State Law Claims Not Preempted by DOHSA Where Death Occurs Within Statutorily Overlapping State Territorial Waters

Kipp v. Amy Slate’s Amoray Dive Ctr., Inc., 2018 Fla. App. LEXIS 7847, 2018 WL 2708694

By: Eric M. Whitehead

Overview

Appellant, Laurie Kipp, appealed the dismissal of her Florida state law wrongful death claims after the trial court granted Defendants’, Amy Slate’s Amoray Dive Center, Inc. (“Dive Center”) and vessel captain Edward Hall (“Hall”), motions for summary judgment. Summary judgment was granted on the grounds that the cause of action arose outside three nautical miles from the Florida coastline, and therefore the Death on the High Seas Act (“DOHSA”) applies exclusively to Kipp’s claims. Upon review, the Court of Appeal of Florida, Third District reversed. Specifically, the court cited that trial court erred in ruling that the case was exclusively governed by DOHSA as such a determination depended on whether the decedent’s death occurred in Florida territorial waters, as was ultimately the determination here.

Facts

Steven Kipp was a crew member on a dive charter boat owned by Dive Center and captained by Edward Hall. On November 12, 2015, the boat was chartered for a night dive of the BENWOOD, a shipwreck approximately 6.5 nautical miles from the Florida shoreline. After adverse currents swept some of the divers as far as a half mile away, Kipp snorkeled out to the derelict divers and led them back to the boat. In doing so, Kipp suffered a heart attack and died.His widow and personal representative, Laurie Kipp, filed suit against Dive Center and Hall alleging six claims: (1) Jones Act negligence against Dive Center¹ (2) General maritime unseaworthiness against Dive Center as owner of the vessel; (3) State tort negligence against Dive Center; (4) DOHSA claim against Dive Center; (5) State tort negligence against the captain, Hall; and (6) DOHSA claim against Hall. Defendants moved to dismiss the claims on the grounds that DOHSA exclusively controls the wrongful death action as the death occurred more than three nautical miles from the shore. Noting the death occurred outside of three nautical miles from shore, the trial court agreed that DOHSA exclusively governed plaintiff’s claims and granted the motions to dismiss. Kipp sought appeal of the dismissal with the Florida Third District Court of Appeal.

Analysis

The critical issue in this case was whether DOHSA applied to a death occurring more than three nautical miles from the Florida coast, but still within state territorial waters. Florida’s Atlantic boundary extends to three “geographic” miles from the coast or to the shoreward edge of the Gulf Stream, whichever is greater. Fla. Const. art. II, §1. Florida courts have held that state law has applied within territorial waters in tort actions as far as 11 nautical miles from the coast, a point where the Gulf Stream extended 14 nautical miles from shore. Kipp opinion at 5-6, citing Benson v. Norwegian Cruise Line Ltd., 859 So. 2d 1213, 1215 (Fla. 3d Dist. Ct. App. 2003). Though the DOHSA inextricably applies to deaths occurring three nautical miles from the shore of the United States, the court determined that the statute does not preempt state wrongful death claims where the death occurs within the territorial waters of a state.For this determination, the court cited the case, In re Air Crash Off Long Island, which reasoned that the core legislative purpose of DOHSA was to provide a remedy where one did not exist before, not to oust either a Moragne-type remedy or state law remedies. 209 F.3d 200, 215 (2d Cir. 2000). Bolstering the court’s treatment of precedent examining the legislative intent of DOHSA was the applicable language of the statute itself. Specifically, the court noted that a plain reading of 46 U.S.C. §30308(a)-(b) does not affect a state law governing the right to recover from death as it “does not apply” to territorial waters of the state. Florida’s statutorily defined territorial waters may extend up to the shoreward edge of the Gulf Stream, a distance which commonly exceeds seven nautical miles from the shoreline. Here, the fact that Steven Kipp’s death occurred 6.5 nautical miles from the shore was ultimately inconsequential to the court as it still occurred within Florida territorial waters.The court reconciled the §30302 application of DOHSA to deaths occurring beyond three nautical miles with the §30308 state law “savings” language by reading the two sections in pari materia. Accordingly, it was determined that §30302 set the general rule for deaths occurring on the high seas, but §30308 provided a specific exception which preserved state law claims within state territorial waters. In sum, though Kipp’s death occurred within the scope of §30302, the fact that the death simultaneously occurred within Florida waters allows for preservation of the state wrongful death claims under the §30308 state law “savings” exception. As a result, the appellate court REVERSED the trial court’s dismissal of Kipp’s state law claims and REMANDED for further proceedings. *Author’s Note:Despite the ultimate determination in this court’s decision, it is possible that the contrary result would likely occur if the issue of Steven Kipp’s status as a Jones Act seaman had been raised. Though the first two counts of Appellant’s Jones Act claims for unseaworthiness were based on Steven Kipp’s status as a seaman, the Appellees did not address the issue in their Answer Brief. For the Appellees (or a defendant in such a case), determination of status is a potentially dispositive issue insofar as it may preempt state wrongful death claims and limit recovery to that specified under the applicable federal statute or U.S. Supreme Court precedence.For one, the U.S. Supreme Court in the 1964 Gillespie case has already precluded the application of state wrongful death statutes even in state territorial waters when the decedent is classified as a Jones Act seaman. 379 U.S. 148, 154, 85 S. Ct. 308, 312, 13 L. Ed. 2d 199 (1964). The Gillespie Court held that for a Jones Act seaman, “Congress provided an exclusive right of action for the death of seamen killed in the course of their employment, superseding all state death statutes which might otherwise be applied to maritime deaths . . .” Id. If the decedent was a Jones Act seaman, the geographic location of his death is irrelevant as both the Jones Act and DOHSA would preempt application of state wrongful death statutes. Based the Supreme Court’s holding in Gillespie, if the decedent’s status becomes an issue that is raised at a later date, the Florida appellate court’s determination as to the availability of state law remedies in this case is questionable.