The opinion of the court was delivered by: SPRIZZO
Plaintiffs Sadanand Singh, individually and as executor of the Estate of Kala Singh, and Samir and Kalpana Singh, through a Guardian Ad Litem, (collectively, the "Singh plaintiffs") and other plaintiffs bring the instant actions against defendants Pan American World Airways, Inc. ("Pan Am"), Pan Am World Services, Inc. ("PAWS"), and Alert Management Systems, Inc. ("AMS") for damages arising out of the hijacking of a Pan Am airplane in Karachi, Pakistan in 1986. Pursuant to 28 U.S.C. § 1404(a), the Singh plaintiffs move to transfer venue to the Southern District of California for trial on the remaining non-common claims. Pursuant to Federal Rules of Civil Procedure 50, 54(b) and 58, Pan Am cross-moves for entry of judgment limiting the amount of damages to $ 75,000 under the Warsaw Convention and dismissing the remaining non-common claims.
In 1986, in response to increasing public concern over threats against United States air carriers operating international flights, Pan Am contracted with AMS to provide a security system for its international flights. See Declaration of Bruce H. Fagan Sworn to November 12, 1993 ("Fagan Decl.") PP 2-9, Exhs. 1-8. Pan Am thereafter implemented and advertised its "Alert Security Program" as one which provided enhanced security measures. See id.
On September 5, 1986, Pan Am flight number 73 departed Bombay, India en route to New York, New York with a scheduled intermediary stop at Karachi International Airport in Karachi, Pakistan. Joint Pre-Trial Order ("PTO"), Undisputed Facts P 1. Plaintiff Sadanand Singh, his wife Kala, and their two minor children Samir and Kalpana were passengers on board flight 73. Declaration of Sadanand Singh Sworn to November 12, 1993 ("Singh Decl.") P 2.
While flight 73 was on the ground at Karachi International Airport, terrorists boarded and assumed control of the aircraft. PTO, Plaintiffs' Contentions of Fact PP 86-87, Defendant's Contentions of Fact PP 245-48. While in control of the aircraft, the terrorists opened gunfire on the passengers, killing about twenty passengers and injuring numerous others. See PTO, Plaintiffs' Contentions of Facts PP 95-97, Defendants' Contentions of Facts P 283. During the hijacking, Kala Singh was killed, and Mr. Singh and his two children were injured. See Singh Decl. P 3.
On February 23, 1987, Mr. Singh filed an action against Pan Am on behalf of himself and his two minor children in the United States District Court for the Southern District of California, claiming damages for wrongful death, personal injury and false advertising. See Singh, et al. v. Pan American World Airways, Inc., et al., 87 Civ. 3108 (JES). Numerous other wrongful death and personal injury lawsuits relating to the hijacking of Pan Am flight 73 were filed against Pan Am in various courts across the United States. See Declaration of Randolph S. Hicks, Esq. Sworn to October 15, 1993 ("Hicks Decl.") P 3.
By Order filed April 7, 1987, the Judicial Panel on Multidistrict Litigation selected venue in the Southern District of New York for consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407.
See PTO, Jurisdiction P 2. At the time of consolidation, eighteen actions, including the Singh action, had been filed. See Pan Am's Notice of Motion dated October 15, 1993, Ex. C. As of October 15, 1993, thirty-five actions arising out of the hijacking of Pan Am flight 73 had been consolidated before this Court.
On October 15, 1993, Pan Am moved pursuant to 28 U.S.C. § 157(b)(5), or in the alternative pursuant to 28 U.S.C. § 1404(a), to transfer eighteen cases filed in the Central District of California, including the Singh action, to the Southern District of New York for a consolidated liability trial. See PTO, Jurisdiction P 1. By Order dated December 13, 1993, this Court granted Pan Am's motion and, pursuant to Federal Rule of Civil Procedure 42(a), consolidated those cases for trial of all common liability issues. Id.
On April 14, 1994, after a six week jury trial, the jury found that Pan Am's conduct in connection with the Alert Security Program constituted willful misconduct. However, the jury also found that the willful misconduct was not a proximate cause of the damages claimed.
Thereafter, pursuant to 28 U.S.C. 1404(a), the Singh plaintiffs moved for transfer of the remaining claims to the Southern District of California
for trial on the ground that since the Singh plaintiffs actually relied upon the misrepresentations made by the defendants in connection with the Alert Security Program, their claims were not common to those already tried. Pan Am opposed that motion on the grounds that (1) it is entitled to judgment notwithstanding the verdict on the issue of willful misconduct; (2) that any remaining claims are, in any event, preempted both by the Warsaw Convention and by the Airline Deregulation Act.
Pan Am also sought entry of judgment under the Warsaw Convention in the amount of $ 75,000 per passenger seat and dismissal of all remaining claims.
The Warsaw Convention
limits liability of international air carriers for damages resulting from an "accident," which has been construed to include hijacking or terrorist activity. See Pflug v. Egyptair Corp., 961 F.2d 26, 29 (2d Cir. 1992); Day v. Trans World Airlines, Inc., 528 F.2d 31, 33 (2d Cir. 1975) (en banc), cert. denied, 429 ...