Transcript

CHIEF JUSTICE WILLIAM REHNQUIST: We'll hear argument first this morning in Number 94-1361, Marjorie Zicherman v. Korean Air Lines, and a companion case. Mr. Needham.

ORAL ARGUMENT OF W. PAUL NEEDHAM ON BEHALF OF THE PETITIONERS/RESPONDENTS ZICHERMAN, ET AL. MR. NEEDHAM: Mr. Chief Justice and may it please the Court:

On September 1, 1983, Muriel Kole lost her life as a result of the willful misconduct of Korean Air Lines.

Suit was instigated in the Federal District Court pursuant to the Warsaw Convention, and loss of society damages were awarded by a jury.

Loss of society damages, it is our position, pursuant to Article 17 of the Warsaw Convention, are damages sustained. That is a treaty entered into force in 1934. The phrase is damage sustained, or dommage survenu.

It is our position that based on the plain meaning of those words, damage equals loss, and loss equals loss of society.

This is consistent with French civil law, and this Court in Saks said that French civil law plays a role in determining the interpretation of the word, dommage survenu, and when the phrase dommage survenu, or damage sustained, is used, there was no pecuniary restriction.

JUSTICE ANTONIN SCALIA: The world adopted French civil law when it subscribed to the Warsaw Treaty?

MR. NEEDHAM: No, it did not, Your Honor, but French civil law is one indication of the meaning of those words at the time it was drafted.

Since the United States did not attend, it was in French, and the French civil law and continental jurists drafted it, and in Saks this Court says that --

JUSTICE SCALIA: I don't understand. What do you mean, one indication? Do we look to French civil law for the meaning of dommage, or do we not?

MR. NEEDHAM: We do.

JUSTICE SCALIA: We do, and French civil law governs. MR. NEEDHAM: It governs -- JUSTICE SCALIA: And the Warsaw Treaty adopted French civil law. MR. NEEDHAM: It did -- JUSTICE SCALIA: It seems to me very unlikely.

MR. NEEDHAM: It did to the extent -- this Court in Saks said that you look to French civil law because that's the law that was used when it was drafted, and dommage survenu in French civil law includes both dommage moral and dommage material, which is both the pecuniary damages and the moral damages.

JUSTICE SCALIA: Every element of damages that French civil law includes can be recovered under the Warsaw Treaty, and every element of damages that French civil law does not permit to be recovered must be excluded?

MR. NEEDHAM: Yes, Your Honor, and I think --

JUSTICE SCALIA: Now, is this French civil law as it is amended from year to year, or is it the French civil law that was in effect at the time the --

MR. NEEDHAM: I believe it would be the French civil law that was in effect at the time. JUSTICE SCALIA: In effect at the time -- MR. NEEDHAM: But more than anything, Your Honor, it's the plain meaning, because this Court in interpreting treaties, and in the Chan case this Court looked at plain meaning, and in the Chan case, Your Honor --

JUSTICE RUTH BADER GINSBURG: If we are to take seriously your argument that French law, French jurisprudence controls, then what mustn't we take into account all of French law, that is, how it in fact applies in France, and no matter how many elements of damages -- of damage would be included in the word dommage, still, there are no juries in France, and awards on all of the items are more modest than they are in the United States.

So can you pick the part of the French law that you like, that is, the list of what's included in damages, but leave out the fact that the recovery is likely to be a lot lower if you have the same case before a French trier?

MR. NEEDHAM: We look at French civil law to determining the meaning of the phrase, dommage survenu, and we note that they did not restrict it to pecuniary laws.

That's the main thrust of our argument, not that the entire convention is governed by French civil law, but that the definition of --

JUSTICE GINSBURG: I just -- if -- let's just say pain and suffering would be an element, but in fact pain and suffering damages awarded in French cases do not compare with the size of awards in this country.

Isn't that part of the French law that would apply, if, indeed, French law controls?

MR. NEEDHAM: If French law controlled everything, that would the case, Your Honor, but in this case we are before you on loss of society, and the narrow question is whether the phrase dommage survenu in French law, the phrase dommage, includes loss of society or dommage moral, and we contend that it does.

JUSTICE O'CONNOR: Well, Mr. Needham, the Warsaw Convention also contains Article 24, and under Article 24, which refers back to Article 17, where you find the phrase dommage survenu, it appears to leave the level and nature of damages under the Warsaw Convention subject to limitations and law of the signatory nations. Article 24, subsection 2, has to have some meaning.

MR. NEEDHAM: Well, Your Honor, we would contend that subsection 2 of Article 24 refers to the procedural matters to the State, and it reads that without prejudice to the questions as to who are the persons who have the right to bring suit, and what are their respective rights -- rather than saying what are their rights, what are their respective rights.

And our reading of that is, respective meaning what are their rights vis-a-vis one another.

What are their rights, who has standing to bring the suit, who may recover, what special questions go to the jury, and that the plain meaning doctrine still applies, the plain meaning of the word.

And this Court in the Chan case looked very closely at the Warsaw Convention, in Article 3, where it says ticket delivered, and said it could not substitute the phrase, a conforming ticket delivered, or a regular ticket delivered, and we contend in this case you would have to insert the phrase, dommage material survenu, or pecuniary damages.

JUSTICE O'CONNOR: Well, what about a signatory State that does not permit a cause of action after death to a survivor, only to the estate of the decedent?

Would Article 24 refer us back to who should recover under the law of the signatory State?

MR. NEEDHAM: I think it would to the extent that that State decides who may bring the lawsuits and who is entitled to have which question submitted to the jury.

JUSTICE SCALIA: Isn't that a strange, strange system you're -- I mean, French law governs what damage may be recovered, but local law governs who gets the damages.

Why would anyone create a system like that? It seems so bizarre.

MR. NEEDHAM: Well, reading through the minutes, Your Honor, the United States was not present. You had civil law countries, common law countries, and the convention has a whole series of very, almost conflicting terms.

JUSTICE SCALIA: No, I understand that, but I never look at that stuff anyway, but it seems to me if you have alternate interpretations of the text, you shouldn't impose the one that creates a bizarre result, and it seems bizarre to me that French law should determine whether there can be recovery, but local law shall determine who gets the recovery. That's what you're arguing.

MR. NEEDHAM: Well, Your Honor, I would submit --

JUSTICE SCALIA: That can be avoided by interpreting Article 25 as Justice O'Connor suggested it could be interpreted.

MR. NEEDHAM: Well, when the Warsaw Convention wanted a reference to local law, they were very specific. In Article 21, Article 28, Article 29, they said local law, go to local law.

So that's our -- that's our argument, and we think that that is consistent with the damage cap.

This is a unique treaty where there is a damage cap, and when this treaty was negotiated, at the time it was negotiated there was great concern about the airline industry not staying in business.

There was great concern that any large liability lost and they'd be out of business.

JUSTICE ANTHONY KENNEDY: Did the French -- did French law determine the meaning of misconduct in this case?

MR. NEEDHAM: It did not. There is a specific provision in Article 25 that you can use the phrase, wilful misconduct, or whatever equivalent you have in your local law, and in that case they were very specific about going to local law.

But it's interesting to note, even in its infancy when there was great concern about the viability of the airline industry, even then the Warsaw Convention determined that if there is willful misconduct there is no pact, so even at a time when they were very concerned about being able to attract capital, very concerned about being able to get insurance, even at that time they concluded that if there was wilful misconduct there was no cap, and if there's wilful misconduct and there's no cap, then there are limited damages, and we contend to deter the wrongful misconduct, and because there is a deterrence factor, and because there are not punitive damages available, this Court must allow a broad range of compensatory damages.

To have a cap off so there's wilful misconduct that needs to be deterred, and then to graft on some restrictive interpretation of the phrase, dommage survenu, would give the airline a double layer of protection that it did not negotiate --

JUSTICE GINSBURG: Was there not a report that a company -- at the time that the Warsaw Convention was originally drafted that said there were the two problems, the who and the what damages, that they couldn't successfully resolve and both were referred to local law.

The two questions, what persons in the case of death would recover and what are the damages subject to reparation, the report accompanying the treaty said it wasn't possible to find a satisfactory solution, so those questions were not regulated by the convention itself.

Now, you're telling us that dommage must mean what it means in the French law. There's no report at the time of the drafting that says that.

Are you relying on any practice abroad with respect to the interpretation of this treaty that everyone looks to the French civil law to see how it should be construed?

MR. NEEDHAM: I'm relying more on the plain meaning of the words, and the plain meaning of the words as they appear in the treaty. However, if this Court.

JUSTICE SCALIA: Am I correct that all of the foreign courts that have grappled with this except one have applied local law rather than French law --

MR. NEEDHAM: Well, there's the --

JUSTICE SCALIA: -- and that one court was overruled by statute?

MR. NEEDHAM: Well, that one court is Preston v. Hunting Air Transport, which is an English case, and then there's the Israeli case which this Court cited with some disfavor in Floyd when it awarded emotional damages, called Air France v. Titner, a case in Israel, when they looked at the plain meaning of Article 17 and said it was good jurisprudential policy to give it a wide meaning. However, if this Court concludes --

JUSTICE SCALIA: Why was that? Did they say why it was good jurisprudential policy to give it a wide meaning rather than a narrow meaning?

MR. NEEDHAM: I don't know. It concerned the Israelis who were hijacked to Entebbe. They had no physical injuries, but they'd been very traumatized, and the court concluded --

JUSTICE SCALIA: Jurisprudence favors plaintiffs rather than defendants, is that the jurisprudential principle?

MR. NEEDHAM: Well, I think the principle is that a treaty with a cap such as this, when the cap is off, that the good jurisprudential policy is to give the plain meaning of the words and to give adequate compensation. This Court --

CHIEF JUSTICE REHNQUIST: That may be perfectly -- the plain meaning of the word sounds fine. Adequate compensation sounds fine, but what you're saying is, in effect, we put a thumb on the scale, that, you know, if you have an interpretation that perhaps is evenly balanced between a narrower and a broader one favoring plaintiffs, you favor the broader one.

Why on earth is that?

MR. NEEDHAM: I favor the broader one in this case for several reasons. First of all, there is a deterrent element to this convention.

The United States signed this convention and carriers agreed that they would be subject to limitations. $75,000 is a limitation.

If the airplane is negligent, and 100 people lose their lives, they write out a check for $7.5 million.

In that very unusual instance, and one of the amicus briefs points out there's only eight reported cases of wilful misconduct since 1934, when that occurs the cap should be off.

When that occurs, for deterrence if nothing else, there should be a broad range of compensatory damages to deter the wrongful misconduct and to allow compensation to the plaintiffs, who suffer under this cap. American citizens have a cap out there, a $75,000 cap.

CHIEF JUSTICE REHNQUIST: That's what the treaty says. I mean, there's no doubt or alternate constructions of it. That's what the treaty says.

MR. NEEDHAM: Yes, Your Honor, and the treaty says that the airlines or the carrier may not invoke that cap when there's a finding of wilful misconduct.

CHIEF JUSTICE REHNQUIST: So the cap isn't involved here, but I don't see how it follows what else you're saying, that apparently the sky is the limit, regardless of language and that sort of thing, that you just bend every effort to maximize the plaintiff's recovery.

MR. NEEDHAM: We do not, Your Honor. We say in this particular case that there is no grief, there are no punitive damages.

We're saying in this particular case that loss of society should be awarded without limitation and without any financial dependence, and --

JUSTICE O'CONNOR: Now, if it were a domestic flight that had gone down over the high seas, I assume that there would be no damages such as you are recovering -- seeking to recover here for loss of society.

MR. NEEDHAM: If this --

JUSTICE O'CONNOR: Domestic passengers would not be able to recover -- MR. NEEDHAM: If this -- JUSTICE O'CONNOR: -- for loss of society.

MR. NEEDHAM: If this were governed by the Death on the High Seas Act, there would be -- JUSTICE O'CONNOR: Right. MR. NEEDHAM: -- only a pecuniary loss. JUSTICE O'CONNOR: Right. MR. NEEDHAM: If this case were governed by varying State laws, there is overwhelming support for the loss of society.

JUSTICE O'CONNOR: Yes, but we've said that when a death occurs on the high seas it's governed by DOHSA, isn't that right?

MR. NEEDHAM: Well, the DOHSA has been applied to deaths on the high seas. It has not been applied in a Warsaw Convention case. We would contend that the treaty is the supreme law of the land.

JUSTICE O'CONNOR: And do you say the cause of action is created by the Warsaw Convention?

MR. NEEDHAM: We do.

JUSTICE O'CONNOR: Could you file suit under Korean law, do you suppose, in this case?

MR. NEEDHAM: Well, there was -- there's one part of the Death on the High Seas Act that allows you under 7 -- section 764 to use the law of the carrier. That may be one possibility, to use Korean law.

Here, the exclusive remedy in international air transport is the Warsaw Convention, and if this Court concludes that the damages under the Warsaw Convention are not to be controlled by their plain meaning, or not to be controlled by French civil law but rather by the law of the United States or the local law, we also find support, and we find support in general maritime law, we find support outside of the straitjacket, or the shackle of the Jones Act and the Death on the High Seas Act.

JUSTICE KENNEDY: Well, I take it it's the law of the case because of the D.C. Circuit's opinion that U.S. law applies, not Korean law, U.S. law of some sort.

MR. NEEDHAM: Well, that was not in our particular case, and I believe they were talking about the list of beneficiaries and who are the proper parties to bring the cas, and they looked to the Death on the High Seas Act for that.

JUSTICE KENNEDY: But is it not the law of the case that Korean law cannot apply, or am I wrong about that?

MR. NEEDHAM: I believe that is the law of the case. I believe this is strictly a Warsaw Convention case, and the phrase, damage --

JUSTICE KENNEDY: Well, under the Warsaw Convention Korean law might have applied in some cases, might it not?

MR. NEEDHAM: For Korean citizens it may have applied in some factor. We think in this case that Korean

-- the Nation of Korea was not involved in the drafting or the negotiation of the Warsaw Convention, and for certain Korean citizens it might.

In our case, we have American citizens who were on the flight, and their claim for loss of damage sustained finds support in civil rights law.

There's cases under 1983 where this Court has administered remedies, including death remedies, from the common law going outside of the statutory framework, and the approach by Korean Air Lines to make this a DOHSA case, to make this a Jones Act case, is simply inappropriate. The Jones Act and the Death on the High Seas Act were passed in 1920.

JUSTICE GINSBURG: But that's not -- that, I take it, is not the argument. The argument is, how do you fill in this term, and if we reject your argument that it has a plain meaning, then there are several sources of law you could consult. You've mentioned some of them.

You can look at the laws of other States, you can look at general maritime law, but why isn't the most appropriate reference a statute passed by Congress meant to deal with tragedies of a similar kind?

MR. NEEDHAM: Your Honor, the statute passed by Congress, and this Court in Alves said that it was hastily enacted, it was not the product of attentive judicial review, and was merely to fill a gap for death on the high seas.

It is a pecuniary law statute. It is an employment-related compensation statute that was designed to compensate the bread-winner who may have been injured on the high seas.

It is a very limited, very restrictive statute that was passed to fill a gap.

CHIEF JUSTICE REHNQUIST: What case did you rely on, Mr. Needham?

MR. NEEDHAM: I relied on Alves, Your Honor, and the quote from Alves is that --

CHIEF JUSTICE REHHNQUIST: Do you have a citation?

MR. NEEDHAM: I do, Your Honor. The citation on Alves is 446 U.S. 274, and the particular page, on page 282 to 283, that states that DOHSA and the Jones Act should not be accorded overwhelming analogical weight in formulating remedies under general maritime law because they were hastily enacted within days of each other, yet are hopelessly inconsistent and not the product of attentive judicial review.

JUSTICE SCALIA: What was the date of that case? MR. NEEDHAM: That was 1980, Your Honor. JUSTICE SCALIA: Yes.

MR. NEEDHAM: And the Court --

JUSTICE SCALIA: Haven't we later applied the Death on the High Seas Act in determining what general maritime law ought to be, even when the act is not strictly applicable?

MR. NEEDHAM: Well, in Miles this Court did apply it, but I think Miles is very distinguishable, because you had a Jones Act seaman, and I think what this Court held is, when you have a Jones Act seaman, and he's wearing his Jones Act seaman hat, then whether he's in the territorial waters or on the high seas, and whether it's under the Jones Act or general maritime law, you're going to treat him the same as a Jones Act seaman, and I don't think that extinguished the general maritime right to recover loss of society that this Court announced in Gaudet, and this Court went on to say in Alves that no intention appears that DOHSA has the effect of foreclosing any nonstatutory Federal remedies that might be found appropriate to effectuate the policies of general maritime --

JUSTICE KENNEDY: Yes, but shouldn't the complete answer to the Chief Justice's question include a citation to Executive Jet? We applied DOHSA there, a domestic flight crash in -- on the high seas.

MR. NEEDHAM: That is -- is correct, there has been an application of DOHSA to air crashes, but not in cases where the Warsaw Convention controls.

JUSTICE SCALIA: Well, wait, why should that make any difference? I mean, it seems to me either French law applies or domestic law applies, and we've done arguing on the first one.

We're now arguing on whether, if domestic law applies, it ought to be DOHSA or something else, but once you say domestic law applies, haven't we held that by its terms DOHSA applies here, so there's -- we need to argue about what general maritime law might be.

Whatever it might be, the very words of DOHSA apply to this case by reason of Executive Jet, isn't that true?

MR. NEEDHAM: I don't believe so, Your Honor, because -- JUSTICE SCALIA: Why not? MR. NEEDHAM: We have a binding treaty obligation, and the DOHSA, because you have the DOHSA for certain restrictive kinds of deaths, does not mean that that trumps the treaty obligation that comes 14 years later.

JUSTICE SCALIA: That's true if the treaty refers to French law, but if the treaty refers to United States law, isn't it clear that the United States law is DOHSA?

MR. NEEDHAM: Not in this case, Your Honor. JUSTICE SCALIA: Why? MR. NEEDHAM: Because this is not a Jones Act seaman. This is a civilian. this is a --

JUSTICE KENNEDY: But neither was it in Executive Jet. I just think you have to confront the consequences of Executive Jet. Say that we were wrong in Executive Jet, if you want to make that argument. MR. NEEDHAM: I think --

JUSTICE KENNEDY: But first you say it's the treaty, and then we get you back to the -- what should the domestic law be? We've said in Executive Jet that DOHSA is the closest analogue, and we're going to apply it.

MR. NEEDHAM: Well, we think that that's in error, Your Honor. We think that --

CHIEF JUSTICE REHNQUIST: Mr. Needham -- MR. NEEDHAM: Yes, Your Honor. CHIEF JUSTICE REHNQUIST: -- Alves was not a Court opinion, was it?

MR. NEEDHAM: I understood that it was, Your Honor, at 446 U.S. 274.

CHIEF JUSTICE REHNQUIST: I think if you'll look again you'll see it's only a plurality opinion.

MR. NEEDHAM: All right, Your Honor.

To get back to the point that the Court's addressing, if we're going to look at domestic law, are we shackled by the Death on the High Seas Act, and I think that you still --

CHIEF JUSTICE REHNQUIST: What do you mean, shackled by the Death on the High Seas Act? Why don't you use a neutral phrase such as governed? I mean, the Death on the High Seas Act is an act of Congress, just like numerous other statutes are, and to refer to you as being shackled, I don't -- I mean, that's a very pejorative --

MR. NEEDHAM: I understand, Your Honor. We feel as if the other side is attempting to do that, Your Honor. Looking at it more fairly -- JUSTICE BREYER: -- the other side use the word.

JUSTICE STEPHEN BREYER: Why, actually -- I want to get your point, but I mean, if I had started back -- it gets a little depressing, frankly.

There isn't much damage here. It's 12 years later. There isn't a lot of money in the case, so I guess if I'd gone back to page 1, I would have looked at this Article 17, which strikes me as totally ambiguous, and I would have asked whether or not there are other cases over the last 75 years where somebody decided what law applied, and I take it the answer to that's none, right -- never decided.

MR. NEEDHAM: In the United States, Your Honor?

JUSTICE BREYER: No, in the world.

MR. NEEDHAM: There's very thin jurisprudence, and I would contend --

JUSTICE BREYER: Yes, okay, so you say the answer's none, all right, except one that you think is on your side here, which I don't, but nonetheless, I'm trying to get --

JUSTICE SCALIA: That's not true, though. There are a number of other cases in other jurisdictions, almost all of which, except the English case, come out the other way, don't they? They apply local law.

MR. NEEDHAM: We have not found very many cases, simply because -- I think because of the damage cap.

What generally happens, it's such a minimal amount of money, if there's a crash, it gets paid, and it's only when there's wilful misconduct and you don't have a damage cap --

JUSTICE BREYER: And then they didn't settle, or you couldn't reach a settlement, or whatever. Okay.

Now, my question is really Justice O'Connor's. I then go to Article 24. This would all happen 12 years ago. Twelve years ago we'd look to Article 24.

It seems to say that you apply the local law. That's what it seems to say. I grant you it's a little ambiguous, but I would have thought at least there's a chance you'd apply local law.

And at that point I'd ask, what does a court in the United States do, and I guess the first question that a court in the United States would have under, were there never any Warsaw Treaty, would be, oh, I have an accident in the Sea of Japan with a Korean airplane shot down by some Russians, and the only American connection is the identity of the victim.

So I would have wondered whether American law would be applied by an American court, and my question is, what happened?

I.e., when you raised that question, what happened, or is that question in the case, or what is the law that applies under American law?

MR. NEEDHAM: The law that we would contend that would apply under American law is Federal common law.

JUSTICE BREYER: In other words, it's a normal rule of conflicts that even if you have an accident that happens somewhere in the world, a Korean plane, the Sea of Japan, a Russian fault, et cetera, that the law of the State of the victim always applies no matter what?

MR. NEEDHAM: No. It's clear from the drafting of the treaty that you must have --

JUSTICE BREYER: No, no, I'm talking about without the treaty. I would imagine that the first question would be, if Article 24 applies and you're supposed to use local law, what the treaty tells you to do is pretend there is no treaty, all right.

Now, if I'm right about that, the first question would be, what law applies for an American court?

I would try -- the one thing I -- I'm asking you because I'm puzzled. I'm not asking as an argument. The one thing I can't find in this case is some kind of answer to that question.

It seems to me lawyers have been litigating this for about 14 years over a fairly small amount of damage, and so I would like to know what the status of that is. How am I supposed to answer this?

MR. NEEDHAM: I would think without the convention, Your Honor, it would be a very ticklish problem, which is --

JUSTICE BREYER: Well, how are we supposed to treat this case, given that problem in it? Are we supposed to pretend it's stipulated out when it wasn't, or what?

MR. NEEDHAM: Well, I think in this case there is a convention, and the convention does apply in this case, precisely to simplify the problem, but were there not a convention it would be --

JUSTICE BREYER: I was making the assumption that Article 17 is ambiguous and doesn't give you the clear answer that you think, that Article 24 says, courts of the world, apply your own law when you decide the meaning and shape out who gets to what kinds of damages. On those assumptions, what am I supposed to do?

MR. NEEDHAM: Under those assumptions you are supposed to apply, I would contend, a Federal common law so you'll have a uniformity of results in the country and you wouldn't get caught in this hodge podge of conflicting State death statutes of one kind or another.

JUSTICE O'CONNOR: Well, but counsel, the question is whether U.S. law should apply at all.

I had assumed that you were taking the position that U.S. law applies and -- in this case, and the other side is, too, and somehow you expect us to decide the case on that basis, is that right?

MR. NEEDHAM: Well, that's our alternative argument, that if Article 24 brings us back to the United States for our law, that in fact it's a Federal common law, and that we should recover under the Federal common law.

JUSTICE KENNEDY: I thought you said it was the law of the case because of what the D.C. Circuit held, at least as to the definition of misconduct, et cetera.

MR. NEEDHAM: I do not believe that that is the law of the case.

JUSTICE KENNEDY: All right, it's not the law of the case.

MR. NEEDHAM: And if there are no further questions I would like to reserve the balance of my time.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Needham. Mr. Harakas, we'll hear from you.

ORAL ARGUMENT OF ANDREW J. HARAKAS ON BEHALF OF THE RESPONDENTS/PETITIONERS KOREAN AIR LINES

MR. HARAKAS: Mr. Chief Justice, may it please the Court:

The issue in this case is, what is the United States law that is applicable --

JUSTICE JOHN PAUL STEVENS: May I ask right there, because I didn't get a chance to ask your opponent, but the -- assuming the treaty doesn't speak for itself, we have to go behind the treaty to look at some other law, it seemed to me as I read the papers in this case that both of you seemed to assume that we do look to American law, to United States law for the answers, and I just wonder why?

MR. HARAKAS: In the action that was pled here -- there were actions pled under the Warsaw Convention and under the Death on the High Seas Act. JUSTICE STEVENS: Right. MR. HARAKAS: Now, under the Death on the High Seas Act there is a

-- its own conflict of law provision saying, under section 4, that you can avail yourself to any remedies provided by local law.

Now, with respect to the choices of law issue, there is the Harris case from the Ninth Circuit where the court did do a choice of law analysis under the Warsaw Convention.

JUSTICE SCALIA: So when you say local law applies, you mean local law including the local choice of law rules. MR. HARAKAS: Exactly. JUSTICE SCALIA: So whatever forum you're in will apply its own choice of law rules.

MR. HARAKAS: Exactly.

JUSTICE STEVENS: So it's the fact that it's American forum that really controls in your view.

MR. HARAKAS: Exactly. You could have a Warsaw Convention case, but then there can be -- there's nothing in the convention that would preclude you from applying

-- doing a choice-of-law analysis, and in fact the drafters, when they were drafting the convention, were unable to agree to that specific issue because of the very different views with respect to which law do you apply, and --

JUSTICE SCALIA: You have agreed that the choice of law of this forum, if it is local law, would be American law, and properly would be American law.

MR. HARAKAS: That's correct, Your Honor.

JUSTICE SCALIA: So that issue is not before us.

MR. HARAKAS: Correct, Your Honor.

JUSTICE STEVENS: And may I ask, just to get one thought sorted out in my mind, here, under American law, your argument is the death occurred on the high seas, so the statute -- the statute applies.

If the death had occurred, say, in flight over California instead of on the high seas, would you then contend -- would it be California law that would apply in your view?

MR. HARAKAS: No, Your Honor. I would contend that in that situation, that if you want to have a desire for uniform law, because the convention does -- is a Federal treaty, it should be interpreted under one uniform law, and you could apply by analogy other Federal statutes.

JUSTICE SCALIA: If we want a uniform law, we'd have French law. MR. HARAKAS: Well, any -- JUSTICE SCALIA: Once you decide you're not going to interpret dommage the way the French do, it seems to me you've abandoned any desire for uniform law.

MR. HARAKAS: Well, that's correct with respect to -- at the international level.

The drafters never accepted the fact that they cannot come up with one uniform rule at the international level as to damages and who can recover damages. They left that to the domestic States. Now, when you look to the convention --

JUSTICE SCALIA: California's a State.

JUSTICE KENNEDY: Yes, that's what -- I don't quite understand why -- what is your answer, if the action had occurred in flight over California? Would the Death on the High Seas Act provide the rule under your view?

MR. HARAKAS: Yes, it would, by analogy, not directly, Your Honor, because when I refer to States I really am referring to nations, because when you look at the convention, the convention is a contract between countries, not --

JUSTICE KENNEDY: And that's true if it also occurred over territorial waters. You'd say the Death on the High Seas Act governs even though it would not govern if it had been a ship in territorial waters.

MR. HARAKAS: No, not by -- not directly, but I think when you look to the progression of the general maritime law cause of action for wrong death, especially under the principles of Moragne and Miles --

JUSTICE SCALIA: You know we have a case before us -- MR. HARAKAS: Yes. JUSTICE SCALIA: -- involving that. MR. HARAKAS: Yes, the Calhoun case, Your Honor.

JUSTICE SCALIA: And you think -- you're suggesting what the answer ought to be to that.

MR. HARAKAS: Well, I would say --

JUSTICE SCALIA: Or do you think we should have a different rule for boats and airplanes? (Laughter.)

MR. HARAKAS: No, I think you should have one uniform rule, but in, let's say the Calhoun situation,

I think the Moragne case sent a strong signal what the Court was doing with the application of State statutes in the territorial water. Moragne --

JUSTICE O'CONNOR: Well, if that isn't the answer, if it should turn out that this Court does not think that Moragne extends to territorial water, and certainly not to land, then what should happen in the Warsaw Convention, and where do you read in the Warsaw Convention some notion that the law of the signatory State has to be uniform in giving the answers to those questions?

MR. HARAKAS: Well, there's no specific provision in the convention because when they were drafting the convention I don't -- the drafters were not looking to the Federal system that we have in our country, in any specific country.

Of course, the United States had only sent observers to the conference. They were more concerned -- they were looking at nations as a whole, and what happens domestically, the drafters didn't address that issue, but when you look to the convention, I think in our system it does create -- it is a Federal treaty, and it should be interpreted at the Federal level with one consistent, uniform law.

My argument -- my basic argument is that on the high seas --

JUSTICE O'CONNOR: I just don't understand why. I mean, if all it does is refer you to the law of the signatory State, why can't that be whatever the law of the signatory State is, which may not in fact be uniform with regard to the answer, depending on whether it occurred over the high seas or over land?

MR. HARAKAS: Well, I think that's where we run into one of the problems here, is that when it does occur over the high seas, that you do have a directly applicable Federal statute.

Let's say, the scenario you gave with respect to California, Your Honor, in that situation an argument could be made, if you were just going to look to the various States, that you would apply California law, but I think there are other considerations that --

JUSTICE SCALIA: What do you care, Mr. Harakas? MR. HARAKAS: Well, it isn't -- JUSTICE SCALIA: You really don't care, do you? All you have to say is, in this case, it's on the high seas, and the Death on the High Seas Act applies? Why -- why --

MR. HARAKAS: It would be -- that is a simple issue, the simple answer to my case here, because it is in fact just a Death on the High Seas Act case.

JUSTICE SCALIA: You want us to decide other cases, too. (Laughter.)

MR. HARAKAS: Well, I don't think it's necessary for you to go beyond the facts of our case.

JUSTICE GINSBURG: I think you want us to deal with the Second Circuit reasoning, which said our first case under the convention was the Lockerbie case.

MR. HARAKAS: That's correct, Your Honor.

JUSTICE GINSBURG: Where we thought that there ought to be this uniformity, and that wasn't a watery death, so they had some Federal common law, general maritime law, which is a little more giving than DOHSA, right?

MR. HARAKAS: That's correct, they did look to general maritime law, and the problem with that case is, they looked to Gaudet as representative of general maritime law.

JUSTICE SCALIA: And Lockerbie is not California. It's not within any of the States of the United States.

The problem that Justice O'Connor is posing is really quite different. It has to do with domestic Federalism within the United States. Lockerbie doesn't relate to that.

MR. HARAKAS: Well, the Lockerbie --

JUSTICE SCALIA: You could say that Lockerbie properly came out the way it did without necessarily saying that if the crash -- if Lockerbie occurred in California, California law wouldn't --

MR. HARAKAS: You could do that, and in our case that is a necessary determination to be made in our case, because you do have the Federal statute. You don't necessarily have to reach that.

The only point I'm making here is that, if the Court wants to address the Lockerbie case in order to come up with unified rule as what the Lockerbie court was concerned with, then the proper rule should be taken from looking to other Federal wrongful death statutes.

JUSTICE BREYER: Can I ask you -- I'm not -- one puzzle that I have in my mind still, which maybe you've just answered to Justice Scalia, is how does this work in your -- in your mind, the treaty refers you to, say, the Eastern District of Iowa, or whatever it is.

Now, we're in the Eastern District of Iowa, and the first thing that they have -- say, that judge there is a Federal judge, and the treaty said judge, you apply the law you would apply normally without the treaty. That's right?

MR. HARAKAS: That's right.

JUSTICE BREYER: Okay. So why isn't the first thing the judge would do is say, the first thing I have to decide for a case where the accident happens over in Japan, in the international sea, to the Korean Airline with an American passenger, is, what law applies, all right. Now, why isn't that in this case? Because --

MR. HARAKAS: Well, because in this case it was -- you look to what is the United States law that would apply in that context. I think all parties have agreed that it would --

JUSTICE BREYER: Well, can you do that? Can you say, we all agree that the law of Tibet applies?

MR. HARAKAS: No, of course -- parties can't agree to tell the court what law that --

JUSTICE BREYER: Yes, all right, so the first thing the judge in Iowa does is, he gets out the Death on the High Seas Act.

The Death on the High Seas Act gives anybody in the world a right of action if they're killed on the high seas.

MR. HARAKAS: That's correct.

JUSTICE BREYER: Okay. So there we have in the court of Iowa, we have a person from Italy who was killed in an airline accident in Korea by a Japanese, so the first thing -- or in the Sea of Japan, so the first thing I'd wonder is, what law applies. What law would apply there?

MR. HARAKAS: Well, in that case, then, you could -- if the parties brought it up, you could make a Federal --

JUSTICE BREYER: Suppose they didn't bring it up. MR. HARAKAS: Well -- JUSTICE BREYER: Suppose that's -- suppose -- so then this Court would decide, okay, it's an Italian, it involves Japan, it involves Korea, so we'll apply our American law just for fun, or what?

MR. HARAKAS: No.

JUSTICE BREYER: What are you supposed to do?

MR. HARAKAS: What you should do in that situation, let's say you didn't have the Federal statute or anything --

JUSTICE BREYER: No, no, what you have -- MR. HARAKAS: I'm sorry. I'm sorry. JUSTICE BREYER: It's the real situation.

The judge in Iowa picks the page up, chapter 21, Death on the High Seas Act, the Italian has the cause of action, now he asks himself, what law do I apply here to find out the rights and wrongs of the party?

Do I apply the rest of the Death on the High Seas Act? Do I go to Korean law, Japanese law, Italian law? MR. HARAKAS: I understand -- JUSTICE BREYER: How do you do it? I'm genuinely puzzled, which is why I'm asking --

MR. HARAKAS: Well --

JUSTICE BREYER: -- and I don't believe the parties would just stipulate that issue out of the case, would they?

MR. HARAKAS: No. Well, in a situation like that, you could do a Federal choice-of-law analysis to see, just like in the Harris case, to see which law you would apply. I think in the Harris case they did apply the law of --

JUSTICE BREYER: All right, then, why don't you have to do that here?

MR. HARAKAS: Because we brought -- the action was in the context of the Death of the High Seas Act, and the decedents in this case, of course, were United States citizens and residents of New York or Massachusetts.

JUSTICE BREYER: So if a victim -- that's enough to get American law to apply, even though the accident's abroad and everything else --

MR. HARAKAS: Well, the Death on the --

JUSTICE BREYER: -- the answer's yes?

MR. HARAKAS: The Death -- yes, Your Honor. JUSTICE BREYER: Okay. MR. HARAKAS: But I would like to just add to that is that the Death on the High Seas Act does give the court jurisdiction for any death occurring on the high seas, and it doesn't specify that you have to any other nexus is required other than the application of a death occurring on the high seas.

JUSTICE GINSBURG: Mr. Harakas, I'd like you to go back to your prior answer, because I'm not confident that it's clear that it would be the whole law of the United States.

You know that you can get into a rather messy situation in defining local law to be not only the -- not the conduct-regulating rule, but the choice-of-law rule, which could then get you over into some other system, and then you must ask, is it the whole law, including the choice-of-law rule?

So in many legal contexts, local law is understood to mean not the choice of law rule, but you go directly to the conduct-regulating rule, or the damage-setting rule.

You do not go to the choice-of-law just so you will avoid this kind of problem that conflicts teachers sometimes call the rondure. MR. HARAKAS: Yes.

JUSTICE GINSBURG: So in the Warsaw Convention, is there nothing that tells us whether local law means whole law of the country, or substantive law of the country?

MR. HARAKAS: The -- there's no specific provision saying that in those terms, but with respect to the substantive law, it does tell you, go to the law of the court where the action is pending.

I think when you look to, let's say Article 28, or other various provisions, it's always referenced in terms of the law of the court where the action is pending.

JUSTICE SCALIA: Why would the treaty make an American court apply American law, even where an American court would normally not apply American law? That's very strange.

MR. HARAKAS: Well, I don't -- the treaty doesn't do that. It just leaves the whole issue to the domestic law of the country, and at that level --

JUSTICE SCALIA: By which you mean, including the choice of law, which was the question Justice Ginsburg was asking.

MR. HARAKAS: I would say it would include the choice of law, because the convention specifically didn't want to deal with that issue, because every time they tried to insert a choice of law provision there was a lot of objection to that, and in fact any choice-of-law provisions other than a couple of places where it specifically says, look to your national law, were deleted from the convention.

JUSTICE KENNEDY: The concern is, is that if you have just stipulated with the other parties that U.S. law, including U.S. choice-of-law principles apply, and U.S. law applies to determine the substantive issues in the case, then the case may not be as important as you told us in the writ for certiorari, or as the petitioner has told us.

MR. HARAKAS: No, Your Honor, because in this case here it's -- you do have a death on the high seas, and that gives the court juris -- a Federal court jurisdiction to hear the action, and when you're talking about looking into foreign laws, the pleader does have the option to bring in elements of foreign law within the Death on the High Seas Act.

I think here, when you have an international crash on the high seas, and you do have a Death on the High Seas Act that is applicable, that does give the court jurisdiction, and at that point, the elements of damages are set out, and I don't think you have to engage, in the context of this case, in a choice-of-law analysis.

JUSTICE KENNEDY: But if other courts in a number of other cases would, and would apply foreign law, then this case has less significance than it would otherwise.

MR. HARAKAS: I don't think so, because even with respect to the application of foreign law, if the court finds that it should apply to foreign law, which I don't get into now because I don't think you have to, but if it does, then the issue comes down to, what are those damages recoverable under that foreign law, and that just leads to more disarray in the convention itself, with -- each court starts engaging in various choice-of-law analysis. You want to --

JUSTICE BREYER: I would think in most places in the world -- the Death on the High Seas Act was passed at a time when it was more liberal, really, than most State law, but tort law has sort of gone beyond that in most places in the world, and you'd think almost any other law would let a survivor recover.

Wouldn't most of them give you damages for pain and suffering -- sorry, for grief and for loss of society?

MR. HARAKAS: Well, for -- a lot of the civil law countries do allow brief damages, but a lot of the civil law countries still don't allow loss of society or nonpecuniary damages.

For example, at the time the convention was drafted, I think a majority of the States did not allow nonpecuniary damages.

You had countries like the Soviet Union that were involved in the drafting of that, and their strict pecuniary loss at that time, and if you had told someone from the Soviet Union that you're going to be allowing nonpecuniary damages under French law, I don't think they would have signed on to this convention. In addition --

JUSTICE GINSBURG: Do you know, Mr. Harakas, in fact, the -- have there been actions elsewhere arising out of the KAL crash that has occupied our court now for -- our courts for over a decade, but talking about how would it be in other countries, how many cases are pending elsewhere in comparison to the number pending in the United States?

MR. HARAKAS: I believe there are four actions pending in Canada, and five actions pending in Japan.

JUSTICE GINSBURG: And how many in the United States?

MR. HARAKAS: Currently pending, approximately 40 in the United States. Everything else has been settled.

JUSTICE GINSBURG: Yes, but in the original carving up of who was going to sue, didn't the United States have the overwhelming number of lawsuits?

MR. HARAKAS: That's correct, Your Honor. There were over 101 actions filed in the United States.

JUSTICE GINSBURG: Even though most of the people who were killed were not from the United States.

MR. HARAKAS: A number of people, they worked -- I can't remember the exact breakdown of the citizenship, but most of those people were either settled before the case came to trial, or they settled in their own countries with Korean Airlines.

But when you look back, just to pick up again on the issue of recoverable damages in France, Mr. Needham says that it allows loss of society damages, and those damages are nonpecuniary, and they were recoverable in 1929.

But from the references cited in the briefs, and I've done some research on the issue, the only thing I could discern that in 1929,

France allowed grief damages, but I couldn't see anything that allowed loss of society damages, per se, even under French law, and even the grief damages, they were in a minority position at that time.

I don't think you can adopt the entire body of French law from 1929 and bring it into a treaty and say, this is what you're going to apply in the United States.

JUSTICE SCALIA: {How} did you find that out about French law, from cases or from treatises?

MR. HARAKAS: From treatises, Your Honor.

JUSTICE SCALIA: That's what they use, isn't it?

MR. HARAKAS: Yes.

JUSTICE SCALIA: And what do the French treatises say about this issue of whether Article 17 applies French law, French treatises?

MR. HARAKAS: There's no French decision I was able to locate -- JUSTICE SCALIA: Yes. MR. HARAKAS: -- that discusses this issue, because basically in French law they just allow any damages that are certain and direct.

That's the basic principle of French civil law. The only other cases I've been able to locate are some -- a Canadian case, which basically applied the law of Quebec, and there is the Preston case that was brought up here, and the court didn't engage in extensive analysis --

JUSTICE SCALIA: And a number of American cases.

MR. HARAKAS: And a number of American cases all adopting unanimously the view that you go to your domestic law.

JUSTICE SCALIA: And abroad there are a number of treatises, though. There are quite a few cited.

MR. HARAKAS: Yes, there are a number of treatises, and they're all unanimous in that view. I was unable to find anyone taking a contrary position. Now, with the Preston case, that case --

JUSTICE SCALIA: And they rate professors higher than judges over there, right? (Laughter.) MR. HARAKAS: Um -- JUSTICE SCALIA: Oh, you can tell the truth. (laughter.) MR. HARAKAS: Sometimes. I don't think they're -- I'm not going to -- (Laughter.) MR. HARAKAS: -- go on with that.

JUSTICE GINSBURG: Well, their cases don't count, at least formally, as precedent.

MR. HARAKAS: No, they don't, not in a civil law country, even though they tend to be persuasive enough to other courts, but formally they don't. But --

JUSTICE GINSBURG: So nobody would cite the Executive Jet case to any court. MR. HARAKAS: Well -- JUSTICE GINSBURG: Or their counterpart.

MR. HARAKAS: -- they do sometimes cite to -- refer to American decisions, because since the United States decisions are one source of law where the convention has been analyzed to --

JUSTICE GINSBURG: I meant comparable precedent in their own system. You might cite something for persuasive value.

MR. HARAKAS: Yes, you might cite that. A court would look at it, but they wouldn't be obliged to follow that.

JUSTICE BREYER: But in your view, would you like this Court to hold -- I'm not saying we would, but I mean, would you like the Court to hold, is that the treaty refers you back to domestic law, then, in a case where the parties have stipulated that American law applies, under those circumstances, the Death on the High Seas Act limits the recovery, but in the cases where they haven't made that stipulation in court, now -- am I right? Now we have a blank to fill in, and -- am I right about what you want us to say?

MR. HARAKAS: No. I think what I would like you -- the opinion to say would be, is, the Warsaw Convention refers the Court to domestic law, and then the domestic law in the context

-- you have to look to the context where you're in, and the domestic law in the context of that case, you look to the Federal law that applies, and that case is the Death on the High Seas Act.

JUSTICE BREYER: So in a case where the parties said, please, judge, it's Korean law that applies, you would like us to say that isn't true.

MR. HARAKAS: No. I -- the -- I think with respect to the Korean law issue, that can come in through the Federal statute, through the Death on the High Seas Act, under section 4.

There was specific provision for that under section 4 of the Death on the High Seas Act. And then the issue comes down to, in that situation, whether those remedies are in addition to the remedies provided by the Death on the High Seas Act, or are those just the exclusive remedies which the lower courts have taken conflicting views on.

JUSTICE O'CONNOR: I just don't think it's quite that easy. If a Korean passenger were on the airplane and died, and wanted to sue in the United States, and if the parties wanted to raise the issue, why wouldn't the court in the United States have to make a choice-of-law decision that might well refer them to Korean law?

MR. HARAKAS: Well, in -- outside the context of our -- because let's say in the case where DOHSA is not applicable, where you don't have a Federal statute giving you the court jurisdiction, that you do have a -- you can't have Federal jurisdiction under the Warsaw Convention itself, and at that point the court could do a choice-of-law analysis and go to another country, but in the context of our case --

JUSTICE GINSBURG: Well, don't you think this case arose under law of the Warsaw Convention?

MR. HARAKAS: It did arise under the law of the Warsaw Convention, and it occurred -- the deaths and everything arose on the high seas, and that's enough to trigger the applicability of the Death on the High Seas Act.

CHIEF JUSTICE REHNQUIST: And the plaintiffs here were Americans.

MR. HARAKAS: The plaintiffs here were Americans, in this case.

JUSTICE BREYER: So your point -- it's been slow, but I think the light is dawning. You're saying when you sue under the Death on the High Seas Act there's a specific provision, section 4, that tells you whenever a right of action is granted by the law of a foreign State, you can sue on that one, so a person who doesn't mention that is a person who is deemed to have forgotten by that one

-- forget it, cut it out -- and therefore wants American law to apply.

MR. HARAKAS: You have the option under the Death on the High Seas Act.

JUSTICE BREYER: You have your option, but you have to state what your option is, and unless they refer to section 4, they must be taking the American option.

MR. HARAKAS: That's correct.

JUSTICE BREYER: That's your point. I've got it. Thank you.

MR. HARAKAS: Thank you, Your Honors. The only other point that I just want to stress here is that in developing this law in this case, I think this case is very similar to the Higginbotham case, where the Court was faced with the same question that the Second Circuit faced. Do you apply the law chosen by Congress under DOHSA, or the law developed by the Court in Gaudet, and in Higginbotham the Court said, you cannot use Gaudet to allow loss of society damages where the Death on the High Seas Act applies.

All those precedents following Higginbotham and Miles show the restrictive nature of the Gaudet remedy, and in fact Gaudet has been limited specifically to its facts with respect to, it only applies in territorial waters, and it only applies to longshoremen.

The Second Circuit didn't address that issue in looking to Gaudet, and just adopted Gaudet as a general representation of maritime law today, and I think the Second Circuit was incorrect in approaching the issue in that manner.

JUSTICE KENNEDY: But you -- but if I understand your argument correctly, you do say there should be one uniform Federal rule that applies not only to high seas but to territorial waters and to accidents over land, and if that's so, I just don't quite understand why that should be -- if there is a uniform law, why we aren't free to choose between the alternatives.

MR. HARAKAS: Well, I'm saying in our particular case, I don't think we have to go any further than just looking to the context of our case in DOHSA, but if the Court is concerned with the uniformity issue, I think there is room to develop a uniform rule, but I don't think we -- in the context of our case we have to go any further than DOHSA -- JUSTICE KENNEDY: But you're saying then -- MR. HARAKAS: -- for death on the high seas.

JUSTICE KENNEDY: -- if it's just sort of an accident, this happens to be a high seas case, so we'll take that standard, and then we later on say, we've got to have uniformity, so we would extend the coverage of that statute. MR. HARAKAS: Well --

JUSTICE KENNEDY: But if we started out saying we have to have uniformity, then we might have a lot of different alternatives to apply.

MR. HARAKAS: Not necessarily, because when you're talking about uniformity, you're not talking about treaty uniformity, you're talking about -- JUSTICE KENNEDY: American -- MR. HARAKAS: American uniformity. JUSTICE KENNEDY: Right.

MR. HARAKAS: And then when you're looking to the rule of what should be the uniform rule, you should look first to the Federal statute to see is there a directly applicable statute, and even when there isn't a directly applicable statute, is there a policy in similar statutes that Congress has expressed what types of, in this case damages are recoverable, and when you look to each of those Federal statutes, there is one consistency between the Jones Act, DOHSA, and FELA. It's pecuniary losses only.

JUSTICE GINSBURG: Do I remember the Second Circuit case in this decision, this case correctly in that the Second Circuit, wrong or right, was saying that in these international air disasters, when they come into U.S. courts and you apply the provision of the treaty that says, local law applies, the Second Circuit thought that that ought to be one local law whether the crash occurred in Scotland on land, in the Sea of Japan, or over California? That was the Second Circuit's view, was it not?

MR. HARAKAS: Yes, Your Honor, it was, and that's where I think they ran into trouble in trying to find what this uniform law is, and they adopted --

JUSTICE GINSBURG: Well, they didn't. They thought the general maritime law, as declared in Gaudet, was a very fine reference.

MR. HARAKAS: That's what they did look to, but I think you have to -- when you're applying and looking for Federal law, it's just the general maritime law doesn't have a life of its own.

I think the Court's decisions in Miles and Moragne showed us that the general maritime law is derived from the maritime statutes.

Because today there are so many statutes out there, we have to look at those statutes for guidance, and those statutes direct the court and control the latitude that a court has in fashioning a remedy or recognizing a remedy, and I don't think the Second Circuit took those considerations into account. They viewed general maritime law as something separate and distinct from those maritime statutes.

JUSTICE STEVENS: May I -- are you finished with your -- may I ask this question? It just -- we think -- we tend to think of international air crashes like this as almost always occurring over the high seas, because of all the international flights, but at the time the convention was adopted, is it not true that the typical case would be one flying between different countries, and the action would be most apt to occur over land?

MR. HARAKAS: Within Europe, that would be true, but beyond that I think the drafters noted the issue -- they foresaw, because Lindbergh had just crossed the Atlantic in 1927 -- JUSTICE STEVENS: Right -- MR. HARAKAS: -- and the end of World War I --

JUSTICE STEVENS: -- but there wasn't an awful lot of air carriers flying across the Atlantic at that time.

MR. HARAKAS: Not at that time, but they foresaw that coming to be, and in fact within 10 years that's what --

JUSTICE STEVENS: But there already was substantial international commerce over land.

MR. HARAKAS: Over land, but a flight between London and the Continent would have been over the high seas --

JUSTICE STEVENS: Over the channel, right.

MR. HARAKAS: Over the channel, and in fact transportation even between the United States, there were flights between the United States and Cuba, and those were over the high seas -- over -- international waters as well.

Just in conclusion, I'd like to say that the Court should reverse the decision of the Second Circuit below extending Gaudet to the high seas and allowing loss of society damages and reaffirm the basic principle in this case and in maritime law that damages for loss of society simply are not recoverable for a death on the high seas.

If there are no further questions, I will conclude.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Harakas. MR. HARAKAS: Thank you. CHIEF JUSTICE REHNQUIST: Mr. Needham, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF W. PAUL NEEDHAM ON BEHALF OF THE PETITIONERS/RESPONDENTS ZICHERMAN, ET AL. MR. NEEDHAM: Thank you. Mr. Chief Justice, and may it please the Court:

The United States signed the Warsaw Convention. They are treaty-bound to follow that convention.

One of the fundamental purposes of that convention was to deter wilful misconduct. In this case, there has been a finding of wilful misconduct.

At the time that the Death on the High Seas Act was passed into law, there was no contemplation of a cap.

There was no cap of any kind, and in this particular case, when, to effectuate the purpose of this treaty, the Court needs to have a deterrent effect, to then graft on to --

JUSTICE STEVENS: But the people who are guilty of the wilful misconduct were the flight crew, weren't they?

MR. NEEDHAM: Well, the flight crew, and that gets imputed to Korean Air Lines, which is the defendant.

JUSTICE STEVENS: Yes, but the flight crew, I suppose they have a pretty good deterrent whatever the damages are.

MR. NEEDHAM: Yes, absolutely.

JUSTICE GINSBURG: I thought the purpose of the Warsaw Convention was to put a lid on the damages, wasn't that the main purpose of it, so that the then-infant industry would be able to grow up?

MR. NEEDHAM: That's absolutely true, but even then, they said no lid when there's wilful misconduct, so as concerned as they were then about judgments --

JUSTICE GINSBURG: Yes, well, I thought the purpose was rather to put a lid on damages but, when the conduct was so bad, they were going to allow it to be handled the way tort litigation was handled generally.

MR. NEEDHAM: And that -- that is this case, Your Honor, and in this case, to award loss of society, and we believe that Federal common law is correct, we believe loss of society is there in Federal common law, and we believe to attach a financial dependency requirement to loss of society is inappropriate.

The love and affection and mutual benefit you have in a family does not depend on how much money changes hands, and we disagree with the financial dependency --

JUSTICE O'CONNOR: Counsel, I have one question. I hate to ask at the last minute, but the complaint had Count I, a suit under the Warsaw Convention,

Count II, a suit under the Death on the High Seas Act, in which it asserts that Korean law is applicable. What happened to that?

MR. NEEDHAM: Your Honor, that was alternative pleading. We had a very detailed complaint, and after the finding of wilful misconduct we trimmed it up and made it very clean.

The defendants insisted it was a death on the high sea case. It was merely alternative pleading.

You can see, under jurisdiction, we said there was jurisdiction under the Warsaw Convention. We pled the Warsaw Convention, we argued consistently the Warsaw Convention, and we --

JUSTICE O'CONNOR: What happened to that Count II, Death on the High Seas --

MR. NEEDHAM: I think that count was either dismissed, or there was no finding. It was submitted to the jury, not on Count I, not on Count II, just on a verdict to the jury, and we argued our first count.

We never relied on the second count. It was just alternative defensive pleading, Your Honor.

And we would ask that the decision of the Second Circuit be affirmed with the exception that there not be a financial dependency requirement grafted onto the loss of society. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Needham. The case is submitted.