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Families who have lost a relative in an airline disaster occurring over international waters would be able to seek damages for grief and sorrow under a bill introduced last week in Congress.
The measure, designed to increase compensation to families of victims of TWA Flight 800, is now in the Senate.
Currently, death cases stemming from an airline disaster three miles or more from shore are governed by the 77-year-old Death on the High Seas Act. The act supersedes the Warsaw Convention in these accidents.
The Death on the High Seas law allows spouses, parents, children or dependent relatives of those killed in international waters to seek pecuniary damages, which include loss of financial support; loss of inheritance; loss of nurture, care and guidance for minor children and children with special needs; loss of services; and funeral expenses.
The Death on the High Seas Act does not, however, allow for recovery of non-pecuniary damages, such as loss of society and companionship, survivor's grief and sorrow and the pre-death pain and suffering of the victim.
Approximately one-third of the states allow damages for a survivor's grief and approximately 45 states allow damages for pre-death pain and suffering and loss of society, according to George N. Tompkins Jr., a partner with Tompkins, Harakas, Elsasser & Tompkins in White Plains, N.Y. Some states cap these damages and some states impose restrictions on who may recover them.
The House bill, H.R. 2005, was introduced by Rep. Joseph M. McDade, R-Pa., who represents the district where 21 high school students and chaperones lived before they were killed in the 1995 explosion of TWA flight 800.
The bill, which would be retroactive to Jan. 1, 1995, to apply to the TWA disaster, cleared the House and has been sent to the Senate.
"The gross injustice of the Death on the High Seas Act must be changed," stated Rep. McDade. "Where a plane crashed should not dictate your rights in a court of law."
Survivors of those killed in an airplane crash over international waters "should at least have the benefit of their state laws," said Lee Kreindler, a partner with Kreindler & Kreindler in New York and chairman of the plaintiff's committee representing the families of victims of the TWA flight 800 disaster.
The Death on the High Seas Act "is an antique" and never really was intended to apply to airplane disasters, Mr. Kreindler noted. The law originally was passed to provide some financial recovery for dependents of victims of the Titanic disaster or of sailors lost at sea because state laws did not have jurisdiction, according to experts.
However, Mr. Tompkins, a defense attorney, charged that the bill is "based on total misinformation" and "the House of Representatives has responded to the demands of family groups" in passing the bill.
Mr. Tompkins noted that courts consistently have upheld the application of the Death on the High Seas Act to airplane disasters over international waters.
"I doubt it will get through the Senate," he added. And if the bill does become law, it will mean "absolutely nothing except about 20 years of litigation over what the law means and whether it's valid or not."
Furthermore, there are three other federal death statutes in addition to the Death on the High Seas Act and none of them allows for recovery of damages for grief or loss of society, Mr. Tompkins pointed out.
These laws are the Federal Employers Liability Act, the Jones Act and the Longshore and Harbor Workers Compensation Act.
A spokesman for the Air Transport Assn. in Washington said that the Death on the High Seas Act "needs to be updated," but the group does not support the House bill. The ATA opposes the retroactive date included in the bill, he said.
A spokesman for St. Louis-based Trans World Airlines Inc. declined to comment on the bill, stating only: "We think that any
law that is passed and is made to apply retroactively is extremely unfair."