state laws, sometimes finding no available basis for recovery at all.
The situation was sufficiently intolerable that, in 1920, Congress enacted DOHSA to provide a uniform basis of recovery for wrongful death acts committed "beyond a marine league" -- three miles -- from shore. 46 U.S.C. § 761. Apparently, a judgment was made that state law still would be tolerable near shore, which was understandable, because it merely treated torts near a state's shore the same as torts on land. The call was for uniformity on the high seas, not harmonization of all state tort systems.
The Supreme Court, meanwhile, remained suspicious of The Harrisburg's finding that no federal common or maritime law right existed for wrongful death. In 1970, the Court reversed itself and held that a federal common or maritime law right did exist for wrongful death. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970). But ironically, the vindicated federal common law remedy was now a mere shadow of what it might have been, because on the high seas DOHSA still defined by statute what otherwise would have been defined by judicial exposition. The common law right was left to share concurrent applicability with state law rights in the narrow band of waters up to one marine league from shore, with DOHSA exclusively applicable on the high seas beyond. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978).
The question to be decided in this case is whether the same scheme applies to international air transportation. This Court holds that it does not.
2. Land, Sea and Air
The relationship between the Convention and DOHSA has been considered by a number of courts, and the conclusion in every case has been that DOHSA does not apply exclusively, if at all, to suits brought under the Convention.
It is tempting to just cite such widespread agreement and dispose of the issue without further discussion. But some of the best reasons for denying DOHSA a controlling role in international air transportation have been understated in the recent decisions, so a few additional words on the subject may not be merely cumulative.
The departure point for any court in this Circuit is In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267 (2d Cir.), cert. denied, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991), in which the Second Circuit stated: "we adopt substantive federal common law as the law governing the cause of action under the Warsaw Convention." Id. at 1279. The Court also cited with approval two cases that bear directly on the question here. First, it cited the decision of the district court denying a jury trial in the liability phase of this very litigation. Id. (citing In re Korean Air Lines Disaster of September 1, 1983, 704 F. Supp. 1135 (D.D.C. 1988), aff'd in part, vacated in part, In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991), cert. denied, 116 L. Ed. 2d 638, 112 S. Ct. 616 (1991)). Second, it cited the Supreme Court decision establishing that wrongful death is recognized in the federal common law. Id. (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970)). The unmistakable direction of the Second Circuit is that federal common law rights are created by the Convention. That alone is enough to support plaintiff's demand for a jury trial. Curtis, 415 U.S. 189, 39 L. Ed. 2d 260, 94 S. Ct. 1005 .
Further inspection of KAL's argument only confirms that it is at odds with this Circuit's view of the Convention; "plugging in" DOHSA as the Convention's exclusive remedy in this country for fatal high seas torts would ignore the premium that the Convention places on uniformity. In Lockerbie, the Second Circuit described and decided between its options as follows:
two choices are generally available to a court in deciding the law created by a federal cause of action: adopting state law or creating a uniform federal common law. It would make little sense to adopt state law when uniform interpretation of the federal law is more consistent with the Convention's purposes.
Id. at 1278. The same reasoning warrants rejection of KAL's argument. There are two choices available to this Court: adopting a hodgepodge of different rights dependent upon the location of the wrong, or creating a uniform federal common law. KAL prefers a hodgepodge, arguing that the internal law of the United States should just be plugged into the Convention -- that uniformity within a nation is immaterial as long as some means for recovery is provided for all plaintiffs. Lockerbie is in direct conflict with that theory. Uniformity within this nation is a value to be pursued in the name of the Convention.
Once internal uniformity is recognized as a value to be pursued, the incompatibility of DOHSA with the Convention becomes clear. DOHSA applies only to torts committed on the high seas, beyond a marine league from shore.
While a liberal construction may be able to extend its ambit into the airspace above, see Higginbotham, 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010, no reasonable construction can expand its coverage into territorial waters or land (or the airspace above them). That leaves a great deal of space to be filled if the Convention's mandate is to be honored.
Article 17 of the Convention establishes carriers' liability for damage sustained "on board the aircraft or in the course of any of the operations of embarking or disembarking." That covers damage on the ground at the point of departure, damage in the airspace over the land of the nation of departure, damage over the territorial water of the nation of departure, damage over the high seas, damage over the territorial water of the nation of arrival, damage in the airspace over the land of the nation of arrival, and damage on the ground at the point of arrival. One might also subdivide "airspace over the land of the nation" into "airspaces over the land of the different states within the nation."
KAL effectively invites this Court to hold that the substantive law applicable to international air transportation torts depends on locating the wrongdoing somewhere in that myriad of spatial zones. Defendant's Memorandum at 7-8. That invitation not only must be declined, it demonstrates as well as anything why KAL's theory cannot be accepted. An aircraft on any given international flight plan might pass through many of these substantive law zones, remaining in some for only a matter of seconds. The result would be a wildly transient applicable substantive law.
The United States Supreme Court has accepted the risk of this scheme to the extent that it applied DOHSA to a helicopter accident on the high seas. According to the Court, "it is true that the measure of damages in coastal waters will differ from that on the high seas, but even if this difference proves significant, a desire for uniformity cannot override the statute." Higginbotham, 436 U.S. at 624. Of course, the Court was already stretching "the statute," covering a helicopter with something that was written for boats. But more importantly, Higginbotham was an easy case. The Convention was inapplicable because the case did not involve international aviation. Convention, art. 1 ("'International transportation' shall mean any transportation in which . . . the place of departure and the place of destination . . . are situated within the territories of two High Contracting Parties . . ."); Higginbotham, 463 U.S. at 619 (crash of helicopter used for transportation to offshore drilling operations); see also Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972) (crash of military aircraft engaged in training exercise).
In the present case, the desire for uniformity is not just an abstract judicial yearning; it is founded upon a treaty that is subsequent in date to DOHSA.
This Court could follow the lead of Higginbotham, treat the scheme of substantive law zones as the law of the land, hope for the best in identifying the place of commission in future cases, and hold DOHSA applicable to the Korean Air Lines incident (assuming that the willful misconduct occurred over the high seas and not, for example, over Japanese land -- facts to which KAL's motion does not allude). Or it could adhere closely to the Second Circuit's emphasis in Lockerbie. The foregoing discussion leads this Court to the judgment that a uniform common law approach better serves the Convention's "goals of uniformity and certainty" for international air passengers from embarkment to disembarkment. Convention, art. 17; Lockerbie, 928 F.2d at 1275.
The uniform approach is also consistent with the history of maritime tort. Now that the reason for DOHSA's existence -- The Harrisburg -- has been discredited, courts need not be too creative in expanding the statute's reach to cover things that were not contemplated by its drafters.
The determination that rights under the Convention are creatures of common law and not of DOHSA makes the existence of a right to jury trial incontrovertible. Curtis, 415 U.S. 189, 39 L. Ed. 2d 260, 94 S. Ct. 1005 . The Convention establishes a common law right "enforceable in an action for damages in the ordinary courts of law." Id., 415 U.S. at 194. Plaintiff is entitled to a jury trial.
KAL's motion to strike plaintiff's demand for a jury trial is hereby denied.
It Is So Ordered.
Dated: New York, New York
January 11, 1993
Mary Johnson Lowe
United States District Judge