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

• Decision Date: 01 September 1983
• Citation: 289 U.S.App.D.C. 391,932 F.2d 1475
• Parties: , 59 USLW 2681, 32 Fed. R. Evid. Serv. 1057 In re KOREAN AIR LINES DISASTER OF
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1475

932 F.2d 1475

289 U.S.App.D.C. 391, 59 USLW 2681,

32 Fed. R. Evid. Serv. 1057

In re KOREAN AIR LINES DISASTER OF SEPTEMBER 1, 1983, Korean Air Lines Company, Ltd., Appellant.

No. 89-5415.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 25, 1991.

Decided May 7, 1991.

Rehearing Denied July 5, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-0345).

George N. Tompkins, Jr., with whom Desmond T. Barry, Jr., New York City, was on the brief, for appellant.

Steven R. Pounian, with whom Milton G. Sincoff, New York City, Donald W. Madole and George E. Farrell, Washington, D.C., were on the brief, for appellees, Philomena Dooley and 136 others. Juanita M. Madole, Washington, D.C., also entered an appearance, for appellees.

Irene M. Solet and Robert S. Greenspan, Attys., Washington, D.C., Dept. of Justice, entered appearances, for Federal appellees.

Thomas J. McLaughlin, Seattle, Wash., and Mary Rose Hughes, Washington, D.C., entered appearances, for appellee The Boeing Co.

Before MIKVA, Chief Judge, BUCKLEY and THOMAS, Circuit Judges.

Opinion for the court filed by Chief Judge MIKVA, except as to Part II(C).

Opinion for the court as to Part II(C) filed by Circuit Judge BUCKLEY.

Opinion dissenting in part filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

On September 1, 1983, a Korean Air Lines ("KAL") Boeing 747 airliner was shot down somewhere over the Sea of Japan by one of the Soviet Union's SU-15 interceptor aircraft, killing all 269 persons on board. The approximate crash site placed the flight more than 300 nautical miles off course and in Soviet airspace. Before trial, the district court granted summary judgment for the United States on claims that it had breached a duty to warn. See In re Korean Air Lines Disaster of September 1, 1983, 646 F.Supp. 30 (D.D.C.1986). In an appeal brought by the unsuccessful plaintiffs in those cases, we upheld the district court's decision. See Wyler, et al. v. Korean Air Lines, Inc., et al., 928 F.2d 1167 (D.C.Cir.1991). Additional background on the disaster is provided in our opinion in the companion appeal.

In this case, KAL appeals from a judgment entered against it by the district court after a jury found KAL guilty of willful misconduct and awarded damages to a group of 137 plaintiffs; the award included $50 million in punitive damages. KAL challenges both the willful misconduct verdict and the assessment of punitive damages. Although KAL raises some valid concerns about the quality of the evidence submitted to the jury, we conclude that the finding of willful misconduct was permissible. However, we vacate the punitive damage award.

I. BACKGROUND

On August 31, 1983, Korean Air Lines Flight 007 ("KE007") left New York's Kennedy Airport bound for Seoul, South Korea, with a stop in Anchorage, Alaska. After refueling there, KE007 took off from Anchorage International Airport at 1300 Greenwich Mean Time ("G.M.T."), or 4:00 a.m. local time. The Anchorage Air Traffic Control ("ATC") Center instructed KE007 to climb and maintain a flight level of 33,000 feet and "proceed direct BETHEL when able." BETHEL, located approximately 360 nautical miles west of Anchorage, is the navigational gateway for Route R20 of the North Pacific Composite Route System, which operates like a multi-lane highway for civilian flights across the Pacific Ocean between North America and Asia. BETHEL also serves as a navigational waypoint at which an airplane can cross-check its position against a radio fix. Route R20 has a series of navigational waypoints with precise geographical coordinates, each about 300 miles apart, that KE007 would follow on a direct path and use for course verification and reporting purposes. These waypoints were designated BETHEL, NABIE, NUKKS, NEEVA, NINNO, NIPPI, NYTIM, NOKKA and NOHO. See Map of the North Pacific (attached as an appendix to this opinion). Position reports from the crew to ATC ground controllers were required at BETHEL and other waypoints up through NIPPI, some 1800 miles from Anchorage. Anchorage ATC transfers control of aircraft following Route R20 to Tokyo Center at waypoint NIPPI.

At the time that these events took place, Anchorage ATC had radar coverage for less than half the distance to BETHEL. The Federal Aviation Administration's ("FAA") Kenai radar installation provided coverage as far as Cairn Mountain, approximately 165 nautical miles west of Anchorage. FAA radar surveillance was terminated at 1327:50 G.M.T. From that point on, Anchorage ATC would rely on the crew's position reports (calculated in-flight with the help of the waypoints and on-board systems) to track KE007's location and adherence to R20. At 1349 G.M.T., KE007's pilot reported reaching BETHEL and estimated that they would pass over their next reporting waypoint, NABIE, at 1430 G.M.T.

After BETHEL, KE007 did not have any direct communications with Anchorage ATC. During the remainder of the flight, the crew reported reaching each successive waypoint up to NIPPI, when Anchorage transferred control to Tokyo. These reports were relayed to Anchorage ATC by another KAL flight, KE015, which had departed Anchorage 14 minutes after KE007 and also was following Route R20. At NABIE, KE007 should have been able to communicate directly with Anchorage ATC through the St. Paul Island radio transmitter, but the crew was unable to do so, having instead to relay the report through KE015. KAL elicited testimony that this was not necessarily unusual and could be caused by weather. Plaintiffs countered that such a problem was rare, and they suggested that the direct broadcast was impossible because KE007 was already 90 miles off course at NABIE and out of the range of St. Paul Island's radio. This happened again at the next waypoint, NEEVA, where KE007 should have reported by using the Sheyma Island radio station. Evidently the pilot of KE015 became suspicious that something was wrong when KE007 requested that he relay this position report to Anchorage ATC, in part because KE007's time of arrival at that waypoint was nine minutes late and the explanation KE007's crew gave for the delayed arrival (strong headwinds) conflicted with his own observations just four minutes behind. Plaintiffs contended at trial that the inability to use the Sheyma Island radio station and the inconsistent headwind reports resulted from the fact that KE007 was now 170 miles off course and inside Soviet airspace.

After control of KE007 was transferred from Anchorage ATC, the crew reported to the controllers in Tokyo that they had reached NIPPI and estimated their time of arrival at NOKKA as 1826 G.M.T. A subsequent accident report concluded that the wind conditions reported by KE007 at NIPPI did not match those experienced on R20 and were more consistent with a position over 200 miles to the north-northwest over the Kamchatka Peninsula, U.S.S.R. The final direct transmission from the KE007 crew to ground controllers was a report to Tokyo at 1827:10 G.M.T. that the plane was rapidly decompressing and descending. The flight recorders and most of the wreckage were never recovered, so the details of what happened remain a mystery. However, contrary to KAL's suggestion, there was evidence from which to calculate an approximate crash site, including intermittent acoustic signals from an underwater flight recorder beacon received by search vessels in the area along with debris from the crash found in the Sea of Japan and washed ashore on Hokkaido Island.

Plaintiffs' liability claims in all of these actions grow from a hypothetical flight deviation that they claim was apparent on FAA radar shortly after take-off and could be extrapolated across the entire route to the approximate crash site in the Sea of Japan (after flying for about three hours in Soviet airspace and crossing over the Kamchatka Peninsula and Sakhalin Island). See Appendix. At trial, plaintiffs attempted to establish willful misconduct by the KE007 flight crew by theorizing that, due to an error in programming the Inertial Navigation System ("INS") prior to departure from Anchorage, KE007 deviated from its plotted course to Seoul and entered Soviet airspace. The INS is a navigational device which stores preprogrammed flight plans and displays data during the flight showing present position, waypoint positions, and any course deviations from the designated route. The INS units use gyroscopes to calculate positions during flight, and they must be programmed before takeoff by inserting the exact coordinates for latitude and longitude at the particular gate where the aircraft is parked.

At trial, plaintiffs contended that the crew must have known of the misprogramming either before leaving Anchorage or shortly thereafter, but decided to proceed rather than turn back and face possible disciplinary action such as suspension. Plaintiffs argue that the crew's location reports were fabricated to cover up the error in programming. Furthermore, according to the plaintiffs, the crew must have been fully aware of the serious risk of straying into Soviet airspace, given that a similar KAL flight had been intercepted and forced down five years earlier. In 1978, KAL flight 902 had strayed deep into sensitive Soviet airspace near northern Europe, over 1000 miles off course. A Soviet fighter fired on the aircraft when it took evasive maneuvers, forcing an emergency landing on a frozen lake. This incident, which caused several fatalities, was evidently discussed in subsequent KAL training programs.

Plaintiffs' evidence consisted of radar reports covering the initial leg of KE007's flight, an investigative report completed by the Secretary General of the International Civil Aviation Organization ("ICAO") three months after the incident (hereinafter referred to as the "ICAO Report," although KAL emphasizes that it was never officially adopted by the ICAO Council), expert testimony from...