Maritime law is not limited to boats and boating accidents. Often aviation cases involve the application of maritime law, or the Death on the High Seas Act (DOHSA). The airplane or helicopter involved does not need to be a seaplane or float-equipped airplane or helicopter. Krutch Lindell attorneys have extensive experience in cases involving the application of maritime law and DOHSA in aviation settings, having litigated maritime law in everything from major airline disasters, to floatplane crashes in foreign waters.
Aviation cases often involve considerations of maritime (or admiralty) law. As with any choice of law concept, an analysis of the potential application of maritime law should be considered before selecting a forum in which to file a case. This is especially the case when deciding between the jurisdiction of the United States or a foreign state.
Determining the Application of Maritime Law
Consideration of maritime law is required when an accident occurs in navigable waters. In these cases, maritime law may apply, subject to supplementation by state law. For example, in a crash in the Puget Sound, Federal maritime law comes into play, and is supplemented as needed by state law. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674 (1982) (in the absence of well-defined maritime law, general maritime law can be supplemented by state law).
Maritime law applies to aviation accidents that occur on the sea (maritime locality), if the air travel “bear[s] a significant relationship to traditional maritime activity.” Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253 (1972). The test in Executive Jet has two elements: The first element is met if the location of the accident has potentially disruptive impact on maritime commerce. In re Air Crash at Belle Harbor, N.Y on November 12, 2001, USDC, SD NY, (2006 WL 1288298). The second element is met when the aircraft is performing “a function traditionally performed by waterborne vessels.” Executive Jet, 409 U.S. at 253 (holding maritime law does not apply to a flight between Cleveland and Portland, Maine, that crashed into Lake Erie after striking birds just after takeoff); In re Air Crash at Belle Harbor, supra, (maritime law applies to crash on land where parts of aircraft fell into navigable waters after takeoff for transoceanic flight); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986)(admiralty jurisdiction applies to crash at sea of a helicopter ferrying workers to an offshore oil platform. 477 U.S. at 218-219).
Compensatory and Punitive Damages Available Under General Maritime Law
General maritime law provides a wide range of recoverable damages in personal injury actions, including: economic loss, pain and suffering, temporary and permanent disability, emotional distress (including fear of impending doom), and loss of consortium. See generally Pucci v. Carnival Corporation, 160 F.Supp. 3d 1329 (2016)(“All authorities agree that [non-pecuniary] damages are properly awarded in maritime personal injury cases.” Id. at 1332 (brackets in original)). General maritime law also provides recovery for punitive damages for reckless conduct. Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009). Furthermore, maritime law extends its protection to injured parties by allowing prejudgment interest and attorney fees.
The U.S. Supreme Court has held that punitive damages are available in general maritime law. Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009). Maritime law punitive damages may be imposed for “conduct which manifests ‘reckless or callous disregard’ for the rights of others or for conduct which shows ‘gross negligence or actual malice or criminal indifference.’” Protectus Alpha Navigation Co. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir.1985) (citations omitted); In re Complaint of Merry Shipping, Inc., 650 F.2d 622, 625 (5th Cir. 1981)(under general maritime law, punitive damages are warranted in a death action when a wrongdoer acts with reckless, callous or gross disregard of plaintiff’s rights, or when the conduct shows gross negligence.)
The Application of DOHSA
Accidents with a maritime situs may also invoke the Death on the High Seas Act (DOHSA). 46 USC § 303, et seq. DOHSA provides the exclusive basis of recovery for deaths on the high seas. Dooley v. Korean Air Lines Co., Ltd. 524 U.S. 116, 123 (1998); see Helman v. Alcoa Global Fasteners, Inc 637 F.3d 986, 989 (9th Cir. 2011).
The statutory statement creating the DOHSA cause of action is as follows:
When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 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.
46 USC § 30302
In ordinary circumstances, DOHSA provides for the recovery for pecuniary loss. 49 USC 30303. However, DOHSA contains special provisions regarding “commercial aviation accidents” beyond 12 Nautical Miles from shore, where it expands nonpecuniary remedies and eliminates recovery for punitive damages.
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.
46 USC § 30307
DOHSA claims can only be brought by the personal representative of the decedent. 46 USC § 30302. Alcabasa v. Korean Air Lines Co., Ltd., 62 F.3d 404, 407 (D.C. Cir. 1995) (Spouse of decedent who had not applied to be a personal representative was barred from bringing suit). “A ‘personal representative’ is by definition a court-appointed executor or administrator of an estate, not merely an heir.” Id., (citing Briggs v. Walker, 171 U.S. 466, 471, 19 S.Ct. 1, 3, 43 L.Ed. 243 (1898). Without appointment as personal representative, an individual has no statutory standing to bring a claim. Id. See also, Alcabasa at 408. Even after application, oath, and court appointment of a personal representative, the processes for determining beneficiaries must be accomplished.
Attorneys at Krutch Lindell as experienced in handling general maritime and DOHSA cases.