Court Finds the Death on the High Seas Act Does Not Allow Non-Economic Damages in Crash of Ferry Flight

JUNE 16, 2009

Court finds the Death on The High Seas Act does not allow non-economic damages in crash of ferry flight

By Domenico Perrella

Before it was amended in the aftermath of the crashes of TWA Flight 800, Swissair Flight 111, and Egyptair Flight 990, the Death on the High Seas Act (“DOHSA”) did not allow recovery of non- pecuniary damages in connection with deaths more than three nautical miles from the shores of the United States, including deaths in connection with aviation crashes over the high seas. 46 U.S.C. § 30303; Zicherman v. Korean Air Lines, 516 U.S. 217, 231, 116 S. Ct. 629, 637, 133 L. Ed. 2d 596 (1996). This prevented families of persons killed in aviation accidents on the high seas from recovering for loss of care, comfort, and companionship.

Congress amended DOHSA to allow compensation for loss of care, comfort, and companionship “if the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of the United States.” 46 U.S.C. § 30307(b) (emphasis added). However, the statute did not include any definition of the term “commercial aviation accident,” leaving open the question of which aviation deaths the amendments would apply.

The first published opinion to address the issue was Brown v. Eurocopter, S.A., 111 F. Supp. 2d 859, 862 (S.D. Tex. 2000) (Judge Samuel Kent), which found that the amendments were applicable to an on-demand air taxi service shuttling workers to and from offshore oil platforms. That court looked only to the legal dictionary definitions of the terms “commercial” (“that which ‘relates to or is connected with trade and traffic or commerce in general; is occupied with business or commerce’”) and “commercial activities” (“any type of business or activity which is carried on for a profit”) and found that the provision was unambiguous in applying to any operation of heavier than air aircraft for such purposes. Id. (citing Black’s Law Dictionary, 270 (6th ed. 1990)). If read so broadly as to include literally any activity “connected with trade and traffic or commerce in general,” the amendments might be argued to apply to even pleasure flights if the aircraft were leased, the pilot or crew were paid, or perhaps even if the aircraft were covered by a power-by-the-hour or similar maintenance contract, leaving the limitation to “commercial” aviation essentially meaningless.

Eberli v. Cirrus Design Corporation, ___ F. Supp. 2d ___, 2009 WL 1530714 (S.D. Fla. May 28, 2009), is apparently the first published opinion since Brown to address this issue. Eberli dealt with the situation of a pilot killed during a ferry flight in which he was delivering a recently-purchased aircraft to its purchaser. The situation was distinguishable from Brown in that the flight was not being operated as an air taxi service under 14 C.F.R. Part 135 and in that it was not carrying passengers. In fact, as the Eberli court emphasized, the flight was being flown pursuant to an export certificate of airworthiness with attached special operating limitations that “required that the aircraft be operated in accordance with 14 C.F.R. Part 91 and prohibited it from being operated to carry passengers or property for compensation or hire.” Id. at 2009 WL 1530714, *1. The Eberli court declined to follow Brown, noting these distinctions and also that “the court does not agree with the analysis” in the Brown case. Id. at 2009 WL 1530714, *4.

The Eberli court’s own analysis found that the term “commercial aviation accident” is ambiguous. It noted that a “section of the transportation code which delineates when an aircraft is engaged in commercial or public flight operations defines ‘commercial purposes’ as ‘the transportation of persons or property for compensation or hire.’ Its discussion of the special operating limitations applicable to the flight turned to an analysis of the legislative history of the statute.

The court noted that the DOHSA amendments were passed in the wake of a number of commercial air crashes, that Congress expressed a concern that the families of such passengers not be treated differently depending on where a plane happened to crash, that Congress chose to limit the DOHSA amendments’ application to “commercial aviation accidents,” not all aviation accidents, and concluded that “Congress wanted the statute to apply only in cases involving the types of aviation disasters, such as the crash of TWA flight 800, that motivated Congress to enact section 30307.” Id.

While the Eberli court’s opinion is only directly applicable to the situation of crashes during aircraft delivery flights and does not relate to air taxi flights of the type involved in Brown, its rejection of the Brown analysis and its discussion of the legislative history of the DOHSA amendments do support an argument for a narrower scope of application for those amendments. Specifically, while the DOHSA amendments clearly apply to passenger-carrying airline flights, the Eberli court’s analysis may support an argument that—contrary to the holding in Brown—the amendments should not be applied to the fairly common situation of persons being flown to work offshore by their employers or contractors hired by their employers, a situation that is fairly distinct from that of airline passengers like those on TWA flight 800. If you would like more information about the topics covered in this Alert, please contact your Nixon Peabody attorney or:

 Brian C. Dalrymple at 415-984-8275 or [email protected]  Stephen C. Johnson at 415-984-8222 or [email protected]  Raymond Mariani at 516-832-7520 or [email protected]  Joseph J. Ortego at 212-940-3045 or [email protected]  William L. Robinson at 213-629-6035 or [email protected]  Christopher D. Thomas at 585-263-1087 or [email protected]  Santo Borruso at 516-832-7506 or [email protected]  Thomas M. Mealiffe at 516-832-7597 or [email protected]  Domenico Perrella at 415-984-8413 or [email protected]  Paul Stinson at 415-984-8283 or [email protected]  Eric C. Strain at 415-984-8373 or [email protected]  Lori A. Winfree at 213-629-6065 or [email protected]