is limited to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought." Id. at 636 (citing 46 U.S.C. § 762). Based on that language, the Court reasoned that "where DOHSA applies, neither state law . . . nor general maritime law . . . can provide a basis for recovery of loss-of-society damages." Id. (citations omitted). Thus, the language of Zicherman implies that DOSHA does not permit plaintiffs to supplement recovery under other laws, including state law and general maritime law.
While the Second Circuit has not yet ruled on this issue, other circuits have interpreted Zicherman to preclude survival claims in DOHSA cases. In Saavedra v. Korean Air Lines Co. Ltd., the Ninth Circuit held that "because DOHSA does not allow recovery for nonpecuniary damages, we cannot 'supplement' Congress' remedy, allowing a general maritime survival action for nonpecuniary damages, including the pre-death pain and suffering claimed here." 93 F.3d 547, 554 (9th Cir.), cert. denied, 115 S. Ct. 584 (1996). The court's reasoning was two-fold. First, the court noted that DOHSA only permits recovery for pecuniary harm, and pain and suffering do not constitute pecuniary harm. Id. at 553. Second, DOHSA only authorizes "a wrongful death action on behalf of the decedents' immediate family and dependent relatives," while "pre-death pain and suffering are generally brought as part of a survival action on behalf of the decedent." Id. The court also rejected plaintiff's claim that DOHSA could be supplemented with a survival action under general maritime law, in light of the Supreme Court's holding in Zicherman that DOHSA could not be supplemented by general maritime law for loss-of-society damages. Id. at 554.
In In re Korean Airlines Disaster, the court employed similar reasoning in reaching the same conclusion. 935 F. Supp. 10, 15 (D.D.C. 1996). The court held that "in light of the Supreme Court's decision in Zicherman, this Court finds that the non-pecuniary pain and suffering damages may not supplement the damages available under DOHSA." Id. at 15. Once again, the court held that "recovery for the decedents' alleged pre-death pain and suffering is not recoverable under DOHSA [itself]." Then, relying on the Supreme Court's decision in Zicherman, the court held that, "non-pecuniary pain and suffering damages may not supplement the damages available under DOHSA."
Thus, these courts extended the reasoning of Zicherman to its logical conclusion, holding that DOSHA precludes survival claims, both under DOSHA itself and other laws, such as state law or general maritime law. See also Fox, 934 F. Supp. 1133, 1996 WL 440681, at *14 ("Under [DOHSA], no damages are recoverable for pain and suffering of a decedent prior to death."). But see Bickel v. Korean Air Lines Co. Ltd., 96 F.3d 151, 153-54 (6th Cir. 1996), cert. denied, 136 L. Ed. 2d 716, 117 S. Ct. 770 (1997) (on rehearing, court reversed a denial of damages for pain and suffering under DOSHA and held that "the Zicherman opinion therefore neither added to, nor made any changes in, the law regarding the availability of nonpecuniary damages under DOHSA.").
Plaintiff argues that Zicherman should be read only to apply to cases, such as Zicherman, in which the elements of the Warsaw Convention are met.
This argument is without merit. Nothing in the language of Zicherman supports such a reading. Moreover, the Court has noted that the Warsaw Convention itself does not provide the substantive law to be applied. Rather, the Warsaw Convention "permit[s] compensation only for legally cognizable harm," and "leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice-of-law rules." Zicherman, 116 S. Ct. at 637. In other words, the Warsaw Convention is "nothing more than a pass-through, authorizing [courts] to apply the law that would govern in absence of the Warsaw Convention." Id. (emphasis added). Where the incident "occurs on the high seas" in an airplane, as in this case, the "substantive United States law" is DOHSA. Id. Hence, Zicherman cannot be read to be limited to cases in which the elements of the Warsaw Convention are met, as the Court's DOHSA analysis is applicable regardless of whether the incident is an "accident" under the Warsaw Convention. Thus, defendant's motion is granted as to the survival claims.
D. Punitive Damages
Under DOHSA, plaintiff cannot recover punitive damages. Miller v. American President Lines Ltd., 989 F.2d 1450, 1457 (6th Cir.) ("[DOHSA] explicitly limits recovery to pecuniary losses, and does not provide for punitive damages."), cert. denied, 510 U.S. 915, 126 L. Ed. 2d 252, 114 S. Ct. 304 (1993); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1349 (9th Cir. 1987) ("The pecuniary remedies available under DOHSA therefore cannot be supplemented by punitive damages under the general maritime law."), cert. denied, 493 U.S. 871, 107 L. Ed. 2d 154, 110 S. Ct. 200 (1989). Therefore, defendant's motion for summary judgment on this issue is granted as well.
For the reasons set forth above, defendant's motion for partial summary judgment is granted. Plaintiff's claims for loss-of-society, the survivors' grief, Mrs. Seekree's pain and suffering, and punitive damages are dismissed. Plaintiff may proceed only on the claims for pecuniary losses.
The parties are to appear for a pretrial conference on July 25, 1997 at 11:00 a.m. in Courtroom 11A, 500 Pearl Street, New York, New York.
Dated: New York, New York
June 30, 1997
United States District Judge