69–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 106–32

TO CLARIFY THE APPLICATION OF THE ACT POPULARLY

KNOWN AS THE ‘‘DEATH ON THE HIGH SEAS ACT’’ TO

AVIATION INCIDENTS

FEBRUARY 24, 1999.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. SHUSTER, from the Committee on Transportation and

Infrastructure, submitted the following

REPORT

[To accompany H.R. 603]

[Including cost estimate of the Congressional Budget Office]

The Committee on Transportation and Infrastructure, to whom

was referred the bill (H.R. 603) to amend title 49, United States

Code, to clarify the application of the Act popularly known as the

‘‘Death on the High Seas Act’’ to aviation incidents, having considered the same, report favorably thereon without amendment and

recommend that the bill do pass.

Airline travel is remarkably safe. Indeed, last year, there was not

even one passenger death on U.S. commercial airlines.

Of course, this excellent safety record is of little consolation to

those who lose loved ones in aviation disasters that do occur.

One of the problems that past accidents have brought to light is

the sometimes insensitive treatment of the families of accident victims. On June 19, 1996, following the ValuJet crash, the Aviation

Subcommittee held a hearing on these problems and heard firsthand from family members about the difficulties they encountered.

At that hearing, a commitment was made to deal with these problems by legislation.

On July 31, 1996, following the TWA 800 tragedy, the Aviation

Disaster Family Assistance Act, was introduced. This bill was approved by the Committee (Report 104–793) and subsequently

passed the House by a vote of 401 to 4 on September 18, 1996. The

final legislation was incorporated into the Federal Aviation Reauthorization Act of 1996 as Title VII (P.L. 104–264, 110 Stat. 3264
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et seq.). Among other things, this legislation included the following

features—

The establishment of a position within the National Transportation Safety Board (NTSB) to act as a liaison with the families;

A requirement that the NTSB designate an independent organization to take primary responsibility for the emotional care

and support of the families;

An assurance that passenger possessions will be returned to

the families;

A requirement that the passenger manifest be turned over to

the NTSB and the designated organization; and

A prohibition on lawyer solicitation within 30 days of the accident.

The Committee continues to be concerned about the treatment of

families after airline disasters.

One issue that has arisen, affecting the families of the TWA 800

crash and also an earlier crash involving Korean Airlines 007, involves the Death on the High Seas Act, 46 U.S.C. 761 et seq. The

issue arises because the Supreme Court decided, in the case of

Zicherman v. Korean Airlines, 116 S.Ct. 629 (1996), that the Death

on the High Seas Act (DOHSA) applies to lawsuits that arise out

of an aircraft crash in the ocean more than a marine league (about

3 miles) from land.

In the Zicherman case, the court concluded that Articles 17 and

24(2) 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.)), permit compensation only for a legally recognizable harm, but leave the determination of what harm is legally recognizable to the applicable domestic law. The court further

concluded that when a plane crashes into the high seas, the applicable domestic law is DOHSA. Under DOHSA, only pecuniary

losses are recognized. Therefore, the family of a deceased passenger

could recover damages for the wages that the person would have

received but not for the pain and suffering of that person or the

loss of that person’s companionship.

The effect of this decision is to treat families differently depending on whether their relative died in an aircraft that crashed into

the ocean or one that crashed into land. If the plane crashes into

the ocean, DOHSA applies and the family is entitled only to pecuniary damages. However, if a plane crashes into the land or close

to land, the applicable tort law would apply. These generally permit the award of non-pecuniary damages such as loss of companionship.

Given the nature and speed of air travel, it is often a matter of

happenstance as to where an aircraft crashes. The result is that a

family’s rights under the law depend on pure chance. At the Subcommittee’s hearing on this issue, parents noted that where

DOHSA applied, the life of their child was made to appear practically worthless in the eyes of the law.

The Supreme Court recognized the inequity of this result and

stated that ‘‘Congress may choose to enact special provisions appli-
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cable to Warsaw Convention cases, as some countries have done.’’

The reported bill (H.R. 603) would do this and in such a way as

to ensure that all families would be treated the same regardless of

where a plane happened to crash.

The reported bill amends the aviation laws in Title 49 to make

clear that DOHSA does not apply in the case of aviation accidents.

This change would apply to all pending cases if the court of original

jurisdiction had not yet rendered a final decision. It would apply

even if the court had rendered a decision on preliminary matters

in the case, including the applicability of DOHSA, as long as the

court had not rendered a final decision in the case.

The Committee believes that the retroactive nature of this legislation is fully justified under the Supreme Court’s decision in Plaut

v. Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995). In that case, the

Court stated, at 1457, that ‘‘[w]hen a new law makes clear that it

is retroactive, an appellate court must apply that law in reviewing

judgments still on appeal that were rendered before the law was

enacted, and must alter the outcome accordingly.’’ Therefore, the

Committee would be justified in developing retroactive legislation

that would have the affect of overturning final court decisions that

were pending at the appellate level. However, the reported bill does

not go that far. Rather it would only affect cases still pending in

the District Court.

The reported bill also does not attempt to dictate what law

should apply in the future to aircraft accidents on the high seas.

Instead, the Committee expects this issue to be resolved by the

courts under normal choice of law analysis. See, for example,

Pescatore v. Pan Am, 97 F.3d 1 (2nd Cir. 1996) cert denied sub

nom, 112 S.Ct. 331.

In the Committee’s view, the reported bill will help to ensure

that families of airline accident victims will receive fair treatment

under the law. The Committee continues to look at other areas of

concern and may consider changes where problems arise.

SECTION-BY-SECTION SUMMARY

Section 1.—Clarification amendment

This section clarifies that courts should not look to the Death on

the High Seas Act for the controlling law in lawsuits arising out

of aviation crashes into the high seas.

Section 2.—Applicability

This section states that the amendment made by section 1 applies to cases pending in the lower courts on or before the date of

enactment and to lawsuits filed after the date of enactment.

HEARINGS AND LEGISLATIVE HISTORY

H.R. 603 was introduced on February 4, 1999. The Subcommittee

on Aviation held hearings on the issue of the applicability of the

Death on the High Seas Act on July 10, 1997.

On February 11, 1999, the Committee on Transportation and Infrastructure ordered the bill reported by voice vote with a quorum

present.
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COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

With respect to the requirements of clause 3(c)(1) of rule XIII of

the Rules of House of Representatives, the Committee’s oversight

findings and recommendations are reflected in this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, committee reports on a bill or joint resolution

of a public character shall include a statement citing the specific

powers granted to the Congress in the Constitution to enact the

measure. The Committee on Transportation and Infrastructure

finds that Congress has the authority to enact this measure pursuant to its powers granted under Article I, Section 8 of the Constitution.

COSTS OF THE LEGISLATION

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives does not apply where a cost estimate and comparison

prepared by the Director of the Congressional Budget Office under

section 403 of the Congressional Budget Act of 1974 has been timely submitted prior to the filing of the report and is included in the

report. Such a cost estimate is included in this report.

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, February 19, 1999.

Hon. BUD SHUSTER,

Chairman, Committee on Transportation and Infrastructure,

U.S. House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 603, a bill to amend Title

49, United States Code, to clarify the application of the act popularly known as the ‘‘Death on the High Seas Act’’ to aviation incidents.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts are Deborah Reis and Victoria Heid Hall.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure.

COMPLIANCE WITH HOUSE RULE XIII

1. With respect to the requirement of clause 3(c)(2) of rule XII

of the Rules of the House of Representatives, and section 308(a) of

the Congressional Budget Act of 1974, the Committee references

the report of the Congressional Budget Office included below.

2. With respect to the requirement of clause 3(c)(4) of rule XIII

of the Rules of the House of Representatives, the Committee has

received no report of oversight findings and recommendations from

the Committee on Government Reform and Oversight on the subject of H.R. 603.
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3. With respect to the requirement of clause 3(c)(3) of rule XIII

of the Rules of the House of Representatives and section 402 of the

Congressional Budget Act of 1974, the Committee has received the

following cost estimate for H.R. 603 from the Director of the Congressional Budget Office.

H.R. 603—A bill to amend Title 49, United States Code, to clarify

the application of the act popularly known as the ‘‘Death on the

High Seas Act’’ to aviation incidents

H.R. 603 would amend Title 49 of the U.S. Code so that the

Death on the High Seas Act of 1920 (DOHSA) would not apply to

aviation incidents. The Warsaw Convention of 1929 and DOHSA

provide families of victims of aviation disasters with legal remedies

to seek financial compensation for the loss of a family member.

Under the Warsaw Convention, which is the primary basis for lawsuits related to international airline disasters, families of passengers who die in an aviation disaster can seek limited financial

compensation for their loss. Under DOSHA, a family can only seek

compensation if the family was financially dependent upon the deceased. The Supreme Court recently ruled that DOHSA applies to

lawsuits when an aviation crash occurs more than three miles from

land. By making DOHSA inapplicable to aviation incidents, H.R.

603 would broaden the circumstances under which relatives can

seek compensation for the death of a family member in an aviation

incident over the ocean. It could also lead to larger awards.

Based on information from the Department of Transportation,

CBO estimates that it is unlikely that enacting H.R. 603 would

have a significant impact on the federal budget. The bill could affect federal spending if the government becomes either a defendant

or a plaintiff in a future civil action related to aviation, but CBO

has no basis for estimating the likelihood or outcome of any such

potential actions.

H.R. 603 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would

not affect the budgets of state, local, or tribal governments. Although the bill could potentially increase an airline’s liability in the

event of a crash at sea, CBO estimates that the bill would not significantly increase the costs of operating airlines.

The CBO staff contacts for this estimate are Deborah Reis and

Victoria Heid Hall. This estimate was approved by Robert A. Sunshine, Deputy Assistant Director for Budget Analysis.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(g) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (new matter is printed in italic

and existing law in which no change is proposed is shown in

roman):

SECTION 40120 OF TITLE 49, UNITED STATES CODE

§ 40120. Relationship to other laws

(a) NONAPPLICATION.—Except as provided in the International

Navigational Rules Act of 1977 (33 U.S.C. 1601 et seq.), the naviga-
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tion and shipping laws of the United States (including the Act entitled ‘‘An Act relating to the maintenance of actions for death on the

high seas and other navigable waters’’, approved March 30, 1920,

commonly known as the Death on the High Seas Act (46 U.S.C.

App. 761–767; 41 Stat. 537–538)) and the rules for the prevention

of collisions do not apply to aircraft or to the navigation of vessels

related to those aircraft.

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