OCTOBER TERM, 1997
Syllabus
DOOLEY, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHUAPOCO, ET
AL.
v. KOREAN AIR LINES CO., LTD.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 97-704. Argued April 27, 1998-Decided June 8,1998
The Death on the Righ Seas Act (DORSA or Act) allows certain
relatives of a decedent to sue for their own pecuniary losses, but
does not authorize recovery for the decedent's pre-death pain and
suffering. Petitioners, personal representatives of three
passengers killed when Korean Air Lines Flight KE007 was shot down
over the Sea of Japan, sued respondent airline (KAL) for,
inter
alia, damages for their decedents' pre-death pain and
suffering. While their suit was pending, this Court decided in
Zicherman v.
Korean Air Lines Co., 516 U. S. 217-which arose
out of the same disaster-that the Warsaw Convention permits
compensation only for legally cognizable harm, but leaves the
specification of what constitutes such harm to applicable domestic
law, id., at 231; that DORSA supplies the applicable United States
law where an airplane crashes on the high seas,
ibid.; and
that where DORSA applies, neither state nor general maritime law
can permit recovery of loss-ofsociety damages, id., at 230.
Subsequently, the District Court in this case granted KAUs motion
to dismiss petitioners' nonpecuniary damages claims on the ground
that DORSA does not permit recovery for such damages, including
damages for a decedent's pre-death pain and suffering. In
affirming, the Court of Appeals rejected petitioners' argument that
general maritime law provides a survival action for pain and
suffering damages, holding that Congress has decided who may sue
and for what in cases of death on the high seas.
Held: Because Congress has chosen not to authorize a
survival action for a decedent's pre-death pain and suffering in a
case of death on the high seas, there can be no general maritime
survival action for such damages. Before Congress enacted DORSA,
admiralty law did not permit an action to recover damages for a
person's death. In DORSA, Congress authorized such a cause of
action for certain surviving relatives in cases of death on the
high seas, 46 U. S. C. App. § 761, but limited recovery to the
survivors' own pecuniary losses, § 762. DORSA's limited survival
provision also restricts recovery to the survivors' pecuniary
losses. § 765. In
Mobil Oil Corp. v.
Higginbotham,
436 U. S. 618,
this Court
117
held that, in a case of death on the high seas, a decedent's
survivors could not recover damages under general maritime law for
their loss of society, reasoning that, since DOHSA announced
Congress' considered judgment on,
inter alia, beneficiaries,
survival, and damages,
id., at 625, the Court had no
authority to substitute its views for those expressed by Congress,
id., at 626. Because
Higginbotham involved only the
scope of the remedies available in a wrongful-death action, it did
not address the availability of other causes of action. However,
petitioners err in contending that DOHSA is a wrongful-death
statute with no bearing on the availability of a survival action.
By authorizing only certain surviving relatives to recover damages,
and by limiting damages to those relatives' pecuniary losses,
Congress provided the exclusive recovery for deaths on the high
seas. Petitioners concede that their action would expand the class
of beneficiaries entitled to recovery and the recoverable damages;
but Congress has already decided these issues and, thus, has
precluded the judiciary from expanding either category. DOHSA's
survival provision confirms the Act's comprehensive scope by
expressing Congress' considered judgment on the availability and
contours of a survival action in cases of death on the high seas.
Congress has simply chosen to adopt a more limited survival
provision than that urged by petitioners. Indeed, Congress did so
in the same year that it incorporated a survival action similar to
the one petitioners seek into the Jones Act, permitting seamen to
recover damages for their own injuries. In the exercise of its
admiralty jurisdiction, the Court will not upset the balance
Congress struck by authorizing a cause of action with which
Congress was certainly familiar but nonetheless declined to adopt.
pp. 121-124.
117 F.3d
1477, affirmed.
THOMAS, J., delivered the opinion for a unanimous Court.
Juanita M. Madole argued the cause and filed briefs for
petitioners.
Andrew J.
Harakas argued the cause for
respondent.
With him on the brief was
George N.
Tompkins,
Jr.
Jeffrey P. Minear argued the cause for the United States as
amicus curiae urging affirmance. On the brief were Solicitor
General Waxman, Assistant Attorney General Hunger, Deputy Solicitor
General Kneedler, David C. Frederick, Barbara B. O'Malley, and
Bruce G. Forrest.
118
JUSTICE THOMAS delivered the opinion of the Court.
In a case of death on the high seas, the Death on the High Seas
Act, 46 U. S. C. App. § 761
et seq., allows certain
relatives of the decedent to sue for their pecuniary losses, but
does not authorize recovery for the decedent's pre-death pain and
suffering. This case presents the question whether those relatives
may nevertheless recover such damages through a survival action
under general maritime law. We hold that they may not.
I
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.
Petitioners, 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. These cases were consolidated in that court,
along with the other federal actions arising out of the crash.
After trial, 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.
In re
Korean Air Lines Disaster of Sept. 1, 1983,
932
F.2d 1475, cert. denied, 502 U. S. 994 (1991).
The Judicial Panel on Multidistrict Litigation thereafter
remanded, for damages trials, all of the individual cases to the
District Courts in which they had been filed. In petitioners'
cases, KAL moved for a pretrial determination that the Death on the
High Seas Act (DOHSA or Act), 46 U. S. C.
119
App. § 761
et seq., provides the exclusive source of
recoverable damages. DOHSA provides, in relevant part:
"Whenever the death of a person shall be caused by wrongful act,
neglect, or default occurring on the high seas beyond a marine
league from the shore of any State, or the District of Columbia, or
the Territories or dependencies of the United States, the personal
representative of the decedent may maintain a suit for damages in
the district courts of the United States, in admiralty, for the
exclusive benefit of the decedent's wife, husband, parent, child,
or dependent relative .... " § 761.
"The recovery in such suit shall be a fair and just compensation
for the pecuniary loss sustained by the persons for whose benefit
the suit is brought .... " § 762.
KAL 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.
While petitioners' cases were awaiting damages trials, we
reached a different conclusion in
Zicherman v.
Korean Air
Lines Co., 516 U.
S. 217 (1996), another case arising out of the downing of
Flight KE007. In
Zicherman, we held that the Warsaw
Convention "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," and that where "an
120
airplane crash occurs on the high seas, DOHSA supplies the
substantive United States law."
Id., at 231. Accordingly,
the petitioners could not recover damages for loss of society:
"[W]here DOHSA applies, neither state law, see
Offshore
Logistics, Inc. v.
Tallentire, 477 U. S. 207, 232-233
(1986), nor general maritime law, see
Mobil Oil Corp. v.
Higginbotham, 436 U. S. 618, 625-626
(1978), can provide a basis for recovery of loss-of-society
damages."
Id., at 230. We did not decide, however, 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. See id., at 230, n. 4.
After the
Zicherman decision, KAL 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' predeath pain and suffering.
In re Korean Air
Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 12-15
(1996).
On appeal, petitioners 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.
In re Korean Air
Lines Disaster of Sept. 1, 1983,
117 F.3d
1477 (CADC 1997). Assuming,
arguendo, that there is a
survival cause of action under general maritime law, the court held
that such an action is unavailable when the death is on the high
seas:
"For deaths on the high seas, Congress decided who may sue and
for what. Judge-made general maritime law may not override such
congressional judgments, however ancient those judgments may happen
to be. Con-
121
gress made the law and it is up to Congress to change it."
Id., at 1481.
We granted certiorari, 522 U. S. 1038 (1998), to resolve a
Circuit split concerning the availability of a general maritime
survival action in cases of death on the high seas. Compare,
e.
g., In re Korean Air Lines Disaster, 117 F. 3d, at 1481, with
Gray v.
Lockheed Aeronautical Systems Co., 125 F.3d
1371, 1385 (CAll 1997).
II
Before Congress enacted DOHSA in 1920, the general law of
admiralty permitted a person injured by tortious conduct to sue for
damages, but did not permit an action to be brought when the person
was killed by that conduct. See generally R. Hughes, Handbook of
Admiralty Law 222-223 (2d ed. 1920). This rule stemmed from the
theory that a right of action was personal to the victim and thus
expired when the victim died. Accordingly, in the absence of an Act
of Congress or state statute providing a right of action, a suit in
admiralty could not be maintained in the courts of the United
States to recover damages for a person's death. See
The
Harrisburg, 119
U. S. 199, 213 (1886);
The Alaska, 130 U. S. 201, 209
(1889).1
Congress passed such a statute, and thus authorized recovery for
deaths on the high seas, with its enactment of DOHSA. DOHSA
provides a cause of action for "the death of a person ... caused by
wrongful act, neglect, or default occurring on the high seas," §
761; this action must be brought by the decedent's personal
representative "for the exclusive benefit of the decedent's wife,
husband, parent,
1 We later rejected this rule in
Moragne v.
States
Marine Lines, Inc., 398 U. S. 375, 408-409
(1970), by overruling
The Harrisburg, 119 U. S. 199 (1886), and
holding that a federal remedy for wrongful death exists under
general maritime law. In
Sea-Land Services, Inc. v.
Gaudet, 414 U.
S. 573, 574 (1974), we further held that such wrongful-death
awards could include compensation for loss of support and services
and for loss of society.
122
child, or dependent relative,"
ibid. The Act limits
recovery in such a suit to "a fair and just compensation for the
pecuniary loss sustained by the persons for whose benefit the suit
is sought." § 762. DOHSA also includes a limited survival
provision: In situations in which a person injured on the high seas
sues for his injuries and then dies prior to completion of the
suit, "the personal representative of the decedent may be
substituted as a party and the suit may proceed as a suit under
this chapter for the recovery of the compensation provided in
section 762." § 765. Other sections establish a limitations period,
§ 763a, govern actions under foreign law, § 764, bar contributory
negligence as a complete defense, § 766, exempt the Great Lakes,
navigable waters in the Panama Canal Zone, and state territorial
waters from the Act's coverage, § 767, and preserve certain
state-law remedies and state-court jurisdiction,
ibid. DOHSA
does not authorize recovery for the decedent's own losses, nor does
it allow damages for nonpecuniary losses.
In
Mobil Oil Corp. v.
Higginbotham, 436 U. S. 618 (1978), we
considered whether, in a case of death on the high seas, a
decedent's survivors could recover damages under general maritime
law for their loss of society. We held that they could not, and
thus limited to territorial waters those cases in which we had
permitted loss of society damages under general maritime law.
Id., at 622-624; see n. 1,
supra. For deaths on the
high seas, DOHSA "announces Congress' considered judgment on such
issues as the beneficiaries, the limitations period, contributory
negligence, survival, and damages." 436 U. S., at 625. We thus
noted that while we could "fil[l] a gap left by Congress' silence,"
we were not free to "rewrit[e] rules that Congress has
affirmatively and specifically enacted."
Ibid. Because
"Congress ha[d] struck the balance for us" in DOHSA by limiting the
available recovery to pecuniary losses suffered by surviving
relatives, id., at 623, we had "no authority to substitute our
views for those expressed by Congress,"
id., at 626.
Hig-
123
ginbotham, however, involved only the scope of the
remedies available in a wrongful-death action, and thus did not
address the availability of other causes of action.
Conceding that DOHSA does not authorize recovery for a
decedent's pre-death pain and suffering, petitioners seek to
recover such damages through a general maritime survival action.
Petitioners argue that general maritime law recognizes a survival
action, which permits a decedent's estate to recover damages that
the decedent would have been able to recover but for his death,
including pre-death pain and suffering. And, they contend, because
DOHSA is a wrongful-death statute-giving surviving relatives a
cause of action for losses they suffered as a result of the
decedent's death-it has no bearing on the availability of a
survival action.
We disagree. DOHSA expresses Congress' judgment that there
should be no such cause of action in cases of death on the high
seas. By authorizing only certain surviving relatives to recover
damages, and by limiting damages to the pecuniary losses sustained
by those relatives, Congress provided the exclusive recovery for
deaths that occur on the high seas. Petitioners concede that their
proposed survival action would necessarily expand the class of
beneficiaries in cases of death on the high seas by permitting
decedents' estates (and their various beneficiaries) to recover
compensation. They further concede that their cause of action would
expand the recoverable damages for deaths on the high seas by
permitting the recovery of nonpecuniary losses, such as pre-death
pain and suffering. Because Congress has already decided these
issues, it has precluded the judiciary from enlarging either the
class of beneficiaries or the recoverable damages. As we noted in
Higginbotham, "Congress did not limit DOHSA beneficiaries to
recovery of their pecuniary losses in order to encourage the
creation of nonpecuniary supplements."
Id., at 625.
124
The comprehensive scope of DOHSA is confirmed by its survival
provision, see
supra, at 122, which limits the recovery in
such cases to the pecuniary losses suffered by surviving relatives.
The Act thus expresses Congress' "considered judgment,"
Mobil
Oil Corp. v.
Higginbotham, supra, at 625, on the
availability and contours of a survival action in cases of death on
the high seas. For this reason, it cannot be contended that DOHSA
has no bearing on survival actions; rather, Congress has simply
chosen to adopt a more limited survival provision. Indeed, Congress
did so in the same year that it incorporated into the Jones Act,
which permits seamen injured in the course of their employment to
recover damages for their injuries, a survival action similar to
the one petitioners seek here. See Act of June 5, 1920, § 33, 41
Stat. 1007 (incorporating survival action of the Federal Employers'
Liability Act, 45 U. S. C. § 59). Even in the exercise of our
admiralty jurisdiction, we will not upset the balance struck by
Congress by authorizing a cause of action with which Congress was
certainly familiar but nonetheless declined to adopt.
In sum, Congress has spoken on the availability of a survival
action, the losses to be recovered, and the beneficiaries, in cases
of death on the high seas. Because Congress has chosen not to
authorize a survival action for a decedent's pre-death pain and
suffering, there can be no general maritime survival action for
such damages.2 The judgment of the Court of Appeals is
Affirmed.
2 Accordingly, we need not decide whether general maritime law
ever provides a survival action.
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