Admiralty & maritime law - Ninth Circuit relocates "high seas" under Death on the High Seas Act.

• Author: Burke, Andrew J.
• Position: Case note

Admiralty & Maritime Law--Ninth Circuit Relocates "High Seas" Under Death on the High Seas Act--Helman v. Alcoa Global Fasteners, Inc., 637 F.3d 986 (9th Cir. 2011)

Article III of the United States Constitution extends federal judicial power to all cases arising under admiralty and maritime jurisdiction. (1) The Death on the High Seas Act (DOHSA) in turn provides the exclusive, albeit monetarily limited, maritime remedy for wrongful deaths that take place on the "high seas beyond 3 nautical miles from the shore of the United States." (2) In Helman v. Alcoa Global Fasteners, Inc., (3) the Court of Appeals for the Ninth Circuit considered, as a matter of first impression, whether DOHSA applied to, and thus preempted other available claims arising from, a fatal helicopter accident that occurred approximately nine and a half nautical miles off the California coastline. (4) Finding little interpretive significance in the term "high seas," the Ninth Circuit held that DOHSA becomes unconditionally operative seaward of three nautical miles from U.S. shores. (5)

The USS Bonhomme Richard is a United States Navy amphibious assault ship designed to carry several types of combat aircraft to engagements around the world at a moment's notice. (6) On January 26, 2007, the Bonhomme Richard was participating in a naval training exercise in U.S. waters, nearly ten nautical miles off the southern tip of Catalina Island, California. (7) Three members of the ship's Helicopter Combat Support Squadron--Cory Helman, Christopher Will, and Adam Dyer--were providing aerial support from a Sikorsky MH-60S Knighthawk, the Navy's state-of-the-art mine countermeasures and search-and-rescue helicopter. (8) At some point during the exercise, the Knighthawk abruptly spun out of control, crashing headlong into the Pacific Ocean and tragically killing crewmembers Helman, Will, and Dyer. (9)

Survivors of the deceased crewmen (collectively, Helman) subsequently filed suit in federal court, claiming that under state and general maritime law the Knighthawk's negligently defective manufacture caused the fatal training accident. (10) Defendants (collectively, Alcoa) moved to dismiss, countering that DOHSA--which would bar recovery of all nonmonetary damages such as pain and suffering and survivor's grief--preempted all of Helman's state and general maritime claims. (11) Helman responded that DOHSA was inapplicable because the crash occurred not on the "high seas," but a mere nine and a half miles from shore--well within U.S. territorial waters. (12) In siding with Alcoa, the district court found that, because the "high seas" referred only to the qualifying phrase "beyond 3 nautical miles" in the adjacent statutory text, DOHSA governed and thus preempted all non-DOHSA claims arising from the Knighthawk accident. (13)

In dismissing Helman's suit, however, the court certified for interlocutory appeal to the Ninth Circuit the question of whether DOHSA applies within U.S. territorial waters, staying its initial order pending further appellate review. (14) While the district court found "substantial ground for difference of opinion" concerning DOHSA's applicability between three and twelve nautical miles from shore, the Ninth Circuit affirmed, concluding that "high seas" possessed no "independent geographical significance." (15) Indeed, the three-judge panel reasoned that Congress's inclusion of the descriptive phrase "beyond 3 nautical miles" would be superfluous if the "high seas" referred to any other location. (16) The Ninth Circuit ultimately held that DOHSA applies in all wrongful-death claims involving tortious conduct occurring beyond three nautical miles from the coast, irrespective of the geographic boundary of the "high seas." (17)

In 1886 the United States Supreme Court decided The Harrisburg, a highly criticized opinion, which held that admiralty courts did not recognize common-law causes of action for wrongful death. (18) Specifically rejecting the Court's ruling, Congress thereafter set out to codify a statutory remedy for wrongful deaths occurring on the "high seas"--that is, the area beyond state and federal territorial waters. (19) Despite intense congressional backlash to The Harrisburg, early drafts of what would eventually become DOHSA struggled to gain meaningful traction, as Congress thrice offered a bill for vote between years 1900 and 1915 and failed each time to enact it. (20) Meanwhile, after the catastrophic sinking of RMS Titanic in April 1912, the public had become increasingly concerned with Congress's inability to pass any maritime wrongful-death bill. (21) By the time Congress enacted DOHSA's predecessor on March 30, 1920, its focus had fundamentally shifted from an act based on uniformity and state-law preemption to a supplemental remedy intended to apply only in those waters beyond state jurisdictional limits. (22)

From 1793 until the late twentieth century, the outer boundaries of state and federal waters generally coincided at "the utmost range of a cannon ball, usually stated at one sea league." (23) Waters beyond a sea league--approximately three miles from shore--were considered the "high seas" governed exclusively by international imperative. (24) While Congress chose not to define the term "high seas" in DOHSA, the Supreme Court's turn-of-the-century maritime jurisprudence regularly described the "high seas" by reference to its extraterritorial connotations. (25) In the decades following DOHSA's passage, the courts continued to maintain that, under established principles of international law, the "high seas" were defined as "international waters not subject to the dominion of any single nation." (26) Thus, in nearly all pre- and post-DOHSA cases, culminating in Moragne v. States Marine Lines, Inc., which expressly overruled The Harrisburg, the Court proceeded on the premise that the end of U.S. territorial waters marked the beginning of the "high seas." (27)

While the outskirts of state and federal waters remained jurisdictionally coterminous for nearly two centuries, their legal and geographic relationship to the "high seas" underwent a sea change in the late 1980s. (28) On December 27, 1988, President Reagan issued a presidential proclamation, unilaterally extending the outer periphery of federal waters from three to twelve nautical miles offshore. (29) Relying heavily on the text of the United Nations Convention on the High Seas, the Reagan Administration's Office of Legal Counsel (OLC) recognized the "high seas" as "the remainder of the ocean beyond the territorial sea" and under no nation's exclusive control. (30) While the OLC opined that the proclamation could potentially affect certain domestic legislation, the OLC never considered its potential impact on DOHSA. (31) Ten years later, however, in what would become the "seminal" post-1988 DOHSA analysis, the Second Circuit explained that, despite its three-mile reference, DOHSA's "high seas" were fundamentally international in nature, concluding the presidential proclamation "alter[ed] the three-mile boundary that had historically defined the territorial sea." (32) Accordingly, the Second Circuit held DOHSA inapplicable to anywhere other than the "high seas," reasoning that the term's legal import could not be changed by virtue of its textual proximity to DOHSA's ambiguous three-mile descriptor. (33)

In Helman v. Alcoa Global Fasteners, Inc., the Ninth Circuit split with the Second Circuit, dismissing the notion that the "high seas" have anything to do with international law or geopolitical boundaries. (34) The Helman court acknowledged the Second Circuit's contrary holding but maintained that, because Congress had amended DOHSA to include commercial airline accidents occurring inside twelve miles from shore, its ruling would not create an actual circuit split. (35) The court also rejected the idea that an executive extension of U.S. territorial waters could lawfully alter DOHSA, surmising that such an effect would encroach upon legislative prerogatives in violation of the separation-of-powers doctrine. (36) The Ninth Circuit ultimately held that DOHSA's "high seas" referred only to those waters "beyond 3 nautical miles" from U.S. shores, the only explicitly stated geographical reference contained in the statute; any other reading of DOHSA, according to the court, would be illogical and inconsistent with congressional intent. (37)

By overemphasizing the phrase "beyond 3 nautical miles," while ignoring the significance and firmly established meaning of "high seas," the Helman court incorrectly applied DOHSA within U.S. territorial waters. (38) Despite the court's concern that the three-mile phrase would be "render[ed] meaningless" if "high seas" were independently defined, it completely discounted the consequence that the "high seas"--the very namesake of the statute--would be reduced to mere ornamentation if "beyond 3 nautical miles" controlled the entirety of DOHSA. (39) The Ninth Circuit also erroneously concluded that, because Congress understood as functionally equivalent the terms "beyond 3 nautical miles" and "high seas," Congress likewise considered them conceptually equivalent. (40) At the time of DOHSA's enactment, the triggering functions of both phrases were identical whether the tortious conduct occurred on the "high seas" or beyond three nautical miles from shore, but their conceptual underpinnings were, and continue to be, mutually exclusive. (41) Indeed, the location of the "high seas" conceptually depends not on arbitrary borders but instead on the internationally recognized boundaries demarcating a nation's territorial waters. (42) Thus, the Ninth Circuit lent undue emphasis to DOHSA's three-mile reference at the expense of properly focusing on the "high seas" as the controlling statutory concept. (43)

While the Helman court conceded that the "high seas" "describe the scope" of DOHSA, the court also dismissed the term of art as...