Zicherman v. Korean Air Lines Co., Ltd.

A Korean Air Lines Co., Ltd. (KAL) (defendant) flight on route from Alaska to South Korea unintentionally crossed into Soviet Union air space and was shot down over the Sea of Japan. All aboard the KAL flight were killed. Marjorie Zicherman and Muriel Mahalek (collectively, Zicherman) (plaintiffs), relatives of one of the deceased passengers, sued KAL in the Southern District of New York for loss-of-society damages—that is, loss of love, affection, and companionship. KAL filed a motion seeking a determination that the Death on the High Seas Act (DOHSA) applied to the damages claim and precluded loss-of-society damages. Section 762 of DOHSA allowed for the recovery of “pecuniary loss sustained by the persons for whose benefit the suit is brought.” Article 17 of the Warsaw Convention provided for the recovery of “dommage,” which in French legal usage means “legally cognizable harm.” Zicherman argued that the plain meaning of the English translation of “dommage,” which include “damage” or “harm,” was broad enough to include loss-of-society damages. The United States had ratified the Warsaw Convention as the law of the land. After ratification of the Warsaw Convention, the signatory countries indicated that domestic law would determine the type of harm that was recoverable. The parties agreed that if the Warsaw Convention did not resolve the issue of compensable harm, then United States law would govern the claim. The district court denied KAL’s motion, and the jury awarded loss-of-society damages. The United States Court of Appeals for the Second Circuit set aside the damages award, holding that general maritime law governed the claim. Zicherman filed a writ of certiorari in the United States Supreme Court.