On Friday, January 9, the Supreme Court granted certiorari in one case of interest to the business community. Amicus briefs in support of the petitioners are due on February 23, 1998, and amicus briefs in support of the respondent are due on March 25. Any questions about this case should be directed to Evan Tager (202-778-0618) or Alan Untereiner (202-778-0656) in our Washington office.

Maritime Law — Death on the High Seas Act — Survival Action for Pre-Death Pain and Suffering. The Death on the High Seas Act, 46 U.S.C. App. §§ 761-768 (DOHSA), allows the personal representative of a person killed by a "wrongful act, neglect, or default occurring on the high seas" to maintain a lawsuit on behalf of the "decedent's wife, husband, parent, child, or dependent relative" for "pecuniary loss sustained by the persons for whose benefit the suit is brought." Id. § 761. In an attempt to recover for injuries beyond those suffered by the decedent's relatives, DOHSA plaintiffs have argued in recent years that general maritime law (i.e., federal common law), allows them to assert - in addition to their DOHSA claims - separate "survival" claims for their decedents' pre-death pain and suffering. The Supreme Court granted certiorari in Dooley v. Korean Air Lines Co., No. 97-704, to determine (1) whether the general maritime law of the United States recognizes a survival action for a decedent's pre-death pain and suffering and, if so, (2) whether such a claim can be brought simultaneously with a wrongful death action under DOHSA.

Petitioners' decedents perished when, on September 1, 1983, a Soviet military aircraft shot down Korean Air Lines flight KE007 over the Sea of Japan. Petitioners filed DOHSA claims against Korean Air Lines, as well as separate survival claims for their decedents' pre-death pain and suffering. Korean Air Lines moved to dismiss the survival claims on the ground that DOHSA provided the exclusive remedy for death on the high seas and that, therefore, petitioners could not recover nonpecuniary damages.

The district court granted Korean Air Lines' motion. 935 F. Supp. 10 (D.D.C. 1996). The D.C. Circuit affirmed, holding that the Supreme Court's decision in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978), "instructs the lower federal courts not to extend the general maritime law to areas in which Congress has already legislated." 117 F.3d 1477, 1481 (1997). The D.C. Circuit's decision is consistent with a decision of the Ninth Circuit, see Saavedra v. Korean Air Lines, 93 F.3d 547, 549-551, cert. denied, 117 S. Ct. 584 (1996), but conflicts with a decision of the Eleventh Circuit, see Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1371, 1381-1384 (1997).

The result in this case is likely to affect claims arising from the TWA flight 800 disaster off the coast of New York on July 17, 1996, and should be of general interest not only to commercial air carriers, but to private aircraft, helicopter, and cruise ship businesses that may be subject to DOHSA liability.