Amicus Curiae Brief — Dooley v. Korean Air Lines Co.

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Ii Supreme Court, U.S.

FILED

No. 97-704 [ NAR 23 1996

Jn the Supreme Court of tye Cater seaes—

OcTOBER TERM, 1997

PHILOMENA DOOLEY, ET AL., PETITIONERS

KOREAN AIR LINES Co., LTD.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

DAVID C. FREDERICK

Assistant to the Solicitor

General

ROBERT S. GREENSPAN

PHILIP A. BERNS

BARBARA B. O’MALLEY

BRUCE G. FORREST

DAVID B. SALMONS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the personal representative of a person who

died as a result of injuries incurred on the high seas may

seek damages for the decedent’s pre-death pain and suffer-

ing.

(I)

TABLE OF CONTENTS

Interest of the United States ..............cccccccceeseeeeeeeeeeeees

SETI icsntidcinnipsnenensnnnstemiscnsscsnsncecsescseneseusesensstecenoqsenes

Bummary of argument ..............cccccccccseccesseeceeceeseeseeees

Argument:

Congress did not intend for the judiciary to

supplement the wrongful death action provided

in the Death on the High Seas Act with a survival

action for non-pecuniary pain and suffering ..........

A. The language and structure of the DOHSA

evince Congress’s intent to limit remedies

for high seas deaths and not to permit a

ST GD cecctensermeresereseascttsnnesetencesecsceccses

* B. The legislative history of the DOHSA confirms

that Congress deliberately omitted including

I GD «cenecencrsesennscsnsncenenessstanennscrseceses

C. Judicial recognition of a survival action

for wrongful death on the high seas would

be inconsistent with this Court’s decisions .......

CRTTINND cnecscccrsesescenessscsemmnssnenssscupsnsnscensesusscsvasaccteccees

TABLE OF AUTHORITIES

Cases:

Azzopardi v. Ocean Drilling & Exploration Co.,

742 F.2d 890 (Sth Cir. 1984) ..........ccccccceeeeeeeeeeeeeees

Barbe v. Drummond, 507 F.2d 794 (ist Cir.

SUED ccstscssuisnsonssesresnsssentensstansnsesenesnsevesnenscsesecssesesse

Butler v. American Trawler Co., Inc., 887 F.2d

GD Ga TD cetennentensrnnntsesnecnecsonecnnsncseetersesesere

Cannon v. University of Chicago, 441 U.S. 677

GUIPTEED cxccssesnsnsonsnssmensenensenssnessonsqnssennsssensnsnesscsunessses

Coleman v. Slade Towing Co., 759 F. Supp.

Cooper v. Diamond M Co., 799 F.2d 176 (5th

Cir. 1986), cert. denied, 481 U.S. 1048 (1987) ........

(III)

on =

Cases—Continued: Page

Davis v. Britton, 729 F. Supp. 189 (D.N.H.

EGIIED qnssessnssenssnsemesensnsonnsnnenumiunnnnmenentapgapsetnsennatn 13

Dugas v. National Aircraft Corp., 438 F.2d 1386

GS GE TED exnensecnnetenrnsinnninttnenneinninivecninesmsscsinn 4

Evich v. Connelly, 759 F.2d 1432 (9th Cir. 1985) ... 28

Freytag v. Commisioner of Internal Revenue, 501

FRR Se ie TE Ee 11

Friel v. Cessna Aircraft Co., 751 F.2d 1037 (9th

Ree he ne Re 13

Gray v. Lockheed Aeronautical Systems Co.,

125 F.3d 1371 (11th Cir. 1997), petition for cert.

NED, Tas GENE? cncuinnninenestiinndiistitanatiipemensniimease 5

Greene v. Vantage S.S., 466 F.2d 159 (4th Cir.

FITTED cccscenenssnsnssnadnienensnbenntsanansenensipeestestinetnssecneses 28

Korean Air Lines Disaster of Sept. 1, 1983, In re,

932 F.2d 1475 (D.C. Cir.), cert. denied sub nom.

Dooley v. Korean Air Lines, 502 U.S. 994 (1991) .. 4

Korean Air Lines Disaster of Sept. 1, 1983, In re,

935 F. Supp. 10 (D.D.C. 1996), aff’d, 117 F.3d 1477

(D.C. Cir. 1997), cert. granted, 118 S. Ct. 679

GREED cxssessunssnsvensensinscntuiedmantiemmeneniieepeinmnsneemecnse 5

Kosak v. United States, 465 U.S. 848 (1984) ......... 15

Mendez v. Ishikawajima-Harima Heavy Indus.

Co., 52 F.3d 799 (9th Cir. 1996) .............ccccccceeseeee 13

Michigan Central R.R. v. Vreeland, 227 U.S. 59

GREED cocsnemancsnssssnnmsesnbessunntdueiinepemaseaesnnmniesitonasimnces 21, 22

Miles v. Apex Marine Corp., 498 U.S. 19 (19990) .... 28

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

aff’d sub nom. Miles v. Apex Marine Corp.,

ee 28

Mink v. Genmar Indus., Inc., 29 F.3d 1543

SD eh GE eiciteietcenitninicinrinniteniinientainsin 13

Mobil Oil Co. v. Higginbotham, 436 U.S. 618

GSE cenctcetaibepsutimsenaranteneentcenanidinds 5, 6, 7, 11, 27, 29, 30

Moragne v. State Marine Lines, Inc., 398 US.

Bae GEPUED cnnassnssnsctsintentininitncsnisenntestnedseianatdees 12, 13, 26, 27

Cases—Continued: Page

Offshore Logistics, Inc. v. Tallentire, 477 U.S.

Se GET ccitnsseccenscnsesactsunmemanenensetnassasen 4, 6, 7, 26, 29, 30

Saavedra v. Korean Air Lines, 93 F.3d 547

(9th Cir.), cert. denied, 117 S. Ct. 584 (1996) ......... 4

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

(ETT siiiiiitsetiiiesiiieensneiiismmnaeeunictiinsitintimnatinaepasmmmpencsseesnne 27-28

Self v. Great Lakes Dredge & Dock Co., 832

pk ff ee 28

Solomon v. Warren, 540 F.2d 777 (5th Cir.

Ee ee 4

Spiller v. Thomas M. Lowe, Jr., & Assocs., 466

I 28

The Alaska, 130 U.S. 201 (1889) ..............ccccceeeeeeeeee 2

The Harrisburg, 119 U.S. 199 (1886) .................000008 2, 26

The Robert Graham Dunn, 70 F. 270 (ist Cir.

ED dentennntinntersenecsenmemasnscsseenssemeenenesnensensseseesses 25

Tilley v. Hudson River R.R., 24 N.Y. 471

a, GA, TRF ceeareemnenserenseseeneneenensecnmecsssncsnsecctecens 10

Wahistrom v. Kawasaki Heavy Indus., Ltd.,

4 F.3d 1084 (2d Cir. 1993), cert. denied, 510 U.S.

RS GD censsnnnnsssnscscsnsescesensnensmnsengemenmensnsnsscesesese 28

Ward v. Union Barge Line Corp., 443 F.2d

565 (3d Cir. 1971), overruled in part on other

grounds, Cox v. Dravo Corp., 517 F.2d 620

Ge EE SED eeterenenenecnnnensennsnvenssnmansnnsmsesmanssseneees 28

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199

GE carnscndesnsenssenteseintennindbtnadicentevessensnenesunsesneese 28

Zicherman v. Korean Air Lines, 516 U.S. 217

GIST) cunusccssmenennasnscssntengnsesniunieneennapeenesccsessncents 4, 6, 7, 30

Statutes:

Act of Apr. 5, 1910, ch. 143, § 2, 36 Stat. 291 ............ 22, 23

Act of Mar. 30, 1920, ch. 111, 41 Stat. 538 ................ 19

Act of June 5, 1920, ch. 250, § 33, 41 Stat. 1007 ........ 24

Statutes—Continued: Page

Act of Oct. 6, 1980, Pub. L. No. 96-382, 94 Stat.

GED cussccmsensensaneipenstisesinemmmemesimmnessenes 12

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

GB GEG cennssesscsssesnmmnansntacenenscsnrncesseenenscecsanensnannncesese 1, 2,5

A GS EEE 3, 5, 8, 11, 12, 13

§ 2, 46 U.S.C. App. 762 .................. 3, 4, 5, 9, 10, 11, 12

UL 12

ee 12, 13

§ 5, 46 U.S.C. App. 765 .............ccccseee 3, 5, 6, 10, 11, 12

(ke 21

Federal Employers’ Liability Act (1908), ch. 149,

SD BRAD, GS —cnnesventecsnscenmenmmnenssnsnnssneneseesenstnecserscesss 22

Public Vessels Act, 46 U.S.C. App. 781 et seq. .......... 1

Suits in Admiralty Act, 46 U.S.C. App. 741

GB BBG. cccececcecesccevecscsensscssseseovesnssqseesenccsssoosozcocecosecece 1

Conn. Gen. Stat. ch. 325, § 6177 (1918) ..........ccccceeees

Mich. Comp. Laws § 10,113 (1897) ............:ccccceeeeeeees 8

1901 N.H. Laws ch. 191:

BG censcsnnsnnininninnsampeitacesmapasqseseenemesesmmsenemasnasee 8

2 N.J. Comp. Stat. $$ 7-9 (1909-1910) 20.0... cceeeeees 8

Nev. Rev. Laws § 5648 (1912) .................ccccccssseeeeeees 9

Ohio Gen. Code (1912):

DP ceeesticesenidhensnisnesncnapteneninganninsesanetinnsmamente 9

D SED denscetvarinsssusncsnenssscsmesnseememecmnemncssensensenes 9

i crnessatesnnicepessscesstpatsessenenssnntunceemennnenneies 9

a I Fp ED cteectecncnsnsensenctscenensestneneesceees 8

S.D. Codified Laws, ch. 301, §§ 1-3 (1909) ........... suis 9

Vt. Stat., ch. 133 (1906):

DF ED Warkitenindtncidttinnerteseestnimmmensemennen 8

DF SRD eevinteitenencennnssncennsensancnseustressenssennsnssnemecemeen 8

Va. Code Ann. §§ 2902-2906 (Pollard 1904) ............... fe]

Wis. Stat. ch. 178 §§ 4255-4256 (1898) .............cccceee 9

Lord’s Campbell’s Act, 9 & 10 Vict. ch. 93 (1846) ..... 8, 16

Vil

Miscellaneous:

Actions For Death on the High Seas: Hearings on

H.R. 24764 and H.R. 24763 Before the House

Comm. on the Judiciary 62d Cong., 2d Sess.

GEE cncairenistnensineccennilectiicenetnaeansemmtanianenatseesnmesesee 15, 20

John E. Ball, Wrongful Death At Sea—The

Death on the High Seas Act, 51 Cal. L. Rev. 389

TUTE) cinicesenesinsechinntnsincnnsnhicematnectbenmedanietendanstennsessssccncceee 14

Comment, The Application of State Survival

Statutes in Maritime Causes, 60 Colum. L. Rev.

ae GE ettteincecntincnccnesetessnsenncninnnsenscnsnansumenentneremnecs 14

BP GRR, BD, BE CITED cccccrccscecessscccssccsscssssesecsosee 3

38 Cong. Rec. (1904):

a 16

Dh GEE enticniastibenieltinninientnccncnasueshnesnesmesepsvencteenssusainesens 16

i 16

43 Cong. Rec. (1909):

Dh, THD? Siiaiasiedptndiennnneennctennichanpninsneienennahansgtedunccmecssenes 16

Ih, TRET eceinreiememtessinacnsisnanecnsusnsssessessscnscnstusnseuscenveosemueces 16

| ESET eae aE 2, 15

51 Cong. Rec. (1914):

Se 23

Ss SII detiniiternnideentinnenitpdehinnenietanecnmmantiansnsntie 23

I EE ibdiirienitilbdhs vebitapeemnsneuentmmsnisnanmdnpnabensentenenbinnenes 23

52 Cong. Rec.:

CS EE ee 23

FE 23

Dy TEE <ncubtiisenatentnssesssnescensessssessesensensssterseenne 24

B46 Camg, Ree. B41 (1927) .....ccccccsccessrrescvescessesseeess 19-20, 21

SD CO, TOD. SEBG CIBIED cccccccccccccocccccccoscsssescsescoseees 25

John G. Day, Jr., Maritime Wrongful Death and

Survival Recovery: The Need For Legislative

Reform, 64 Colum. L. Rev. 648 (1964) ................... 14

Stevan C. Dittman, Admiralty: Conflict of Law on

the High Seas—The States amd the Death on

the High Seas Act, 59 Tul. L. Rev. 1487 (1985) ..... 14

H.R. 9880, 58th Cong., 2d Sess. (1904) ...............00000. 16

Vill

Miscellaneous—Continued: Page

H.R. 11486, 59th Cong., Ist Sess. (1906) ..............0006 16

H.R. 15810, 61st Cong., 2d Sess. (1909) ............... 15, 16, 25

H.R. 25807, 60th Cong., 2d Sess. (1909) ...........:c0c000 16

H.R. 6143, 63d Cong. 2d sess. (1914) ...........:ccccceeeeees 24

H.R. 2005, 105th Cong., Ist Sess. (1997) ..........0000000+ 1

H.R. Rep. No. 160, 63d Cong., 2d Sess. (1913) ......... 21, 26

H.R. Rep. No. 1419, 64th Cong., 2d Sess. (1917) ...... 21, 25

H.R. Rep. No. 674, 66th Cong., 2d Sess. (1920) ........ 21

H.R. Rep. No. 737, 96th Cong., 2d Sess. (1980) ........ 13

Robert M. Hughes, Death Actions in Admiralty,

B31 Yale Ld. 116 (1GB1) ......ccccccccccccescercvsssscceroorees 3, 14, 15

Robert M. Hughes, Handbook of Admiralty Law

GBB Gb, BETTER ccccecccscccscsnsevncscssvesscesecccsssesesssscsceresecs 2,7

Calvert Magruder & Marshal! Grout, Wrongful

Death Within the Admiralty Jurisdiction, 35

Vale Ld. S06 (19BB) ...ccccccccccccccccccsscscscscocssccseeeeeeees 14

Note, Effect of Statutes and Survival Actions on

Liablity for Death by Wrongful Act, 15 Harv. L.

Rhee. GEG (IBID cccccccccsscccccssccccccccrscescccscseccssossecescses 16

Note, Maritime Wrongful Death After Moragne:

The Seaman's Legal Lifeboat, 59 Geo. LJ. 1411

(BOTE) .ccccccccccccoscccvccscecoscscccocccoosonsoconsosocoosossooosossooes 14

Right of Action for Death on the High Seas: Hearing

Before the House Comm. on the Judiciary, 64th

Cong., Ist Sess. (1916) ........cccccceserceeeeeeeeeeeeeeeeees 18, 19, 21

Gustavus H. Robinson, Wrongful Death in

Admiralty and Conflict of Laws, 36 Colum. L.

Bev. GBB CRBID cecesosccccnccccccescccccccstnvccscsccscsocccsccscoee 14

J.B. Ruhl, Finding Federalism in the Admiralty:

‘The Devil's Own Mess’ Revisited, 12 Tul. Mar. L.

Bo, SR ED ciinritiiditlnseininnentitdmiidieamisimnneininmnmenn 14

S. 5564, 58th Cong., 2d Sess. (1904) ..........ccccccceeeeeeees 16

S. 8397, 60th Cong., 2d Sess. (1909) ..........cccccceeeeeeeees 16

Stuart M. Speiser, Charles F. Krause & Juanita M.

Madole, Recovery for Wrongful Death and

Injury (Bd Od. 1982) ........cccccccccrrcrererssssvseerrereeeeerees x

Miscellaneous—Continued: Page

Frances B. Tiffany, Death by Wrongful Act (2d

I RE Aicrecinceiniiaihtitiniataisitictartcciasieestmnineiiieans 7, 9, 10, 16, 25

To Authorize the Maintenance of Actions for

Negligence Causing Death in Maritime Cases; To

Permit the Owners of Certain Vessels and the

Owners or Underwriters of Cargoes Laden Thereon

To Sue in the U.S.; Liens on Vessels for Repairs,

Supplies, or Other Necessaries: Hearing Before

the House Comm. on the Judiciary, 61st Cong.,

2d Sess. (1910)

Susan M. Weidner, The Constitutionality of Apply-

ing State Wrongful Death Statutes on the High

Seas in the Domain of the Death on the High Seas

Act (DOHSA), 31 Loy. L. Rev. 135 (1985)

oncvonsessooesesoossssosecoooscesoseseooss 2, 16, 17, 18, 20

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 97-704

PHILOMENA DOOLEY, ET AL., PETITIONERS

KOREAN AIR LINES Co., LTD.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The United States operates thousands of ocean-going

vessels and aircraft in the course of its extensive civilian

and military activities. In general, the United States has

waived its sovereign immunity from civil suits arising

within admiralty jurisdiction and is subject to wrongful

death actions in ways similar to those involving private

parties. See Suits in Admiralty Act, 46 U.S.C. App. 741 et

seq.; Public Vessels Act, 46 U.S.C. App. 781 et seg. The

United States, therefore, has a strong interest in encour-

aging fair and uniform remedies that are harmonious with

the intent of Congress as enacted in the Death on the

High Seas Act (DOHSA), 46 U.S.C. App. 761 et seq.'

! As a matter of policy, the United States is not opposed to the re-

covery of damages reflecting the pain and suffering of air line passen-

gers whose injuries result in death. The Department of Transportation

(DOT) has supported H.R. 2005, 105th Cong., Ist Sess., a bill currently

pending before Congress that would permit recovery for the decedents’

pain and suffering in cases such as this by rendering the DOHSA

inapplicable to aviation-related deaths on the high seas. Letter dated

July 28, 1997, from DOT General Counsel Nancy E. McFadden to Rep.

Bud Shuster, Chairman, House Committee on Transportation and

Infrastructure. As a matter of statutory construction and application of

(1)

STATEMENT

1. Before Congress enacted the Death on the High

Seas Act (DOHSA) in 1920, the law of admiralty permitted

the anomaly, grounded in the common law, that a person

injured by the tortious conduct of another could sue for

damages, but no action could be brought by or on behalf of a

person killed by that conduct. See generally Robert M.

Hughes, Handbook of Admiralty Law 223 (2d ed. 1920).

The harsh rule denying compensation when the victim

died stemmed from the theory that a right of action was

personal to the victim, and so expired when the victim died.

As this Court explained over a century ago:

[In the absence of an act of Congress or of a statute of

a State, giving a right of action therefor, a suit in ad-

miralty could not be maintained in the courts of the

United States to recover damages for the death of a

human being on the high seas, or on waters navigable

from the sea, which was caused by negligence.

The Alaska, 130 U.S. 201, 209 (1889). See also The Harris-

burg, 119 U.S. 199 (1886) (same).

By the beginning of this century, the injustice of that

rule had prompted proposals in Congress to override the

maritime doctrine denying recovery for negligent acts

that resulted in death. The first bill to provide a remedy

for death on the high seas that received a hearing was in-

troduced on December 17, 1909. See 45 Cong. Rec. 245.

That bill was drafted and promoted by the Maritime Law

Association.” Congress thereafter held hearings on, de

this Court’s decisions, however, we believe that recovery for pain and

suffering is inconsistent with the existing statutory regime prescribed

by Congress under the DOHSA, 46 U.S.C. App. 761 et seq.

2 See To Authorize the Maintenance of Actions for Negligence

Causing Death in Maritime Cases; To Permit the Owners of Certain

Vessels and the Owners or Underwriters of Cargoes Laden Thereon To

Sue in the U.S.; Liens on Vessels for Repairs, Supplies, or Other Neces-

saries: Hearing Before the House Comm. on the Judiciary, 61st Cong.,

2d Sess. (1910) (available on microfiche CIS No. 61 HJ-T.3) (1910

Hearing). In 1900, Representative Boutell introduced a bill pertaining

bated, and amended versions of the death on the high seas

legislation until final enactment of the DOHSA in 1920.

Section 1 of the DOHSA provides a right of action for

“the death of aperson * * * caused by wrongful act, ne-

glect, or default occurring on the high seas beyond a ma-

rine league from the shore of any State, or the District of

Columbia, or the Territories or dependencies of the

United States.” 46 U.S.C. App. 761. The action must be

brought by the decedent’s personal representative, “for

the exclusive benefit of the decedent’s wife, husband, par-

ent, child, or dependent relative.” Ibid. “The recovery in

such suit shall be a fair and just compensation for the pe-

cuniary loss sustained by the persons for whose benefit

the suit is brought.” DOHSA § 2, 46 U.S.C. App. 762. The

DOHSA also speaks to the question of what happens to a

pending personal injury claim upon the death of the in-

jured person. Section 5 provides that, if a person brings a

suit in admiralty for personal injuries wrongfully inflicted

on the high seas and then dies before the suit can be

brought to judgment, “the personal representative of the

decedent may be substituted as a party and the suit may

proceed * * * for the recovery of the compensation pro-

vided in section 762.” DOHSA § 5, 46 U.S.C. App. 765. The

DOHSA makes no provision for the decedent’s own losses,

nor does it allow any damages for non-pecuniary losses.

2. On September 1, 1983, Korean Air Lines (KAL)

Flight KE007 strayed off course and flew over the airspace

of the former Soviet Union. The airliner was shot down by

Soviet military forces and crashed into the Sea of Japan.

All 269 passengers were killed. The suits brought in the

United States in several district courts were consolidated

for a trial on liability in the District of Columbia. The

jury concluded that respondent had engaged in “willful

misconduct,” a finding that lifted the $75,000 cap on dam-

to actions against steamship companies that was later described as

being the first death on the high seas legislation, but that proposal was

never acted upon. See 33 Cong. Rec. 2611; Robert M. Hughes, Death

Actions in Admiralty, 31 Yale L.J. 115, 117 (1921).

ages under the Warsaw Convention in cases of ordinary

negligence. See Jn re Korean Air Lines Disaster of Sept.

1, 1983, 932 F.2d 1475, 1476-1478 (D.C. Cir.), cert. denied

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

Subsequently, the multidistrict litigation panel re-

turned all of the cases to the district courts where they

were originally filed for the determination of damages.

One of those damages proceedings reached this Court in

Zicherman vy. Korean Air Lines, 516 U.S. 217, 219-220

(1996). Zicherman involved claims for damages brought by

the mother and sister of one of the KAL flight KE007 pas-

sengers for grief, mental anguish, and loss of society. The

Zicherman Court concluded: “Where, as here, an airplane

crash occurs on the high seas, DOHSA supplies the sub-

stantive United States law. Because DOHSA permits

only pecuniary damages, petitioners are not entitled to re-

cover for loss of society.” Jd. at 231. Zicherman ex-

pressly left open “whether [DOHSA] § 762 contradicts the

District Court’s allowance of pain and suffering damages,”

since KAL did not challenge that ruling in its petition for

a writ of certiorari. /d. at 230n.4. See also Offshore Logis-

tics, Inc. v. Tallentire, 477 U.S. 207, 215 n.1 (1986) (same).”

3. Petitioners are the personal representatives of sev-

eral KAL Flight KE007 passengers who seek recovery for

the pain and suffering experienced by the decedents be

tween the time the aircraft was damaged by the Soviet an-

3 Prior to Zicherman, two circuits had allowed decedents’ personal

representatives to “supplement” their pecuniary damages recovery un-

der DOHSA for pre-death pain and suffering under a theory of general

maritime law. See Azzopardi v. Ocean Drilling & Exploration Co.,

742 F.2d 890, 893-894 (5th Cir. 1984); Barbe v. Drummond, 507 F.2d

794, 799-800 (1st Cir. 1974). The Ninth Circuit, however, refused to do

so in one of the post-Zicherman cases arising out of the KAL Flight

KE007 incident, and this Court declined further review. Saavedra v.

Korean Air Lines, 93 F.3d 547, 553-554 (9th Cir.), cert. denied, 117 S. Ct.

584 (1996). Other circuits had allowed such recovery under state sur-

vival statutes. See, e.g., Solomon v. Warren, 540 F.2d 777, 792 n.20

(5th Cir. 1976); Dugas v. National Aircraft Corp. , 438 F.2d 1386 (3d Cir.

1971).

tiaircraft missile and when it crashed on the high seas.

Pet. Br. 3. On KAL’s motion, the district court dismissed

all claims for non-pecuniary damages. In re Korean Air

Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 15 (D.D.C.

1996).

The court of appeals affirmed. Pet. App. la-18a. Relying

on this Court’s decision in Mobil Oil Co. v. Higginbotham,

436 U.S. 618 (1978), the court stated:

Nonpecuniary damages may be recovered under gen-

eral maritime law, but not, the Court held [in Higgin-

botham], 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.

Pet. App. 9a. The court of appeals further observed that

the DOHSA “contains only a very limited survival provi-

sion” (46 U.S.C. App. 765), which should be treated as “an

expression of legislative judgment on the extent to which

survival actions are to be permitted.” Pet. App. 10a. But

see Gray v. Lockheed Aeronautical Systems Co., 125

F.3d 1371 (11th Cir. 1997), petition for cert. pending, No.

97-1209.

SUMMARY OF ARGUMENT

Although they arise from the same tortious act or omis-

sion, wrongful death and survival actions are legally dis-

tinct. That distinction was well understood by Congress

in 1920 when it enacted the Death on the High Seas Act

(DOHSA), 46 U.S.C. App. 761 et seq. The text of the Act

provides three clear indications that Congress intended to

limit the remedies in the DOHSA to a wrongful death ac-

tion. Section 1 of the DOHSA, 46 U.S.C. App. 761, limits

who can maintain the suit to the “personal representative”

of the decedent, as opposed to the executor or administra-

tor of the decedent’s estate, as was common for state sur-

vival statutes enacted in that era. Section 2, 46 U.S.C.

App. 762, limits the damages recoverable under the Act to

compensation for “pecuniary loss” that can be established

by the persons who have lost the support of the decedent.

Finally, Section 5 of the Act, 46 U.S.C. App. 765, permits

the survival of a personal injury suit, but only for the lim-

ited purpose of allowing it to be transformed into a wrong-

ful death action as prescribed by the Act. Petitioners’

reading of that provision to provide concurrent wrongful

death and survival actions would denude Section 5 of its

natural and ordinary meaning.

Contrary to petitioners’ submission, which contains

scant discussion of the legislative history of the DOHSA,

that history in fact demonstrates that Congress knew how

to distinguish between survival and wrongful death ac-

tions, that it deliberately rejected several amendments to

provide a survival remedy in earlier versions of the DO-

HSA, and that it made those choices to limit the liabilities

faced by shipowners. That history removes any doubt that

Congress meant exactly what it provided for in the Act.

Finally, this Court’s decisions have recognized that

general maritime law may provide supplementary reme-

dies in the absence of an Act of Congress on the subject.

That is not the case with respect to deaths on the high

seas, however. This Court’s cases have consistently held

that, for such deaths, plaintiffs are limited to the remedies

provided by the DOHSA. See Zicherman v. Korean Air

Lines, 516 U.S. 217, 229 (1996); Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 232 (1986); Mobil Oil Co. v. Hig-

ginbotham, 436 U.S. 618, 625 (1978).

ARGUMENT

CONGRESS DID NOT INTEND FOR THE JUDICI-

ARY TO SUPPLEMENT THE WRONGFUL DEATH

ACTION PROVIDED IN THE DEATH ON THE

HIGH SEAS ACT WITH A SURVIVAL ACTION

FOR NON-PECUNIARY PAIN AND SUFFERING

In Zicherman, this Court held that the Warsaw Con-

vention, rather than providing its own measure of dam-

ages, “permit[s] compensation only for legally cognizable

harm” and “leave[s] the specification of what harm is le-

gally cognizable to the domestic law applicable under the

forum’s choice-of-law rules.” 516 U.S. at 231. The Con-

vention thus “provides nothing more than a pass-through,

authorizing [the Court] to apply the law that would govern

in the absence of the Warsaw Convention.” /d. at 229. The

Court concluded in Zicherman that the DOHSA is the

federal law applicable to deaths on the high seas.

Moreover, “where DOHSA applies, neither state law, nor

general maritime law, can provide a basis for recovery of

loss-of-society damages.” Jd. at 230 (citing Tallentire, 477

U.S. at 232-233 and Higginbotham, 436 U.S. at 625-626).

Petitioners’ contention that general maritime law nev-

ertheless should provide a supplementary survival remedy

for pain and suffering damages is unpersuasive. Both the

text and legislative history of the DOHSA establish that

Congress specifically considered and rejected providing a

survival action. Moreover, this Court’s decisions estab-

lish that general maritime law should not supplement

statutorily-created remedies for deaths on the high seas.

A. The Language And Structure Of The DOHSA Evince

Congress's Intent To Limit Remedies For High Seas

Deaths And Not To Permit A Survival Action

When Congress enacted the DOHSA in 1920, it legis-

lated against the backdrop of rules long established in ad-

miralty law and at common law. Those judge-made doc-

trines created the rule, actio personalis moritur cum per-

sona, which eliminated a right of recovery if the victim of

a tort died. See generally Frances B. Tiffany, Death By

Wrongful Act § 15 (2d ed. 1913). In overriding the common-

law doctrine embodying that rule, state legislatures had

recognized two distinct sets of injuries from a death

caused by negligence and provided different remedies for

each type of loss. A “wrongful death” statute redresses

the losses incurred by the decedent’s dependents. A “sur-

vival” statute permits recovery for injuries sustained by

the victim of the tort. See generally id. §§ 22-26; Robert

M. Hughes, Handbook of Admiralty Law 222-223 (2d ed.

1920). In the DOHSA, Congress provided only for recov-

ery of damages for wrongful death, and chose not to pro-

vide an action for survival damages. Petitioners ask this

Court to infer that Congress intended to leave the

judiciary free to develop a survival cause of action for

deaths on the high seas. That submission is inconsistent

with the plain language of the DOHSA, which in three

respects makes clear that Congress intended to foreclose

a survival action for deaths on the high seas.‘

1. First, Congress specified for whose benefit the suit

may be brought. Section 1 of the Act provides that “the

personal representative of the decedent may maintain a

suit for damages * * * for the exclusive benefit of the de-

cedent’s wife, husband, parent, child, or dependent rela-

tive.” DOHSA § 1, 46 U.S.C. App. 761 (emphasis added).

The inclusion of that language contrasts with the terms

used in state survival statutes of that era, which generally

specified that a survival action could be brought on behalf

of the decedent’s estate.° That distinction is important,

* From Lord Campbell’s Act in 1846 (9 & 10 Vict. ch. 93) to the pres -

ent time, abrogations of the common law rule that a personal injury

action dies with the plaintiff have been accomplished overwhelmingly

(perhaps exclusively) by legislative act. See Stuart M. Speiser, Char-

les F. Krause & Juanita M. Madole, Recovery for Wrongful Death and

Injury, Appendix A (3d ed. 1992) (collecting statutes).

5 See, e.g., Conn. Gen. Stat. ch. 325, § 6177 (1918) (“No cause or right

of action shall be lost or destroyed by the death of any person, but shall

survive in favor of or against the executor or administrator of such

deceased person.”); Mich. Comp. Laws § 10,113 (1897) (“In all personal

actions, the cause of which does by law survive, * * * the action may

proceed and be prosecuted by or against the surviving party, and by or

against the executor or administrator of the deceased party, in the

manner provided in this chapter.”); 1901 N.H. Laws ch. 191, § 6 (“If a

right of action existed in favor of or against the deceased at the time of

his death, and survives, an action may be brought by or against the

administrator at any time within two years after the original grant of

administration.”).

State wrongful death provisions, by contrast, permitted suit only by

the “personal representative” of the decedent, in much the same manner

as the DOHSA provides. See, eg., 2 N.J. Comp. Stat. 1907, §§ 7-9

(1909-1910); 1910 Or. Laws §§ 378-380; Vt. Stat. ch. 133, §§ 2835, 2839,

2840 (1906); Va. Code Ann. §§ 2902-2906 (Pollard 1904). See generally

because it reflects an intent by Congress in the DOHSA

to remedy the harm caused to the decedent’s dependents by

the wrongful death—loss of support—and not to benefit

the decedent’s estate, which may or may not inure to the

same beneficiaries.

Second, Congress specified what kind of damages could

be obtained. Section 2 of the DOHSA, 46 U.S.C. App. 762,

provides that “(t]he 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.” At the time the DOHSA was enacted, the dis-

tinction between pecuniary and non-pecuniary losses was

well settled in state statutory law.® Pecuniary losses re-

ferred to those damages that could be quantified economi-

cally, such as lost wages or educational expenses for a de-

Tiffany, supra, at xx-lxxi (analytical table summarizing state

wrongful death and survival statutory provisions).

® A number of States that permitted wrongful death actions limited

recovery to “pecuniary” damages that could be shown by dependents of

the decedent. See, e.g., Nev. Rev. Laws § 5648 (1912) (“jury in every

such action may give such damages, pecuniary and exemplary, as they

shall deem fair and just, and may take into consideration the pecuni-

ary injury resulting from such death to the kindred as herein named”);

Ohio Gen. Code §§ 10,770, 10,772, 10,773, 10,773-1 (1912) (limiting

recovery in § 10,772 to damages “not exceeding in any case twelve

thousand dollars, as the jury may think proportional to the pecuniary

injury resulting from such death, to the persons, respectively, for whose

benefit the action was brought”); S.D. Codified Laws ch. 301, §§ 1-3, at

444a (1909) (limiting jury’s discretion to award damages to $10,000, “as

they may think proportionate to the pecuniary injury resulting from

such death to the persons respectively for whose benefit such action

shall be brought”); Vt. Stat. ch. 133, § 2840 (1906) (imposing no

monetary cap, but limiting damages “to the pecuniary injuries

resulting from such death, to the wife and next of kin”); Wis. Stat. ch.

178, §§ 4255-4256 (1898) (limiting jury to maximum of $5,000, “as they

shall deem fair and just in reference to the pecuniary injury resulting

from such death to the relatives of the deceased specified in this

section”).

pendent. Non-pecuniary losses, on the other hand, con-

sisted of damages like mental anguish and physical pain

that bore no relation to a verifiable economic value.’ By

explicitly limiting the damages to “pecuniary losses,”

Congress made plain its intent not to permit compensation

for “non-pecuniary” damages, such as for the decedent’s

pre-death pain and suffering.

Third, Congress understood the difference between a

death action and a survival action that conceptually per-

petuates a personal injury suit. In contrast to state sur-

vival provisions, which specifically stated that an action

would survive the decedent, the DOHSA contains no such

provision. Instead, Congress provided only a very limited

survival provision in the DOHSA for situations in which

an injured victim brought a personal injury suit and then

died before that suit was completed; in that event, Con-

gress provided that the decedent’s personal representative

could, if the other elements of the Act are satisfied, trans-

form the suit into the kind of wrongful death action recog-

nized under the Act. Section 5 of the DOHSA, 46 U.S.C.

App. 765, thus states that “the personal 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].”

7 See, e.g., Tilley v. Hudson River R.R., 24 N.Y. 471, 476 (Ct. App.

1862) (“(T]he word pecuniary was used in distinction to those injuries

to the affections and sentiments which arise from the death of relatives,

and which, though most painful and grievous to be borne, cannot be

measured or recompensed by money. It excludes, also, those losses

which result from the deprivation of the society and companionship

of relatives, which are equally incapable of being defined by any recog-

nized measure of value.”). See generally Tiffany, supra, at 332-333.

Some state statutes explicitly drew that distinction. See, e.g., 1901

N.H. Laws ch. 191, § 12 (“If the administrator of the deceased party is

plaintiff, and the death of such party was caused by the injury com-

plained of in the action, the mental and physical pain suffered by him

in consequence of the injury, the reasonable expenses occasioned to his

estate by the injury, the probable duration of his life but for the injury,

and his capacity to earn money, may be considered as elements of dam-

age in connection with other elements allowed by law.”).

The dependents, in turn, are not permitted to obtain recov-

ery in all of the same ways as the victim, but rather are

limited to the “fair and just compensation for the pecuni-

ary loss sustained by the persons for whose benefit the

suit is brought.” DOHSA § 2, 46 U.S.C. App. 762. The

court of appeals correctly observed that Section 5 of the

DOHSA is “a very limited survival provision” that should

be treated as “an expression of legislative judgment on the

extent to which survival actions are to be permitted.” Pet.

App. 10a. That holding is in accord with this Court’s con-

clusion in Higginbotham that “survival” of an action was

one of the issues that Congress specifically considered,

and “when [the DOHSA] speak{s] directly to a question,

the courts are not free to ‘supplement’ Congress’ answer

so thoroughly that the Act becomes meaningless.” 436

U.S. at 625.

2. Petitioners’ alternative readings (Pet. Br. 31-33) of

the statutory language are unpersuasive. They first con-

tend (id. at 32) that the permissive phrase in Section 5

(“may proceed”) provides the decedent’s personal repre-

sentative with an option to choose whether to continue the

action as a wrongful death suit under the DOHSA or as a

survival action under the general maritime law. That con-

struction, however, largely renders Section 5 surplusage.

If the general maritime law permitted survival actions in

these circumstances, then, upon death resulting from in-

juries, a wrongful death action under the DOHSA and a

survival action under general maritime law would both lie.

Section 5 would not be needed to protect the rights of a de-

cedent’s dependents. Given that a statute should be con-

strued to avoid rendering particular provisions superflu-

ous, see, ¢.g., Freytag v. Commissioner of Internal Reve-

nue, 501 U.S. 868, 877 (1991), the more logical construction

of Section 5 is that Congress did not intend to allow the

decedent’s personal injury suit to survive his or her death,

but instead envisioned the case being converted to a

wrongful death action, so long as there were pecuniary

losses to qualified claimants under DOHSA Sections 1 and

2." The “may proceed” language of Section 5 simply re-

flects Congress’s decision to give decedent’s dependents

an option that they did not have at common law, not to pro-

vide an option of a survival action that would make the rest

of the provision largely meaningless. Indeed, Congress

could not have affirmatively intended to recognize a sur-

vival action under general maritime law, since Moragne v.

State Marine Lines, 398 U.S. 375 (1970), which furnishes

the bases for such an action, was not decided until fifty

years after passage of the DOHSA. See Pet. Br. 13.

Second, petitioners contend (Pet. Br. 29-31) that the re-

placement of DOHSA Section 3 in 1980 with 46 U.S.C. App.

763a” “acknowledges Congress’ approval” of coexisting

survival actions that would be inconsistent with the limi-

tations of DOHSA Sections 1, 2, and 5. They posit that

the more general language of Section 763a, which specifies

the triggering date for the statute of limitations as the

date when “the cause of action accrued,” suggests that

“there is no Congressional policy to preclude the survival

of actions for personal injuries which may be brought

concurrently with a DOHSA death action.” Pet. Br. 31.

Petitioners’ argument fails to acknowledge the full scope

of 46 U.S.C. App. 768a in admiralty actions. By its plain

terms and purpose, 46 U.S.C. App. 768a replaced Section

763 with a more generally-applicable provision. Section

763a “provide[s] for a uniform national three-year statute

of limitations in actions to recover damages for personal

injury or death,” Act of Oct. 6, 1980, Pub. L. No. 96-382, 94

Stat. 1525, as had been permitted in Jones Act suits. See

* For example, a child who dies of such injuries might not have a

“wife, husband, parent, child, or dependent relative” (Section 1) whose

losses could be apportioned under Section 2. See 46 U.S.C. App. 761-

762.

% 46 U.S.C. App. 763a provides:

Unless otherwise specified by law, a suit for recovery of

damages for personal injury or death, or both, arising out of a

maritime tort, shall not be maintained unless commenced within

three years from the date the cause of action accrued.

also H. R. Rep. No. 787, 96th Cong., 2d Sess. 1 (1980). Sec-

tion 763a thus applies not only to DOHSA cases, but also

to a wide variety of maritime torts occurring on the high

seas, including unseaworthiness claims; accidents occur-

ring within territorial waters, including the general mari-

time law claims for that limited geographic area author-

ized by Moragne, 398 U.S. at 393; and maritime torts

occurring on land (such as those involving longshore and

harbor workers). See Friel v. Cessna Aircraft Co., 751

F.2d 1037, 1038-1039 (9th Cir, 1985)."

B. The Legislative History Of The DOHSA Confirms

That Congress Deliberately Omitted A Survival Ac-

tion

The foregoing reading of the text and structure of the

DOHSA is strongly supported by its legislative history,

which provides considerable evidence that Congress un-

derstood that the Act would establish a wrongful death ac-

tion that would be the exclusive remedy available to the

dependents of persons who died from injuries sustained on

the high seas. Petitioners’ discussion of the legislative

history of DOHSA (Pet. Br. 26-29), which is confined to a

single floor statement in the 66th Congress, is as mis-

taken as it is incomplete."

” For cases applying 46 U.S.C. App. 763a in various non-DOHSA

contexts, see, ¢.g., Mendez vy. Ishikawajima-Harima Heavy Indus. Co.,

52 F.3d 799 (9th Cir. 1995); Mink v. Genmar Indus., Inc., 29 F.3d 1543,

1547 (11th Cir. 1994); Butler v. American Trawler Co., 887 F.2d 20

(ist Cir. 1989); Cooper v. Diamond M Co., 799 F.2d 176 (5th Cir. 1986),

cert. denied, 481 U.S. 1048 (1987); Coleman v. Slade Towing Co., 759 F.

Supp. 1209 (S.D. Miss. 1991); Davis v. Britton, 729 F. Supp. 189, 191 (D.

N.H. 1989). Those decisions accord with the codifier’s notes to Section

763a, which state that it “was not enacted as part of * * * the

Death on the High Seas Act, which comprises this Chapter.” 46 U.S.C.

App. 763a, Codification Note (emphasis added).

"Petitioners assert (Pet. Br. 29) that “there is nothing in either

DOHSA itself or the history back to its passage to suggest that Con-

gress meant to deal with, let alone eliminate, survival actions.” The

sources on which they rely for that contention, however, are themselves

incomplete. First, they cite Representative Volstead’s floor statements

when the bill was about to be passed. See id. at 27-28. They do not

414 U.S. 578, 583-591 (1974).” Similarly, state wrongful

death and survival statutes may supplement a Moragne

action for wrongful death occurring on state territorial

waters when no federal statute specifies the appropriate

relief and the decedent is not a seaman, longshore worker,

or person otherwise engaged in the maritime trade. See

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996). Re-

lying, inter alia, on Tallentire and Higginbotham, the

Court has distinguished federal maritime actions for

wrongful death occurring on state territorial waters with

those governed by the DOHSA by holding that “[wJhen

Congress has prescribed a comprehensive tort recovery

regime to be uniformly applied, there is, we have generally

recognized, no cause for enlargement of the damages

statutorily provided.” Jd. at 215. A death on state territo-

rial waters does not present that concern.”

But when the death occurs on the high seas, as in this

case, there is no gap to fill. The DOHSA—rather than the

*”) Although the Court permitted nonpecuniary damages for loss of

society in Gaudet, it held that “mental anguish or grief * * * is not

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

585 n. 17. Gaudet has subsequently been confined to its facts. See

Miles v. Apex Marine Corp., 498 U.S. 19, 31-32 (1990).

21 The Court, as it had done in the past, declined to say whether

the reasoning of Moragne may be extended to permit a survival cause

of action under the general maritime law in the absence of a state sur-

vival statute. See Yamaha Motor Corp., 516 U.S. at 210 n.7; see also

Miles, 498 U.S. at 34. Several courts of appeals, however, have held

that federal maritime law does provide for a survival cause of action in

cases governed by Moragne. See, e.g., Wahistrom v. Kawasaki Heavy

Indus., Ltd., 4 F.3d 1084, 1093 (2d Cir. 1993), cert. denied, 510 U.S. 1114

(1994); 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); Self v. Great

Lakes Dredge & Dock Co., 832 F.2d 1540, 1549 (11th Cir. 1987); Evich v.

Connelly , 759 F.2d 1432, 1434 (9th Cir. 1985); Barbe v. Drummond, 507

F.2d 794, 799-800 (1st Cir. 1974); Spiller v. Thomas M. Lowe, Jr., &

Assocs., 466 F.2d 903, 909 (8th Cir. 1972); Greene v. Vantage S.S., 466

F.2d 159, 166 (4th Cir. 1972); Ward v. Union Barge Line Corp., 448

F.2d 565, 569 (3d Cir. 1971), overruled in part on other grounds, Coz v.

Dravo Corp., 517 F.2d 620 (3d Cir. 1975) (en banc). That issue is not

presented in this case.

general maritime law—governs the action, and the reme-

dies provided in that Act cannot be supplemented by the

federal maritime measure of damages recognized in

Gaudet for Moragne-type causes of action arising from

deaths in territorial waters.

We realize that, because Congress has never enacted a

comprehensive maritime code, admiralty courts have

often been called upon to supplement maritime stat-

utes. The Death on the High Seas Act, however, an-

nounces Congress’ considered judgment on such is-

sues as the beneficiaries, the limitations period, con-

tributory negligence, survival, and damages. The

Act does not address every issue of wrongful-death

law but when it does speak di:ectly to a question, the

courts are not free to “supplement” Congress’ answer

so thoroughly that the Act becomes meaningless.

Higginbotham, 436 U.S. at 625 (citations omitted; empha-

sis added); see aiso ibid. (“Congress did not limit DOHSA

beneficiaries to recovery of their pecuniary losses in order

to encourage the creation of nonpecuniary supplements.”).

Recognizing that there is “a basic difference between fill-

ing a gap left by Congress’ silence and rewriting rules

that Congress has affirmatively and specifically enacted,”

the Court held that “[iJn 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.” bid.

(emphasis added). See also Tallentire, 477 U.S. at 230

(holding that DOHSA’s pecuniary loss remedy could not

be supplemented to include nonpecuniary damages other-

wise recoverable under a seemingly applicable state stat-

ute, because it would be “incongruous” to think “that a

Congress seeking uniformity in maritime law would in-

tend to allow widely divergent state law wrongful death

statutes to be applied on the high seas”). Thus, relying on

its reasoning in Higginbotham, the Court in Tallentire

held that “Congress has ‘struck the balance for us’ in de-

termining that survivors should be restricted to the re-

covery of their pecuniary losses, and when DOHSA ‘does

speak directly to a question, the courts are not free to

“supplement” Congress’ answer so thoroughly that the

Act becomes meaningless.” /d. at 232 (quoting Higgin-

botham, 436 U.S. at 625).

Finally, even as it was reserving the question presented

in this case, the Court in Zicherman underscored that the

remedies in the DOHSA are exclusive when the death oc-

curs on the high seas. 516 U.S. at 230n.4. In that case the

Court rejected an effort to supplement the DOHSA’s pe-

cuniary remedies standard with nonpecuniary damages for

loss of society: “[W]Jhere DOHSA applies, neither state

law nor general maritime law can provide a basis for re-

covery of loss-of-society damages.” Jd. at 229 (citations

omitted). Congress carefully considered and plainly re-

jected a provision that would have allowed a survival cause

of action. It follows, therefore, that the DOHSA cannot be

supplemented to authorize an award of the pre-death pain

and suffering damages sought by petitioners in this case.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.