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HOLLIE v. KOREAN AIR LINES CO.

August 31, 1993

BARBARA SWIFT HOLLIE, as the Personal Representative and the Administratrix of the Estate of FRANCES MAE SWIFT, Deceased, Plaintiff,
v.
KOREAN AIR LINES CO., LTD., Defendant.


BUCHWALD


The opinion of the court was delivered by: NAOMI REICE BUCHWALD

NAOMI REICE BUCHWALD

 UNITED STATES MAGISTRATE JUDGE

 This memorandum addresses the parties' post-trial submissions related to the availability and computation of pre-judgment interest on the jury's award of damages. *fn1"

 BACKGROUND

 This litigation arises out of the downing of Korean Air Lines flight KE007 over the Sea of Japan by Soviet aircraft on September 1, 1983. All the passengers and crew died as a result of the incident. Frances Mae Swift was among those aboard the airplane. This action was commenced on behalf of her estate and on behalf of her sister - the named plaintiff, Barbara Swift Hollie, her brother - Alton Swift, her aunt - Emma Bradley, and her four nieces and nephews - Charnell Letrice Swift, Mark Anthony Swift, Glenn Erich Lee, Gail Orr (referred to collectively as "plaintiffs").

 The above-captioned case was consolidated with numerous 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 trial on the issue of whether the plane crash was proximately caused by the "wilful misconduct" of the defendant, Korean Air Lines ("KAL").

 On August 2, 1989, the jury returned a judgment finding wilful misconduct on the part of KAL. On appeal, the Circuit Court affirmed the jury's finding of wilful misconduct. In re Korean Air Lines Disaster, 289 U.S. App. D.C. 391, 932 F.2d 1475 (D.C. Cir.), cert. denied, 116 L. Ed. 2d 638, 112 S. Ct. 616 (1991). Subsequently, the individual cases were remanded to their originating districts for trials on damages.

 A jury trial on the issue of damages commenced on June 15, 1993. On June 25, 1993 the jury returned a verdict awarding plaintiffs $ 306,582 for loss of support and loss of nurture, care and guidance from the date of the accident until the date of judgment; $ 93,440 for loss of future support and loss of future nurture, care and guidance; and $ 150,000 for the decedent's conscious pain and suffering experienced prior to her death. The parties submitted post-trial briefs raising the following issues: 1) whether prejudgment interest is available under the Warsaw Convention; 2) if prejudgment interest is available, whether it is appropriately awarded in this case; and 3) if appropriate, at what rate should be interest applied and whether such interest should be compounded. We will address each issue in turn.

 Discussion

 First, defendant asserts that, since the Warsaw Convention, the governing law in this action, does not specifically provide for awards of prejudgment interest, such an award is unfounded. We reject this contention and concur with Judge Motley's ruling in Zicherman v. Korean Air Lines, 814 F. Supp. 605, 607-608 (S.D.N.Y. 1993) (distinguishing O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842 (2d Cir. 1984) and holding that plaintiff is entitled to prejudgment interest in a wrongful death action arising under the Warsaw Convention where willful misconduct has been found). See also E.E.O.C. v. County of Erie, 751 F.2d 79, 81 (2d Cir. 1984) (noting that express statutory authority for prejudgment interest is unnecessary for the allowance of such an award.)

 Second, defendant asserts that even if the Warsaw Convention allows for an award of prejudgment interest, such an award is discretionary under federal common law and, in the instant case, should be denied. Again, we disagree with defendant and concur with Judge Motley's ruling in Zicherman, 814 F. Supp. at 610-611. Generally under federal law, when entitlement to prejudgment interest has not been statutorily determined, it is left to the trial court's discretion to decide whether prejudgment interest is appropriate. West Virginia v. United States, 479 U.S. 305, 308-309, 93 L. Ed. 2d 639, 107 S. Ct. 702 (1987); Wickham Contracting v. Local Union No. 3, IBEW, 955 F.2d 831, 833 (2d Cir.), cert. denied, 121 L. Ed. 2d 302, 113 S. Ct. 394 (1992). In exercising its discretion a trial court should consider whether an award of prejudgment interest is necessary to fully compensate the plaintiff and is fair under the circumstances. Wickham, 955 F.2d at 834, 836.

 Without disputing that plaintiffs require prejudgment interest to fully compensate them for the almost ten year delay in reaching a final judgment, the parties focused their arguments on whether the relative equities favor such an award. As Judge Motley's review revealed, absent extraordinary circumstances, awards of prejudgment interest are routine under federal law and have been allowed in the other cases arising from the KE007 tragedy. Zicherman, 814 F.2d at 607-610; see also Maikovich v. Korean Air Lines Co., No. 83-3792 (D.D.C. July 16, 1993) (Robinson, J.); Bickel v. Korean Air Lines Co., 84 CV 74076 (E.D.Mi. June 7, 1993) (Diggs-Taylor, J). In light of this Court's prior ruling that the Death on the High Seas Act ("DOHSA") should provide primary guidance in this action, *fn2" the Second Circuit's recent reiteration that awards of prejudgment interest are proper in cases arising under DOHSA, In re Connecticut National Bank, 928 F.2d 39, 42 (2d Cir. 1991), lends additional support for the conclusion that such an award is appropriate here. See also Magee v. United States Lines, Inc., 976 F.2d 821, 822 (2d Cir. 1992) (absent exceptional circumstances prejudgment interest should be awarded in admiralty cases.)

 Furthermore, we find that the current case does not present the exceptional circumstances required to deny plaintiffs prejudgment interest. Cf. Wickham, 955 F.2d at 834-835. As is evident from the procedural history of this case, both parties made strategic decisions that resulted in a lengthy and vigorously contested litigation. Plaintiffs' strategy throughout the case has been aimed at maximizing their potential recovery. This strategy, while contributing to the delay before the final judgment, does not amount to "exceptional circumstances." Zicherman, 814 F. Supp. at 609 (citing Magee, 976 F.2d at ...


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