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Zicherman v. Korean Air Lines Co.

January 16, 1996

MARJORIE ZICHERMAN, ETC., ET AL., PETITIONERS

v.

KOREAN AIR LINES CO., LTD.

KOREAN AIR LINES CO., PETITIONER

v.

MARJORIE ZICHERMAN, ETC., ET AL.



SYLLABUS BY THE COURT

Certiorari to the United States Court of Appeals for the Second Circuit.

No. 94-1361.

Argued November 7, 1995

Decided January 16, 1996 *fn*

In a suit brought under Article 17 of the Warsaw Convention governing international air transportation, petitioners Zicherman and Mahalek were awarded loss-of-society damages for the death of their mutual relative who was a passenger on respondent Korean Air Lines' Flight KE007 when it was shot down over the Sea of Japan. The Second Circuit set aside the award, holding that general maritime law supplied the substantive compensatory damages law to be applied in an action under the Warsaw Convention and that, under such law, a plaintiff can recover for loss of society only if he was the decedent's dependent at the time of death. The court concluded that Mahalek had not established dependent status and remanded for the District Court to determine whether Zicherman was a dependent of the decedent.

Held: In a suit brought under Article 17, a plaintiff may not recover loss-of-society damages for the death of a relative in a plane crash on the high seas, within the meaning of the Death on the High Seas Act (DOHSA). Pp. 4-15.

(a) Article 17 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. That the Convention does not itself resolve the issue of what harm is compensable is shown by the text of Articles 17 and 24, the Convention's negotiating and drafting history, the contracting states' post-ratification understanding of the Convention, and the virtually unanimous view of expert commentators. Pp. 4-12.

(b) Having concluded that compensable harm is to be determined by domestic law, the next logical question would be that of which sovereign's domestic law. In this case, the Court need not engage in this inquiry, because the parties have agreed that if the issue of compensable harm is unresolved by the Warsaw Convention, it is governed in the present case by the law of the United States. The final unresolved question is then which particular United States law applies. The death that occurred here falls within the literal terms of DOHSA Section(s) 761, and it is well established that those terms apply to airplane crashes. Since recovery in a Section(s) 761 suit is limited to pecuniary damages, Section(s) 762, petitioners cannot recover for loss of society under DOHSA. Moreover, where DOHSA applies, neither state law nor general maritime law can provide a basis for recovery of loss-of-society damages. Because petitioners are not entitled to recover loss-of-society damages under DOHSA, this Court need not reach the question whether, under general maritime law, dependency is a prerequisite for loss-of-society damages. Pp. 12-15. 43 F. 3d 18, affirmed in part and reversed in part.

Scalia, J., delivered the opinion for a unanimous Court.

Justice Scalia

On Writs of Certiorari to the United States Court of Appeals for the Second Circuit.

This case presents the question whether, in a suit brought under Article 17 of the Warsaw Convention governing international air transportation, Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934) (reprinted in note following 49 U. S. C. App. Section(s) 1502 (1988 ed.)), a plaintiff may recover damages for loss of society resulting from the death of a relative in a plane crash on the high seas.

I.

On September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into air space of the Soviet Union and was shot down over the Sea of Japan. All 269 persons on board were killed, including Muriel Kole. Petitioners Marjorie Zicherman and Muriel Mahalek, Kole's sister and mother, respectively, sued respondent Korean Air Lines Co., Ltd. (KAL) in the United States District Court for the Southern District of New York. Petitioners' final amended complaint contained three counts, entitled, respectively, "Warsaw Convention," "Death on the High Seas Act," and "Conscious Pain and Suffering." At issue here is only the Warsaw Convention count, in which petitioners sought "judgment against ...


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