A plaintiff usually receives damages for pecuniary loss caused by the loss of the deceased seaman's services. A DOHSA suit must commence within three years from the date of the seaman's death. If the decedent's negligent conduct contributed to the accident (contributory negligence), an award may be reduced accordingly. In action for wrongful death of crew member, personal representative could bring general maritime action for wrongful death or action under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761-768) and was not required to make election among theories of recovery. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

DEATH ON THE HIGH SEAS ACT (DOHSA) MAY APPLY TO AIRLINE CRASHES & OTHER AIRCRAFT DISASTERS AT SEA

Death on the High Seas Act, known as DOHSA, a 1920 statute that has been applied to sharply limit damages suffered by victims of airline disasters to economic losses only. DOHSA applies to accidents "on the high seas." Under current law, DOHSA applies to the Egyptair Flight 990 disaster, which occurred on international waters, and has been raised as a defense by the defendants in the TWA Flight 800 and Swissair Flight 111 cases, despite the fact that those disasters occurred on territorial waters and not on the high seas. The Alaska Airlines Flight 261 disaster bought light to the use of DOHSA and demonstrated that application of the law to aircraft which routinely pass over international waters on domestic and international flights.

TWA flight 800 crashed just beyond a marine league of New York on take off, killing all aboard. Among the decedents were many children whose parents could assert little actual pecuniary loss resulting from their unfortunate deaths. In response to the public outcry and media attention focused on airline safety, Congress soon undertook the task of amending DOHSA to allow recovery for loss of consortium, care and companionship in all cases of "commercial aviation accidents." This measure passed the U.S. Congress and became law in April, 2000.On April 5, 2000, a new amendment to DOHSA became law. The amendment applies retroactively to commercial aviation accidents which occur after July 16, 1996 (the day before the TWA 800 disaster).

The DOHSA amendment confirms the ruling of the Second Circuit Court of Appeals in the TWA 800 case that DOHSA does not govern accidents that occur within 12 miles of the United States shoreline. As a result, state law remedies, including punitive damages and conscious pain and suffering, may be recoverable against the airlines and others and not restricted by the Death on the High Seas Act. The amendment further provides that for airline, helicopter and other aviation accidents beyond 12 miles, DOSHA applies but additional non-pecuniary damages are recoverable, which are defined as "care, comfort and companionship." The amendment does not address whether DOHSA applies on foreign territorial waters, a matter currently under review in the Swissair Flight 111 disaster case. The amendment is significant because it ends the arbitrary DOHSA economic damage limitation in commercial aviation accidents which happen to occur on the high seas. The families of passengers killed in aviation disasters will be able to recover damages for non-economic losses and will not face the prospect of a sharply reduced recovery that the 1920 Death on the High Seas Act.

Those crashes outside 12 nautical miles from the shores of the United States will still fall under the Death on the High Seas Act. Under the amendment however, compensation for non-pecuniary damages will be allowed in addition to pecuniary damages for commercial crashes. Non-pecuniary damages will be permitted only for the loss of care, comfort and companionship in death actions arising from commercial aviation accidents. Commercial aviation involves transport "for compensation or hire." Thus where persons are killed in "commercial" accidents on the high seas (typically the airline, commuter and charter passengers) the culpable defendants may be forced to pay non-pecuniary damages on top of pecuniary damages.

OHSA - HELICOPTER & PRIVATE AIRCRAFT

General aviation accidents on the high seas involving corporate aircraft and privately owned aircraft are excluded. Helicopter flights over water that do not involve compensation or hire, will not be covered by the amended DOHSA. Similarly, public-use aircraft accidents and military aircraft accidents are still subject to the harsh limitations of the 80-year-old Death on the High Seas Act, whereby only pecuniary damages can be recovered.