The opinion of the court was delivered by: MARY JOHNSON LOWE
Before this Court is the motion of defendant Korean Air Lines ("KAL") to strike the plaintiff's demand for a jury trial on the issue of damages. For the reasons that follow, KAL's motion to strike the jury demand is denied.
This case arose from the downing of KAL flight KE007 by Soviet military aircraft on September 1, 1983. It is one of many actions brought by survivors of the passengers, alleging that misconduct by KAL contributed to the tragedy. The actions were consolidated for determination of the liability issues, and a jury found that willful misconduct of the plane's flight crew was a proximate cause of the incident.
The actions, including this one, were then transferred back to their original courts for decision of the remaining issues, primarily damages.
In the liability phase, KAL moved to strike the plaintiffs' demand for a jury trial, but its motion was denied. 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). When KAL appealed the liability finding, it elected not to challenge the district court's ruling on the jury trial issue. KAL now presents this Court with a substantially identical motion to prevent a jury trial in the damages phase of the litigation.
Plaintiff argues that this Court should reject KAL's motion outright because the issue has already been decided in this case. Other judges faced with the issue have agreed with plaintiff's position that KAL does not deserve "another bite at the apple." See, e.g., In re Korean Air Lines Disaster of September 1, 1983, 807 F. Supp. 1073 (S.D.N.Y. 1992) (Motley, J.); Kyung Hwa Park v. Korean Air Lines Co., No. 83 Civ. 7900, 1992 U.S. Dist. LEXIS 16841 (S.D.N.Y. Oct. 29, 1992) (Buchwald, Mag. J.); In re Korean Air Lines Disaster of September 1, 1983, 798 F. Supp. 755 (E.D.N.Y. 1992) (Platt, J.). Those judges have relied, explicitly or implicitly, on the "law of the case" doctrine: that "a decision on an issue of law made at one stage of a case becomes binding precedent to be followed in subsequent stages of the same litigation." In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991).
The law of the case doctrine in its simplest and most absolute form requires lower courts to follow decisions made by higher courts at earlier stages of the same litigation. 1B James W. Moore, et al., Moore's Federal Practice P 0.404, at 118 (2d ed. 1992). The doctrine also has strong roots where, as here, a party has appealed but omitted the issue in question from its appeal. Fogel v. Chestnutt, 668 F.2d 100, 108-09 (2d Cir. 1981), cert. denied, 459 U.S. 828, 74 L. Ed. 2d 66, 103 S. Ct. 65 (1982). Still, this Court is hesitant to apply the law of the case rigidly to an appeal from a partial judgment like the one on liability in this case. The Court will retain its discretion to reconsider prior rulings. Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983).
This case is unusual in that the prior ruling on the jury trial issue came not from this Court but from the District Court for the District of Columbia. The decisions of that court will of course be accorded the deference that this Court would accord its own decisions. Yet, realistically speaking, the issues have not been examined in this Court. Some measure of de novo consideration is necessary if this Court's deference is to have any studied basis. Accordingly, the substance of KAL's motion will be addressed, though in the end the motion would have to prove especially meritorious to justify a departure from the prior ruling.
The key to deciding this motion is the nature of plaintiff's rights under the Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature October 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 (reprinted at 49 U.S.C.A. § 1502 historical note) [hereinafter the "Convention"]. Plaintiff argues that the Convention establishes independent federal common law rights against air transportation tortfeasors for fatalities caused on the high seas. KAL argues that such fatalities are compensable exclusively according to the provisions of the Death on the High Seas Act ("DOHSA"). 46 U.S.C. § 761-68. Whether plaintiff is entitled to a jury trial depends on whether KAL is correct in asserting that the Convention calls for merely plugging in DOHSA, which carries no jury right, see Romero v. International Terminal Operating Co., 358 U.S. 354, 371, 3 L. Ed. 2d 368, 79 S. Ct. 468 n.28 (1959), or whether plaintiff is correct in asserting that the Convention establishes an independent common law right of recovery, which would ...