Petition for Writ of Certiorari — Korean Air Lines Co. v. Bickel

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LE D

No. 969.8 © 96 NOV 19 1996

OEMOE OF Tat CLERK

. IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1996

KOREAN AIR LINES CoO., LTD.,

Petitioner,

—_vV.—

DAISY E. BICKEL, DOROTHY JONES, RICHARD A. BOWDEN,

WILLIE N. JAMES and MICHAEL D. JONES,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GEORGE N. TOMPKINS, JR.

ANDREW J. HARAKAS*

TOMPKINS, HARAKAS, ELSASSER

& TOMPKINS

Courthouse Square

140 Grand Street

White Plains, New York 10601

(914) 428-2525

Counsel for Petitioner

KOREAN AIR LINES Co., LTD.

* Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

While these appeals were pending in the court below, the

Court decided Zicherman v. Korean Air Lines, 116 S. Ct. 629

(1996), and held that (a) the types of recoverable compen-

satory damages in an action to which the Warsaw Convention

applies must be determined by reference to domestic law and

(b) the applicable domestic law in that case, the Death on the

High Seas Act (“DOHSA”), 46 U.S.C. App. § 761 et seq.,

allows for the recovery of pecuniary damages only.

The appeals in the court below arise out of the same event

as involved in Zicherman. The court below, after directing the

parties, at the request of Petitioner KOREAN AIR LINES

CO., LTD. (“KAL”), to address the effect of Zicherman on the

pending appeals, first held that Zicherman presented an “insu-

perable obstacle” to the award of nonpecuniary pre-death pain

and suffering damages. On: rehearing, however, the court

(2-1) reversed itself and declined to decide whether Zicher-

man precludes an award of nonpecuniary pre-death pain and

suffering damages under the Warsaw Convention or DOHSA.

The questions presented for review are:

1. Whether the court below was required to apply, to pend-

ing but undecided appeals, the intervening decision of the

Court in Zicherman, so as to preclude an award of nonpecu-

niary pre-death pain and suffering damages on the basis of the

Warsaw Convention alone?

2. Whether, in light of Zicherman, the pecuniary damages

allowed by DOHSA may be supplemented with nonpecuniary

damages for pre-death pain and suffering on the basis of the

Warsaw Convention, general maritime law or state law?

These questions also are presented for review in the Peti-

tion for a Writ of Certiorari filed by Petitioner KAL in

Korean Air Lines v. Forman, No. 96-530 (U.S., docketed Oct.

4, 1996) and, in an inverse context, in the Petition filed by the

plaintiffs in Saavedra v. Korean Air Lines, No. 96-623 (U.S.,

docketed Oct. 18, 1996).

ii)

LIST OF ALL PARTIES AND RULE 29.6 LISTING

A. Petitioner

The Petitioner is KOREAN AIR LINES CO., LTD. (“KAL”)

who was the defendant-appellant/cross-appellee in the Court

of Appeals. KAL is a Korean corporation engaged in the busi-

ness of international transportation by air of passengers, bag-

gage and cargo. KAL is a member of The Hanjin Group of

Korea, which comprises companies under common manage-

ment direction. KAL’s investments in securities and/or affil-

iated companies consist of the following:

Air Cargo Terminal Co., Ltd.

Air Korea Co., Ltd.

Daehan Oil Pipeline Corporation

Government Bonds

Hana Bank

Hanil Bank

Hanjin Construction Co., Ltd.

Hanjin Data Communication

Hanjin Heavy Industry Co., Ltd.

Hanjin International Corp.

Hanjin Int'l Japan Co., Ltd.

Hanjin Investment Securities Co., Ltd.

Hanjin Shipping Co., Ltd.

Hyundai Oil Refinery Co., Ltd.

Korea Air Terminal Service Co., Ltd.

Korea Freight Transportation Co., Ltd.

Korea Investment Corporation

Korean French Banking Corporation

Korea Technology Development Co., Ltd.

Kyungki Bank, Ltd.

Peace Bank of Korea

Terminal One Management Inc.

The Company Fund

The Korea Economic Daily

B. Respondents

The Respondents are (1) Daisy E. Bickel, the personal rep-

resentative of the estate of Edna Miller, (2) Dorothy Jones,

the personal representative of the estate of Joyce Chambers,

(3) Richard A. Bowden, the personal representative of the

estate of Eleanor Bissell, (4) Willie N. James, the personal

representative of the estate of Hazel James, and (5) Michael

D. Jones, the personal representative of the estate of Margaret

Zarif. Respondents were the plaintiffs-appellees/cross-appel-

lants in the Court of Appeals below.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...........

LIST OF ALL PARTIES AND RULE 29.6 LISTING..

TA ee OE RU SEPARA cacccccccesrirscesucacceves

EET ANTE hivede csttondessieeditesyta das tines

FI a dae dens cna 409 eon einbasatevate bekaeeaan

STATUTORY AND TREATY PROVISIONS

SE EE oki cceskcecdseissvnvekasierboradasbeses

STATEMENT OF THE CASE.........-cseee0. aes

Py, FEE MO oie os rene shane convenes

Ba FO ss dos arbi ster iaieciis>s

1. The Rulings of the District Court ......

The Appeals and the Intervening

Supreme Court Decision in Zicher-

man Vv. Rorean Air LiM!s ..0 00s ccncvcses:

3. The First Decision of the Court of

Appeals - “Bickell” ..... Peer vane nekenes

4. The Decision on Rehearing -

NEE fac oc ausav ae dewaihoees aes

5. The Post-Zicherman Decisions of

ee oN ara Fae

bho

REASONS FOR GRANTING THE PETITION........ 10

I. THE DECISION OF THE COURT BELOW JIS

IN CONFLICT WITH ZIJCHERMAN, DECI-

SIONS OF THE COURT REQUIRING APPLI-

CATION OF DECISIONS RETROACTIVELY

TO PENDING CASES AND THE POST-

ZICHERMAN DECISION OF THE COURT

OF APPEALS FOR THE NINTH CIRCUIT...... 12

A. The Court Below Has Upheld an Award

of Nonpecuniary Damages Even Though

the Legal Basis for the Award Was Rejected

by the Court in Zicherman................... 12

B. The Court Below Was Obliged to Apply

to the Pending Appeals the Intervening

Decision of the Court in Zicherman......... 13

C. The Decision of the Court Below Is in Direct

Conflict With the Post-Zicherman Decision

of the Court of Appeals for the Ninth

CIE. 2 ck baud a cakardens etek bila eeeunerac 17

Il. CONSIDERATIONS OF FAIRNESS AND

PUBLIC CONFIDENCE IN THE JUDICIAL

REVIEW PROCESS WARRANT REVIEW

Oe A ATEN E 0 54:0 40 cncee eoededabendis okdas eos 18

Ill. THE COURT BELOW HAS DECLINED TO

ADDRESS AN IMPORTANT QUESTION OF

FEDERAL LAW WHICH SHOULD BE

SN UNE a8 icvdbcandaecasecesken iaehdvied taewneke 20

CONCLUSION.......;. ab hha, me al dean eae aan 24

APPENDIX

Vii

TABLE OF AUTHORITIES

Cases: PAGE

Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73

SPE... sou akeshecearholisuebebudens Obruseeewne 20

Azzopardi v. Ocean Drilling & Exploration Co.,

pve we £ oye fe re re 4n, 21-23

Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974) .4n, 21-23

Beirn v. Korean Air Lines, Nos. 83-4624,

83-4626, memo. op. (E.D.N.Y. Aug. 28,

TU SEO Ri cnn cu cek penwiadiabeasas ulche On, 21n, 23

Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir.

1996)(“Bickel I”), amended on reh’g, 96 F.3d 151

Ce Ge. CN NE EE Ds oink ke cdtncacewneeere passim

Bowden v. Korean Air Lines, 814 F. Supp. 592 (E.D.

Mich. 1993), rev’d sub nom. Bickel v. Korean Air

Lines, 83 F.3d 127 (6th Cir.), amended on reh’g,

96 F.34 151 (Gth Cit. 3996) 2... ccecceee 2, 3, 10, 13, 14

Boys Markets, Inc. v. Retail Clerks Union, Local 770,

GE Si ee EE ca kccbesvassaewcd enced kunme oe 15

Chevron Oil v. Huson, 404 U.S. 97 (1971) ............ 1Sn

Dugas v. Nat’! Aircraft Corp., 438 F.2d 1386 (3d Cir.

SEES cack ceeds tatahoees beans pdaeiaae re 4n, 21-23

Federal Savings & Loan Ins. Corp. v. Haralson, 813

eh Regie) Lo ee, ys Pn cee 15

Forman v. Korean Air Lines, 84 F.3d 446 (D.C. Cir.

1996), petition for cert. pending sub nom.,

Korean Air Lines v. Forman, No. 96-530 (U:S.,

BOE GE: By FO i vies nn os on 0bes co vevesecss 9,11, 16

Vili

PAGE

Forman v. Korean Air Lines, No. 83-3578, memo. op.

es Gn a, WUE h ods ake ba nciawky aad ade ceas on

Garner v. Memphis Police Dep't, 8 F.3d 358 (6th Cir.

SOD cent tGs inekn daneoass pleenianeh tase 14

Gray v. Lockheed, 880 F. Supp. 1559 (N.D. Ga.

RIED a nditedéceakavnd ss taercansuaenidkiawvs tess 4n, 21-23

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473

SOOO R covdnbukeierdicatdeneedaserkianeeneeus sean 19

Harper v. Virginia Dept. of Taxation, 509 U.S. 86

AS FN ae Ra Iie yr s PRR RA haan he Nea Fler 13,14

Hormel v. Helvering, 312 U.S. 552 (1941) ............ 15, 16

In re Air Crash Disaster Near Honolulu, Hawaii

on Feb. 24, 1989, 783 F. Supp. 1261 (N.D.

CGE. Ew GE GB beth ay cas oe Rekenti wees 4n, 21-23

In re Air Disaster Near Honolulu, Hawaii, on

Feb. 24, 1989, 792 F. Supp. 1541 (N.D. Cal.

POD A daavekcisccudstipeseeskauduawate cistaiecaress 21

In re Federated Dep't Stores, 44 F.3d 1310 (6th Cir.

PEE sk devcakes sochvcueandareresassueerus okies 14

In re Inflight Explosion on TWA Aircraft Approaching

Athens, Greece on Apr. 2, 1986, 778 F. Supp.

625 (E.D.N.Y. 1991), rev'd on other grounds,

975 F.2d 35 (2d Cir. 1992), cert. denied, 507

SF By re CH wis odaieieia ci kas bdnarcaesnasen 4n, 21-23

In re Korean Air Lines Disaster of Sept. 1, 1983, MDL

No. 565, Nos. 83-3587 et al., memo. op. (D.D.C.

SE Ty SOE bi vt wavy cad Nadeevecaddstiesctiaoeas 9n

a nee |

Aorta Ama Brin saan

ee ae

PAGE

In re Korean Air Lines Disaster of Sept. 1, 1983, 935

F. Supp. 10 (D.D.C. 1996) (“In re KAL-DDC II”),

interlocutory appeal granted, No. 96-8013 (D.C.

Cir. Aug. 15, 1996)... .ccccccvsevercseenss 9, 11, 22, 22

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529

CRO coh cccsiec deck Cass divers seepeusvevereneustes 13,14

Korean Air Lines v. Forman, No. 96-530 (U.S.,

dockoted Get. 6, TOOG) . o.caccctccccececsuccsoncccees ii, 9

Lebron v. Nat’l R.R. Passenger Corp., 115 S. Ct. 96!

CSE icc ionbcdcaordcndhaned eames neds cenerhesUiee 20

McAleer v. Smith, 791 F. Supp. 923 (D.R.1. 1992) 5n, 21-23

Pescatore v. Pan Am World Airways, 97 F.3d 1 (2d Cir.

hg EEE LOE NEO rv Tre ree rere Cee Ly 13

Preston v. Frantz, 11 F.3d 357 (2d Cir. 1993) ..... 4n, 21-23

Rivers v. Roadway Express, 114 S. Ct. 1510 (1994)... 13-15

Rye v. U.S. Steel Min. Co., Inc., 856 F. Supp. 274

(B.D. Va. 1GDS) oc vcciveccdsccttencesesseatenss 5n, 21-23

Saavedra v. Korean Air Lines, No. 96-623 (U:S.,

docketed Oct. 16, 1996)... ..cccccecscevccvccescionces il, 9

Saavedra v. Korean Air Lines, 93 F.3d 547 (9th Cir.

1996), petition for cert. pending, No. 96-623

(U.S., docketed Oct. 18, 1996) ..........---0--e- passim

Saavedra v. Korean Air Lines, Nos. 84-9324 et seq.

(C.D. Cal. July 16, 1993), rev'd in part, 93 F.3d

SAT (9G CHE. 19GG) ono er ccccnccesdevscesvrseses 4n, 21-23

Singleton v. Wulff, 428 U.S. 106 (1976) .....-...----+. 15

United States v. Atkinson, 297 U.S. 157 (1936) ....... 20

PAGE

United Transp. Union v. Dole, 797 F.2d 823 (10th

a. SID Vir dewiasvéavecdudecvdakéansabedcovdens?s 16, 19

U.S. Nat'l Bank of Oregor. v. Independent Ins. Agents

of America, 508 U.S. 439 (1993) ................. 20

Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083

CRP ER ov cknesduntanneunasebesduthebde cis eseeeen 19

Wright v. Holbrook, 794 F.2d 1152 (6th Cir. 1986).... 16n

Zicherman v. Korean Air Lines, 116 S. Ct. 629

CR ciwe ol Peace il i edule © dinate inbesee waite passim

Treaties, Statutes and Rules:

Convention for the Unification of Certain Rules

Relating to International Transportation by Air

Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876

(reprinted in note following 49 U.S.C.

Oe TE dss ceed ep etuoieaed ibis nae eed passim

Death on the High Seas Act (“DOHSA”), 46 U.S.C.

Ra. E 7G8 OE OOGs” vinses ckucesdiasavonstoeens passim

BO Us S PORE 255 cnvncutdendotukessseneeneedees 3n

Me Wits) BOOS chtshcaty tidardataviascste eel 3n

ee Ase © BONE 5 60506 6 ind va béhenenes hsbiekede rita 3n

BO UBL. .& Fea dak cccecasbacavevudevys sicukpetueet 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-

KOREAN AIR LINES Co., LTD..,

Petitioner,

Daisy E. BICKEL, DOROTHY JONES, RICHARD A. BOWDEN,

WILLIE N. JAMES and MICHAEL D. JONES,

Respondents.

ON PETITION FOR A WRIT CF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner KOREAN AIR LINES CO., LTD. (“KAL”)

respectfully requests that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Sixth Circuit entered on August 29, 1996.

OPINIONS BELOW

The opinion of the Court of Appeals on rehearing 1s offi-

cially reported at 96 F.3d 151 (6th Cir. 1996). The first opin-

ion of the Court of Appeals is officially reported at 83 F.3d

aii

127 (6th Cir. 1996). Both opinions are reproduced in the

Appendix to the Petition at A la-17a and A 18a-28a.' The

opinion of the district court is officially reported in Bowden

v. Korean Air Lines, 814 F. Supp. 592 (E.D. Mich. 1993), and

is reproduced in the Appendix to the Petition at A 35a-46a.

JURISDICTION

The judgment of the Court of Appeals was entered on

August 29, 1996. A 2a. KAL’s timely petition for rehearing

and suggestion for rehearing en banc was denied by Order

dated October 10, 1996. A 29a-30a. The jurisdiction of the

Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND TREATY PROVISIONS INVOLVED

These actions are governed exclusively by the Death on the

High Seas Act (“DOHSA”), 46 U.S.C. App. § 761 et seq. and

the Convention for the Unification of Certain Rules Relating

to International Transportation by Air, Oct. 12, 1929, 49 Stat.

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

U.S.C. § 40105) (“Warsaw Convention”). The pertinent pro-

visions are set forth at A 47a-48a.

STATEMENT OF THE CASE

PN AOR. AR Na ly nk A Rim

A. Nature of the Case

Decedents Edna Miller, Joyce Chambers, Eleanor Bissell, i

Hazel James and Margaret Zarif were passengers on KAL

flight KEOO7 who were killed when the aircraft was shot

down by Soviet military aircraft on September 1, 1983. The

deaths of the decedents occurred on the high seas within the

AD rea ie LEE. sw thy inet deat et 7

References preceded by “A” refer to pages in the Appendix to

the Petition.

meaning of DOHSA, during the course of international trans-

portation by air, within the meaning of the Warsaw Conven-

tion.? The Respondents are the personal representatives of the

estates of the deceased passengers, who seek pecuniary and

nonpecuniary damages individually and on behalf of the

estates and various surviving relatives of the decedents.

B. Disposition Below

1. The Rulings of the District Court

Prior to trial on the issues of damages, KAL moved for a

determination that DOHSA applies to the damage claims and

prohibits the recovery of any nonpecuniary damages for loss

of society, survivor's grief and pre-death pain and suffering

of the deceased passengers. The district court’ denied KAL’s

motion and held that DOHSA does not apply to bar the recov-

ery of nonpecuniary damages for loss of society, survivor's

grief and pre-death pain and suffering. The district court ruled

that such nonpecuniary damages were recoverable directly

under Article 17 of the Warsaw Convention, which makes the

carrier liable for “damage sustained in the event of the death

or wounding of a passenger.” Bowden v. Korean Air Lines,

814 F. Supp. 592, 597-98 (E.D. Mich. 1993) (“Bowden”) (A

41a-44a).

Following separate damage trials, Respondents were

awarded, inter alia, nonpecuniary damages for the decedents’

pre-death pain and suffering in the following amounts: (a)

decedent Edna Miller: $100,000; (b) decedent Joyce Cham-

bers: $400,000; (c) decedent Eleanor Bissell: $1,350,000;

; The jurisdiction of the district court was based on federal ques-

tion (28 U.S.C. § 1331), diversity of citizenship (28 U.S.C. § 1332) and

original admiralty and maritime jurisdiction (28 U.S.C. § 1333).

These cases were consolidated in the district court. The district

court issued pretrial rulings applicable to all five of the cases and

presided over the damages trial in each of the cases.

(d) decedent Hazel James: $30,000; and (e) decedent Mar-

garet Zarif: $1,000,000*.

The district court in each case denied KAL’s post-trial

motions to set aside all nonpecuniary damage awards.

2. The Appeals and the Intervening Supreme Court

Decision in Zicherman v. Korean Air Lines

KAL appealed the judgments, including the pre-trial and

post-trial decisions of the district court.° In its initial appel-

late briefs, KAL argued that nonpecuniary damages for loss

of society and survivor’s grief were not recoverable under

DOHSA and that the awards for nonpecuniary pre-death pain

and suffering damages were not supported by sufficient evi-

dence. KAL did not argue in its initial briefs the antecedent

question of whether nonpecuniary pre-death pain and suf-

fering damages were recoverable as a matter of law because,

unlike loss of society damages, all pre-Zicherman decisions

had allowed the recovery of nonpecuniary pre-death pain and

suffering damages on the basis of the Warsaw Convention’,

general maritime law and/or state law.’ Such was the state of

the law, absent a definitive ruling from the Court.

7 Each case was tried to a jury, except Zarif, which was tried non-

jury by the district court.

. The cases were consolidated on appeal. See Order (6th Cir. Mar.

3, 1994) (A 33a-34a).

. See, e.g., Saavedra v. Korean Air Lines, Nos. 84-9324 et seq.

(C.D. Cal. July 16, 1993), rev'd in relevant part, 93 F.3d 547 (9th Cir.

1996); In re Inflight Explosion on TWA Aircraft Approaching Athens,

Greece on Apr. 2, 1986, 778 F. Supp. 625, 637 (E.D.N.Y. 1991), rev'd on

other grounds, 975 F.2d 35 (2d Cir. 1992), cert. denied, 507 U.S. 1051

(1993); In re Air Crash Disaster Near Honolulu, Hawaii, on Feb. 24,

1989, 783 F. Supp. 1261, 1264 (N.D. Cal. 1992) (“Hawaii IT’).

’ See, e.g., Preston v. Frantz, 11 F.3d 357, 358 (2d Cir. 1993);

Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (Sth

Cir. 1984); Barbe v. Drummond, 507 F.2d 794, 799 (Ist Cir. 1974);

Dugas v. Nat'l Aircraft Corp., 438 F.2d 1386, 1389 (3d Cir. 1971); Gray

wee — ee

Respondents argued that the recoverable damages are

defined by the Warsaw Convention, federal common law

and/or general maritime law, which Respondents asserted

allow for the recovery of all nonpecuniary damages awarded

in the district court.

On January 31, 1995, the Court of Appeals entertained oral

argument of the appeals. On April 17, 1995, the Supreme

Court granted certiorari in Zicherman and on June 23, 1995,

the court below advised the parties that, unless there were any

objections, the decision on the appeals would be held in

abeyance pending the ultimate decision of the Supreme Court

in Zicherman. None of the parties objected.

On January 16, 1996, while the appeals were pending in the

court below, the Court decided Zicherman v. Korean Air

Lines, 116 S. Ct. 629 (1996). The Court in Zicherman rejected

the notion that any type of damage is recoverable directly

under Article 17 of the Warsaw Convention as “damage sus-

tained.” Zicherman, 116 S. Ct. at 632-36. The Court explained

that “damage sustained” in Article 17 refers to “legally cog-

nizable harm” and that courts are to determine “legally cog-

nizable harm” only by reference to the applicable domestic

law under the forum’s choice-of-law rules, pursuant to Arti-

cle 24 of the Convention. /d. In Zicherman, as in these cases,

the applicable domestic law is DOHSA. /d. at 635-36.

The Court in Zicherman also rejected the rationale and

holding of the Court of Appeals for the Second Circuit (from

which the Zicherman case emanated) that general mar-

itime/federal common law is the proper domestic law to con-

sider. Id. The Court explained that Article 17 of the

Convention is merely a “pass-through” provision that does

not permit federal courts “to develop some common-law

rule—under cover of general admiralty law or otherwise—

v. Lockheed, 880 F. Supp. 1559, 1569 (N.D. Ga. 1995); Rye v. U.S. Steel

Min. Co., Inc., 856 F. Supp. 274, 280 (E.D. Va. 1994); McAleer v. Smith,

791 F. Supp. 923, 927 (D.R.1. 1992).

that will supersede the normal federal disposition” absent the

Convention. /d. at 636. Thus, federal courts are authorized

only “to apply the law that would govern in absence of the

Warsaw Convention.” /d. Since DOHSA applies to deaths on

the high seas and permits recovery of pecuniary damages

only, the Court ruled that nonpecuniary damages for loss of

society (the only specific damage award involved in Zicher-

man) were unavailable. /d. at 636-37; 46 U.S.C. App. § 762

(A 48a). The Court specifically noted that it did not consider

“whether § 762 [of DOHSA] contradicts the District Court’s

allowance of pain and suffering damages,” as the question

was not before the Court. /d. at 636, n.4.

On January 18, 1996, KAL advised the court below of the

Zicherman decision and requested permission to submit a sup-

plemental brief to address the recoverability of nonpecuniary

pre-death pain and suffering damages 2s + matter of law, in

light of Zicherman. Respondents opposes! te request, argu-

ing that KAL had waived the argument by not addressing it

in the opening briefs. The court below, rejecting the waiver

argument, granted KAL’s request and ordered that the parties

file supplemental briefs. See Order (6th Cir. Jan. 26, 1996)

(A 3la-32a).

In its supplemental brief, KAL argued that the holding and

rationale of the Court in Zicherman precludes the recovery of

all nonpecuniary damages, including pre-death pain and suf-

fering damages. Respondents argued, again, that KAL had

waived the argument with respect to pre-death pain and suf-

fering damages and that such damages are recoverable pur-

Suant to general maritime law.

3. The First Decision of the Court of Appeals -

“Bickel I”

On April 29, 1996, the Court of Appeals decided that the

intervening Zicherman decision precluded, as a matter of law,

the recovery of any nonpecuniary damages under DOHSA.

Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir. 1996)

ttle, 0 ~<atallitliat lr OO ws Inc

(“Bickel I’). The court, following the teaching of Zicherman,

conducted a choice of law analysis and concluded that

DOHSA supplies the applicable substantive United States

damage law and, therefore, nonpecuniary damages for loss

of society are not recoverable. Bickel J, 83 F.3d at 131-32

(A 24a-27a).

The court also set aside the awards for nonpecuniary dam-

ages for survivor's grief. The court held that it could not per-

ceive any distinction that the Court in Zicherman would have

approved that would permit recovery of one type of nonpe-

cuniary damage and not another and, therefore, concluded that

nonpecuniary damages for survivor's grief are not recoverable

under DOHSA. /d. at 132 (A 26a-27a).

Finally, the court reversed the awards for nonpecuniary pre-

death pain and suffering damages, stating:

[W]e think the principle of Zicherman constitutes an

insuperable obstacle to an award of pain and suffering

damages—clearly non-pecuniary damages—in these

cases. Thus, for the same reasons we reversed the sur-

vivor’s grief damages, we now reverse the award of pain

and suffering damages.

Id. at 132 (A 27a-28a).

4. The Decision on Rehearing - “Bickel II”

On August 29, 1996, the court below granted rehearing and

accepted (2-1) Respondents’ waiver argument, an argument

which the court had rejected twice before. Bickel v. Korean

Air Lines, 96 F.3d 151 (6th Cir. 1996), amending on reh’g,

83 F.3d 127 (6th Cir. 1996) (“Bickel IT”). Circuit Judge

Batchelder, the author of the unanimous Bickel / opinion,

dissented.

The majority in Bickel // declined to address the argument

that Zicherman rendered the legal basis for the district court's

awarding of nonpecuniary pre-death pain and suffering dam-

ages invalid and that Zicherman precluded, as a matter of law,

the award of any nonpecuniary damages. The majority now

held that KAL’s failure to raise the “propriety” argument in its

opening briefs precluded review by the court below, despite

the intervening Zicherman decision. Bickel I], 96 F.3d at 153-

54 (A 3a-Sa).

Circuit Judge Batchelder dissented, finding the majority's

reasoning not “persuasive” and that the majority had failed to

explain why KAL must pay damages that are not available as

a matter of law. Bickel I], 96 F.3d at 158-59 (A 15a-16a). The

dissent reasoned:

1. The Court was bound to apply the unambiguous holding

of Zicherman that where DOHSA governs, it governs exclu-

sively and provides the sole source of damages. Because

DOHSA permits only pecuniary damages, nonpecuniary pre-

death pain and suffering damages are unavailable. /d. at 157

(A lla).

2. While Zicherman does not directly address the propriety

of pre-death pain and suffering damages, the only plausible

reading of that case is that such damages, because they are

not pecuniary damages, are not recoverable. Thus, Zicherman

clarified the law relative to nonpecuniary damages available

under DOHSA. /d. at 157-58 (A 1la-14a).

3. Finally, although KAL did not squarely aver in its open-

ing briefs that such damages were not available under

DOHSA, KAL should be allowed to make that claim in light

of Zicherman, because this is one of those extraordinary cases

in which the contrary result cannot be squared with applica-

ble Supreme Court precedent. /d. at 158 (A 15a-16a).

5. The Post-Zicherman Decisions of Other Courts

On May 21, 1996, after the decision in Bickel ], but before

the decision on rehearing in Bickel //, the Court of Appeals

for the District of Columbia Circuit, invoking the general rule

that an appellate court will not entertain an argument raised

for the first time in a reply brief, declined to address KAL’s

Reda! Oki he EA COS

argument that the intervening decision in Zicherman rendered

the legal basis for the award of nonpecuniary pre-death pain

and suffering damages invalid as a matter of law. Forman v.

Korean Air Lines, 84 F.3d 446, 448-49 (D.C. Cir. 1996).

KAL’s petition for a writ of certiorari in Forman currently is

pending. Korean Air Lines v. Forman, No. 96-530 (U.S.,

docketed Oct. 4, 1996).

On June 4, 1996, the KAL 007 multidistrict litigation trans-

feree court revisited its pre-Zicherman ruling*® that pre-death

pain and suffering damages are recoverable under Article 17

of the Convention, and concluded that in light of Zicherman,

such damages are not recoverable. Jn re Korean Air Lines

Disaster of Sept. 1, 1983, 935 F. Supp. 10, 15 (D.D.C. 1996)

(“In re KAL-DDC II”), interlocutory appeal granted, No. 96-

8013 (D.C. Cir. Aug. 15, 1996).

On August 2, 1996, the Court of Appeals for the Ninth Cir-

cuit rendered a decision in two KAL 007 disaster cases and

held that, in light of Zicherman, nonpecuniary damages for

pre-death pain and suffering are not recoverable under

DOHSA or otherwise. Saavedra v. Korean Air Lines, 93 F.3d

547, 552-53 (9th Cir. 1996).° Plaintiffs’ Petition for a Writ

of Certiorari in Saavedra currently is pending. Saavedra

v. Korean Air Lines, No. 96-623 (U.S., docketed Oct. 18,

1996).

. That ruling was the basis of the decision that was affirmed by

the Court of Appeals in Forman. See In re Korean Air Lines Disaster of

Sept. 1, 1983, MDL No. 565, Nos. 83-3587 et al., memo. op. (D.D.C.

Apr. 8, 1993) and Forman v. Korean Air Lines, No. 83-3587, memo. op.

(D.D.C. June 6, 1995). These decisions are not officially reported but are

reproduced in the Appendix at A 52a-55a and A 10a-32a to the Petition

for a Writ of Certiorari in Korean Air Lines v. Forman, No. 96-530 (U.S.,

docketed Oct. 4, 1996).

Contra Beirn v. Korean Air Lines, Nos. 83-4624, 83-4626,

memo. op. (E.D.N.Y. Aug. 28, 1996) (“Beirn”). Reproduced in the

Appendix at RA 14-29 to Respondent's Brief in Opposition in Saavedra

v. Korean Air Lines, No. 96-623 (U.S., docketed Oct. 18, 1996).

REASONS FOR GRANTING THE PETITION

The lower courts have reached conflicting results as to the

duty to apply the decision, rationale and principle of Zicher-

man to cases on appeal and awaiting trial, and as to the effect

of Zicherman on the recoverability of nonpecuniary pre-death

pain and suffering damages where DOHSA applies.

The court below allowed the parties to file post-Zicherman

supplemental briefs to address the effect of Zicherman on the

recoverability of nonpecuniary pre-death pain and suffering

damages. On the basis of the supplemental briefs, the court in

Bickel I held that Zicherman posed an “insuperable obstacle”

to the recovery of such damages. Bickel /], 83 F.3d at 132

(A 27a-28a). On rehearing, the court held (2-1) that it now

would decline to decide the issue because Zicherman “neither

added to, nor made any changes in, the law regarding the

availability of nonpecuniary damages under DOHSA.” Bickel

11, 96 F.3d at 153 (A 4a). Thus, the court below upheld the

awards of nonpecuniary pre-death pain and suffering damages

based solely on Article 17 of the Warsaw Convention. /d.; see

Bowden, 814 F. Supp. at 597-98 (A 42a-43a). This holding

conflicts with the decision of the Court in Zicherman that

damages cannot be based solely on the Convention.

The Ninth Circuit, in Saavedra, after receiving post-Zicher-

man supplemental briefs, rejected the waiver argument and

held that it was “compelled” to apply the intervening decision

of the Court in Zicherman and further held that Zicherman

“effectively forecloses” any claims for nonpecuniary pre-

death pain and suffering damages where DOHSA applies.

Saavedra, 93 F.3d at 550-554.

The D.C. Circuit, after directing KAL and plaintiff to

address the recoverability of nonpecuniary pre-death pain and

suffering damages, in light of Zicherman, in their reply briefs,

declined to “decide whether pre-death pain and suffering

damages may not be recovered after Zicherman”, invoking the

aw tide on Fetied

reply brief waiver rule. Forman, 84 F.3d at 448-49. The D.C

Circuit thereby upheld the district court’s award of nonpe-

cuniary pre-death pain and suffering damages based solely on

Article 17 of the Warsaw Convention. The same district court,

in light of Zicherman, has since reversed itself and, following

Zicherman, has held that such damages are not recoverable.

See In re KAL-DDC I/, 935 F. Supp. at 15.

A direct conflict now exists between and among these deci-

sions: (1) all three appeals arise out of the KAL 007 disaster;

(2) the district courts in all three cases awarded pre-death

pain and suffering damages based solely on the Warsaw Con-

vention; (3) all three appeals were pending when Zicherman

was decided; (4) all three Courts of Appeals directed the par-

ties to file briefs to address the recoverability of pre-death

pain and suffering damages in light of Zicherman; (5) BUT,

while the court in Saavedra recognized that Zicherman ren-

dered the district court’s legal basis for the recovery of such

damages untenable and, as a result, vacated the awards of pre-

death pain and suffering damages, the court below and the

court in Forman declined to address the argument and thereby

upheld similar awards.

Certiorari is appropriate to resolve the conflict created by

the post-Zicherman decisions in the lower courts and to reaf-

firm the principle that an intervening decision of the Court,

interpreting a treaty and a statute, is required to be applied by

lower courts in all pending cases, particularly those arising

out of the same event as involved in the Zicherman case. Fur-

ther, the Court should grant the Petition to clarify the scope

of the principles enunciated in Zicherman as to the recover-

ability of nonpecuniary damages under the Warsaw Conven-

tion and DOHSA. Certiorari at this time will lead to the

orderly conclusion of the KAL 007 litigation and will provide

much needed guidance to the lower courts as to the exclu-

Sivity of the pecuniary damage standard of DOHSA in a/!

cases involving a death on the high seas.

THE DECISION OF THE COURT BELOW IS IN

CONFLICT WITH ZICHERMAN, DECISIONS OF THE

COURT REQUIRING APPLICATION OF DECISIONS

RETROACTIVELY TO PENDING CASES AND THE

POST-ZICHERMAN DECISION OF THE COURT OF

APPEALS FOR THE NINTH CIRCUIT

A. The Court Below Has Upheld an Award of Nonpecu-

niary Damages Even Though the Legal Basis for the

Award Was Rejected by the Court in Zicherman

The interpretation of the Warsaw Convention by the Court

in Zicherman is clear and direct: the Convention acts as

“nothing more than a pass-through, authorizing [the courts] to

apply the [damage] law that would govern in absence of the

Warsaw Convention.” 116 S. Ct. at 636. In rejecting the the-

ory that damages are recoverable directly on the basis of the

Convention alone, the Court in Zicherman eliminated the sole

legal basis upon which the district court in these cases had

allowed the recovery of all nonpecuniary damages, including

pre-death pain and suffering damages. The decision of the

Court of Appeals below, affirming the district court’s

allowance of nonpecuniary pre-death pain and suffering dam-

ages on the basis of the Warsaw Convention, cannot be

squared with Zicherman. When the holding of the district

court is compared with the holding of Zicherman, the conflict

is clear:

District Court Ruling:

Nonpecuniary pre-death pain

and suffering damages are

within the meaning of “dam-

age sustained” and, therefore,

recoverable directly on the

basis of Article 17 of the

Zicherman Ruling:

“Damage sustained” in Arti-

cle 17 means “legally cog-

nizable harm” as defined by

the applicable domestic law.

Therefore, no damages are

recoverable directly on the

———_.—

Warsaw Convention. Bow- basis of Article 17 of the

den, 814 F. Supp. at 597-98 Convention. 116 S. Ct. at

(A 40a-43a) 632-35, 637.

The court below was required by Zicherman to find a

domestic law basis for upholding the award of nonpecuniary

pre-death pain and suffering damages, because Zicherman

prohibits the award of any damages based solely on the War-

saw Convention. Zicherman, 116 S. Ct. at 635-37; see Saave-

dra, 93 F.3d at 553 (“just as survivor's grief and loss of

society damages are unavailable directly under the Conven-

tion, the same is true for pain and suffering”). Zicherman,

therefore, obligated the court below to address the question of

whether nonpecuniary pre-death pain and suffering damages

are recoverable under DOHSA, the applicable domestic law

in these cases. See Pescatore v. Pan Am World Airways, 97

F.3d 1 (2d Cir. 1996); Saavedra, 93 F.3d at 552-54. In declin-

ing to address this question, the court below has erred and has

let stand awards of damages based on a legal theory e«pressly

rejected by the Court in Zicherman.

B. The Court Below Was Obliged to Apply to the Pend-

ing Appeals the Intervening Decision of the Court in

Zicherman

The decision of the court below is in direct conflict with

the strict rule that an appellate court has a duty to apply

retroactively intervening decisions of the Court interpreting

a statute or treaty to ali cases still open to direct review.

Rivers v. Roadway Express, 114 §. Ct. 1510, 1519 (1994);

Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 96 (1993);

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540-

45 (1991). The court below had no authority or discretion to

decline to apply the decision, direction and principle of

Zicherman interpreting the Warsaw Convention and DOHSA.

Once the Court has spoken as to the proper interpretation of

a statute or treaty,

it is the duty of other courts to respect that understand-

ing of the governing rule of law. A judicial construction

of a statute [or treaty] is an authoritative statement of

what the statute [or treaty] meant before as well as after

the decision of the case giving rise to that construction.

Rivers, 114. S. Ct. at 1519 (emphasis added). See Harper, 509

U.S. at 96 (“When this Court applies a rule of federal law to

the parties before it, that rule is the controlling interpretation

of federal law and must be given full retroactive effect in all

cases still open on direct review and as to all events, regard-

less of whether such events predate or postdate our announce-

ment of the rule”); see also Beam, 501 U.S. at 540-45, 549; In

re Federated Dep't Stores, 44 F.3d 1310, 1317 (6th Cir. 1995);

Garner v. Memphis Police Dep't, 8 F.3d 358, 362-63 (6th Cir.

1993).

The court below initially recognized its duty to address the

effect of the intervening decision of Zicherman on the recov-

erability of nonpecuniary pre-death pain and suffering dam-

ages, when the court, on the basis of KAL’s post-Zicherman

request, directed the parties to file supplemental briefs

addressing the significance of Zicherman. Bickel I, 83 F.3d at

132 (A 26a-28a); Order (6th Cir. Jan 26, 1996) (A 3la-32a).

On the basis of the supplemental briefs, the court below con-

cluded that Zicherman precludes all nonpecuniary damages,

including pre-death pain and suffering damages, stating:

Despite the fact that the Zicherman Court was not asked

to address the propriety of allowing a pain and suffering

award, we think the principle of Zicherman constitutes

an insuperable obstacle to an award of pain and suffer-

ing damages—clearly non-pecuniary damages—in these

cases.

Bickel 1, 83 F.3d at 132 (emphasis added) (A 27a-28a).

On rehearing, however, the court (2-1) rejected the rele-

vance of Zicherman and declined to apply the Court's ©

construction of the Convention on the availability of non-

pecuniary pre-death pain and suffering damages in these

appeals. Bickel II, 96 F.3d at 153-54 (A 3a-5a). The court on

rehearing accepted Respondents’ argument, twice previously

rejected by the court, that KAL had waived the pre-death pain

aad suffering argument by not raising it in KAL’s opening

briefs. Id. The court sought to support its conclusion as to

waiver on two grounds: (1) that Zicherman does not address

the propriety of such damages, and (2) that Zicherman

“neither added to, nor made any changes in, the law regard-

ing the availability of nonpecuniary damages under DOHSA.”

Bickel I], 96 F.3d at 153-54 (A 3a-5a).

Invocation of waiver cannot justify the refusal to apply the

construction of the Warsaw Convention and DOHSA rendered

by the Court while these cases were open to direct review.

The court below ignores that, in light of Zicherman, the dis-

trict court’s theory that nonpecuniary pre-death pain and suf-

fering damages are recoverable directly under Article 17 of

the Warsaw Convention no longer is tenable, and that whether

Zicherman changed the law is not relevant to retroactivity."

“When this Court construes a statute, it is explaining its

understanding of what the statute has meant continuously

since the date when it became law.” Rivers, 114 S. Ct. at

1521. n.12; see Boys Markets, Inc. v. Retail Clerks Union,

Local 770, 398 U.S. 235, 256 (1970) (Black, J., dissenting).

Moreover, waiver is not applicable under the circumstances

of these appeals. “Rules of practice and procedure are devised

to promote the ends of justice, not to defeat them.” Hormel v.

Helvering, 312 U.S. 552, 557 (1941). Like any general rule of

procedure, waiver should not be applied where its underlying

justifications are absent. See Singleton v. Wulff, 428 U.S. 106,

114 (1976); Hormel, 312 U.S. at 557-58: Federal Savings &

Loan Ins. Corp. v. Haralson, 813 F.2d 370, 377, n.3 (11th Cir.

” In fact, under the pre-Harper/Beam analysis in Chevron Oil v.

Huson. 404 U.S. 97, 106-07 (1971), one of the factors in favor of retroac-

tive application was that the decision did not change the law.

1987); United Transp. Union v. Dole, 797 F.2d 823, 827-28

(10th Cir. 1986). Application of “waiver” in these cases does

not advance or serve any purpose of the rule.'’ In no sense

could Respondents argue, nor did they argue, that they were

ambushed or unable to respond to KAL’s arguments. The

court below had the benefit of the opposing views of the par-

ties which were fully set forth in the supplemental briefs.

“Orderly rules of procedure do not require sacrifice of the

rules of fundamental justice.” Hormel, 312 U.S. at 557. The

result of the decision of the court below is to let stand an

erroneous decision of the district court, based on a legal anal-

ysis rejected by the intervening decision of the Court in

Zicherman. “Thus viewed, this is exactly the type of case

where application of the general practice would defeat rather

than promote the ends of justice. . . .” Hormel, 312 US.

at 560; see Bickel I], 96 F.3d at 157-59 (Batchelder, J., dis-

senting) (A 1la-17a).

The court in Bickel J and the Ninth Circuit in Saavedra

properly determined the effect of the Zicherman decision on

the district courts’ awards of nonpecuniary damages in the

cases pending on appeal. While the court in Bickel J followed

the “path laid out” by the Court in Zicherman, the majority on

rehearing in Bickel II] has departed from the clear path of

Zicherman and embarked upon the incorrect path charted by

the court in Forman. Neither waiver nor any other procedural

rule properly can be invoked to thwart the clear direction

of the Court in Zicherman as to the meaning and effect

of the Warsaw Convention and DOHSA. As Circuit Judge

Batchelder stated, in dissenting from the majority decision on

rehearing in Bickel IT:

The purpose of the waiver rule is to prevent: (1) unfairness to an

appellee who is unable to respond to an argument not raised in the open-

ing brief and (2) an ill-advised opinion on the legal issue raised, because

the Court has not had the benefit of an opposing view. See Wright v. Hol-

brook, 794 F.2d 1152, 1156-57 (6th Cir. 1986).

ie 8s :

RAE Be alee

ae Se

_ . Lwould permit [KAL] to make that claim in light of

the reasoning in Zicherman. | would do so, because this

is one of those extraordinary cases in which the contrary

result cannot be squared with applicable Supreme Court

precedent.

* * *

_, . [T]he majority rests its judgment not even on the

shifting sands of its understandable desire to do equity in

these cases. Rather, the majority constructs this judgment

“upstairs above a vacant lot.”

Bickel Il, 96 F.3d at 158-59 (Batchelder, J., dissenting)

(A 15a-17a).

Certiorari is required to ensure uniformity of decision with

respect to the application of the intervening decision of the

Court in Zicherman.

C. The Decision of the Court Below [s in Direct Conflict

With the Post-Zicherman Decision of the Court of

Appeals for the Ninth Circuit

Certiorari also is required to resolve the direct conflict cre-

ated by the court below with a post-Zicherman decision of the

Ninth Circuit arising out of the same event as involved in

Zicherman and in these cases. In Saavedra v. Korean Air

Lines, 93 F.3d 547, 550-54 (9th Cir. 1996), the Ninth Circuit

recognized that Zicherman “squarely rejected” the theory that

nonpecuniary pre-death pain and suffering damages are

recoverable directly under Article 17 of the Warsaw Con-

vention. The court in Saavedra undertook an analysis of the

applicable domestic law, DOHSA, and concluded, on the

basis of Zicherman, that (1) DOHSA “will not brook pain and

suffering relief” and (2) DOHSA cannot be supplemented

with a “general maritime survival action for nonpecuniary

damages, including pre-death pain and suffering” damages.

Id. at 553-54.

The court below, in reversing on rehearing its prior decision

in Bickel I, ignores Saavedra and effectively has upheld an

award of nonpecuniary pre-death pain and suffering damages

based solely on Article 17 of the Convention. See Bickel 1/,

96 F.3d at 157, n.1 (Batchelder, J., dissenting) (A 12a-13a).

Certiorari is required to bring the decision of the court

below in line with the decision of the Court in Zicherman

and to resolve the conflict created with the Ninth Circuit in

Saavedra.

CONSIDERATIONS OF FAIRNESS AND PUBLIC

CONFIDENCE IN THE JUDICIAL REVIEW PROCESS

WARRANT REVIEW BY THE COURT

Immediately after the Court decided Zicherman, KAL

sought permission in the court below, in the D.C. Circuit and

in the Ninth Circuit, to file supplemental briefs addressing the

effect of Zicherman on the recoverability of nonpecuniary

pre-death pain and suffering damages in the cases still open

to direct review. Each court granted KAL’s request, over the

objections of the plaintiffs based on waiver, and each court

directed the parties to address the effect of Zicherman on the

recoverability of nonpecuniary pre-death pain and suffering

damages in the pending appeals.

However, each court resolved the matter differently. The

Ninth Circuit addressed and decided the question, the D.C.

Circuit declined to decide the question, and the court below

first decided the question but then, on rehearing, decided not

to decide the question.

In view of these conflicting results, involving cases arising

from the same event and decisions all purporting to apply the

same law, the preservation of the integrity of the judicial pro-

cess warrants review by the Court.

Primates tania Viner on 2

AAS te lee ti eR

The post-Zicherman argument advanced by KAL involved

an important matter of treaty and statutory interpretation, sub-

ject to de novo review by the courts in the pending appeals.

After Zicherman, the decision of the district court was

patently incorrect and based on an improper interpretation of

the Warsaw Convention and DOHSA. The court below was

required to correct the district court’s misinterpretation of the

Convention and DOHSA, in light of Zicherman, as a matter of

the proper administration of federal law. See Virginia

Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099, n.8

(1991); Dole, 797 F.2d at 828.

Moreover, principles of fairness required the application of

Zicherman to the pending appeals to resolve whether non-

pecuniary pre-death pain and suffering damages are recov-

erable in the pending cases arising out of the same event as

involved in Zicherman. The result of the decision of the court

below is that Respondents have recovered a windfall award

and KAL must pay millions of dollars in nonpecuniary dam-

ages'? which are insupportable as a matter of law. See Gulf

Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486, n.16

(1981); Bickel II, 96 F.3d at 159 (Batchelder, J., dissenting)

(A 16a). If Zicherman had been decided before briefing in the

court below, the argument would have been addressed by

KAL in the opening brief. The court below now penalizes

KAL for advancing an argument not only made viable, but

required, by the intervening Zicherman decision and

addressed in a supplemental brief pursuant to the directive of

the court below.

There now have been three post-Zicherman Circuit Court

decisions in cases arising out of the KAL 007 disaster, result-

ing in three different conclusions as to the effect and meaning

of the intervening decision of the Court in Zicherman on the

i There have been 16 separate awards for pre-death pain and suf-

fering damages arising out of the KAL 007 disaster ranging from $0 to

$1.35 million, totaling $5,165,000, excluding prejudgment interest.

pending appeals. Considerations of fairness, judicial integrity,

and the public’s perception of judicial proceedings, warrant

review by the Court. See United States v. Atkinson, 297 U.S.

157, 160 (1936).

III

THE COURT BELOW HAS DECLINED TO ADDRESS

AN IMPORTANT QUESTION OF FEDERAL LAW

WHICH SHOULD BE SETTLED

The court below passed upon the issue of the legal recov-

erability of nonpecuniary pre-death pain and suffering dam-

ages in both Bickel | and Bickel II. See Lebron v. Nat'l R.R.

Passenger Corp., 115 S. Ct. 961, 965-66 (1995). The court in

Bickel | directly addressed the argument and the court in

Bickel II, by considering the sufficiency of the evidence to

support the awards of pre-death pain and suffering damages,

necessarily passed upon the antecedent question of whether

nonpecuniary pre-death pain and suffering damages are recov-

erable as a matter of law. See U.S. Nat’l Bank of Oregon v.

Independent Ins. Agents of America, 508 U.S. 439, 445-47

(1993); Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73, 77

(1990). Thus, the “substantive issue” was addressed by the

court below in Bickel I], albeit not directly.

The question of the preclusive effect of Zicherman and

DOHSA on the recoverability of nonpecuniary pre-death pain

and suffering damages involves an important question of fed-

eral law present in each of the pending KAL 007 disaster

cases'*, and arises in almost every death case occurring on the

high seas, in both the aviation and non-aviation context. Cer-

tiorari should be granted to resolve the conflict that has now

developed and to provide an early and definitive guide for the

Twenty-five (25) cases are pending on appeal or in the district

court.

lower courts so as to avoid further inconsistent results in this

and other litigation involving DOHSA.

Before Zicherman, all courts allowed § 762 of DOHSA to

be supplemented with nonpecuniary pre-death pain and suf-

fering damages under either the Convention, state law, gen-

eral maritime law or a combination thereof. See authorities

cited supra notes 6, 7 & 8. In the only pre-Zicherman case

which denied an award of nonpecuniary pre-death pain and

suffering damages, in a Warsaw Convention case involving

DOHSA, the district court held that such damages, never-

theless, were recoverable on the basis of the Convention

alone. Hawaii II, 783 F. Supp. at 1264-65; In re Air Disaster

Near Honolulu, Hawaii, on Feb. 24, 1989, 792 F. Supp. 1541,

1546 (N.D. Cal. 1990). This was the same legal theory relied

upon by the district court below in allowing the awards in

these cases. This legal theory now has been rejected and ren-

dered invalid by the Court in Zicherman.

Although the recoverability of loss of society damages was

the only issue directly addressed in Zicherman, the post-

Zicherman courts that have addressed the recoverability of

pre-death pain and suffering damages, save one’*, have con-

cluded that the reasoning of Zicherman forecloses the recov-

ery of any nonpecuniary damages under DOHSA, including

pre-death pain and suffering damages. Zicherman made what

was once a non-viable argument, viable and controlling.

The court below originally found that “Zicherman consti-

tutes an insuperable obstacle to an award of pain and suffer-

ing damages”. Bickel I, 83 F.3d at 132 (A 27a-28a). The

majority in Bickel /I, reversing itself on rehearing, offered no

explanation as to how Zicherman could pose an “insuperable

obstacle” in April, but that in August, Zicherman “neither

added to, nor made any changes in the law regarding the

availability of nonpecuniary damages under DOHSA.” Bickel

I]. 96 F.3d at 153 (A 4a). As succinctly explained by the dis-

" Beirn, memo. op. (E.D.N.Y. Aug. 28, 1996).

22 :

sent in Bickel Il, Zicherman “made it crystal clear that where

DOHSA governs, it governs exclusively”:

Zicherman, it is true, does not directly address the

propriety of pre-death pain and suffering damages. But

the only plausible reading of that case is that such dam-

ages, because they are not pecuniary damages, are not

recoverable. See Saavedra, 93 F.3d at 553.

* x *

{[A]s a federal judge, and not a federal legislator, I am

bound to apply DOHSA, not as it may seem “just” to me,

but as it is written, and as it has been interpreted by the

highest judicial authority inthe land... .

Bickel Il, 96 F.3d at 157, 159. (Batchelder, J. dissenting)

(A 13a, 16a).

The Ninth Circuit in Saavedra found:

the Supreme Court’s reasoning in Zicherman, although

directly dealing only with a claim for loss of society,

effectively forecloses any claims under American law for

nonpecuniary damages, including compensation for the

grief of the survivors, and the pre-death pain and suf-

fering of the victims.

93 F.3d at 550-51; see In re KAL-DDC II, 935 F. Supp. at 15.

It is significant that the court in Bickel J and the Ninth

Circuit in Saavedra, in directly addressing the effect of

Zicherman, concluded that nonpecuniary pre-death pain and

suffering damages are not recoverable, despite earlier con-

trary holdings of the First, Second, Third and Fifth Circuits

and numerous district courts. See authorities cited supra notes

6 & 7.

Pending in the D.C. Circuit are three additional appeals,

which were fully briefed prior to Zicherman, but which were

held in abeyance awaiting the decision in Zicherman. The

court now has ordered that the appeals be rebriefed, pre-

eee

de ett ak s*.

Gn ang 4!

2a tee ty nati a nen ASOT del AN AA nr LEAKS Oe eli EA ae 9 RON I

sumably in light of Zicherman. Also pending in the D.C. Cir-

cuit is an interlocutory appeal from the district court’s post-

Zicherman decision, reversing its prior decision allowing the

recovery of nonpecuniary pre-death pain and suffering dam-

ages on the basis of the Convention alone. In re KAL-DDC I,

935 F. Supp. 10, 15 (D.D.C. 1996), interlocutory appeal

granted, No. 96-8013 (D.C. Cir. Aug. 15, 1996).

In addition to the appeals pending in the D.C. Circuit, there

are three KAL 007 disaster cases awaiting trial in the Eastern

District of New York, where the trial court has held, post-

Zicherman, that nonpecuniary pre-death pain and suffering

damages are recoverable under DOHSA. Beirn, memo. op.

(E.D.N.Y. Aug. 28, 1996). There are four KAL 007 disaster

cases awaiting trial in the Central District of California where

the trial courts, pursuant to Zicherman and Saavedra, have

dismissed all claims for nonpecuniary pre-death pain and

suffering damages.

The Court should grant certiorari to resolve the inconsistent

and conflicting post-Zicherman rulings in the KAL 007 dis-

aster litigation and the conflict which now exists between the

Ninth Circuit and the First, Second, Third and Fifth Circuits

(see supra notes 6 & 7) as to the recoverability of nonpecu-

niary pre-death pain and suffering damages under DOHSA

generally.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Cer-

tiorari should be granted in all respects.

Dated: November 19, 1996

Respectfully submitted,

George N. Tompkins, Jr.

Andrew J. Harakas*

TOMPKINS, HARAKAS,

ELSASSER & TOMPKINS

Courthouse Square

140 Grand Street

Of Counver: White Plains, New York 10601

JOSEPH F. BERRAFATI (914) 428-2525

Attorneys for Petitioner

KOREAN AIR LINES Co., LTD.

* Counsel of Record

APPENDIX

INDEX TO APPENDIX

PAGE

Amended Opinion of the Court of Appeals

for the Sixth Circuit, dated August 29, 1996

(“Bickel II”), officially reported at 96 F.3d

Se Gee a WE cace studs dk secdeeheescasénebe la

Opinion of the Court of Appeals for the Sixth

Circuit, dated April 29, 1996 (“Bickel I”),

officially reported at 83 F.3d 127 (6th Cir.

FOU veshaundhdesd dasnsackssendcenberconkeswavnsens 18a

Order on Suggestion for Rehearing en Banc,

Se SENS SUR; SOU vo dennccssasedsdepeevec cose: 29a

Order granting motion to file a Supplemental

Brief, filed January 26, 1996 ..................... 31a

Order of the Court of Appeals for the Sixth

Circuit consolidating cases for appeal, filed

PE ie MEN e'de caNnansdiegcddiersacusedivesvdeos 33a

Memorandum Opinion and Order of the

District Court for the Eastern District of

Michigan (Anna Diggs Taylor), filed

January 7, 1993, officially reported at 814

F. Supp. 592 (E.D. Mich. 1993) ..............4-. 35a

Relevant Provisions of the Warsaw Convention

Rf RR ng ire Ca ein te OMe tC ry PAE Reet 47a

ES FO i col tn dabiwi senda s keene teed ke 47a

Relevant Provisions of the Death on the High

Seas Act, 46 U.S.C. App. § 761 et seq.

Sp tare Sic Ee TPE bee radesepauneesinecas sacdax 48a

56 UDA. ROD. | TGS civecscccecses saneuaienesnves 48a

NAA C8. BIS REM ch tt se lh lt aap ol

shew

Nos. 93-2144/2259/2549;

94-1095/1096/1098/1100/1101

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Daisy E. BICKEL, Representative

for Edna Doris Miller; DoROTHY

JONES, Estate of Joyce Chambers;

WILLIE N. JAMES, Personal

Representative of the Estate of

Hazel Jeanne James,

Plaintiffs-Appellees,

RICHARD A. BOWDEN,

Individually and as Personal

Representative of the Estate of

Eleanor Beatrice Young Bissell,

Plaintiff-Appellee,

Cross-Appellant (94-1098),

MICHAEL D. JONES, Personal

Representative of the Estate of

Margaret Zarif, a/k/a Margaret

Jones,

Plaintiff-Appellee,

Cross-Appellant (94-1101),

? ON APPEAL from the

United States District

Court for the Eastern

District of Michigan

Vv.

KOREAN AIR LINES COMPANY,

LTD.,

Defendant-Appellant

(93-2144/2259/2549;

94-1095/1096/1 100),

Cross-Appellee.

Decided and Filed August 29, 1996

AMENDED OPINION

Before: MERRITT, Chief Judge; BROWN and

BATCHELDER, Circuit Judges.

BROWN, J., delivered the opinion of the court, in which

MERRITT, C. J., joined. BATCHELDER, J. (pp. 11-17),

delivered a separate dissenting opinion.

BAILEY BROWN, Circuit Judge. This case first came

before this panel on January 31, 1995, and was the subject

of a prior opinion (Bickel v. Korean Air Lines, 83 F.3d 127

(6th Cir. 1996)), in which we, inter alia, reversed the

awards for predeath pain and suffering which each plaintiff

won at trial. After we filed that opinion, the plaintiffs filed

a Motion for Rehearing with a Suggestion for Rehearing En

Banc, in which they alleged that we erred in reversing the

predeath pain and suffering awards. After reviewing the

plaintiffs’ motion, and the defendant’s response to it, we

GRANT the motion and withdraw Section II, Part C and

Section III of our prior opinion. We replace those portions

of our prior opinion with the following text:

Ne ll Deptt ka I MN RS EE CRIS Be nae Bet a ae, Slat noc

ee ee ee, ee

In a supplemental brief filed after the Supreme Court

announced its opinion in Zicherman, KAL urges us to

reverse the awards for the decedents’ predeath pain and

suffering which the plaintiffs’ won at trial. KAL argues

that, even though the Supreme Court expressly stated in

Zicherman that the question of the propriety of the predeath

pain and suffering awards was not before it, 116S. Ct. at

636 n.4, such awards cannot be squared with the Court's

recognition that, under section 762 of DOHSA, plaintiffs

may recover pecuniary damages only. In response, the

plaintiffs argue (1) that KAL waived this issue when it

failed to raise it in its opening briefs to this court, and (2)

that DOHSA, a wrongful death statute, has no effect on

their right to recover nonpecuniary predeath pain and

suffering damages through a maritime common law

survival action. See Sea-Land Servs. v. Gaudet, 414 U.S.

573, 575 n.2 (discussing the differences between wrongful

death actions and survival actions). Because we agree with

the plaintiffs’ first argument, we express no opinion on

their second one.

Federal Rule of Appellate Procedure 28(a) requires that

an appellant's brief include “a statement of the issues

presented for review,” and "{a]n argument" on each issue

presented. While KAL appealed the issue of the

sufficiency of the evidence to support the various predeath

pain and suffering awards in the five trials below, none of

the six opening briefs KAL submitted to this court

identifies as an issue for appeal the propriety of allowing

any such awards. “We normally decline to consider issues

We note, however that other circuits have allowed plaintiffs to

recover predeath pain and suffering damages on maritime Common law

survival claims while collecting pecuniary wrongful death damages on

a DOHSA claim. E.g. Azzopardi v. Ocean Drilling & Exploration

Co., 742 F.2d 890, 894 (Sth Cir. 1984); Barbe v. Drummond, 507

F.2d 794, 799-800 (Ist Cir. 1974). -

not raised in the + poo opening brief[s]." Priddy v.

Edelman, 883 F.2d 438, 446 (6th Cir. 1989). KAL argues

that we should not apply this rule to the instant appeal,

however, contending that after it filed its opening briefs,

the Supreme Court’s decision in Zicherman intervened and

changed the law on the availability of predeath pain and

suffering damages. This contention is incorrect. As noted

above, Zicherman does not address the propriety of the

predeath pain and suffering damages awarded at trial in that

case, and that award stands to this day. See Zicherman,

116 S. Ct. at 636 n.4 (noting that KAL did not challenge

the validity of the predeath pain and suffering award in its

petition for certiorari).

Moreover, in stating that DOHSA disallows recovery of

nonpecuniary loss of society damages, the Zicherman court

merely followed settled law. The Court decided that

question almost twenty years ago in Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 625 (1978). The Zicherman

opinion therefore neither added to, nor made any changes

in, the law regarding the availability of nonpecuniary

damages under DOHSA. Thus, any argument that KAL

could make based on the fact that DOHSA does not allow

nonpecuniary damages was available to it before the Court

decided Zicherman, and therefore KAL could have raised

this issue in its opening briefs.”

Indeed, in Forman vy. Korean Air Lines, 84 F.3d 446,

448-49 (D.C. Cir. 1996), the D.C. Circuit refused to

address the very argument KAL urges to us here, on the

ground that KAL did not raise the issue until after the

Supreme Court decided Zicherman, when KAL raised it in

a reply brief. The court noted that "[t]he argument that

pre-death pain and suffering damages are not available if

2in fact, the record reflects that KAL presented the district court

with the same argument it advances in its supplemental brief at a

consolidated pretrial motions hearing on December 21, 1992. Joint

Appendix at 701-02.

on —

DOHSA applies has been raised numerous times before

Zicherman." Compare, e.g., Azzopardi v. Ocean Drilling

& Exploration Co., 742 F.2d 890, 893 (Sth Cir. 1984)

(allowing plaintiff to recover nonpecuniary survival

damages under general maritime common law along with

pecuniary wrongful death damages under DOHSA) with In

re Air Crash Disaster Near Honolulu, Hawaii, 792 F.

Supp. 1541, 1545-46 (N.D. Cal. 1990) (holding that

DOHSA preempted survival actions). Because KAL

initially failed to challenge the propriety of awarding

damages for predeath pain and suffering, and because

Zicherman does not alter the state of the law on the

availability of such awards, we decline to address this

belatedly raised issue.

Finally, KAL has challenged (1) the admission of

videotaped expert testimony in two of the trials below, (2)

the sufficiency of the evidence presented at each of the

trials below to support the awards of predeath pain and

suffering, and (3) the district court’s failure to remit the

predeath pain and suffering awards in three of the cases.

We will address these issues seriatim.

Videotaped Expert Testimony

Five KAL Flight 007 damages cases went to trial in the

Eastern District of Michigan before the Honorable Anna

Diggs Taylor, and all five of them are consolidated in this

appeal. The first of the five cases to go to trial was the

Bowden/Bissell case.* At trial in Bowden/Bissell, the

plaintiffs presented the testimony of two experts. James

McIntyre, a retired naval officer and former commercial

airline pilot, testified regarding the emergency operation of

3 : ;,

In their briefs, the parties refer to the individual cases in this

manner, i.e., (personal representative)/(decedent). For the sake of

consistency, and to avoid confusion, we will do the same.

a Boeing 747. Robert Elzy, a former naval officer who is

an aviation physiologist, testified regarding the physical

effects which the attack and the subsequent decompression

and recompression of the aircraft might have had on the

passengers. The plaintiff videotaped the experts’ testimony

so that it would be available to other plaintiffs for use in

subsequent trials, should the experts be unavailable to

testify in person. As it turned out, this Bowden/Bissell trial

ended in a mistrial, and the case was later retried. The

plaintiffs presented the videotaped expert testimony in the

subsequent Bowden/Bissell trial, as well as at the four other

damages trials. KAL now appeals the admission of the

videotaped testimony in two of those trials: Bowden/Bissell

and Jones/Zarif.

We review this matter for an abuse of discretion. See

United States v. Phillips, 888 F.2d 38, 40 (6th Cir. 1989)

“An abuse of discretion exists when the reviewing court is

firmly convinced that a mistake has been made." Jn re

Bendectin, 857 F.2d 290, 307 (6th Cir. 1988), cert.

denied, 488 U.S. 1006 (1989). In Bowden/Bissell, the

plaintiff informed the court on the day the trial began,

April 27, 1993, that he wished to use the videotaped

testimony because the two experts were testifying ina KAL

Flight 007 damages case in Washington, D.C. at the time.

Finding that the witnesses were unavailable, and that KAL

had sufficient motive and opportunity to cross examine the

experts at the prior trial, the district court allowed the

videotaped testimony under Federal Rule of Evidence

804(b)(1) and Federal Rule of Civil Procedure 32(a)(3)(B).

Thus, on April 27, the plaintiff began playing Mcintyre’s

videotaped testimony. Before the plaintiff resumed playing

that testimony on April 28, KAL presented the court with

the declaration of a defense attorney in the Washington

case, which indicated that McIntyre had completed his

testimony in that case on April 26, and that Elzy had

completed his testimony on the 27th. The defendants

therefore argued that the experts were no _ longer

“unavailable” and could have flown directly to Detroit and

testified live. Nonetheless, the district court allowed the

videotaped testimony to continue.

KAL contends this was an abuse of discretion. We

disagree. While, in retrospect, it appears that the two

experts could have wound up their testimony in

Washington, caught an evening flight to Detroit, and been

available to testify there the following morning, we must

review the district court's decision with an appreciation for

the difficulties of ensuring the smooth progression of the

proceedings in its court. When the court initially decided

to allow the videotaped testimony, it did not know that the

experts would finish their testimony in Washington in time

to appear in Detroit. Once KAL informed the court that

the experts had concluded their Washington testimony, the

plaintiff was already in the middle of offering the

videotaped testimony. Ordering the plaintiff to produce

one or both of the witnesses for live testimony could have

resulted in a substantial delay. Considering that the

testimony that the experts would have given “live” was

substantially the same as the testimony on videotape, and

that the videotaped testimony occurred at a prior trial in

this same case, we are not "firmly convinced” that the

district court erred in allowing the videotaped testimony to

continue.

Zarif/Jones was the last of the five cases to come to trial,

and, unlike the previous four cases, it was tried to the

bench rather than to a jury. As in each of the previous

cases, however, the plaintiff in Zarif/Jones sought to use

the videotaped expert testimony of MclIntyre and Elzy,

claiming that the experts were “bound by prior

commitments." KAL again objected, arguing that "live"

testimony is important in assisting the trier of fact in

credibility determinations. The district court responded:

Well, I am going to proceed with the Plaintiff's case

and will permit the Plaintiff's experts to be heard by

video tape here. The Court has heard them in person,

seen them cross-examined more than once, each of

them, and seen the video “my I don’t think the

credibility determination will be that crucial.

Once again, we cannot say that the district court erred in

allowing the plaintiff to a videotaped testimony.

Assuming the truth of the plaintiff's claims that the experts

were unavailable to testify at the times for which the trial

was scheduled, the district court again had to balance the

need for viewing the witnesses live against the substantial

scheduling concerns attendant to conducting a trial in

federal district court. Considering that Judge Taylor had

seen the plaintiff's experts testify live, and that this case

was tried to the bench rather than to a jury, we will not

disturb the district court’s ruling.

Sufficiency of the Evidence

KAL has challenged the sufficiency of the evidence

presented in each trial below to support the various awards

of predeath pain and suffering. In reviewing the

sufficiency of the evidence, we consider the evidence in the

light most favorable to the plaintiffs. Molton v. City of

Cleveland, 839 F.2d 240, 241-42 (6th Cir. 1988), cert.

denied, 489 U.S. 1068 (1989). At the trials below, the

plaintiffs presented evidence from which a jury could infer

that each passenger (1) survived the initial explosion which

caused a hole in the rear section of the fuselage, (2) donned

an emergency oxygen mask, and (3) remained conscious

during the twelve minute descent into the Sea of Japan,

suffering the physical effects of decompression and

aT bears noting that there is evidence in the record of another trial,

the Jones/Chambers trial, indicating that the district court anticipated

the use of the videotaped testimony in all of the trials when it granted

KAL's request to try each action separately. In Jones/Chambers, the

court, discussing the use of the videotaped testimony, stated: "| want

to remind you that if the court had been aware that you would have

insisted on the presence of the plaintiff's experts at every trial, maybe

| would have looked more closely at this insistence that there be six

different trials.”

recompression along the way, as well as the horror of

knowing that death was imminent. This evidence was

sufficient to support awards for predeath pain and suffering

in these cases. Accord Forman v. Korean Air Lines, 84

F.3d 446, 449 (D.C. Cir. 1996) (affirming predeath pain

and suffering award in a KAL Flight 007 case on evidence

essential'y the same as that presented in the cases before

us); Hollie v. Korean Air Lines, 60 F.3d 90, 92-93 (2d Cir.

1995) (same), judgment vacated on other grounds and case

remanded, 116 S. Ct. 808 (1996); Zicherman v. Korean Air

Lines, 43 F.3d 18, 23 (2d Cir. 1994) (same), rev'd in part

on other grounds, 116 S. Ct. 629 (1996).

Remittitur

KAL also appeals from the district court's refusal to

remit the predeath pain and suffering awards in (1)

Jones/Chambers, where the jury awarded $400,000 in

predeath pain and suffering damages; (2) Bowden/Bissell,

where the jury awarded $1,350,000 in predeath pain and

suffering damages; and (3) Jones/Zarif, where the court

awarded $1,000,000 in predeath pain and suffering

damages.

This court reviews a district court's denial of a motion

for a remittitur for an abuse of discretion. Roush v. KFC

Nat'l Management Co., 10 F.3d 392, 397 (1993), cert.

denied, 115 8. Ct. 56 (1994). District court's should grant

such motions only “if the award clearly exceeds ‘the

amount which, under the evidence in the case was the

maximum that a jury could reasonably find to be

compensatory’ for the plaintiff's loss." Jn re Lewis, 845

F.2d 624, 635 (6th Cir. 1988) (quoting Manning v. Altec,

Inc., 488 F.2d 127, 133 (6th Cir. 1973)). “Unless the

award is (1) beyond the range supportable by proof or (2)

so excessive as to shock the conscience, . . . or (3) the

result of a mistake, we must let the award stand." Leila

Hosp. & Health Ctr. v. Xonics Medical Sys., 948 F.2d

271, 278 (6th Cir. 1991).

10a

The district court did not abuse its discretion in denying

KAL’s motions. It is impossible to determine the exact

value of the pain and suffering which the decedents may

have endured. In reviewing these three challenged awards,

we acknowledge that the proof in these cases would support

findings by the three factfinders (two different juries and

the district judge) that the decedents (1) remained conscious

during the entire twelve minute descent of the aircraft, (2)

suffered substantial physical pain during the descent, and

(3) knew they would die upon impact. One simply cannot

quantify the mental and physical pain and suffering such an

experience would cause, and thus we cannot conclude that

the evidence does not support the awards. Since there is

no basis for concluding that the factfinders made

"mistakes" (either in their findings or their arithmetic, if

any), we will reverse the district court and remit these

awards only if they "shock our conscience." They do not.

For the forgoing reasons, we REVERSE in part and

AFFIRM in part the judgments of the district court. We

REMAND these cases for the entries of judgments

consistent with this opinion.

lla

ALICE M. BATCHELDER, Circuit Judge, dissenting.

As the majority points out, when these cases first came

before us, we issued an opinion in which, inter alia, we

reversed the awards for pre-death pain and suffering (“pain

and suffering awards") that the plaintiffs had won at trial.

Bickel v. Korean Air Lines Co., 83 F.3d 127 (6th Cir.

1996). We reasoned that the Supreme Court’s recent

decision in Zicherman v. Korean Air Lines, — U.S. —, 116

S. Ct. 629 (1996), holding that non-pecuniary damages

were not available under the Death on the High Seas Act,

46 U.S.C.A. § 761 et seq. (West 1975) ("DOHSA"),

applied, as well, to the non-pecuniary damages for pre-

death pain and suffering awarded in these cases.

Today, a majority of the panel reverses that decision and

reinstates the awards recovered in the district court for the

decedents’ pre-death pain and suffering. The majority

reasons that Korean Air Lines Company, Ltd. ("KAL"),

waived any argument relative to the availability of pain and

suffering awards by failing to raise the argument in its

opening briefs. Because I continue to believe that DOHSA

exclusively governs these cases, that DOHSA, both in its

plain language and as interpreted by Zicherman, does not

provide for non-pecuniary damages, and that the pre-death

pain and suffering awards at issue in these cases are non-

pecuniary and, therefore, not recoverable under DOHSA,

I dissent.

The majority correctly observes that in its opening briefs,

KAL did not argue that pain and suffering awards were

unavailable under DOHSA. The majority acknowledges

that KAL appealed the sufficiency of the evidence to

support the pre-death pain and suffering awards, but bears

down on KAL’s failure to appeal what it terms “the

propriety of allowing any such awards." Maj. op. at 3

(emphasis in original). The majority offers two bases for

its conclusion that KAL’s failure timely to raise its

“propriety” claim precludes our review. First, the majority

explains: "Zicherman does not address the propriety of the

predeath pain and suffering damages awarded at trial in that

l2a

case, and that award stands to this day." /d. (citing

Zicherman, 116 S. Ct. at 626 n.4). And second,

Zicherman “neither added to, nor made any changes in, the

law regarding the ey 1 of nonpecuniary damages

under DOHSA." /d. at 4 5. Therefore, the majority

concludes, KAL could have argued against the availability

of pre-death pain and suffering awards before Zicherman

and in its opening briefs. I do not find the majority’s

reasoning persuasive.

In a purely technical sense, I have no quarrel with the

majority’s observation that Zicherman did “not address the

propriety of the predeath pain and suffering damages

awarded at trial in that case{.]" Maj. op. at 4 (citing

Zicherman, 116 S. Ct. at 626 n.4). ee the

propriety of such damages remains an open question for the

Supreme Court to address in a future case—perhaps even

this one. Until the Court renders such a ruling, however,

we are bound by the principles of Zicherman, and | think

that there is no getting around the flat, unambiguous

holding of Zicherman that where DOHSA governs (as it,

without question, does here), it governs exclusively; it

provides the sole source of damages recoverable; and

permits only pecuniary damages. See Zicherman, 116 S.

Ct. at 636-37. See also Saavedra v. Korean Air Lines Co.,

Lid. , Nos. 94-55018/55495/55060/55496/55161, 1996 WL

431734, *6 (9th Cir. Aug. 2, 1996).* I detect nothing by

"The Ninth Circuit in Saavedra recently had occasion to consider the

availability of pre-death pain and suffering damages in cases such as the

ones presently before us. Building upon the reasoning of Zicherman,

as well as the conclusion we originally reached in these cases, the

Ninth Circuit held in a thoughtful opinion that pre-death pain and

suffering awards were neither available under DOHSA, nor under a

general maritime survival theory. Sce Saavedra, 1996 WL 431734, at

*5-*7. Although KAL unquestionably challenged the availability of

pre-death pain and suffering awards when it initially argued its case

before the Ninth Circuit, see id. at *2, that court's conclusion in

Saavedra only underscores the peculiarity of the holding embraced by

the majority here. Implicitly, Saavedra reaffirms that the awards

ee ee ee ee Pe ae oo

eee eee Sane eee ars Cree eed

l3a

way of disagreement from the majority’s opinion; indeed,

section II.B. of the original panel opinion in this case

(holding that neither loss of society nor survivor’s grief is

recoverable under DOHSA) remains undisturbed. Bickel,

83 F.3d at 131-32.

Zicherman, it is true, does not directly address the

propriety of pre-death pain and suffering damages. But the

only plausible reading of that case is that such damages,

because they are not pecuniary damages, are not

recoverable. See Saavedra, 1996 WL 431734, at *6.

Today’s majority overlooks this point, and by doing so,

avoids having to explain how KAL’s procedural default (of

not raising the argument in their opening briefs) can suffice

to sustain liability for pain and suffering damages where

such damages are not available as a matter of law.

KAL argues, and this panel originally agreed, that,

although pre-death pain and suffering awards were not

squarely before the Supreme Court in Zicherman, DOHSA

does not provide for such damages because they are non-

pecuniary in nature. /d. at 132. Accordingly, we

concluded that:

Zicherman constitutes an insuperable obstacle to an

award of pain and suffering damages—clearly non-

pecuniary damages—in these cases. Thus, for the

same reasons we reversed the survivor's grief

damages, we now reverse the award of pain and

suffering damages.

dd.

reinstated by the majority are not based on any form of damages

created by an act of legislative discretion or otherwise permissible

judicial fiat. I admit that | am somewhat mystified how the majority

opinion can, as it does, let Saavedra pass, entirely without mention.

l4a

The majority now retreats from that position, giving as

its second reason for affirming the non-pecuniary damage

awards for pre-death pain and suffering that:

The Zicherman opinion . . . neither added to, nor

made any changes in, the law regarding the availability

of nonpecuniary damages under DOHSA. Thus, any

argument that KAL could make based on the fact that

DOHSA does not allow nonpecuniary damages was

available to it before the Court decided Zicherman,

and therefore, KAL could have raised this issue in its

opening briefs.

Maj. op. at 4 (emphasis in original). I cannot agree.

Zicherman, whatever else may be said of it, clarified the

law relative to non-pecuniary damages available under

DOHSA. “Moreover, where DOHSA applies, neither state

law nor general maritime law can provide a basis for

recovery of loss-of-society damages." Zicherman, 116 S.

Ct. at 636 (citations omitted). See Saavedra, 1996 WL

431734, at *6 (noting that "[t]he Supreme Court, in holding

that DOHSA cannot be supplemented by general maritime

law in order to obtain loss of society damages, gave no

indication that there was any material difference between

loss of society damages and any other nonpecuniary

damages”). 1 do not dispute that the relevant Supreme

Court case law logically, perhaps ineluctably, led the

Zicherman Court to rule as it did, but it is nevertheless not

entirely accurate to characterize Zicherman as neither

adding to, nor making any changes in, the law of damages

available under DOHSA. But even if the majority were

correct, I do not comprehend the logic of leaving these

non-pecuniary damage awards to stand when such awards,

1Sa

as the majority implies, have not been available directly

under DOHSA for years.”

Assuming arguendo that Zicherman “neither added to,

nor made any changes in, the law regarding the availability

of nonpecuniary damages under DOHSA[,]" maj. op. at 4;

but see Saavedra, 1996 WL 431734, at *2 (observing that

"[mJany of the issues raised before [the Ninth Circuit] were

resolved for the first time in . . . Zicherman"), still

Zicherman made it crystal clear that where DOHSA

governs, it governs exclusively. Zicherman, 116 S. Ct. at

636. And because where DOHSA governs, it governs

exclusively, on the facts of the case before us (where

DOHSA unquestionably governs) no pre-death pain and

suffering damages are available, for such damages are non-

ed in nature. See Saavedra, 1996 WL 431734, at

” -*7.

Although KAL did not squarely aver in its opening briefs

that pain and suffering awards were not available under

DOHSA, | would permit it to make that claim in light of

the reasoning in Zicherman. 1 would do so, because this is

one of those extraordinary cases in which the contrary

As cases cited in the majority opinion indicate, pain and suffering

damages in cases such as the ones before us have not been available

directly under DOHSA, but have rested on some other source of law.

See maj. op. at 3 n.1 (and authorities collected therein). See also

Solomon v. Warren, 540 F.2d 777, 792 (Sth Cir. 1976) (permitting

recovery for decedent's pain and suffering on the theory that state law

provides a cause of action for such damages), cert. dismissed, 434 U.S.

801 (1977); Favaloro v. S/S Golden Gate, 687 F. Supp. 475, 480

(N.D. Cal. 1987) (permitting recovery for decedent's pain and

suffering on the theory that general maritime law provides a cause of

action for such damages); In re Air Crash Disaster Near Honolulu,

Haw., on Feb. 24, 1989, 783 F. Supp. 1261, 1265 (N.D. Cal. 1992)

(permitting recovery for decedent’s pain and suffering on the theory

that the Warsaw Convention provides a cause of action for such

damages). As the Ninth Circuit recently pointed out, however.

Zicherman precludes such "supplemental" damages awards. See

Saavedra, 1996 WL 431734, at *7.

l6a

result cannot be squared with applicable Supreme Court

precedent. See United States v. Chesney, 86 F.3d 564,

567-68 (6th Cir. 1996) (noting that we have discretion to

review an issue not properly preserved for direct appeal in

"exceptional cases or particular circumstances," and

exercising the discretion to square the ruling in the case

with recent, relevant Supreme Court precedent).

After carefully reviewing the majority’s opinion, | have

little doubt that the majority and I do not disagree very

much about the harshness of the result in this case if

DOHSA were to be exclusively applied. But as a federal

judge, and not a federal legislator, I am bound to apply

DOHSA, not as may seem "just" to me, but as it is

written, and as it has been interpreted by the highest

judicial authority in the land. See, e.g., THE FEDERALIST No.

78, at 468-49 (Alexander Hamilton) (Clinton Rossiter ed.,

1961).* And there is simply nothing in the language of

DOHSA and nothing in Zicherman (or any other case to

which the majority points) that leads me to believe there is

any principled way to avoid the conclusion that there is no

basis in the law for the pre-death pain and suffering awards

which today’s majority upholds. Yet, the majority defaults

KAL and holds that it must pay damages that are not

available as a matter of law. In doing so, the majority

rests its judgment not even on the shifting sands of its

. As Hamilton observed:

It can be of no weight to say that the courts, on the

pretense of a repugnancy, may substitute their own pleasure to

the constitutional intentions of the legislature. This might as

well happen in the case of two contradictory statutes; or it

might as well happen in every adjudication upon any single

statute. The courts must declare the sense of the law; and if

they should be disposed to exercise WILL instead of

JUDGMENT, the consequence would equally be the

substitution of their pleasure to that of the legislative body.

The observation, if it proved anything would prove that there

ought to be no judges distinct from that body.

17a

understandable desire to do equity in these cases. Rather,

the majority constructs this judgment “upstairs above a

vacant lot."

18a

Nos. 93-2144/2259/2549;

94-1095/1096/ 1098/1 100/1101

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Daisy E. BICKEL, Representative

for Edna Doris Miller; DoROTHY

JONES, Estate of Joyce Chambers;

WILLIE N. JAMES, Personal ‘g ON APPEAL from the

Representative of the Estate of United States District

Hazel Jeanne James, Court for the Eastern

Plainsiffs-Appellees, District of Michigan

RICHARD A. BOWDEN,

Individually and as Personal

Representative of the Estate of

Eleanor Beatrice Young Bissell,

Plaintiff-Appellee,

Cross-Appellant (94-1098),

MICHAEL D. JongEs, Personal

Representative of the Estate of

Margaret Zarif, a/k/a Margaret

Jones,

Plaintiff-Appellee,

Cross-Appellant (94-1101),

tel wn aes os. ce te iin ne a Ae

19a

Vv.

KOREAN AIR LINES COMPANY,

LTD.,

Defendant-Appellant

(93-21 44/2259/2549;

94-1095/1096/1100),

Cross-Appellee.

Decided and Filed April 29, 1996

Before: MERRITT, Chief Judge; BROWN and

BATCHELDER, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. The

underlying facts of these cases are quite notorious. They

have been set forth in some considerable detail elsewhere,

see In re Korean Air Lines Disaster of Sept. 1, 1983, 932

F.2d 1475, 1477-1479 (D.C. Cir.) (Korean Air), cert.

denied, 112 S. Ct. 616 (1991), and it is, therefore,

unnecessary to do so again here. In short, on September

1, 1983, a Korean Air Lines (KAL) airliner en route from

New York to Seoul, South Korea, strayed into the airspace

of the former U.S.S.R. The KAL airliner crashed into the

Sea of Japan after being struck by missiles fired from a

U.S.S.R. military fighter plane. The crash killed all 269

persons aboard. Personal representatives of five of those

killed in the incident brought these actions against KAL in

the federal district court sitting in Michigan. After the

actions were tried in the district court, the parties timely

appealed.

20a

The Warsaw Convention provides a cause of action for

injuries and deaths occurring on international commercial

flights, such as the KAL flight at issue in these cases. See

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat.

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

U.S.C.A. § 1502 (West 1976) ("Warsaw Convention"); Jn

re Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 928

F.2d 1267, 1273-74 (2d Cir.), ("Lockerbie I"), cert.

denied, 112 S. Ct. 331 (1991).

Ordinarily, recovery under the Warsaw Convention is

limited to $75,000. See Article 22(1), Warsaw

Convention; Agreement Relating to Liabilit ne as of

the Warsaw Convention and Hague CAB

Agreement 18900, reprinted in note following 49 U a3 v. 'S.C.A.

§ 1502 (West 1976) (approved by CAB Order E-23680,

May 13, 1966, 31 Fed. Reg. 7302) ("Montreal

Agreement") (raising amounts recoverable under the

Warsaw Convention to $75,000). In these cases, however,

because KAL’s “willful misconduct” proximately caused

the passengers’ deaths, * the $75,000 limit has been lifted.

See Articie 25(1), Warsaw Convention.

The suits which form the basis for the instant appeal

proceeded to trial on the issue of compensatory damages.

"The Judicial Panel on Multidistrict Litigation transferred all federal

court actions arising out of the KAL crash, including these, to the

Distnct of Columbia for tral on the common issue of liability. Jn re

Korean Air Lines Disaster of Sept. 1, 1983, 575 F. Supp. 342

(J.P.M.L. 1983). A jury found that the crash was proximately caused

by KAL's “willful misconduct.” See In re Korean Air Lines Disaster

of Sept. 1, 1983, 932 F.2d 1475 (D.C. Cir.) (Korean Air), cert.

denied, 112 S. Ct. 616 (1991). Thereafter, the Multidistrict Panel

remanded the individual cases to their courts of origin to determine

damages. In the cases at bar, the proceedings were returned to the

Eastern District Court of Michigan, Judge Taylor presiding.

- halts edhe

2la

All the cases, except the one brought by Michael Jones on

behalf of decedent Margaret Zarif, were tried to a jury.

Jones’ suit was tried to the bench.

At each tnal, KAL moved to have the district court hold

as a matter of law: (1) that the Death on the High Seas Act

("DOHSA"), 46 U.S.C.A. § 761 ef seq. (West 1975),

governed the question of who were the proper beneficiaries

for pecuniary damages or, in the alternative, (2) that if

non-pecuniary damages were allowed, such damages would

only be recoverable by spouses and financially dependent

relatives. The district court denied KAL’s motions and

held that the plaintiffs’ non-dependent relatives were

beneficiaries entitled to recover pecuniary, as well as non-

pecuniary, damages.

Plaintiffs received varying sums as non-pecuniary

damages for wrongful death and survival, including loss of

society, survivor's grief, and pain and suffering of the

deceased

II.

Article 17 of the Warsaw Convention makes an airline

liable for “damage sustained” in the event of the death of

d passenger:

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 17, Warsaw Convention.

Article 24(2) of the Warsaw Convention states that every

action for damages covered by Article 17 is subject to the

conditions and limits of the 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.”

22a

Article 24(2), Warsaw Convention. Thus, as the Supreme

Court recently noted in Zicherman v. KAL, 116 S. Ct.

629, 632-635, 637 (1996), the domestic law of a party to

the Warsaw Convention determines who can bring an

action and what "damages sustained” they can recover. See

also Mertens v. Flying Tiger Lines, 341 F.2d 851, 858 (2d

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

Because Article 24(2) of the Warsaw Convention requires

courts to measure damages according to the internal law of

a party to the Convention, we must provide a choice of law

analysis to decide which nation’s law to apply. See

Zicherman, 116 S. Ct. at 637 (concluding that the Warsaw

Convention leaves the specification of legally cognizable

harm to be determined under the forum's choice-of-law

rules).

Jurisdiction in these cases was based only in part on

diversity. In Klaxon Co. v. Stentor Electric Manufacturing

Co., Inc., 313 U.S. 487 (1941), the Supreme Court held

that a federal court sitting in diversity must apply the law

of the state in which it sits. /d. at 496. The diversity of

citizenship here, however, is not the sort of diversity that

Klaxon addressed when it announced its rule. We do not

here have parties who are citizens of different states of the

United States. Instead, the ies here are citizens of the

United States, on the one hand, and a foreign national,

KAL, on the other. Additionally, unlike the dispute in

Klaxon, these cases arise under 28 U.S.C. § 1331 (because

they involve the interpretation of the Warsaw Convention)

ak 28 U.S.C. § 1333 (because they involve DOHSA

which provides for a cause of action to be brought under

federal courts’ admiralty jurisdiction). Under these

circumstances, we are not compelled to follow Kilaxon.

And we do not.

To answer the choice of law question presented by these

cases, we apply a federal choice of law rule. In doing so,

Li at, ib Mt

23a

we are mindful that there is “no federal general common

law," O'Melveny & Myers v. F.D.1.C., 114 S. Ct. 2048,

2053 (1994) (citing Erie R.R. v. Tompkins, 304 U.S. 64,

78 (1938)). The Warsaw Convention, however, embodies

a concrete federal policy of uniformity and certainty, see

Lockerbie 1, 928 Fd at 1275, which would be undermined

by the use of state choice of law rules. Consequently, we

are of the view that these cases present precisely the type

of situation in which it is appropriate to craft a special

federal rule which, in these cases, is a choice of law rule.”

See O'Melveny, 115 S. Ct. at 2055 (creation of a special

federal rule limited to situations where there is a

“significant conflict between some federal policy or interest

and the use of state law”).

In the absence of any established body of federal choice

of law rules, we begin with the Restatement (Second) of

Conflict of Laws (1969) as a “general source of conflict of

law principles." See Harris v. Polskie Linie Lomicze, 820

F.2d | , 1003 (9th Cir. 1987). For wrongful death

actions, § 175 of the Restatement (Second) creates a

presumption in favor of the law of the place where the

injury occurred (known as the /ex loci delicti rule):

In an action for wrongful death, the local law of the

state where the injury occurred determines the rights

and liabilities of the parties unless, with respect to the

more particular issue, some other state has a more

significant relationship under the principles stated in

“Nothing in the Supreme Court's recent Zicherman Opimion suggests

that crafting a special federal choice of law rule in these cases is

inappropriate. Indeed, the Zicherman Court did not have to address

thts question because of the parties’ stipulation that United States law

applied. See Zicherman, 116 S. Ct. at 635. Zicherman’s ruling that

the only issue of what damages were recoverable was governed by

tederal law (DOHSA), id. at 636, and federal law exclusively, lends

weight to our conclusion that the use of state choice of law rules is not

appropriate

24a

§ 6 to the occurrence and the parties, in which, event

the local law of the other state will be applied.*

While the presumption in these cases would counsel

applying the law of the former U.S.S.R., we take judicial

notice of the fact that by the time the respective actions

involved in this appeal came to trial, the U.S.S.R. had

ceased to exist. The U.S.S.R. qua the U.S.S.R.,

therefore, no longer has a judicially 4 cent interest in

these matters, including for choice of law purposes, and

none of the parties argues that any of the successor states

to the U.S.S.R. have retained whatever interest the

U.S.S.R. otherwise may have had. See In re Air Crash

Disaster Near Saigon, S. Vietnam on Apr. 4, 1975, 476 F.

Supp. 521, 528 D. D.C. 1979)

We are, as a result, left to decide whether it is the law

of the United States or the law of South Korea that governs

the outcome of these cases. For our answer, we again turn

to the Restatement (Second) of Conflict of Laws, which, in

; 6, suggests that we take into account the following

actors:

(a) the needs of the interstate and international

systems;

(b) the relevant policies of the forum;

the relative interests of those states in the

determination of the particular issue;

(d) the protection of justified expectations;

#4 state “denotes a territorial unit with a distinct general body of

law." Restatement (Second) § 3. Thus, the United States, South

Korea, and the former U.S.S.R. are all states.

“Trial took place in 1993.

25a

(e) the basic policies underlying the particular field of

law;

(f) certainty, predictability, and uniformity of result;

and

(g) ease in the determination and application of the

law to be applied.

While both the United States and South Korea have

legitimate contacts,® a proper balance of these factors leads

us to conclude that the law of these cases is governed by

the internal law of the United States. First, application of

United States law supports “ease in the determination and

application of the law to be applied.” § 6(g). Second, the

Supreme Court and our sister circuits have already applied

United States law in other cases involving this disaster, See,

€.g., Zicherman; Korean Air, implying that “certainty,

predictability, and uniformity of result,” would best be

served by following their lead. § 6(f). Third, because

these actions arise under the Warsaw Convention, neither

nation can legitimately claim to offer greater protection of

“the basic policies underlying the particular field of law,”

or "the needs of the interstate and international systems."

§§ 6(e), (a). And fourth, "the relevant policies of other

interested states and the relative interests of those states in

the determination of the particular issue,” weigh heavily in

favor of the United States. § 6(c).

These cases involve only compensatory damages, and

courts have noted that decedents’ home jurisdictions have

a legitimate interest in the recovery of compensatory

*On the one hand, South Korea serves as KAL’s place of

incorporation, KAL's principal place of business, and the place where

KAL’s crews are trained. Korean Air, 932 F.2d at 1498 (Mikva, J.,

dissenting). On the other, many of the KAL airliner's passengers

(including the five decedents in these cases) came from the United

States, where the KAL flight began and where all of the tickets were

purchased. /d.

26a

damages. See, e.g., In re Air Crash Disaster Near

Chicago, Ill. on May 25, 1979, 644 F.2d 594, 612-613

(7th Cir.), cert. denied, 454 U.S. 878 (1981) (holding that,

in a domestic airline crash involving the states of domicile

of the plaintiffs and defendants, the plaintiffs’ home states

lacked an interest in punitive damages because “(t]he

legitimate interests of these states, after all, are limited to

assuring that the plaintiffs are adequately compensated for

their injuries and that the proceeds of any award are

distributed to the appropriate ficiaries."); Korean Air,

932 F.2d at 1499 (Mikva, J., dissenting). We think that

this reasoning, which is normally employed in domestic

actions, has significant force in these international actions

_ wel, oohied ta othe since it is United States law that has

ied in other actions arising out of this air crash.

i. ‘ g., Zicherman.

Having concluded that United States law governs these

cases, Our inquiry into the availability of loss of society and

survivor's gnef damages follows the path laid out by the

Supreme Court in Zicherman. Zicherman requires us to

apply DOHSA, U.S.C.A. §§ 761 et seq. (West 1975), as

the internal law of the United States which governs the

outcome of the matters sub judice. Id., 116S. Ct. at 636.

In Zicherman, the Supreme Court held that where DOHSA

applies, it is the exclusive source of damages recoverable

in the wrongful death claims. /d.

Finding that DOHSA permits only pecuniary damages,

Zicherman held that loss of society damages, not being

“pecuniary,” could not be recovered under DOHSA. Jd.

at 637. In accordance with that holding, we reverse the

district court's award of such damages.

As to the recoverability of survivor’s grief damages

under DOHSA, we note that the Supreme Court did not

directly address this issue. We cannot, however, perceive

any distinction of which the Zicherman Court would have

2 i ANN ROT es ea Ser

27a

approved that would —_— us to conclude that the

recovery of one sort of non-pecuniary damages, such as

loss of society, is precluded by DOHSA, whereas other

sorts of non-pecuniary damages, such as survivor’s grief,

are not. We, therefore, hold that it was reversible error

for the district court to permit any damages for survivor's

grief. See id.

Because we hold that loss of society and survivor's grief

awards are not available, we need not consider KAL’s

alternative argument that only spouses and financially-

dependent relatives may recover such awards.

Cc.

We also reverse the district court’s award of damages for

the pain and suffering of the decedents. Although such

awards have been engrafted onto recovery awards under

DOHSA pursuant to several different theories, see €8-s

Solomon v. Warren, 540 F.2d 777, 792 (Sth Cir. 1976)

(permitting recovery for decedent’s pain and suffering on

the theory that state law provides a cause of action for such

damages), cert. dismissed, 434 U.S. 801 (1977); Favaloro

v. S/S Golden Gate, 687 F. Supp. 475, 480 (N.D. Cal.

1987) (permitting recovery for decedent's pain and

suffering on the theory that general maritime law provides

a cause of action for such damages); Jn re Air Crash

Disaster Near Honolulu, Haw., on Feb. 24, 1989, 783 F.

Supp. 1261, 1265 (N.D. Cal. 1992) (permitting recovery

for decedent's pain and suffering on the theory that the

Warsaw Convention provides a cause of action for such

damages), there is no serious doubt that DOHSA itself does

not provide for such a form of damages. Zicherman, 116

S. Ct. at 636-637. Despite the fact that the Zicherman

Court was not asked to address the propriety of allowing a

pain and suffering award, see id. at 636 n.4, we think the

principle of Zicherman constitutes an insuperable obstacle

to an award of pain and suffering damages—clearly non-

pecuniary damages—in these cases. Thus, for the same

28a

reasons we reversed the survivor's grief damages, we now

reverse the award of pain and suffering damages.

Il.

For the forgoing reasons, we REVERSE the order of the

district court and REMAND for entry of judgment

consistent with this opinion.

29a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 93-2144/2259/2549:

94-1095/1096/1098/1100/1101

Filed October 10, 1996

DAISY E. BICKEL, REPRESENTATIVE FOR

EDNA DORIS MILLER, ET AL..

Plaintiffs-Appellees.

RICHARD A. BOWDEN, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF ELEANOR

BEATRICE YOUNG BISSELL, ET AL..

Plaintiffs-Appellees/Cross-Appellants.

—--\) —

KOREAN AIR LINES Co., LTD..

Defendant-Appellant-Cross-Appellee.

BEFORE:

MERRITT, BROWN, and BATCHELDER

Circuit Judges.

30a

ORDER

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the orig-

inal panel members but also to all other active judges of this

court, and no judge of this court having requested a vote on

the suggestion for rehearing en banc, the petition for rehear-

ing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied. Judge Batchelder

would grant rehearing for the reasons stated in her dissent.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN

Leonard Green, Clerk

3la

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No: 93-2144; 93-2259: 93-2549: 94-1095:

94-1096; 94-1098; 94-1100; 94-110]

Filed January 26, 1996

DAIsy E. BICKEL; DOROTHY JONEs: RICHARD BOWDEN:

WILLIE JAMES; MICHAEL JONES,

Plaintiffs-Appellees,

—— Ye

KOREAN AIR LINES COMPANY, LTD.:

Defendant-Appellant Cross-Appellee.

BEFORE:

MERRITT, Chief Judge;

BROWN and BATCHELDER;: Circuit Judges.

ORDER

Upon consideration of the request of the appellant/cross-

appellee to file a supplemental brief in light of Zicherman v.

Korean Air Lines

It is ORDERED that the motion be, and it hereby is, GRANTED.

All parties shall file five (05) copies of a supplemental brief.

The brief must be received in the Clerk’s Office by February

32a

15, 1996 and shall not exceed ten (10) pages. No extensions

to the deadline will be granted.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN

Leonard Green, Clerk

33a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 93-2144/2206: 93-2259/2341: 93-2549.

94-1095: 94-1096/1098: 94-1100/1101

Filed March 3, 1994

DaIsy E. BICKEL, Representative for Edna Doris Miller (93-

2206:2341). RICHARD A BOWDEN. Individually and as

Personal Representative of the Estate of Eleanor Beatrice

Young Bissell, deceased, (94-1098). MICHAEL D. JoNEs.

Personal Representative of the Estate of Margaret Zarif,

a/k/a Margaret Jones, (94-1101),

Plaintiffs-Appellees Cross-Appellants,

JAMES L. CHAMBERS; DOROTHY JONES. Estate of Joyce

Chambers, WILLIE N. JAMES, Personal Representative of

the Estate of Hazel Jeanne James, deceased.

Plaintiffs-Appellees,

KOREAN AIR LINES COMPANY. LTD:

(93-2144:2259:2549; 94-1095-1096:] 100)

Defendant-Appellant Cross-Appellee

BOEING COMPANY

Defendant

34a

Pursuant to discussions held under the authority of Rule 18,

Rules of the Sixth Circuit, and by agreement of the parties

that consolidation of the above causes for purposes of brief-

ing and submission is appropriate.

It is ORDERED that the causes be and they hereby are con-

solidated for the purposes stated above.

ENTERED PURSUANT TO RULE 8(b),

RULES OF THE SIXTH CIRCUIT.

Leonard Green, Clerk

/s/ LEONARD GREEN

35a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MDL Docket No. 565

Civil Action Nos. 84-75924-BC.

83-73846-DT,

83-75076-DT,

84-74076-DT,

84-74238-DT.

83-73777-DT

January 7, 1993

IN RE KOREAN AIR LINES DISASTER

OF SEPTEMBER |. 1983

RICHARD A. BOWDEN, DoROTHY JONZS, WILLIE N. JAMES.

DAISY E. BICKEL, CHARLEs E. FONVILLE, and ESTATE

OF MARGARET ZARIF (companion cases),

Plaintiff(s),

—a Vv _—_

KOREAN AIR LINES Co., LTp..,

Defendant(s).

MEMORANDUM OPINION AND ORDER

This litigation arises from the crash of Korean Air Lines

Flight KE 007, bound from New York to Seoul. South Korea,

in the sea of Japan on September 1, 1983. after it had been

attacked by Soviet aircraft. Plaintiffs here are the personal

36a

representatives of the six Michigan passengers who, among

the total of 269 persons aboard, lost their lives. Plaintiffs filed

these wrongful death actions in the Eastern District of Michi-

gan, with jury demands, and the cases were transferred by the

Panel on Multidistrict Litigation to the United States District

Court for the District of Columbia, Chief Judge Aubrey

Robinson, for consolidated trial with all others resulting from

the crash, on the issue of liability. Jn re Korean Air Lines Dis-

aster of September ], 1983, MDL Docket No. 565., Nos. 83-

2793, et al.

Chief Judge Robinson denied defendant's pre-trial motion

to strike plaintiff's jury demands. /n re Korean Air Line: /is-

aster of September 1, 1983, 704 F. Supp. 1135 (D.D.C. 1988),

modified, 932 F.2d 1475 (D.C. Cir. 1991) (“Korean I”). He

tried the consolidated case to a jury, which rendered a verdict

for plaintiffs on liability and awarded $50 million in punitive

damages for “willful misconduct” as described in the Warsaw

Convention, further discussed below.' The jury verdict was

appealed by defendant on the questions of sufficiency of the

evidence for a finding of willful misconduct and the avail-

ability of punitive damages. The question of whether the case

should have been submitted to a jury at all was not appealed.

The Court of Appeals for the District of Columbia vacated the

jury award of punitive damages, holding that such damages

are not available under the Warsaw Convention, which it

found to be the controlling, if not exclusive, law applicable.

In re Korean Air Lines Disaster of September 1, 1983, 932

F.2d 1475 (D.C. Cir. 1991) (“Korean I/"). It held, however,

that the evidence was sufficient to support a finding of will-

ful misconduct. Petitions for writs of certiorari by both sides

were denied by the United States Supreme Court on Decem-

ber 2, 1991. Dooley v. Korean Air Lines Co., 112 S. Ct. 616

(1991). As the issues of liability applicable to all cases have

Convention for Unification of Certain Rules Relating to Inter-

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

876 (1934), reprinted in note following 49 U.S.C. App. Sec. 1502 (here-

inafter Warsaw Convention or Convention).

37a

been determined, including that of defendant’s willful mis-

conduct, which removes the usual $75,000 limit of damages

available to victims of international airline crashes pursuant

to Article 25 of the Warsaw Convention. these cases have now

been returned by the Panel on Multidistrict Litigation to their

Original courts for trial on the question of damages.

Defendant has filed a number of related pretrial motions in

this court as to the law applicable to the trial which now must

be conducted. They include:

|. A motion to strike plaintiffs’ jury demand on the

issue of damages.

2. A motion for determination that the governing law,

the Death on the High Seas Act, 46 U.S.C. Sec. 761

et seq. (“DOSHA”), requires that damage awards be

limited to the pecuniary losses of the survivors.

3. A motion for partial summary judgment against the

claim of passenger Chambers’ survivors. who have

acknowledged they have no claims for pecuniary

loss.

4. A motion for partial summary judgment on plaintiffs’

claims of damages for the pre-death pain and suf-

fering of the decedent passengers.

5. A motion to preclude the testimony of two desig-

nated experts as to the pre-death suffering of the

decedents.

6. A motion to preclude any reference at trial to the

prior jury's finding of willfulness

Although this Circuit has not yet considered many of the

vexing questions ably raised here. the thoughtful opinions of

the Judges of the Court of Appeals for the District of

Columbia in Korean /, and of the Second Circuit Court of

Appeals in /n re Air Disaster at Lockerbie, 928 F.2d 1267 (2d

Cir. 1991), cert. denied, 112 S. Ct 331 (1991), decided a few

months prior, have provided substantial guidance to this

38a

court. For the reasons outlined below, each of these motions

must be denied, except for the last.

I. MOTION TO STRIKE PLAINTIFFS’ JURY DEMAND

AS TO DETERMINATION OF DAMAGES.

The court must note at the outset that plaintiffs filed

demands for jury trial of these cases with their complaints.

After the cases were bifurcated, consolidated, and transferred

to the D.C. District by the MDL Panel, Chief Judge Robinson

denied defendant’s motion to strike the jury demands in the

cases, tried the cases to a jury, and defendant did not appeal

that decision. See Judge Robinson's decision in Korean I.

The present motion, although characterized as a motion to

strike the “demand as to determination of damages”, is but a

second motion to strike the demands of the original com-

plaints. The forthcoming trial as to damages is not a new

action. Therefore, defendant has waived this objection if in

fact it is a valid one. The right to jury has been granted and

that decision was not appealed.

Also, the right to trial by jury has become the law of

this case, by virtue of Judge Robinson’s decisions in Korean

/, as well as in Korean II, cited in In re Korean Air Lines

Disaster of September 1, 1983, 807 F. Supp. 1073, 1079

(S.D.N.Y. 1992) (“Korean Ill “). His decision has subse-

quently been denoted the law of the case by other transferor

district courts in Yun v. Korean Airlines Co., 798 F. Supp. 755

(E.D.N.Y.1992), Park v. Korean Air Lines, No. 83 Civ 7900,

1992 WL 331092 (S.D.N.Y.1992), and in Korean III, as well.

In affirming the jury verdict as to willful misconduct, more-

over, the Court of Appeals for the District of Columbia

implicitly affirmed Judge Robinson’s submission of the case

to a jury, although the question had not been raised by defen-

dant. That court wrote, in Korean I], 932 F.2d at 1481:

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.”

39a

Berner v. British Commonweaith Pacific Airlines, 346

F.2d 532, 538 (2d Cir. 1965) (reversing JNOV for plain-

tiffs in an air crash case), cert. denied 382 U.S. 983. 86

S.Ct. 559, 15 L.Ed.2d 472 (1966).

Throughout its careful analysis of the district court’s evi-

dentiary rulings, the potential unfair prejudice of presentation

of certain matters to the jury, the jury instructions, and in its

conclusions that there was sufficient evidence from which a

reasonable jury, contrary to defendant’s arguments, could find

that willful misconduct had occurred, the D.C. Circuit never

raised the hint of a doubt that the case was one triable to a

jury, as a matter of law. It’s affirmation of the jury finding

and of the district court’s refusal to grant JNOV constitute an

affirmation that the governing law had indeed entitled plain-

tiffs to trial by jury in the first place.

The governing law must nevertheless be examined, and

such an examination at the outset is necessary to a decision of

any of these motions. In that regard this court is persuaded

that the questions raised here are governed by the terms of the

Warsaw Convention, supra. The Convention is a multilateral

treaty which the Congress of the United States ratified in

1934, and which constitutes the supreme law of the land

in the matters upon which it touches. To the extent its terms.

policies, and purposes conflict or would be defeated by the

Death on the High Seas Act of 1920, it supersedes that Act.

The Warsaw Convention established the liability of interna-

tional air carriers for harm to passengers and goods, fixed

limitations on that liability and attempted to provide as much

uniformity and predictability in procedures and substantive

law to which both carriers and their passengers must submit

in case of accident, as possible.

The Court of Appeals for the District of Columbia wrote

that:

The central purpose of the Convention is to limit the lia-

bility of air carriers. The contracting states in 1929

believed that limitations on liability would promote the

40a

development of the fledgling commercial air industry by

allowing the airlines to predict their exposure to mone-

tary damages and thereby obtain needed capital and ade-

quate insurance coverage. See Eastern Airlines wu. Floyd,

__.:; U.S. __, —_, 111 S.Ct. 1489, 1499-1500, 113

L.Ed.2d 569 (1991) (“Floyd IT”); Lockerbie, 928 F.2d at

1270-71. .

Korean I], 932 F.2d at 1484.

Article 17 of the Convention provides that:

“The carrier shall be liable for damages sustained in the

event of the death or wounding of a passenger or any

other bodily injury suffered by a passenger. . . .”

Article 24 allows the contracting states to determine the

standing and “respective rights” of claimants under Article

17, “subject to the limitations of the Convention”; and

Article 25 provides that the limitation of a carrier’s liability

is lost when the damage sustained by a claimant is due to the

carrier’s “willful misconduct” as defined by the law of

the forum. The Convention had initially limited carrier lia-

bility to $8,300 at Article 22(1), but has been superseded by

the Montreal Agreement? among air carriers which was

approved by the U.S. Civil Aeronautics Board in 1966 and

lifted the carrier liability limit to $75,000. The carriers also,

in the Montreal Agreement, assumed virtual strict liability

and waived the due care defenses of Convention Article

20(1). The scheme presented by the Warsaw Convention has

been analogized to that of the workers’ compensation laws

of this country. Korean I/, 932 F.2d at 1494, citing 2A Lar-

son, Workmen’s Compensation Law Sec. 65.11, 12-9 (1990).

¢ Agreement Relating to Liability Limitations of the Warsaw

Convention and Hague Protocol, CAB Agreement 18900, note following

49 U.S.C. App. Sec. 1502 (approved by CAB Order E-23680, May 13,

1966 (Docket 17325) (1966), 31 Fed. Reg. 7302), and reprinted in Civil

Aeronautics Board, Aeronautical Statutes and Related Material 515-16

(1974).

4la

In short, the representatives of passengers need not prove

negligence, but are subject to limitation of recovery unless a

finding of willful misconduct is made, as has been in this

case.

The question of the right to jury trial appears to be one of

the “respective rights” which Article 24 of the Convention

refers to the contracting states. In this country, the question

becomes whether federal or state common law governs, and

this court is persuaded by the Lockerbie analysis that federal

law must control. The drafters of the Convention sought to

provide the maximum possible uniformity of result possible

and contemplated a Convention adopted and enforced by

nation-states, among which our federal System was a rarity.

The “states” contemplated were nations, and not each of their

sub-states, each of which has developed an independent

“patchwork” of common law. The Lockerbie Opinion points to

the minority of states, including Michigan, whose damage

rules would create an unpredictability of liability contrary

to the policy, needs, and intentions of the drafters of the

Convention. Accordingly, we will look to the federal common

law, although trends among states may be helpful, in deter-

mining that common law.

Before proceeding further, the court must note its aware-

ness that, although the Lockerbie court held the Warsaw Con-

vention to be the exclusive. preemptive law controlling,

Korean II held only that the forum state law is preempted

only to the extent it may be inconsistent with the compen-

satory scheme of the Convention. This court agrees that no

more need be decided here, as well.

In 1934 in America, the common law. both State and fed-

eral, from the time of the English common law, had provided

a trial by jury in actions at law for damages. The 7th Amend-

ment guarantees that right. Defendant argues that DOHSA

prohibits trial by jury because this court must sit in admiralty.

Assuming that DOHSA does so require, however, its appli-

cation would defeat the goal of uniformity of the Warsaw

Convention, as American Warsaw cases of crashes at sea

42a

would be treated differently from identical crashes on iand.

Moreover, the subsequent Convention supersedes DOHSA, as

stated above, so one must look further, considering DOHSA

as only one example of the state of American law at the adop-

tion of the Convention. Both the Federal Employers’ Liabil-

ity Act (45 U.S.C. Sec. 51 et seq.) and the Jones Act (46 App.

U.S.C. Sec. 688 (West Supp. 1992)) contemplate jury trials in

negligence, survival, and wrongful death cases for railroad

employees and seamen, respectively. Chief Judge Robinson

also, in Korean I, noted that the Supreme Court had approved

the hearing of all claims a seaman might have in both law and

admiralty in a single trial to a jury. See Korean I, 704 F. Supp.

at 1153, citing Fitzgerald v. U.S. Lines Co., 374 U.S. 16

(1963); see also Moragne v. States Marine Lines, Inc., 398

U.S. 375 (1970). Again, in Jn re Air Crash Disaster Near

Honolulu, Hawaii, 783 F. Supp. 1261, 1265 (N.D. Calif.

1992), claims under the Warsaw Convention were held triable

by a jury. Finally, in /n re Air Crash Disaster in the lonian

Sea, MDL Docket No. 229, No. ____ Civ ___, 1979 WL 2973

(S.D.N.Y. April 10, 1979), both DOHSA and Warsaw Con-

vention claims were tried to a jury.

The federal common law, in short, does not require that this

court strike plaintiffs’ demand for jury trial.

Il. DEFENDANT’S MOTION FOR A DETERMINATION

THAT THE DOHSA LIMITS PLAINTIFFS’ DAMAGES

TO PECUNIARY LOSSES.

This motion is premised, as was the motion for a non-jury

trial, upon the argument that the DOHSA controls the remedy

available to plaintiffs here, because of its applicability to air-

craft accidents over the high seas. Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207 (1986). That act provides that plain-

tiffs may recover only their pecuniary losses resulting from

passenger deaths.

This court has already held, however, that to the extent the

later Warsaw Convention conflicts with this Act, it controls.

The Warsaw Convention contains no such limitation, and its

43a

purpose and policy of uniformity of liability worldwide would

be thwarted indeed if compensation for American victims

falling into the sea were adjudicated with such disparity to

those who crashed on land.

In Air France v. Saks, 470 U.S. 392 (1985). the Supreme

Court instructed the lower courts to seek the intentions of the

drafters of the Warsaw Convention by considering that the

document was written by Continental Jurists, trained in

the civil law, and writing in French. The “dommage survenu”,

or damage sustained, which they contracted to make com-

pensable, consisted in French civil law of both “dommage

materiel”, or pecuniary, and “dommage moral”, or moral and

non pecuniary damage. The D.C. Circuit held that both are

compensable, under the Convention. Korean I], 932 F.2d at

1487. Although the Convention is silent as to the elements of

moral damages, if we are to give it a meaning consistent with

the shared intentions of the parties, we must interpret com-

pensation to include nonpecuniary damages. This motion is,

therefore, denied.

II]. DEFENDANT’S MOTION FOR PARTIAL SUMMARY

JUDGMENT AGAINST THE CHAMBERS SUR.

VIVORS’ CLAIMS, AS THEY HAVE ACKNOWL.-

EDGED HAVING NO PECUNIARY LOSSES.

This motion is denied for the reasons stated in denying the

previous motion. The Convention clearly contemplates

awards for non-pecuniary damages and supersedes the

DOHSA.

IV. DEFENDANT’S MOTION FOR PARTIAL SUMMARY

JUDGMENT ON PLAINTIFFS’ CLAIMS FOR THE

PASSENGERS’ PRE-DEATH PAIN AND SUFFERING.

Although it is difficult to ascertain precisely what moral

damages may be awarded, one must start by noting that

the Supreme Court has held that none are available for men-

tal anguish absent physical injury. Eastern Airlines v. Floyd,

111 S. Ct. 1489 (1991). In that case, the passengers sued for

44a

anguish suffered when their flight had narrowly avoided

crashing. This case, unfortunately, is vastly different. The evi-

dence apparently has suggested that the 269 persons aboard

the plane were alive and conscious for a substantial time

(approximately 10 or 11 minutes after it was hit by a missile

and before it hit the sea and possibly for a period thereafter).

Moreover, warning shots and flares had been fired at it by the

Soviets before the final destructive missile. Their conscious

suffering during that period, both emotional and physical (due

to rapid decompression), which ended in the death they were

each anticipating, was likely considerable. This is pain and

suffering accompanied by physical injury, and logically, must

be permitted by Floyd. In In re Flight Explosion on Trans

World Airlines, Inc., 778 F. Supp. 625 (E.D.N.Y.1991), rev'd

sub nom on other grounds, Ospina v. Trans World Airlines,

Inc., 975 F.2d 35 (2d Cir. 1992), a terrorist attack caused con-

scious pre-death pain and suffering on the passengers and

recovery was permitted as within the terms of “dommage sur-

venu”™ of the Warsaw Convention. Similarly, Jn re Air Crash

Disaster Near Honolulu, Hawaii, permitted recovery for the

pre-death pain and suffering of decedents. The motion to deny

such damages is denied.

V. DEFENDANT’S MOTION TO PRECLUDE THE TES-

TIMONY OF EXPERTS EDZY AND FOODY.

This motion is denied, as the expertise of these witnesses,

if it is as represented in pleadings, cannot be gainsaid on the

issue of pre-death pain and suffering, and that issue is one on

which plaintiffs are entitled to present evidence.

VI. MOTION TO PRECLUDE REFERENCE TO THE

PRIOR FINDING OF WILLFULNESS.

This motion is granted, in that plaintiffs are precluded from

using the term “willful misconduct” to the jury. They must,

however, be permitted to explain to the jury the basis upon

which we are all here. Moreover, the facts which the D.C.

Circuit found sufficient to support a verdict of “willful mis-

45a

conduct” should be made a part of that basis. They are highly

relevant to the decedents’ pre-death pain and suffering as well

as to the anguish of their survivors, and need not be reproved

here. A stipulation as to what plaintiffs may say as to the facts

found to have led to this crash in openings as well as closings

is ordered submitted to the court by January 15, 1993. If the

parties cannot stipulate, each side shall submit its proposal to

the court on that date. Plaintiffs, if such is the fact, are enti-

tled to present evidence that defendant’s actions may have

exacerbated plaintiffs’ personal grief and mental anguish at

the loss of the passengers, which must of course be grief

resulting in physical damage. They may not recover from

their grief which did not result iz physical effects, however.

See Floyd, 111 S. Ct. at 1502. Their moral dommage survenu,

to be compensable, must include physical manifestations. To

demonstrate a nexus between the accident, the extremity of

the grief, and the manifestations claimed. plaintiffs must be

permitted to make a showing of the additional shock caused

by the conduct of the carrier.

Also, it should be stated here that the court will not permit

hedonic damages for the quality of the decedents’ lives, had

they continued. ¢“Loss of the quality or enjoyment of life is

not a claim that has typically survived the victim in cases

other than Civil Rights cases. . . .” Korean 111, 807 F. Supp.

at 1083.) The pecuniary damages available in accordance

with the standards enumerated in DOHSA cases will also of

course, be provided. The court will not permit recovery

of decedents’ lost wages, because such would result in a

double award to survivors who may claim loss of support,

loss of society, lost inheritance, lost services, and love and

affection.’

See Korean I/1, 807 F.Supp. at 1087, citing Korean II, Locker-

bie, In re Air Crash Disaster Near New Orleans, LA, 789 F.2d 1092 (Sih

Cir. 1986), vacated on other grounds, 490 U.S. 1032 Caldarera v. East-

ern Airlines, Inc., 705 F.2d 778 (Sth Cir. 1983), and Winbourne v. East-

ern Airlines, Inc., 758 F.2d 1016 (Sth Cir. 1984), cert. denied, 474 U.S.

1036 (1985).

46a

Finally, one plaintiff has requested that the court apply

Korean law to its case. That motion is denied, for all of the

reasons discussed above concerning applicable law. This

court, sitting on a case involving injury to American nation-

als on a flight originating in this country by an airline per-

mitted to operate here, finds that the paramount governmental

interest to be served in these proceedings is that of the United

States, and will apply federal common law.

SO ORDERED.

/s/ ANNA DIGGS TAYLOR

ANNA DIGGS TAYLOR

United States District Judge

Dated: January 7, 1993

47a

Relevant Provisions of The 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 tock place on board the aircraft or in

the course of any of the operations of embarking or disem-

barking.

49 Stat. 3018.

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.

49 Stat. 3020.

48a

Relevant Provisions of the Death on the High Seas Act,

§ 761.

§ 762.

46 U.S.C. § 761 et seq.

Right of action; where and by whom brought

Whenever the death of a person shall be caused by

wrongful act, neglect, or default occurring on the

high seas beyond a marine league from the shore of

any State, or the District of Columbia, or the

Territories or dependencies of the United States, the

personal representative of the decedent may main-

tain a suit for damages in the district courts of the

United States, in admiralty, for the exclusive bene-

fit of the decedent’s wife, husband, parent, child or

dependent relative against the vessel, person, or cor-

poration which would have been liable if death had

not ensued.

Amount and apportionment of recovery

The recovery in such suit shall be a fair and just

compensation for the pecuniary loss sustained by the

persons for whose benefit the suit is brought and

shall be apportioned among them by the court in

proportion to the loss they may severally have suf-

fered by reason of the death of the person by whose

representative the suit is brought.

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.