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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 116

## Text

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
v.

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.

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

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

(III)

on =

ee

IV
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

22
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

VI
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

© OD cesessvesnstzsrereesseremenensenersememsemsessenemesnes 10
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

© BSED crmnasnnssnscasnensresurenpenesssnenssnmsnssnsensscenseenss 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

© SD cecneessneteensieneennsnennttienecsentensenssseresstmmansesase 8, 9
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

IX
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

v.

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)

2

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

3

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).

4

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).

5

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

6

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

7

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”).

10

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.”).

11

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

12

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.

13

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

28

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-

30

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.

SETH P. WAXMAN
Solicitor General

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
MARCH 1998

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0133%3A8. Public record. Not legal advice.