In Re: Air Crash Off Long Island, New York, on July 17, 1996

SOTOMAYOR, Circuit Judge,'

dissenting:

In an understandable desire to provide the relatives and estate representatives of *216the 213 victims of the TWA Flight 800 crash with a “more generous” recovery,1 ante at 209, the majority fails to give proper effect to the limiting language of Proclamation 5982; to DOHSA’s language, legislative history, and purpose; and to a wealth of case law since DOHSA’s passage, all of which support the inexorable conclusion that DOHSA applies to all deaths occurring “beyond a marine league [three nautical miles] from the shore of any State,” 46 U.S.C. App. § 761, and not only to deaths occurring beyond the U.S. territorial sea.

By its explicit terms, the Proclamation changed the meaning of the U.S. territorial sea — and thus its complement the “high seas” — for international, but not domestic, law purposes. The majority nevertheless applies the territorial boundaries set forth in the Proclamation to DOHSA, even though the meaning of “high seas” for the purposes of DOHSA is a question purely of domestic law. Moreover, the majority’s application of the Proclamation to DOHSA is grounded almost entirely on its interpretation of what Congress probably thought the term “high seas” meant at the time of DOHSA’s passage, i.e., “waters ... where no nation is sovereign,” ante at 213-14, and the majority’s assumption that Congress viewed the three nautical mile line at which the high seas commenced as a “political boundary line subject to change,” ante at 207. Based on this reasoning, the majority concludes that the Proclamation’s expansion of the boundary line of the U.S. territorial sea from three to twelve nautical miles necessarily excluded DOHSA’s application in this nine mile zone.

The majority’s focus on Congress’ understanding of the term “high seas” in 1920 is misplaced. The majority ignores that the DOHSA Congress, by using the phrase “high seas beyond one marine league from the shore of any State,” intended both to define and to indicate the geographical boundary line at which the high seas began — three nautical miles from the U.S. coast — because that boundary line coincided with the outer border of the states’ territorial seas. Congress wished to preserve state remedies in state waters, and to, provide a separate remedy, i.e. DOHSA, to waters subject only to federal jurisdiction, i.e., “the high seas beyond a marine league.” Simply stated, it is irrelevant whether Congress shared the international legal understanding of “high seas” as “non-sovereign waters,” because its only concern at the time of DOHSA’s passage was state, and not federal, boundaries. Nothing in DOHSA’s language or legislative history supports the majority’s conclusion that Congress intended “high seas” to be a variable term “subject to change” because of evolving international concepts.

The majority’s conclusion is also contrary to the holdings and dicta of every other court that has considered this issue, and cannot be reconciled with a long line of cases from at least four other circuits applying DOHSA to deaths occurring in foreign territorial waters — in other words, waters indisputably subject to foreign sovereigns.

For these reasons, discussed more fully below, I do not believe that the Proclamation replaced DOHSA with general federal maritime law in the zone of waters lying between three and twelve nautical miles seaward of the U.S. coast (the “disputed zone”). I therefore respectfully dissent.

DISCUSSION

A. The Proclamation

As drafted, DOHSA provides a statutory remedy for wrongful deaths that occur “on *217the high seas beyond a marine league [or three nautical miles] from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States.” 46 U.S.C. App. § 761. In 1920, when DOHSA was enacted, the three nautical mile line marking the start of the “high seas,” and the end of U.S. territorial waters, coincided with the line bounding the states’ territorial seas. The 1988 Proclamation, by extending the “territorial waters of the United States” from three to twelve nautical miles from the U.S. coast, ended this coincidence for international law purposes. 64 Fed.Reg. 777 (Dec. 27, 1988). This appeal poses the question whether the Proclamation changed DOH-SA’s zone of application by rendering it effective only beyond the twelve nautical mile line.

The Proclamation modified the definition of “U.S. territorial waters” — and therefore the beginning point of the high seas — for international, but not domestic, law purposes. The Proclamation “extended the United States territorial waters to twelve nautical miles for the limited purpose of conforming to the territorial limits then permitted by international law [and] explicitly limits its application by declaring that ‘[it does not extend or otherwise alter] existing Federal or State law or any jurisdiction, rights, '■ legal interests, or obligations derived therefrom.’ ” United States v. One Big Six Wheel, 166 F.3d 498, 501 (2d Cir.1999) (quoting Proclamation) (emphasis added). As the Supreme Court has observed, “the President! ] ‘proclaimed’ a 12-mile territorial sea for international law purposes.” United States v. Alaska, 503 U.S. 569, 589 n. 11, 112 S.Ct. 1606, 118 L.Ed.2d, 222 (1992) (citing Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 n. 8, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989)) (emphasis added); see also 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, § 2-14 n. 7, at 32 (2d ed.1994) (noting that the Proclamation “is effective ... only for foreign policy purposes”); Richard J. McLaughlin, The Impact of the Extension of the U.S. Territorial Sea on Foreign Flag Vessels, 2 Terr. Sea J. 91, 94 (1992) (quoting State Department representative’s remark that “ ‘the Proclamation affects the breadth of .the territorial sea only for international purposes.’ ”) (quoting Examination of the President’s Proclamation Extending the Territorial Sea of the United States from 3- to 12-Miles, Hearings Before, the Sub-comm. on Oceanography and Great Lakes of the House Comm, on Merchant Marine and Fisheries, 101st Cong., 13t Sess. 65, at 5 (1989) [hereinafter House Hearings] ).2 Because the Proclamation expressly states that it does not “alter” any “rights, legal interests or obligations” under federal law, an expansion of the U.S. territorial sea for international law purposes should not alter the breadth of the territorial seas for domestic purposes. As a corollary, the starting point of the “high seas” for the purpose of a statute employing that term should remain the same, unless Congress’s purpose when including that term was linked to the international legal understanding of the breadth of the U.S. territorial sea.3

*218We have previously recognized this principle. In Wheel, a Second Circuit case glossed over by the majority, see ante at 213, this Court concluded that, because of the Proclamation’s limiting language, the Proclamation did not affect the meaning of “ ‘beyond the territorial waters of the United States’ ” for the purposes of a 1994 amendment to the Gambling Ship Act, 18 U.S.C. §§ 1081-1084 (1994). Wheel, 166 F.3d at 498-99, 501.4 Wheel found that “territorial waters” in § 1081 of the Gambling Ship Act referred to waters extending only three nautical miles from the U.S. coast, because Congress had not stated otherwise. See id. at 501, 502. That conclusion rested in part on the perception that the meaning of “U.S. territorial waters” for the purposes of the amendment to the Gambling Ship Act, which forbade gaming aboard American flag vessels in U.S. waters, was a matter of “federal” rather than international law. See id. at 499 & n. 1, 501.

Federal agencies have also recognized the distinction between the meaning of the U.S. territorial sea for the purposes of domestic law, on the one hand, and international law, on the other. The Federal Aviation Administration (“FAA”) has observed, for example, that the Proclamation “extended] the territorial sovereignty of the United States government, for international purposes, from 3 to 12 nautical miles from the U.S. coast,” but did “not alter the geographical boundaries of the United States (i.e., national borders and territorial waters within 3 miles of the U.S. coast) for domestic purposes.” Applicability of Federal Aviation Regulations in the Airspace Overlying the Waters Between 3 and 12 Nautical Miles from the United States Coast, 54 Fed.Reg. 264 (1989) (emphasis added). Accordingly, the FAA determined that the Proclamation did not itself redefine “territorial sea” within the Federal Aviation Act of 1958, 49 U.S.C. § 1301, and thus found it necessary to redefine “territorial seas” in certain parts of the implementing regulations to bring the United States into compliance with the Chicago Convention on International Civil Aviation, Dec. 7, 1944, 59 Stat. 1516, 15 U.N.T.S. 295. See id. The Coast Guard and the Environmental Protection Agency have similarly understood the Proclamation’s effect. See Emergency Position Indicating Radio Beacons for Uninspected Vessels, 58 Fed.Reg. 13364 (1993) (observing that “Proclamation 5928 ... extended the territorial sea to twelve nautical miles ... for the purposes of international law; however, that Proclamation did not affect domestic law,” and therefore concluding that the requirement, contained in 46 U.S.C. § 4102, that certain emergency equipment must be carried by uninspected vessels on the “high seas” still applied within the expanded territorial sea beyond one marine league from the coast) (Coast Guard); National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed.Reg. 8666 (1990) (observing that the Proclamation, given its limiting language, did not change the meaning of “territorial sea” for purposes of the National Contingency Plan) (Environmental Protection Agency).

Except for the district court and the majority in this case, every court to consider DOHSA’s range of application since the Proclamation’s issuance has found that DOHSA continues to apply in the disputed zone. The majority’s efforts to discount these cases cannot alter the force of their consistent reasoning. The court in Fran*219cis v. Hornbeck Offshore (1991) Corp., Civ. A. No. 96-608, 1997 WL 20740 (E.D.La. Jan.17, 1997), held that, because of its limiting language, the Proclamation did not affect DOHSA. See id. at *1 (“Proclamation 5928, by its own terms, does not alter DOHSA’s application beyond one marine league from shore.... ”). Similarly, the court in Blome v. Aerospatiale Helicopter Corp., 924 F.Supp. 805, 814 (S.D.Texas 1996), aff'd, 114 F.3d 1184 (5th Cir.1997) (unpublished disposition), although recognizing that Proclamation 5928 extended the U.S. territorial sea to twelve nautical miles, concluded that DOHSA applied where a death occurred more than nine nautical miles from the Texas coast, beyond state waters but within the U.S. territorial sea.5 As the majority recognizes, see ante at 214, numerous other courts, albeit in dicta, have stated that DOHSA applies in the disputed zone even after the issuance of the Proclamation. The case Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 207 n. 4, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), in which the Supreme Court observed that “[DOHSA] provides a federal claim for wrongful death occurring more than three nautical miles from the shore of any State or Territory,” should be added to the majority’s long list.6

In sum, the weight of authority recognizes that the Proclamation changed the meaning of the U.S. territorial sea — and thus its complement the “high seas” — only for international law purposes. This understanding comports with both the Proclamation’s limiting language and its principal purpose of protecting national security. See McLaughlin, supra note 1, at 95. When interpreting a domestic statute like DOHSA, therefore, we should not incorporate international concepts of territorial and high seas unless Congress specifically intended to import those concepts into the statute. Rather, we should follow the lead of the Wheel court, which found that “U.S. territorial waters” for purposes of the Gambling Ship Act extended only three nautical miles — and therefore that the high seas commenced at 12 nautical miles— because Congress had not stated otherwise. See Wheel, 166 F.3d at 501, 502.

The guidance of the Office of Legal Counsel (“OLC”)7 on determining the Proclamation’s effect, if any, on the mean*220ing of the territorial sea for the purposes of a particular statute is consistent with this view. According to the OLC, in determining whether the Proclamation affects a particular statute, the issue is whether Congress “intended” the statute to be affected by a change in the meaning of the U.S. “territorial sea under international law.” Douglas W. Kmiec, Legal Issues Raised by the Proposed Presidential Proclamation To Extend the Territorial Sea, 1 Terr. Sea J. 1, 22 (1990) (opinion of OLC) (emphasis added.). The OLC suggests that the starting point in this analysis is the statutory language; if the language is ambiguous, analysis of the statute’s legislative history and its structure and purpose is appropriate. See id. at 23. This analytical framework comports with the classical canons of statutory construction. Compare Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 62-63 (2d Cir.1985) (observing that the analytical starting point is the statute’s plain language and that if the language is clear and unambiguous, the judicial inquiry ordinarily ends) with Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-21, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (construing a DOHSA provision, where a plain language reading proved inconclusive, in light of DOHSA’s legislative history, congressional purpose, and the “importance of uniformity of admiralty law”). An analysis of DOHSA under these interpretive guidelines compels the conclusion that DOHSA applies to the disputed zone.

B. DOHSA’s Language

DOHSA denotes its zone of application as “on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States.” 46 U.S.C. App. § 761. The OLC suggests that where a statute includes only a boundary measurement (i.e., “three miles seaward from the coast”), or employs the term “territorial sea” and defines it as “three miles seaward from the coast,” the statute does not “invoke the concept of the territorial sea” but merely denotes “an area that coincides with it.” Kmiec, supra, at 22-23. According to the OLC, statutes incorporating such definitional language are unambiguously unaffected by the Proclamation, and further inquiry is unnecessary. See id.

Whether or not one accepts OLC guidance on interpreting congressional statutes, the OLC has hit on what I consider the only outcome-determinative ambiguity in § 761: whether by using the term “high seas” Congress intended to incorporate the international legal concept of high seas into the provision, or merely to denote a zone — defined as those waters “beyond a marine league” from the coast — that coincided with the starting point of the high seas at the time of DOHSA’s enactment. The appellees and the majority frame the debate around an ambiguity in the statute that is not dispositive of this case — the question whether the term “high seas,” as understood by the DOHSA Congress, referred to waters seaward of the three-mile line, or to waters seaward of the low-water mark. See ante at 201-02. In light of the considerable evidence favoring the former view, I agree with the majority that Congress probably understood “high seas” to mean waters outside state territorial seas. See ante at 209-10. However, this does not help to resolve the essential ambiguity in the statute that I have just identified.

The majority states that if Congress, by using the term “high seas” in DOHSA, meant to indicate “waters outside ... state territorial waters, where no nation is sovereign, ... the Proclamation would not change this definition,” ante at 213-14, and from this concludes that the Proclamation’s declaration of a U.S. territorial sea extending twelve nautical miles necessarily excluded DOHSA’s application from the disputed zone. If the majority’s observation settled the matter, however, it would mean, by analogy, that the Proclamation *221affected virtually every domestic statute employing the term “U.S. territorial sea,” because that term has always been understood to indicate all waters over which the United States has jurisdiction, and the United States, after issuance of the Proclamation, enjoys jurisdiction over waters reaching twelve nautical miles from its coast. Yet, as noted above, neither courts nor administrative agencies have understood the Proclamation to have such broad effect. The majority’s error flows from its analytical method; like the-OLC, I think the appropriate mode of analysis is to determine whether Congress intended to incorporate the international law concept of non-sovereign waters into the meaning of “high seas” when drafting DOHSA, or merely intended to denote a boundary line coinciding with the start of the high seas in that era.

The numerous courts that have applied DOHSA to foreign territorial waters intuitively understood that Congress intended the latter. In Howard v. Crystal Cruises, Inc., 41 F.3d 527, 529, 531 (9th Cir.1994), for example, the court held that a death “within the territorial waters of a foreign state [Mexico] occurs on the ‘high seas’ for purposes of DOHSA.” (Emphasis added.) Thus, the fact that a death occurred within waters controlled by another sovereign does not affect DOHSA’s applicability. Accord Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 892, 894 (5th Cir.1984) (permitting DOHSA claim for accident occurring in the English Channel); Sanchez v. Loffland Bros., 626 F.2d 1228, 1230 n. 4 (5th Cir.1980); Jennings v. Boeing Co., 660 F.Supp. 796, 803 (E.D.Pa.1987), aff'd, 838 F.2d 1206 (3d Cir.1988); Kuntz v. Windjammer “Barefoot” Cruises, Ltd., 573 F.Supp. 1277, 1280-81 (W.D.Pa.1983), aff'd, 738 F.2d 423 (3d Cir.1984); First & Merchants Nat’l Bank v. Adams, 1979 A.M.C. 2860 (E.D.Va.1979), aff'd in part, rev’d in part on other grounds, 644 F.2d 878 (4th Cir.1981). This case law— from the Third, Fourth, Fifth, and Ninth circuits — has been cited as definitive by admiralty treatises. See 2 Benedict on Admiralty § 81(b) n. 21 (7th ed. rev. 1999) (“It appears to be settled that the term ‘high seas’ within the meaning of DOHSA ... includes the territorial waters of a foreign nation as long as they are more than a marine league away from any United States shore.”) (emphasis added); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, § 8-2 at 469-70 (2d ed. 1994) (“[DOHSA applies] even [to] those killed in foreign territorial waters.”). As appellees conceded at oral argument, these authorities cannot be reconciled with a holding that the DOHSA Congress intended to incorporate into the Act the international legal concept of the high seas as non-sovereign waters. The majority refuses altogether to address this issue, a tacit admission that- reconciliation is difficult, if not impossible.

C. Legislative History

As the majority observes, DOHSA was drafted to fill the void created by The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), which held that no federal common law remedy existed for wrongful death at sea, and to eliminate the confusion caused by the Court’s subsequent efforts to alleviate The Harrisburg’s harsh effects. See ante at 202-04. DOHSA’s advocates, in the earliest report on the bill, stated that the bill was “designed to remedy this situation by giving a [federal] right of action for death,” H.R.Rep. No. 63-160, at 2 (1913); see id. at 3 (same), and added that while the bill provided the exclusive remedy for deaths on the high seas, it left “unimpaired the rights under State statutes as to. deaths on waters within the territorial jurisdiction of the States.” Id. at 2. From the start, therefore, DOHSA’s proponents sought to preserve state remedies in state territory.

Indeed, one of the questions the drafters initially confronted was whether DOHSA should be applicable to “all navigable iva-ters, and thus supersede state statutes within their respective boundaries, or [should be] supplementary to state stat*222utes and apply only on waters not covered by any statute,” i.e., the high seas. Robert M. Hughes,8 Death Actions in Admiralty, 31 Yale L.J. 115, 117 (1921) (emphasis added). Because the latter solution was deemed superior, DOHSA was drafted to “cover[ ] only waters a marine league from the shore of a state, or waters within regions where the federal government has exclusive jurisdiction.” Id. at 119 (emphasis added); see also Right of Action for Death on the High Seas: Hearing Before Subcomm. No. 2 of the Comm, on the Judiciary, 64th Cong. 1st Sess. 11-12 (1916) [hereinafter 1916 Hearing] (statement of Robert M. Hughes) (“[The committee of the Maritime Law Association] came to the conclusion that ... the simplest bill and the one that would cause the least opposition would be a bill to recognize the State statutes as governing on the territorial waters of the State, and to make our bill simply apply where no bill applies at all now — that is, a marine league from shore.”);9 Miles v. Apex Marine Corp., 498 U.S. 19, 25, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (“Congress did not extend DOHSA to territorial waters because it believed state statutes sufficient in those areas.”) (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 397-98, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970)) (emphasis added); Moragne, 398 U.S. at 398, 90 S.Ct. 1772 (noting that Congress legislated only to the three-mile line because “that was the extent of the problem,” and because Congress wished to ensure that the “solution of one problem would not create another by inviting the courts to find that the Act pre-empted the entire field, destroying the state remedies that had previously existed”); id. at 399-400, 90 S.Ct. 1772 (finding that DOHSA was confined to the high seas in order to preserve state remedies). Compare 14 Cong. Rec.1929 (1914) (statement of Rep. Cox) (noting that high seas are that part of the ocean where the “[s]tates have no jurisdiction”) with id. (statement of Rep. McCoy) (“[T]he term ‘high seas’ refers to that part of the ocean outside of the 3-mile limit.”)

Thus, the fact that DOHSA at the time of its drafting excluded U.S. territorial waters was irrelevant to Congress in establishing the three nautical mile boundary line. The only “concept” that mattered to DOHSA’s drafters was the concept of the states’ territorial seas. I have found no justification in the legislative history, and the majority has pointed to none, for carving out the three nautical mile zone other than to preserve state remedies (and the remedies of U.S. territories and dependencies 10). More importantly, I think we can *223safely conclude that if the U.S. territorial sea had exceeded three nautical miles in 1920, Congress would still have set DOH-SA’s boundary line “beyond a marine league” from the U.S. coast, because the decision in The Harrisburg left no remedy for death in any area outside state territorial waters.

For this reason, Moragne’s overruling of The Harrisburg does not affect our analysis. The DOHSA Congress could not have predicted this development which occurred several decades after DOHSA’s passage. Moragne’s rejection of The Harrisburg’s rule precluding federal common law remedies for death at sea could not possibly have affected Congress’ intent when drafting DOHSA, and it is the intent of the DOHSA Congress which is relevant to this discussion.

In short, when Congress inserted'the term “high seas” into DOHSA, Congress intended to incorporate a geographical boundary line — “the high seas beyond a marine league from the shore” — which preserved state remedies in state waters; Congress did not intend to import an international legal concept of U.S. federal sovereignty subject to change. 46 U.SiC. § 761. Nor could it have predicted that, decades later, Moragne would overrule The Harrisburg.

D. Revisiting DOHSA’s Language in Light of the Legislative History

The logical endpoint of this analysis is that the language “beyond a marine league” is definitional, clarifying the geographical boundary line at which the “high seas” began. It was reasonable for Congress to inject as much clarity as possible into DOHSA because, as the majority acknowledges, the starting point of the high seas was uncertain in that era. See ante at 206; Moreover, the statute contains no independent definitional section.

The majority invokes the “well-settled rule of statutory construction that ‘courts should disfavor interpretations of statutes that render language superfluous,’ ” Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 640 (2d Cir.1999) (quoting Connecticut Nat’l Bank v. Germain, 603 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)), to argue in favor of a different reading of the language “on the high seas beyond a marine league.” Both the district court and the majority cite this principle in contending that the appropriate way to read § 761 is as introducing two independent criteria for DOHSA’s applicability: The death must have occurred (1) on the high seas, and (2) beyond one marine league from the coast. See In re Air Crash Off Long Island, 1998 WL 292333, at *3; ante at 207. This reading does not make sense, however, because DOHSA’s drafters perceived “high seas” and “beyond a marine leagué” functionally to mean the same thing — the outér border of the states’ territorial seas — whatever uncertainty swirled around the meaning of high seas in that era. See ante at 206-07. Moreover, according to the majority’s own interpretation of what Congress meant by “high seas,” i.e. non-sovereign waters, see ante at 213-14, inserting the language “beyond a marine league” could be read as superfluous, because the United States indisputably exercised sovereignty over all waters within a marine league of its coast.

*224In the circumstances under which DOH-SA was drafted, I submit that including the language “beyond one marine league” and “high seas” did not create surplusage. Even if it had, the DOHSA Congress expressly indicated its willingness to indulge in surplusage for the sake of clarity. See 59 Cong. Rec. 4486 (1920) (statement of Rep. Goodykoontz) (“Even if you treat [a] phrase as surplusage, it can do no harm, for the reason that that which is useless does not vitiate the useful.”). Section 767, for example, was included in DOHSA because it reaffirmed an important element of § 761 — -that the statute would preserve state remedies. See id. at 4482-83 (statement of Rep. Montague) (noting that § 767, despite objections that it was “superfluous,” was retained “out of an abundant caution, to calm the minds” of those who feared that DOHSA would oust state remedies.) Indeed, the majority recognizes that the DOHSA Congress found necessary this “superfluous” language. See ante at 208. Similarly, it seems particularly likely that, out of an abundance of caution, Congress would have found it important to include both the term “high seas” and the explicative language “beyond a marine league from the shore” to ensure that no confusion about DOHSA’s application would arise.

Because of the state of the law at the time of DOHSA’s passage, I also cannot agree with the majority and the district court that Congress understood “high seas flexibly to mean non-sovereign waters.” In re Air Crash Off Long Island, 1998 WL 292333, at *8. No clear remedies existed for wrongful death beyond state territorial waters after The Harrisburg, a gap in the law that DOHSA was designed expressly to fill. See ante at 203-04. It seems therefore highly unlikely that Congress would have intended to create the risk that, at some future time, the border of the U.S. territorial sea would be expanded outwards, leaving the intermediate zone between the state and federal boundaries without a clear remedy. Consequently, the majority’s suggestion that Congress intended “beyond a marine league” to specify a “geographical boundary” and “high seas” to indicate “a political boundary subject to change” is implausible, not to mention entirely speculative. Ante at 207. This reading finds no support in the legislative history.

In sum, a review of the legislative history makes clear that Congress inserted the language “high seas” and “beyond a marine league” to establish firmly the boundary line at which DOHSA’s application began, thus ensuring the preservation of state remedies in state territorial waters.

E. Congressional Purpose

DOHSA’s purpose is clear from the legislative history. However, I wish to respond to what I perceive as the majority’s overstatement of congressional purpose to justify its holding. Specifically, the majority seems to suggest we should displace DOHSA with general federal maritime law in the disputed zone on the ground that the latter allows a more generous recovery. See ante at 209. The case law that the majority cites to support this proposition, however, although it supports the premise that the law should afford a recovery, does not suggest that it must be the most generous one. Justice Chase remarked, for example, in the The Sea Gull, 21 F. Cas. 909, 910 (D.Md.1865) (No. 12,-578), that “[tjhere are [common law cases] in which it has been held that ... no redress can be had ... [for] the death of one through the wrong of another;.... [C]ertainly it better becomes the humane and liberal character of proceedings in admiralty to give than withhold the remedy.”

DOHSA’s drafters wished to provide a remedy, not the most generous remedy. In enacting DOHSA, Congress specifically decided to create a remedy for death in the disputed zone which granted only pecuniary damages. See 46 U.S.C. App. § 762. If Congress had wished to make that remedy more generous, it certainly *225had the opportunity to reflect that in the statute.

F. Uniformity

Although the majority claims that its holding promotes uniformity, its position plainly undermines the important principle, emphasized by the Supreme Court in Tallentire, of “uniformity of admiralty law.” Tallentire, 477 U.S. at 221, 106 S.Ct. 2485. The majority’s solution creates four maritime zones governed by different law, whereas the existing regime encompasses only two. The applicable law in the majority’s four zones would be: (1) zero to three nautical miles: state law and federal common law; (2) three to twelve nautical miles: federal common law; (3) beyond twelve nautical miles: DOHSA; (4) foreign territorial waters: ? (the majority leaves this open rather than confronting the abundant case law applying DOHSA in foreign territorial waters). Uniformity would be better promoted under the current two-zone regime: (1) zero — three nautical miles: state law and federal common law; (2) beyond 3 nautical miles: DOHSA.

I am also unconvinced that a satisfactory remedy would exist for deaths occurring in the disputed zone if we were to supplant DOHSA’s application in that zone with general federal maritime law. In the zero to three nautical mile zone, state statutory and state common law remedies are available to supplement general federal maritime law, but this would not necessarily be the case in the disputed zone, where state law is inapplicable. The majority declines to address in even the most cursory fashion what law actually would apply in the TWA litigation, except to deny DOHSA’s application. See ante at 215. It also declines to consider what remedies might be available to appellees if DOHSA does not apply in the disputed zone. See ante at 202 n. 5 (expressing no view as to whether appellees would be able to recover for loss of society, survivor’s grief, pre-death pain and suffering, and punitive damages). In short, very complex legal questions, including conflict of law issues, arise from the majority’s ruling supplanting DOHSA with general federal maritime law in the disputed zone.

The majority’s solution also prevents certainty in the law. The boundaries of DOHSA’s application will be in constant flux because of the majority’s acceptance of the district court’s position that Congress defined “high seas flexibly to mean non-sovereign waters.” In re Air Crash Off Long Island, 1998 WL 292333, at *8. See generally W. Michael Reisman & Gayl S. Westerman, Straight Baselines in Maritime Boundary Delimitation (1992) (discussing nations’ abuse of Article 7 of the United Nations Convention on the Law of the Sea11 to claim increasingly larger territorial seas). Under international law, the boundary of the high seas is subject to constant change, whether because of the United States’ unilateral actions, the unilateral decisions of other nations, or the introduction of new treaties.12 In the long run, it would be infinitely simpler and wiser to adhere to the three nautical mile line established by the DOHSA Congress for the purpose of preserving the states’ jurisdiction over their territorial seas, and to let Congress decide when and how it wishes changes in international boundaries to affect DOHSA.

*226In sum, my answer to the interpretive question whether Congress intended DOHSA to be affected by a change in the meaning of the U.S. territorial sea under international law is a resounding no.

CONCLUSION

Congress — and the President — -have the opportunity to amend DOHSA to incorporate a more generous remedial scheme, just as they have the opportunity, if so inclined, to preclude DOHSA’s application in the disputed zone. I have no desire to pre-empt the legislative process by reading DOHSA more broadly than the Proclamation dictates or than the DOHSA Congress intended. The appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts.13 For the foregoing reasons, I respectfully dissent from the majority opinion,, and I would reverse the district court’s decision.

. The ruling also will affect substantially the available recovery in the 145 cases related to the crash which have been consolidated before the district court. See In re Air Crash Off Long Island, 1998 WL 292333, at *1 (S.D.N.Y.). It may also influence the outcome of any cases brought by the representatives of the 88 victims of the Alaska Airlines crash, which occurred approximately ten nautical miles off the coast of California. See Chuck Taylor et al., Flight 261: Looking for Answers, Seattle Times, Feb. 2, 2000, at Al.

. The State Department representative also observed that "the territorial sea was extended because 'national security and the practice of most nations made it desirable to change existing policy.’ ” McLaughlin, supra, at 94 (quoting House Hearings, at 5). In fact, within one week of the Proclamation’s issuance, the U.S. Coast Guard effected the departure of two Soviet vessels from the newly expanded territorial sea. See id. at 95.

. The majority claims that I "assume” that DOHSA’s purpose is not linked to the international understanding of the breadth of the U.S. territorial sea, and that I "ignore” Supreme Court cases, decided before DOHSA's enactment, which defined high seas as "international waters.” See ante at 215. In fact, I make no such "assumption.” Rather, I simply conclude that it is irrelevant to the outcome of this case whether Congress shared the international legal understanding of "high seas” as “non-sovereign waters,” because Congress’s only purpose in employing the phrase "high seas beyond a marine league” was to define and indicate a boundary line that ensured that state remedies would be *218preserved in state territorial waters — a purely domestic goal. Supra at 216. As discussed below, nothing in DOHSA’s language, legislative history, or purpose indicates that Congress intended DOHSA's boundary line to be variable depending on changes in international law.

. The phrase "beyond the territorial waters of the United States" in the Gambling Ship Act, 18 U.S.C. § 1081, is defined in 26 C.F.R. § 43.4472-l(e) (1994) as "those waters within the international boundary line between the United States and any contiguous foreign country or within 3 nautical miles ... from low tide on the coastline.”

. Although the majority apparently finds "more persuasive” the pronouncement in Triton Container Int'l Ltd. v. Compania Anonima Venezolana De Navegacion, Civ. Nos. 94-00055, 94-00063, 1995 WL 464484, at *3 (D.Guam, May 2, 1995) that "the three mile territorial limit is a vestigial concept,” ante at 214 it should be noted that Triton did not in any way involve death on the high seas or elsewhere. Triton was a suit in admiralty “for reimbursement of the administrative expenses advanced by Triton for the preservation, safekeeping, and sale” of a certain vessel. Id. at *1.

. The majority downplays Yamaha's observation on the basis that the Proclamation was never discussed in the Yamaha parties’ briefs or at oral argument. See ante at 211, n. 17. Whatever the parties discussed, I assume the Supreme Court gives thought to the issues it chooses to address, even in dicta.

The majority also appears to misrepresent the issues and holding of Yamaha. In contrast to the majority’s observations, neither side in Yamaha raised "a claim that DOHSA was the remedy for a death that occurred in the waters of Puerto Rico.” See ante at 211. If DOHSA’s zone of application had been an issue in Yahama the above-quoted dicta would be binding precendent dispositive of this case. DOHSA was not at issue in Yamaha; rather, the question in Yamaha was whether state law (Puerto Rican Commonwealth law or Pennsylvania law) or federal common law remedies applied in Puerto Rico’s three nautical mile territorial sea — a zone of waters in which DOHSA is indisputably inapplicable. See 46 U.S.C. App. § 761. The Court concluded that state remedies had “not been displaced by the federal maritime wrongful-death action recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).” Yamaha, 516 U.S. at 202, 116 S.Ct. 619. Yamaha thus speaks to remedies in Puerto Rican territorial waters, which for the purposes of Yamaha were either Puerto Rico’s or Pennsylvania’s wrongful death remedies. See Yamaha, 516 U.S. at 216 n. 14, 116 S.Ct. 619.

.The Office of Legal Counsel is an Office in the Department of Justice headed by an Assistant Attorney General. See 28 C.F.R. § 0.25.

. Hughes was a member of the Maritime Law Association, which initiated the drafting of DOHSA. See Right of Action for Death on the High Seas: Hearing Before Subcomm. No. 2 of the Comm, on the Judiciary, 64th Cong. 1st Sess. 3 (1916); Hughes, Death Actions in Admiralty, at 116-17.

. The desire to preserve state remedies may explain the differences in language between the versions of the bill from 1909-1915 and the 1916 version; Hughes referred to the latter in his above-cited statements before Congress. In the 1909-1915 versions, the bill applied to deaths occurring "on the high seas, the Great Lakes, or any navigable waters of the United States." H.R. 15810, 61st Cong. § 1 (1909); S. 6291, 61 ^ Cong. § 1 (1910); H.R. 24764, 62d Cong. § 1 (1912); H.R. 6143, 63d Cong. § 1 (1913); H.R. 6143, 63d Cong. § 1 (1915). The 1916 version provided, however, that the bill applied to deaths "beyond a marine league from the shore of any State, or on any navigable waters of the Panama Canal Zone, the District of Columbia, or the Territories or dependencies of the United States.” S. 4288, 64 Cong. § 1 (1917). (In the 1919 version the phrase "or on any navigable waters of the Panama Canal Zone” was deleted, so that the final draft of § 761 carved out the three nautical mile belt seaward of the District of Columbia and the Territories and dependencies, as well as the states’ territorial waters. The navigable waters of the Panama Canal were exempted from DOHSA coverage in 46 U.S.C. App. § 767.)

.DOHSA also preserved the local remedies of U.S. territories and dependencies in their territorial waters. At the time the bill was passed, these entities, like the states, had local laws providing remedies for wrongful death and courts that administered those remedies. *223See, e.g., The Schooner Robert v. Kekauoha, 114 F. 849, 851-52, 854 (9th Cir.1902) (observing that the 1900 Act creating a government for the territory of Hawaii, then codified at 48 U.S.C. § 493, established that the laws of the republic of Hawaii would remain in force even after the 1898 transfer of sovereignty to the United States, and therefore finding that Hawaii’s statutory remedy for wrongful death applied to a death occurring within three nautical miles of the Hawaiian shores; The Harrisburg’s denial of a remedy under general maritime law was irrelevant to the outcome). Even today, the Supreme Court equates "state territorial waters” and “territorial waters of U.S. territories” for the purposes of DOHSA. See Yamaha, 516 U.S. at 202, 216 & n. 14, 116 S.Ct. 619 (framing the issue as whether state law (although Puer-to Rico is a Commonwealth or territory and not a state) or general federal maritime law applied in Puerto Rican territorial waters).

. See United Nations Convention on the Law of the Sea [UNCLOS], Dec. 10, 1982, art. 7(1), 1833 U.N.T.S. 3, 401 ("[T]he method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.”).

. See e.g., UNCLOS, art. 7(4), 1833 U.N.T.S. 3, 401 ("Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them....”). It is interesting to note that the states’ coastal borders, on the other hand, have been fixed by the Submerged Lands Act at three nautical miles, see 43 U.S.C. § 1312 (1994), however the United States redraws its baselines for international purposes.

. Currently before the President for signature is a bill that (1) alters DOHSA's remedial scheme by allowing compensation for nonpe-cuniary damages for deaths resulting from commercial aviation accidents; (2) declares DOHSA inapplicable to deaths occurring in the disputed zone if they resulted from commercial aviation accidents; and (3) sets the act’s effective date as of July 16, 1996, one day prior to the TWA crash. See H.R. 1000, 106 th Cong. (2000).