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1 Air & Space Law. 1 (1983-1984)

handle is hein.journals/airspaclaw1 and id is 1 raw text is: um nittee n Space lw kmerican Bar Association Volume 1, Number 1 'HE AIR AND SPACE LAWYER Fall 1983 Korean Air Lines Flight 007-269 Dead What Are the Rights of the Passengers? -Against Whom? BY JOHN I. KENNELLY* The Known Facts Despite the inability to recover the cockpit voice recorder and the flight data recorder, some facts are prov- able. Koreai Air Lines operated a Boeing 747-200 jet air- craft that was being operated as KAL Fligbt 007. The airline dispatched Flight 007 from its initial departure place at JFK Internatiorlal Airport in New York to its in- termediate stopover at Anchorage, Alaska, and thereafter, from its departure from Anchorage on its enroute flight to Seoul, Korea' During its flight, on August 31 through September 1, 1983, Flight 007 deviated significantly from its assigned international route of flight, R20, after depar- ture from Anchorage, Alaska, while enroute to Seoul, Korea. The failure of Flight 007 to adhere to its assigned flight path resulted in its passage over Soviet-controlled airspace over the Kamchatka Peninsula, the Sea of Okh- otsk, Sakhalin Island and the Sea of Japan. Prior to the occurrence, the Federal Aviation Ad- ministration published a navigation chart which specifi- cally warned that aircraft flying in that airspace were sub- ject to being fired upon without warning. Flight 007 ap- parently flew near ballistic missile submarine pens on Kamchatka and then over the sensitive prohibited military area on Sakhalin Island. The U.S.S.R. dispatched jet fighters to intercept KAL Flight 007, and the aircraft was struck by one or more explosive missiles causing it to crash into the Sea of Japan. The exact point of impact may never be determined, but the places where wreckage was recovered indicate that the aircraft sunk in international waters. The Potential Liability of Korean Air Lines The law relating to international air travel is marked by mystery, confusion, and inconsistencies unknown in other areas of the law. Laymen, and even lawyers and judges not attuned to the indefensible vagaries in aviation law, would regard the inequalities and injustices in regard to awards for injury or death in aviation cases arising out of international air travel as stranger than ficf'on. It is *John I. Kennelly is dean of the world aviation litigation bar. hard to believe that the rights of the families of the passenger victims may be limited to a maximum of $75,000 per death because of a treaty (the Warsaw Con- vention) which was drafted more than a half century ago, befere Lindbergh flew the Atlantic Ocean, and a so-called interim arrangement (the Montreal Agreement), in- augurated and adopted unilaterally by international airlines almost twenty years ago for the purpose of pre- venting the United States from withdrawing from the Warsaw Convention. The limitations of monetary liability, whether prescribed by the Warsaw Convention or the Montreal In- terim Agreement, apply only to airlines. Manufacturers and other potential defendants, including the United States, foreign governments, fixed-based operators, repair stations, navigational chart producers, fuel suppliers and all other segments of the aviation industry do not enjoy such preferential insulati6n, but remain liable for unlimited liability. In the case of manufacturers, they may be liable for unlimited liability even though not negligent at all, by reason of the doctrine of strict liability. Sup- posedly, the Warsaw Convention, more than half a cen- tury old, binds ad infinitum the 4.7 billion inhabitants of this earth (and their heirs) who become fare-paying passengers on any carrier or charter aircraft, if such passengers' ticketed nations of origin and final destination are determined to have been adherents to the Warsaw Convention on the date of the occurrence. Supposedly, it makes no difference whether the passenger's country was or was not an adherent. Also, on most tickets the required warnings are in English. Some effort is made by some airlines to print tickets that have warnings in the language of the flag carrier. This hardly supplies a solution because many travelers are children or, if adults, are not literate, or not literate in the language or languages printed on the tickets. Indefensibly, all passengers are presumed to be able to read and understand the warnings on their tickets. It is too much to expect a half-century-old treaty con- ceived in an entirely different era to work, in view of the burgeoning population of this planet and the vast incrcase in international air travel since the Warsaw Convention initially was drafted in 1925. (cotntinued on paige 12)

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