Claims Under the Death on the High Seas Act

DOHSA Applies to Deaths Beyond 3 Miles from U.S. Shore

The Death on the High Seas Act, DOHSA, applies “when the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from shore of the United States”. 46 U.S.C. §30302. Courts have interpreted this provision to refer to the site of an accident on the high seas, not to where death actually occurs or where the wrongful act causing the accident may have originated. Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987).

Deaths within three miles of shore are covered by state law, the Jones Act, or general maritime law wrongful death and survival provisions, which typically provide claimants substantially broader recovery than DOHSA.

DOHSA Allows Pecuniary Damages Only

DOHSA allows the decedent’s spouse, parent, child, or dependent relative to recover for “pecuniary loss” sustained by those individuals. Pecuniary losses are damages that can be calculated with some degree of precision, such as loss of financial support from the decedent.

In contrast to the vast majority of wrongful death and survival statutes, DOHSA does not allow for recovery of any damages suffered by the decedent. This means that pre-death medical expenses and funeral expenses are generally not recoverable since these are damages incurred by the decedent or the decedent’s estate, and not his or her family members. In some cases it may be possible to get around this if items like funeral expenses are paid by family members rather than the estate.

Damages under the Act are extremely limited, and unlike most other wrongful death and survival provisions, DOHSA prohibits recovery of non-pecuniary damages. Non-pecuniary damages are damages such as the decedent’s pre-death pain and suffering, and loss of consortium suffered by the decedent’s spouse. In non-DOHSA death cases, non-pecuniary damages often comprise the lion’s share of the case value. The unavailability of such damages under DOHSA can result in what many would consider unfairly low compensation for the families of those killed at sea. It is important to carefully evaluate every potential DOHSA case to see if an exception applies which would allow broader recovery under another type of wrongful death or survival claim.

DOHSA Preemption

If DOHSA applies, the Act is generally the exclusive remedy available. Claims cannot be brought under state law or general maritime law in conjunction with DOHSA. This concept is known as “preemption” because DOHSA “preempts” the laws of the states and maritime common law.

However, DOHSA does not preempt Jones Act death claims against a deceased seaman’s employer, which afford much broader remedies. However, claims against third parties arising from the seaman’s death may fall under DOHSA. Some courts have held that seaman may bring general maritime law death claims for injuries on the high seas, where claims are also brought under the Jones Act. For example, if two vessels collide at sea due to the negligence/unseaworthiness of both vessels, a deceased seaman’s surviving family may assert claims against the seaman’s employer under the Jones Act and doctrine of unseaworthiness, and claims against the other shipowner under DOHSA.

The Act also includes a provision expressly permitting claims under the laws of a foreign country along with or instead of DOHSA claims. The Act states:

When a cause of action exists under the law of a foreign country for death by wrongful act, neglect, or default on the high seas, a civil action in admiralty may be brought in a court of the United States based on the foreign cause of action, without abatement of the amount for which recovery is authorized.

46 U.S.C. §30306. Through this provision, Congress preserved the right to recover under the law of another sovereign nation for whatever measure of damages such law might provide, regardless of any inconsistency with the measure of damages under DOHSA. Courts have held that plaintiffs cannot bring DOHSA claims and foreign claims concurrently against the same defendant—plaintiffs must choose which scheme to proceed under. See Bergeron v. Koninklijke Luchtvaart Maatschappij, N. V., 188 F. Supp. 594 (S.D.N.Y. 1960). However, in a death case involving multiple defendants, the plaintiff may assert claims under DOHSA against certain defendants, and claims under foreign law against other defendants. See Noel v. Linea Aeropostal Venezolana, 260 F. Supp. 1002 (S.D.N.Y. 1966) (claimants recovered pain and suffering damages under Venezuelan law against Venezuelan airline, and DOHSA pecuniary damages against American corporation which serviced plane).

Limited Survival Actions Under DOHSA

DOHSA provides for extremely limited survival actions (i.e. claims by the decedent’s estate for damages suffered by the decedent). The estate is only allowed to assert claims for damages suffered by the decedent if the decedent files a lawsuit for personal injuries occurring on the high seas, and dies from those injuries during the pendency of that lawsuit. In this limited situation, the decedent’s estate is permitted to assert claims for the decedent’s pecuniary losses, such as medical expenses.

If someone is gravely hurt and may die due to high seas injuries, it is important to file a lawsuit as soon as possible to preserve claims for damages suffered by that person. Fatal injuries can result in complex and prolonged medical care, leading to astronomical medical expenses. The estate will lose the right to recover for these expenses unless the claim is filed prior to the decedent’s death. In cases involving potentially fatal injuries, it is important to consult with a knowledgeable maritime attorney as soon as possible. Ordinarily, you have three years from the date of the accident to file a death claim under DOHSA, but it may be a good idea to file much earlier in certain cases.

Special Rules for Commercial Aviation Crashes on the High Seas

As discussed above, DOHSA does not generally permit recovery of non-pecuniary damages, such as pain and suffering or loss of consortium. However, Congress amended the Act in 2000 to broaden the remedy in plane crash cases.

In commercial aviation death cases, DOHSA applies only to accidents beyond twelve miles from U.S. shore (as opposed to three miles). Claimants may now bring claims under state law or potentially general maritime law for plane crashes occurring within twelve miles of shore.

The 2000 amendments also broadened the damages recoverable in commercial aviation death cases. Claimants may now recover non-pecuniary damages for loss of care, comfort, and companionship of the decedent. The revised statute limited recoverable non-pecuniary damages to those suffered by the decedent’s family members, so commercial aviation death cases is still do not allow a claim for the decedent’s pre-death pain and suffering.

Potential Exceptions to DOHSA

Some cases have suggested that claimants are only bound by DOHSA as to “the high seas tortfeasor,” meaning the negligent party who caused the injury event at sea. This interpretation of DOHSA may allow claimants to assert broader state law wrongful death and survival claims against other negligent parties to the extent the death relates to shoreside events that caused death in combination with events on the high seas. See Garofalo v. Princess Cruises, 85 Cal. App. 4th 1060, 102 Cal. Rptr. 2d 754 (2000).

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