Petition for Writ of Certiorari — Dooley v. Korean Air Lines Co.

UVouTm, v-o.

() ~ FILED

O97 704 0CI 2209)

OFFICE OF THE CLERK

No.

In The

Supreme Court of the United States

October Term, 1997

*

PHILOMENA DOOLEY, et al.

- Petitioners,

KOREAN AIR LINES CO., LTD.

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

°

PETITION FOR WRIT OF CERTIORARI

¢

JuUANtITA M. MaApDo_Le

(Counsel of Record)

SpeIseR, Krause, MApoLte & Cook

One Park Plaza, Suite 470

Irvine, California 92614

(714) 553-1421

Attorney for the Petitioners

COCKLE LAW PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review are:

Does the general maritime law of the United States

recognize a survival cause of action for predeath pain and

suffering? If yes, may it be brought simultaneously with a

separate wrongful death cause of action governed by the

Death on the High Seas Act?

ii

LIST OF PARTIES IN THE

PROCEEDING BELOW

A. PETITIONER

Petitioners are Philomena Dooley, Personal Reprresen-

tative of the Estate of Cecelio Chuapoco; Robert B3oyar,

Executor of the Estates of Michael Truppin andy Jan

Moline; Carl Cole, Personal Representative of the Epstate

of Woon Kwang Siow; and Kimberly S. Saavedra, per-

sonal Representative of the Estate of Jan Hjalmatrrson,

B. RESPONDENT

Respondent Korean Air Lines Co., Ltd. is a mesmber

of the Hanjin Group of Korea, which comprises ¢om-

panies under common management direction. Thhe 23

affiliated companies of the Hanjin Group are:

Hanjin Transportation Co., Ltd.

Hanil Development Co., Ltd.

Hanjin Shipping Co., Ltd.

Jungsuck Enterprise Co., Ltd.

Korea Air Terminal Service Co., Ltd.

Air Korea Co., Ltd.

Jedong Industries, Ltd.

Hanjin Travel Service Co., Ltd.

Hanjin Construction Co., Ltd.

Korea Freight Transportation Co., Ltd.

Hanjin Data Communications Co., Ltd.

Hanil Leisure Co., Ltd.

Hanjin Information Systems &

Telecommunications Co., Ltd.

Pyung Hae Mining Development Co., Ltd.

Cheju Mineral Water Co., Ltd.

Union Express, Ltd.

Hanjin Heavy Industries Co., Ltd.

LIST OF PARTIES IN THE

PROCEEDING BELOW - Continued

Femtco Shipping Co., Ltd.

Oriental Fire & Marine Insurance Co., Ltd.

Korean French Banking Corporation-SOGEKO

Hanjin Investment & Securities Co., Ltd.

Inha University Foundation

Jungsuck Foundation

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

LIST OF PARTIES IN THE PROCEEDING BELOW ..._ ii

Re, GR 6 0 cheb sb ceci beesiedivccedccens ii

BR —_ ES re ey Pe ere ii

TABLE OF AUTHORITIES .............:cceeeeeees vi

PETITION FOR WRIT OF CERTIORARI............ 1

Es Snccoccccevducestetsccuncedtss 1

SD ndb on cdncdndounbbeteseccdetnceesndéec 1

PROVISIONS OF LAW INVOLVED ................ 1

DERG GEE CEE Getic ccvcwccecccccccccccese 2

A. NATURE OF THE CASE .................... 2

Dy CE wddckccccccccccccesccss 3

1. The Rulings of the District Court ........ 3

2. The Zicherman Decision .................. 4

3. Post-Zicherman Circuit Court Decisions... 6

4. The Decision in the Court Below......... 7

REASONS FOR GRANTING THE PETITION....... 8

REE bob cbdbdccecedsecécénundvcdes cescscees 10

I. THE SURVIVAL CAUSE OF ACTION IS NOT

RF Ee acc ccncdccsdecececccccce 11

A. THE SURVIVAL CAUSE OF ACTION IS A

REMEDY SEPARATE AND DISTINCT

FROM WRONGFUL DEATH REMEDIES .. 11

Vv

TABLE OF CONTENTS - Continued

Page

B. GENERAL MARITIME LAW PROVIDES

FOR A SURVIVAL ACTION FOR PRE-

DEATH PAIN AND SUFFERING.......... 14

C. DOHSA ADDRESSES ONLY WRONGFUL

DEATH CLAIMS AND NOT SURVIVAL

PETES GATED cece ccccccccccsccescoces 16

Il. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONFLICTS IN THE CIRCUITS

WHETHER A GENERAL MARITIME LAW

SURVIVAL ACTION EXISTS AND WHETHER

IT MAY BE JOINED WITH A WRONGFUL

DEATH ACTION UNDER DOHSA............ 20

Ill. CERTIORARI SHOULD BE GRANTED TO COR-

RECT THE DISTRICT OF COLUMBIA CIR-

CUIT’S MISAPPLICATIONS OF THIS COURT’S

DECISION IN MOBILE OIL CORP., MILES AND

FEED oc cc cescssccccvdescccveccessévcces 21

SEPSIS cecccccccccccccccccccccesescocesetes 23

vi

TABLE OF AUTHORITIES

Cases

Anderson v. Whitaker Corp., 894 F.2d 804 (6th Cir.

PoeEpevenveccecdetenceeses dahecesesnesesenconssecs 15

Azzopardi v. Ocean Drilling and Exploration Co., 742

F.2d 890 (Sth Cir. 1984).......... 6. ccc cee eeuee passim

Barbe v. Drummond, 507 F.2d 794 (CA1, 1974).... passim

Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir.

1996), amended on reh'g 96 F.3d 151 (1996) WL

490375, 1996 U.S. App. LEXIS 9857 (6th Cir.

RAM, TB WEG oc ccccccccccsesseeccsscctdvescsccess 6

Bowden v. Korean Air Lines, 814 F.Supp. 592 (E.D.

Mich. 1993), rev'd sub nom. Bickel v. Korean Air

Lines, 83 F.3d 127 (6th Cir. 1996), amended on

reh’g 96 F.3d 151 (1996) WL 490375, 1996 U.S.

App. LEXIS 9857 (6th Cir. Aug. 29, 1996).......... 5

Calhoun v. Yamaha Motor Corp., 40 F.3d 622 (3d Cir.

Bc oc vceccccccsndcvcevevccensescocasédbscnteepe 13

Cantore v. Blue Lagoon Water Sports, Inc., 799

F.Supp. 1151 (S.D. Fla. 1992)...............000005. 15

Chute v. United States, 466 F.Supp. 61 (D. Mass.

GIVE ccvcccccccccecoeseccescctessscsececesess passim

Complaint of Merry Shipping, Inc., 650 F.2d 622 (5th

Ge BED deecccccccncccccescccessvcsesscoecccecccs 15

Dooley v. Korean Air Lines, 117 F.3d 1477 (D.C. Cir.

BROT PnccccccccccccsPeccccccscccesceccescccces passim

Ephraimson-Abt v. Korean Air Lines Co., Ltd., No.

SP GED ov cccccccccccccccccesetoccccccess 6

Evich v. Connelly, 759 F.2d 1432 (CA9, 1985).......... 8

Favoloro v. S/S Golden Gate, 687 F.Supp. 475 (N.D.

Ge, DEP ccc vdsccvcccseccccccsccscteesescvesccces 21

vii

TABLE OF AUTHORITIES - Continued

Page

Forman v. Korean Air Lines, 84 F.3d 446 (D.C. Cir.

1996), cert. denied, 117 S.Ct. 584 (1997)............. 6

Gray v. Lockheed Aeronautical Systems Co., 880

F.Supp. 1559 (N.D. Ga. 1995) .............. 15, 17, 21

Greene v. Vantage Steamship Corp., 466 F.2d 159 (4th

Et DUPE odenncdecandesacnsduedsvedosedesvecccecs 15

In Re Aircrash Disaster Near Honolulu, Hawaii on

February 24, 1989, 783 F.Supp. 1261 (N.D. Cal.

See A Ua bdcneterdé ct cbddeiul¥ctevels dudsbececes 5, 17

In Re Inflight Explosion on TWA Aircraft Approach-

ing Athens, Greece on April 2, 1986, 778 F.Supp.

625 (E.D.N.Y. 1991), rev'd on other grounds, 975

F.2d 35 (2nd Cir. 1992), cert. denied, 507 U.S. 1051

PAS SUCCbOarodesbnsensesesedeusbesedevccesocece 5

In Re Korean Air Lines Disaster of September 1, 1983,

932 F.2d 1475, 289 U.S. App. D.C. 391 (D.C.

Cir.), cert. denied, sub nom. Booley v. Korean Air

RAED, TEs WE. SEO CHS EP ccc ccccccccccsovcccceses 3, 4

Kuntz v. Windjammer “Barefoot” Cruises Ltd., 573

F.Supp. 1277 (W.D. Pa. 1983)..............005. passim

Law v. Sea Drilling Corp., 523 F.2d 793 (CA5, 1975)

JandpehASOSESC CSR ERE CEREUS ROdKocereeeanté 8, 15, 17, 21

McAleer v. Smith, 791 F.Supp. 923 (D.R.I.

Pees eoAscvecdccccncvvsseccsesceessennszes 15, 17, 21

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

Miles v. Melrose, 882 F.2d 976 (5th Cir. 1989) rev'd

on other grounds, 498 U.S 19 (1990). .13, 15, 18, 20, 22

Mobile Oil Corp. v. Higginbotham, 98 S.Ct. 2010

GUE cv ccccccveccevecevescvcucs¥eosees 16, 17, 18, 21

viii

TABLE OF AUTHORITIES - Continued

Mobile Oil Corp. v. Higginbotham, 436 U.S. 618

(IOTED .. cccccccccvcccccccccvesccecosecesocvessoseves 9

Moragne v. States Marine Lines, 398 U.S. 375 (1970) . . passim

Newhouse v. United States, 884 F.Supp. 1389

SRT TITTI TIT TT TTT te 16

Oldham v. Korean Air Lines, __ F.3d __ (D.C. Cir.

1997), 1997 U.S. App. LEXIS 26102................. 6

Ospina v. Trans World Airlines, 778 F.Supp. 625

(E.D.N.Y. 1991), rev'd on other grounds, F.2d

SB CAB Che, BODE) on cccccccccccccccccccsscccvccs 11, 14

Rye v. United States Steel Mining Co., 856 F.Supp.

274 (E.D. Va. 1994) ..... 60. cece cece eee eeees 15, 17, 21

Saavedra v. Korean Air Lines, No. 84-9324 et seq.

(C.D. Cal. Jul. 16, 1993), rev'd in relevant part, 93

F.3d 547 (9th Cir. 1996), cert. denied, 117 S.Ct. 584

CODETD o ccccccccccscccccscsanensecatesécestoses 5, 6, 7

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

CRRPED o ccnvncovessescesennsesesese 9, 10, 11, 14, 15, 20

Self v. Great Lakes Dredge and Dock Co., 832 F.2d

BBGD CRB GOR BETP De cc cc cccccccccccccsccccccccecs 15

Spiller v. Thomas M. Lowe, Jr. & Assoc., Inc., 466

F.2d 909 (CA8, 1972) .........eeeeeeeees 8, 15, 16, 21

Walstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d

f f- B Fay Serer Teer 13

Yamaha Motor Corp. v. Calhoun, 116 S.Ct. 619

GRDUEED cnccacccescnccesessevevscscoess 8, 10, 12, 19, 20

Zicherman v. Korean Air Lines, 116 S.Ct. 629 (1996) . . passim

ix

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Death on the High Seas Act (DOHSA), 41 Stat. 537 .

(1988 ed.), 46 U.S.C. App. § 761 et seq. 1988 .. passim

Diversity of Citizenship Jurisdiction, 28 U.S.C.

rr ehdecidesiuth banded neneenndegeuéenss-ceeses 1

Federal Question Jurisdiction, 28 U.S.C. § 1331....... 1

The Jones Act, 46 U.S.C. App. § 688 et seq. ......... 16

Warsaw Convention, formally known as The Con-

vention for Unification of Certain Rules Relat-

ing to International Transportation by Air, 49

Stat. 3000, T.S. No. 876 (1934), reprinted in 49

ee OF GE Gc vec cccccccsconececccocees passim

OTHER AUTHORITIES

Speiser, Krause & Madole, Recovery for Wrongful

Death and Injury 3d § 3:1, § 3:2 (3d edition, 1992) .... 12

—

= we

ee

_- 77

ot

~~

PETITION FOR WRIT OF CERTIORARI

Petitioner Philomena Dooley, et al., respectfully

requests that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the District of Columbia Circuit entered on July 11,

1997.

OPINIONS BELOW

The opinion of the Court of Appeals for the District

of Columbia Circuit is reported at 117 F.3d 1477 (D.C. Cir.

1997). It is also reproduced in the Appendix to this Peti-

tion at Ala-15a.

JURISDICTION

The judgment of the Court of Appeals was entered

on July 11, 1997 and Petitioner’s timely Petition for

Rehearing and Suggestion for Rehearing En Banc was

rejected on August 28, 1997. Al6a-17a. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1). Jurisdic-

tion in the Court of first instance was pursuant to 28

U.S.C. § 1331, Federal Question Jurisdiction, and 28

U.S.C. § 1332, Diversity of Citizenship Jurisdiction.

¢

PROVISIONS OF LAW INVOLVED

This case arises under the Warsaw Convention, for-

mally known as The Convention for Unification of Cer-

tain Rules Relating to International Transportation by Air,

49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C.

§ 40105 note. Because the locus of the deaths was on the

high seas, the survival cause of action is governed by

general maritime law and the wrongful death cause of

action is governed by the Death on the High Seas Act

(DOHSA), 41 Stat. 537 (1988 ed.), 46 U.S.C. App. § 761 et

seq. 1988.

°

STATEMENT OF THE CASE

A. Nature of the Case

Decedents Cecilio Chuapoco, Michael Truppin, Jan

Moline, Woon Kwang Siow and Jan Hjalmarrson were

passengers on board KAL Flight KE007 on September 1,

1983 and were killed when the aircraft was shot down

after having overflown airspace of the former Soviet

Union. Each of the passengers was killed as the aircraft

ultimately crashed into the Sea of Japan approximately 12

minutes after damage was incurred from shrapnel that

was fired from a military jet. The passengers were all

travelling on tickets such that the resulting claims are

governed by the Warsaw Convention. The respective Per-

sonal Representatives of each decedents’ estates brought

separate survival causes of action on behalf of the estate

and, in their fiduciary capacities, on behalf of the bene-

ficiaries in wrongful death causes of action.

B. DISPOSITION BELOW

1. The Rulings of the District Court

All cases arising out of the KE007 disaster were

consolidated in the District Court before Honorable

Aubrey E. Robinson, Jr. for a single trial on liability. In

1989, a jury found that Korean Air Lines had committed

“willful misconduct” so that the Warsaw limitation on

damages were inapplicable, which finding was upheld by

the District of Columbia Circuit on appeal. See generally,

In Re Korean Air Lines Disaster of September 1, 1983, 932

F.2d 1475, 289 U.S. App. .C. 391 (D.C. Cir.), cert. denied

sub nom. Dooley v. Korean Air Lines, 502 U.S. 994 (1991).

After liability was resolved, the District Court remanded

all of the actions that had not originally been filed in the

District Court for the District of Columbia to the originat-

ing Courts and proceeded with motions practice on dam-

ages issues for the approximately 24 claims that remained

in the District Court for the District of Columbia.

In pretrial motions, KAL requested the court to rule

that DOHSA alone governed the claims and to dismiss all

nonpecuniary damages. The District Court denied the

motion on the grounds that the Warsaw Convention and

DOHSA both were implicated in the cases and that Arti-

cle 17 of the Warsaw Convention permitted recovery for

“damage sustained.” In Re Korean Air Lines Disaster of

September 1, 1983, Nos. 83-3587, __ FSupp. __ (D.C.

April 8, 1993) (In Re KAL-D.C. I).

The District Court then proceeded to try damages

cases for several decedents and those cases proceeded on

appeal to the United States Court of Appeals for the

District of Columbia Circuit. There were, however, the

claims for the Chuapoco, Hjalmarsson, Truppin, Moline

and Siow decedents still pending in the District Court

when this Court accepted certiorari in Zicherman v. Korean

Air Lines, 116 S.Ct. 629 (1996). When this Court accepted

certiorari in Zicherman, the District Court stayed further

proceedings in those cases pending resolution of the

Zicherman issues. After the Zicherman decision was pub-

lished, Korean Air Lines moved the District Court for

summary judgment to dismiss the survival action clairas

for the decedents’ predeath pain and suffering. The Dis-

trict Court granted the motion and the plaintiffs

appealed. The Court of Appeals for the District of Colum-

bia Circuit affirmed. Dooley v. Korean Air Lines, 117 F.3d

1477 (D.C. Cir. 1997). This Petition requests review of that

decision.

2. The Zicherman Decision

in an action arising from the KAL KE007 disaster

which was remanded by the District Court for the District

of Columbia to the United States District Court for the

Southern District of New York! which was tried there and

which then proceeded through the Second Circuit appel-

late process,? this Court agreed in 1994 to hear a Petition

for Writ of Certiorari on the issue whether loss of society

damages were available in a Warsaw Convention case in

which the death occurred on the high seas. Zicherman v.

' The District Court Order addressing damage issues is

reported at In Re Korean Air Lines Disaster of September 1, 1983,

807 F.Supp. 1073 (S.D.N.Y. 1992).

2 See, Zicherman v. Korean Air Lines Co., Ltd., 43 F.3d 18 (2nd

Cir. 1994), rev'd 116 S.Ct. 629 (1996).

Ey ee a TET

Korean Air Lines, 116 S.Ct. 629 (1996). Zicherman held that

Article 17 of the Warsaw Convention was merely a pass-

through and that whatever damages law would ordi-

narily be applied should be applied in Warsaw-governed

cases. Id. at 636. For deaths that occur on the high seas,

according to Zicherman, DOHSA is the source of wrongful

death remedies. Zicherman did not address the separate

and independent survival cause of action created under

general maritime law for predeath pain and suffering.

Zicherman substantively changed the state of the law

as it related to the source of remedies for actions arising

under the Warsaw Convention. Prior to Zicherman, all

decisions addressing the issue had found the source of

the remedies to be the treaty itself with the particulars to

be defined by reference to federal common law.* After

Zicherman, the courts must find an independent tort

source on which to base recovery.

3 See, e.g. Bowden v. Korean Air Lines, 814 F.Supp. 592, 598

(E.D. Mich. 1993), rev'd sub nom. Bickel v. Korean Air Lines, 83 F.3d

127, 132 (6th Cir. 1996), amended on reh’g 96 F.3d 151 (1996) WL

490375, 1996 U.S. App. LEXIS 9857 (6th Cir. Aug. 29, 1996);

Saavedra v. Korean Air Lines, No. 84-9324 et seq. (C.D. Cal. Jul. 16,

1993), rev'd in relevant part, 93 F.3d 547 (9th Cir. 1996), cert.

denied, 117 S.Ct. 584 (1997); In Re Inflight Explosion on TWA

Aircraft Approaching Athens, Greece on April 2, 1986, 778 F.Supp.

625, 637 (E.D.N.Y. 1991), rev'd on other grounds, 975 F.2d 35 (2nd

Cir. 1992), cert. denied, 507 U.S. 1051 (1993); In Re Aircrash

Disaster Near Honolulu, Hawaii on February 24, 1989, 783 F.Supp.

1261, 1264 (N.D. Cal. 1992).

3. Post-Zicherman Circuit Court Decisions,

When this Court accepted certiorari in Ziccherman,

there were KAL damages cases pending in the Sixth

Circuit (Bickel v. Korean Air Lines*), the Ninth Circuit

(Saavedra v. Korean Air Lines5) and the District of Colum-

bia Circuit (Forman v. Korean Air Lines®; Oldham wv», Korean

Air Lines’). As well as the within actions pending in the

D.C. District Court, one action (Ephraimson-Abt vw. Korean

Air Lines Co., Ltd.) is pending in the Southern Dijstrict of

New York, and one action (Saavedra v. Korean Air Lines) is

pending in the Central District of California.

In Bickel, the Sixth Circuit originally held that there

was no right to recover for predeath pain and suffering.

In an amended decision on August 29, 1996, however, the

Sixth Circuit reversed itself and held that Korean Air

Lines had not properly preserved the issue on appeal by

failing to raise it in initial briefs. Bickel v. Korean Ajr Lines,

83 F.3d 127 (6th Cir. 1996), amended on reh’g, 96 F.3d 151

(1996) WL 490375, 1996 U.S. App. LEXIS 9857 (6th Cir.

Aug. 29,1996).

The District of Columbia Circuit Court decided For-

man, supra, and Oldham, supra, and held that Korean Air

* Subsequently reported at 83 F.3d 127 (6th Ciir. 1996),

amended on reh’g, 96 F.3d 151 (1996) WL 490375, 1996 U.S. App.

LEXIS 9857 (6th Cir. Aug. 29, 1996).

5 Subsequently reported at 93 F.3d 547 (9th Cir. 1996), cert.

denied, 117 S.Ct. 584 (1997).

6 Subsequently reported at 84 F.3d 446 (D.C. Cir. 1996), cert.

denied, 117 S.Ct. 584 (1997).

7 Subsequently decided on September 23, 1997, ___ F.3d ___

(D.C. Cir. 1997), 1997 U.S. App. LEXIS 26102.

ee,

lines had not preserved its right to challenge the survival

action award as it had not raised the issue in the initial

briefs.

The Ninth Circuit permitted KAL to overcome its

procedural deficiencies by substantively addressing the

issue. The Ninth Circuit erroneously misapplied Zicher-

man by not distinguishing between survival action

remedies and wrongful death remedies, and disallowed

the predeath pain and suffering verdict. Saavedra v.

Korean Air Lines, 93 F.3d 547 (9th Cir. 1996), cert. denied,

117 S.Ct. 582 (1997).

4. The Decision in the Court Below

Claims on behalf of five decedents remained in the

court below after Zicherman. Korean Air Lines moved in

the District Court to dismiss all claims for nonpecuniary

damages. On June 4, 1996, the court entered its decision.

Under the direction of Zicherman, the District Court pro-

ceeded with a choice of law analysis and concluded that

United States law should be applied and that DOHSA

was the applicable wrongful death substantive law.

The D.C. Circuit disallowed general maritime law

survival action damages for pain and suffering on the

grounds that Zicherman held that DOHSA provided the

exclusive remedy for damages and that its remedies can-

not be supplemented with general maritime principles.

The Court improperly failed to distinguish between

wrongful death remedies and survival action remedies.

Philomena Dooley, Kimberly S. Saavedra, Robert

Boyar, Carl Cole as Personal Representatives of the

Estates of Cecilio Chuapoco, Jan Hjalmarrson, Michael

Truppin, Jan Moline and Woon Kwang Siow, respectively,

now petition this Court for writ of certiorari.

°

REASONS FOR GRANTING THE PETITION

There are three compelling grounds for this court to

grant certiorari and review the decision below.

1. A clear conflict now exists among circuit courts

as to whether a general maritime law survival cause of

action for a decedent's predeath pain and suffering exists

and, if so, if it may co-exist with a wrongful death cause

of action under the Death on the High Seas Act. As this

Court noted in Miles v. Apex Marine Corp., 498 U.S. 19

(1990), several Courts of Appeals have identified that

there is a general maritime right of survival. Id. at 34,

citing Spiller v. Thomas M. Lowe, Jr. & Assoc., Inc., 466 F.2d

909 (CA8, 1972); Barbe v. Drummond, 507 F.2d 794, 799-800

(CA1, 1974); Law v. Sea Drilling Corp., 523 F.2d 793, 795

(CA5, 1975); Evich v. Connelly, 759 F.2d 1432 (CA9, 1985).

And in Yamaha Motor Corp. v. Calhoun, 116 S.Ct. 619, 625

n.7 (1996), this Court assumed without deciding that a

general maritime law survival cause of action is created

by Moragne v. States Marine Lines, 398 U.S. 375 (1970),

citing Miles, supra. Given that this Court has never

directly addressed the issue, the Courts of Appeals for

the First, Fifth and Eighth Circuits have taken guidance

from the Court’s inferences in Miles and Moragne and

identified a general maritime survival action. The District

of Columbia Circuit’s decision, unlike those of all other

Circuits except the Ninth, ignores the distinction between

en ee ee >

——

the survival cause of action and the wrongful death cause

of action, which this Court has itself specifically identi-

fied. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 575-76,

n.2 (1974).

2. The decision below misapplied this Court’s opin-

ions in Mobile Oil Corp. v. Higginbotham, 436 U.S. 618

(1978) and Zicherman, each of which addressed only

wrongful death remedies, by focusing solely on

DOHSA’s limitations on nonpecuniary damages to the

improper exclusion of the separate survival cause of

action. The misinterpretation will cause significant confu-

sion among the lower courts unless clarified by this court.

3. There are still several cases pending in the Dis-

trict and Circuit Courts arising from the KAL disaster

that would benefit from this Court’s answer to the issues

raised. Moreover, the Death on the High Seas Act may

arguably be applied to claims arising from the TWA

Flight 800 disaster which occurred off the coast of new

York on July 17, 1996 in which 230 persons perished. That

flight was also governed by the Warsaw Convention.

Potentially 230 wrongful death and survival claims may

be brought in United States courts. The issues raised are

not isolated or scarce cases. This Court should provide

definitive guidance on the elements of damage to prevent

conflicting and inconsistent results.

e

10

ARGUMENT

This Court has never directly addressed the issue

whether a general maritime law survival action exists for

predeath pain and suffering, but has strongly implied at

least three times that there is. See, Sea-Land Services, Inc. v.

Gaudet, 414 U.S. 573, 575-76 n.2 (1974) (“Wrongful death

statutes are to be distinguished from survival statutes.”);

Miles v. Apex Marine Corp., 498 U.S. 19, 34 (1990) (noting

that several courts of appeal have identified a general

maritime survival cause of action for predeath pain and

suffering as such claims have been “widely accepted.”);

Yamaha Motor Corp v. Calhoun, 116 S.Ct. 619, 625 n.7

(assuming without deciding that a general maritime sur-

vival action is created by Moragne v. States Marine Lines,

398 U.S. 375 (1970).)

In light of this Court’s broad inferences that a general

maritime law survival action exists, the First, Second,

Fifth and Eighth Circuits have identified common law

survival causes of action for predeath pain and suffering.

Only the District of Columbia Circuit and Ninth Circuit

have departed from that posture. Prior to this case, the

District of Columbia Circuit had not previously

addressed the issue, but should have repudiated the

Ninth Circuit analysis and adopted that of the First,

Second,® Fifth and Eighth Circuits and established that

there exists a general maritime law survival cause of

action for predeath pain and suffering.

8 The Second Circuit Zicherman decision held that federal

maritime law supplied the measure of damages but did not

specifically apply it to the pain and suffering claim as KAL has

not challenged the legal basis to assert the claim on appeal.

11

THE SURVIVAL CAUSE OF ACTION

IS NOT AFFECTED BY DOHSA

A. THE SURVIVAL CAUSE OF ACTION IS A REM-

EDY SEPARATE AND DISTINCT FROM WRONG-

FUL DEATH REMEDIES.

Courts have consistently recognized that survival

causes of action for pre-death pain and suffering are

separate and distinct from claims for wrongful death.

Each kind of remedy is designed to compensate for differ-

ent kinds of loss. Moragne, supra, 398 U.S. at 381 (a single

tortious act might result in two distinct harms giving rise

to two separate causes of action, ¢.g., a survival cause of

action and wrongful death cause of action.); Sea-Land

Services, Inc., supra, 414 U.S. at 578; Azzopardi v. Ocean

Drilling and Exploration Co., 742 F.2d 890, 893 (5th Cir.

1984), citing Sea-Land Services, Inc., supra at 573, 575 n. 2;

Kuntz v. Windjammer “Barefoot” Cruises, Ltd., 573 F.Supp.

1277, 1284-85 (W.D. Pa. 1983); Chute v. United States, 466

F.Supp. 61, 62 (D. Mass. 1978); Ospina v. Trans World

Airlines, 778 F.Supp. 625, 629 (E.D.N.Y. 1991), rev'd on

other grounds, 975 F.2d 35 (2d Cir. 1992).

On the one hand, the wrongful death cause of action

is designed to compensate the beneficiaries of the dece-

dent for the losses that they th» mselves have sustained as

a result of the decedent’s death. Typically the elements of

damages in a wrongful death claim include loss of sup-

port; loss of financial contributions; loss of parental

advice, guidance, and training; loss of inheritance; loss of

services; and, in many instances, nonpecuniary damages

for loss of society. Azzopardi, supra, 742 F.2d at 893; Kuntz,

—

12

supra, 573 F.Supp. at 1284; Chute, supra, 466 F.Supp. 62.

Depending on the statute involved, the plaintiff(s) may

be the individual beneficiaries themselves or the personal

representative of the estate, who holds the cause of action

in a fiduciary capacity to distribute to the beneficiaries in

accordance with provisions of the death statute or intes-

tacy laws, as the case may be. The personal representa-

tive, as an entity, has no claim. See, generally, Speiser,

Krause & Madole, Recovery for Wrongful Death and Injury

3d § 3:1, § 3:2 (3d edition, 1992).

On the other hand, the survival cause of action is

designed to compensate the personal representative of

the decedent’s estate (as the replacement holder of the

claim after the injured person dies) for damages that the

decedent himself could have recovered but for his death.

Azzopardi, supra, at 893; Chute, 466 F.Supp. at 52; Kuntz,

supra, at 1284.

This Court, in Yamaha Motor Corp. v. Calhoun, 116

S.Ct. 619, 113 L.Ed.2d 578, 64 USLW 4048 (1996), aff'd, 40

F.3d 622 (3d Cir. 1994), recently affirmed the decision by

the Court of Appeals for the Third Circuit, which deci-

sion included the following succinct explanation of the

distinction between the wrongful death cause of action

and the decedent's action for pain and suffering preced-

ing death:

. . . Throughout the previous discussion of the

case law, reference has been made to wrongful

death actions and to survival actions. Although

they are often lumped together without any dis-

tinction . . . they are, in fact, quite distinct .. .

A wrongful death cause of action belongs to the

decedent’s dependents (or closest kin in the case

13

of the death of a minor). It allows the benefici-

aries to recover for the harm that they personally

suffered as a result of the death, and it is totally

independent of any cause of action the decedent

may have had for his or her own personal inju-

ries. Damages are determined by what the bene-

ficiaries would have “received” from the

decedent .. . A survival action, in contrast,

belongs to the estate of the deceased (although

it is usually brought by the deceased’s relatives

acting in a representative capacity) and allows

recovery for the injury to the deceased from the

action causing death. Under a survival action,

the decedent’s representative recovers for the

decedent’s pain and suffering, medical

expenses, lost earnings . . . and funeral expen-

ses . . . Calhoun v. Yamaha Motor Corp., 40 F.3d

622, 737-38 (3d Cir. 1994) (citations omitted;

emphasis by the Court).

Since the two kinds of actions (death and survival)

encompass separate and distinct measures of damages

and beneficiaries, “American courts have painstakingly

distinguished the two causes of action for many years.”

Kuntz, supra, 573 F.Supp. at 1285. Thus, the legislative

allowances and limitations contained in wrongful death

statutes (including DOHSA) simply do not address a

survival cause of action.

See, also, Miles v. Melrose, 882 F.2d 976, 985 (5th Cir.

1989), rev'd on other grounds, 498 U.S. 19 (1990); Walstrom

v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084, 1093 (2d Cir.

1993).

14

B. GENERAL MARITIME LAW PROVIDES FOR A

SURVIVAL ACTION FOR PRE-DEATH PAIN AND

SUFFERING.

At common law, it was generally believed that there

was no right to recover in a survival action for a dece-

dent’s pre-death pain and suffering once he/she were

killed, any more than it was believed that there was a

right to recover at common law for a wrongful death. In

Moragne, however, this Court indicated skepticism that

there was any legitimate historical basis for the denial of

a common law recovery for death and repudiated prior

decisions that invoked that unsubstantiated belief. 398

U.S. at 378-89.

Moragne established that general maritime law pro-

vided a cause of action for wrongful death in territorial

waters. In Moragne, this Court specifically noted that the

law of the United States could change by common accep-

tance among the states of a policy permitting recovery for

wrongful death, which policy itself becomes a part of

American jurisprudence. Id. at 390. Similarly, in the spirit

of Moragne, a survival cause of action must be acknowl-

edged under general maritime common law since the

majority of states permit some kind of survival actions

and all of those states which do permit survival action

permit recovery for conscious pre-death pain and suffer-

ing. Ospina, supra, 778 F.Supp. at 630. Barbe v. Drummond,

507 F.2d 795, 799-800 (1st Cir. 1974).

In Sea-Land, supra, 414 U.S. at 577-78, this Court

specifically noted that-Moragne had established the dis-

tinction between a cause of action for the person injured

to be made whole and a cause of action in the case of

15

death for the loss of his dependents, id. citing Moragne,

398 U.S. at 382. In Sea-Land, the decedent had been

severely injured and had recovered an amount for his

disability and pain and suffering before he died. He died

shortly after that action was terminated and his widow

brought a wrongful death action. Sea-Land moved to

dismiss the-death action, arguing there was no loss inde-

pendent of the decedents’ claim for his personal injuries.

This Court quickly rejected that argument, holding that

there was one claim personal to the injured person and a

separate, independent cause of action in the event of

death for the decedents’ dependents. Id.

Following Moragne, many federal circuit and district

courts relied on its rationale to hold that the general

maritime law encompassed a general maritime survival

action, one that permitted recovery for conscious pain

and suffering. See, e.g., Miles v. Melrose; Zicherman, supra,

43 F.3d at 23; Greene v. Vantage Steamship Corp., 466 F.2d

159, 166 (4th Cir. 1972). Barbe, supra, 507 F.2d at 799; Law

v. Sea Drilling Corp., 523 F.2d 793, 795 (Sth Cir. 1975);

Spiller v. Thomas M. Lowe, Jr. Associates, 466 F.2d 903, 909

(8th Cir. 1972); Self v. Great Lakes Dredge and Dock Co., 832

F.2d 1540, 1549 (11th Cir. 1987); Anderson v. Whitaker

Corp., 894 F.2d 804 (6th Cir. 1990); Complaint of Merry

Shipping, Inc., 650 F.2d 622, 623 (Sth Cir. 1981); Kuntz,

supra, 573 F.Supp. at 1284; Chute v. United States, supra,

466 F.Supp. at 69; McAleer v. Smith, 791 F.Supp. 923, 926

(D.R.I. 1992); Rye v. United States Steel Mining Co., 856

F.Supp. 274, 279 (E.D. Va. 1994); Cantore v. Blue Lagoon

Water Sports, Inc., 799 F.Supp. 1151, 1156 (S.D. Fla. 1992);

Gray v. Lockheed Aeronautical Systems Co., 880 F.Supp.

16

1559, 1569 (N.D. Ga. 1995); Newhouse v. United States, 884

F.Supp. 1389, 1393 (D.Nev. 1994).

The general maritime survival cause of action is sepa-

rate and distinct from, and ungoverned by, any wrongful

death remedy, whether the death remedy is DOHSA, the

Jones Act (46 U.S.C. App. § 688 et seq.), or a Moragne

cause of action.

C. DOHSA ADDRESSES ONLY WRONGFUL DEATH

CLAIMS AND NOT SURVIVAL ACTION CLAIMS.

DOHSA is a wrongful death statute and contains no

survival provision which leaves a legislative void which,

in turn, allows the general maritime law survival action

based on Moragne to supplement the wrongful death

remedies under DOHSA. This precept has been accepted

by the First Circuit (Barbe, supra), the Fifth Circuit

(Azzopardi, supra; Law, supra), the Second Circuit (Zicher-

man, supra), and, in the context of a Moragne death action,

by the Eighth Circuit (Spiller, supra). Only the District of

Columbia Circuit and the Ninth Circuit have rejected the

precept.

The District of Columbia Circuit Court’s reliance on

this Court’s decision in Mobil Oil Corp. v. Higginbotham, 98

S.Ct. 2010 (1978) to suggest that DOHSA precludes the

use of a general maritime law survival action to supple-

ment the recovery allowed under DOHSA is misplaced.

Al8a-19a. Higginbotham involved only the question of

whether nonpecuniary damages for loss of society could

be recovered in the death action under DOHSA by use of

general maritime law. This Court, speaking only to

remedies available in the death action, held that damages

17

recoverable under DOHSA could not be supplemented by

general maritime law to provide a recovery for loss of

society. Higginbotham addressed only the wrongful death

remedies, not the separate survival remedies. Virtually

every case decided after Higginbotham has limited its

holding to the wrongful death action, establishing that

the limitations of DOHSA for the death action have no

preclusive effect on a survival action even though the

injuries occur from the same circumstances that ulti-

mately caused the death on the high seas. Barbe, supra,

507 F.2d at 800. (“[Acknowledging a general maritime

survival action] also avoids a conflict with DOHSA, since

survival and wrongful death actions have long been rec-

ognized as distinct causes of action.” (citations omitted));

Azzopardi, supra, 742 F.2d at 893; Kuntz, supra, 573 F.Supp.

at 1285; Chute, supra, 466 F.Supp. at 69; McAleer, supra, 791

F.Supp. at 926-27; Gray, supra, 880 F.Supp. at 1569; Law; In

Re Air Crash Disaster Near Honolulu, Hawaii, 783 F.Supp.

1261, 1264 (N.D. Cal. 1992); Rye v. United States Steel

Mining Corp., 856 F.Supp. 274, 279 (E.D. Va. 1994).

Since DOHSA does not address a survival action for

pre-death pain and suffering, it leaves, in effect, a gap in

the coverage provided by DOHSA. As Justice Stephens

pointed out in Higginbotham, supra, “|t}here is a basic

difference between filling a gap left by Congress’ silence

and rewriting rules that Congress has affirmatively and

specifically enacted.” 98 S.Ct. at 2015. Because DOHSA is

a wrongful death statute and not a survival statute, the

federal courts are free to fill what otherwise would be a

legislative void by creating a federal survival action for

pain and suffering which would apply to persons who

were subsequently killed on the high seas by the same

18

events. See, e.g., Barbe, surpa, at 799-800; Chute, supra, 466

F.Supp. at 69; Azzopardi, supra, 742 F.2d at 893.

Subsequent to Higginbotham, this Court addressed

some of the issues relating to the general maritime sur-

vival cause of action in Miles, supra, an action brought

under the Jones Act and general maritime law. The

mother of a deceased seaman claimed a recovery under a

general maritime law survival action for the seaman’s

pre-death pain and suffering and for loss of his future

wages. The Fifth Circuit found that the survival cause of

action encompassed a right to recover for both the dece-

dent’s pre-death and suffering and for his lost future

wages. Id. 882 F.2d at 986. The Fifth Circuit confirmed the

survival cause of action for pain and suffering by follow-

ing the rationale of Moragne that, since almost all the

states and the Jones Act provided for a pre-death pain

and suffering claim under the survival action, such

remedies had become a part of common law through the

general maritime law.

On certiorari, this Court noted without criticism that

many Courts of Appeals had identified a general mar-

itime action surviving the death of a seaman because

survival actions had gained widespread acceptance. 498

U.S. at 34. This Court refused, however, to generally

address the breadth of the recovery under the survival

action, and limited its decision to the issue of whether

there was a right to recover for loss of future earnings. It

denied the loss of earnings recovery by noting that only a

few states permitted a recovery in a survival action for

lost future earnings. 498 U.S. at 35. This notation was by

way of comparison with the kind of “wholesale” and

“unanimous” policy judgment that was in effect in the

19

states of the United States that had prompted this Court

to create the new cause of action in Moragne. Id. at 34.

This Court reasoned that, since the considered judgment

of a large majority of American legislatures was to pre-

clude recovery for loss of future income in a survival

action, that recovery as a measure of damages had not

become the general law of the United States. In contrast,

where the clear majority of states and the Jones Act

permit a survival claim for pre-death pain and suffering,

it is reasonable that such a remedy has become the gen-

eral law of the United States. See, Azzopardi, supra, 742

F.2d at 893.

It is also significant that this Court commented with-

out criticism on the several lower Courts of Appeals’

reliance on the plethora of state survival statutes as dic-

tating a change in the general maritime rule against sur-

vival (id. at 34) and left undisturbed the survival action of

pre-death pain and suffering. If this Court felt that the

pain and suffering was a legally insufficient claim, or that

general maritime law did not include that remedy, it

could easily have addressed those issues in the context of

the decision it did reach as the issue was encompassed in

its grant of certiorari.

The underlying assumption, i.e., that there is and was

no common law right to recover for survival or death, has

been repudiated by Moragne. Moreover, this Court has

assumed that Moragne encompasses a survival action for

predeath pain and suffering. Yamaha Motor Corp., supra, at

116 U.S. at 625 n.7, thus acknowledging the distinction

between the two kinds of actions again.

20

The court below ignored this Court’s comments in

Gaudet, Miles and Yamaha Motor Corp., which discussed

survival action remedies, by focusing solely on Zicherman

and Higginbotham, which discussed only wrongful death

remedies. The court below erred in doing so.

CERTIORARI SHOULD BE GRANTED TO RESOLVE

CONFLICTS IN THE CIRCUITS WHETHER A GEN-

ERAL MARITIME LAW SURVIVAL ACTION EXISTS

AND WHETHER IT MAY BE JOINED WITH A

WRONGFUL DEATH ACTION UNDER DOHSA

Certiorari should be granted to determine that a gen-

eral maritime survival cause of action exists under an

analysis akin to that in Moregne, which identified a gen-

eral maritime law wrongful death cause of action. The

traditional maritime rule disallowing a survival right has

been changed by the widespread acceptance of a survival

cause of action for predeath pain and suffering. See,

Yamaha Motor Corp., supra 116 S.Ct. at 625 n.7 (1996)

(“ ... we assume without deciding that Moragne also

provides a survival action.”)

Once the Court identifies that a survival right exists,

it should resolve the conflict in the Circuits and hold

affirmatively that the survival action may co-exist with a

DOHSA death action and that DOHSA limitations on

nonpecuniary damages do not abrogate survival action

remedies.

As has been shown, the District of Columbia Circuit's

denial of a general maritime law survival cause of action

where the wrongful death cause of action arises under

21

DOHSA contravenes decisions exactly to the contrary in

the First Circuit, Barbe v. Drummond, 507 F.2d 794, 799-800

(1st Cir. 1974), and the Fifth Circuit, Azzopardi v. Ocean

Drilling and Exploration Co., 742 F.2d 890, 893 (5th Cir.

1984), Law v. Sea Drilling Corp., 523 F.2d 793, 794-95 (5th

Cir. 1975) each of which dealt with a survival action in

the context of the death action arising under DOHSA.®

The District of Columbia Circuit’s decision also contra-

venes the logic and legal analysis of the Eighth Circuit,

which permitted a general maritime survival action to be

joined with a Moragne general maritime death action. See,

Spiller v. Thomas M. Lowe, Jr. Assoc., Inc., 466 F.2d 903, 909

(8th Cir. 1972).

CERTIORARI SHOULD BE GRANTED TO CORRECT

THE DISTRICT OF COLUMBIA CIRCUIT’S MIS-

APPLICATIONS OF THIS COURT’S DECISION IN

MOBILE OIL CORP., MILES, AND ZICHERMAN

The rationale that the District of Columbia Circuit

used to substantiate its decision shows a fundamental

misperception of this Court’s decisions in Mobile Oil Corp.

% Several District courts have also found a general maritime

law survival cause of action which may be brought

simultaneously with a DOHSA death action; Gray v. Lockheed

Aeronautical Systems, 880 F.Supp. 1559, 1569 (N.D. Ga. 1995); Rye

v. United States Steel Mining Co., 856 F.Supp. 274, 279 (E.D. Va.

1994); Chute v. United States, 466 F.Supp. 61, 69 (D. Mass. 1978);

Kuntz v. Windjammer “Barefoot” Cruises, Ltd., 573 F.Supp. 1277,

1285 (W.D. Pa. 1983); Favoloro v. S/S Golden Gate, 687 F.Supp. 475,

479 (N.D. Cal. 1987); McAleer v. Smith, 791 F.Supp. 923 (D.R.I.

1992).

22

and Zicherman. Each of those decisions related to whether

a particular type of wrongful death element of damage was

available in a DOHSA wrongful death action, e.g., loss of

society. Here, the type of damage at issue, i.e., the recov-

ery for the decedent’s pain and suffering, is peculiarly a

survival action remedy, not a wrongful death remedy.

The District of Columbia Circuit also misapprehends

this Court’s decision in Miles, supra. The court correctly

read Miles as disallowing recovery of non-pecuniary

wrongful death damages under the general maritime law,

but failed to address its application to a separate survival

claim. The Miles Court indicated that several Circuits had

identified a general maritime survival action and cited

Circuit decisions that had found the right included claims

for predeath pain and suffering, which had been widely

adopted and accepted. 498 U.S. at 34. Indeed, the Miles

Court had been asked to do what petitioners now request

and to specifically acknowledge a general maritime sur-

vival action. Miles declined to do so only because it was

unnecessary to the narrow issue presented here. Id. Cer-

tiorari should be granted to answer this important ques-

tion that has been pending unanswered since Miles.

Lastly, the District of Columbia Circuit misap-

prehends the Court’s recent decision in Zicherman. The

Zicherman court addressed typical wrongful death dam-

ages. In this case, petitioner is not seeking to “supple-

ment” statutory wrongful death damages. Rather,

petitioner is seeking acknowledgment of the propriety of

asserting a distinct survival cause of action remedy with

23

whatever damages are permissible under the death cause

of action.

°

CONCLUSION

For the foregoing reasons, the Petition for Writ of

certiorari should be granted in all respects.

Dated: October 21, 1997

Respectfully submitted,

_ Spetser, Krause, Mapore & Cook

Juantrta M. Mapo.e

One Park Plaza, Suite 470

Irvine, CA 92614

(714) 553-1421

la

APPENDIX

Notice: This opinion is subject to formal revision

before publication in «he Federal Reporter or

U.S.App.D.C. Reports. Us2rs are requested to notify the

Clerk of any formal errors in order that corrections may

be made before the bound volumes go to press.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 1997 Decided July 11, 1997

No. 96-5278

In RE: Korean Arr Lines Disaster or Sepremser 1, 1983

PHILOMENA DOooLey, ET AL. Vv. Korean Air Lines Co., Lrp.

Appeal from the United States District Court

for the District of Columbia

(83ms00345)

Juanita M. Madole argued the cause and filed the

briefs for appellants.

Andrew J. Harakas arg»-ed the cause for appellee. With

him on the brief was George N. Tompkins, Jr.

Bills of costs must be filed within 14 days after entry of

judgment. The court looks with disfavor upon motions to file

bills of costs out of time.

2a

Before: Watp and Ranpovrn, Circuit Judges, and

Bucxtey, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Ran-

DOLPH.

RaNvowrH, Circuit Judge: On September 1, 1983, while

Korean Air Lines flight KE007 was en route from New

_York City to Seoul, South Korea, via Anchorage, Alaska, a

Soviet military aircraft shot down the airliner over the

Sea of Japan, killing all 269 people on board. We have

recounted details of the tragedy elsewhere. See In re

Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475,

1476-79 (D.C. Cir. 1991).

In the ensuing litigation, a joint liability trial on the

claims of 137 plaintiffs took place in the United States

District Court for the District of Columbia. A jury found

that Korean Air Lines had committed “willful miscon-

duct,” thus removing the Warsaw Convention's limita-

tions on liability. This court affirmed. Korean Air Lines

Disaster, 932 F.2d at 1479-84. (We did, however, vacate an

award of punitive damages. Id. at 1484-90.) The actions

were then remanded to the courts in which they had

originated for individual proceedings on compensatory

damages. This case comes to us as an interlocutory

appeal, pursuant to 28 U.S.C. § 1292(b), in five damages

actions that have not yet gone to trial.

Early in the damages phase of the litigation, the

district court rejected Korean Air Lines’s argument that

the Death on the High Seas Act, 46 U.S.C. App. § 761 et

seq., restricted the damages plaintiffs could recover. As

discussed later, the Act permits only certain surviving

relatives to recover “pecuniary” losses. The district court

3a

believed another law - Article 17 of the Warsaw Conven-

tion (see Convention for the Unification of Certain Rules

Relating to International Transportation by Air, Oct. 12,

1929, art. 17, 49 Stat. 3000, 3018) - “allows for the recov-

ery of all ‘damages sustained,’” meaning any “actual

harm” any party “experienced” as a result of the crash.

Thereafter, the Supreme Court reached a different conclu-

sion: the Warsaw Convention, rather than providing a

measure of damages, “permit|s] compensation only for

legally cognizable harm, but leave[s] the specification of

what harm is legally cognizable to the domestic law

applicable under the forum’s choice-of-law rules.” Zicher-

man v. Korean Air Lines Co., 116 S. Ct. 629, 637 (1996).

After the Zicherman decision, Korean Air Lines

moved in the district court to dismiss all claims for non-

pecuniary damages, including damages for loss of society

and mental grief, and damages for the decedents’ pre-

death pain and suffering. Because Zicherman directed

lower courts to look to some source of domestic law in a

Warsaw Convention case, the district court began with a

choice-of-law analysis and concluded that United States

law governed these suits. In re Korean Air Lines Disaster of

Sept. 1, 1983, 935 F. Supp. 10, 12-14 (D.D.C. 1996). No

party has challenged that determination. The court then

ruled that the Death on the High Seas Act provided the

applicable U.S. law, id. at 14, and that the Act did not

permit the recovery of nonpecuniary damages, id. at

14-15.

Plaintiffs detect two faults in the district court's rea-

soning. While they concede that the Death on the High

Seas Act itself provides no right to recover damages for a

decedent's pre-death pain and suffering, they believe the

4a

“general maritime law” recognizes such a cause of action.

They also interpret a provision of the Death on the High

Seas Act as allowing them to proceed under South

Korean law despite the district court’s undisputed choice-

of-law finding that U.S. law applies. The law of South

Korea, they say, permits them to recover damages for pre-

death pain and suffering and for the mental grief of

surviving relatives.

I

The first section of the Death on the High Seas Act

allows the personal representative of any person who

dies as the result of a “wrongful act, neglect, or default

occurring on the high seas,” to sue “for the exclusive

benefit of the decedent’s wife, husband, parent, child, or

dependent relative.” 46 U.S.C. App. § 761.' The next

section limits recovery to “a fair and just compensation

for the pecuniary loss sustained by the persons for whose

1 Section 761 states in full:

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, in admiralty, for the exclusive benefit of the

decedent's wife, husband, parent, child, or dependent

relative against the vessel, person, or corporation

which would have been liable if death had not

ensued.

5a

benefit the suit is brought.” Id. § 762.2 Other sections

establish a limitations period, id. § 763a, govern actions

under foreign law, id. § 764, permit a personal injury suit

to continue under the Act if the plaintiff dies while the

action is pending, id. § 765, bar contributory negligence

as a complete defense, id. § 766, exempt the Great Lakes

and state territorial waters from the Act’s coverage, id.

§ 767, and preserve certain state law remedies and state

court jurisdiction, id.; see also Offshore Logistics, Inc. v.

Tallentire, 477 U.S: 207, 220-33 (1986).

That the Death on the High Seas Act does not permit

recovery for a decedent's pre-death pain and suffering is

clear enough. The Act provides a remedy only for injuries

suffered by a limited class of surviving relatives, not the

decedent. It is, after all, a “wrongful death” statute, giv-

ing survivors a right of action for losses they suffered as a

result of the decedent’s death, not a “survival” statute,

allowing a decedent’s estate to recover for injuries suf-

fered by the decedent. See Nelson v. American Nat'l Red

Cross, 26 F.3d 193, 199 (D.C. Cir. 1994); Calhoun v. Yamaha

Motor Corp., U.S.A., 40 F.3d 622, 637 (3d Cir. 1994), aff'd,

116 S. Ct. 619 (1996); McInnis v. Provident Life & Accident

2 Section 762 provides:

The recovery in such suit 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.

6a

Ins. Co., 21 F.3d 586, 589 (4th Cir. 1994). Pain and suffer-

ing is, in any event, nonpecuniary.* On the other hand,

§ 762 of the Act permits only the recovery of “compensa-

tion for . . . pecuniary loss sustained.”

Plaintiffs do not quarrel with any of this. But, they

say, the Death on the High Seas Act is not the only

pertinent source of U.S. law. As they see it, “general

maritime law” — a species of federal common law - also

applies and it allows a survival action for pre-death pain

and suffering independent of any action under the Death

on the High Seas Act.

3 Courts often point to pain and suffering as an example of

a nonpecuniary loss. See, e.g., Eastern Airlines, Inc. v. Floyd, 499

U.S. 530, 544 n.10 (1991); Scarfo v. Cabletron Sys., Inc., 54 F.3d 931,

939 (1st Cir. 1995); Korean Air Lines Disaster, 932 F.2d at 1487. It is

therefore strange to find several cases under the Jones Act, 46

U.S.C. App. § 688, describing damages for pre-death pain and

suffering as pecuniary. See, e.g., Furka v. Great Lakes Dredge &

Dock Co., 755 F.2d 1085, 1090 n.7 (4th Cir. 1985); Neal v. Barisich,

Inc., 707 F. Supp. 862, 867 (E.D.La.), aff'd, 889 F.2d 273 (Sth Cir.

1989). The Jones Act applies the Federal Employers’ Liability

Act, 45 U.S.C. § 51 et seq. (“FELA”), to seamen. While FELA and

the Jones Act permit only pecuniary wrongful death damages,

see Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); Michigan

Cent. R.R. v. Vreeland, 227 U.S. 59, 68-71 (1913), FELA contains a

survival provision (45 U.S.C. § 59) allowing recovery of

damages for pre-death pain and suffering, see St. Louis, Iron

Mountain & Southern Ry. v. Craft, 237 U.S. 648, 658 (1915). Rather

than mislabeling pain and suffering as a pecuniary loss in Jones

Act cases, it would be more accurate to recognize that under

FELA and the Jones Act only wrongful death damages, not

survival damages, need be pecuniary. See Cook v. Ross Island

Sand & Gravel Co., 626 F.2d 746, 748-49 (9th Cir. 1980).

7a

The Supreme Court identified a wrongful death

cause of action under the general maritime law in Mor-

agne v. States Marine Lines, Inc., 398 U.S. 375 (1970). The

death in Moragne occurred in waters within the state of

Florida, id. at 376, so the Death on the High Seas Act did

not apply. The Court held that general maritime law

nevertheless provided the decedent’s widow with a rem-

edy for wrongful death caused by a violation of federal

maritime duties. Id. at 409. In Sea-Land Services, Inc. v.

Gaudet, 414 U.S. 573, 585-90 (1974), in which the death

occurred in Louisiana waters, the Court held that recov-

ery in a Moragne wrongful death action is not limited to

pecuniary damages, as it is in actions under the Death on

the High Seas Act. (Although the Court permitted non-

pecuniary damages for loss of society in Gaudei, it said

that “mental anguish or grief . . . is not compensable

under the maritime wrongful-death remedy,” 414 U.S. at

585 n.17.) A few years after Gaudet, the Court held that if

a death occurs on the high seas, the Death on the High

Seas Act, not general maritime law, governs and therefore

nonpecuniary wrongful death damages may not be recov-

ered. Mobil Oil Co. v. Higginbotham, 436 U.S. 618, 622-26

(1978).

The Supreme Court has declined to say whether the

reasoning of Moragne may be extended to permit a sur-

vival cause of action under the general maritime law. See

Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S. Ct. 619, 625

n.7 (1996); Miles v. Apex Marine Corp., 498 U.S. 19, 34

(1990)-We have never addressed the issue. Other courts

of appeals have and a majority of them recognize survival

actions. See, e.g., Barbe v. Drummond, 507 F.2d 794, 799-800

(1st Cir. 1974); Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4

8a

F.3d 1084, 1093 (2d Cir. 1993); Ward v. Union Barge Line

Corp., 443 F.2d 565, 569 (3d Cir. 1971), overruled in part on

other grounds by Cox v. Dravo Corp., 517 F.2d 620 (3d Cir.

1975) (en banc); Greene v. Vantage S.S. Corp., 466 F.2d 159,

166 (4th Cir. 1972); Miles v. Melrose, 882 F.2d 976, 986 (5th

Cir. 1989), aff'd sub nom. Miles v. Apex Marine Corp., 498

U.S. 19 (1990); Spiller v. Thomas M. Lowe, Jr., & Assocs.,

Inc., 466 F.2d 903, 909 (8th Cir. 1972); Evich v. Connelly, 759

F.2d 1432, 1434 (9th Cir. 1985); Self v. Great Lakes Dredge &

Dock Co., 832 F.2d 1540, 1549 (11th Cir. 1987).

Three courts of appeals have dealt with the availabil-

ity of a general maritime law survival action for deaths

on the high seas. The First and Fifth Circuits have permit-

ted general maritime law survival actions in cases in

which the Death on the High Seas Act also applies. See

Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890,

893-94 (5th Cir. 1984); Barbe, 507 F.2d at 799-800. The

Ninth Circuit reached the opposite conclusion. See

Saavedra v. Korean Air Lines Co., 93 F.3d 547, 553-54 (9th

Cir. 1996).4 We believe the Ninth Circuit got it right.

4 Like the general maritime law, state wrongful death

statutes may not be used to supplement Death on the High Seas

Act remedies with nonpecuniary damages. Tallentire, 477 U.S. at

232. And although the Supreme Court has held that state

survival and wrongful death statutes apply to at least some

deaths occurring in territorial waters, Yamaha, 116 S. Ct. at

626-29, it has not said whether state survival statutes can apply

to deaths on the high seas, see Tallentire, 477 U.S. at 215.1. A

few lower courts have allowed recovery under a state survival

statute to supplement recovery under the Death on the High

Seas Act. See, e.g., Solomon v. Warren, 540 F.2d 777, 792 n.20 (Sth

Cir. 1976); Dugas v. National Aircraft Corp., 438 F.2d 1386, 1388-92

(3d Cir. 1971).

9a

Assume general maritime law provides a survival

action in some cases (we do not decide whether it does).

Still, the effect of the Supreme Court's decision in Higgin-

botham must be evaluated. Nonpecuniary damages may

be recovered under general maritime law, but not, the

Court held, when the death is on the high seas. Then the

Death on the High Seas Act controls and the judiciary

may not evaluate the policy arguments in favor of, or

against, allowing nonpecuniary damages. “Congress has

struck the balance for us. It has limited survivors to

recovery of their pecuniary losses.” Higginbotham, 436

U.S. at 623. “The Death on the High Seas Act...

announces Congress’ considered judgment on such issues

as the beneficiaries, the limitations period, contributory

negligence, survival, and damages.” Id. at 625. Moragne

developed general maritime law in a space Congress had

not occupied. But “[t]here is a basic difference between

filling a gap left by Congress’ silence and rewriting rules

that Congress has affirmatively and specifically enacted.

In the area covered by the statute, it would be no more

appropriate to prescribe a different measure of damages

than to prescribe a different statute of limitations, or a

different class of beneficiaries.” Id.

Higginbotham thus instructs the lower federal courts

not to extend the general maritime law to areas in which

Congress has already legislated. For deaths on the high

seas, Congress decided who may sue and for what.

Judge-made general maritime law may not override such

congressional judgments, however ancient those judg-

ments may happen to be. Congress made the law and it is

up to Congress to change it.

10a

At almost the same time as the Sixty-Sixth Congress

passed the Death on the High Seas Act, it enacted the

Jones Act, 46 U.S.C. App. § 688. See Death on the High

Seas Act, ch. 111, 41 Stat. 537 (1920); Merchant Marine

(Jones) Act, ch. 250, § 33, 41 Stat. 988, 1007 (1920). The

Jones Act contains a survival provision applicable to cer-

tain maritime deaths. See supra note 3. A fair assumption

is that the members of Congress who passed the Death on

the High Seas Act understood the difference between

wrongful death and survival actions. Their inclusion of a

survival remedy in the Jones Act but not in the Death on

the High Seas Act scarcely seems inadvertert.

Higginbotham stated that the Death on the High Seas

Act expressed a congressional “judgment on such issues

as ... survival, and damages.” 436 U.S. at 625. In support,

the Court cross-referenced a footnote citing 46 U.S.C.

App. § 765, a provision allowing a personal injury suit,

initiated by a plaintiff who dies while the suitis pending,

to be continued under the Act. A law professor has

criticized the Court’s statement as “casual,” or “at best

dictum and conceivably nothing more than an ill-advised

gratuitous remark.” Joseph F. Smith, Jr., A Maritime Law

Survival Remedy: Is There Life After Higginbothim?, 6 Mar.

Law. 185, 196, 198 (1981). Dictum yes, ill-advised no. That

the Death on the High Seas Act contains enly a very

limited survival provision is no reason for treating the

Act as something other than an expression of legislative

judgment on the extent to which survival actions are to

be permitted. When Congress decides to go oly so far it

necessarily has decided to go no further.5

5 One of the drafters of the Death on the High Seas Act

explained the Act’s unusual, limited survival provsion. The Act

lla

While the contours of plaintiffs’ proposed survival

action for deaths on the high seas are uncertain, they

presumably would allow a decedent's estate to recover

compensation for the decedent's injuries. This would nec-

essarily expand the class of beneficiaries in the Death on

the High Seas Act, which does not include decedents’

estates. Yet Higginbotham held that “it would be no more

appropriate to prescribe a different measure of damages

than to prescribe . . . a different class of beneficiaries.”

436 U.S. at 625. It was, to the Court, unthinkable that a

legislatively-mandated class of beneficiaries could be

judicially altered. Suits under the Act are “for the exclu-

sive benefit of the decedent's wife, husband, parent, child,

or dependent relative.” 46 U.S.C. App. § 761 (emphasis

added). In a death on the high seas case, there is no

relevant difference between a court's giving a decedent's

nondependent niece a right of action under general mar-

itime law, which is clearly impermissible, and allowing

the decedent's estate to sue for the decedent's injuries

under the general maritime law.

originally required suits to be filed “within two years from the

date of [the) wrongful act, neglect, or default.” Ch. 111, § 3, 41

Stat. 537. The survival provision of § 765 preserved for

defendants the benefits of the Act's restricted limitations period

without creating an undue barrier for wrongful death actions in

cases in which the death did not occur soon after the event

causing the injury. In such cases, a suit filed within two years

while the decedent was still alive would preserve the action. See

Robert M. Hughes, Death Actions in Admiralty, 31 Yave L.J. 115,

126 (1921).

12a

Perhaps plaintiffs envisage a survival action that

would not alter the Death on the High Seas Act's bene-

ficiary class. One might permit a decedent's personal

representative to sue for damages suffered by the dece-

dent, but only for the benefit of those named in the Act.

For example, the Federal Employers’ Liability Act and the

Jones Act give a decedent's personal representative the

right to recover survival damages for the benefit of a

fixed class of surviving relatives. See 45 U.S.C. § 59; 46

U.S.C. App. § 688.° Such an approach could leave the

Death on the High Seas Act’s beneficiary class intact. But

it would change the damages available to the Act's bene-

ficiaries. No longer would damages be limited to “com-

pensation for the pecuniary loss sustained by the persons

for whose benefit the suit is brought,” 46 U.S.C. App.

§ 762. The beneficiaries would also receive compensation

for nonpecuniary losses sustained by others — their dece-

dents. That result Higginbotham forecloses.

Because the Death on the High Seas Act is a “wrong-

ful death” statute, plaintiffs insist it has no bearing on

survival remedies. They have missed the point. That the

Act provides remedies only to certain surviving relatives

for their losses and provides no compensation for the

decedent's own losses is the very reason why courts may

© Under 45 U.S.C. § 59:

Any right of action given by this chapter to a

person suffering injury shall survive to his or her

personal representative, for the benefit of the

surviving widow or husband and children of such

employee, and, if none, then of such employee's

parents; and, if none, then of the next of kin

dependent upon such employee. . . .

13a

not create a survival remedy. The Act explicitly limits

beneficiaries to a particular group of surviving relatives,

and it explicitly limits the recoverable damages to pecuni-

ary losses suffered by the members of that group. These

are the limits of recovery and a court may neither expand

nor contract them. Calling the Act a wrongful death

statute does nothing more than describe the manner in

which Congress restricted the beneficiary class and the

recoverable damages. It does not deprive those restric-

tions of their significance.

Plaintiffs also offer comparisons to the Jones Act,

emphasizing that general maritime law remedies exist

alongside Jones Act statutory remedies. The Jones Act

provides compensation to seamen injured as a result of

negligence, and in the event of death it provides both a

wrongful death and a survival action. See 46 U.S.C. App.

§ 688; 45 U.S.C. §§ 51, 59. In Miles, the Supreme Court

held that after Moragne a seaman’s survivors could pur-

sue a general maritime law wrongful death action alleg-

ing unseaworthiness (a strict liability theory), in addition

to a Jones Act negligence claim. Miles, 498 U.S. at 29-30.

Plaintiffs may have identified an inconsistency in how the

Court treats the Jones Act and how it treats the Death on

High Seas Act. But this case involves the Death on the

High Seas Act, and we therefore are bound to follow

Higginbotham. Moreover, Miles severely restricted the

extent to which the general maritime law may expand the

remedies available under the Jones Act. Relying on Hig-

ginbotham, the Court refused to allow the decedent's sur-

vivors to recover nonpecuniary wrongful death damages

under the general maritime law because they could not

recover such damages under the Jones Act. Miles, 498 U.S.

l4a

at 30-33. So while the general maritime law permits

recovery for violations of duties other than those

imposed by the Jones Act, such recovery may not exceed

the recovery that would be available under the Jones Act

if it applied. It is thus uncertain how much mileage

plaintiffs could get out of their Jones Act analogy even if

we disregarded the Court’s pronouncements in Higgin-

botham.

Plaintiffs invoke South Korean law on the basis of

this provision of the Death on the High Seas Act:

Whenever a right of action is granted by the

law of any foreign State on account of death by

wrongful act, neglect, or default occurring upon

the high seas, such right may be maintained in

an appropriate action in admiralty in the courts

of the United States without abatement in

respect to the amount for which recovery is

authorized, any statute of the United States to

the contrary notwithstanding.

46 U.S.C. App. § 764. As plaintiffs read § 764, it allows

them to use an action under the Death on the High Seas

Act to assert claims cognizable under foreign law. They

have submitted the statement of a South Korean attorney

that South Korean law would allow the recovery of dam-

ages for the decedents’ pre-death pain and suffering and

for the surviving relatives’ mental anguish. The district

court rejected the plaintiffs’ submission as “irrelevant” in

light of its determination that U.S. law applied. Korean Air

Lines Disaster, 935 F. Supp. at 14 n.2.

15a

The case law regarding § 764 is not uniform. Some

opinions seem to support plaintiffs’ view of § 764. See

Heath v. American Sail Training Ass'n, 644 F. Supp. 1459,

1467 (D.R.1. 1986); Noel v. Linea Aeropostal Venezolana, 260

F. Supp. 1002, 1004-06 (S.D.N.Y. 1966); Fernandez v. Linea

Aeropostal Venezolana, 156 F. Supp. 94, 96 (S.D.N.Y. 1957);

lafrate v. Compagnie Generale Transatlantique, 106 F. Supp.

619, 622 (S.D.N.Y. 1952). Other opinions support the view

that § 761 and § 764 are mutually exclusive and that

plaintiffs therefore may not simultaneously advance

claims under both U.S. and foreign law. See In re Air Crash

Disaster Near Bombay, India on Jan. 1, 1978, 531 F. Supp.

1175, 1185-88 (W.D.Wash. 1982); Bergeron v. Koninklijke

Luchtvaart Maatschappij, N.V., 188 F. Supp. 594, 596-97

(S.D.N.Y. 1960), appeal dismissed, 299 F.2d 78 (2d Cir. 1962);

The Vulcania, 41 F. Supp. 849 (S.D.N.Y. 1941), modifying 32

F. Supp. 815 (S.D.N.Y. 1940); The Vestris, 53 F.2d 847,

855-56 (S.D.N.Y. 1931).

If plaintiffs were correct, § 764 would license them to

pick and choose among provisions of U.S. and South

Korean law in order to assemble the mosi favorable pack-

age of rights against the defendant. That would be odd

enough. But stranger still is the notion that South Korean

law has any bearing on this case. Faced with Zicherman’s

directive to make a choice-of-law determination, 116 S.

Ct. at 637, the district court chose U.S. law, not South

Korean law. Plaintiffs have not appealed this ruling. So

how does South Korean law enter the picture? True, § 764

permits suits under foreign law when “a right of action is

granted by the law of any foreign State.” Since U.S. law,

not South Korean law (or French law or Brazilian law),

applies to this case, we are at a loss to understand how “a

l6a

right of action is granted by the law of ” South Korea or

any other foreign country. If South Korean law does not

apply to a suit, it can hardly grant rights to the parties.

Once the choice-of-law determination is in favor of U.S.

law, only U.S. law can grant plaintiffs any sort of right of

action.

It is fair to ask what function § 764 serves if not the

one plaintiffs imagine. If, as we have decided, § 764

cannot be used to inject foreign law into a case controlled

by U.S. law, one might suppose it has no purpose. When

foreign law governs a case, the court would not consider

the various provisions of the Death on the High Seas Act.

But § 764 is not without significance.

The provision originated as an amendment recom-

mended by the Senate Committee on the Judiciary. The

Committee’s report took the position (no longer current)

that Congress had no power to create a right of action

allowing the recovery of damages against foreigners or

foreign vessels for deaths occurring on the high seas. S.

Rep. No. 66-216, at 4 (1919). The report also recognized

that American courts permitted suits concerning foreign

vessels to proceed under the law of the vessel's home

country. Id. at 4-5. For example, the claims in La Bour-

gogne, 210 U.S. 95 (1908), were against a French vessel

and its owners for deaths occurring on the high seas. The

Supreme Court held that while U.S. law at that time did

not recognize a wrongful death cause of action, wrongful

death damages were available under French law in a

proceeding in a U.S. court. Id. at 138-40. Section 764 was

the legislative response to decisions permitting the

owners of such foreign vessels to take advantage of U.S.

statutes limiting their liability, see, e.g., Oceanic Steam

17a

Navigation Co. v. Mellor, 233 U.S. 718, 731 (1914) (“The

Titanic”).? The Committee report explained § 764 this

way: “[A]s the Supreme Court has held that the limited

liability statute of the United States applies to foreign

ships seeking such limitation of liability in our courts, the

committee recommends that the bill be amended by the

insertion of [§ 764].” S. Rep. No. 6&-216, at 5.

It was immediately recognized that § 764 was “super-

fluous” insofar as it provided that U.S. courts would hear

suits under foreign law in cases involving foreign vessels.

Hughes, supra, 31 Yave L.J. at 118, 122; see also Calvert

Magruder & Marshall Grout, Wrongful Death Within the

Admiralty Jurisdiction, 35 Yate L.J. 395, 423-24 (1926). As

the Senate Committee realized, that was already the prac-

tice. The real force of § 764 was its barring foreign vessel

owners from taking advantage of American limitation of

liability laws.

Another function of § 764, not discussed in the legis-

lative history, is to require foreign law actions for wrong-

ful deaths on the high seas to be brought in admiralty, at

least if the plaintiffs wish to prevent the defendants from

limiting their liability. See The Silverpalm, 79 F.2d 598, 600

(9th Cir. 1935); Bergeron, 188 F. Supp. at 597-98; lafrate, 106

F. Supp. at 621-22; Egan v. Donaldson Atlantic Line, 37 F.

Supp. 909 (S.D.N.Y. 1941). But see Powers v. Cunard S.S.

Co., 32 F.2d 720 (S.D.N.Y. 1925).

7 Under Rev. Stat. § 4283 (1878) (current version at 46 U.S.C.

App. § 183), when a loss or injury occurred “without the privity,

or knowledge” of a vessel owner, the owner could limit its

liability to the value of its interest in the vessel and “her freight

then pending.”

18a

Section 764 also made it explicit that American courts

would continue to hear these suits under foreign law.

While the courts’ authority to do so did not depend on

§ 764, without § 764 the Death on the High Seas Act

would have been open to the judicial interpretation that it

was a congressional attempt — albeit an illegitimate one in

the eyes of the Senate Committee - to impose a new

American law of wrongful death on all suits brought in

U.S. courts, including those against foreign defendants.

Some maritime statutes of the period explicitly applied to

foreigners and their vessels. See, e.g., Act of Mar. 4, 1915,

ch. 153, § 4, 38 Stat. 1164, 1165. Others, like the limitation

of liability statute (which at that time applied to “the

owner of any vessel,” Rev. Stat. § 4283), were less clear on

the point, but the courts interpreted them to apply to

foreigners as well as Americans, see, e.g., The Titanic, 233

U.S. at 731. Thus, § 764 made it certain that the substan-

tive provisions of the Death on the High Seas Act were

not to displace foreign law in those cases in which foreign

law already applied.

We therefore find no reason for concluding that § 764

requires the abandonment of normal choice-of-law princi-

ples, as plaintiffs suggest, allowing them to combine the

most favorable elements of U.S. law, South Korean law,

and perhaps also any other nation’s law. Section 764 and

foreign law play no role once a court determines that U.S.

law governs an action.

Affirmed.

19a

United States Court of Appeals

For Tue District or Covtumsia Circurr

No. 96-5278 September Term, 1996

83ms00345

In re: Korean Airlines Disaster of September 1, 1983,

BEFORE: Wald and Randolph, Circuit Judges, and

Buckley, Senior Circuit Judge

ORDER

(Filed Aug. 28, 1997)

Upon consideration of appellants’ petition for rehear-

ing filed August 7, 1997, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

20a

United States Court of Appeals

For Tue District or CotumBia Circuit

No. 96-5278 September Term, 1996

83ms00345

In re: Korean Airlines Disaster of September 1, 1983,

BEFORE: Edwards, Chief Judge; Wald, Silberman,

Williams, Ginsburg, Sentelle, Henderson,

Randolph, Rogers, Tatel and Garland, Cir-

cuit Judges, and Buckley, Senior Circuit

Judge

ORDER

(Filed Aug. 28, 1997)

Upon consideration of appellants’ Suggestion for

Rehearing In Banc, and the absence of a request by any

member of the court for a vote, it is

ORDERED that the suggestion be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

21a

Relevant Provisions of the Warsaw Convention

Article 17

The carrier shall be liable for damage sustained in the

event of the death or wounding of a passenger or any

other bodily injury suffered by a passenger, if the acci-

dent which caused the damage so sustained took place on

board the aircraft or in the course of any of the operations

of embarking or disembarking. 49 Stat. 3018.

Article 24

1. In the cases covered by articles 18 and 19 any action

for damages, however founded, can only be brought sub-

ject to the conditions and limits set out in this convention.

2. In the cases covered by article 17 the provisions of the

preceding paragraph shall also apply, without prejudice

to the questions as to who are the persons who have the

right to bring suit and what are their respective rights. 49

Stat. 3020.

Article 25(1)

1. The carrier shall not be entitled to avail himself of the

provisions of this convention which exclude or limit his

liability, if the damage is caused by his wilful misconduct

or by such default on his part as, in accordance with the

law of the court to which the case is submitted, is consid-

ered to be equivalent to wilful misconduct. 49 Stat. 3020.

§ 761.

22a

Relevant Provisions of the Death on the High Seas Act,

46 U.S.C. § 761 et seq.

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 Dis-

trict of Columbia, or the territories or dependen-

cies of the United States’, the personal

representative of the decedent may maintain a

suit for damages in the district courts of the

United States, in admiralty, for the exclusive

benefit of the decedent’s wife, husband, parent,

child or dependent relative against the vessel,

person, or corporation which would have been

liable if death had not ensued.

§ 762. Amount and apportionment of recovery

The recovery in such suit shall be a fair and

just compensation for the pecuniary loss sus-

tained 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.

§764. Rights of action given by laws of foreign coun-

tries

Whenever a right of action is granted by the

law of any foreign State on account of death by

wrongful act, neglect, or default occurring upon

the high seas, such right may be maintained in

Right of Action; where and by whom brought

23a

an appropriate action in admiralty in the courts

of the United States without abatement in

respect to the amount for which recovery is

authorized, any statute of the United States to

the contrary notwithstanding.

§765. Death of plaintiff pending action

If a person die[s] as the result of such

wrongful act, neglect, or default as is mentioned

in section 761 of this title during the pendency

in a court of admiralty of the United States of a

suit to recover damages for personal injuries in

respect of such act, neglect, or default, the per-

sonal representative of the decedent may be

substituted as a party and the suit may proceed

as a suit under this chapter for the recovery of

the compensation provided in section 762 of this

title.

§767. Exceptions from operation of chapter

The provisions of any State statute giving or

regulating rights of action or remedies for death

shall not be affected by this chapter. Nor shall

this chapter apply to the Great Lakes or to any

waters within the territorial limits of any State,

or to any navigable waters in the Panama Canal

Zone.