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New Jersey Law Journal
LAST CASE AGAINST KOREAN AIR QUESTIONS IF FLIGHT CRASHED IN INTERNATIONAL WATERS
Mary P. Gallagher
More than 17 years after the downing of Korean Air Lines Flight 007 by a Soviet missile, a Hoboken attorney remains the last to seek legal recompense for one of the 269 victims. It has been a long roller-coaster ride for Gerald Baker First, he won $2 million for pain and suffering and $135,000 for lost support and services for his client. Then, the U.S. Supreme Court ruled that international plane crashes are governed by the Death on the High Seas Act, which limits recovery to pecuniary damages, and the $2 million award was eliminated. Now, Baker's trying a new tack, challenging the assumption that the flight came down more than 3 miles off the Soviet coast. If he can show that the plane crashed within Soviet territory, he'll get a chance to prove that Hans Ephraimson-Abt of Ridgewood is entitled to millions of dollars for the pain and suffering of his daughter, Alice, as she fell to her death. The case, Ephraimson-Abt v. Korean Air Lines Inc., was filed in federal court in the Eastern District of New York on Sept. 6, 1983, five days after the flight came down. The only other pending KAL case was dismissed last week in the District of Columbia on jurisdictional grounds, according to KAL attorney Andrew Harakas of New York's Biedermann, Hoenig, Massamillo & Ruff. In the years since the Sept. 1 crash, Baker, of Hoboken's Baker Pedersen & Robbins, has settled three Flight 007 claims, the most recent of which, for $100,000, was finalized on March 2 in the Eastern District. That case was brought by survivors of 4-year old Celita Chuapoco of Ridgefield, whose parents also died in the crash. Baker's other two cases settled in February 1997, with $3 million going to the estate of 40-year-old Kathy Speir of Secaucus and $1.25 million to the estate of 51-year-old James Beirn of Piscataway. Alice Ephraimson-Abt, 23, of Saddle River, was traveling on Flight 007 to China for post-graduate study when the plane, headed from New York to Seoul after a refueling stop in Anchorage, was shot down for straying off course and into Soviet airspace. Questions over how the Boeing 747 jumbo jet came to deviate by as much as hundreds of miles from its assigned course and whether it was on a spy mission have never been resolved. The first major step in the litigation was an order by the Judicial Panel on Multidistrict Litigation consolidating more than 100 actions against KAL around the country for trial on the common issue of liability in the U.S. District Court for the District of Columbia. In re Korean Air Lines Disaster of September 1, 1983, 575 F. Supp. 342 (J.P.M.L. 1983). In the subsequent liability trial, a jury awarded $50 million in punitive damages, finding that willful misconduct on the part of KAL abrogated the 1929 Warsaw Convention's $75,000 limit on liability. In re Korean Air Lines Disaster of September 1, 1983, 704 F. Supp. 1135 (D.D.C. 1988). The plaintiffs argued that the flight crew erred in programming the navigational system before departing Anchorage, realized the error before or shortly after leaving Anchorage and opted to continue despite the known risk that they might stray into Soviet airspace. The Court of Appeals for the District of Columbia upheld the finding of willful misconduct but struck the $50 million award, holding that punitive damages were not available under the Warsaw Convention. In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991) (KAL I). The multidistrict panel then remanded the individual actions to their courts of origin for proceedings on compensatory damages. For Baker's client, Ephraimson-Abt, that led to an award by Judge Thomas Platt in the Eastern District of $2 million for pain and suffering and $135,000 for lost support and services. The pain and suffering damages were based on a finding that the plane plummeted for 8-1/2 minutes before entering the Japanese Sea. The victory was short-lived. In June 1998, the U.S. Supreme Court unanimously held in Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998), that the Death on the High Seas Act (DOHSA), 46 U.S.C. App. 761 et seq., applies to plane crashes in international waters. Under DOHSA, plaintiffs are not entitled to jury trials and survivors can only recover pecuniary damages, severely limiting recovery for the loss of children and older, retired decedents. Based on Dooley, Platt eliminated Ephraimson-Abt's pain and suffering damages in 1998, leaving Baker with only the $135,000 in pecuniary damages. Baker opposed the elimination of the nonpecuniary damages, arguing that the DOHSA limitation on liability did not apply. He contended that KAL Flight 007 was attacked while flying over Soviet land or, alternatively, that the plane crashed in Soviet territorial waters and, based on either of these grounds, DOHSA did not govern. Instead, he argued that New Jersey law applied as the law of the domicile and that Ephraimson-Abt was entitled to nonpecuniary damages under Green v. Bittner, 85 N.J. 1 (1990). In support, Baker introduced an affidavit from retired Coast Guard Rear Admiral John Linnon, who commanded the cutter Munro during its 60-day search for the KAL 007 wreckage and was repeatedly chased away by the Soviet Navy when he ventured too close to territorial waters. Linnon's affidavit stated his opinion that the Flight 007 wreckage lay within Soviet territorial waters. KAL attorney Harakas countered that Ephraimson-Abt had waived the argument that Flight 007 did not crash on the high seas by admitting to the contrary in the pretrial order, but that even without such a waiver, the argument was wrong on the facts. According to Harakas, a 1993 report by the International Civil Aviation Organization concluded that the plane crashed in international waters. This was consistent with data from the black box, cockpit voice recorder and secret intelligence reports on the crash released by the Soviet Union in 1992. But Baker says the civil aviation organization never made a factual finding about where the crash occurred and "everyone assumed it was on the high seas." In October 1998, Platt sided with Harakas and refused to allow amendment of the pre-trial order, a decision affirmed by the Second Circuit in a summary order last Oct. 7. A petition for rehearing en banc filed by Baker filed later that month is pending. If rehearing is denied, Baker plans to file a petition for certiorari. If the motion is granted, Baker says there will be another trial in district court unless the original verdict is reinstated. By his calculation, the verdict is now worth about $6.5 million with prejudgment interest. Meanwhile, DOHSA is expected to be amended soon to allow families to sue for the nonpecuniary "loss of care, comfort and companionship." A measure providing for such relief passed the Senate last Wednesday. It also provides that families of victims in crashes that occur within 12 miles of shore can pursue their claims under state law. The amendment, retroactive to July 16, 1996, the day before the TWA Flight 800 crash off Long Island, will not help flight 007 claimants. |
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