Arbitrary Rulings - DOHSA

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No Punitive Damages for Crash Victims
Wed Mar 6, 1:25 AM ET

By JOANN LOVIGLIO, Associated Press Writer

PHILADELPHIA - A federal judge has dismissed claims for punitive damages for families of victims of the 1998 crash of Swissair Flight 111 off Nova Scotia.

 

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U.S. District Judge James T. Giles issued two rulings on the matter.

In his first opinion, Giles said the crash is covered by the Death on the High Seas Act of 1920, which only allows for the recovery of compensatory damages, or real losses associated with income and medical costs not punitive damages.

The plaintiffs had argued the act does not apply because the crash occurred in Canadian waters. The judge said federal courts have applied the act to cases involving accidents in another country's territorial waters.

Flight 111 was bound from New York to Geneva when it plunged into the Atlantic Ocean on Sept. 2, 1998, killing all 229 people on board. Pilots reported smoke in the cockpit about 53 minutes into the trip, and the electrical systems began failing about 15 minutes later.

Lawsuits were filed on behalf of some 220 crash victims in federal courts nationwide. Giles was assigned to preside over all the cases.

After lawyers for both sides argued their cases in 1999, Giles didn't immediately make his opinion public, a tactic designed to pressure both sides to settle their suits. All but about 20 have been settled.

Besides Swissair, the other defendants include Delta Air Lines, which ticketed many American passengers; McDonnell Douglas, which manufactured the airplane; and Boeing, which owns McDonnell Douglas.

In the second opinion, Giles ruled that SR Technics which was involved in the installation of an in-flight entertainment system the plaintiffs claim caused the Swissair crash qualifies for the same Warsaw Convention protection given to the airlines.

The Warsaw Convention covers compensation for death and injury during air travel.

Blanca I. Rodriguez, liaison counsel for the plaintiffs' committee, said her clients may appeal.

"We do believe there are definite appealable issues" stemming from both decisions regarding the judge's interpretation of the law, she said.

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Tuesday March 5, 4:13 pm Eastern Time

US judge bars punitive damages in Swissair lawsuits

PHILADELPHIA, March 5 (Reuters) - A U.S. judge has barred about 20 unsettled civil lawsuits stemming from the 1998 crash of Swissair Flight 111 from seeking punitive damages against defendants including the Swiss carrier, Delta Air Lines Inc.attorneys said on Tuesday.
 

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In a pair of opinions issued on Feb. 27 and received by lawyers in the case on Tuesday, Chief U.S. District Judge James Giles ruled that 224 civil lawsuits filed in the aftermath of the 1998 air disaster fell under the U.S. Death on the High Seas Act (DOHSA) and a treaty known as the Warsaw Convention.

All but 20 cases already have been settled and will not be affected by the ruling, attorneys for both sides said. Even in some remaining cases, parties have agreed to proceed under DOHSA, but with plaintiffs seeking ``noneconomic damages'' for loss of care, comfort and companionship.

The lawsuits initially sought a combined $16 billion in mainly punitive damages. But in ruling on two defense motions argued in open court nearly 18 months ago, Giles said both the Death on the High Seas Act and the Warsaw treaty excluded punitive damages against Swissair Transport Co. Ltd., Delta, Boeing, SAirGroup, SR Technics AG, Interactive Flight Technologies Inc. and other defendants.

Swissair Flight 111 crashed on Sept. 2, 1998, near Peggy's Cove in Nova Scotia. The MD-11 was traveling from New York's Kennedy airport to Geneva, Switzerland with 215 passengers and 14 crew members on board. Most were American, Canadian, Swiss or French nationals. All were killed.

Giles ruled that the Death on the High Seas Act, and not U.S. civil law, governed the cases because the crash occurred beyond the 12-mile (19-km) limit for territorial waters, even though it occurred in Canadian waters. Plaintiffs had argued that the act governed incidents in international waters.

LITTLE EFFECT SEEN

``This court ... holds that punitive damages are unavailable under the (Warsaw) Convention,'' Giles wrote in one opinion.

A defense lawyer representing four of the six defendants predicted the ruling would have little effect on current litigation because most cases have already been settled.

``The judge was very smart. He held off publishing his opinions so there was pressure on both sides to settle the cases, not knowing which way he was going to roll. And his strategy worked,'' said Desmond Barry, an attorney for Delta, Swissair, SairGroup and SR Technics.

``At the moment, we only have 20 cases out of 224 originally. So, he handled the case very, very well.''

He declined to say how much the defendants have paid out in settlements thus far.

Meanwhile, a chief attorney for the plaintiffs had no immediate comment on Giles' ruling.

And lawsuits later filed on behalf of more than 140 passengers blamed the disaster on a fire allegedly caused by the wiring of an in-flight entertainment system designed to provide passengers with individual movies, video programming, gaming, shopping, and other services.

Swissair and its parent SAirGroup were named as defendants, along with Delta as code-share partner who ticketed most of the U.S. passengers, and Boeing as parent of aircraft manufacturer McDonnell Douglas.

Plaintiffs also sued Interactive Flight Technologies, Ltd., which built the inflight entertainment system; Hollingsead International, which installed it; Santa Barbara Aerospace, which tested it; and SR Technics, which oversaw installation.

DuPont Co. (NYSE:DD - news), manufacturer of the metallized mylar used in the aircraft's insulation blankets that allegedly caused fire to spread rapidly, was named in litigation as a defendant as well.

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For further Readings on DOHSA and the WARSAW Convention,   see this page below (from this link)

  1. JANUARY 2001 - WARSAW CONVENTION
  2. DECEMBER 2000- WARSAW CONVENTION
  3. NOVEMBER 2000 - GENERAL AVIATION REVITALIZATION ACT
  4. OCTOBER 2000 - AIR CARRIER LIABILITY  
  5. SEPTEMBER 2000 - WARSAW CONVENTION 
  6. AUGUST 2000 - WARSAW CONVENTION 
  7. JULY 2000 - AIR CARRIER LIABILITY
  8. JUNE 2000 - WARSAW CONVENTION 
  9. MAY 2000 - WARSAW CONVENTION  
  10. APRIL 2000 - DEATH ON THE HIGH SEAS ACT 
  11. MARCH 2000 - DEATH ON THE HIGH SEAS ACT 
  12. FEBRUARY 2000 - WARSAW CONVENTION
  13. JANUARY 2000 - WARSAW CONVENTION

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C&F ARTICLES

The following articles and presentations also have been produced by Condon & Forsyth. For complimentary copies, please email us.

  1. Insurance Aspects of the New International Passenger Liability Regime, by Rod Margo [Air & Space Law, Vo. XXIV No. 3 (July 1999)].
  2. Insurance Coverage in the Year 2000 by Katherine B. Posner [CPCU Journal, Vol.52, No. 1, Spring 1999].
  3. Y2K Aviation Issues, by Katherine B. Posner and Robert S. Bennett [Air and Space Lawyer, Winter 1999].
  4. Defending Product Liability Claims: The Defense View, by Marshall S. Turner [Air and Space Lawyer, Winter 1999].
  5. Supreme Court to Decide whether Daubert should apply to Non-Scientific" Expert Testimony, by Marshall S. Turner and Mary C. O'Dea [The Alert, Vol. 3, No. 3, September 1998].
  6. The Default Judgment Trap- How to Avoid Surprise Judgments. by Jennifer J. Johnston [The Alert, Vol. 3, No. 3, September 1998].
  7. Brokerage Agreements and the New York Statute of Frauds, by John F. Schutty [The Alert, Vol. 3, No. 3, September 1998].
  8. New Accountant-Client Privilege Lacks Teeth, by David F. Rifkind [The Alert, Vol. 3, No. 3, September 1998].
  9. Avoiding the Subsequent "Disagreement" over the ADR Agreement: Considerations in Drafting Commercial Arbitration Clauses, by Edward G. Petraglia [The Alert, Vol. 3, No. 3, September 1998].
  10. Important Legal Issues Involving the Year 2000 Problem, by Katherine B. Posner and Robert S. Bennett [The Alert, Vol. 3, No. 3, September 1998].
  11. Opening up a U.S. Branch of a Foreign Enterprise: An Overview, by Evelyn D. Sahr and Michelle R. Johnson [The Alert, Vol. 3, No. 3, September 1998].
  12. International Antibribery Measures are Gaining Momentum, by David G. Schryver [The Alert, Vol. 3, No. 3, September 1998].
  13. World Trade Organization's Dispute Settlement Process May Conflict with State, Local and Federal Sanctions Law, by David G. Schryver [The Alert, Vol. 3, No. 3, September 1998].
  14. Employment Law- U.S. Supreme Court Clarifies Employer Liability for Sexual Harassment by Supervisors, by Katherine B. Posner and Karla J. Pinion [The Alert, Vol. 3, No. 3, September 1998].
  15. "New Wrinkles in an Old Treaty Governing Air Carrier Liability," by John F. Schutty, [221 NYLJ 29, Feb. 16, 1999 at 1, col. 1].
  16. "Goods in Customs Still Subject to Warsaw Convention", by Michael J. Holland [Air Cargo News].
  17. Violence in the Skies: The Rights and Liabilities of Air Carriers when Dealing with Disruptive Passengers, by Stephen R. Ginger, [Air and Space Law, June 1998].
  18. Recent Changes in the Warsaw Convention and Their Likely Effect on Airline Liability Claims, by Desmond T. Barry, Jr.
  19. Litigating the Aviation Case from Pretrial to Closing Argument, Desmond T. Barry, Jr., Editor [American Bar Association, 1998].
  20. Update on the IATA Intercarrier Agreement, by Thomas J. Whalen [The Air and Space Lawyer, Vol. 13, No. 2 (1998)].
  21. The Role of Insurance in Aviation Finance Transactions, by Rod D. Margo and Andrew T. Houghton [for inclusion in the Handbook of Airline Finance, to be published by McGraw Hill in 1999].
  22. Family Assistance for Foreign Airlines, by Rod D. Margo [presentation to the Association of Asia Pacific Airlines, May 1998].
  23. Aircraft Leasing: The Airline's Objectives, by Rod D. Margo [21 Air and Space Law 166 (1996)].
  24. The Warsaw Convention: Historical Background and International Efforts to Modernize the Liability Regine for Air Carriers, by Thomas J. Whalen [Uniform Law Review of UNIDROIT, NS-Vol. II, 1997].
  25. Rebirth of the Warsaw Convention: The IATA Intercarrier Agreements, by Thomas J. Whalen [Annals of Air & Space Law, Vol. XXII, pp. 323-334 (1997)].
  26. The Proposed International Convention Governing the Recognition and Enforcement of Security Interests in Mobile Equipment, by Thomas J. Whalen, [1995 Commercial Law Annual, p. 539, Clark Boardman Callaghan (1995)].
  27. U.S. Commission Breathes New Life Into [Airline] Liability, by Thomas J. Whalen, [Air Finance Journal, January 1994].
  28. Foreign Ownership of U.S. Registered Aircraft, by Thomas J. Whalen (with Timothy J. Lynes), [Air & Space Law Journal, Vol. 11, No. 3 (June 1992)].
  29. Counting the Cost of Noise, by Thomas J. Whalen, [Maintenance Supplement to Air Finance Journal (June, 1991)].
  30. Recent Aviation Trends in U.S. Case Law, Are the Courts Upholding the Law or Seeking Equity? By Diane Westwood Wilson [Lawyer-Pilots Bar Association 1998 Winter Meeting].
  31. Montreal Protocol No. 4 Comes Into Effect But Has No Application to Shipments To And From The United States by Michael J. Holland [Air Cargo News].
  32. Montreal Protocol No. 4: What Happens Next? by Thomas J. Whalen.
  33. Pattern Jury Instructions: Work Backward to Evaluate the Merits of Your Adversary's Claims and Your Defenses, by John F. Schutty [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol 7, No. 7, June 1997].
  34. Aircraft Brokerage Pacts and the Fraud Statute, by John F. Schutty [220 New York Law Journal 21, July 30, 1998].
  35. The Engine Lease Contract: Controlling Risks Unique to Aircraft Engines, by Andrew T. Houghton [The Third Aero Engine Leasing & Pooling Conference].
  36. U.S. Foreign Air Carrier Permits, Warsaw and Sovereign Immunity, by Thomas J. Whalen [Lloyd's Aviation Law, Vol. 6, No. 21 (November 1, 1987)].
  37. The Liability Reporter, prepared by Condon & Forsyth (Rod D. Margo) for IATA members [Volume Three, February 2000].
  38. Jewelry Loss Claims May be Prosecuted in Federal Court, by Michael J. Holland [Air Cargo News].
  39. When Multiple Insurance Policies Apply: The Emerging Battle Between Policyholders and Insurers, by Katherine B. Posner.
  40. Acceptance of Liability Limits by Agent Bars Later Case Against Airline, by Michael J. Holland [Air Cargo News].
  41. Recoverability of Pre-Impact Fear Damages in Aircraft Disaster Cases, by Desmond T. Barry, Jr. [Defense Counsel Journal, April 1998].
  42. Special Declarations of Value: Protection Without Payment, by Michael J. Holland.
  43. Non-Employee Cargo Attendants Should Be Ticketed for an Airline to Obtain Limited Liability Under the Warsaw Convention and Montreal Agreement, by Thomas J. Whalen.
  44. Unlimited Liability: The New Ball Game in International Transportation By Air, by Desmond T. Barry, Jr. and Thomas J. Whalen [64 Defense Counsel Journal 381 (July 1997)].
  45. The Manufacturer's Duty to Warn, by Marshall S. Turner [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol. 7, No. 7, June 1997].
  46. EEOC Guidelines on Psychiatric Disabilities: Clarification or Confusion? by Katherine B. Posner [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol. 7, No. 7, June 1997].
  47. The New Kuwait Corrupt Practices Act and Its Effect on Business in Kuwait, by Thomas J. Whalen and Dr. Mohammed A.A. Al-Moqatei [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol. 7, No. 7, June 1997].
  48. Employment References: What Are An Employer's Risks? by Katherine B. Posner [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol. 7, No. 7, June 1997].
  49. Personal Jurisdiction over Manufacturer Denied Under the "Stream of Commerce" Theory, by Andrew T. Houghton, [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol. 7, No. 7, June 1997].
  50. The Helms-Burton Act: More Harm to U.S. and EU Relations, Than to Cuba, by Andrew T. Houghton [THE ALERT, the Newsletter of the Federal Bar Association's Corporate and Association Counsel's Division, Vol. 7, No. 7, June 1997].
  51. A Practical Guide to the Ins and Outs of Multidistrict Litigation, By Desmond T. Barry, Jr., [64 Defense Counsel Journal 58 (January 1997)].
  52. Recent Developments in Aviation Law, By Christopher Carlsen, [Tort and Insurance Law Journal (Winter 1997)].
  53. Aspects of Insurance in Aviation Finance, By Rod D. Margo, [62 Journal of Air Law and Commerce 423 (November-December 1996)].
  54. Liability and Insurance Coverage for Medical Monitoring Awards: Will Policyholder Get Relief?, By Katherine B. Posner and Robert S. Bennett, [7 Environmental Claims Journal 19 (Spring 1995)].
  55. Products Liability Coverage After Park-Ohio: The Pollution Exclusion Rides Again, By Katherine B. Posner and Robert S. Bennett, [5 Environmental Claims Journal 477 (Summer 1993)].
  56. The Self-Analysis Privilege: Obscuring the Truth But Safeguarding Improvement?, By Michael J. Holland, [The Brief (Fall 1995)].
  57. Recoverable Damages in Wrongful Death Actions Governed by the Warsaw Convention, By Stephen J. Fearon, [62 Defense Counsel Journal 367 (July 1995)].
  58. Avoiding Reinsurance Arbitration Clauses, By Katherine B. Posner, [Air and Space Lawyer (Winter 1995)].
  59. Technology in the Courtroom: Preparing for the 21st Century, [New York Law Journal (October 12, 1993)] by Marshall S. Turner, Katherine B. Posner and Robert S. Bennett.
  60. Foreign Corporations: Forum Non Conveniens and Change of Venue, By Desmond T. Barry, Jr., [61 Defense Counsel Journal 543 (October 1994)].
  61. Liability for Commercial Space Ventures, By Frank A. Silane, [The Air and Space Lawyer (Spring 1994)].
  62. Coverage for Punitive Damages: Choice of Law Shell Game, By Katherine B. Posner, [60 Defense Counsel Journal 399 (July 1993)].
  63. Solving Choice of Law Problems in Foreign Sovereign Immunities Act Cases, By Desmond T. Barry, Jr. [Defense Counsel Journal, July 1988]
 

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