author: Justice Ginsburg

text:
    YAMAHA MOTOR CORP., U. S. A., et al. v. CALHOUN et al., individually and as administrators of the ESTATE OF CALHOUN, DECEASED
    No. 94-1387.
    Argued October 31,1995
    Decided January 9, 1996

      Ginsburg, J., delivered the opinion for a unanimous Court.

      James W. Bartlett III argued the cause for petitioners. With him on the briefs were Jonathan Dryer, William R. Hoffman, and Francis P. Manchisi.

      Paul A. Engelmayer argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, David V. Hutchinson, and Edward Himmelfarh.

      Alan B. Morrison argued the cause for respondents. With him on the brief were William J. Taylor and Timothy R. Chapin.

      Briefs of amici curiae urging reversal were filed for the American Steamship Owners Mutual Protection and Indemnity Association, Inc., et al. by Michael F. Sturley; for the Maritime Law Association of the United States by Warren J. Marwedel, Dennis Minichello, and Chester D. Hooper; and for the National Marine Manufacturers Association by George J. Koelzer and Joshua S. Force.

      Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Ross Diamond III and Pamela Liapakis; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.

   Justice Ginsburg

delivered the opinion of the Court.

Twelve-year-old Natalie Calhoun was killed in a jet ski accident on July 6, 1989. At the time of her death, she was vacationing with family friends at a beach-front resort in Puerto Rico. Alleging that the jet ski was defectively designed or made, Natalie’s parents sought to recover from the manufacturer pursuant to state survival and wrongful-death statutes. The manufacturer contended that state remedies could not be applied because Natalie died on navigable waters; federal, judge-declared maritime law, the manufacturer urged, controlled to the exclusion of state law.

Traditionally, state remedies have been applied in accident cases of this order — maritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade. We hold, in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful-death action recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970).

I

Natalie Calhoun, the 12-year-old daughter of respondents Lucien and Robin Calhoun, died in a tragic accident on July 6, 1989. On vacation with family friends at a resort hotel in Puerto Rico, Natalie had rented a “WaveJammer” jet ski manufactured by Yamaha Motor Company, Ltd., and distributed by Yamaha Motor Corporation, U. S. A. (collectively, Yamaha), the petitioners in this case. While riding the WaveJammer, Natalie slammed into a vessel anchored in the waters off the hotel frontage, and was killed.

The Calhouns, individually and in their capacities as administrators of their daughter’s estate, sued Yamaha in the United States District Court for the Eastern District of Pennsylvania. Invoking Pennsylvania’s wrongful-death and survival statutes, 42 Pa. Cons. Stat. §§8301-8302 (1982 and Supp. 1995), the Calhouns asserted several bases for recovery (including negligence, strict liability, and breach of implied warranties), and sought damages for lost future earnings, loss of society, loss of support and services, and funeral expenses, as well as punitive damages. They grounded federal jurisdiction on both diversity of citizenship, 28 U. S. C. § 1332, and admiralty, 28 U. S. C. § 1333.

Yamaha moved for partial summary judgment, arguing that the federal maritime wrongful-death action this Court recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), provided the exclusive basis for recovery, displacing all remedies afforded by state law. Under Moragne, Yamaha contended, the Calhouns could recover as damages only Natalie’s funeral expenses. The District Court agreed with Yamaha that Moragne’s maritime • death action displaced state remedies; the court held, however, that loss of society and loss of support and services were compensable under Moragne.

Both sides asked the District Court to present questions for immediate interlocutory appeal pursuant to 28 U. S. C. § 1292(b). The District Court granted the parties’ requests, and in its § 1292(b) certifying order stated:

“Natalie Calhoun, the minor child of plaintiffs Lucien B. Calhoun and Robin L. Calhoun, who are Pennsylvania residents, was killed in an accident not far off shore in Puerto Rico, in the territorial waters of the United States. Plaintiffs have brought a diversity suit against, inter alia, defendants Yamaha Motor Corporation, U. S. A. and Yamaha Motor Co., Ltd. The counts of the complaint directed against the Yamaha defendants allege that the accident was caused by a defect or defects in a Yamaha jet ski which Natalie Calhoun had rented and was using at the time of the fatal accident. Those counts sound in negligence, in strict liability, and in implied warranties of merchantability and fitness. The district court has concluded that admiralty jurisdiction attaches to these several counts and that they constitute a federal maritime cause of action. The questions of law certified to the Court of Appeals are whether, pursuant to such a maritime cause of action, plaintiffs may seek to recover (1) damages for the loss of the society of their deceased minor child, (2) damages for the loss of their child’s future earnings, and (3) punitive damages.” App. to Pet. for Cert. A-78.

Although the Court of Appeals granted the interlocutory review petition, the panel to which the appeal was assigned did not reach the questions presented in the certified order, for it determined that an anterior issue was pivotal. The District Court, as just recounted, had concluded that any damages the Calhouns might recover from Yamaha would be governed exclusively by federal maritime law. But the Third Circuit panel questioned that conclusion and inquired whether state wrongful-death and survival statutes supplied the remedial prescriptions for the Calhouns’ complaint. The appellate panel asked whether the state remedies endured or were “displaced by a federal maritime rule of decision.” 40 F. 3d 622, 624 (1994). Ultimately, the Court of Appeals ruled that state-law remedies apply in this case. Id., at 644.

II

In our order granting certiorari, we asked the parties to brief a preliminary question: “Under 28 U. S. C. § 1292(b), can the courts of appeals exercise jurisdiction over any question that is included within the order that contains the controlling question of law identified by the district court?” 514 U. S. 1126 (1995). The answer to that question, we are satisfied, is yes.

Section 1292(b) provides, in pertinent part:

“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.” (Emphasis added.)

As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court. The court of appeals may not reach beyond the certified order to address other orders made in the case. United States v. Stanley, 483 U. S. 669, 677 (1987). But the appellate court may address any issue fairly included within the certified order because “it is the order that is appealable, and not the controlling question identified by the district court.” 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 110.25[1], p. 300 (2d ed. 1995). See also 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3929, pp. 144-145 (1977) (“[T]he court of appeals may review the entire order, either to consider a question different than the one certified as controlling or to decide the case despite the lack of any identified controlling question.”); Note, Interlocutory Appeals in the Federal Courts Under 28 U. S. C. § 1292(b), 88 Harv. L. Rev. 607,628-629 (1975) (“scope of review [includes] all issues material to the order in question”).

We therefore proceed to the issue on which certiorari was granted: Does the federal maritime claim for wrongful death recognized in Moragne supply the exclusive remedy in cases involving the deaths of nonseafarers in territorial waters?

III

Because this case involves a watercraft collision on navigable waters, it falls within admiralty’s domain. See Sisson v. Ruby, 497 U. S. 358, 361-367 (1990); Foremost Ins. Co. v. Richardson, 457 U. S. 668, 677 (1982). “With admiralty jurisdiction,” we have often said, “comes the application of substantive admiralty law.” East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 864 (1986). The exercise of admiralty jurisdiction, however, “does not result in automatic displacement of state law.” Jerome B. Gru-bart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 545 (1995). Indeed, prior to Moragne, federal admiralty courts routinely applied state wrongful-death and survival statutes in maritime accident cases. The question before us is whether Moragne should be read to stop that practice.

Our review of maritime wrongful-death law begins with The Harrisburg, 119 U. S. 199 (1886), where we held that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. The Harrisburg Court said that wrongful-death actions are statutory and may not be created by judicial decree. The Court did not question the soundness of this view, or examine the historical justifications that account for it. Instead, the Court merely noted that common law in the United States, like the common law of England, did not allow recovery “for an injury which results in death,” id., at 204 (internal quotation marks omitted), and that no country had “adopted a different rule on this subject for the sea from that which it maintains on the land,” id., at 213. The Court did not consider itself free to chart a different course by crafting a judge-made wrongful-death action under our maritime law.

Federal admiralty courts tempered the harshness of The Harrisburg’s rule by allowing recovery under state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398 (1907); The City of Norwalk, 55 F. 98 (SDNY 1893). We reaffirmed this practice in Western Fuel Co. v. Garcia, 257 U. S. 233 (1921), by holding that California’s wrongful-death statute governed a suit brought by the widow of a maritime worker killed in that State’s territorial waters. Though we had generally refused to give effect to state laws regarded as inconsonant with the substance of federal maritime law, we concluded that extending state wrongful-death statutes to fatal accidents in territorial waters was compatible with substantive maritime policies: “The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts ... will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations.” Id., at 242. On similar reasoning, we also held that state survival statutes may be applied in cases arising out of accidents in territorial waters. See Just v. Chambers, 312 U. S. 383, 391-392 (1941).

State wrongful-death statutes proved an adequate supplement to federal maritime law, until a series of this Court’s decisions transformed the maritime doctrine of unseaworthiness into a strict-liability rule. Prior to 1944, unseaworthiness “was an obscure and relatively little used” liability standard, largely because “a shipowner’s duty at that time was only to use due diligence to provide a seaworthy ship.” Miles v. Apex Marine Corp., 498 U. S. 19, 25 (1990) (internal quotation marks omitted). See also Moragne, 398 U. S., at 398-399. Mahnich v. Southern S. S. Co., 321 U. S. 96 (1944), however, notably expanded a shipowner’s liability to injured seamen by imposing a nondelegable duty “to furnish a vessel and appurtenances reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 550 (1960). The duty imposed was absolute; failure to supply a safe ship resulted in liability “irrespective of fault and irrespective of the intervening negligence of crew members.” Miles, 498 U. S., at 25. The unseaworthiness doctrine thus became a “species of liability without fault,” Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), and soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed. Miles, 498 U. S., at 25-26.

The disparity between the unseaworthiness doctrine’s strict-liability standard and negligence-based state wrongful-death statutes figured prominently in our landmark Moragne decision. Petsonella Moragne, the widow of a longshore worker killed in Florida’s territorial waters, brought suit under Florida’s wrongful-death and survival statutes, alleging both negligence and unseaworthiness. The District Court dismissed the claim for wrongful death based on unseaworthiness, citing this Court’s decision in The Tungus v. Skovgaard, 358 U. S. 588 (1959). There, a sharply divided Court held that “when admiralty adopts a State’s right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached.” Id., at 592. Thus, in wrongful-death actions involving fatalities in territorial waters, state statutes provided the standard of liability as well as the remedial regime. Because the Florida Supreme Court had previously held that Florida’s wrongful-death statute did not encompass unseaworthiness as a basis of liability, the Court of Appeals affirmed the dismissal of Moragne’s unseaworthiness claim. See Moragne, 398 U. S., at 377.

The Court acknowledged in Moragne that The Tungus had led to considerable uncertainty over the role state law should play in remedying deaths in territorial waters, but concluded that “the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg.” 398 U. S., at 378. Upon reexamining the soundness of The Harrisburg, we decided that its holding, “somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed.” 398 U. S., at 378. Accordingly, the Court overruled The Harrisburg and held that an action “lie[s] under general maritime law for death caused by violation of maritime duties.” 398 U. S., at 409.

IV

Yamaha argues that Moragne — despite its focus on “maritime duties” owed to maritime workers — covers the waters, creating a uniform federal maritime remedy for all deaths occurring in state territorial waters, and ousting all previously available state remedies. In Yamaha’s view, state remedies can no longer supplement general maritime law (as they routinely did before Moragne), because Moragne launched a solitary federal scheme. Yamaha’s reading of Moragne is not without force; in several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision, with no leeway for variation or supplementation by state law. See, e. g., Kossick v. United Fruit Co., 365 U. S. 731, 742 (1961) (federal maritime rule validating oral contracts precluded application of state Statute of Frauds); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (1953) (admiralty’s comparative negligence rule barred application of state contributory negligence rule); Garrett v. Moore-McCormack Co., 317 U. S. 239, 248-249 (1942) (federal maritime rule allocating burden of proof displaced conflicting state rule). In addition, Yamaha correctly points out that uniformity concerns informed our decision in Moragne.

The uniformity concerns that prompted us to overrule The Harrisburg, however, were of a different order than those invoked by Yamaha. Moragne did not reexamine the soundness of The Harrisburg out of concern that state monetary awards in maritime wrongful-death cases were excessive, or that variations in the remedies afforded by the States threatened to interfere with the harmonious operation of maritime law. Variations of this sort had long been' deemed compatible with federal maritime interests. See Western Fuel, 257 U. S., at 242. The uniformity concern that drove our decision in Moragne related, instead, to the availability of unseaworthiness as a basis of liability.

By 1970, when Moragne was decided, claims premised on unseaworthiness had become “the principal vehicle for recovery” by'seamen and other maritime workers injured or killed in the course of their employment. Moragne, 898 U. S., at 399. But with The Harrisburg in place, troubling anomalies had developed that many times precluded the survivors of maritime workers from recovering for deaths caused by an unseaworthy vessel. The Moragne Court identified three anomalies and concluded they could no longer be tolerated.

First, the Court noted that “within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed.” 398 U. S., at 395. This occurred because in nonfatal injury cases, state substantive liability standards were superseded by federal maritime law, see Kermarec v. Compagnie Generate Transatlantique, 358 U. S. 625, 628 (1959); Pope & Talbot, 346 U. S., at 409, which provided for maritime worker recovery based on unseaworthiness. But if the same worker met death in the territorial waters of a State whose wrongful-death statute did not encompass unseaworthiness (as was the case in Moragne itself), the survivors could not proceed under that generous standard of liability. See The Tungus, 858 U. S., at 592-593.

Second, we explained in Moragne that “identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit . . . but not within the territorial waters of a State whose local statute excludes unseaworthiness claims.” 398 U. S., at 395. This occurred because survivors of a maritime worker killed on the high seas could sue for wrongful death under the Death on the High Seas Act (DOHSA), 46 U. S. C. App. § 761 et seq. (1988 ed.), which encompasses unseaworthiness as a basis of liability. Moragne, 398 U. S., at 395 (citing Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4 (1958)).

Finally, we pointed out that “a true seaman [a member of a ship’s company]... is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute.” 398 U. S., at 395-396. This anomaly stemmed from the Court’s rulings in Lindgren v. United States, 281 U. S. 38 (1930), and Gillespie v. United States Steel Corp., 379 U. S. 148 (1964), that the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides only a negligence-based claim for the wrongful death of seamen, precludes any state remedy, even one accommodating unseaworthiness. As a result, at the time Moragne was decided, the survivors of a longshore worker killed in the territorial waters of a State whose wrongful-death statute incorporated unseaworthiness could sue under that theory, but the survivors of a similarly situated seaman could not.

The anomalies described in Moragne relate to ships and the workers who serve them, and to a distinctly maritime substantive concept — the unseaworthiness doctrine. The Court surely meant to “assure uniform vindication of federal policies,” 398 U. S., at 401, with respect to the matters it examined. The law as it developed under The Harrisburg had forced on the States more than they could bear — the task of “providing] the sole remedy” in cases that did not involve “traditional common-law concepts,” but “concepts peculiar to maritime law.” 398 U. S., at 401, n. 15 (internal quotation marks omitted). Discarding The Harrisburg and declaring a wrongful-death right of action under general maritime law, the Court concluded, would “remov[e] the tensions and discrepancies” occasioned by the need “to accommodate state remedial statutes to exclusively maritime substantive concepts.” 398 U. S., at 401.

Moragne, in sum, centered on the extension of relief, not on the contraction of remedies. The decision recalled that “ ‘it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.’” Id., at 387 (quoting The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865) (Chase, C. J.)). The Court tied Petsonella Moragne’s plea based on the unseaworthiness of the vessel to a federal right-of-action anchor, but notably left in place the negligence claim she had stated under Florida’s law. See 398 U. S., at 376-377.

Our understanding of Moragne accords with that of the Third Circuit, which Judge Becker set out as follows:

“Moragne ... showed no hostility to concurrent application of state wrongful-death statutes. Indeed, to read into Moragne the idea that it was placing a ceiling on recovery for wrongful death, rather than a floor, is somewhat ahistorical. The Moragne cause of action was in many respects a gap-filling measure to ensure that seamen (and their survivors) would all be treated alike. The ‘humane and liberal’ purpose underlying the general maritime remedy of Moragne was driven by the idea that survivors of seamen killed in state territorial waters should not have been barred from recovery simply because the tort system of the particular state in which a seaman died did not incorporate special maritime doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply a remedy.” 40 F. 3d, at 641-642 (citation omitted).

We have reasoned similarly in Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980), where we held that a State may apply its workers’ compensation scheme to land-based injuries that fall within the compass of the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. See Sun Ship, 447 U. S., at 724 (a State’s remedial scheme might be “more generous than federal law” but nevertheless could apply because Congress indicated no concern “about a disparity between adequate federal benefits and superior state benefits”) (emphasis in original).

When Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is, we have generally recognized, no cause for enlargement of the damages statutorily provided. See Miles, 498 U. S., at 30-36 (Jones Act, rather than general maritime law, determines damages recoverable in action for wrongful death of seamen); Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 232 (1986) (DOHSA, which limits damages to pecuniary losses, may not be supplemented by nonpecuniary damages under a state wrongful-death statute); Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 624-625 (1978) (DOHSA precludes damages for loss of society under general maritime law). But Congress has not prescribed remedies for the wrongful deaths of non-seafarers in territorial waters. See Miles, 498 Ü. S., at 31. There is, however, a relevant congressional disposition. Section 7 of DOHSA states: “The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter.” 46 U. S. C. App. § 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See Miles, 498 U. S., at 25; Tallentire, All U. S., at 224-225; Moragne, 398 U. S., at 397-398. Taking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters.

H= H= *

For the reasons stated, we hold that the damages available for the jet ski death of Natalie Calhoun are properly governed by state law. The judgment of the Court of Appeals for the Third Circuit is accordingly

Affirmed.

       The Calhouns are citizens of Pennsylvania. Yamaha Motor Corporation, U. S. A., is incorporated and has its principal place of business in California; Yamaha Motor Company, Ltd., is incorporated and has its principal place of business in Japan.

       By “nonseafarers,” we mean persons who are neither seamen covered by the Jones Act, 46 U. S. C. App. §688 (1988 ed.), nor longshore workers covered by the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. §901 et seq.

       Throughout this opinion, for economy, we use the term wrongful-death remedies or statutes to include survival statutes.

       Congress also mitigated the impact of The Harrisburg by enacting two statutes affording recovery for wrongful death. In 1920, Congress passed the Death on the High Seas Act (DOHSA), 46 U. S. C. App. § 761 et seq. (1988 ed.), which provides a federal claim for wrongful death occurring more than three nautical miles from the shore of any State or Territory. In that same year, Congress also passed the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides a wrongful-death claim to the survivors of seamen killed in the course of their employment, whether on the high seas or in territorial waters.

       Indeed, years before The Harrisburg, this Court rendered a pathmarking decision, Steamboat Co. v. Chase, 16 Wall. 522 (1873). In Steamboat, the Court upheld, under the “saving-to-suitors” proviso of the Judiciary Act of 1789 (surviving currently in 28 U. S. C. § 1333(1)), a state court’s application of the State’s wrongful-death statute to a fatality caused by a collision in territorial waters between defendants’ steamboat and a sailboat in which plaintiff’s decedent was passing.

       The Court extended the duty to provide a seaworthy ship, once owed only to seamen, to longshore workers in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Congress effectively overruled this extension in its 1972 amendments to the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. See § 905(b). We have thus far declined to extend the duty further. See Kermarec v. Compagnie Generate Transatlantique, 358 U. S. 625, 629 (1959) (unseaworthiness doctrine inapplicable to invitee aboard vessel).

       If Moragne’s wrongful-death action did not extend to nonseafarers like Natalie, one could hardly argue that Moragne displaced the state-law remedies the Calhouns seek. Lower courts have held that Moragne’s wrongful-death action extends to nonseafarers. See, e. g., Sutton v. Earles, 26 F. 3d 903 (CA9 1994) (recreational boater); Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F. 3d 1084 (CA2 1993) (jet skier), cert. denied, 510 U. S. 1114 (1994). We assume, for purposes of this decision, the correctness of that position. Similarly, as in prior encounters, we assume without deciding that Moragne also provides a survival action. See Miles v. Apex Marine Corp., 498 U. S. 19, 34 (1990). The question we confront is not what Moragne added to the remedial arsenal in maritime eases, but what, if anything, it removed from admiralty’s stock.

       The federal cast of admiralty law, we have observed, means that “state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system[,] [b]ut this limitation still leaves the States a wide scope.” Romero v. International Terminal Operating Co., 358 U. S. 354, 373 (1959). Our precedent does not precisely delineate that scope. As we recently acknowledged, “[i]t would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence.” American Dredging Co. v. Miller, 510 U. S. 443, 452 (1994). We attempt no grand synthesis or reconciliation of our precedent today, but confine our inquiry to the modest question whether it was Moragne’s design to terminate recourse to state remedies when nonseafarers meet death in territorial waters.

       As noted earlier, unseaworthiness recovery by longshore workers was terminated by Congress in its 1972 amendments to the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. See § 905(b).

       The Court might have simply overruled The Tungus, see supra, at 209, thus permitting plaintiffs to rely on federal liability standards to obtain state wrongful-death remedies. The petitioner in Moragne, widow of a longshore worker, had urged that course when she sought certiorari. See Moragne v. States Marine Lines, Inc., 398 U. S. 375, 378, n. 1 (1970). But training Moragne solely on The Tungus would have left untouched the survivors of seamen, who remain blocked by the Jones Act from pursuing state wrongful-death claims — whether under a theory of negligence or unseaworthiness. See Gillespie v. United States Steel Corp., 379 U. S. 148, 154-155 (1964). Thus, nothing short of a federal maritime right of action for wrongful death could have achieved uniform access by seafarers to the unseaworthiness doctrine, the Court’s driving concern in Moragne. See 398 U. S., at 396, n. 12.

       While unseaworthiness was the doctrine immediately at stake in Moragne, the right of action, as stated in the Court’s opinion, is “for death caused by violation of maritime duties.” Id., at 409. See East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 865 (1986) (maritime law incorporates strict product liability); Kermarec, 358 U. S., at 630 (negligence). See also G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed. 1975).

        Moragne was entertained by the Court of Appeals pursuant to a 28 U. S. C. § 1292(b) certification directed to the District Court’s order dismissing the unseaworthiness claim. See 398 U. S., at 376.

       Federal maritime law has long accommodated the States’ interest in regulating maritime affairs within their territorial waters. See, e. g., Just v. Chambers, 312 U. S. 383, 390 (1941) (“maritime law [is] not a complete and perfect system”; “a considerable body of municipal law . . . underlies ... its administration”). States have thus traditionally contributed to the provision of environmental and safety standards for maritime activities. See, e. g., Askew v. American Waterways Operators, Inc., 411 U. S. 325 (1973) (oil pollution); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960) (air pollution); Kelly v. Washington ex rel. Foss Co., 302 U. S. 1 (1937) (safety inspection); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (pilot-age regulation). Permissible state regulation, we have recognized, must be consistent with federal maritime principles and policies. See Romero, 358 U. S., at 373-374.

       The Third Circuit left for initial consideration by the District Court the question whether Pennsylvania’s wrongful-death remedies or Puerto Rico’s apply. 40 F. 3d 622, 644 (1994). The Court of Appeals also left open, as do we, the source — federal or state — of the standards governing liability, as distinguished from the rules on remedies. We thus reserve for another day reconciliation of the maritime personal injury decisions that rejected state substantive liability standards, and the maritime wrongful-death cases in which state law has held sway. Compare Kermarec, 358 U. S., at 628 (personal injury); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (1953) (same), with Hess v. United States, 361 U. S. 314, 319 (1960) (wrongful death); The Tungus v. Skovgaard, 358 U. S. 588, 592-594 (1959) (same).


source: Caselaw Access Project

author: Justice Scalia

license: Public Domain

text:
    ZICHERMAN, individually and as executrix of THE ESTATE OF KOLE, et al. v. KOREAN AIR LINES CO., LTD.
    No. 94-1361.
    Argued November 7,1995
    Decided January 16, 1996

      Scalia, J., delivered the opinion for a unanimous Court.

      W. Paul Needham argued the cause for petitioners in No. 94-1361 and respondents in No. 94-1477. With him on the briefs was Kevin M. Hensley.

      Andrew J. Harakas argued the cause for Korean Air Lines Co., Ltd., in both cases. With him on the briefs was George N. Tompkins, Jr.

      Together with No. 94-1477, Korean Air Lines Co., Ltd. v. Zicherman, Individually and as Executrix of the Estate of Kole, et al., also on certiorari to the same court.

        Juanita M. Madole, Donald W. Madole, George E. Farrell, Milton G. Sincoff, and Steven R. Pounian filed a brief for Philomena Dooley et al. as amici curiae urging reversal.
      Briefs of amicus curiare were filed for Pan American World Airways, Inc., by Richard M. Sharp and Frederick C. Schafrick; and for the Plaintiffs’ Committee in In re Air Crash Disaster at Lockerbie, Scotland, by Lee S. Kreindler, Steven R. Pounian, James P. Kreindler, Paul S. Edel-man, Frank H. Granito, Jr., Frank H. Granito III, and Michel F. Baumeister.

   Justice Scalia

delivered the opinion of the Court.

This action presents the question whether, in a suit brought under Article 17 of the Warsaw Convention governing international air transportation, Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12,1929,49 Stat. 3000, T. S. No. 876 (1934) (reprinted in note following 49 U. S. C. App. § 1502 (1988 ed.)), a plaintiff may recover damages for loss of society resulting from the death of a relative in a plane crash on the high seas.

I

On September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into air space of the Soviet Union and was shot down over the Sea of Japan. All 269 persons on board were killed, including Muriel Kole. Petitioners Marjorie Zicherman and Muriel Mahalek, Kole’s sister and mother, respectively, sued respondent Korean Air Lines Co., Ltd. (KAL), in the United States District Court for the Southern District of New York. Petitioners’ final amended complaint contained three counts, entitled, respectively, “Warsaw Convention,” “Death on the High Seas Act,” and “Conscious Pain and Suffering.” At issue here is only the Warsaw Convention count, in which petitioners sought “judgment against KAL for their pecuniary damages, for their grief and mental anguish, for the loss of the decedent’s society and companionship, and for the decedent’s conscious pain and suffering.” App. 29.

Along with other federal-court actions arising out of the KAL crash, petitioners’ case was transferred to the United States District Court for the District of Columbia for consolidated proceedings on common issues of liability. There, a jury found that the destruction of Flight KE007 was proximately caused by “willful misconduct” of the flight crew, thus lifting 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.). The jury awarded $50 million in punitive damages against KAL. The Court of Appeals for the District of Columbia Circuit upheld the finding of “willful misconduct,” but vacated the punitive damages award, holding that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F. 2d 1475, 1479-1481, 1484-1490, cert. denied, 502 U. S. 994 (1991). The individual cases were then remanded by the Judicial Panel on Multidistrict Litigation to the original transferor courts for trial of compensatory damages issues.

At petitioners’ damages trial in the Southern District of New York, KAL moved for determination that the Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U. S. C. App. § 761 et seq. (1988 ed.), prescribed the proper claimants and the recoverable damages, and that it did not permit damages for loss of society. The District Court denied the motion and held, inter alia, that petitioners could recover for loss of “love, affection, and companionship.” In re Korean Air Lines Disaster of Sept. 1, 1983, 807 F. Supp. 1073, 1086-1088 (1992). The jury awarded loss-of-society damages in the amount of $70,000 to Zicherman and $28,000 to Mahalek.

The Court of Appeals for the Second Circuit set aside this award. Applying its prior decisions in In re Air Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 928 F. 2d 1267, 1278-1279 (Lockerbie I), cert. denied sub nom. Rein v. Pan American World Airways, Inc., 502 U. S. 920 (1991), and In re Air Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 37 F. 3d 804 (1994) (Lockerbie II), cert. denied sub nom. Pan American World Airways, Inc. v. Pagnucco, 513 U. S. 1126 (1995), it held that general maritime law supplied the substantive law of compensatory damages to be applied in an action under the Warsaw Convention. 43 F. 3d 18, 21-22 (1994). Then, following its decision in Lockerbie II, it held that, under general maritime law, a plaintiff is entitled to recover loss-of-society damages, but only if he was a dependent of the decedent at the time of death. 43 F. 3d, at 22. The court concluded that as a matter of law Mahalek had not established that status, and therefore vacated her award; it remanded to the District Court for determination of whether Zicherman was a dependent of Kole. Ibid.

In their petition for certiorari, petitioners contended that under general maritime law dependency is not a requirement for recovering loss-of-society damages. In a cross-petition, KAL contended that the Warsaw Convention does not allow loss-of-society damages in this case, regardless of dependency. We granted certiorari. 514 U. S. 1062 (1995).

II

Article 17 of the Warsaw Convention, as set forth in the official American translation of the governing French text, provides as follows:

“The carrier shall be liable for damage 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. 3018 (emphasis added).

The first and principal question before us is whether loss of society of a relative is made recoverable by this provision.

It is obvious that the English word “damage” or “harm”— or in the official text of the Convention, the French word “dommage” — can be applied to an extremely wide range of phenomena, from the medical expenses incurred as a result of Kole’s injuries (for which every legal system would provide tort compensation) to the mental distress of some stranger who reads about Kole’s death in the paper (for which no legal system would provide tort compensation). It cannot seriously be maintained that Article 17 uses the term in this broadest sense, thus exploding tort liability beyond what any legal system in the world allows, to the farthest reaches of what could be denominated “harm.” We therefore reject petitioners’ initial proposal that we simply look to English dictionary definitions of “damage” and apply that term’s “plain meaning.” Brief for Petitioners 7-9.

There are only two thinkable alternatives to that. First, what petitioners ultimately suggest: that “dommage” means what French law, in 1929, recognized as legally cognizable harm, which petitioners assert included not only “dommage materiel” (pecuniary harm of various sorts) but also “dom-mage moral” (nonpecuniary harm of various sorts, including loss of society). In support of that approach, petitioners point out that in a prior case involving Article 17 we were guided by French legal usage: Air France v. Saks, 470 U. S. 892 (1985) (interpreting the term “accident”). See also Eastern Airlines, Inc. v. Floyd, 499 U. S. 530 (1991) (interpreting the Article 17 term “lesion corporelle”). What is at issue here, however, is not simply whether we will be guided by French legal usage vel non. Because, as earlier discussed, the dictionary meaning of the term “dommage” embraces harms that no legal system would compensate, it must be acknowledged that the term is to be understood in its distinctively legal sense — that is, to mean only legally cognizable harm. The nicer question, and the critical one here, is whether the word “dommage” establishes as the content of the concept “legally cognizable harm” what French law accepted as such in 1929. No case of ours provides precedent for the adoption of French law in such detail. In Floyd, we looked to French law to determine whether “Usion corporelle” indeed meant (as it had been translated) “bodily injury” — not to determine the subsequent question (equivalent to the question at issue here) whether “bodily injury” encompassed psychic injury. See id., at 536-540. And in Saks, once we had determined that in French legal terminology the word “accident” referred to an unforeseen event, we did not further inquire whether French courts would consider the event at issue in the case unforeseen; we made that judgment for ourselves. See 470 U. S., at 405-407.

It is particularly implausible that “the shared expectations of the contracting parties,” id., at 399, were that their mere use of the French language would effect adoption of the precise rule applied in France as to what constitutes legally cognizable harm. Those involved in the negotiation and adoption of the Convention could not have been ignorant of the fact that the law on this point varies widely from jurisdiction to jurisdiction, and even from statute to statute, within a single jurisdiction. Just as we found it “unlikely” in Floyd that Convention signatories would have understood the general term “lésion corporelle” to confer a cause of action available under French law but unrecognized in many other nations, see 499 U. S., at 540, so also in the present case we find it unlikely that they would have understood Article 17’s use of the general term “dommage” to require compensation for elements of harm recognized in France but unrecognized elsewhere, or to forbid compensation for elements of harm unrecognized in France but recognized elsewhere. Many signatory nations, including Czechoslovakia, Denmark, Germany, the Netherlands, the Soviet Union, and Sweden, did not, even many years after the Warsaw Convention, recognize a cause of action for nonpecuniary harm resulting from wrongful death. See 11 International Encyclopedia of Comparative Law: Torts, ch. 9, pp. 15-18 (A. Tunc ed. 1972); Floyd, supra, at 544-545, n. 10.

The other alternative, and the only one we think realistic, is to believe that “dommage” means (as it does in French legal usage) “legally cognizable harm,” but that Article 17 leaves it to adjudicating courts to specify what harm is cognizable. That is not an unusual disposition. Even within our domestic law, many statutes that provide generally for “damages,” or for reimbursement of “injury,” leave it to the courts to decide what sorts of harms are compensable. See, e. g., Miles v. Apex Marine Corp., 498 U. S. 19, 32 (1990) (Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides “action for damages” to “[a]ny seaman who shall suffer personal injury,” permits compensation only for pecuniary loss); Michigan Central R. Co. v. Vreeland, 227 U. S. 59, 71 (1913) (Employers’ Liability Act of Apr. 22, 1908, which makes employer “liable in damages . . . for . . . injury or death,” permits compensation only for pecuniary loss); Broan Mfg. v. Associated Distributors, Inc., 923 F. 2d 1232, 1235-1236 (CA6 1991) (Lanham Trade-Mark Act, 15 U. S. C. § 1117(a), which provides for recovery of “any damages sustained,” permits compensation for future lost profits); Phelps v. White, 645 So. 2d 698, 703 (La. Ct. App. 3d Cir. 1994) (specifying elements of compensation allowable under La. Civ. Code Ann. §2315.2 (West Supp. 1995), providing for recovery of “damages . . . sustained as a result” of wrongful death); Department of Ed. v. Blevins, 707 S. W. 2d 782, 783 (Ky. 1986) (Kentucky Rev. Stat. Ann. §411.130 (Michie 1992), which provides that “damages may be recovered” for wrongful death, does not permit compensation for emotional distress).

That this is the proper interpretation is confirmed by another provision of the Convention. Article 17 is expressly limited by Article 24, which as translated 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 questions as to who are the persons who have the right to bring suit and what are their respective rights.” 49 Stat. 3020 (emphasis added).

The most natural reading of this Article is that, in an action 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. Those questions are to be answered by the domestic law selected by the courts of the contracting states. Petitioners contend that, because Article 24 refers to the parties’ “respective rights,” this provision defers to domestic law only on the “procedural” issues of who has standing to sue and how the proceeds of a damages award under Article 17 should be divided among eligible claimants. It does not seem to us that the question of who is entitled to a damages award is procedural; and in any event limiting Article 24 to procedural issues would render it superfluous, since Article 28(2) provides that “[questions of procedure shall be governed by the law of the court to which the case is submitted.” 49 Stat. 3021. More importantly, petitioners’ reading of Article 24(2) would produce a strange regime in which 1929 French law (embodied in the Convention) determines what harms arising out of international air accidents must be indemnified, while current domestic law determines who is entitled to the indemnity and how it is to be divided among claimants. When presented with an equally plausible reading of Article 24 that leads to a more comprehensible result — that the Convention left to domestic law the questions of who may recover and what compensatory damages are available to them — we decline to embrace a reading that would produce the mélange of French and domestic law proposed by petitioners.

Because a treaty ratified by the United States is not only the law of this land, see U. S. Const., Art. II, § 2, but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux préparatoires) and the postratifi-cation understanding of the contracting parties. Both of these sources confirm that the compensable injury is to be determined by domestic law. In the drafting history, the only statements we know of that directly discuss the point were made by the Comité International Technique d’Experts Juridiques Aériens (CITEJA), which did the preparatory work for the two Conferences (1925 in Paris, 1929 in Warsaw) that produced the Warsaw Convention. In its report of May 15,1928, the Committee stated:

“It was asked whether it would not be possible, in this respect, to determine the category of damages subject to reparations.
“Although this question seemed very interesting, it was not possible to find a satisfactory solution before knowing exactly the legislation of the various countries. It was understood that the question would be studied later on, when the issue of knowing which are the persons, who according to the various national laws, have the right to take action against the carrier, will have been elucidated.” Report of the Third Session of CITEJA by Henry de Vos, reprinted in International Technical Committee of Legal Experts on Air Questions 106 (May 1928).

To the same effect is the following passage from the CITEJA Report accompanying the 1929 draft:

“The question was asked of knowing if one could determine who the persons upon whom the action devolves in the case of death are, and what are the damages subject to reparation. It was not possible to find a satisfactory solution to this double problem, and the CITEJA esteemed that this question of private international law should be regulated independently [sic] from the present Convention.” Report of the Third Session of CITEJA by Henry de Vos (Sept. 25, 1928), reprinted in Second International Conference on Private Aeronautical Law Minutes, Warsaw 1929, p. 255 (R. Horner & D. Legrez transí. 1975).

Both these statements make clear that the questions of who may recover, and what compensatory damages they may receive, were regarded as intertwined; and that both were unresolved by the Convention and left to “private international law” — i. e., to the area of jurisprudence we call “conflict of laws,” dealing with the application of varying domestic laws to disputes that have an interstate or international component.

We are unpersuaded by petitioners’ reliance on the comment of French delegate Georges Ripert, asserting, as one basis for rejecting application of domestic law to the issue of carriers’ vicarious liability, that it would be “the first time that application of national law is required.” Id., at 66. Reply Brief for Petitioners 2-3. Not only does this remark not have the authority of submissions by the drafting committee, but it is a generalization rather than a statement focused specifically upon the issue here: what law governs the “category of damages subject to reparations.” And the generalization is demonstrably wrong to boot, since it is incontrovertible that Article 24 of the Convention requires the application of national law to some issues.

The postratification conduct of the contracting parties displays the same understanding that the damages recoverable — so long as they consist of compensation for harm incurred (dommage survenu) — are to be determined by domestic law. Some countries, including England, Germany and the Netherlands, have adopted domestic legislation to govern the types of damages recoverable in a Convention case. See Haanappel, The right to sue in death cases under the Warsaw Convention, 6 Air Law 66, 72, 74 (1981); E. Giemulla, R. Schmid, & P. Ehlers, Warsaw Convention 39, n. 5 (1992); German Law Concerning Air Navigation (Luft VG) of Jan. 10, 1959, Arts. 35-36, 38, reprinted in 1 Senate Committee on Commerce, Air Laws and Treaties of the World, 89th Cong., 1st Sess., 766-768 (Comm. Print 1965); R. Mankiewicz, The Liability Regime of the International Air Carrier ¶ 187, pp. 160-161 (1981). Canada has adopted legislation setting forth who may bring suit under Article 24(2), but has left the question of what types of damages are recoverable to provincial law. Haanappel, supra, at 70-71. The Court of Appeals of Quebec has rejected the argument that Article 17 permits damages unrecoverable under domestic Quebec law. Dame Surprenant v. Air Canada, [1973] C. A. 107, 117-118, 126-127 (opinion of Deschénes, J.). But see Preston v. Hunting Air Transport Ltd., [1956] 1 Q. B. 454, 461-462 (granting damages under Convention, but without considering Article 24). Finally, the expert commentators are virtually unanimous that the type of harm com-pensable is to be determined by domestic law. See, e. g., H. Drion, Limitation of Liabilities in International Air Law ¶ 111, pp. 125-126 (1954); Giemulla, Schmid, & Ehlers, supra, at 33; D. Goedhuis, National Airlegislations and the Warsaw Convention 269 (1937); Mankiewicz, supra, ¶ 187, at 160-161; G. Miller, Liability in International Air Transport: The Warsaw System in Municipal Courts 125 (1977); see also Cha, The Air Carrier’s Liability to Passengers in International Law, 7 Air L. Rev. 25, 56-57 (1936).

Ill

Having concluded that compensable harm is to be determined by domestic law, the next question to which we would logically turn is that of which sovereign’s domestic law. That is the “private international law” issue alluded to in the last-quoted excerpt from the CITEJA Report. Choice of law is, of course, determined by the forum jurisdiction, see E. Scoles & P. Hay, Conflict of Laws § 3.56 (1982), and would normally be a question confronting us here. We have been spared that inquiry, however, because both parties agree that if the issue of compensable harm is (as we have determined) unresolved by the Convention itself, it is governed in the present case by the law of the United States.

That leaves a final question unresolved: Which particular law of the United States provides the governing rule? The Second Circuit, moved by the need to “maintain a uniform law under the Warsaw Convention,” held that general maritime law governs causes of action under the Convention, whether the accident out of which they arise occurs on land or on the high seas. 43 F. 3d, at 21-22. We think not. As we have discussed, the Convention itself contains no rule of law governing the present question; nor does it empower us to develop some common-law rule — under cover of general admiralty law or otherwise — that will supersede the normal federal disposition. Congress may choose to enact special provisions applicable to Warsaw Convention cases, as some countries have done. See supra, at 227-228. Absent such legislation, however, Articles 17 and 24(2) provide nothing more than a pass-through, authorizing us to apply the law that would govern in absence of the Warsaw Convention. There is little doubt what that law is in this case.

Section 761 of DOHSA provides:

“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.” 46 U. S. C. App. §761 (1988 ed.).

The death that occurred here falls within the literal terms of this provision, and it is well established that those literal terms apply to airplane crashes. See Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 263-264 (1972). Section 762 of DOHSA provides that the recovery in a suit under § 761 “shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought.” 46 U. S. C. App. § 762. Thus, petitioners cannot recover loss-of-society damages under DOHSA. Moreover, where DOHSA applies, neither state law, see Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 232-233 (1986), nor general maritime law, see Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625-626 (1978), can provide a basis for recovery of loss-of-society damages.

Petitioners argue that DOHSA should not apply to this cause of action because of the concern expressed by the Second Circuit: that “a uniform law should govern Warsaw Convention cases.” 43 F. 3d, at 21. They urge that, if we must look to domestic law, we should craft a federal rule of damages that will be applicable in all suits brought under the Convention. Undoubtedly it was a primary function of the Warsaw Convention to foster uniformity in the law of international air travel, see Floyd, 499 U. S., at 552, but as our discussion above has made clear, this is not an area in which the imposition of uniformity was found feasible. See supra, at 226-227. The Convention neither adopted any uniform rule of its own nor authorized national courts to pursue uniformity in derogation of otherwise applicable law. Petitioners argue, in effect, that the Convention contains an implicit authorization for national courts to create uniformity between overland and oversea accidents governed by their respective domestic laws, even though it leaves the vast discrepancies among the various domestic laws untouched. That is most unlikely.

Finally, petitioners contend that DOHSA cannot supply the substantive law of damages, because this would result in an unintended “double cap.” They argue that the Warsaw Convention’s $75,000 per passenger limit on liability (except in cases of willful misconduct), when combined with a DOHSA rule prohibiting compensation for nonpecuniary harm, will not sufficiently deter willful misconduct. We are unpersuaded. The Convention unquestionably envisions the application of domestic law; it is the function of Congress, and not of this Court, to decide that domestic law, alone or in combination with the Convention, provides inadequate deterrence.

* * *

We conclude 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. Where, as here, an airplane crash occurs on the high seas, DOHSA supplies the substantive United States law. Because DOHSA permits only pecuniary damages, petitioners are not entitled to recover for loss of society. We therefore need not reach the question whether, under general maritime law, dependency is a prerequisite for loss-of-society damages.

Accordingly, that portion of the Second Circuit judgment permitting Zicherman to recover loss-of-society damages if she can establish her dependency on the decedent is reversed, and that portion of the judgment vacating the award of loss-of-society damages to Mahalek is affirmed.

It is so ordered.

       The jury also awarded petitioners $161,000 in survivors’ grief, $16,000 to Zicherman for loss of support and inheritance and $100,000 to Zicherman for the decedent’s pain and suffering. The Second Circuit has set aside the award of grief damages and has remanded for further proceedings on the award for loss of support and inheritance. None of these awards is at issue here.

       The French text of Article 17 reads:
      “Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle subie par un voyageur lorsque l’aecident qui a causé le dommage s’est produit á bord de l’aéronef ou au cours de toutes opérations d’embarquement et de débarquement.” 49 Stat. 3005.

       The governing French text of Article 24 provides:
      “(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabi-lité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention.
      “(2) Dans les cas prévus á l’article 17, s’appliquent également les dispositions de l’alinéa précédent, sans préjudice de la détermination des person-nes qui ont le droit d’agir et de leurs droits respectifs.” 49 Stat. 3006.

       We need not consider whether § 761 of DOHSA calls into question the District Court’s determination that the decedent’s mother is a proper party to this suit, or its grant of a jury trial, see Romero v. International Terminal Operating Co., 358 U. S. 354, 371, n. 28 (1959), and whether § 762 contradicts the District Court’s allowance of pain and suffering damages, see Offshore Logistics, Inc., 477 U. S., at 215, n. 1. KAL challenged none of these rulings in its petition for certiorari.


author: Per Curiam.

text:
    LOTUS DEVELOPMENT CORP. v. BORLAND INTERNATIONAL, INC.
    No. 94-2003.
    Argued January 8,1996
    Decided January 16, 1996

      Henry B. Gutman argued the cause for petitioner. With him on the briefs were Kerry L. Konrad, Jeffrey E. Ostrow, Arthur R. Miller, Neal D. Goldman, and Donald J. Rosenberg.

      Gary L. Reback argued the cause for respondent. With him on the brief were Michael Barclay, Susan A. Creighton, and Katherine L. Parks.

        Morton David Goldberg, June M. Besek, Davis O. Carson, and Jesse M. Feder filed a brief for Digital Equipment Corp. et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for Altai, Inc., by Susan Gertrude Braden; for the American Committee for Interoperable Systems et al. by Peter M. C. Choy and Paul Goldstein; for Computer Scientists by Ron Kilgard and Karl M. Tilleman; for the League for Programming Freedom by Eben Moglen and Pamela S. Karlan; for the Software Forum by Diane Marie O’Malley; for the Software Industry Coalition et al. by Thomas F. Villeneuve; for the Software Protection Committee of the Minnesota Intellectual Property Law Association by Steven W. Lundberg, Daniel J. Kluth, and Rudolph P. Hofmann, Jr.; for Copyright Law Professors by Pamela Samuelson; and for Peter S. Menell et al. by Mr. Menell, pro se.

      Briefs of amici curiae were filed for the American Intellectual Property Law Association by Don W. Martens, Baila H. Celedonia, and Charles L. Gholz; for Economics Professors and Scholars by Joshua R. Floum; for Users Groups by Rex S. Heinke; and for Howard C. Anawalt, pro se.

   Per Curiam.

The judgment of the United States Court of Appeals for the First Circuit is affirmed by an equally divided Court.

Justice Stevens took no part in the consideration or decision of this case.