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105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-201
_______________________________________________________________________


 
  NONAPPLICABILITY OF DEATH ON THE HIGH SEAS ACT TO AVIATION INCIDENTS

                                _______
                                

 July 24, 1997.--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. 2005]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 2005) 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 
with an amendment and recommend that the bill as amended do 
pass.
    The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. CLARIFICATION AMENDMENT.

    Section 40120(a) of title 49, United States Code, is amended by 
inserting ``(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))'' after 
``United States''.

SEC. 2. APPLICABILITY.

    The amendment made by section 1 applies to civil actions commenced 
after the date of the enactment of this Act and to civil actions that 
are not adjudicated by a court of original jurisdiction or settled on 
or before such date of enactment.

    Airline travel is remarkably safe. According to the Federal 
Aviation Administration (FAA), in 1996, 11,100,000 commercial 
flights took off and only four failed to land with everybody 
alive.
    Of course, this excellent safety record is of little 
consolation to those who lost loved ones in the four aviation 
disasters that did occur. Two of those accidents, the ValuJet 
crash in May and the TWA crash in July, were particularly 
tragic both for the large loss of life they caused and the 
intense public concern that they engendered.
    One of the problems that these accidents brought to light 
was 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, H.R. 3923, 
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 
(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, such as the Red Cross, 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 
recently 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 companionship of their 
loved one.
    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 within 3 miles of land, the 
applicable State 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. 2005) 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. This change to Title 49 would 
effectively prevent others similarly situated to the family in 
the Zicherman case from being adversely affected by the 
decision in that 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 effect 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.
    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.
    One issue that was brought to our attention by House Report 
105-119, page 105, involves the financial responsibility for 
wreckage and victim recovery. According to that Report, 
following the passage of the Aviation Disaster Family 
Assistance Act, airline underwriters decided that the NTSB was 
responsible for these expenses. There is no basis for that 
determination in that law and therefore the Committee is not 
making any changes in it at this time. However, the Committee 
is interested in the report from the NTSB and Transportation 
Department called for in Report 105-119 and may consider 
changes in the law on this matter in the future if that appears 
necessary.

                       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. 2005 was introduced on June 20, 1997. The Subcommittee 
on Aviation held hearings on the issue of the applicability of 
Death on the High Seas Act on July 10, 1997.
    On July 10, 1997, the Subcommittee on Aviation reported the 
bill, with an amendment in the nature of a substitute offered 
by Chairman Duncan, by unanimous voice vote, to the Committee 
on Transportation and Infrastructure. On July 23, 1997 the 
Committee on Transportation and Infrastructure ordered the bill 
reported, as amended by the Subcommittee, by voice vote with a 
quorum present.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3)(A) of 
rule XI of the Rules of the House of Representatives, the 
Committee's oversight findings and recommendations are 
reflected in this report.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that the 
enactment of H.R. 2005 will have no significant inflationary 
impact on prices and costs in the operation of the national 
economy.

                   Constitutional Authority Statement

    Pursuant to clause (2)(l)(4) of rule XI 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.

                        Cost of the Legislation

    Clause 7 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.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI 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 2(l)(3)(D) of 
rule XI 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. 2005.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 
2005 from the Director of the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 24, 1997.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2005, a bill 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 contact is Clare 
Doherty.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

               congressional budget office cost estimate

H.R. 2005--A bill to clarify the application of the act popularly known 
        as the ``Death on the High Seas Act'' to aviation incidents

    H.R. 2005 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. The Warsaw Convention is the primary basis for 
lawsuits related to international airline disasters. Under the 
Warsaw Convention, families of passengers who die in an 
aviation disaster can seek limited financial compensation for 
their loss. Under DOHSA, 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. 2005 
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. 2005 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. 2005 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
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 contact for this estimate is Clare Doherty. 
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 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.