The 1920 Death on the High Seas Act: a remedy whose time has gone.

• Jurisdiction: United States
• Date: 01 March 2013
• Author: Eriksen, Michael D.

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"[C]ertainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules." (1)

Maritime law is one of the most complex areas of American law. No aspect is more tangled than the remedies for maritime wrongful deaths of "nonseafarers," i.e., those who are not seamen or longshore workers.

Depending on the fortuity of where a nonseafarer's fatal injury occurs on the world's navigable waters, survivors who sue in courts in the United States either may be able to invoke modern maritime choice of law rules to access economic and noneconomic damages under state wrongful death laws or they may be limited to their "pecuniary" losses (i.e., economic damages) by the 1920 Death on the High Seas Act (DOHSA).

In 1920, state wrongful death laws generally provided only economic damages, like DOHSA. As time passed, however, most states added noneconomic compensatory wrongful death elements of damage to recognize that human beings are more than economic assets to their families. (2) Additionally, the Supreme Court has acknowledged that general maritime common law allows nonpecuniary punitive damages in tort cases. (3) DOHSA has not kept pace with these developments. As a result, the pecuniary damages allowed by DOHSA have become a shield for marine tortfeasors rather than the claimants' sword they once were.

This article puts DOHSA in historical context, and argues for parity between federal maritime wrongful death elements of damage and those prevailing in the states. That was the situation when DOHSA was passed in 1920, but is not now.

DOHSA, as recodified (i.e., renumbered) by Congress in 2006, reads (emphasis added):

TITLE 46-SHIPPING Subtitle III-Maritime Liability CHAPTER 303-DEATH ON THE HIGH SEAS Sec. 30302. Cause of action

When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of the decedent's spouse, parent, child, or dependent relative.

Sec. 30303. Amount and apportionment of recovery

The recovery in an action under this chapter shall be a fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought. The court shall apportion the recovery among those individuals in proportion to the loss each has sustained.

Sec. 30304. Contributory negligence

In an action under this chapter, contributory negligence of the decedent is not a bar to recovery. The court shall consider the degree of negligence of the decedent and reduce the recovery accordingly.

Sec. 30305. Death of plaintiff in pending action

If a civil action in admiralty is pending in a court of the United States to recover for personal injury caused by wrongful act, neglect, or default described in section 30302 of this title, and the individual dies during the action as a result of the wrongful act, neglect, or default, the personal representative of the decedent may be substituted as the plaintiff and the action may proceed under this chapter for the recovery authorized by this chapter.

Sec. 30306. Foreign cause of action

When a cause of action exists under the law of a foreign country for death by wrongful act, neglect, or default on the high seas, a civil action in admiralty may be brought in a court of the United States based on the foreign cause of action, without abatement of the amount for which recovery is authorized.

Sec. 30307. Commercial aviation accidents

(a) Definition. In this section, the term "nonpecuniary damages" means damages for loss of care, comfort, and companionship.

(b) Beyond 12 Nautical Miles. In an action under this chapter, if the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of the United States, additional compensation is recoverable for nonpecuniary damages, but punitive damages are not recoverable.

(c) Within 12 Nautical Miles. This chapter does not apply if the death resulted from a commercial aviation accident occurring on the high seas 12 nautical miles or less from the shore of the United States.

Sec. 30308. Nonapplication

(a) State Law. This chapter does not affect the law of a State regulating the right to recover for death.

(b) Internal Waters. This chapter does not apply to the Great Lakes or waters within the territorial limits of a State.

DOHSA claims are subject to the three-year federal maritime tort statute of limitations, 46 U.S.C. [section] 30106 (unless a contract, such as a cruise ticket, specifies a shorter time). DOHSA suits may be dismissed for forum non conveniens or for lack of personal jurisdiction, which is determined under applicable long-arm and federal due process requirements. (4)

The Calhoun Case

In 1989, a 12-year-old Pennsylvania girl, Natalie Calhoun, was killed in a jet ski accident in the territorial waters of Puerto Rico, while vacationing at a resort there. Natalie's parents sued the jet ski manufacturer for product liability in federal court in Pennsylvania, which had long-arm jurisdiction over the defendant. DOHSA did not apply because the incident occurred within three nautical miles of the shoreline of a U.S. state or territory.

Because the incident occurred in navigable waters, however, general maritime subject matter jurisdiction existed. Accordingly, in Calhoun v. Yamaha, 216 F.3d 338 (3d Cir. 2000) (Calhoun II), the Third Circuit U.S. Court of Appeals turned to modern federal maritime common law choice of law rules, including the doctrine of depecage. Depecage is the...