The opinion of the court was delivered by: ROBINSON
On September 1, 1983, Korean Air Lines ("KAL") flight KE007 was shot down by a Soviet military aircraft, after it had veered off its course into Soviet airspace, killing all 269 passengers. The liability of KAL for those deaths was determined in a multidistrict litigation action in the District Court for the District of Columbia.
In that action, a jury found that KAL's "willful misconduct" proximately caused the passengers deaths, thus allowing recovery beyond the Warsaw Convention's $ 75,000 cap on damages. See Warsaw Convention, Art. 25, 49 Stat. 3020; Order of Civil Aeronautics Board Approving Increases in Liability Limitations of Warsaw Convention and Hague Protocol, reprinted in note following 49 U.S.C. App. § 1502 (1988 ed.). Following appeals of this action, the individual compensatory damages trials were remanded by the Judicial Panel on Multidistrict Litigation to the original transferor courts. Several actions regarding the recoverable compensatory damages still remain before this Court.
Presently before the Court is Defendant KAL's Motion to Dismiss All Claims for Nonpecuniary Damages. Defendant argues that damages for loss of society, survivor's mental grief, and for pre-death pain and suffering of a decedent are not recoverable. The parties agree that Plaintiffs' claims for loss of society damages must be eliminated in light of Zicherman v. Korean Air Lines Co., U.S. , 133 L. Ed. 2d 596, 116 S. Ct. 629 (1996). KAL's Motion raises two issues: (1) whether claims for mental grief, recoverable under Korean law, may be pursued in this Court after a choice of law analysis; and (2) whether survival damages for pre-death pain and suffering may supplement the wrongful death damages available under the Death on the High Seas Act ("DOHSA"), 46 U.S.C. App. § 761 et seq.
Article 17 of the Warsaw Convention makes an airline liable for "damages sustained" in the event of the death of a passenger, it provides:
The carrier shall be liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
49 Stat. 301 (emphasis added).
Until the Supreme Court's decision in Zicherman, U.S. , 133 L. Ed. 2d 596, 116 S. Ct. at 629, various courts struggled with the question of which "damages" are available under the Warsaw Convention. See e.g., In re Korean Air Lines, 932 F.2d at 1475 (D.C. Cir. 1991); In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267 (2nd Cir.), cert. denied, sub nom. Rein v. Pan American World Airways, Inc., 502 U.S. 920, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991). With Zicherman the Court put some of this confusion to rest, holding that "damage" means only "legally cognizable harm" and that "Article 17 leaves it to the adjudicating courts to specify what harm is cognizable." 116 S. Ct. at 633. The Court found support for its interpretation of "damage" in Article 17 through the express limitations of Article 24 of the Warsaw Convention which provides:
(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.
49 Stat. 3020 (emphasis added). Under the Court's interpretation of Article 24(2) when an "action is brought under Article 17, the law of the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for." Zicherman, 116 S. Ct. at 634. The Court concluded that "Articles 17 and 24(2) of the Warsaw Convention permit compensation only for legally cognizable harm, but leave the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice of law rules." Id. at 637.
Having concluded that compensable harm is determined by domestic law, the Zicherman Court explained that its next logical step would be to determine which sovereign's domestic law applied. The Court did not conduct a choice of law analysis because the parties had previously agreed that the issue of compensable harm was governed by United States law. The Court held, however, that where United States law governed, the Death on the High Seas Act ("DOHSA"), 46 U.S.C. App. § 761 et seq. (1988), supplied the substantive law of damages for an aircraft crash on the high sea. Id. at 636.
This Court has not been spared the choice of law question regarding which sovereign's domestic law governs compensable harm. Jurisdiction in these actions is premised on the federal treaty, the Warsaw Convention, 28 U.S.C. § 1331, admiralty, 28 U.S.C. § 1333, and in part on diversity. Here the parties are diverse because the Plaintiffs are citizens of the United States and the Defendant is a foreign nation. In Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), the Court held that a federal court sitting in diversity must apply the choice of law principles of the state in which it sits. Because jurisdiction in these cases is based only partly on diversity, application of the District of Columbia's choice of law rules is not necessarily required, especially in light of a potential conflict between the District of Columbia and a federal policy. In O'Melveny & Myers v. F.D.I.C., 512 U.S. ...