Zicherman v. Korean Air Lines

• Citation: 516 U.S. 217,116 S.Ct. 629,133 L.Ed.2d 596
• Decision Date: 16 January 1996
• Docket Number: 941361
• Parties: Marjorie ZICHERMAN, etc., et al., Petitioners, v. KOREAN AIR LINES CO., LTD. KOREAN AIR LINES CO., Petitioner, v. Marjorie ZICHERMAN, etc., et al
• Court: U.S. Supreme Court

516 U.S. 217

116 S.Ct. 629

133 L.Ed.2d 596

Marjorie ZICHERMAN, etc., et al., Petitioners,

v KOREAN AIR LINES CO., LTD.

KOREAN AIR LINES CO., Petitioner,

v. Marjorie ZICHERMAN, etc., et al.

Nos. 94-1361, 94-1477.

Supreme Court of the United States

Argued Nov. 7, 1995.

Decided Jan. 16, 1996.^*

Syllabus ^**

In a suit brought under Article 17 of the Warsaw Convention governing international air transportation, petitioners Zicherman and Mahalek were awarded loss-of-society damages for the death of their mutual relative who was a passenger on respondent Korean Air Lines' Flight KE007 when it was shot down over the Sea of Japan. The Second Circuit set aside the award, holding that general maritime law supplied the substantive compensatory damages law to be applied in an action under the Warsaw Convention and that, under such law, a plaintiff can recover for loss of society only if he was the decedent's dependent at the time of death. The court concluded that Mahalek had not established dependent status and remanded for the District Court to determine whether Zicherman was a dependent of the decedent.

Held: In a suit brought under Article 17, a plaintiff may not recover loss-of-society damages for the death of a relative in a plane crash on the high seas, within the meaning of the Death on the High Seas Act (DOHSA). Pp. 632-637.

(a) Article 17 permits compensation only for legally cognizable harm, but leaves the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice-of-law rules. That the Convention does not itself resolve the issue of what harm is compensable is shown by the text of Articles 17 and 24, the Convention's negotiating and drafting history, the contracting states' post-ratification understanding of the Convention, and the virtually unanimous view of expert commentators. Pp. 632-635.

(b) Having concluded that compensable harm is to be determined by domestic law, the next logical question would be that of which sovereign's domestic law. In this case, the Court need not engage in this inquiry, because the parties have agreed that if the issue of compensable harm is unresolved by the Warsaw Convention, it is governed in the present case by the law of the United States. The final unresolved question is then which particular United States law applies. The death that occurred here falls within the literal terms of DOHSA § 761, and it is well established that those terms apply to airplane crashes. Since recovery in a § 761 suit is limited to pecuniary damages, § 762, petitioners cannot recover for loss of society under DOHSA. Moreover, where DOHSA applies, neither state law nor general maritime law can provide a basis for recovery of loss-of-society damages. Because petitioners are not entitled to recover loss-of-society damages under DOHSA, this Court need not reach the question whether, under general maritime law, dependency is a prerequisite for loss-of-society damages. Pp. 635-637.

43 F.3d 18 (C.A.2 1994), affirmed in part and reversed in part.

SCALIA, J., delivered the opinion for a unanimous C ourt.

Paul Needham, Boston, MA, for petitioners in case No. 94-1361.

Andrew J. Harakas, White Plains, NY, for respondent in case No. 94-1361.

Justice SCALIA delivered the opinion of the Court.

This case presents the question whether, in a suit brought under Article 17 of the Warsaw Convention governing international air transportation, Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) (reprinted in note following 49 U.S.C.App. § 1502 (1988 ed.)), a plaintiff may recover damages for loss of society resulting from the death of a relative in a plane crash on the high seas.

I

On September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into air space of the Soviet Union and was shot down over the Sea of Japan. All 269 persons on board were killed, including Muriel Kole. Petitioners Marjorie Zicherman and Muriel Mahalek, Kole's sister and mother, respectively, sued respondent Korean Air Lines Co., Ltd. (KAL) in the United States District Court for the Southern District of New York. Petitioners' final amended complaint contained three counts, entitled, respectively, "Warsaw Convention," "Death on the High Seas Act," and "Conscious Pain and Suffering." At issue here is only the Warsaw Convention count, in which petitioners sought "judgment against KAL for their pecuniary damages, for their grief and mental anguish, for the loss of the decedent's society and companionship, and for the decedent's conscious pain and suffering." App. 29.

Along with other federal-court actions arising out of the KAL crash, petitioners' case was transferred to the United States District Court for the District of Columbia for consolidated proceedings on common issues of liability. There, a jury found that the destruction of Flight KE007 was proximately caused by "willful misconduct" of the flight crew, thus lifting the Warsaw Convention's $75,000 cap on damages. See Warsaw Convention, Art. 25, 49 Stat. 3020; Order of Civil Aeronautics Board Approving Increases in Liability Limitations of Warsaw Convention and Hague Protocol, reprinted in note following 49 U.S.C.App. § 1502 (1988 ed.). The jury awarded $50 million in punitive damages against KAL. The Court of Appeals for the District of Columbia Circuit upheld the finding of "willful misconduct," but vacated the punitive damages award, holding that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1479-1481, 1484-1490 (C.A.D.C.), cert. denied, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). The individual cases were then remanded by the Judicial Panel on Multidistrict Litigation to the original transferor courts for trial of compensatory damage issues.

At petitioners' damages trial in the Southern District of New York, KAL moved for determination that the Death on the High Seas Act (DOHSA), 41 Stat. 537 (1988 ed.), 46 U.S.C.App. § 761 et seq., prescribed the proper claimants and the recoverable damages, and that it did not permit damages for loss of society. The District Court denied the motion and held, inter alia, that petitioners could recover for loss of "love, affection, and companionship." In re Korean Air Lines Disaster of Sept. 1, 1983, 807 F.Supp. 1073, 1086-1088 (S.D.N.Y.1992). The jury awarded loss-of-society damages in the amount of $70,000 to Zicherman and $28,000 to Mahalek.¹

The Court of Appeals for the Second Circuit set aside this award. Applying its prior deci sions in In re Air Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 928 F.2d 1267, 1278-1279(CA2) (Lockerbie I), cert. denied sub nom. Rein v. Pan American World Airways, Inc., 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991), and In re Air Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 37 F.3d 804 (C.A.2 1994) (Lockerbie II), cert. denied sub nom. Pan American World Airways, Inc. v. Pagnucco, 513 U.S. ----, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995), it held that general maritime law supplied the substantive law of compensatory damages to be applied in an action under the Warsaw Convention. 43 F.3d 18, 21-22 (1994). Then, following its decision in Lockerbie II, it held that, under general maritime law, a plaintiff is entitled to recover loss-of-society damages, but only if he was a dependent of the decedent at the time of death. 43 F.3d, at 22. The court concluded that as a matter of law Mahalek had not established that status, and therefore vacated her award; it remanded to the District Court for determination of whether Zicherman was a dependent of Kole. Ibid.

In their petition for certiorari, petitioners contended that under general maritime law dependency is not a requirement for recovering loss-of-society damages. In a cross-petition, KAL contended that the Warsaw Convention does not allow loss-of-society damages in this case, regardless of dependency. We granted certiorari.

II

Article 17 of the Warsaw Convention, as set forth in the official American translation of the governing French text, provides as follows:

"The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." 49 Stat. 3018 (emphasis added).

The first and principal question before us is whether loss of society of a relative is made recoverable by this provision.

It is obvious that the English word "damage" or "harm"—or in the official text of the Convention, the French word "dommage " ² can be applied to an extremely wide range of phenomena, from the medical expenses incurred as a result of Kole's injuries (for which every legal system would provide tort compensation), to the mental distress of some stranger who reads about Kole's death in the paper (for which no legal system would provide tort compensation). It cannot seriously be maintained that Article 17 uses the term in this broadest sense, thus exploding tort liability beyond what any legal system in the world allows, to the farthest reaches of what could be denominated "harm." We therefore reject petitioners' initial proposal that we simply look to English dictionary definitions of "damage" and apply that term's "plain meaning." Brief for Petitioners 7-9.

There are only two thinkable alternatives to that. First, what petitioners ultimately suggest: that "dommage " means what French law, in 1929, recognized as legally cognizable harm, which petitioners assert included not only "dommage materiel " (pecuniary harm of various sorts) but also "dommage moral " (non-pecuniary harm of various sorts, including loss of society). In support of...