This Much Is Plane to Sea: Non-pecuniary Damages Belong in the Death on the High Seas Act's Commercial Aviation Accident Exception.

• Author: Colomb, Allyson B.

1. Introduction 26 II. The Korean Air Lines Disaster and The Warsaw Convention 26 A. The Zicherman decision and loss-of-society damages 30 B. Zicherman's impact on Dooley v. Korean Air Lines and DOHSA 40 III. DOHSA's Commercial Aviation Exception 41 A. TWA Flight 800 42 B. What is "commercial aviation" under [section] 30307? 45 C. Recoverable nonpecuniary damages under the commercial 48 aviation accident exception to the Death on the High Seas Act IV. The Montreal Convention 49 A. Historical development 49 B. Revision of The Warsaw Convention's compensatory scheme 51 for the death of commercial airline passengers V. Conclusion 52 I. Introduction

   This article will review two major airline disasters and their impact on the development of the Montreal Convention as a revision and response from the Warsaw Convention and the 2000 amendment to the Death on the High Seas Act allowing the recovery of non-pecuniary damages in commercial airline disasters in the high seas. The addition of this limited damages exception to the Death on the High Seas Act was a landmark shift in the scope of recoverable harm in commercial aviation cases. This article will explore this historical significance and follow the development and history of the amendment's birth. First, it is necessary to address the scope of non-pecuniary damages in this context. Non-pecuniary damages are damages not so easily calculable or tangible. In its relation to the Death on the High Seas Act, "non-pecuniary damages" are damages for "loss of care, comfort, and companionship." (2)

2. The Korean Air Lines Disaster and The Warsaw Convention

   The most fatal shooting down of a civilian commercial aircraft by military means occurred on September 1, 1983. (3) Passengers boarded their flight to Seoul, South Korea from Anchorage, Alaska (4) unaware of the fate of their flight and the explosive legal implications that followed. A Korean Air Lines Boeing 747 aircraft, Flight 007, was traveling to Seoul when it trespassed into restricted Soviet Union airspace. (5) Specifically, the plane flew over Sakhalin Island off the coast of the U.S.S.R, a "sensitive" Soviet military base. (6) The following image portrays Sakhalin Island's location in relation to Russia, Japan, the Sea of Japan, and the Pacific Ocean.

   There are no known survivors of the 269 people on Flight 007. (7) The passengers were from sixteen different countries, including a United States Representative from Georgia. (8)

   The night before, Flight 007 took off from JFK Airport in New York at 11:50 p.m. and then stopped in Anchorage at 10:00 a.m. on September 1. (9) While en route to Anchorage, at around 1:00 a.m. Korean Standard Time (herein KST), Flight 007 began to drift off course and entered into the Soviet Airspace above the Kamchatka Peninsula. (10) By 3:21 a.m., the aircraft was flying at an altitude of 33,000 feet at 3:21 a.m. and had drifted 312 miles off course from the flight plan. (11) Meanwhile, the Soviet Union interceptor jet pilots had been tracking the Korean Air Lines airplane for about two hours, and at approximately 3:26 a.m. KST, an interceptor jet of Soviet pilots fired a missile at Flight 007. (12) Just four minutes after the Soviet jet launched the missile, radar data indicated that Flight 007 dropped to an altitude at 16,400 feet. (13) Insert transition phrase, Flight 007 plummeted down into the Sea of Japan and vanished from the radar detector screens at 3:38 a.m. (14)

   This catastrophic international disaster elicited strong reactions from the United States. President Reagan addressed the country and the world about the shooting down of Flight 007 by Soviet jet fighter planes, calling it "a horrible act of violence." (15) After organizing an emergency meeting, Secretary of State George Schultz announced an update on investigation intelligence and stated that "we can see no excuse for this appalling act." (16) The following image is a photograph of the New York Times newspaper clipping from September 2, 1983.

   The Soviet Union's first report (17) came one day after the shooting down of Flight 007, and simply stated that there was an airplane tracked and intercepted by Soviet jet fighter planes. (18) The Soviet Union's second report regarding the incident included three specific assertions about the sequence of events leading up to the jets shooting down the aircraft. (19)

   First, the report alleged that Flight 007's navigational lights were not operating when the incident occurred. (20) Secondly, the Soviet report claimed that Flight 007 did not respond to attempted signals from the Soviet interceptor jet planes. (21) Finally, the Soviet report alleged that the aircraft ignored "warning and tracer shots" that the intercepting aircraft fired. (22) The American report and the Soviet Union report contradict each other and cast doubt on whether or not the aircraft was shot down without warning from the interceptor jets. (23)

   As expected, the destruction of the Boeing 747 aircraft Flight 007 sparked litigation. The following two cases exemplify the complications of both United States and international aviation and maritime law implicated as a result of this event. (24)

   The following map is a diagram outlining Flight 007's planned flight path in comparison to the actual flight path the airplane took on September 1, 1983. (25)

   1. The Zicherman decision and loss-of-society damages

      In Zicherman v. Korean Air Lines Co., the Supreme Court of the United States confronted the issue of whether a plaintiff is permitted to recover loss of society damages on behalf of a dead relative in a plane crash on the high seas pursuant to Article 17 of the Warsaw Convention. (26) The Warsaw Convention was an international convention that governed international air transportation and regulated liability for carriers of "international transportation of persons, baggage, or goods performed by aircraft for hire." (27) Muriel Kole was one of the 269 passengers aboard Korean Air Lines Flight 007 on September 1, 1983. (28) Ms. Kole's sister, Marjorie Zicherman, and her mother, Muriel Mahalek, brought an action against the respondent Korean Air Lines Co., Ltd. in the United States District Court for the Southern District of New York seeking "judgment against KAL for their pecuniary damages, for their grief and mental anguish, for the loss of the decedent's society and companionship, and for the decedent's conscious pain and suffering." (29) The petitioner's case was subsequently transferred to the United States District Court for the District of Columbia for consolidated proceedings due to common issues of liability with other federal court lawsuits arising out of the Korean Air Lines crash. (30)

      After a jury trial, Korean Air Lines was found liable for $50 million in punitive damages, and the $75,000 cap on damages imposed by the Warsaw Convention was lifted because the jury found that Flight 007's destruction "was proximately caused by 'willful misconduct' of the flight crew." (31) However, on appeal in the Court of Appeals for the District of Columbia, the punitive damages award was vacated. (32) The court held that the Warsaw Convention did not allow for punitive damages recovery, (33) but upheld the trial court's finding of "willful misconduct" on behalf of Korean Air Lines. (34) At the damages trial in the Southern District of New York, Korean Air Lines argued that the Death on the High Seas Act (35) governed the appropriate claimants (36) and permitted only pecuniary damages, and further argued that it did not allow damages for loss of society in such a case. (37) The Southern District of New York denied Korean Air Line's motion and determined that the petitioners Ms. Zicherman and Ms. Mahalek could recover damages for "loss of love, affection, and companionship." (38) A jury then awarded $70,000 in damages for loss-of-society to Zicherman and $28,000 to Mahalek. (39) After this award, the Korean Air Lines "moved for a determination that the Death on the High Seas Act (1) prescribed the recoverable damages in the case at hand under the Warsaw Convention, and (2) did not permit damages for loss of society." (40)

      But, the Court of Appeals for the Second Circuit vacated these awards after applying several prior decisions, which held that General Maritime Law governs the determination of compensatory damages under a Warsaw Convention action. (41)

      The Second Circuit followed its decision in Lockerbie II (42) and held that a plaintiff may recover damages for loss-of-society under General Maritime Law so long as the plaintiff was "a dependent of the decedent at the time of death." (43) In Lockerbie II, the United States Court of Appeals for the Second Circuit found that the spouses and dependents of the deceased were entitled to recover loss of society and companionship damages under the Warsaw Convention. (44) The court determined that Mahalek had not proven her status as a dependent of the decedent as a matter of law, and thus it vacated Mahalek's $28,000 award for loss-of-society. (45) Regarding Zicherman's loss-of-society damages award, the Second Circuit remanded the case to the district court to resolve the issue of whether Zicherman was a dependent of the decedent, Kole, at the time of Kole's death.

      Petitioners Zicherman and Mahalek asserted that dependency is not required to cover loss-of-society damages under General Maritime Law. (46) Korean Air Lines filed a cross-petition for certiorari and asserted that, regardless of dependency, the Warsaw Convention does not allow recovery for loss-of-society damages in such a case. (47) The Supreme Court was posed the issue of whether a plaintiff can recover damages for loss-of-society of a relative under Article 17 of the Warsaw Convention. (48) Article 17 of the Warsaw Convention outlines a carrier's liability in international air transportation when there is an injury or death of a passenger. (49) In its entirety, Article 17 of the Warsaw Convention reads...