ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

JOSE MARTINEZ, District Judge

THIS CAUSE came before the Court upon Defendant's Motion to Dismiss (D.E. No. 5). filed on November 23, 2004. This Motion has been fully briefed and is ripe for adjudication. For the reasons set forth below, Defendant's Motion to Dismiss Complaint is denied.

I. Relevant Factual and Procedural Background

Plaintiff Carol Sue Perkins ("Perkins") filed suit against Defendants Ottershaw Investments Limited ("Ottershaw"), and West Bay Management Limited ("West Bay") as representative of her deceased husband's estate (D.E. No. 1, Compl.) Plaintiff and her husband. Harry Glenn Perkins went on a vacation to the Sandals Royal Bahamian Resort Spa and on January 20, 2003, the couple began a two-day "`Resorts Course'" in scuba diving. (D.E. No. 1, Compl. at 4-5). On January 21, 2003 Harry Perkins "drowned during the open water dive portion of the `Resorts Course' in scuba diving." Id. at 5. Plaintiff alleges negligence against both Ottershaw and West Bay. Defendants filed a Motion to Dismiss (D.E. No. 5) in which they allege that Perkins' suit is barred by the doctrine of res judicata or collateral estoppel. These arguments are based on the previous case filed by Plaintiff, Carol Sue Perkins v. Sandals Resorts International, Ltd. and Unique Vacations, Inc., 04-20271-CIV-SEITZ. In that case, the Court entered an Order Granting Defendants' Motion for Summary Judgment, finding a release signed by the decedent demonstrated that he had "clearly and unequivocally assumed the risks of scuba diving and released Defendants from liability for negligence." (D.E. No. 6, Exh. D at 5). Perkins also alleges in the motion to dismiss that he release mandates dismissal as to Ottershaw and West Bay and that Plaintiff's claims for non-pecuniary damages should be dismissed as these damages are not recoverable under the Death on the High Seas Act.

II. Legal Standard

A complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) only when it is clear that a Plaintiff can prove no set of facts in support of the claim, which would entitle him to relief. FED. R. CIV. P. 12(b)(6). Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In considering a motion to dismiss, the Court must accept the plaintiff's allegations as true and view them in the light most favorable to the plaintiff. Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993). Furthermore, the Eleventh Circuit Court of Appeals has held that under this standard, the moving party sustains a very high burden. Jackman v. Hospital Corp. of America Midcast, Ltd. 800 F.2d 1577, 1579 (11th Cir. 1986).

III. Analysis

Defendants first argue that this case should be dismissed on the basis of res judicata or collateral estoppel. Plaintiff filed a previous suit against Sandals Resorts International ("Sandals International") and Unique Vacations Inc. ("Unique"), case number: 04-20271-CIV-SEITZ, styled Carol Sue Perkins v. Sandals Resorts International, Ltd. and Unique Vacations Inc., which alleged negligence claims and sought damages. In the previous suit, the Court granted Defendants' motion for summary judgment finding a valid exculpatory agreement had been signed by the decedent and this release was deemed legal under Florida law to release Defendants Sandals Resort and Unique Vacations from Plaintiff's allegations of negligence. (D.E. No. 6, Exh. D). Based on this, Ottershaw and West Bay argue that Perkins' suit should be dismissed with prejudice under the doctrine of res judicata and collateral estoppel. This Court disagrees.

"Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action." In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (internal citation omitted). "Collateral estoppel or issue preclusion forecloses relitigation of an issue of fact or law that has been litigated and decided in a prior suit" CSX Transp. Inc. v. Brotherhood of Maintenance Way, 327 F.3d 1309, 1317 (11th Cir. 2003). There are several prerequisites that Defendants must establish in proving that either res judicata or collateral estoppel applies. however, both doctrines require the cases to involve the same parties or their privies. Equal Employment Opportunity Comm'n v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir 2004). See also Howard v. Green, 555 F.2d 178 (8th Cir. 1977) ("Res judicata is of course an affirmative defense, and the burden of proof is upon the party asserting it.") (internal citation omitted). Defendants have not shown that both cases involve the same parties or their privies

It is undisputed that this case does not involve the same parties as in the previous case, as the previous case listed Sandals International and Unique as defendants while in this case the defendants are Ottershaw and West Bay. Defendants have argued that the previous suit involved the privies of Ottershaw and West Bay. This Court disagrees. "`Privity' is a flexible legal term, comprising several different types of relationships and generally applying when a person, although not a party, has his interests adequately represented by someone with the same interests who is a party." Equal Employment Opportunity Comm'n v. Pemco Aeroplex, Inc., 383 F.3d at 1286. The Eleventh Circuit Court of Appeals has listed a number of different situations where privity exists including a situation where a ward or beneficiary of a trust is bound by a decision binding a guardian or trustee, a situation where a class action is binding on members of that class, or a situation "`where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate.'" Id. (citations omitted) Other situations include that of "`virtual representation' or `control' over the previous litigation" Id. Defendants have not alleged that any of these situations exist in this case. "[W]hen a litigant files consecutive lawsuits against separate parties for the same injury, the entry of a judgment in the prior action does not bar the claims against other potentially liable parties." Central Hudson Gas Electric Corp. v. Empresa Naviera Santa. 56 F.3d 359, 367 (2d Cir. 1995). In the previous case. Plaintiff alleged negligence against Sandals International and Unique and in this case Plaintiff has alleged negligence against Ottershaw and West Bay. In the absence of any showing of privity, Plaintiff is entitled to pursue a cause of action against other alleged tortfeasors. Therefore, as the previous case has not been shown to involve the same parties or their privies, this Court declines to discuss the other prerequisites of res judicata and collateral estoppel and finds this suit is not barred by res judicata or collateral estoppel.

B. The Release

In the alternative, Plaintiff argues that if this Court does not dismiss this case on res judicata and collateral estoppel grounds this Court should dismiss this case because Harry Perkins signed a release which "exempts Ottershaw and West Bay from all liability for negligence." (D.E. No. 5). Plaintiff argues that the release does not apply to Ottershaw and West Bay because it does not explicitly state Plaintiff is releasing Ottershaw and West Bay. "Although viewed with disfavor under Florida law. . . . exculpatory clauses are valid and enforceable when clear and unequivocal." Borden v. Phillips. 752 So.2d 69, 73 (Fla. 1st DCA 2000). However, the issue of whether there was a release is an affirmative defense which cannot be determined from the face of the complaint and therefore, it is not appropriate for this Court to consider this issue on a motion to dismiss. Deckard v. General Motors Corp., 307 F.3d 556, 560 (7th Cir. 2002) (stating "[a] motion to dismiss was improper since release is an affirmative defense. Fed R Civ P S(e), and the existence of a defense does not undercut the adequacy of the claim"). Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590, 591 (Fla 5th DCA 1998) (stating "a release is an affirmative defense that does not appear on the face of the complaint [and thus, it] may not be the basis of a motion to dismiss"). This issue should be raised in Defendant's answer and later in Defendant's motion for summary judgment should Defendant choose to file a motion for summary judgment. See Lantz, 717 So. 2d at 591 (stating "a release should be pled in the answer and then raised either on a motion for judgment on the pleadings or summary judgment.). Therefore, this Court denies Defendant's motion dismiss on the grounds that the release is a valid waiver.

C. Plaintiff's Claims for Non-Pecuniary Damages

Defendants' final argument is that Plaintiff's claims should be limited to pecuniary damages under the Death On the High Seas Act ("DOHSA"), 46 U.S.C. app. § 761 et. seq Plaintiff argues that DOHSA is not controlling. Section 761(a) states:

whenever the death of a person shall be caused by wrongful act, neglect, or default occurring 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, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States.

The major contention between the parties is whether the statute applies only to non-territorial waters or if it also applies to the territorial waters of a foreign nation. Defendants contend the statute includes "the territorial waters of a foreign state (in this case the Bahamas)" (D E No. 5 at 13). In contrast, Plaintiff argues the statute only applies to "international waters not subject or belonging to any sovereign." (D.E. No. 23 at 14). This Court finds Defendants' reading of the statute persuasive.

In binding precedent, the Court in Sanchez v. Loffland Brothers Company, stated

DOHSA is applicable to the death of a person who is not a Jones Act seaman whenever the wrongful act occurs 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. § 761. The statute has been applied when the cause of action arises outside the United States territorial waters and within the territorial waters of a foreign country 626 F.2d 1228, 1230 n. 4 (5th Cir. 1980). In Sanchez, the Court then applied DOHSA to a situation where the Plaintiff had filed an action for wrongful death of her husband who was a seaman on a vessel in Lake Maracaibo, Venezuela and found her cause of action barred by DOHSA's statute of limitations. Id. at 1230. A number of other courts have also either applied DOHSA to deaths which occurred within the territorial waters of a foreign nation or specifically stated the statute could be applied in such a way. See Howard v. Craystal Cruises, Inc., 41 F.3d 527, 529-30 (9th Cir. 1994) (upholding application of DOHSA to a death which occurred within the territorial waters of Mexico); Jennings v. Boeing Co., 660 F. Supp. 796, 803-04 (E.D. Pa. 1987) (applying DOHSA to a situation involving a helicopter crash in Scottish waters). Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F. Supp. 1277, 1280-81 (W.D. Pa. 1983) (applying DOHSA in situation that involved scuba diving off Berry Islands, Bahamas); In re Air Crash Disaster Near Bombay, India on Jan. 1, 1978, 531 F. Supp. 1175, 1184 (W.D. Wash 1982) (stating "[n]othing in the Death on High Seas Act or its legislative history supports the position that Congress intended to limit the scope of this remedy to deaths occurring in international waters."); Moyer v. Klosters Rederi. 645 F. Supp. 620 (S.D. Fla 1980) (applying DOHSA to Jamaican waters). In addition, this Court notes that it finds the court's analysis of similar statutory language in In re Air Crash Disaster Near Peggy's Cove. Nova Scotia on September 2, 1998, where the court considered similar statutory language, persuasive. 210 F. Supp. 2d. 570 573-86 (E.D. Pa. 2002) (examining and interpreting the meaning of "high seas" within the context of 46 U.S.C. app. § 761(b) and finding the language in the statute precluding application of the statute "`on the high seas 12 nautical miles or closer to the shore'" was meant "to be given a geographical meaning" and DOHSA applied to aviation accidents within foreign territorial waters).

Plaintiff has primarily relied on In re: Air Crash off Long Island, New York, on July 17, 1996 ("TWA 800"), where the Court found that DOHSA did not apply to the United States territorial waters where the crash at issue occurred, in that case, about eight nautical miles from the coast of the United States. 209 F.3d 200, 201, 215-16 (2d Cir. 2000). The court in TWA 800 engaged in a thorough discussion of the legislative history of DOHSA and particularly looked at the meaning of "high seas" in the statute. The court found that "high seas" means international or nonsovereign waters. Id. at 205-11. However, the court in that case did not consider the issue present in the instant case and specifically declined to determine whether such a definition would apply when considering a death occurring within the territorial waters of another nation The court stated:

Obviously, we are not faced here with a wrongful death claim arising out of an accident in the territorial waters of a foreign nation. We take no position on what courts should do when faced with the difficult question of whether to apply DOHSA in foreign territorial waters, where plaintiffs might otherwise be left with only foreign remedies in foreign courts.

As DOHSA does apply to this case, Plaintiff is precluded from recovering non-pecuniary damages. See 46 U.S.C. app. § 762(b)(1) (stating the recovery under DOHSA "shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought.") (emphasis added). See also Zicherman v. Korcan Air Lines, 516 U.S. 217 (1996) (finding there could be no recovery for loss-of-society damages under DOHSA). Therefore, Plaintiff's claims for non-pecuniary damages are dismissed.

ORDERED AND ADJUDGED that

1. Defendant's Motion to Dismiss (D.E. No. 5) is GRANTED in part and DENIED in part.

2. Calendar Call and Trial dates will be reset by separate order.

DONE AND ORDERED.