Ten Degrees of Reckoning (24 page)

In 1920 the United States Congress passed the Death on the High Seas Act. “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league [three nautical miles] from the shore of any state, or the District of Columbia, or the territories or dependencies of the United States, the representative may maintain a suit for damages.”

It appeared to be a forward-thinking act, and in 1920 it most likely was. It made it easier for the widows of merchant seamen to recover what the “breadwinner” would have earned for the rest of his working life, when death occurred in international waters. Damages are confined to pecuniary (economic) damages only, and DOHSA does not allow for punitive damages, also known as exemplary damages. Punitive damages are a sort of punishment intended to discourage a defendant and are usually awarded when the defendant has done something destructive. Even if the circumstance of a seaman’s death was due to a wrongful act or the employer’s neglect, DOHSA did not allow punitive damages to be brought against an at-fault party in international waters.

To be clear, then, the Death on the High Seas Act is still in effect and was relevant to Judy’s civil suit. She was confined to seeking pecuniary damages only: the projected future earnings of Mike and the fair market value of the
Melinda Lee.
Her children were not wage earners; their lives were worth nothing according to DOHSA. It also did not allow for recovery for the grief, mental anguish, pre-death pain and suffering, and loss of love and companionship. The defendants also argued that, according to DOHSA, the
Melinda Lee
crew contributed to the accident (contributory negligence). Therefore her pecuniary award “may be reduced accordingly.”

Judy was determined to fund a foundation that would support international maritime safety, and she fought on, despite the fact that her recoverable damages would be limited. Her attorney fought on as well, determined to include compensation for intentional failure to rescue, negligent failure to rescue, and wrongful death. Judy was well represented by him; he was an experienced and skillful maritime attorney, and passionate about her story and her welfare. He was simply heavily restricted by DOHSA.

No one could have expected that a piece of legislation from 1920, which limits amendment remedies and does not take into account the realities of modern-day travel, could affect not only recreational boaters but airline and cruise ship passengers, too, whenever they venture one marine league, or three nautical miles, from United States shores.

The families of passengers aboard a Trans World Airlines flight learned about the restrictions of the Death on the High Seas Act in 1996. TWA Flight 800, a Boeing 747 bound from New York to Paris, exploded minutes from takeoff and plunged into the sea nine miles off Long Island Sound, on July 17, 1996. All 230 people aboard were killed. Their relatives discovered that DOHSA applied to aviation accidents beyond the three-nautical-mile limit and did not allow punitive damages to be brought against the airline or the manufacturer. Included in the passenger list were sixteen members of a high school French club. The families of the students, and of any other children aboard, learned they could be deprived of any compensation other than funeral expenses. Their children, like Ben and Annie, were not wage earners, and their parents could assert little actual pecuniary loss with their deaths.

Relatives of the passengers from the TWA crash contacted their senators; the impetus for congressional hearings in 1997 to amend DOHSA came from this aviation disaster. Judy was still doing battle, and there was hope her case could be expanded to include punitive damages. But the Senate did not pass the amendment after those hearings. The bill languished in the Senate Commerce Committee, and ironically it was a senator from Mike’s home state of Washington, Slade Gorton, who strongly opposed any changes; after all, Washington was also the home of Boeing.

By contrast, Senator Ron Wyden of Oregon had been deeply affected by the devastating circumstances of the story when John Sleavin, hoping for a United States presence in the investigation, had first written to him. Senator Wyden had remained interested in the outcome. He contacted John and suggested that John speak before the next Senate hearing on DOHSA, scheduled for April 1998. Judy’s trial was scheduled for May of that year.

It was the end of November 1997. Judy had just returned to New Zealand for the second anniversary of the collision. She received a call from her attorney in San Francisco. He told her he had just been informed that the defendants had subpoenaed her medical and psychiatric records.

“But my psychiatrist in Seattle told me that she wasn’t taking notes, in case of litigation.”

He asked what could be in the notes. Judy told him that she couldn’t remember specifically, but that she had not concealed any of her feelings. She might have talked about family and friends, venting about petty things that irked her, as a substitute for the rage over the
Pan Grace
and the sorrow over Mike, Ben, and Annie. He told her everything could be used, and perhaps she might want to ask family and friends to stay away from the trial.

“Do you mean to say that they’re going to do their best to remove absolutely everybody from my life, until I have no emotional support whatsoever?” she asked in disbelief.

With that as leverage, another mediation session was scheduled for January 1998. Judy had wanted to wait until May for the trial, since John Sleavin would be testifying before the Senate in April. She totally trusted John and knew him extremely well; he and his wife, Kathi, had taken her on their honeymoon in France when she had to flee New Zealand after noticing her stalker.

John accompanied Judy to the mediation in January. At an earlier mediation she had been offered an annuity, but she had made it very clear that she was interested only in a lump sum, which she would need to fund her future maritime safety foundation. Despite this, the entire first day was spent with a representative hired to talk about annuities. Judy was ready to leave. John reassured her it was only a method of wearing her down for the next day. He told Judy that, after viewing all her medical records, they would be aware of her vulnerabilities: her lack of concentration skills, her anxiety and hypervigilance in unfamiliar surroundings. They had purposely scheduled the mediation in a small, window-less room where she would feel confined and helpless.

The second day the approach was similar, and the amount of money offered was far from what she should reasonably expect. Among the pressures brought to bear were excerpts from her counseling sessions. Predictably, as the mediation progressed, Judy fell apart.

“I’m done, I’m done!” John remembers her crying. “What more do you want from me?”

Judy got up to leave, and John rose with her. The mediator realized this was not some tactic, that she was indeed “done.” He promised he would bring the mediation to a successful conclusion within the hour.

On January 9, 1998, in the county of San Francisco in the State of California, Judy settled with the Pan Ocean Shipping Company, discharging them from any further actions related to the deaths of her family and her personal injuries. The Pan Ocean Shipping Company never apologized.

On April 22, 1998, John Sleavin testified before the Senate Commerce Committee. It was too late to benefit Judy, he knew; he was there to represent all future maritime victims. By all accounts his testimony was riveting. Several committee members offered emotional condolences and sincere thanks for John’s participation, but no changes were made to the Act.

Another aviation accident brought the consequences of DOHSA to light again. A Swissair plane, bound from New York to Geneva, crashed five miles off the coast of Nova Scotia, and all 229 people aboard were killed. Two years later, the United States Congress passed an amended version of the Death on the High Seas Act into law. It was still restrictive, but “loss of care, comfort and companionship” were added to recoverable damages. Senator Ron Wyden had remained fervent in his support of the Sleavin family’s cause, but the amendment applies only to aviation accidents. Maritime casualties are not included.

But, cruise ships are not immune to catastrophic accidents. There have been collisions, fires on board, groundings, and even a pirate attack one hundred miles off the coast of Somalia. Someday there could be a significant disaster. Cruise ships may carry as many as three thousand passengers, many of whom are retirees; as non-active wage earners, they would have the same burden as children to prove any pecuniary damage.

Excluding any concern with the effects that DOHSA would have in a maritime catastrophe, complicated ownership arrangements and flag-of-convenience ship registration—widespread among the cruise industry—have created extreme uncertainty over accountability in any incidents.

Judy called me immediately after the final mediation. She wondered if I could fly to California. When we met, she was happy to see me but distressed.

“I threw in the towel,” she said.

I told her I admired her strength of purpose.

“The psychiatrist told me she wouldn’t take notes, in case of litigation, but there they were, with quotation marks around my comments! I couldn’t afford to lose anyone else, and who knows how I might have vented?”

Later, I made every effort to learn how such a standard of medical ethics could be breached, but to no avail.

At the time, I told Judy I thought she had behaved courageously in such a stressful situation. She was not consoled. She reiterated that she wanted to have a foundation with a global impact. She wanted to establish shipping lanes near busy harbors in countries where they didn’t exist. She wanted to dredge out narrow channels. She wanted to set up schools to train future maritime crews in nations where the education wasn’t offered. She wanted to inform recreational boaters how to be meticulously prepared.

“I promised I’d help,” I said, “and we can start a foundation that will have an impact, one small program at a time.”

In 1999, Judy, Maureen Lull, and I set up the Sleavin Family Foundation, funded by Judy. Maureen and I were just as passionate as Judy. Maureen elected to give up most of her civil engineering projects, and I resigned from my position at the University of Washington. We vowed that in the names of Mike, Ben, and Annie, we would do everything in our power to learn, educate, and inform, so that no one would ever have to die as they did, and no one would ever have to suffer as Judy did. Judy helped behind the scenes as we set up presentations, consulted on safety issues, wrote articles, and researched new equipment. We met with shipping executives and Coast Guard personnel who encouraged and supported our mission, and provided us with perspective and crucial data. We learned from and shared information with conscientious and talented recreational boaters in yacht clubs and power squadrons who meticulously prepared for a daysail or a race or a motoring holiday. We learned from and shared information with accomplished and exceptional offshore sailors. We gained indispensable understanding from scrupulous and diligent professional mariners, and collaborated with them to set up cooperative programs that would begin to build a maritime community and support safety at sea for everyone. Judy knew she could never reconstruct her old life, but it helped her to know that she might save the lives of others.

Twenty-one

Reflections

WHAT KIND OF TRAVEL STORIES DO YOU TELL ABOUT yourself when all the main characters are gone? If your story is not only exotic but exceptional and terrifying, you have the opportunity to tell a public tale. Judy certainly was inundated with offers: authors, filmmakers, documentarians, and newspapers from all over the world made requests. Interest was high, and often sympathetic. A filmmaker in Quebec presented the idea of having his sister, a nurse, sit with Judy throughout the making of a documentary he wished to produce for the Canadian Broadcasting Corporation. But Judy refused every offer. She didn’t want to be the next tragedy of the week, an expression given to misfortunes that become well known and then are tossed aside. Other than a short, gracious memo she sent to one of the popular television shows in Auckland, Judy remained silent, and all the details went untold. She needed to form a new identity before she became the story itself in everyone’s eyes. Whenever she asked my advice about going public, I told her she would know when the timing was right. For me, she already had her new identity. She was the only real mermaid I would ever know, mysteriously arising out of the sea, wounded, to transform herself over and over again.

Judy is not uncomplicated. She has no filter when it comes to sharing gossip with her Wild Girls, such as the Internet dating habits of widows. She dishes up her daily interpersonal dramas, mostly for their entertainment value.

It is the details withheld, the ones Judy suppresses, that are essential to those who want to help her manage her life. When I ask Judy why she doesn’t tell these cherished friends that it takes her two days of crying to recover from the visits with their children, she just shakes her head.

“The Wild Girls tell me that it hits them in the heart when you’re so loving toward their kids. But they want to look out for you as well. Some information about your emotional state would help them figure out ways to support you,” I suggest.

“I can’t tell them. I don’t want to be left out of anything,” she replies.

Judy is more practical than philosophical, buoyed more by self-determination and accomplishment than by self-reflection. I think this is what saved her. She records more than she interprets, and this allows her to stay in the moment rather than worry and dissect the consequences or ramifications of things that happen. Out there, alone, on top of a partially inflated dinghy, in huge seas, ravaged and battered by the deaths of her loved ones, she took on the tasks at hand and waited to ask the big question “Why?” until after she was safely rescued. “Why?” wouldn’t have helped, and the mind trips taken in any introspective moments might have taken her farther out to sea.