Nature of the Case
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Facts
On September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into the airspace of the former Soviet Union and was shot down over the Sea of Japan. All 269 people on board were killed. Ps, the personal representatives of three of the passengers, brought lawsuits against respondent Korean Air Lines Co., Ltd. (KAL), in the United States District Court for the District of Columbia. A jury found that KAL had committed “willful misconduct,” thus removing the Warsaw Convention's $75,000 cap on damages, and in a subsequent verdict awarded $50 million in punitive damages. The Court of Appeals for the District of Columbia Circuit upheld the finding of willful misconduct but vacated the punitive damages award on the ground that the Warsaw Convention does not permit the recovery of punitive damages. D moved for a pretrial determination that the Death on the High Seas Act (DOHSA or Act), 46 U.S.C.App. § 761 et seq., provides the exclusive source of recoverable damages. D argued that, in a case of death on the high seas, DOHSA provides the exclusive cause of action and does not permit damages for loss of society, survivors' grief, and decedents' pre-death pain and suffering. The District Court for the District of Columbia disagreed, holding that because petitioners' claims were brought pursuant to the Warsaw Convention, DOHSA could not limit the recoverable damages. The court determined that Article 17 of the Warsaw Convention “allows for the recovery of all ‘damages sustained,’” meaning any “actual harm” that any party “experienced” as a result of the crash. App. 59. The Supreme Court reached a different conclusion in Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996). KE007. It held that the Warsaw Convention “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,” and that where “an airplane crash occurs on the high seas, DOHSA supplies the substantive United States law.” “Where DOHSA applies, neither state law nor general maritime law can provide a basis for recovery of loss-of-society damages.” Id., at 230. The Court did not decide whether the petitioners in Zicherman could recover for their decedents' pre-death pain and suffering, as KAL had not raised this issue in its petition for certiorari. After the Zicherman decision, D again moved to dismiss all of petitioners' claims for nonpecuniary damages. The District Court granted this motion, holding that United States law (not South Korean law) governed these cases; that DOHSA provides the applicable United States law; and that DOHSA does not permit the recovery of nonpecuniary damages - including petitioners' claims for their decedents' pre-death pain and suffering. In re Korean Air Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 12-15 (1996). P argued that, although DOHSA does not itself permit recovery for a decedent's pre-death pain and suffering, general maritime law provides a survival action that allows a decedent's estate to recover for injuries (including pre-death pain and suffering) suffered by the decedent. The Court of Appeals rejected this argument and affirmed. P appealed.
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