Tom Galligan has posted to SSRN Death in Admiralty. The abstract provides:
This is an article about legal history: the development of the law governing recovery for wrongful death in American admiralty law. Simultaneously, because the discussion spans the time period from 1865 to the present, it is a piece about the current state of the law. But it is also a lament. It is a lament that despite notable efforts, Congress and the United States Supreme Court have not provided full and fair recovery for the survivors of those whose deaths resulted from maritime torts because those survivors often cannot recover loss of society damages. The Court, relying on a vague notion of uniformity, has interpreted statutes designed to provide remedies as bars to recovery for loss of society damages even though the vast majority of States allow recovery for loss of society in wrongful death cases. The Court has ignored statements in earlier opinions, and it has de-emphasized the role of the federal courts in judicially developing maritime law. Concomitantly, because loss of society damages may be recoverable in some maritime wrongful death cases, the jurisprudence is a mishmash of confusion and contradiction. And, critically, the Court has apparently forgotten the humane and liberal character of maritime law providing that it is better to provide a remedy than deny one.