The Roaring '20s Still Wrecking Our Lives

When I think about the 1920s, I think Charlie Chaplin, The Great Gatsby, Prohibition, silent movies, or this picture. It was a very different time. So I wonder why outdated and obsolete laws and standards originating in that time-period are still allowed to control our lives?

Take the Death on the High Seas Act, a 1920s law that protects the shipping industry (and oil companies with offshore rigs) from liability for deaths on the high seas. It severely limits compensation to families of anyone killed. We last wrote about it when Transocean – which employed 9 of the 11 workers killed in the 2010 Deepwater Horizon explosion – was asserting this law to get out of paying virtually any compensation to the families of those workers.

Sadly, this law is relevant again. Last week, an 8-year-old boy fell into a pool on Royal Caribbean International’s Anthem of the Seas cruise ship, and reports indicate that he is now on life support. Writes the Miami Herald, “The incident is another in a string of drownings and near drownings the major cruise lines have faced in recent years.… Most cruise ships, like hotels, don’t have lifeguards on duty.” (See more in Jeff Rossen’s Today Show report, “Why do some cruise ships lack lifeguards to watch children?”)

As explained in the Center for Justice & Democracy’s FAQ, “You Cruise, You Might Lose,”

The Death on the High Seas Act (DOHSA) is a law nearly a century old that is particularly cruel.  Under DOHSA, once a ship is beyond three nautical miles from shore, if someone dies due to the ship’s negligence, families are prohibited from recovering anything but “pecuniary loss” – mainly lost income or wages.… Perhaps the virtual lack of liability for the death of children is one reason why cruise lines lack the financial incentive to ensure the safety of swimming pools for children.

Ironically, if the child does not die and instead suffers severe brain damage, DOHSA will not kick in and the family will be able to sue and recover compensation – or, at least they will be governed by regular law. This is indeed what happened in 2013 after “a 4-year-old nearly drowned in a pool aboard the Disney Fantasy and suffered a brain injury. The incident resulted in a multi-million dollar settlement and lifeguards on all Disney ships.” Since this case, “Disney Cruise Line is the only major cruise company that employs lifeguards around pools.” Take note, families with small children.

Another 1920s law still making our lives miserable today is the Federal Arbitration Act – at least as interpreted by the current Supreme Court. Wrote Amalia D. Kessler, professor of law and legal history at Stanford University, “While the [1925 Federal Arbitration Act] was initially envisioned as applying primarily to disputes between commercial equals, since the 1980s, the United States Supreme Court has interpreted it in ways that have facilitated corporate America’s efforts to force consumers and employees into arbitration. This trend has accelerated in the last few years."

And as we noted in 2013 (extensively quoting a blog post by Paul Bland called “Worst Supreme Court arbitration decision ever”),

So, today, in American Express v. Italian Colors, the U.S. Supreme Court said that a take-it-or-leave-it arbitration clause could be used to prevent small businesses from actually pursuing their claims for abuse of monopoly power under the antitrust laws. Essentially, the Court said today that their favorite statute in the entire code is the Federal Arbitration Act, and it can be used to wipe away nearly any other statute.…

The decision is catastrophic for the antitrust laws, as well as for civil rights, consumer rights, and many other statutory rights. The decision is an unmitigated disaster, replacing adhesive contracts for an idea of actual law. The drafters of the FAA would not recognize what it has turned into.

Workers comp is another area of law that 1920s politicians enacted to try to make the world better but has become unrecognizable today. As ProPublica wrote,

In return for a measure of a security, workers gave up their right to sue their employers — even in cases of gross negligence — protecting businesses from lawsuit judgments that could bankrupt them. By 1920, nearly every state had enacted workers’ comp laws.

However, they report,

Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found.

The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.

Sounds like fodder for a new F. Scott Fitzgerald novel. Too bad he died 76 years ago.

Comments

[andrews]

The neat thing, at least in Florida, is that the insurance companies and employers may pay as much as they like to their lawyers in order to fight awards. On the other hand, the worker is barred from offering to pay more than a fraction of the award, and the atty violates the law if he accepts more.

Some recent cases did the math and found that the atty compensation for the worker was a bit less than $2/hour. These were extreme examples, where the medical treatment fought by the employer was cheap and the employer attys fought hard.

Expect more moaning and groaning in Tallahassee next spring. No, not from the employees. They don't have the funds. Rather, it will be the Associated Industries of Florida, and the Chamber, and other employer organizations, saying how paying $843 for the treatment ultimately ordered is likely to lead them to bankruptcy. The thousands for their atty to fight the $843? That only makes it worse, we need ``worker's comp reform'' now!