A Territorial Sea Change: The Death on the High Seas Act and the Extension of the Territorial Sea

March 1, 2012

In March 2011, the Ninth Circuit ruled that the Death on the High Seas Act provides the exclusive remedy for deaths occurring both within the United States’ territorial sea and without the states’ traditional three-mile territorial boundaries. This ruling created a split with the Second Circuit, which had handed down a different interpretation of the Act eleven years earlier.

Prior to President Ronald Reagan’s extension of the territorial sea of the United States in 1988, there was no issue regarding the operation of the Death on the High Seas Act because the statute’s three-mile scope and the nation’s boundaries were coextensive. The extension, coupled with U.S. Supreme Court deliberation over maritime wrongful death actions, created a “perfect storm” around the Act’s territorial purview, raising issues of statutory construction, preemption, and federal-state comity.

This Note examines the significant issues relevant to the Act’s application. It reviews the chief arguments proffered by the Ninth and Second Circuits, including then-Judge Sonia Sotomayor’s dissent in the latter case. The Note next considers the Second Circuit’s problematic holding and parses the opinion’s persistent contradictions and inconsistencies. It then explores recent congressional action that further bolsters the arguments against the Second Circuit’s position. The Note concludes that, absent congressional action, the Second Circuit must reconsider its holding when it next hears the issue.

March 2012

No. 4