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Tragedy Calls For Changes To DOHSA That Would Allow Recovery Of Nonpecuniary Damages

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Photo credit: JON LEVY/AFP/Getty Images

On July 17, 1996, at approximately 8:30 p.m., a Boeing 747-131 aircraft, operated by Trans World Airlines as TWA Flight 800, departed from John F. Kennedy Airport in New York City for Rome, Italy, carrying 230 passengers and crew.  As the aircraft flew over the ocean near Long Island, all radio communications abruptly ceased and the flight data recorder stopped recording data. The pilot of an Eastwind Airlines Boeing 737 reported seeing TWA Flight 800 suddenly explode, break apart in mid-flight, and crash in to the sea.  All 230 passengers and crew onboard the aircraft perished.

The TWA Flight 800 tragedy captured the attention of the American public and Congress and ultimately resulted in the passage of what is known as the Commercial Aviation Exception to the Death on the High Seas Act (DOHSA) or 46 U.S.C. § 30307. The Commercial Aviation Exception made damages for loss of care, comfort and companionship, known as nonpecuniary damages, for wrongful death of a decedent recoverable if the death resulted from a commercial aviation accident occurring on the high seas. The stated purpose of the bill was to help ensure that families of airline accident victims would receive fair treatment under the law regardless of where the accident occurred.

Twenty years later, another tragedy has invigorated changes to the current version of DOHSA.  On April 8, 2016, Drs. Larry and Christy Hammer, retirees from Nebraska, were killed after an electrical fire broke out in their cabin on the Estrella Amazonica riverboat while sailing in the Peruvian Amazon.  Kelly Lankford and Jill Malott, the Hammers’ daughters, have been fighting for changes to DOHSA after finding out that under DOHSA they and others similarly situated would not be entitled to compensation since their parents were retired and thus not wage earners.

As part of their efforts, the Hammers’ daughters have reached out to congress seeking changes to DOHSA.  The proposed changes to DOHSA are part of a proposed bill that seeks to address several deficiencies in terms of the safety of passengers onboard cruises.

The bill, known as the Cruise Passenger Protection Act (CPPA), H.R.2173 and S. 965, respectively, was introduced in the House of Representatives by Representatives Doris Matsui, D-Calif., Ted Poe, R-Texas, and Jim Himes, D-Conn. and in the Senate by Senators Richard Blumenthal, D-Conn. and Edward Markey, D-Mass.

Section 11 of the bill, titled Limitations in Certain Cases, would amend 46 U.S.C. §30307 to allow recovery for nonpecuniary damages if the death resulted from a “cruise ship” accident occurring on the high seas.  The CPPA, defines “cruise ship” as a passenger vessel, other than a vessel of the United States operated by the Federal Government or a vessel operated by a State, that –

  • is authorized to carry at least 250 passengers;
  • has onboard sleeping facilities for each passenger;
  • is on a voyage that embarks or disembarks passengers in the United States; and
  • is not engaged on a coastwise voyage.

Passage of the CPPA would entitle the personal representative of a decedent to recover nonpecuniary damages, defined by the proposed bill as “damages for loss of care, comfort, and companionship”.

In the Senate, the bill has been read twice and referred to the Committee on Commerce, Science, and Transportation.  In the House of Representatives, the bill was referred to the House Committee on Transportation and Infrastructure and then referred to the Subcommittee on Coast Guard and Maritime Transportation.