Aviation Deaths on the High Seas: Continuing Questions and Recent Developments
April 11, 2024
By: Vincent C. Lesch, Partner, Kevin J. Mahoney, Partner
Aviation crashes that occur on the high seas are subject to unique aspects of maritime law that must be carefully considered when prosecuting the case. This article will focus on one important maritime statute: the Death on the High Seas Act, 46 U.S.C. §30301, et seq. (DOHSA), including its all-important Commercial Aviation Exception. This article will also analyze two unresolved procedural issues in DOHSA cases: whether and when they are removable to federal court and whether a DOHSA plaintiff has a right to a jury trial.
What Is DOHSA and When Is It Applicable?
When a fatal aviation crash occurs on the “high seas,” i.e., three nautical miles from the shores of the United States, claims stemming from that crash are governed by DOHSA. See Zicherman v. Korean Air Lines, 516 U.S. 217, 231, 116 S. Ct. 629, 113 L. Ed. 2d 596 (1996). Under maritime common law, there was historically no cause of action for wrongful death, and because state wrongful death statutes only applied within each states’ territorial jurisdiction, there was no remedy for beneficiaries who lost a loved one on the high seas. After the Titanic disaster in 1911, Congress enacted DOHSA to provide a uniform remedy for such losses. DOHSA’s remedy is therefore exclusive and cannot be supplemented by general maritime law or other state law claims when it applies. See Offshore Logistics v. Tallentire, 477 U.S. 207, 232, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986); Mobil Oil v. Higginbotham, 436 U.S. 618, 622–26 (1978).
DOHSA originally applied when the death took place “on the high seas beyond a marine league” from the shore of the United States and provided for recovery of only pecuniary damages by the decedent’s spouse, parent, child or dependent relative, with no recovery for any pain and suffering or other damages suffered by the decedent themselves. 46 App. U.S.C.A. §§761- 62 (amended and re-codified to 46 U.S.C. §§30302-03). Similar to New York’s wrongful death statute, see N.Y. E.P.T.L. §5-4.3, there is no non-pecuniary recovery for surviving beneficiaries, which therefore excludes important damage elements like grief, sorrow, or loss of care, comfort and companionship.
TWA 800 and the Commercial Aviation Exception
Congress amended DOHSA in 2000 as the result of another devastating tragedy: the crash of TWA Flight 800 on July 17, 1996. TWA 800 went down eight miles from the shore of Long Island, which appeared to make DOHSA applicable to the crash. DOHSA applied to the “high seas beyond a marine league” and a marine league was equivalent to three miles.
Since the passage of DOHSA in 1920, however, two significant changes had occurred. First, the United States Supreme Court had created a wrongful death claim under general maritime law. See Moragne v. States Marine Lines, 398 U.S. 375 (1970). Second, the dividing line between United States territorial waters and international waters had been changed from three nautical miles to 12 nautical miles by Presidential Proclamation adopting the new international standard. This raised the question of whether the meaning of “high seas” in DOHSA had been changed by the proclamation, and whether a crash had to be both on the “high seas” and more than three nautical miles from shore for DOHSA to apply. If so, then DOHSA would not preempt a wrongful death claim under state law or maritime common law from applying to claim for TWA 800.
The New York federal district court hearing the TWA 800 claims sided with plaintiffs and held that DOHSA applied only when a death occurred both on the high seas and beyond a marine league from shore. Further, it held that the extension of U.S. territorial seas from three miles to 12 miles beyond shore changed the meaning of “high seas” in DOHSA, and consequently, DOHSA did not apply to TWA 800. In re Air Crash off Long Island, Case No. 96 Civ. 7986(RWS), 1998 WL 292333 (S.D.N.Y., June 2, 1998). The Second Circuit affirmed. In re Air Crash off Long Island, 209 F.3d 200, 209-211 (2d Cir. 2000).
Within a month of the publication of the decision from the U.S. Court of Appeals for the Second Circuit, Congress amended DOHSA by adding the “Commercial Aviation Exception.” P.L. 106-181, §404; 46 App. U.S.C.A. §§761(b) and 762(b)(1)-(2). The exception provided additional “nonpecuniary damages” for loss of care, comfort and companionship in cases where “the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore” of the United States. 46 App. U.S.C.A. §762(b)(1)-(2).
The exception further provided that DOHSA would no longer apply at all to a “commercial aviation accident” that occurred “on the high seas 12 nautical miles or closer to shore”—rather, “the rules applicable under Federal, State, and other appropriate law shall apply.” 46 App. U.S.C.A. §§761(b).
In crafting the Commercial Aviation Exception to DOHSA, Congress clearly defined what new “nonpecuniary damages” would be available for deaths that triggered the exception. The exception failed, however, to define “commercial aviation accident,” leaving the courts to determine what kinds of aviation crashes would trigger the exception beyond 12 nautical miles and what types of crashes within 12 nautical miles from shore would be exempted from DOHSA entirely.
Congress further amended DOHSA in 2006 to change the phrase “beyond a marine league” to “beyond three nautical miles.” This notably reinforced the original boundary of DOHSA’s application, notwithstanding the presidential proclamation changing the boundary between U.S. and international waters that had proven decisive in the TWA 800 case.
As the law presently stands, therefore, only pecuniary damages under the original version of DOHSA are available for non-commercial aviation deaths occurring from three nautical miles to 12 nautical miles. As explained above, commercial aviation deaths in that geographic location do not fall under DOHSA at all. 46. U.S.C. 30307(c).
What is ‘Commercial’ Aviation?
The obvious situations where the Commercial Aviation Exception applies are ones that were the primary impetus for the exception’s creation: the crash of large commercial flights, such as TWA 800 or Egypt Air Flight 990. If a commercial flight operated by a large airline and full of fare-paying passengers crashes the requisite distance from the shores of the United States, then the exception would clearly apply, and the beneficiaries of those decedents could recover the broader set of nonpecuniary damages under Section 30307.
Perhaps similarly obvious is the purely private situation when the Commercial Aviation Exception would not apply. For example, a private aircraft owned entirely by its pilot is being flown by the owner/pilot from his home airport in the United States to the Caribbean for a personal vacation when it crashes into the sea more than 12 nautical miles from the United States due to a product defect. The owner/pilot is the only one onboard, there were no fare paying passengers, and the pilot was not paid to operate the flight for some commercial purpose. Therefore, the Commercial Aviation Exception would not be triggered, and the pilot’s beneficiaries in this scenario would be limited to only original DOHSA’s pecuniary damages. If the pilot’s surviving beneficiaries were not dependent on him, then the damages case would be challenging.
The difficult questions arise in cases that fall somewhere between these two “commercial” extremes. One such case was Eberli v. Cirrus Design, 615 F. Supp. 2d 1369 (S.D. Fla. 2009).
In Eberli, a licensed commercial pilot crashed off the coast of Greenland while ferrying a new Cirrus SR 20 airplane manufactured in the United States to its foreign purchaser abroad. The decedent pilot had been hired by the manufacturer (Cirrus) to arrange for pick-up and delivery of the aircraft, and the foreign purchaser had agreed to pay the pilot for the cost of his services. The crash took place on the high seas more than 12 nautical miles from the shore of the United States, so DOHSA applied. The parties disputed, however, whether the flight was “commercial” such that it would trigger the Commercial Aviation Exception and entitle the deceased pilot’s survivors to nonpecuniary damages.
Despite the seemingly commercial nature of the Eberli flight, the court ultimately concluded that DOHSA’s Commercial Aviation Exception did not apply. It decided that the exception’s language in Section 30307 was ambiguous and that analyzing only its plain language left the provision subject to two different reasonable interpretations.
On one hand, the exception could apply to any aviation accident involving commerce, as plaintiff argued. On the other hand, however, it could also be interpreted to apply only to an accident that occurs during the transportation of passengers or cargo for commercial purposes, as defendant argued. Because the Eberli court found the language of the Commercial Aviation Exception itself was ambiguous, it analyzed extrinsic sources to help interpret the statute’s language.
The Eberli court found another federal statutory provision instructive: 49 U.S.C. § 40125 defined “commercial purposes” as “the transportation of persons or property for compensation or hire…” This supported the defendant’s interpretation.
While the Eberli plaintiff argued that the aircraft itself was property that the pilot was transporting for hire, the court ultimately disagreed because of a unique aspect of the paperwork provided for planes being exported. Every aircraft manufactured in the United States is given a Certificate of Airworthiness (COA) by the Federal Aviation Administration (FAA). The Eberli aircraft was given an export COA that contained limitations on how the aircraft could be operated in the course of being exported, including that the aircraft was prohibited from being operated to carry passengers or property for compensation or hire. The court relied on this fact and 49 U.S.C. §40125 to rule that the Eberli crash was not “commercial aviation,” despite involving a commercial pilot being paid to transport an aircraft from its seller to its buyer.
Other courts have reached the opposite conclusion about the same statutory language but different facts. More recently in Horsley v. Bell Textron, for instance, a court found that the Commercial Aviation Exception was not ambiguous, and that the crash in question triggered the exception based on the plain meaning of the statute. See Case No. 4:19-cv-00772-O, 2021 WL 8999000, *4-8 (N.D. Tex., July 20, 2021).
The pilot in Horsley was a paid commercial pilot transporting Chevron employees to and from oil platforms in the Gulf of Mexico so that the employees could perform their job duties. Despite the seemingly obvious commercial nature of the flight that resulted in the crash, the Horsley defendants argued that the impetus for enacting the Commercial Aviation Exception was a direct response to the large airline crashes in the 1990s, and therefore the phrase “commercial aviation accident” should be limited to accidents like TWA 800.
The Horsley court considered several other cases interpreting the commercial exception, and ultimately disagreed with defendants and the Eberli court. The Horsely court found that analyzing legislative history was unnecessary because the Commercial Aviation Exception’s language was unambiguous, and adopted a broad interpretation of the plain meaning of “commercial” as that which “related to or is connected with trade and traffic or commerce in general [or is] occupied with business or commerce.” This definition readily covered a situation such as the one in Horsley, where although the passengers did not purchase tickets like on an airline, the flight was clearly in connection with business or commerce.
A Potential Solution: Harmonizing Damages for All Deaths on the High Seas
While the overall trend in interpreting the Commercial Aviation Exception seems to be towards the broader plain meaning approach of Horsley, there is still a surprising lack of case law in this area. Only a handful of trial court decisions have squarely addressed the meaning of “commercial” for the purposes of DOHSA’s Commercial Aviation Exception, and there do not appear to have been any appellate court decisions. The Commercial Aviation Exception has existed since 2000, yet in the intervening 24 years, little progress has been made in confirming the meaning of one of its most basic elements.
Rather than waiting for precedent to answer this question over ensuing decades, one way to resolve this issue would be for Congress to amend the statute itself to further define “commercial.” An even better solution, however, would be to make the exception the rule. In other words, amend DOHSA to provide for both pecuniary and the nonpecuniary damages presently available in only commercial aviation cases to all victims of death on the high seas.
Revising DOHSA to broaden the damages available in all cases not only avoids the current confusion about the scope of the Commercial Aviation Exception, but also corrects the disparity between aviation and non-aviation deaths on the high seas. Presently, the survivors of a death resulting from an accident aboard a cruise ship more than 12 nautical miles offshore would only be able to claim pecuniary damages, because there is no comparable exception to DOHSA’s pecuniary only damages regime outside commercial aviation. Why a life lost aboard a cruise ship is worth less than one lost in a commercial aviation accident is difficult if not impossible to justify.
While there is currently proposed legislation to amend the Commercial Aviation Exception to apply also to cruise ship cases, see, e.g., S. 1085, 118th Cong. (2023), a revision to broaden the damages in all DOHSA cases would accomplish the same goal more simply than further complicating an exception.
This kind of revision to DOHSA should sound familiar to New York practitioners who have been following the efforts to broaden the damages available under New York’s wrongful death statute. The New York Legislature has recently passed two different bills that would have expanded recoverable wrongful death damages to include nonpecuniary recoveries, see, e.g., the Grieving Families Act, S74A, 2021-22 Leg. Sess. (N.Y. 2021), but those bills have been vetoed by Governor Kathy Hochul.
In the same way nonpecuniary damages would bring fairness to wrongful death recoveries for New Yorkers, amending DOHSA to provide nonpecuniary damages to all Americans would correct a similar injustice in our legal system.
DOHSA’s Procedural Impact
DOHSA does not only affect the damages available to a plaintiff. The statute also can have significant procedural effects on a dispute. Today, courts are debating two key procedural questions surrounding DOHSA: (1) whether and when the claims may be removed to federal court and (2) whether DOHSA claimants have a right to trial by jury.
Without dispute, a DOHSA plaintiff may proceed with their claims in a state venue. Tallentire, 477 U.S. at 232. And, historically, because DOHSA does not give rise to “federal question” jurisdiction, such claims were viewed as non-removable, unless a defendant had an independent basis for subject matter jurisdiction, such as diversity. See Ryan v. Hercules Offshore, 945 F. Supp.2d 772, 778 (S.D. Tex. 2013). This is because Congress’s removal statute, 28 U.S.C. § 1441(b) was previously viewed as providing only two bases for removal: (1) diversity jurisdiction; and (2) federal question jurisdiction. Because non-diverse DOHSA claims fell under neither category, they were viewed as non-removable.
However, in 2011, Congress amended its removal statute, removing the reference to “arising under” jurisdiction but still permitting defendants to remove “any civil action brought in a state court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. §1441(a) (emphasis added).
Relying on this amendment, many defendants now argue, with some success, that because federal courts have “original jurisdiction” over DOHSA claims, they are, in fact, removable regardless of the existence of diversity. See, e.g., Ryan, 945. F. Supp.2d at 778-79.
The question, however, remains unsettled. That is because, in maritime cases, Congress “sav[es] to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. §1333(1). Courts have interpreted this “saving to suitors clause” to grant maritime injury plaintiffs the right to proceed with their federal maritime claims in state court.
To preserve this right, many courts still prohibit removal of DOHSA cases to federal court, despite the §1441 amendments. For example, in Riyanto v. Boeing, 638 F. Supp. 3d 902, 905 (N.D. Ill. 2022), survivors of a Boeing plane crash in the Java Sea sued Boeing in Illinois, where its principal place of business was at the time. Under the forum-defendant rule, the case was not removable under diversity jurisdiction. 28 U.S.C. §1441(b)(2).
However, Boeing also attempted removal under §1441(a), asserting that the amended statute gave it the power to remove DOHSA cases to federal court. The district court rejected this argument and remanded the case. It held that the plaintiffs’ invocation of the savings-to-suitors clause insulated the case from removal on admiralty jurisdiction, despite the §1441(a) amendments. Riyanto, 638 F. Supp. 3d at 909-10.
The court reasoned that Congress would not “alter the historic understanding” of the saving-to-suitors clause absent clear indications it intended to do so (internal quotation marks omitted). But see Ryan, 945 F. Supp. 2d at 778 (permitting removal of DOHSA case under §1441(a)).
The removal question is particularly important because a federal venue can have considerable procedural consequences. Most importantly, it can result in the loss of a sacred procedural right, which does not apply in admiralty courts: trial by jury. This is exactly what happened in In re Lion Air Flight J10 Crash, No. 18-c-07686, 2023 WL 3653218 (N.D. Ill. May 25, 2023). On Oct. 29, 2019, Lion Air Flight JT 610 crashed in the Java Sea because of the now-infamously faulty MCAS system in Boeing 737 MAX. Numerous lawsuits followed, including one that was removed by Boeing from state court and another that was filed initially in federal court.
The federal district court held that DOHSA applied to the two claims and, as a result, neither plaintiff had a right to a jury trial. It reasoned that, under the language of DOHSA, such claims proceed “in admiralty” where no jury right exists under the Seventh Amendment. The plaintiffs, in response, asserted that they should be able to proceed on the “law side” of the federal court because there was subject matter jurisdiction under the diversity statute, 28 U.S.C. §1332. The court rejected this argument, reasoning that plaintiffs’ sole claims arose under DOHSA and therefore only can proceed “in admiralty” in federal courts under the statute’s language.
Notably, as of the publication of this article, the jury issue in In re Lion Air is not resolved. While the court said the cases would be tried to the bench, it certified the jury trial issue for an interlocutory appeal. That appeal is presently pending before the U.S. Court of Appeals for the Seventh Circuit. See Buehler v. Boeing, 23-2359 (7th Cir. 2024).
Tread Lightly
Aviation wrongful death cases can be tricky business, but DOHSA adds additional layers of complexity. As such, practitioners must carefully determine whether DOHSA might apply and then decide how best to leverage or resist its application.
Authors
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Vincent C. Lesch
Vincent Lesch works on a variety of state and federal personal injury, wrongful death, and complex products liability matters with a focus on seeking justice for those injured or killed in major aviation accidents. Vince has played an active role in numerous commercial airline, military, and general aviation cases, including the disappearance of Malaysia Airlines Flight 370, the fatal 2018 Helicopter Crash in New York’s East River, and Southwest Airlines Flight 1380. He is currently working on the Boeing 737 MAX 8 Ethiopian Airlines Flight 302 litigation.
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Kevin J. Mahoney
Kevin Mahoney represents plaintiffs in complex multimillion-dollar wrongful death and personal injury matters in the United States and throughout the world. His experience covers a wide array of transportation litigation involving airliners, military aircraft, general aviation aircraft, air tour operations, maritime vessels and tractor-trailers.
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