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Published online by Cambridge University Press: 27 February 2017
Petitioners Marjorie Zicherman and Muriel Mahalek sought damages from respondent Korean Air Lines (KAL) under the Warsaw Convention governing international air transport, for loss of society of a family member killed aboard a commercial airliner downed by a Soviet warplane. In a cross-petition, KAL requested a determination that the Death on the High Seas Act (DOHSA) prescribed damages recoverable under the Convention and did not allow damages to be recovered for loss of society. The Supreme Court (per Scalia, J.) affirmed in part and remanded in part and held unanimously that the Convention did not permit family members to recover loss-of-society damages because (1) Article 17 of the Convention provides for carrier liability in passenger deaths or injuries but leaves the crucial definition of legally cognizable harm to be determined by domestic courts; (2) in the United States, DOHSA prescribes the substantive law covering air crashes on the high seas; and (3) DOHSA permits only pecuniary damages.
1 Zicherman and Mahalek were, respectively, the sister and mother of deceased passenger Muriel Kole.
2 Convention on the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 137 LNTS 11, repainted in 49 U.S.C. §40,105 note (1994) [hereinafter Warsaw Convention].
3 On September 1, 1983, Korean Air Lines Flight 007, a Boeing 747 jetliner with 269 people aboard, strayed some 300 miles off course during a flight from New York to Seoul and violated the airspace of the Soviet Union. A Soviet SU–15 military aircraft intercepted and shot down the passenger plane over the Sea of Japan, killing all persons aboard.
4 Death on the High Seas Act, ch. 111, 41 Stat. 537 (1920) (codified at 46 U.S.C. app. §§761–767 (1994)).
5 Loss-of-society damages refer to positive nonpecuniary benefits that the decedent would have provided to her family had she lived. “Society” encompasses a wide spectrum of mutual familial benefits such as love, affection and care. See Stephen J. Fearon, Recoverable Damages in Wrongful Death Actions Governed by the Warsaw Convention, 62 Def. Couns. 367, 368 (1995).
6 Warsaw Convention, 49 Stat, at 3018.
7 116 S.Ct. 629, 632.
8 Id.
9 Air France v. Saks, 470 U.S. 392 (1985), in which the Court interpreted the term accident. The Court also noted that it had interpreted the Article 17 term lésion corporelle in Eastern Airlines v. Floyd, 499 U.S. 530 (1991).
10 116 S.Ct. at 632.
11 Id. at 633.
12 Id.
13 Specifically, the Court pointed to its decisions in Miles v. Apex Marine Corp., 498 U.S. 19 (1990) (interpreting the Jones Act, 46 U.S.C. §688), and Michigan Cent. R.R. v. Vreeland, 227 U.S. 59 (1913) (interpreting former Employers’ Liability Act of April 22, 1908), and to decisions by the lower courts. See 116 S.Ct. at 633.
14 Warsaw Convention, 49 Stat, at 3020.
15 116 S.Ct. at 634.
16 See Henry de Vos, Report of the Third Session, Comité International Technique d’Experts Juridiques Aériens [CITEJA] Rep., May 15, 1928, reprinted in Legal Experts on Air Questions 106 (1928); Henry de Vos, Report on Third Session of CITEJA (Sept. 25, 1928), reprinted in Second International Conference on Private Aeronautical Law Minutes, Warsaw 1929, at 255 (R. Horner & D. Legrez trans., 1975).
17 116 S.Ct. at 635.
18 Zicherman v. Korean Air Lines, 43 F.3d 18 (2d Cir. 1994).
19 46 U.S.C. app. §762 (1994).
20 See Steven R. Pounian & Blanca Rodriquez, Recent Developments in Aviation Law, 31 Tort & Ins. L.J. 149, 152–53 (1996).
21 43 F.3d at 21.