[Congressional Record Volume 145, Number 165 (Friday, November 19, 1999)]
[Senate]
[Pages S15078-S15079]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       DEATH ON THE HIGH SEAS ACT

  Mr. SPECTER. Mr. President, as it appears unlikely the House and 
Senate conferees will come to agreement this year on a bill to 
reauthorize the Federal Aviation Administration, I have sought 
recognition today to introduce legislation which will provide equitable 
treatment for families of passengers involved in international aviation 
disasters. This measure is identical to legislation I introduced in the 
105th Congress, and similar to provisions contained in both the House 
and Senate FAA bills.
  As my colleagues know, the devastating crash of Trans World Airlines 
Flight 800 on July 17, 1996 took the lives of 230 individuals. Perhaps 
the community hardest hit by this tragedy was Montoursville, PA, which 
lost 16 students and 5 adult chaperones from Montoursville High School 
who were participating in a long-awaited French Club trip to France.
  Last Congress it was brought to my attention by constituents, who 
include parents of the Montoursville children lost on TWA 800, that 
their ability to seek redress in court is hampered by a 1920 shipping 
law known as the Death on the High Seas Act, which was originally 
intended to cover the widows of seafarers, not the relatives of jumbo-
jet passengers embarking on international air travel.
  Under the Warsaw Convention of 1929, airlines are limited in the 
amount they must pay to families of passengers who died on an 
international flight. However, domestic air crashes are covered by U.S. 
law, which allow for greater damages if negligent conduct is proven in 
court.
  The Warsaw Convention limit on liability can be waived if the 
passengers' families show that there was intentional misconduct which 
led to the crash. This is where the Death on the High Seas Act comes 
into play. This law states that where the death of a person is caused 
by wrongful act, neglect, or default occurring on the high seas more 
than 1 marine league which is 3 miles from U.S. shores, a personal 
representative of a decedent can sue for pecuniary loss sustained by 
the decedent's wife, child, husband, parent, or dependent relative. The 
Act, however, does not allow families of the victims of TWA 800 or 
other aviation incidents such as the Swissair Flight 111 crash and the 
recent EgyptAir 990 tragedy to obtain other types of damages, such as 
recovery for loss of society or punitive damages, no matter how great 
the wrongful act or neglect by an airline or airplane manufacturer.
  My legislation would amend Federal law to provide that the Death on 
the High Seas Act shall not affect any remedy existing at common law or 
under State law with respect to any injury or death arising out of an 
aviation incident occurring after January 1, 1995. In effect, it would 
clarify that federal aviation law does not limit remedies in the same 
manner as maritime law, and permits international flights to be 
governed by the same laws as domestic flights.
  My legislation is not about blaming an airline or airplane 
manufacturer. It is not about miltimillion dollar damage awards. It is 
about ensuring access to justice and clarifying the rights of families 
of victims of plane crashes.
  The need for this legislation is suggested by the Supreme Court 
decision Zicherman v. Korean Airlines, 116 S. Ct. 629 (1996), in which 
a unanimous Court held that the Death on the High Seas Act of 1920 
applies to determine damages in airline accidents that occur more than 
3 miles from shore. By contrast, the Court has ruled that State tort 
law applies to determine damages in accidents that occur in waters 3 
miles or less from our shores. Yamaha v. Calhoun, (1996 WL 5518)

  I believe it is inequitable to make such a distinction at the 3 mile 
limit in civil aviation cases where the underlying statute predates 
international air travel. I would note that the Gore Commission on 
Aviation Safety and Security noted in its final report that ``certain 
statutes and international treaties, established over 50 years ago, 
historically have not provided equitable treatment for families of 
passengers involved in international aviation disasters. Specifically, 
the Death on the High Seas Act of 1920 and the Warsaw Convention of 
1929, although designed to aid families of victims of maritime and 
aviation disasters, have inhibited the ability of family members of 
international aviation disasters from obtaining fair compensation.''
  I would further note that in an October, 1996 brief filed at the 
Department of Transportation by the Air Transport Association, the 
trade association of U.S. airlines, there is an acknowledgment that the 
Supreme Court in Zicherman did not apparently consider 49 U.S.C. 
Sec. 40120(a) and (c), which preserve the application of State and 
common law remedies in tort cases and also prohibit the application of 
Federal shipping laws to aviation. My legislation amends 49 U.S.C. 
Sec. 40120(c) to clarify that nothing in the Death on the High Seas Act 
restricts the availability of remedies in suits arising out of aviation 
disasters.
  In September, 1998, during consideration of the Federal Aviation 
Administration authorization bill, I offered a compromise amendment 
with a limit on damages in order to move ahead to obtain some possible 
compensation for victims' families beyond pecuniary damages. I did so 
because had an amendment to the Death on the High Seas Act been enacted 
which would have had unlimited damages, there was the announced intent 
to filibuster the bill. While my amendment was accepted by a voice vote 
in the Senate, the underlying FAA bill was not enacted into law.
  This year the Senate passed a new FAA reauthorization bill which 
included the compromise provision agreed to last year. As the bill 
conferees appear unlikely to reach agreement with the House this year, 
I am re-introducing the original version of my bill because I 
fundamentally oppose any cap on damages and am hopeful that this 
legislation can be enacted independently of the FAA bill to provide the 
fullest amount of relief to the families of aviation disaster victims.
  At a time when so many Americans live, work, and travel abroad, 
taking part in the global economy or seeing the cultural riches of 
foreign lands, they and their families should know that the American 
civil justice system will be accessible to the fullest extent if the 
unthinkable occurs.
  I urge my colleagues to support this legislation and look forward to 
working with them to ensure its ultimate enactment during the second 
session of the 106th Congress.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed at this point in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. --

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. DEATH ON THE HIGH SEAS ACT.

       Section 40120(c) of title 49, United States Code, is 
     amended to read as follows:
       ``(c) Additional Remedies.--
       ``(1) In general.--Nothing in this part or 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 (46 U.S.C. App. 761 et seq.), popularly known as the 
     `Death on the High Seas Act,' shall, with respect to any 
     injury or death arising out of any covered aviation incident, 
     affect any remedy--
       ``(A) under common law; or
       ``(B) under State law.
       ``(2) Additional remedies.--Any remedy provided for under 
     this part or the Act referred to in paragraph (1) for an 
     injury or death arising out of any covered aviation incident 
     shall be in addition to any of the remedies described in 
     subparagraphs (A) and (B) of paragraph (1).
       ``(3) Covered aviation incident defined.--In this 
     subsection, the term `covered aviation incident' means an 
     aviation disaster occurring on or after January 1, 1995.''.

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