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March 31, 1992


Robinson, Jr.

The opinion of the court was delivered by: AUBREY E. ROBINSON, JR.

I. Background

 On September 1, 1983 Korean Air Lines Flight 007, while en route from Anchorage, Alaska to Seoul, South Korea, strayed into Soviet airspace. Soviet military aircraft shot down flight 007, and 269 passengers fell to their death as the plane crashed into the Sea of Japan. All actions arising out of this accident were transferred by the Judicial Panel on Multidistrict Litigation to this Court for consolidated proceedings. As a result of previous proceedings, KAL is the sole remaining defendant.

 On May 20, 1988 KAL moved to strike the jury demands in plaintiffs' complaints arguing that the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761 et seq. governed all the actions. According to the defendant, DOHSA cases may only be tried in admiralty and therefore the plaintiffs were not entitled to a jury trial. This Court denied defendant's motion in In re Korean Air Lines Disaster, 704 F. Supp. 1135 (D.D.C. 1988). KAL then moved for certification of the issue for interlocutory appeal and the motion was denied. The liability issue was presented to a jury which found against defendant. Defendant subsequently appealed the decision but did not argue that the court erred in allowing the case to be tried to a jury. The Court of Appeals affirmed the jury's findings of causation and willful misconduct but reversed the jury's punitive damage award. In re Korean Air Lines Disaster, 289 U.S. App. D.C. 391, 932 F.2d 1475 (D.C. Cir. 1991). The Supreme Court subsequently denied certiorari. Dooley v. Korean Air Lines Co., 116 L. Ed. 2d 638, 112 S. Ct. 616 (1991).

 After the liability issue was resolved, all cases were transferred back to the jurisdiction in which they were originally filed to resolve the individual damages issue. This Court retained jurisdiction over 24 cases for which a damage determination must be made.

 Defendant has, once again, filed a Motion to Strike Plaintiffs' Jury Demand as to the Determination of Damages. Plaintiff has, once again, responded thereto. Therefore, the Court must, once again, determine whether a jury trial is the appropriate method of resolving the damage issues in the 24 remaining cases.

 II. Issues Presented

 The primary issue presented for the Court's consideration is whether plaintiffs are entitled to a jury at the damages phase of this case. In answering that question, three secondary issues must be addressed. First, does DOHSA provide the exclusive remedy in this case. Second, if the wrongful death claim may be based on the Warsaw Treaty, *fn1" what is the "law of the court" pursuant to Warsaw Treaty Article 28(2). Third, what effect do plaintiffs' jury triable survivors claims have upon, what defendants argue are non-jury triable, Warsaw wrongful death claims.

 III. Is DOHSA an Exclusive Remedy?

 Whether plaintiffs are entitled to a jury trial on their wrongful death claims depends in part on whether DOHSA's wrongful death action is an exclusive remedy or whether plaintiffs may also base their claim on the Warsaw Convention. Defendant argues that, if the location of the accident satisfies the requirements of DOHSA, then DOHSA provides the exclusive remedy, and as an admiralty case, no jury trial is allowed. In contrast, plaintiffs argue that the court has jurisdiction based on 28 U.S.C. §§ 1331 (federal question, i.e. Warsaw Convention) and 1332 (diversity) as well as jurisdiction based on DOHSA. *fn2" Plaintiffs request a jury trial on the entire case, contending that since the jury issues and the admiralty issues arose out of the same accident, the entire case may be tried to the jury. See Part VI, infra.

 Defendant relies primarily on two Supreme Court cases in support of its argument that DOHSA is the sole remedy for wrongful death actions occurring on the high seas and, thus, as an admiralty action, no jury trial is available. See Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010 (1978) (Court refused to supplement DOHSA action with claim for loss of society benefits) and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 91 L. Ed. 2d 174, 106 S. Ct. 2485 (1986) (DOHSA preempted state wrongful death claim). KAL argues that the preemption created by these cases, combined with the fact that admiralty claims are not usually tried to a jury, means that DOHSA claims may not be tried to a jury.

 In the prior decision in this case, however, this Court stated that "in essence, these cases hold that DOHSA, when it applies, preempts inconsistent federal law (Higginbotham) and inconsistent state law (Offshore Logistics). Neither case, however, discussed the availability of jury trials in cases covered by DOHSA . . . Because these cases do not have the preemptive force which they are asked to bear, the Court disagrees." 704 F. Supp. at 1152.

 Despite the Court's earlier decision that "it cannot be said that jury trials are repugnant to the DOHSA scheme, at least where there are concurrent claims triable by the jury joined with the DOHSA claim," KAL continues to argue to the contrary. Id.

 The Court's opinion of the interpretation of Higginbotham and Offshore Logistics is unchanged. Congress intended DOHSA actions to be tried to a jury whenever jury trials were available under admiralty law. 704 F. Supp. at 1152 , citing 59 Cong. Rec. 4485 (1920) (remarks of Rep. Volstead). See also, infra at Part VI, Moragne v. States ...

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