APPLYING DOHSA TO AVIATION ACCIDENTS:
MORE UNSETTLED WATERS
Brian J. Alexander
Kreindler & Kreindler, LLP
New York, New York
Andrew J. Harakas
Clyde & Co US. LLP
New York, New York
Judith R. Nemsick1
Holland & Knight, LLP
New York, New York
The Death on the High Seas Act, 46 U.S.C. § 30301 et seq., (DOHSA)2 was enacted in
1920, primarily to provide a wrongful death cause of action to those who died in maritime
accidents. Since the 1940s, DOHSA also has been consistently applied to deaths resulting from
aviation accidents that occur on the high seas.3 In the mid to late 1990s, however, there was
significant disagreement over whether DOHSA, which limited recovery to pecuniary loss, should
continue to apply at all to aviation cases. Much of this disagreement stemmed from DOHSA's
potential application to wrongful death claims arising from several major commercial airline
accidents, including TWA Flight 800 off the coast of Long Island and Swissair Flight 111 near
Peggy's Cove, Nova Scotia.4 Congress responded in April 2000 with substantive amendments to
DOHSA that created rules particular to commercial aviation accidents. Specifically, for those
commercial aviation accidents that occur beyond 12 nautical miles from the U.S. shore, DOHSA
would continue to apply but the beneficiaries could now recover not only pecuniary damages,
but also nonpecuniary damages for the loss of care, comfort and companionship of their
decedent. For commercial aviation accidents that occur within 12 nautical miles from the U.S.
shore, DOHSA no longer applies and courts are left to conduct a choice-of-law analysis on the
applicable law in those cases.5
The carve-out for commercial aviation accidents, in addition to creating a disparity with
maritime and non-commercial aviation accident cases, has created many gaps and uncertainty in
the law. For example, there has been litigation over whether certain flights qualify as
"commercial aviation," a term undefined by the statute. Determining the law that should apply
when a commercial aviation accident occurs less than 12 miles from shore also presents a host of
issues, including whether general maritime law, state law or a combination of both may apply.
And, for non-commercial aviation cases, there remains a question regarding whether the starting
point of DOHSA should be three nautical miles from a U.S. shore. Several of these issues
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recently were addressed by district courts in California and Florida and the U.S. Court of
Appeals for the Ninth Circuit, and are discussed below.
I.
OVERVIEW OF DOHSA
DOHSA applies "[w]hen the death of an individual is caused by wrongful act, neglect, or
default occurring on the high seas beyond 3 nautical miles from the shore of the United States."
46 U.S.C. § 30302.6 When DOHSA applies, it will exclusively govern and preempt all other
claims. Notably, there is no survival action and thus no claim for pre-death pain and suffering
can be asserted. See Dooley v. Korean Air Lines Co., 524 U.S. 116, 124 (1998).
DOHSA provides that the personal representative is the party entitled to bring the
statutory action and sets forth a defined list of beneficiaries who may recover damages (i.e., a
spouse, parent, child or dependent relative), with damages apportioned in proportion to the loss
sustained by each.7 This list cannot be altered or expanded. Dooley, 524 U.S. at 122. To qualify
as a "dependent relative", courts have required proof that the decedent either had a legal
obligation or voluntarily contributed to the maintenance of the dependent's customary standard
of living. Oldham v. Korean Air Lines Co., 127 F.3d 43, 51 (D.C. Cir. 1997). If none of the
decedent's survivors qualify as an identified beneficiary, then there is no recovery under the
statute. For example, where a decedent is only survived by a sibling who was not financially
dependent on the decedent, there are no recoverable damages for that death.
Actions brought under DOHSA are governed by the three-year statute of limitation
applicable to all maritime tort claims.8 Contributory negligence of the decedent cannot bar
recovery, but may be considered in a DOHSA case and the award reduced accordingly.9
DOHSA preserves a representative's right to bring an action under applicable foreign law.10
Punitive damages are not recoverable because they are not considered a pecuniary loss sustained
by the parties;11 they also are expressly prohibited by the statute in commercial aviation cases
beyond 12 nautical miles from the U.S. shore.12
II.
RECOVERABLE DAMAGES UNDER DOHSA
To determine whether DOHSA governs a wrongful death action arising from an aviation
accident and, if so, the damages that are recoverable, a court must consider (1) whether the
accident involves "commercial aviation," and (2) the location of the wrongful act. Below is a
brief summary of the relevant permutations that should be considered in analyzing whether
DOHSA governs a case:
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Non-commercial aviation accidents:
0-3 miles from shore. DOHSA does not govern. State law, general maritime law, or a
combination of both may apply.
3-12 nautical miles. Plain text of DOHSA supports its application to wrongful acts that
occur "on the high seas beyond 3 nautical miles" from the U.S. shore. However, there is
a split among the federal Circuit Courts of Appeal on where the "high seas" begins, i.e.,
whether it should begin beyond federal territorial waters.13
Beyond 12 nautical miles. DOHSA governs. Punitive damages are not recoverable.
Commercial aviation accidents:
0-12 miles from shore. DOHSA does not govern. State law, general maritime law or a
combination of both may apply.
Beyond 12 nautical miles. DOHSA governs, and permits additional recovery for loss of
care, comfort and companionship of the decedent. Punitive damages are expressly
prohibited.
A.
Non-Commercial Aviation Cases: Pecuniary Damages
When parties are faced with a non-commercial aviation accident, the damages
recoverable under DOHSA are limited to the "fair and just compensation for the pecuniary loss
sustained by the persons for whose benefit the suit is brought." 46 U.S.C. § 30303. "Pecuniary
loss" is generally defined as "all the financial contributions that the decedent would have made to
his dependants had he lived." In re Air Crash Near Nantucket Island, Mass., on Oct. 31, 1999,
462 F. Supp. 2d 360, 366 (E.D.N.Y. 2006). This includes damages for: (1) loss of support, (2)
loss of services, (3) loss of parental nurture, (4) loss of inheritance, and (5) funeral or burial
expenses. Id. These damages are described below:
Loss of Support and Maintenance. Damages for loss of support and maintenance are
intended to compensate a claimant for all the financial contributions that the decedent
would have made to the claimant had the decedent lived.14
Loss of Services. Damages for loss of services are defined as the monetary value of
household services the decedent provided and would have continued to provide at home,
but for the wrongful death. Such household services include cooking, cleaning, lawn-
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care, household repairs and shopping performed by the decedent.15 Loss of services do
not include a component for loss of companionship, guidance and advice.
Loss of Parental Nurture. Loss of nurture damages are intended to compensate for the
loss of guidance, training, care and instruction the deceased parent would have provided
his/her child.16 Loss of nurture is essentially a loss of the services of a parent to a child
which is inherent in the parent-child relationship; a relationship to which the courts give
special recognition and protection. Damages for loss of nurture are considered to be
pecuniary because the guidance of a parent in matters material, moral and spiritual is of a
definite practical and financial value. Loss of nurture is separate from loss of a parent's
society and companionship and does not include damages for the emotional loss of
growing up without a parent.
Loss of Inheritance. DOHSA and most state wrongful death statutes allow for the
recovery of loss of inheritance. In order to recover damages for loss of inheritance, the
beneficiary must prove that the decedent would probably have accumulated property and
that the beneficiary would have inherited that property.17 In the case of a deceased child,
courts require evidence to overcome the presumption that parents will predecease their
children.
Funeral and Burial Expenses. While not technically a loss suffered by the beneficiaries
of the DOHSA decedent, funeral and burial expenses have been held by the courts to be
recoverable under DOHSA.18
Nonpecuniary damages, including grief and loss of society, are not recoverable.
Zicherman v. Korean Air Lines Co., 516 U.S. 217, 230 (1996). Damages for pre-death pain and
suffering also are not recoverable. Dooley, 524 U.S. at 124.
B.
Commercial Aviation Cases: Pecuniary Damages Plus Loss of Care, Comfort
and Companionship
In commercial aviation cases where DOHSA governs (i.e., the accident occurred beyond
12 nautical miles from the U.S. shore), the beneficiaries may recover the pecuniary damages
outlined above and also nonpecuniary damages for the "loss of care, comfort and
companionship" of the decedent. This term has generally been considered similar to "loss of
society" damages in analogous maritime wrongful death actions. See In re Air Crash Near
Nantucket Island, Mass., on Oct. 31, 1999, 307 F. Supp. 2d 465, 468 (E.D.N.Y. 2004) (citing to
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Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585 (1974)). Damages for mental anguish or
grief are not recoverable. Id.
III.
DEFINING A "COMMERCIAL AVIATION" ACCIDENT
Whether an aviation accident qualifies as a "commercial aviation" accident under
DOHSA has significant ramifications on damages issues, including whether punitive damages
may be pursued. For those commercial aviation accidents within 12 miles from the U.S. shore,
DOHSA does not govern. Plaintiffs then will seek to have the most beneficial law govern the
claims, whether it be state law, general maritime law, or a combination of both. Punitive
damages also may come into play. And, for those commercial aviation accidents beyond 12
nautical miles, DOHSA applies and allows recovery for the "loss of care, comfort and
companionship" of the decedent, but punitive damages are expressly prohibited.
There are few decisions that have addressed the "commercial aviation" issue. The most
recent is Gund v. Pilatus Aircraft, Ltd., 2010 WL 887376 (N.D. Cal. Mar. 11, 2010). In Gund, a
small, single-engine aircraft crashed off the coast of Costa Rica during an aerial sightseeing tour,
resulting in the deaths of the pilot and all five passengers. Two actions were brought by the
pilot's family and the passengers' family against the manufacturers of the aircraft (Pilatus
Aircraft, Ltd. and Pilatus Business Aircraft, Ltd.) and the turbo-prop engine (Pratt and Whitney
Canada Corp.) (PWC). Plaintiffs for the passengers also sued the estate of the pilot and his
company. There was evidence that the passengers paid for the sightseeing tour even though the
pilot was not licensed in Costa Rica to operate commercial flights.
PWC moved for partial summary judgment, contending that DOHSA governed these
lawsuits, that this was not a "commercial operation" under DOHSA, and therefore only
pecuniary damages could be recovered. The court had to determine first whether DOHSA
applied and, if it did, whether remedies beyond pecuniary loss were available. The passenger
plaintiffs argued that under § 30307, the crash constituted a "commercial aviation" accident,
which would allow them to recover nonpecuniary damages. The pilot plaintiffs, however, urged
the court to apply § 30306, which allows for the application of foreign law. Here, the law of
Costa Rica would allow recovery for economic loss and moral damages.
The court recognized that federal courts from Texas and Florida, see Brown v.
Eurocopter S.A., 111 F. Supp. 2d 859 (S.D. Tex. 2000) and Eberli v. Cirrus Design Corp., 615 F.
Supp. 2d 1369 (S.D. Fla. 2009), have grappled with the definition of "commercial aviation"
accident under DOHSA.
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Brown dealt with the crash of a helicopter that was ferrying two platform workers from
one fixed oil platform to another as part of an "on-demand" air taxi service in the Gulf of
Mexico. The Brown court relied on dictionary definitions and the FARs to conclude that the
helicopter crash was a "commercial aviation accident." Under the FARs, "commercial activities"
is defined as "any type of business or activity which is carried on for a profit," and a
"commercial operator" is defined as "a person who, for compensation or hire, engages in air
commerce of persons or property." 14 C.F.R. § 1.1. After reviewing the regulations for
"commuter or on-demand operations," the Brown court found that a "Part 135 on-demand air taxi
service is plainly a 'commercial operation' as that term is used throughout the FAR," and,
therefore, the helicopter crash constituted a "commercial aviation accident."
In Eberli, the issue was whether the crash of an aircraft being ferried for delivery to a
purchaser constituted a commercial aviation accident. The court found it did not because the
operating instructions attached to the aircraft's certificate of airworthiness prohibited it from
carrying passengers or property for hire. Because "commercial purposes" is defined in the
transportation code as "transportation of persons or property for compensation or hire," the court
concluded that ferrying the aircraft could not, by definition, be commercial.
PWC, relying on the legislative history of AIR 21 (the bill that added the "commercial
aviation" provision to DOHSA), contended that Congress intended to limit its application to
mass disasters involving transport aircraft and fare-paying passengers. The Gund court,
however, saw nothing to suggest that Congress intended to restrict the definition beyond that
which is implied by the adjectives "commercial" and "aviation." The court found the plain
language unambiguous such that there was no need to consider the legislative history. The court
stated that the plain meaning of the statutory text and the definitions in the regulations clearly
demonstrated that a flight's "commercial" character "hinges on profit or compensation", and that
under the FARs, a flight that carries passengers for compensation is commercial.
The court found that the evidence showed that Gund charged money for the sightseeing
excursion; no evidence was presented that the charges were intended to only cover the
passengers' pro rata share of expenses. Although Gund was not authorized to conduct
commercial flights in Costa Rica, his lack of credentials did not dictate the commercial nature of
the flight. The passengers paid for the flight and the pilot did not share a common purpose with
them.
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IV.
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DOHSA'S APPLICATION TO NON-COMMERCIAL AVIATION ACCIDENTS
WITHIN 3-12 NAUTICAL MILES FROM SHORE
The U.S. Court of Appeals for the Ninth Circuit recently issued an opinion that created a
conflict with the Second Circuit on the applicable starting point of DOHSA in a non-commercial
aviation case. In Helman v. Alcoa Global Fasteners Inc., 637 F.3d 986 (9th Cir. 2011), personal
representatives of three Navy crewmen killed in a 2007 helicopter crash 9.5 miles off the coast of
California brought an interlocutory appeal challenging the district court’s grant of a motion to
dismiss and a motion for judgment on the pleadings, which found that plaintiffs' state law and
general maritime claims for wrongful death were preempted by DOHSA. Id. at 988-89. In
granting the motions, the district court held that DOHSA applies to noncommercial aircraft
accidents beyond three nautical miles from shore and that Presidential Proclamation No. 5928,
which extended the territorial sea of the United States from three to twelve nautical miles from
shore, did not alter DOHSA's applicability. Id.
Only the Second Circuit had previously addressed the issue of DOHSA's applicability to
this intermediate area. Id. at 989-90. It held that "high seas" as used in DOHSA referred to
international waters and therefore Proclamation 5928 changed DOHSA’s inner-boundary to
twelve miles from shore. Id. (citing In re Air Crash Off Long Island, New York, on July 17, 1996,
209 F.3d. 200, 202, 215 (2d Cir. 2000) (hereinafter "TWA Flight 800 case")). In dissent, thenJudge Sotomayor reasoned that Congress did not intend to use the international law definition of
“high seas” in drafting DOHSA and therefore DOHSA’s scope was unaffected by Proclamation
5928. Id.
The Ninth Circuit noted that DOHSA left the phrase "high seas" ambiguous. Helman,
637 F.3d at 990. Rather than attempt to assign a firm meaning to it, the Court looked to the plain
text of the statute and found that DOHSA's inner-boundary is at three nautical miles. Id.
Following the Sotomayor dissent in the TWA Flight 800 case, the Ninth Circuit noted that
DOHSA does not indicate an intention to incorporate the concept of territorial waters referenced
in Proclamation 5928, and urged that a more natural reading of the statute suggests "that the term
'high seas' is defined for purposes of the statute by the explicitly stated geographic boundary of
'beyond three nautical miles' from shore." Id. at 990-91. Unlike territorial seas, "high seas" "has
no apparent, independent, geographical significance, other than perhaps to emphasize that the
boundary beyond which DOHSA applies is the point where U.S. territorial waters ended at the
time of enactment." Id. at 991.
The Court drew further support for this interpretation from recent Congressional
amendments to DOHSA. Congress amended DOHSA in 2006 after issuance of Proclamation
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5928 and chose to leave the geographic boundary of DOHSA at three nautical miles. Id.
Moreover, Congress' decision to exempt commercial airline accidents on the high seas 12
nautical miles or less from the shore of the U.S. coast "would be wholly unnecessary unless
DOHSA was otherwise applicable to the area specified in the amendment." Id. Both of these
amendments were made after the decision in the TWA Flight 800 case.
Finally, the Court interpreted the history surrounding Proclamation 5928 and its language
as suggesting that it was not intended to shift the geographical boundary of DOHSA. Id. at 992.
The Proclamation expressly states that it does not "extend[] or otherwise alter[] existing Federal
or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom." Id. A
legal opinion issued by the Department of Justice regarding the Proclamation similarly
emphasizes this limitation. Congress amended certain maritime statutes in light of Proclamation
5928, but not DOHSA. Id.
Following the Ninth Circuit's decision in Helman, no other circuit has addressed this
issue, but the TWA Flight 800 case remains valid precedent and there is now a split between the
two sister circuits that have addressed the issue.
V.
CONCLUSION
Although well-intentioned, the amendments to DOHSA have resulted in several
unresolved legal questions. The amendments notably have created a special class of "commercial
aviation" accident plaintiffs whose recovery will substantially differ from plaintiffs in maritime
and non-commercial aviation cases. Because of this distinction, several courts have had to
interpret the meaning of "commercial aviation" to determine whether the plaintiffs may recover
nonpecuniary damages. The amendments also left unaddressed the question interposed in "noncommercial aviation" cases as to the starting point of the "high seas". Disparities such as these
may result in inconsistent damages awards based on the location of the accident or the forum of
the lawsuit. Further amendment by Congress or clarification by the courts ultimately may be
necessary for more consistent results.
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ENDNOTES
1.
Brian is a partner at Kreindler & Kreindler LLP; Andrew is a partner and head of the U.S.
Aviation Law practice group at Clyde & Co US LLP; and Judy is a partner at Holland & Knight
LLP.
2.
References to DOHSA before 2006 were found at 46 U.S.C. § 761 et seq.
3.
See, e.g., Zicherman v. Korean Air Lines, 516 U.S. 217 (1996); Offshore Logistics, Inc. v.
Tallentire, 477 U.S. 207 (1986); Mobil Oil v. Higginbotham, 436 U.S. 618 (1978); Miller v.
United States, 725 F.2d 1311 (11th Cir. 1984); Lindsay v. McDonnell Douglas Aircraft Corp.,
460 F.2d 631 (8th Cir. 1972); D'Aleman v. Pan Am. World Airways, 259 F.2d 493 (2d Cir.
1958); In re Air Crash Near Nantucket Island, Mass., on Oct. 31, 1999, 462 F. Supp. 2d 360
(E.D.N.Y. 2006); In re Air Crash Disaster Near Peggy's Cove, Nova Scotia on Sept. 2, 1998, 210
F. Supp. 2d 570 (E.D. Pa. 2002); In re Air Crash Disaster Near Bombay on Jan. 1, 1978, 531 F.
Supp. 1175 (W.D. Wash. 1982); Hammill v. Olympic Airways, S.A., 398 F. Supp. 829 (D.D.C.
1975); Wilson v. Transocean Airlines, 121 F. Supp. 85 (N.D. Cal. 1954); Choy v. Pan-Am.
Airways, 1941 WL 76457, 1941 A.M.C. 483 (S.D.N.Y. Mar. 26, 1941).
4.
TWA Flight 800 crashed approximately 8 nautical miles off the coast of Long Island. TWA
argued that DOHSA governed the death claims, and limited recovery to pecuniary loss. Public
outrage ensued because many children had died on the flight, leaving parents who could prove
little economic loss from their children's deaths.
5.
The DOHSA amendments in April 2000 were made retroactive to July 16, 1996 to ensure that
they covered the wrongful death cases arising from TWA Flight 800. In 2006, Congress made
minor amendments to and recodified DOHSA within Title 46.
6.
Before 2006, the statute read "on the high seas beyond a marine league from the shore of any
State, or the District of Columbia, or the Territories or dependencies of the United States." 46
U.S.C. § 761. (A marine league is 3 nautical miles.) Consistent with this broad language,
DOHSA has been applied to accidents in foreign territorial waters. See, e.g., Howard v. Crystal
Cruises, Inc., 41 F.3d 527, 529 (9th Cir. 1994); Jennings v. Boeing Co., 660 F. Supp. 796, 803
(E.D. Pa. 1987), aff'd, 838 F.2d 1206 (3d Cir. 1988)(Table); Fredriksson v. Sikorsky Aircraft
Corp., 2009 WL 2952225, at *15 (D. Conn. Sept. 2, 2009); Air Crash Disaster Near Peggy's
Cove, 210 F. Supp. 2d at 578; Air Crash Disaster Near Bombay, 531 F. Supp. at 1182.
7.
46 U.S.C. § 30303. A stepchild may recover as a dependent relative, but not as a child. See
Allen v. Egyptair, Inc. 2003 WL 21913235, at *2 (E.D.N.Y. Aug. 8, 2003).
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8.
46 U.S.C. § 30106 (2006) (“Except as otherwise provided by law, a civil action for damages for
personal injury or death arising out of a maritime tort must be brought within 3 years after the
cause of action arose.”).
9.
Id. at § 30304.
10.
Id. at § 30306.
11.
See Miller v. Am. President Lines Ltd., 989 F.2d 1450, 1457 (6th Cir. 1993); Bergen v. F/V St.
Patrick, 816 F.2d 1345, 1347 (9th Cir. 1987); Tandon v. United Air Lines, 968 F. Supp. 940, 944
(S.D.N.Y. 1997), aff'd, 159 F.3d 1348 (2d Cir. 1998)(Table); Jennings, 660 F. Supp. at 802.
12.
46 U.S.C. § 30307(b).
13.
Compare Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 (9th Cir. 2011) with In re Air
Crash Off Long Island, N.Y., on July 17, 1996, 209 F.3d. 200 (2d Cir. 2000).
14.
In re Air Crash Near Nantucket Island, Mass. on Oct. 31, 1999, 2002 WL 32302598, at *2
(E.D.N.Y. May 23, 2002).
15.
Id.
16.
Id. at *3 (recovery for loss of nurture damages has generally been limited to minor children).
17.
Id.
18.
Id.
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