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IN RE KOREAN AIR LINES DISASTER OF SEPTEMBER 1

June 24, 1992

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, against 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, -against- KOREAN AIR LINES, THE BOEING COMPANY, LITTON INDUSTRIES, INC., and THE UNITED STATES, Defendants.


The opinion of the court was delivered by: THOMAS C. PLATT

 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 Convention. *fn1" 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. Defendants 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. §§ 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, *fn2" 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, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978) and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 91 L. Ed. 2d 174, 106 S. Ct. 2485 (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.

 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 earilier 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 ...


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