Amicus Curiae Brief — Zicherman v. Korean Air Lines Co.

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In The

Supreme Court of the United States

October Term, 1994

MARJORIE ZICHERMAN, individually and

as executrix of the estate of Muriel A.M.S. Kole,

and Muriel Mahalik,

Petitioner,

KOREAN AIR LINES CO., LTD.,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE AND BRIEF AMICI CURIAE

OF PHILOMENA DOOLEY, ET AL.

IN SUPPORT OF PETITIONER ZICHERMAN

Of Counsel: JuANiITA M. Mapote, Esa.

Counsel of Record

DonaLp W. Mapote, Esa.

Georce E. Farre.t, Esa. Liaison Counsel

SPEISER, KRAUSE, MADOLE MDL 565 In re Korean Air

& LEAR Lines Disaster of

1300 North 17th Street, September 1, 1983

R oo Virginia 22209 SPEISER, KRAUSE, MADOLE

osslyn, Virginia i Cote

Mitton G. Sincorr, Esa. Two Park Plaza, Suite 1060

STEVEN R. Pounian, Esa. Irvine, California 92714

KREINDLER & KREINDLER 714/553-1421

100 Park Avenue

New York, New York 10017

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Nos. 94-1361, 94-1477

In The

Supreme Court of the United States

October Term, 1994

MARJORIE ZICHERMAN, individually and

as executrix of the estate of Muriel A.M.S. Kole,

and Muriel Mahalik,

Petitioner,

KOREAN AIR LINES CO., LTD.,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE OF PHILOMENA DOOLEY, ET AL.

IN SUPPORT OF PETITIONER ZICHERMAN

7” : o a i pies el x a se.

le alle

Page

DUURUER A Seater asesdccvecccese 1

: 4

TABLE OF AUTHORITIES

Cases:

Bayona v. Korean Air Line Co., Ltd., No. 85-3819,

Memorandum Opinion and Order, Feb. 1, 1993

(oS tS Pe Perrrrrererrrr rrr ire

Hollie v. Korean Air Lines Disaster, 834 F.Supp. 65

(S.D.NLY. BOBS) . ov cccccscccccvsscvcevecscccses

In re Korean Air Lines Disaster of September 1, 1983,

575 F.Supp. 342 (J.P.M.L. 1983)..........000ees

In re Korean Air Lines Disaster of September 1, 1983,

932 F.2d 1475 (D.C. Cir. 1991), cert. denied, 502

CFD. GOS GOO OD o occ ccs naveSeteccastanedas ences

In re Korean Air Lines Disaster of September 1, 1983,

M.D.L. 565, CV-83-2793 et al., Memorandum

Opinion and Order, April 8, 1993 (D.D.C. 1993)

In re Korean Air Lines Disaster, 156 F.R.D. 18

CDE: TI. ov cnnccckcicevaveseedupeueseens

In re Korean Air Lines Disaster, 798 F.Supp. 755

B.DILY. BOGE) 0c ccvcuceneccetevonscrscncnsess

In re Korean Air Lines Disaster, 807 F.Supp. 1073

DILLY. BOGE) oc csctvcccdvccesspevessseneces

In re Korean Air Lines Disaster, 814 F.Supp. 592

(B.D. Wee. BGT. wc ccccccccscvcseveeccocsecss

In re Korean Air Lines Disaster, 814 F.Supp. 599

(S.D.NLY. 1993)... ccccscccncvcnscecovcscssens

Page

iii

TABLE OF AUTHORITIES - Continued

In re Korean Air Lines Disaster, __ F.3d __, 1995

U.S. App. Lexis 8840 (D.C. Cir. 1995) (per cur-

SE dacsuatndectutawar baaerGnes bbvedeercetie ss

Park v. Korean Air Lines, 1992 WL 331092 __

FOP. nn, Gels BOOED coccnccsccnecvceces

Saavedra v. Korean Air Lines Co., Ltd., No.

C-84-9324 et al., Memorandum Opinion and

Order, Oct. 19, 1992 (C.D. Cal. 1992)..........

Zicherman v. Korean Air Lines, 43 F.3d 18 (2d Cir.

1994), cert. granted, 63 U.S.L.W. 3745 (U.S. Apr.

18, 1995) (Nos. 94-1361, 94-1477)..............

Treaties, STATUTES AND RULEs:

OR ak RE SRO ie tes ae eRe

Rule 60(b) of the Federal Rules of Civil Procedure

The Convention for the Unification of Certain

Rules Relating to International Transportation

by Air, October 12, 1929, 49 Stat. 3000, T.S. No.

876 (1934), reprinted in note following 49 U.S.C.

ia ay es Rd el a a

Page

INTRODUCTION

Philomena Dooley, as Personal Representative of the

Estate of Cecilio Chuapoco, deceased, and others identi-

fied in the Appendix to the Motion, hereby respectfully

move for Leave to File a Brief Amici Curiae in this case in

support of Petitioner, Marjorie Zicherman, as provided in

Rule 37 of the Rules of this Court. The consent of the

attorneys for the Petitioners has been obtained. The con-

sent of the attorneys for the Respondent Korean Air Lines

Co., Ltd. (hereinafter “KAL”) was requested. Although

consent was refused, Respondent does not object to this

Motion for Leave to File Brief Amici Curiae.

After the air disaster of September 1, 1983 in which a

KAL Boeing 747 was destroyed, the catastrophe giving

rise to the underlying Zicherman action, numerous claims

were filed in the United States district courts across the

country. All federal court actions were transferred by the

Judicial Panel on Multi-District Litigation (J.P.M.L.) to the

United States District Court for the District of Columbia,

per Judge Aubrey E. Robinson, Jr., for coordinated and

consolidated pretrial proceedings on the common liability

issues. See In re Korean Air Lines Disaster of September 1,

1983, 575 F.Supp. 342 (J.P.M.L. 1983). On August 2, 1989, a

jury returned a verdict that the shootdown of KAL Flight

KE 007 by Soviet military aircraft and the deaths of all on

board were proximately caused by the “wilful misconduct”!

' The claims against KAL were unquestionably governed

by the Warsaw Convention, formally known as the Convention

for the Unification of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876

(1934), reprinted in note following 49 U.S.C. App. §1502.

Pursuant to the provisions of the Warsaw Convention, the

of the KAL flight crew.2 KAL appealed; the Court of

Appeals for the District of Columbia Circuit affirmed the

finding of wilful misconduct. In re Korean Air Lines Disas-

ter of September 1, 1983, 932 F.2d 1475 (D.C. Cir.), cert.

denied, 502 U.S. 920, 616 (1991).

After liability was confirmed, United States District

Judge Aubrey E. Robinson, Jr. remanded all actions that

had not been originally filed in that court to the originat-

ing district courts. Several district courts issued orders

relating to the right to a jury trial, to measures of dam-

ages, and to applicable beneficiaries in Warsaw Conven-

tion actions. See, e.g., In re Korean Air Lines Disaster, 798

F.Supp. 755 (E.D.N.Y. 1992); In re Korean Air Lines Disaster,

807 F.Supp. 1073 (S.D.N.Y. 1992); In re Korean Air Lines

Disaster, 814 F.Supp. 592 (E.D. Mich. 1993); In re Korean

Air Lines Disaster, 814 F.Supp. 599 (S.D.N.Y. 1993); Park v.

Korean Air Lines, 1992 WL 331092 __ F.Supp. ___ (S.D.N.Y.

1992); Hollie v. Korean Air Lines Disaster, 834 F. Supp. 65

(S.D.N.Y. 1993); In re Korean Air Lines Disaster of September

1, 1983, M.D.L. 565, CV-83-2793 et al, Memorandum Opin-

ion and Order, April 8, 1993 (D.D.C. 1993); Saavedra v.

Korean Air Lines Co., Ltd., No. C-84-9324 et al., Memoran-

dum Opinion and Order, Oct. 19, 1992 (C.D. Cal. 1992);

Bayona v. Korean Air Lines Co., Ltd., No. 85-3819, Mem-

orandum Opinion and Order, Feb. 1, 1993 (D.N.J. 1993).

carrier’s liability is limited to a monetary cap unless the conduct

causing the injury was “wilful misconduct”. The verdict by the

jury operated to remove the monetary limit on damages.

2 The jury also returned a verdict for punitive damages

which was reversed on appeal. In re Korean Air Lines Disaster of

September 1, 1983, 932 F.2d 1475 (D.C. Cir.), cert. denied, 502 U.S.

994 (1991).

Trials on damages were held and verdicts entered in

the United States District Court for the Southern District

of New York (including Zicherman v. Korean Air Lines Co.,

Ltd.), in the Eastern District of Michigan, in the Central

District of California, in the Northern District of Califor-

nia, and in the District of Columbia.

Then on December 13, 1993, Korean Air Lines filed a

Motion to Vacate and Set Aside the Final Judgment on the

Issue of Liability and Grant a New Trial Pursuant to Rule

60(b) of the Federal Rules of Civil Procedure. In response

to that Motion, District Judge Aubrey E. Robinson, Jr.

requested the J.P.M.L. by letter dated February 4, 1994 to

re-transfer all damages cases pending in the other district

courts to his court for centralized disposition of KAL’s

Rule 60(b) Motion. The J.P.M.L. ordered the transfer or re-

transfer of all KAL damage claims pending in other dis-

trict courts to the District of Columbia on April 12, 1994.

As of that date, however, several cases had been tried to

verdict (including the Zicherman action) and were pend-

ing in the United States Courts of Appeals for the Second,

Ninth, Sixth, and District of Columbia Circuits. Accord-

ingly, those cases were not affected by the J.P.M.L.’s

Order since the Panel's jurisdiction only extends to

United States District Courts. 28 U.S.C. §1407. Those

appeals are proceeding according to individual schedules

and are still pending in the Courts of Appeals identified

in the Appendix.

After the J.P.M.L. re-transferred all actions to the

District Court for the District of Columbia, District Judge

Aubrey E. Robinson, Jr., stayed all further proceedings

until the Rule 60(b) Motion was decided. On July 1, 1994,

Judge Aubrey E. Robinson, Jr., denied KAL’s Rule 60(b)

Motion. In re Korean Air Lines Disaster, 156 F.R.D. 18

(D.D.C. 1994). KAL appealed the denial of the Motion to

the United States Court of Appeals for the District of

Columbia Circuit. By Order dated April 5, 1995, the Cir-

cuit Court unanimously affirmed District Judge Aubrey

E. Robinson's denial of KAL’s Motion. In re Korean Air

Lines Disaster, __ F.3d __, 1995 U.S. App. Lexis 8840

(D.C. Cir. 1995) (per curiam).

All of the district court cases that had been re-trans-

ferred to the District of Columbia, as well as those that

had originally been filed in that court, are currently pend-

ing before District Judge Aubrey E. Robinson, Jr., as set

forth with more particularity in the Appendix to the

Motion.

This Motion for Leave to File a Brief Amici Curiae is

filed on behalf of all plaintiffs in the District Court and

Courts of Appeals (other than Zicherman) whose actions

arise as a result of the deaths of passengers on board

Korean Air Lines Flight 7 (KE 007) on September 1, 1983,

which deaths resulted from the wilful misconduct of

agents, servants and employees of Respondent KAL dur-

ing international air transportation which implicates the

provisions of the Warsaw Convention.

ARGUMENT

In the Writs for Certiorari pending before the

Supreme Court, this Court will decide whether loss of

society damages are available in a cause of action arising

from the Warsaw Convention as “damage sustained”. The

particular case in which Certiorari was granted, Zicherman

v. Korean Air Lines, involves the sister and mother of a

deceased passenger. In Zicherman, the Second Circuit held

that only dependents may recover damages for loss of a

decedent's society. Zicherman v. Korean Air Lines, 43 F.3d

18, 22 (2d Cir. 1994), cert. granted, 63 U.S.L.W. 3745 (U.S.

Apr. 18, 1995) (Nos. 94-1361, 94-1477).

This Court's decision on whether loss of society dam-

ages are “damage sustained” within the meaning of the

Warsaw Convention will have far-reaching effects on all

of the KE 007 cases currently pending in the courts below.

The cases below encompass a wide variety of family

settings. The familial relationships of the claimants to the

decedents vary widely, presenting a wide spectrum of

family circumstances. The Court's decision on the issues

addressed in the Writs for Certiorari are critically impor-

tant to the plaintiffs below whose beloved family mem-

bers have been killed as a result of the egregious

misconduct of the Respondent KAL. Thus, this Court's

decision has direct implications for the lives of scores of

families beyond the family in the Zicherman action.

Petitioner Zicherman will necessarily concentrate on

the peculiar facts of that case. The proposed Amici tender

a brief that will treat the issues more generically. We

believe that our contribution should assist the court in

setting the issues presented in a broader context, thus

ensuring a wider grasp of the grave importance of this

decision for all passengers who travel in international

flight to which the Warsaw Convention is applicable and,

particularly, to the Amici herein.

Dated: May 31, 1995

Respectfully submitted,

Sreiser, Krause, Mapore & Cook

Juanita M. Madole

A-l

APPENDIX

Plaintiffs whose cases are currently pending in the

United States District Court for the District of Colum-

bia are as follows:

Case No. Plaintiff

83-2793

83-2940

83-3177

83-3289

83-3793

83-3890

84-0331

84-0332

84-0542

84-1707

84-1710

84-2858

85-2788

85-3444

84-9334

85-9330

85-5327

Philomena Dooley

Kimberly Saavedra

Anne K. Fletcher

and Anne Hutchin-

son Powrie

Mayuree Siripoon

Parvaneh Zareh

In Jig Lin

Robert Boyar

Sung Sheen Uhm

Shirley Katz

Carl M. Cole

Allan J. Levenson

Indep Ing.

Robert Boyar

Kimberly Saavedra

85-5329A Kimberly Saavedra

85-5329B Kimberly Saavedra

Decedent

Cecelio Chuapoco

Jan Hjalmarsson

lan Powrie

Jintana Siripoon

Darioush Zareh

San Mei Lin

Jan Moline

Michael Truppin

Ok Soon Chung

Jack Katz

Kwang Woon Siow

Sung Boo Yoon

Property Loss

Park

Tomiko Kohno

Hiroaki Kawana

C. Kim

J. Lee, W. Lee,

H. Jung

H. Kim

85-5329C

85-4869

85-5329D

85-5490

83-4624

83-4626

83-3890

84-1521

84-1707S

85-5757

84-5248

84-5247

84-0691

84-1117

84-0693

83-8765

83-7717

84-4083

84-0670

84-7901

84-0688

84-0669

84-0675

A-2

Kimberly Saavedra

Maria Beirn

Robert Speir

Hans Ephraimson-

Abt

Chong Cha Kim

Joann C. Dunn

Leonore D. Lebow

Diana Chao

Tzen Chang

Andi Donovan

Chi-Chin Lin

R. Caltabellatta

Adhuk Homlaor

Chan May Kung

Hee Sook Lee

Liu Tseui Yu Lee

Shen Yon Liu

L. Kim

Sayuri Mano

H.S. Park

Lee

James Beirn

Kathy Brown Speir

Alice Ephraimson-

Abt

Jin Hong Kim

Susan Campbell

Diane Ariyadej and

Sammy Ariyadej

Su-Jen Chan

Yee Shine Chan

Mason Chang

Tsai Chen Chang

Ju-Yen Cheng

Celita Chuapoco

Mary Chuapoco

Tommy Homloar &

Amporn Hansuwan-

pisit

Chin Fan Kung

Eun Hyung Lee

Li-Cheng Lee

Yun Hsin Chung

Chao Po Liu

43.

47.

Il.

A-3

84-0681 Shen Yon Liu Hsuan Yun Hsin

Chung

83-6977. Eun Jung Oh Anna Song

83-7903

84-0788 Lih-Hwa Yu Chen’ C. Tien

84-0677 Wang-Huey Ping Cheng-Liu Yeh

Yeh

83-7231 David Wu Dunn Sirena Wu Dunn

The following cases arising out of the subject air

disaster are currently pending in the indicated

United States Courts of Appeals:

Bickel, et al. v. Korean Air Lines Co., Ltd., (Edna Doris

Miller, Joyce Chambers, Eleanor Bissell, Hazel James,

and Margaret Zarif, deceaseds) Nos. 93-2144, 93-2206,

93-2259, 93-2341, 93-2549, 94-1096, 94-1098, 94-1100,

94-11021 (6th Cir. docketed Sept. 2, 1993).

Saavedra v. Korean Air Lines Co., Ltd., (Masakasu

Yamaguchi, deceased) Nos. 94-55018, 94-55060,

94-55161 (9th Cir. docketed Jan. 6, 1994).

Hollie v. Korean Air Lines Co., Ltd., (Frances Mae Swift,

deceased) No. 94-7208 (2d Cir. docketed Feb. 25,

1994)

Saavedra v. Korean Air Lines Co., Ltd., (Makoto Okai

and Yoko Okai, deceaseds) Nos. 94-55495, 94-55496

(9th Cir. docketed Apr. 18, 1994).

Ocampo v. Korean Air Lines Co., Ltd., (Suellyn Ocampo,

deceased) Nos. 94-5323, 94-5424 (D.C. Cir. docketed

Oct. 31, 1994).

A-4

Oldham v. Korean Air Lines Co., Ltd., (John Oldham,

deceased) Nos. 94-5321, 94-5338 (D.C. Cir. docketed

Nov. 17, 1994).

Maikovich v. Korean Air Lines Co., Ltd., (Allen Kohn

and Lillian Kohn, deceaseds) No. 94-5371, (D.C. Cir.

docketed Dec. 23, 1994).

Nos. 94-1361, 94-1477

In The

Supreme Court of the United States

October Term, 1994

MARJORIE ZICHERMAN, individually and

as executrix of the estate of Muriel A.M.S. Kole,

and Muriel Mahalik,

Petitioner,

KOREAN AIR LINES CO., LTD.,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

BRIEF AMICI CURIAE OF PHILOMENA DOOLEY,

ET AL. IN SUPPORT OF PETITIONER ZICHERMAN

QUESTION PRESENTED FOR REVIEW

Since the Warsaw Convention allows recovery for

“damage sustained”, are damages for ioss of society

recoverable?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TREATY PROVISIONS INVOLVED................. 1

DERE GIT UE Gch n dec ccesectcccccccss 2

SUMMARY OF THE ARGUMENT ................. 6

SE co tdubh eens tdkds betiwnnddbheeaesakoin 8

I THE WARSAW CONVENTION ITSELF CRE-

ATES AN INDEPENDENT AND SUBSTANTIVE

CAUSE OF ACTION WITH ITS ATTENDANT

RIGHTS AND REMEDIES..................... S

A. The Words Of The Text And Their

ee ie eues 11

1. “DOMMAGE SURVENU”............. 11

2. THE ORDINARY MEANING OF

gi I a aa IIS Co MO 12

B. The History Of The Treaty................ 12

C. The Drafters Intended National Substantive

Sef FR rrry TTT ree 17

Il. FEDERAL COMMON LAW SUPPORTS THE

RIGHT TO RECOVER FOR LOSS OF SOCIETY 19

A. There Is A Federal Common Law Cause Of

Action For Wrongful Death Which Permits

Loss Of Society Damages................. 19

B. Financial Dependency Is Not A Prerequisite

To Recover Loss Of Society Damages Under

The Warsaw Convention .................. 23

Ill. THE COURT IS NOT CONSTRAINED BY MAR-

ITIME DECISIONS AND STATUTES IN THESE

WARSAW CONVENTION ACTIONS.......... 24

TABLE OF CONTENTS - Continued

ese | ee ee new heg vanede det hee mad 27

APPENDIX

TABLE OF AUTHORITIES

Page

Cases:

Air France v. Saks, 470 U.S. 392 (1985)............. 9, 10

American Airlines v. Ulen, 186 F.2d 529 (D.C. Cir.

ntelitl dws cas cae eee eae ead ake endines 24

American Export Lines, Inc. v. Alvez, 446 U.S. 274

i a a tl ak Be 21

Benjamins v. British European Airways, 572 F.2d 913

(2nd Cir. 1978), cert. denied, 439 U.S. 1114 (1979) ..... 8

Chan v. Korean Air Lines Co., Ltd., 490 U.S. 122

DNS Cakdes ne waedwacdinteuakmabavetdeesiuneaes 10

Choctaw Nation of Indians v. United States, 318 U.S.

SP Es oennindeceueuns cue cede hebiabaswenanss 10

Clearfield Trust Co. v. United States, 318 U.S. 363

GO Susdcdusvccunthe dase deksovudug on Rettesdéhess 19

Corporacion Venezolana de Fomeato v. Vintero Sales

Corp., 629 F.2d 786 (2d Cir. 1980)................. 19

Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d

Cir. 1975), cert. denied, 429 U.S. 890 (1976) ..... 13, 16

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991). . 8, 9, 10

Eck v. United Arab Airlines, Inc., 360 F.2d 804 (3d

Ce Es Cio oe ce ccacbubende dete dest iwkedicase 25

Harris v. Polski Linie Lotniczne, 820 F.2d 1000 (9th

ee EE 6 on w cocuudasbneebee Webiewetenteseesess 19

In re Air Crash in Bali, Indonesia on April 22, 1974,

— b> 8: FF fe e ere 26

In re Air Disaster at Lockerbie, Scotland on December

21, 1988, 928 F.2d 1267 (2d Cir.), cert. denied, 502

Shs EEE fc L.cral chad cbawe ae etodneitvcees .16, 19

TABLE OF AUTHORITIES - Continued

Page

In re Disaster at Lockerbie, Scotland on December 21,

3506, S7 FSd GO6 Ga Cie. IGG)... ccccccccces. 19, 23

In re Korean Air Lines Disaster of September 1, 1983,

156 F.R.D. 18 (D.D.C. 1994), aff'd __ F3d __

1995 U.S. App. LEXIS 8840, (D.C. Cir. 1995) (per

ee eee ee ee re ie eee oes 6

In re Korean Air Lines Disaster of September 1, 1983,

932 F.2d 1425 (D.C. Cir. 1991), cert. denied, 502

Se ac Osis tNGharedcksnavecuddones 4, 11, 16

In re Mexico City Air Crash o; October 31, 1979, 708

Pee ey I Sok ccwedbcstdcdecéwesones 8, 26

Kapar v. Kuwait Airways Corp., 845 F.2d 1100 (D.C.

lr Sc nak ecited ceUee bi abécnededbesbene cece 26

KLM v. Tuller, 292 F.2d 775 (D.C. Cir. 1961)......... 24

Maximov v. United States, 373 U.S. 49 (1963)......... 10

Mertens v. Flying Tiger Lines, Inc., 341 F.2d 851 (2d

Cir. 1965), cert. denied, 382 U.S. 816 (1965) ..... 18, 25

Miles v. Apex Marine Corp., 498 us 4 r- =

Miree v. DeKalb County, Georgia, 433 U.S. 25 (1977) .... 19

Mobile Oil Corp. v. Higgenbotham, 436 U.S. 618

Wa bindh jas bdeedscaedbensse tl eebesoudibeseses 23

Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d

583 (2d Cir. 1961), cert. denied, 368 U.S. 989, reh.

ee ee se as 5 bus ccorkeed> ccccccees 22

TABLE OF AUTHORITIES - Continued

Page

Moragne v. States Marines Lines, 398 U.S. 375

i. PRATT Tir et er ee 20, 21

Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77 (9th

GOR DUD v0 <s.cwingeece damees vknwedcondat usicbenes 22

Reed v. Wiser, 555 F.2d 1079 (2d Cir. 1977)........... 15

Sea-Land Service, Inc. v. Gaudet, 414 U.S. 573 (1974). .20, 23

Sociéti Nationale Industrielie Aerospatiale v. United

States District Court, 482 U.S. 522 (1987) .......... 10

Soloman v. Warren, 540 F.2d 777 (5th Cir. 1976), reh.

denied, 545 F.2d 1298, cert. dismissed sub nom

Warren v. Serody, 434 U.S. 801 (1977).............. 22

Sutton v. Earles, 26 F. 3d 903 (9th Cir. 1994)....... .. 23

Texas Industries v. Radcliff Materials, 451 U.S. 630

CNG as a cakddbne wade ta ee eneee cc ecke cand Ceake 19

The Harrisburg, 119 U.S. 199 (1886)..............06.. 20

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486

Seth, Ce WN adn 5a i05055 pus ei gases ubeiunte<as 10

Zicherman v. Korean Air Lines Co., Ltd., 43 F.3d 18 (2d

Cir. 1994), cert. granted, 63 U.S.L.W. 3745 (U.S. Apr.

18, 1995) (Nos. 94-1361, 94-1477). ............. 5, 19, 23

Treaties, STATUTES AND RULEs:

OR ry crate reece 2

Federal Employees Liability Act (FELA), 46 U.S.C.

CN 4 ccudindngnucnehenndsaeseweasaenss 25

vil

TABLE OF AUTHORITIES - Continued

Page

Rule 60(b) of the Federal Rules of Civil Procedure ...5, 6

The Convention for the Unification of Certain

Rules Relating to International Transportation

by Air, October 12, 1929, 49 Stat. 3000, T.S. No.

876 (1934), reprinted in note following 49 U.S.C.

BN nas 684 veenwd denban 5 tb bess6¥s K0ed <é<- passim

The Death On The High Seas Act, 41 Stat. 537, 46

Spies ED © MPMI Bi das ocdciseuvckccneccnss 21

The Jones Act, 41 Stat. 1007, 46 U.S.C. §688......... 21

OrHer AUTHORITIES:

See EY COE byes vdeo ndnnesensesecines 16

Agreement Relating to Liability Limitations of the

Warsaw Convention and The Hague Protocol,

Civil Aeronautics Board Agreement 18900, note

following 49 U.S.C. App. §1502 (approved by

Civil Aeronautics Board Order E-23680 May 13,

Se ee MA PUNE Cad edwedednescenesevecccs. 3

Calkins, The Cause of Action Under the Warsaw

Convention, 26 J.Air. L. 217 (1959).............. 13, 18

D. Goedheus, National Airlegislations and the War-

Nee ine tense 18

G. Miller, Liability in International Air Transport

DSi ees thle GLC seinidananeede sth r adnan ce 46es 11

H.R. 956, 104th Cong., Ist Sess. (1995) .............. 21

IV The Oxford English Dictionary (2d ed., Claren-

Ee a RS a ee a 12

Vili

TABLE OF AUTHORITIES - Continued

L. Goldhirsch, The Warsaw Convention Annotated: A

Legal Handbook (Martinus Nijhoff, 1988)........... 14

Lowenfeld and Mendelsohn, The United States and

the Warsaw Convention, 80 Harv. L. Rev. 497

SG ar CUS teas Sea aeedkade Lene bes tren as 4, 13, 15

R. Mankiewicz, The Liability Regime of the Interna-

tional Air Carrier 156 (1981).................... 11, 18

M. Milde, The Problems of Liabilities in International

Carriage by Air (Caroline Univ. 1963)............ 9, 18

Minutes of IInd International Conference for Pri-

kk, SN Serpe t es Peon On ee Pee 17

New Collegiate Dictionary (G.C. Merriam Co.

DOPE ica cn cde des ce ckuscee stevens bi ted die take eN a. 12

Senate Comm. on Foreign Relations, Message from the

President of the United States Transmitting a Con-

vention for the Unification of Certain Rules,

Sen.Exec.Doc. No. G, 73rd Cong., 2d Sess.

0 PN Pte ee eet eC eer et eee 14

Speiser, Krause & Madole, Recovery for Wrongful

Death and Injury 227-40 (3d Ed., Clark Board-

SE ita onac dns cece SEN ehe an ee we 20

Sullivan, The Codification of Air Carrier Liability By

International Convention, 7 J.Air. L. 1 (1936)........ 13

Wee Be Cy 6505s 68K s cece eneaceesseecneess 15

The Protocol to Amend the Convention for the

Unification of Certain Rules Relating to Interna-

tional Carriage By Air Signed at Warsaw on 12

October 1929, Sept. 1955, International Civil

Aviation Organization Doc. 7686-LC/140 ......... 14

Webster’s New World Dictionary of the English

PPP TTT TET TTT Tee 12

TREATY PROVISIONS INVOLVED

Amici Curiae are the surviving family members or

personal representatives of the estates, or both, of pas-

sengers who were killed while engaged in international

transportation by air within the meaning of the Warsaw

Convention, a multilateral treaty governing the rights

and remedies of international air passengers. Convention

for the Unification of Certain Rules Relating to Interna-

tional Transportation by Air, October 12, 1929, 49 Stat.

3000, T.S. No. 876 (1934), reprinted in note following 49

U.S.C. App. 1502.

Article 17 sets forth the causes of action available

under the Treaty as follows:

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.

Also involved is the provision of the Treaty which

establishes that the air carrier cannot avail itself of a

limitation on compensatory damages for egregious con-

duct, Article 25:

(1) The carrier shall not be entitled to avail

himself of the provisions of this Convention

which exclude or limit his liability, if the dam-

age is caused by his wilful misconduct or by

such default on his part as, in accordance with

the law of the Court to which the case is submit-

ted, is considered to be equivalent to wilful

misconduct.

(2) Similarly, the carrier shall not be enti-

tled to avail himself 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

On September 1, 1983 a Korean Air Lines Co., Ltd.

(hereinafter “KAL”) Boeing 747 being operated as KE 007

en route from New York’s JFK Airport to Seoul, South

Korea was shot down by military aircraft of the former

Soviet Union while in Soviet airspace approximately 350

miles north of its assigned route of flight. Ail 269 persons

on board the plane perished. Survivors of the victims

filed wrongful death actions against KAL in several fed-

eral district courts, all of which were transferred to the

United States District Court for the District of Columbia

(per Judge Aubrey E. Robinson, Jr.) pursuant to 28 U.S.C.

§1407. The Amici Curiae are the surviving family members

or personal representatives', or both, of the deceasca

1 The plaintiffs in the actions below are as follows, with the

respective decedent passengers identified in parentheses: Phi-

lomena Dooley (Cecelio Chuapoco); Anne K. Fletcher, Anne

Hutchinson Powrie (lan Powrie); Mayuree Siripoon (Jintana Sir-

ipoon); Parvaneh Zareh (Darioush Zareh); In Jig Lin (San Mei

Lin); Robert Boyar (Jan Moline); Robert Boyar (Michael Trup-

pin); Sung Sheen Uhm (Ok Soon Chung); Shirley Katz (Jack

Katz); Carl M. Cole (Kwang Woon Siow); Allan J. Levenson

(Sung Boo Yoon); Robert Boyar (Park); Kimberly Saavedra (Jan

Hjalmarsson, Yooko Okai, Tomiko Kohno, Hiroaki Kawana,

Makoto Okai, C. Kim, J. Lee, W. Lee, H. Jung, H. Kim, L. Kim,

Sayuri Mano, HS. Park, Lee); Maria Beirn (James Beirn); Robert

passengers whose damages claims are still pending in the

district court and four Circuit Courts of Appeals.

In 1989, a jury trial commenced in the District Court

for the District of Columbia to determine whether KAL

had committed “wilful misconduct”, an affirmative find-

ing of which would preclude KAL from invoking the

$75,000 per passenger monetary cap? that KAL otherwise

Speir (Kathy Brown Speir); Hans Ephraimson-Abt (Alice

Ephraimson-Abt); Chong Cha Kim (Jin Hong Kim); Joann C.

Dunn (Susan Campbell); Leonore D. Lebow (Diane Ariyadej,

Sammy Ariyadej); Diana Chao (Su-Jen Chan); Diana Chao (Yee

Shine Chan); Tzen Chang (Mason Chang); Andi Donovan (Tsai

Chen Chang); Chi-Chin Lin (Ju-Yen Cheng); R. Caltabellatta

(Celita Chuapoco); R. Caltabellatta (Mary Chuapoco); Adhuk

Homlaor (Tommy Homloar, Amporn Hansuwanpisit); Chan

May Kung (Chin Fan Kung); Hee Sook Lee (Eun Hyung Lee);

Liu Tseui Yu Lee (Li-Cheng Lee); Shen Yon Liu (Yun Hsin

Chung); Shen Yon Liu (Chao Po Liu); Shen Yon Liu (Hsuan Yun

Hsin Chung); Eun Jung Oh (Anna Song); Lih-Hwa Yu Chen (C.

Tien); Wang-Huey Ping Yeh (Cheng-Liu Yeh); David Wu Dunn

(Sirena Wu Dunn); Nan Oldham (John Oldham); Marsha J.K.

Maikovich (Allen and Lillian Kohn); Eric Forman (Evelyn For-

man); Edward Ocampo (Suellyn Ocampo); Daisy Bickel (Eden

Doris Miller); Dorothy Jones (Joyce Chambers); Richard Bow-

den (Eleanor Bissell); Willie N. James (Hazel James); Michael D.

Jones (Margaret Zarif); Barbara Swift Hollie (Francis Mae

Swift); Michael Kole (Murial A.M.S. Kole).

2 Under the Warsaw Convention, the carrier can avail itself

of a per passenger monetary limit of approximately $8,300.

Because of American dissatisfaction with the low limit, air car-

riers agreed to (and the Civil Aeronautics Board approved) an

increase in the limit to $75,000 per passenger for flights to, from,

or with a stopover in the United States. Agreement Relating to

Liability Limitations of the Warsaw Convention and The Hague

Protocol, Civil Aeronautics Board Agreement 18900, note fol-

lowing 49 U.S.C. App. §1502 (approved by Civil Aeronautics

had available under the Treaty to limits its liability. On

August 2, 1989, the jury returned a verdict holding KAL

liable for wilful misconduct which was a proximate cause

of the passengers’ deaths. On appeal, the United States

Court of Appeals for the District of Columbia Circuit

affirmed the finding of wilful misconduct.* In re Korean

Air Lines Disaster of September 1, 1983, 932 F.2d 1425 (D.C.

Cir. 1991), cert. denied, 502 U.S. 994 (1991).

After denial of certiorari, District Judge Robinson

remanded all of the federal cases which had not been

filed in his court to the originating district courts for the

Southern District of New York, the Eastern District of

New York, the District of New Jersey, the Central District

of California, the Northern District of California, the

Eastern District of Michigan, and the Disirict of Massa-

chusetts for litigation on issues of damages.

Thirteen jury trials and one bench trial were con-

ducted in the United States District Courts for the Eastern

District of New York, the Eastern District of Michigan, the

District of Columbia, the Central District of California,

and the Northern District of California. Appeals were

taken from the verdicts and are currently pending in the

United States Courts of Appeals for the District of

Board Order E-23680 May 13, 1966, 31 Fed. Reg. 7302). See

generally, Lowenfeld & Mendelsohn, The United States and the

Warsaw Convention, 80 Harv. L. Rev. 497 (1967).

3 The jury had also awarded punitive damages; that verdict

was reversed on appeal. In re Korean Air Lines Disaster of Septem-

ber 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991), cert. denied, 502 US.

994 (1991).

Columbia Circuit, the Sixth Circuit, the Ninth Circuit, and

the Second Circuit.*

An appeal was taken in Zicherman v. Korean Air Lines,

which had been tried in the Southern District of New York,

to the United States Court of Appeals for the Second Circuit.

On November 3, 1994, the Second Circuit affirmed the Dis-

trict Court's verdicts except that it vacated damages for loss

of society, holding that such damages are not recoverable

unless the surviving relatives were financially dependent on

the decedent. The Zicherman court also denied a right to

recover for mental injury suffered by the survivors. On

December 5, 1994, the Second Circuit withdrew its initial

opinion and filed an amended opinion holding that the

jury's awards for loss of support and loss of inheritance were

also subject to a financial dependency requirement. Zicher-

man v. Korean Air Lines Co., Ltd., 43 F3d 18 (2d Cir. 1994).

Petitions for Writs of Certiorari were filed with this Court by

both Zicherman and KAL. On April 18, 1995, this Court

granted both Petitions for Writs of Certiorari. 63 U.S.L.W.

3745 (U.S. Apr. 18, 1995) (Nos. 94-1361, 94-1477).

In addition to the claims currently pending in the Courts

of Appeals, there are 46 wrongful death actions currently

awaiting damages disposition in the United States District

Court for the District of Columbia.5

* See Appendix to Motion for Leave to File Brief Amici

Curiae.

* All actions were returned to the United States District

Court for the District of Columbia following a Motion pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure filed in that

Court by KAL to set aside the liability judgment and for a new

trial on liability. At the request of Judge Robinson, the Judicial

SUMMARY OF THE ARGUMENT

Article 17 of the Warsaw Convention establishes an

independent cause of action for wrongful death and per-

sonal injuries sustained during international transporta-

tion by air, whether on board the aircraft, or in the course

of embarking or disembarking. See Article 17, Appx. A-1.°

The liability of the carrier for such deaths and injuries is

for “damage sustained”. The ordinary usage of the words

of the Treaty and the shared expectations of the Treaty’s

drafters confirm that “damage sustained” includes dam-

ages for loss of a decedent's care, comfort and society.

The Treaty imposes no requirement that damages for loss

of society, which are essentially damages for the destruc-

tion of a close family relationship, be conditioned upon

financial dependency.

The Warsaw Convention was conceived by its

drafters to achieve several goals. One goal was to enable

Panel for Multi-District Litigation re-transferred all of the actions

from other district courts to the District of Columbia for a consoli-

dated decision on KAL’s Rule 60(b) motion. Judge Robinson denied

the motion. In re Korean Air Lines Disaster of September 1, 1983, 156

F.R.D. 18 (D.D.C. 1994). KAL appealed. The Court of Appeals for the

District of Columbia Circuit unanimously affirmed Judge Robin-

son’s decision. In re Korean Air Lines Disaster of September 1, 1983, __

F.3d __, 1995 U.S. App. LEXIS 8840, (D.C. Cir. 1995) (per cur-

iam). A petition for certiorari has not been filed. The other

actions arising from the KE 007 catastrophe currently remain in

the United States District Court for the District of Columbia and

further proceedings have been stayed by that Court. A list of the

wrongful death actions is contained in the Appendix to the

Motion for Leave to File a Brief Amici Curiae.

* “Appx.” followed by a page number refers to the Appen-

dix attached hereto which contains relevant provisions of the

Warsaw Convention.

Ossees

tte 2 ee

Ce ee

families of passengers who were killed or persons injured

in international flights to be compensated for the losses

incurred. To implement that goal in an era when it was

difficult to establish the causes of airplane accidents, the

drafters shifted the burden of proof to the carrier to prove

that it had taken “all necessary measures” to prevent the

accident. See, Article 20(1), Appx. A-1. The quid pro quo

for the presumption of the carrier liability was the right

of the carrier to limit its liability for ordinary negligence

to a known monetary amount for each passenger. A sec-

ond important goal of the Convention, however, was to

deter carriers from particularly egregious misconduct

which was the equivalent to “wilful misconduct”. See,

Article 25, Appx. A-1-A-2. The method chosen to deter

such wilful misconduct was to provide that the carrier

committing such outrageous behavior be obliged to pay

for all resulting injuries.

“Moral” damages such as for loss of society were

well-established in civil law countries when the Treaty

was drafted. The drafting history contains no hint that

the drafters intended to preclude damages for loss of

society or to limit damages to pecuniary losses. Nowhere

in the text of the Treaty is the word “pecuniary”, or its

equivalent, mentioned. Rather, the drafters of the Treaty

left to each of the signatory countries the exact delinea-

tion of recoverable damages and applicable beneficiaries,

as long as the damages assessed were consistent with the

goals of the Treaty. Only by permitting a broad range of

compensatory damages, including damages for loss of

society, can the goal of deterring egregious misconduct be

achieved. In delineating the damages available in the

cause of action established by the federal Treaty, federal

common law must be consulted to implement inherently

federal policies.

In addition to effectuating the goals of the Treaty,

acknowledging damages for loss of society is consistent

with federal common law policies and its evolution of

remedies for tortious conduct. Federal common law is

ascertained by reference to its application in analogous

areas, to federal statutes that may address like issues and

to the policies independently adopted by state legisla-

tures on similar matters. The federal common law must

also reflect the policies meant to be achieved by the

Treaty’s goals. Federal common law provides a recovery

for family members’ loss of a decedent's society.

ARGUMENT

I. THE WARSAW CONVENTION ITSELF CREATES

AN INDEPENDENT AND SUBSTANTIVE CAUSE

OF ACTION WITH ITS ATTENDANT RIGHTS

AND REMEDIES

Article 17 of The Warsaw Convention creates an inde-

pendent and substantive cause of action for personal

injuries and wrongful deaths which occur in international

transportation, which action establishes a right to recover

for “damage sustained”. See Eastern Airlines, Inc. v. Floyd,

499 U.S. 530 (1991) (hereinafter referred to as “Floyd”)

(holding that Article 17 itself provides the cause of action

for personal injuries); In re Mexico City Air Crash of Octo-

ber 31, 1979, 708 F.2d 400, 409-16 (9th Cir. 1983) (contain-

ing an exhaustive analysis the judicial evolution of the

Warsaw cause of action in American courts); Benjamins v.

British European Airways, 572 F.2d 913 (2nd Cir. 1978), cert.

denied, 439 U.S. 1114 (1979); M. Milde, The Problems of

Liabilities in International Carriage by Air 24 (Caroline Univ.

1963). (The Warsaw Convention lays down a uniform

substantive law regime of the liability of the carrier for

damage sustained by a passenger if the occurrence which

caused the damage took place during the carriage by air.)

Since the Warsaw Convention creates an independent

cause of action for wrongful death, the breadth of the

remedies must be defined by the words and intent of the

Treaty itself, the context in which the written words are

used, and the expectations of the drafters. Floyd, supra,

499 U.S. at 534-35.

Because the only authentic text of the Warsaw Con-

vention is in French, the French text of Article 17 must

guide this analysis. Floyd, 499 U.S. at 534 (citing Air

France v. Saks, 470 U.S. 392, 397 (1985)). The text reads as

follows:

Le transporteur est responsable du dommage sur-

venu en cas de mort, de blessure ou de toute

autre lésion corporelle subie par un voyageur

lorsque l’accident qui a causé le dommage s’est

produit a bord de Il’aéronef ou au cours de

toutes opérations d’embarquement et de débar-

quement. 49 Stat. 3005 (emphasis added).

The American translation of the French text,

employed by the Senate when it ratified the Convention

in 1934, and previously utilized by this Court, Floyd,

supra, 499 U.S. at 535, reads:

The carrier shall be liable for damage sustained in

the event of death or wounding of a passenger

or any other bodily injuries suffered by the pas-

senger, 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 embark-

ing or disembarking. 49 Stat. 3018 (emphasis

added). .

Thus, under Article 17, an air carrier is liable for the

wrongful death of a passenger when three conditions are

satisfied: (1) There has been an accident in which (2) the

passenger was killed as a result of said accident which

occurred on board an aircraft or in the course of the

operations of embarking or disembarking, from which

there was (3) damage sustained. It cannot be denied that

the deaths of the passengers on KE 007 occurred while

they were passengers on board an aircraft in international

flight and that the events causing the deaths were an

accident within the meaning of Article 17. See generally

Air France v. Saks, supra. Thus, Article 17 is the foundation

for the cause of action for these wrongful deaths. Its

words and their meanings must be explored to define the

cause of action. Floyd, supra, 499 U.S. at 534-35 (citing

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694

(1988)) and (quoting Sociéti Nationale Industrielle Aero-

spatiale v. United States District Court, 482 U.S. 522, 534

(1987)); Air France v. Saks, 470 U.S. 392, 397 (1985); accord

Chan v. Korean Air Lines Co., Ltd., 490 U.S. 122, 134 (1989);

Maximov v. United States, 373 U.S. 49, 53-54 (1963). The

Court may also look to the history of the Treaty, the

negotiations, and the practical construction adopted by

the parties. Floyd, supra, 499 U.S. at 435 (citing Air France,

supra, 470 U.S. at 396) (quoting Choctaw Nation of Indians

v. United States, 318 US. 423, 431-432 (1943)); accord Volks-

wagenwerk, supra, 486 U.S. at 700.

A. The Words Of The Text And Their Context

1. “DOMMAGE SURVENU”

The Warsaw Convention was drafted by Continental

jurists from both civil law and common law countries.

Civil law countries, including France, provided full com-

pensation for all damage sustained (“dommage sur-

venu”) as a result of an injury or death as long as they

were certain and direct. In re Korean Air Disaster of Septem-

ber 1, 1983, supra, 932 F.2d at 1487 (citing G. Miller,

Liability in International Air Transport 112 (1977) (hereinaf-

ter “G. Miller”)); R. Mankiewicz, The Liability Regime of the

International Air Carrier 156 (1981) (hereinafter “R. Man-

kiewicz”). “Dommage survenu” included “dommage

matérial” which provided compensation for pecuniary

loss resulting from death or injury. G. Miller, supra, at 112.

It also included “dommage moral” which provided com-

pensation for non-pecuniary damages such as for pain

and suffering of a victim of an accident or the sufferings

of the family of the victim in the case of death. G. Miller,

supra, at 112-113; R. Mankiewicz supra, at 156.

Thus, the drafters and signatories of the Treaty

intended and expected air disaster victims to be compen-

sated for a broad range of damages. No where in the text

are there modifying adjectives such as “pecuniary” or its

equivalent. Nothing in the drafting history or in subse-

quent commentator analysis suggests any intent to pre-

clude damages for loss of society for the very real

destruction of a close family relationship.

2. THE ORDINARY MEANING OF “DAM-

AGE”

The ordinary meaning of the English word “damage”

confirms that it is broader than mere pecuniary loss.

The Oxford English Dictionary defines “damage” in

the first instance as “loss or detriment caused by hurt or

injury affecting estate, condition, or circumstances”. IV

The Oxford English Dictionary (2d ed., Clarendon Press)

(1989).

Webster’s New World Dictionary of the English Lan-

guage (Warner, 1987) defines “damage” as “injury or

harm resulting in a loss”.

Similarly, the New Collegiate Dictionary (G.C. Mer-

riam Co. 1977) defines “damage” as “loss or harm result-

ing from an injury to person, property or reputation.”

Thus, ordinary usage of “damage” is not confined to

pecuniary or financial detriment and permits recovery for

injuries such as loss of society.

B. The History Of The Treaty

The Warsaw Convention was concluded on October

12, 1929 during the infancy of international air travel. The

Convention established a fault-based system for air car-

rier liability with the burden placed upon the carrier to

show lack of negligence by proving that all necessary

measures to avoid the damage had been taken or that it

was impossible to take such measures. See Article 20(1),

Appx. A-1. The quid pro quo for the presumption of negli-

gence was a monetary limit of liability per passenger of

—<

approximately $8,300. Sr generally Lowenfeld and Men-

delsohn, The United Siaies and the Warsaw Convention, 80

Harv. L. Rev. 497 (1967).

The Convention had several con:urrent goals. Pri-

mary among them was to create a uniform system of

liability rules that would cover all the hazards of air

travel. Day v. Trans World Airlines, Inc., 528 F.2d 31, 38 (2d

Cir. 1975), cert. denied, 429 U.S. 890 (1976) (citing Sullivan,

The Codification of Air Carrier Liability By International

Convention, 7 J.Air. L. 1, 20 (1936)); Calkins, The Cause of

Action Under the Warsaw Convention, 26 J.Air. L. 217

(1959). Liability was not differentiated into recoveries

disparate for those hazards occurring over land as

opposed to those occurring over water.

Another goal of the Treaty was to provide the victims

of injury with a basis for recovery and to compensate for

those injuries. Day, supra, 528 F.2d at 37-38. Protecting air

passengers and providing victims with full compensation

remain fundamental aims of the Treaty today. Id. (“We

conclude, in sum, that the protection of the passenger

ranks high among the goals the Warsaw signatories now

look to the Convention to serve.”).

The Executive Branch of the Government has consis-

tently focused on the compensatory aspects provided to

the passenger in its support of the Treaty. In his transmit-

tal of the Convention to the United States Senate, Secre-

tary of State Cordell Hull stated:

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 recov-

ery and as tending to less litigation, but that it

will also prove to be an aid in the development

of international air transportation, as such lim-

itation 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 reduction of operating expenses

for the carrier and advantages to travelers 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,

Sen.Exec.Doc. No. G, 73rd Cong., 2d Sess. 3-4

(1934) (emphasis added).

Subsequent dissatisfaction with the low damage

amounts, particularly in the United States, resulted in

another convocation of delegates at The Hague, Nether-

lands in 1955 which concluded with The Hague Protocol.”

Although never ratified by the Senate, the Executive

Branch supported its adoption, largely because it pro-

vided greater compensation to victims. A letter from the

Civil Aeronautics Board to the Senate Foreign Relations

Committee in support of The Hague Protocol reads in

pertinent part:

The major benefits of the [Warsaw] convention

to passengers, shippers and carriers arise from

7 The Protocol to Amend the Convention for the Unification

of Certain Rules Relating to International Carriage By Air

Signed at Warsaw on 12 October 1929, Sept. 1955, International

Civil Aviation Organization Doc. 7686-LC/140, reprinted in L.

Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook

265-274 (Martinus Nijhoff, 1988)

the creation of a uniform body of substantive aviation

liability law, applicable regardless of the place of injury,

domicile of the passenger or shipper, or the nation-

ality of the airline involved. Not only are the rights of

recovery for passengers in the event of personal injury

or death both assured and provided for in the conven-

tion, but the convention contains numerous provi-

sions defining the respective rights of the

consignor, consignee and carrier of air cargo, the

legal effect of the air waybill, and provision for

liability of the initial carrier in situations where the

goods are shipped by several carriers. These provi-

sions of substantive law are applicable to all claims

wherever and however brought, and protect the claim-

ant from provisions of foreign law or exemplary

clauses in the ticket which tend to relieve the

carrier from liability, fix a lower limit of liability

from that provided for in the convention, or other-

wise infringe upon the rules laid down by the

convention.

In the absence of the convention, a claimant

could be subject to a maze of conflicting princi-

ples of conflicts of laws. The discovery and

proof of appropriate law to be applied in cases

where accidents occur in foreign jurisdictions

presents one of the most difficult problems law-

yers must face. The Hague Hearings at 20.

(quoted in Reed v. Wiser, 555 F.2d 1079, 1091 (2d

Cir. 1977)). (emphasis added).

After continued dissatisfaction with the Treaty, the

United States denounced it.* In suggesting denunciation,

Senator Robert Kennedy stated in August, 1965:

Over two million Americans travel annually on.

. international flights. Assuring that they and their

* The United States subsequently withdrew the denuncia-

tion. See generally, Lowenfeld and Mendelsohn, supra.

families are adequately protected in case of accident is,

consequently, a matter of widespread importance

.. . No one questions the fact that the protection

now afforded international travelers is woefully

inadequate.

111 Cong. Rec. 20164 (1965) (cited in Day v. Trans

World Airlines, Inc., supra, 528 F.2d at 36.)

(emphasis added)

Yet another goal of the Treaty was to prevent carriers

from taking advantage of the monetary limit if the con-

duct causing the injury was particularly egregious or the

equivalent of wilful misconduct. See Article 25, Appx.

A-1-A-2. The drafters clearly intended to sanction a car-

rier for gross negligence or outrageous conduct and to

permit the advantage of limited liability only for ordinary

negligence. The deterrent purposes of the Treaty can only

be achieved by subjecting a carrier guilty of wilful mis-

conduct to a broad range of compensatory damages since

punitive damages generally are held not to be an avail-

able sanction in Warsaw Convention cases. See, In re Air

Disaster at Lockerbie, Scotland on December 21, 1988, 928

F.2d 1267 (2d Cir.), cert. denied, 502 U.S. 920 (1991); In re

Korean Air Lines Disaster, supra, 932 F.2d at 1484-1490.

Lastly, another goal of the drafters of the Treaty was

to establish a long-lasting document that would be suffi-

ciently adaptable to meet the changing needs of future

users of civil aviation.

The Warsaw delegates knew that, in the years to

come, civil aviation would change in ways that

they could not have foreseen. They wished to

design a system of air law that would be both

durable and flexible enough to keep pace with

these changes. Day v. Trans World Airlines, supra,

528 F.2d at 31.

The flexibility in the area of recoverable damages

was achieved by deferring to the signatory nations appli-

cation of and development of their respective substantive

national law. As damages for torts evolved and expanded

in common law countries, so too could the recoveries for

Warsaw-based injuries be expanded, provided that the

compensatory (for the passenger) and deterrent (for the

carrier) goals were maintained.

C. The Drafters Intended National Substantive

Law To Be Applied

Because the Treaty was intended to operate in a

changing environment of civil aviation and because nei-

ther the civil law countries nor the common law countries

wanted to compromise their philosophical approach to

recoverable damages, the drafters referred detailed defi-

nitions to the substantive law of the signatory countries.?

While “damage sustained” was not defined by the

Treaty, the right to recover actual damages remains within

* As the Reporter of the Warsaw Convention stated on

presenting his report to the conference,

The question has arisen of whether it should be deter-

mined who are the persons who can bring an action in

the event of death and what damages are subject to

reparation. It has not been possible to find a satisfac-

tory solution to this double problem and the

C.1.T.E.J.A. [Comité International Technique

d’Experts Juridiques Aeriens] has considered that

this question of private international law should be

regulated independently of the present convention.

Minutes of IInd International Conference for Private

Air Law, p.166.

the ambit of the Treaty such that its dual goals of com-

pensation to the injured party and deterrence of wilful

misconduct must be maintained. R. Mankiewicz, p.15.

Therefore, a broad range of compensatory damages must

be recoverable.

It is clear, however, that the drafters did not intend

applicable law to depend solely on the locality of the

accident. The drafters gave the injured passenger or his

family a choice of fora in which to bring the action: the

place of incorporation of the carrier, the principal place of

business of the carrier, the place where the contract of

carriage was made, and the place of the destination. See

Article 28, Appx. p.A-2. They did not select as a proper

forum the place the accident occurred as that place was

considered to be purely fortuitous. Mertens v. Flying Tiger

Lines, Inc., 341 F.2d 851, 855 (2d Cir. 1965), cert. denied, 382

U.S. 816 (1965). Calkins, supra, at p.231.

The forum court must look to the entire substantive

law of the forum country to determine recoverable dam-

ages. The drafting history of the Treaty references

national substantive law because the vast majority of the

delegates were from federally unified countries. See, e.g.,

D. Goedheus, National Airlegislations and the Warsaw Con-

vention, 270 (1937) (“The question of whether the plaintiff

has in fact a right of action, and if in the affirmative, the

extent of the obligation to be indemnified, will be decided

by the Court, using as basis the international private law

in force for the court seized of the case”); M. Milde, supra

at p.59 (references to “national law”); R. Mankiewicz,

supra at p.160 (references to “applicable national law”).

The applicable national law in the United States is fed-

eral common law and analogous state law since Congress

has not defined the damages available in a Warsaw Conven-

tion cause of action. Use of federal common law is appropri-

ate to address policy issues involving federal treaties with

international implications. See Miree v. DeKalb County, Geor-

gia, 433 US. 25 (1977); Clearfield Trust Co. v. United States, 318

US. 363, 367 (1943) (“In absence of an applicable Act of

Congress it is for the federal courts to fashion the governing

rule of law according to their own standards.” [citations

omitted]); Texas Imdustries v. Radcliff Materials, 451 U.S. 630,

641 (1981). Lower courts have used federal common law to

interpret Warsaw Convention issues. See Harris v. Polski Linie

Lotniczne, 820 F.2d 1000, 103-04 (9th Cir. 1987); In re Disaster

at Lockerbie, Scotland on December 21, 1988, supra, 928 F.2d at

1274-80; Zicherman v. Korean Air Lines Co., Ltd., supra, 43 F.3d

at 21; In re Disaster at Lockerbie, Scotland on December 21, 1988,

supra, 928 F.2d at 1274-80; Zicherman v. Korean Air Lines Co.,

Ltd., supra, 43 F.3d at 21; In re Disaster at Lockerbie, Scotland on

December 21, 1988, 37 F.3d 804, 828 (2d Cir. 1994) (“Lockerbie

II"); see also, Corporacion Venezolana de Fomeato v. Vintero Sales

Corp., 629 F2d 786, 795 (2d Cir. 1980) (approving the use of

federal common law in specialized areas where jurisdiction

is not based on diversity).

Federal common law principles allow for loss of soci-

ety damages.

Il. FEDERAL COMMON LAW SUPPORTS THE

RIGHT TO RECOVER FOR LOSS OF SOCIETY

A. There Is A Federal Common Law Cause Of

Action For Wrongful Death Which Permits

Loss Of Society Damages

This Court has held that there is a federal common

law right to recover for wrongful death in the context of

general maritime law. Moragne v. States Marines Lines, 398

U.S. 375 (1970). Moragne overruled The Harrisburg, 119

U.S. 199 (1886), in which this Court had refused to recog-

nize a common law right of recovery for death. In review-

ing the historical deveiopment of the denial of a common

law right to recover for death, the Moragne Court implied

that the denial was without genuine legal historical justi-

fication. 398 U.S. at 378-388. Although the Moragne Court

stopped short of rewriting history and declined to decide

that there had always existed a common law cause of

action for death, it did identify a modern federal common

law permitting recovery for wrongful deaths.

The federal common law was identified, in part, by

acknowledging legislative innovations as statements of

policy. Id., 398 U.S. at 390. The Court observed that, since

The Harrisburg, every state legislature has promulgated

wrongful death statutes. The Court reasoned that the

states’ unanimous recognition of a wrongful death cause

of action demonstrated that public policy favors recovery

for wrongful death. Id. The Moragne Court's analytic pro-

cedure in identifying federal common law is instructive

in the case sub judice. Since one method of defining fed-

eral common law is to refer to the policies as evidenced

by the states’ statutes and judicial decisions, id. at 408,

they should be consulted to decide whether there is a

public policy supporting loss of society damages. A clear

majority of states permit recovery for loss of society

damages. See Sea-Land Services, Inc. v. Gaudet, 414 US.

573, 586 (1974) (hereinafter “Gaudet”); Speiser, Krause &

Madole, Recovery for Wrongful Death and Injury 227-40 (3d

Ed., Clark Boardman Callahan 1992). Thus, public policy

favors permitting recovery for loss of decedents’ society

in a federal common law wrongful death action.!°

This Court in Moragne also considered whether Con-

gress had precluded judicial action in identifying federal

common law remedies for death. It noted that Congress’

enactments of The Death On The High Seas Act

(DOHSA)" and The Jones Act!2 were not affirmative

indications of an intention to preclude judicial allowance

of a federal common law wrongful death action.

Loss of society damages in the case of a death are

akin to damages for loss of society suffered by a family

member in non-fatal personal injury cases. In American

Export Lines, Inc. v. Alvez, 446 U.S. 274 (1980), this Court

identified the right to recover loss of society damages

resulting from non-fatal injuries in a general maritime

law context. Again recognizing that federal common law

is not stagnant but evolves as public policies change, the

Court acknowledged that a clear majority of states (forty-

one states and the District of Columbia) permit a spouse

to recover for loss of consortium resulting from non-fatal

injuries to the other spouse. 446 U.S. at 284, n. 11. As

regards injuries suffered by a close family member as a

to limit certain remedies in products liability cases. Although

there had been proposals to limit non-pecuniary damages, nei-

ther the bill passed by the House nor the bill passed by the

Senate limits recovery of non-pecuniary damages, suggesting

that public policy favors the recovery of all actual damages

without artificial limitations. See, H.R. 956, 104th Cong., Ist

Sess. (1995).

! 41 Stat. 537, 46 U.S.C. §§761-67 (1988).

12 41 Stat. 1007, 46 U.S.C. §688 (1988).

result of harm done to a loved one, there is no rational

basis for drawing a distinction between fatal and non-

fatal injuries. 446 U.S. at 286 (Powell, J. dissenting).

In the case of non-fatal injuries, the relationship

between the injured party and a close family member is

adversely affected and negatively disrupted. In the case

of a death, the relationship is destroyed and the harm is

greater. It would be logically inconsistent to compensate

the lesser of the damage but to deny recovery for the

greater.

Similarly, even in actions under DOHSA, courts have

recognized that loss of parental nurture has a value such

that damages for that loss are recoverable. Nygaard v.

Peter Pan Seafoods, Inc., 701 F.2d 77, 81 (9th Cir. 1983);

Soloman v. Warren, 540 F.2d 777, 788 (5th Cir. 1976), reh-.

denied, 545 F.2d 1298, cert. dismissed sub nom.; Warren v.

Serody, 434 U.S. 801 (1977); Moore-McCormack Lines, Inc. v.

Richardson, 295 F.2d 583, 593 n. 9a (2d Cir. 1961), cert.

denied, 368 U.S. 989, reh. denied, 370 U.S. 965 (1962). inher-

ent in the allowance of such damages is the recognition of

the value, tangible and intangible, that exists in the par-

ent-child relationship. There is no logical reason to differ-

entiate between the loss to a child of a parent and loss to

a parent of a child. Indeed, it cannot be disputed that

there is no greater loss than the death of a child to a

parent who has not only contributed heredity to a child

but who has contributed his or her own morals, culture,

aspirations, and beliefs. Acknowledging compensation

for the destruction of that relationship with loss of society

damages advances societal affirmation of family values.

B. Financial Dependency Is Not A Prerequisite To

Recover Loss Of Society Damages Under The

Warsaw Convention

The Second Circuit has held that loss of society dam-

ages are only available to dependent spouses and chil-

dren under the Warsaw wrongful death cause of action.

Lockerbie II, 37 F.3d at 829-30; Zicherman, 43 F.3d at 22. The

Second Circuit rationalized the dependency requirement

by analogizing the Treaty wrongful death action to fed-

eral maritime law. This analogy is improper given the

goals of the Treaty to simultaneously compensate for

injury and to deter a carrier’s wilful misconduct, necessi-

tating a broad range of recoverable damages. Nowhere in

the text of the treaty do the words “pecuniary” or

“dependents”, or their equivalents, appear. The goals

inherent in the Treaty are different than the purposes for

which maritime law evolved. It is the Treaty’s unique

goals that must be effectuated; they are not with the

Second Circuit's approach.

Even in general maritime cases, the distinction

between dependent and non-dependent sufferers of loss

of society is questionable. See, e.g., Sutton v. Earles, 26 F.

3d 903, 917 (9th Cir. 1.994) (noting that this Court

described Gaudet claimants as “survivors”, not “depen-

dents”, in Mobile Oil Corp. v. Higgenbotham, 436 U.S. 618,

622 and n. 15 (1978)).

Moreover, it is contrary to human experience to con-

dition compensation for the sudden loss of a beloved

family member to a dependency requirement. Condition-

ing recovery on dependency is particularly illogical in

cases where the loss was due to the carrier’s wilful mis-

conduct, e.g., a deliberate failure to take steps necessary

for safety. See American Airlines v. Ulen, 186 F.2d 529, 533

(D.C. Cir. 1949). KLM v. Tuller, 292 F.2d 775, 778 (D.C. Cir.

1961). If the dependency requirement is upheld, it will

deny recovery in most circumstances to, e.g., parents

whose children, minor and adult, are killed and to adult

children for the loss of a beloved parent with whom they

maintain a close relationship. There are innumerable per-

mutations of modern family circumstances in which the

destruction of a relationship with a non-dependent family

member would be a devastating loss. Yet, under the Sec-

ond Circuit's approach, an air carrier would not be held

accountable even though the death was caused by its

deplorable acts. Such a result would be intolerable to the

traveling public and to the ends of justice.

Ill. THE COURT IS NOT CONSTRAINED BY MAR-

ITIME DECISIONS AND STATUTES IN THESE

WARSAW CONVENTION ACTIONS

In the courts below, Respondent KAL argued that

where a death covered by the Warsaw Convention occurs

on the high seas, the forum court must apply DOHSA as

governing substantive law. KAL’s position would

unquestionably lead to application of different damages

standards depending on whether the accident was land-

based or sea-based. The drafters of the Treaty, however,

contemplated application of the general substantive

national law of the court seized of the case, not domestic

fragmentations based solely on the accident locality.

While the drafters were willing to tolerate some disparity

in recoveries because of historic differences between civil

law and the common law, there is no hint in the Minutes

or from commentators that further differentiation by

political subdivision or accident locale was anticipated.

See, ¢.g., Mertens v. Flying Tiger Lines, supra, 341 F.2d at

855; Eck v. United Arab Airlines, Inc., 360 F.2d 804 (3d Cir.

1966) (for Article 28 venue purposes, the High Contract-

ing Party as a nation-state, not political subdivisions, is

considered).

As the Warsaw cause of action was intended to be a

uniform remedy for injuries and deaths caused in inter-

national air transportation, it would be inconsistent to

have the forum courts in this country apply different

measures of damages depending on whether the aircraft

crashed on land or in the sea.

Nor is this Court's decision in Miles v. Apex Marine

Corp., 498 U.S. 19 (1990) applicable to these Warsaw Con-

vention death actions. Miles denied loss of society dam-

ages to the non-dependent parent for the death of a Jones

Act seaman. 498 US. at 32-33. In doing so, the Court

acknowledged Congress’ intent to incorporate the sub-

stantive recovery provisions of the Federal Employees

Liability Act (FELA)'*, which had long been defined as

providing recovery for pecuniary loss only, into The Jones

Act. But, unlike The Jones Act, Warsaw was ratified with-

out discussion or debate. It cannot be assumed that Con-

gress intended that recovery would be for pecuniary loss

only, because there are no references to “pecuniary”, or

its equivalent, in the text of the Treaty. Moreover, as

'S Federal Employees Liability Act, 46 U.S.C. §§674-77

(1988).

Warsaw was clearly designed to govern deaths that

occurred on land as well as on water, it cannot be

assumed that Congress intended to reference maritime

law as a guide to Warsaw's “damage sustained”.

Furthermore, Treaty provisions which create domes-

tic law, as does the Warsaw Convention, supersede pre-

existing conflicting legislation. In re Air Crash in Bali,

Indonesia on April 22, 1974, 684 F.2d 1301, 1307-08 (9th Cir.

1982); Kapar v. Kuwait Airways Corp., 845 F.2d 1100 (D.C.

Cir. 1988). Thus, the Treaty’s cause of action and its

attendant remedies displace the cause of action created

by DOHSA or The Jones Act for maritime deaths.

Likewise, the Court is not constrained by general

maritime law in defining available damages in the Treaty

cause of action. Instead, it must develop standards appli-

cable to both land-based and sea-based deaths that occur

in international air transportation by acknowledging the

independent cause of action created by the Warsaw Con-

vention and defining the applicable damages as including

loss of society unfettered by a dependency requirement.

In doing so, it will finally resolve the tortuous history of

analysis as to whether the Treaty creates an independent

cause of action applicable to all damage sustained in

international air transportation. See, e.g., In re Mexico City

Air Crash of October 31, 1979, supra, 708 F.2d at 409-16. The

result can only be achieved by reference to the goals of

the Treaty itself, not to any singular body of law, such as

maritime law, which has no relationship to the unique

purposes of the Treaty.

CONCLUSION

The Warsaw Convention cause of action creates a

remedy for wrongful death which unconditionally

includes damages for loss of society upon a showing of

reasonably reliable evidence of the relationship that was

destroyed. Such a finding is consistent with the goals of

the Treaty to provide broad recovery for “damage sus-

tained” and to preclude a carrier which has committed

deplorable acts from benefiting from its wilful miscon-

duct. Such a finding is also consistent with federal com-

mon law which recognizes recovery for loss of society.

And such a finding judicially acknowledges the value of

familial relationships and the interdependence of family

members who provide emotional support for each other.

The Second Circuit decision regarding loss of society

damages should be reversed to the extent it conditions

loss of society damages on financial dependency.

Dated: Respectfully submitted

Speiser, Krause, Mapoite & Coox

Juanita M. Mapo.e

App. 1

APPENDIX

ARTICLE 17

The carrier is liable for damage sustained in the

event of 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 20

(1)

(2)

The carrier shall not be liable if he proves that he

and his agents have taken all necessary measures to

avoid the damage or that it was impossible for him

or them to take such measures.

In the transportation of goods and baggage the car-

rier shall not be liable if he proves that the damage

was occasioned by an error in piloting, in the han-

dling of the aircraft or in navigation and that, in all

other respects, he and his agents have taken all

necessary measures to avoid damage.

ARTICLE 25

(1)

(2)

The carrier shall not be entitled to avail himself of

the provisions of this Convention which exclude or

limit his liability, if the damage is caused by his

wilful misconduct or by such default on his part as,

in accordance with the law of the Court to which the

case is submitted, is considered to be equivalent to

wilful misconduct.

Similarly, the carrier shall not be entitled to avail him-

self to 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.

App. 2

ARTICLE 28

(1) An action for damages must be brought, at the

option of the plaintiff, in the territory of one of the

High Contracting Parties, either before the Court of

the domicile of the carrier or of his principal place of

business, or where he has a place of business

through which the contract has been made, or before

the Court at the place of destination.

(2) Questions of procedure shall be governed by the law

of the Court to which the case is submitted.

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.