Alcabasa v. Korean Air Lines Co., Ltd., 94-7013

• Decision Date: 08 August 1995
• Docket Number: No. 94-7013,94-7013
• Citation: 62 F.3d 404
• Parties: Alexander ALCABASA, Appellant, v. KOREAN AIR LINES CO., LTD., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 404

62 F.3d 404

314 U.S.App.D.C. 81

Alexander ALCABASA, Appellant, v. KOREAN AIR LINES CO., LTD., Appellee.

No. 94-7013.

United States Court of Appeals District of Columbia Circuit.

Argued April 19, 1995.

Decided Aug. 8, 1995.

Marvin L. Jeffers, New Orleans, LA, argued the cause and filed the brief for appellant.

Andrew J. Harakas, with whom George N. Tompkins, Jr., White Plains, NY, and Timothy J. Lynes, Washington, DC, were on the brief, argued the cause for appellee.

Before BUCKLEY, WILLIAMS, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

This case presents the single question of whether a relative of a passenger killed when Korean Air Lines flight 007 crashed into the Sea of Japan has standing to bring a wrongful death suit against the airline without first being appointed the deceased's "personal representative" by a state court. The district court found that only the personal representative has standing to bring such an action. We affirm, although on the basis of a different analysis.

I. BACKGROUND

On September 1, 1983, Korean Air Lines ("KAL") flight 007, bound for Seoul, South Korea, from New York via Anchorage, strayed into Soviet airspace, was shot down by a Soviet military aircraft, and crashed into the Sea of Japan. All 269 passengers on board died. To manage the proliferation of lawsuits that followed, the Judicial Panel on Multidistrict Litigation consolidated suits against KAL from around the country and assigned the matter to the U.S. District Court for the District of Columbia for a trial on the common issue of the airline's liability. In re Korean Air Lines Disaster of Sept. 1, 1983, 575 F.Supp. 342 (J.P.M.L.1983).

At the trial, the plaintiffs argued that the KAL flight crew erred in programming a navigational system prior to departing Anchorage; that the crew must have realized the error before or shortly after leaving Anchorage; and that rather than return and face possible disciplinary action, the crew decided to continue on the programmed course in spite of a known risk that the flight might stray into Soviet airspace. See In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1478 (D.C.Cir.1991) ("KAL I" ). The jury returned a verdict of willful misconduct against KAL, which we affirmed. Id. at 1490. Individual actions were then returned to their courts of origin for the determination of damages. See Zicherman v. Korean Air Lines Co., 43 F.3d 18, 20 (2d Cir.1994), cert. granted, --- U.S. ----, 115 S.Ct. 1689, 131 L.Ed.2d 554 (1995).

Lilia Bayona was one of the passengers killed in the tragedy. In 1984, appellant Alexander Alcabasa, who claimed to be Ms. Bayona's widower, brought a wrongful death lawsuit against KAL in the U.S. District Court for the District of Columbia. There is no dispute that Mr. Alcabasa brought the suit in his individual capacity and was never appointed to serve as the personal representative of Ms. Bayona's estate. The following year, Lilia Bayona's brother, Felino Bayona, secured an appointment as the personal representative of his sister's estate by a state court in New Jersey, where Lilia was domiciled at the time of her death. In his capacity as personal representative, Felino Bayona filed suit against KAL in the U.S. District Court for the District of New Jersey. Felino Bayona, as Administrator ad Prosequendum and General Administrator of the Estate of Lilia Bayona v. Korean Air Lines, Inc., No. Civ. A. 85-3819 (D.N.J.). Mr. Bayona and KAL negotiated a settlement of $450,000, and the case was dismissed in 1993.

Meanwhile, KAL filed a motion for summary judgment in Mr. Alcabasa's suit asserting that he lacked standing to bring it because he was not the personal representative of the deceased. The district court granted KAL's motion on the basis of three legal conclusions: First, the Warsaw Convention, which governs the case, leaves the question of standing to the local law of signatory states; second, District of Columbia wrongful death law is the appropriate local law; and third, District of Columbia law permits only the personal representative of the deceased to maintain a wrongful death action. Alcabasa v. Korean Air Lines Co., No. Civ.A. 84-2647 (D.D.C. Nov. 4, 1993) ("Memorandum Opinion" ). We find that the district court applied the wrong law but reached the correct result.

II. ANALYSIS

A. The Warsaw Convention

The parties agree that this wrongful death action arising out of an international air travel disaster is "governed by the terms of the Warsaw Convention, a multilateral treaty to which the United States has adhered since 1934." KAL I, 932 F.2d at 1484. See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, art. 1(1), 49 Stat. 3000, T.S. No. 876 (1934) ("Warsaw Convention"), reprinted in 49 U.S.C. app. Sec. 1502 note (1988). Their dispute concerns the proper interpretation of the treaty's provisions concerning the question of standing. Articles 17 and 24 are the Convention's relevant sections. The former establishes that

[t]he 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....

Warsaw Convention, art. 17, 49 U.S.C. app. Sec. 1502 note. The latter provides:

(2) In the cases covered by article 17 [damage actions can only be brought subject to the conditions and limits set out in 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.

Id., art. 24 (emphasis added).

Mr. Alcabasa contends that the "without prejudice" clause of Article 24(2) implies that all parties who have wrongful death claims against a carrier may bring separate suits. His interpretation arguably finds support in a decision of the U.S. District Court for the Southern District of New York concerning the same disaster in In re Korean Air Lines Disaster of Sept. 1, 1983, 807 F.Supp. 1073 (S.D.N.Y.1992) ("KAL-SDNY" ). That court found that "[t]he Warsaw Convention ... does not limit recovery to the personal representative of the decedent and affirmatively provides for suit by persons other than passengers" and, in fact, cited our opinion in KAL I for this proposition. KAL-SDNY, 807 F.Supp. at 1080. For strategic reasons, KAL did not challenge this aspect of the district court's opinion in its subsequent appeal to the Second Circuit. See Zicherman, 43 F.3d 18. KAL argues here, however, that the KAL-SDNY decision was both incorrect and based on an erroneous reading of our opinion in KAL I.

We agree with KAL on both counts. To set the record straight, in KAL I we at no point discussed whether standing to bring a wrongful death suit was limited to a personal representative of a decedent, nor did we discuss the subject of personal representatives. In considering what types of damage awards were permitted by the Convention, we found that "Article 24 allows contracting states to decide the standing and respective rights of claimants who seek recovery under Article 17." KAL I, 932 F.2d at 1485 (internal quotation marks omitted). Our discussion established that the Warsaw Convention not only does not create a single, uniform rule of standing but, quite to the contrary, defers such determinations to the legal regimes of the signatory states. We reiterate this interpretation here and note that it conforms with the views of other circuits that have examined Article 24(2). See In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 928 F.2d 1267, 1284 (2d Cir.1991) ("the drafters gave up any attempt to decide who could sue" but instead limited liability "no matter how many plaintiffs were involved or what their rights were under local law"); In re Mexico City Aircrash of Oct. 31, 1979, 708 F.2d 400, 414 (9th Cir.1983) (import of Article 24(2) is that "the question of who are the persons upon whom the action devolves in the case of death [is] to be left to local law apart from the Convention" (internal quotation marks omitted)).

B. Law Governing Standing to Sue

The novel legal question presented in this case is not whether standing must be determined by reference to the laws of the Convention's "contracting states," KAL I, 932 F.2d at 1485, but what that law is in this particular context. KAL argues that the question of Mr. Alcabasa's standing is controlled by the Death on the High Seas Act ("DOHSA"), which provides in pertinent part:

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 ... the personal representative of the decedent may maintain a suit for damages in the district courts of the United States....

46 U.S.C.App. Sec. 761 (1988).

In Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986), the Supreme Court eliminated any doubt that DOHSA is applicable to accidents involving aircraft as well as ships by applying it to a helicopter crash 35 miles off the Louisiana coast. Id. at 218, 106 S.Ct. at 2492. DOHSA applied, the Court reasoned, because the "helicopter was engaged in a function traditionally performed by waterborne vessels: the ferrying of passengers from an island ... to the shore." Id. at 219, 106 S.Ct. at 2492. The Court also determined that the statute preempts State law where it applies. Id. at 232, 106 S.Ct. at 2499. Because KAL flight 007's function--ferrying passengers across the Pacific Ocean--was also one "traditionally performed by waterborne vessels" and because Mr. Alcabasa does not claim that the "wrongful act" that "caused" Ms. Bayona's death did not occur on the high seas, we find that DOHSA is the applicable law of the United States in this case. Under DOHSA, only the personal...