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IN RE AIR CRASH OFF POINT MUGU

May 1, 2001

IN RE AIR CRASH OFF POINT MUGU, CALIFORNIA, ON JANUARY 30, 2000.


The opinion of the court was delivered by: Legge, District Judge.

  ORDER ON MOTIONS

Defendants have made motions for judgment on the pleadings and for partial summary judgment. Plaintiffs oppose the motions, and have also requested additional discovery under Rule 56(f) of the Federal Rules of Civil Procedure. The motions have been briefed, argued and submitted for decision. The court has reviewed the moving and opposing papers, the record of the case, the arguments of counsel and the applicable authorities, and rules as follows:

I.

Defendant Alaska*fn1 moves for judgment on the pleadings regarding the claims of the representatives of the passengers killed in the crash. Alaska seeks a determination that the cases brought on behalf of the passengers are subject to the Warsaw Convention; and that their claims for punitive damages and for pre-impact emotional distress are barred by the Warsaw Convention.

It is clear, and indeed the parties do not dispute, that the Warsaw Convention as modified by the Montreal Protocol No. 4 provides the exclusive basis for the passengers' claims against Alaska. See Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) (the "Warsaw Convention"). See also El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (holding that the Warsaw Convention is the passengers exclusive remedy against an international carrier). Alaska is also a signatory to the International Air Transportation Authority ("IATA") Intercarrier Agreement on Passenger Liability. Under the IATA agreement, a carrier such as Alaska assumes liability for an injury caused by an accident within the meaning of the Warsaw Convention unless it can prove that it took all necessary measures to avoid the accident. See Cortes v. American Airlines, 177 F.3d 1272, 1281-82 n. 5 (11th Cir. 1999).

The Warsaw Convention, however, does not allow all possible claims against an air carrier. At issue here are the Convention's prohibitions against punitive damages and against emotional distress claims. All claims which are allowed by the Convention are then evaluated under the standards of the applicable domestic law. The United States Supreme Court has said that the Warsaw Convention provides "nothing more than a pass through, authorizing [a court] to apply the law that would govern in the absence of the Warsaw Convention." Zicherman v. Korean Air Lines, 516 U.S. 217, 229, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). If a claim is permitted by the Convention, the analysis of the claim is then governed by the law of the forum, including the forum's choice of law rules. See Insurance Company of North America v. Federal Express Corporation, 189 F.3d 914, 919-20 (9th Cir. 1999). As the Ninth Circuit said in that case: "Although an international treaty governs the liability between the parties in the instant dispute, our choice of law analysis under the Warsaw Convention is no different than it would be under the familiar Erie doctrine. This is so because the Supreme Court has "admonished lower courts from developing federal common law under cover of advancing the goal of uniformity in Warsaw Convention cases.'" Id.

II.

Since the Warsaw Convention governs the claims between Alaska and its passengers, the first substantive question is whether the Convention permits awards of punitive damages. If the Convention does not allow such damages, then the claim is barred regardless of the law of a particular jurisdiction.

This court is of the opinion that the right to recover from the carrier, Alaska, under the Convention is limited to compensatory damages, and does not include punitive damages. That conclusion is supported by numerous cases. In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475, 1485-90 (D.C.Cir.), cert. denied, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991); In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267, 1284 (2d Cir.) cert. denied 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1483 (11th Cir. 1989), rev'd on other grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); In re Air Crash Disaster at Gander, Newfoundland on Dec. 12, 1985, 684 F. Supp. 927, 931 (W.D.Ky. 1987); Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 14 (2d Cir. 1996); Laor v. Air France, 31 F. Supp.2d 347, 350 (S.D.N.Y. 1998); Jack v. Trans World Airlines, 854 F. Supp. 654, 663 (N.D.Cal. 1994); Harpalani v. Air-India, Inc., 634 F. Supp. 797, 799 (N.D.Ill. 1986); In re Aircrash Disaster Near Roselawn, Indiana on October 31, 1994, 960 F. Supp. 150, 153 (N.D.Ill. 1997).

Although those reported cases do not include decisions by the Ninth Circuit, this court has no reason to believe that, in the face of this overwhelming body of law, the Ninth Circuit's decision would be any different.

Plaintiffs argue that the rule so clearly established by those cases has been changed by the Zicherman decision. Plaintiffs contend that Zicherman's "pass through" language authorizes a court to apply the law that would govern in the absence of the Warsaw Convention, including punitive damages if the law of the forum provides for them. However, this court does not believe that Zicherman has such a sweeping impact. The court is of the opinion that the Supreme Court's "pass through" language was discussing only those claims that were not otherwise barred by the Warsaw Convention, and that the Court did not mean to overrule the prohibitions established by the Convention. Several courts have rejected plaintiffs' arguments. As one post Zicherman court stated, "the case law denying punitive damages in Warsaw Convention claims remains fundamentally sound." In re Aircrash Disaster Near Roselawn, Indiana, 960 F. Supp. 150, 153 (N.D.Ill. 1997). This court agrees.

IT IS THEREFORE ORDERED that judgment on the pleadings is GRANTED in favor of Alaska and against the representatives of the passengers on their claims for punitive damages.

III.

The Warsaw Convention also precludes claims for purely emotional distress. Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991). As the Supreme Court there stated, "An air carrier cannot be liable under [the Warsaw Convention] when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury." Id. at 552, 111 S.Ct. 1489. And claims for physical injury purely descended from emotional distress are also prohibited by the Convention. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 172, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999).

Alaska therefore contends that the representatives of the passengers cannot recover for pre-impact terror, because those claimed injuries are purely emotional in nature. Plaintiffs argue that they are not seeking recovery for purely emotional injuries. They contend that they are seeking recovery for emotional distress arising out of physical injuries to the passengers. This type of emotional distress claim is permited by the Warsaw Convention. See Jack v. Trans World Airlines, 854 F. Supp. 654, 669 (N.D.Cal. 1994) (collecting the cases holding that emotional distress is cognizable under the Warsaw Convention permitted by the Warsaw Convention if the emotional distress arises out of a physical injury).

Plaintiffs argue that during the approximately half hour before the crash, the passengers experienced a violent ride that caused them physical injuries, which can serve as the predicate for their emotional distress claims. Because of the destruction of the plane and the physical evidence caused by the crash, the only evidence which plaintiffs ...


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