The Differences Between Texas And Maritime Law Wrongful Death And Survival Damages

This article was originally published by the Texas Association of Defense Counsel (TADC) for its 2026 Spring magazine. You can read the full version of the publication here.

The legal remedies provided to family members who survive a person who died as the result of negligence or wrongful acts can vary and are often dependent on the circumstances surrounding the death. In Texas, the survival and wrongful death claim framework is well established and is likely more familiar, at least conceptually. But when the deceased was a seaman or died on navigable water, a different body of law may apply entirely—one with its own rules about who can recover, what they can recover, and how much. This article analyzes the differences between the wrongful death and survival damages available under Texas law and those available pursuant to federal maritime law—specifically the Jones Act, the Death on the High Seas Act (“DOHSA”), and general maritime law.

The Texas Framework

Texas wrongful death and survival law is built on a straightforward premise: when a person is killed by the negligent or wrongful conduct of another, the law should compensate both the family members who suffered the loss and the estate of the person who died. Texas accomplishes this through two distinct causes of action that are often pursued simultaneously.

The Texas Wrongful Death Act creates a cause of action whenever a death is caused by a “wrongful act, neglect, carelessness, unskillfulness, or default.”¹ Importantly, the claim must derive from whatever personal injury claim the deceased could have brought had they survived. If the deceased would not have had a viable claim² against the defendant while alive, there is no viable wrongful death claim. Texas does not provide a common law right to a wrongful death claim; it is purely statutory.³

Recovery under the Texas Wrongful Death Act is limited to three categories of people: the surviving spouse, children, and parents of the deceased.⁴ Siblings, grandchildren, and other relatives—no matter how close the relationship—are not included. Any one or more of the eligible beneficiaries may file suit, but the suit must be brought for the benefit of all eligible claimants. If none of the eligible individuals files within three calendar months of the death, the executor or administrator of the decedent’s estate may—and in most cases must—bring the action on their behalf.⁵

Texas wrongful death damages fall into two broad categories: economic losses and non-economic losses. Economic damages are designed to compensate the statutory beneficiaries for tangible, measurable losses, including:⁶

• Loss of financial support the deceased would have provided over the course of their lifetime;
• Loss of household services, such as childcare, home maintenance, and other contributions that must now be replaced;
• Loss of advice, counsel, guidance, and practical support;
• Costs incurred by surviving family members as a direct result of the death, such as mental health treatment; and
• Loss of inheritance—the present value of what the deceased would likely have accumulated and left to the statutory beneficiaries had they lived a natural lifespan.

Non-economic damages—often the most significant component of a wrongful death award—compensate for losses that cannot be reduced to a dollar figure, including:⁷

• Mental anguish: the emotional pain, torment, and suffering experienced by the survivors as a result of the death; and
• Loss of companionship and society, meaning the positive benefits of love, comfort, and closeness that the beneficiaries have lost.

Non-economic damages are often awarded per survivor, and jurors can be given considerable discretion in valuing them. The circumstances of the death, the nature of the relationship, and the documented impact on each surviving family member can all play a significant role in the jury’s assessment.

Texas law permits punitive damages in wrongful death cases where the defendant’s conduct was grossly negligent, malicious, or fraudulent. The standard of proof is “clear and convincing evidence”—higher than the preponderance standard that would apply to other elements of the case.⁸ In Texas, punitive damages may not exceed the greater of: (1) two times economic damages plus an amount equal to non-economic damages found by the jury, not to exceed $750,000; or (2) $200,000.

Separate from the wrongful death claim, Texas law also allows a survival action.⁹ Where a wrongful death claim compensates the surviving family members for their own losses, a survival action compensates the estate for what the deceased suffered and lost before death. The distinction is important; these are different injuries belonging to different parties. Damages available in a Texas survival action include:

• Physical pain and suffering endured between the time of injury and death;
• Mental anguish experienced by the deceased before death;
• Medical expenses incurred as a result of the injury;
• Funeral and burial expenses; and
• Lost earnings from the time of injury to the time of death.

The strength of a survival claim can be determined by what the deceased experienced before they died. If death was instantaneous or if the deceased was never conscious following the injury, pain and suffering damages would be minimal. If the deceased regained consciousness, experienced the incident, or lingered for any period, the potential award could increase significantly.

The Maritime Framework

Maritime law operates under a distinct set of rules that often reflect its history of balancing the interests of seafarers against those of ship owners and employers. The maritime framework is not a single law. In this instance, three particular sources are relevant: the Jones Act (a federal statute protecting seamen), the Death on the High Seas Act (DOHSA, another federal statute applying to deaths occurring outside of U.S. territorial waters), and general maritime law (a body of common law).

Who Is a “Seaman” and Why It Matters.

The most important threshold question is whether the deceased was a “seaman.” Generally speaking, a seaman works as a crew member aboard a vessel that is in navigation—contributing to the vessel’s function and spending a substantial portion of their time working on the water. Longshoremen, harbor workers, and shoreside employees typically do not qualify as seamen.

This matters because the Jones Act—which provides the most robust set of remedies for maritime workers—applies only to seamen. Workers who are not seamen may still have claims under maritime law, but the remedies and damage caps may be different.

The Jones Act.

The Jones Act, enacted by Congress in 1920, gives seamen (and, if the seaman dies, the seaman’s personal representative) the right to sue their employer or the vessel owner for negligence.¹⁰ It is modeled on the Federal Employers’ Liability Act (FELA) the law that governs railroad worker injury claims, and it incorporates FELA’s structure—including its wrongful death and survival provisions—almost entirely.¹¹

A very important and practical consequence of this structure is that the Jones Act preempts state wrongful death statutes for seamen (hence the topic of this article). A seaman’s family cannot bring a Texas Wrongful Death Act claim against the seaman’s employer. Instead, the family’s remedies come from maritime law.

Under the Jones Act, only the court-appointed personal representative of the deceased seaman may file the wrongful death claim.¹² The personal representative acts as a trustee for the designated beneficiaries; the personal representative does not bring the claim for the estate itself, but only for the benefit of the beneficiaries identified in the statute. Any award recovered under the Jones Act does not pass through the deceased’s estate.¹³ It goes directly to the designated beneficiaries and is not subject to the deceased’s debts or distributed under inheritance law.

The beneficiary structure under the Jones Act is hierarchical. The tiers, in order of priority, are:

• First, the surviving spouse and children of the deceased seaman;
• Second, the parents of the deceased (only if there is no surviving spouse or children); and
• Third, dependent next of kin (only if there is no surviving spouse, children, or parents).

For example, a parent whose child was a Jones Act seaman can only recover under the Jones Act if the seaman left behind no spouse and no children.¹⁴ If the seaman left behind even one child, the parents are entirely cut out of the Jones Act claim—regardless of how close the relationship was or how much financial support the parent may have received from the seaman.

Damages Available Under the Jones Act.

The Jones Act limits wrongful death damages exclusively to pecuniary losses—economic harms that can be measured in dollars. Specifically, pecuniary damages under the Jones Act include loss of financial support the seaman would have provided to the beneficiaries; loss of household services, including the value of parental nurture and guidance for minor children; and funeral expenses. Non-pecuniary damages, including loss of society, loss of companionship, and loss of consortium, are not available. Additionally, the Jones Act does not allow damages for mental anguish or loss of companionship of surviving family members.

Like Texas law, the Jones Act also provides a survival action—a claim for what the seaman suffered and lost before death.¹⁵ Survival damages under the Jones Act include lost wages, (earned and unearned) at the time of death and conscious pain and suffering the seaman experienced before dying. As with Texas survival claims, the key question is whether the deceased was conscious and experienced the injury before dying. A seaman who died instantly or never regained consciousness will generate minimal survival damages. However, a seaman who was aware of their injuries and suffered presents a much stronger survival case.

The Death on the High Seas Act (DOHSA).

The Death on the High Seas Act was enacted in 1920, the same year as the Jones Act, and applies specifically to deaths that occur on the high seas—meaning more than three nautical miles from the U.S. coastline.¹⁶ If a seaman or any other person dies in waters beyond that boundary, DOHSA provides the wrongful death remedy. DOHSA applies only to wrongful death claims. It does not create a survival action, and it is not limited to seamen, unlike the Jones Act. Anyone who dies on the high seas may be covered, including a crew member, a passenger, or a recreational boater.

DOHSA provides a cause of action for the exclusive benefit of the deceased’s spouse, parent, child, or dependent relative.¹⁷ Importantly, parents are listed directly—without any requirement that they prove financial dependency on the deceased. Dependency is required only for more distant relatives, who fall into the “dependent relative” category.

Like the Jones Act, DOHSA limits recovery to pecuniary losses only. Courts have consistently held that non-pecuniary damages—loss of companionship, loss of society, and emotional distress of survivors—are not available under DOHSA. The permitted damages are the measurable financial losses that the beneficiaries suffered as a result of the death: lost support, lost services, and funeral expenses, same as the Jones Act.

General Maritime Law.

General maritime law is best thought of as a body of common law. For most of American history, general maritime law provided no cause of action for wrongful death. That changed in 1970, when the U.S. Supreme Court ruled in Moragne v. States Marine Lines, Inc. that general maritime law does recognize a wrongful death remedy, and that a wrongful death cause of action was needed to eliminate the anomaly of allowing recovery for non-fatal injuries but not for deaths.¹⁸

General maritime law is relevant in cases where the Jones Act alone does not provide a complete remedy. A seaman’s estate might bring a general maritime wrongful death or survival claim if the death was caused by an unseaworthy vessel (a separate theory of liability from negligence) or if the defendant is someone other than the seaman’s employer. Non-seamen who die in territorial waters—close to shore but not covered by DOHSA—may also rely on general maritime law.

The most significant development in general maritime wrongful death law came in 1990, when the Supreme Court decided Miles v. Apex Marine Corp.¹⁹ In that case, a mother brought a wrongful death and survival claim after her son, a Jones Act seaman, was stabbed and killed aboard a vessel. She sought, among other things, damages for loss of society. The Supreme Court held that there is no recovery for loss of society in a general maritime wrongful death action for the death of a Jones Act seaman. The reasoning was straightforward: Congress, in passing the Jones Act, chose to limit wrongful death recovery to pecuniary damages. It would be inconsistent—and constitutionally problematic—for the courts to create a broader remedy through general maritime law than Congress allowed under a parallel statute. The result was a uniform rule across the Jones Act, DOHSA, and general maritime law that wrongful death damages for seamen are limited to pecuniary losses.

This means that no matter which maritime theory applies in a case involving a Jones Act seaman, the surviving family members will not recover damages for grief, emotional pain, or the loss of a loved one’s presence in their lives. Those categories of loss are simply not compensable under federal maritime law for deceased seamen.

General maritime law does recognize a survival action, and it is available in cases where the Jones Act alone is insufficient—for example, when a seaman’s death results from an unseaworthy vessel or from the negligence of a third party who is not the employer. Survival damages under general maritime law follow the Jones Act and provide damages for pre-death conscious pain and suffering, and lost wages.

If the person who died was not a seaman—a harbor worker or longshoreman—and the death occurred in territorial waters (within three nautical miles of shore), a different damages framework may apply. In a Supreme Court decision (Sea-Land Services, Inc. v. Gaudet, 1974), prior to Miles, loss-of-society damages were permitted in general maritime wrongful death claims for non-seaman who died in territorial waters.²⁰ Miles narrowed that holding, but the remedy remains available in certain non-seaman cases. This distinction is subtle but consequential for cases involving workers who were not crew members and died within U.S. territorial waters.

Texas Law v. Maritime Law

The following comparison highlights the key distinctions.

Who Can Recover?

Under Texas law, the eligible beneficiaries are the surviving spouse, children, and parents—all three groups simultaneously, without any hierarchy. A parent does not have to establish that no surviving spouse or children exist before pursuing their claim.

Under the Jones Act and DOHSA, the structure is more rigid. The Jones Act uses a hierarchical system: if a surviving spouse or children survive the deceased, parents receive nothing under the Jones Act. DOHSA lists parents among the eligible beneficiaries, but again, recovery is limited to pecuniary losses.

The parent of a Jones Act seaman who is survived by a spouse or child cannot be the beneficiary of the Jones Act wrongful death claim. A parent in that situation could pursue a general maritime law claim, but even then, the damages are limited to pecuniary losses, and the parent must demonstrate actual financial dependence on the deceased to recover.

Wrongful Death Non-Economic Damages.

Texas law allows full non-economic damages in wrongful death cases: mental anguish, grief, loss of companionship, loss of society. Under maritime law, however, the rule is uniform that non-pecuniary damages are not available for Jones Act seamen, regardless of whether the claim is brought under the Jones Act, DOHSA, or general maritime law.

In practical terms, this means that the non-economic damages that often drive large verdicts in Texas wrongful death cases are simply not available in a Jones Act seaman case, and generally for most wrongful death claims brought under maritime law. Instead, the damages case becomes built on expert testimony about future earnings, support, and household services.

Texas law allows punitive damages for gross negligence, subject to the caps described above. The maritime framework, however, is more complicated. Under the Jones Act, DOHSA and general maritime law, punitive damages have historically been unavailable in wrongful death cases—the courts have generally held that the pecuniary limitation on damages prevents punitive awards. As a general matter, beneficiaries pursuing a Jones Act wrongful death claim should not count on or even plead punitive damages.

Survival Damages.

Both Texas and maritime law recognize survival claims and the categories of damages overlap significantly—pre-death pain and suffering, and lost earnings from the time of injury to death. The strength of a survival claim under either system depends heavily on the facts of the death. If the deceased was rendered immediately unconscious and died quickly, survival damages will be limited. Medical and funeral expenses are recoverable under both systems.

A notable difference is that Texas law expressly permits recovery for loss of enjoyment of life, which could provide an additional measure of recovery.

The Role of the Personal Representative.

Under Texas law, the surviving spouse, children, and parents can each bring their own wrongful death claim, or one may sue on behalf of all. Under the Jones Act, only the personal representative of the estate may bring the wrongful death claim, and the representative acts as a trustee for the beneficiaries—not for the estate itself. Individual beneficiaries do not have standing to sue; they must proceed through the representative. Settlement authority also rests exclusively with the representative, with only narrow exceptions where a beneficiary may act independently.²¹

When a death occurs in or around navigable waters, state wrongful death statutes are likely preempted, and the framework of maritime law will dictate the claims, beneficiaries, and available damages. For those navigating a maritime death claim, it is important to keep the differences discussed in mind.

Footnotes

1. Tex. Civ. Prac. & Rem. § 71.001 et. seq.

2. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992).

3. Castillo v. Hidalgo County Water District No. 1, 771 S.W.2d 633 (Tex. App.—Corpus Christi 1989).

4. Tex. Civ. Prac. & Rem. § 71.004.

5. Id.

6. See, e.g., Halliburton Company v. Olivas, 517 S.W.2d 349 (Tex. Civ. App.—El Paso 1974, no writ); see also Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex.1986).

7. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex.1986).

8. See, e.g., Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921–922 (Tex. 1998); THI of Texas at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 581 (2010).

9. Tex. Civ. Prac. & Rem. § 71.031.

10. 46 U.S.C. § 30104.

11. 45 U.S.C. § 51.

12. See Hassan v. A.M. Landry & Son, Inc., 321 F.2d 570 (5th Cir. 1963).

13. See Lindgren v. United States, 281 U.S. 38 (1930); Friedman v. McHugh, 168 F.2d 350 (1st Cir. 1948); Rowston v. Oglebay Norton Co., 180 F. Supp. 803 (N.D. Ohio 1960).

14. Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455 (5th Cir. 1985); see also In re American River Trans. Co., 490 F.3d 351 (5th Cir. 2007).

15. Rohan for Rohan v. Exxon Corp., 896 F. Supp. 666 (S.D. Tex. 1995).

16. 46 U.S.C. § 30302.

17. MacLay v. M/V SAHARA, 926 F. Supp. 2d 1209 (W.D. Wash. 2013).

18. 398 U.S. 375 (1970).

19. 498 U.S. 19 (1990).

20. 414 U.S. 573 (1974).

21. Benoit v. Fireman’s Fund Ins. Co., 355 So.2d 892 (La.

1978).