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Historically, the basic building blocks for a successful tort action have remained constant, wrongful death and maritime cases being no exception.
Historically, there was no common law right of action for wrongful death in either British or U.S.
By contrast, the modern wrongful death acts of U.S.
(17) Nevertheless, state and federal courts sometimes applied early state wrongful death laws to high seas fatalities.
The wrongful death action, on the other hand, involves the harm caused to certain beneficiaries of the deceased, not to the deceased himself, as the result of his wrongful death.
Higginbotham involved the question of whether the survivors of a person killed on the high seas could recover wrongful death damages for loss of society as well as pecuniary loss.
The 1970 case of Moragne, in which the Court created an action for wrongful death under the general maritime law, was based on the fundamental need for uniformity in the maritime law of wrongful death.
The following United States jurisdictions either explicitly or implicitly recognize a wrongful death action for the death of an unborn child by statute, state case law, or federal case law: Alabama, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, North Carolina, North Dakota, Nevada, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, Wisconsin, and West Virginia.
Whether a wrongful death action lies for the death of an unborn child hinges in large part on the gestational development of the fetus.
For instance, a Georgia court has applied a "quickening" test so that if a child was able to move in the mother's womb at the time of death, then a wrongful death action could lie.
Therefore, it ruled, general maritime law remedies for wrongful death do not preempt state law remedies for wrongful death in cases that involve non-seafarers in U.S.
While Yamaha allows plaintiffs to supplement federal maritime remedies with state wrongful death remedies, the Court did not decide whether federal standards of liability should be similarly expanded.