Academic journal article Defense Counsel Journal

Recoverable Damages in Wrongful Death Actions Governed by the Warsaw Convention

Academic journal article Defense Counsel Journal

Recoverable Damages in Wrongful Death Actions Governed by the Warsaw Convention

Article excerpt

THE most significant recent development in Warsaw Convention jurisprudence in the United States is the application of federal common law, rather than state or foreign law, to wrongful death damage actions governed by the convention. There are two key questions raised by this newly developing body of law:

* What type of damages may properly be recovered in wrongful death actions governed by the Warsaw Convention?

* Who is entitled to recover such damages?

Article 17 of the Warsaw Convention(1) creates a cause of action for "damage sustained" in the event of "death," "wounding," or other "bodily injury" of a passenger. The convention is silent, however, on what type of damages may be awarded and who may claim entitlement to damages.(2)

The convention's framers knew and expected that the local law of the contracting parties would have to be used to supplement and define the wrongful death cause of action provided by the treaty. For example, Article 24(2) provides that the provisions of the convention shall apply "without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights." In other articles--for instance, Articles 22(1), 25(1), 28(2) and 29(2)--there are references to "the law of the court to which the case is submitted."

Until recently, American courts would conduct an exhaustive choice of law analysis and apply the wrongful death law of one U.S. state or another (or that of a foreign country) as the local (substantial) law in such cases. In air disaster litigation involving numerous plaintiffs from many different states and countries, the result was that the survivors of deceased passengers often received disparate recoveries, even when their decedents earned similar incomes, left similar estates and were sitting alongside one another when death occurred.

The Second Circuit altered the course of Warsaw Convention jurisprudence in 1991 in the case now referred to as Lockerbie I when it applied federal common law as the "local law" of the United States to determine the elements of recoverable damages and the proper beneficiaries in death actions governed by the convention.(3) So far the Second is the only circuit to have applied federal common law to Warsaw Convention wrongful death cases.

Since there was a dearth of federal common law relating to wrongful death damages as recently as three years ago, one task of the first court to adopt this change was the development of a remedy for wrongful death under federal common law. This task the Second Circuit undertook in the case now referred to as Lockerbie II,(4) in which it held that the federal common law to be applied in these cases should be developed by reference to general maritime law, the oldest body of federal common law.

Today, in air disaster litigation pending in the United States, federal courts are applying federal common law rather than state or foreign law to define the wrongful death cause of action provided by the Warsaw Convention. In this newly developing body of law, there is both agreement and disagreement on what may be recovered and who may recover.

Courts that have addressed these two issues agree that federal common law permits plaintiffs in a wrongful death case governed by the convention to recover damages for (1) the predeath pain and suffering of the decedent and (2) pecuniary damages for loss of support, loss of services, loss of parental care, loss of inheritance, and funeral and burial expenses. Courts disagree as to (1) whether awards of non-pecuniary damages for loss of society and survivor grief are proper and (2) who is within the class of claimants that may recover.

The cases applying and interpreting federal common law in wrongful death actions governed by the convention are of recent vintage. Many are on appeal, and one significant appeal in a case arising from the infamous KAL 007 crash of September 1, 1983--Zicherman v. …

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