## Facts

- Korean Air Lines Flight KE007, traveling from Anchorage to Seoul, entered Soviet airspace and was shot down over the Sea of Japan on September 1, 1983, killing all aboard, including Muriel Kole.
- Kole’s sister (Marjorie Zicherman) and mother (Muriel Mahalek) sued the airline in federal court, asserting claims tied to the Warsaw Convention, the Death on the High Seas Act (DOHSA), and the decedent’s alleged conscious pain and suffering.
- In the Warsaw Convention claim, plaintiffs sought both pecuniary and nonpecuniary damages, including grief/mental anguish and loss of society/companionship.
- In earlier consolidated proceedings, the flight crew’s willful misconduct was found, removing the Warsaw Convention’s damages cap; punitive damages were later disallowed because the Convention does not permit them.
- In the damages phase, the district court permitted loss-of-society recovery, and a jury awarded such damages under the Warsaw Convention.
- The Second Circuit vacated the loss-of-society award, reasoning that general maritime law governed and allowed loss-of-society damages only upon proof of dependency; it remanded to determine whether Zicherman was a dependent.
- The Supreme Court granted certiorari.

## Issues

1. Whether Warsaw Convention Article 17 itself defines which categories of damages are recoverable for a passenger’s death, or instead leaves that question to domestic law.
2. If domestic law supplies the measure of damages, which U.S. law governs deaths from an international aviation crash on the high seas.
3. Whether loss-of-society damages are recoverable for a high-seas death when DOHSA applies.

## Decision

- The Court held that Article 17 creates liability for legally cognizable harm but leaves the specification of compensable harm to the domestic law applicable under the forum’s choice-of-law rules.
- Because the parties agreed U.S. law governed the damages question, the Court applied U.S. law to determine recoverable harms.
- The Court held that DOHSA applies to an airplane crash death occurring on the high seas and supplies the governing damages rule.
- Under DOHSA, recovery is limited to pecuniary damages; loss-of-society damages are not recoverable.
- Where DOHSA applies, state law and general maritime law cannot supplement DOHSA to authorize loss-of-society damages.
- The Court reversed the Second Circuit insofar as it permitted Zicherman to recover loss-of-society damages upon proof of dependency and affirmed the vacatur of loss-of-society damages as to Mahalek.

## Legal Principles

- Warsaw Convention Article 17 does not provide a uniform catalogue of recoverable damages; it leaves what harms are compensable to domestic law selected by forum choice-of-law rules.
- DOHSA applies to wrongful deaths occurring on the high seas, including deaths from airplane crashes, and limits recovery to pecuniary loss.
- When DOHSA governs, it is exclusive as to the categories of recoverable damages; courts may not use state law or general maritime law to expand recovery to nonpecuniary harms such as loss of society.
- If DOHSA bars a category of damages, courts need not address alternative maritime-law tests (such as dependency requirements) for that same category.

## Conclusion

The Court held that although the Warsaw Convention establishes carrier liability for passenger death, it leaves compensable harms to domestic law; for a high-seas aviation death governed by DOHSA, recovery is limited to pecuniary damages and loss-of-society damages are unavailable.


Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996)