When considering the contacts of the two countries the Court notes that South Korea is KAL's place of incorporation, its principal place of business, and the place where its crews are trained. On the other hand, the United States is the place of embarkation for many of the passengers, where the flight originated, and where all of the tickets were purchased.
Though both the United States and South Korea have significant contacts, consideration of the factors in § 6 convinces this Court that the United States law should govern these cases. The Court agrees with the analysis of the Sixth Circuit that "application of United States law supports 'ease in the determination and application of the law applied'" and "'the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,'" weigh heavily in the favor of this United States." Bickel, at *4. Indeed, "certainty, predictability, and uniformity of result" would be supported because the Supreme Court has already applied the United States law when determining compensatory damages. See Zicherman, 116 S. Ct. at 629; In re Korean Air, 932 F.2d at 1475.
Furthermore, this Court agrees that because "these actions arise under the Warsaw Convention, neither nation can legitimately claim to offer greater protection of the 'the basic policies underlying the particular field of law,' or 'the needs of the interstate and international system.'" Bickel, at *4. Accordingly, the Court finds that the United States law is the most appropriate when determining the available compensatory damages for these actions.
B. Loss of Society and Survivor's Grief
In light of the Supreme Court's decision in Zicherman, that DOHSA, supplies the substantive United States law regarding damages and that loss of society damages are not available under DOHSA this Court concludes that survivor's grief damages are also unavailable.
The Zicherman Court held that under § 762 of DOHSA recovery in a suit for death under § 761 "shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefits the suit is brought." 46 U.S.C. App. § 762. Following the dictates of DOHSA, the Court concluded that loss-of-society damages, since they are not pecuniary, may not be recovered.
Damages for a survivor's grief are a non-pecuniary form of damages which represents compensation for an emotional response to wrongful death. Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 585 n.17, 39 L. Ed. 2d 9, 94 S. Ct. 806 (1974). The Supreme Court has previously recognized that although federal maritime law permits dependent survivors to recover loss of society damages, it precludes survivors from recovering additional damages for their grief or mental injury. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978). Having concluded in Zicherman that DOHSA precludes recovery for the non-pecuniary damages such as loss of society, survivor's grief should be similarly unavailable. The Court agrees with the Sixth Circuit that there is no "distinction of which the Zicherman Court would have approved that would permit us to conclude that the recovery of one sort of non-pecuniary damages, such as loss of society, is precluded by DOHSA, whereas other sorts of non-pecuniary damages, such as survivor's grief, are not." Bickel, at *5.
C. Survival Actions for Pre-Death Pain and Suffering
Plaintiffs also argue that DOHSA limits recovery for only wrongful death claims and does not preclude additional recovery for pre-death pain and suffering because it is a survival claim.
There is no dispute that recovery for the decedents' alleged pre-death pain and suffering is not recoverable under DOHSA.
Rather, Plaintiffs argue that their survival claims are distinct from wrongful death claims and are available under general maritime law and can supplement the damages recoverable under DOHSA.
This Court disagrees. Although, other courts have allowed a pain and suffering claim to supplement the awards recoverable under DOHSA, it appears to this Court that with Zicherman, the Supreme Court has held that DOHSA provides the exclusive remedy for damages which cannot be supplemented with general maritime principles.
The Court explained "where DOHSA applies neither state law, nor general maritime law, can provide a basis for recovery of loss-of-society damages." Zicherman, 116 S. Ct. at 636 (citations omitted); See also Higginbotham, 436 U.S. at 618 (federal maritime law is not available to supplement DOHSA because with DOHSA Congress specifically spoke to the issue of damages and provided damages only for pecuniary losses, the Court may not provide supplementary damages beyond that authorized by Congress). Therefore, 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.
For the foregoing reasons, it is by the Court this 4th day of June, 1996,
ORDERED, that Defendant's Motion to Dismiss All Claims for Non-Pecuniary Damages be and hereby is GRANTED; and it is
FURTHER ORDERED, that Plaintiff's claims for loss of society damages, mental anguish and grief, and pre-death pain and suffering be and hereby are DISMISSED with prejudice.
Aubrey E. Robinson, Jr.
United States District Judge