Senate Bill Introduced to Amend DOHSA: Allows Non-Pecuniary Damages for Passengers on Certain Passenger Cruise Ships

Senator Deborah Fischer, Senior Senator from Nebraska (R), on April 8, 2019, introduced Senate Bill 1062 to be known as “Hammer’s Law.” The proposed eponymous legislation is based on the tragic deaths of Larry and Christy Hammer of Omaha, Nebraska, who were killed when a fire occurred in their cabin on a Peruvian river vessel in April 2016.  The legislation would amend the Aviation Exception to the Death on the High Seas Act (DOHSA)[1] to allow recovery of non-pecuniary damages to those killed on passenger cruise vessels, which are defined in the act as vessels not engaged in coastwise trade, authorized to carry 250 passengers or more, and which embark or disembark passengers in the United States. This is language taken from the bill.DOHSA was amended in 2006 to allow recovery of non-pecuniary damages for commercial aviation accidents that occur beyond 12 nautical miles from the shore of the United States. The 2006 Amendment to DOHSA[2] was passed in response to an air crash off Long Island in 1996.[3] This proposed amendment would apply to passenger cruise vessels which fall within the definition and allow recovery of non-pecuniary damages defined as “damages for loss of care, comfort, and companionship.”[4] Punitive damages would remain non-recoverable.[5]If the accident resulting in death occurs between 3 and 12 nautical miles from the shore of the United States[6], only pecuniary damages may be recovered as DOHSA applies 3 nautical miles from the shore of the United States.[7] This exception for allowance of non-pecuniary damages would apply only beyond 12 nautical miles.In this writer’s opinion, one of the problems with legislation that intends to apply to a specific accident and “cure” a perceived inequity is that the legislation is too specific resulting in further inequities. Should this legislation be enacted, it would not only exclude crew members on the covered vessels from recovery of non-pecuniary damages, crew members and passengers on vessels engaged in coastwise trade would still be deprived from recovering pecuniary damages as well as many engaged in the offshore oil and gas industries.Congress should rather consider a complete overhaul of DOHSA and allow recovery of non-pecuniary damages in the wrongful death action for any and all deaths occurring beyond 3 nautical miles from the shore of the United  States regardless of whether it is a commercial aviation accident or on a passenger cruise vessel or any vessel. This would provide for uniformity in recovery of damages for any wrongful death occurring beyond 3 nautical miles from the shore of the United States and bring DOHSA in line with most state wrongful death laws.A copy of the proposed legislation may be found following this hyperlink:https://www.congress.gov/bill/116th-congress/senatebill/1062/text?q=%7B%22search%22%3A%5B%22s.+1062%22%5D%7D&r=1&s=1[1] 46 U.S.C. § 30307 (2018).[2] 46 U.S.C. § 30307 (2018).[3] See also In re Air Crash off Long Island, 209 F.3d 200 (2d Cir. 2000).[4] See 46 U.S.C. § 30307(a) (2018).[5] 46 U.S.C. § 30307(b) (2018).[6] 46 U.S.C. § 30307(c) (2018).[7] 46 U.S.C. § 30302 (2018).