Court's decision in Miles precludes recovery for loss of society. Defendant's argument is not persuasive. The Court's decision in Miles applies only to actions brought under the Jones Act, DOHSA, and general maritime law. Moreover, the facts of Miles limit it to seamen. Miles does not limit remedies available under the Warsaw Convention. Moreover, this court has concluded that the Warsaw Convention is not limited by DOHSA.
Again, in reading the language of the Warsaw Convention, the D.C. Circuit noted that the Warsaw Convention does provide for non-pecuniary losses. The D.C. Circuit noted that the language of Article 17 of the Warsaw Convention in allowing recovery for "damage sustained" refers to "actual harm experienced, whether physical injury to the passenger or, in the case of death, monetary or other loss to his survivors." In re Korean Air Lines, 932 F.2d at 1485 (citing In re Air Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 928 F.2d 1267 slip op. 2927 at 2959 (2d Cir. 1991)) (emphasis added). The D.C. Circuit Court interpreted "damage sustained" to include "suffering due to the death of a member of the family" In re Korean Air Lines, 932 F.2d at 1487.
In addition to the observations of the D.C. Circuit and the Second Circuit, it should be noted that the Fifth Circuit has twice allowed damages for loss of love and affection in cases brought under the Warsaw Convention and the Federal Tort Claims Act. In In re Air Crash Disaster Near New Orleans, L.A., 789 F.2d 1092 (5th Cir.), vacated on other grounds, 490 U.S. 1032, 109 S. Ct. 1928, 104 L. Ed. 2d 400 (1989), relatives of passengers killed in the crash of Pan American World Airways Flight 759 brought suit against Pan Am under the Warsaw Convention and against the United States under the Federal Tort Claims Act. A jury awarded plaintiff $ 250,000 for "the loss of the love and affection of his mother," and $ 150,000 for "the loss of the love and affection of his sister." In re Air Crash Disaster Near New Orleans, 789 F.2d at 1099. After discussing the intimate relationship that had existed between plaintiff and his deceased mother and sister, the court affirmed the jury verdict as to the loss as to plaintiff's mother and approved $ 50,000 of the original jury verdict as to the loss as to plaintiff's sister. In re Air Crash Disaster Near New Orleans, 789 F.2d at 1100.
Winbourne v. Eastern Airlines, Inc., 758 F.2d 1016 (5th Cir.), cert. denied, 474 U.S. 1036, 88 L. Ed. 2d 582, 106 S. Ct. 603 (1985) involved a suit brought against Eastern Airlines under the Warsaw Convention and against the United States under the Federal Tort Claims Act. Both Eastern and the Government conceded liability. Describing plaintiff as a man crushed by sudden tragedy, the Fifth Circuit affirmed the district court's award of damages for the loss of love and affection of plaintiff's wife and daughters. While Eastern's share of the total damage award was limited by the $ 75,000 limitation of the Montreal Agreement, the Circuit Court affirmed recovery for damages due to the loss of love and affection. See also Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir. 1983) (In suit brought against the airline under diversity jurisdiction applying Louisiana law and against the Government under the Federal Tort Claims Act, Circuit Court permitted award for damages including recovery for loss of companionship, love, and affection and physical and mental anguish); 1 S.SPEISER, RECOVERY FOR WRONGFUL DEATH 313-322 (2d 1975) (majority of jurisdictions allow recovery for society and companionship and several jurisdictions bound by pecuniary loss rule nevertheless allow recovery for "pecuniary value" of society, companionship, counsel, protection and attention).
Because the Second Circuit in Lockerbie determined that federal common law applies in interpreting the Warsaw Convention, the measure of damages available under the Convention is governed by federal common law.
Allowing survivors who are close family members of airline passengers to recover damages for the loss of love, affection and companionship when proved, in an action brought under the Warsaw Convention, is not repugnant to federal common law as presently developed and, moreover, serves the underlying puposes and goals of the Convention. Although pecuniary losses are the only losses recoverable under DOHSA, Miles, 112 L. Ed. 2d at 290, that federal statute, governing a seaman's death on the High Seas, is not the limit of our search for a remedy under the Convention, especially when the $ 75,000 limit has been removed. When the limit has been removed by a finding of "wilful misconduct," the policy and underlying purpose of the Convention is to allow for full compensation, not only to the victims of an airline disaster, but to anyone who can prove that he or she sustained damages as a result of the crash of an airliner. In re Korean Air Lines, 932 F.2d at 1485 (citing In re Air Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 928 F.2d 1267 slip op. 2927 at 2959-60 (2d Cir. 1991)).
Plaintiffs intend to prove a close, loving relationship between the decedent and her mother and sister in this case. The court, therefore, looks to recent developments in the area of federal common law in other areas outside federal maritime law. There was a time when federal maritime law was the only source of federal tort law. However, in more recent years, the Congress has expanded the areas of federal law giving rise to tort actions, and the federal courts in the last few decades have been busily engaged in construing these new laws and fashioning federal remedies. Perhaps the most prominent area of recent development has been civil rights tort actions provided for by the Congress.
In Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), in developing the federal common law in relation to suits under § 1983, the Seventh Circuit recognized as an element of damages recoverable in such cases an award for loss of society and companionship and rejected the state bar with respect to the amount recoverable. The court expressly ruled that in implementing a federal policy underlying a federal statute, federal courts should not allow an applicable state statute inconsistent with federal policy and purpose to control. Bell, 746 F.2d at 1251. The court held that § 1983 was designed to allow full recovery for the unconstitutional deprivation of life by a state official. Bell, 746 F.2d at 1251.
The Warsaw Convention, a federal statute, has as its underlying purpose awarding full recovery in cases where there has been a finding of "wilful misconduct," as in the instant case. Lockerbie, 928 F.2d at 1285-86. Where a treaty conflicts with a prior statute, the treaty supersedes the statute. See MacNamara v. Korean Air Lines, 863 F.2d 1135, 1146 (3rd Cir. 1988), cert. den 493 U.S. 944, 107 L. Ed. 2d 337 , 110 S. Ct. 349 (1989). When the Senate ratified the Warsaw Convention in 1934, DOHSA was already on the statute books. If the recovery allowed by DOHSA, a prior federal statute, should conflict with the Convention in its purposes, then, of course, the Convention, which is a treaty, should prevail. See MacNamara, 863 F.2d at 1146. It is certainly not clear that the Senate intended to limit the recovery of airline passengers' survivors because of the existence of DOHSA and its limitations to pecuniary losses.
Disallowing recovery for loss of love, affection and companionship and other non-pecuniary losses would mean that in those cases where the survivors were not dependent on the decedent for financial support, an action under the Convention would net "little more than the cost of a casket." Heath v. City of Hialeah, 560 F. Supp. 840, 842 (S.D.Fla. 1983).
This court concludes that the loss of love, affection and companionship of a decedent by a close relative is compensable under the Warsaw Convention. Therefore, plaintiffs may recover for the losses they suffered "due to the death of a member of the family." In re Korean Air Lines, 932 F.2d at 1487.
LOSS OF INHERITANCE
While plaintiffs did not specifically seek damages for loss of inheritance, Rule 54(c) of the Federal Rules of Civil Procedure authorizes the court to award appropriate damages even though they are not formerly pleaded.
Lost inheritance is recoverable in most jurisdictions,
and federal common law permits recovery for lost inheritance.
One early commentator wrote:
Where the evidence shows that it is probable that the decedent, but for [decedent's] death would have accumulated property, which if he had died intestate, would have been inherited by the beneficiaries of the action, these facts constitute such a reasonable expectation of pecuniary benefit as to authorize a recovery of damages for its loss.
TIFFANY, DEATH BY WRONGFUL ACT 378 (2d ed. 1913) (reprinted in SPEISER at 278). Plaintiffs may recover for lost inheritance. Defendant agrees. (Memorandum of Points and Authorities in Support of Defendant Korean Air Lines Co., LTD's Motion to Strike Plaintiffs' Jury Demand, To Determine The Law Applicable to the Determination of Damages and to Dismiss Muriel Mahalek as a Party Plaintiff at 39) ("Defendant's Brief").
Lost inheritance is based on the probability of wealth accumulation by the decedent and the probability that the decedent would have left it to the plaintiffs. Future lost earnings and wages are also provable for the determination of lost inheritance.
LOSS OF SERVICES
Plaintiffs seek damages for loss of services. Defendant does not contest this recovery. (Defendant's Brief at 39-40) Loss of services is a compensable pecuniary loss and damages may be awarded where the value of services lost is measurable. Gaudet, 414 U.S. at 584 rev'd on other grounds, 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (recovery for loss of services recognized at common law). At the time of Muriel Kole's death, Marjorie Zicherman was pregnant and had planned to rely on her sister's services in raising and caring for her child. Plaintiffs may recover for measurable loss of services.
TESTIMONY OF MICHAEL KOLE
Plaintiffs moved to exclude the testimony of Michael Kole. Michael Kole is the decedent's husband. His motion to intervene in this action as a party plaintiff was denied by this court by memorandum opinion dated June 25, 1992 because his intervention would be prejudicial to plaintiffs. Mr. Kole appealed the denial of the motion to intervene; however, the Second Circuit dismissed the appeal on September 29, 1992.
Just as Mr. Kole's intervention would unduly prejudice plaintiffs, his testimony as a witness for defendant would likewise be unduly prejudicial. Mr. Kole has brought an action arising out of the air disaster in this case in his own behalf in a federal district court in California. Therefore, plaintiffs' motion to exclude the testimony of Michael Kole is granted under Rule 403 of the Federal Rules of Evidence.
All of the foregoing claimed losses must be proved at trial. The references to DOHSA do not foreclose plaintiffs' rights under the Warsaw Convention, and plaintiffs retain their right to a jury trial. Decedent's mother, Muriel Mahalek, may proceed as a party plaintiff. Plaintiffs cannot recover for decedent's loss of the quality or enjoyment of life. Plaintiffs may recover for decedent's conscious pain and suffering, for loss of support, mental injury and grief as defined by this decision, loss of love, affection and companionship, loss of inheritance, and lost services. The testimony of decedent's husband, Michael Kole, is excluded.
Dated: October 29, 1992
New York, N.Y.
CONSTANCE BAKER MOTLEY
United States District Judge