where lawyers have introduced neuroscientific evidence since 2004. She has documented about 2,000 examples, 600 in 2011 alone. The number of publications involving law and neuroscience interaction has skyrocketed in the past decade (Fig. 1).
Reproduced with permission from The MacArthur Foundation Research Network on Law and Neuroscience, Law and Neuroscience Bibliography, available at http://www.lawneuro.org/.
The above statistics raise a few questions: Has neuroscience become so relevant to legal proceedings that it can inform the legal system in a meaningful way to resolve some of the most complex matters such as free will and determinism, the neural seat of morality, and prediction of future risk? Can neuroscientists say with reasonable certainty that the science they intend to sell to the legal community will help them in a more meaningful way than the traditional science involving behavioral and psychosocial research? Is the legal community ready and capable of integrating this modern neuroscience into their practice? Answers to these questions are as complex as the questions themselves.
Neuroimaging advances have helped to further our understanding of brain development through childhood and adolescent periods of life. These newly gained insights into developmental neuroscience played a crucial role in Roper v. Simmons6 and Graham v. Florida.7 Numerous amicus briefs were sent to the U.S. Supreme Court in both these cases. These briefs cited neuroscientific findings relevant to the legal question: are capital punishment and life in prison without parole (for nonhomicide offenses in the later case) cruel and unusual punishment for juveniles? The neuroscientific evidence here was quite relevant. Most important, it played a crucial and visible role. The neuroscientific evidence submitted was gathered from research on a large group of subjects and applied to a single particular case, in contrast to the use of an MRI or PET scan of an individual during his trial.
How far have we come since People v. Weinstein with the use of brain imaging (structural and functional) evidence to palpate the heartbeat of the trial: namely, whether the defendant knew right from wrong or was capable of conforming his actions according to the requirements of the law? The answer, unfortunately, is not very far. Whereas neuroimaging research has been central in revealing the deep-seated mysteries of the brain, these revelations have not shed much light on the areas of free will, morality, and behavioral responses to environmental stimuli. The activation of a brain region on functional imaging such as the PET scan does not mean that the activated brain region correlates with a specific behavior. A single area of the brain may be two or three different areas working simultaneously. In fact, one of the fascinating findings of modern neuroscience research has been the discovery that the brain is an organ that is operational through parallel circuitry in different regions and that these circuits are interconnected.
Despite this reality, this type of evidence is increasingly admitted into the court and used at trial.8 It is the responsibility of neuroscientists to separate the wheat from the chaff when testifying.9 They can play a vital role in making sure that overreduction of the neuroscientific evidence does not occur. More specifically, they should explain the limitations of applying group-based evidence to a single individual.
Admissibility of expert opinions is guided by rules of evidence, as we all know. However, it is my experience and that of many of my colleagues that neuroscientific testimony is often misrepresented or poorly analyzed. Well-trained and experienced neuroscientists serving as expert witnesses can provide to the court much-needed guidance and knowledge to wade through often murky waters of neuroscientific testimony given by less qualified or inexperienced witnesses. Nuanced testimony is often required to explain finer aspects of different brain imaging techniques to the judge and the jury. For example, it is essential for them to understand how the fMRI images are acquired and what they represent. More specifically, they need to know that fMRI images do not constitute a one-on-one correlation between a brain region and behavior, but are rather statistically determined images. A neuroscience expert then can explain that some correlation can be made between that region of the brain and the functional/behavioral paradigm that was used to measure the activity of that part of the brain.
Moriarty et al.10 cogently discussed the evidentiary reliability and causation when using PET scans as evidence. PET scans can be reliable to demonstrate actual brain damage, due to traumatic brain injury, hypoxic–ischemic damage, brain tumor, or congenital brain trauma, for example. However, using the same PET scan to offer a behavioral explanation for a particular criminal behavior could be too much of a stretch in many cases. Moriarty et al. call this “piling inference (e.g., the PET can reliably diagnose brain trauma) upon inference (i.e., brain trauma is the cause of legally relevant behaviors) (Ref. 10, p 710).” Evidence contained in an abnormal PET scan must be offered in conjunction with a detailed neurological and neuropsychological examination documenting the neurological and neurocognitive abnormalities. When available, an abnormal structural brain imaging scan (computed tomography (CT) or magnetic resonance imaging (MRI)) can provide the third element of what can be called reliable neuroscientific evidence (clinical examination, structural brain imaging, and functional brain imaging).
There are several legal scenarios where neuroimaging evidence may be relevant to the legal question and can contribute a great deal toward achieving a resolution of legal matters. For example, neuroimaging findings of mild cortical atrophy in a young person with a history of perinatal hypoxia may help in substantiating the claim of permanent disability due to cognitive impairments that were shown to be evident on neuropsychological testing. Such evidence would prove to be valuable to the lawyer in helping a client with a disability claim. Often routine brain imaging such as MRI is not revealing in this case. Use of novel neuroimaging methods such as DTI may become helpful in these cases by showing the evidence of white matter demyelination. Proving a claim with the help of sound neuroscientific evidence may open the door to opportunity for a client by getting proper accommodation at work or school.
Diagnosis and management of epilepsy have benefited significantly from advanced neuroimaging and neurophysiological techniques. Localization of epileptic focus with precision, detection of congenital cortical malformations (hamartomas), and surgical planning for removal of epileptic foci are some of the benefits of these newer investigative methods. Some patients misdiagnosed with pseudoseizures (nonepileptic events) now have a diagnosed epileptic condition, making it possible for them to get proper treatment, patient advocacy, workplace accommodation, and disability when indicated. Newer imaging modalities (such as magnetoencephalography) have made many epileptic conditions surgically remediable with precise localization of epileptic focus and functional brain mapping.11 Not using these techniques during an epilepsy workup may lead to successful malpractice claims against clinicians. On the other hand, I have seen patients who malinger seizure disorders for primary gain. Aforementioned techniques along with video-electroencephalogram monitoring have helped to rule out the diagnosis of seizure disorder with far more certainty in those cases.
The diagnosis of epilepsy has been used as an affirmative defense in criminal cases from time to time. A few years ago, I consulted on a patient who was charged with breaking and entering his neighbor's house at midnight. The patient was brought to the hospital for evaluation because he was confused. After an extensive workup, a diagnosis was made of frontal lobe seizures, and the charges were dropped.
Humans have always been curious to know what their fellow humans are thinking. A variety of techniques have been used since ancient times, such as pulse measuring by Greeks, harsher techniques in the Middle Ages, and the polygraph in the 20th century.14 Modern neuroscience has introduced newer techniques, such as electroencephalogram (EEG) and fMRI to read minds, and more specifically, to detect lies. Review of techniques for lie detection is beyond the scope of this editorial. I will highlight the arguments favoring and disapproving of their use by forensic practitioners.
United States v. Semrau15 provides an interesting reading of the court's decision to exclude fMRI-based lie detection testimony after conducting a Daubert evidentiary hearing. The court granted the prosecution's motion to exclude such testimony, finding that the fMRI lie detection technique was young and immature, did not have real-life error rates, and was not generally accepted by the scientific community and that the prejudicial value outweighed the probative value. Wagner25 concluded after his meta-analysis of 28 peer-reviewed articles that the available data are insufficient to show the sensitivity and specificity of fMRI-based lie detection.
Jones et al.14 describe two cases from India (Maharashtra v. Sharma and Khandelwal and Selvi v. Karnataka) in which brain-based lie detection evidence was considered by the court. The first case involved a murder trial. In the second case, the Supreme Court of India examined the coercive administration of brain-based mind-reading techniques (polygraph, narcoanalysis, and brain electrical activation profile (BEAP)) by law enforcement to obtain information from terrorists and other criminals. The court ruled that no individual should be forcibly subjected to any of the techniques in question.
Where do we stand in regard to using the brain-based lie detection techniques in general and fMRI-based lie detection in particular to solve legal questions? Justice Clarence Thomas14 stated that the fundamental premise of our criminal system is that the jury is the lie detector. Moriarty16 argued that an informal evidentiary moratorium be put on the admission of this evidence until the science is further developed (to fulfill the Daubert criteria). Appelbaum17 expressed concern regarding the intrusive nature of such techniques. Greely and Illes18 advocated for federal regulation of lie detection techniques, including U.S. Food and Drug Administration (FDA) regulation of the safety and efficacy of the machines. Other legal scholars have raised concerns regarding encroachment on an individual's constitutional rights, such as the privilege to avoid self-incrimination and the right to trial by a jury.
On the science side of the equation, lie detection techniques face a big challenge regarding ecological validity. How realistic are they for the real world? How do you extrapolate from the lab findings of lie detection to real-world lie detection? There is a consensus in the scientific community that fMRI-based lie detection is not yet ready for the courtroom.
Genetics research is another rapidly expanding area of human biological sciences. Neurogenetics research has focused on establishing a link between the genetic, environmental and psychological states, including various human behaviors. Farahany has written extensively (Farahany and Bernet19 and Farahany20) on the topic of human behavioral genetics in criminal cases.
Genetics testimony has been used in criminal cases by the defense to support the diagnosis of a particular mental disorder (depression or schizophrenia for example) in the defendant. In State v. Davis,21 the defendant's family history of mental illness was used to support the defense that the defendant had severe depression (mental illness), and, therefore, he could not possess the requisite intent to commit first-degree murder. The jury rejected this claim, and the verdict was affirmed on appeal.21 Courts have generally not allowed such testimony to be presented at trial to raise an insanity defense. This type of testimony is used mostly to mitigate the sentencing.
As in most other areas of neuroscience, neurogenetics will continue to advance. With the identification of more genes and learning about their interactions with specific environments, their roles in particular human behaviors will become more apparent. This knowledge will then undoubtedly be used by defendants during trial as mitigating evidence, to deny culpability and to assert an insanity defense, among other possibilities. Farahany20 cautions about behavioral genetics evidence being a double-edged sword for defendants. The courts may adversely interpret the testimony, or the prosecutor may use the testimony to convince the jury to incarcerate a person predisposed to high risk of violence instead of setting him loose on the street.
This discussion on a select few areas of neuroscience in the legal context gives us a reasonable insight into the current state of the marriage between the two. Jones et al.22 described them as strange bedfellows that were inevitably destined to engage. Neuroscientists will continue to investigate and innovate. Lawyers will continue to advocate for their clients and society. There will be supporters and protestors of this as yet uneasy alliance. Fortunately, there is a movement on both sides to foster collaborative relationships. Neuroscience has a role to play, by informing the legal system of the usefulness and limitations of newly gained knowledge and by helping the legal system make legally and scientifically sound inferences about relationships between the neuroscientific evidence and particular behaviors.22 Farahany20 encouraged more nuanced dialogue between neuroscientists, legal decision-makers, and the public. She points out the efforts of several national and international organizations (the John D. and Catherine T. MacArthur Foundation, the Dana Foundation, and The Royal Society of London) to educate the public in this regard.
Morse23 provided a compelling dissenting argument to the views advanced herein. He stated that he worries about potential abuse of science in the courtroom. He argued that our law is based on folk psychology and a normative value system. Several terms coined by Morse help us understand his healthy skepticism and abundance of caution: neuroexuberance, brain overclaim syndrome, and cognitive jurotherapy. He remains hawkish on his long-held belief that modern neuroscience has not much to contribute to legal policy and doctrine. He is cautiously optimistic about the potential of neuroscience to make meaningful contributions to the law.24 I am personally encouraged by his assertion that modern neuroscience will not replace the essential role of forensic psychiatrists and psychologists.
Neuroscience can contribute greatly to the forensic practice. Neuroscientists and clinicians should take a visible role in informing the legal community and the public of newly gained insights into brain functioning. They must speak out loudly against the misuse of neuroscience in the courtroom. Neuroscientific evidence alone should not be offered to assert the inability to form the requisite intent to commit the crime.
People v. Weinstein, 591 N.Y.S.2d 715 (N.Y. Sup. Ct. 1992).
Graham v. Florida, 130 S. Ct. 2011 (2010).
Unites States v. Semrau, No. 2:10-cr-10074-JPM (W.D. Tenn. 2011).
State v. Davis, 2001 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 2001).

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COUNTY JAIL DOCKET (The following people were booked into the Volusia County Branch Jail on felony charges yet to be proven in court.): Bradley K. Coleman, 21, Orange City, 21, grand theft of more than $300 but under $5,000, burglary with assault or battery; Steven C. Capps, 45, DeLand, domestic battery by strangulation; Michael Jeanpaul, 29, Orlando, court violation (2); Robert T. Sage, 40, Ocoee, court violation; Jeremy John Maruska, 21, Daytona Beach, second-degree murder; Rhiannon Marie Thomas, 33, South Daytona, other crimes, dealing in stolen property, possession, deceive or retain a stolen credit card; Desaray Jewel Hunter, 20, Center, Ala., grand theft of more than $300 but under $5,000, court violation (2); Felicia K. Phillips, 24, Ormond Beach, grand theft of more than $300 but under $5,000, passing a forged or altered instrument; Keesha M. Higgins, 36, Daytona Beach, aid, abet or commit prostitution; Brenda K. Blair, 37, Daytona Beach, court violation; James R. Spence, 25, Port Orange, burglary while armed; Ryan P. Walker, 23, Daytona Beach, violation of drug court; Michael Shawn McFarland, 21, New Smyrna Beach, violation of probation (2), giving false information to a pawn broker; Johnny E. Turner, 27, DeLand, court violation (2); Nathaniel Mitchell Jr., 43, Deltona, aggravated assault with a deadly weapon; Anthony R. Holder, 22, DeLand, court violation; Lizzie Lee Daniels, 22, Ormond Beach, aggravated battery with a deadly weapon; James C. Goodrich, 40, Mims, grand theft of more than $20,000, dealing in stolen property.
SUITS: Tichawonna Johnson v. Ellis Ramos, enforcement of sale; Citimortgage Inc. v. Boor and Reyes Properties LLC, real property; Federal National Mortgage Association v. Julio Saavedra, real property; JP Morgan Chase Bank NA v. Henry C. Getz, real property; Estate of Bette K. Boose v. Sovereign Healthcare of Orange City LLC, nursing home negligence; Citibank NA v. George Lawson, in excess of $15,000; Jason Hardy v. 21st Century Centennial Insurance Co., insurance claim; Deutsche Bank National Trust Co. v. Frank A. Landry, real property; HSBC Bank USA NA v. Regina A. Kibler, real property; Marco Carter v. Lee E. Ramsey, auto negligence; Jose A. Ortega v. Alexander E. Kelly, real property; Brenda Hawf v. Thomas Holmes, auto negligence.
MARRIAGES: Michael A. Knoble, Painesville, Ohio, and Regina D. Knoble, Port Orange; Brandon J. Howard and Antonisha L. Cook, Daytona Beach; Michael W. McIntosh and Teresa D. Dregier, South Daytona; Brandon W. Granger and Alexandra C. Slanina, Edgewater; Mark G. Hanner and Jacqueline M. Moisio, Port Orange; Ediberto Colon Jr. and Amanda C. DeLong, Holly Hill; John A. Dare and Denise A. Guerrieri, Daytona Beach; William F. Lamachia and Mary K. Eller, Ormond Beach; Dennis M. Rogers and Linda C. Taylor, Edgewater; Mark D. Cox and Dyshauna L. Sierra, Daytona Beach; Aaron L. Koref II and Jessica R. Millman, DeLand; Ryan J. Brennan and Jennifer L. Weaver, Edgewater; Thomas J. Bray and Kimberlee J. Hall, Edgewater; Joseph S. Matuszczak and Halley L. Hitcock, DeLand; Harold E. Stovall and Deanne M. Maltacea, Deltona; Stephen R. Boisvert and Heather D. Hill, Lake Helen; Michael A. Rood and Brandy N. Dixon, DeLand; Kevin L. Stewart and Debra A. Duncan, Deltona; Russell J. Rogers, Enterprise, and Patricia A. Esposito, Babylon, N.Y.; Dennis R. Roser, DeLand, and Barbara F. Sutton, Paisley; Robert S. Edgcomb and Courtney R. Williams, Deltona; Kenneth L. Singer and Katrina L. Parris, Deltona.
MARRIAGE DISSOLUTIONS STARTED: Sherri v. Nelson Perez; Konee F. v. Justin Baslee; Pakavat Samavardhana v. Jennifer E. Patino; William E. McKinnon v. Stacey R. Simpkins; Sheryl H. v. Herman Robinson; Mary v. Jerry Davis; Kimberly A. v. John W. Napolillo Jr.; Lori P. v. Louis Vaszquez Jr.
MARRIAGE DISSOLUTIONS GRANTED: Kari and Charles B. Burnette; Elizabeth B. and William F. Stum; Elaine W. and Laury R. Edwards; Abigail L. and Armand J. Gallant; L. Jane Lapierre and Ellary Franklin; Robyn L. and Janno Kais; John D. and Heather K. Welch; Satchell B. Phinesee and Katinka N. Reed Phinesee.

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APEX MARINE CORPORATION et al.
Petitioner Miles, the mother and administratrix of the estate of a seaman killed by a fellow crew member aboard the vessel of respondents (collectively Apex) docked in an American port, sued Apex in District Court, alleging negligence under the Jones Act for failure to prevent the assault, and breach of the warranty of seaworthiness under general maritime law for hiring a crew member unfit to serve. After the court ruled, inter alia, that the estate could not recover the son's lost future income, the jury found that the ship was seaworthy, but that Apex was negligent. Although it awarded damages on the negligence claim to Miles for the loss of her son's support and services and to the estate for pain and suffering, the jury found that Miles was not financially dependent on her son and was therefore not entitled to damages for loss of society. The Court of Appeals affirmed the judgment of negligence by Apex. As to the general maritime claim, the court ruled that the vessel was unseaworthy as a matter of law, but held that a nondependent parent may not recover for loss of society in a general maritime wrongful death action and that general maritime law does not permit a survival action for decedent's lost future earnings.
1. There is a general maritime cause of action for the wrongful death of a seaman. The reasoning of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, which created a general maritime wrongful death cause of action, extends to suits for the death of true seamen despite the fact that Moragne involved a longshoreman. Although true seamen, unlike longshoremen, are covered under the Jones Act provision creating a negligence cause of action against the seaman's employer for wrongful death, Moragne, supra, at 396, n. 12, 90 S.Ct., at 1785, n. 12, recognized that that provision is preclusive only of state remedies for death from unseaworthiness and does not pre-empt a general maritime wrongful death action. The Jones Act evinces no general hostility to recovery under maritime law, since it does not disturb seamen's general maritime claims for injuries resulting from unseaworthiness, and does not preclude the recovery for wrongful death due to unseaworthiness created by its companion statute, the Death on the High Seas Act (DOHSA). Rather, the Jones Act establishes a uniform system of seamen's tort law. As the Court concluded in Moragne, supra, at 396, n. 12, 90 S.Ct., at 1785, n. 12, that case's extension of the DOHSA wrongful death action from the high seas to territorial waters furthers, rather than hinders, uniformity in the exercise of admiralty jurisdiction. There is also little question that Moragne intended to create a general maritime wrongful death action applicable beyond the situation of longshoremen, since it expressly overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, which held that maritime law did not afford a cause of action for the wrongful death of a seaman, and since each of the "anomalies" to which the Moragne cause of action was directed—particularly the fact that recovery was theretofore available for the wrongful death in territorial waters of a longshoreman, but not a true seaman—involved seamen. Pp. 30-33.
2. Damages recoverable in a general maritime cause of action for the wrongful death of a seaman do not include loss of society. This case is controlled by the logic of Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581, which held that recovery for nonpecuniary loss, such as loss of society, is foreclosed in a general maritime action for death on the high seas because DOHSA, by its terms, limits recoverable damages in suits for wrongful death on the high seas to "pecuniary loss sustained by the persons for whose benefit the suit is brought" (emphasis added). Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 which allowed recovery for loss of society in a general maritime wrongful death action, applies only in territorial waters and only to longshoremen. The Jones Act, which applies to deaths of true seamen as a result of negligence, allows recovery only for pecuniary loss and not for loss of society in a wrongful death action. See Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 69-71, 33 S.Ct. 192, 195-196, 57 L.Ed. 417. The Jones Act also precludes recovery for loss of society in this case involving a general maritime claim for wrongful death resulting from unseaworthiness, since it would be inconsistent with this Court's place in the constitutional scheme to sanction more expansive remedies for the judicially created unseaworthiness cause of action, in which liability is without fault, than Congress has allowed in cases of death resulting from negligence. This holding restores a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law. Pp. 30-33.
3. A general maritime survival action cannot include recovery for decedent's lost future earnings. Even if a seaman's personal cause of action survives his death under general maritime law, the income he would have earned but for his death is not recoverable because the Jones Act's survival provision limits recovery to losses suffered during the decedent's lifetime. See, e.g., Van Beeck v. Sabine Towing Co., 300 U.S. 342, 347, 57 S.Ct. 452, 454-455, 81 L.Ed. 685. Since Congress has limited the survival right for seamen's injuries resulting from negligence, this Court is not free, under its admiralty powers, to exceed those limits by creating more expansive remedies in a general maritime action founded on strict liability. Pp. 326-328.
Allain F. Hardin, New Orleans, La., for petitioner; A. Remy Fransen, Jr., New Orleans, La., on brief.
Gerard T. Gelpi, New Orleans, La., for respondents; Randall C. Coleman, III, C. Gordon Starling, Jr., New Orleans, La., on brief; Graydon S. Staring, New Orleans, La., of counsel.
* Ludwick Torregano was a seaman aboard the vessel M/V Archon. On the evening of July 18, 1984, Clifford Melrose, a fellow crew member, stabbed Torregano repeatedly, killing him. At the time, the ship was docked in the harbor of Vancouver, Washington.
Mercedel Miles, Torregano's mother and administratrix of his estate, sued Apex Marine Corporation and Westchester Marine Shipping Company, the vessel's operators, Archon Marine Company, the charterer, and Aeron Marine Company, the Archon's owner (collectively Apex), in United States District Court for the Eastern District of Louisiana. Miles alleged negligence under the Jones Act, 41 Stat. 1007, as amended, 46 U.S.C.App. § 688, for failure to prevent the assault on her son, and breach of the warranty of seaworthiness under general maritime law for hiring a crew member unfit to serve. She sought compensation for loss of support and services and loss of society resulting from the death of her son, punitive damages, and compensation to the estate for Torregano's pain and suffering prior to his death and for his lost future income.
The jury found that Apex was negligent and that Torregano was 7% contributorily negligent in causing his death, but that the ship was seaworthy. After discounting for Torregano's contributory negligence, the jury awarded Miles $7,254 for the loss of support and services of her son and awarded the estate $130,200 for Torregano's pain and suffering. The jury also found that Miles was not financially dependent on her son and therefore not entitled to damages for loss of society. The District Court denied both parties' motions for judgment notwithstanding the verdict and entered judgment accordingly.
The United States Court of Appeals for the Fifth Circuit affirmed in part, reversed in part, and remanded. 882 F.2d 976 (1989). The court affirmed the judgment of negligence on the part of Apex, but held that there was insufficient evidence to support the contributory negligence finding. Id., at 983-985. Miles was therefore entitled to the full measure of $7,800 for loss of support and services, and the estate was entitled to $140,000 for Torregano's pain and suffering. The court also found that Melrose's extraordinarily violent disposition demonstrated that he was unfit and therefore that the Archon was unseaworthy as a matter of law. Id., at 983. Because this ruling revived Miles' general maritime claim, the court considered two questions concerning the scope of damages under general maritime law. The court reaffirmed its prior decision in Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455 (CA5 1985), holding that a nondependent parent may not recover for loss of society in a general maritime wrongful death action. 882 F.2d, at 989. It also held that general maritime law does not permit a survival action for decedent's lost future earnings. Id., at 987.
We granted Miles' petition for certiorari on these two issues, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 472 (1990), and now affirm the judgment of the Court of Appeals.
We rely primarily on Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Edward Moragne was a longshoreman who had been killed aboard a vessel in United States and Florida territorial waters. His widow brought suit against the shipowner, seeking to recover damages for wrongful death due to the unseaworthiness of the ship. The District Court dismissed that portion of the complaint because neither federal nor Florida statutes allowed a wrongful death action sounding in unseaworthiness where death occurred in territorial waters. General maritime law was also no help; in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), this Court held that maritime law does not afford a cause of action for wrongful death. The Court of Appeals affirmed.
This Court overruled The Harrisburg. After questioning whether The Harrisburg was a proper statement of the law even in 1886, the Court set aside that issue because a "development of major significance ha[d] intervened." Moragne, supra, 398 U.S., at 388, 90 S.Ct., at 1781. Specifically, the state legislatures and Congress had rejected wholesale the rule against wrongful death. Every State in the Union had enacted a wrongful death statute. In 1920, Congress enacted two pieces of legislation creating a wrongful death action for most maritime deaths. The Jones Act, 41 Stat. 1007, as amended 46 U.S.C.App. § 688, through incorporation of the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. §§ 51-59, created a wrongful death action in favor of the personal representative of a seaman killed in the course of employment. The Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U.S.C.App. §§ 761 et seq., 762, created a similar action for the representative of anyone killed on the high seas.
These statutes established an unambiguous policy in abrogation of those principles that underlay The Harrisburg. Such a policy is "to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law." Moragne, supra, at 391, 90 S.Ct., at 1782. Admiralty is not created in a vacuum; legislation has always served as an important source of both common law and admiralty principles. 398 U.S., at 391, 392, 90 S.Ct., at 1782, 1783, citing Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 214, 226-227 (R. Pound ed. 1934). The unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes created a strong presumption in favor of a general maritime wrongful death action.
But legislation sends other signals to which an admiralty court must attend. "The legislature does not, of course, merely enact general policies. By the terms of a statute, it also indicates its conception of the sphere within which the policy is to have effect." Moragne, supra, at 392, 90 S.Ct., at 1783. Congress, in the exercise of its legislative powers, is free to say "this much and no more." An admiralty court is not free to go beyond those limits. The Jones Act and DOHSA established a policy in favor of maritime wrongful death recovery. The central issue in Moragne was whether the limits of those statutes proscribed a more general maritime cause of action. 398 U.S., at 393, 90 S.Ct., at 1783-1784.
The Court found no such proscription. Rather, the unfortunate situation of Moragne's widow had been created by a change in the maritime seascape that Congress could not have anticipated. At the time Congress passed the Jones Act and DOHSA, federal courts uniformly applied state wrongful death statutes for deaths occurring in state territorial waters. Except in those rare cases where state statutes were also intended to apply on the high seas, however, there was no recovery for wrongful death outside territorial waters. See Moragne, supra, at 393, and n. 10, 90 S.Ct., at 1784, and n. 10. DOHSA filled this void, creating a wrongful death action for all persons killed on the high seas, sounding in both negligence and unseaworthiness. Congress did not extend DOHSA to territorial waters because it believed state statutes sufficient in those areas. 398 U.S., at 397-398, 90 S.Ct., at 1786.
"The revolution in the law began with Mahnich v. Southern S.S. Co., [321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944) ]," in which this Court transformed the warranty of seaworthiness into a strict liability obligation. Gilmore & Black, supra, at 384, 386. The shipowner became liable for failure to supply a safe ship irrespective of fault and irrespective of the intervening negligence of crew members. Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 458, 88 L.Ed. 561 (1944) ("[T]he exercise of due diligence does not relieve the owner of his obligation to the seaman to furnish adequate appliances. . . . If the owner is liable for furnishing an unseaworthy appliance, even when he is not negligent, a fortiori his obligation is unaffected by the fact that the negligence of the officers of the vessel contributed to the unseaworthiness"). The Court reaffirmed the rule two years later in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94-95, 66 S.Ct. 872, 877-878, 90 L.Ed. 1099 (1946) ("[Unseaworthiness] is essentially a species of liability without fault"). As a consequence of this radical change, unseaworthiness "[became] the principal vehicle for recovery by seamen for injury or death." Moragne, 398 U.S., at 399, 90 S.Ct., at 1787. DOHSA claims now sounded largely in unseaworthiness. "The resulting discrepancy between the remedies for deaths covered by [DOHSA] and for deaths that happen to fall within a state wrongful-death statute not encompassing unseaworthiness could not have been foreseen by Congress." Ibid.
The emergence of unseaworthiness as a widely used theory of liability made manifest certain anomalies in maritime law that had not previously caused great hardship. First, in territorial waters, general maritime law allowed a remedy for unseaworthiness resulting in injury, but not for death. Second, DOHSA allowed a remedy for death resulting from unseaworthiness on the high seas, but general maritime law did not allow such recovery for a similar death in territorial waters. Finally, in what Moragne called the "strangest" anomaly, in those States whose statutes allowed a claim for wrongful death resulting from unseaworthiness, recovery was available for the death of a longshoreman due to unseaworthiness, but not for the death of a Jones Act seaman. See Moragne, supra, at 395-396, 90 S.Ct., at 1785. This was because wrongful death actions under the Jones Act are limited to negligence, and the Jones Act pre-empts state law remedies for the death or injury of a seaman. See Gillespie v. United States Steel Corp., 379 U.S. 148, 154-156, 85 S.Ct. 308, 312-313, 13 L.Ed.2d 199 (1964).
The United States, as amicus curiae, urged the Moragne Court to eliminate these inconsistencies and render maritime wrongful death law uniform by creating a general maritime wrongful death action applicable in all waters. The territorial limitations placed on wrongful death actions by DOHSA did not bar such a solution. DOHSA was itself a manifestation of congressional intent "to achieve 'uniformity in the exercise of admiralty jurisdiction.' " Moragne, supra, 398 U.S., at 401, 90 S.Ct., at 1788, quoting Gillespie, supra, 379 U.S., at 155, 85 S.Ct., at 312. Nothing in that Act or in the Jones Act could be read to preclude this Court from exercising its admiralty power to remedy nonuniformities that could not have been anticipated when those statutes were passed. Moragne, supra, 398 U.S., at 399-400, 90 S.Ct., at 1787. The Court therefore overruled The Harrisburg and created a general maritime wrongful death cause of action. This result was not only consistent with the general policy of both 1920 Acts favoring wrongful death recovery, but also effectuated "the constitutionally based principle that federal admiralty law should be 'a system of law coextensive with, and operating uniformly in, the whole country.' " Moragne, supra, 398 U.S., at 402, 90 S.Ct., at 1788, quoting The Lottawanna, 21 Wall. 558, 575, 22 L.Ed. 654 (1875).
Historically, a shipowner's duty of seaworthiness under general maritime law ran to seamen in the ship's employ. See Sieracki, 328 U.S., at 90, 66 S.Ct., at 875. In Sieracki, we extended that duty to stevedores working aboard ship but employed by an independent contractor. Id., at 95, 66 S.Ct., at 877. As this was Moragne's situation, Moragne's widow was able to bring an action for unseaworthiness under general maritime law. In a narrow sense, Moragne extends only to suits upon the death of longshoremen like Moragne, so-called Sieracki seamen. Torregano was a true seaman, employed aboard the Archon. Were we to limit Moragne to its facts, Miles would have no general maritime wrongful death action. Indeed, were we to limit Moragne to its facts, that case would no longer have any applicability at all. In 1972, Congress amended the Longshore and Harbor Workers' Compensation Act (LHWCA), 86 Stat. 1251, as amended, 33 U.S.C. §§ 901-950, to bar any recovery from shipowners for the death or injury of a longshoreman or harbor worker resulting from breach of the duty of seaworthiness. See 33 U.S.C. § 905(b); American Export Lines, Inc. v. Alvez, 446 U.S. 274, 282, n. 9, 100 S.Ct. 1673, 1678, n. 9, 64 L.Ed.2d 284 (1980). If Moragne's widow brought her action today, it would be foreclosed by statute.
This Court first addressed the preclusive effect of the Jones Act wrongful death provision in Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930). Petitioner, who was not a wrongful death beneficiary under the Jones Act, attempted to recover for the negligence of the shipowner under a state wrongful death statute. The Court held that the Jones Act pre-empted the state statute: "[The Jones] Act is one of general application intended to bring about the uniformity in the exercise of admiralty jurisdiction required by the Constitution, and necessarily supersedes the application of the death statutes of the several States." Id., at 44, 50 S.Ct., at 210. The Court also concluded that the Jones Act, limited as it is to recovery for negligence, would preclude recovery for the wrongful death of a seaman resulting from the unseaworthiness of the vessel. Id., at 47-48, 50 S.Ct., at 211-212. In Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), the Court reaffirmed Lindgren and held that the Jones Act precludes recovery under a state statute for the wrongful death of a seaman due to unseaworthiness. 379 U.S., at 154-156, 85 S.Ct., at 312-313.
Neither Lindgren nor Gillespie considered the effect of the Jones Act on a general maritime wrongful death action. Indeed, no such action existed at the time those cases were decided. Moragne addressed the question explicitly. The Court explained there that the preclusive effect of the Jones Act established in Lindgren and Gillespie extends only to state remedies and not to a general maritime wrongful death action. See Moragne, 398 U.S., at 396, n. 12, 90 S.Ct., at 1785, n. 12.
The Jones Act provides an action in negligence for the death or injury of a seaman. It thereby overruled The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), which established that seamen could recover under general maritime law for injuries resulting from unseaworthiness, but not negligence. The Jones Act evinces no general hostility to recovery under maritime law. It does not disturb seamen's general maritime claims for injuries resulting from unseaworthiness, Pacific S.S. Co. v. Peterson, 278 U.S. 130, 139, 49 S.Ct. 75, 78, 73 L.Ed. 220 (1928), and it does not preclude the recovery for wrongful death due to unseaworthiness created by its companion statute, DOHSA. Kernan v. American Dredging Co., 355 U.S. 426, 430, n. 4, 78 S.Ct. 394, 397, n. 4, 2 L.Ed.2d 382 (1958). Rather, the Jones Act establishes a uniform system of seamen's tort law parallel to that available to employees of interstate railway carriers under FELA. As the Court concluded in Moragne, the extension of the DOHSA wrongful death action to territorial waters furthers rather than hinders uniformity in the exercise of admiralty jurisdiction. Moragne, supra, 398 U.S., at 396, n. 12, 90 S.Ct., at 1785, n. 12.
There is also little question that Moragne intended to create a general maritime wrongful death action applicable beyond the situation of longshoremen. For one thing, Moragne explicitly overruled The Harrisburg. Moragne, supra, 398 U.S., at 409, 90 S.Ct., at 1792. The Harrisburg involved a true seaman. The Harrisburg, 119 U.S., at 200, 7 S.Ct., at 141. In addition, all three of the "anomalies" to which the Moragne cause of action was directed involved seamen. The "strangest" anomaly—that recovery was available for the wrongful death in territorial waters of a longshoreman, but not a true seaman—could only be remedied if the Moragne wrongful death action extended to seamen. It would be strange indeed were we to read Moragne as not addressing a problem that in large part motivated its result. If there has been any doubt about the matter, we today make explicit that there is a general maritime cause of action for the wrongful death of a seaman, adopting the reasoning of the unanimous and carefully crafted opinion in Moragne.
Moragne did not set forth the scope of the damages recoverable under the maritime wrongful death action. The Court first considered that question in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Respondent brought a general maritime action to recover for the wrongful death of her husband, a longshoreman. The Court held that a dependent plaintiff in a maritime wrongful death action could recover for the pecuniary losses of support, services, and funeral expenses, as well as for the nonpecuniary loss of society suffered as the result of the death. Id., at 591, 94 S.Ct., at 818. Gaudet involved the death of a longshoreman in territorial waters.1 Consequently, the Court had no need to consider the preclusive effect of DOHSA for deaths on the high seas or the Jones Act for deaths of true seamen.
We considered DOHSA in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). That case involved death on the high seas and, like Gaudet, presented the question of loss of society damages in a maritime wrongful death action. The Court began by recognizing that Gaudet, although broadly written, applied only in territorial waters and therefore did not decide the precise question presented. 436 U.S., at 622-623, 98 S.Ct., at 2013-2014. Congress made the decision for us. DOHSA, by its terms, limits recoverable damages in wrongful death suits to "pecuniary loss sustained by the persons for whose benefit the suit is brought." 46 U.S.C.App. § 762 (emphasis added). This explicit limitation forecloses recovery for non-pecuniary loss, such as loss of society, in a general maritime action.
Respondents argued that admiralty courts have traditionally undertaken to supplement maritime statutes. The Court's answer in Higginbotham is fully consistent with those principles we have here derived from Moragne: Congress has spoken directly to the question of recoverable damages on the high seas, and "when it does speak directly to a question, the courts are not free to 'supplement' Congress' answer so thoroughly that the Act becomes meaningless." Higginbotham, supra, at 625, 98 S.Ct., at 2015. Moragne involved gap filling in an area left open by statute; supplementation was entirely appropriate. But in an "area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries." Higginbotham, supra, at 625, 98 S.Ct., at 2015.
The logic of Higginbotham controls our decision here. The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen. Gaudet did not consider the preclusive effect of the Jones Act for deaths of true seamen. We do so now.
Unlike DOHSA, the Jones Act does not explicitly limit damages to any particular form. Enacted in 1920, the Jones Act makes applicable to seamen the substantive recovery provisions of the older FELA. See 46 U.S.C.App. § 688. FELA recites only that employers shall be liable in "damages" for the injury or death of one protected under the Act. 45 U.S.C. § 51. In Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913), however, the Court explained that the language of the FELA wrongful death provision is essentially identical to that of Lord Campbell's Act, 9 & 10 Vict. ch. 93 (1846), the first wrongful death statute. Lord Campbell's Act also did not limit explicitly the "damages" to be recovered, but that Act and the many state statutes that followed it consistently had been interpreted as providing recovery only for pecuniary loss. Vreeland, 227 U.S., at 69-71, 33 S.Ct., at 195-196. The Court so construed FELA. Ibid.
When Congress passed the Jones Act, the Vreeland gloss on FELA, and the hoary tradition behind it, were well established. Incorporating FELA unaltered into the Jones Act, Congress must have intended to incorporate the pecuniary limitation on damages as well. We assume that Congress is aware of existing law when it passes legislation. See Cannon v. University of Chicago, 441 U.S. 677, 696-697, 99 S.Ct. 1946, 1957, 60 L.Ed.2d 560 (1979). There is no recovery for loss of society in a Jones Act wrongful death action.
The Jones Act also precludes recovery for loss of society in this case. The Jones Act applies when a seaman has been killed as a result of negligence, and it limits recovery to pecuniary loss. The general maritime claim here alleged that Torregano had been killed as a result of the unseaworthiness of the vessel. It would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence. We must conclude that there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman.
Our decision also remedies an anomaly we created in Higginbotham. Respondents in that case warned that the elimination of loss of society damages for wrongful deaths on the high seas would create an unwarranted inconsistency between deaths in territorial waters, where loss of society was available under Gaudet, and deaths on the high seas. We recognized the value of uniformity, but concluded that a concern for consistency could not override the statute. Higginbotham, supra, 436 U.S., at 624, 98 S.Ct., at 2014. Today we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.
We next must decide whether, in a general maritime action surviving the death of a seaman, the estate can recover decedent's lost future earnings. Under traditional maritime law, as under common law, there is no right of survival; a seaman's personal cause of action does not survive the seaman's death. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932); Romero v. International Terminal Operating Co., 358 U.S. 354, 373, 79 S.Ct. 468, 480, 3 L.Ed.2d 368 (1959); Gillespie, 379 U.S., at 157, 85 S.Ct., at 313-314.
Congress and the States have changed the rule in many instances. The Jones Act, through its incorporation of FELA, provides that a seaman's right of action for injuries due to negligence survives to the seaman's personal representative. See 45 U.S.C. § 59; Gillespie, supra, at 157, 85 S.Ct., at 313. Most States have survival statutes applicable to tort actions generally, see 1 S. Speiser, Recovery for Wrongful Death 2d § 3.2 (1975 and Supp.1989), 2 id., §§ 14.1, 14.3, App. A, and admiralty courts have applied these state statutes in many instances to preserve suits for injury at sea. See, e.g., Just v. Chambers, 312 U.S. 383, 391, 61 S.Ct. 687, 693, 85 L.Ed. 903 (1941). See also Kernan v. Ameri- can Dredging Co., 355 U.S., at 430, n. 4, 78 S.Ct., at 397, n. 4; Kossick v. United Fruit Co., 365 U.S. 731, 739, 81 S.Ct. 886, 892, 6 L.Ed.2d 56 (1961); Gillespie, supra, 379 U.S., at 157, 85 S.Ct., at 313-314; Comment, Application of State Survival Statutes in Maritime Causes, 60 Colum.L.Rev. 534, 535, n. 11 (1960); Nagy, The General Maritime Law Survival Action: What are the Elements of Recoverable Damages?, 9 U.Haw.L.Rev. 5, 27 (1987). Where these state statutes do not apply,2 however, or where there is no state survival statute, there is no survival of unseaworthiness claims absent a change in the traditional maritime rule.
Several Courts of Appeals have relied on Moragne to hold that there is a general maritime right of survival. See Spiller v. Thomas M. Lowe, Jr., & Assocs., Inc., 466 F.2d 903, 909 (CA8 1972); Barbe v. Drummond, 507 F.2d 794, 799-800 (CA1 1974); Law v. Sea Drilling Corp., 523 F.2d 793, 795 (CA5 1975); Evich v. Connelly, 759 F.2d 1432, 1434 (CA9 1985). As we have noted, Moragne found that congressional and state abrogation of the maritime rule against wrongful death actions demonstrated a strong policy judgment, to which the Court deferred. Moragne, 398 U.S., at 388-393, 90 S.Ct., at 1781-1784. Following this reasoning, the lower courts have looked to the Jones Act and the many state survival statutes and concluded that these enactments dictate a change in the general maritime rule against survival. See, e.g., Spiller, supra, at 909; Barbe, supra, at 799-800, and n. 6.
Recovery of lost future income in a survival suit will, in many instances, be duplicative of recovery by dependents for loss of support in a wrongful death action; the support dependents lose as a result of a seaman's death would have come from the seaman's future earnings. Perhaps for this reason, there is little legislative support for such recovery in survival. In only a few States can an estate recover in a survival action for income decedent would have received but for death.3 At the federal level, DOHSA contains no survival provision. The Jones Act incorporates FELA's survival provision, but, as in most States, recovery is limited to losses suffered during the decedent's lifetime. See 45 U.S.C. § 59; Van Beeck v. Sabine Towing Co., 300 U.S. 342, 347, 57 S.Ct. 452, 454-455, 81 L.Ed. 685 (1937); St. Louis, I.M. & S.R. Co. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 706, 59 L.Ed. 1160 (1915).
This state and federal legislation hardly constitutes the kind of "wholesale" and "unanimous" policy judgment that prompted the Court to create a new cause of action in Moragne. See Moragne, supra, 398 U.S., at 388, 389, 90 S.Ct., at 1781, 1782. To the contrary, the considered judgment of a large majority of American legislatures is that lost future income is not recoverable in a survival action. Were we to recognize a right to such recovery under maritime law, we would be adopting a distinctly minority view.
This fact alone would not necessarily deter us, if recovery of lost future income were more consistent with the general principles of maritime tort law. There are indeed strong policy arguments for allowing such recovery. See, e.g., R. Posner, Economic Analysis of Law 176-181 (3d ed.1986) (recovery of lost future income provides efficient incentives to take care by ensuring that the tortfeasor will have to bear the total cost of the victim's injury or death). Moreover, Miles reminds us that admiralty courts have always shown a special solicitude for the welfare of seamen and their families. "[C]ertainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy." Moragne, supra, at 387, 90 S.Ct., at 1781, quoting Chief Justice Chase in The Sea Gull, 21 F.Cas. 909, 910 (No. 12,578) (CC Md.1865). See also Gaudet, 414 U.S., at 583, 94 S.Ct., at 814.
As with Moragne, the 1972 amendments to LHWCA have rendered Gaudet inapplicable on its facts. See supra, at 28; 33 U.S.C. § 905(b). Suit in Gaudet was filed before 1972. Gaudet v. Sea-Land Services, Inc., 463 F.2d 1331, 1332 (CA5 1972).
In Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 215, n. 1, 106 S.Ct. 2485, 2490, n. 1, 91 L.Ed.2d 174 (1986), we declined to approve or disapprove the practice of some courts of applying state survival statutes to cases involving death on the high seas.
See Mich.Comp.Laws §§ 600.2921, 600.2922 (1986); Olivier v. Houghton County St. R. Co., 134 Mich. 367, 368-370, 96 N.W. 434, 435 (1903); 42 Pa.Cons.Stat. § 8302 (1988); Incollingo v. Ewing, 444 Pa. 263, 307-308, 282 A.2d 206, 229 (1971); Wash.Rev.Code § 4.20.060 (1989); Balmer v. Dilley, 81 Wash.2d 367, 370, 502 P.2d 456, 458 (1972). See generally 2 S. Speiser, Recovery for Wrongful Death, 2d § 14.7, App. A (1975 and Supp.1989). Speiser explains that many States do not allow any recovery of lost earnings in survival, and that among those that do, recovery is generally limited to earnings lost from the time of injury to the time of death. Ibid.


With all of the rapid changes taking place with regard to President Trump’s zero tolerance policy and family separation actions, MPLG has put together a detailed overview of the legal roots of these policies, where these policies stand as of the release of this memorandum, as well as the implications of these policies.
IntroductionAccording to the Department of Homeland Security (DHS), as of June 20th 2017, 2,053 children have been separated from their parents, and have been placed in the health and human services funded facilities. Once these children have been separated from their parents they are placed in the custody of Office of Refugee Resettlement (ORR). According to a statement by Steve Wagner, Acting Assistant Secretary Administration for Children and Families, between October and December 2017, ORR was unable to determine with certainty the whereabouts of 1,475 UAC. On March 2017, the ORR had 755 referrals, while in March 2018, ORR had 4,204 referrals.While the family separation component of the administration’s zero-tolerance policy has been rescinded, the administration has failed to provide a method of reuniting children who have already been separated from their parents. The rescission of the family separation component of this policy arguably results in a violation of law.This article will discuss (1) the administration’s zero-tolerance policy, (2) the Flores Settlement and the laws regarding unaccompanied alien children, (UAC) (3) the implications of the zero-tolerance policy, and how it has led to massive family separations, and (4) lastly, it will analyze the difference between how the Obama administration and Trump administration have handled the treatment of UAC once they have been apprehended at the southern border.
Zero Tolerance Policy- What Does This Policy Do? On April 6, 2018, Attorney General Jeff Sessions announced the Administration’s “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. President Trump’s “zero tolerance policy” requires all undocumented immigrants who have been apprehended after crossing the border illegally to be criminally prosecuted, a stark departure from the previous policy that was in place at the border.Previously, illegal entry into the United States was not met with criminal prosecution; undocumented immigrants were processed under the “catch and release” policy, in which undocumented immigrants were held together as a family in ICE custody and/or issued a Notice to Appear in immigration court, and thereafter released. Undocumented immigrants being held in ICE custody were evaluated based upon “immigration priorities:” Undocumented immigrants without a criminal record were not a priority and therefore were subject to the catch and release policy.Those with criminal records were subject to prosecution.
Under the zero-tolerance policy, adults are placed in federal prison instead of an immigration detention center as they await their criminal trials. As a result of the new criminal prosecution policy, children are separated from the parents before going to federal prison: children, by law, cannot be held in a federal prison, and cannot be detained for longer than twenty days if they are held with their parents. We note that the administration has announced an end to the family separation component of this policy on Wednesday, June 20, 2018, allowing parents to remain with their children by being held in an immigration detention center. We discuss the implications of this policy later in this article.
Up until the end of the family separation component of the administration’s “zero tolerance policy,” parents were in federal custody and being prosecuted while their children were taken away with no clear requirement that they be returned after the prosecutions. Children were transferred to the ORR, an agency within the Department of Health and Human Services (HHS). ORR is then tasked to find an adult sponsor for the child that resides in the United States (i.e., a relative or family friend). If one is not available, children are released to a foster family. Until then, children are held in ORR shelters. The administration has not announced a method or process for reuniting parents and children separated before June 20th.
This de facto family separation policy inflicts trauma on separated family members, restricts due process and violates fundamental norms of family unity and decency. The President of the American Physiological Association, Jessica Daniel stated, “We remain gravely concerned about the fate of the more than 2,300 children who have already been separated and are in shelters. These children have been needlessly traumatized and must be reunited with their parents or other family members as quickly as possible to minimize any long-term harm to their mental and physical health. “She further stated that psychological research has proven that children separated from their parents can suffer severe psychological distress, resulting in anxiety, loss of appetite, sleep disturbances, withdrawal, aggressive behavior and decline in educational achievement. The longer the parent and child are separated, the greater the child’s symptoms of anxiety and depression become.
What was the government’s reasoning for the zero-tolerance policy?This policy was implemented as a deterrent to illegal immigration—the Department of Homeland Security (DHS) cited a 203 percent increase in illegal border crossings into the U.S. from March 2017 to March 2018 in support of the policy. While the administration highlights a “crisis of illegal immigration,” to the contrary government data also shows that monthly border crossings have dramatically decreased since 1999.We note that the majority of migrants apprehended at the Southwest border are from Central America as opposed to Mexico. The administration’s new zero tolerance policy primarily impacts Central Americans, often who are seeking asylum and fleeing violence in their home countries. Applicants must physically be in the United States to apply for asylum, which requires their physical presence and entry at the U.S. border to do so.
How the Flores Settlement Agreement and Various Laws Play a Role in the Administration’s Zero-Tolerance PolicyThe administration used the Flores Settlement Agreement of 1997 and the UAC statute as a legal basis for the recent widespread separation of parents from their children while carrying out its zero tolerance policy. We discuss the various laws that played a role in the zero-tolerance policy as they apply to UAC below.
The Flores Settlement Agreement of 1997 In the 1980s, the U.S. experienced an influx of alien children from Central America to the U.S.During this period, a class action lawsuit on behalf of immigrant children who had been detained by the legacy Immigration Naturalization Service (INS) resulted in the foundation of the U.S.’s policies on UACs. The lawsuit was the result of years of litigation regarding the detention of UACs who crossed the border from Central America in the 1980’s at that time fleeing primarily Civil Wars. The case, Reno v. Flores, challenged the procedures regarding detention conditions, treatment of children in detention, and created terms governing the release of children from detention. The first case, which sparked the need for reform was Flores v. Messe, 934 F.2d 991 (9th Cir. 1990. In this case, the Center for Human Rights and Constitutional law filed the class action lawsuit against the Attorney General, Messe. The respondents were a class of alien minors arrested by (INS) and then detained pending deportation hearings pursuant to the regulation 8 CFR § 242.24, which provides for the release of detained minors only to their parents, close relatives, or legal guardians, except in unusual and compelling circumstances. One of those children was fifteen-year-old UAC Jenny Flores, who crossed the border without inspection in 1985 and was caught by INS. She was detained with adults, strip searched daily, and was not able to be released to anyone aside from her legal guardians. The case was appealed to the Ninth Circuit. The panel found that there was no due process violation. The Court said that even if a minor had a right to be released to an unrelated adult, that right was not fundamental, and was thus subject to reasonable restriction. Absent a fundamental right, minimal scrutiny of the regulation sufficed. The panel cited the plenary power of the U.S. to control its’ borders, and the limited nature of juveniles’ rights compared to adults’ rights, as the reason for the ruling.
The plaintiffs then sought rehearing en banc on August 9, 1991. The en banc Ninth Circuit held that the INS’ blanket detention of children during the pendency of deportation proceedings was unconstitutional. The court explained that undocumented immigrants had due process rights, ny detaining the, during their deportation proceedings. The court stated that the interests of minors was not within the agency’s area of expertise, and therefore the minors were not entitled to the usual deference. Therefore, the en banc court held that the INS’s policy was unconstitutional, and they held in favor of the plaintiffs. Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc) (Circuit Judge Mary Schroeder).
Building from Flores v. Messe, the Supreme Court decided to hear the case of Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439 (1993) in order to determine whether the ruling that alien juveniles should be released to responsible adults was constitutional. The court examined the language in the uniform deportation-exclusion rule, 8 C.F.R. § 242.24 (1992), in order to determine whether the ruling mandating that alien juveniles be released to responsible adults violated their due process rights. The court held that INS’s regulations and procedures regarding the detention and release of UACs did not violate the minors’ substantive due process rights or the equal protection clause. In 1997, the case was remanded to the District Court, which resulted in the two parties agreeing to the Flores Settlement Agreement.
The Flores Settlement Agreement established the immigration obligations and policies for the treatment of UACs. The Flores Settlement Agreement required that immigration officials detaining minors provide (1) food and drinking water, (2) medical assistance in emergencies, (3) toilets and sinks, (4) adequate temperature control and ventilation, (5) adequate supervision to protect minors from others, and (6) separation from unrelated adults whenever possible.
Through this Act, the ORR was also tasked with screening children to determine whether they may have a claim for humanitarian relief.
These Laws Were Intended to Protect the Constitutional and Human Rights if UACs, and Not to Traumatize Children Through Forced Family Separation.The progression and development of the protections of UACs can be seen through the UAC statute, the Flores Settlement Agreement, the Homeland Security Act, and the TVPRA. The intent of these laws and agreements was to ensure that the vulnerable group of UAC minors’ constitutional and human rights are protected while they are being detained away from their parents.Yet, the current administration used these policies and legal obligations as the legal basis for separating parents from their children.Under the zero-tolerance policy, undocumented immigrants who have been caught at the border are referred to federal court for criminal prosecution. When this occurs, undocumented immigrants are sent to federal jail, rather than held in immigration detention facilities until they have hearings in front of a federal judge. During this time, parents are separated from their children, because children cannot be held in adult detention centers, including federal prisons. This is because the Flores Settlement Agreement places limits on the length of detention for children, and mandates that they are housed in the least restrictive conditions possible if they cannot be released to a guardian or licensed facility. Thus, this allowed the administration to justify the separation of parents from their children.
Exempt ICE family residential facilities from the Agreement’s state licensure requirement.
Separation of Children from Parents as well as Prolonged Detention When Seeking Asylum Violates Human Rights Law.As a member of the Organization of America States (OAS), the U.S. has various obligations under international law. According to the Inter-American Commission of Human Rights (IACHR), IACHR’s 2010 Report on Immigration in the United States, Detention and Due Process, all deprivations of liberty must have a legitimate aim, be proportionate to the aim pursued and have a fair balance struck between the concerning interests. The Working Group on Arbitrary Detention further explained this, and affirmed that the detention of asylum seekers, refugees, and migrants in an irregular situation is a measure of last resort and that the necessity to have recourse to a detention on measure must be evaluated in each individual case. According to the Working Group, mandatory or automatic detention must be considered arbitrary. According to the IACHR’s 2010 Report on Immigration in the United States, Detention and Due Process, the Commission stated that, “detention is only permissible when a case‐ specific evaluation concludes that the measure is essential in order to serve a legitimate interest of the State and to ensure that the subject reports for the proceeding to determine his or her immigration status and possible removal. Therefore, the detention of immigrants, when they are seeking asylum should be a measure of last resort. Furthermore, deprivations of liberty must be proportionate and have a legitimate aim. Immigrants seeking asylum are vulnerable, as they are fleeing persecution in their home country. These immigrants should not be separated from their children, during this time. Since detention for this group is a matter of last resort under international law, this administration has violated international norms.
“1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The convention acknowledges that asylum seekers may break immigration rules when seeking refuge. The convention, for example, would prohibit penalties against asylum seekers for minor immigration or criminal offenses through the process of seeking asylum. The convention further prohibits arbitrary detention on the basis of seeking asylum.
These principles demonstrate that the U.S. as a party to these treaties has several obligations regarding the treatment of refugees. The U.S. violates international human rights law when it arbitrarily detains those who come to its borders seeking asylum, without giving them due process of law, which consists of the ability to have their case heard in front of an immigration judge.
The Obama Administration dealt with a surge in migrants by detaining families together in administrative facilities, or releasing them, with a Notice to Appear in court.  In 2014, the Obama administration authorized the detention of hundreds of families and UAC who had crossed the border.During the year of 2014, the Border Patrol apprehended more than 69,000 UAC and 68,000 family units, compared to 38,000 and 15,000, in 2013. Initially, children who arrived with their parents were not detained or quickly deported during this time. Pursuant to statutes, there are strict limits and policies regarding children in immigration detention.Therefore, under the Obama administration many families were released from detention with a notice to appear in immigration court, rather than separating the children from their parents.
Furthermore, in November 2014, President Obama announced a number of other changes in immigration enforcement including an agency-wide policy of applying immigration priorities to prosecution. This policy identified categories of removable noncitizens that should be the highest priority for enforcement. The highest priority for ICE and CBP included “national security threats, noncitizens apprehended immediately at the border, gang members, and noncitizens convicted of felonies or aggravated felonies as defined in immigration law.”  As a result, undocumented immigrants without a criminal record were not pursued or sought for removal proceedings after with the same rigor as undocumented violent immigrants.
In 2015, the Ninth Circuit held that the requirements laid out in the Flores Settlement applied to UAC along with “accompanied” children. The Judge ordered DHS to release parents with their children. Yet, the requirement that parents be released with their children was reversed in 2016 on appeal.  While Flores does not state that parents may be released, under the Obama administration families were often released together after 20 days.
As discussed in the sections above, the Trump administration took the zero-tolerance policy that existed under previous presidents and imposed family separation, and removed discretionary authority from Border Patrol officers. While this administration claims it was acting according to the policies on the books, the actions taken up through June 20, 2018 were in stark contrast to the policies that were in effect under both Bush and Obama: children were not separated from families, and children and families were released after 20 days.
While rescinding its family-separation policy, the Trump administration is looking to circumvent other protections afforded to UACs under the Flores Settlement Agreement. President Trump is seeking for an amendment to the Flores Settlement Agreement, which allows families with children to be detained for undetermined periods of time.
The Trump administration has made its anti-immigration platform very clear in its many policy changes since January 2017. Previous administrations have exercised discretion and really, humanity, by ensuring children and their parents are not separated and are not kept in sub-par conditions. Many of the immigrants coming to our border are seeking refuge and fleeing violence and persecution. This administration is looking to curtail immigration by whatever means necessary, even if it means treating families and their children, and other asylum applicants who have trekked thousands of miles to legally seek refuge like criminals.
 The Obama Record on Deportations: Deporter in Chief or Not?, Migration Policy Institute, January 26, 2017, https://www.migrationpolicy.org/article/obama-record-deportations-deporter-chief-or-not.
 See 8 U.S. Code § 1158 – Asylum, available at https://www.law.cornell.edu/uscode/text/8/1158.
 See. Stipulated Settlement Agreement at 3, 7–18, 20, Flores v. Reno, No. CV 85-4544- RJK(Px) (C.D. Cal. Jan. 17, 1997), https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf.
 Flores v. Meese, 934 F.2d 998 (9th Cir. 1990) (Circuit Judge J. Clifford Wallace).
Executive Summary, Report no. I-2001-009, September 28, 2001.
 Homeland Security Act of 2002 (HSA; P.L. 107-296), P.L. 107-296, Section 462.
 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, P.L. 110-457, §235(a)(2)(A).
 §§235(a)-235(d) of TVPRA; 8 U.S.C. §1232(b)(2).


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Ryan is managing partner of the firm. He handles high-stakes litigation with a focus on business disputes, government contracts, and construction law. He also serves as local counsel in the Eastern District of Virginia in patent and other intellectual property cases.
Ryan’s experience includes state and federal jury trials, mediations, panel arbitrations, and appeals. His cases involve business conspiracies, technology disputes, indemnity claims, injunctions, franchise disputes, arbitration demands, bond claims, and antitrust actions, among others. Ryan successfully argued one of the seminal constructive trust cases in the Virginia Supreme Court and was co-counsel in one of the largest patent cases tried to jury verdict in Norfolk federal court. In 2017, he defeated ten counts in a publicized federal franchise trial and won judgment on multiple counterclaims.
Ryan is listed in Best Lawyers in America® and has been selected a Virginia Legal Elite in four categories. He was named one of the Top 100 lawyers in Virginia in 2014 by Virginia Super Lawyers. He is a Fellow of the Litigation Counsel of America and past Chair of the Construction & Public Contracts section of the VBA.
Landfill Gas Holdings, LLC v. Cube MAS Holdings, LLC, AAA Case No. 02-18-0001-9169. (Panel arbitration involving sale of multiple landfill gas energy projects).
Appeal of Norfolk Dredging Co., ASBCA No. 61071 (equitable adjustment case in Board of Contract Appeals involving USACE dredging project).
JTH Tax, Inc. d/b/a Liberty Tax v. Aime Consulting, LLC, et al., 2:16-cv-279, E.D.Va. (franchise case resulting in $2.7 million verdict after 3-day trial; affirmed in part and reversed in part on appeal) (Morgan, J.).
Carter Machinery Co. v. Lakeshore Toltest Corp., CL14-6599, York Cir. Ct. (multi-faceted mechanic’s lien suit with associated Delaware bankruptcy case).
Oasis Brands, Inc. v. Green Innovations Ltd., 2:13-cv-529, E.D.Va. (trademark case involving challenge to jurisdiction in Virginia) (Jackson, J.).
Norfolk & Portsmouth Belt Line RR Co. v. South Norfolk Jordan Bridge, LLC, 2:13-cv-234, E.D.Va. (indemnity case arising out of bridge collapse) (Jackson, J.).
Segin Systems, Inc. v. Stewart Title Guaranty Co., et al., 2:13-cv-190, E.D.Va., PTAB, Fed. Cir. (patent infringement case accusing account reconciliation software) (Jackson, J.).
Virginia Innovation Sciences v. Samsung Electronics Co., et al., 2:12-cv-548, 2:13-cv-332, 2:14-cv-217, E.D.Va., PTAB, Fed. Cir. (series of patent infringement cases involving mobile devices) (Davis, J.).
Carter Machinery Co. v. Martin Constr. Group, LLC, et al., CL-12-3703, Chest. Cir. Ct. (successor liability trial piercing shell company to reach LLCs).
St. Joe Company v. Norfolk Redev. & Housing Auth., 722 S.E.2d 622 (Va. 2012) (constructive trust case recouping funds seized by secured creditor).
I/P Engine, Inc. v. AOL, Inc., et al., 2:11-cv-512, E.D.Va. (patent infringement case accusing search engine advertising) (Jackson, J.).
Norfolk 102, LLC v. Waterside Assoc., L.P., et al., CL-11-3414, Norf. Cir. Ct. (commercial lease case seeking multi-party injunction).
Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832 (11th Cir. 2010) (marine construction case based on mooring structure failure).
Mullins v. River Docks Corp., et al., 4:10-cv-138, E.D.Va. (warranty case arising out of remanufactured marine engines) (Smith, J.).
Norfolk & Portsmouth Belt Line RR Co. v. Wilson, 667 S.E.2d 735 (Va. 2008) (FELA case asserting close clearance injury).
Represents business clients in complex contract cases, business conspiracy cases, business interference cases, intellectual property cases, technology disputes, commercial lease disputes, antitrust actions, declaratory judgment actions, injunctions, mediations, arbitrations and others.
Represents construction clients, owners and sureties in contract negotiations, teaming agreements, installation and design defects, mechanic’s liens, payment and performance bond claims, change order disputes, differing site condition claims, indemnity actions and others.
Represents government contractors in contract drafting, business structures, teaming agreements, protests, change orders, equitable adjustments, litigation, appeals, cybersecurity and others.
Represents maritime clients and railroad interests in marine construction cases, cargo cases, limitation actions, vessel arrests, MARPOL investigations, riparian rights disputes, property disputes, preemption cases, FELA cases, ICCTA challenges and others.

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