July 2001

Alaska Airlines Flight 261 Plaintiffs Prevail on Damage Issue 

In a strong victory for plaintiffs in the Alaska Flight 261 crash litigation, San Francisco Federal District Court Judge Charles Legge has ruled that plaintiffs have the choice of either state or federal maritime law remedies in determining recoverable compensatory damages. The Plaintiffs' Steering Committee chose general maritime law, which the judge agreed to apply. In addition to broad recoverable compensatory damages, general maritime law also allows punitive damages. However, since the accident occurred during an international flight, the Warsaw Convention¹ precludes punitive-damage claims against Alaska Airlines, but not against the remaining defendants.² 

The defendants sought to limit the types of recoverable damages. Alaska Airlines filed motions to (1) dismiss punitive damages, (2) dismiss emotional distress claims, (3) preclude application of general maritime law, and (4) apply the domicile law of each passenger to damage claims. Based on the Warsaw Convention, the first motion was granted. The remaining defendants also brought motions to dismiss the claims for punitive damages, which were denied because of the application of general maritime law.

Since Flight 261 was an international flight, the Warsaw Convention and related instruments and agreements govern the punitive-damage claims against Alaska. Judge Legge dismissed punitive damage claims because the clear weight of authority prohibits those damages under the Warsaw Convention. Three federal circuits have ruled that punitive damages are not recoverable under the Convention,³ and no circuit has ruled otherwise.

Article 17 of the Convention states that the airline "shall be liable for damage sustained in the event of the death or wounding of a passenger…." The language "damage sustained" is recognized by the courts as being compensatory rather than punitive, which would be consistent with most countries' domestic law in 1929 when Warsaw was approved. In addition, courts have recognized that the minutes and notes of the Convention's drafters indicate punitive damages were not considered.

This result is consistent with the newly approved Montreal Convention,⁴ which expressly prohibits punitive damages. Once in force, the Montreal Convention will overhaul the outdated Warsaw regime.

The other defendants' motions for partial summary judgment seeking dismissal of punitive damages were denied. With the application of general maritime law (discussed below), punitive damages are available in survival actions.⁵ It remains to be seen, however, whether the facts will rise to the level of conduct "which manifests reckless or callous disregard for the rights of others,…or gross negligence or actual malice criminal indifference"⁶ that is required to recover punitive damages.

Alaska sought to strike preimpact emotional distress damages based on the Warsaw Convention and a U.S. Supreme Court decision, Eastern Airlines v. Floyd,⁷ which holds that purely emotional distress damages are not recoverable under the Convention. Plaintiffs argued that Floyd was not controlling, because it did not involve any physical injury, and was limited to its facts: loss of engine power, a smooth descending glide toward the ocean, and the aircraft regaining engine power and flying back to the airport. There were no physical injuries or abrupt aircraft movement, but the anticipated ditching at sea caused emotional distress to many passengers.

Judge Legge agreed that Floyd is distinguishable and therefore not controlling. Alaska's motion for judgment on the pleadings was denied without prejudice because the plaintiffs pled physical injuries accompanied by emotional distress. However, the judge recognized that proof of physical injury might require expert witness testimony, in which the Daubert standard would apply.⁸ Judge Legge expects Alaska to raise the issue again in summary judgment after additional discovery.

The judge's concerns about expert opinion stem from evidence submitted by plaintiffs. A mechanical engineer and an aeromedical physician submitted supporting declarations. The engineer, who reviewed the flight data recorder information and other facts, opined that during the last descent the aircraft experienced extreme acceleration and motion forces. The aircraft rapidly pitched nose down, and uncontrollably rolled and yawed as the pitch changed. The aircraft was in a dive, upside down, and spinning out of control. The passengers experienced negative three Gs and lateral (horizontal) G forces.⁹ Unsecured items such as laptop computers, books, backpacks and briefcases were likely thrown violently throughout the passenger compartment, especially during the final descent.

The aeromedical physician opined that the first descent would have psychologically and physiologically desensitized the passengers, and that the second final descent was much more severe. In his opinion, in addition to the obvious emotional trauma, all of the passengers would have sustained physical injury due to the multiple forces on their bodies, including high G forces in lap-belt areas, and from the impact of unsecured items being thrown about the cabin.

Alaska brought two motions regarding the applicable law. The first was a motion for judgment on the pleadings seeking to strike application of maritime law. The second requested application of the damage law of the domicile state of each passenger. In addition, in an effort to dismiss punitive damage claims, the defendants argued that maritime law did not apply, and that either Washington or California law applied, neither of which allow punitive damages under the circumstances.¹⁰ Judge Legge disagreed, and held that general maritime law was applicable.

Alaska argued that the U.S. Supreme Court holding in Executive Jet Aviation v. Cleveland¹¹ precluded application of maritime law. Executive Jet involved a charter flight from Cleveland, Ohio, to Portland, Maine. The aircraft flew into a flock of seagulls immediately after takeoff from an airport located on the shore of Lake Erie (a navigable water). The plane descended, striking a fence and a pickup truck before coming to rest in the lake. The Supreme Court held that the mere fact that the accident occurred on navigable water was not sufficient to confer maritime jurisdiction. The Court held that the following test must be met for admiralty jurisdiction to apply: (1) The wrong occurred on or over navigable waters, and (2) the wrongful conduct must "bear a significant relationship to traditional maritime activity."¹² Since the second element was not met (travel between Cleveland and Portland was not traditionally performed by vessels), and therefore lacked a relationship to traditional maritime activity, the Court held that there was no maritime jurisdiction. In dicta, the Court suggested that other flights over water, including transoceanic flights, would be sufficient for maritime jurisdiction.

Since Flight 261 crashed on navigable waters, the issue before Judge Legge was whether the transportation by air of passengers from Puerto Vallarta to San Francisco had a sufficient maritime nexus to invoke admiralty jurisdiction. In other words, was the flight more similar to a flight between two mainland destinations with an incidental relationship to maritime activity, as in Executive Jet, or was it more like a transoceanic flight traditionally performed by ocean-going vessels?

Defendants argued that since the departure and destination were both on the same continental mainland, Executive Jet was controlling. Defendants cited the land relationship between the two cities. There are 17 major road and highway crossings between the U.S. and Mexico. Nearly four million trucks and 85 million passenger vehicles entered the U.S. from Mexico in 1998. There are a total of 45 border crossings, with estimates of around 278 to 351 million persons legally crossing the border from Mexico to the U.S. in 1998. Defendants also noted the history and significance of rail transportation between the two countries. One distinguishing factor, the defendants argued, is that without aviation, the transportation could have been performed on land. Further, defendants claimed that a significant part of the scheduled flight route was over land, and therefore crashing in the ocean was fortuitous, similar to Executive Jet.

Plaintiffs presented evidence establishing the history and strength of the shipping industry, which was historically a dominant means of transportation between the West Coast of the United States and Puerto Vallarta. Maritime historians submitted declarations which reflected that prior to air travel, Puerto Vallarta was primarily (if not exclusively) reached by ship. It was noted that many shipping lanes run north and south along the West Coast of the U.S. and Mexico, and the location where Flight 261 crashed was in a shipping lane. Further, of the 1,006 miles traveled by Flight 261, more than half (533 miles) were over water. The accident site was also located in the Channel Islands National Marine Sanctuary.

Judge Legge was persuaded by the plaintiffs' position, holding that a string of maritime cases "stand for the proposition that admiralty jurisdiction [exists] if, but for aviation, the journey would have been conducted by sea."¹³ Judge Legge wrote:

In this respect Puerto Vallarta is more like Hawaii than [Maine] — the destination of the Executive Jet aircraft. Traditionally, and but for air travel, passengers primarily traveled to and from Puerto Vallarta by sea. … While there is no disputing the existence of road and rail alternatives to such ship travel, there is little evidence that they are the dominant means of transportation. Executive Jet and its progeny do not preclude admiralty jurisdiction just because the departure and arrival cities are both on the mainland.

The defendants' fallback argument was that even if admiralty jurisdiction applied, Yamaha Motor Corp. v. Calhoun,¹⁴ a 1996 U.S. Supreme Court decision, mandates application of state law to wrongful deaths that occur in state territorial waters. In Yamaha, the parents of a girl who died while jet skiing in the territorial waters of Puerto Rico filed suit in Pennsylvania, invoking Pennsylvania wrongful death and survival statutes. Yamaha brought a motion for partial summary judgment seeking application of federal maritime wrongful death law.¹⁵ In affirming the Court of Appeals for the 3rd Circuit, the Supreme Court held that federal maritime law does not provide the exclusive remedy in cases involving deaths of nonseamen occurring in territorial waters. The Court recognized that general maritime law wrongful-death remedies look to the extension of relief, and not the restriction of it.¹⁶ 

Even though Yamaha allowed application of state law, Judge Legge ruled that the case does not mandate such application. Pursuant to the Morange v. States Marine Line, Inc.¹⁷ decision, "state remedies remain applicable and exist concurrently with the remedies available under maritime law for deaths occurring in territorial seas," Legge wrote.

But the Yamaha case was concerned with expanding remedies, not limiting them as defendants seek to do here. The implication of Yamaha is that plaintiffs may choose a state remedy, but they are also free to choose a federal one if they wish. If admiralty jurisdiction exists, as it does here, Yamaha does not compel the application of state law. Plaintiffs have made their selection of maritime remedies in these motions.

In an apparent effort to encourage settlement, Judge Legge took the next step by suggesting the types of damages that are recoverable under general maritime law. Both wrongful death and survival actions are available. Pecuniary and nonpecuniary damages are recoverable. Pecuniary damages include: loss of past earnings, future loss of earning capacity, loss of services, loss of support, and funeral expenses. Nonpecuniary damages recoverable by the beneficiaries include loss of consortium and loss of society. In addition, damages recoverable in a survival action are predeath pain and suffering, emotional suffering and distress (fear of impending death), and loss of future wages. Last, as discussed above, punitive damages are available against all defendants except Alaska.

With regard to Flight 261's crew members, Judge Legge commented that they are entitled to recover against Alaska under the applicable state workers' compensation law and under general maritime law if allowed under state law. Under Washington law, workers injured in maritime activity can pursue both modes of recovery against their employers.¹⁸ 

Judge Legge ordered that the parties commence discovery, including depositions, which might also encourage settlement. He noted that he will be retiring from the bench on June 30, 2001, and scheduled a status conference for September 7 before the newly assigned judge.

As the dust clears from Judge Legge's decision, so does the result: plaintiffs win round one with the application of general maritime law and its broad recoverable damages, including punitive damages against all defendants, save Alaska. Boeing and McDonnell Douglas have filed a motion for certification for interlocutory appeal (which Alaska supports), but it has not yet been ruled upon.

Seattle attorney Robert F. Hedrick practices aviation law with the Hedrick Law Firm, and represents parties involved in aircraft accidents. His e-mail address is hedrick@air-law.com. He has been reporting to Bar News readers on developments in the Alaska Airlines Flight 261 air-crash litigation.

NOTES

1. Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934). Reprinted in 49 U.S.C. App. § 1502 note.

2. In addition to Alaska Airlines, Alaska Air Group, Boeing and McDonnell Douglas, the other defendants are Peacock Engineering, Trig Aerospace, Nortek, MPDC, Derlan Industries, Equilon Enterprises and Shell Oil Company.

3. In re Korean Airlines Disaster of September 1, 1983, 932 F.2d 1475, 1485-90 (D.C. Cir. 1991), cert. denied 502 U.S. 994 (1991); In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267, 1284 (2d Cir. 1991), cert. denied 502 U.S. 920 (1991); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1483 (11th Cir. 1989), rev'd on other grounds, 499 U.S. 530 (1991).

4. The Montreal Convention was approved on May 28, 1999. It will enter into force on the 60th day following the date of deposit of 30 instruments of ratification and will become effective as between those states that have ratified it. Montreal Convention of 1999, Ch. VII cl.6. There are six official language texts of the Montreal Convention: English, French, Chinese, Russian, Spanish and Arabic.

5. Evich v. Connelly, 819 F.2d 256, 258 (9th Cir. 1987).

6. Id. at 258, 259, quoting Protectus Alpha Navigation Co., Ltd. v. North Pack Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir. 1985) (quotations and citations omitted).

7. 499 U.S. 530 (1991). In order to be admissible under the Daubert standard, the expert testimony must be based upon relevant and reliable scientific theory. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Id. at 588 (quoting F.R.E. Rule 702).

8. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

9. One G is equal to the force acting on an object caused by the gravitational pull of the earth. Two Gs (positive) is twice the earth's gravitational pull (a person would weigh twice as much). Zero G is weightlessness. Negative one G would be similar to hanging from your seat upside down (with seatbelt on) assuming normal earth gravity pull. Negative three Gs (to the points of suspension) would be equivalent to hanging upside down and holding a barbell with your weight on it.

10. There was an issue with regard to the recoverability of punitive damages under California law, which was not resolved by Judge Legge because of his holding that general maritime law applied.

11. 409 U.S. 249 (1972).

12. Id. at 268.

13. Citing Offshore Logistics v. Tallentire, 477 U.S. 201, 209 (1986); Williams v. United States, 711 F.2d 893, 896 (9th Cir. 1983); Roberts v. United States, 498 F.2d 520, 523 (9th Cir. 1974); In re Air Disaster near Honolulu, 792 F. Supp. 1541, 1543 (N.D. Cal. 1990).

14. 516 U.S. 199 (1996).

15. See Morange v. States Marine Lines, Inc., 398 U.S. 375 (1970).

16. Citing Morange, supra. "[I]t better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules." (quotation and citations omitted).

17. Supra at note 15.

18. See RCW 51.12.100; Chan v. Society Expedition, Inc., 39 F.3d 1398, 1402 (9th Cir. 1994) (holding that under Washington law (RCW 51.12.100) a suit under maritime law can be maintained despite acceptance of workers' compensation benefits).

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