News: US 11th Circuit Court Rules on Bystander Emotional Distress Claims

In the United States a shipowner may face emotional distress claims from third parties, passengers or crewmembers who witness traumatic events that occur on or near an associated ship. The test under the majority of US case law is whether the claimant was in the 'zone of danger' when the incident occurred. A recent decision by the US Court of Appeals in the Eleventh Circuit (which includes Florida) has further defined the 'zone of danger' test.

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'

to bring a cognizable claim for bystander emotional distress. Azzi v. Royal Caribbean Cruises, No. 18 12644 (11th Cir., August 29, 2019). The Eleventh Circuit ruling is consistent with the view of the Fifth Circuit (including Texas and Louisiana) which ruled that

'[t]o 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.'

Naquin v Elevating Boats, LLC, 744 F.3d 939-40 (5th Cir. 2014). Thus, a crewmember, for example, 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 resulting from witnessing a traumatic event could potentially be compensable under 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.