Recoverable damages in wrongful death actions governed by the Warsaw Convention.

AuthorFearon, Stephen J.

THE most significant recent development in Warsaw Convention jurisprudence in the United States is the application of federal common law, rather than state or foreign law, to wrongful death damage actions governed by the convention. There are two key questions raised by this newly developing body of law:

* What type of damages may properly be recovered in wrongful death actions governed by the Warsaw Convention?

* Who is entitled to recover such damages?

Article 17 of the Warsaw Convention(1) creates a cause of action for "damage sustained" in the event of "death," "wounding," or other "bodily injury" of a passenger. The convention is silent, however, on what type of damages may be awarded and who may claim entitlement to damages.(2)

The convention's framers knew and expected that the local law of the contracting parties would have to be used to supplement and define the wrongful death cause of action provided by the treaty. For example, Article 24(2) provides that the provisions of the convention shall apply "without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights." In other articles--for instance, Articles 22(1), 25(1), 28(2) and 29(2)--there are references to "the law of the court to which the case is submitted."

Until recently, American courts would conduct an exhaustive choice of law analysis and apply the wrongful death law of one U.S. state or another (or that of a foreign country) as the local (substantial) law in such cases. In air disaster litigation involving numerous plaintiffs from many different states and countries, the result was that the survivors of deceased passengers often received disparate recoveries, even when their decedents earned similar incomes, left similar estates and were sitting alongside one another when death occurred.

The Second Circuit altered the course of Warsaw Convention jurisprudence in 1991 in the case now referred to as Lockerbie I when it applied federal common law as the "local law" of the United States to determine the elements of recoverable damages and the proper beneficiaries in death actions governed by the convention.(3) So far the Second is the only circuit to have applied federal common law to Warsaw Convention wrongful death cases.

Since there was a dearth of federal common law relating to wrongful death damages as recently as three years ago, one task of the first court to adopt this change was the development of a remedy for wrongful death under federal common law. This task the Second Circuit undertook in the case now referred to as Lockerbie II,(4) in which it held that the federal common law to be applied in these cases should be developed by reference to general maritime law, the oldest body of federal common law.

Today, in air disaster litigation pending in the United States, federal courts are applying federal common law rather than state or foreign law to define the wrongful death cause of action provided by the Warsaw Convention. In this newly developing body of law, there is both agreement and disagreement on what may be recovered and who may recover.

Courts that have addressed these two issues agree that federal common law permits plaintiffs in a wrongful death case governed by the convention to recover damages for (1) the predeath pain and suffering of the decedent and (2) pecuniary damages for loss of support, loss of services, loss of parental care, loss of inheritance, and funeral and burial expenses. Courts disagree as to (1) whether awards of non-pecuniary damages for loss of society and survivor grief are proper and (2) who is within the class of claimants that may recover.

The cases applying and interpreting federal common law in wrongful death actions governed by the convention are of recent vintage. Many are on appeal, and one significant appeal in a case arising from the infamous KAL 007 crash of September 1, 1983--Zicherman v. Korean Air Lines Co.--has been accepted for review by the U.S. Supreme Court.(5)


  1. Compensatory Damages

    In these cases, courts recently have applied federal common law to allow recovery for various types of compensatory damages, including pecuniary and non-pecuniary claims. Each category of compensatory damage discussed below is subdivided into past losses and future losses. Past losses are losses from the date of death to the time of trial; future losses are losses that will be sustained by the claimant from the time of trial through the end of the claimant's life expectancy.

    1. Non-pecuniary Losses

      (a) Loss of Society

      Loss of society damages represent positive non-pecuniary benefits that the decedent would have provided to his family had he lived.(6) "The term 'society' embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort and protection." To recover damages for future loss of society, a plaintiff must introduce evidence of the decedent's life expectancy.(7)

      According to the Second Circuit opinions in Zicherman and Lockerbie II, damage awards for loss of society are recoverable by "dependents" in wrongful death actions governed by the Warsaw Convention.(8) The court based this conclusion on an examination of general maritime law and the text and underlying policies of the Warsaw Convention.

      In Lockerbie II, it noted that cases brought under general maritime law, such as American Export Lines Inc. v. Alvez(9) and Sea-Land Services Inc. v. Gaudet,(10) allowed recovery for loss of society, while cases brought under the Death on the High Seas ACt (DOHSA), 46 U.S.C. [sections] 761-768, and the Jones Act, 46 U.S.C. [sections] 688, such as Miles v. Apex Marine Corp.,(11) precluded damages for loss of society. Faced with this conflict, the court examined the text and legislative history of the Warsaw Convention to determine which approach was more consistent with the intent of the convention's drafters.

      It concluded:

      In light of the broad language in the Warsaw Convention covering "damage sustained" and the lack of authority suggesting that the drafters wanted to limit compensatory damages to pecuniary loss, we are informed by general maritime law principles set forth in Gaudet and its progeny and hold the Warsaw Convention permits damage awards for loss of society and companionship.(12)

      The court continued its analysis to determine who was entitled to recover damages for loss of society. It cited several maritime cases that allowed loss of society damages to spouses and dependents.(13) Agreeing with these cases, the court determined no maritime case extended loss of society damages to plaintiffs other than spouses and dependents.(14) The loss of society award to a family that had some adult children was vacated and remanded for a determination of dependency in Lockerbie II.

      The most recent Second Circuit decision on this issue is Zicherman, in which the mother and married adult sister of Kole, a passenger killed in the KAL 007 disaster, brought wrongful death and survival actions. At trial, Kole's sister testified that she had received generous financial assistance from him, including the payment of wedding expenses and an offer to finance the purchase of a new home. Prior to the KAL disaster, Kole delivered an envelope to his sister (who was pregnant at the time), only to be opened in the event of Kole's death. The envelope contained a letter that described Kole's assets and stated, "Take everything and spend it on yourself and the baby, if anything happens to me." In contrast, Kole's mother conceded on cross-examination that she never was financially dependent on Kole. The verdict included damage awards for loss of society in favor of both Kole's mother and sister, for $28,000 and $70,000 respectively.

      On appeal, KAL attempted to distinguish Zicherman from Lockerbie II by arguing that DOHSA should apply to the Zicherman claims, thereby precluding non-pecuniary damages, including loss of society, because the KAL disaster occurred over non-territorial waters, whereas Lockerbie II involved an accident over land. To achieve a uniformity of result in wrongful death claims subject to the Warsaw Convention, the court rejected KAL's argument and held that general maritime law, rather than DOHSA, applied, and that loss of society damages were recoverable.

      The court then examined the awards of loss of society damages to Kole's mother and adult sister. It stated that under federal maritime law, "the rule is well-established that only dependents may recover damages for loss of decedent's society,"(15) observing that while this rule denied recovery to some deserving parties, such as non-dependent survivors, the distinction was necessary to eliminate "inherent concerns of vagueness and uncertainty" in determining who may recover damages for loss of society.(16)

      Survivors may recover loss of society damages, the court concluded, only if they were "dependents" of the decedent at the time of death. The court set forth the test of dependency as:

      the existence of a "legal or voluntarily created status where the contributions are made for the purpose and have the result of maintaining or helping to maintain the dependent in [his] customary standard of living."(17)

      The trial court must explicitly instruct the jury to condition its award on finding that status, the court declared.

      The court then went on to reverse and vacate the award for loss of society damages to the mother of the decedent, who had offered no evidence to support a claim of dependency and had conceded that she never was financially dependent on the decedent. In contrast, the decedent's sister did present some evidence of financial assistance from the decedent. As a result, the award of loss of society damages to her was reversed and remanded to determine whether the evidence presented was sufficient to satisfy the test of dependency...

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