In what appears to be a case of first impression, the U.S. District Court for the Southern District of Florida has held a same sex spouse can recover damages under the Death on the High Seas Act (DOHSA) arising from the death of his husband while on a cruise on the high seas.

The facts recited by the Court are compelling: Plaintiff and his husband were subjected to ‘repetitive anti-gay insults’ while passengers onboard the cruise. On their first day onboard, they were repeatedly called a ‘lipstick’ by a bartender. The couple immediately complained to the cruise operator’s management about the incidents. The next evening, the husband was extremely distraught when employees called him ‘a pedophile and other anti-gay slurs.’ He returned to his stateroom and told his husband about the insults. Afterward, security officers reported to the couple’s stateroom and ‘engaged in an argument’ with them. ‘A series of events’ ensued and the decedent fell over the couple’s seventh deck stateroom balcony onto a life boat on deck six. He held on to the life boat for several minutes as crewmembers attempted to rescue him. The crewmembers grabbed his hand but failed to rescue him, and he fell into the ocean. The ship did not stop for some time and did not timely deploy rescue boats. After receiving a distress call from the cruise, the United States Coast Guard searched for the decedent but did not find him.

The Plaintiff sued for wrongful death of his husband, as well as for the intentional infliction of emotional distress for witnessing his husband’s death. On a Rule 6 Motion to Dismiss, the Court allowed the DOHSA claim to continue, but dismissed the claim for intentional infliction of emotional distress because, although Plaintiff was mere feet away from his husband and witnessed his fall and disappearance, he was not himself in the ‘zone of danger’ where he was at risk of physical harm.

Elbaz v. Royal Caribbean Cruises, No. 16-24568, U.S.D.C., S.D.FL.