UNITED STATES COURT
FOR THE SECOND CIRCUIT
August Term 1999 Argued: September 8, 1999
Decided: March 29, 2000
Docket No. 98-9622
IN RE: AIR CRASH OFF LONG
NEW YORK, ON JULY 17, 1996
Before: FEINBERG, CALABRESI,
SOTOMAYOR, Circuit Judges.
Appeal from judgment of the United
States District Court for the Southern District of New York,
Robert W. Sweet, J., denying defendants' motion to dismiss nonpecuniary
damages. Held, the Death on the High Seas Act, 46 U.S.C. app.
761-767 (DOHSA) does not apply to a crash occurring about eight
miles from the coast of the United States, in United States territorial
Affirmed. Judge SOTOMAYOR dissents
in a separate opinion.
STEVEN S. BELL, Seattle, WA (Perkins
Coie LLP, Keith Gerrard, Jay S. Brown; Davis Weber & Edwards
PC, New York, NY, George F. Hritz, Cynthia A. Feigin), Attorneys
for Defendant-Appellant The Boeing Company; Haight Gardner Holland
& Knight, New York, NY, Randal R. Craft, Jr., William C.
Brown III, Alan D. Reitzfeld, Attorneys for Defendant-Appellant
Trans World Airlines, Inc.; Dombroff & Gilmore, Washington,
DC, Mark A. Dombroff, Dane B. Jaques, of Counsel, for Defendant-Appellant
STEVEN R. POUNIAN, New York, NY
(Kreindler & Kreindler, Lee S. Kreindler, James P. Kreindler,
Blanca I. Rodriguez, Jacqueline M. James; Speiser, Krause, Nolan
& Granito, New York, NY, Frank H. Granito, Jr., Frank H.
Granito, III; Baumeister & Samuels, New York, NY, Michel
F. Baumeister; Nolan Law Group, Chicago, IL, Donald J. Nolan;
Schaden, Katzman & Lampert, Broomfield, CO, Richard F. Schaden;
Waite, Schneider, Bayless & Chesley, Cincinnati, OH, Jerome
L. Skinner, of Counsel) for Plaintiffs' Committee.
FEINBERG, Circuit Judge: Defendants
Trans World Airlines, Inc., The Boeing Company, and Hydro-Aire,
Inc., appeal from a decision of the United States District Court
for the Southern District of New York, Robert W. Sweet, J., in
June 1998 that denied their motion to dismiss plaintiffs' claims
for nonpecuniary damages as barred under the Death on the High
Seas Act, 46 U.S.C. app. 761-767 (usually referred to hereafter
as DOHSA). See In re Air Crash off Long Island, New York, on
July 17, 1996, ___ F. Supp. 2d ___, 1998 WL 292333 (June 2, 1998).
This appeal, which presents a question of first impression in
this court, concerns whether DOHSA applies to an airplane crash
in United States territorial waters roughly eight miles from
the coast of the United States. For the reasons stated below,
we agree with the district court that DOHSA does not apply to
The appeal arises out of the crash
of TWA Flight 800, which departed from John F. Kennedy International
Airport in New York on July 17, 1996, for Paris, France and Rome,
Italy. Shortly after takeoff, the plane appears to have exploded
in midair and crashed. According to the National Transportation
Safety Board, the crash occurred approximately eight nautical
miles(1) south of the shore of
Long Island, New York. All 230 persons on board perished.
Plaintiffs are relatives and estate
representatives of 213 passengers and crew members who died in
the crash. Defendant Trans World Airlines owned and operated
the aircraft. Defendant The Boeing Company manufactured the aircraft,
and defendant Hydro-Aire, Inc., manufactured the aircraft's fuel
pumps. In February 1997, the Judicial Panel on Multidistrict
Litigation transferred to the Southern District of New York all
wrongful death cases arising from the crash for consolidated
pretrial proceedings. At the time the district court issued the
decision under review, 145 cases had been consolidated before
In July 1997, defendants moved under
Fed. R. Civ. P. 12(b)(6) to dismiss plaintiffs' claims for nonpecuniary
damages. Defendants argued that DOHSA applies to this case and
limits recovery to pecuniary damages. In June 1998, Judge Sweet
denied defendants' motion in a written opinion, concluding that
DOHSA applies only where death occurred on both the high seas
and beyond a marine league(2)
from shore, and that in this case the crash did not occur on
the high seas. The judge reasoned that by using the term "high
seas," Congress limited DOHSA's application to "non-sovereign
waters," meaning "international waters not subject
to the dominion of any single nation." Judge Sweet did not
resolve the choice of law issues that remained once he had determined
that DOHSA did not limit plaintiffs' damages. The judge certified
his order for immediate appeal pursuant to 28 U.S.C. 1292(b),
and in December 1998, this court permitted defendants to take
this interlocutory appeal.
The appeal primarily concerns the
interpretation of 1 of DOHSA, which provides for a right of action:
Whenever the death of a person shall
be caused by wrongful act, neglect, or default occurring on the
high seas beyond a marine league from the shore of any State,
or the District of Columbia, or the Territories or dependencies
of the United States . . . .
46 U.S.C. app. 761. The parties
agree that the crash occurred eight nautical miles off the coast
of Long Island, which is "beyond a marine league from the
shore of any State." However, the parties differ as to the
meaning of "high seas." Plaintiffs argue that "high
seas" refers to those waters beyond the territorial waters
of the United States. Under Presidential Proclamation No. 5928,
issued in 1988 by President Reagan, the territorial waters of
the United States extend 12 miles from the shore of the United
States.(3) As the crash occurred
eight miles off the coast of Long Island, plaintiffs maintain
it occurred in United States territorial waters, rather than
on the high seas, and thus DOHSA does not apply. Defendants contend
that the term "high seas" means all waters beyond the
low-water mark.(4) Defendants
conclude that because the crash occurred both beyond the low-water
mark and more than a marine league from the shore of Long Island,
DOHSA applies. Our dissenting colleague advocates a third position,
that "high seas" means all waters beyond a marine league
from the shore. See dissent at [2, 16].
The question whether DOHSA applies
is significant because 2 of DOHSA limits recovery to "a
fair and just compensation for the pecuniary loss sustained by
the persons for whose benefit the suit is brought." 46 U.S.C.
app. 762. If DOHSA does not apply, however, plaintiffs claim
they are entitled to nonpecuniary damages, e.g., for pre-death
pain and suffering and survivor's grief.(5)
The district court's order is subject
to de novo review because it resolved a motion to dismiss, see
Stuto v. Fleishman, 164 F.3d 820, 824 (2d Cir. 1999), and also
because the key issue on appeal involves statutory construction,
see United States v. General Dynamics Corp., 19 F.3d 770, 773
(2d Cir. 1994) (citation omitted). In matters of statutory interpretation,
the language of the statute "must ordinarily be regarded
as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980). Where the statutory language
is ambiguous, as the phrase "high seas" is in this
case, our inquiry must range further. The Supreme Court has instructed,
in a case involving the interpretation of a different section
of DOHSA, that we must consider "the language of the Act
as a whole, the legislative history of [the relevant provision],
the congressional purposes underlying the Act, and the importance
of uniformity of admiralty law." Offshore Logistics, Inc.
v. Tallentire, 477 U.S. 207, 221 (1986) (citation omitted). In
McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 (1991), for example,
the Supreme Court interpreted the word "seaman" in
the Jones Act of 1920, the companion statute to DOHSA, with reference
to the Supreme Court decisions to which Congress was responding
when it passed the Jones Act. See id. at 341-42.
A. Background of the Death on the
High Seas Act
The Death on the High Seas Act provided
a remedy for wrongful death at sea where none had clearly existed
before. The federal courts initially recognized a right of action
for wrongful death in general maritime law, based largely on
humanitarian considerations: "[C]ertainly it better becomes
the humane and liberal character of proceedings in admiralty
to give than to withhold the remedy, when not required to withhold
it by established and inflexible rules." The Sea Gull, 21
F. Cas. 909, 910 (C.C. Md. 1865) (No. 12,578) (Chase, C.J.).
The Supreme Court took a more restrictive approach, however,
in The Harrisburg, 119 U.S. 199 (1886). In that case, a steamer
collided with a schooner in waters between the coast of Massachusetts
and the islands of Martha's Vineyard and Nantucket, killing the
first officer of the schooner. See id. at 199-200. Because the
decedent's widow and child did not bring suit within the applicable
state statutes of limitations, they sought to recover under general
maritime law. The Supreme Court held that as there was no common-law
remedy for wrongful death on land, there would be none at sea.
See id. at 212-13. Plaintiffs were thus entitled to no relief
in the absence of a statute. See id. at 213-14. The Harrisburg
was ultimately overruled in Moragne v. States Marine Lines, Inc.,
398 U.S. 375 (1970), which established a remedy for wrongful
death under general maritime law in a "meticulously reasoned"
and "remarkably far-ranging" opinion by Justice Harlan
for a unanimous Court.(6) See
Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty
368 (2d ed. 1975).
Judicial efforts to counteract the
harshness of the rule of The Harrisburg, by expanding
existing statutes to provide for recovery, complicated matters.
See Tallentire, 477 U.S. at 212 (citing cases), 235 (Powell,
J., concurring in part and dissenting in part). The Supreme Court
held in The Hamilton, 207 U.S. 398 (1907), for example, that
one citizen of Delaware could bring suit in admiralty against
another under Delaware's wrongful death statute, even though
the death had occurred on the high seas, seven miles off the
coast of Virginia.(7) Justice
Holmes, writing for the Court, reasoned that Delaware law defined
the obligations of the parties, "even when personally on
the high seas." Id. at 403. Similarly, in La Bourgogne,
210 U.S. 95 (1908), the Court applied French law to an accident
between French and British ships because the collision occurred
on the high seas. See id. at 115. The tension between the logic
of The Harrisburg and The Hamilton "created
jurisdictional fictions and serious problems in choice of law
that sometimes denied recovery altogether." Tallentire,
477 U.S. at 235 (Powell, J., concurring in part and dissenting
in part). Dismayed by these cases, the Maritime Law Association
(MLA) began drafting the bill that became the Death on the High
Seas Act. See Whitelock, supra, at 415-16; see also Robert M.
Hughes, Death Actions in Admiralty, 31 Yale L.J. 115, 116-17
B. The Drafting of the Death on
the High Seas Act
Congress initially sought to create
a uniform remedy for wrongful death, but gradually refined the
scope of DOHSA so as not to displace preexisting state remedies.
Although the phrase "high seas" was rarely the focus
of debate, the legislative history provides some indication of
how that phrase should be interpreted to effectuate the purposes
The first priority was to draft
a statute allowing recovery for wrongful death on the high seas.
Critics of The Harrisburg maintained that the rule of
that case had been rejected by "(e)very country of western
Europe," and was a "disgrace to a civilized people."
H.R. Rep. No. 66-674, at 4 (1920); S. Rep. No. 66-216, at 4 (1919);
see also Moragne, 398 U.S. at 397 (citing criticism). The MLA
drafted a bill that would achieve uniformity in maritime remedies,
displacing the patchwork of state statutory remedies that raised
difficult choice of law issues. See H.R. Rep. No. 63-160, at
2 (1913); Hughes, supra, at 117. From 1909 through 1915, therefore,
the proposed legislation provided a remedy "on the high
seas, the Great Lakes, or any navigable waters of the United
States." H.R. 15810, 61st Cong. 1 (1909); S. 6291, 61st
Cong. 1 (1910); H.R. 24764, 62d Cong. 1 (1912); S. 6930, 62d
Cong. 1 (1912); H.R. 6143, 63d Cong. 1 (1913); H.R. 6143, 63d
Cong. 1 (1915). The rest of DOHSA's legislative history concerns
the narrowing of this provision.
In the 1914 congressional debates
on DOHSA, conducted in the wake of litigation growing out of
the Titanic disaster in 1912, objections arose that the bill
would oust state jurisdiction over wrongful death and substitute
an inadequate federal remedy. See, e.g., 14 Cong. Rec. 1929 (Jan.
19, 1914) (statement of Rep. Bryan); id. at 1928 (statement of
Rep. Mann). In response to opposition from members of Congress
and local practitioners, the MLA abandoned its effort to draft
a uniform remedy. Instead, it submitted a new bill in 1916 that
"does not interfere with the law in force . . . . It simply
covers waters that are not now covered." See Right of Action
for Death on the High Seas: Hearing Before the Committee on the
Judiciary, Subcommittee No. 2, 64th Cong., 1st Sess. 17 (Feb.
4, 1916) [1916 Hearing].
The 1916 version of DOHSA preserved
state remedies in three significant ways. First, the drafters
changed "any navigable waters of the United States"
to "any navigable waters of the Panama Canal Zone, the District
of Columbia, or the Territories or dependencies of the United
States," eliminating DOHSA's reach over navigable waters
within state jurisdiction. S. 4288, 64th Cong. 1 (1917); H.R.
39, 65th Cong. 1 (1917). Second, the drafters added a section,
which became 7 of DOHSA, that provided that the act would not
affect state wrongful death remedies for deaths in state territorial
waters. This provision also exempted the Great Lakes or "any
waters within the territorial limits of any State" from
DOHSA's scope. S. 4288, 64th Cong. 6 (1917); H.R. 39, 65th Cong.
6 (1917). Finally, the later drafts added the words "beyond
a marine league" to 1, so that the proposed act covered
deaths "on the high seas beyond a marine league from the
shore of any State." S. 2085, 66th Cong. 1 (1919); S. 4288,
64th Cong. 6 (1917); H.R. 39, 65th Cong. 1 (1917). This version
of DOHSA was narrowed further when the Secretary of War requested
that Congress avoid legislating in the Panama Canal Zone. See
S. Rep. No. 66-216, at 5 (1919). The Panama Canal Zone reference
was moved to 7, which lists certain waters excluded from DOHSA's
The statute that Congress passed
in 1920 created a remedy for wrongful death "occurring on
the high seas beyond a marine league from the shore of any State,
or the District of Columbia, or the Territories or dependencies
of the United States." 46 U.S.C. app. 761. The parties agree
that the phrase "beyond a marine league" excludes from
DOHSA's reach state territorial waters, which traditionally lay
within three nautical miles from shore.(8)
C. The Meaning of "High Seas"
As noted above, the parties agree
that the crash occurred beyond a marine league, or more than
three miles, from the coast of Long Island. Plaintiffs contend
that "high seas" covers those waters that lie beyond
United States territorial waters, that is, international waters.
Defendants argue that "high seas" means all waters
beyond the low-water mark, and that the words "beyond a
marine league" modify the phrase "high seas" by
excluding from DOHSA's coverage those waters that, although considered
"high seas," fall within the traditional bounds of
state jurisdiction. As the considerable research of both parties
indicates, there is authority to support either understanding
of the term "high seas." We believe that plaintiffs'
understanding of "high seas" is superior, however,
because it rests on the Supreme Court's definition of "high
seas" at the time DOHSA was enacted, a definition that the
Supreme Court and this court have reiterated in the decades following
DOHSA. Furthermore, no post-DOHSA authority supports defendants'
definition of "high seas" as "beyond the low-water
1. The Supreme Court's Understanding
of "High Seas" at the Time of DOHSA's Enactment
Although the boundary of this country's
territorial sea at roughly three miles remained constant for
almost two centuries, this limit was set on an ad hoc basis.
In 1793, seeking to remain neutral in the war between France,
Britain and Spain in the Atlantic Ocean, Secretary of State Thomas
Jefferson claimed the "smallest distance" for the extent
of American territorial seas.(9)
Relying on "the utmost range of a cannon ball, usually stated
at one sea league," Jefferson made a claim for three nautical
miles. See OLC Opinion at 10. Although Jefferson reserved "the
ultimate extent" of the claim "for future deliberation,"
and noted that a case could be made for 20 miles, see id., the
scope of our territorial sea remained constant until 1988. See
infra Section II.D.
By the time DOHSA was enacted in
1920, the Supreme Court generally interpreted "high seas"
to mean international or non-sovereign waters, most notably in
the cases upon which the authors and supporters of DOHSA relied.
In 1881, for example, the Supreme Court described the "high
seas" as "where the law of no particular State has
exclusive force, but all are equal." The Scotland, 105 U.S.
24, 29 (1881); see also La Bourgogne, 210 U.S. at 115 (using
The Scotland's definition). In the years DOHSA
was pending before Congress, Justice Holmes characterized the
"high seas" as "outside the territory, in a place
belonging to no other sovereign," The Hamilton, 207 U.S.
at 403, and as a region "subject to no sovereign."
American Banana Co. v. United Fruit Co., 213 U.S. 347, 355 (1909).
These decisions, which interpreted
"high seas" to mean "non-territorial waters,"
shaped the terms of the debate over DOHSA. The House and Senate
Judiciary Committee Reports largely consisted of letters from
supporters of DOHSA. These DOHSA proponents repeatedly invoked
The Hamilton and The Scotland in the course of
describing the purpose and meaning of DOHSA. See H.R. Rep. No.
66-674, at 1-4 (1920); S. Rep. No. 66-216, at 2-4 (1919); H.R.
Rep. No. 64-1419, at 1-4 (1917); S. Rep. 64-741, at 1-5 (1916);
H.R. Rep. No. 63-160, at 1-5 (1913). Under the Supreme Court's
analysis in McDermott, 498 U.S. at 341-42, the consistent reliance
on these decisions in setting the terms of the debate over DOHSA
strongly suggests that Congress understood "high seas"
to mean what these cases said it did, that is, international
waters.(10) Similarly, the dissent's
failure to address any of these cases causes it to misinterpret
the statute, by equating "high seas" with "beyond
a marine league."
In support of their interpretation,
defendants rely heavily on the statements of Congressman Bryan
of Washington, an opponent of DOHSA, who argued in 1914 that
the "high seas" would include the waters of Puget Sound.
See 14 Cong. Rec. 1929 (Jan. 19, 1914) (statement of Rep. Bryan).
Yet "it is well established that speeches by opponents of
legislation are entitled to relatively little weight in determining
the meaning of the Act in question." Holtzman v. Schlesinger,
414 U.S. 1304, 1313 n.13 (Marshall, Circuit Justice 1973). Even
if these statements were relevant, the context of Rep. Bryan's
remarks reveals that DOHSA's sponsors repeatedly disavowed his
interpretation. See 14 Cong. Rec. 1929 (Jan. 19, 1914) (statement
of Rep. McCoy) ("Puget Sound is not a part of the high seas.
. . . [T]he term 'high seas' refers to that part of the ocean
outside of the three-mile limit."); id. (statement of Rep.
Cox) (defining the high seas as where "[t]he States have
The Supreme Court continued to define
"high seas" as "international waters" in
the years immediately following DOHSA. In Cunard S.S. Co. v.
Mellon, 262 U.S. 100 (1923), the Court ruled that a Prohibition
statute could be enforced only within the territorial limits
of the United States. See id. at 122-23. The Court rejected the
argument that the Prohibition Amendment covered ships "outside
the waters of the United States, whether on the high seas or
in foreign waters," because "on the high seas . . .
there is no territorial sovereign." Id. at 123; see also
Maul v. United States, 274 U.S. 501, 511 (1927) ("The high
sea is common to all nations and foreign to none . . . .").
It is true that the Court has not
provided a consistent definition of "high seas" throughout
the past two centuries. Defendants' understanding of the "high
seas" as those seas beyond the low-water mark appears to
have been shared by Justice Story, who characterized the high
seas as "the open, uninclosed ocean, or that portion of
the sea, which is without the fauces terrae on the sea coast."
United States v. Grush, 26 F. Cas. 48, 51 (D. Mass. 1829)(No.
15,268);(11) see United States
v. Ross, 27 F. Cas. 899, 900 (D.R.I. 1813) (No. 16,196) (employing
similar definition); see also The Manila Prize Cases, 188 U.S.
254, 271 (1903) (relying on Justice Story's definition); United
States v. Rodgers, 150 U.S. 249, 253-55 (1893) (same). Yet Justice
Story's definition was not the authoritative definition of "high
seas." In the early nineteenth century, Justices Thompson
and Baldwin, sitting in district court cases, interpreted "high
seas" to mean non-sovereign waters. See Rodgers, 150 U.S.
at 268 (Gray, J., dissenting) (citing United States v. Jackson,
26 F. Cas. 558, 559 (C.C.S.D.N.Y. 1843) (No. 15,547) (stating
that "the high seas were, properly speaking, within the
territory of no state or country"); United States v. Morel,
26 F. Cas. 1310, 1312 (C.C.E.D. Pa. 1834) (No. 15,807) ("The
open sea, the high sea, the ocean, is that which is . . . under
the particular right or jurisdiction of no sovereign . . . .")).
Because defendants' definition of high seas as "beyond the
low-water mark" was neither the dominant definition of "high
seas," nor the definition used in those Supreme Court cases
that shaped the congressional debate over DOHSA, nor, as discussed
below, is it used in modern decisions concerning DOHSA, we reject
2. The Structure and Purpose of
An analysis of the structure and
purpose of DOHSA also supports plaintiffs' understanding of "high
seas." We should interpret both "high seas" and
"beyond a marine league" to have independent meaning.
See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) ("[T]he
Court will avoid a reading which renders some words altogether
redundant."). Defendants' definition violates this canon
of statutory construction because it renders "high seas"
superfluous. Defendants provide no examples in which the low-water
mark is not well within a marine league, that is, three nautical
miles, of the coast. We do not see why Congress would have retained
two geographical boundaries in the statute when one - beyond
a marine league - subsumes the other. The dissent would also
violate this canon of statutory construction by equating "high
seas" with "beyond a marine league." The dissent's
arguments that Congress intended "both to define and to
indicate," that "high seas" is "definitional,"
and that Congress wanted to "inject as much clarity as possible,"
dissent at [2, 16], provide no justification for depriving
"high seas" of independent meaning.
Plaintiffs' interpretation, however,
defines "beyond a marine league" as a geographical
boundary and "high seas" as a political boundary subject
to change. While the geographical and political boundaries were
coterminous in 1920, there was no reason to think that would
always be the case. See supra note 9 and accompanying text. At
the time DOHSA was enacted, the "minimum limit of the territorial
jurisdiction of a nation," Manchester v. Massachusetts,
139 U.S. 240, 258 (1891), was a marine league. "The void
that existed in maritime law up until 1920 was the absence of
any remedy for wrongful death on the high seas. Congress, in
acting to fill that void, legislated only to the three-mile limit
because that was the extent of the problem." Moragne, 398
U.S. at 398.
Furthermore, the legislative history
of DOHSA shows that while "high seas" was always part
of the statutory language, "beyond a marine league"
was not added until later drafts, to preserve state remedies.
Congress added this section at the same time it dropped "any
navigable waters of the United States." See supra Subsection
II.B. Defendants do not explain why Congress did not also drop
"high seas" at that point in the drafting process;
under defendants' interpretation that high seas means those waters
beyond the low-water mark, the phrase "beyond a marine league"
would by itself exclude state territorial waters.(13)
Congress's decision to retain the phrase "high seas"
strongly supports plaintiffs' claim that "high seas"
has a different independent meaning: it denotes international
waters beyond both state and federal territorial waters.
Not only did Congress retain the
phrase "high seas" in 1, but also Congress inserted
another provision in the 1919 drafts of the statute that used
the phrase "high seas." Section 4 provides that, "[w]henever
a right of action is granted by the law of any foreign State
on account of death by wrongful act, neglect, or fault, occurring
upon the high seas, such right may be maintained in an appropriate
action in admiralty in the courts of the United States . . .
." 46 U.S.C. app. 764. By suggesting that foreign nations
may well have legislated their own wrongful death remedies for
the "high seas," 4 indicates that "high seas"
lay outside the sole jurisdiction of the United States. Thus
4's reference to "high seas" indicates international
waters, "a place belonging to no other sovereign" in
Justice Holmes's phrase. The Hamilton, 207 U.S. at 403. Congress's
use of "high seas" as international waters in 4 strongly
suggests that it used "high seas" to mean international
waters in 1.
Plaintiffs' interpretation of "high
seas" as international, that is, nonterritorial, waters
is also consistent with 7 of DOHSA. That section states:
The provisions of any State statute
giving or regulating rights of action or remedies for death shall
not be affected by this chapter. Nor shall this chapter apply
to the Great Lakes or to any waters within the territorial limits
of any State, or to any navigable waters in the Panama Canal
46 U.S.C. app. 767. Defendants argue
that 7 lists waters excluded from DOHSA's scope, so that this
section would be devoid of meaning if plaintiffs' definition
of "high seas" as nonterritorial waters were correct,
because none of the waters listed in 7 are nonterritorial waters.
This argument ignores that the drafters of DOHSA were forced
to expressly disclaim any ouster of state remedies for wrongful
death. On the floor of the House of Representatives, there were
objections that 7 was "superfluous" because 1 clearly
limited the scope of DOHSA to the high seas. One of DOHSA's supporters
responded that 7 was added "out of an abundant caution,
to calm the minds" of DOHSA's opponents. 59 Cong. Rec. 4482-83
(Mar. 17, 1920) (statement of Rep. Montague). Section 7 was inserted
to clarify that state waters were not subject to DOHSA. See Tallentire,
477 U.S. at 231-32. As Judge Sweet pointed out, the aim of 7
is not to set forth all waters that are beyond the scope of DOHSA,
because it makes no mention of the territorial waters referred
to in 1 that are not within the scope of DOHSA (waters within
a marine league of the shore of "the District of Columbia,
or the Territories or dependencies of the United States").
Finally, applying DOHSA to federal
territorial waters would subvert DOHSA's purpose of creating
a remedy where none existed before, rather than displacing preexisting
state or federal remedies. The legislative history "indicates
that Congress intended to ensure the continued availability of
a remedy, historically provided by the States, for deaths in
territorial waters." Moragne, 398 U.S. at 397; see also
Hughes, supra, at 118 (as revised, DOHSA was "intended to
be supplementary to the local statutes and applicable to waters
which they did not reach"). Congress intended to exclude
federal territorial waters from the scope of DOHSA because federal
and state common-law remedies already existed for deaths in those
It would be particularly inappropriate
to displace preexisting state or federal remedies where, as here,
recovery could be more generous than under DOHSA. As the Supreme
Court noted in Moragne, "the state remedies that
were left undisturbed not only were familiar but also may actually
have been more generous than the remedy provided by the new Act."
Moragne, 398 U.S. at 398; see also Public Adm'r of the County
of New York v. Angela Compania Naviera, 592 F.2d 58, 63 (2d Cir.
1979) ("[W]here a death is caused inside territorial waters,
however, and a wrongful death action is brought under the general
maritime law, the subsidiary elements of the cause of action
may be different from or broader than those delineated in the
Death on the High Seas Act."). The Supreme Court has frequently
reiterated Chief Justice Chase's admonition that, "the humane
and liberal character of proceedings in admiralty" advises
in favor of more generous recovery. The Sea Gull, 21 F. Cas.
at 910; see Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619, 627
(1996) (quoting Chief Justice Chase); Moragne, 398 U.S. at 387
(same). The statute and legislative history demonstrate that
in DOHSA, Congress prioritized the preservation of preexisting
remedies over securing uniformity in admiralty law. See Mobil
Oil Corp. v. Higginbotham, 436 U.S. 618, 624 (1978). Because
defendants' interpretation of the critical language in DOHSA
would oust preexisting remedies for deaths in territorial waters,
which may prove to be more generous than recovery under DOHSA,
we reject that interpretation as inconsistent with the purpose
of the statute.
3. The Meaning of "High Seas":
For most of the century there was
no band of United States territorial waters between state territorial
waters and the high seas similar to that created by Proclamation
5928, which in 1988 extended United States territorial waters
from three to 12 miles. It was not inaccurate to say that the
high seas effectively began at a marine league, i.e., three nautical
miles from the shore of any state.(15)
Thus, as was the case with defendants' definition of "high
seas" as "beyond the low-water mark," there is
some support for the claim that "high seas" equals
"beyond a marine league."(16)
There is scant authority, however, for the claim that even in
light of Proclamation 5928, the high seas still begin at one
marine league, rather than at the 12-mile boundary the Proclamation
In the years following DOHSA, the
dominant understanding of "high seas" remained "beyond
United States territorial waters." In United States v. Louisiana,
394 U.S. 11 (1969) [Louisiana I], which concerned the
scope of the Submerged Lands Act, the Supreme Court provided
a jurisdictional map of the seas:
Under generally accepted principles
of international law, the navigable sea is divided into three
zones . . . . Nearest to the nation's shores are its inland,
or internal waters. These are subject to the complete sovereignty
of the nation . . . . Beyond the inland waters, and measured
from their seaward edge, is a belt known as the marginal, or
territorial sea. Within it the coastal nation may exercise extensive
control but cannot deny the right of innocent passage to foreign
nations. Outside the territorial sea are the high seas, which
are international waters not subject to the dominion of any single
Id. at 22-23 (emphasis added); see
also United States v. Louisiana, 470 U.S. 93, 98 (1985) [Louisiana
II] (same). In setting forth this scheme, the Court relied
on the United States Convention on the High Seas, which states
that, "The term 'high seas' means all parts of the sea that
are not included in the territorial sea or in the internal waters
of a State," United States Convention on the High Seas,
Apr. 29, 1958,  13 U.S.T. 2313, 2314 art. 1, and that the
high seas are "open to all nations." Id. art. 2; see
Louisiana I, 394 U.S. at 23 n.26.
The Supreme Court has frequently
considered the extent and nature of wrongful-death remedies under
general maritime law. From DOHSA (enacted in 1920) to Moragne
(decided in 1970), DOHSA provided the remedy for deaths on the
high seas, while state wrongful death statutes provided the remedy
for deaths in territorial waters. See Higginbotham, 436 U.S.
at 621. After Moragne overruled The Harrisburg
and established a remedy for wrongful death under general maritime
law, subsequent cases set forth the elements of a Moragne-type
remedy. See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974)
(allowing recovery under general maritime law for loss of support
and services, funeral expenses, and loss of society, but not
mental anguish); Miles v. Apex Marine Corp., 498 U.S. 19 (1990)
(setting forth damages recoverable under general maritime law
for seaman's wrongful death). Where the death occurs on the high
seas, however, the Court has made clear that DOHSA is the exclusive
remedy. See Higginbotham, 436 U.S. 618 (denying recovery under
general maritime law); Tallentire, 477 U.S. at 232-33 (denying
recovery under state statute); Zicherman v. Korean Air Lines,
116 S. Ct. 629 (1996) (denying loss-of-society damages); Dooley
v. Korean Air Lines, 118 S. Ct. 1890 (1998) (denying damages
for pre-death pain and suffering). Where the death did not occur
on the high seas, but in territorial waters, DOHSA does not oust
state remedies. In a recent discussion of DOHSA, the Supreme
Court unanimously concluded that 7 of DOHSA "stops DOHSA
from displacing state law in territorial waters." Yamaha,
116 S. Ct. at 628 (citations omitted). Because the Court was
obliged to "preserve the application of state statutes to
deaths within territorial waters," id., it rejected a claim
that DOHSA was the remedy for a death that occurred in the waters
of Puerto Rico, a territory of the United States. Apart from
Yamaha, none of these cases concerned the application
of DOHSA to federal territorial waters nor did they define the
scope of DOHSA.(17)
This court has generally interpreted
"high seas" to mean international waters. In 1924,
for example, we characterized the "high seas" as "'where
the law of no particular state has exclusive force, but all are
equal.'" The Buenos Aires, 5 F.2d 425, 436 (2d Cir. 1924)(quoting
The Scotland, 105 U.S. at 29), and "'the common ground of
all nations.'" Id. (citation omitted). Similarly, in Cove
Tankers Corp. v. United Ship Repair, Inc., 683 F.2d 38, 40 n.1
(2d Cir. 1982), we noted that "the Supreme Court's definition
of high seas" was "'international waters not subject
to the dominion of any single nation.'" Id. at 40 &
n.1 (quoting Louisiana I, 394 U.S. at 22-23). We have also explicitly
relied on the boundary between territorial and international
waters in setting the scope of DOHSA, explaining that the purpose
of DOHSA "was to create a uniform cause of action where
none existed before and which arose beyond the territorial limits
of the United States or any State thereof." D'Aleman v.
Pan Am. World Airways, 259 F.2d 493, 495 (2d Cir. 1958).
Defendants rely heavily on statements
of this court that the high seas begin where state territorial
waters end. See, e.g., First Nat'l Bank in Greenwich v. National
Airlines, Inc., 288 F.2d 621, 622 (2d Cir. 1961) (noting that
DOHSA applied beyond the territorial waters of Alabama). This
argument overlooks that when those cases were decided, there
were no federal territorial waters that lay between state territorial
waters and the high seas. Thus the boundary between the high
seas and state waters was the same
as the boundary between the high seas and federal waters. Where
federal territorial waters do exist, however, the high seas begin
where those federal territorial waters end. See, e.g., Yamaha,
116 S. Ct. at 628.
Defendants also point to a statement
in Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1085
(2d Cir. 1993), which states that DOHSA "gave the representative
of anyone killed on the high seas (i.e., more than three miles
from shore) the right to bring a wrongful death action."
Id. at 1088. Wahlstrom nowhere refers to Proclamation
5928, and it seems to have assumed that the traditional three-mile
boundary remained in effect even after 1988.(18)
In any event, it was beyond dispute that the death in Wahlstrom
occurred on a river in Connecticut, where DOHSA would clearly
not apply. See id. at 1086. This parenthetical reference, in
a case that did not involve the scope of DOHSA, cannot be read
to overrule the clear statements of this court that DOHSA applies
only outside United States territorial waters.
4. The Application of DOHSA to Foreign
Defendants rely on a line of cases
applying DOHSA to the territorial waters of a foreign state to
suggest that the scope of DOHSA is not coextensive with international
waters. In In re Air Crash Disaster Near Bombay, India on January
1, 1978, 531 F. Supp. 1175 (W.D. Wash. 1982), for example, the
court ruled that because the remedy created by DOHSA should be
broadly construed, DOHSA applied within the territorial waters
of India. See id. at 1182-83. In Jennings v. Boeing Co., 660
F. Supp. 796 (E.D. Pa. 1987), aff'd without op., 838 F.2d 1206
(3d Cir. 1988), the court applied DOHSA to a plane crash two
and a half miles off the coast of the Shetland Islands, Scotland.
The application of DOHSA to foreign territorial waters has produced
somewhat unusual results, such as the extension of DOHSA to a
river in Peru, see Cormier v. Williams/Sedco/Horn Constructors,
460 F. Supp. 1010, 1011 (E.D. La. 1978), and a lake in Venezuela,
see Sanchez v. Loffland Bros. Co., 626 F.2d 1228, 1230 n.4 (5th
Cir. Unit A 1980).(19)
Obviously, we are not faced here
with a wrongful death claim arising out of an accident in the
territorial waters of a foreign nation. We take no position on
what courts should do when faced with the difficult question
of whether to apply DOHSA in foreign territorial waters, where
plaintiffs might otherwise be left with only foreign remedies
in foreign courts. The decisions applying DOHSA to foreign territorial
waters seek to provide a remedy in federal court for survivors
of those killed in maritime accidents. See Jennings, 660 F. Supp.
at 803; Bombay, 531 F. Supp. at 1183. These decisions do not
require -- or even suggest -- the application of DOHSA to the
territorial waters of the United States, where plaintiffs already
have a state or federal remedy. See, e.g., Yamaha, 116 S. Ct.
at 628. Furthermore, none of these cases support defendants'
interpretation of the relevant statutory language in DOHSA. Neither
Jennings nor Bombay, nor any of the other cases
that apply DOHSA to foreign territorial waters, adopt defendants'
argument that "high seas" means "beyond the low-water
mark." In fact, the Ninth Circuit in Howard comes
closer to plaintiffs' interpretation, explaining that DOHSA "was
expressly designed to cover wrongful deaths occurring outside
the territorial boundaries of the United States." Howard,
41 F.3d at 530; see also Public Adm'r, 592 F.2d at 63 (same).
Thus, we find no basis for reversal on this point.
D. The Effect of Presidential Proclamation
The parties do not dispute that
had the crash occurred before Presidential Proclamation No. 5928
was issued in 1988, the crash would have occurred beyond United
States territorial waters so that DOHSA would apply. The issue,
therefore, is whether after issuance of the Proclamation, DOHSA
applied to the waters between three and 12 miles from the shore.
The Proclamation, issued by President Reagan, provides for:
the extension of the territorial
sea of the United States of America, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Islands,
the Commonwealth of the Northern Mariana Islands, and any other
territory or possession over which the United States exercises
The territorial sea of the United
States henceforth extends to 12 nautical miles from the baselines
of the United States determined in accordance with international
Proclamation No. 5928, 54 Fed. Reg.
777 (1988). As Judge Sweet noted:
The President also expressly stated
that the Proclamation is consistent with international law. Cf.
[OLC] Opinion, at 3 n.6 (as of 1988, "[o]ne hundred four
nations now claim a twelve-mile territorial sea, while only thirteen
maintain the three-mile limit."); Restatement (Third) of
the Foreign Relations Law of the United States 511 (1987) (international
law allows nations to "exercise jurisdiction over . . .
[t]he territorial sea . . . a belt of sea that may not exceed
12 nautical miles"). The President's exercise of constitutional
power over foreign affairs is therefore consistent with international
The Proclamation thus alters the
three-mile boundary that had historically defined the territorial
sea. See Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 441 n.8 (1989). Concluding that "Congress intended
DOHSA's application to depend on the border between United States
and international territory," Judge Sweet here explained
that the Proclamation effectively moved the starting point of
DOHSA from three to 12 miles offshore. As the crash occurred
eight miles off the coast of Long Island, the district court
ruled, it occurred within the territorial waters of the United
States and DOHSA did not apply.
Defendants note that the Proclamation
includes a provision that states as follows: "Nothing in
this Proclamation . . . extends or otherwise alters existing
Federal or State law or other jurisdiction, rights, legal interests
or obligations derived therefrom." Defendants argue that
the district court imputed an effect to the Proclamation that
it explicitly disclaimed. Commenting on the effect of the Proclamation,
the Office of Legal Counsel of the United States Department of
Justice explained: "The issue . . . is whether Congress
intended for the jurisdiction of any existing statute to include
an expanded territorial sea. Thus, the question is one of legislative
intent." OLC Opinion, supra, at 22.(20)
Therefore, the impact of the Proclamation must be assessed on
a statute-by-statute basis. In United States v. One Big Six Wheel,
166 F.3d 498, 499 n.1 (2d Cir. 1999), for example, this court
held that a provision of the Antiterrorism and Effective Death
Penalty Act that expanded the territorial waters of the United
States for purposes of that statute did not thereby expand federal
criminal jurisdiction under the Gambling Ship Act. Big Six
Wheel does not answer the question of whether Congress would
have intended the expanded territorial sea to be excluded from
DOHSA. Based on our analysis of Congress's intent in enacting
DOHSA, we decline to adopt defendants' view of the effect of
The background and legislative history
of DOHSA demonstrate Congress's intent to exclude all state and
federal territorial waters from its scope. See supra Subsection
II.B; see also Yamaha, 116 S. Ct. at 628 (concluding that "Congress
has not prescribed remedies for the wrongful deaths of nonseafarers
in territorial waters"). Nothing in DOHSA's history or purpose
provides a persuasive reason to fix immutably the scope of the
statute to the boundary between United States territorial waters
and nonterritorial waters as it existed in 1920. Thus, plaintiffs
are correct in concluding that the effect of the Proclamation
is to move the starting point of the application of DOHSA from
three to 12 miles from the coast. Plaintiffs' interpretation
of the Proclamation does not change DOHSA, but designates certain
additional waters to which DOHSA does not apply. If Congress
in 1920 had included a definition of "high seas" as
"waters outside United States or state territorial waters,
where no nation is sovereign," as we believe it essentially
did, the Proclamation would not change this definition. Indeed,
if the Proclamation is construed to create a zone of federal
territorial waters subject to DOHSA, then this would violate
the disclaimer. DOHSA would effectively be amended by excluding
federal territorial waters up to three miles from its coverage,
but including federal territorial waters between three and 12
miles. Such an effect would be inconsistent with Congress's intent
to exclude all federal territorial waters from the scope of DOHSA.
Despite defendants' assertion that
"the overwhelming weight of controlling and persuasive judicial
authority" supports their view, only two district courts,
both in the Fifth Circuit, have discussed the effect of Proclamation
5928 on DOHSA.(21) Francis v.
Hornbeck Offshore (1991) Corp., Civ. A. No. 96-608, 1997 WL 20740
(E.D. La. Jan. 17, 1997), states that, "Proclamation 5928,
by its own terms, does not alter DOHSA's application beyond one
marine league from shore." The Francis court, however,
reached this conclusion in two paragraphs without providing any
analysis. Also, in Blome v. Aerospatiale Helicopter Corp., 924
F. Supp. 805 (S.D. Tex. 1996), the court suggested that DOHSA
would apply beyond Texas state territorial waters and within
federal territorial waters, but concluded that the location of
the crash was an issue of fact that could not be resolved upon
summary judgment. The more persuasive view of the effect of Proclamation
5928 is that it renders the three-mile limit to federal territorial
waters "a vestigial concept." Triton Container Int'l
Ltd. v. Compania Anonima Venezolana de Navegacion, Civ. Nos.
94-00055, 94-00063, 1995 WL 464481, at *3-4 (D. Guam Apr. 13,
Defendants also argue that courts
have consistently held that even after Proclamation 5928, DOHSA's
coverage begins three miles from the shore of any state. See
Miller v. American President Lines, Ltd., 989 F.2d 1450, 1455
(6th Cir. 1993); In re Goose Creek Trawlers, Inc., 972 F. Supp.
946, 948 (E.D.N.C. 1997); In re American Dredging Co., 873 F.
Supp. 1539, 1546 (S.D. Fla. 1994), aff'd, American Dredging Co.
v. Lambert, 81 F.3d 127 (11th Cir. 1996); Smallwood v. American
Trading & Transp. Co., 839 F. Supp. 1377, 1380 (N.D. Cal.
1993); In re Air Crash Disaster Near Honolulu, 783 F. Supp. 1261,
1264 (N.D. Cal. 1992). The force of these cases is much more
modest than defendants suggest. First, none mention Proclamation
5928. Second, none involved accidents between the traditional
three-mile boundary and the 12-mile boundary created by the Proclamation,
providing no occasion to address the issues raised in this case.
The accidents in Goose Creek, American Dredging,
and Smallwood occurred in what were clearly state waters.
Miller was "an asbestos case," 989 F.2d at 1453,
and the plaintiff was a seaman exposed to asbestos on defendant's
ships over many years, while the accident in Honolulu
occurred "over international waters approximately 85 nautical
miles south of Honolulu." In re Air Crash Disaster Near
Honolulu, 792 F. Supp. 1541, 1543 (N.D. Cal. 1990). Finally,
none of these cases employ defendants' definition of "high
seas" as "beyond the low-water mark." Instead,
they equate "high seas" with "beyond a marine
league," thereby rendering the former phrase surplusage.
Finally, the dissent's decision
to begin its analysis with the Proclamation, using an executive
act as a lens through which to interpret a statute passed by
Congress 68 years earlier, foreordains its error. As indicated
above, see supra Section II.A, we believe that the sounder approach
is to begin with Congress's understanding of the language and
purpose of DOHSA at the time it was enacted. The first section
of the dissent simply assumes, without proving, that DOHSA is
not "linked to the international legal understanding of
the breadth of the U.S. territorial sea." Dissent at .
This argument might seem persuasive only if one were to strip
DOHSA of its context and ignore, as the dissent does, that the
Supreme Court repeatedly used "high seas" to mean international
waters at the time of the drafting and passage of DOHSA. See,
e.g., American Banana, 213 U.S. at 355; La Bourgogne, 210 U.S.
at 115; The Hamilton, 207 U.S. at 403; The Scotland, 105 U.S.
at 29. Since DOHSA, both the Supreme Court and this court have
affirmed the understanding of "high seas" as international
waters. See Louisiana II, 470 U.S. at 98; Louisiana I, 394 U.S.
at 22-23; Cove Tankers, 683 F.2d at 40 n.1; The Buenos Aires,
5 F.2d at 436. The dissent offers no refutation, or even mention,
of any of these cases, which link the term "high seas"
in DOHSA to the boundary between international and United States
In sum, once the United States or
any state or territory thereof has asserted sovereignty over
certain waters, DOHSA does not govern the remedies available
in those waters.
E. Remedies in Federal Territorial
Finally, defendants object that
the district court created a "no-man's land" between
three and 12 miles from the shore of the coastal states. As our
discussion of DOHSA's history and purpose makes clear, the district
court's decision did not create a "no-man's land,"
but recognized that the Proclamation created a larger zone of
federal territorial waters. This zone of waters is governed by
the same remedies that have traditionally governed federal territorial
waters. Defendants insist that exempting the federal territorial
waters affected by the Proclamation from DOHSA creates inconsistency
and undermines uniformity. But it would be more inconsistent,
and more arbitrary, to impose one remedial scheme over certain
federal territorial waters (up to three miles) and a different
remedial scheme over other federal territorial waters (from three
to 12 miles).(22)
The core purpose of DOHSA was to
provide a remedy where
one did not exist before, not to
oust either a Moragne-type remedy or state law remedies.
The remedies available to plaintiffs for wrongful death in the
federal territorial waters in which the crash occurred may prove
better suited to this case than DOHSA's statutory requirements.
As the Supreme Court did in Yamaha, we leave for the district
court to resolve the conflict of law questions in determining
which remedies are available.(23)
We hold only that the Death on the High Seas does not apply to
federal territorial waters.
For the reasons stated above, we
conclude that plaintiffs' interpretation of the relevant statutory
language better reflects the meaning and purpose of the Death
on the High Seas Act. Accordingly, we affirm the decision of
the district court that DOHSA does not apply to the United States
territorial waters where the crash in this case occurred. We
remand this case to the district court for further proceedings
consistent with this opinion.(24)
nautical mile equals approximately 1.15 land miles. This slight
difference between the two has no effect on the decision in this
case. Therefore, most references to mileage hereafter will ignore
marine league is three nautical miles.
August 2, 1999, President Clinton extended the boundaries of
the contiguous zone of the United States, a zone of waters "contiguous
to the territorial sea of the United States," to 24 nautical
miles. See Presidential Proclamation No. 7219, 64 Fed. Reg. 48,701
(Aug. 2, 1999). Because this crash predated President Clinton's
Proclamation, we have no occasion to consider its effect.
"low-water mark" is "the shoreline of a sea marking
the edge of the water at the lowest point of the ordinary ebb
tide." Black's Law Dictionary 1586 (7th ed. 1999).
his opinion certifying his order for immediate appeal, Judge
Sweet noted that the effect of his order may be to allow plaintiffs
to recover damages for loss of society, survivor's grief, pre-death
pain and suffering, and punitive damages. See In re Air Crash
off Long Island, New York, on July 17, 1996, 27 F. Supp. 2d 431,
433 (S.D.N.Y. 1998). We express no view as to the accuracy of
Moragne Court explained that The Harrisburg assumed,
wrongly, that the United States followed British common law,
under which there was no wrongful death action because the penalty
for all intentional or negligent homicide was death and forfeiture
of the felon's property to the Crown, leaving nothing to recover
in a civil suit. See 398 U.S. at 382-84. In any event, "the
wholesale abandonment" of the prohibition on wrongful death
actions in England and in the United States justified overruling
The Harrisburg. See id. at 388.
George Whitelock, A New Development in the Application of Extra-Territorial
Law to Extra-Territorial Marine Torts, 22 Harv. L. Rev. 403,
territorial waters of Texas and Florida, however, extended three
leagues seaward (roughly 10 miles), based on the boundaries extant
when Texas was admitted, and Florida readmitted, into the Union.
See United States v. Louisiana, 363 U.S. 1, 64 (1960); United
States v. Florida, 363 U.S. 121, 128-29 (1960).
Douglas W. Kmiec, Office of Legal Counsel, Legal Issues Raised
by the Proposed Presidential Proclamation to Extend the Territorial
Sea, 1 Terr. Sea J. 1, 9-10 (1990) [OLC Opinion].
in a congressional report lack the force of law. See American
Hosp. Ass'n v. NLRB, 499 U.S. 606, 616 (1991). However, "[a]
committee report, representing a collective statement by the
drafters about the intended purpose of proposed legislation,
is considered a particularly good indicator of congressional
intent when it is otherwise difficult to ascertain." Pierpoint
v. Barnes, 94 F.3d 813, 817 (2d Cir. 1996).
terrae" literally "jaws of the land," are "narrow
headlands and promontories, inclosing a portion or arm of the
sea within them." Black's Law Dictionary 738 (4th ed.
repeatedly relied on Ross v. McIntyre, 140 U.S. 453 (1891), both
in their brief and at oral argument, to support their definition
of "high seas." Arising out of a murder in Yokohama,
Ross involved a challenge to the ability of a consular
tribunal to conduct criminal proceedings. Although the Court
stated that, "'[H]igh seas' includes water on the sea coast
[beyond] the boundaries of low-water mark," it did so only
in the course of setting forth a position that it rejected. See
id. at 470-71. Ross does not endorse this definition of
dissent's analysis, which would equate "high seas"
with "beyond a marine league," also suffers from the
dissent objects that "[n]o clear remedies existed for wrongful
death beyond state territorial waters after The Harrisburg,
a gap in the law that DOHSA was designed expressly to fill."
Dissent at . This argument simply ignores the cases
in which the courts, including the Supreme Court, provided remedies
in an effort to ameliorate the harsh rule of The Harrisburg.
See Section II.A.
cases provide rather abbreviated descriptions of DOHSA. Kernan
v. American Dredging Co., 355 U.S. 426 (1958), for example, omits
both the "high seas" language and the statutory language
concerning United States territories: "Where death occurs
beyond a marine league from state shores, the Death on the High
Seas Act . . . provides a remedy for wrongful death." Id.
at 430 n.4.
seem to offer somewhat conflicting definitions of "high
seas." In their discussion of the drafting and intent of
the statue, they endorse the "beyond the low-water mark"
definition, while in their discussion of the cases addressed
hereafter in Sections II.C.4 and II.D, they appear to equate
"high seas" with "beyond a marine league,"
as do the cases they rely upon.
a footnote, Yamaha states that DOHSA "provides a
federal claim for wrongful death occurring more than three nautical
miles from the shore of any State or Territory." Yamaha,
116 S. Ct. at 624 n.4. This definition not only makes no mention
of "high seas," but also there is no indication that
the Court considered the effect of Proclamation 5928, issued
eight years before. The Proclamation was not mentioned in any
of the briefs to the Court, nor at oral argument. See Brief for
the Petitioners, Yamaha (No. 94-1387), 1995 WL 451711;
Brief of Respondents, 1995 WL 551075; Petitioners' Reply Brief,
1995 WL 601284; Brief Amicus Curiae of the National Marine Manufacturers'
Association, 1995 WL 703412; Oral Argument, 1995 WL 648001.
none of the briefs in Wahlstrom mentioned Proclamation
5928, the issue was not before the court. See Brief of Appellant,
Wahlstrom (No. 92-7948); Brief of Appellees; [Reply] Brief
courts have also applied DOHSA to the territorial waters of other
foreign countries or territories, see, e.g., Howard v. Crystal
Cruises, Inc., 41 F.3d 527, 529 (9th Cir. 1994) (Mexico); Kunreuther
v. Outboard Marine Corp., 757 F. Supp. 633, 634 (E.D. Pa. 1991)
(Jamaica); Kuntz v. Windjammer "Barefoot" Cruises,
Ltd., 573 F. Supp. 1277, 1280 (W.D. Pa. 1983), aff'd without
op., 738 F.2d 423 (3d Cir. 1984) (Bahamas).
Opinion further confirms that "the high seas ... are the
remainder of the ocean beyond the territorial sea." OLC
Opinion, supra, at 4.
dissent makes the same sweeping assertion. See dissent at [1,2].
is also true of the dissent's analysis.
dissent objects that we "decline to address in even the
most cursory fashion what law would actually apply in the TWA
litigation." Dissent at . The district court
never ruled on the issue. We see no compelling need to depart
from the standard practice of having the district court address
this question of law in the first instance.
dissent notes that while this case was pending, see dissent at
[21 n.12], both houses of Congress passed a bill that
would alter DOHSA by excluding from its scope commercial aviation
crashes occurring on or after July 16, 1996. See H.R. 1000, 106th
Cong. 404 (2000). The bill is currently before the President.
The parties have not notified the court as to the progress of
this bill or taken any position with respect thereto. Under the
circumstances, we take no position on the effect of the bill.
Regardless of the bill, we conclude, based on the record, the
arguments of the parties and the district court's decision, that
this crash is not subject to DOHSA.
SOTOMAYOR, Circuit Judge,
In an understandable desire to provide
the relatives and estate representatives of the 213 victims of
the TWA Flight 800 crash with a "more generous" recovery,(1)ante at [23-24], the
majority fails to give proper effect to the limiting language
of Proclamation 5982; to DOHSA's language, legislative history,
and purpose; and to a wealth of case law since DOHSA's passage,
all of which support the inexorable conclusion that DOHSA applies
to all deaths occurring "beyond a marine league [three
nautical miles] from the shore of any State," 46 U.S.C.
761, and not only to deaths occurring beyond the U.S. territorial
By its explicit terms, the Proclamation
changed the meaning of the U.S. territorial sea - and thus its
complement the "high seas" - for international, but
not domestic, law purposes. The majority nevertheless applies
the territorial boundaries set forth in the Proclamation to DOHSA,
even though the meaning of "high seas" for the purposes
of DOHSA is a question purely of domestic law. Moreover, the
majority's application of the Proclamation to DOHSA is grounded
almost entirely on its interpretation of what Congress probably
thought the term "high seas" meant at the time of DOHSA's
passage, i.e., "waters . . . where no nation is sovereign,"
ante at , and the majority's assumption that
Congress viewed the three nautical mile line at which the high
seas commenced as a "political boundary line subject to
change," ante at . Based on this reasoning,
the majority concludes that the Proclamation's expansion of the
boundary line of the U.S. territorial sea from three to twelve
nautical miles necessarily excluded DOHSA's application in this
nine mile zone.
The majority's focus on Congress'
understanding of the term "high seas" in 1920 is misplaced.
The majority ignores that the DOHSA Congress, by using the phrase
"high seas beyond one marine league from the shore of any
State," intended both to define and to indicate the geographical
boundary line at which the high seas began - three nautical miles
from the U.S. coast - because that boundary line coincided with
the outer border of the states' territorial seas. Congress wished
to preserve state remedies in state waters, and to provide a
separate remedy, i.e. DOHSA, to waters subject only to federal
jurisdiction, i.e., "the high seas beyond a marine league."
Simply stated, it is irrelevant whether Congress shared the international
legal understanding of "high seas" as "non-sovereign
waters," because its only concern at the time of DOHSA's
passage was state, and not federal, boundaries. Nothing in DOHSA's
language or legislative history supports the majority's conclusion
that Congress intended "high seas" to be a variable
term "subject to change" because of evolving international
The majority's conclusion is also
contrary to the holdings and dicta of every other court that
has considered this issue, and cannot be reconciled with a long
line of cases from at least four other circuits applying DOHSA
to deaths occurring in foreign territorial waters - in other
words, waters indisputably subject to foreign sovereigns.
For these reasons, discussed more
fully below, I do not believe that the Proclamation replaced
DOHSA with general federal maritime law in the zone of waters
lying between three and twelve nautical miles seaward of the
U.S. coast (the "disputed zone"). I therefore respectfully
A. The Proclamation
As drafted, DOHSA provides a statutory
remedy for wrongful deaths that occur "on the high seas
beyond a marine league [or three nautical miles] from the shore
of any State, or the District of Columbia, or the Territories
or dependencies of the United States." 46 U.S.C. 761.
In 1920, when DOHSA was enacted, the three nautical mile line
marking the start of the "high seas," and the end of
U.S. territorial waters, coincided with the line bounding the
states' territorial seas. The 1988 Proclamation, by extending
the "territorial waters of the United States" from
three to twelve nautical miles from the U.S. coast, ended this
coincidence for international law purposes. 54 Fed. Reg. 777
(Dec. 27, 1988). This appeal poses the question whether the Proclamation
changed DOHSA's zone of application by rendering it effective
only beyond the twelve nautical mile line.
The Proclamation modified the definition
of "U.S. territorial waters" - and therefore the beginning
point of the high seas -- for international, but not domestic,
law purposes. The Proclamation "extended the United States
territorial waters to twelve nautical miles for the limited
purpose of conforming to the territorial limits then permitted
by international law [and] explicitly limits its application
by declaring that '[it does not extend or otherwise alter] existing
Federal or State law or any jurisdiction, rights, legal interests,
or obligations derived therefrom.'" United States v.
One Big Six Wheel, 166 F.3d 498, 501 (2d Cir. 1999) (quoting
Proclamation) (emphasis added). As the Supreme Court has observed,
"the President 'proclaimed' a 12-mile territorial sea
for international law purposes." United States
v. Alaska, 503 U.S. 569, 589 n.11 (1992) (citing Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441
n.8 (1989)) (emphasis added); see also 1
Thomas J. Schoenbaum, Admiralty and Maritime Law, 2-14 n.7, at
32 (2d ed. 1994) (noting that the Proclamation "is effective
. . . only for foreign policy purposes"); Richard J. McLaughlin,
The Impact of the Extension of the U.S. Territorial Sea on
Foreign Flag Vessels, 2 Terr. Sea J. 91, 94 (1992) (quoting
State Department representative's remark that "'the Proclamation
affects the breadth of the territorial sea only for international
purposes.'") (quoting Examination of the President's Proclamation
Extending the Territorial Sea of the United States from 3- to
12-Miles, Hearings Before the Subcomm. on Oceanography and Great
Lakes of the House Comm. on Merchant Marine and Fisheries, 101st
Cong., 1st Sess. 65, at 5 (1989) [hereinafter House
Hearings]).(2) Because the Proclamation
expressly states that it does not "alter" any "rights,
legal interests or obligations" under federal law, an expansion
of the U.S. territorial sea for international law purposes should
not alter the breadth of the territorial seas for domestic purposes.
As a corollary, the starting point of the "high seas"
for the purpose of a statute employing that term should remain
the same, unless Congress's purpose when includingthat term was
linked to the international legal understanding of the breadth
of the U.S. territorial sea.(3)
We have previously recognized this
principle. In Wheel, a Second Circuit case glossed over
by the majority, seeante at [34-35], this Court
concluded that, because of the Proclamation's limiting language,
the Proclamation did not affect the meaning of "'beyond
the territorial waters of the United States'" for the purposes
of a 1994 amendment to the Gambling Ship Act, 18 U.S.C. 1081-1084
(1994). Wheel, 166 F.3d at 498-99, 501.(4)Wheel
found that "territorial waters" in 1081 of the Gambling
Ship Act referred to waters extending only three nautical miles
from the U.S. coast, because Congress had not stated otherwise.
See id. at 501, 502. That conclusion rested in
part on the perception that the meaning of "U.S. territorial
waters" for the purposes of the amendment to the Gambling
Ship Act, which forbade gaming aboard American flag vessels in
U.S. waters, was a matter of "federal" rather than
international law. See id. at 499 & n.1, 501.
Federal agencies have also recognized
the distinction between the meaning of the U.S. territorial sea
for the purposes of domestic law, on the one hand, and international
law, on the other. The Federal Aviation Administration ("FAA")
has observed, for example, that the Proclamation "extend[ed]
the territorial sovereignty of the United States government,
for international purposes, from 3 to 12 nautical miles
from the U.S. coast," but did "not alter the geographical
boundaries of the United States (i.e., national borders and territorial
waters within 3 miles of the U.S. coast) for domestic purposes."
Applicability of Federal Aviation Regulations in the Airspace
Overlying the Waters Between 3 and 12 Nautical Miles from the
United States Coast, 54 Fed. Reg. 264 (1989) (emphasis added).
Accordingly, the FAA determined that the Proclamation did not
itself redefine "territorial sea" within the Federal
Aviation Act of 1958, 49 U.S.C. 1301, and thus found it necessary
to redefine "territorial seas" in certain parts of
the implementing regulations to bring the United States into
compliance with the Chicago Convention on International Civil
Aviation, Dec. 7, 1944, 59 Stat. 1516, 15 U.N.T.S. 295. See
id. The Coast Guard and the Environmental Protection Agency
have similarly understood the Proclamation's effect. See
Emergency Position Indicating Radio Beacons for Uninspected Vessels,
58 Fed. Reg. 13364 (1993) (observing that "Proclamation
5928 . . . extended the territorial sea to twelve nautical miles
. . . for the purposes of international law; however, that Proclamation
did not affect domestic law," and therefore concluding that
the requirement, contained in 46 U.S.C. 4102, that certain emergency
equipment must be carried by uninspected vessels on the "high
seas" still applied within the expanded territorial sea
beyond one marine league from the coast) (Coast Guard); National
Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed.
Reg. 8666 (1990) (observing that the Proclamation, given its
limiting language, did not change the meaning of "territorial
sea" for purposes of the National Contingency Plan) (Environmental
Except for the district court and
the majority in this case, every court to consider DOHSA's range
of application since the Proclamation's issuance has found that
DOHSA continues to apply in the disputed zone. The majority's
efforts to discount these cases cannot alter the force of their
consistent reasoning. The court in Francis v. Hornbeck Offshore
(1991) Corp., Civ. A. No. 96-608, 1997 WL 20740 (E.D. La.,
Jan. 17, 1997), held that, because of its limiting language,
the Proclamation did not affect DOHSA. See id.
at *1 ("Proclamation 5928, by its own terms, does not alter
DOHSA's application beyond one marine league from shore . . .
."). Similarly, the court in Blome v. Aerospatiale Helicopter
Corp., 924 F. Supp. 805, 814 (S.D. Texas 1996), aff'd,
114 F.3d 1184 (5th Cir. 1997) (unpublished disposition),
although recognizing that Proclamation 5928 extended the U.S.
territorial sea to twelve nautical miles, concluded that DOHSA
applied where a death occurred more than nine nautical miles
from the Texas coast, beyond state waters but within the U.S.
territorial sea.(5) As the majority
recognizes, see ante at , numerous other
courts, albeit in dicta, have stated that DOHSA applies
in the disputed zone even after the issuance of the Proclamation.
The case Yamaha Motor Corp. v. Calhoun, 516 U.S. 199,
207 n.4 (1996), in which the Supreme Court observed that "[DOHSA]
provides a federal claim for wrongful death occurring more than
three nautical miles from the shore of any State or Territory,"
should be added to the majority's long list.(6)
In sum, the weight of authority
recognizes that the Proclamation changed the meaning of the U.S.
territorial sea - and thus its complement the "high seas"
- only for international law purposes. This understanding comports
with both the Proclamation's limiting language and its principal
purpose of protecting national security. See McLaughlin,
supra note 1, at 95. When interpreting a domestic statute
like DOHSA, therefore, we should not incorporate international
concepts of territorial and high seas unless Congress specifically
intended to import those concepts into the statute. Rather, we
should follow the lead of the Wheel court, which found
that "U.S. territorial waters" for purposes of the
Gambling Ship Act extended only three nautical miles - and therefore
that the high seas commenced at 12 nautical miles - because Congress
had not stated otherwise. See Wheel, 166 F.3d at
The guidance of the Office of Legal
Counsel ("OLC")(7) on
determining the Proclamation's effect, if any, on the meaning
of the territorial sea for the purposes of a particular statute
is consistent with this view. According to the OLC, in determining
whether the Proclamation affects a particular statute, the issue
is whether Congress "intended" the statute to be affected
by a change in the meaning of the U.S. "territorial sea
under international law." Douglas W. Kmiec, Legal
Issues Raised by the Proposed Presidential Proclamation To Extend
the Territorial Sea, 1 Terr. Sea J. 1, 22 (1990) (opinion
of OLC) (emphasis added.). The OLC suggests that the starting
point in this analysis is the statutory language; if the language
is ambiguous, analysis of the statute's legislative history and
its structure and purpose is appropriate. See id.
at 23. This analytical framework comports with the classical
canons of statutory construction. CompareFriends of the Earth
v. Consolidated Rail Corp., 768 F.2d 57, 62-63 (2d Cir. 1985)
(observing that the analytical starting point is the statute's
plain language and that if the language is clear and unambiguous,
the judicial inquiry ordinarily ends) with Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-21 (1986)
(construing a DOHSA provision, where a plain language reading
proved inconclusive, in light of DOHSA's legislative history,
congressional purpose, and the "importance of uniformity
of admiralty law"). An analysis of DOHSA under these interpretive
guidelines compels the conclusion that DOHSA applies to the disputed
B. DOHSA's Language
DOHSA denotes its zone of application
as "on the high seas beyond a marine league from the shore
of any State, or the District of Columbia, or the Territories
or dependencies of the United States." 46 U.S.C. 761. The
OLC suggests that where a statute includes only a boundary measurement
(i.e., "three miles seaward from the coast"), or employs
the term "territorial sea" and defines it as "three
miles seaward from the coast," the statute does not "invoke
the concept of the territorial sea" but merely denotes "an
area that coincides with it." Kmiec, supra, at 22-23.
According to the OLC, statutes incorporating such definitional
language are unambiguously unaffected by the Proclamation, and
further inquiry is unnecessary. See id.
Whether or not one accepts OLC guidance
on interpreting congressional statutes, the OLC has hit on what
I consider the only outcome-determinative ambiguity in 761: whether
by using the term "high seas" Congress intended to
incorporate the international legal concept of high seas into
the provision, or merely to denote a zone - defined as those
waters "beyond a marine league" from the coast - that
coincided with the starting point of the high seas at the time
of DOHSA's enactment. The appellees and the majority frame the
debate around an ambiguity in the statute that is not dispositive
of this case - the question whether the term "high seas,"
as understood by the DOHSA Congress, referred to waters seaward
of the three-mile line, or to waters seaward of the low-water
mark. See ante at . In light of the considerable
evidence favoring the former view, I agree with the majority
that Congress probably understood "high seas" to mean
waters outside state territorial seas. Seeante at .
However, this does not help to resolve the essential ambiguity
in the statute that I have just identified.
The majority states that if Congress,
by using the term "high seas" in DOHSA, meant to indicate
"waters outside . . . state territorial waters, where no
nation is sovereign, . . . the Proclamation would not change
this definition," ante at , and
from this concludes that the Proclamation's declaration of a
U.S. territorial sea extending twelve nautical miles necessarily
excluded DOHSA's application from the disputed zone. If the majority's
observation settled the matter, however, it would mean, by analogy,
that the Proclamation affected virtually every domestic statute
employing the term "U.S. territorial sea," because
that term has always been understood to indicate all waters over
which the United States has jurisdiction, and the United States,
after issuance of the Proclamation, enjoys jurisdiction over
waters reaching twelve nautical miles from its coast. Yet, as
noted above, neither courts nor administrative agencies have
understood the Proclamation to have such broad effect. The majority's
error flows from its analytical method; like the OLC, I think
the appropriate mode of analysis is to determine whether Congress
intended to incorporate the international law concept of non-sovereign
waters into the meaning of "high seas" when drafting
DOHSA, or merely intended to denote a boundary line coinciding
with the start of the high seas in that era.
The numerous courts that have applied
DOHSA to foreign territorial waters intuitively understood that
Congress intended the latter. In Howard v. Crystal Cruises,
Inc., 41 F.3d 527, 529, 531 (9th Cir. 1994), for
example, the court held that a death "within the territorial
waters of a foreign state [Mexico] occurs on the 'high seas'
for purposes of DOHSA." (Emphasis added.) Thus, the
fact that a death occurred within waters controlled by another
sovereign does not affect DOHSA's applicability. Accord
Azzopardi v. Ocean Drilling & Exploration Co., 742
F.2d 890, 892, 894 (5th Cir. 1984) (permitting DOHSA
claim for accident occurring in the English Channel); Sanchez
v. Loffland Bros., 626 F.2d 1228, 1230 n.4 (5th
Cir. 1980); Jennings v. Boeing Co., 660 F. Supp. 796,
803 (E.D. Pa. 1987), aff'd, 838 F.2d 1206 (3d Cir. 1988);
Kuntz v. Windjammer "Barefoot" Cruises, Ltd.,
573 F. Supp. 1277, 1280-81 (W.D. Pa. 1983), aff'd, 738
F.2d 423 (3d Cir. 1984); First & Merchants Nat'l Bank
v. Adams, 1979 A.M.C. 2860 (E.D. Va. 1979), aff'd in part,
rev'd in part on other grounds, 644 F.2d 878 (4th
Cir. 1981). This case law -- from the Third, Fourth, Fifth, and
Ninth circuits -- has been cited as definitive by admiralty treatises.
See 2 Benedict on Admiralty 81(b) n.21 (7th
ed. rev. 1999) ("It appears to be settled that the term
'high seas' within the meaning of DOHSA . . . includes
the territorial waters of a foreign nation as long as they are
more than a marine league away from any United States shore.")
(emphasis added); 1 Thomas J. Schoenbaum, Admiralty and Maritime
Law, 8-2 at 469-70 (2d ed. 1994) ("[DOHSA applies] even
[to] those killed in foreign territorial waters."). As appellees
conceded at oral argument, these authorities cannot be reconciled
with a holding that the DOHSA Congress intended to incorporate
into the Act the international legal concept of the high seas
as non-sovereign waters. The majority refuses altogether to address
this issue, a tacit admission that reconciliation is difficult,
if not impossible.
C. Legislative History
As the majority observes, DOHSA
was drafted to fill the void created by The Harrisburg,
119 U.S. 199 (1886), which held that no federal common law remedy
existed for wrongful death at sea, and to eliminate the confusion
caused by the Court's subsequent efforts to alleviate The
Harrisburg's harsh effects. Seeante at [7-9].
DOHSA's advocates, in the earliest report on the bill, stated
that the bill was "designed to remedy this situation by
giving a [federal] right of action for death," H.R. Rep.
No. 63-160, at 2 (1913); see id. at 3 (same), and
added that while the bill provided the exclusive remedy for deaths
on the high seas, it left "unimpaired the rights under State
statutes as to deaths on waters within the territorial jurisdiction
of the States." Id. at 2. From the start, therefore,
DOHSA's proponents sought to preserve state remedies in state
Indeed, one of the questions the
drafters initially confronted was whether DOHSA should be applicable
to "all navigable waters, and thus supersede state
statutes within their respective boundaries, or [should be] supplementary
to state statutes and apply only on waters not covered by any
statute," i.e., the high seas. Robert M. Hughes,(8)Death Actions in Admiralty,
31 Yale L.J. 115, 117 (1921) (emphasis added). Because the latter
solution was deemed superior, DOHSA was drafted to "cover
only waters a marine league from the shore of a state, or waters
within regions where the federal government has exclusive
jurisdiction." Id. at 119 (emphasis added); see
also Right of Action for Death on the High Seas: Hearing
Before Subcomm. No. 2 of the Comm. on the Judiciary, 64th
Cong. 1st Sess. 11-12 (1916) [hereinafter 1916 Hearing]
(statement of Robert M. Hughes) ("[The committee of the
Maritime Law Association] came to the conclusion that . . . the
simplest bill and the one that would cause the least opposition
would be a bill to recognize the State statutes as governing
on the territorial waters of the State, and to make our bill
simply apply where no bill applies at all now - that is, a marine
league from shore.");(9)
Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990) ("Congress
did not extend DOHSA to territorial waters because it believed
state statutes sufficient in those areas.") (citing
Moragne v. States Marine Lines, Inc., 398 U.S. 375, 397-98
(1970)) (emphasis added); Moragne, 398 U.S. at 398 (noting
that Congress legislated only to the three-mile line because
"that was the extent of the problem," and because Congress
wished to ensure that the "solution of one problem would
not create another by inviting the courts to find that the Act
pre-empted the entire field, destroying the state remedies that
had previously existed"); id. at 399-400 (finding
that DOHSA was confined to the high seas in order to preserve
state remedies). Compare 14 Cong. Rec. 1929 (1914) (statement
of Rep. Cox) (noting that high seas are that part of the ocean
where the "[s]tates have no jurisdiction") with
id. (statement of Rep. McCoy) ("[T]he term 'high
seas' refers to that part of the ocean outside of the 3-mile
Thus, the fact that DOHSA at the
time of its drafting excluded U.S. territorial waters was irrelevant
to Congress in establishing the three nautical mile boundary
line. The only "concept" that mattered to DOHSA's drafters
was the concept of the states' territorial seas. I have found
no justification in the legislative history, and the majority
has pointed to none, for carving out the three nautical mile
zone other than to preserve state remedies (and the remedies
of U.S. territories and dependencies(10)).
More importantly, I think we can safely conclude that if the
U.S. territorial sea had exceeded three nautical miles in 1920,
Congress would still have set DOHSA's boundary line "beyond
a marine league" from the U.S. coast, because the decision
in The Harrisburg left no remedy for death in any area
outside state territorial waters.
For this reason, Moragne's
overruling of The Harrisburg does not affect our analysis.
The DOHSA Congress could not have predicted this development
which occurred several decades after DOHSA's passage. Moragne's
rejection of The Harrisburg's rule precluding federal
common law remedies for death at sea could not possibly have
affected Congress' intent when drafting DOHSA, and it is the
intent of the DOHSA Congress which is relevant to this discussion.
In short, when Congress inserted
the term "high seas" into DOHSA, Congress intended
to incorporate a geographical boundary line - "the high
seas beyond a marine league from the shore" - which preserved
state remedies in state waters; Congress did not intend to import
an international legal concept of U.S. federal sovereignty subject
to change. 46 U.S.C. 761. Nor could it have predicted that, decades
later, Moragne would overrule The Harrisburg.
D. Revisiting DOHSA's Language in
Light of the Legislative History
The logical endpoint of this analysis
is that the language "beyond a marine league" is definitional,
clarifying the geographical boundary line at which the "high
seas" began. It was reasonable for Congress to inject as
much clarity as possible into DOHSA because, as the majority
acknowledges, the starting point of the high seas was uncertain
in that era. See ante at 13. Moreover, the statute
contains no independent definitional section.
The majority invokes the "well-settled
rule of statutory construction that 'courts should disfavor interpretations
of statutes that render language superfluous,'" Spring
Spectrum, L.P. v. Willoth, 176 F.3d 630, 640 (2d Cir. 1999)
(quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249,
253 (1992)), to argue in favor of a different reading of the
language "on the high seas beyond a marine league."
Both the district court and the majority cite this principle
in contending that the appropriate way to read 761 is as introducing
two independent criteria for DOHSA's applicability: The death
must have occurred (1) on the high seas, and (2) beyond one marine
league from the coast. SeeIn re Air Crash off Long Island,
1998 WL 292333, at *3; ante at . This reading
does not make sense, however, because DOHSA's drafters perceived
"high seas" and "beyond a marine league"
functionally to mean the same thing - the outer border of the
states' territorial seas - whatever uncertainty swirled around
the meaning of high seas in that era. See ante
at [17-18]. Moreover, according to the majority's own
interpretation of what Congress meant by "high seas,"
i.e. non-sovereign waters, see ante at , inserting
the language "beyond a marine league" could be read
as superfluous, because the United States indisputably exercised
sovereignty over all waters within a marine league of its coast.
In the circumstances under which
DOHSA was drafted, I submit that including the language "beyond
one marine league" and "high seas" did not create
surplusage. Even if it had, the DOHSA Congress expressly indicated
its willingness to indulge in surplusage for the sake of clarity.
See 59 Cong. Rec. 4486 (1920) (statement of Rep. Goodykoontz)
("Even if you treat [a] phrase as surplusage, it can do
no harm, for the reason that that which is useless does not vitiate
the useful."). Section 767, for example, was included in
DOHSA because it reaffirmed an important element of 761 -- that
the statute would preserve state remedies. Seeid. at 4482-83
(statement of Rep. Montague) (noting that 767, despite objections
that it was "superfluous," was retained "out of
an abundant caution, to calm the minds" of those who feared
that DOHSA would oust state remedies.) Indeed, the majority recognizes
that the DOHSA Congress found necessary this "superfluous"
language. See ante at . Similarly, it
seems particularly likely that, out of an abundance of caution,
Congress would have found it important to include both the term
"high seas" and the explicative language "beyond
a marine league from the shore" to ensure that no confusion
about DOHSA's application would arise.
Because of the state of the law
at the time of DOHSA's passage, I also cannot agree with the
majority and the district court that Congress understood "high
seas flexibly to mean non-sovereign waters." In re Air
Crash off Long Island, 1998 WL 292333, at *8. No clear remedies
existed for wrongful death beyond state territorial waters after
The Harrisburg, a gap in the law that DOHSA was designed
expressly to fill. See ante at [7-9].
It seems therefore highly unlikely that Congress would have intended
to create the risk that, at some future time, the border of the
U.S. territorial sea would be expanded outwards, leaving the
intermediate zone between the state and federal boundaries without
a clear remedy. Consequently, the majority's suggestion that
Congress intended "beyond a marine league" to specify
a "geographical boundary" and "high seas"
to indicate "a political boundary subject to change"
is implausible, not to mention entirely speculative. Ante
at . This reading finds no support in the legislative
In sum, a review of the legislative
history makes clear that Congress inserted the language "high
seas" and "beyond a marine league" to establish
firmly the boundary line at which DOHSA's application began,
thus ensuring the preservation of state remedies in state territorial
E. Congressional Purpose
DOHSA's purpose is clear from the
legislative history. However, I wish to respond to what I perceive
as the majority's overstatement of congressional purpose to justify
its holding. Specifically, the majority seems to suggest we should
displace DOHSA with general federal maritime law in the disputed
zone on the ground that the latter allows a more generous recovery.
See ante at [6, 23-24].The case law that
the majority cites to support this proposition, however, although
it supports the premise that the law should afford a recovery,
does not suggest that it must be the most generous one. Justice
Chase remarked, for example, in the The Sea Gull, 21 F.
Cas. 909, 910 (D. Md. 1865) (No. 12,578), that "[t]here
are [common law cases] in which it has been held that . . . no
redress can be had . . . [for] the death of one through the wrong
of another; . . . . [C]ertainly it better becomes the humane
and liberal character of proceedings in admiralty to give than
withhold the remedy." DOHSA's drafters wished to provide
a remedy, not the most generous remedy. In enacting DOHSA,
Congress specifically decided to create a remedy for death in
the disputed zone which granted only pecuniary damages. See
46 U.S.C. 762. If Congress had wished to make that remedy more
generous, it certainly had the opportunity to reflect that in
Although the majority claims that
its holding promotes uniformity, its position plainly undermines
the important principle, emphasized by the Supreme Court in Tallentire,
of "uniformity of admiralty law." Tallentire,
477 U.S. at 221. The majority's solution creates four maritime
zones governed by different law, whereas the existing regime
encompasses only two. The applicable law in the majority's four
zones would be: (1) zero to three nautical miles: state law and
federal common law; (2) three to twelve nautical miles: federal
common law; (3) beyond twelve nautical miles: DOHSA; (4) foreign
territorial waters: ? (the majority leaves this open rather than
confronting the abundant case law applying DOHSA in foreign territorial
waters). Uniformity would be better promoted under the current
two-zone regime: (1) zero - three nautical miles: state law and
federal common law; (2) beyond 3 nautical miles: DOHSA.
I am also unconvinced that a satisfactory
remedy would exist for deaths occurring in the disputed zone
if we were to supplant DOHSA's application in that zone with
general federal maritime law. In the zero to three nautical mile
zone, state statutory and state common law remedies are available
to supplement general federal maritime law, but this would not
necessarily be the case in the disputed zone, where state law
is inapplicable. The majority declines to address in even the
most cursory fashion what law actually would apply in the TWA
litigation, except to deny DOHSA's application. See ante
at . It also declines to consider what remedies might
be available to appellees if DOHSA does not apply in the disputed
zone. See ante at [6 n.5] (expressing no
view as to whether appellees would be able to recover for loss
of society, survivor's grief, pre-death pain and suffering, and
punitive damages). In short, very complex legal questions, including
conflict of law issues, arise from the majority's ruling supplanting
DOHSA with general federal maritime law in the disputed zone.
The majority's solution also prevents
certainty in the law. The boundaries of DOHSA's application will
be in constant flux because of the majority's acceptance of the
district court's position that Congress defined "high seas
flexibly to mean non-sovereign waters." In re Air Crash
off Long Island, 1998 WL 292333, at *8. See generally
W. Michael Reisman & Gayl S. Westerman, Straight Baselines
in Maritime Boundary Delimitation (1992) (discussing nations'
abuse of Article 7 of the United Nations Convention on the Law
of the Sea(11)
to claim increasingly larger territorial
seas). Under international law, the boundary of the high seas
is subject to constant change, whether because of the United
States' unilateral actions, the unilateral decisions of other
nations, or the introduction of new treaties.(12)
In the long run, it would be infinitely simpler and wiser to
adhere to the three nautical mile line established by the DOHSA
Congress for the purpose of preserving the states' jurisdiction
over their territorial seas, and to let Congress decide when
and how it wishes changes in international boundaries to affect
In sum, my answer to the interpretive
question whether Congress intended DOHSA to be affected by a
change in the meaning of the U.S. territorial sea under international
law is a resounding no.
Congress -- and the President --
have the opportunity to amend DOHSA to incorporate a more generous
remedial scheme, just as they have the opportunity, if so inclined,
to preclude DOHSA's application in the disputed zone. I have
no desire to pre-empt the legislative process by reading DOHSA
more broadly than the Proclamation dictates or than the DOHSA
Congress intended. The appropriate remedial scheme for deaths
occurring off the United States coast is clearly a legislative
policy choice, which should not be made by the courts.(13) For the foregoing reasons, I respectfully
dissent from the majority opinion, and I would reverse the district
This ruling also will affect substantially the available recovery
in the 145 cases related to the crash which have been consolidated
before the district court. See In re Air Crash off
Long Island, 1998 WL 292333, at *1 (S.D.N.Y.). It may also
influence the outcome of any cases brought by the representatives
of the 88 victims of the Alaska Airlines crash, which occurred
approximately ten nautical miles off the coast of California.
See Chuck Taylor et al., Flight 261: Looking for Answers,
Seattle Times, Feb. 2, 2000, at A1.
The State Department representative also observed that "the
territorial sea was extended because 'national security and the
practice of most nations made it desirable to change existing
policy.'" McLaughlin, supra, at 94 (quoting House
Hearings, at 5). In fact, within one week of the Proclamation's
issuance, the U.S. Coast Guard effected the departure of two
Soviet vessels from the newly expanded territorial sea. See
id. at 95.
3. 3 The majority
claims that I "assume" that DOHSA's purpose is not
linked to the international understanding of the breadth of the
U.S. territorial sea, and that I "ignore" Supreme Court
cases, decided before DOHSA's enactment, which defined high seas
as "international waters." See ante at
[38-39]. In fact, I make no such "assumption."
Rather, I simply conclude that it is irrelevant to the outcome
of this case whether Congress shared the international legal
understanding of "high seas" as "non-sovereign
waters," because Congress's only purpose in employing the
phrase "high seas beyond a marine league" was to define
and indicate a boundary line that ensured that state remedies
would be preserved in state territorial waters - a purely domestic
goal. Supra at . As discussed below, nothing
in DOHSA's language, legislative history, or purpose indicates
that Congress intended DOHSA's boundary line to be variable depending
on changes in international law.
4. 4 The phrase
"beyond the territorial waters of the United States"
in the Gambling Ship Act, 18 U.S.C. 1081, is defined in 26 C.F.R.
43.4472-1(e) (1994) as "those waters within the international
boundary line between the United States and any contiguous foreign
country or within 3 nautical miles . . . from low tide on the
Although the majority apparently finds "more persuasive"
the pronouncement in Triton Container Int'l Ltd. v. Compania
Anonima Venezolana de Navegacion, Civ. Nos. 94-00055, 94-00063,
1995 WL 464484, at *3 (D. Guam, May 2, 1995) that "the three
mile territorial limit is a vestigial concept," ante
at [36-37] it should be noted that Triton did not
in any way involve death on the high seas or elsewhere. Triton
was a suit in admiralty "for reimbursement of the administrative
expenses advanced by Triton for the preservation, safekeeping,
and sale" of a
certain vessel. Id. at *1.
majority downplays Yamaha's observation on the basis that
the Proclamation was never discussed in the Yamaha parties'
briefs or at oral argument. See ante at [28,
n.17]. Whatever the parties discussed, I assume the Supreme
Court gives thought to the issues it chooses to address, even
The majority also appears to misrepresent
the issues and holding of Yamaha. In contrast to the majority's
observations, neither side in Yamaha raised "a claim
that DOHSA was the remedy for a death that occurred in the waters
of Puerto Rico." See ante at .
If DOHSA's zone of application had been at issue in Yamaha,
the above-quoted dicta would be binding precedent dispositive
of this case. DOHSA was not at issue in Yamaha; rather,
the question in Yamaha was whether state law (Puerto Rican
Commonwealth law or Pennsylvania law) or federal common law remedies
applied in Puerto Rico's three nautical mile territorial sea
-- a zone of waters in which DOHSA is indisputably inapplicable.
See 46 U.S.C. 761. The Court concluded that state remedies
had "not been displaced by the federal maritime wrongful-death
action recognized in Moragne v. States Marine Lines, Inc.,
398 U.S. 275 . . . (1970)." Yamaha, 516 U.S. at 202.
Yamaha thus speaks to remedies in Puerto Rican territorial
waters, which for the purposes of Yamaha were either Puerto
Rico's or Pennsylvania's wrongful death remedies. See
Yamaha, 516 U.S. at 216 n.14.
The Office of Legal Counsel is an Office in the Department of
Justice headed by an Assistant Attorney General. See 28
was a member of the Maritime Law Association, which initiated
the drafting of DOHSA. See Right of Action for Death
on the High Seas: Hearing Before Subcomm. No. 2 of the Comm.
on the Judiciary, 64th Cong. 1st Sess.
3 (1916); Hughes, Death Actions in Admiralty, at 116-17.
desire to preserve state remedies may explain the differences
in language between the versions of the bill from 1909-1915 and
the 1916 version; Hughes referred to the latter in his above-cited
statements before Congress. In the 1909-1915 versions, the bill
applied to deaths occurring "on the high seas, the Great
Lakes, or any navigable waters of the United States." H.R.
15810, 61st Cong. 1 (1909); S. 6291, 61st
Cong. 1 (1910); H.R. 24764, 62d Cong. 1 (1912); H.R. 6143, 63d
Cong. 1 (1913); H.R. 6143, 63d Cong. 1 (1915). The 1916 version
provided, however, that the bill applied to deaths "beyond
a marine league from the shore of any State, or on any navigable
waters of the Panama Canal Zone, the District of Columbia, or
the Territories or dependencies of the United States." S.
4288, 64th Cong. 1 (1917). (In the 1919 version the
phrase "or on any navigable waters of the Panama Canal Zone"
was deleted, so that the final draft of 761 carved out the three
nautical mile belt seaward of the District of Columbia and the
Territories and dependencies, as well as the states' territorial
waters. The navigable waters of the Panama Canal were exempted
from DOHSA coverage in 46 U.S.C. 767.)
also preserved the local remedies of U.S. territories and dependencies
in their territorial waters. At the time the bill was passed,
these entities, like the states, had local laws providing remedies
for wrongful death and courts that administered those remedies.
See, e.g., The Schooner Roberts v. Kekauoha,
114 F. 849, 851-52, 854 (9th Cir. 1902) (observing
that the 1900 Act creating a government for the territory of
Hawaii, then codified at 48 U.S.C. 493, established that the
laws of the republic of Hawaii would remain in force even after
the 1898 transfer of sovereignty to the United States, and therefore
finding that Hawaii's statutory remedy for wrongful death applied
to a death occurring within three nautical miles of the Hawaiian
shores; The Harrisburg's denial of a remedy under general
maritime law was irrelevant to the outcome). Even today, the
Supreme Court equates "state territorial waters" and
"territorial waters of U.S. territories" for the purposes
of DOHSA. SeeYamaha, 516 U.S. at 202, 216 & n.14 (framing
the issue as whether state law (although Puerto Rico is a Commonwealth
or territory and not a state) or general federal maritime law
applied in Puerto Rican territorial waters).
See United Nations Convention on the Law of the Sea [UNCLOS],
Dec. 10, 1982, art. 7(1), 1833 U.N.T.S. 3, 401 ("[T]he method
of straight baselines joining appropriate points may be employed
in drawing the baseline from which the breadth of the territorial
sea is measured.").
UNCLOS, art. 7(4), 1833 U.N.T.S. 3, 401 ("Straight baselines
shall not be drawn to and from low-tide elevations, unless lighthouses
or similar installations which are permanently above sea level
have been built on them . . . ."). It is interesting to
note that the states' coastal borders, on the other hand, have
been fixed by the Submerged Lands Act at three nautical miles,
see 43 U.S.C. 1312 (1994), however the United States redraws
its baselines for international purposes.
Currently before the President for signature is a bill that (1)
alters DOHSA's remedial scheme by allowing compensation for nonpecuniary
damages for deaths resulting from commercial aviation accidents;
(2) declares DOHSA inapplicable to deaths occurring in the disputed
zone if they resulted from commercial aviation accidents; and
(3) sets the act's effective date as of July 16, 1996, one day
prior to the TWA crash. See H.R. 1000, 106th