The opinion of the court was delivered by: VAUGHN R. WALKER
On August 13, 1990, this court ruled that the Death on the High Seas Act, 46 U.S.C. §§ 761 et seq. ("DOHSA"), was a necessary cause of action for the plaintiffs asserting wrongful death claims in this case, which arose in connection with the mid-air accident involving United Airlines Flight 811 on February 24, 1989. The court further held that DOHSA provides only pecuniary damages to surviving dependents, and therefore precludes the availability of non-pecuniary damages for those plaintiffs either under general maritime law or under state law, whether asserted as part of plaintiffs' wrongful death cause of action or as a survival action brought on behalf of a decedent's estate. The court reasoned that Congress' statutory tort scheme created by DOHSA should not be eviscerated by the addition of common law or state remedies not consistent with DOHSA.
The court expressly left unresolved the issue of whether the Warsaw Convention
provides a basis for awarding the non-pecuniary damages not provided for by DOHSA. The court noted further that, although plaintiffs asserting only DOHSA claims were not entitled to a trial by jury, the availability of a meaningful, non-DOHSA basis for relief under the Warsaw Convention would permit the wrongful death plaintiffs to demand a jury trial on all of their claims.
Counsel for plaintiffs and defendants have fully briefed this issue, and the court heard argument at the December 3, 1991 status conference in this matter. Subsequently, counsel submitted a series of letter briefs to the court which contained further discussion of the Warsaw issues. The court has considered the arguments of counsel and the motions, briefs and other documents submitted in relation to this issue.
I. AVAILABILITY OF DAMAGES FOR PRE-DEATH PAIN AND SUFFERING UNDER THE WARSAW CONVENTION.
A treaty entered into by the United States is the supreme law of the land. U.S. Const., Art. VI, Cl. 2. As such, a treaty "is as much to be regarded by the court as an act of Congress." United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801). Treaty provisions which create domestic law have the same effect as legislation, and supersede previous conflicting legislation. In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir. 1982). By contrast, the judge-made general maritime law, like land-based common law, can be and often has been altered or supplemented by act of Congress. Grant Gilmore and Charles L. Black, The Law of Admiralty § 1-16 (2d ed. 1975).
When interpreting a treaty, the court begins "with the text of the treaty and the context in which the written words are used." Eastern Airlines v. Floyd, 113 L. Ed. 2d 569, 111 S. Ct. 1489, 1493 (1991), citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 100 L. Ed. 2d 722 , 108 S. Ct. 2104 (1988). Because the only authentic text of the Warsaw Convention is in French, the French text is where the court must begin its analysis. Eastern Airlines, 111 S. Ct. at 1493. The relevant text of Article 17 of the Convention reads as follows:
Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lesion corporelle subie par un voyageur lorsque l'accident qui a cause le dommage s'est produit a bord de l'aeronef ou au cours de toutes operations d'embarquement et de debarquement."
The English language translation used by the Senate when it ratified the Warsaw Convention in 1934 is reproduced in a note following 49 U.S.C. § 1502. That text is:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the court of any of the operations of embarking or disembarking.
Article 17, plainly read, creates an independent cause of action for damage sustained ("dommage survenu") where a passenger suffers death ("mort"), wounding ("blessure") or bodily injury ("lesion corporelle") while on board an aircraft, or while embarking or disembarking. This cause of action continues to exist after the death of the passenger, even ...