April 22, 2019 Practice Points

Senator Deb Fischer of Nebraska Introduces Amendment to Death on High Seas Act

It is likely the cruise industry and entrenched marine interest will lobby to block this bill from becoming law.

By David Y. Loh

On April 8, 2019, Senator Deb Fischer of Nebraska introduced legislation entitled “Hammer’s Law” to allow nonpecuniary benefits under the Death on the High Seas Act (DOHSA), 46 U.S.C. Sec. 303, et al.

DOHSA is the exclusive remedy for any death occurring beyond three nautical miles from the shore of the United States. It was enacted almost 100 years ago and was designed to provide a remedy for widows and their dependents of seamen who died on ships working in foreign waters.  However, as enacted, DOHSA is limited to only pecuniary damages, which is limited to loss of support, loss of services of the deceased, loss in inheritance, and funeral expenses. Non-pecuniary expenses, such as loss of care, comfort, and companionship, are not recoverable.

In 2000, DOHSA was amended permit non-pecuniary damages for commercial aviation accidents occurring beyond 12 nautical miles.

This new legislation is designed to permit non-pecuniary damages for any death beyond 12 nautical miles from U.S. shores. It was named in honor of Omaha natives Larry and Christy Hammer who lost their lives on April 10, 2016, in a tragic fire aboard a Peruvian river cruise.  Despite the Peruvian navy finding numerous safety violations and negligence aboard the vessel, which caused the fire, the compensation recovered by the Hammer’s family was quite limited because DOHSA currently limits any recovery to only pecuniary damages.

It remains to be seen if this legislation will become law. Introduction is the first step in the legislative process. From introduction, the legislation is referred to the relevant committee. In this case, the Senate committee is Commerce, Science and Transportation. The Committee will usually hold a hearing and then later will hold a vote on any amendments and the final bill. Once passed by the committee, the bill goes to the full Senate, where the majority leader decides if and when it is considered. If passed by the Senate, the bill goes to the House of Representatives for a similar process. It is possible a House companion bill can be introduced, whereby it could move on that side of the legislature at the same time. Even if the bill is passed by both the Senate and House, the President of the United States still technically has the option of vetoing the bill.

It is likely the cruise industry and entrenched marine interest will lobby to block this bill from becoming law.

We will continue to monitor this legislation’s progress and advise as to any significant developments.

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David Y. Loh is a member with Cozen O'Connor in New York City, New York.

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