have the right to amend their complaints to assert a Warsaw Treaty cause of action, if necessary, it would be wasteful to deny the jury demand on the basis that the Warsaw Treaty was not pled, and then allow plaintiffs to amend their complaints to plead a Warsaw Treaty cause of action, which would entitle plaintiffs to a jury trial. Nonetheless, in the interest of conceptual precision, the court will determine the jury demand issue by a strict reading of the complaints.
Two categories of complaints did not allege Warsaw Treaty jurisdiction. One alleged diversity jurisdiction and asserted state and federal law claims, but not DOHSA or admiralty. A second alleged diversity, DOHSA and admiralty jurisdiction. The first category can be further classified into those that alleged state survival claims, those that alleged state death claims, and those that alleged other federal claims.
For those that asserted diversity jurisdiction and alleged state survival claims, a jury trial is available. In Offshore Logistics v. Tallentire, 477 U.S. 207, 91 L. Ed. 2d 174, 106 S. Ct. 2485 (1986), the Court specifically noted that its decision left open whether state survival statutes could supplement DOHSA. 477 U.S. at 215 n.1. Thus, for the sole purpose of determining whether a jury trial is available, the Court holds that state survival statutes survive DOHSA's preemptive force; therefore, similar to the Warsaw Convention claims, there is a jury claim joined with a DOHSA claim, and both should be tried together before a jury.
Even if the state survival statutes are preempted by general maritime law (but not DOHSA), see Evich v. Morris, 819 F.2d 256, 258 (9th Cir.) (state law preempted by general maritime survival actions), cert. denied, 484 U.S. 914, 108 S. Ct. 261, 98 L. Ed. 2d 218 (1987), this would not defeat Plaintiffs' jury demands. A plaintiff bringing a general maritime survival action in a case alleging and establishing diversity jurisdiction is entitled to a jury trial. Favaloro v. S/S Golden Gate, 687 F. Supp. 475, 481 (N.D. Cal. 1987). Diversity plaintiffs have the option of suing on a maritime claim at law or in admiralty, at their option. See Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 359-60, 7 L. Ed. 2d 798, 82 S. Ct. 780 (1962); F.R.C.P 9(h) advisory committee's note on 1966 amendment ("For example, a longshoreman's claim for personal injuries suffered by reason of the unseaworthiness of a vessel may be asserted in a suit in admiralty or, if diversity of citizenship exists, in a civil action."). See generally Romero v. International Terminal Operating Co., 358 U.S. 354, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959) (discussing the historical allocation of admiralty jurisdiction among admiralty courts, state courts, and federal courts sitting in diversity).
Indeed, the purpose of Rule 9(h) is to provide a mechanism whereby the court can determine whether a plaintiff asserting an admiralty or maritime claim but also alleging diversity jurisdiction is seeking to take advantage of admiralty procedures and remedies or instead is seeking to pursue his claim at law. Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir. 1975); F.R.C.P. 9(h) advisory committee's note on 1966 amendment. Plaintiffs, of course, have elected not to take advantage of the "special benefits of admiralty procedures and remedies," Romero, 515 F.2d at 1252, by making the 9(h) designation, but instead have elected to proceed at law, with the concomitant right to a jury trial.
For those complaints that alleged state death claims, these death claims are apparently foreclosed by Offshore Logistics. Thus the allegation of diversity does little to support a jury trial; there is no claim (except the DOHSA claim which was not even pleaded), for the jury to try, unless the Court finds that a jury trial is available for the DOHSA claim. For the reasons discussed below, the Court holds that DOHSA claims brought by diversity plaintiffs for aviation torts may be tried by a jury.
For those complaints that alleged diversity jurisdiction and either state death actions or federal law that does not contain a right of action, leaving in substance only diversity and DOHSA, the jury demand must still be honored, notwithstanding the general rule that DOHSA claims are tried without a jury. First, the principle and language of the cases holding that a diversity plaintiff asserting an in personam general maritime claim is entitled to a jury trial do not suggest much less compel that it cannot be applied to a DOHSA claim.
See Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 360, 7 L. Ed. 2d 798, 82 S. Ct. 780 (1962). Once the court has jurisdiction over the action by way of diversity, the jury demand issue should be determined by the nature of the issues to be tried. If a maritime claimant suing on general maritime law is entitled to present to the jury concepts that are peculiar to admiralty -- e.g., maintenance and cure, Fitzgerald v. United States Lines Co., 374 U.S. 16, 10 L. Ed. 2d 720, 83 S. Ct. 1646 (1963); and seaworthiness, Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 7 L. Ed. 2d 798, 82 S. Ct. 780 (1962); Johnson v. Venezuelan Line Steamship Co., 314 F. Supp. 1403 (E.D. La. 1970) -- because the action is in personam and diversity exists, a fortiori a diversity plaintiff seeking money damages should be entitled to have a jury consider concepts traditionally considered by juries, such as willful misconduct.
Assuming the general rule that diversity maritime plaintiffs asserting in personam claims are entitled to jury trials does not apply to DOHSA claims, because Congress specifically placed such claims in admiralty, see Friedman v. Mitsubishi Aircraft International, Inc., 678 F. Supp. 1064 (S.D.N.Y. 1988) (existence of diversity does not support jury demand for DOHSA claim where no other claims present), the Court would still honor the jury demand. As noted above, Congress' decision to place DOHSA claims in admiralty does not establish that it intended to preclude entirely the submission of DOHSA-based claims to juries. Moragne v. States Marine Lines, 398 U.S. 375, 400 n.14, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970). Assuming that Congress intended that the ordinary DOHSA claim involving a collision of vessels on the high seas would be tried without a jury, because the law of the seas would determine fault and liability, and further assuming that this general rule would not be affected by the existence of diversity jurisdiction, there is still compelling reason for honoring the jury demand. As the Supreme Court has stated in another context:
Rules and concepts such as [seaworthiness, the nature of maintenance and cure, maritime liens, limitation of liability, etc] are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road. The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water . . . . The plane's unexpected descent will almost invariably have been attributable to a cause unrelated to the sea -- be it pilot error, defective design or manufacture of airframe or engine, error of a traffic controller at an airport, or some other cause; and the determination of liability will thus be based on factual and conceptual inquiries unfamiliar to the law of admiralty.