120
Opinion of the Court
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' pre-death 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-
Page: Index Previous 1 2 3 4 5 6 7 8 9 NextLast modified: October 4, 2007