Friday, March 17, 2000


The Congress of the United States just last Wednesday, March 16, 2000, enacted passed the FAA Reauthorization Bill, including an amendment to the Death on the High Seas Act anxiously awaited by the victims of air crash disasters since the crash of TWA 800 in July 1996.

The Death on the High Seas Act was originally enacted in 1920 to provide a recovery for victims of marine disasters on the High Seas because recoveries for death were limited to the salvage value of the ship. So, as in the example of the Titanic sinking, no salvage value meant no recovery for the victims. Interestingly, the Act allowed for recovery of only pecuniary (economic) losses, not the real value of a human life such as companionship, comfort, guidance, love, affection, grief, and so forth.

It was the courts, not Congress, that extended the application of the Death on the High Seas Act (called DOHSA) to aviation, the rationale being that aviation was beginning to perform a traditional maritime activity, therefore, recoveries for death should be determined under the same law. The result, however, was to have a patchwork of laws applicable to airline flights, one law if the airplane crashed within one marine league from shore (about three nautical miles), and another if the airplane crashed further out to sea (like three and one-half miles). If the flight were an international flight, then another law applied, too, the Warsaw Convention, which back then, but not now, limited recovery to Seventy-Five Thousand Dollars with one exception. Even more weird was the way the courts applied Warsaw. If you bought a ticket from Chicago to Philadelphia and your friend bought a ticket from Chicago to Philadelphia to London, and the airplane crashed en-route from Chicago to Philadelphia, there would be no limitation on the amount your family could recover for your death, but the recovery for your friend’s family would be limited to Seventy-Five Thousand Dollars because he was on a segment of an international flight. Warsaw only applied to the airline’s liability, however, there was no limit on the recovery against the manufacturer of the airplane. Go figure!

You can imagine the inequities that befell families who lost children on aircraft that crashed more than three miles from shore. Since most families aren’t dependent economically on their young children, the damages recoverable were horrendously low, not only an insult, but worse a further assault on the grief-stricken families. How could one explain to parents that the life of a priceless child was worth so little?

TWA 800, a crash of a Boeing 747 just five miles off Long Island, New York in July 1996 caused critical scrutiny to be brought to bear on DOHSA. There were many children aboard that airplane and the thought of DOHSA’s damages limitations making a mockery of their lives was too much for their families and the politicians who were answerable to them. Even the judge to whom the case was assigned wasn’t about to allow this archaic law to limit recoveries, so he decided that since the airplane crashed only five miles from shore and President Ronald Reagan proclaimed United States territorial waters to extend out twelve miles, the crash could not have occurred on the High Seas, thus DOHSA was inapplicable. That decision was appealed by the airline and the airplane’s manufacturer, and the appeals court decision was pending when the amendments to DOHSA were passed.

So what did Congress do in the face of the crashes of TWA 800 (five miles offshore), Swissair 111 (in Canadian waters), and Egyptair 990 (some sixty miles offshore)? Congress made DOHSA applicable to only some of them! For the crashes more than twelve miles offshore, families can recover pecuniary damages (economic losses), together with non-pecuniary damages, such as loss of care, comfort and companionship. That makes sense and gives some predictability to the recovery, no matter where it happens, as long as it’s more than twelve miles from U.S. shores. On the other hand, if the crash occurs twelve miles or less from shore, the Act now reads that DOHSA does not apply, but "rules applicable under Federal, State, and other appropriate law shall apply." What does that mean?

In short, what Congress has done is leave the decision as to what law applies up to the courts to be decided in each instance. In other words, no predictability whatsoever as to who recovers, how much, and for what items. Having the chance to fix the law, Congress instead punted and guaranteed litigation to answer that question for generations to come. The airlines and manufacturers involved have already served notice that they will contend that Congress making this change retroactive to July 16, 1996 is unconstitutional and, thus, the changes should not apply to either TWA 800 or any crash that occurred before the change in the law. Of course, if the law were more restrictive, instead of less so, that argument would never have seen the light of day!

So what does all this mean? Hopefully, it means that general maritime law supplemented by state wrongful death and survival laws will apply to any crash twelve miles or less from U.S. shores. That means that dependent upon each state’s allowable recovery, damages will vary from crash to crash and maybe from claimant to claimant. In the case of TWA 800, if a court were, for example, to apply New York state’s draconian wrongful death law, the parents of children on that airplane might recover less than they could if the airplane had crashed seven miles further out to sea. A court might find that general maritime law should be supplanted by the state law of the place of domicile of the victim, in which case a larger recovery may be possible. The problem is that this legislation creates, in some instances, more uncertainty than the law it replaced. That’s unfortunate because in this day when even the Warsaw Convention has no limits, the need for DOHSA in airplane crashes is absent.

This change in the law was a product of an election year compromise, and to the extent it arguably allows, in some instances, a predictable full and fair compensation for victims of airline crashes it is better than what preceded it. On the other hand, it would have been more helpful to victims’ families had the change allowed a consistent and well-defined recovery that applied to all airline crashes, regardless of the purely "accidental" location where they impact the water.

March 17, 2000