Death on the High Seas Act: Federal Court Questions the Powers of the President

The Death on the High Seas Act applies to certain airplane and helicopter crashes as well as to shipwrecks.  The Act limits the claims that family members can bring. For example, in most cases the Death on the High Seas Act does not allow a parent to sueDeath on the High Seas Act for the loss of a child.  And though a wife can sue for the death of her husband, she can recover only lost financial support.  No compensation is allowed for the loss of the husband's love and affection.

Everyone agrees that DOHSA never applies to crashes within 3 miles from the US shoreline, and that it always applies to certain crashes more than 12 miles from shore.  The issue is whether it applies to crashes between 3 miles and 12 miles from shore. 

That question came up after the TWA Flight 800 disaster, because the Boeing 747 crashed about 8 miles from shore. The Second Circuit Court of Appeal ruled that the "High Seas" means "international waters."  So DOHSA applies to crashes between 3 and 12 miles from shore only if the particular waters are "international." 

But just before the TWA Flight 800 accident, President Reagan proclaimed that all waters within 12 miles from a US shoreline are US waters, not international waters.  The court ruled that the presidential proclamation made the analysis easy.  The Death on the High Seas Act applies only to crashes beyond 12 miles from shore, and so did not prevent the families of Flight 800 from suing.

Earlier this week, the Ninth Circuit disagreed.  A Marine helicopter crashed 9.5 miles from the shore of Catalina Island, killing three servicemen.  The familes sued Sikorsky, the helicopter's manufacturer, as well as those who built some of the helicopter's component parts.  But the court ruled that because the crash happened more than three miles from shore, DOHSA applied, and their lawsuit should be dimissed. 

We conclude that DOHSA applies to all waters beyond three nautical miles from United States shores.  The helicopter crash in this case is governed by DOHSA's remedial scheme."

As for the effect of President Reagan's proclamation?

Though we do not decide the matter, we remain doubtful that the President would have the authority to alter the remedial scheme set forth in DOHSA through a proclamation."

The case is Helman v. Alcoa Global Fasteners. Because the two federal courts have now reached opposite conclusions, the matter might be headed to the US Supreme Court.  That will be interesting.  Dissenting from the Second Circuit's opinion in the TWA Flight 800 case was then-Judge Sotomayor who now, of course, sits on the Supreme Court. 

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