In re Korean Air Lines Disaster of Sept. 1, 1983, Civ. A. No. 83-CV-4492 (TCP)

• Decision Date: 24 June 1992
• Docket Number: 84-CV-2371 (TCP).,Civ. A. No. 83-CV-4492 (TCP)
• Citation: 798 F. Supp. 755
• Parties: In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983. Jeung Em YUN, as Personal Representative and Administratrix of the Estate of Ei Sik Yun, deceased, Plaintiff, v. KOREAN AIR LINES, the Boeing Company, Litton Industries, Inc., and the United States, Defendants. Mo Hsiang Lai TSAO, individually, and as Personal Representative and Administratrix of the Estate of Yuen Che Tsao, deceased, and as guardian and representative of decedent's minor children, Hoi-Mei Tsao and Hoi-Shan Tsao, deceased, Plaintiff, v. KOREAN AIR LINES, the Boeing Company, Litton Industries, Inc., and the United States, Defendants.
• Court: U.S. District Court — Eastern District of New York

798 F. Supp. 755

In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983.

Jeung Em YUN, as Personal Representative and Administratrix of the Estate of Ei Sik Yun, deceased, Plaintiff, v. KOREAN AIR LINES, the Boeing Company, Litton Industries, Inc., and the United States, Defendants.

Mo Hsiang Lai TSAO, individually, and as Personal Representative and Administratrix of the Estate of Yuen Che Tsao, deceased, and as guardian and representative of decedent's minor children, Hoi-Mei Tsao and Hoi-Shan Tsao, deceased, Plaintiff, v. KOREAN AIR LINES, the Boeing Company, Litton Industries, Inc., and the United States, Defendants.

Civ. A. Nos. 83-CV-4492 (TCP), 84-CV-2371 (TCP).

United States District Court, E.D. New York.

June 24, 1992.

Milton Sincoff, Kreindler & Kreindler, New York City, for plaintiff.

George Tompkins, Condon & Forsyth, New York City, for defendants.

MEMORANDUM AND ORDER

PLATT, Chief Judge.

The two above-captioned cases were consolidated with others by the Judicial Panel for Multi-District Litigation before Chief Judge Aubrey E. Robinson, Jr. of the United States District Court for the District of Columbia for a consolidated trial on the issue whether the Korean Air Lines Disaster of September 1, 1983 was proximately caused by the "wilful misconduct" of the defendants, including Korean Air Lines. On August 2, 1989, the jury returned a verdict against the defendants. On appeal the Circuit Court affirmed the jury finding of wilful misconduct but vacated the finding for punitive damages, holding that punitive damages are not recoverable under the Warsaw Convention¹. In re Korean Air Lines Disaster, 932 F.2d 1475 (D.C.Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). Subsequently the individual cases, including the two at issue here, were returned to their originating districts for trials on damages.

Presently before the Court is a motion by defendant Korean Air Lines ("KAL" or "defendant") to strike the jury demands made in plaintiffs' complaints. Defendant's motion raises interesting, and somewhat novel, questions regarding the interplay between the Warsaw Convention and admiralty law in general and between the Warsaw Convention and the Death on the High Seas Act ("DOHSA"), 46 U.S.C.App. §§ 761-768, in particular. For the reasons set forth below, the motion is denied.

BACKGROUND

On September 1, 1983, KAL flight KE007 was shot down and destroyed by Soviet military aircraft, killing all passengers and crew. The plane crashed into the Sea of Japan, more than a marine league from the shore of any State, territory or dependency of the United States. All actions arising from the disaster were transferred by the Judicial Panel on Multidistrict Litigation to the D.C. District Court before Chief Judge Robinson. In re Korean Air Lines Disaster of Sept. 1, 1983, 575 F.Supp. 342 (J.P.M.D.L.1983). On May 20, 1988, KAL moved to strike the jury demands in all of the plaintiffs' complaints, including the two at issue here, on the ground that because the disaster took place over the high seas,² the consolidated actions were each governed by the Death on the High Seas Act ("DOHSA"), and that under DOHSA plaintiffs had no right to a jury trial. Chief Judge Robinson denied KAL's motion by Memorandum and Order dated November 7, 1988. In re Korean Air Lines Disaster of Sept. 1, 1983, 704 F.Supp. 1135 (D.D.C.1988) ("KAL I").

In KAL I, as in the instant proceeding, defendant relied heavily on the United States Supreme Court decisions in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Defendant argued that these cases, "when combined with the general rule that admiralty suits are tried without a jury, establish that plaintiffs are not entitled to a jury trial notwithstanding the existence of any other cause of action that would otherwise support a jury demand." KAL I, 704 F.Supp. at 1152. Chief Judge Robinson, however, rejected this broad reading of the Higginbotham and Tallentire cases and further reasoned that although "Congress placed federal jurisdiction under DOHSA in admiralty, ... it cannot be said that jury trials are repugnant to the DOHSA scheme, at least where there are concurrent claims triable by the jury joined with the DOHSA claim." Id.

KAL recognized the rule that "when claims carrying a right to jury trial are joined with admiralty claims and arise out of the same transaction or occurrence, all claims may be tried to a jury," id. at 1152-53, but argued, in effect, that the non-admiralty Warsaw Convention claims are not triable before a jury and therefore this rule need not apply. In KAL's view, Warsaw Convention claims arising from air crashes over the high seas are not triable before a jury because under Warsaw Convention Article 28(2), "questions of procedure shall be governed by the law of the court to which the case is submitted," and in such crashes the "law of the court" is DOHSA, under which no right to a jury trial exists: DOHSA + Warsaw Convention (DOHSA) = DOHSA. Chief Judge Robinson rejected KAL's argument that the "law of the court" was limited to DOHSA in this case. Instead, the Court looked to whether general federal law "provides for a jury trial in wrongful death actions brought under the Warsaw Convention." Id. at 1153. The Court concluded:

Wrongful death actions, essentially grounded in negligence and other common-law tort concepts, have been typically tried by juries. The nature of the issues to be tried—culpability, causation, and damages—are issues commonly reserved for juries. In sum, a wrongful death action under the Warsaw Convention should be tried by a jury.

Id. Accordingly, KAL's motion to strike the jury demands was denied. Chief Judge Robinson later denied KAL's motion to certify the jury trial issue for interlocutory appeal on December 6, 1988.

After the jury verdict, KAL appealed the case, challenging initially the verdict, the imposition of punitive damages and Chief Judge Robinson's finding that plaintiffs were entitled to a jury trial. After moving unsuccessfully to file a longer appellate brief than allowed by the rules applicable in the United States Circuit Court for the District of Columbia, KAL dropped its challenge to Chief Judge Robinson's finding on the jury trial issue. The Circuit Court affirmed the jury's findings on causation and wilful misconduct, but dismissed the punitive damages awards as not recoverable under the Warsaw Convention. Korean Air Lines Disaster, 932 F.2d 1475 (D.C.Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991).

Thereafter, KAL brought its motion to strike the jury demand before Chief Judge Robinson yet again for the twenty-four cases remaining in the District of Columbia. This time, however, KAL attempted to distinguish, as it attempts to do in the instant cases, between the right to a jury trial for purposes of liability as opposed to that right for purposes of damages. Chief Judge Robinson denied the motion as to those twenty-four cases in a Memorandum and Order dated March 31, 1992 ("KAL II").³

In his second order, Chief Judge Robinson stated that the determination of the issue of whether plaintiffs were entitled to a jury trial on damages depended on three sub-issues: (i) whether DOHSA provides the exclusive remedy; (ii) if plaintiffs' wrongful death claims may be based on the Warsaw Convention, what is the "law of the court" pursuant to Article 28(2); and (iii) what effect did plaintiffs' jury triable survival claims have on the question.

The Court found initially that DOHSA did not constitute the exclusive remedy in this case, stating that the Warsaw Convention applies concurrently. The Court noted that defendant had argued at an earlier stage in the litigation that plaintiffs' claims were limited by the liability provisions of the Warsaw Convention. Quoting its earlier decision, the Court stated in response that "since plaintiffs will be bound by the Treaty's limitation of liability and willful misconduct standard regardless of whether they pled the Treaty to support their complaints, they should have the benefit of the Treaty as the source supporting their jury demands." KAL II (quoting KAL I, 704 F.Supp. at 1154).

Secondly, Chief Judge Robinson addressed the question of whether the "law of the court" under Article 28(2) was limited to DOHSA. The Court noted first that it had addressed this question in KAL I, holding that the "law of the court" was not so limited. The Court then stated that even if DOHSA is the "law of the court," however, plaintiffs are still entitled to a jury trial because plaintiffs had each filed jury triable survival claims in addition to the wrongful death claims arising from the disaster. The Court found that such "Warsaw survival actions," KAL II, at 8, are triable before a jury and when "claims carrying a right to a jury trial are joined with admiralty claims, all of the claims may be tried to a jury." Id. (citing Fitzgerald v. United States Lines Co., 374 U.S. 16, 21, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963)). Thus, on the third issue, the Court found that the presence of jury triable survival claims dispositive of the question whether plaintiffs were entitled to a jury.

DISCUSSION

A. The Law of the Case

Plaintiffs argue that given the prior history of this case and the motion filed and decided in KAL I, the instant motion is barred on the ground of issue preclusion. Defendant correctly notes, however, that issue preclusion is inapplicable here because the instant proceedings do not constitute a separate cause of action from the liability phase of the multidistrict litigation. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980) ("Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the...