If a plane crashes into the ocean, and no one witnesses the event, does it make a splash? In our modern era of aviation, numerous flights are made across the navigable waters surrounding the United States. On a daily basis you can find helicopters transporting workers to the oil rigs in the Gulf of Mexico, amateur pilots flying their planes on scenic tours of the Caribbean, or tourists and businessmen traveling on the early flight to London. While most of these flights will occur without incident, a few each year will inevitably end in disaster. This article will give a brief overview of the Death on the High Seas Act and its importance to an aviation attorney when a plane goes splash.
When a death occurs on the "high seas" of the United States, questions typically asked are if there is a cause of action, and if so, what remedies are available to be recovered for the death or injuries sustained. Historically at common law, there was no cause of action or remedy for a wrongful death or pre-death injuries. In 1886, the Supreme Court adopted these common law principals and held that in the absence of a statute a decedent's family was left with no remedy for a wrongful death that occurred on the high seas.[i] When a death occurred on the high seas, courts had to make a difficult decision to allow no remedy whatsoever, or apply a state wrongful death cause of action. In 1920, the United States Congress passed the Death on the High Seas Act (DOHSA), currently codified as 46 U.S.C. §§ 30301 – 30308. The purpose of the Act was to create a federal statue to allow a remedy for deaths on the high seas beyond three nautical miles from the shore of the United States and restore uniformity to maritime law.[ii]
DOHSA provides an exclusive remedy, and when it applies, preempts state wrongful death statutes and common law remedies.[iii] Under DOHSA, liability may be based upon negligence, intentional conduct, and strict or products liability.[iv] As long as a decedent's fatal injury occurs on the high seas beyond three nautical miles from the shore of the United States, it does not matter if the death occurs ashore or the alleged wrongdoing party's negligence is completely land based.[v] Despite the preemption of state causes of action, 46 U.S.C. § 30306 allows a cause of action to be brought "under the law of a foreign country for death by wrongful act, neglect, or default on the high seas." The purpose of this provision of DOHSA has been explained as not being a provision to allow a plaintiff to choose a more favorable foreign remedy, but a provision to prevent a foreign company from limiting its liability under the Act.[vi] However, the application of foreign law is often a point of contention between the parties, and when choice of law issues arise courts will follow the factors of Lauritzen v. Larsen, 345 U.S. 571 (1953) in determining the appropriate law to apply.[vii]
A DOHSA claim is a civil action in admiralty jurisdiction. Traditionally suits in admiralty jurisdiction are tried to the court and the plaintiff is not entitled to a jury.[viii] However, if the DOHSA claim is joined with a claim that carries a right to a jury trial, or is brought under diversity or another non-admiralty jurisdiction, all claims may be tried to a jury. The Plaintiff may file the action either in federal district court or in state court.[ix] A suit may be filed by the "personal representative" of the decedent on behalf of all potential beneficiaries.[x] The personal representative may by a spouse, administrator, or executor of the estate. The potential beneficiaries are limited by DOHSA. The individuals who may recover are listed in 46 U.S.C. § 30302 as the decedent's wife, husband, parent, child, or dependent relative. Each beneficiary may recover for those losses they suffered.[xi] 46 U.S.C. § 30303 states that recovery under DOSHA "shall be a fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought." Pecuniary damages under DOHSA have been found to include loss of support, services, and inheritance.[xii] Damages must be proved with reasonably certainty, supported by sufficient facts, so at to avoid speculation.
In the case of commercial aviation accidents, 46 U.S.C. § 30307 allows recovery of more than just pecuniary damages by a beneficiary in some circumstances. 46 U.S.C. § 30307(b) states that in a "commercial aviation accident occurring on the high seas beyond twelve nautical miles from the shore of the United States, additional compensation is recoverable for nonpecuniary damages, but punitive damages are not recoverable." 46 U.S.C. § 30307(a) states that "the term "nonpecuniary damages" means damages for loss of care, comfort, and companionship." However, if the "commercial aviation accident" occurs within twelve nautical miles of the shore of the United States 46 U.S.C. § 30307(c) states that DOHSA does not apply, and potential litigants then may be entitled to traditional state remedies.
In light of these increased benefits, 46 U.S.C. § 30307 fails to define "commercial aviation accident." Very few cases have interpreted the meaning of the phrase "commercial aviation accident" under DOHSA. The meaning of the phrase "commercial aviation accident" was found by the court in Eberli v. Cirrus Design Corp., 615 F.Supp.2d 1369 (S.D. Fla. 2009) to be ambiguous. That court proposed two different definitions for the phrase. One definition defined a "commercial aviation accident" as an "accident that occurs during the course of aviation involving commerce." The other definition defined a "commercial aviation accident" as "an accident that occurs during the transportation of passengers or cargo for commercial purposes." The court then determined that the "commercial aviation accident" provision was inapplicable in that case because the aircraft was precluded from being operated for compensation or hire. The court in Brown v. Eurocopter S.A., 111 F. Supp. 2d 859 (S.D. Tex. 2000), analyzed the plain meaning of the words: "commercial," "commercial activities," and "aviation" to determine that a crash of a helicopter performing air-taxi services to an offshore oil platform was a "commercial aviation accident" within 46 U.S.C. § 30307. Likewise, the court in Gund v. Pilatus Aircraft, Ltd., 2010 WL 887376 (N.D. Cal. 2010) determined that payment for a scenic tour flight, where no other common purpose was shared with the pilot, was sufficient evidence of a "commercial aviation accident," despite the pilot being unauthorized to conduct commercial flights.
In conclusion, the Death on the High Seas Act will limit recovery for fatal injuries that occur on the high seas beyond three nautical miles from the shore of the United States to pecuniary damages by a defined group of beneficiaries. While the term "commercial aviation accident" is not clearly defined, the Death on the High Seas Act will allow the defined group of beneficiaries in these incidents to additionally recover nonpecuniary damages for fatal injuries that occur on the high seas beyond twelve nautical miles from the shore of the United States. If the Death on the High Sea Act does not apply, traditional common law and state cause of actions may be available on navigable waters.
Samuel Higginbottom is an associate attorney at the law firm Banker Lopez Gassler PA. He practices in the areas of admiralty and maritime law, personal injury litigation, and property damage litigation.