Maritime Personal Injury: Recovery Under the Death on the High Seas Act

In September of 1983, Korean Air Lines Flight KE007 was traveling from Anchorage, Alaska to Seoul, South Korea. During the flight, the aircraft strayed into former Soviet Union air space and was shot down over the Sea of Japan. None of the 269 people aboard survived.

Dooley v. Korean Air Lines Co., Ltd., 118 S.Ct. 1890 (1998) was initiated by the personal representatives of three (3) passengers. Suits were brought against Korean Air Lines (KAL) in the United States District Court for the District of Columbia. The cases were consolidated along with other federal actions arising from the disaster. At trial, a jury concluded that KAL had committed "willful misconduct". The result of this finding was that the Warsaw Convention's $75,000 cap on damages was inapplicable. There was a subsequent verdict of punitive damages in the amount of 50 million dollars. The Court of Appeals upheld the finding of willful misconduct, but vacated the punitive damages award finding that the Warsaw Convention prohibits the recovery of punitive damages. The Judicial Panel on Multi District Litigation thereafter remanded all of the individual cases to the District Court in which they were originally filed for damages trials. In the cases involving the instant plaintiffs, KAL moved for a pre-trial ruling that the Death on the High Seas Act (DOHSA) 46 U.S.C. App. Sec. 761 et seq., provided the exclusive source of recoverable damages. KAL argued that DOHSA did not permit damages for loss of society, survivors' grief and decedents' pre-death pain and suffering. Rejecting this argument, the District Court held that because the petitioners' claims were brought pursuant to the Warsaw Convention, DOHSA could not limit the recoverable damages. Article 17 of the Warsaw Convention allows for the recovery of all damages sustained, which apparently includes any actual harm experienced. While the plaintiffs were awaiting their damage trial, the United States Supreme Court reach a different conclusion in Zicherman v. Korean Air Lines, 516 U.S. 217 (1996). Zicherman involved another case arising from the crash of Flight KE007 and held that the Warsaw Convention only allows compensation for legally cognizable harm but leaves the definition of that harm to applicable domestic law under the forum's choice-of-law rules. Where an airplane crash occurs on the high seas, DOSHA supplies the substantive American Law. As such, the Court concluded that the petitioners could not recover damages for loss of society. The Court explained that where DOHSA applies, neither state law or general maritime law can provide a basis for recovery of loss of society damages. Zicherman neither decided nor specifically addressed whether the survivors could recover for their decedents' pre-death pain and suffering. Following Zicherman, KAL again moved in Dooley to dismiss all of the petitioners' claims for non-pecuniary damages. The District Court granted the motion holding that United States law governed these cases and that DOHSA provided the applicable law. The Court went on to find that DOHSA precluded the recovery of non-pecuniary damages including claims for a decedent's pre-death pain and suffering. On appeal, petitioners argued that while DOHSA may preclude recovery for a decedent's pre-death pain and suffering, the general maritime law provides a survival action that allows a decedent's estate to recover for injuries suffered by the decedent prior to death. The Court of Appeals rejected this position and held that such as action is unavailable when the death is on the high seas. The Court reasoned that for deaths on the high seas, Congress had decided who may sue and for what. They noted that the general maritime law may not override such congressional judgments. The Supreme Court granted certiorari to resolve a split amongst the Circuits concerning the availability of a general maritime law survival action in cases of deaths on the high seas. Again, the petitioners acknowledged that while DOHSA may not authorize recovery for a decedent's pre-death pain and suffering, they sought to recover such damages through the general maritime survival action. They noted that the general maritime law recognizes a survival action, which permits a decedent's estate to recover damages that the decedent could have recovered but his death. The petitioners argued that since DOHSA is a wrongful death statue it had no bearing on the availability of a survival action. The Supreme Court disagreed. DOHSA, according to the Supreme Court, expresses Congress' judgment that there will be no such cause of actin in deaths arising on the high seas. The Supreme Court went on to explain that by authorizing only certain surviving relatives to recover damages, and by limiting damages to the pecuniary losses sustained by those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas. The Supreme Court noted that the survival action proposed by the petitioners would have expanded the class of beneficiaries in cases of death on the high seas by allowing a decedent's estate and its various beneficiaries to recover compensation. The proposed cause of action would have also expanded the recoverable damages for deaths on the high seas by allowing the recovery of non-pecuniary losses, including pre-death pain and suffering. The Supreme Court explained that since congress had already decided these issues, the judiciary was legislatively precluded from enlarging the class of beneficiaries and/or the recoverable damages. The Supreme Court reasoned that Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of non-pecuniary supplements. The suggestion that DOHSA has no bearing on survival actions was rejected: instead, according to the Court, Congress has simply chosen to adopt a more limited survival provision. The Supreme Court concluded that because Congress had chosen not to authorize a survival action for a decedent's pre-death pain and suffering, there can be no general maritime survival action for such damages. In a footnote, the Court observed they were not deciding whether the general maritime law ever provides such a survival action.