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
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
Copyright 1995 Mayer, Brown & Platt. This Mayer, Brown
& Platt publication provides information and comments on legal issues and
developments of interest to our clients and friends. The foregoing is not a
comprehensive treatment of the subject matter covered and is not intended to
provide legal advice. Readers should seek specific legal advice before taking
any action with respect to the matters discussed herein.