In Kipp v. Amy Slate’s Amoray Dive Ctr., Inc., 2018 Fla. App. LEXIS 7847 (3d DCA June 6, 2018), Florida's Third District Court of Appeals held that DOHSA does not preempt Florida's wrongful death statute and DOHSA does not apply to the territorial waters of the state.
Steven Kipp, was a crew member onboard a scuba dive charter boat which was owned and operated by Amy Slate’s Amoray Dive Center, Inc. On November 12, 2015, the captain took a number of customers out for a night dive with Kipp onboard. The adverse currents pushed some of the divers as far as a half mile away. In response, Kipp snorkeled out to bring the customers back in. However, while doing so, Kipp suffered a heart attack and died. Kipp’s widow filed a lawsuit alleging: (1) Jones Act negligence against the dive center; (2) general maritime unseaworthiness against the dive center as owner of the vessel; (3) state tort negligence against the dive center; (4) DOHSA claim against the dive center; (5) state tort negligence against the captain; and (6) DOHSA claim against the captain. The Defendants filed motions to dismiss arguing that the cause of action was controlled solely by DOHSA because the death occurred more than three nautical miles from the shore. Kipp’s widow argued that DOHSA is inapplicable because the death occurred within Florida’s territorial waters. The trial court dismissed the complaint holding that DOHSA applied and therefore the trial court did not have jurisdiction to consider the merits of the remaining issues. Kipp’s widow appealed.
The appellate court first noted that this case involves an issue of statutory interpretation. Reading DOHSA, the court found on the one hand, "DOHSA expressly applies to death on the high seas more than three nautical miles from the shore of the United States", but on the other hand, noted that “by its plain terms, [DOHSA] ‘does not affect the law of a State regulating the right to recover for death’ and ‘it does not apply to waters within the territorial limits of a state’”. The Court noted that unlike Florida, for most states, the two provisions do not conflict because their territorial waters do not extend beyond three nautical miles. However Florida's Constitution specifically extends Florida's Atlantic boundary to three miles from the coast or to the shoreward edge of the Gulf Stream, whichever is greater.
The Court distinguished the Submerged Lands Act from DOHSA, because unlike DOHSA, the SLA includes limiting language which states that “in no event shall the term boundaries . . . be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean.” Id. at 7. The Court found that it is up to Congress to curtail the reach of Florida law or limit rights granted by Federal law and found that Congress did not do this with DOHSA.
Thus, the case has been reversed and remanded for further proceedings. If you are interested in receiving a copy of this opinion or wish to reach me to discuss the case further, please feel free to write to me at blog@miamimaritimelaw.co.