Death On The High Seas Act (DOHSA)

Death on the High Seas Act (“DOHSA”) applies to any death occurring beyond 3 nautical miles from the shore of any State or U.S. Territory. Having previously represented shipping, cruise line and marine insurance companies for 19 years, the board certified maritime attorneys at the law firm of Brais Brais & Rusak are in a unique position to protect the families of cruise ship passengers, crew members and oil field workers whose family member died while working or traveling at sea. The lawyers at the law firm of Brais Brais & Rusak with offices in Miami, Florida, Boston, Massachusetts and Houston, Texas are here to help the families of cruise ship passengers, crew members & oil field workers as a result of a shipboard or offshore accident causing death.

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Liability under DOHSA may be based upon negligence, unseaworthiness if the decedent was a seamen, intentional conduct, and strict or products liability. This Act applies to all decedents no matter if they are maritime workers or non-maritime workers. Only the personal representative of the deceased individual can bring a DOHSA action, and that action is pursued on behalf of, or for the benefit of, the decedent’s spouse, child(ren), parents or other financially dependent relative. DOHSA actions only provide for the recovery of monetary damages (i.e., burial costs and lost wages) and does not provide for recovery of non-pecuniary damages (i.e., care, comfort, and companionship of the lost loved one and punitive damages are also not available) or pre-death pain and suffering of the deceased.

DOHSA, originally enacted by Congress in 1920, is drastically outdated, in need of repeal, and inconsistent with modern age concepts of insurance and self-insurance through Protection & Indemnity Clubs. Additionally, DOHSA is inconsistent and treats the families of certain decedents differently from others even if both deaths occur in the same locations. Subsequent to an April 2000 amendment, family members of individuals killed in airplane crashes at sea are able to recover for the grief, bereavement, and mental anguish of the dependents as well as loss of society and consortium and state law remedies for pain and suffering and punitive damages are not precluded. These changes came about following the 1996 TWA 800 crash. Depending upon a rig’s proximity to the U.S. or a territory of the U.S., DOHSA may apply to a death occurring on an offshore drilling rig, failing which the death claim will be governed by the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356 and by the laws of the adjacent state.

Death On The High Seas Act (“DOHSA”) FAQs (Frequently Asked Questions)
Who May Bring An Action Under DOHSA?

The personal representative of any person (seaman, passenger or guest, passenger and crew on aircraft that crash over the high seas, and even those killed in foreign territorial waters), who died beyond 3 nautical miles from shore, may bring a DOHSA claim on behalf of the decedent’s beneficiaries.

Who Is A Beneficiary Under DOHSA?

DOHSA allows recovery on behalf of the decedent’s beneficiaries. Beneficiaries have been determined to include:

  • Surviving spouse – A wife or husband who was married to the decedent at the time of death. Common law spouses (as long as their common law marriage complies with the applicable state law) have been held to be a surviving spouse. Divorced spouses, however, are not deemed to be beneficiates.
  • Children – Biological children as well as stepchildren who have suffered pecuniary losses due to the death have been held to be beneficiaries.
  • Parents – Dependent parents are considered beneficiaries. Non-dependent parents, however, are not beneficiaries.
  • Siblings – Siblings who are dependent on the decedent may be deemed dependents.
When Must I File A DOHSA Claim?

A DOHSA claim must be filed within three years of the date of death. However, if the decedent was traveling as a passenger on board a cruise ship, the ticket contract may well reduce the three year time period to one year.

What Types Of Damages Are Recoverable Under A DOHSA Claim?

Damages under DOHSA are determined based upon the actual or projected value of the financial benefit that would have been received from the decedent. Under this theory, the following damages are available:

  • Financial Support and Contribution – The financial contributions that the decedent would have made to his spouse and dependents over the course of his/her work life expectancy less any amount determined to be for the care and maintenance of the decedent personally.
  • Loss of Services – The monetary value of services the decedent would have provided to the beneficiaries around the home.
  • Nurture to Dependent Children – The value of care, guidance and training to the decedent’s children.
  • Loss of Inheritance – The value of the decedent’s monetary support over the life expectancy of the decedent to dependents.
  • Funeral Expenses – Funeral expenses are allowed to the point actually paid by the beneficiaries.
  • Pre-Death Pain and Suffering – Monitory value of the conscious pain and suffering cause by the negligent act the decedent felt prior to his death. This damage is only recoverable if the decedent dies while pursuing a personal injury claim in federal admiralty court for the negligent acts which ultimately lead to his/her death.
What Types Of Damages Are Not Recoverable Under DOHSA?

The measure of recovery under a DOHSA is limited to pecuniary damages and, therefore, non-pecuniary losses are not recoverable, to wit:

  • Grief, bereavement, and mental anguish of dependents are not compensable;
  • Loss of society and consortium are also not recoverable because these are non-pecuniary losses.
What About Commercial Aviation Accidents?

Following the 1996 TWA 800 crash, Congress amended DOHSA to preclude its application in the case of commercial aviation accidents occurring “on the high seas” twelve nautical miles or closer to the territory of the United States. In such a case, state, federal and “other appropriate law” apply. The amendment also created a new cause of action for non-pecuniary damages for deaths resulting from a commercial aviation accident occurring beyond twelve nautical miles from the United States. These damages, unlike a DOHSA claim for a seaman, include: “loss of care, comfort and companionship”, but not punitive damages unless available under state law.

The attorneys at the law firm of Brais Brais & Rusak have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may click email the firm, call 1-800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.

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