The opinion of the court was delivered by: CHIN
Plaintiff Jagjit Tandon ("Tandon") brings this action against defendant United Airlines, Inc. ("United Airlines") as representative of his deceased mother-in-law, Dildar Seekree ("Mrs. Seekree"), asserting claims arising out of Mrs. Seekree's death on board a United Airlines flight. Defendant moves for partial summary judgment arguing that because the Death on the High Seas Act ("DOHSA"), 46 U.S.C. § 761 et seq., permits recovery only for pecuniary damages, the claims for loss-of-society, the anguish or grief of the survivors, Mrs. Seekree's pain and suffering, and punitive damages must be dismissed. Because DOHSA does not permit recovery for these types of damages, defendant's motion is granted and these claims are dismissed.
While on a United Airlines flight from London to New York, Mrs. Seekree suffered a heart attack. Tandon, her son-in-law and a physician, began treating her. At his request, a flight attendant brought him a portable oxygen container with an oxygen mask, so that he could administer oxygen to Mrs. Seekree. The pilot was apprised of the situation and agreed to land the aircraft in Boston, rather than New York, so that Mrs. Seekree could seek medical attention at a hospital.
Shortly thereafter, Tandon discovered that the oxygen tank was nearly empty and requested more oxygen. The flight attendant told him that there was no more oxygen available to treat Mrs. Seekree. While the plane was still in the air, and more than a marine length from the United States coastline, Mrs. Seekree died. (Affidavit of United Airlines pilot, Richard M. Mitchell, PP 19, 24). The flight was then redirected to New York, the original destination.
This action was commenced on September 26, 1994. The complaint asserted claims under state common law, the general maritime law, and DOHSA. United Airlines thereafter moved for summary judgment dismissing the action as time-barred under the Warsaw Convention.
In a memorandum decision dated February 21, 1996, I denied the motion, holding that the Warsaw Convention did not apply in this case because Mrs. Seekree's death did not result from an "accident," and holding further that plaintiff's state law claims were not preempted by the Warsaw Convention. Tandon v. United Airlines, 926 F. Supp. 366 (S.D.N.Y. 1996); see Tseng v. El Al Israel Airlines, Ltd., 1997 U.S. App. LEXIS 14870, Nos. 96-7447, 96-7619, 1997, slip op. (2d Cir. June 13, 1997).
The parties now agree, based on the pilot's affidavit, that plaintiff's original belief that Mrs. Seekree's "death occurred over coastal or inland waters of the United States" was incorrect. Rather, it is now undisputed that her death occurred "on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States." Hence, this case is governed by DOHSA.
Under DOHSA, a plaintiff may only recover pecuniary losses. Section 762 permits a plaintiff suing under DOHSA to recover "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." Suit may be brought by "the decedent's wife, husband, parent, child, or dependent relative." 46 U.S.C. § 761. The issues presented are whether plaintiff may recover for: (a) ...