DOHSA not applicable to airplane crash in U.S. territorial waters

Law Reporter, Jun 2000

AVIATION

DOHSA not applicable to airplane crash in U.S. territorial waters.

In re Air Crash Off Long Island, New York, On July 17, 1996, -F.3d -, No. 98-9622,2000 WL 329022 (2d Cir. Mar. 29,2000).

The Second Circuit Court of Appeals held that the Death on the High Seas Act (DOHSA), 46 U.S.C. 761 et seq., which provides a right of action whenever a death occurs "on the high seas beyond a marine league" from the shore of the United States, does not apply to an airplane crash in U.S. territorial waters about eight miles from the U.S. coast.

Here, an airplane crash occurred about eight miles off the U.S. coast, killing all persons on board. The relatives and estate representatives of the passengers and crew members sued the airplane owner and manufacturer. Defendants moved to dismiss plaintiffs' claims for nonpecuniary damages, arguing that DOHSA applied and limited recovery to pecuniary damages. The trial court denied defendants' motion, concluding that DOHSA applied only where death occurred on both the high seas and beyond a marine league from shore, and that in this case the crash did not occur on the high seas.

Affirming, the Second Circuit rejected defendants' argument that the term "high seas" means all waters beyond the low-water mark and that, because the crash occurred both beyond the low-water mark and more than a marine league from the U.S. shore, DOHSA applies. The court noted that when DOHSA was enacted, the U.S. Supreme Court generally interpreted "high seas" to mean international or non-sovereign waters. The court said Congress's consistent reliance on Supreme Court decisions in setting the terms of the debate over DOHSA suggests that it understood "high seas" to mean international waters as well. Further, the Supreme Court continued to define "high seas" as international waters in the years immediately following DOHSA.

The court also found that defendants' definition would render "high seas" superfluous because there are no cases in which the low-water mark is not within a marine leaguethree nautical miles--of the coast. The court said Congress would not have retained two geographical boundaries in the statute when one-beyond a marine league-subsumes the other. Finally, defendants' interpretation would oust preexisting remedies for deaths in territorial waters, which may prove to be more generous than recovery under DOHSA. The court rejected this as inconsistent with the purpose of the statute, which was to supplement local statues and apply to waters they did not reach.

The court concluded that Presidential Proclamation No. 5928-which extended U.S. territorial waters to 12 miles from shore-moved the starting point of the application of DOHSA from three to 12 miles from the coast. The court noted that the background and legislative history of DOHSA demonstrate Congress's intent to exclude all state and federal territorial waters from its scope. Nothing in the statute's history or purpose provides a reason to fix the statute's scope to the boundary between U.S. territorial waters and nonterritorial waters as it existed when the statute was enacted, the court said. Further, it would be inconsistent to impose one remedial scheme over certain federal territorial waters-up to three miles-and a different remedial scheme over other federal territorial waters-from three to 12 miles.

Accordingly, the court remanded. Plaintiffil Counsel

*Steven R Pounian,

*Lee S. Kreindler,

*James P. Kreindler,

*Blanca I. Rodriguez, Jacqueline M. James,

*Frank H. Granito Jr.,

*Frank H. Granito III, and

*Michel F. Baumeister, all of New York, N.Y.

*Donald J. Nolan, Chicago, Ill.

*Richard F. Schaden, Broomfield, Colo.

*Jerome L. Skinner, Cincinnati, Ohio