Death on the High Seas Act--high time for a change.

The good intentions of lawmakers to help wives and families of seafarers came to fruition in 1920 with the passage of the Death on the High Seas Act. Sadly enough, it has taken nearly eight decades --and numerous tragedies, both on the sea and in the skies--for lawmakers of today to consider changing what is now a hopelessly out-of-date statute.

The act intended to provide compensation to widows whose husbands were killed on the high seas. Now, on the cusp of the 21st century, men, women, and children cruise the world's oceans aboard ships of all sizes and fly from continent to continent in planes.

If one of these ships or planes is lost in international waters, the act offers only compensation for the pecuniary loss sustained by families of the victims. In other words, it recognizes only damages such as the deceased's projected earnings, the cost of replacing a boat or plane, and burial costs.

Losses like the death of a child (or any other non-wage-earner) are not compensated, even in cases of gross negligence and willful misconduct. Consequently, as the parents of 16 Pennsylvania high school students who died in the July 1996 crash of TWA flight 800 found out, under the act, children's lives are worth nothing.

"These parents wanted to know what rights they had, and were told, pursuant to the act, they didn't have any rights at all," says Stevan Dittman, chair of ATLA's Admiralty Law Section.

History

In response to the TWA flight 800 crash, Pennsylvania Republican Senators Arlen Specter and Rick Santorum and then-Pennsylvania Representative Joe McDade sponsored identical bills during the 105th Congress to amend the act. The House passed McDade's bill, which would have removed airline crashes from the scope of the act when a crash occurs more than about three miles from U.S. shores. If a plane crashes on land within the continental United States, the act is not triggered and nonpecuniary damages will be allowed.

David Rapoport, a member of ATLA's Aviation Law Section, says, "If a plane crashes into the sea within three nautical miles of the U.S. coast, loss of society damages are virtually assured. If the wreckage enters the sea more than 12 nautical miles from the coast, claims will be limited to pecuniary losses. If the wreckage enters the sea between three and 12 nautical miles off the coast, nonpecuniary damages are possible but not assured. Important legal rights should not be determined by artificial lines."

The House voted to erase the lines by creating an aviation exception to the act, but the Senate failed to advance the House bill after Senator Slade Gorton (R-Wash.), a senior Commerce Committee member whose state is home to Boeing, blocked it. Meanwhile, Senator Ron Wyden (D-Or.) pushed for an amendment to the bill that would have extended recovery of noneconomic damages to all victims covered by the act, whether lost in a boat or a plane.

Late last year, when members of the House attached their bill as an amendment to the Federal Aviation Administration (FAA) reauthorization bill, Senators Gorton and Specter finally reached a compromise in the Senate reauthorization bill--allowing nonpecuniary damages in airline accidents, but with a $750,000 cap.

However, the bill failed for other reasons, and the fix for the Death on the High Seas Act died when the 105th Congress adjourned.

Another Congress, another try

The 106th Congress has not forgotten the act. Already this year, the House has again passed its bill to remove airline disasters from the act and has also included that bill as an amendment to its version of FAA reauthorization legislation. When the Senate Commerce Committee considered the FAA bill in February, it approved a provision identical to last year's Specter-Gorton agreement, creating a limited commercial aviation exception for recoveries under the act.

At the same time, Senator Wyden tried to expand the remedy to include victims of maritime disasters, but, ultimately, he withdrew his amendment when even Commerce Committee Democrats, who supported it in concept, had concerns about the amendment's impact on cases brought under other maritime statutes, such as the Jones Act.

Seeking closure

Senator Wyden has redrafted his amendment to address those concerns, but has not had an opportunity to offer it on the Senate floor because the FAA bill has been stalled by politically charged disputes over unrelated airport issues. If the FAA bill does not move, or if it moves with only a limited fix for the act--or even with no fix at all--other alternatives are available. Senator Wyden may offer his amendment to loosen the act's restrictions when the Senate considers the Passenger Vessel Services Act or the Coast Guard Reauthorization Act.

Dittman, the Admiralty Law Section chair, would like to see both an aviation and a maritime fix. "A person's legal rights should not depend upon whether one perishes in a plane rather than a boat," he says.

ATLA will continue to pursue full remedies for victims of airline and boat tragedies.

Kristin Loiacono is media relations coordinator for ATLA.