When an aviation accident occurs over international waters, a century-old maritime law may govern your claim. The Death on the High Seas Act, or DOHSA, was enacted in 1920 to provide a remedy for deaths occurring on the high seas—defined as more than three nautical miles from U.S. shores. Originally written for maritime accidents, this law now applies to many aviation crashes and significantly limits available damages compared to claims governed by other laws.

Understanding whether DOHSA applies to your case matters enormously because the Act restricts recovery to purely economic losses, eliminating compensation for the grief, loss of companionship, and emotional suffering that families experience when loved ones die in crashes. For deaths involving children, elderly parents, or others with limited economic contributions, DOHSA can reduce recovery to a fraction of what other laws would provide.

When DOHSA Applies to Aviation Accidents

DOHSA applies to deaths caused by wrongful acts occurring on the high seas—beyond three nautical miles from U.S. shores. Many transoceanic flights cross thousands of miles of international waters, making DOHSA potentially applicable to a substantial number of aviation deaths. The location of the wrongful act, not the location of impact, determines applicability.

Determining where the "wrongful act" occurred in an aviation accident can be legally complex. If a mechanical failure that caused the crash originated during maintenance in the United States, was the wrongful act on land or over water? If pilot error developed gradually during the flight, at what point did the wrongful act occur? Courts have grappled with these questions, and the answers can determine whether DOHSA applies or whether more favorable laws govern.

The interaction between DOHSA and the Montreal Convention adds another layer of complexity for international flights. Generally, DOHSA defines the types of damages recoverable for aviation deaths over international waters, even when the Montreal Convention establishes carrier liability. The Convention makes the airline liable; DOHSA limits what the airline must pay. This interaction can significantly restrict recovery in international overwater crashes.

The Critical Limitation: Economic Damages Only

DOHSA limits recovery to pecuniary damages—economic losses that can be calculated in dollars. Families can recover the financial support the deceased would have provided, the value of services they would have performed, and similar quantifiable losses. What families cannot recover under DOHSA are non-economic damages for grief, loss of companionship, loss of parental guidance, emotional suffering, or loss of enjoyment of life.

This limitation dramatically affects case values depending on who died. When the deceased was a high-earning professional with decades of working life ahead, the economic loss may be substantial—millions of dollars for lost future income. But when the deceased was a child, a retiree, or someone who didn't work outside the home, economic losses may be minimal even though the emotional loss to the family is just as profound.

Consider a family who loses a seven-year-old child in a crash over the Atlantic. Under laws allowing non-economic damages, the family might recover several million dollars for the loss of their child's companionship, the destruction of the parent-child relationship, and their grief. Under DOHSA, recovery might be limited to funeral expenses and perhaps modest projections of what the child might have contributed economically to the family as an adult—often only hundreds of thousands of dollars rather than millions.

The 2000 Amendment for Commercial Aviation

Recognizing the harshness of DOHSA's limitations, Congress amended the Act in 2000 to provide somewhat broader recovery for commercial aviation accidents. The amendment allows recovery of non-pecuniary damages in commercial aviation cases, including loss of care, comfort, and companionship. This brought DOHSA closer to general wrongful death standards for airline crashes.

However, the 2000 amendment has important limitations. It applies only to commercial aviation accidents, generally meaning scheduled airline flights. Private aircraft, charter flights, and general aviation remain subject to the original DOHSA with its pecuniary-only limitation. Additionally, the amendment specifically excludes punitive damages, meaning even commercial aviation claims under DOHSA cannot recover punitive awards regardless of how egregious the defendant's conduct.

The distinction between commercial and non-commercial aviation can be legally significant. A crash involving a chartered private jet may fall outside the 2000 amendment, leaving families with only economic damages even though the flight felt similar to commercial air travel. Determining whether a particular flight qualifies as commercial aviation requires careful legal analysis.

Strategies to Avoid DOHSA Limitations

Given DOHSA's restrictions, plaintiffs' attorneys often seek to avoid its application or to pursue claims against defendants outside its scope. Several strategies may expand recovery beyond DOHSA's limits.

Focusing on where the wrongful act occurred can sometimes place it outside high seas jurisdiction. If the negligent maintenance, defective design, or other wrongful conduct occurred on land, arguments exist that DOHSA shouldn't apply even though the death occurred over water. Courts have reached different conclusions on these arguments, but exploring them may be worthwhile when significant non-economic damages are at stake.

Product liability claims against aircraft and component manufacturers may not be subject to DOHSA because the wrongful acts—defective design or manufacture—occurred on land rather than on the high seas. Pursuing manufacturers alongside carriers can provide access to non-economic damages unavailable against the airline under DOHSA. These claims require proving specific defects caused the crash, but they can substantially increase total recovery.

When accidents occur within three nautical miles of a foreign shore, that country's law rather than DOHSA may apply. State wrongful death laws govern deaths within three miles of U.S. shores. These territorial limits can affect choice of law in crashes near coastlines, potentially providing access to more favorable damage rules.

The Territorial Waters Exception

DOHSA does not apply to deaths occurring within three nautical miles of any nation's shoreline. Crashes in this territorial zone are governed by the law of the adjacent nation. For accidents near U.S. shores, state wrongful death laws apply instead of DOHSA, generally providing broader damage recovery including non-economic losses.

The location of an aviation accident is usually well-documented through flight tracking, radar data, and crash site investigation. When accidents occur near coastlines, determining whether they fell inside or outside the three-mile limit becomes legally significant. Families whose loved ones died just outside territorial waters face DOHSA's limitations, while those whose loved ones died just inside may recover more comprehensively.

This arbitrary geographic line can create anomalous results. Two passengers sitting next to each other might die in the same crash, but if one's death is attributed to causes inside territorial waters and another's to causes outside, different damage rules could theoretically apply. The practical line-drawing in actual litigation can become contentious.

Calculating Pecuniary Damages

When DOHSA applies and limits recovery to pecuniary damages, maximizing that economic calculation becomes essential. Economic experts project what the deceased would have earned over their remaining working life, adjusted for raises, promotions, and career advancement. They calculate the financial support the deceased would have provided to surviving family members, subtracting what the deceased would have consumed personally.

Lost services have economic value that should be calculated. A parent who would have provided childcare, household maintenance, transportation, and similar services provided quantifiable value even if they didn't work for wages. A spouse's domestic contributions have economic worth. These service values can substantially increase pecuniary damages beyond mere wage calculations.

For cases where economic damages are limited by the deceased's circumstances—children, retirees, non-working spouses—thorough documentation of every possible pecuniary element becomes critical. Leaving economic damages on the table is particularly harmful when non-economic recovery is unavailable.

Challenging an Unjust Law

Many commentators and courts have criticized DOHSA's limitations as unjust relics of a different era. A law designed for 19th-century maritime commerce seems poorly suited to 21st-century aviation. Families who lose children or elderly parents to aviation negligence over international waters receive less compensation than families who lose identical loved ones over land—a distinction without rational basis.

Despite this criticism, DOHSA remains the law for non-commercial aviation over international waters. Legislative reform efforts have stalled. Until the law changes, families must work within its constraints while pursuing every available strategy to maximize recovery. Experienced aviation attorneys understand how to navigate DOHSA's limitations and identify opportunities to recover damages beyond its restrictive framework.