Death on The High Seas Act

How DOHSA affects wrongful-death claims arising from aviation accidents over water

Key point. For commercial aviation accidents, location can change the governing law and the damages a family may recover. The Death on the High Seas Act generally governs deaths caused by commercial aviation accidents that occur more than 12 nautical miles from the shore of the United States. It does not apply to commercial aviation accidents occurring 12 nautical miles or less from the U.S. shore.

What Is the Death on the High Seas Act?

Congress enacted the Death on the High Seas Act, commonly called DOHSA, to create a federal wrongful-death cause of action for deaths caused by a wrongful act, neglect, or default on the high seas. The statute authorizes the decedent’s personal representative to bring a civil action in admiralty against the person or vessel responsible. 46 U.S.C. § 30302.

DOHSA focuses on where the fatal accident occurred, not merely where someone made a negligent decision or designed, manufactured, or maintained a defective product. In aviation litigation, courts ordinarily look to the place where the aircraft crashed or the injury that caused death occurred. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218–19 (1986); LaCourse v. PAE Worldwide Inc., 980 F.3d 1350, 1356–57 (11th Cir. 2020). Determining the legally relevant location can require analysis of flight data, wreckage evidence, radar or satellite information, and the statute’s shoreline rules.

Where Does DOHSA Apply?

The general three-nautical-mile rule

For maritime deaths generally—and for noncommercial aviation accidents—DOHSA applies beyond three nautical miles from the shore of the United States. 46 U.S.C. § 30302. Different statutes may govern a death within that boundary.

The special 12-nautical-mile rule for commercial aviation

Congress created a separate rule for commercial aviation accidents:

• Beyond 12 nautical miles. DOHSA applies when a death results from a commercial aviation accident occurring on the high seas more than 12 nautical miles from the U.S. shore. Families may recover both pecuniary damages under 46 U.S.C. § 30303 and the additional nonpecuniary damages authorized by 46 U.S.C. § 30307(b).
• Twelve nautical miles or less. DOHSA does not apply to a death resulting from a commercial aviation accident occurring 12 nautical miles or less from the U.S. shore. 46 U.S.C. § 30307(c). Other federal, state, maritime, or treaty law may govern instead.

This distinction matters. The general DOHSA boundary remains three nautical miles, but Congress moved the operative boundary to 12 nautical miles for commercial aviation accidents. A statement that DOHSA always begins at either three or 12 nautical miles is therefore incomplete; the correct boundary depends on the type of occurrence.

Who May Bring a DOHSA Claim?

DOHSA gives the right to sue to the decedent’s personal representative, who acts for the exclusive benefit of the statutory beneficiaries. Those beneficiaries are the decedent’s spouse, parent, child, or dependent relative. 46 U.S.C. § 30302.

An individual beneficiary ordinarily cannot file a separate DOHSA action solely in his or her own name. Courts generally require an executor, administrator, or other representative who has received legal authority to act for the decedent. See Alcabasa v. Korean Air Lines Co., 62 F.3d 404, 407–08 (D.C. Cir. 1995). Because appointment and capacity rules can interact with probate law and federal procedural rules, families should address the representative’s appointment promptly rather than assume that a later appointment will cure every defect.

What Damages Does DOHSA Allow?

Pecuniary losses

Section 30303 directs the court to award “fair compensation for the pecuniary loss sustained” by the statutory beneficiaries and to apportion the recovery according to each beneficiary’s loss. 46 U.S.C. § 30303. Depending on the evidence and the beneficiary’s relationship to the decedent, pecuniary damages may include:

• lost financial support and contributions;
• the value of household services;
• loss of nurture, guidance, and instruction when those services have measurable economic value;
• certain funeral-related expenses when the governing law and proof permit them; and
• other financial losses that a statutory beneficiary can establish with competent evidence.

The statute compensates the beneficiaries for their own losses; it does not transfer the decedent’s personal injury claim to the estate. See Dooley v. Korean Air Lines Co., 524 U.S. 116, 123 (1998).

Additional damages for commercial aviation deaths beyond 12 nautical miles

For a death resulting from a commercial aviation accident beyond 12 nautical miles, Congress permits “additional compensation” for nonpecuniary damages. The statute defines those damages as loss of “care, comfort, and companionship.” 46 U.S.C. § 30307(a)–(b). This aviation provision materially expands the damages available under the general DOHSA rule, although it does not authorize every category of nonpecuniary loss recognized under every state’s wrongful-death law.

What Damages Does DOHSA Exclude?

• Punitive damages. Congress expressly bars punitive damages in commercial aviation actions under DOHSA. 46 U.S.C. § 30307(b). Courts also do not permit a claimant to use state law or general maritime law to evade DOHSA’s remedial limits when DOHSA governs the death.
• The decedent’s pre-death pain and suffering under general maritime law. The Supreme Court held that claimants may not supplement DOHSA with a general maritime survival action for the decedent’s conscious pain and suffering. Dooley, 524 U.S. at 123–24.
• Other nonpecuniary losses outside the aviation amendment. Under the general DOHSA damages rule, beneficiaries cannot recover loss-of-society, grief, or emotional-distress damages because those losses are not pecuniary. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622–25 (1978); Zicherman v. Korean Air Lines Co., 516 U.S. 217, 230–31 (1996). For qualifying commercial aviation deaths beyond 12 nautical miles, however, § 30307 permits the specifically defined loss of care, comfort, and companionship.

The facts can complicate this analysis. A separate federal statute, a valid foreign-law claim, or injuries sustained at a legally distinct place may require additional analysis. Lawyers should therefore avoid treating DOHSA’s damages rules as a substitute for a complete choice-of-law and treaty analysis.

How Does DOHSA Interact with State and Maritime Law?

When DOHSA governs a death, claimants generally may not use state wrongful-death law or judge-made general maritime law to obtain damages that Congress excluded. Offshore Logistics, 477 U.S. at 232; Higginbotham, 436 U.S. at 625; Dooley, 524 U.S. at 123–24. State courts may hear some DOHSA claims, but they must apply the controlling federal substantive rules. Offshore Logistics, 477 U.S. at 232.

DOHSA also preserves a civil action brought under the law of a foreign country. 46 U.S.C. § 30306. That provision does not automatically make foreign law applicable or guarantee a recovery. Courts still must resolve jurisdiction, treaty, forum, and choice-of-law questions.

How Does DOHSA Interact with the Montreal Convention?

Many international passenger claims fall within the Montreal Convention of 1999, which generally supplies the exclusive cause of action against an international air carrier when a passenger’s death results from an “accident” on board the aircraft or during embarking or disembarking. The Convention and DOHSA address different questions: the Convention may govern the carrier’s liability, while DOHSA may supply the applicable United States rules concerning beneficiaries and compensable loss when the death occurred on the high seas.

In Zicherman, the Supreme Court reached that conclusion under the Warsaw Convention, the Montreal Convention’s predecessor. The Court held that the treaty allowed recovery only for legally cognizable harm and looked to otherwise applicable domestic law—DOHSA—to identify that harm. 516 U.S. at 225–31. Courts interpreting the Montreal Convention often draw on Warsaw Convention decisions when the provisions are substantively similar, but counsel must analyze the Montreal Convention itself and the law applicable in the chosen forum.

DOHSA does not expand the Montreal Convention’s jurisdictional provisions, prove that an Article 17 “accident” occurred, or create treaty jurisdiction in the United States. Each issue requires separate analysis.

Time Limits Require Immediate Attention

Federal law generally requires a claimant to bring a maritime personal-injury or death action within three years after the cause of action arose. 46 U.S.C. § 30106. That general rule does not answer every aviation case. For example, Article 35 of the Montreal Convention extinguishes the right to damages against a carrier unless the action is brought within two years, calculated under the Convention’s terms. Claims against the United States, foreign defendants, aircraft manufacturers, airports, contractors, and other parties may involve different notice requirements or deadlines.

A family should not rely on the longest potentially available period. Counsel must identify every possible defendant, cause of action, forum, treaty, and deadline at the outset. Counsel should also secure the personal representative’s appointment early.

Why the Location and Legal Framework Matter

An international aviation disaster can implicate DOHSA, the Montreal Convention, federal maritime law, state law, foreign law, and the law governing claims against manufacturers or other third parties. A difference of only a few nautical miles may change the governing law and available damages. The analysis may also turn on whether the flight was commercial, where the legally operative accident occurred, who qualifies as a beneficiary, and which defendant the family seeks to hold responsible.

Nolan Law Group represents individuals and families in complex aviation injury and wrongful-death litigation. We evaluate the full jurisdictional and choice-of-law framework before recommending where and how to pursue a claim.

Selected Authorities

• 46 U.S.C. §§ 30106, 30302–30307.
• Convention for the Unification of Certain Rules for International Carriage by Air arts. 17, 29, 33 & 35, May 28, 1999, S. Treaty Doc. No. 106-45 (Montreal Convention).
• Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998).
• Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986).
• Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996).
• Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978).
• LaCourse v. PAE Worldwide Inc., 980 F.3d 1350 (11th Cir. 2020).
• Alcabasa v. Korean Air Lines Co., 62 F.3d 404 (D.C. Cir. 1995).