Death on the High Seas

When a person is killed on the “high seas” due to a wrongful act, federal law provides a remedy in the Death on the High Seas Act, 46 U.S.C. §30302. “High seas” is generally defined as beyond the territorial waters of any of the fifty states, that is, 12 miles or more off shore. It generally also applies to deaths occurring on the waters of other nations.

            Many maritime causes of action are available only to seaman, and not to passengers. The DOHSA is available to both passengers and crew. Importantly, the DOHSA applies to victims of commercial aviation accidents, where the aircraft crashes on the high seas.

            (Note: Where the death occurs with a state’s territorial waters, there may still be a claim under “general maritime law”, provided negligence or similar fault caused the death.)

            A DOHSA claim is brought by the executor of the victim’s estate, and it is brought for the benefit of the victim’s surviving dependent relatives. So the claim cannot result in recovery for, by way of example, the victim’s brother or sister, unless that sibling was the victim’s dependent.

            DOHSA claims are often brought in federal district court, under the rules governing admiralty claims. Suits in admiralty are decided by a judge, not by a jury. However, under the “savings to suitors clause”, some of the federal courts allow jury trials for DOHSA claims, while other courts do not. A DOHSA claim can be brought in state court, and joined with state causes of action for wrongful death. Since in state court there will be a right to a jury trial, no DOHSA case should be brought in federal district court without first determining whether that court will allow a jury trial, assuming the plaintiff wants a jury trial.

            To win damages, a plaintiff in a DOHSA case must prove a “wrongful act” on the part of the defendant, leading to the death. For passengers, showing negligence (“carelessness”) is sufficient, and this can be proven in many ways, as discussed in my related articles. Where the victim was a seaman, DOHSA remedies are available where there was unseaworthiness, and where there was so-called “Jones Act negligence”. Unseaworthiness and Jones Act negligence are generally much easier to prove than straight negligence.

            Damages: the DOHSA allows the dependents to recover the money value the victim would have provided to his or her dependents but for the death. This means the court can award the present value of the lost lifetime stream of the victim’s income, for example, as well as the value of lost services (lawn mowing, etc). With certain narrow exceptions, the Act does not allow recovery for the victim’s pain and suffering while awaiting death. Nor are punitive damages available. Punitive damages are damages intended to punish the defendant for recklessly causing a dangerous condition.

            It should be noted that the Jones Act provides a wrongful death cause of action as well. Certain remedies not available under the Death on the High Seas Act are available under the Jones Act – including compensation for the victim’s conscious pain and suffering pre-death. The Jones Act, as stated, applies only to seaman.

            This is truly a complicated area of the law, with overlapping state and federal remedies. Only a lawyer quite familiar with the area should attempt to bring a case.

                                                                        Nicholas H. Walsh


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