Death on the High Seas Act
By: Kreindler Legal Staff
- The Death on the High Seas Act (DOHSA) was passed in 1920, partly in response to the TITANIC disaster, in an effort to bring consistency to cases involving calamities at sea.
- DOHSA covers a wide array of legal issues from what constitutes territorial waters to recovery for loss of life and pecuniary loss.
- DOHSA as it applies to commercial aviation accidents was expanded to include recovery for loss of care, comfort and companionship, but punitive damages are not recoverable.
- The act continues to evolve to this day making it one of the more complex acts regarding disasters on, and over, open waters.
(Reprinted from Aviation Law)
Following the TITANIC disaster in 1912, it became obvious to Congress that recoveries for death on the high seas required some uniformity. Prior to the passage of the Death on the High Seas Act in 1920 (DOHSA), and after many revisions, there was little consistency. Naturally, the cases then all involved ship calamities. If one ship was involved, the law of the owner’s domicile was applied.1 When two vessels from the same state were involved, the state law applied.2 If the vessels involved were of different states, the law of the vessel at fault was applied.3
In one case, where any of three state death statutes were involved, the court threw up its hands.4 This was another reason that led to the passage of the DOHSA. Congress felt the need to join other maritime nations and have a rational law to apply on the “high seas,” construed then to mean seas beyond territorial waters, then three miles.
The Act, as passed, had several distinct features. Section 1 covered accidents causing death “beyond a marine league from the shore” (i.e., three nautical miles), or 6,080 feet, one-twentieth of a degree of latitude. Section 4 allows recoveries under foreign law, but following the filing of a limitation action by the United Kingdom-owned TITANIC, limitation for foreign vessels was disallowed. Section 7 states that DOHSA does not affect state remedies nor apply within the “territorial limits of any state.” The suit was to be brought “in admiralty” and, unlike the Jones Act for crew members, which was also passed in 1920, DOHSA allowed recovery for all dependent classes without priority to the nearer class.
As the law has developed since 1920, loss of accumulations has been recovered5 in addition to recovery for pecuniary loss. Some cases have allowed recoveries both under Section 1 and Section 4 where foreign law provides remedies in addition to pecuniary loss.6 For instance, both France and Italy permit recovery for not only economic losses, but moral damages, including loss of companionship and society.
Another controversial area involves deaths in foreign waters. Contrary to some legislative history, cases have applied DOHSA to foreign waters since they are beyond a marine league.7
The more recent Supreme Court decisions are restrictive. The court denied loss of society damages in Zicherman v. Korean Air Lines.8 The court denied pain and suffering prior to death in Dooley v. Korean Air Lines.9 Dooley left open whether the General Maritime Law will allow a survival action absent a statute to the contrary.10 Punitive damages are not recoverable in DOHSA aviation cases now by statute.
The statute expanded DOHSA in commercial aviation accidents and did so retroactively to cover the TWA 800 disaster in 1996, which occurred eight miles off the coast. The statute added loss of care, comfort and companionship in March 2000, but disregarded survival damages. State law is also available under the statute for accidents within the territorial sea of 12 miles. In 1988, responding to pressure induced by the Law of the Sea Convention (signed in 1994 by President Clinton, but not ratified) and the adoption of a 12-mile territorial sea by most nations, President Reagan issued the Territorial Sea Proclamation. The Proclamation extended the U.S. territorial sea to 12 nautical miles from the base lines of the United States and in this territorial sea, the United States exercises sovereignty and jurisdiction of the airspace.
By enacting the new remedies in 2000, it rendered moot the decisions holding that the TWA 800 tragedy, which occurred within the territorial sea, was not on the high seas.11 The new statute was applied to a commercial helicopter case,12 but state law will still not apply to DOHSA cases outside the territorial sea in aviation cases.13
DOHSA cases can be tried in state courts, presumably under state procedure, including jury trials under the Tallentire Case.14 Some Warsaw-DOHSA cases have allowed jury trials in federal court.15 The issue of removing a DOHSA case from state court to avoid a jury is discussed in Baris v. Sulpicio Lines.16
- Southern Pacific Co. v. DeValle DaCosta, 190 Fed. 684 (1st Cir. 1911).
- THE HAMILTON, 207 U.S. 398 (1907).
- LABOURGOGNE, 210 U.S. 95 (1908).
- THE MIDDLESEX, 253 Fed. 142 (D.C. Ma. 1916).
- National Airlines, Inc. v. Stiles, 268 F. 2d 400 (5th Cir. 1959).
- Carnival Cruise Lines v. Red Fox Industries, Inc., 813 F. Supp. 1185 (E.D. La. 1993); Heath v. American Sail Training Assn., 644 F. Supp. 1459 (D. R.I. 1986); Noel v. Linea Aeropostal Venezolana, 260 F. Supp. 1002 (S.D. N.Y. 1966).
- Cormier v. Williams/Sedco/Horn, 460 F. Supp. 1010 (E.D. La. 1978) (Peruvian river); Sanchez v. Loffland Brothers, 626 F. 2d 1228 (5th Cir. 1980), cert. den., (1981) (inland Venezuelan lake); see also, Howard v. Crystal Cruises, 41 F. 3d 527 (9th Cir. 1994), cert. den., (1995).
- 516 U.S. 217 (1996).
- 524 U.S. 116 (1998).
- In re Air Crash Off Point Mugu, California, 145 F. Supp. 2d 1156 (N.D. Ca. 2001).
- In re Crash off Long Island, (S.D. N.Y. 6/2/98), aff(d., 209 F. 3d 200 (2nd Cir. 2000).
- Brown v. Eurocopter S.A., 111 F. Supp. 2d 859 (S.D. Tx. 2000).
- Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986).
- See, Ledet v. United Aircraft Corp., 10 N.Y. 2d 258 (1981).
- In re Korean Airlines, 704 F. Supp. 113 (D. D.C. 1988), reversed on punitive damages, 932 F. 2d 1475 (D.C. Cir. 1991). A jury was not allowed when Tallentire was tried on remand, 800 F. 2d 1390 (1986).
- 932 F. 2d 1540 (5th Cir. 1991).