In re Air Crash off Long Island, NY

• Decision Date: 17 July 1996
• Citation: 209 F.3d 200
• Parties: (2nd Cir. 2000) IN RE: AIR CRASH OFF LONG ISLAND, NEW YORK, ON
• Court: U.S. Court of Appeals — Second Circuit

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209 F.3d 200 (2nd Cir. 2000) IN RE: AIR CRASH OFF LONG ISLAND, NEW YORK, ON JULY 17, 1996 Docket No. 98-9622
August Term 1999 UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT Argued: September 8, 1999
Decided: March 29, 2000

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 waters.

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,

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Inc.; Dombroff & Gilmore, Washington, DC, Mark A. Dombroff, Dane B. Jaques, of Counsel, for Defendant-Appellant Hydro-Aire, Inc.

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.

Before: FEINBERG, CALABRESI, SOTOMAYOR, Circuit Judges.

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, 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 crash.

I. Background

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 miles¹ 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 it.

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

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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.

II. Discussion

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 216, 223.

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,

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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...