Recoverable Damages in Wrongful Death Actions Governed by the Warsaw Convention

THE most significant recent development in Warsaw Convention jurisprudence in United States is application of federal common law, rather than state or foreign law, to wrongful death actions governed by 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 Warsaw Convention? * Who is entitled to recover such damages? Article 17 of Warsaw Convention(1) creates a cause of action for damage sustained in 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 of contracting parties would have to be used to supplement and define wrongful death cause of action provided by treaty. For example, Article 24(2) provides that provisions of convention shall apply without prejudice to questions as to who are persons who have 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 of court to which case is submitted. Until recently, American courts would conduct an exhaustive choice of analysis and apply wrongful death of one U.S. state or another (or that of a foreign country) as (substantial) in such cases. In air disaster litigation involving numerous plaintiffs from many different states and countries, result was that 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 course of Warsaw Convention jurisprudence in 1991 in case now referred to as Lockerbie I when it applied federal common as local law of United States to determine elements of recoverable damages and proper beneficiaries in death actions governed by convention.(3) So far Second is only circuit to have applied federal common to Warsaw Convention wrongful death cases. Since there was a dearth of federal common relating to wrongful death damages as recently as three years ago, one task of first court to adopt this change was development of a remedy for wrongful death under federal common law. This task Second Circuit undertook in case now referred to as Lockerbie II,(4) in which it held that federal common to be applied in these cases should be developed by reference to general maritime law, oldest body of federal common law. Today, in air disaster litigation pending in United States, federal courts are applying federal common rather than state or foreign to define wrongful death cause of action provided by 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 permits plaintiffs in a wrongful death case governed by convention to recover damages for (1) predeath pain and suffering of 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 class of claimants that may recover. The cases applying and interpreting federal common in wrongful death actions governed by convention are of recent vintage. Many are on appeal, and one significant appeal in a case arising from infamous KAL 007 crash of September 1, 1983--Zicherman v. …