Where Does Florida End? It Depends
Defense Digest, Vol. 24, No. 3, September 2018
By Mike Bradford, Esq.*
The Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301-30308 (2015), is a federal statute that applies to deaths “on the high seas” more than three nautical miles from the shore of the United States. However, it also expressly preserves the laws of individual states regarding wrongful death actions and does not apply to “waters within the territorial limits of a State.” In most parts of the country along the Pacific and Atlantic coasts, the language of DOHSA creates no confusion because the territorial limits of the states in those areas extend only nine nautical miles (along the Gulf coast, it is roughly nine miles). Florida, of course, is a little different. Article II, § 1 of Florida’s Constitution provides that the state’s Atlantic territorial boundary extends to “three miles from the coast, or to the shoreward edge of the Gulf Stream, whichever is greater.” Well, the shoreward edge of the Gulf Stream is not fixed and can be several miles farther than three miles from Florida’s Atlantic coast. This may create some confusion about the application of DOHSA to an action for wrongful death that happens off the coast of Florida between three nautical miles and the shoreward edge of the Gulf Stream.
In a very recent decision, Florida’s 3rd District Court of Appeal considered whether DOHSA applies to a death that occurred more than three nautical miles from the Atlantic coast but still within the state’s defined territorial waters. Kipp v. Amy Slate’s Amoray Dive Ctr., Inc., 2018 Fla.App. LEXIS 7847 (Fla. 3d DCA 2018) arose from the death of Steven Kipp, who died while working as a crewmember on a scuba dive charter. According to the complaint, the vessel on which Mr. Kipp worked took customers for a night dive to a wreck that was more than three miles from shore but, apparently, not as far as the Gulf Stream. During the dive, an adverse current carried some surfacing divers as far as half a mile from the dive vessel. Mr. Kipp snorkeled out to help them back to the boat, but he suffered a heart attack and died in the process. Mr. Kipp’s widow filed suit against the dive center and the captain of the vessel. She brought a six-count complaint, which included claims for Jones Act negligence, general maritime unseaworthiness and state court negligence. However, she also included DOHSA claims against the dive center and the captain.
The dive center and the captain filed motions to dismiss. They argued that, because the death occurred more than three nautical miles from the coast, the action was controlled exclusively by DOHSA. Mrs. Kipp countered that, even so, the death still occurred in Florida’s territorial waters. The trial court took judicial notice that the wreck was 6.5 nautical miles from shore, but the court did not determine how far the shoreward edge of the Gulf Stream extended at the time of Mr. Kipp’s death. The trial court dismissed the complaint, holding that DOHSA provides an exclusive remedy that is only available in federal court.
The 3rd DCA’s opinion turned on its interpretation of Congress’ intent in enacting DOHSA and the extent of Florida’s boundary. As the court noted, even if Florida tort law extends to the Gulf Stream boundary, Congress has authority to limit the reach of Florida law to less than the full extent of Florida’s territorial waters. The court determined Congress did not so limit the application of Florida law with DOHSA. Congress did provide such a limitation in the Submerged Lands Act, which expressly states that the term boundaries should, “in no event,” be interpreted to extend more than three miles from the coast into the Atlantic or Pacific Ocean. The court found no such limitation in DOHSA. Although DOHSA provides a remedy for deaths occurring more than three miles from shore, it also expressly provides that it does not affect state laws governing the right to recover for death, and it does not apply to waters within the territorial limits of a state. In reconciling these provisions of DOHSA, the 3rd DCA determined that applying a three-mile limit, as proposed by the dive center and the captain, regardless of whether it eliminates a state wrongful death remedy, would render meaningless the other provisions of DOHSA that preserve state law. The court noted DOHSA was created to provide a wrongful death remedy where one did not exist under any state law because the death took place beyond the reach of state law. That purpose would not be served by eliminating state law remedies that also exist.
The appellate court rejected the defendant’s reliance on cases from other jurisdictions, which held that DOHSA did preclude state law actions beyond three miles, because the states in those cases did not have claims to waters beyond three nautical miles. To the contrary, Florida’s claim to waters beyond three miles, as provided in the state’s Constitution, has been recognized by Congress and the United States Supreme Court.
Based on its analysis of DOHSA, the appellate court reversed the trial court’s order of dismissal and remanded the case with instruction to the trial court to determine if Mr. Kipp’s death occurred in the state territorial waters of Florida; in other words, on the landward side of the edge of the Gulf Stream. If it did, DOHSA would not preclude the state law causes of action, even though the death occurred more than three nautical miles from Florida’s Atlantic coast. The appellate court also determined, based on United States Supreme Court precedent, that to the extent DOHSA does control the case, the trial court was wrong to determine that federal court is the exclusive forum for DOHSA claims. Rather, state courts have concurrent jurisdiction to entertain DOHSA claims.
*Mike, a shareholder in our Tampa, Florida office, is a Board Certified Civil Trial Lawyer. He can be reached at 813.898.1816 or MJBradford@mdwcg.com.
Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact email@example.com.