In Re: Air Crash Off Long Island, New York, on July 17, 1996

did applicant habeas if the hearing evidentiary hearing fair full and

receive a (internal quotation marks court.” a state

omitted)).

CONCLUSION vacate the district court’s therefore

We appellant’s inef-

order insofar as denied of counsel claim and re-

fective assistance proceedings.

mand for further

In re: AIR CRASH OFF LONG

ISLAND, YORK, NEW ON 17, 1996.

JULY No. 98-9622.

Docket Appeals, Court of

United States

Second Circuit.

Argued Sept. 1999.

Decided March (Perkins Bell, Seattle, S. WA

Steven LLP, Gerrard, Brown; Jay Keith S. Coie York, PC, & New Davis Weber Edwards Hritz, NY, George Cynthia Feigin), F. A. Defendanb-Appellant Boeing Com- Haight Knight, Holland & pany. Gardner NY, Craft, Jr., York, New Randal R. Wil- III, Reitzfeld, D. liam-C. Brown Alan Air- Defendant-Appellant Trans World Gilmore, lines, I. Washing- Background Dombroff & Inc. Dombroff,

ton, DC, Dane B. Mark A. Ja- appeal arises out of the crash of Counsel, Defendant-Appellant ques, of- for Flight TWA which departed from Hydro-Aire, Inc. Kennedy John F. in Airport International 17, 1996, Paris, July New York on Pounian, York, New NY R. Steven Rome, Italy. Shortly France and after (Kreindler Kreindler, Kreindler, & Lee S. takeoff, plane appears explod- to have Kreindler, Rodriguez, Blanca I. James P. According ed midair and crashed. James; Krause, Speiser, Jacqueline M. Board, Transportation Safety the National York, NY, Granito, Frank New Nolan & the crash occurred approximately eight Granito, III; Granito, Jr., H. Frank H. nautical miles1 Long south of the shore of York, NY, Samuels, & New Baumeister Island, York. All persons New on Baumeister; Group, F. Nolan Law Michel perished. board Nolan; Schaden, IL, Chicago, Donald J. repre- Plaintiffs are relatives and estate Broomfield, CO, Lampert, Katzman & passengers sentatives of 213 and crew Schaden; Waite, Schneider, F. Richard members who died the crash. Defen- Cincinnati, OH, Chesley, & Je- Bayless dant Trans op- World Airlines owned and Skinner, Counsel), Plain- rome L. erated aircraft. Defendant The Boe- tiffs’ Committee. aircraft, ing Company manufactured the Inc., Hydro-Aire, defendant manufac- CALABRESI, FEINBERG, Before: pumps. tured the aircraft’s fuel In Febru- SOTOMAYOR, Judges. Circuit ary the Judicial Panel on Multidis- trict Litigation transferred to the Southern FEINBERG, Judge. Circuit District York all wrongful of New death arising cases from the crash for consolidat- Airlines, Inc., Defendants Trans World pretrial proceedings. ed At the time the Boeing Company, Hydro-Aire, district court issued the decision under Inc., from a appeal decision review, had 146 cases been consolidated for the Dis- States District Court Southern it. before York, Sweet, J., trict of New Robert W. July their motion to defendants under June 1998 denied dis- moved 12(b)(6) to plaintiffs’ nonpecuniary plaintiffs’ miss claims for Fed.R.Civ.P. dismiss damages nonpecuniary damages. as barred under the Death on the claims for Defen- Act, §§ High app. argued applies Seas 46 U.S.C. 761-767 dants that DOHSA to this DOHSA). recovery pecuniary referred case dam- (usually to hereafter as and limits Island, Long ages. Judge In re Air New In June denied Crash Sweet Off York, opinion, in a July on 1998 WL 292333 defendants’ motion written (June 1998). applies only appeal, pres- concluding This that DOHSA question where occurred on both the impression ents a of first this court, beyond league2 seas and applies concerns whether DOHSA shore, and that in this case the crash did airplane an crash United States territo- judge not occur on the seas. The roughly eight rial waters miles from the by using of the United For the rea- reasoned that the term coast States. seas,” below, applica- agree sons stated we with the dis- limited DOHSA’s waters,” apply “non-sovereign meaning trict tion to court DOHSA does not subject the crash. “international waters equals approximately nautical 2. A marine is three nautical miles. 1. One mile slight 1.15 land miles. This difference be- tween the two no effect the decision in has Therefore, case. most to mile- references age ignore hereafter will the difference. contend that Judge apply. does not Defendants nation.” single dominion the term seas” means all waters choice of law resolve the did not Sweet low-water mark.4 Defendants beyond the once he had deter- that remained issues that because the crash occurred plaintiffs’ conclude not limit did mined low-water mark and more both judge his order certified damages. league a marine from the shore of than to 28 appeal pursuant immediate Island, 1998, Our dis- Long applies. 1292(b), § and in December U.S.C. posi- a third senting colleague advocates to take defendants permitted this court tion, that means all waters “high seas” interlocutory appeal. league a marine from the shore. beyond 216, See dissent at II. Discussion is question applies whether DOHSA the inter- primarily concerns appeal § 2 limits significant of DOHSA because DOHSA, pro- of 1 of pretation just compensation recovery to “a fair and right vides for a of action: by loss the pecuniary for the sustained person the death of a shall be Whenever for whose benefit the suit persons act, neglect, or de- caused § 762. If DOH- brought.” app. 46 U.S.C. beyond occurring fault on the however, apply, plaintiffs not SA does any league a marine shore of they nonpecuniary claim are entitled to Columbia, State, District of or the or the and suf- damages, e.g., pre-death pain dependencies of the Unit- Territories or fering grief.5 and survivor’s ed States.... The district court’s order is sub app. parties agree 46 761. The U.S.C. ject to de novo review because it resolved eight the crash occurred nautical dismiss, Island, v. Fleish Long which is a motion to see Stuto miles off the coast of (2d man, 820, Cir.1999), 164 F.3d 824 “beyond from the shore However, in key appeal differ as also because the issue on parties State.” construction, statutory Plaintiffs volves see United meaning seas.” Dynamics Corp., 19 F.3d refers to those wa- States v. General argue “high seas” (2d (citation omitted). Cir.1994) 770, ters the territorial waters of statutory interpretation, Presidential In matters of United States. Under Procla- language ordinarily Presi- of the statute “must mation No. issued regarded as conclusive.” Consumer Prod. Reagan, dent the territorial waters of Inc., Safety Sylvania, from the Comm’n v. United States extend miles GTE 102, 108, As the crash U.S. 100 S.Ct. 64 L.Ed.2d shore of the United States.3 (1980). Long statutory language Where the eight occurred miles off the coast of Island, ambiguous, phrase “high maintain it in is as the seas” is plaintiffs occurred case, fur inquiry range rather in this our must United States territorial instructed, seas, Supreme than and thus ther. The Court has opinion certifying for imme- August 3. On President Clinton ex- 5.In his his order contiguous tended the boundaries of zone appeal, Judge diate Sweet noted that the ef- States, "contig- of the United a zone of waters may plaintiffs fect of his be to allow order the United uous to the territorial sea of damages society, recover for loss of survivor’s States,” to 24 nautical miles. See Presidential grief, pre-death pain suffering, puni- 48,701 Fed.Reg. Proclamation No. damages. Long tive See In re Air Crash off 2, 1999). (Aug. predated Because this crash Island, York, July New Proclamation, we President Clinton's have no (S.D.N.Y.1998). F.Supp.2d We ex- occasion to consider its effect. accuracy con- press no view as to the of this clusion. 4. The "low-water is "the of a mark" shoreline edge marking sea of the water at the point ordinary lowest ebb tide.” (7th ed.1999). Dictionary Black's Law involving interpretation of a ing a case the first officer of the schooner. See 199-200, that we must id. at different section 7 S.Ct. 140. Because the “the Act language consider widow and decedent’s child did bring whole, history the legislative [the rele suit within the applicable state statutes of limitations, provision], congressional purposes they vant sought to recover under Act, underlying importance general and the maritime law. uniformity admiralty law.” held as there was no common- Offshore Tallentire,

Logistics, Inc. law for wrongful land, death on 91 L.Ed.2d 174 there would be none at sea. See id. at (citation omitted). In McDermott 7 S.Ct. 140. Plaintiffs were thus Int'l Wilander, Inc. v. entitled to no relief the absence of a 807, (1991), 112 example, L.Ed.2d 866 for 213-14, statute. See id. at 7 S.Ct. 140. Supreme interpreted Court the word The Harrisburg was ultimately overruled 1920, “seaman” in the Moragne Lines, Jones Act of in Inc., v. States Marine DOHSA, companion 375, statute to with refer 398 1772, U.S. 90 S.Ct. 26 L.Ed.2d (1970), ence to the Supreme Court decisions to 339 which remedy established a for responding when wrongful it death under general maritime 341-42, passed the Jones Act. id. at See law in a “meticulously reasoned” and “re- 111 S.Ct. 807. markably far-ranging” opinion by Justice unanimous

Harlan for a Court.6 See A. Background of the Death on the High Grant Black, Jr., Gilmore & Charles L.

Seas Act (2d ed.1975). The Admiralty Law 368 High The Death on the provid- Seas Act Judicial efforts to counteract the harsh- wrongful ed a for death at sea ness of the rule of Harrisburg, by The clearly where none had existed before. expanding existing provide statutes to initially The federal courts recognized recovery, complicated matters. Tal- lentire, right wrongful gen- 212, action for death in 477 U.S. at 106 S.Ct. 2485 law, largely cases), 235, (Pow- eral maritime based hu- (citing on at 106 S.Ct. 2485 “[CJertainly ell, J., manitarian considerations: in concurring part and dissenting in better becomes the part). humane and liberal The Court in held The proceedings Hamilton, character of in admiralty 398, 133, 207 U.S. 28 S.Ct. 52 give (1907), remedy, than to withhold the when L.Ed. 264 example, that one required withhold it established citizen of Delaware in bring could suit Gull, and inflexible rules.” The Sea 21 F. admiralty against another under Dela- (C.C. 1865) 909, (No. 12,578) statute, Cas. Md. wrongful ware’s death even C.J.). (Chase, The Supreme though Court took a death had occurred on the however, seas, approach, more restrictive in The seven miles Virginia.7 off coast of 199, Harrisburg, 140, Holmes, Court, 119 U.S. writing Justice for the rea- (1886). case, L.Ed. 358 In that a steamer soned that Delaware law defined the obli- collided with a schooner in gations parties, waters between person- “even when ally 403, the coast of Massachusetts the islands on the seas.” Id. at 28 S.Ct. Vineyard Nantucket, of Martha’s kill- in Similarly, Bourgogne, 133. La 210 U.S. Moragne explained wrongful The Court that The England Har- tion on actions assumed, risburg wrongly, that the United justified overruling the United States law, States followed British under common 388, Harrisburg. The 90 S.Ct. 1772. See id. at which there was no death action penalty neg- because the for all intentional or Whitelock, George Development 7. See A New ligent homicide was death and forfeiture of Application Law to Extra-Territorial Crown, property leaving the felon’s Torts, Extra-Territorial Marine 22 Harv. nothing to recover in a civil suit. See 398 403, (1909). L.Rev. event, at 90 S.Ct. 1772. In "the prohibi- wholesale abandonment” of the (1910); § 1 (1909); Cong. 61st (1908), § 1 S. L.Ed. 28 S.Ct. (1912); Cong. S. 62d H.R. an law to accident French applied (1912); H.R. 63d § 1 Cong. 62d ships because French and British between (1913); Cong. 63d § 1 H.R. Cong. high seas. on the occurred the collision (1915). legisla- The rest of § 1 tension 28 S.Ct. 664. See id. at narrowing of this history tive concerns Harrisburg and logic of between provision. fic- jurisdictional “created Hamilton of law in choice problems and serious tions debates congressional In the recovery altogeth- denied that sometimes litiga- in the wake conducted Tallentire, at er.” disaster out of the Titanic growing tion (Powell, J., concurring part and would that the bill objections arose Dismayed these dissenting part). wrongful death jurisdiction over oust state Law Association cases, Maritime federal reme- inadequate an and substitute (MLA) drafting the bill became began (Jan. 19, See, Cong. Rec.1929 dy. e.g., Act. See High Seas the Death (statement 1914) Bryan); id. Rep. 415-16; see also Rob- Whitelock, supra, Mann). (statement In re- Rep. in Admi- Death Actions Hughes, M. ert from members opposition sponse (1921). 115, 116-17 Yale L.J. ralty, 31 the MLA practitioners, Congress and local draft a uniform effort to abandoned its Death on Drafting, of the the B. The Instead, it a new bill remedy. submitted High Act Seas the interfere with in that “does not waters simply to create a uni- It covers initially sought in force.... law death, of grad- Right wrongful but not now covered.” See remedy for that are form Hear- High so the Seas: scope DOHSA for Death on ually the of Action refined the Judicia- state remedies. Before the Committee on displace preexisting ing not to 2, 1st Cong., rare- No. “high seas” was 64th Although phrase ry, the Subcommittee 1916) (Feb. debate, Hearing]. legislative [1916 the histo- ly of the focus Sess. indication of how that ry provides some preserved of DOHSA The 1916 version interpreted to effectuate phrase should ways. in three significant state remedies DOHSA. purposes the of First, “any navigable changed the drafters “any navi- of United States” draft a statute waters priority was to The first Zone, the Panama Canal gable of wrongful death on waters recovery for allowing Columbia, Territories or the the District of Harrisburg The high Critics of seas. States,” the United dependencies of case or that the rule that had maintained of navigable reach over eliminating DOHSA’s “(e)very country of west- rejected by been jurisdiction. S. waters within “disgrace a to a Europe,” ern and was (1917); Cong. 66-674, § 1 H.R. 65th Cong. No. 64th people.” H.R.Rep. civilized (1917). Second, a added 66-216, § the drafters (1920); (1919); S.Rep. No. § that section, 7 of which became’ Moragne, 398 U.S. at see also criticism). affect state the act would not provided MLA drafted (citing deaths remedies for uniformity wrongful death achieve a bill that would provision waters. This remedies, displacing patch- state territorial maritime “any or the Great Lakes exempted also statutory remedies that work of state any limits of the territorial within issues. raised difficult choice of law S. scope. (1913); from DOHSA’s Hughes, at 2 State” H.R.Rep. No. Cong. (1917); 65th § H.R. Cong. 6 through 64th at 117. From 1909 supra, (1917). added drafts Finally, § the later therefore, legislation provid- proposed league” to seas, “beyond marine the words remedy ed a “on the Great act covered proposed § Lakes, so that any navigable waters or a marine beyond high seas Cong. deaths “on the H.R. 61st United States.” league any standing “high from the shore State.” superior, howev- (1919); 4288, er, S.2085, § 1 Cong. S. because it Supreme 66th rests on the (1917); Cong. Cong. 64th H.R. 65th definition of Court’s seas” at the (1917). enacted, § 1 This version of DOHSA was time DOHSA was a definition Secretary further when the Supreme narrowed Court and this court requested legis- avoid have War reiterated following decades Furthermore, in the Panama Canal Zone. See lating DOHSA. no post-DOHSA (1919). 66-216, at Pana- S.Rep. authority supports No. defendants’ definition ma Canal Zone reference was moved to of seas” as “beyond the low-water 7,§ which lists certain waters excluded mark.” scope.

from DOHSA’s Court’s Understand- Congress passed The statute that ing “High Seas” at the Time of 1920 created a DOHSA’s Enactment “occurring ma- State, Although the boundary rine from the shore of or country’s Columbia, the District of or the territorial sea at roughly Territories three miles re- centuries, mained dependencies constant for almost United States.” two this limit app. parties agree 761. The was set on an ad hoc U.S.C. basis. 1793, seeking phrase “beyond league” ex- to remain neutral in the war France, between cludes from reach state territo- Britain and Spain Ocean, Atlantic traditionally lay Secretary rial within of State Thomas Jefferson three nautical miles from shore.8 claimed the “smallest distance”

for the extent of American territorial seas.9 The Meaning “High C. Seas” Relying on “the utmost of a range cannon ball, usually stated at one league,” sea above, As noted the parties agree that Jefferson made a claim for three nautical beyond the crash occurred Opinion miles. See OLC Although at 10. miles, or league, more than three from the Jefferson reserved “the ultimate extent” of Long coast of Island. Plaintiffs contend deliberation,” claim the “for future and that “high seas” covers those waters that noted that a case could be made for 20 waters, lie United States territorial miles, id., see the scope of our territorial is, international waters. Defendants sea remained constant until 1988. in- See argue “high seas” all means Section II.D. fra mark, beyond the low-water and that the “beyond words a league” modify By marine time the DOHSA was enacted in phrase “high 1920, the excluding Supreme seas” from the generally Court inter- that, coverage preted “high those waters al- seas” to mean international seas,” though “high non-sovereign considered fall within notably most jurisdiction. the traditional upon bounds the sup- cases which the authors and par- 1881, As the considerable research porters of both of DOHSA relied. In indicates, ties there is authority support example, the Supreme Court described the understanding “high either of the partic- term seas” as “where the law of no force, seas.” We believe that plaintiffs’ under- ular has State exclusive but all are Florida, Kmiec, 8. Douglas The territorial Legal waters of Texas and See W. Office of however, Counsel, leagues extended three seaward Legal Proposed Issues Raised miles), (roughly 10 based on the boundaries Presidential Proclamation to Extend the Ter- admitted, extant when Texas was and Florida Sea, 1, ritorial 1 Terr. Sea J. 9-10 readmitted, into the Union. See United States Opinion]. [OLC Louisiana, 64, 1, 961, v. 363 U.S. 80 4 S.Ct. (1960); Florida, L.Ed.2d 1025 United States v. 121, 128-29, 961, 363 U.S. 80 S.Ct. 4 L.Ed.2d (1960). 1096 206 “it well established 24, 29, Bryan). Scotland, Yet 105 U.S. The

equal.” legislation are by opponents (1881); Bourgogne, speeches La also see L.Ed. weight deter- (using relatively little 28 S.Ct. entitled at 210 U.S. definition). ques- years DOH- Act meaning In the of the mining Scotland’s Congress, Schlesinger, Justice 414 U.S. v. before Holtzman pending tion.” SA “high seas” as L.Ed.2d characterized n. 94 S.Ct. Holmes belonging a territory, (1973). in place were if these statements “outside Even Hamilton, 207 sovereign,” re- relevant, Rep. Bryan’s no other the context of region S.Ct. at re- sponsors that DOHSA’s marks reveals American Ba- sovereign.” “subject to no interpretation. his disavowed peatedly Co., 213 U.S. Fruit 1914) v. United Co. (Jan. nana Rec.1929 Cong. See (1909). 511, L.Ed. 826 29 S.Ct. (statement McCoy) (“Puget Sound Rep. [Tjhe high part seas.... is not decisions, interpreted These part refers waters,” ‘high term seas’ “non-territorial to mean limit.”); id. of the three-mile outside ocean over DOH- of the debate shaped the terms Cox) (statement (defining Rep. Judiciary and Senate The House SA. juris- have no largely “[t]he seas as where Reports consisted Committee diction”). These of DOHSA. supporters letters invoked repeatedly proponents to define Supreme Court continued The Scotland The Hamilton waters” in as “international “high seas” describing course immediately following DOHSA. years H.R.Rep. No. of DOHSA. meaning Mellon, 262 U.S. Co. Cunard S.S. 66-216, (1920); S.Rep. No. 66-674, 1-4 at (1923), L.Ed. 894 64-1419, 1- at (1919); H.R.Rep. No. 2-4 that a Prohibition statute ruled (1916); 64-741, (1917); at 1-5 Rep. S. the territori- within could be enforced (1913). 63-160, at 1-5 Un H.R.Rep. No. See id. at limits of the United States. al analysis in Court’s der rejected 504. The Court 341-42, 111 S.Ct. McDermott, Amend- that the Prohibition argument these deci reliance on the consistent the waters of ships “outside ment covered the terms of the debate setting sions States, whether the United strongly that Con suggests over DOHSA waters,” “on the foreign because or in seas “high to mean seas” gress understood sover- there is no high seas ... did, is, that inter said it what these cases 504; 123, see also 43 S.Ct. eign.” Id. Similarly, the dissent’s national waters.10 511, 501, States, 274 U.S. v. Maul United these cases failure to address of (“The (1927) 735, 71 L.Ed. 1171 47 S.Ct. statute, by misinterpret causes it to nations and common to all high sea is “beyond a ma “high with equating seas” none-”). foreign to league.” rine provid- has not that the Court It is true defen- support interpretation, In of their “high seas” of a consistent definition ed the statements of rely heavily on dants Defen- two throughout past centuries. Washington, op- an Congressman Bryan of “high seas” as understanding of the dants’ DOHSA, argued in 1914 of who ponent ap- mark beyond the low-water those seas include seas” would “high that Sto- shared Justice to been pears have Cong. See 14 Puget waters of Sound. (statement as (Jan. high seas “the 1914) ry, who 19, Rep. characterized Rec.1929 particu- legislation, a proposed is considered congressional report in a lack Statements congressional intent Hosp. larly good Ass’n of law. See American v. indicator the force 616, 1539, NLRB, 606, S.Ct. 113 ascertain.” 111 is otherwise difficult when it However, (1991). 813, (2d Barnes, commit- "[a] L.Ed.2d Pierpoint v. F.3d report, representing tee statement collective Cir.1996). by the about the drafters intended ocean, open, portion unindosed or standing “high seas.” We should inter- sea, which is the fauces without terrae pret both “high seas” “beyond and a ma- Grush, on the sea coast.” States v. United league” rine independent have meaning. 48, (D.Mass.1829);11 26 F.Cas. see See Co., v. 561, Alloyd 513 U.S. Gustafson Ross, v. United States F.Cas. 900 574, (1995) L.Ed.2d (D.R.I.1813) definition); (employing similar (“[T]he Court will a reading avoid Cases, see also The Manila Prize 188 U.S. renders some altogether words redun- (1903) 28 S.Ct. 47 L.Ed. 468 dant.”). Defendants’ definition violates (relying definition); Story’s on Justice this canon of statutory construction be- Rodgers, United States v. cause it “high renders superfluous. L.Ed. 1071 provide Defendants no examples in which (same). Story’s Yet Justice definition was the low-water mark is not well within a not the definition “high authoritative league, is, marine miles, three nautical early century, seas.” nineteenth of the coast. We do why not see Baldwin, Thompson Justices and sitting in would have two geographical retained cases, district court interpreted “high boundaries the statute when one—be- non-sovereign seas” mean waters. See yond a marine the oth- —subsumes Rodgers, 150 U.S. at 14 S.Ct. 109 er. The dissent would also violate this J., (Gray, dissenting) (citing United States statutory canon of by equat- construction Jackson, v. 26 F. Cas. 559 ing “high “beyond seas” with (C.C.S.D.N.Y.1843) (No. 15,547) (stating league.” The arguments dissent’s were, high that “the properly speak- Congress intended “both to define and to ing, territory within the of no state or indicate,” that “high “definitional,” seas” is country”); Morel, 26 F. “inject wanted to as (C.C.E.D.Pa.1834) (No. Cas. clarity much possible,” as dissent at (“The 15,807) sea, open sea, the 223, provide justification no depriving ocean, is that which ... par- under the “high seas” of independent meaning. right jurisdiction ticular of no sovereign ”)). .... Plaintiffs’ interpretation, however, Because defendants’ definition of de- “beyond fines “beyond seas as league” the low-water mark” marine a geo- graphical boundary neither dominant definition seas” as a seas,” political boundary nor the definition subject used in change. those shaped Court cases that While the geographical political the congressional over debate boundaries were coterminous nor, below, as discussed is it used in mod- there was no reason to think that would concerning DOHSA, em decisions always we re- supra the case. See note 9 and ject it.12 accompanying text. At the time DOHSA enacted, was the “minimum limit of the

2. The Structure Purpose of DOH- jurisdiction nation,” territorial of a Man- SA Massachusetts, chester v. 139 U.S. An analysis of the structure and 11 (1891), S.Ct. 35 L.Ed. 159 was of supports plaintiffs’ DOHSA also under- a marine league. “The void that existed ohama, literally "jaws "Fauces terrae” of challenge Ross involved a 11. to the abili- land,” promonto- are "narrow headlands and ty of a consular tribunal to conduct criminal ries, inclosing portion or arm of the sea that, proceedings. Although the Court stated " within Dictionary them." Law Black’s ‘[Hjigh seas’ water on the sea includes coast (4th 1951). ed. mark," [beyond] the of boundaries low-water only setting it did so in the course of forth a repeatedly Defendants relied on Ross v. 12. position rejected. that it See id. at McIntyre, 140 U.S. 11 S.Ct. S.Ct. 897. Ross does endorse (1891), not this defini- L.Ed. 581 in their brief both and at "high tion of seas.” argument, support oral to their definition of “high Arising seas.” of a out murder in Yok- Holmes’s in Justice sovereign” other the ab- was until 1920 up maritime law Hamilton, at 207 U.S. phrase^ wrongful death remedy for any of sence “high seas” use of Congress’s 133. fill S.Ct. acting to Congress, high seas. strongly § waters international as three-mile to the only void, legislated that mean seas” to “high it used suggests that of the the extent that was limit because §in 1. waters 90 international Moragne, problem.” 1772. seas” “high interpretation of Plaintiffs’ nonterritorial, is, wa- international, that history of Furthermore, legislative § 7 DOHSA. with also ters is consistent “high seas” while that shows states: That section “be- statutory language, always part giv- until any was not added statute league” provisions of State yond a marine rem- remedies. of action or drafts, rights state preserve ing regulating or to later by the same affected not this section shall be edies Congress added ap- navigable chapter waters “any Nor shall this dropped chapter. time it any waters swpra Subsection Lakes or to See to the Great ply the United States.” State, why any Con- not limits explain do the territorial II.B. Defendants within at that in the Pana- drop “high seas” waters any navigable also did not or to gress under defen- process; drafting in the Zone. ma Canal point seas means high that interpretation dants’ argue § 767. Defendants app. U.S.C. mark, low-water beyond the those waters from DOH- § 7 lists waters excluded that league” “beyond phrase be would that this section scope, SA’s so state exclude itself would if definition meaning plaintiffs’ devoid of to retain decision Congress’s waters.13 were waters nonterritorial “high seas” as supports strongly phrase listed correct, none of waters because has “high seas” plaintiffs’ claim ar- This § waters. 7 are nonterritorial meaning: it denotes independent different of DOH- ignores the drafters gument beyond both state waters international disclaim expressly were forced SA waters. federal territorial wrongful remedies ouster of state Rep- floor of House death. On the phrase retain the Not did objections that resentatives, were there in- §in but also “high seas” clearly § 1 because “superfluous” § 7 was 1919 drafts provision another serted of DOHSA scope “high limited phrase that used of the statute re- supporters of DOHSA’s that, seas. One “[whenev- 4 provides Section seas.” an “out of § was added sponded that by the law of granted right er a of action caution, minds” to calm the abundant of death on account any foreign State Rec. 4482- Cong. fault, opponents. act, occurring neglect, 1920) (statement (Mar. Rep. Mon- seas, right may such upon the clarify 7 was inserted tague). in ad- Section action appropriate an maintained in subject were not the United miralty in the courts of Tallentire, at 231- By DOHSA. app. 764. 46 U.S.C. States....” point- Judge As Sweet foreign may nations well suggesting that forth all set out, of 7 is the aim wrongful death ed their own legislated have scope of DOH- beyond the seas,” § indicates waters are remedies for of no mention SA, it makes because juris- lay the sole “high that seas” outside § 1 that referred to territorial waters Thus 4’s United States. diction of the (wa- of DOHSA scope are not within interna- “high seas” indicates reference shore of league a marine of no ters within waters, belonging to place “a tional same omission. equate also suffers from analysis, would 13. The dissent’s which league,” "beyond marine "high with a seas" Columbia, Act”). “the District of or the Territo- Supreme frequently has ries or dependencies the United reiterated Chief Justice Chase’s admoni- States”). that, tion “the humane and liberal charac- ter of proceedings in admiralty” advises Finally, applying DOHSA federal ter- favor of generous more recovery. The Sea ritorial waters would subvert DOHSA’s Gull, 910; 21 F.Cas. at see Yamaha Motor a creating remedy where none Corp. Calhoun, v. 516 U.S. 116 S.Ct. before, displacing existed rather than 619, 627, 133 L.Ed.2d 578 (quoting preexisting state or federal remedies. Chase); Chief Justice Moragne, 398 U.S. legislative history “indicates that Con- (same). at 90 S.Ct. 1772 The statute gress intended to ensure the continued legislative history demonstrate availability of a remedy, historically pro- DOHSA, Congress prioritized the preser- States, vided for deaths in territori- vation of preexisting remedies over secur- Moragne, al waters.” ing uniformity in admiralty law. See Mo- 1772; Hughes, see also supra, bil Oil Corp. Higginbotham, v. 436 U.S. (as revised, DOHSA was “intended to be 98 S.Ct. 56 L.Ed.2d 581 supplementary to the local statutes and (1978). Because defendants’ interpreta- applicable to waters they did not tion of the critical language reach”). Congress intended to exclude would oust preexisting remedies for deaths territorial federal waters from scope waters, in territorial which may prove to DOHSA because federal and state com- generous more than recovery under mon-law already remedies existed for reject we interpretation as deaths in those waters.14 inconsistent with the purpose of the stat- ute. It particularly would be inappropriate to

displace preexisting state or federal reme where, here, dies recovery as could be Meaning “High Seas”: 1920- generous more than under DOHSA. As Supreme Moragne, Court noted in “the state remedies that were left undis For century most of the there was not only turbed were familiar may but also no band of United States territorial waters actually have generous been more than the between state territorial waters and the remedy provided by the new Act.” Mo seas similar to that created Procla ragne, 1772; 398 U.S. at 90 S.Ct. see mation which in 1988 extended Unit also Public Adm’r County New ed States territorial waters from three to York Angela Naviera, Compania miles. say It was not inaccurate to (2d Cir.1979) (“rW]here F.2d a death seas effectively began at a marine caused inside i.e., howev league, three nautical miles from the er, wrongful and a death action is brought Thus, shore state.15 as was the general law, under the maritime the sub case with defendants’ definition of sidiary elements of the may mark,” cause of action seas” “beyond the low-water be different from or broader than those there is some support for the claim that delineated in the High Death on the equals Seas “beyond seas” a marine objects 14. The dissent provide "[n]o clear reme- 15. Some cases rather abbreviated de- scriptions wrongful dies of DOHSA. Keman v. beyond existed for American Co., Dredging territorial waters Harrisburg, gap after The (1958), example, L.Ed.2d 382 omits both designed in the law that express- DOHSA was "high language statutory and the ly argument to fill.” Dissent at 224. This language concerning United States territories: courts, simply ignores the cases in which the "Where death occurs Court, including provided reme- shores, High from state the Death on the Seas dies in an effort to ameliorate the harsh rule provides Act ... Harrisburg. of The See Section II.A. 4, death.” Id. at 430 n. 78 S.Ct. 394. 210 con frequently has Supreme Court authority, how- is scant There

league.”16 wrongful- nature of of light the extent that even sidered ever, the claim be- maritime 5928, high general seas still under the death remedies Proclamation 1920) at (enacted than rather league, marine at From DOHSA gin one law. es- Proclamation boundary the (decided 1970), pro the 12-mile DOHSA Moragne tablished. high the oh remedy for deaths the vided statutes wrongful death seas, state while DOHSA, dom- the following years

In the in territo remedy for deaths re- the provided understanding of inant 436 U.S. Higginbotham, territorial States See “beyond United rial waters. mained Louisiana, Moragne v. 621, After In 2010. 98 S.Ct. waters.” 44 773, 22 L.Ed.2d 11, Harrisburg S.Ct. 89 and established 394 U.S. overruled map scope of the Supreme (1969) Id. at 470 U.S. the United States ting forth internal waters Seas, and that ed); seas’ means not included Convention international the internal tion. Under belt known measured ion of foreign nations. divided al sea. exercise deny the tional waters sea are the (1985) of see also United States ^[1962] [Louisiana nation’s shores complete the seas: ... generally into Court Within [Louisiana waters. These extensive Beyond from their right of innocent in the territorial single nation. states all 13 U.S.T. high 89 S.Ct. Submerged three zones.... scheme, law, of a not parts of the provided sovereignty of the ], I seas, Convention Outside accepted principles that, S.Ct. the inland subject marginal, State,” United States High the which ]II control but the Court are its seaward tvhich coastal navigable sea are “The term (same). Lands (emphasis Seas, are concerned the territorial jurisdictional sea or sea that are “open to are on the or territori- waters, and nation 84 L.Ed.2d Louisiana, passage Nearest inland, or subject edge, relied Apr. Act, the interna- domin- In cannot art. High ‘high add- may is a set- the na- all of is vices, See 414 U.S. maritime the elements Marine the death law for seaman’s but al maritime Higginbotham, recovery under state v. Korean ages recoverable (1974) S.Ct. 56 L.Ed.2d er, 112 L.Ed.2d for pre-death loss-of-society general maritime but in territorial an Air mously concluded 141 L.Ed.2d oust sion remedy death did not not mental Sea-Land funeral Lines, Court (allowing Corp., 498 U.S. 232-33, 106 S.Ct. 2485 573, 94 S.Ct. law for loss 133 L.Ed.2d occurs remedies. Air law, 275 exclusive wrongful expenses, has of a pain damages); Services, Lines, subsequent cases anguish); (1990) (denying on the recovery made clear that DOHSA under occur on the Moragne-type U.S. law); statute); Zicherman In a 116, 118 (setting 516 U.S. and loss 806, suffering). Where (denying 618, S.Ct. high 19, 111 S.Ct. general support remedy. § 7 of DOHSA Inc. Dooley v. Kore recovery under Tallentire, death). (1996)(denying Miles v. under recent 39 under seas, howev v. forth L.Ed.2d maritime set 217, (denying damages and ser does remedy. Gaudet, general society, Where discus gener unani Apex forth 2010, dam seas, 317, 9 state law displacing I, “stops 2; see Louisiana Id. art. nations.” Yamaha, 116 S.Ct. waters.” 773. n. U.S. at 23 in Sec- addressed hereafter the cases con- sion to offer somewhat seem Defendants II.D, equate they appear to "high seas.” their flicting II.C.4 tions definitions league,” drafting and "beyond intent "high discussion seas” with statute, "beyond low- they upon. endorse the they rely as do the cases definition, their discus- while in water mark” omitted). (citations e.g., Because the First Nat’l Bank in at 628 Greenwich v. Airlines, Inc., National obliged “preserve appli- was the 288 F.2d (2d Cir.1961) (noting applied of state statutes to deaths within cation Alabama). beyond the territorial waters of waters,” id., rejected a claim argument This overlooks that when those was the for a death that DOHSA decided, cases were there were no Rico, federal waters of Puerto that occurred the lay territorial waters that between state territory Apart of the States. high territorial waters and the seas. Thus Yamaha, none cases con- from of these boundary high between the seas and application cerned the of DOHSA to feder- state boundary waters was same as the they al territorial waters nor did define high between the seas and federal waters. scope of DOHSA.17 exist, Where federal territorial waters do generally interpreted has This court however, the high begin seas where those seas” to mean international waters. See, federal territorial waters end. e.g., 1924, for we example, characterized Yamaha, 116 628. “ par as “where the law of no “high seas” point Defendants also to a statement force, all ticular state has exclusive but are Indus., Heavy Wahlstrom v. Kawasaki Aires, equal.’” The Buenos 5 F.2d (2d Ltd., Cir.1993), 4 F.3d (2d Scotland, Cir.1924)(quoting “gave representa- states that DOHSA “ 29), ground 105 U.S. at and ‘the common anyone (i.e., tive of high killed on the seas ” omitted). (citation of all nations.’ Id. shore) more than three miles from Similarly, Corp. Cove Tankers v. United right bring a wrongful death action.” (2d Inc., Ship Repair, F.2d 40 n.1 Id. at 1088. Wahlstrom nowhere refers to Cir.1982), we noted that “the Proclamation and it seems to have “ ‘in Court’s definition seas” was assumed traditional three-mile subject ternational waters not to the do boundary remained effect even after ” any single minion of nation.’ Id. at 40 & event, any beyond 1988.18 In it was dis- I, n. 1 22- (quoting Louisiana 394 U.S. at pute that the death in Wahlstrom occurred 773). explicitly We have also Connecticut, on a river in where DOHSA boundary relied on the between territorial would not clearly apply. See id. at 1086. setting waters in international reference, parenthetical This in a case that DOHSA, scope explaining pur that the scope did not involve the can- pose of DOHSA “was to create a uniform not be read to overrule the clear state- cause of action where none existed before applies ments of this court that DOHSA and which arose the territorial lim only outside United States territorial wa- * any of the its United States or State there ters. of.” D’Aleman v. Pan Am. World Air (2d Cir.1958). ways, 259 F.2d 4. Application of DOHSA For- eign Territorial Waters rely heavily Defendants on statements begin rely of this court apply- Defendants on line of cases See, ing where territorial waters end. DOHSA to the territorial waters of a footnote, 451711; Respondents, In a Yamaha states that DOHSA WL Brief of WL 17. "provides 551075; Brief, a federal claim for Reply Petitioners' 1995 WL occurring more three nautical than miles 601284; Brief Amicus Curiae of the National any Territory.” State shore of Association, Marine Manufacturers’ 1995 WL Yamaha, 116 S.Ct. at 624 n. 4. This definition 703412; Argument, WL Oral seas,” "high not but makes no mention of there also is no indication that the Court 18. As none of the briefs in Wahlstrom men- considered the effect of Proclamation tioned Proclamation the issue eight years issued was not before. The Proclamation Appellant, court. See before the Brief in argument. mentioned briefs (No. 92-7948); Court, Appellees; Brief of Wahlstrom nor at oral See Brief for Petitioners, (No. 94-1387), [Reply] Appellant. Yamaha Brief of Bombay, any nor of the other cases of nor scope that suggest to foreign state foreign to interna DOHSA apply with not coextensive is DOHSA waters, argument Disas adopt In re Air Crash defendants’ In waters. tional 1, January “beyond India on the low-water Bombay, means ter Near (W.D.Wash.1982), fact, in 1175 In Ninth Circuit How- F.Supp. mark.” 531 ruled that because plaintiffs’ interpreta- the court to example, ard comes closer for should be tion, DOHSA “was ex- remedy created that DOHSA explaining construed, within applied DOHSA wrongful deaths broadly designed to cover pressly at of India. See id. occurring the territorial outside the territorial bound- Co., Boeing v. 660 Jennings Howard, In 41 1182-83. aries of the United States.” (E.D.Pa.1987), aff'd. without Adm’r, 796 F.Supp. 530; 592 at see also Public F.3d (3d Cir.1988), the court (same). F.2d 1206 op., Thus, 838 we find no basis F.2d at 63 a two and plane to a crash applied DOHSA point. reversal on this coast of the Shetland off the half miles

Islands, The application Scotland. The of Presidential Proclama- D. Effect territorial waters has foreign DOHSA tion 5928 No. results, unusual such somewhat produced that had the parties dispute The do not to a river in of DOHSA as the extension Procla- before Presidential crash occurred Peru, v. see Cormier Williams/Sedco/Horn No. 5928 was issued mation Constructors, 1011 F.Supp. 460 would have occurred United crash Venezuela, (E.D.La.1978), a lake in see that DOHSA territorial waters so States Co., 626 F.2d v. Bros. Sanchez Loffland therefore, issue, apply. would 1980).19 (5th 4 A n. Cir. Unit 1230 issuance of the Proclama- whether after are not faced here with Obviously, we tion, to the waters be- applied DOHSA arising claim out of an wrongful death and 12 miles from the shore. tween three of a for- in the territorial waters accident Proclamation, issued President what position We take no eign nation. for; Reagan, provides when faced the dif- courts should do with of the territorial the extension sea apply ficult of whether DOH- question America, the Common- United States foreign territorial where SA in Rico, Guam, Puerto American wealth of only with plaintiffs might otherwise be left Samoa, Is- Virgin States United foreign courts. The foreign remedies lands, North- the Commonwealth of the foreign ter- applying DOHSA decisions Islands, ter- ern Mariana other provide waters seek to ritorial ritory possession over which court for of those

-in federal survivors sovereignty. exercises United States killed maritime accidents. See Jen- the United The territorial sea of 803; nings, F.Supp. Bombay, to 12 nautical henceforth extends States at 1183. These do not F.Supp. decisions of the United miles from baselines suggest require application even —the —or with determined accordance to the territorial waters of law. international States, plaintiffs already where Fed.Reg. 777 No. Proclamation See, remedy. e.g., have or federal a state (1988). noted: Judge Sweet As Yamaha, Furthermore, 628. expressly also stated President support none these cases defendants’ in- is consistent statutory the Proclamation with interpretation of the relevant at 3 Opinion, law. Cf. language Jennings [OLC] ternational DOHSA. Neither (E.D.Pa.1991) Corp., F.Supp. applied courts have also Several (Jamaica); Windjammer foreign v. territorial waters of other coun Kuntz “Barefoot” Ltd., see, Cruises, territories, F.Supp. Crystal e.g., tries or Cruises, Inc., Howard v. 1994) (W.D.Pa.1983), (9th op., F.2d aff'd. without Cir. F.3d (3d 1984) (Bahamas). (Mexico); Kunreuther v. Outboard Marine Cir. (as statute-by-statute hundred four must be assessed on a “[o]ne n. 6 claim a twelve-mile territo- basis. Big nations now United States One Six (2d sea, Wheel, Cir.1999), while thirteen maintain rial 166 F.3d 499 n. 1 (Third) limit.”); three-mile Restatement this court held example, provi- that a Law of the Foreign Relations sion of the Antiterrorism and Effective (1987) (international § 511 United States Penalty Death Act expanded the terri- jurisdic- law allows nations to “exercise torial waters of pur- the United States for ... ... a [t]he tion over territorial sea poses of that did not thereby ex- statute may that not 12 nauti- belt of sea exceed pand jurisdiction federal criminal under miles”). cal The President’s exercise of Gambling Ship Act. Big Six Wheel power foreign constitutional over affairs does not answer question of whether consistent with international is therefore Congress would have intended the expand- law. ed territorial to be sea excluded from DOHSA. Based on analysis our of Con- The Proclamation thus alters the three- DOHSA, gress’s intent in enacting we de- boundary historically that had defined mile adopt cline to defendants’ view of the ef- Argentine Repub- the territorial sea. See fect of the Proclamation. Shipping Corp., lic v. Amerada Hess n. background and legislative history (1989). Concluding L.Ed.2d 818 that of DOHSA demonstrate Congress’s intent “Congress application intended DOHSA’s to exclude all state and federal territorial depend on the border between United from scope. supra waters its Subsec- territory,” Judge and international States II.B; Yamaha, tion see also 116 S.Ct. at explained Sweet here the Proclama- (concluding “Congress has not effectively point tion moved the starting prescribed remedies to 12 three miles offshore. deaths of in nonseafarers territorial wa- eight As the crash occurred miles off ters”). in Nothing history or Island, Long coast of the district court purpose provides persuasive reason to fix ruled, it occurred within the territorial wa- immutably scope of the statute to the ters of the did United States boundary between United States territori- apply. not al waters and nonterritorial waters as it Thus, in plaintiffs Defendants note that the Proclamation existed cor- are a provision concluding includes that states as follows: rect in the effect of the “Nothing starting point this Proclamation ... extends Proclamation is to move the existing application otherwise alters Federal or of DOHSA from three to jurisdiction, rights, legal State law or other 12 miles from the coast. inter- Plaintiffs’ pretation obligations interests or derived there- of the Proclamation does not DOHSA, argue but certain change designates from.” Defendants that the district ad- imputed court an effect to the Proclama- ditional waters to which not DOHSA does If explicitly apply. tion that disclaimed. Com- 1920 had included a Proclamation, menting effect of the definition of seas” as “waters outside Legal the Office of Counsel of the United or state territorial States Department explained: sovereign,” of Justice where no nation is as we be- did, ... essentially “The issue is whether in- lieve it the Proclamation Indeed, jurisdiction any existing change tended for the would definition. if expanded statute to include an territorial the Proclamation is construed to create a Thus, subject question legisla- sea. is one of zone of federal territorial waters Opinion, supra, tive intent.” OLC at 22.20 then this would violate the dis- Therefore, effectively impact of the Proclamation claimer. DOHSA would Opinion, Opinion 20. The OLC further confirms "the the territorial sea.” supra, seas ... are the remainder of the ocean at 4. Honolulu, F.Supp. Near excluding federal amended (N.D.Cal.1992). The force of these cases coverage, its miles from three up to sug- much modest than defendants more waters be- federal territorial including but First, none mention Proclamation gest. miles. an effect Such three and tween Second, none involved accidents be- in- 5928. Congress’s with inconsistent would be boundary three-mile the traditional territorial wa- tween all federal exclude tent to boundary created the 12-mile scope of DOHSA. ters from Proclamation, no occasion to ad- providing that “the assertion defendants’ Despite raised this case. the issues dress controlling and weight of overwhelming Creek, American accidents in Goose authority” supports judicial persuasive occurred Dredging, and Smallwood courts, view, both only two district their clearly waters. Miller were what Circuit, the effect have discussed the Fifth case,” F.2d at “an asbestos Fran on DOHSA.21 of Proclamation exposed a seaman plaintiff and the (1991) Corp., 1997 Hornbeck cis v. Offshore many ships over asbestos on defendant’s (E.D.La. 1997), that, states 20740 WL oc- the accident Honolulu years, while terms, does by its own “Proclamation approxi- international waters curred “over one application beyond alter not DOHSA’s Honolu- mately 85 nautical miles south of The Francis from shore.” marine Honolulu, Disaster Near lu.” In re Air court, however, this conclusion reached (N.D.Cal.1990). F.Supp. 1543 792 any providing without paragraphs two Finally, employ none of these cases defen- Also, v. Aerospatiale in Blome analysis. “high “beyond seas” as dants’ definition of F.Supp. 805 Corp., 924 Helicopter Instead, they mark.” low-water (S.D.Tex.1996), suggested the court “beyond seas” with marine equate beyond Texas state apply DOHSA would thereby rendering the former league,” terri and within federal territorial waters phrase surplusage. waters, that the loca torial but concluded an issue of fact that begin tion of the crash was Finally, the dissent’s decision upon summary judg Proclamation, could not be resolved using analysis with the its persuasive more view of the ment. The through a lens which to an executive act as is that it ren effect of Proclamation 5928 passed Congress 68 interpret a statute limit to federal territo ders the three-mile earlier, its error. As years foreordains vestigial concept.” rial waters “a Triton above, II.A, we supra indicated see Section Compania Int’l v. Anoni Container Ltd. is to approach the sounder believe Navegacion, ma De 1995 WL Venezolana understanding of begin Congress’s with 1995). (D. 464481,at *3-4 Guam at language purpose of DOHSA enacted. The first section the time was argue Defendants also that courts have assumes, simply without of the dissent consistently held that even after Proclama is not “linked to proving, that DOHSA coverage begins three tion legal understanding of the international any miles from the shore of state. See territorial sea.” Dis- breadth of U.S. Lines, Ltd., v. President Miller American argument might seem (6th sent at 218. This Cir.1993); 1450, 1455 In re 989 F.2d DOH- only strip if one were to Trawlers, Inc., persuasive F.Supp. Goose 972 Creek ignore, as the dissent (E.D.N.C.1997); SA of its context In re American does, Supreme repeatedly that the Court Co., Dredging F.Supp. wa- (S.D.Fla.1994), used seas” to mean international aff'd, Dredging American (11th Lambert, pas- drafting ters at the time of the 81 F.3d 127 Cir. Co. See, 1996); e.g., American Ba- Trading sage v. American & of DOHSA. Smallwood 511; Co., nana, La at 29 S.Ct. Transp. F.Supp. U.S. 664; (N.D.Cal.1993); Bourgogne, at 28 S.Ct. In re Air Crash Disaster 21. The dissent makes the same sweeping See dissent at 216. as- sertion. Hamilton,

The at 28 S.Ct. one remedial scheme over U.S. certain federal Scotland, 133; miles) at 29. Since (up U.S. territorial waters to three and a Supreme Court and different remedial both scheme over other fed- (from understanding have affirmed the eral court territorial waters three to 12 miles).22 as international waters. “high seas” II,

Louisiana The core of DOHSA was to I, Louisiana 1074; 394 U.S. at provide where one did not exist Tankers, Cove 773; F.2d at 40 n. before, not to oust either a Moragne-type Aires, Buenos 1; 5 F.2d remedy or state law remedies. The reme- refutation, offers no or even men- dissent dies plaintiffs available to for wrongful tion, cases, any of link the these death in the federal territorial “high seas” in. to the bound- term may which the crash occurred prove better international and United ary between suited this case than DOHSA’s statuto- territorial waters. ry requirements. As the sum, once United States Yamaha, did we leave for the district territory state or thereof has asserted sov- ques- court resolve the conflict law ereignty over certain DOHSA does tions in determining which remedies are govern the remedies available in those available.23 We hold the Death waters. High apply Seas does not to federal . territorial waters. E. Remedies in Federal Territorial Wa- ters III. Conclusion Finally, object defendants that the dis- trict court created a “no-man’s land” be- above, For the reasons stated we tween three and 12 miles from the of shore plaintiffs’ conclude that interpretation of the coastal states. As our of discussion statutory language the relevant better re history purpose DOHSA’s and makes meaning the and of the flects clear, the district court’s decision did not High Death on the Seas Act. Accordingly, land,” recognized create a “no-man’s but affirm the we decision of the district court larger the Proclamation created a apply that DOHSA does not to the United zone federal of territorial waters. This States territorial waters where the crash zone of governed by waters is the same in this case occurred. We remand this traditionally governed remedies have pro case to the district court for further federal territorial waters. Defendants in- ceedings opinion.24 consistent with this that exempting sist the federal territorial SOTOMAYOR, Judge,' Circuit waters affected the Proclamation from dissenting: inconsistency DOHSA creates and under- uniformity. mines But it would be more In an provide understandable desire to inconsistent, arbitrary, and to impose representatives more the relatives and estate of analysis. passed 22. This is also true of the dissent's es of a bill that would alter by excluding scope from its commer- occurring cial aviation crashes on or after objects 23. The dissent that we “decline to July Cong. 1996. See H.R. 106th cursory address in even the most fashion (2000). currently actually apply The bill is before the what law would the TWA parties litigation.’’ The have not notified Dissent at The district President. [225]. progress court never ruled on the issue. We see no court as to the of this bill or taken compelling need depart to from the any position respect standard with thereto. Under the practice having court, circumstances, the district address position we take no question this first bill, law in the instance. Regardless of the effect of the bill. conclude, we record, arguments .based on the case, decision, parties dissent and the district court’s notes that while this was 13], pending, subject see dissent at both DOHSA. [207 n. hous- crash is not to beyond one marine “high seas phrase Flight 800 the TWA 213 victims State,” in- any from the shore recovery,1 league generous” a “more crash with to indicate the to define and both give to tended majority fails ante boundary line at geographical limiting language effect proper to nautical miles began high seas 5982; language, DOHSA’s Proclamation —three that bound- U.S. coast—because and to a from the history, purpose; and legislative border of with the outer ary line coincided pas- law since DOHSA’s case wealth of seas. the states’ support the inexorable sage, all of which remedies state preserve all applies to wished conclusion to, separate remedy, provide “beyond a marine occurring deaths subject only to fed- to waters i.e. shore of from the miles] nautical [three i.e., “the jurisdiction, eral and not State,” App. U.S.C. stated, it is irrel- league.” Simply beyond the U.S. occurring only to deaths the inter- Congress shared evant whether territorial sea. understanding “high seas” legal national terms, the Proclamation By explicit its waters,” because its “non-sovereign meaning of the U.S. territorial changed passage the time of DOHSA’s concern at complement thus its sea—and federal, state, boundaries. domestic, international, but not seas”—for legisla- language Nothing majority nevertheless law purposes. majority’s conclu- history supports tive forth boundaries set the territorial applies “high seas” to Congress intended sion that DOHSA, even Proclamation “subject change” term a variable for the meaning of though the evolving concepts. international because question purely ais purposes of DOHSA majority’s is also con- conclusion Moreover, majority’s of domestic law. every holdings dicta of trary to DOHSA of the Proclamation application issue, court that has considered this other interpre- entirely on its grounded almost long with line and cannot reconciled thought Congress probably tation of what from at least four other circuits of cases at the time of seas” meant “high the term occurring in DOHSA to deaths applying i.e., ... where “waters passage, words, other foreign territorial waters —in ante sovereign,” nation at no is foreign sov- indisputably subject majority’s assumption Con- and the ereigns. nautical mile line at gress viewed three reasons, fully discussed more For these “po- as a high seas commenced which the below, the Proclama- I do not believe that subject change,” boundary line litical general federal replaced DOHSA with tion reasoning, this at 207. ante Based lying in the of waters maritime law zone that the majority Proclamation’s concludes nautical miles three and twelve between boundary line of the U.S. of expansion (the “disputed the U.S. coast seaward of nauti- three to twelve territorial sea from zone”). respectfully I therefore dissent. necessarily excluded DOHSA’s cal miles nine mile zone. application DISCUSSION un- Congress’ focus on majority’s A. The Proclamation derstanding of the term statutory drafted, provides majority ignores As misplaced. occur “on by using deaths Congress, that the DOHSA representa- any brought by the cases ruling substantially the will affect come 1. The also the Alaska Airlines recovery of the 88 victims of 145 cases related to tives crash, available approximately ten nau- which occurred have been be- the crash which consolidated the coast of California. tical miles off court. See In re Air Crash fore the district Off al., Island, Looking Taylor Flight et 261: Long WL at *1 Chuck Times, Answers, (S.D.N.Y.). Seattle Feb. Al. may It also influence the out- national law purposes.” [or United States v. any Alaska, nautical from the shore of miles] three 589 n. L.Ed.2d, 222 State, Columbia, (1992) or the District of or the (citing Argen dependencies Territories or Republic tine v. Amerada Shipping Hess App. States.” U.S.C. Corp., 8, 109 441 n. U.S. enacted, nau- DOHSA was the three (1989)) when added); 102 L.Ed.2d 818 (emphasis marking tical mile line the start of the Schoenbaum, see also Thomas J. Admi seas,” and the end of U.S. territorial Law, ralty and Maritime 2-14 n. at 32 bounding coincided the line (2d with ed.1994) (noting that the Proclamation the states’ territorial seas. The 1988 Proc- “is effective ... only for foreign policy lamation, by extending the “territorial wa- purposes”); McLaughlin, Richard J. of the United from three to ters States” Impact the Extension the U.S. Terri coast, nautical twelve miles from Vessels, Foreign Flag torial Sea on 2 Terr. this coincidence for international ended (1992) Sea J. (quoting Depart State “ (Dec. 27, purposes. law Fed.Reg. representative’s ment remark that ‘the 1988). appeal question This poses Proclamation affects the breadth of .the changed whether the Proclamation DOH- territorial sea for international pur application by rendering SA’s zone of ”) poses.’ (quoting Examination of the only beyond effective the twelve nautical President’s Proclamation Extending the mile line. Territorial Sea of the United States from Before, 12-Miles, 3- to Hearings

The Proclamation modified the definition the Sub- Oceanography comm. on “U.S. waters” —and therefore Great Lakes Comm, beginning of the point seas—for House on Merchant Marine international, domestic, Fisheries, but not pur- Cong., law 101st 13t Sess. ).2 poses. The Proclamation “extended the [hereinafter House Hearings] United States territorial waters to twelve expressly Because the Proclamation states nautical miles for the limited that it any does not “alter” “rights, legal conforming law, to the territorial obligations” limits then interests or under federal permitted by international expansion law ex- an [and] U.S. territorial sea for plicitly application declaring purposes limits its international law should not alter does not extend or ‘[it alter] otherwise breadth of the territorial seas for do existing juris- Federal purposes. or State law or mestic a corollary, As the start ' n diction, interests, rights, legal ing point or obli- of the pur seas” for the ” gations derived therefrom.’ pose employing United of a statute that term Wheel, same, Big States v. One Six Congress’s F.3d should remain the unless (2d Cir.1999) Proclamation) (quoting purpose including when term was added). (emphasis the Supreme legal As linked to the international under observed, has ‘pro- standing ] “the of the breadth of the territo U.S. President! claimed’ a 12-mile territorial sea rial inter- sea.3 for sea, Department representative "ignore” 2. The State also U.S. territorial and that I Su- observed that "the cases, territorial sea was extend- preme Court decided before DOHSA's security practice ed because 'national the enactment, which defined seas as "inter- change of most nations made it desirable to fact, national waters.” See ante at 215. In I ” existing policy.’ McLaughlin, supra, at 94 Rather, "assumption.” no such I make sim- fact, 5). (quoting Hearings, House In with- ply conclude irrelevant to the out- issuance, in one week of the Proclamation’s come of this case whether shared departure the U.S. Coast Guard effected the legal understanding "high the international newly expand- of two Soviet the vessels from waters,” “non-sovereign seas” as because ed territorial sea. See id. at 95. Congress’s only employing purpose in the phrase "high beyond league” majority

3. The claims that I "assume” boundary was to define and indicate a line is not linked to the interna- understanding tional of the breadth of the that ensured that state would be remedies added). FAA Accordingly, the de- phasis prin- this recognized previously haveWe Proclamation did Wheel, termined that the Circuit case a Second ciple. sea” within the redefine “territorial ante at itself majority, see by the over glossed 1958, 49 U.S.C. that, Aviation Act of because Federal concluded this Court necessary to found it the and thus limiting language, the Proclamation’s parts certain meaning of redefine “territorial did not affect Proclamation “ bring implementing regulations of the of the territorial ‘beyond the ” compliance with the into of a 1994 the United States purposes for States’ United Act, on International Civil Chicago Convention Gambling Ship amendment (1994). Wheel, Aviation, Dec. Stat. §§ 1081-1084 U.S.C. id. The Coast Guard that U.N.T.S. 295. See found 501.4 Wheel F.3d at Agency Protection and the Environmental § 1081 of the Gam- waters” “territorial the Proclama- similarly have understood waters extend- Ship Act referred bling In- Emergency Position tion’s effect. See from the U.S. nautical miles ing only three Uninspected Beacons for dicating Radio Congress had not stated coast, because (1993) (observ- Vessels, Fed.Reg. 13364 con- 502. That See id. otherwise. ... extended perception ing that “Proclamation part on rested clusion nautical miles territorial sea to twelve territorial wa- meaning of “U.S. that the law; purposes ... of international the amendment for the purposes for the ters” however, not affect Act, that Proclamation did which forbade Gambling Ship law,” concluding and therefore flag American vessels domestic gaming aboard in 46 requirement, contained a matter of “federal” U.S. emergency that certain id. at U.S.C. law. See rather than international by uninspected equipment must be carried 1,n. 499 & applied on seas” still vessels recognized have also agencies Federal territorial sea expanded within the meaning between the distinction coast) (Coast league from the one marine purposes for the sea Guard); and Hazardous Sub- National Oil hand, law, the one and inter- domestic Plan, Contingency stances Pollution law, The Federal on the other. national (observing that Fed.Reg. 8666 (“FAA”) has ob- Aviation Administration Proclamation, limiting language, given its served, example, that the Proclamation meaning of “territorial change did not sovereignty of the territorial “extended] purposes of the National Contin- sea” for inter- government, (Environmental Plan) Protection gency to 12 nautical purposes, from 3 national Agency). coast,” but did “not from the U.S. miles court and the Except for the district boundaries of the geographical alter the case, (i.e., every court to con- majority national borders and United States since range application 3 miles of the U.S. sider DOHSA’s territorial waters within coast) found that issuance has purposes.” Applicabili- the Proclamation’s for domestic disputed in apply in continues to Regulations Aviation the DOHSA ty of Federal majority’s efforts to discount Overlying the Waters Between 3 zone. The Airspace of their cannot alter the force from the these cases and 12 Nautical Miles (1989) (em- in Fran- Coast, reasoning. The court consistent Fed.Reg. "beyond waters of purely phrase the territorial preserved waters—a 4. The in state territorial Act, Gambling Ship the United States" goal. Supra at 216. As discussed domestic 1081, defined in C.F.R. 18 U.S.C. below, nothing language, legisla- in DOHSA’s 43.4472-l(e) (1994) "those waters within history, or indicates that Con- tive boundary line between the international boundary gress DOHSA's line to be intended contiguous foreign any United States country changes depending on in internation- variable ... from within 3 nautical miles law. al coastline.” low tide on the (1991) Corp., Territory,” cis v. Hornbeck Civ. shore State or should be Offshore (E.D.La. A. No. 1997 WL majority’s added to the long list.6 Jan.17, 1997), that, held because of its sum, weight authority recog- limiting language, the Proclamation did nizes that the Proclamation changed the (“Procla *1 not affect See id. at DOHSA. meaning of the U.S. territorial sea—and 5928, terms, mation its own does not complement thus its only seas”— application beyond one ma alter DOHSA’s for international purposes. law un- This ”). Similarly, rine from shore.... derstanding comports with both the Proc- v. Aerospatiale the court Blome Heli limiting language lamation’s princi- and its 805, copter Corp., F.Supp. pal purpose of protecting national (S.D.Texas (5th security. 1996), aff'd, 114 F.3d 1184 Cir.1997) McLaughlin, 1, supra note at 95. (unpublished disposition), al When recognizing interpreting that Proclamation a domestic though statute like DOHSA, therefore, extended the U.S. territorial sea to twelve we should not incorpo- miles, nautical ap concluded rate international concepts of territorial plied where death occurred more than seas unless specifically coast, nine nautical miles Texas intended import those concepts into the beyond state within waters but the U.S. Rather, statute. we should follow the lead majority recog sea.5 As the court, of the Wheel which found that “U.S. nizes, see ante at numerous other territorial waters” for purposes of the courts, dicta, albeit have stated that Gambling Ship Act extended three applies disputed zone even nautical miles—and therefore that the high after issuance of the Proclamation. seas commenced at 12 nautical miles— Calhoun, Corp. case Yamaha Motor because had not stated other- 207 n. Wheel, wise. See 166 F.3d at 502. (1996), L.Ed.2d 578 Supreme which the guidance Legal the Office of provides Court observed that “[DOHSA] (“OLC”)7 federal claim for Counsel occurring determining effect, more than three nautical miles from any, the Proclamation’s if on the mean- Although majority apparently 5. finds the waters of Puerto Rico.” See ante at 211. persuasive” pronouncement "more in Tri application If DOHSA’s zone had been an Compania ton Container Int'l Ltd. v. Anonima above-quoted issue in Yahama the dicta Navegacion, De Civ. Nos. 94- Venezolana binding precendent dispositive would be 00055, 94-00063, WL at *3 this case. DOHSA was not at issue in Yam- (D.Guam, 2, 1995) May that "the three mile aha; rather, question in Yamaha was concept,” vestigial territorial limit is a ante at (Puerto whether state law Rican Common- 214 it should noted that Triton did not in law) Pennsylvania wealth law or or federal any way involve death on the seas or applied common law remedies in Puerto admiralty elsewhere. Triton was a suit in Rico’s three nautical mile territorial sea—a “for reimbursement of the administrative ex indisput- zone of waters in which DOHSA is penses preserva advanced Triton for the ably inapplicable. App. § See 46 U.S.C. tion, safekeeping, and sale” of a certain ves The Court concluded that state remedies had sel. Id. at *1. displaced by “not been the federal maritime wrongful-death recognized Moragne action majority downplays 6. The Yamaha's observa- Lines, Inc., v. States Marine tion on the basis that the Proclamation was (1970).” 26 L.Ed.2d 339 Yam- parties’ never discussed in the Yamaha briefs aha, 516 U.S. at 116 S.Ct. 619. Yamaha argument. or at oral See ante at n. 17. speaks thus to remedies in Puerto Rican terri- discussed, parties Whatever the I assume the purposes torial which for the of Yam- gives thought to the issues it Pennsylva- aha were either Puerto Rico’s or address, chooses to even in dicta. Yamaha, nia’s death remedies. See 516 U.S. n. at 216 116 S.Ct. 619. majority appears misrepresent also holding the issues and of Yamaha. In con- observations, Legal majority’s 7.The Office of Counsel is an Office in trast to the neither Department side in Yamaha raised "a that the of Justice headed an Assis- claim DOHSA Attorney was the for a death that occurred 0.25. tant General. See C.F.R. merely denotes “an sea” territorial but purposes the sea for of the territorial

ing Kmiec, supra, with is consistent it.” statute area that coincides with particular of a OLC, in deter to the According OLC, view. statutes According this at 22-23. affects a Proclamation the mining whether language such definitional incorporating statute, whether the issue is particular by the Proc- unambiguously are unaffected af the statute “intended” lamation, inquiry is unneces- and further the meaning of change in the by a fected sary. id. See under international sea “territorial Kmiec, Legal Issues W. Douglas law.” accepts guid- OLC or not one Whether Presidential Proc Proposed by the Raised stat- congressional interpreting ance on Sea, Territorial the To Extend lamation utes, hit what I consider the has OLC OLC) (opinion of Terr. Sea J. ambiguity only the outcome-determinative added.). suggests The OLC (emphasis “high by using the term §in 761: whether analysis is starting point that the the incorporate intended to seas” language if the is statutory language; the concept high seas legal international legisla of the statute’s analysis ambiguous, merely to or denote a provision, into the history and its structure tive “beyond a zone—defined as those analyt This id. at 23. See appropriate. the coast—that coin- league” marine from with the classical comports ical framework starting point of the cided with the Com construction. statutory canons of enactment. at the time of DOHSA’s seas the Earth v. Consolidated Friends pare majority frame the appellees the (2d 57, 62-63 Cir. Corp., 768 F.2d Rail ambiguity around an statute debate 1985) analytical the start (observing that of this case—the dispositive is not language plain ing point is the statute’s seas,” and unam language if is clear term as question and that the whether the ordinarily judicial inquiry the biguous, re- Congress, the understood DOHSA ends) Logistics, Inc. v. Tal with of the three-mile to waters ferred seaward Offshore lentire, 207, 220-21, 106 S.Ct. line, of the low-water or to waters seaward (1986) (construing 91 L.Ed.2d 174 light ante at 201-02. the mark. See plain language provision, where DOHSA favoring the former evidence considerable inconclusive, light reading proved view, majority that agree I with Con- the history, congressional legislative DOHSA’s “high seas” to gress probably understood of uniformi “importance and the purpose, outside state territorial seas. mean waters law”). analysis An admiralty ty of However, at 209-10. this does ante guide interpretive under these ambiguity to resolve essential help the that DOHSA compels the lines conclusion I just have identified. the statute disputed the zone. applies to Congress, by if majority states that Language B. DOHSA’s the term using application its zone of denotes ... outside meant to indicate “waters beyond a marine as “on is sov- no nation territorial where State, or the from the shore ... would not ereign, Proclamation Columbia, or the Territories or District of definition,” ante at change this of the United States.” dependencies Proclama- from this concludes suggests The OLC App. U.S.C. of a U.S. sea tion’s declaration includes a bound- that where a statute necessarily miles extending twelve nautical (i.e., miles sea- ary “three measurement application excluded coast”), employs ward from majority’s If observa- disputed zone. “territorial and defines term sea” however, matter, it would tion settled coast,” from the “three miles seaward mean, the Proclamation by analogy, concept of does not statute “invoke 1999) (“It virtually statute to every appears domestic be settled that the affected sea,” territorial employing the term “U.S. term ‘high seas’ within the meaning of always been that term has because under- ... DOHSA includes the territorial waters all to indicate waters over which stood a foreign nation as long they are jurisdiction, has United States more than a league away marine from States, after issuance of the United Procla- shore.”) (emphasis added); mation, jurisdiction waters enjoys over Schoenbaum, Thomas Admiralty J. reaching nautical miles its twelve (2d Law, § Maritime 8-2 at 469-70 ed. Yet, above, neither coast. as noted courts 1994) (“[DOHSA even applies] [to] those agencies administrative have under- nor waters.”). foreign killed in territorial As stood the Proclamation have broad such appellees argument, conceded at oral these majority’s flows from its effect. The error authorities cannot be reconciled with a method; the-OLC, I think analytical like holding Congress the DOHSA intend- appropriate analysis is to de- mode ed incorporate into the Act the interna- to in- termine whether intended tional legal concept of the high seas as concept corporate the international law non-sovereign waters. majority re- non-sovereign meaning waters into the altogether issue, fuses to address this drafting or “high seas” when tacit admission that- reconciliation is diffi- merely boundary intended to denote a line cult, if not impossible. coinciding with start of the that era. Legislative C. History applied

The numerous courts that have foreign waters intui territorial observes, majority As the DOHSA was tively understood that intended drafted to fill by the void created Cruises, Crystal the latter. In Howard v. Harrisburg, Inc., (9th Cir.1994), 41 F.3d (1886), L.Ed. 358 which held that no feder- example, court held that death remedy al common wrong- law existed for foreign “within the territorial waters of a sea, ful and to eliminate the con- on the ‘high [Mexico] state occurs seas’ for by caused subsequent fusion the Court’s added.) purposes (Emphasis DOHSA.” to alleviate Harrisburg’s efforts harsh Thus, the fact that a death occurred within effects. See ante 202-04. DOHSA’s waters controlled another sovereign advocates, bill, report the earliest applicability. does affect DOHSA’s “designed stated that the bill was to reme- Azzopardi Drilling Accord v. Ocean & Ex dy by giving right this situation a [federal] Co., (5th ploration F.2d death,” H.R.Rep. of action for No. Cir.1984) (permitting claim for ac (1913); (same), 2at see id. at 3 and added Channel); occurring English cident Bros., provided that while the bill 626 F.2d exclusive Sanchez Loffland (5th Cir.1980); seas, Jennings 1230 n. v. Boe for deaths on the it left (E.D.Pa.1987), Co., ing F.Supp. “unimpaired rights under stat- State (3d Cir.1988); 'd, 838 F.2d 1206 utes as to. deaths on within aff Cruises, Windjammer Kuntz v. jurisdiction of the States.” Id. “Barefoot” Ltd., (W.D.Pa.1983), F.Supp. 1280-81 start, therefore, at 2. From the (3d 'd, Cir.1984); 738 F.2d 423 aff proponents sought preserve reme- Adams, First & Merchants Nat’l Bank v. territory. dies in state (E.D.Va.1979), 1979 A.M.C. 2860 aff'd Indeed, questions one the drafters part, part grounds, rev’d in on other initially confronted was whether DOHSA (4th Cir.1981). F.2d 878 This case law— navigable applicable should be to “all iva- Third, Fourth, Fifth, from the and Ninth ters, thus supersede state statutes circuits—has been cited as definitive boundaries, within their admiralty respective treatises. Benedict on 81(b) (7th Admiralty supplementary n. 21 ed. rev. to state [should be] stat- 222 398, 90 added); Moragne, 398 U.S. at S.Ct. covered only on waters apply utes and Congress legislated (noting that 1772 Robert statute,” i.e., high the seas.

by any “that was line because three-mile Admiralty, Actions Death Hughes,8 M. and because problem,” of the (1921) the extent (emphasis 117 Yale L.J. 31 the “solu- to ensure that Congress wished was added). solution the latter Because an- would not create of one problem tion drafted to was DOHSA superior, deemed find that the inviting the courts to other from league marine a only waters “cover[ ] field, destroying the entire pre-empted Act state, within or waters of a the shore ex- previously that had remedies the state has government the regions where federal (find- isted”); 1772 90 S.Ct. id. at (em at 119 Id. jurisdiction.” exclusive high the was confined to that DOHSA ing Action added); Right also see phasis of for remedies). preserve state to order Hearing High Seas: Death on the Before (1914) (state- Comm, Cong. 14 Rec.1929 Compare on the the 2No. Subcomm. of Cox) (noting high seas Rep. that ment of 11-12 1st Sess. Cong. 64th Judiciary, where the part that of the ocean are (state (1916) Hearing] 1916 [hereinafter jurisdiction”) no with id. have “[s]tates (“[The com Hughes) M. ment of Robert (“[T]he (statement McCoy) term Rep. of Association] Law the Maritime mittee of that of the ocean part ‘high seas’ refers ... the sim the conclusion that came to limit.”) 3-mile outside the cause the the one would plest bill and recog- a bill to would be opposition Thus, least at the time the fact that DOHSA the governing on statutes as wa- nize the State territorial its excluded U.S. drafting State, and to make of the in estab- territorial waters was ters irrelevant applies boundary no bill simply apply where lishing our bill the three nautical mile is, league from marine mattered to only “concept” at all now—that line. shore.”);9 Apex Corp., concept Marine the of the Miles v. drafters was 112 I no 111 L.Ed.2d seas. have found states’ territorial 498 U.S. and legislative history, not extend the (“Congress justification did 275 none, for carv- majority pointed because has territorial waters the DOHSA to other in those nautical mile zone ing out the three statutes believed state sufficient (and the areas.”) Moragne preserve Marine than to state remedies v. States (citing dependen- 375, 397-98, territories and Lines, Inc., remedies U.S. (1970)) 10). can importantly, think we cies More I (emphasis 339 L.Ed.2d "beyond the shore of from Maritime Law marine Hughes a member of the was State, Association, any navigable waters of the drafting any or on which initiated Columbia, Zone, the District of Panama Right Death on the Canal DOHSA. Action dependencies of the Unit or the Territories or Hearing No. 2 High Seas: Subcomm. Before Comm, (1917). § Cong. Cong. ed States.” S. Judiciary, 64th 1st (In phrase "or on (1916); version the Hughes, Actions in Ad the 1919 Sess. 3 Death navigable Canal Zone” of the Panama miralty, at 116-17. deleted, § draft of so that the final belt sea carved out three nautical mile may preserve remedies 9. The desire and the District of ward of the Columbia language explain differences in between dependencies, as well as Territories and of the bill 1909-1915 from versions navigable wa waters. states’ territorial version; Hughes to the lat the 1916 referred exempted Panama of the Canal were ters before Con ter in his statements above-cited App. coverage in U.S.C. versions, gress. In the 1909-1915 bill 767.) § seas, occurring applied "on the to deaths Lakes, any navigable waters the Great preserved local remedies Cong. 10.DOHSA also H.R. 61st the United States." ^ (1910); dependencies in their (1909); Cong. § of U.S. territories § S. (1912); bill was At the territorial time Cong. H.R. waters. H.R. 62d states, entities, local (1913); had passed, like Cong. § H.R. these 63d 63d wrongful death (1915). providing remedies Cong. provid laws The 1916 version ed, however, those remedies. courts administered applied to deaths the bill because, safely conclude that if the U.S. into majority ac- had exceeded three nautical miles sea knowledges, the starting point 1920, Congress would still have set DOH- seas was uncertain in that era. See ante 206; boundary “beyond a SA’s line marine Moreover, at the statute contains no coast, league” from the U.S. because the independent definitional section. Harrisburg remedy decision The left no majority The invokes the “well-settled death in area territo- outside state statutory rule of construction that ‘courts rial waters. should interpretations disfavor of statutes reason, Moragne’s overruling For this ” that render language superfluous,’ Sprint Harrisburg of The does not affect our Spectrum, Willoth, L.P. v. 176 F.3d analysis. Congress The DOHSA could not (2d Cir.1999) (quoting Connecticut predicted development have oc- Germain, Nat’l Bank v. 603 U.S. curred several decades after DOHSA’s (1992)), 117 L.Ed.2d 391 rejection passage. Moragne’s of The argue in favor of a different reading of the Harrisburg’s precluding rule federal com- language high “on the beyond seas a ma mon law remedies for death at sea could league.” rine Both the district court and possibly have Congress’ affected intent majority cite this principle contend DOHSA, drafting when and it intent is the ing that the appropriate way § to read Congress of the DOHSA which is relevant is introducing as two independent criteria to this discussion. for DOHSA’s The applicability: death short, Congress In when inserted'the (1) seas, must have occurred high “high Congress term seas” into (2) beyond one league marine from the incorporate intended to geographical a coast. See In re Air Long Crash Off boundary line—“the seas a Island, *3; WL at ante at league marine from the shore”—which 207. This reading sense, does not make waters; preserved state remedies however, because per DOHSA’s drafters Congress import did not intend to an in- “high ceived seas” and “beyond a marine legal concept ternational of U.S. federal leagué” functionally to mean the same sovereignty subject to change. 46 U.SiC. thing outér border of the states’ ter that, Nor could it predicted —the have ritorial uncertainty seas—whatever later, Moragne decades would overrule meaning swirled around the of Harrisburg. Moreover,

that era. See ante at 206-07. Revisiting D. Language in according majority’s interpreta- own Light of the Legislative History tion of what “high meant seas,” non-sovereign i.e. see ante logical endpoint analysis of this is at inserting language “beyond the language “beyond a marine league” definitional, super- could be read as league” clarifying is the geo- fluous, boundary graphical indisput- line at which the because the United began. ably seas” It was exercised sovereignty reasonable for Con- over all waters gress inject clarity possible as much as within a marine of its coast. See, Kekauoha, shores; e.g., The Schooner Harrisburg’s Robert of a denial 849, 851-52, (9th Cir.1902) (ob- 114 F. general under maritime law was irrelevant to outcome). serving creating govern- that the today, 1900 Act a Even Hawaii, territory ment for the equates then codified "state territorial waters” and at 48 U.S.C. established that the laws “territorial waters U.S. territories” for the Yamaha, republic purposes would Hawaii remain in of DOHSA. See

force even after (framing the 1898 transfer of sover- 216 & n. 116 S.Ct. 619 States, eignty to (although the United and therefore issue whether state law Puer- finding statutory remedy territory that Hawaii’s to Rico is Commonwealth or state) applied occurring general to a death not a federal maritime law waters). applied within three nautical miles of the Hawaiian in Puerto Rican territorial league” to “beyond a marine intended under which DOH-

In the circumstances boundary” and including “geographical drafted, specify I submit SA was league” political “a bound- to indicate “beyond one marine language surplusage. implausible, not subject change” not create ary did “high seas” ex- had, entirely Ante speculative. if it Even to mention indulge willingness to its support indicated no pressly reading finds 207. This clarity. See for the sake surplusage history. legislative (statement Cong. Rec. 4486 sum, legislative histo- a review the (“Even [a] if treat you Rep. Goodykoontz) the Congress that inserted ry clear makes harm, do no it can surplusage, phrase “beyond a ma- and language “high seas” useless that which is the reason that for firmly the bound- to establish league” rine useful.”). Section not vitiate the does application be- which ary line at DOHSA’s be- in DOHSA included example, was for preservation the ensuring thus gan, element important an it reaffirmed cause waters. in territorial remedies state state preserve statute would § the 761—-that (state- id. 4482-83 See state remedies. (noting that Montague) Rep.

ment of Congressional Purpose E. that it was “su- objections despite an “out of abun- retained perfluous,” leg- was the is clear from purpose DOHSA’s those caution, the minds” of to calm dant However, I wish to history. re- islative oust state would that DOHSA who feared majority’s perceive to what I as the spond remedies.) Indeed, majority recog- the to congressional overstatement Congress found DOHSA nizes that the major- the holding. Specifically, justify its language. “superfluous” necessary this displace suggest to we should ity seems partic- it Similarly, seems ante at 208. See maritime law general with federal that, out of an abundance likely ularly that ground zone the disputed in the it im- caution, would have found Congress a recov- generous allows more the latter the both term to include portant The case law that ante at 209. ery. See “beyond language explicative and the support proposi- to majority cites the from the shore” to ensure tion, however, supports it the although applica- about DOHSA’s that no confusion afford a that the law should recov- premise would arise. tion suggest it must ery, that does at the state of the law Because of the re- Chase generous one. Justice most I cannot passage, also time of DOHSA’s Gull, marked, example, the The Sea district majority with the agree (No. (D.Md.1865) 12,- 909, 910 21 F. Cas. “high seas Congress understood court that “[tjhere 578), cases] law are [common that non-sovereign waters.” flexibly to mean ... held that no it has been Island, WL Long In re Air Crash Off the death of had ... [for] can be redress clear remedies existed at *8. No another;.... wrong through one state the humane [C]ertainly it better becomes in the Harrisburg, gap waters after The proceedings ad- character of and liberal expressly designed law remedy.” than miralty give to withhold at 203-04. seems fill. It See ante provide drafters wished Congress highly unlikely therefore remedy. generous most remedy, not the create the risk would have intended specifically enacting In time, that, at some future border remedy for death create a decided expanded would be out- territorial sea U.S. only pe- granted zone which disputed wards, intermediate zone leaving the be- App. 46 U.S.C. damages. See cuniary federal tween the boundaries to make If wished Congress had remedy. Consequently, a clear without certainly generous, more majority’s suggestion that in opportunity application. to reflect ante at had the 215. It also de- statute. clines to consider what remedies might be appellees available to if DOHSA does not Uniformity F. apply disputed in the zone. See ante at 202 n. 5 (expressing no Although majority claims that its view as to whether holding promotes uniformity, position appellees its would be able to recover for loss princi- plainly important undermines of society, grief, survivor’s pre-death pain ple, emphasized suffering, and punitive damages). Tallentire, “uniformity admiralty short, very complex legal questions, includ- Tallentire, law.” issues, ing conflict of law arise from the majority’s solution cre- S.Ct. 2485. majority’s ruling supplanting DOHSA with governed by ates four maritime zones dif- general federal maritime disput- law in the law, regime existing ferent whereas the ed zone. encompasses applicable two. The law majority’s solution prevents also majority’s four zones would be: certainty in the law. The boundaries of zero to three nautical miles: state law and application DOHSA’s will in be constant (2) law; federal common three to twelve flux majority’s because of the acceptance law; (3) nautical miles: federal common of the position district court’s that Con- DOHSA; beyond twelve nautical miles: gress defined (the flexibly to mean (4) foreign territorial ? ma- waters: non-sovereign waters.” In re Air Crash jority con- open leaves this rather than Island, Long 1998 WL at *8. fronting applying the abundant case law Off waters). generally See Gayl W. Michael Reisman & foreign territorial Westerman, S. Uniformity Straight would un- in Mari- promoted be better Baselines (1) (1992) (dis- Boundary der time regime: current two-zone Delimitation cussing zero—three nautical miles: law and nations’ state abuse Article 7 of the law; federal common 3 nautical United Nations Convention on the Law of miles: DOHSA. the Sea11 to claim increasingly larger ter- seas). law, ritorial Under international I am satisfactory also unconvinced that a boundary subject seas is to occurring would exist deaths change, constant whether because of the disputed zone if supplant we were to actions, United States’ unilateral the uni- application DOHSA’s that zone with nations, lateral decisions of other or the general federal maritime law. In the zero long introduction of new treaties.12 In the zone, nautical statutory to three mile run, it infinitely simpler would be and wis- and state common law remedies are avail- er to adhere to the three nautical mile line supplement general able to federal mari- Congress established law, necessarily time this would but be the purpose preserving juris- the states’ zone, the case the disputed where state seas, diction over their territorial and to law inapplicable. majority is declines let cursory to address in even the decide when and how it most fash- actually apply changes ion what law would in the wishes in international boundaries litigation, except deny TWA to to affect DOHSA’s DOHSA. elevations, light- 11. See United Nations Convention on the Law to and from low-tide unless [UNCLOS], of 7(1), Sea Dec. art. per- houses or similar which installations are ("[T]he 1833 U.N.T.S. method of manently above sea level have built been straight joining appropriate points baselines them....”). interesting It is note that the to may employed drawing the baseline borders, hand, coastal states’ other the breadth of which the territorial sea Submerged have been fixed Act Lands measured.”). miles, at three nautical see 43 U.S.C. (1994), UNCLOS, 7(4), however the United States redraws its e.g.,

12. art. 1833 U.N.T.S. ("Straight purposes. baselines shall not be drawn baselines for international interpretive sum, to my answer intended whether question change in the by a affected

DOHSA be sea under the U.S.

meaning of resounding no. is a law

international

CONCLUSION President —-have

Congress—and incorpo- amend DOHSA

opportunity scheme, remedial generous

rate a more if so opportunity, have the

just they application

inclined, to preclude I have no desire zone. disputed by read- legislative process

pre-empt the than Procla- broadly more

ing DOHSA Con- than the DOHSA dictates or

mation remedial appropriate

gress intended. occurring off the

scheme for deaths policy clearly legislative coast is by the

choice, should not be made reasons, I foregoing re-

courts.13 For majority opin- from

spectfully dissent court’s

ion,, the district I would reverse

decision. of America

UNITED STATES HELBLING, Appellant

William F.

No. 99-5051. Appeals, Court of

Third Circuit. 9, 1999

Argued Sept. 14, 2000 March

Filed they from com- signa- disputed zone if resulted Currently before the President accidents; (3) (1) remedial sets the alters DOHSA's compensation aviation ture is a mercial bill nonpe- by allowing July one scheme effective date as act’s resulting cuniary damages for deaths H.R. day prior to the TWA crash. accidents; th declares commercial aviation (2000). Cong. occurring in inapplicable to deaths

Case Details

Case Name: In Re: Air Crash Off Long Island, New York, on July 17, 1996

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 29, 2000

Citation: 209 F.3d 200

Docket Number: 1999

Court Abbreviation: 2d Cir.