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6 Air & Space Law. 1 (1991-1992)

handle is hein.journals/airspaclaw6 and id is 1 raw text is: Forum on Air and Spec. Low American Bar AsocIatIon THE AIR AND SPACE Volume 6, Number I Sun Punitive Damages in Aviation Tort Litigation BY GREGORY W. BUHLER* Xhile one lawyer's bless- ing may be another's curse, the role played by claims for pu- nitive damages in aviation tort litigation has been greatly overstated. I believe that such claims-albeit rarely success- ful-(a) are not necessary in light of a complex safety reg- ulatory regime applicable to carriers; (b) are certainly not available in cases governed by the Warsaw Convention; and (c) in any aviation tort case, serve mainly to protract lit- igation and make it more costly for all parties concerned. In fifteen years of receiving and reviewing literally thousands of airline tort suits, I have been amazed by the ingenuity of plaintiffs' counsel in seeking punitive damages in a wide variety of complaints not limited to injury or death but extending to mundane baggage losses, downgrading, denied boarding, smoking complaints, and just about everything that can go wrong on an airplane or at an airport. Air carriers, of course, are statutorily bound to op- erate with the highest degree of safety, and, knowing the high caliber of carrier personnel-who themselves, along with their families, also fly their airline-I believe that the industry's commitment to safety is a strong one. Putting aside motives of personal safety, carriers know that deviation from their mandate can result in onerous penalties, certificate revocation, and public concern over the safety of their operations. There are few, if any, other industries whose very existence depends so directly upon the safety of its operations, as there are few other in- dustries under the constant scrutiny of its regulators. Be- cause inattention to safety is so detrimental to a carrier, there is no discernable public policy of punishment in almost all aviation tort cases. *Mr. Buhler is currently Pan American World Airways, Inc. Vice President-legal, and is responsible for litigation affecting Pan Am, including major accident litigation and related proceedings. 1. Cases Governed by the Warsaw Convention While awards for punitive dam3ges have passed constitutional muster (at least in Alabama cases) in the recent Supreme Court decision Pacific Mutual Life Insur- ance Co. v. Haslip, - U.S. , 59 U.S.L.W. 4157 (Mar. 4, 1991), the availability of punitive damage claims in aviation tort cases is extremely rare, and with respect to cases to which the Warsaw Convention ap- plies, allowed in only three district court cases: Hill v. United Airlines, 550 F. Supp. 1048 (D. Kan. 1982); In re Korean Air Lines Disaster of Sept. 1, 1983, 704 F. Supp. 1135 (D.D.C. 1989), vacated 932 F. 2d 1475 (D.C. Cir. 1991); and In re Hijacking of Pan American World Airways, Inc. Aircraft at Karachi International Airport, Pakistan on Sept. 5, 1986, 729 F. Supp. 17 (S.D.N.Y. 1990), reversed 928 F. 2d 1267, (2d Cir. 1991). Hill has been criticized and provides merely a diversion from the number of cases which have rejected claims for punitive damages; Kara- chi was reversed in the consolidated appeal with the Lockerbie case, and the KAL punitive award was vacated. At present, the definitive cases on the recovery of punitive damages under the Warsaw Convention are the Eleventh Circuit case of Floyd v. Eastern Airlines, Inc., 872 F. 2d 1462 (11 th Cir. 1989, reversed on other grounds, - U.S. - , U.S.L.W. - ) (available on Wes- tlaw-1991 VL 54896 (Apr. 17, 1991),' the Second Cir- cuit's March 22 opinion Il re: Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F. 2d 1267, (2d Cir. 1991) and the D.C. Circuit KAL decision. All three circuit court opinions unequivocally hold that punitive dam- ages are not available under the Warsaw Convention. The decision in Lockerbie provides an extensive analysis of the history of the Warsaw Convention, i.e., the shared expectations of the parties to it, and the construction and interpretation of the Convention by courts over the years. The Second Circuit opinion concludes that the Convention preempts state law causes of action for pu- nitive damages under the Convention itself. (continued on page 9) LAWYER amer 1991

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