Petition for Writ of Certiorari — Dooley v. Korean Air Lines Co.
Supreme Court brief1991
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IN THE OFFICE OF THE CitkK
Supreme Court of the United States
OCTOBER TERM, 1991
>
PHILOMENA DOOLEY, et al.,
Petitioners,
—V.—
KOREAN AIR LINES, LTD.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA
PETITION FOR WRIT OF CERTIORARI
PLAINTIFFS’ TRIAL COMMITTEE
Attorneys for Petitioners
MILTON G. SINCOFF
(Counsel of Record)
STEVEN R. POUNIAN
KREINDLER & KREINDLER
100 Park Avenue
New York, New York 10017
(212) 687-8181
DONALD W. MADOLE
GEORGE E. FARRELL
SPEISER, KRAUSE, MADOLE & LEAR
On the Petition: 1216 Sixteenth Street, N. W.
MILTON G. SINCOFF Washington, D.C. 20036
STEVEN R. POUNIAN (202) 223-8501
> |
i
QUESTION PRESENTED FOR REVIEW
Does the Warsaw Convention Treaty provide the exclusive
cause of action for passenger deaths and injuries in interna-
tional accidents and bar recovery of punitive damages
allowed by applicable federal maritime law?
i
LIST OF PARTIES TO THE PROCEEDING
The following plaintiffs are parties to this proceeding: Phi-
lomena Dooley, Kimberly Saavedra, Edward Ccampo, Mau-
reen Lombard, David Powrie, Julia Lombard, Mayuree
Siripoon, Thomas Mahalek, Michael Kole, Marie Gill, Betty
Lim, Maureen Oren, David WuDunn, Renay Bevins, Jose
Bolante, Robert Caltabellatta, Sungwha Oh Yoo, Jwa Hong,
Christina Ting, Sarah Swift, Kyung Hwa Park, Hee Sook
Lee, U! Ran Lim, Eun Jung Oh, Hans Ephraimson-Abt,
Jeung Em Yun, Elisa Chan, Maria Beirn, Robert Speir,
Dorothy Jones, Michael Jones, Cecille Chuapoco, Felino
Bayona, Eric Forman, Marsha Maikovich, Parvaneh Zareh,
Nan M. Oldham, In Jig Lin, Louella Nassief, Rosario Bay-
ona, Dorothy Irwin, Marjorie Zicherman, Willie James,
Roberta Cruz, Robert Boyar, Elia Baek, Yon Shen Liu, Chan
May Kung, Huey Ping Yeh-Wang, Liu-Tsuei Lee, Yueh-Lan
Liu, Tzen Chang, Hsing-Wu Wang, Chi-Chin Lin, Lih-Hwa
Yu Chen, Andi Donovan, Leo Fitzpatrick, Mildred Burgess,
Shirley Katz, Kathryn McDonald, William Cunningham,
Chong Cha Kim, Jae Gwan Sim, Ahduk Homlaor, Mo
Hsiang Lai Tsao, William Stevens, Lolita DoFredo, Richard
Bowden, JoAnn Dunn, Gerard Metcalf, Alexander Alcabasa,
Terry Weng, Soon Hi Choi Lee, Diana Chao, Sandra Baker
Yoon, Charles Fonville, Daisy Bickell, Republic Bank of New
York, Rudolfo Cruz, Emelinda Lantin, Shan Leung, Erlinda
Alora, Akemi Hammerstein, Indep, Lenore Lebow and Anto-
nio Guevara.
The defendant is Korean Air Lines, Ltd.
iii
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW...........
LIST OF PARTIES TO THE PROCEEDING.......
py Re a aes ay |. Se
i C656 660006 ocecsscccesesees
iC Tho d bu ee dee bS0 ee 2s etseesvesceess
I.
II.
CERTIORARI SHOULD BE GRANTED TO
RESOLVE A CONFLICT AMONG THE
CIRCUITS AND STATE COURTS OF LAST
RESORT OVER WHETHER THE WARSAW
CONVENTION TREATY CREATES AN
EXCLUSIVE CAUSE OF ACTION.........
CERTIORARI SHOULD BE GRANTED
BECAUSE THE DECISION BELOW
AMENDS THE CONVENTION TO UPSET
AN ESTABLISHED COMMON LAW REM-
EDY CONTRARY TO THIS COURT’S
DECISIONS ON PUNITIVE DAMAGES
AND WARSAW’S INTERPRETATION .....
TT ci eekeceeebestrscerrcsccvccscccecece
PAGE
iv
TABLE OF AUTHORITIES
Cases: PAGE
Alvarez v. Aerovias Nacionales de Columbia, 756 F.
es re Os a ls oc cc nee vedecduscaspess y
Air France v. Saks, 470 U.S. 392 (1985) ............ 16, 17
Benjamins v. British European Airways, 572 F.2d 913
(2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979).. 10
Boehringer-Mannheim Diagnostics v. Pan American
World Airways, 737 F.2d 456 (Sth Cir. 1984), cert.
GR, Se Cs SIO a oo 6 bb ceevscicccveses 10, 14
Browning-Ferris v. Kelco Disposal, 492 U.S. 257
ST 4 65.0: 50s s6 beeen eamere ba cewa tie swakeens 8, 15, 16
Calderon v. Azrovias Nacionales de Columbia, 738 F.
Supp. 485 (S.D. Fla. 1990), appeal dismissed, 929
Se & oi. ge ae Re eee i)
Chan v. Korean Air Lines, 490 U.S. 122 (1989)...... 9, 15
Eastern Airlines v. Floyd, 111 S. Ct. 1489 (1991). .8, 15, 16
Evich v. Morris, 819 F.2d 256 (9th Cir.), cert. denied,
Se Se te I in. do kek We eiekédGeee eeceees as’ 1]
Floyd v. Eastern Airlines, 872 F.2d 1462 (11th Cir.
1965), vov'd, 111 S.CR. FOSD CIGSI) oc ccccccsccces: 16
Guaranty Trust v. United States, 304 U.S. 126 (1938) 8, 15
Harpalani v. Air India, 634 F. Supp. 797 (N.D. II.
Elsie tee ROE SR Ae OR ep ee Nee ee ee 17
Herd & Co. v. Krawill Machinery, 359 U.S. 297 (1959) 15
Hill v. United Airlines, 550 F. Supp. 1048 (D. Kan.
Css GEG 0500s Conde seswesnes nes ienehisesweeess 17
PAGE
In Re Air Crash in Bali, Indonesia, 684 F.2d 1301 (9th
Gh danse code denareeuseaseo coder becaevs 7, 9, 12
In Re Air Crash at Gander, Newfoundland, 684 F.
I. Te Carsales Me TUEED chide vecadccccesdvenves 16
In Re Air Disaster at Lockerbie, Scotland, 928 F.2d
See Ge a ED hn uc Kane ieceunavucbustecacace passim
In Re Air Disaster at Lockerbie, Scotland, 733 F.
Supp. 547 (E.D.N.Y. 1990), aff’d, 928 F.2d 1267 (2d
EU PE eh cde anecenakabeyssweseee cubtewedees 16
In Re Hijacking of Pan American Aircraft at Karachi,
729 F. Supp. 17 (S.D.N.Y. 1990), rev’d, 928 F.2d
Se ee Mirae Wk 6 9:00 0400000 00esessedeeenn 9, 17
In Re Merry Shipping, 650 F.2d 622 (Sth Cir. 1981) . 11
In Re Mexico City Aircrash, 708 F.2d 400 (9th Cir.
PS Cubbies ve lsu oawewde ed vee ebeuunecereenes zo & 82
Johnson v. American Airlines, 834 F.2d 721 (9th Cir.
Ns oo o04bnee tbuede Chablis ee 7,9
Kossick v. United Fruit, 365 U.S. 731 (1961) ........ 11
Newsome v. Trans International Airlines, 492 So.2d
592 (Ala.), cert. denied, 479 U.S. 950 (1986) ...... 10
Pacific Mutual v. Haslip, 111 S. Ct. 1032 (1991) ..8, 15, 16
Rhymes v. Arrow Air, 636 F. Supp. 737 (S.D. Fila.
any nr ee 9
Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367, cert.
Gee. GES Ve Cad dh 40 608s as sKeaswes ,
Silkwood v. Kerr-McGee, 464 U.S. 238 (1984) ....... 8, 15
Smith v. Wade, 461 U.S. 30 (1984) ...........05- 8, 15, 17
Tokio Marine v. McDonnell Douglas, 617 F.2d 936 (2d
Cee TREND én vas vabccecdies benvenceneteaweseeseas 10
vi
PAGE
Trans World Airlines v. Franklin Mint, 466 U.S. 243
Dds ciumendcusaduateetsaielendeeadeseaees 15
Velasquez v. Aerovias Nacionales de Columbia, 747 F.
Grew Ge. Fak. FR oo decccedevversccaeees 10
Statutes and Other Authorities:
Sie Gs FU Wey. Ge Bae vce ecvecicncswendsdeues 1]
RES OEE bbu ct ccceecéetrvsseasdusuacuaeen 1
Se ae FT SB i odscccccccccosécanavedecebaseees 14
Be ee SD he ve Sc dbcccedacdonkscsstueceses 14
Wee: B Seen nensddvccccndcsnancnemeeencecews 17
Convention for the Unification of Certain Rules Relat-
ing to International Transportation by Air, Oct. 12,
1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted
Agreement Relating to Liability Limitations of the
Warsaw Convention and Hague Protocol, Agreement
CAB 18900, Approved by Executive Order E-23680,
May 13, 1966 (Docket 17325), 31 Fed. Reg. 7302
(1966), reprinted in Civil Aeronautics Board, Aero-
nautical Statutes and Related Material 515-16 (1974) 4
Calkins, The Cause of Action Under the Warsaw Con-
vention, 26 J. Air L. & Com. 323 (1959).......... 13
Drion, Limitation of Liabilities in International Air
Law (Martinus Nijhoff 1954)..............eeeeee- 13
Matte, Treatise on Air-Aeronautical Law (McGill Uni-
WE GD 6c oc cecescene basadeueseeuseeoaeises 13
Miller, Liability in International Air Transport,
SY TSC iis ccvccvseesecsnavenedbeanceeudaavees 13, 17
Vii
PAGE
Second International Conference on Private Aeronauti-
cal Law Minutes (Warsaw, 1929) (R. Horner & D.
SNe Se inedeeu ens nwbee a ecéweweece 17
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
>
PHILOMENA DOOLEY, et al.,
Petitioners,
—V.—
KOREAN AIR LINES, LTD.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
>
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The opinion, including the dissent, of the Court of Appeals
for the District of Columbia Circuit (A-1, infra)’ is reported
at 932 F.2d 1475 (D.C.Cir. 1991). It reversed a district court
determination made at trial without a formal opinion.
JURISDICTION
The judgment of the Court of Appeals was entered on May
7, 1991. In two orders dated July 5, 1991, the Court of
Appeals denied KAL’s petition for rehearing or rehearing en
banc. A-52-3. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
1 References to ‘“‘A-__”’ are to pages in the Appendix of this Petition.
2
PROVISIONS OF LAW INVOLVED
This case raises the interpretation of Articles 17, 24 and 25
of the Warsaw Convention Treaty’ and its relationship to
federal maritime law of punitive damages.
WARSAW CONVENTION
Article 17
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 air-
craft or in the course of any of the operations of embarking
or disembarking.
Article 24
(1) In the cases covered by Articles 18 and 19 any action
for damages, however founded, can only be brought subject
to the conditions and limits set out in this convention.
(2) In the cases covered by Article 17 the provisions of the
preceding paragraph shall also apply, without prejudice to
the questions as to who are the persons who have the right to
bring suit and what are their respective rights.
Article 25
(1) The carrier shall not be entitled to avail himself of the
provisions of this convention which exclude or limit his liabil-
ity, if the damage is caused by his wilful misconduct or by
such default on his part as, in accordance with the law of the
2 Convention for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No.
876 (1934), reprinted in 49 U.S.C. § 1502 note (1976) (Warsaw Con-
vention).
3
court to which the case is submitted, is considered to be
equivalent to wilful misconduct.
(2) Similarly the carrier shall not be entitled to avail him-
self of the said provisions, if the damage is caused under the
same circumstances by any agent of the carrier acting within
the scope of his employment.
STATEMENT OF THE CASE
Petitioners are the surviving family members and estate
representatives of one hundred thirty-seven passengers killed
in the Korean Air Lines (KAL) disaster of September 1, 1983.
KAL flight 7 departed from Kennedy Airport, New York
bound for Seoul, South Korea.
KAL 7’s three pilots flew the plane off course on a short-
cut route for over five hours, including three hours in Soviet
airspace. The danger of Soviet airspace was well known to
KAL and its flight crews by virtue of specific training, warn-
ings and the 1978 shootdown of another KAL airliner in
Soviet airspace, killing and injuring fourteen passengers.
KAL 7 was a 747 aircraft equipped with numerous naviga-
tional instruments which continuously informed the pilots of
their exact position. Yet those pilots falsified a series of posi-
tion reports to air traffic controllers to conceal their devia-
tion. While over the Sea of Japan off Sakhalin Island,
U.S.S.R., the plane was fired upon by a Soviet military
fighter and crashed, killing all aboard.
Prior proceedings
Actions were filed against KAL in various district courts
and transferred pursuant to 28 U.S.C. §§ 1404 and 1407 to
the United States District Court of the District of Columbia.
Plaintiffs’ complaints sought wrongful death and survival
damages against KAL, including claims for punitive damages
under federal maritime law.
4
Plaintiffs’ actions are governed by the 1929 Warsaw Con-
vention. This treaty together with the Montreal Agreement?
impose a damage cap of $75,000 on passenger death and
injury claims. The damage limitation and liability exclusions,
however, do not apply if the airline commits wilful miscon-
duct. Article 25 provides that an airline responsible for wilful
misconduct may not assert ‘‘the provisions of this Conven-
tion which exclude or limit . . . liability.’’
On July 17, 1989, a consolidated trial on liability (wilful
misconduct) and punitive damages commenced.
Shortly before the trial, KAL moved to dismiss plaintiffs’
punitive damage claims by asserting that the plaintiffs’ exclu-
sive cause of action was under the Warsaw Convention and it
barred punitive damages and preempted contrary federal
maritime law.
During the trial, the district court denied KAL’s motion to
dismiss plaintiffs’ punitive damage claims.
The jury verdicts of wilful misconduct and punitive
damages. On August 2, 1989, the jury rendered a special ver-
dict, finding that KAL committed wilful misconduct and was
a proximate cause of the passengers’ deaths.
In a subsequent verdict, the same jury awarded punitive
damages in the amount of $50,000,000 to be shared equally
by the plaintiffs (about $362,000 for each passenger’s fam-
ily).
KAL thereafter moved and the district court denied judg-
ment notwithstanding the verdicts or for a new trial. KAL
then appealed.
The Court of Appeais’ decision. On May 7, 1991, the
Court of Appeals for the District of Columbia Circuit unani-
mously affirmed the wilful misconduct verdict.
3 Agreement Relating to Liability Limitations of the Warsaw Conven-
tion and Hague Protocol, Agreement CAB 18900, Approved by Execu-
tive Order E-23680, May 13, 1966 (Docket 17325), 31 Fed. Reg. 7302
(1966), reprinted in Civil Aeronautics Board, Aeronautical Statutes
and Related Material 515-16 (1974).
5
By a 2-1 majority, however, the Court of Appeals vacated
the punitive damages award.
The majority opinion vacating the punitive damage
verdict. Two judges concluded that the Article 17 provision
that ‘‘[t]he carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger. . .’’ barred
recovery of punitive damages ailowed by federal maritime
law.
The majority found that while ‘‘the Convention does not
address the issue of punitive damages . . .’’, such recoveries
‘fare incompatible with the liability scheme set forth in
Article 17.’’ 932 F.2d at 1485-6, A-20-1. In the court’s view,
an award of punitive damages ‘‘would be contrary to the
expectations’’ of the treaty’s civil and common law drafters.
Id. at 1487, A-23.
The majority recognized the conflict among the circuits
regarding whether the Convention ‘‘preserves independent
domestic causes of action based on tort law’’ or ‘‘provides
the exclusive cause of action.’’ Jd. at 1488, A-25. But the
court stated: ‘‘[iJn deciding only that punitive damages are
contrary to the Convention, we need not take sides in the
exclusivity debate.’’ Ibid.
The court considered Article 24 which in relevant part
states that: ‘‘any action for damages, however founded, can
only be brought subject to the conditions and limits set out in
this convention . . . without prejudice to the questions as to
who are the persons who have the right to bring suit and
what are their respective rights.’’ The majority found that
“farticle 24 provides a clear textual basis for concluding that
the Convention overrides liability awards that are inconsistent
with Article 17.’’ Ibid.
The court also addressed the treaty’s Article 25 which
applied by virtue of the jury’s verdict that KAL committed
wilful misconduct. Article 25 provides that an airline respon-
sible for wilful misconduct may not assert ‘‘the provisions of
this convention which exclude or limit his liability . . .
”
6
The majority found ‘‘that the drafters would not have con-
sidered Article 17 a ‘limitation’ on liability’? under Article 25.
Id. at 1489, A-26. In reaching this conclusion, the majority
adopted the Second Circuit’s decision in Jn re Air Disaster at
Lockerbie, Scotland, 928 F.2d 1267 (2d Cir. 1991) (Locker-
bie).
Finally, the majority concluded that punitive damages were
contrary to the Convention’s goals because such awards
‘‘would increase the amount of litigation, the cost of insur-
ance, and ultimately the price of air transportation.’’ 932
F.2d at 1489, A-28.
The dissenting opinion on the punitive damage
verdict. The dissent, noting the conflict among the circuits
on the exclusivity issue, found that the Convention was not
the sole cause of action for passengers injured on interna-
tional flights: ‘‘Article 24’s reference to ‘any action for dam-
ages, however founded’ clearly contemplates actions arising
under separate sources of law. . .’’. Id. at 1492, A-33.
Thus, the dissent reasoned, plaintiffs could pursue their
federal maritime law punitive damage claims, subject to the
Convention’s limitations. Since KAL committed wilful mis-
conduct under Article 25, any Convention limitations—
including the punitive damage bar read by the majority into
the treaty—were inapplicable. Jd. at 1494, A-37.
According to the dissent, ‘‘the history as well as the lan-
guage of Article 25 supports the conclusion that punitive
damages are not prohibited by the Warsaw Convention in
cases of willful misconduct even if a cause of action based
solely on the Convention would not authorize such dam-
ages.’ Ibid.
The dissent observed that the majority opinion relied heav-
ily on the Second Circuit opinion in Lockerbie, but did not
expressly adopt Lockerbie’s holding that the Convention was
exclusive and preempted contrary law. Jd. at 1493, A-35. The
dissent concluded that “‘[i]f the court does not premise its
holding on an exclusivity rationale, it must mean that Article
a ee
17 acts as a limitation on the liability that an air carrier
would face when sued under separate causes of action. But
then Article 25 would some into play and waive any such lim-
itation in cases of wilful misconduct... .”’ lbid.
The dissent further observed that the Warsaw Convention
cannot preempt federal maritime law damages because both
laws ‘‘stand in rough equipoise under the Supremacy
Clause’’. Ibid.
Plaintiffs petition this Court for a writ of certiorari.
SUMMARY OF ARGUMENT
There are two compelling grounds for this Court to grant
certiorari and review the punitive damage decision below.
I. A conflict exists among circuit courts and state courts of
last resort as to whether the Warsaw Treaty provides the
exclusive cause of action for death or injury of a passenger in
an international aviation accident and bars the application of
other laws.
In barring the award of maritime law punitive damages,
the majority below relied heavily upon the Second Circuit in
Lockerbie. It held Warsaw established an exclusive cause of
action without punitive recoveries, but the majority below
declined to decide the exclusivity issue. The Lockerbie plain-
tiffs seek certiorari in a petition filed contemporaneously with
this petition.
The Ninth Circuit on three occasions and Virginia’s highest
court have held that Warsaw allows causes of action under
local law subject to the Convention’s rules.* Indeed, Article
24 provides that the treaty’s monetary damage limit applies
to ‘‘causes of action, however founded, . . .”’ whether based
4 Johnson v. American Airlines 834 F.2d 721 (9h Cir. 1987); Jn re
Mexico City Aircrash, 708 F.2d 400 (9th Cir. 1982); In re Air Crash in
Bali, Indonesia, 684 F.2d 1301 (9th Cir. 1982); Sheris v. Sheris Co.,
212 Va. 825, 188 S.E.2d 367, cert. denied, 409 U.S. 878 (1972).
sa tae ie ae
on civil law contract, common law tort, or other applicable
local precepts. (emphasis added). Warsaw’s drafters expressly
approved local law tort actions.
If Warsaw is not exclusive, then the verdict of maritime
law punitive damages must be reinstated. Wilful misconduct
found by the jury and unanimously affirmed below invokes
Article 25 to nullify any liability exclusion and thus justify
the punitive damage verdict.
This Court should determine whether the treaty permits a
verdict awarding punitive damages under federal maritime
law.
II. Certiorari should be granted because the majority
below amended the Convention to overturn an established
common law remedy contrary to recent decisions of this
Court on punitive damages and Warsaw’s interpretation.
The majority acknowledged that Warsaw does not mention
punitive damages and in Article 24 expressly preserves local
law remedies. Yet the court read the Convention as a civil
law accord which implicitly barred punitive damages.
This Court, however, recently considered the common law
as part of the treaty’s diverse background.* Common law
nations with a long punitive damage tradition participated in
drafting the Convention. No intent was ever expressed by
Warsaw’s framers to exclude punitive recoveries.
This Court has directed that existing common law remedies
must be preserved absent clear and express treaty language.°
And four recent decisions of this Court have rejected claims
that laws contain a tacit bar to punitive recoveries.’
5 Eastern Airlines v. Floyd, 111 S. Ct. 1489 (1991).
6 Guaranty Trust v. United States, 304 U.S. 126 (1938).
7 Pacific Mutual v. Haslip, 111 S. Ct. 1032 (1991); Browning-Ferris v.
Kelco Disposal, 492 U.S. 257 (1989); Silkwood v. Kerr-McGee, 464
U.S. 238 (1984); Smith v. Wade, 461 U.S. 30 (1984).
9
In construing the treaty, this Court has observed that
‘‘where the text is clear . . . we have no power to insert an
amendment.’ This Court should uphold Warsaw’s plain
terms and reinstate the award of maritime common law puni-
tive damages.
ARGUMENT
I. CERTIORARI SHOULD BE GRANTED TO RESOLVE
A CONFLICT AMONG THE CIRCUITS AND STATE
COURTS OF LAST RESORT OVER WHETHER THE
WARSAW CO”'VENTION TREATY CREATES AN
EXCLUSIVE CAUSE OF ACTION
This Court should decide whether the Warsaw treaty cre-
ates an exclusive cause of action barring punitive damages.
On three occasions, the Ninth Circuit has held that the
Convention is not exclusive and does not preempt, but allows
local law causes of action subject to the Convention’s rules.
Johnson v. American Airlines, 834 F.2d 721, 723 (9th Cir.
1987); In re Mexico City Aircrash, 708 F.2d 400, 405 n. 25
(9th Cir. 1982); Jn re Air Crash in Bali, Indonesia, 684 F.2d
1301, 1311 n. 8 (9th Cir. 1982). The Supreme Court of Vir-
ginia has held ‘‘that the Warsaw Convention does not create
an independent right of action but only a presumption of lia-
bility leaving it for local law to grant the right of action.”’
Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367, cert.
denied, 409 U.S. 878 (1972).
8 Chan v. Korean Air Lines, 490 U.S. 122, 135 (1989).
9 Three district court decisions in the Eleventh Circuit, together with
the district court reversed by Lockerbie, have held the Convention is
not exclusive and permits state law causes of action. A/varez v. Aero-
vias Nacionales de Columbia, 756 F.Supp. 550 (S.D.Fla. 1991);
Calderon v. Aerovias Nacionales de Columbia, 738 F.Supp. 485
(S.D.Fla. 1990), appeal dismissed, 929 F.2d 599 (11th Cir. 1991); Jn re
Hijacking of Pan American Aircraft at Karachi, 729 F.Supp. 17
(S.D.N.Y. 1990), rev’d, Lockerbie; Rhymes v. Arrow Air, 636 F.Supp.
737 (S.D.Fla. 1986).
10
The Second Circuit, Fifth Circuit and the Supreme Court
of Alabama created the conflict by holding the Convention to
be the exclusive cause of action and preempting local law.
Lockerbie, 928 F.2d at 1270; Boehringer-Mannheim Diagnos-
tics v. Pan American World Airways, 737 F.2d 456, 459 (Sth
Cir. 1984) (Convention exclusive and preempts recovery
under Texas law), cert. denied, 469 U.S. 1186 (1985); New-
some v. Trans International Airlines, 492 So. 2d 592, 599
(Ala.) (Warsaw exclusive and preempts state common law
causes of action), cert. denied, 479 U.S. 950 (1986).'°
The exclusivity-preemption issue has been the source of
successive contradictory decisions. Until 1978, the Second
Circuit held that no cause of action was established by the
treaty. See Benjamins v. British European Airways, 572 F.2d
913, 919 (2d Cir. 1978) (overruling prior case law which
required plaintiffs to base their cause of action outside the
treaty), cert. denied, 439 U.S. 1114 (1979). The Second Cir-
cuit then ruled that Warsaw created a cause of action, but
was not exclusive and allowed local law claims. Jbid; Tokio
Marine v. McDonnell Douglas, 617 F.2d 936, 942 (2d Cir.
1980). Most recently, Tokio Marine was overruled by Locker-
bie.
The majority below declared that ‘‘we need not take sides
in the exclusivity debate.’’ 932 F.2d at 1488, A-25. The court,
however, applied the Convention as plaintiff’s exclusive cause
of action by ruling that the Warsaw’s Article 17 ‘‘overrides’’
maritime law claims for punitive damages. Jbid.; Section II,
infra.
Exclusivity was necessarily indispensable to the majority’s
opinion because Article 25 directs that an airline responsible
for wilful misconduct ‘‘shall not be entitled to avail himself
of the provisions of this convention which exclude or limit
his liability... .”’
10 += Florida federal district court has held that the Convention creates
an exclusive cause of action. Velasquez v. Aerovias Nacionales de
Columbia, 747 F.Supp. 670 (S.D. Fla. 1990).
11
If plaintiffs’ federal maritime claims proceed subject to
Warsaw, any treaty bar to punitive damages would ‘‘exclude
or limit’? KAL’s liability. But KAL’s wilful misconduct
invokes Article 25 which denies KAL the benefit of such a
bar. The Convention cannot nullify the jury’s damage verdict
unless Warsaw both denies punitive recoveries and preempts
plaintiffs’ federal maritime law actions.
The majority below held that Warsaw’s ban on punitive
damages was absolute and applied despite KAL’s wilful mis-
conduct. The court based its ruling on Lockerbie, which held
that Article 17 created a passenger’s sole cause of action and
thus did not ‘‘exclude or limit . . . liability’? under Article
25. 932 F.2d at 1489, A-26 (‘‘we agree with the Second Cir-
cuit that the drafters would not have considered Article 17 a
‘limitation’ on liability.’’). As the dissent below observed:
The majority relies heavily on Lockerbie for the proposi-
tion that Article 25 does not trump Article 17, but there
the court had taken exclusivity as its starting point. It is
one thing to say that the Convention prohibits punitive
damages because it is the sole available cause of action
and does not provide for them; it is quite another to
conclude that Article 17 acts as a limitation on damages
restricting recovery under other causes of action that
allow punitive damages. Jd. at 1493, A-35 (dissent).
Federal maritime law and the Warsaw treaty share equal
stature under the Constitution. U.S. Const. art. VI, cl. 2
(‘‘the laws of the United States . . . and all treaties made
. . . Shall be the supreme law of the land. . .’’); Kossick v.
United Fruit, 365 U.S. 731, 739 (1961) (held federal maritime
law is supreme under Article 6 of the Constitution). Maritime
law allows for recovery of punitive damages in plaintiffs’ sur-
vival claims under established common law principles. Evich
v. Morris, 819 F.2d 256 (9th Cir.) (‘‘punitive damages are
available in a general maritime survival action . . .’’), cert.
denied, 484 U.S. 914 (1987); In re Merry Shipping, 650 F.2d
622 (Sth Cir. 1981) (‘‘punitive damages may be recovered
12
under general maritime law upon a showing of willful and
wanton misconduct. . .’’).
The treaty preserved and did not preempt plaintiffs’ mari-
time rights of action. Article 24 states that the Convention’s
limits and conditions apply to ‘‘any action for damages, how-
ever founded. . . .’’ (emphasis added). The Ninth Circuit
observed that ‘‘[t]he best explanation for the wording of
article 24(1) appears to be that the delegates did not intend
. the cause of action created by the Convention to be
exclusive... .’’ In re Mexico City Aircrash, 708 F.2d 400,
414 n. 25 (9th Cir. 1983).
The fundamental purpose of the Convention was to limit
recovery in international airline accident cases to $8,300
(Article 22), except when wilful misconduct is proved. Article
24 imposed that limitation on all causes of action, whether
based on civil law contract, common law tort, local statutes,
or whatever. Jn re Air Crash in Bali, Indonesia, 684 F.2d
1301, 1311 n. 8 (9th Cir. 1982) (‘‘the Convention has never
been read to /imit plaintiffs to a cause of action arising
thereunder, but rather to limit the recovery in suits for
injury.’’).
No language in the treaty states or implies that the Con-
vention prescribes the universal cause of action.
Warsaw’s drafters openly discussed and agreed that the
Convention permits local law tort actions. The chief United
States’ delegate to the 1955 Hague Convention reviewed the
treaty’s history, including the initial drafting conferences held
in Paris and Madrid by the International Technical Commit-
tee of Legal Aeronautical Experts (CITEJA). He concluded:
There is nothing in the Convention which automatically
makes the cause of action under Warsaw supercede all
other causes of action... .
Not only is the implication from the drafting of Article
24 clear that the possibility of tort action was contem-
plated, but this point was specifically raised in the pre-
liminary discussions held in Madrid by the Citeja.
13
There, during the debate on the draft text which ulti-
mately became Article 24, the committee discussed the
possibility of tort suits...
[N]o attempt was made by the framers of the Conven-
tion to outlaw the right of a plaintiff . . . to bring an
action in tort.
Calkins, The Cause of Action Under the Warsaw Conven-
tion, 26 J. Air. L & Com. 323, 327-8 (1959). Indeed, War-
saw’s drafters attempted but failed to reach agreement on a
single uniform cause of action. Internationa! Conference on
Private Aviation Law (Paris 1926) (‘‘[I]t is impossible to set
in a single formula the various legal concepts of the various
ee ©
From Warsaw’s inception, commentators have invariably
agreed that the treaty is not exclusive. Drion, Limitation of
Liabilities in International Air Law 135-6 (Martinus Nijhoff
1954) (Article 24 and its drafting history confirm that an
action may be ‘‘founded on the contract or brought outside
the contract as an action in tort. . .’’); Matte, Treatise on
Air-Aeronautical Law 382 (McGill University 1981), quoting
R.C. Ac. Haye, Vol Il, p. 285 (1934) (The Convention ‘‘set
new bounds on an action in liability, boundary limits, but
without regulating the essence itself.’’); Miller, Liability in
International Air Transport 235 (Kluwer 1977) (‘‘The phrase
“however founded’ in Article 24(1) shows that the drafters of
the Convention were aware that an action might be brought
on several possible grounds.’’).
The decisions which decree that Warsaw is exclusive are
bereft of supporting references to the treaty’s text, drafting
history and commentary.'' 932 F.2d at 1492, A-34 (dissent).
11 Four commentators extensively cited in Lockerbie—Miller, Drion,
Matte and Calkins—all conclude that the Convention is nof exclusive.
See p. 13, supra. And Lockerbie incorrectly states that ‘‘[t]he Ninth
Circuit has . . . rebutted the idea that a cause of action may be
14
Instead, the rationale of ‘‘uniformity’’ was used by those
courts to legislate an exclusive cause of action never contem-
plated by Warsaw’s drafters. Lockerbie, 928 F.2d at 1275;
Boehringer-Mannheim, 737 F.2d at 459.
A flood of additional federal court cases would follow
from a denial of certiorari or aff:rmance. All minor Warsaw
claims involving baggage, delay and injury would be vested
with federal question jurisdiction irrespective of the amount
of damages. 28 U.S.C. § 1331. And those same minor claims
would be removable from state courts. 28 U.S.C. § 1441(b).
Il. CERTIORARI SHOULD BE GRANTED BECAUSE
THE DECISION BELOW AMENDS THE CONVEN-
TION TQ UPSET AN ESTABLISHED COMMON LAW
REMEDY CONTRARY TO THIS COURT’S DECI-
SIONS ON PUNITIVE DAMAGES AND WARSAW’S
INTERPRETATION
Certiorari should be granted because the majority below
imposed a punitive damage bar contrary to the Convention,
long-standing common law, and basic rules of treaty con-
struction set down by this Court.
No Warsaw provision mentions punitive damages. The
majority acknowledged that ‘‘the Convention does not
address the issue of punitive damages .. .’’ 932 F.2d at
1485, A-20. Moreover, Article 24 provides that the Conven-
tion applied ‘‘without prejudice’’ to local damage laws and
the ‘‘respective rights” of the plaintiffs.’ The majority con-
ceded that ‘pursuant to Article 24 the proper ‘measure’ of
founded on some law other that the Convention . . .’’ 928 F.2d at
1274. While Lockerbie cited Mexico City Aircrash as supporting
authority, that decision along with other Ninth Circuit cases have
clearly held that the Convention permits local law causes of action.
Mexico City Aircrash, 708 F.2d at 405 n.25.
12. One noted commentator observed that under Article 24(2), ‘‘[t]he
criteria for determining the categories of recoverable damages [under
the Warsaw Convention] and the measure of damages vary greatly
from country to country. . . .”’ Drion, supra, at 125-6. ;
15
damages recoverable under Article 17 is left to the domestic
law of the contracting states . . .’’ 932 F.2d at 1488, A-25.
A punitive damage bar constitutes a judicial alteration of
Warsaw contrary to this Court’s admonition in Chan vy.
Korean Air Lines, 490 U.S. 112 (1989), that ‘‘we must. . .
be governed by the text [of the Warsaw Convention]. . .”’
and ‘‘where the text is clear. . . we have no power to insert
an amendment.’’ Jd. at 126-7.
This Court has ruled that a treaty may not overturn exist-
ing common law remedies absent clear and express language.
Guaranty Trust v. United States, 304 U.S. 126, 143 (1938);
see Trans World Airlines v. Franklin Mint, 466 U.S. 243, 252
(1984) (the treaty’s monetary damage limit could not be over-
turned in the face of ‘‘ambiguous congressional action
.... and ‘‘[ljegislative silence’); Herd & Co. v. Krawill
Machinery, 359 U.S. 297, 304 (1959) (‘‘No statute is to be
construed as altering the common law, farther than its words
import.’’).
Four recent decisions of this Court upheld punitive dam-
ages as an integral common law tort remedy and reject claims
that the Constitution or federal statutes contain a tacit bar on
punitive awards. Pacific Mutual v. Haslip, 111 S. Ct. 1032
(1991) (Fourteenth Amendment of the Constitution);
Browning-Ferris v. Kelco Disposal, 492 U.S. 257 (1989)
(Eighth Amendment of the Constitution); Si/kwood v. Kerr-
McGee, 464 U.S. 238 (1984) (Atomic Energy Act); Smith v.
Wade, 461 U.S. 30 (1983) (Civil Rights Act).
The majority below improperly read the treaty in the vac-
uum of a ‘‘civil law context’’. 932 F.2d at 1487, A-24. This
Court, however, recently held that common law tradition
should be considered in interpreting the Warsaw Convention.
Eastern Airlines v. Floyd, 111 S. Ct. 1489 (1991) (Court
relied on ‘‘the unavailability of compensation for purely psy-
chic injuries in many common and civil law countries at the
time of the Warsaw Conference’’). This Court has approved
consideration of the shared expectations of the treaty’s civil
and common law framers in construing the text, not whole-
16
sale adoption of civil law rules. Air France v. Saks, 470 U.S.
392, 399 (1985).
The treaty was drafted with common law participants
England and Australia, with the United States present as an
observer. This Court recognized that common law punitive
damages were recoverable in England and Australia, along
with the United States, for many years prior to and at the
time of the 1929 Convention. Pacific Mutual v. Haslip, 111
S.Ct. at 1041-2, 1047 (Scalia, J., concurring) (common law
punitive damages have existed in England and the United
States for over two hundred years).
Given that the treaty was drafted to apply to common law
Signatories, it was unreasonable for the majority below to
conclude from the treaty’s silence on punitive damages that
Warsaw’s drafters intended a punitive bar.'?
The majority held that Article 17’s imposition of liability
on airlines for ‘‘damages sustained’’ constituted an implicit
exclusion of punitive recoveries. The Second and Eleventh
Circuits reached the same conclusion. Lockerbie, 928 F.2d at
1282; Floyd v. Eastern Airlines, 872 F.2d 1462, 1487 (11th
Cir. 1989), rev’d on other grounds, 111 S. Ct. 1489 (1991).'*
-13.‘- The decision below restricts damage awards in common law nations
but grants civil law plaintiffs all available remedies, including moral
damages, which are based in part on the defendant’s degree of fault.
Lockerbie, 928 F.2d at 1282 (France and Germany allow fault based
damages in injury and death cases).
Warsaw signatories Australia, Canada and the United States allow
the recovery of common law punitive damages without limitation.
Browning-Ferris v. Kelco Disposal, 492 J.S. at 273 n. 18, 278 n.24
(1989). In 1964, thirty-five years after the Warsaw Conference, -
England imposed restrictions on punitive damages, but did not com-
pletely bar recovery. Ibid.
14.‘ Three district courts have held that the treaty bars punitive damages:
In re Disaster at Lockerbie, Scotland, 733 F. Supp. 547 (E.D.N.Y.
1990), affirmed by the Second Circuit, together with Jn re Air Crash at
Gander, Newfoundland, 684 F.Supp. 927 (W.D. Ky. 1987) and Harpa-
lani v. Air India, 634 F.Supp. 797 (N.D. Ill. 1986). Three district
courts have held that punitive damages are recoverable in treaty cases:
17
Article 17 affirmatively provides that ‘‘[t]ne carrier shall be
liable for damage sustained in the event of death. . . of a
passenger. . .’’ Article 17 does not define recoverable dam-
ages, but merely established the conditions precedent which
trigger an airline’s liability. Air France v. Saks, 470 U.S. at
397 (‘‘Articie 17 establishes the liability of international air
carriers for harm to passengers.’’); Miller, supra, at 125
(‘Article 17 . . . did not purport to regulate the type of
damage which could be compensated.’’).°
In the discussions at the Warsaw Conference and CITEJA
meetings concerning Article 17 and its predecessor articles,
there is no suggestion whatsoever that the treaty’s drafters
intended to eliminate existing rights of recovery or define
damages. Second International Conference on Private Aero-
nautical Law Minutes 166-7, 255 (Warsaw, 1929) (R. Horner
& D. Legrez trans. 1975).
In Smith v. Wade, 461 U.S. 30 (1983), this Court rejected
similar arguments that the phrase ‘‘for redress’’ in 42 U.S.C.
§ 1983 ‘‘means that Congress intended to limit recovery to
compensatory damages.’’ Jd. at 36 n. 5. This Court found
such a construction was ‘‘strained’’ and ruled that punitive
damages were recoverable under the statute. Ibid.
the district court below, reversed by the majority opinion, Jn re
Hijacking of Pan American Aircraft at Karachi, 729 F. Supp. 17
(S.D.N.Y. 1990), reversed by Lockerbie, and Hill v. United Airlines,
550 F.Supp. 1048 (D. Kan. 1982).
15 These conditions are: the death, wounding or bodily injury to a pas-
senger; an accident which caused the damage; and such accident taking
place on board the aircraft or in the course of any of the operations of
embarking or disembarking.
18
CONCLUSION
Certiorari should be granted to review the majority opinion
below.
On the Petition:
Respectfully submitted,
PLAINTIFFS’ TRIAL COMMITTEE
Attorneys for Petitioners
Milton G. Sincoff (Counsel of Record)
Steven R. Pounian
KREINDLER & KREINDLER
100 Park Avenue
New York, New York 10017
(212) 687-8181
—and—
Donald W. Madole
George E. Farrell
SPEISER, KRAUSE, MADOLE & LEAR
1216 Sixteenth Street, N.W.
Washington, D.C. 20036
(202) 223-8501
Milton G. Sincoff
Steven R. Pounian
APPENDIX
¥
}
4
INDEX TO APPENDIX
PAGE
Opinion of Court of Appeals for the District of
Columbia Circuit dated May 7, 1991 and reported at
ee Cee, BOE) cccccccccccvcececse A-l
Order of Court of Appeals for the District of Colum-
ee Be) A-52
Order of Court of Appeals for the District of Colum-
rr SU SD. POOR vveccccccccesccceees A-53
+ ee Gm.
A-l
Notice: This opinion is subject to formal revision before publication in
the Federal Reporter or U.S.App.D.C. Reports. Users are requested to
notify the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 1991 Decided May 7, 1991
No. 89-5415
IN Re Korean Air Lines Disaster OF
SEPTEMBER 1, 1983,
KorEAN Auk Lines Company, Lrrp.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(Civil Action No. 83-0345)
George N. Tompkins, Jr., with whom Desmond T: Barry,
Jr. was on the brief, for appellant.
Steven R. Pounian, with whom Milton G. Sincoff,
Donald W. Madole and George E. Farrell were on the brief,
for appellees, Philomena Dooley and 136 others. Juanita
M. Madole also entered an appearance for appellees.
Irene M. Solet and Robert S. Greenspan, Attorneys,
Department of Justice, entered appearances for the Fed-
eral appellees.
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
A-2
Thomas J. McLaughlin and Mary Rose Hughes entered
appearances for appellee The Boeing Company.
Before: Mikva, Chief Judge, BUCKLEY and THOMas,
Circuit Judges.
Opinion for the court filed by Chief Judge Mixva, except
as to Part II(C).
Opinion for the court as to Part II(C) filed by Circuit
Judge BUCKLEY.
Opinion dissenting in part filed by Chief Judge Mikva.
Mikva, Chief Judge: On September 1, 1983, a Korean
Air Lines (“KAL”) Boeing 747 airliner was shot down
somewhere over the Sea of Japan by one of the Soviet
Union’s SU-15 interceptor aircraft, killing all 269 persons
on board. The approximate crash site placed the flight
more than 300 nautical miles off course and in Soviet air-
space. Before trial, the district court granted summary
judgment for the United States on claims that it had
breached a duty to warn. See In re Korean Air Lines
Disaster of September 1, 1983, 646 F. Supp. 30 (D.D.C.
1986). In an appeal brought by the unsuccessful plaintiffs
in those cases, we upheld the district court’s decision. See
Wyler, et al. v. Korean Air Lines, Inc., et al., No. 86-5400
(D.C. Cir. Mar. 29, 1991). Additional background on the
disaster is provided in our opinion in the companion
appeal.
In this case, KAL appeals from a judgment entered
against it by the district court after a jury found KAL
guilty of willful misconduct and awarded damages to a
group of 137 plaintiffs; the award included $50 million in
punitive damages. KAL challenges both the willful mis-
conduct verdict and the assessment of punitive damages.
Although KAL raises some valid concerns about the qual-
ity of the evidence ~ulmitted to the jury, we conclude that
the finding of willful misconduct was permissible. How-
ever, we vacate the punitive damage award.
teeta enemies
A-3
I. BACKGROUND
On August 31, 1983, Korean Air Lines Flight 007
(“KE007”) left New York’s Kennedy Airport bound for
Seoul, South Korea, with a stop in Anchorage, Alaska.
After refueling there, KE007 took off from Anchorage
International Airport at 1300 Greenwich Mean Time
(“G.M.T.”), or 4:00 a.m. local time. The Anchorage Air
Traftic Control (“ATC”) Center instructed KE007 to
climb and maintain a flight level of 33,000 feet and
“proceed direct BETHEL when able.” BETHEL, located
approximately 360 nautical miles west of Anchorage, is
the navigational gateway for Route R20 of the North
Pacific Composite Route System, which operates like a
multi-lane highway for civilian flights across the Pacific
Ocean between North America and Asia. BETHEL also
serves as a navigational waypoint at which an airplane
can cross-check its position against a radio fix. Route R20
has a series of navigational waypoints with precise geo-
graphical coordinates, each about 300 miles apart, that
KE007 would follow on a direct path and use for course
verification and reporting purposes. These waypoints were
designated BETHEL, NABIE, NUKKS, NEEVA,
NINNO, NIPPI, NYTIM, NOKKA and NOHO. See Map
of the North Pacific (attached as an appendix to this
opinion). Position reports from the crew to ATC ground
controllers were required at BETHEL and _ other
waypoints up through NIPPI, some 1800 miles from
Anchorage. Anchorage ATC transfers control of aircraft
following Route R20 to Tokyo Center at waypoint NIPPI.
At the time that these events took place, Anchorage
ATC had radar coverage for less than half the distance
to BETHEL. The Federal Aviation Administration’s
(“FAA”) Kenai radar installation provided coverage as far
as Cairn Mountain, approximately 165 nautical miles west
of Anchorage. FAA radar surveillance was terminated at
1327:50 G.M.T. From that point on, Anchorage ATC |
would rely on the crew’s position reports (calculated in-
“flight with the help of the waypoints and on-board sys-
tems) to track KE007’s location and adherence to R20. At
| ae
A-4
1349 G.M.T., KE007’s pilot reported reaching BETHEL
and estimated that they would pass over their next
reporting waypoint. NABIE, at 1430 G.M.T.
After BETHEL, KE007 did not have any direct com-
munications with Anchorage ATC. During the remainder
of the flight, the crew reported reaching each successive
waypoint up to NIPPI, when Anchorage transferred con-
trol to Tokyo. These reports were relayed to Anchorage
ATC by another KAL flight, KE015, which had departed
Anchorage 14 minutes after KE007 and also was following
Route R20. At NABIE, KE007 should have been able to
communicate directly with Anchorage ATC through the F
St. Paul Island radio transmitter, but the crew was unable
to do so, having instead to relay the report through /
KEO15. KAL elicited testimony that this was not neces- /
sarily unusual and could be caused by weather. Plaintiffs
countered that such a problem was rare, and they sug-
gested that the direct broadcast was impossible because
KE007 was already 90 miles off course at NABIE and out
of the range of St. Paul Island’s radio. This happened
again at the next waypoint, NEEVA, where KE007 should
have reported by using the Sheyma Island radio station.
Evidently the pilot of KE015 became suspicious that
something was wrong when KE007 requested that he
relay this position report to Anchorage ATC, in part
because KE007’s time of arrival at that waypoint was nine
minutes late and the explanation KE007’s crew gave for
the delayed arrival (strong headwinds) conflicted with his
own observations just four minutes behind. Plaintiffs con-
tended at trial that the inability to use the Sheyma Island
radio station and the inconsistent headwind reports
resulted from the fact that KE0G7 was now 170 miles off
course and inside Soviet airspace.
After control of KE007 was transferred from Anchorage
ATC, the crew reported to the controllers in Tokyo that
they had reached NIPPI and estimated their time of
arrival at NOKKA as 1826 G.M.T. A subsequent accident
report concluded that the wind conditions reported by
KE007 at NIPPI did not match those experienced on R20
=
A-5
and were more consistent with a position over 200 miles
to the north-northwest over the Kamchatka Peninsula,
U.S.S.R. The final direct transmission from the KE007
crew to ground controllers was a report to Tokyo at
1827:10 G.M.T. that the plane was rapidly decompressing
and descending. The flight recorders and most of the
wreckage were never recovered, so the details of what
happened remain a mystery. However, contrary to KAL’s
suggestion, there was evidence from which to calculate an
approximate crash site, including intermittent acoustic
signals from an underwater flight recorder beacon
received by search vessels in the area along with debris
from the crash found in the Sea of Japan and washed
ashore on Hokkaido Island.
Plaintiffs’ liability claims in all of these actions grow
from a hypothetical flight deviation that they claim was
apparent on FAA radar shortly after take-off and could
be extrapolated across the entire route to the approximate
crash site in the Sea of Japan (after flying for about three
hours in Soviet airspace and crossing over the Karnchatka
Peninsula and Sakhalin Island). See Appendix. At trial,
plaintiffs attempted to establish willful misconduct by the
KE007 flight crew by theorizing that, due to an error in
programming the Inertial Navigation System (“INS”)
prior to departure from Anchorage, KE007 deviated from
its plotted course to Seoul and entered Soviet airspace.
The INS is a navigational device which stores pre-
programmed flight plans and displays data during the
flight showing present position, waypoint positions, and
any course deviations from the designated route. The INS
units use gyroscopes to calculate positions during flight,
and they must be programmed before takeoff by inserting
the exact coordinates for latitude and longitude at the
particular gate where the aircraft is parked.
At trial, plaintiffs contended that the crew must have
known of the misprogramming either before leaving
Anchorage or shortly thereafter, but decided to proceed
rather than turn back and face possible disciplinary action
such as suspension. Plaintiffs argue that the crew's loca-
i
A-6
tion reports were fabricated to cover up the error in pro-
gramming. Furthermore, according to the plaintiffs, the
crew must have been fully aware of the serious risk of
straying into Soviet airspace, given that a similar KAL
flight had been intercepted and forced down five years
earlier. In 1978, KAL flight 902 had strayed deep into sen-
sitive Soviet airspace near northern Europe, over 1000
miles off course. A Soviet fighter fired on the aircraft
when it took evasive maneuvers, forcing an emergency
landing on a frozen lake. This incident, which caused sev-
eral fatalities, was evidently discussed in subsequent KAL
training programs.
Plaintiffs’ evidence consisted of radar reports covering
‘the initial leg of KE00O7’s flight, an investigative report
completed by the Secretary General of the International
Civil Aviation Organization (“ICAO”) three months after
the incident (hereinafter referred to as the “ICAO
Report,” although KAL emphasizes that it was never offi-
cially adopted by the ICAO Council), expert testimony
from two pilots with extensive experience flying across the
Pacific, and reports of prior unrelated incidents involving
KAL navigation errors. At the close of plaintiffs’ case,
KAL moved unsuccessfully for a directed verdict. KAL
then introduced the testimony of the air traffic controllers
who monitored KE007 on radar and communicated with
its crew, the testimony from the Deputy United States
representative to ICAO and the report of the Air Naviga-
tion Commission (“ANC”) of ICAO criticizing the Secre-
tary General’s Report. The jury returned a liability verdict
against KAL, and in a subsequent verdict awarded plain-
tiffs $50 million in punitive damages. The trial judge
entered judgment on the verdict and denied KAL’s motion
for judgment notwithstanding the verdict (“JNOV”).
Il. ANALYSIS
On appeal, KAL argues (1) that there was insufficient
evidence of willful misconduct to support the jury’s ver-
dict; (2) that several pieces of evidence used to prove will-
A-7
ful misconduct (the ICAO Report, the expert testimony
based on that report, and the prior incidents) should not
have been admitted; and (3) that the award of punitive
damages was improper. We find merit in only the last of
these contentions.
A. Evidence of Willful Misconduct
Initially, KAL contends that the district court's final
jury instruction misstated the standard for willful miscon-
duct. KAL requested a definition of willful misconduct as
the “intentional performance of a wrongful act,” but alleg-
edly the court defined it only as the “intentional perfor-
mance of an act.” KAL has taken the actual instruction
out of context:
Willful misconduct is the intentional performance of
an act with knowledge that the act will probably
result in an injury or damage, or in some manner as
to imply reckless disregard of the consequences of its
performance.
This is precisely the formulation approved by this court
in KLM Royal Dutch Airlines v. Tuller, 292 F.2d 775, 778
(D.C. Cir.), cert. denied, 368 U.S. 921 (1968).
KAL’s primary argument on appeal! is that there was
no evidence from which a reasonable jury could find will-
ful misconduct. Both sides mischaracterize what evidence
was adduced at trial and for what purposes. In view of
what was actually presented to the jury, we conclude that
the evidence was not so one-sided that KAL was entitled
to a JNOV or new trial. Cf. In re Korean Air Lines Disas-
ter of September 1, 1983, 704 F. Supp. 1135, 1136-51
(D.D.C. 1988) (hereinafter “Jn re KAL Disaster”) (detail-
ing how each piece of plaintiffs’ evidence could fit into the
puzzle and what permissible inferences a jury might draw
therefrom). The hard evidence of what happened is
sparse: Anchorage radar showed that KE007’s initial
flight path was generally in the direction of waypoint
BETHEL (though plaintiffs introduced additional radar
evidence of a deviation appearing at this early stage in the
flight), and wreckage was discovered in the Sea of Japan
a
A-8
shortly after a distress call from the crew. Although the
exact crash site was never established, KAL does not deny
that KEO007 must have strayed hundreds of miles off
course to end up in or near the Sea of Japan. The ques-
tion is at what point did the flight go off course and why.
Plaintiffs’ theory, based in part upon the inconclusive
ICAO Report, posits that the deviation was caused by an
initial INS programming error that caused KE007 to stray
progressively further off course during the flight. KAL
emphasizes the flimsiness of this explanation but fails to
offer one of its own; it contends that KE007 was on course
throughout the flight across the Pacific until, for some
entirely mysterious reason, it veered dramatically off
course after waypoint NIPPI.
KAL argues that the radio transmissions from KE007’s
crew at each waypoint verify that they remained on course
along Route R20. Plaintiffs respond by pointing to suspi-
cious circumstances such as KE007’s inability to commu-
nicate directly with air traffic control in Anchorage
(having instead to relay its reports through KE015), and
reporting wind conditions that were inconsistent with
those encountered by KE015. KAL replies that the com-
munications and reported wind conditions were in no way
unusual, adding that these items could not provide evi-
dence of the supposed course deviation. But all that plain-
tiffs were trying to prove at this point was that the
uncorroborated reports from the crew were not persuasive
evidence of their being on course. Plaintiffs suggested that
the crew had a motive to lie because they knew they
would face suspension if they admitted their error and
turned back. A jury could legitimately discount the accu-
racy of those reports, in which case KAL’s version of the
probable flight path would be at least as speculative as
plaintiffs’ extrapolation. Given this lacuna, and the undis-
puted fact that the airliner was shot down hundreds of
miles off course, a jury could credit plaintiffs’ coherent
theory of what happened, derived from circumstantial evi-
dence such as the early radar reports of a mild course
deviation before BETHEL and the arguably inconsistent
wind reports.
A-9
A critical element in plaintiffs’ scenario is evidence that
a course deviation was evident as early as waypoint
BETHEL that grew progressively larger during the flight.
The FAA radar showed that halfway between Anchorage
and BETHEL, KE007 was six miles north (to the right)
of what would have been a direct heading toward the first
waypoint. Military radar data from the uncertified though
apparently accurate King Salmon station showed that
KE007 was 12 miles north of a direct heading shortly
before reaching BETHEL. Plaintiffs’ witnesses inter-
preted this evidence as indicating a drift off course,
extrapolating it to suggest at least a 12 mile deviation by
the time KE007 passed BETHEL (well outside the 1-2
mile margin of error allowed). KAL argues that KE007
could proceed toward BETHEL any way it wanted (the
ATC course clearance for R20 only applied once it left the
coast after BETHEL), and being six miles off the most
direct path at the half-way point and 12 miles off just
before BETHEL would not justify an extrapolation of a
12 mile deviation at BETHEL. But plaintiffs introduced
testimony that the flight would have reappeared on radar
if it had suddenly turned directly toward BETHEL. A jury
could reasonably believe plaintiffs’ explanation of a devia-
tion at BETHEL rather than KAL’s evidence to the con-
trary, see In re KAL Disaster, 704 F. Supp. at 1138, 1142,
and then extrapolate that deviation across the entire
flight to the approximate crash site, just as juries are nor-
mally permitted to draw conclusions from less than com-
plete direct evidence of what happened. This is not simply
a case where the district court let the jury chuose, on the
basis of mere speculation and conjecture, between hypo-
thetical scenarios of what happened. Contrast Siegel v.
Mazda Motor Corp., 878 F.2d 435, 437-39 (D.C. Cir. 1989)
(“When the record thus contains competing, unrebutted
hypotheses consistent with driver error [rather than a
mechanical defect in the transmission] ... we can discern
no basis upon which to say that any one of the possible
explanations is “more probable” than the others.”).
Contrary to KAL’s suggestion, plaintiffs did not simply
use the flight path postulated by the ICAO Report and
A-10
based on the Soviet version of the intercept. Even if this
aspect of the ICAO Report was arguably unreliable, a jury
could make its own evaluation based upon the evidence
supplied by plaintiffs and then accept the ICAO conclu-
sions of possible causes drawn from the assumed flight
path. Once the jury accepted plaintiffs’ extrapolated path,
the question becomes why the crew did nothing to correct
the error. Because the flight recorder was never recovered,
we only know that the crew claimed throughout the flight
that they were on course. As explained above, plaintiffs
discount these reports as fabrications. Plaintiffs’ experts
testified that, assuming the course deviation posited by
plaintiffs, the deviation was probably the result of an
error in programming the INS. The ICAO Secretary Gen-
eral reached the same tentative conclusion in his report.
Moreover, plaintiffs’ experts testified that the crew would
have known of the deviation or, if they did not, that their
ignorance was due to gross negligence in failing to check
their instruments. (The jury was also informed that the
ICAO Report concluded that the crew probably would not
have been aware of the error.) Plaintiffs then introduced
evidence of a 1978 Soviet intercept of a KAL flight to
prove that this crew would have known of the hazards of
straying into Soviet airspace.
Appellees add that even if one believed KAL’s claim
that KE007 stayed on course up to waypoint NIPPI, the
flight must have then turned suddenly in the direction of
Sakhalin Island to reach the crash site. KAL responds
that if this were the correct scenario, there would be no
basis for a finding of willful misconduct. However, the
crew could not have failed to notice such a glaring devia-
tion, and their failure to notify ATC until after they were
decompressing suggests willful misconduct. Appellees are
not using this as a fallback scenario so much as they are
emphasizing KAL’s inability to suggest any innocent
explanation for the disaster. Admittedly, plaintiffs’ case
at trial did not include any “smoking guns,” but that is
because no one knows exactly what happened. There was
sufficient evidence here from which to decipher a pattern
A-ll
of conduct giving rise to liability. If the only evidence for
the proposed course deviation had been the wreckage in
the Sea of Japan, plaintiffs could not have prevailed sim-
ply by drawing a straight line from Anchorage and argu-
ing that the crew would have known of this course
deviation but chose to cover it up. Here there was addi-
tional, albeit not uncontroverted, evidence that a course
deviation appeared almost immediately after take-off,
consistent with a 10 degree error in setting the INS longi-
tude coordinate at Anchorage, combined with somewhat
suspicious radio reports from the crew. When “questions
{of willful misconduct] depend upon inferences to be
drawn from essentially circumstantial evidence ... [o]ne
can hardly imagine a clearer case in which such questions
should have been left to the jury.” Berner v. British Com-
monwealth Pacific Airlines, 346 F.2d 532, 538 (2d Cir.
1965) (reversing JNOV for plaintiffs in an air crash case),
cert. denied, 382 U.S. 983 (1966).
B. Evidentiary Rulings
1. The ICAO Report and Plaintiffs’ Expert Testimony
KAL objects to the introduction of the ICAO Report
(and the appended Soviet intercept report), contending
that it was hearsay not within the public records excep-
tion of Rule 803(8), Fep. R. Evip. That rule provides, in
pertinent part, that the following are not hearsay:
Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting forth
... factual findings resulting from an investigation
made pursuant to authority granted by law, unless
the sources of information or other circumstances
indicate lack of trustworthiness.
Fep. R. Evip. 803(8)(C). “Rule 803(8)(C) is to be applied
in a commonsense manner, subject to the district court’s
sound exercise of discretion ....” City of New York v.
Pullman Inc., 662 F.2d 910, 914 (2d Cir. 1981), cert.
denied, 454 U.S. 1164 (1982). KAL argues that there were
no “factual findings” because the final report from the Sec-
retary General — criticized for lacking hard evidence from
A-12
which to draw its conclusions — was never adopted by the
ICAO Council. KAL also contends that the sources of the
Report’s information concerning the probable flight path,
especially the so-called “Russian line” provided in the
Soviet intercept report, lacked trustworthiness. Finally,
KAL argues that admission of the ICAO Report contra-
vened Rule 403, FED. R. Evip., because the jury was misled
into believing that the conclusions were authoritative.
We disagree with KAL’s characterization of the Report
as non-final. By a special resolution passed a few weeks
after the disaster, the ICAO Council directed “the Secre-
tary General to institute an investigation ... and to pro-
vide an interim report to the Council within 30 days ...
and a complete report during the 110th Session of the
Council.” After first giving the Council an interim report
as required by the resolution, the Secretary General ulti-
mately provided his “final report” to the Council, although
he qualified it by conceding that the report was based on
incomplete evidence and promising to supplement the
Report if any new information came to light. The minutes
of the Council session indicate the submission of the Sec-
retary General’s “final report” on December 12, 1983. The
Council had the power to endorse or ignore the Report
but apparently not revise it. Cf. New York v. Pullman, 662
F.2d at 914 (“As an interim report subject to revision and
review, the report did not satisfy the express requirement
of the Rule that the proffered evidence must constitute
the ‘findings’ of an agency or official.”). After sending the
Report to the Air Navigation Commission for review and
comment to determine whether any changes should be
made in ICAO’s Rules of the Air in light of the incident,
the Council chose not to endorse it. Even so, the Secre-
tary General was acting in the capacity of a public official
when he conducted “an investigation made pursuant to
authority granted by law” (in this case, the special resolu-
tion) and issued his final report. Cf. In re Multi-Piece
Rims Prods. Liab. Lit., 545 F. Supp. 149, 151 (W.D. Mo.
1982) (admitting letters from NHTSA employee acting in
an official capacity and describing evaluative tests).
|
|
A-13
We are somewhat more troubled, however, with the dis-
trict court’s resolution of the trustworthiness question
under Rule 803(8)(C). Although the ICAO Report was
based on very limited hard evidence, this alone would not
undermine its finality or trustworthiness. See Beech Air-
craft v. Rainey, 488 U.S. 153, 168 (1988) (upholding the
“broad admissibility” of facts, conclusions, evaluations
and opinions contained in an aircraft accident report,
because “the admission of a report containing ‘conclu-
sions’ is subject to the ultimate safeguard—the opponent’s
right to present evidence tending to contradict or diminish
the weight of those conclusions”). In this case, the district
court let KAL introduce the ANC report criticizing the
Secretary General’s report. But KAL’s trustworthiness
objection focuses on the Preliminary Soviet Report
appended to the ICAO Report and the Secretary General's
use of the uncorroborated “Russian line” in arriving at his
conclusions. Among other problems with the Soviet
report, KAL claims that it was politically motivated, seek-
ing to exonerate the Soviet Union's actions. Standing
alone, we doubt that the Soviet report would have been
admissible under Rule 803(8)(C), but its inclusion as an
appendix to the ICAO Report would not automatically
render the Secretary General’s otherwise admissible
report objectionable. See FAA v. Landy, 705 F.2d 624, 633
(2d Cir.) (“As a statement by a foreign government to the
federal government, incorporated in the FAA’s factual
findings resulting from an investigation made pursuant to
authority granted by law, the [German] telex was admissi-
ble as a public record and report under Fed.R.Evid.
803(8)(C).”), cert. denied, 464 U.S. 895 (1983).
The more difficult question is whether the alleged
untrustworthiness of the Soviet report renders the ICAO
Report inadmissible on those same grounds, at least those
portions based in part on the Russian intercept line. Rule
803(8)(C) “assumes admissibility in the first instance but
with ample provision for escape if sufticient negative fac-
tors are present.” Fep. R. Evin. 803 advisory committee
note. “The burden is on the party disputing admissibility
A-14
to prove the factual finding to be untrustworthy.” l/nited
States v. American Tel. & Tel. Co., 498 F. Supp. 353, 364
(D.D.C. 1980); accord In re Aircrash in Bali, Indonesia,
87! F.2d 812, 816 (9th Cir.), cert. denied, 110 S. Ct. 277
(1989). In Rainey, the Supreme Court observed that “a
trial judge has the discretion, and indeed the obligation,
to exclude an entire report or portions thereof ... that she
determines to be untrustworthy.” 488 U.S. at 167. While
the Soviet report may have been particularly untrustwor-
thy in its rendition of the actual intercept (indeed, in a
recent interview with Izvestia, the Soviet pilot responsible
for the shootdown disputed the sanitized official version,
see Wash. Post, Jan. 25, 1991, at Al6), the radar track
itself was generally believed by several sources, including
the United States government. At a news briefing on the
day of the incident, the Secretary of State told reporters
that KE007 “strayed into Soviet airspace over the Kam-
chatka Peninsula” and was tracked by the Soviets “for
some 2-1/2 hours.”
The district court clearly understood its duty to make
a threshold trustworthiness finding and recognized its
power to exclude any portions of the Report it felt were
untrustworthy. KAL’s counsel effectively conceded that
the factual section of the ICAO Report (contained in the
first 35 pages) was admissible. The district court initially
decided not to admit one section of the ICAO Report dis-
cussing the Russian intercept line, but then let even that
part in when KAL’s counsel retracted his initial objection
to the section standing alone. The district court decided
that KAL’s trustworthiness objections were more properly
addressed to the jury for purposes of evaluating the
weight to be accorded the Secretary General’s conclusions:
“{Yjou might convince the jury that it is not worth the
paper it is written on, but I am not going to throw the
whole report out just because they might believe that in
this particular case.” Not surprisingly, the transcript of
the district court’s decision from the bench lacks the clar-
ity of a written opinion. In hindsight, we would rather the
court had made explicit preliminary findings, preferably
A-15
in limine, as to the trustworthiness of each challenged
portion of the ICAO Report. But mindful that the burden
was and is on KAL, we are not convinced that the court
failed to carry through on its duties under Rules 104(a)
and 803(8) or abused its discretion when it admitted the
ICAO Report in its entirety.
Furthermore, as explained previously, plaintiffs did not
rely on the Secretary General’s report (or the Soviet inter-
cept report) to establish the probable flight path. Instead,
once the jury accepted plaintiffs’ extrapolation, the ICAO
Report helped fill the causation gap by evaluating the
likelihood that an INS programming error was at fault.
Indeed, even the ANC Report that KAL introduced to
criticize the ICAO Report confirmed that there was a
“significant deviation from track” that could not be
explained. The danger, of course, is that the jury was also
presented with the ICAO Report’s working assumption
based on the Russian line, and this may well have influ-
enced their willingness to believe plaintiffs’ extrapolation.
Even so, this is precisely the sort of judgment call by the
trial judge that is entitled to deference on appeal and will
not be disturbed absent clear error. See United States v.
Payne, 805 F.2d 1062, 1066-67 (D.C. Cir. 1986) (per
curiam). The district court did not abuse its discretion
under Rules 803(8)(C) and 403.
Finally, KAL criticizes the admission of testimony by
plaintiffs’ experts, again because of the supposed lack of
any basis, other than the ICAO and Soviet reports, for the
assumed deviation from which all their opinions sprang.
Appellees respond that both experts were qualified pilots
with significant trans-Pacific experience, and that the
ICAO Report was a legitimate source for them to rely on.
Because we have decided that the ICAO Report was prop-
erly admitted, the expert testimony is also unobjection-
able.
2. Evidence of Prior Incidents
Plaintiffs introduced evidence of prior KAL incidents
to suggest that the crew knew they risked suspension if
A-16
they returned to Anchorage for reprogramming, and that
the crew was aware of the hazards of straying into Soviet
airspace. KAL objects that evidence of these prior inci-
dents was irrelevant and unduly prejudicial. Rule 404(b),
Fev. R. Evip., allows the admission of evidence concerning
“prior bad acts” in limited circumstances, to prove
“motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident.” It is of
course true that a prior incident must be sufficiently simi-
lar to be probative of intent or motive in relation to the
incident at issue. See, e.g., Edwards v. Consolidated Rail
Corp., 567 F. Supp. 1087, 1105-06 (D.D.C. 1983), aff'd
mem., 733 F.2d 966 (D.C. Cir.), cert. denied, 469 U.S. 883
(1984).
In this case, plaintiffs sought to demonstrate through
circumstantial evidence what the crew of KE007 knew or
should have known about the consequences of their con-
duct and also to rebut KAL’s suggestion that misprogram-
ming was impossible or correctable en route. These are
permissible ends that do not require the exacting degree
of similarity that would be necessary when using prior bad
acts to prove specific intent or motive. See Exum v. Gen-
eral Elec. Co., 819 F.2d 1158, 1162-63 (D.C. Cir. 1987)
(“How substantial the similarity must be is in part a func-
tion of the proponent’s theory of proof,” and a theory of
notice “imposes aé_ less rigorous requirement of
similarity.”).
KAL aeserts that it never claimed misprogramming was
impossible or that crews did not know about the hazards
of intruding Soviet airspace. Neither statement is entirely
correct. While the evidence of these prior incidents was
no doubt somewhat prejudicial, plaintiffs appear to have
introduced it for permissible purposes. See, e.g., United
States v. Payne, 805 F.2d at 1066-67. Knowledge (not spe-
cific intent or motive) was a relevant issue, notwithstand-
ing KAL’s mild concession in opening argument that the
crew would have known of the dangers of flying into
Soviet airspace. If KAL wanted to remove the issue from
trial so as to exclude evidence of the 1978 shootdown, a
attic aetna
-
ar ails pate tte re CICS:
A-17
pre-trial stipulation might have done the trick. In fact,
before trial KAL was arguing that the intercept was an
unforeseeable, superseding cause of the disaster, a claim
the court felt had to be left to the jury. See Jn re KAL
Disaster, 704 F. Supp. at 1149 & n.37. We conclude that
the evidence of prior incidents was properly admitted at
trial.
A-18
C. Punitive Damages
BuckLey, Circuit Judge: These consolidated wrongful
death actions are governed by the terms of the Warsaw
Convention, a multilateral treaty to which the United
States has adhered since 1934. See Convention for the
Unification of Certain Rules Relating to International
Transportation by Air, Oct. 12, 1929, Article 1(1), 49 Stat.
3000, T.S. No. 876 (1934), reprinted in 49 U.S.C. app.
§ 1502 note (1988). Relying on Floyd v. Eastern Airlines,
872 F.2d 1462, 1483-89 (11th Cir. 1989) (“Floyd I”), rev'd
on other grounds, 59 U.S.L.W. 4307 (U.S. Apr. 17, 1991),
KAL argues that the Convention disallows awards of puni-
tive damages and that the district court therefore erred in
submitting the issue to the jury. KAL’s position was
recently adopted by the Second Circuit in Jn re Air Disas-
ter at Lockerbie, Scotland, on Dec. 21, 1988, No. 90-7388,
slip op. 2927 (2d Cir. Mar. 22, 1991) (“Lockerbie”).
Plaintiffs maintain that punitive damages are permitted
whenever they are available under applicable local law
and, in any event, should be recoverable once it is shown
that the carrier acted with willful misconduct. For the rea-
sons that follow, we agree with KAL and our sister cir-
cuits; hence, we set aside the jury’s award of punitive
damages.
The Warsaw Convention establishes the liability of
international air carriers for harm to passengers, baggage,
or goods; fixes limitations on such liability; and achieves
a degree of uniformity in documentation and in the proce-
dures and substantive law applicable to claims arising out
of international air carriage. See Lowenfeld & Mendel-
sohn, The United States and the Warsaw Convention, 30
Harv. L. Rev. 497, 498-500 (1967). The central purpose
of the Convention is to limit the liability of air carriers.
The contracting states in 1929 believed that limitations
on liability would promote the development of the fledg-
ling commercial air industry by allowing the airlines to
predict their exposure to monetary damages and thereby
obtain needed capital and adequate insurance coverage.
A-19
See Eastern Altrlines v. Floyu, 59 U.S.L.W. 4307, 4312
(U.S. Apr. 17, 1991) (“Floyd II”); Lockerbie, slip op. at
2934; Reed v. Wiser, 555 F.2d 1079, 1089 (2d Cir.), cert.
denied, 434 U.S. 922 (1977); Lewenfeld & Mendelsohn,
supra, 80 Harv. L. Rev. at 498-500.
Article 17 of the Convention defines a carrier’s liability
for harm to passengers. See Air France v. Saks, 470 U.S.
392, 397 (1985). Article 17 provides:
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 course of any of
the operations of embarking or disembarking.
Article 24 allows contracting states to decide the stand-
ing and “respective rights” of claimants who seek recovery
under Article 17, provided that “any action for damages,
however founded, can only be brought subject to the con-
ditions and limits set out in this convention.” Under Arti-
cle 25, a carrier “shall not be entitled to avail himself of
the provisions of this convention which exclude or limit
his liability” when it is shown that the damage suffered
by the claimant was caused by the carrier’s “willful
misconduct,” as defined by the law of the forum court.
Under the Convention as originally ratified, Article
22(1) limited the carrier’s Article 17 liability to approxi-
mately $8,300, and Article 20(1) allowed the carrier to
avoid liability altogether by proving that it acted with due
care. See Floyd I, 872 F.2d at 1467. With respect to flights
to or from the United States, these provisions were super-
seded by the Montreal Agreement, an agreement among
air carriers executed in 1966 and approved by the Civil
Aeronautics Board pursuant to its authority under the
Federal Aviation Act of 1958. In the Montreal Agreement,
air carriers raised the per passenger liabilitv limit to
$75,000 and assumed virtual strict liabiiity for death or
injury of passengers by waiving their due care defenses
under Article 20(1). See Crder of Civil Aeronautics Board
a aetna meamaaina iain ieee ae
A-20
Approving Increases in Liability Limitations of Warsaw
Convention and Hague Protocol, May 13, 1966 (approving
Agreement CAB 18900), 31 Fed. Reg. 7302 (1966),
reprinted in 49 U.S.C. app. § 1502 note. KAL has been a
party to the Montreal Agreement since 1969. See Chan v.
Korean Air Lines, 490 U.S. 122, 124 (1989).
Whether punitive damages are allowable in actions gov-
erned by the Warsaw Convention must, in our opinion,
turn on the nature of the liability contemplated by Article
17. The Convention sets forth an international liability
scheme that was intended to be uniform. See Lockerbie,
slip op. at 2956-57; Floyd I, 872 F.2d at 1488. We must
honor this uniformity by “giv[ing] the specific words of
the treaty a meaning consistent with the shared expecta-
tions of the contracting parties.” Saks, 470 U.S. at 399.
If a recovery is inconsistent with the shared expectations
underlying Article 17, it is precluded. See Lockerbie, slip
op. at 2961-62; Floyd J, 872 F.2d at 1487. Cf. Floyd II, 59
U.S.L.W. at 4309, 4311 (term “bodily injury” in Article 17
excludes recovery for purely mental injuries); Saks, 470
U.S. at 405 (“accident” requirement precludes liability
under Article 17 unless injury caused by unexpected or
unusual event external to passenger).
Although the Convention does not address the issue of
punitive damages, the Article 17 phrase “liable for damage
sustained” strongly implies that the carrier's responsibil-
ity is compensatory and extends only to the reparation of
loss resulting from the death or injury of passengers. See
Floyd I, 872 F.2d at 1483, 1486; Jn re Air Crash Disaster
at Gander, Newfoundland, 684 F. Supp. 927, 931 (W.D.
Ky. 1987) (“Gander”). The words “damage sustained” do
not refer to legal damages; they refer to actual harm expe-
rienced, whether physical injury to the passenger or, in
the case of death, monetary or other loss to his survivors.
See Lockerbie, slip op. at 2959; see also Calkins, The Cause
of Action Under the Warsaw Convention (pt. 2), 26 J. Air
L. & Com. 323, 335 (1959). Article 17 does not specify that
the damage must be sustained “by the passenger” and thus
allows for the possibility of traditional wrongful death
A-21
actions. The requirement that the damage “so sustained”
be “caused” by an accident on board the aircraft, however,
reenforces the conclusion that recovery is available only
for actual loss; an accident cannot “cause” punitive dam-
ages. Lockerbie, slip op. at 2959-60.
French is the controlling language of the Convention.
See Article 36; Floyd II, 59 U.S.L.W. at 4309; Saks, 470
U.S. at 397. The relevant phrase in French is “dummage
survenu.” The parties have not suggested that this phrase
carries any special meaning in French law, and we are sat-
isfied that “damage sustained” in the official American
version of Article 17 — the version ratified by the Senate
in 1934 — is an accurate translation of “dummage
survenu.” See Lockerbie, slip op. at 2958-59; Floyd 1, 872
F.2d at 1486-87; Gander, 684 F. Supp. at 931.
The wording of Article 17 thus describes liability for
compensatory or actual damages — that is, damages that
“will compensate the injured party for the injury sus-
tained ... [or] will simply make good or replace the loss
caused by the wrong or injury.” Black's Law Dictionary
352 (5th ed. 1979). In contrast, punitive damages are rec-
ognized by federal courts as retributive and deterrent in
nature. See Lockerbie, slip op. at 2937-38; Floyd 1, 872 F.2d
at 1487. They “are not compensation for injury,” but
rather are awarded “to punish reprehensible conduct and
to deter its future occurrence.” IBEW v. Foust, 442 U.S.
42, 48 (1979) (quoting Gertz v. Robert Welch, Inc., 418 U.S.
323, 350 (1974)). “Their role therefore ‘runs counter to the
normal reparative function of tort and contract
remedies.” Browning-Ferris Indus. v. Kelco Disposal, Inc.,
109 S. Ct. 2909, 2932 (1989) (O’Connor, J., concurring in
part and dissenting in part) (quoting K. Redden, Punitive
Damages § 2.1, at 24 (1980)). The purposes served by
punitive damages are incompatible with the liability
scheme set forth in Article 17. See Floyd J, 872 F.2d at
1487.
In Lockerbie, the Second Circuit pointed out that a
minority of state courts in the United States view punitive
A-22
or exemplary damages as serving, at least in part, a
“compensatory” function. Lockerbie, slip op. at 2938-39.
The court concluded, however, that the Warsaw Conven-
tion preempts all state-law causes of action; otherwise, the
uniform application of the Convention would be disrupted
by the uneven patchwork of state punitive damages theo-
ries (a potential problem in diversity suits arising in states
that adhere to the minority view). See id. at 2944-52. We
need not reach this preemption question because plain-
tiffs here base their claim to punitive damages solely on
federal maritime law. See Brief for Appellees at 29, 35-36.
Our construction of the Convention does not end with
a word-by-word parsing of Article 17. We may properly
look to the larger context of the Convention and its his-
tory, including the negotiations of its drafters and the
interpretations given it by contracting states. See Floyd I],
59 U.S.L.W. at 4309; Saks, 470 U.S. at 396-97. In doing
so, we must interpret and apply the terms of Article 17
in accordance with their French legal meaning because the
Convention was drafted in’French by civil law jurists.
Floyd II, 59 U.S.L.W. at 4309; Saks, 470 U.S. at 399; see
Block v. Compagnie Nationale Air France, 386 F.2d 323,
330 (5th Cir. 1967), cert. denied, 392 U.S. 905 (1968).
Nothing in the minutes and notes of the Convention’s
drafters indicates that the contracting parties ever consid-
ered the concept of punitive or deterrent damages for pas-
sengers’ deaths. See Lockerbie, slip op. at 2958; Floyd I,
872 F.2d at 1487. The drafting history does indicate, how-
ever, that the drafters intended the carrier’s liability to
be contractual in nature. See Second International Confer-
ence on Private Aeronautical Law: Minutes (Warsaw 1929),
at 22 (R. Horner & D. Legrez trans. 1975) (“Warsaw
Minutes”) (“The system of liability of the Convention is
based only upon the document of carriage.”) (statement
of Henri De Vos, reporter).
The kinds of damages available in French civil actions
founded on contract parallel the compensatory forms of
monetary recovery available in American tort suits. See
A-23
Lockerbie, slip op. at 2954-56, 2960. One commentator has
observed, “There is nothing in French law prohibiting
compensation for any particular kind of damage, be it
mental injury, suffering due to the death of a member of
the family, or pain and suffering due to a physical injury.
Provided the damage is certain and direct, all forms of
damage can be compensated to their full extent.” G. Mil-
ler, Liability in International Air Transport 112 (1977)
(emphasis in original) (footnote omitted). The French
concept of dommage matériel provides compensation for
pecuniary loss resulting from death or injury; dommage
moral is roughly equivalent to compensatory damages for
nonpecuniary loss, such as pain and suffering. See R.
Mankiewicz,. The Liability Regime of the International Air
Carrier 157 (1981); G. Miller, supra, at 112-14.
These notions of recoverable damages are compensa-
tory and not punitive in character. The same can be said
of the kinds of recovery afforded by other civil law con-
tracting states, such as Germany. See Lockerbie, slip op.
at 2960-61. The Warsaw Convention practice of the prin-
cipal common law contracting party, Great Britain, is con-
sistent with this understanding. Although English courts
in tort contexts do permit punitive damages in “unique -
and rare circumstances,” id. at 2961 (citing Roukes v. Bar-
nard, {1964} 1 All E.R. 367, 410 (H.L.) (Lord Devlin)),
they have construed “dommage” in Article 17 to encom-
pass only “monetary loss.” See id. at 2959 (citing
Fothergill v. Monarch Airlines Ltd., [1981] App. Cas. 251,
[1980] 2 All E.R. 696, [1980] 2 Lloyd’s Rep. 295, 299
(H.L.) (Lord Wilberforce)). We conclude, therefore, that
a monetary liability that is punitive and does not compen-
sate for loss suffered would be contrary to the expecta-
tions of the jurists who drafted Article 17 and the
contracting states that adopted it.
This conclusion comports with our obligation to con-
strue the Convention in a manner that will promote uni-
formity. See Floyd IJ, 59 U.S.L.W. at 4313. The uniform
application of the treaty would be threatened if the
United States, alone among contracting states, imposed
A-24
a form of liability wholly outside the compensatory
scheme of Article 17. See Lockerbie, slip op. at 2974-75;
Floyd I, 872 F.2d at 1487-88. Undoubtedly, punitive liabil-
ity for international carriers “would be controversial for
most signatories,” and we should construe the Convention
to avoid such a “potential source of divergence.” Floyd 1],
59 U.S.L.W. at 4313.
In challenging our reading of “damage sustained,”
plaintiffs rely on Smith v. Wade, 461 U.S. 30, 36 n.5
(1983), in which the Supreme Court dismissed the argu-
ment that the phrase “for redress” in 42 U.S.C. § 1983
precludes recovery of punitive damages. Smith only con-
firms our analysis. In addition to noting that the tort
cause of action created by section 1983 is expansive, 461
U.S. at 36 n.5, the Court relied on the common law con-
text in which Congress enacted section 1983, a context in
which punitive damages were a well-established tort rem-
edy. See id. at 35, 37 n.5. Cf. Silkwood v. Kerr-McGee
Corp., 464 U.S. 238, 255 (1984) (federal regulation of
nuclear plant safety does not preempt punitive damages
award because “Congress assumed that traditional princi-
ples of state tort law would apply with full force unless
. expressly supplanted”). Similarly, we may infer from
its civil law context that Article 17 does not contemplate
the award of punitive damages.
Plaintiffs argue that Article 24’s references to actions
for damages “however founded” and to claimants’
“respective rights” make the availability of punitive dam-
ages a matter of local law. But Article 24 requires that
any action for damages within the scope of the Conven-
tion satisfy the Convention's “conditions and limits.” This
requirement ensures the uniform application of the Con-
vention. See N. Matte, Treatise on Air-Aeronautical Law
419 (1981). The most natural reading of the treaty is that
the terms of liability established by Article 17 are among
the “conditions” enforced by Article 24. See Calkins,
supra, 26 J. Air L. & Com. at 327 (“conditions and limits”
language in Article 24 designed “to protect the Conven-
tional cause of action,” 12., Article 17); see also G. Miller,
A-25
supra, at 125 (“What Article 17 does is to determine the
conditions under which an air carrier shall be liable.”);
Floyd II, 59 U.S.L.W. at 4308. Thus, Article 24 provides
a clear textual basis for concluding that the Convention
overrides liability awards that are inconsistent with Arti-
cle 17.
Some courts and commentators have concluded that
Article 24 preserves independent domestic causes of
action based on tort law. See, e.g., [n re Aircrash in Bali,
Indonesia, on Apr. 22, 1974, 684 F.2d 1301, 1311 n.8 (9th
Cir. 1982); Calkins, supra, at 327. Others disagree, taking
the view that the Convention, when applicable, provides
the exclusive cause of action. See, ey., Boehringer-
Mannheim Diagnostics, Inc. v. Pan Am. World Airways,
737 F.2d 456, 458 (5th Cir. 1984), cert. denied, 469 U.S.
1186 (1985). See also Floyd I, 872 F.2d at 1482 n.33 (dis-
cussing cases). In deciding only that punitive damages are
contrary to the Convention, we need not take sides in the
exclusivity debate.
Regardless of their views on independent causes of
action, most authorities agree that pursuant to Article 24
the proper “measure” of damages recoverable under Arti-
cle 17 is left to the domestic law of the contracting states.
See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1002
(9th Cir. 1987); Mertens v. Flying Twer Line, 341 F.2d 851,
858 (2d Cir.), cert. denied, 382 U.S. 816 (1965); R. Man-
kiewicz, supra, at 189; H. Drion, Limitation of Liabilities
in International Air Law 125-26 (1954). This fact, how-
ever, begs the question whether such damages may be
more than compensatory.
We think it evident they may not. In reporting the pre-
liminary draft of the proposed treaty to the national dele-
gates at Warsaw, the International Technical Committee
of Air Law Experts (“CITEJA”) stated:
The question was asked ... if one could determine
who the persons upon whom the action devolves in
the case of death are, and what are the damages sub-
ject to reparation. It was not possible to find a satis-
A-26
factory solution to this double problem, and the
CITEJA esteemed that this question of private inter-
national law should be regulated independantly |sic]
from the present Convention.
Warsaw Minutes at 255 (emphasis added). The reporter's
use of the word “reparation” bolsters our reading of Arti-
cle 17 and “tends to exclude the concept of punitive
damages.” Lockerbie, slip op. at 2967.
Moreover, the drafting history shows that the CITE-
JA’s inability to formulate a single rule for calculating
damages resulted from the difficulty of choosing among
widely varying national laws of descent and distribution
governing who could sue on a decedent’s behalf in wrong-
ful death actions and who could sue only for personal loss.
See id. at 2964-67; see also Calkins, supra, at 327-28 (dis-
cussing excerpts of drafting record). This inability does
not suggest that the drafters ever contemplated the possi-
bility of imposing liability that goes beyond compensation
for loss, however determined. Lockerbie, slip op. at 2967.
Nor does a finding of willful misconduct under Article
25 create a right to recover punitive damages. Articie 25
bars the carrier from relying on those provisions in the
Convention that “exclude or limit” liability. Article 17 is
not among these. It is settled that willful misconduct
negates the due care exclusion from liability contained in
Article 20 and the monetary limitations contained in Arti-
cle 22. See Lockerbie, slip op. at 2971; Grey v. American
Airlines, 227 F.2d 282, 285 (2d Cir. 1955), cert. denied, 350
U.S. 989 (1956). Disagreement about whether other provi-
sions are affected, see H. Drion, supra, at 80 n.5 (citing
authorities), does not obscure the fact that certain key
articles in the Convention continue to apply in cases of
willful misconduct, and no authority suggests that the
basic liability terms of Article 17 (or any of the other
“conditions” preserved by Article 24) were to be displaced.
See Lockerbie, slip op. at 2971-72. Given the drafting con-
text discussed above, we agree with the Second Circuit
that the drafters would not have considered Article 17 a
“tl
limitation” on liability. See id. at 2972. In sum, Article
A-27
25 is “most reasonably interpreted as [an] exception| | to
the limitations on the recovery of compensatory damages
within the Convention, not as authority for the recovery
of punitive damages.” Gander, 684 F. Supp. at 932 (em-
phasis in original); accord Floyd I, 872 F.2d at 1484.
The Hague Protocol of 1955 and the Montreal Protocol
No. 4 of 1975 provide further confirmation. These Proto-
cols, among other things, clarified Article 25 to make it
explicit that the limits on liability lifted in the event of
willful misconduct are only the monetary limits contained
in Article 22. See Floyd I, 872 F.2d at 1483-84 & n.35. The
United States has not ratified the Hague or Montreal Pro-
tocols and they are not binding on us, but we may look
to them for clarification of the Convention’s terms. /d. at
1484 n.35; see Saks, 470 U.S. at 403-04 (“subsequent inter-
pretations of the signatories help[ | clarify the meaning”
of terms (referring to history of unratified Protocols)); see
also Floyd II, 59 U.S.L.W. at 4312. As the dissent points
out, the Hague Protocol did more than clarify Article 25;
it also “narrow[ed] the waiver of limitations in cases of
willful misconduct.” Dissenting Op. 7. It did so by adopt-
ing a new treaty definition of willful misconduct that sup-
planted Article 25’s reference to forum law. See Lowenfeld
& Mendelsohn, supra, 80 Harv. L. Rev. at 503-06. But
that substantive amendment does not belie the view that
the Protocol’s specific reference to the monetary limits of
Article 22 was understood only to be a clarification. See
Floyd I, 872 F.2d at 1483.
The policies underlying the Convention support our
conclusions. The Convention represented a_ bargain
between air carriers on the one hand and passengers and
shippers on the other. Carriers obviously gained from the
limitations on liability agreed to by the contracting states,
but passengers and shippers also benefited, primarily from
the Convention’s clear presumption of liability, which
eliminated the difficult task of proving fault on the part
of the carrier. Furthermore, under the law of contract as
it existed prior to the Convention, the carrier could essen-
A-28
tially avoid liability for harm resulting from the often haz-
ardous business of air transportation:
{I]n reality, this Convention creates against the air
carrier an exceptional system, because in the major-
ity of the countries of the world, contracts of carriage
are concluded under a system of free contract. The
carrier is free to insert in the contract clauses which
exclude or reduce his liability, as much for goods as
for travelers. You are of course aware that they have
lost no opportunity to do so, and presently many air
carriers operate under this unregulated contractual
system, and, in practice, in fact, they are not liable.
Warsaw Minutes at 47 (statement of Georges Ripert of
France).
The essential bargain struck by the contracting parties
in Warsaw was presented to the United States Senate as
a principal reason for ratifying the Convention:
It is believed that the principle of limitation of lia-
bility will not only be beneficial to passengers and
shippers as affording a more definite basis of recovery
and as tending to lessen litigation, but that it will
prove to be an aid in the development of international
air transportation, as such limitation will afford the
carrier a more definite and equitable basis on which
to obtain insurance rates, with the probable result
that there would eventually be a reduction of operat-
ing expenses for the carrier and advantages to travel-
ers and shippers in the way of reduced transportation
charges.
Senate Comm. on Foreign Relations, Message from the
President of the United States Transmitting a Convention
for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, Sen. Exec. Doc. G, 73d
Cong., 2d Sess. 3-4 (1934) (Report of Secretary of State
Cordell Hull). The award of punitive damages would be
contrary to this essential bargain because it would
increase the amount of litigation, the cost of insurance,
and ultimately the price of air transportation. See
A-29
Lockerbie, slip op. at 2975-77; Floyd I, 872 F.2d at 1487-
88.
Our dissenting colleague suggests that our reading of
the Convention will leave undeterred the diabolical carrier
who might deliberately sabotage its own aircraft in the
hope of reaping a fraudulent insurance recovery. This sce-
nario ignores, of course, the important deterrence pro-
vided by the criminal law. Moreover, because of the
“accident” requirement in Article 17, it is by no means
certain that the protections of the Convention would be
available to a carrier that destroyed its own aircraft. Cf.
Floyd II, 59 U.S.L.W. at 4309 (“an air carrier is liable for
passenger injury [under the Convention] only when ...
there has been an accident”); Saks, 470 U.S. at 406-07
(same). As the dissent’s scenario is not before us, we
express no opinion on any speculative questions it might
or might not raise.
What we can and do say, however, is that whatever evil
one might be willing to impute to the corporate mind, the
possibility of so wanton an act does not license us to dis-
regard the policy choices made by the Convention’s con-
tracting parties. See Floyd I], 59 U.S.L.W. at 4312
(“Whatever may be the current view among Convention
signatories, in 1929 the parties were more concerned with
protecting air carriers and fostering a new industry than
providing full recovery to injured passengers, and we read
[the terms of Article 17] in a way that respects that legis-
lative choice.”). Article 17 of the Warsaw Convention
“sets the parameters” of plaintiffs’ right of recovery at
compensatory damages only. Gander, 684 F. Supp. at 932.
These parameters are not expanded by Articles 24 or 25.
Accordingly, we vacate the jury’s award of punitive dam-
ages.
KAL argues that the district court committed a second
error by failing to undertake a choice-of-law analysis prior
to instructing the jury on punitive damages. As we con-
clude that such damages are not recoverable even if plain-
tiffs are correct about choice of law, this issue is not
A-30
relevant to our disposition of the case. We therefore
express no view On this aspect of the dissenting opinion.
II]. CONCLUSION
The district court properly left the willful misconduct
decision to the jury and did not abuse its discretion in
admitting plaintiffs’ evidence. The district court erred,
however, in allowing plaintiffs to pursue their punitive
damage claims, and therefore we vacate the jury’s punitive
damage award in this case.
So ordered.
A-31
Mikva, Chief Judge, dissenting from Part II(C): I do not
share my colleagues’ conclusion that the Warsaw Conven-
tion bars recovery of punitive damages. Instead, I would
remand with instructions that the district court engage in
a proper choice of law analysis.
A. Warsaw Convention
The Warsaw Convention, officially denominated the
Convention for the Unification of Certain Rules Relating
to International Transportation by Air, Oct. 12, 1929, was
adhered to by the United States in 1934. See 49 Stat.
3000, T.S. No. 876 (1934), reprinted in 49 U.S.C. App.
§ 1502, note The Convention was negotiated with hopes
of facilitating the growth of the infant airline industry,
and the drafters sought to create a scheme that would
presume carrier liability for air disasters but cap mone-
tary liability at a very low level. Article 17 provides that
“|t}he carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger ....” As
the majority explains, this liability appears to cover only
compensatory damages. Article 22 originally capped mon-
etary damages at approximately $8,300 per passenger.
That figure was raised to $75,000 by the 1966 Montreal
Agreement for flights to and from the United States (un-
dermining the goal of uniformity for the sake of prevent-
ing denunciation by the United States government).
Two other provisions of the Convention are of particu-
lar relevance in the instant appeal. Article 24 leaves pro-
cedural questions to local law provided that “any action
for damages, however founded, can only be brought sub-
ject to the conditions and limits set out in _ this
convention.” This language contemplates the availability
of causes of action that are separate from Article 17,
though governed by the limitations of the Convention.
Finally, Article 25 provides that “(t]he carrier shall not
be entitled to avail himself of the provisions of this con-
vention which exclude or limit his liability, if the damage
is caused by his willful misconduct ....” The dispute
before us requires that we carefully sort out the interplay
of these various sections.
A-32
The majority holds that the Warsaw Convention was
intended to provide compensatory relief only, and that
therefore punitive damages are not availabie even in
causes of action not based on Article 17. Nowhere are
punitive damages explicitly prohibited. In this country,
“legislative silence with respect to punitive damages
do[es] not preclude such a recovery.” Racich v. Celotex
Corp., 887 F.2d 393, 396 (2d Cir. 1989); see Silkwood v.
Kerr-McGee Corp., 464 U.S. 238, 255 (1984). Even so, I am
persuaded by the majority's conclusion that Article 17
cannot be read to authorize the recovery of punitive dam-
ages for claims based on the Convention. If any of the
plaintiffs in these cases premised their complaints solely
on a Warsaw Convention cause of action, | would concur
in holding that they were not entitled to recover punitive
damages. But few if any of the complaints were so limited
in pleading only the Convention as a cause of action.
The plaintiffs in these cases brought their damages
claims against KAL under a potpourri of legal theories
including the Warsaw Convention. In denying KAL’s
motion to strike plaintiffs’ jury demand, the district court
untangled the sources underlying each of the plaintiff's
complaints and found that most alleged a combination of
state and federal claims (both common law and statutory)
along with claims based on the Convention. See In re
Korean Air Lines Disaster of September 1, 1983, 704 F.
Supp. 1135, 1151-55 (D.D.C. 1988). Almost all of the com-
plaints alleged something other than merely the Conven-
tion as a basis for recovery and several failed to plead the
applicability of the Convention at all. See id. at 1151 n.40,
1154-55. The district court correctly emphasized that,
whatever the cause of action, the claims were all subject
to the limitations contained in the Convention.
The majority decides that complaints sounding in other
causes of action such as federal maritime law are also not
entitled to punitive damage awards. | find this step in the
court’s logic somewhat difficult to fathom. There appear
to be two basic rationales underlying such a conclusion:
(1) the Convention provides the exclusive cause of action
A-33
(thereby entirely preempting other possible causes of
action that might separately allow punitive damages), or
(2) Article 17 creates an implicit limitation on liability
governing recoveries premised on separate causes of
action (a.k.a. partial preemption). The majority appears
to employ the latter rationale, but then dismisses the
force of Article 25 in part on the strength of decisions
premised on the exclusivity rationale. I think neither one
is persuasive and therefore respectfully dissent.
1. Exclusivity
The majority correctly eschews reliance on the first
approach, choosing “not [to] take sides in the exclusivity
debate.” Maj. Op. at 25 The Convention is not the exclu-
sive remedy for passengers injured on_ international
flights; in fact, Article 24’s reference to “any action for
damages, however founded” clearly contemplates actions
arising under separate sources of law but places some lim-
its on recovery. Courts and commentators have rejected
suggestions that the Convention provides the exclusive
cause of action for international air disasters. See, e.g., Jn
re Air Crash in Bali, Indonesia, 684 F.2d 1301, 1311 n.8
(9th Cir. 1982) (“[T]he Convention has never been read
to limit plaintiffs to a cause of action arising thereunder,
but rather to limit the recovery in suits for injury.”); Tokio
Marine & Fire Insur. Co. v. McDonnell Douglas Corp., 617
F.2d 936, 942 (2d Cir. 1980) (“[T]he Convention drafts-
men ... did not intend that cause of action to be
exclusive.”); Calkins, The Cause of Action under the War-
saw Convention, 26 J. Air L. & Com. 323, 327-28 (1959).
The Second Circuit just recently decided that the War-
saw Convention prohibits the recovery of punitive dam-
ages. See In re Air Disaster at Lockerbie, Scotland on Dec.
21, 1988, slip op. No. 269 (2d Cir. Mar. 22, 1991). The
court took exclusivity as its working premise, see id. at
2940-44, 2963, somewhat astonishing in light of the Sec-
ond Circuit’s own precedents. For a long time, that court
had held that no cause of action is established by the Con-
vention. See Benjamins v. British European Airways, 572
A-34
F.2d 913, 919 (2d Cir. 1978) (finally overruling proposition
that had been accepted for twenty years), cert. denied, 439
U.S. 1114 (1979). In subsequent decisions, the court ruled
that this cause of action was not exclusive. See Tokio
Marine, 617 F.2d at 942. Now, by dismissing the state-
ment in Tokio Marine as mere dicta, the Second Circuit
has gone full circle from believing that the Convention
provides no cause of action to deciding that it provides
the sole cause of action for plaintiffs.
Apart from its apparent failure to abide by circuit pre-
cedent, the Lockerbie court’s support for the exclusivity
holding is hardly overwhelming. For instance, the court
emphasized (at 2942) that other countries have held that
the Convention is the exclusive cause of action. These
were not interpretations of the Convention, however: the
common law countries cited in the opinion all had to enact
national legislation making Article 17 the exclusive cause
of action. The United States has, of course, never done
so. Moreover, its description of decisions from other cir-
cuits is also somewhat perplexing. For instance, in one
case the Ninth Circuit observed that “the delegates did
not intend that the cause of action created by the Conven-
tion to be exclusive.” Jn re Mexico City Aircrash of Oct.
31, 1979, 708 F.2d 400, 414 n.25 (9th Cir. 1983). Yet the
Lockerbie court asserts that the decision “rebutted the
idea that a cause of action may be founded on some law
other than the Convention.” Slip op. at 2941-42.
In fact, the Ninth Circuit has concluded on more than
one occasion that the cause of action is not exclusive. See,
e.g., In re Air Crash in Bali, Indonesia, 684 F.2d at 1311
n.8. All told, the decisions from other circuits appear to
be evenly divided on the issue, notwithstanding the court’s
claim in Lockerbie (at 2963) that the weight of authority
is fairly one-sided. See Floyd v. Eastern Airlines, Inc., 872
F.2d 1462, 1482 n.33 (11th Cir. 1989) (collecting cases),
reu'd on other grounds, 59 U.S.L.W. 4307 (April 17, 1991).
See also Alvarez v. Aerovias Nacionales de Colombia S.A.,
59 U.S.L.W. 2481 (S.D. Fla. Jan. 25, 1991) (distinguishing
exclusive remedy of the Convention from the suggestion
A-35
that it also provides the exclusive cause of action). The
Supreme Court has twice now declined to address the
exclusivity question. See Eastern Airlines, Inc. v. Floyd, 59
U.S.L.W. at 4314; Air France v. Saks, 470 U.S. 392, 408
(1985). The fundamental error of the Lockerbie court’s
decision is the premise that the cause of action provided
by the Warsaw Convention is exclusive, and my colleagues
are wise not to enter this fray unnecessarily.
2. Implicit Limitation in Article 17
If the court does not premise its holding on an exclusiv-
ity rationale, it must mean that Article 17 acts as a
limitation on the liability that an air carrier would face
when sued under separate causes of action. But then Arti-
cle 25 would come into play and waive any such limitation
in cases of willful misconduct: “The carrier shall not be
entitled to avail himself of the provisions of this conven-
tion which exclude or limit his liability, if the damage is
caused by his wilful misconduct ....” Art. 25(1). The
majority relies heavily on Lockerbie for the proposition
that Article 25 does not trump Article 17, but there the
court had taken exclusivity as its starting point. It is one
thing to say that the Convention prohibits punitive dam-
ages because it is the sole available cause of action and
does not provide for them; it is quite another to conclude
that Article 17 acts as a limitation on damages restricting
recovery under other causes of action that allow punitive
damages.
The Eleventh Circuit has also decided not to take sides
in the debate over exclusivity. In resolving the punitive
damages question in Floyd, the court first decided that the
Convention is not itself a basis for seeking punitive dam-
ages. The court concluded that Article 17 was entirely
compensatory in tone and rejected plaintiffs’ argument
that Article 25’s reference to willful misconduct implied
an exception. See 872 F.2d at 1483-85. Next the court
rejected the plaintiffs’ effort to seek punitive damages
under state common law, holding that state law was pre-
empted to the extent that it was inconsistent with the
compensatory scheme of Article 17. See id. at 1485-87.
A-36
Preemption analysis will not work in this case, however,
because we are confronted with two legal schemes that
stand in rough equipoise under the Supremacy Clause: the
Warsaw Convention and federal maritime law. See Jn re
Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1161
n.19 (5th Cir. 1987) (“As a ratified treaty of the United
States the Warsaw Convention is equal in stature and
force as any other domestic federal law.”); Committee of
U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 936-
37 (D.C. Cir. 1988). The Convention cannot, therefore,
preempt federal law to the extent of any inconsistency
with its compensatory tone; Article 17 can only prevent
recovery of punitive damages otherwise available under
federal maritime law if it is construed as a limit or condi-
tion governing damages under Article 24, but then it
becomes subject to waiver in cases where Article 25
applies.
The court in Floyd also relied on subsequent proposals
which would have amended Article 25 so that it would
only trump the monetary cap in Article 22. See 872 F.2d
at 1483-84 (discussing the Hague and Montreal Proto-
cols). But the original language of Article 25 does not sug-
gest that only Article 22 was covered, and the United
States never ratified these amendments. See id. at 1468-
69. Moreover, the United States responded to the pro-
posed changes by threatening to denounce the entire Con-
vention unless the monetary limits were raised
substantially. See Lowenfeld & Mendelsohn, The United
States and the Warsaw Convention, 80 Harv. L. Rev. 497,
509-16, 532-46 (1967). In Floyd, the Eleventh Circuit can-
didly admitted that this country never ratified the Proto-
cols, but found “their clarification of the operation of
Article 25 to be instructive.” 872 F.2d at 1484 n.35. This
reasoning is difficult to square with the Supreme Court’s
recent instruction that “where the text is clear ... we have
no power to insert an amendment.” Chan v. Korean Air
Lines, Ltd., 490 U.S. 122, 134 (1989) (“We must thus be
governed by the text—solemnly adopted by the govern-
ments of many separate nations—whatever conclusions
might be drawn from the intricate drafting history ... .”).
A-37
Indeed, in reversing the decision that compensatory
damages for purely mental injuries were available under
Article 17, the Supreme Court criticized the lower court’s
interpretation of subsequent drafting history surrounding
the Protocols. See Eastern Airlines, Inc. v. Floyd, 59
U.S.L.W. at 4312-13. To the extent that the 1955 negoti-
ating history cited by the Eleventh Circuit in Floyd
reflects the Hague drafters’ understandings about what
their predecessors may have had in mind a generation
earlier, it is entitled to only marginal weight. See
McKelvey v. Turnage, 792 F.2d 194, 200 (D.C. Cir. 1986)
(“As the Supreme Court and this court have repeatedly
remarked, the views of later Congresses as to the meaning
of enactments by their predecessors are of little, if any,
significance.”), aff'd, 485 U.S. 535 (1988).
At best, the subsequent proposals and accompanying
drafting history demonstrate only that the original text
was ambiguous. At worst, the proposals imply that the
negotiators wanted to adjust the bargain that had been
struck originally. Indeed, the amended version of Article
25 proposed in the unratified Hague Protocol would not
have simply clarified an existing understanding of Article
25 but represented a revised quid pro quo: in exchange for
a higher ceiling on damages, carriers sought to narrow the
waiver of limitations in cases of willful misconduct. See
Lowenfeld & Mendelsohn, at 503-06. See also Comment,
Role of Choice of Law in Determining Damages for Interna-
tional Aviation Accidents, 51 J. Ain L. & Com. 953, 989
(1986) (discussing Guatemala Protocol which would have
eliminated Article 25 altogether in exchange for a higher
monetary cap of $100,000). Thus, the history as well as
the language of Article 25 supports the conclusion that
punitive damages are not prohibited by the Warsaw Con-
vention in cases of willful misconduct even if a cause of
action based solely on the Convention would not authorize
such damages.
The majority concludes that allowing punitive damage
windfalls would contravene the Convention’s primary pur-
pose and understanding of the contracting parties that the
A-38
treaty was intended to limit the liability of air carriers.
The scheme of the Convention closely resembles work-
men’s compensation statutes which allow workers to
recover prescribed compensatory damages for accidental
job-related injuries. These laws reflect a quid pro quo
between employees, who are relieved of the burden of
proof, and employers, who benefit from the cap on dam-
ages. See 2A A. Laksken, WoRKMEN’s COMPENSATION LAW
§ 65.11 (1990), at 12-9. Similarly, the Warsaw Convention
balances strict carrier liability for injuries sustained by
passengers (Articles 17 and 20) against a cap on monetary
damages (Article 22). See Block v. Compagnie Nationale
Alr France, 386 F.2d 323, 327 (5th Cir. 1967), cert. denied,
392 U.S. 905 (1968).
~ However, workmen’s compensation laws do not limit
the availability of separate damage actions in cases of
intentional misconduct by the employer. See, e.g., Pratt v.
National Distillers & Chem. Corp., 853 F.2d 1329, 1336-39
(6th Cir. 1988) (punitive damages are available for inten-
tional injuries), cert. denied, 489 U.S. 1012 (1989); Larsen
§§ 68.00-.14. Similarly, the narrow exception in Article 25
of the Convention does not undermine the basic purpose
of limiting carrier liability; it simply recognizes that in
cases of serious misconduct carriers should not enjoy the
benefits of these limitations. Imagine that a carrier
decided to deliberately sabotage one of its own flights in
hopes of receiving a large insurance settlement on the air-
craft. If such egregious conduct went undetected, a finan-
cially strapped airline could invest a paltry amount in
anticipated payments to decedents’ estates (on a typical
flight of the Concorde, for instance, that might create
maximum liabilities of $500,000 to the passengers) in
exchange for a multi-million dollar insurance pay-off.
Even if such unthinkable conduct came to light, the maxi-
mum compensatory judgment to the plaintiffs might still
be less than the potential insurance recovery discounted
by the risk that the fraud might be discovered. The major-
ity’s decision would completely foreclose the availability
of punitive damages even in such an egregious case. While
A-39
the facts of the present case are not as stark as those
hypothesized, the point remains the same: if plaintiffs can
demonstrate willful misconduct, the limitations of the
Convention (and the goals that those limitations serve)
should have no application.
B. Choice of Law
KAL’s pre-trial motion to dismiss plaintiffs’ punitive
damage claims was premised exclusively on its argument
that the Warsaw Convention precluded such an award.
Near the end of the trial, the district court denied KAL’s
motion from the bench. Apparently for the first time in
the proceedings, KAL’s counsel then requested a choice
of law analysis, but in a very vague and non-committal
way.
_
The Court: What law should I pick?
Mr. Barry: I don’t know.
The Court: Where is this case being tried on the
issue of liability?
Mr. Barry: Here in the District of Columbia.
The Court: With respect to damages, this aspect of
damages which would ordinarily tail along will be a
part of an action on liability and damages, except for
the construct of the treaty; | mean, what law would
apply?
Mr. Barry: Well, Your Honor, I think you have to
do a choice of law analysis, just as Judge Green did
in the Air Florida litigation here on this very same
issue, and she held that laws of differing jurisdictions
were going to apply to different issues.... 1 don’t
know the answer to the question .... | raise only a
probiem. I wasn’t anticipating this, to tell you the
truth.
The decision alluded to by KAL counsel was /n re Air
Crash Disaster at Washington, D.C. on January 13, 1982,
559 F. Supp. 333 (D.D.C. 1983) (hereinafter “Jn re Air
Florida Crash”). The district court’s questions reflect a
couple of assumptions: that forum law would automati-
A-40
cally govern liability issues and that damages would pre-
sumptively be governed by the same jurisdiction’s laws.
Both premises are questionable: choice of law principles
followed by the District of Columbia courts seek to apply
the substantive law of the jurisdiction with the closest
connection .. and greatest interest in a claim, see Hercules
& Co. v. Shama Restaurant Corp., 566 A.2d 31, 40-41 (D.C.
App. 1989), and separate choice of law analysis of differ-
ent substantive issues (called “depecage”) is now routine.
See id.; In re Air Florida Crash, 559 F. Supp. at 341.
The threshold question is whether the choice of law
basis for KAL’s motion to dismiss the punitive damages
claims was raised too late. Unlike jurisdictional issues,
courts need not address choice of law questions sua
sponte. It is not clear whether the District of Columbia
would follow a default rule that presumes local law con-
trols unless choice of law objections are raised in a timely
manner, but that seems to be the norm. See Cavic uv.
Grand Bahama Devel. Co., 701 F.2d 879, 882-83 (11th Cir.
1983); Kramer, /nterest Analysis and the Presumption of
Forum Law, 56 U. Cui. L. Rev. 1301 (1989). Although
“It}he choice of law question regarding punitive damages
should be resolved as suon as possible,” Jn re Air Crash
Disaster at Sioux City, lowa, on July 19, 1989, 734 F.
Supp. 1425, 1429 (N.D.IIL 1990) (hereinafter “Jn re lowa
Crash”), Rule 12(h)(2), Feo. R. Civ. P., provides that “[a]
defense for failure to state a claim: upon which relief can
be granted ... may be made ... [as late as] the trial on
the merits.” If the short verbal exchange cited above was
enough to place the issue before the judge, then the dis-
trict court should have engaged in a choice of law analysis
or at least asked for supplemental briefing at that point.
See Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d
1057, 1059-60 n.1 (5th Cir. 1981) (failure to state a claim
could be pressed on appeal where defendant had
“sufficiently alerted” the court of the defense during trial).
KAL preserved the argument, though just barely. Cf. In
re Air Florida Crash, 559 F. Supp. at 336-37 (rejecting
contention that Air Florida “waived” its right to present
A-41
a choice of law argument for the first time on reconsidera-
tion of the district court’s ruling, noting that its “interest
in the question arose only when this Court ruled that
divergent punitive damages laws would govern these par-
ties’ liability”).
The next question is whether KAL properly pled that
Korean law was applicable. Rule 44.1, Fep. R. Civ. P.,
does not require that a choice of law argument based on
foreign law appear in the pleadings. Instead, as the Advi-
sory Committee explained, “[t]he new rule does not
attempt to set any definite limit on the party’s time for
giving the notice of an issue of foreign law; in some cases
the issue may not become apparent until the trial and
notice then given may still be reasonable.” In a related
vein, appellees contend that KAL failed to satisfy the
proof requirements in Rule 44.1, but the explanation in
the Advisory Committee notes suggests otherwise. See
also Pollack, Proof of Foreign Law, 26 Am. J. Comp. L. 470
(1978). Along with its memoranda of law in support of its
JNOV motion, KAL filed a translation and explanatory
letter concerning the relevant provisions of the Korean
civil code, and added that “KAL preserved its argument
that Korean law applied to the issue of punitive damages
by including in each Answer filed in this litigation a ‘No-
tice of Applicability of Foreign Law’ pursuant to Fed. R.
Civ.P. 44.1.” The district court never explicitly rejected
KAL’s choice of law argument on grounds of being unrea-
sonably late, and I believe it should have been addressed.
The district court entirely failed to engage in the
required choice of law analysis. KAL contends that the
district court improperly applied D.C. law on the punitive
damages question because a proper choice of law analysis
would have required reference to Korean civil law. KAL
argues that, in multi-district airplane crash litigation,
involving plaintiffs from- numerous other jurisdictions
(both foreign and domestic), the trial court could not just
unthinkingly apply forum law to the punitive damages
question. Indeed, several other courts have engaged in
sometimes agonizing choice of law analyses in similar
A-42
cases. See In re Air Crash Disaster Near Chicago, Illinois
on May 25, 1979, 644 F.2d 594 (7th Cir.);cert. denied, 454
U.S. 878 (1981) (hereinafter “Jn re Chicago Crash”); In re
Iowa Crash, 734 F. Supp. 1425; In re Air Florida Crash,
559 F. Supp. 333. See generally Lowenfeld, Mass Torts and
the Conflict of Laws: The Airline Disaster, 1989 U. Ii. L.
Rev. 157.
For state law claims brought in federal court under
diversity jurisdiction, the district court must apply the
choice of law principles of the state in which it sits. See
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941). When a case is transferred pursuant to 28 U.S.C.
§ 1407(a) by the Panel on Multi-District Litigation, the
transferee court must apply the choice of law rules of the
states where the transferor courts sit. See In re Chicago,
644 F.2d at 610 (citing Van Dusen v. Barrack, 376 U.S.
612 (1964)). No such analysis was undertaken in this case.
Cf. Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4
(1975) (per cur:am) (reversing federal court’s decision to
ignore forum =.a.e’s choice of law rule that would have
required application of Cambodian law to wrongful death
action). The district court appears to assume that forum
law automatically controls and that dépecage is inappro-
priate, but even application of District of Columbia choice
of law principles would dictate otherwise, see Hercules &
Co., 566 A.2d at 40-41, and we have no idea what would
happen if the district court applied the choice of law prin-
ciples of each transferor court. The district court erred in
failing to undertake a choice of law analysis in this case,
a task best left in the first instance to the district court
on remand. Even so, it is necessary to explain at some
length below why I am unpersuaded by appellees’ argu-
ments.
Appellees suggest that their punitive damage claims
were not derived from state law but arose from general
federal maritime law. In similar circumstances, the Third
Circuit held that
the maritime character of the tort brings the contro-
versy under the governance of federal law and it is
A-43
immaterial whether admiralty or diversity jurisdic-
tion is relied upon as justification for suing in the
federal forum. Obviously, a court thus undertaking to
apply federal substantive law would have no occasion
to defer to or apply state choice of law rules.
Scott v. Eastern Air Lines, Inc., 399 F.2d 14, 17 (3d Cir.
1967) (plane crash in Boston Harbor), cert. denied, 393
U.S. 979 (1968). The district court never explained its
refusal to engage in a Klaxon choice of law analysis in
these terms, though its treatment of KAL’s motion to
strike plaintiffs’ jury demand suggests this reasoning. See
In re KAL Disaster, 704 F. Supp. at 1151-57. There the
district court held that all of the plaintiffs had properly
pleaded (or could amend their complaints to so plead) fed-
eral maritime claims and the Warsaw Convention as
causes of action, see id. at 1154, 1155-56 (but recognizing
that some plaintiffs had only pled state law claims
brought pursuant to diversity jurisdiction).
Even if that was the district court’s undisclosed reason
for not engaging in a Klaxon analysis for each transferor
court, it would not relieve the court of the need to engage
in some choice of law analysis under federal law. See
Lauritzen v. Larsen, 345 U.S. 571, 575-77 (1953) (finding
a conflict between application of Danish and U.S. mari-
time law). In other words, if application of federal mari-
time law would authorize punitive damages but Korean
law would not, a conflict may exist that needs to be
resolved. This is precisely what happened in Harris v. Pol-
skie Linie Lotnicze, 820 F.2d 1000 (9th Cir. 1987), a case
where the court had to decide as a matter of federal
choice of law principles whether Polish law or California
law provided the measure of recovery in a wrongful death
claim arising from a crash in Poland and governed by the
Federal Sovereign Immunities Act.
In undertaking the federal choice of law analysis, the
court in Harris looked to the ResTaTEMENT (SECOND) OF
ConF.Lict oF Laws (1969) as “an appropriate starting
point.” See id. at 1003-04. The RESTATEMENT is, however,
a dubious choice of law methodology for a federal court
a
A-44
to pick. Choice of law is a very messy field, with different
approaches endorsed by competing camps. See In re Paris
Air Crash of March 3, 1974, 399 F. Supp. 732, 739 (C.D.
Cal. 1975) (describing it as “a veritable jungle”). In the
past, the lex loci delicti rule was widely used in tort cases,
directing courts to use the substantive law of the jurisdic-
tion where the injury occurred, and vestiges of this much
criticized approach remain in the Rk&stATEMENT. See
RESTATEMENT (SECOND) OF CONFLICT OF LAWS (hereinafter
“Rest.”) §§ 145-146, 175 (presumption of applying the
local law where the injury occurred unless another jurisdic-
tion has a more significant relationship to the incident or
the parties involved). In Harris, the court decided to apply
Polish law of damages, largely because that was the site
of the accident and no other jurisdiction had a demonstra-
bly greater interest in the case. See 820 F.2d at 1004 &
n.5. In fact, the lex luct starting point used by the
RESTATEMENT might be difficult to apply in this case: it is
not clear whether KE007 was shot down in Soviet air-
space, over Japanese territory or in international waters.
Cf. In re Air Florida Crash, 559 F. Supp. at 348 n.21 (de-
scribing earlier case involving a DC-4 mid-air collision
where half of the wreckage fell into the Potomac River
(deemed part of the District of Columbia) and the ether
half fell on the Virginia shore); Jn re Air Crash Disaster
Near Bombay, India, 531 F. Supp. 1175, 1182 (W.D. Wash.
1982) (parties disputed whether aircraft crashed in inter-
national waters or within India’s territorial waters).
indeed, largely because of such uncertainties, the Supreme
Court has declined to place much emphasis on the lex loci
rule in maritime torts. See Romero v. International Termi
nal Oper. Co., 358 U.S. 354, 384 (1959); Lauritzen, 345
U.S. at 583-84.
The ResTaTEMENT also endorses an amalgam of the
“most significant relationship” (or “center of gravity”) test
and governmental interest methodologies, see Rest. § 6,
reflecting an uneasy compromise struck among the
drafters. See von Mehren, Recent Trends in Choice-of-Law
Methodology, 60 CORNELL L. REV, 927, 963-64 (1975). The
A-45
governmental interest approach seeks to identify which
jurisdictions may have an actual interest in having their
substantive law apply to a particular controversy, but the
resolution of true conflicts is achieved through different
means depending on the variant. See generally G. Smith,
Choice of Law in the United States, 38 HASTINGs L.J. 1041,
1043-50 (1987). Whatever the relative merits of the vari-
ous approaches, the court in Harris went straight to the
RESTATEMENT as a good source for general choice of law
rules to be used as federal common law in the area.
In counting up the contacts, KAL emphasizes that
South Korea is its place of incorporation, its principal
place of business, and the place wher its crews are
trained. Appellees respond that many of the passengers
came from, the flight originated in, and all of the tickets
were purchased in the United States. They cite a decision
that sugsests using a “center of gravity” approach like the
RESTATEMENT in maritime cases. See Hellenic Lines Ltd.
v. Rhoditis, 398 U.S. 306 (1970). In that case, the Supreme
Court applied the Jones Act to a claim by a Greek seaman
injured on a Greek ship while it was in American territo-
rial waters, emphasizing that the Greek company that
owned the ship had its largest offices in the U.S., was
owned by a Greek citizen domiciled in the U.S., and trans-
ported cargo to and from the United States. See id. at 307-
10. But Hellenic Lines does not necessarily support appel-
lees’ analysis of the relevant contacts in this case because
the site of the accident and KAL’s principal place of busi-
ness were not in the United States. See Romero, 358 U.S.
at 383-84 (applying Spanish law to maritime tort claim
brought by a Spanish sailor injured on board a Spanish
ship while in American waters); Lauritzen, 345 U.S. at 592
(applying Danish law to maritime tort that occurred in
Cuban waters because all parties and the ship were Dan-
ish, even though the injured sailor embarked on the ship
in New York).
Lauritzen employed something akin to the general,
multi-factor approach described in section 6 of the
. A-46
RESTATEMENT, though without the initial presumption for
applying the lex loci rule:
Maritime law, like our municipal law, has attempted
to avoid or resolve conflicts between competing laws
by ascertaining and valuing points of contact between
the transaction and the states or governments whose
competing laws are involved. The criteria, in general,
appear to be arrived at from weighing of the signifi-
cance of one or more connecting factors between the
shipping transaction regulated and the national inter-
est served by the assertion of authority.
Id. at 582 (the relevant contacts included the place of the
wrongful act, the law of the flag, the allegiance or domicile
of the injured, the allegiance of the shipowner, the place
of the contract, the inaccessibility of a foreign forum, and
the law of the forum); accord Romero, 358 U.S. at 383. In
fact, Lauritzen gave the “law of the flag” the same pre-
sumptive weight that the ResTaTEMENT gives to the place
of injury. See 345 U.S. at 585-86 (because the ship was
registered in Denmark, Danish law “must prevail unless
sume heavy counterweight appears”).
At least two federal courts have used the contacts dis-
cussed in Lauritzen to resolve choice of law problems in
air disasters on the high seas. In Noel v. Airponents, Inc.,
169 F. Supp. 348 (D.N.J. 1958), a case where a Venezuelan
airliner crashed in the Atlantic Ocean, the district court
held that federal maritime law would guvern to impose
liability on the U.S. corporation that had serviced the air-
craft before departure. The court emphasized that “[t]he
parties to the present litigation are American nationals,
and neither the foreign carrier nor the Republic of Vene-
zuela appear to have any interest in the outcome.” /d. at
350-51. In Air Crash Near Bombay, 531 F. Supp. 1175, a
case where an Air India Boeing 747 crashed into the Ara-
bian Sea shortly after takeoff, the district court held that
Indian law would govern product liability claims against
the American manufacturers of allegedly defective aircraft
components. The court focused on “the essentially Indian
character of this aircraft accident in Indian territorial
A-47
waters on a flight originating in India involving an Indian
air Carrier and predominantly Indian victims.” /d. at 1191.
This case presents a much sharper conflict, however,
because the contacts appear to be more evenly divided
and do not point overwhelmingly to one jurisdiction or the
other.
As KAL correctly points out, the question of punitive
damages is of primary interest to jurisdictions having
some link to the defendant. See Jn re Chicago Crash, 644
F.2d at 612-13 (decedents’ home jurisdictions only have
an interest in recovery of compensatory damages); /n re
Air Florida Crash, 559 F. Supp. at 352-55. Assuming this
is not a Klaxon thicket, the choice is between recovery of
punitive damages under general federal maritime law ver-
sus non-recovery under Korean civil law. See Jn re Air
Florida Crash, 559 F. Supp. at 347 & n.19, 351. The bal-
ancing of competing interests is no easy task, and even
trying to decipher what those interests are is an undertak-
ing fraught with difficulties. Even assuming that Korea
made a conscious decision to protect home businesses
from excessive judgments, an interest it deemed more
important than the added increment of deterrence from
punitive damages, such a trade-off for purposes of inter-
nal Korean law does not mean that other interested juris-
dictions cannct choose to apply punitive damages if they
have a countervailing interest in punishment and deter-
rence that is involved in the controversy. In this case, the
United States has an interest in both punishing egregious
conduct that begins in this country and deterring its
future recurrence. The United States’ interest in deterring
willful misconduct on international flights linked to its
borders might well outweigh Korea’s more parochial inter-
est in protecting home businesses. Cf. Bernhard v. Har-
rah’s Club, 16 Cal. 3d 313, 128 Cal. Rptr. 215, 546 P.2d
719 (applying California dram shop law to accidents
caused by-Nevada taverns even though Nevada had inten-
tionally immunized its taverns from such liability), cert.
denied, 429 U.S. 859 (1976).
A-48
I would therefore remand the punitive damages ques-
tion to the district court with instructions to engage in a
proper choice of law analysis.
A-49
APPENDIX
A-50
A-51
A-52
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
—
No. 89-5415—September Term, 1990
CA 83-0345
Filed: July 5, 1991
—
IN RE: KOREAN AIR LINES DISASTER
OF SEPTEMBER l, 1983
+
Before:
MIKVA, Chief Judge;
BUCKLEY and THOMAS, Circuit Judges.
—
ORDER
Upon consideration of appellant’s petition for rehearing,
filed June 5, 1991, it is
ORDERED, by the Court, that the petition is denied.
Per Curiam
FOR THE COURT:
CONSTANCE L. DUPRE, CLERK
By: ROBERT A. BONNER
Robert A. Bonner
Deputy Clerk
A-53
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
>
No. 89-5415—September Term, 1990
CA 83-0345
Filed: July 5, 1991
aaa
IN RE: KOREAN AIR LINES DISASTER
OF SEPTEMBER 1, 1983
+
Before:
MIKVA, Chief Judge;
WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN,
BUCKLEY, WILLIAMS, D. H. GINSBURG, SENTELLE,
THOMAS, HENDERSON and RANDOLPH, Circuit Judges.
+
ORDER
Appellant’s Suggestion For Rehearing En Banc has been
circulated to the fuil court. No member of the Court
requested the taking of a vote thereon. Upon consideration
of the foregoing it is
ORDERED, by the Court en banc, that the suggestion is
denied.
Per Curiam
FOR THE COURT:
CONSTANCE L. DUPRE, CLERK
By: ROBERT A. BONNER
Robert A. Bonner
Deputy Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.