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

• Citation: 117 F.3d 1477
• Parties: , 326 U.S.App.D.C. 127 IN RE KOREAN AIR LINES DISASTER OF
• Decision Date: 01 September 1983
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1477

117 F.3d 1477

1998 A.M.C. 178, 326 U.S.App.D.C. 127

IN RE KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983.

Philomena DOOLEY, et al. v. KOREAN AIR LINES CO., LTD.

No. 96-5278.

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 1997.

Decided July 11, 1997.

Rehearing Denied Aug. 28, 1997.

Appeal from the United States District Court for the District of Columbia (83ms00345).

Juanita M. Madole, Irvine, CA, argued the cause and filed the briefs for appellants.

Andrew J. Harakas argued the cause for appellee. With him on the brief was George N. Tompkins, Jr., White Plains, NY.

Before: WALD and RANDOLPH, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

On September 1, 1983, while Korean Air Lines flight KE007 was en route from New York City to Seoul, South Korea, via Anchorage, Alaska, a Soviet military aircraft shot down the airliner over the Sea of Japan, killing all 269 people on board. We have recounted details of the tragedy elsewhere. See In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1476-79 (D.C.Cir.1991).

In the ensuing litigation, a joint liability trial on the claims of 137 plaintiffs took place in the United States District Court for the District of Columbia. A jury found that Korean Air Lines had committed "willful misconduct," thus removing the Warsaw Convention's limitations on liability. This court affirmed. Korean Air Lines Disaster, 932 F.2d at 1479-84. (We did, however, vacate an award of punitive damages. Id. at 1484-90.) The actions were then remanded to the courts in which they had originated for individual proceedings on compensatory damages. This case comes to us as an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), in five damages actions that have not yet gone to trial.

Early in the damages phase of the litigation, the district court rejected Korean Air Lines's argument that the Death on the High Seas Act, 46 U.S.C.App. § 761 et seq., restricted the damages plaintiffs could recover. As discussed later, the Act permits only certain surviving relatives to recover "pecuniary" losses. The district court believed another law--Article 17 of the Warsaw Convention (see Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, art. 17, 49 Stat. 3000, 3018)--"allows for the recovery of all 'damages sustained,' " meaning any "actual harm" any party "experienced" as a result of the crash. Thereafter, the Supreme Court reached a different conclusion: the Warsaw Convention, rather than providing a measure of damages, "permit[s] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice-of-law rules." Zicherman v. Korean Air Lines Co., 516 U.S. 217, ----, 116 S.Ct. 629, 637, 133 L.Ed.2d 596 (1996).

After the Zicherman decision, Korean Air Lines moved in the district court to dismiss all claims for nonpecuniary damages, including damages for loss of society and mental grief, and damages for the decedents' pre-death pain and suffering. Because Zicherman directed lower courts to look to some source of domestic law in a Warsaw Convention case, the district court began with a choice-of-law analysis and concluded that United States law governed these suits. In re Korean Air Lines Disaster of Sept. 1, 1983, 935 F.Supp. 10, 12-14 (D.D.C.1996). No party has challenged that determination. The court then ruled that the Death on the High Seas Act provided the applicable U.S. law, id. at 14, and that the Act did not permit the recovery of nonpecuniary damages, id. at 14-15.

Plaintiffs detect two faults in the district court's reasoning. While they concede that the Death on the High Seas Act itself provides no right to recover damages for a decedent's pre-death pain and suffering, they believe the "general maritime law" recognizes such a cause of action. They also interpret a provision of the Death on the High Seas Act as allowing them to proceed under South Korean law despite the district court's undisputed choice-of-law finding that U.S. law applies. The law of South Korea, they say, permits them to recover damages for pre-death pain and suffering and for the mental grief of surviving relatives.

I

The first section of the Death on the High Seas Act allows the personal representative of any person who dies as the result of a "wrongful act, neglect, or default occurring on the high seas," to sue "for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative." 46 U.S.C.App. § 761. ¹ The next section limits recovery to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." Id. § 762. ² Other sections establish a limitations period, id. § 763a, govern actions under foreign law, id. § 764, permit a personal injury suit to continue under the Act if the plaintiff dies while the action is pending, id. § 765, bar contributory negligence as a complete defense, id. § 766, exempt the Great Lakes and state territorial waters from the Act's coverage, id. § 767, and preserve certain state law remedies and state court jurisdiction id.; see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-33, 106 S.Ct. 2485, 2493-2500, 91 L.Ed.2d 174 (1986).

That the Death on the High Seas Act does not permit recovery for a decedent's pre-death pain and suffering is clear enough. The Act provides a remedy only for injuries suffered by a limited class of surviving relatives, not the decedent. It is, after all, a "wrongful death" statute, giving survivors a right of action for losses they suffered as a result of the decedent's death, not a "survival" statute, allowing a decedent's estate to recover for injuries suffered by the decedent. See Nelson v. American Nat'l Red Cross, 26 F.3d 193, 199 (D.C.Cir.1994); Calhoun v. Yamaha Motor Corp., U.S.A., 40 F.3d 622, 637 (3d Cir.1994), aff'd, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996); McInnis v. Provident Life & Accident Ins. Co., 21 F.3d 586, 589 (4th Cir.1994). Pain and suffering is, in any event, nonpecuniary. ³ On the other hand, § 762 of the Act permits only the recovery of "compensation for ... pecuniary loss sustained."

Plaintiffs do not quarrel with any of this. But, they say, the Death on the High Seas Act is not the only pertinent source of U.S. law. As they see it, "general maritime law"--a species of federal common law--also applies and it allows a survival action for pre-death pain and suffering independent of any action under the Death on the High Seas Act.

The Supreme Court identified a wrongful death cause of action under the general maritime law in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The death in Moragne occurred in waters within the state of Florida, id. at 376, 90 S.Ct. at 1775, so the Death on the High Seas Act did not apply. The Court held that general maritime law nevertheless provided the decedent's widow with a remedy for wrongful death caused by a violation of federal maritime duties. Id. at 409, 90 S.Ct. at 1792. In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585-90, 94 S.Ct. 806, 814-17, 39 L.Ed.2d 9 (1974), in which the death occurred in Louisiana waters, the Court held that recovery in a Moragne wrongful death action is not limited to pecuniary damages, as it is in actions under the Death on the High Seas Act. (Although the Court permitted nonpecuniary damages for loss of society in Gaudet, it said that "mental anguish or grief ... is not compensable under the maritime wrongful-death remedy," 414 U.S. at 585 n. 17, 94 S.Ct. at 816 n. 17.) A few years after Gaudet, the Court held that if a death occurs on the high seas, the Death on the High Seas Act, not general maritime law, governs and therefore nonpecuniary wrongful death damages may not be recovered. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622-26, 98 S.Ct. 2010, 2013-15, 56 L.Ed.2d 581 (1978).

The Supreme Court has declined to say whether the reasoning of Moragne may be extended to permit a survival cause of action under the general maritime law. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, ---- n. 7, 116 S.Ct. 619, 625 n. 7, 133 L.Ed.2d 578 (1996); Miles v. Apex Marine Corp., 498 U.S. 19, 34, 111 S.Ct. 317, 326-27, 112 L.Ed.2d 275 (1990). We have never addressed the issue. Other courts of appeals have and a majority of them recognize survival actions. See, e.g., Barbe v. Drummond, 507 F.2d 794, 799-800 (1st Cir.1974); Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1093 (2d Cir.1993); Ward v. Union Barge Line Corp., 443 F.2d 565, 569 (3d Cir.1971), overruled in part on other grounds by Cox v. Dravo Corp., 517 F.2d 620 (3d Cir.1975) (en banc); Greene v. Vantage S.S. Corp., 466 F.2d 159, 166 (4th Cir.1972); Miles v. Melrose, 882 F.2d 976, 986 (5th Cir.1989), aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); Spiller v. Thomas M. Lowe, Jr., & Assocs., Inc., 466 F.2d 903, 909 (8th Cir.1972); Evich v. Connelly, 759 F.2d 1432, 1434 (9th Cir.1985); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1549 (11th Cir.1987).

Three courts of appeals have dealt with the availability of a general maritime law survival action for deaths on the high seas. The First and Fifth Circuits have permitted general maritime law survival actions in cases in which the Death on the High Seas Act also applies. See Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893-94 (5th Cir.1984); Barbe, 507 F.2d at 799-800. The Ninth Circuit reached the opposite conclusion. See Saavedra v. Korean Air Lines Co., 93 F.3d 547, 553-54 (9th Cir.1996). ⁴ We believe the Ninth Circuit got it right.

Assume general maritime law provides a survival action in some cases (we do not decide whether...