The Death on the High Seas Act was originally intended to apply to shipwrecks and other shipping accidents in international waters.  Though a law of admiralty, DOHSHigh Seas and Air France Flight 447A’s wording is broad enough to cover any accident, not just shipping accidents. Therefore, it applies with equal force to aviation accidents occurring on the high seas.

The "high seas" are those international waters more than 12 nautical miles from the shore of the United States or one of its islands.  After an aviation accident, it doesn’t matter whether the passenger’s family sues the responsible airline under the Warsaw or Montreal conventions, a mechanic for negligence, or a manufacturer for a defectively designed product. If the accident happened on or over the "high seas," those responsible for the

death are entitled to the protections of the DOHSA. 

 Some of DOHSA’s provisions:

  • Only a representative appointed by the court may sue on the family’s behalf.  Family members may not sue individually.
  • The only family members who are entitled to compensation from the suit are the passenger’s "wife, husband, parent, child, or dependent relative."  Under DOHSA, some of those who would normally be entitled to compensation may be left out.
  • Family members are not entitled to the usual damages for wrongful death.  Rather, they are entitled to their "pecuniary" damages only.  Pecuniary damages include lost wages and other monetary support, and funeral expenses. No compensation is allowed for the loss of care comfort and emotional support, or the passenger’s pre-impact pain and suffering. 

By way of example, let’s say that a supplier knowingly sold "bogus" aircraft parts — parts that were not suitable for installation in an aircraft.  As a result, the aircraft crashed while flying off shore and a 16 year-old passenger was killed.  In that case, the supplier would be required to compensate the parents for the funeral expenses only. DOHSA provides the supplier a complete defense to any other claim for compensation, including punitive damages.

Recognizing the unfairness of this aspect of DOHSA, Congress amended the law in 2000.  Now the "pecuniary loss" limitation doesn’t apply in commercial aviation cases.  Instead, if the crash was a commercial aircraft, the spouse, parent, or dependent relative may be compensated for not just their pecuniary loss but also for the loss of the passenger’s "care, comfort and companionship."

Unfortunately, however, the DOHSA "pecuniary loss" limitation still applies to general aviation airplanes and helicopters not operated for revenue purposes.  It also applies to public-use aircraft, and to military aircraft lost at sea. 

DOSHA was asserted as a defense in the litigation following the crashes of TWA Flight 800, EgyptAir Flight 990, and Alaska Airlines Flight 261, among others.  It will certainly be an issue in the litigation arising from the loss of Air France Flight 447