Dooley v. Korean Airlines Company

RESPONDENT: Korean Airlines Company
LOCATION: The White House

DOCKET NO.: 97-704
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 524 US 116 (1998)
ARGUED: Apr 27, 1998
DECIDED: Jun 08, 1998

Andrew J. Harakas - Argued the cause for the respondent
Jeffrey P. Minear - Argued the cause for the United States, as amicus curiae, by special leave of court, supporting the respondent
Juanita Madole - Argued the cause for the petitioners

Facts of the case

In 1983, Korean Air Lines (KAL) Flight KE007, en route from Alaska to South Korea entered the airspace of the former Soviet Union and was shot down. All 269 people on board were killed. Representatives of three of the passengers (petitioners) sued KAL for damages for their decedents' pre-death pain and suffering. While their suit was pending, the U.S. Supreme Court decided Zicherman v. Korean Air Lines Co. In Zicherman, the Court held that the Warsaw Convention permits compensation only for legally cognizable harm and that the Death on the High Seas Act (DOHSA) supplies the applicable U.S. law where an airplane crashes on the high seas. DOHSA allows certain relatives of a decedent to sue for their own pecuniary losses, but does not authorize recovery for the decedent's pre-death pain and suffering. Subsequently, the District Court granted KAL's motion to dismiss petitioners' nonpecuniary damages claims on the ground that DOHSA does not permit recovery for such damages. In affirming, the Court of Appeals rejected the argument that general maritime law provides a survival action for pain and suffering damages.


May certain relatives of decedents, in a case of death on the high seas, recover damages for their decedents' pre-death pain and suffering through a survival action under general maritime law?

Media for Dooley v. Korean Airlines Company

Audio Transcription for Oral Argument - April 27, 1998 in Dooley v. Korean Airlines Company

William H. Rehnquist:

We'll hear argument now in Number 97-704, Philomena Dooley v. Korean Airlines.

Ms.... is it Madole?

Juanita Madole:


William H. Rehnquist:


Ms. Madole.

Juanita Madole:

Mr. Chief Justice, and may it please the Court:

The issue presented here today is whether there is a general maritime law survival cause of action for the pre-death injuries to a nonseafarer when the conduct that causes the injuries occurs on the high seas and whether, if there is such a survival cause of action under general maritime law, it may be brought independent of but coexisting alongside the death action under the Death on the High Seas Act.

In order to understand the argument, it is important to point out the distinctions between the survival cause of action and the wrongful death cause of action.

As this Court has stated several times, the survival cause of action traditionally encompassed... encompasses the injuries that the individual he or herself sustained prior to death from the time of the injury.

Those traditionally encompassed pre-death pain and suffering, loss of earnings from the time of injury to the time of death, and any medical or associated expenses relating to the injuries until the time of death.

In the case that is before the Court today, the petitioners only have a right to claim for pre-death injuries, for pre-death pain and suffering, for the 12 minutes that their decedent suffered from the time the aircraft upon which they were passengers were fired upon until a 12-minute controlled descent into the Sea of Japan and their ultimate deaths.

By comparison with survival actions--

Anthony M. Kennedy:

The case, of course, since it does survive... involve the survivor's action, could mean much more than that.

There would be other cases in which people would linger for years with substantial injuries, et cetera.

Juanita Madole:

--That's correct, and respondent in their response to the petition for certiorari also agreed that the rule of the Court... that this Court will lay down will be applied whenever the conduct causes the injuries and ultimately causes the death occurring on the high seas.

In a more typical accident, they probably will be more boat-based fact patterns, but the context in which the case is before the Court is... does arise out of an airplane accident and does address only pre-death pain and suffering and injuries.

By comparison with survival action injuries, wrongful death remedies... excuse me, survival action remedies, by contrast wrongful death remedies, are losses that the family members of the decedent themselves have sustained, those losses that are individual to the family members, are as a result of the death of the decedent and are normally economically based.

Normally they are for loss of support, for loss of economic support that the decedent would have provided had the decedent continued to live, loss of services, household services and, in the case of a parent leaving small children, loss of parental services to the small children.

The beneficiaries are different.

In a survival cause of action the estate is the beneficiary, as the holder of the individual injured person's claim after his death.

In a wrongful death--

Ruth Bader Ginsburg:

Ms. Madole, I think that the Court is generally familiar with the difference between a wrongful death act and a survival act, and getting down to the nub of your problem, as I understand it the FELA originally did not have any survival aspect to it, and this Court declined to create such a claim.

It left it to Congress and Congress took care of it.

Why shouldn't we follow the same pattern here?

Juanita Madole:

--What occurred is, I believe, Justice Ginsburg, is that the original FELA was patterned after Lord Campbell's Act.

Lord Campbell's Act required that the cause of action exist in the person at the time of the death for there to be a right to recover for survival and for death.

The FELA was amended in 1910 to provide for both causes of action.

The Death on the High Seas Act, which is the--

Ruth Bader Ginsburg:

But am I wrong in thinking that there was an attempt, before that amendment, to get the courts to recognize a survival claim for railroad workers?

Juanita Madole:

--Yes, Justice Ginsburg.