Ninth Circuit Holds that Death on the High Seas Act Preempts Alien Tort Statute - But Not Always
The Ninth Circuit Court of Appeals recently held that the specific provisions of the federal Death on the High Seas Act (DOHSA) preempted a wrongful death claim under the more general Alien Tort Statute (ATS). However, the court also held that this preemption was not absolute.
Bowoto v. Chevron arose out of a protest aboard an oil rig nine miles off the Nigerian coast. When the owner of the rig (a subsidiary of oil giant Chevron) authorized Nigerian Government Security Forces to move in, the incident turned deadly and numerous protesters were killed or injured. Several injured protesters and the estate of one of those killed sued in U.S. federal court, claiming that Chevron and related companies were liable under the ATS. The case was ultimately tried to a jury, who found in favor of Chevron on all claims.
One of the issues on appeal was the trial court's pre-trial ruling that the DOHSA preempted wrongful death claims under the ATS. The court affirmed this outcome, but in a qualified way. After summarizing the history of the DOHSA and Supreme Court case law, the Ninth Circuit held that, in this case, the wrongful death claim was precluded by the more detailed provisions of the DOHSA. However, the court refused to rule out the possibility of a such a wrongful death claim under the ATS, finding that "[t]here may .. be situations where a plaintiff can simultaneously pursue claims under both DOHSA and the ATS."
While the outcome of this case is not surprising--particularly in light of the facts and the jury verdict in favor of Chevron--the Ninth Circuit's ruling that DOHSA does not totally preclude a concurrent death claim under the ATS is more intriguing. The Bowoto court gave little guidance as to when a plaintiff might be able to bring concurrent DOHSA and ATS claims; rather, the it simply pointed to the Supreme Court's recognition that "DOHSA does not address every issue of wrongful death law" and refused to rule out the possibility.
It will be interesting to see whether future plaintiffs will try to assert concurrent ATS and DOHSA claims and, if they do, how those claims will be handled by the federal courts. While this author suspects that such concurrent DOHSA/ATS cases will be rare indeed, only time and jurisprudence will provide the answer.
