DOOLEY v. KOREAN AIRLINES
In 1983, Korean Air Lines (KAL) Flight KE007, en route from Alaska to South Korea entered the airspace of the former Soviet Union and was shot down. All 269 people on board were killed. Representatives of three of the passengers (petitioners) sued KAL for damages for their decedents' pre-death pain and suffering. While their suit was pending, the U.S. Supreme Court decided Zicherman v. Korean Air Lines Co. In Zicherman, the Court held that the Warsaw Convention permits compensation only for legally cognizable harm and that the Death on the High Seas Act (DOHSA) supplies the applicable U.S. law where an airplane crashes on the high seas. DOHSA allows certain relatives of a decedent to sue for their own pecuniary losses, but does not authorize recovery for the decedent's pre-death pain and suffering. Subsequently, the District Court granted KAL's motion to dismiss petitioners' nonpecuniary damages claims on the ground that DOHSA does not permit recovery for such damages. In affirming, the Court of Appeals rejected the argument that general maritime law provides a survival action for pain and suffering damages.
May certain relatives of decedents, in a case of death on the high seas, recover damages for their decedents' pre-death pain and suffering through a survival action under general maritime law?
Legal provision: 46 U.S.C. App.
No. In an unanimous opinion delivered by Justice Clarence Thomas, the Court held that "[b]ecause Congress has chosen not to authorize a survival action for a decedent's pre-death pain and suffering, there can be no general maritime survival action for such damages." Justice Thomas wrote for the Court that the "comprehensive scope of DOHSA is confirmed by its survival provision, which limits the recovery in such cases to the pecuniary losses suffered by surviving relatives. The Act thus expresses Congress' 'considered judgment' on the availability and contours of a survival action in cases of death on the high seas. For this reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision."
CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in Number 97-704, Philomena Dooley v. Korean Airlines. Ms.--is it Madole?
MS. JUANITA MADOLE: Madole.
CHIEF JUSTICE REHNQUIST: Madole. Ms. Madole.
MS. MADOLE: Mr. Chief Justice, and may it please the Court: The issue presented here today is whether there is a general maritime law survival cause of action for the pre-death injuries to a nonseafarer when the conduct that causes the injuries occurs on the high seas and whether, if there is such a survival cause of action under general maritime law, it may be brought independent of but coexisting alongside the death action under the Death on the High Seas Act. In order to understand the argument, it is important to point out the distinctions between the survival cause of action and the wrongful death cause of action. As this Court has stated several times, the survival cause of action traditionally encompassed--encompasses the injuries that the individual he or herself sustained prior to death from the time of the injury.
Those traditionally encompassed pre-death pain and suffering, loss of earnings from the time of injury to the time of death, and any medical or associated expenses relating to the injuries until the time of death. In the case that is before the Court today, the petitioners only have a right to claim for pre-death injuries, for pre-death pain and suffering, for the 12 minutes that their decedent suffered from the time the aircraft upon which they were passengers were fired upon until a 12-minute controlled descent into the Sea of Japan and their ultimate deaths. By comparison with survival actions--
JUSTICE ANTHONY KENNEDY: The case, of course, since it does survive--involve the survivor's action, could mean much more than that. There would be other cases in which people would linger for years with substantial injuries, et cetera.
MS. MADOLE: That's correct, and respondent in their response to the petition for certiorari also agreed that the rule of the Court--that this Court will lay down will be applied whenever the conduct causes the injuries and ultimately causes the death occurring on the high seas.
In a more typical accident, they probably will be more boat-based fact patterns, but the context in which the case is before the Court is--does arise out of an airplane accident and does address only pre-death pain and suffering and injuries. By comparison with survival action injuries, wrongful death remedies--excuse me, survival action remedies, by contrast wrongful death remedies, are losses that the family members of the decedent themselves have sustained, those losses that are individual to the family members, are as a result of the death of the decedent and are normally economically based. Normally they are for loss of support, for loss of economic support that the decedent would have provided had the decedent continued to live, loss of services, household services and, in the case of a parent leaving small children, loss of parental services to the small children. The beneficiaries are different. In a survival cause of action the estate is the beneficiary, as the holder of the individual injured person's claim after his death. In a wrongful death--
JUSTICE RUTH BADER GINSBURG: Ms. Madole, I think that the Court is generally familiar with the difference between a wrongful death act and a survival act, and getting down to the nub of your problem, as I understand it the FELA originally did not have any survival aspect to it, and this Court declined to create such a claim. It left it to Congress and Congress took care of it. Why shouldn't we follow the same pattern here?
MS. MADOLE: What occurred is, I believe, Justice Ginsburg, is that the original FELA was patterned after Lord Campbell's Act. Lord Campbell's Act required that the cause of action exist in the person at the time of the death for there to be a right to recover for survival and for death. The FELA was amended in 1910 to provide for both causes of action. The Death on the High Seas Act, which is the--
JUSTICE GINSBURG: But am I wrong in thinking that there was an attempt, before that amendment, to get the courts to recognize a survival claim for railroad workers?
MS. MADOLE: Yes, Justice Ginsburg. In Michigan Central Railway v. Vreeland the Court said you could not have both a survival action and a wrongful death action under the FELA, and that was then amended by Congress in 1910. But the basis for that was because the wrongful death action under FELA was based upon a Lord Campbell's Act type of statute which required the existence of a cause of action in the decedent at the time of the death, and if there had been recovery for survival there could not also be a death recovery.
In this circumstance, the statute that we are dealing with is the Death on the High Seas Act, and the argument by respondent and the amicus is that the Death on the High Seas Act precludes the court's traditional development of a survival cause of action.
JUSTICE GINSBURG: And wasn't the Death on the High Seas Act--that wasn't modeled on Lord Campbell's Act?
MS. MADOLE: It does not in that it did not require the existence of the cause of action in the decedent prior to death, so that there is no foreclosure of a survival cause of action alongside a wrongful death cause of action.
The only issue that the respondent and the Government bring up with regard to the Death on the High Seas Act is whether, by enacting the wrongful death remedy, that the Congress intended to foreclose this Court's traditional role in maritime actions to develop law as policies change, so there's nothing in the Wrongful Death Act under the Death on the High Seas Act itself that would foreclose--
JUSTICE KENNEDY: Well, do you consider it significant that Congress was aware of survival provisions under the Federal Employers Liability Act and it did not incorporate them here? I mean, that's a significant fact in the case, is it not?
MS. MADOLE: Well, it is to a limited degree, Justice Kennedy, and that is that Congress decided it wanted to provide a remedy from what it felt was the harsh rule of The Harrisburg, that there was no common law right to recover for wrongful death.
They wanted to provide the remedy in a limited area. The debates in the Congressional Record are a) that the Congress wanted to have a remedy and b) how far should that remedy go? Should the remedy go only from the 3-miles limit from the shores of the United States, or should Congress legislate into the territorial waters? Congress decided just to legislate for death action and just to legislate from the 3-mile limit outwards, and just as this Court in Moragne said as long as Congress did not speak to an area that was not within its ambit, the Admiralty Court is free to develop in accordance with its traditional capacity to effectuate the policies of the common law as circumscribed for the circumstances on the sea.
JUSTICE SANDRA DAY O'CONNOR: Well, of course, Congress did, in 42 U.S. Code section 765, deal with death of a plaintiff and what's recoverable, so to that extent Congress certainly addressed the subject.
MS. MADOLE: To that extent, but that--thank you. 765 should be put in the context of the statute as a whole. The Death on the High Seas Act was enacted so that the statute of limitations began to run from the date of the wrongful conduct, other than most typical wrongful death statutes, where the statute of limitations begin--begins to run from the date of the death. What Congress was attempting to do in section 765 was to say that if an injured person lived past the 2-year statute, then the wrongful death right would be abated to his or her beneficiaries because the 2 years had run, because of the peculiarity of it beginning from the date of the wrongful conduct instead of the wrongful death. QThe courts below in--not in the case directly in the court below, but other courts below that have addressed these issues, and the commentators both at the time and subsequently, have said that section 765 should best be deemed a non-abatement section and not a survival section, because what happened under section 9--or 765 was, the remedy was then turned into a wrongful death remedy so that the heirs and the beneficiaries of the decedent could recover wrongful death damages but nothing was said in the statute about what happened to the injured person's pre-death injuries, and that was not addressed.
And again Congress was silent as to the pre-death injuries which is why, if the Court elects to, it has the capacity to develop general maritime law to address pre-death injuries and the survival cause of action.
JUSTICE DAVID H. SOUTER: I guess it's hard for me to see that Congress was entirely silent on what would happen to the claims of pre-death injuries because in 765, if I'm reading it rightly, it converts the pre-existing action for pre-death injuries solely into the kind of death claim that is allowed under the statute, and that sounds to me as though it's saying, everything except the claim allowed under this statute goes away.
MS. MADOLE: And again, it has to be read in the context of what it was attempting to achieve, and what Congress was attempting to achieve was a rights-granting statute.
It wanted to ensure that wrongful conduct that occurred on the high seas would not be such that the conduct--there would be no compensation for the wrongfulness of the conduct to the one that was injured.
JUSTICE SOUTER: But if that's all it wanted to do, I would have thought that in 765 it would have said a wrongful death action may be added to the pre-existing personal injury action of--that the decedent had begun, and it didn't do that. It in effect said, it gets metamorphosed into a wrongful death case, period.
MS. MADOLE: Well, it could be read that way, Justice Souter, but I do not believe that if you look into the historical background of what Congress is trying to achieve, that that effectuates the remedial effects--
CHIEF JUSTICE REHNQUIST: But we deal with what Congress wrote, not with what someone thinks Congress was trying to effectuate. I mean, I think you have to deal with the language of 765 and you deduce what Congress intended from the language of 765.
MS. MADOLE: And again, from the legislative history, it's very hard to decide that.
CHIEF JUSTICE REHNQUIST: Well, why do we get into legislative history?
MS. MADOLE: Pardon me?
CHIEF JUSTICE REHNQUIST: I say, why do we get into legis--
MS. MADOLE: Just from the language itself. Then I suggest that we look to the language that is at Section 763a, which is the new statute of limitations that was enacted in 1980.
As I mentioned earlier, the original section 763 provided for a 2-year statute of limitations to begin as of the date of the wrongful conduct. In 1980, Congress repealed section 763 and inserted section--excuse me, and enacted section 763a, which is--
JUSTICE O'CONNOR: Does that apply to causes of action under than those--other than those under the Death on the High Seas Act? Doesn't it cover Jones Act or other causes of action, which might well explain that language?
MS. MADOLE: It does cover causes of action under general maritime law, under the Death on the High Seas Act, and under the Jones Act, and it changed the statute from one in which the statute began to, begin to run from the date of the wrongful conduct until it begins to run from the cause--the date the cause of action accrues, and it extended the statute to 3 years for all three of those issues. But if anything can be said from the language in that, is that if Congress ever may have indicated in 1920 that it didn't recognize that both survival actions and death actions or both can be brought together, at least by 1980 they were saying that they knew that there were two kinds of actions and that one and the other could both be brought concurrently with each other. And it is not clear from the legislative history of 7--section 763a the prompting mechanism for that, but it's certainly clear that by that time the courts had begun to develop along the lines of--along the ken of--the rationale of this Court in Moragne that there were general maritime law of survival causes of action, based upon the same rationale that The Harrisburg, whether or not it was rightly decided when it had been decided originally, the underpinnings of it had changed because the policy had changed and the jurisprudence had changed, and that there was a wholesale acceptance of wrongful death causes of action in the United States. Under the same analysis, many of the Federal appellate courts had found that there was a general maritime law of survival cause of action that, it was as a result of the policy change and the jurisprudence in the United States, because of the widespread adoption of survival statutes amongst the States as well as on the Federal level.
JUSTICE GINSBURG: Under the Jones Act, which picks up on the FELA, there is both wrongful death relief and survival that's rather circumscribed. Given that Congress has done it all, both the FELA and, borrowing from the FELA, the Jones Act, why should the Court say, well, it's our job to fill in the Survival Act in this DOHSA, Death on the High Seas Act legislation?
MS. MADOLE: The lower courts and many commentators have said that the legislative history of the Jones Act is not clear, and that the provision of a survival cause of action in the Jones Act is solely because of its wholesale incorporation of the FELA into it.
We have to look at the statute that is arguably by the respondent the one that precludes the court from doing a general maritime law analysis to determine if the policy is such that there should be a survival cause of action and, under the Death on the High Seas Act, our argument is there is no survival cause of action. There is no survival language in the statute, the statute itself addresses only wrongful death remedies, and therefore there is a void left that the court may fill with a survival cause of action.
CHIEF JUSTICE REHNQUIST: But one can argue equally well, and I think perhaps better, that Congress has addressed itself to this question. It has decided what sort of damages will be recoverable for death on the high seas, and there isn't any void because what Congress has not granted, it withheld.
MS. MADOLE: Mr. Chief Justice, what Congress granted certainly was remedies for deaths on the high seas. What it did not discuss was remedies for survival on the high seas, and if you look to this Court's traditional preemption and preclusion procedures, then unless the congressional statute specifically preempts or precludes the court from developing common law remedies, then the court, particularly in its traditional role in maritime matters, has the right to develop what it feels is the proper policy, the better law--
CHIEF JUSTICE REHNQUIST: What's your authority for that proposition?
MS. MADOLE: For the proposition that--
CHIEF JUSTICE REHNQUIST: That you just stated.
MS. MADOLE: I'm sorry, it was in a couple of parts. I'm not sure--
CHIEF JUSTICE REHNQUIST: Well, that preemption principles as you describe them, where Congress has addressed one particular subject, it doesn't prevent the courts from developing common law policies that may be contrary to that in a related area. At least that's how I took your proposition to be.
MS. MADOLE: The cases that are in the reply brief, Your Honor, that deal with preemption, in the context of statutes--
CHIEF JUSTICE REHNQUIST: Are you talking about preemption of State laws, or--
MS. MADOLE: The most common fact circumstance that comes up and appears in the preemption context is of State laws, or of common law remedies under State laws, and what you--
CHIEF JUSTICE REHNQUIST: What is the closest case you have to support the proposition we're talking about now? I realize you say they're in the reply brief, but tell me what case you would choose?
MS. MADOLE: Medtronics.
CHIEF JUSTICE REHNQUIST: Medtronics?
MS. MADOLE: Which is at--
CHIEF JUSTICE REHNQUIST: Well, that's preemption of State law. I don't--
MS. MADOLE: Common law. Excuse me, Your Honor.
CHIEF JUSTICE REHNQUIST: Well, you know, Congress passes--common law doesn't exist by itself. It exists under the aegis of either State or the Federal Government, and as I recall Medtronics, the Court is talking there about what sort of State law claims are not preempted by a Federal statute, but that isn't the inquiry here.
MS. MADOLE: General maritime law is a species of common law, judge-made law.
CHIEF JUSTICE REHNQUIST: Well, but it's not a species of common law under the aegis of a State. In other words, we may have definite reservations about how inclusive to read a Federal statute as preempting State law, but I don't think any case you've cited so far says those same reservations based essentially on the traditional Federal system of Government we have, with respect for States, would carry over into a statute enacted by Congress as opposed to Federal remedies devised by courts.
MS. MADOLE: Then the closest case that is in the context of the issue that we're here before is the Moragne case, where the Court said that Congress had only legislated as far outward as the
3-mile limit, and that because it had not gone into the territorial water jurisdiction with the Death on the High Seas Act, the court was free to develop the common law--
CHIEF JUSTICE REHNQUIST: Yes, but--
MS. MADOLE: --in a Federal--
CHIEF JUSTICE REHNQUIST: Go ahead.
MS. MADOLE: Under Federal common law aegis, and to then identify a general maritime law right to recover for wrongful death. That is the same context in which we are arguing that the Congress did not address the survival cause of action in the Death on the High Seas Act, and since the remedies are so different, and they don't overlap with each other, then the Court has the capacity to develop the common law survival cause of action for pre-death remedies.
JUSTICE ANTONIN SCALIA: Ms. Madole, let's assume we grant that. All it establishes is that we may. But why should we? I mean, there has been no such cause of action. We've not recognized it in the past, and in the past, where we have created new--you say common law maritime causes of action, we've done it in areas where Congress has not displayed any interest in bringing its intelligence to bear upon the matter. Here, Congress has been active. I mean, if times have changed--you said in light of changed circumstances.
It seems to me, if there are any changed circumstances it is that Congress has displayed a much more lively interest in these matters than it did in previous times, so gee, if we didn't take the initiative ourselves in earlier times, there's even less reason to do so today, it seems to me.
MS. MADOLE: Well, when Congress enacted the Death on the High Seas Act in 1920, it was true that there was no common law right of survivorship of personal injury actions.
Since then, using the same rationale that the Court has used in Moragne, the Court has the capacity to develop a survival cause of action for pre-death injuries because--
JUSTICE SCALIA: I'm giving you that. Let's--we have the capacity. Why should we use that capacity?
MS. MADOLE: Because unless the Court finds there's a general maritime law survival cause of action, there is no recovery for all the pre-death injuries that occur from the date of the injury to the date of death for someone injured on the high seas regardless of the extent of the injury, regardless of the length of time between the injury and the death, and those serious, can be serious and significant and very large--
JUSTICE SCALIA: That person's--he's gone. He's dead and gone. I mean, so long as the survivors are--they have a cause of action under the Death on the High Seas Act if he has begun a suit and dies before the suit is completed.
MS. MADOLE: There are two responses, Justice Scalia, to that inquiry. The first is that if the person survives for a lengthy amount of time and incurs significant expenses in the medical care, loss of earnings, and has not had a chance to be compensated for those injuries before his death, which he wouldn't be because it's a survival action, all the debts are still part of his estate that have to be paid from his heirs, if he has any, with no compensation from the wrongdoer. And the second part of that is that I respectfully disagree with the respondent that there will be few times when there will be no wrongful death beneficiaries under the Death on the High Seas Act. Any time a young person is killed, a teenager or a college student who does not have an earning history and has no--has parents but no-- they have no potential for economic support from them, any time elderly people who are on Social Security are killed and leave adult surviving children, any time a couple is killed together in an airplane accident, and do not leave minor children, there are no wrongful death beneficiaries under the Death on the High Seas Act. The factual circumstances today are that there will be many, many instances where there will be no wrongful death beneficiaries on the Death on the High Seas Act--
JUSTICE JOHN PAUL STEVENS: But Ms.--may I just ask you a question about that? That's a very appealing argument, because it seems most unjust that a person suffers extensive harm, hospital expense and the rest, in the period between the--when the injury occurs and when the person ultimately dies before a verdict comes in. But the thing that puzzles me is, that must have happened many, many times. We're talking a huge area, all the deaths--all the injuries on the high seas that caused deaths that occurred while a case was still pending, and yet we don't have any such cases. I mean, this is kind of late in the day, and I'm just puzzled as to why that issue hasn't arisen before.
MS. MADOLE: In the--
JUSTICE STEVENS: I don't know of any case that points out that fact pattern. Are there some?
MS. MADOLE: There are the cases that arise out of the Korean Air Lines accident that do that for the issue of the pain and suffering, but those are not petitioners' cases before this Court.
I think that there are many circumstances that could be shown. The Bodden case, for example, out of the Fifth Circuit, is a case in which Mr. Bodden was seriously injured in an engine explosion.
JUSTICE STEVENS: In a what?
MS. MADOLE: Engine--fire--engine explosion on a ship.
JUSTICE STEVENS: Oh, okay.
MS. MADOLE: And he died 3 years afterwards. I'm sorry, the fact pattern is not following along in response to your inquiry. I'm sorry. But there are certainly statistics that can be referred to--
JUSTICE STEVENS: Oh, I'm sure it happens a lot, but the thing that puzzles me is, why is it 1998--this statute's been on the books since 1920. Why are we suddenly confronted with this problem at this stage of the proceedings? I mean, this stage of our history, is what I meant.
MS. MADOLE: Well, the issue of the evolution of the pre-death pain and suffering under the survival action claim has been around a long time. It was raised before this Court in Miles v. Apex, and in that context, as a Jones--in the Jones Act seaman, but the Court referred to in the opinion the development of the common law survival cause of action by the lower courts and did not--
JUSTICE STEVENS: Well, of course, most survival actions are justified by statutes that authorize survival of common law claims, I believe just as Lord Campbell's Act took care of the death action.
MS. MADOLE: That's true, and twice this Court has refused to approve or disapprove use of State survival actions when the deaths occur on the high seas. That's back in Kernan and Offshore Logistics v. Tallentire. So the courts below have not been prohibited by this Court, because of this refusal to disapprove the conduct, of applying State survival causes of action for deaths that occur on the high seas, so it may be that those actions are compensated by those State survivals when the courts do apply them. In this case, however, we have an action that clearly is far beyond any argument that a State survival statute--
JUSTICE GINSBURG: Ms. Madole, do I understand that Congress is now considering a bill that would take aviation tragedies out of the Death on the High Seas Act and have another regime for them?
MS. MADOLE: That is correct. There's been a bill pending about 2 years. It is a bill that was effectuated or was drafted as a result of the TWA 800 accident that crashed off of New York. Because there were a large number of passengers on board that flight who, if there was no survival cause of action, or if the Death on the High Seas Act only applied, the parents of these young kids, a group of schoolchildren from Pennsylvania, would have no compensation at all.
JUSTICE STEPHAN GERALD BREYER: Well, what are we supposed to about Higginbotham? That is, Higginbotham seems to support you in that it says admiralty courts have often been called upon to supplement maritime statutes, but then the next sentence is, the Death on the High Seas Act, however, announces Congress' considered judgment on such issues as beneficiaries, et cetera, survival damages, and then it says the act--the courts are not free to supplement where Congress acts, where Congress addresses those questions, so hasn't this issue--why doesn't it decide the issue?
MS. MADOLE: Higginbotham does not decide the issue, because the issue there was whether the general maritime law--was whether the general maritime law death action could be superimposed on the Death on the High Seas Act death action.
JUSTICE BREYER: Why isn't what you're doing--the bite of what you do is, it provides a somewhat different class of beneficiaries when a person dies, and it provides the whole of the beneficiaries with more money, so it seems to speak to both who the beneficiaries are and what the damages are in respect to the harm caused when a person dies.
MS. MADOLE: But that's because that is only the wrongful death action idea behind both the Death on the High Seas Act and the general maritime law remedy. The survival action is parallel to. It's like the two columns. They are different remedies. They are different--
JUSTICE BREYER: No, I understand that they're different remedies.
MS. MADOLE: And they don't--
JUSTICE BREYER: Why isn't Higginbotham relevant?
MS. MADOLE: They don't overlap, and the only language that--
JUSTICE BREYER: You're assuming more knowledge of Higginbotham than I have. The reason that the sentence I just read you is not determinative in your case is because--
MS. MADOLE: Because all of the verbs and nouns that you used have to do with wrongful death remedies except for the survival, which I suggest to the court is that argument under 765, which is really a nonabatement provision and not a survival action prohibition, because it doesn't change the cause of action into pre-death injury remedies. It keeps them in wrongful death remedies.
JUSTICE GINSBURG: Ms. Madole, may I ask if you would complete what you were explaining to me about what Congress is doing about it now? As I understand it,
Congress knows about the existence of this problem and the proposed legislation would do what? What is the proposed legislation, and if it passed, how would this case be handled?
MS. MADOLE: It currently is in its--I'm not sure how many reiterations--it's been changing quite a lot. It's nowhere near, as far as I know, being passed.
JUSTICE GINSBURG: But what is the solution?
MS. MADOLE: The primary focus of it is that it would remove airplane accident cases from the Death on the High Seas Act.
JUSTICE GINSBURG: And put them under what?
MS. MADOLE: Some--that's one of the reasons why it is not quite fixed. It's not sure if it's a traditional choice of law analysis. It's not sure if it would be the law of the place where the airplane took off from. There are all sorts of proposals that are pending--
JUSTICE GINSBURG: Picking up on State law, is that what it would do? I mean, what body of law?
MS. MADOLE: It would be some State law. However you would get there is not--has not been decided.
JUSTICE GINSBURG: So it would not be the--creating a new counterpart to the Death on the High Seas Act, only more general. It would be picking up some law that is, and it would be a State law, is that--
MS. MADOLE: As best I know, as it's currently pending.
CHIEF JUSTICE REHNQUIST: Thank you, Ms. Madole. Mr. Harakas, we'll hear from you. Is it Harakas, or Harakas?
MR. ANDREW J. HARAKAS: Harakas.
CHIEF JUSTICE REHNQUIST: Mr. Harakas.
MR. HARAKAS: Mr. Chief Justice, and may it please the Court: Just to pick up Justice Ginsburg's questions regarding the pending legislation, back in 1996, in the summer of '96 they did pass--Congress passed a bill in the House of Representatives which would have just removed aviation cases from the Death on the High Seas Act. However, there also was similar legislation pending in the House of Representatives which would have taken aviation cases but set forth the types of recoverable damages. Under the proposed bill, Senate bill 943, it would say you could recover damages under State law, any damages available under Federal common law, and/or any damages available under the Death on the High Seas Act. As you can see, it could create a choice-of-law nightmare as to what types of damages you could recover.
However, there was a hearing last October and just as recently as last week there was a Senate hearing on the proposed legislation. It's been through markup, and one of the current versions being proposed right now is that it may be extended not just to apply--to exclude aviation cases, but they may just amend the Death on the High Seas Act to make it more generally applicable. However, even in one of the current versions there's no survival provision written into the act. Rather, what they would do is just allow nonpecuniary damages under the wrongful death provisions of the act with these type of statutory cap on them.
JUSTICE KENNEDY: Under the present law, if a victim lingers, say, for a year and has medical expenses and lost wages, are those pecuniary losses recoverable when it converts into a Death on the High Seas Act action, or into a wrongful death action?
MR. HARAKAS: If it converts into the Death on the High Seas Act, generally lost wages would not be recoverable. What you would recover are--is loss of support and loss of inheritance, and then when you combine those two elements of damages, you in effect get lost wages and lost future earnings.
With respect to medical expenses it's kind of an interesting issue, because--Justice Stevens said, why hasn't this arisen before. Well, one of the reasons it hasn't arisen before is that when you're dealing with these DOHSA-type actions, mostly in a maritime context, there are usually--there is usually an element of that in a settlement or even in a recovery, because medical expenses can be viewed as a asset of the estate, so if a decedent had $100,000 and $20,000 had to go to pay medical expenses, well, you're depleting the loss of inheritance award, so that way they're recoverable as part of the loss of inheritance award. I think if you look at Higginbotham, in note 20 of Higginbotham they talked about burial expenses and whether they're recoverable, and it makes a similar type of analogy as to burial and funeral expenses.
JUSTICE O'CONNOR: But for pain and suffering for the decedent, who might have lingered several years, you say there is no recovery.
MR. HARAKAS: There is no recovery, that's correct.
JUSTICE O'CONNOR: Now, what's the situation in territorial waters, where Death on the High Seas Act presumably doesn't govern?
MR. HARAKAS: With respect to the territorial waters the courts have taken two--well, the courts have basically taken two approaches. Before the Calhoun decision some courts would recognize a general maritime survival action applicable to the territorial waters and allow recovery that way, but in view of the Calhoun decision State statutes have always been applicable and they would allow recovery under the applicable State statute if it provided a survival statute with respect to the territorial waters.
JUSTICE O'CONNOR: So the recovery would be substantially different, depending on whether it's--the death occurs from the accident on the high seas or in territorial waters.
MR. HARAKAS: Yes. You would be able to recover additional damages in territorial waters, but that's a legislative scheme that exists even in the wrongful death case. Higginbotham dealt with that exact situation with respect to loss of society damages, where the Supreme Court, the Court in Gaudet had found that those type of damages are recoverable under general maritime law, but when it came to Higginbotham the Court said, you can't get those under general maritime law in a DOHSA case, because Congress has set forth what type of damages you can recover and they've limited those damages to pecuniary losses only. And that's where we get to--in this case here, there isn't--the real situation here is the issue of pecuniary versus nonpecuniary, and pre-death pain and suffering damages are not pecuniary.
It would require the Court to recognize a type of damages not allowed by DOHSA, to add the estate as a beneficiary, which is not included in DOHSA. In 1920, Congress did know the difference between a wrongful death and a survival action, and it opted to adopt basically a modified type of wrongful death statute, because DOHSA is not just like Lord Campbell's Act. It has section 765, which is a little different from Lord Campbell's Act, which didn't contain such a provision, and I think when you look back to 1920, what was Congress thinking when they enacted DOHSA, well, I think the language of the Death on the High Seas Act was very clear. With--at that time, they thought it was exclusive because there was no other action out there. This was the only action that was available for a death on the high seas. That's where, with respect to this preemption issue that was addressed earlier, in this context you have Federal common law, and there is a different preemption analysis than you do apply with State law. When you're looking at State law, because of their inherent police powers you have to see an affirmative intent to preempt that State statute, but with respect--when Congress enacts a statute and the preemption is of Federal common law, the analysis really is, did Congress speak to that issue? And in our case here, did Congress speak to the issue of damages, and the Death on the High Seas Act specifically deals with that issue and the issue of whether there is an affirmative prescription of Federal common law doesn't arise in this situation, because the Death on the High Seas Act deals with this issue.
JUSTICE STEVENS: But one can argue that the analysis in Moragne was partly based on when there's a hole in the law on the high seas, and when the universal judgment of State legislatures all over the country have changed from what it used to be on the death act, that with regard to survival, the same thing happened. There used to be no survival at common law and all of the State legislatures have now said there'll be survival, and therefore if we wanted to be just as creative as the Court was in Moragne, we would have authority to do the same thing with regard to a survival action, which is not squarely covered. Arguably it's covered by that one section, by DOHSA.
MR. HARAKAS: Well, that's--
JUSTICE STEVENS: So at least we'd have the power to do it.
MR. HARAKAS: Well, with respect, with the Death on the High Seas Act, I don't think the Court would have the power, because it's a different situation than the situation presented in Moragne. There were a number of critical factors in Moragne that drove that decision.
JUSTICE STEVENS: Well, Moragne, of course, was geographically outside the scope of the statute, but the counterargument we hear in a legal category sense, survival actions, are--or preexisting common law actions by the injured party himself or herself are outside the scope of the statute, too. They just weren't addressed, except in the one section that you talked about.
MR. HARAKAS: They were not addressed, but when you go back to the Moragne case, what was the driving force in Moragne? The driving force in Moragne was not a recognition of damages. It was a recognition of a cause of action for unseaworthiness--
JUSTICE STEVENS: Right.
MR. HARAKAS: --to make unseaworthiness a base of liability uniform within the class. In addition, again, as Your Honor recognized, Moragne dealt with an issue in the territorial waters, so the Court looked to, what has Congress enacted for territorial waters, and they withheld the remedy of DOHSA from extending into territorial waters, so there was a gap that the Court could come in and fill. But when you look to the decisions subsequent to Moragne, Higginbotham, Miles, and Zicherman, we look--we see there is that the Court has made crystal clear that when Congress has spoken we have to abide by what Congress has said, and Congress has spoken in the Death on the High Seas Act with respect to pecuniary damages. And to take the argument here that because Congress then specifically say we're not going to allow loss of survival damages, then any time Congress enacts, they don't enact--they don't legislate for the entire scheme, so there's always some type of a hole, but at that point then any court can come in and create any remedy they want.
JUSTICE STEVENS: Well, of course, the prohibition against pecuniary--I mean, the limitation on pecuniary damages doesn't entirely solve the problem, because you can have a decedent whose beneficiaries are not among the people who are entitled to sue under DOHSA. They can be second cousins, or friends, or something like that, and they lose whatever benefit the estate would have from the recovery.
MR. HARAKAS: Well--under a survival act?
JUSTICE STEVENS: Yes.
MR. HARAKAS: Well, they--
JUSTICE STEVENS: See, there's no--if there's no survival statute, those--the defendant just gets off scot-free on that.
MR. HARAKAS: Well, they don't get off scotfree, because there is still the wrongful death action, but--
JUSTICE STEVENS: No, but the wrongful death action under DOHSA, as I say, is limited to a specific category of plaintiffs, and I'm assuming an estate where none of the beneficiaries of the estate are within that category.
MR. HARAKAS: Well, then the beneficiaries set forth in DOHSA are the ones closest to the decedent, so--
JUSTICE STEVENS: Oh, I understand, yes.
MR. HARAKAS: You have the parents, spouse--parents, spouse, and children, and dependent relatives, so anyone who's very close to the decedent, even a niece who thinks she was a dependent relative, would be entitled to recover under DOHSA and, of course, if you have a survival action--
JUSTICE STEVENS: No, I agree it covers most of the cases, but there are cases where the beneficiary under the will might be not a dependent but just a friend, or an associate of some kind. That person would get nothing, whereas if there were a survival statute he would.
MR. HARAKAS: That's correct, Your Honor, but even the State law statutes draw lines as to who can recover and--
JUSTICE STEVENS: Oh, but not the survival statute. The estate gets the money.
MR. HARAKAS: Well--
JUSTICE STEVENS: And whoever will participate in the estate would share in the recovery.
MR. HARAKAS: Under typical State statutes, but if you look to the provisions under the Jones Act and FELA incorporated by reference, it's a very similar scheme to DOHSA--
JUSTICE STEVENS: Yes.
MR. HARAKAS: --with respect to the estate doesn't recover, the personal representative recovers on behalf of certain named--
JUSTICE STEVENS: Yes.
MR. HARAKAS: --people, and it's an exclusory class.
JUSTICE BREYER: The obvious group is grandchildren. I mean, imagine grandchildren. There's an accident, older people die, they all had some estate, they left it all to their grandchildren. Maybe even there was lingering and so forth. In that case, nobody could recover.
MR. HARAKAS: No. If the descent and distribution laws are--if they were--
JUSTICE BREYER: Right.
MR. HARAKAS: --someone in the will they would not be--if they weren't named in the will they would not be able to recover the recovery for pain and suffering, that's correct, but again--
JUSTICE BREYER: They wouldn't recover anything, I mean, because there's nobody who has anything in a case where the--I mean, what could they recover for?
There's no dependency, they're older people, the beneficiaries of the estate are grandchildren, there's no lawsuit. Nobody brings a lawsuit. Who could bring one?
MR. HARAKAS: With respect to--for--
JUSTICE BREYER: To the death of the person--I mean, imagine any kind of awful case you want, but I mean, you know, the terrible suffering or whatever, or people linger for a long time, the medical bills eat up the whole estate--I mean, I could go on if you want, but--
MR. HARAKAS: No--
JUSTICE BREYER: --the point is that then there's no money left and the grandchild who was going to get the money has no lawsuit and no money, and nothing.
MR. HARAKAS: Well, that's--
JUSTICE BREYER: So they're saying you should fill in that hole.
MR. HARAKAS: Well, you can fill in that hole, but you have to work within what Congress--
JUSTICE BREYER: No, but am I right about the facts? Is it--am I right about the assumption?
MR. HARAKAS: I'm sorry.
JUSTICE BREYER: Am I right about the assumption that in such a circumstance nobody--it's--nobody would get any--
MR. HARAKAS: Well, if there were no proper DOHSA beneficiaries, then there--
JUSTICE BREYER: There are, but they didn't suffer any harm, because you see, they weren't left any of the money.
MR. HARAKAS: Well, there are other types of--you can recover loss of support.
JUSTICE BREYER: No--they--all right. No, No, you're right, if there was the harm, so I--assume that out. This Court has the power to supplement, presumably, because of Moragne.
MR. HARAKAS: Well, I respectfully disagree with that, Your Honor, because I think Moragne was a very limited--
JUSTICE BREYER: Well, even Higginbotham said that the Court has the power.
MR. HARAKAS: If the Court has the power, but Moragne dealt with a different situation than when you're on the high seas, where Congress has legislated, and I think Higginbotham recognized that. Even Moragne recognized the supremacy of the maritime statutes.
JUSTICE BREYER: So in order to distinguish it you'd have to draw a negative assumption from the enactment of the Death on the High Seas Act. You'd have to assume Congress--which you argue, that Congress didn't want it supplemented.
MR. HARAKAS: That's correct.
JUSTICE BREYER: And the reason that Congress wouldn't have wanted it supplemented is?
MR. HARAKAS: Because they affirmatively set forth what they decided was recoverable, because when Congress was enacting DOHSA they said there was no other possible action for a Death on the High Seas Act. There was no general maritime law action at that time.
JUSTIC BREYER: Exactly, so they're operating against an environment where nobody gets a penny.
MR. HARAKAS: Exactly.
JUSTICE BREYER: So they say, hey, nobody gets a penny, now we're going to give a few pennies to a few people, so what is it that suggests that they wouldn't have wanted more pennies to go to some other people?
MR. HARAKAS: Well, I think when you look to--
JUSTICE BREYER: If everything changed.
MR. HARAKAS: Well, when you look to the structure of--I'm just sticking with the language right now of 765, what's the reason for 765. There, they said if there's a personal injury action that action shall be so--in its essence cease and be subsumed in the DOHSA action. Now, if they wanted a--if they want to allow a survival type of action, they wouldn't have put language in there.
CHIEF JUSTICE REHNQUIST: Well, maybe Congress wasn't all that crazy about awarding noneconomic damages.
MR. HARAKAS: Well, I--well, that's--
CHIEF JUSTICE REHNQUIST: It seems pretty clear that's the way they felt in 1920.
MR. HARAKAS: It is pretty clear when you go back. I don't want to get into the history right now, but if you look through the records, because DOHSA was a compromise. It wasn't just-- it was to grant a remedy where none existed before, but there were also interests of the shipowners. In fact, the first version of DOHSA had a $5,000 limit on recoverable damages, so--and that was--
JUSTICE GINSBURG: What is in the Jones Act--picking up on the FELA, what is the survival feature of that act, and how does it compare with State legislation?
MR. HARAKAS: The difference between the survival provision in the Jones Act and most State statutes is, the Jones Act, section 59, sets forth that there is a survival--this is the 1910 amendments, when they added the survival provision. It sets forth that the personal representative can continue any personal injury action the decedent had but for the benefit of certain named beneficiaries, whereas State survival--many State survival statutes says-- say that you--the personal injury action of the decedent shall continue and will be--and the estate recovers. So whereas under State statutes the estate itself, being a fiction where the decedent recovers, under the Jones Act, specific beneficiaries recover.
JUSTICE GINSBURG: That's who recovers. Now, what can be recovered? Is there any difference?
MR. HARAKAS: Well, various--State statutes vary. It depends on the State, but here, under section 59 of FELA, which is at the--in the back of our brief at page 7, it--the act says that any right of action given by this chapter to a person suffering injuries shall survive to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, and if then none--if none, then such employee's parents, and if none, then the next of kin dependent upon the employee, so it sets forth exactly who recovers. Whereas State statutes, the recovery goes to the estate and it's distributed under the will.
JUSTICE GINSBURG: But you haven't told me anything about what is recoverable. That doesn't sound like it's limiting the--
MR. HARAKAS: Oh, with respect to the damages recoverable, whatever damages would be recoverable under a personal injury action, so pain and suffering damages are recoverable under this, Your Honor.
JUSTICE GINSBURG: Without any ceiling?
MR. HARAKAS: Correct. There is no ceiling on that. None of the Federal statutes currently have any type of ceilings on the types of recoverable damages as to monetary caps. When you look to DOHSA overall, and what it intended to do from 1920 to the present day, DOHSA did draw certain lines, as all States do, and these lines are based on policy decisions made by the legislature, just as Congress today is considering what is the policy they should have for a death on the high seas and they're considering various amendments of the Death on the High Seas Act, and if someone can't recover under the applicable statutes, a person should not be allowed to recover under judge-made maritime law. We have to stick strictly within the boundaries set forth by this statute and by Congress, because the role--
JUSTICE STEVENS: May I ask a question that will kind of reveal my ignorance, but supposing you have a slip-and-fall case on an ocean liner out in the middle of the Atlantic Ocean and they come back and sue, what law governs the measure of damages?
MR. HARAKAS: The measure of damages is general maritime law, actually.
JUSTICE STEVENS: Generally maritime law.
MR. HARAKAS: It's traditionally recognized, personal injury actions for injuries on the high seas.
JUSTICE STEVENS: And that's all judge-made, isn't it?
MR. HARAKAS: And that is all judge-made, and the Jones Act does deal--the Jones Act does deal with personal injuries, but the Death on the High Seas Act does not deal with personal injuries. One version that was proposed with respect to the Death on the High Seas Act would have made DOHSA akin to FELA, and would have allowed further recovery of personal injuries, but that was soundly defeated in 1916, and what we have today is the version that currently was enacted basically, except for the repeal of 763 in 1980. It's the same version.
And I just want to make one point with respect to 763. That really isn't part of the--763a. That isn't part of the Death on the High Seas Act. That is a statute of general application which Congress enacted in 1980 to make a uniform limitation period whether in actions brought under the Death on the High Seas Act, maritime law, whether it's a Death Act or a personal injury action, and it was just codified at 763a, but there's a codification note that says this was not enacted as part of the Death on the High Seas Act.
CHIEF JUSTICE REHNQUIST: Well, what is the general description of the causes of action that 763a pertains to?
MR. HARAKAS: It pertains to personal injury, or death.
CHIEF JUSTICE REHNQUIST: But it has to be on the ocean?
MR. HARAKAS: It--any time there's maritime jurisdiction.
CHIEF JUSTICE REHNQUIST: Any time there's maritime--
MR. HARAKAS: That's correct, Your Honor. If you have no further questions--
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Harakas.
MR. HARAKAS: Thank you.
CHIEF JUSTICE REHNQUIST: Mr. Minear, we'll hear from you.
MR. JEFFREY P. MINEAR: Mr. Chief Justice, and may it please the Court: The United States submits that the Death on the High Seas Act provides the exclusive remedy in this case, and I'd like to explain why. Congress enacted the statute in response to this Court's decision in The Harrisburg, which held that general maritime law does not provide a remedy for persons who die from injuries at sea. Congress legislated with the understanding, in the wake of The Harrisburg, that the Federal statutory regime that was created would be the only remedies that would be available for death on the high seas.
Congress considered the policy question of appropriate remedies in that light, and it struck what it felt was the proper balance. Here, as in Mobil Oil v. Higginbotham, and as in Offshore Logistics v. Tallentire, this Court should not supplement the statutory wrongful death remedy with other remedies that Congress did not provide. We think that course would be inappropriate here, because it is clear from the text and the legislative history that Congress considered the possibility of a survival action and decided not to provide one.
The most instructive provision of the act for the purposes here is section 5. That section recognizes that the plaintiff might die after commencing a personal injury suit for activities on the high seas. The plight of an injured person who begins a suit, but dies before a final judgment is reached, provides an especially sympathetic case for allowing a survival remedy, but even in that case, Congress decided that only a wrongful death remedy would be available. Congress could easily have--
JUSTICE KENNEDY: So the personal representative sues, but the beneficiaries are those named in DOHSA?
MR. MINEAR: That is correct, yes. Now, Congress could have easily written section 5 to provide a survival type remedy, but it made a legislative choice not to provide that type of remedy, and we think that is important here, that Congress was making what is essentially a legislative choice. The legislative history confirms--
JUSTICE STEVENS: What do you say to your opponent's argument that at least you can explain that provision as a way of saving an action that otherwise would not exist.
MR. MINEAR: Yes, that is--well, what I think that Congress was attempting to do here is, it recognized that in the absence of section 5 the personal representatives would have to commence a new suit, and what they're allowing here is--
JUSTICE STEVENS: And it might be barred by limitations.
MR. MINEAR: Yes, and they will just--can step right into the shoes of the decedent--
JUSTICE STEVENS: Right.
MR. MINEAR: --and continue on, but the action would be transformed into a wrongful death remedy for the particular class of survivors.
JUSTICE STEVENS: May I ask you how you'd decide this case if Congress had omitted section 5 from DOHSA?
MR. MINEAR: If Congress had omitted that section, then we would be faced with the question of, well, what did Congress intend to prevent this type of cause of action, and I think the argument would still be quite clear that Congress did, and I think it's the legislative history that we would then turn to under that circumstance.
JUSTICE STEVENS: You'd have to rely on legislative history, then.
MR. MINEAR: I think that would be one of our primary sources.
JUSTICE STEVENS: Yes.
MR. MINEAR: It would certainly figure more prominently, but I think even then the text would be quite helpful, because the text was written to indicate that these would only be pecuniary damages that would be provided, and here we are seeking a different type of remedy that would not have been available in 1920.
JUSTICE STEVENS: No, but where--your opponent's seeking the kind of remedy the Court created, in effect, in Moragne, and everybody seems to agree we have the power to create such a remedy here--
MR. MINEAR: Yes. I--
JUSTICE STEVENS: --if we think it is not inconsistent with any congressional direction.
MR. MINEAR: Yes. I think this Court does have the power to create it.
JUSTICE STEVENS: Yes.
MR. MINEAR: But the principal thrust of our position here is that this is a legislative choice, that the question--that deciding that there's a survival remedy doesn't put an end to the number of questions that will come up.
There will still be questions with regard to who should that survival remedy inure to, what should be the measure of damage, how would it be reconciled or coordinated with the wrongful death--
JUSTICE STEVENS: But those are all the same kind of questions we get if the plaintiff doesn't die, if it's a slip-and-fall case.
MR. MINEAR: Not necessarily. At least with regard to the coordination of the wrongful death remedy with the survival remedy, there would still be a requirement. Here, if you're allowing both of those remedies, this Court is going to have to make decisions in terms of what remedies are compensable under each of those two different causes of action, and where there might be an overlap between the type of remedy that's provided--
JUSTICE STEVENS: Yes.
MR. MINEAR: --so there will be some, I think--some additional questions that would come up, and some additional complications. Now, as I said, I think the legislative history here makes it clear that Congress was making a conscious choice. The legislative history, both the reports and the hearings, indicate that Congress was aware of the difference between a wrongful death action and a survival action. Furthermore, Congress understood that the statutory remedy here would be exclusive, and Congress was also apparently aware of this Court's decision in Michigan v. Vreeland, the case that Justice Ginsburg alluded to earlier, in which the Court indicated that only Congress, only a legislature could create a survival remedy and, indeed, as has already been discussed,
Congress has created those types of survival remedies in the Jones Act and also under the Federal Employers Liability Act. But Congress nevertheless made a conscious policy decision not to provide a survival remedy here, and--
JUSTICE BREYER: Was Congress aware--at that time, had Federal courts created new tort remedies in admiralty law, or tort-like remedies on their own at all?
MR. MINEAR: I think that this Court had followed what was traditionally English practice, which meant that there was an action for maintenance and cure for seamen, and there was also an action for negligence, general negligence for passengers--
JUSTICE BREYER: What I'm driving at is, would Congress at that time also have been aware of the possibility that Federal admiralty courts could create remedies?
MR. MINEAR: No. I think it probably--
JUSTICE BREYER: No.
MR. MINEAR: --that would have caught it by surprise, but that has changed now with Moragne. Certainly this Court indicated a different view on that matter. But again, that was--Moragne was in response to the actions of State legislatures, and here I think it's appropriate for this Court to defer to the actions of Congress on this question. As I said before, this is a legislative policy issue here, and Congress--
JUSTICE GINSBURG: And can you enlighten--give us any more enlightenment than we've already had from counsel on legislative policy? What is the current thinking about what to do with air crashes?
MR. MINEAR: It's my understanding that the House bill 2005 did pass the House, and that would have simply removed aviation claims from the Death on the High Seas Act.
JUSTICE GINSBURG: Left it all to State law, then, and Moragne-type--
MR. MINEAR: Yes. We'd then be faced with a choice-of-law question that was relatively easy after Zicherman, where this Court simply looked to the question of Death on the High Seas Act, that we'd then be faced, in Warsaw cases, of determining what is the appropriate body of law.
Most likely it would be a State, or perhaps a foreign cause of action. There is action pending in the Senate, but I don't believe that anything has passed the Senate at this point, and I believe the provisions are different from the House bill. Now, as I've said, I think that the Court cannot take action in this case in providing a survival remedy without overruling, or at least overriding the judgment that Congress made in 1920. Perhaps that judgment should be changed, but perhaps not, but that's a decision, we believe, that is for Congress. If there are no further questions--
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Minear. The case is submitted