Reply Brief — Zicherman v. Korean Air Lines Co.

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Supreme Court. Us

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JUL 26 1995

Nos. 94-1361, 94-1477 ;

ClLevKk |

In The

Supreme Court of the United States

October Term, 1995

J

MARJORIE ZICHERMAN, Individually and as

executrix of the estate of Muriel A.M.S.

Kole, and MURIEL MAHALEK,

Petitioners/Cross-Respondents,

v.

KOREAN AIR LINES CO., LTD,

Respondent/Cross-Petitioner

————-@ -

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

S

REPLY BRIEF FOR THE

PETITIONERS/CROSS-RESPONDENTS

+

W. Paut NeepHam’

Kevin M. HEensiey

NeeEDHAM & WaAaAkREN

10 Liberty Square

Boston, MA 02109

(617) 482-0500

Counsel for the Petitioners/

Cross-Respondents

*Counsel of Record

“KLE LAW BRIEF PRINTING Ct a) 225-9

k ALI {LECT (402) “42-28%

TABLE OF CONTENTS

Page

RE SE PERF OUEINEEEEE oo pbc wcccwccccccccccseues il

Ac dhi do swadkavehndenennaséssecnee oss 1

I. IT CANNOT BE SAID THAT LOSS OF SOCIETY

ee ET dcbscenscbsccesesecesssoes 1

A. Extrinsic evidence associated with the War-

saw Convention is inconclusive, and should

ace lala ES SE ee eee 1

B. Subsequent practice of the parties to the

Convention is also inconclusive ........... 4

Il. ARTICLE 24 OF THE WARSAW CONVENTION

DOES NOT ADDRESS RECOVERABLE DAM-

AGES FOR WRONGFUL DEATH.............. 5

Ill. INTERNATIONAL AVIATION ACCIDENTS

UNDER THE WARSAW CONVENTION CAN-

NOT BE EQUATED WITH MARITIME ACCI-

DENTS UNDER DOHSA ...............++.++-. 7

A. The United States Congress has expressed

no opinion on the elements of recoverable

damages under Article 17 ................ 7

B. Freed from the shackles of DOHSA and the

Jones Act, this Court should permit recov-

ery of loss of society damages under the

Warsaw Convention .........-.--++eeee05: 10

SE bodes cevevedeccetesccscccecccccscoes 11

**

TABLE OF AUTHORITIES

Page

I. Cases

American Export Lines, Inc. v. Alvez, 447 U.S. 274

(19BD) . . cccccccccccceccessesseu sauna nnn 7, 10

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)...... 7,9

Preston v. Hunting Air Transport Ltd., [1956] 1 Q.B.

454 (Bag,.)...cccccccccccccescesseseeasnene eens 4,5

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573

(1979) . .cccccccccccsccescensenenun nnn 10

United States v. Alvarez-Machain, 504 U.S. 655

(1992)... cccccccccescecsceesu cuss s eue ein 3

United States v. Stuart, 489 U.S. 353 (1989) (Scalia,

J., CORCUSTIAG) . oc ccccccsescesceeseseneenenneennee 3

Il. Treaties, StaruTES AND RuLes

4 Halsbury’s Statutes (4th ed. 1985) (Eng.)........... 5

1961 Carriage by Air Act, 9 & 10 Eliz. 2, ch. 27

(Hiatg.) ..cccccccccccnsccceseseees anne nina 4

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934),

reprinted in note following 49 U.S.C. App. §1502

(“Warsaw Convention"). .<60ccisesvseensdeunas passim

Fatal Accidents Act, 1976, ch. 30 (Eng.).............. 4

Il. Orner AUTHORITIES

Black's Law Dictionary (5th ed. 1979)...............45. 6

Haanappel, The Right to Sue in Death Cases Under

the Warsaw Convention, 6 Air L. 66 (1981).......... 5

TABLE OF AUTHORITIES - Continued

Mankiewicz, The Liability Regime of the Interna-

es. coc ccccccccccccccces 6

Sand, Limitation of Liability and Passengers’ Accident

Compensation Under the Warsaw Convention, 11

Am. J. of Comp. Law 21 (1962).................... “

Second International Conference on Private Aero-

nautical Law, (Horner et al. trans 1975)............. 3

ARGUMENT

I. IT CANNOT BE SAID THAT LOSS OF SOCIETY IS

NOT “DAMAGE.”

The Warsaw Convention contains a simple directive

to the courts of the United States: an air carrier “shall be

liable for damage sustained in the event of the

death . . . of a passenger.” 49 Stat. 3018 (emphasis added).

This imperative cannot be disregarded by any court,

because the Warsaw Convention is the supreme law of

the land. Thus, the only way to deny recovery to Marjorie

Zicherman and Muriel Mahalek in this case is to conclude

that the loss of Muriel Kole’s society was not “damage”

of any sort.

The conclusion that loss of society is not “damage” is

belied by the dictionary definitions cited in the Peti-

tioner’s principal brief (at page 8), which KAL has elected

not to address. It is also belied by common experience.

The loss of a sister or daughter is far more devastating

than the loss of any sum of money, but KAL’s analysis

forces the backwards conclusion that the latter event is

damage, while the former is not.

A. Extrinsic evidence associated with the Warsaw

Convention is inconclusive, and should not be

relied on.

To support its position that Article 17 defers to local

law for the elements of recoverable damages, KAL pri-

marily relies on extrinsic evidence associated with the

Warsaw Convention, particularly on remarks made by

Henry de Vos in 1928. These remarks suggest that the

committee responsible for drafting the Warsaw Conven-

tion (CITEJA) could not agree on what damages should

be compensable under Article 17 (KAL brief at 19). Mr. de

Vos’s remarks preceded the 1929 conference in Warsaw,

where the Convention was actually debated and voted

upon. The minutes of that 1929 conference contain little

discussion of Article 17, and it is therefore impossible to

determine what the delegates really thought about the

meaning of the term “dommage.”

In all likelihood, the various delegates to the 1929

Warsaw conference had a variety of opinions on the

meaning of Article 17. Because the word “dommage” so

clearly included non-pecuniary damages under French

law (see Petitioner's Brief at 9-10), many of them may

have assumed that “dommage” included, at a minimum,

damages for loss of society. Others may have agreed with

Mr. de Vos that the question should be left to local law.

Sixty-five years after the fact, it is impossible to ascribe a

single “intent” to a diverse group of delegates from many

different nations.

At one point during the 1929 conference, the subject

of a carrier's liability for the actions of its servants was

debated. Georges Ripert, one of the French delegates,

expressed the following general concern:

We will do our best to find the formula which

will be satisfactory, but it is agreed that, from

this point on, we are absolutely opposed to a

formula that would lead to the application of

national law. It’s the first time that application of

national law is required and if it were allowed

for this question, it would be required for

3

others. From our point of view, one would thus

arrive in destroying the convention, if one estab-

lishes recourse to national law upon each article.

Second International Conference on Private Aeronautical Law,

at 66 (Horner et al. trans. 1975) (emphasis added). This

concern was echoed by other delegates in a variety of

contexts. See, e.g., id. at 35 (Alfred Dennis, Great Britain)

and 64 (Amedeo Giannini, Italy). Thus, extrinsic evidence

associated with the Warsaw Convention is inconclusive,

and can usually be cited to support either side of a given

problem of interpretation.

It is precisely because the intent of the Convention's

drafters is so elusive that this Court should rely on the

ordinary meaning of the words used in writing Article 17.

See generally United States v. Alvarez-Machain, 504 U.S. 655,

663 (1992) (treaties, like statutes, should be construed by

first looking to their terms); United States v. Stuart, 489

U.S. 353, 371-72 (1989) (Scalia, J., concurring) (extrinsic

evidence cannot be used to contradict the plain meaning

of a treaty provision). If a word as simple and as com-

monly used as the word “damage” requires an examina-

tion of extrinsic evidence to determine its meaning, then

it is doubtful that any treaty provision could ever be

applied based on its ordinary meaning.' “Damage”

equals “loss,” and therefore includes loss of society.

! Contrary to KAL’s assertion, the Petitioners did argue in

the Second Circuit that the ordinary meaning of the term “dam-

age” includes loss of society. Brief of the Plaintiffs/Cross-

Appellants in Nos. 93-7490, 93-7546 (2d Cir. 1993) at page 19.

4

B. Subsequent practice of the parties to the Con-

vention is also inconclusive.

At least one foreign court has ruled that the plain

meaning of the word “damage” in Article 17 includes

non-pecuniary losses. Preston v. Hunting Air Transport

Ltd., [1956] 1 Q.B. 454. The English High Court of Justice,

Queen’s Bench Division, held in Preston that Article 17

“does not refer particularly to financial loss, it refers to

damage .. . ” Id. at 461. This includes

. . . loss which [the minor plaintiffs] inevitably

must have sustained beyond the actual financial

loss by the fact that they lost their mother as

young children . . . As I interpret the words of

article 17 it does seem to me that this is an item

of damage for which the plaintiffs are entitled to

be compensated.

Id. Thus, Preston did not really apply English law, as KAL

asserts in its brief (KAL brief at 21); rather, the English

court relied on the plain meaning of the word “damage”

to reach its result.

The status of Article 17 in England has become some-

what less clear since Preston was decided. The 1961 Car-

riage by Air Act, 9 & 10 Eliz. 2, ch. 27, §3, brings Warsaw

Convention cases within the ambit of the Fatal Accidents

Act.? The Fatal Accidents Act provides only for recovery

of pecuniary damages, plus a fixed amount for the

bereavement of certain surviving relatives. However, the

Warsaw Convention itself is set out as the First Schedule

2 The original 1846 Fatal Accidents Act has now been

replaced by a new version enacted in 1976. Fatal Accidents Act,

1976, ch. 30 (Eng.).

to the Carriage by Air Act, and a Note following Article

17 cites the Preston case for the proposition that Article 17

“is not limited purely to financial loss.” 4 Halsbury’s

Statutes at 33 (4th ed. 1985).

Apart from England, it is true that some other coun-

tries have enacted legislation defining the types of dam-

ages recoverable under Article 17.° This may be an

indication that the legislative bodies of these countries

viewed Article 17 as silent on the question, although the

statutes they enacted might just as easily be viewed as a

codification of what those legislators felt was the article’s

ordinary meaning. All other countries, most notably the

United States, have chosen not to enact any enabling

legislation, leaving courts to interpret the plain meaning

of the phrase “damage sustained.” On balance, then, the

subsequent practice of the parties to the Convention is

just as inconclusive as the drafting history that preceded

its adoption. The ordinary meaning of “damage sus-

tained” is the only reliable guide to interpreting Article

17.

Il. ARTICLE 24 OF THE WARSAW CONVENTION

DOES NOT ADDRESS RECOVERABLE DAM-

AGES FOR WRONGFUL DEATH

When luggage or goods are damaged on an interna-

tional flight, jurists from around the world can all agree

* Canada is one such nation. Interestingly, however, in

some provinces loss of society is recoverable under Article 17.

Haanappel, The Right to Sue in Death Cases Under the Warsaw

Convention, 6 Air L. 66, 71 (1981).

that the owner of the damaged personal property is the

proper party to file a lawsuit. Any recovery from the air

carrier would then obviously go to compensate that party.

When a passenger dies, however, there is no uniform

international jurisprudence that would specify the appro-

priate persons to bring suit, or the proper way to distrib-

ute any recovery that the named plaintiff might be

awarded. See generally Mankiewicz, The Liability Regime of

the International Air Carrier 161 (1981).

Article 24 of the Warsaw Convention, by its own

terms, addresses these procedural difficulties encoun-

tered when a passenger dies. The Article states that the

conditions and limits of the Convention apply to acci-

dents resulting in death, “without prejudice to the ques-

tions as to who are the persons who have the right to

bring suit and what are their respective rights.” 49 Stat.

3020. The modifier “respective” is critical: it means “relat-

ing to particular persons or things, each to each.” Black's

Law Dictionary 1179 (5th ed. 1979) (emphasis added). It

has the same import as the Latin term inter se, which is

“used to distinguish rights or duties between two or more

parties from their rights or duties to others.” Id. at 735

(emphasis added).

By referring to “respective” rights, Article 24 thus

applies only to the division of a recovery between a

decedent's survivors and beneficiaries. The Article does

not say that the term “damage” in Article 17 has no

meaning, and it does not say that the elements of recover-

able damages are left to local law. It just says that, once

those damages are adjudicated, their distribution will be

left to the law of the forum.

Ill. INTERNATIONAL AVIATION ACCIDENTS

UNDER THE WARSAW CONVENTION CAN-

NOT BE EQUATED WITH MARITIME AC C'I-

DENTS UNDER DOHSA

If this Court decides that the elements of recoverable

damages under Article 17 must be determined by refer-

ence to the law of the United States, it must take into

account the unique structure and purpose of the Warsaw

Convention. KAL’s analysis ignores the Convention’s

unique character, and thereby works a great injustice to

passengers on international flights.

A. The United States Congress has expressed no

opinion on the elements of recoverable dam-

ages under Article 17.

In recent years, this Court has relied heavily on Con-

gressional enactments to shape maritime jurisprudence.

The rationale behind this approach is understandable:

where Congress has spoken on a particular subject, the

courts should listen carefully. Even if a statute is not

directly applicable, courts should follow it closely if it

seems to encompass the same subject matter as the case

under consideration. See e.g., Miles v. Apex Marine Corp.,

498 U.S. 19, 31 (1990).

For general maritime law wrongful death cases,

DOHSA and the Jones Act may indeed provide Congres-

sional guidance on the elements of recoverable damage.*

There is no significant difference, for example, between

* This proposition is not free from all doubt. See American

Export Lines, Inc. v. Alvez, 447 US. 274, 283 (1980).

the stabbing death of a sailor on the high seas (covered by

DOHSA), the death of a sailor due to negligence at any

location (covered by the Jones Act), and the stabbing

death of the sailor in Miles that occurred while his vessel

was in port (not directly covered by any statute). It makes

some sense to borrow a statute to shape general maritime

law in a case like Miles.

In a case governed by the Warsaw Convention, how-

ever, the analysis used in Miles breaks down. The Warsaw

Convention has a $75,000.00 cap on damages that is

unknown to any maritime statute or any general mar-

itime jurisprudence. This damages cap was unheard of in

1920 when DOHSA and the Jones Act were debated and

enacted, and it is therefore impossible to say that Con-

gress has “directly spoken” on the subject of Muriel

Kole’s death.

In fact, Congress might well be shocked to learn that

its restrictive pecuniary loss statutes were being bor-

rowed in a Warsaw Convention case, where passengers

generally have an extremely limited recovery to begin

with. As noted in the Amici brief of Philomena Dooley et

al. (at pages 15-16), at least one Congressman, Senator

Robert Kennedy, expressed grave concern that the War-

saw Convention unduly restricted the recovery available

to international air travelers. Borrowing DOHSA and the

Jones Act is therefore a mistake in cases that are subject to

the Warsaw Convention’s unique system of liability

limits, because it is impossible to know whether or not

Congress would approve.

It must be remembered that, in adopting the Warsaw

Convention, Congress also adopted the Convention's

goal of uniform rules to govern international air trans-

port. Borrowing DOHSA’s damages rules would defeat

this Congressional purpose, because DOHSA says noth-

ing about deaths that occur on land, and a different rule

would have to be fashioned to cover aviation accidents

that do not occur on the high seas. Indeed, although KAL

correctly points out that most international air travel

occurs over water, it overlooks the fact that most interna-

tional air accidents occur over land. Sand, Limitation of

Liability and Passengers’ Accident Compensation Under the

Warsaw Convention, 11 Am. J. of Comp. Law 21, 25 (1962)

(of 40 American cases dealing with passenger death or

injury in international air carriage, only 6 occurred on the

high seas).

In its Amicus brief, Pan American World Airways

suggests that DOHSA should be borrowed for all Warsaw

Convention accidents, whether they occur over land or

water (Pan American brief at page 28). Although this

approach might produce some uniformity, it stretches the

rationale of Miles far past the’ breaking point. Pan Am

takes the following logic from Miles:

1. A Congressional enactment that applies to

the negligence death of a sailor should properly

be borrowed to cover a general maritime death

action brought by a sailor on unseaworthiness

grounds;

and transforms it into the following:

2. A statute enacted in 1920 to govern deaths

that occur aboard ships on the high seas should

be borrowed to govern the death of airline pas-

sengers who are killed when their airplane

crashes into land.

10

Rather than following such strained reasoning, this

Court should recognize that Congress has not directly

spoken on the subject of international aviation accidents.

It would be a legal fiction to suggest that DOHSA

“speaks” to the death of Muriel Kole.

B. Freed from the shackles of DOHSA and the

Jones Act, this Court should permit recovery of

loss of society damages under the Warsaw Con-

vention.

Because DOHSA and the Jones Act are incompatible

with the Warsaw Convention, this Court is writing on a

clean slate. Loss of society can and should be compens-

able under Article 17 of the Warsaw Convention. There

are three reasons for this.

First, stare decisis. This Court has already observed

that federal damages law is not stagnant, but must evolve

as public policies change (so long as it is not constrained

by Congressional enactments). See Sea-Land Services, Inc.

v. Gaudet, 414 U.S. 573, 583 (1979). In Gaudet and in Alvez,

loss of society was recognized as a feature of federal

damage law where DOHSA and the Jones Act have no

role to play.

Second, deterrence. KAL takes the position that com-

pensatory damages have no deterrent value (KAL brief at

page 30, n. 34). This is untrue. A party that is potentially

liable for compensatory damages will always try to be

careful and avoid any such liability. The higher the poten-

tial exposure, the greater the incentive to be careful.

11

In this case, of course, Muriel Kole was killed not just

because KAL was careless, but because the airline com-

mitted willful misconduct. To limit KAL’s liability to

pecuniary damages would greatly impair the deterrent

value of the Warsaw Convention, which lifts the damages

cap in cases of willful misconduct.

Third, uniformity. By fashioning a unique body of

damage law applicable to all Warsaw Convention cases

brought in United States courts (whether the accident

occurred over land or water), this Court will promote the

Warsaw Convention's goal of uniformity.

Finally, this Court should reject the Second Circuit's

decision to limit loss of society damages to financially

dependent relatives. A surviving family member who

works hard to earn a living should not have fewer rights

than one who does not. Nothing ir the language, history,

or purpose of the Warsaw Convention supports such a

limitation on damages.

°

oa

CONCLUSION

For the reasons discussed in this brief and in the

Petitioners’ principal brief, the judgment of the Court of

Appeals on the issue of loss of society damages should be

vacated, and the judgment of the District Court awarding

12

loss of society damages to Zicherman and to Mahalek

should be affirmed.

Respectfully submitted,

The Petitioners/

Cross-Respondents,

Marjorie Zicherman

and Muriel Mahalek,

by their attorneys,

W. Paut NeepHaAmM

Kevin M. Henstey

NeepHAM & WARREN

10 Liberty Square

Boston, MA 02109

(617) 482-0500