[House Report 106-32]
[From the U.S. Government Publishing Office]
106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-32
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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
R E P O R T
[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 first-hand 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 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 applicable 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.
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.
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
Sec. 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 navigation 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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