Mediation: The Common Sense Solution to Solving the Myriad Choice of Law Issues in Complex Aviation Accident Cases

14 warsaw convention, supra note 7, at art. 28. ment figure on either the plaintiff or defendant, although the court 73 id. process.65 2008] law issues in aviation accident cases 339 canadian air traffic control authorities that swissair flight 111 had ability of the intercarrier agreement,13 nell douglas md-11, hb-iwf, peggy's cove, nova scotia 5 nm sw, 2 sept. 1998 1-3 enacted. as will be seen later, the uncertainty as to the scope and vice div., civ. no. 93-5683, 1994 wl 143144. at *2 (e.d.pa. apr 12 1994). have been awarded in the courts of europe, the parties felt that dohsa was applicable to these claims arising from this accident, 65 see supra note 59. 344 cardozo j. of conflict resolution [vol. 9:333 the court believed that this was im- leged to be susceptible to flammability, chafing, cutting and point of view and the other telling the story of surviving family ing 49 u.s.c. § 40105 (1997) [hereinafter warsaw convention]. 338 cardozo j. of conflict resolution [vol. 9:333 ift had in turn contracted because they wanted a jury to tell them what the loss of their loved [international monetary fund] in 1969 to supplement the existing official reserves of member purposes in the aircraft shell; and (2) that they were the manufac- 454 u.s. 235 (1981). tions in the fifteen cases.62 in the home countries of the decedents, claiming those countries icut law, where wrongful death damages were calculated based on 111 victims."). 66 id. can passengers as well as passengers of french, swiss, spanish, ira- ages. needless to say, that case did not settle at mediation.86 2. the court also allowed ample time for each case to be me- the passenger mix aboard swissair flight 111 had been a rou- counsel when it thought that the parties were simply so far apart district courts the power to dismiss cases to another country when sure would be much less than if unlimited recoverable damages the in-flight entertainment the hearing before chief judge giles in june 2000, counsel for both the court also emphasized to counsel and the parties that it cuniary elements of damages which heretofore had not been 82 id. edge the presence of defense counsel, look him in the eye or shake 5 don ledger, swiss air down: a pilot's view of the crash at peggy's cove defendants," i.e., those companies who participated in the manu- would be insubstantial under unamended dohsa, were under- neys so that the judge got to know the counsel involved very well, settlements the applicability of dohsa, and the non-availability of punitive tions were set in chambers around a large conference room table. cept to the extent that it had liability insurance which may have ages, only those two defendants were involved in the mediation process. court believed that the case was most likely to be settled when the justice had been obtained. in cases involving american passen- earner cases, and single non-dependency cases.63 92 see supra note 59. their right to make certain motions, such as forum non conveniens, dents, dismissed to foreign venues. however, the losing side was miles)37 we did learn throughout the course of mediation that there stallation of the ifen system on the swissair fleet was performed 71 id. faced lawsuits from family members on two counts: (1) that they sate the victims of 9/11 (public affairs 2005). no one was excluded from the presentation. while plaintiffs ini- the value of the life of the decedent, was even more favorable.48 tion experience, but no major aircraft accident litigation experi- procedural rules: court within seven days. these fifteen cases would be the installation of the ifen system.51 the alternative to breaking the logjam of deciding the heavily the foreign passenger cases. while the results obtained in the me- tions, due to its busy schedule, the court did employ other judges the federal aviation administration.27 86 id. 35 zicherman v. korean air lines co., 516 u.s. 217, 226 (1996). united states given swissair's status as a corporation domiciled in reluctant to settle by paying elements of damages which were not solution to solving the myriad arising from the crash in 1998 had been settled by the summer of spite the best efforts of the parties and the court in mediation, the court made a number of procedural rulings which signifi- 27 id. exr/facts/sdr.htm. for instance, if a relative of the deceased was not dependent upon in forward. the court offered the plaintiffs the opportunity to divide ery for damages.38 the wild card, as it is in many cases, was punitive damages: 53 see in re air crash disaster near peggy's cove, 2002 wl 334389, at *2. the court. once the mediation process started, cases settled www.algora.com/31/news/details.html. convention, supra note 7, at art. 25. the new dohsa statute.61 in confidence. this built confidence in the court by the parties and high confidence, which he often expressed to counsel for both 43 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 571, 573. http://www.tsb.gc.ca/en/reports/air/1998/index.asp. in it was somewhat difficult for defense counsel to always be as beyond one marine league (approximately three separately since, under united states jurisprudence,18 standably reluctant to settle. judge giles, realizing that perhaps liability law would apply to various defendants and what the appli- sel during the initial presentationsas to the strengths of their cases, tled was the uncertainty as to the law. the defendants argued that on june 19, 2000, when the parties appeared before the court countries. . . its value is based on a basket of key international currencies." int'l monetary 70 id. recovery than had originally been sought by the plaintiff.79 judge's style was calm. he did not browbeat people, lock doors or pared to accept any sum of money in settlement. some cases, de- who provided the workmen to install the system at swissair's facil- 348 cardozo j. of conflict resolution [vol. 9:333 33 see warsaw convention, supra note 7, at art. 1, 17, & 28; intercarrier agreement, supra the court, once the attorneys knew what the "going rate" was for tion, dealing with jurisdiction, provided that the air carrier could be riably ensues in the aftermath of a plane crash. obviously, a target 64 because only swissair and boeing had agreed to waive liability for compensatory dam- 74 see in re air crash disaster near peggy's cove, nova scotia on sept. 2, 1998, no. mdl washington and california law precluded punitive damages, there did advise as to the uncertainty of outcomes, the need for the court lected cases for settlement efforts through the court.60 guably be asserted against several of the defendants.50 the actual wiring and in- to interpret the "new dohsa" language of care, comfort and punitive damages, was applicable, punitive damage claims could ar- 4 see aviation investigation report, supra note 1. *11 (striking punitive damages based on the warsaw convention). most state wrongful statutes), those proposed amendments to by the intercarrier agreement.33 with the basic case in which a family loses a loved one is heartbreaking, and while the parents who disinherited their adult daughter from sharing in ora of other potential defendants who may have borne some liabil- of non-pecuniary damages (such are frequently recoverable under had manufactured the mylar thermal blankets used for insulation could recover non-pecuniary losses such as loss of care, comfort 36 46 u.s.c. § 761 (1994). fense counsel believed to be the weaker portions of the case.71 non conveniens with respect to the foreign passengers, were hesi- 62 id. and terrible loss. as my partner succinctly phrased it, mediation in legislative proposals to amend dohsa to allow for the recovery dealt with fairly and equitably, there was less reluctance to settle. 405 (1985); olympic airways v. husain, 540 u.s. 644 (2004). 2008] law issues in aviation accident cases 341 from the shore of any state, dohsa governed the recov- warsaw convention, 80 harv. l. rev. 497 (1967). types ­ foreign citizens, american citizens, dependency cases, wage were instead willing to argue that the law of their decedent's domi- in-laws as to the proper allocation of any settlement moneys ob- and with perhaps one-half of the cases, those of the foreign dece- 2003, nearly five years after the crash.4 4. answers to those interrogatories would be served within (3) the carrier's "place of business through which the contract after the matters had been assigned to chief judge james t. defendants' concession that they would not contest liability which did not make it easy for the cases to be settled at mediation. ciaries who could recover under dohsa were quite proscribed. feb. 17, 2003 at 1b, available at http://www.usatoday.com/money/biztravel/2003-02-16-swissair- *1. mediation: the common sense other briefs, pleadings, orders, transcripts, and other court documents relating to this litigation disaster cases, which have complex legal and factual issues, can be article 28 of the warsaw conven- the breaking of the logjam: the order to mediate have a genuine desire to settle their cases, mediation in aviation while there was nothing in the immediate aftermath of the acci- presence of counsel and the court.76 41 the supreme court articulated the doctrine as early as 1947 in gulf oil corp. v. gilbert, 340 cardozo j. of conflict resolution [vol. 9:333 avoiding the jurisdictional bars of the warsaw convention.20 its feelings and views of the case. the court never forced a settle- lomats, business executives, vacationers, retirees and students on thursday, september 2, 1998.2 the role of the ifen defendants was not clearly identified petent defense counsel who can evaluate cases and plaintiffs who which provided only for pecuniary losses, very few of the claims proceed against swissair. many of the swiss and french passen- 90 id. aboard the plane had passenger tickets issued by delta air lines any certain period of time. however, the court was quick to advise tially felt uncomfortable in hearing the "negative" side of their case t. barry, jr., represented swissair in claims arising out of the crash of swissair flight 111 on 75 see supra note 59. 2008] law issues in aviation accident cases 343 aviation accident cases the judge had three, four, and even on occasion, five hours for the presentation of provisions of a treaty of the united states commonly known as the 50 see in re air crash disaster near chicago, ill. on may 25, 1979, 644 f.2d 594, 614­15 (7th actly "who" had done "what" with respect to the ifen system.25 been as experienced or as well versed as other attorneys. this ben- warsaw convention.19 should be dismissed in the courts of the united states and litigated were allowed under the laws of the various decedents' domiciles. at 51 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 572. parties to proceed in that fashion, judge giles made the following in late february 2002 the court granted both of the motion to not identify the particular law which would be applied in determin- nearly 100 cases to the courts of europe on the ground of forum all of the plaintiffs appear.68 gime whereby the carrier agreed to accept responsibility for up to in with their counsel and with defense counsel. the court ex- defendant in the litigation would be swissair, the flag carrier of certain to appeal, whether as of right or by permission of the dis- course not unusual in mass disaster litigation, and in fact surfaced the crash resulted in the death of approximately 115 ameri- particularly defense counsel, who were before the court virtually sides readily admitted that the reason that more cases had not set- apply to sr technics, its agent who performed maintenance ser- of the case: determining the applicable law provided an equally pensatory damages awardable under whatever damage law the 44 see in re air crash disaster near peggy's cove, 2002 wl 334389, at *2. giles in the united states district court for the eastern district of 336 cardozo j. of conflict resolution [vol. 9:333 not operating the flight, had a "code share" agreement with swis- 3 susan leblan, they didn't have a chance, halifax herald limited, mar. 28, 2003, 76 id. carrier agreement9 sideration of the suits of the foreign passengers in the courts of the information provided to defendants by the plaintiffs, defendants brought before it.74 42 see generally 28 u.s.c. § 1407 (2006). technics as a defendant in order to get full relief, the foreign plain- 47 see mcdougal v. garber, 73 n.y.2d 246 (1989). the warsaw convention provided the framework for liability, it did these statutory beneficiaries in- him. the judge then let plaintiffs' attorneys make an opening pres- 54 id. the element of uncertainty benefited all parties, particularly in the important factor is that once the mediation process people who have lost a family member are not ready, even two or for compensatory damages set the stage for defendants to argue note 9. landing by using flashlights, swissair flight 111, an md-11 aircraft, court's ruling that dohsa was applicable.94 counsel must remember that each family has sustained a horrific system aboard the swissair fleet was one of the newest and most plaintiffs were understandably waiting and accurately.78 amount if the airline could not prove that it took "all necessary (2) the "principal place of business" of the carrier; the moral of this story is that with a good strong judge, com- sued in only one of four places: with him. if the parties were close to settling the case, the court available at http://www.tsb.gc.ca/en/reports/air/1998/a98h0003/02sti/18additionalinformation/ additionally, the statutory benefi- 3. the defendants could serve damage interrogatories within common law marriage),81 the court gary stoller, doomed plan's gaming system exposes holes in faa oversight, usa today, another potential defendant in the case was dupont, who connect- 87 id. while swis- defendants persuaded the court that their counsel had full author- could be considered to be the agent of the carrier for purposes of the format established by the court became the rule for all of least two books, one of which dealt with the accident from a pilot's 2008] law issues in aviation accident cases 337 resolved by some process, be it mediation or trial.90 12 under the "all necessary measures" defense, a carrier may exonerate itself from liability if promptly as the mediation process presented the best opportunity 2008] law issues in aviation accident cases 335 the death or bodily injury of a passenger. one was worth. strike all claims for punitive damages and the motion for applica- if all of those motions were successful, defendants' liability expo- the end result a case.73 plaintiffs' counsel to join in the process, their skepticism dissipated ity to act on behalf of their clients, and the court excused defend- logjam by suggesting mediation before the court.59 pute as to liability, defendants strengthened their hand by arguing michael j. holland* spect to all settlements, the word got out so that the attorneys rights (sdrs) into u.s. dollars. "the sdr is an international reserve asset, created by the it proves that it took all reasonable measures to avoid the damage, or that it was impossible for 49 see 42 pa. cons. stat. ann. § 8301 (2007); see also torres v. brooks armored car ser- her alleged common law husband decedent had once visited the family relationships were, to say the least, fractured: there were the intricacies involved in selecting the right parties to sue the system was sold to swissair by interactive flight technologies level of damages recoverable in wrongful death actions in france de- interests.67 and companionship without any showing of financial dependency yet properly recoverable. moreover, since the availability of puni- feb. 27, 2002). defendants did reserve court determined to be applicable.43 facture, design and installation of the in-flight entertainment sys- effect since the 1920, provided only for pecuniary damages as result tled nearly two years after the crash, the court was anxious to move 346 cardozo j. of conflict resolution [vol. 9:333 (iata) intercarrier agreement on passenger liability [hereinafter intercarrier agreement], the your best possible number" with the lawyer explaining his reason- ence, astutely viewed mediation as the way to move the case 23 id. simple: the process worked. out of the 215 passenger cases, all virtually all of however, those for the dohsa amendments allowing recovery of non-pecuniary and replaced it with a liability re- counsel who represented families of new york decedents probably 31 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 572; see also swissair uncertainty in the law was the best catalyst to settlement, broke the 78 see supra note 59. ciles, which in the cases of pennsylvania or connecticut decedents while article 17 of right to recover punitive damages until they at least had a viable the court expected counsel to be candid first to go to mediation. measures," made recovery predictable with respect to about half of burden on the electrical system of the aircraft, had been the convention case, it could not be certain that the same rule would 1995); klos v. polskie linie lotnicze, 133 f.3d 164, 167­68 (2d cir. 1997); swaminathan v. swiss at the outset of the litigation, and there were disparities as to ex- damages based on dohsa); in re air crash disaster near peggy's cove, 2002 wl 334389, at 24 id. dohsa damages, which precluded non-pecuniary losses, and while the plaintiffs would hear from their own coun- stressed that every case had a value and that each case must be with mass disaster litigation. pressed its condolences to the families for their loss and quickly the court also had to deal with several difficult cases where trict court sought pursuant to 28 u.s.c. § 1292(b). such an appeal and the realization by the court that dollars could never compen- liability of the airline if it failed to prove that it took "all necessary 2. the financial information with respect to those fifteen poconos mountains in pennsylvania (a state which recognized fendants boeing and swissair agreed, shortly prior to the first while the avail- the "common law" (a status not recognized under new york law) sr technics court lacked subject matter jurisdiction and the cases could not the passengers on board the flight, article 28 of the warsaw con- the deceased, there could be no recovery. while the family of a passenger who could 55 see, e.g., pls.' mem. of law in resp. and opp'n to the mot. of defs.' to dismiss claims for for the loss.32 accident investigation by the tsb, portended a long and drawn out treal on 28 may 1999, icao doc. no. 9740 (entered into force november 4, 2003), reprinted in the legal conundrum and the possible defendants gers, those lawyers representing families of pennsylvania and con- 1999. if the dohsa was to be the applicable damage law, then 4. the court also pushed for resolution of the case on the day and proving a liability case against them were not limited to facts cracking.30 united states. claimants such as the parents of students and other non-significant for their cases, and the judicial system not being overburdened in the victims compensation fund administered by kenneth fein- entitled to recover, absent a proof of showing of pecuniary dam- ("swiss and boeing . . . have settled all outstanding lawsuits brought by the estates of the flight mation. the court was impressed by reasonableness. the judge re- their estate because of their objection to her alternative lifestyle80 at the outset of the litigation, nearly half the passengers were pro- counsel, the court met with each side separately to assess their po- able for pursuit of claims arising from the crash, the remedies and 1991); in re aircrash disaster near roselawn indiana on oct. 31, 1994, no. 95 c 4593, mdl statute, which allowed for recovery of non-pecuniary damages for 22 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 572. never gave "its" settlement number. it told the parties that it judge's initial question, asked separately to each side, was "what is on file with the author. 52 see mo. ann. stat. § 509.200 (2008); see also peak v. w.t. grant co., 386 s.w. 2d 685, tive damages had not been determined, lawyers representing the ants from participating, with counsel left to represent their tice. the plaintiffs argued that they were not going to give up the diation were settlements probably less than the jury verdict poten- remedy available to them in the form of the amended dohsa gation was commenced, santa barbara aerospace had declared fared better under amended dohsa since new york law does not sides, that counsel would find a way to resolve the matters 100,000 sdrs11 57 id. technologically advanced in the industry, and there was some sus- this case swissair) and the contracting carrier (i.e. delta, the carrier who issued the tickets upon with respect to defense counsel, it relied on them not to take ad- cases were handled personally by chief judge giles. this was ben- the accident spawned at resolution's 2007 symposium, adr in the aftermath: post-disaster strategies. another prime target was boeing, which had taken over mc- donnell douglas corp., the manufacturer of md-11 aircraft.21 lied heavily on counsel as the arbiters of fairness and, particularly of nations, n.y. times, sept. 4, 1998; see also gary stoller, doomed plane's gaming system signed the international air transport association (iata) inter- 2000). and was shown in delta's schedules as a code share flight operated since there was to be no dis- would not disclose to the other side what had been said to the court after the court was able to successfully mediate all the cases plunged into the atlantic ocean some nine miles off the coast of amended to allow for recovery of non-pecuniary damages.56 com/money/biztravel/2003-02-16-swissair-investigation_x.htm. ment discovery or the other familiar litigation tools typically em- defendants' and plaintiffs' counsel were understandably hesitant to thereunder, became a significant stumbling block in the settlement "pass through," meaning that the types of damages that were re- manufacturer of the aircraft, the swissair accident offered a pleth- 94 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 586. 15 id.; see also sopcak v. northern mountain helicopter serv., 52 f.3d 817, 818­19 (9th cir. tiffs looked to sue sr technics in the united states as a way of s.a. de c.v., 13 f. supp. 2d 508 (s.d.n.y. 1998). dohsa, which were introduced following the crash of twa was the parties who actually settle the cases, not the court.87 9 see warsaw convention, supra note 7; see also international air transport association dent which suggested that the aircraft had been defectively de- settlement rejected, cbs news, mar. 12, 1999, available at http://www.cbsnews.com/stories/1999/ 95 new york estate power & trust § 5-4.3. whether dohsa would apply to the other defendants or only the convention for the unification of certain rules for international carriage by air, done at mon- the crew was attempting to prepare the cabin for an emergency mfrs. hanover trust co. v. alitalia airlines, 429 f. supp. 964, 967 (s.d.n.y. 1977), aff'd, 573 courts of the united states.14 urged them both to be reasonable. the process worked. the court who obtained the supplemental type certificate for the ifen sys- another natural target was sr technics, which had formerly the carrier to take such measures. see warsaw convention, supra note 7, at art. 20; see also (dohsa),36 59 note that other than plaintiffs' memorandum of law in response and opposition, all (ift), who had designed the system.26 69 id. 39 id. at 573 & 575. were key signs to look for in determining whether the mediation 61 id. under article 17 of the warsaw bankruptcy, effectively shielding it from any potential liability, ex- as she was the only statutory beneficiary, assuming that dohsa been the maintenance arm of swissair and which was responsible loss of care, comfort and companionship.57 to argue the various motions, only fourteen of the passenger cases convention, swissair was responsible for an "accident" resulting in 79 id. (1) the "domicile of the carrier"; was applicable, none of the siblings of the two decedents would be low recovery for loss of care, comfort and companionship, non-pe- the swissair 111 accident raised thorny legal issues for all that made them feel at home.75 3. the hearings were all conducted informally. the media- tation safety board of canada issuing its final report on march 27, companies.asp?print_view=1. provide for non-pecuniary losses in wrongful death actions.95 on the deceased passenger.46 started, virtually all of the cases settled quickly with the defendants and pleasant demeanor and the parties could quickly identify with discovery contest and a lengthy liability trial, regardless of what settle their cases. plaintiffs were unwilling to settle for purely separate lawsuit against delta air lines based upon the allegations pennsylvania law, if applicable, provided separate causes of action her life."). and 14 crewmembers abroad the ill-fated flight.1 for maintaining the swissair fleet in airworthy condition.17 sair whereby swissair flight 111 also bore a delta flight number by air, oct. 12, 1929, 49 stat. 3000, t.s. no. 876, 137 l.n.t.s. 11 (1934), reprinted in note follow- obviously, what plaintiffs' , which waived the contentious limit on liability while their home fora of switzerland and france were likely avail- been available to provide coverage for the company's activities.29 delay the case.77 tors) getting more money on similar cases. while the mediations members of passengers lost in the crash of swissair 111.5 diated and never pressed the parties to present their case within vided for roundtrip transportation from france or switzerland to warsaw convention.7 tained during the mediation process.82 another important legal issue, which may have precluded con- 46 id. september 2, 1998. this article is written in connection with the cardozo journal of conflict 1175 (d.c. cir. 1991); kapar v. kuwait airways corp., 845 f.2d 1100, 1104 (d.c. cir. 1988); while there was initially some reluctance on the part of wife who claimed that she was entitled to recover because she and 09/08/world/main61734.shtml?source=search_story. ten days. 89 id. declared an emergency, that electric power had been lost and that there were, of course, several embarrassing mo- http://www.iasa.com.au/folders/sr111/gerretyesq.html. families in single non-dependency cases, where the economic losses the choice of law issues eventually settled without a single damage trial.91 on counsel to prepare the cases well and to give him accurate infor- that there was no need for liability discovery, depositions, docu- from defense counsel, the court believed, correctly, that it was wise urged the parties to keep on negotiating. if, however, the parties march 2000, during that briefing period, dohsa had been 80 id. (transp. safety bd. of can. 2003) [hereinafter aviation investigation report], available at the death of a passenger aboard the aircraft.34 1070, 1997 wl 572898, at *2 (n.d. ill. sept. 10, 1997); waxman v. c.i.s. mexicana de aviacion, air carrier to meet in aviation accident litigation.12 some fifty of the passengers the mediation, the cases would be settled within the parameters of with no possibility of a settlement, it so advised the parties, but air carrier. moreover, at that time, dohsa, which had been in commonly join the aircraft manufacturer as a defendant in major * partner, condon & forsyth llp, new york city. mr. holland and his partner desmond refuse to let parties use the facilities. his main interest was in has been made"; or , cluded parents, children and spouses. however, as of the summer 5. the key to the mediation was preparation. the judge relied 20 see in re air crash disaster near peggy's cove, 2002 wl 334389, at *6­9. 2008] law issues in aviation accident cases 345 (nimbus publishing 2000); stephen kimber, flight 111 the tragedy of the swissair ters of mcdonnell douglas at the time the aircraft was manufac- cident investigation history in canadian history, with the transpor- damages, in order to shape the scope of the litigation.54 2008] law issues in aviation accident cases 349 pennsylvania by the judicial panel on multidistrict litigation,42 that the claims of plaintiffs who represented foreign decedents every day. the cases were, for the most part, prepared very well 91 see in re air crash disaster, mdl no. 1269 near peggy's cove, 2004 wl 2486263, at *2 cases would be provided to defendants immediately. and settlement demands to the court in advance of the there originating cause of the fire that had brought down swissair flight 342 cardozo j. of conflict resolution [vol. 9:333 tended briefing period.58 the tragic accident, the worst in for both sides to settle the cases. 25 see in re air crash disaster near peggy's cove, 2002 wl 334389, at *6­7. 58 see pls.' mem. of law in resp. and opp'n, 2000 wl 34015859. what the defendants perceived to be the weaknesses of the plain- the attorneys quickly recognized the court's ability to keep private make their own presentation, talking about the deceased in the quickly. lawyers wanted to know what the cases were settling for, 13 warsaw convention, supra note 7; intercarrier agreement, supra note 9. ments when the amounts claimed were in a foreign currency, not 85 see supra note 59. 30 see id. at 572­73; see also in re air crash disaster near peggy's cove, 2002 wl 334389, at 81 id. 67 id. bogged down in congressional committees and had not yet been 32 this issue has now been rectified by article 41 of the montreal convention, official title: signed or manufactured by mcdonnell douglas/boeing, plantiffs therefore, 28 id. and while there was a confidentiality order entered in each case by assuming that the law of a state, and not dohsa, which precluded compensation under the laws of their home countries.44 tial in the united states and more than the amounts that would by hollingsead international, inc., a california based company tant to pay damages based on proposed amendments to dohsa, the case in a foreign forum.41 being out of the litigation, plaintiffs getting fair settlement value turer of kapton wiring used in the aircraft, which wiring was al- pfaff, europe: aerospace competition with america is growing, aug 2, 2000, available at http:// were hopelessly apart, the judge so advised the parties.89 and it was unclear as to whether the decedents' families could file a 6 n. r. kleinfield, supra note 2. these legal and factual contentions, plus the specter of a long tured, may have permitted a punitive damage claim.52 48 see conn. gen. statutes § 52-555; see also feldman v. allegheny airlines, inc., 524 f.2d were fortunately, by that time a great majority of the the "private interest" and "public interest" facts favor resolution of through their counsel.69 child who had been disinherited by her parents under their will.85 which the passengers were traveling at the time of the flight) bear responsibility in the event of hibited from suing swissair in the courts of the untied states. the court would allow ten business days to conduct media- may have provided much more generous recoveries, was applica- ciaries, who were already allowed to recover pecuniary losses, picion that the wiring for the ifen system, which placed a heavy 334 cardozo j. of conflict resolution [vol. 9:333 1995, swissair, together with numerous other world airlines, had 34 see warsaw convention, supra note 7, art. 17; see also air france v. saks, 470 u.s. 392, 1269, 99-5998, 2004 wl 2486263, at *2 (e.d. pa. nov. 2, 2004) ("swiss and boeing . . . have s. treaty doc. 106-45, 1999 wl 33292734 (treaty) provides that both the operating carrier (in 111.24 offers.64 hands, it was very unlikely that the case was going to settle. some damages). 18 in re air disaster at lockerbie, scotland on dec. 21, 1988, 776 f. supp. 710 (e.d.n.y. smith v. can. pacific airways, ltd., 452 f.2d 798, 802 (2d cir. 1971). chief judge giles possesses a very calm that further negotiations would not be productive. it allowed two, the united states and return. those cases were barred in the keeping the parties flexible enough to try to settle the cases. the cable damage law was ultimately determined to be. coverable would be subject to either state law or national law.35 gers' tickets had been issued in france or switzerland and had pro- in addition to those two obvious targets, the operator and and unlimited liability for sums in excess of that three years after the death of a loved one in a aviation accident, to would be successful. if a family member refused to even acknowl- exposes holes in faa oversight, usa today, feb. 16, 2003, available at http://www.usatoday. had been settled, eight european cases and six american cases. in tiffs' cases.70 briefed motions would leave one side vanquished, one victorious, receive very small damage awards. scheduled conference in the case, not to contest liability for com- had the most significant interest in awarding the victims' families curred because of the uncertainty surrounding dohsa. least another year. since only a handful of the cases had been set- or magistrate judges to assist. however, the vast majority of the 45 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 573. fund, factsheet: special drawing rights (sdrs) (2006), http://www.imf.org/external/np/ 1. the court ordered that all parties appear at the mediation.66 to further complicate matters, by the time the liti- acted into law, and until such amendments were signed into law, ble. new york law was favorable to the plaintiffs since pre-impact the plaintiffs themselves hear directly from defense counsel as to 40 in re air crash off long island, new york on july 17, 1996, 209 f.3d 200, 203 (2d cir. ity in zurich.28 ble reputation for safety and service, into bankruptcy three years in order for mediation cases to break the log jam which had oc- sue swissair in the united states courts did not need to name sr simply could not be settled at mediation because some plaintiffs decisions. ing the elements of recoverable damages. the supreme court had tem, a pre-requisite for installing the system on the aircraft, from pleasant, as difficult a series of cases as these were. while every fendants, raising the flag of dohsa and the specter of dismissing flight fire leading to collision with water swiss air transport limited, mcdon- were not published and are not available on any electronic database. all of these documents are while the briefs submitted by both sides were exhaustive, the so. 2d 387 (fla. 3d dca 1996); wyler v. korean air lines co., 928 f. 2d 1167 (d.c. cir. 1991). along with the unlimited investigation_x.htm. these included the so-called "ifen 333 received under pennsylvania and connecticut law, given the peggy's cove, nova scotia on sept. 2, 1998, no. mdl 1269, 2002 wl 334389, at *6­9 (e.d. pa. 63 id. after approximately nine months, all of the motions were fully disturbing myriad of possibilities. what law would govern liability? 17 see in re air crash disaster near peggy's cove, nova scotia on sept. 2, 1998, 210 f. what was the result of the mediations process? the answer is tem aboard the swissair aircraft.23 it was questionable under the facts of this case 2 see n. r. kleinfield, the crash of flight 111: the victims; list of 229 was a kaleidoscope ity for the accident.22 the court believed it important that the plaintiffs learn what de- certain type of cases, cases settled.92 treaty of the united states, had a long and tortured history.8 21 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 572; see also william choice of law issues in complex cantly contributed to the ultimate success of the mediation previously held that article 17 of the warsaw convention created a 72 id. 60 id. experienced defense counsel in aviation cases have "heard it all," the cases forward. chief judge giles, who had multidistrict litiga- the ensuing mediations. the court would first invite the plaintiffs portant to avoid the plaintiffs receiving "filtered" information briefed and ready for submission to the court in june of 2000.55 29 anna wilde mattheews, faa reviews its oversight of adjustments, wall st. j. sept. 23, knew the settlement value of certain types of cases. once attor- switzerland, who would be responsible to the passengers under the no cases could really settle before dohsa had been amended, ing behind his position.88 switzerland with its principal place of business there.16 these disagreements are of the court did a magnificent while boeing was confident that measures" to avoid the loss, an almost impossible burden for any 10 this had been set at $75,000 in the absence of proof of "willful misconduct." warsaw the judge also believed it important that 38 id. at 571 & 586. six minutes after swissair first officer stefan loew advised sair could be confident that it did not face punitive damages aviation wrongful death cases is a job for "grown-ups."84 where none of those four places was in the united states, the necticut decedents probably received less than they would have later.3 19 see warsaw convention, supra note 7, at art. 23; see also in re air crash disaster near sate them for the loss of a loved one. 8 see generally andreas f. lowenfeld & allan i. mendelsohn, the united states and the 84 reference made by desmond t. barry, jr., esq. 11 approximately u.s. $140,000 depending on the conversion rate of the special drawing for international air accidents,10 companionship and the possibility of appeals which would further application of dohsa, and the measure of damages recoverable crash, (seal books 1999). of 1999, the proposed dohsa amendments had not yet been en- for the family to hear everything about their case, the good and the exposure since no punitive damages were allowed in a warsaw problem was that very few cases had been settled during the ex- berg after the september 11th disaster.83 successful. those settlements came after the mediation process was started by the warsaw convention, an international which had not yet been enacted. moreover, the statutory benefi- job conveying its condolences to the families, sorrow for their loss, would be in a position to review the cases and proceed to media- court also directed that plaintiffs' counsel send damage brochures because for plaintiffs' counsel to do so would be virtual malprac- available at http://www.iata.org/nr/contentconnector/cs2000/siteinterface/sites/legal/file/iia.pdf. invoking both jurisdictional and limit of liability defenses under the 37 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 579 n.8. entation, and if the family member so desired, they could also swiss aviation history, plunged the airline, which had an impecca- in one case, the only statutory beneficiary under dohsa was a eficial to all parties as the court developed a rapport with the attor- would be predicated on the parties agreeing that, for purposes of cases had settled and no appeal was taken from the judge's supp. 2d 570, 572­73 & n.3 (e.d. pa. 2002); see also sr 111 supporting technical information, tion of dohsa.93 tine one for the new york to geneva route: a combination of dip- lawyers wish to avoid is other families (and the lawyers' competi- the judge the this case, since the crash of swissair flight 111 occurred on the high was an argument that the law of missouri, which was the headquar- conscious pain and suffering claims could be recovered.47 settled all outstanding lawsuits brought by the estates of the flight 111 victims."). efited the families and assisted in the fair administration of justice. after securing the agreement of all 83 kenneth feinberg, what is life worth: the unprecedented effort to compen- u.s. dollars, which led defense counsel to argue for a much smaller jointly by swissair and delta.31 bad. after initial presentations by plaintiffs' counsel and defense 1999, at b4. ift's stock has since been delisted and the company is in dire financial straits. mediations.72 was, however, an issue as to whether sr technics could be sued damages to wind their way through congress, and defendants were 88 id. f.2d 1292 (2d cir. 1977). with santa barbara aerospace (sba), a california corporation, air transp. co., 962 f.2d 387, 389 (5th cir. 1992); wyler v. korean air lines co., 928 f.2d 1167, wage earners, such as retirees who had perished in the crash, would felt that no money could replace their mother, child or husband, or that, as a code share partner of swissair, delta bore some liability could potentially be involved in the complex litigation which inva- 56 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 573. some cases presented unusual legal issues, discussed above, neys and their clients became convinced that all cases were being vention loomed as an important impediment to recovery in the nian, canadian, and a smattering of other nationalities.6 the accident itself was the subject of the most intensive ac- the court did insist that, absent unusual circumstances, 7 convention for the unification of certain rules relating to international transportation because of the damage conundrum, and the issue of whether 384, 386 (2d cir. 1975) ("connecticut law measures . . . recovery by the loss to the decedent of ten days. parties were in front of the court. at the inception of the media- and the obvious family strains between peggy's cove, nova scotia, resulting in the death of 215 passengers liability was governed under the warsaw convention, as modified (4) the "place of destination."15 ployed in a mass aviation disaster case.53 cir. 1981) punitive damages based on the death on the high seas act, 2000 wl 34015859 (e.d. pa. jan. up the fifteen cases, which would first be mediated among various and switzerland were far more restrictive than in the courts of the york which had departed kennedy airport shortly after 7:00 p.m. seas, defined at that time in the death on the high seas act while there were tion armed with the facts necessary to make reasonable settlement would be recoverable? swissair was a swiss corporation and its vantage of attorneys for several of the families who may not have of cases. this ultimately resulted in the court taking an active role one final potential defendant was delta air lines, who while flight 800 off the coast of long island on july 17, 1996,40 16 see warsaw convention, supra note 7, at art. 28; see also aviateca s.a. v. friedman, 678 de- 2008] law issues in aviation accident cases 347 77 id.; see also in re air crash disaster near peggy's cove, 210 f. supp. 2d at 573. united states was the forum non conveniens doctrine, which gives were confidential, and the court directed confidentiality with re- obviously, aircraft litigation. 330 u.s. 501 (1947), and re-enforced it a quarter of a century ago in piper aircraft co. v. reyno, asked both parties whether they would agree to submit certain se- 1. plaintiffs would submit fifteen cases for review by the would realistically prolong the disposition of any of the cases for at for both conscious pain and suffering and wrongful death.49 68 id. a movement was afoot in congress to amend dohsa to al- sitions. if the court thought that the parties were hopelessly apart vices on the aircraft and who, plaintiffs argued, played a role in the come to grip with the death of their loved ones, and are not pre- of the death of a decedent on the high seas.39 28, 2000). 93 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 586 (striking punitive of the mediation. there were to be no delays or "call backs." the what law would govern damages? what elements of damages heading to geneva, switzerland on the overnight flight from new 690 (mo. app. 1964) (following the majority rule, missouri permits recovery of punitive 26 see in re air crash disaster near peggy's cove, 210 f. supp. 2d at 572. 1 aviation investigation report a98h0003, aviation investigation report in- permitted in dohsa cases.45