
    In re AIR CRASH AT TAIPEI, TAIWAN, ON OCTOBER 31, 2000.
    No. MDL 1394 GAF(RCx).
    United States District Court, C.D. California.
    Aug. 26, 2002.
   ORDER GRANTING SINGAPORE AIRLINE’S MOTION FOR PARTIAL SUMMARY ADJUDICATION OF PUNITIVE DAMAGES ISSUE

FEES, District Judge.

I.

INTRODUCTION

Defendants Singapore Airlines, Ltd. (“SIA”) and EVA Airways Corporation’s (“EVA”) move the Court for Partial Summary Judgment. Defendants contend that the Court should enter summary judgment in their favor on Plaintiffs’ punitive damages claims because punitive damages are not recoverable in actions governed by the Warsaw Convention. Plaintiffs counter that the Warsaw Convention establishes a “pass-through” to local damages law, and does not bar any type of damages, including punitive damages. With respect to SIA’s motion, the Court concludes that, although local law provides the substantive rule regarding the recovery of compensatory damages in air crash cases (Zicherman v. Korean Air Lines Co., 516 U.S. 217, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996)), no court that has considered this issue has permitted the recovery of punitive damages in an air crash case governed by the Warsaw Convention. Accordingly, the Court GRANTS SIA’s motion for summary adjudication of the punitive damages issue. However, because further discovery must be completed regarding the status of EVA — whether it acted as the agent of SIA and therefore entitled to the Warsaw Convention’s limitations on liability — the Court defers ruling on EVA’s motion.

II.

DISCUSSION

The parties concede that most of the cases identified in Defendants’ motions are governed exclusively by the provisions of the Warsaw Convention. (See Appendix A). Moreover, the parties agree that the Warsaw Convention does not specifically provide for the recovery of punitive damages in air crash cases. The parties part ways, however, on the issue of whether punitive damages are barred under the Warsaw Convention. Although this issue has not yet been directly decided by the Supreme Court or the Ninth Circuit, “[e]very court that has addressed this issue has held that the liability and remedy contemplated by Article 17 of the Convention is compensatory in nature and not punitive .... Therefore, courts uniformly have held that punitive damages are not available in cases of death or personal injury governed by the Warsaw Convention.” In re Air Crash Disaster Near Peggy’s Cove, Nova Scotia on Sept. 2, 1998, 2002 WL 334389, at *3 (E.D.Pa. Feb.27, 2002)(col-lecting cases). See, e.g., In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C.Cir.), cert. denied, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991); In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 928 F.2d 1267 (2d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir.1989), rev’d on other grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991).

Nevertheless, Plaintiffs reiterate many arguments in this action that have been considered and rejected in such cases. Most significantly, Plaintiffs claim that the logic of relatively recent Supreme Court and Ninth Circuit decisions permits the recovery of punitive damages in Warsaw Convention cases, and that Article 25 of the Convention permits an award of punitive damages in cases of “willful misconduct.” The Court disagrees, and concludes that plaintiffs attempt to read into those decisions a meaning never intended by their authors.

1. The Zieherman Decision

Plaintiffs claim that many of the cases relied upon by Defendants, such as Korean Air, Lockerbie, and Floyd, have been undercut by Justice Scalia’s opinion for the Supreme Court in Zieherman v. Korean Air Lines Co., Ltd., 516 U.S. 217, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). In Zicher-man, the Court concluded that the Warsaw Convention did not resolve the issues of “who may recover, and what compensatory damages they may receive.” Id. at 227, 116 S.Ct. 629 (emphasis added). While Congress may enact special provisions resolving these issues, the Court held that absent such legislation, Articles 17 and 24(2) of the Convention “provide nothing more than a pass-through,” and authorize courts to apply the domestic law that would govern in absence of the Warsaw Convention. Id. at 229, 116 S.Ct. 629. Since the Warsaw Convention does not specifically address the issue of punitive damages, Plaintiffs seize on the “pass through” language of Zieherman as support for their claim that punitive damages are not absolutely barred in Warsaw Convention cases. On the strength of that phrase, Plaintiffs argue that courts must determine whether the domestic law applicable under the forum’s choice-of-law rules would allow for punitive damages under the circumstances.

No court in any intervening decision has adopted Plaintiffs’ analysis of the Zicher- man “pass through” analysis. Those courts that have confronted the issue have noted that Zicherman addressed only those types of compensatory damages available in Warsaw Convention cases, and never spoke in terms broad enough to encompass punitive damages. See, e.g., In re Air Crash Off Point Mugu, California on Jan. 30, 2000, 145 F.Supp.2d 1156, 1162 (N.D.Cal.2001)(“The court is of the opinion that the Supreme Court’s ‘pass through’ language was discussing only those claims that were not otherwise barred by the Warsaw Convention, and that the Court did not mean to overrule the prohibitions established by the Convention.”); In re Aircrash Disaster Near Roselawn, Indiana on Oct. 31, 1994, 960 F.Supp. 150, 152 (N.D.Ill.1997)(“[T]here are ample indications in the [Zicherman] decision that the Court was addressing only the various types of compensatory damages that may be available.”). One court expressly noted that Zicherman’s repeated references to claims for compensatory damages actually provides support for the conclusion that punitive damages are not recoverable under the Warsaw Convention. See Roselawn, 960 F.Supp. at 152 (“Far from rejecting the lower courts’ conclusions that punitive damages are unavailable under the Warsaw Convention, Zicherman actually supports that conclusion by discussing damages in Convention claims purely in terms of compensatory damages.”). This Court agrees. When read in its entirety, the Zicherman opinion clearly addresses the sole question of whether the substantive rule for awarding compensatory damages should be taken from French law— the language in which the treaty was written and from which the meaning of the term “damages” (“dommage” in the French) must be determined — or through application of local law, including the forum’s choice of law principles. Because nothing in that discussion supports Plaintiffs’ contention, the Court concludes that Plaintiffs’ reliance on Zicherman is misplaced.

2. The Bali Decision

Plaintiffs also fail to persuade the Court that the case law from other circuits conflicts with the Ninth Circuit’s decision in In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1315 (9th Cir.1982). Although Plaintiffs assert that Bali requires the Court to apply state or foreign law to decide the issue of whether punitive damages are recoverable in actions governed by the Warsaw Convention, a careful reading of the entire Bali opinion suggests otherwise. The Bali decision reveals the Ninth Circuit’s refusal to apply state law in Warsaw Convention cases, to the extent it would circumvent the Convention’s limitation on liability. Id. at 1308. However, because the Ninth Circuit concluded that punitive damages were not even recoverable under the applicable choice of law, the court did not have occasion to decide whether punitive damages claims would circumvent the Convention’s limitations on liability. Id. at 1315. Since the Ninth Circuit never reached the issue of whether the Warsaw Convention would preempt state laws permitting the recovery of punitive damages, the Court concludes Bali is not determinative here.

3. Article 25 of the Warsaw Convention

Likewise, courts have found unpersuasive Plaintiffs’ argument that Article 25 would somehow overturn any punitive damages bar if the carrier commits willful misconduct. See, e.g., Loor v. Air France, 31 F.Supp.2d 347, 351 (S.D.N.Y.1998) (“A finding of willful misconduct has been held to negate the due care exclusion from liability contained in Article 20 and the monetary limitation of $75,000 in Article 22.... However, Article 25 has not been read to expand recovery to include punitive as well as compensatory damages.”) (citations omitted); Jack v. Trans World, Airlines, Inc., 854 F.Supp. 654, 663 (N.D.Cal.1994)(“Punitive damages are not recoverable in actions governed by the Warsaw Convention, even if the air carrier engaged in willful misconduct.”); Lockerbie, 928 F.2d at 1285-87 (discussing at length the history and purpose of Article 25 and concluding that the Convention’s only response to willful misconduct is the lifting of the monetary limit on compensatory damages).

In light of the overwhelming legal authority that exists in support of Defendants’ motions, and in the absence of binding Supreme Court and Ninth Circuit precedent holding otherwise, the Court finds no reason to depart from the generally accepted principle that punitive damages are not available in Warsaw Convention cases. Thus, the Court believes Defendants’ Motions for Partial Summary should be GRANTED. Accordingly, Plaintiffs’ punitive damages claims asserted against Defendant SIA should be DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

APPENDIX A

Cases Identified in SIA’s Motion

NO. PASSENGER(S) CASE NAME CASE NUMBER

1. John Diaz Diaz v. SIA CV 00-11879

2, Phillip Thomas Thomas v. SIA CV 00-12555

3. Walter Lee Young v. SIA CV 01-5261

4. Rem Phang Phang v. SIA CV 01-5096

5. Michael Peng Peng v. SIA CV 00-13562

6. John Wiggans Wiggans v. SIA CV 01-1471

7. Jamal Obagi Obagi v. SIA CV 01-1472

8. Peter C.T. Shieh Shiehv. SIA CV 01-0155

9. Lee Dan Mei, Jonathan Yang, Yang Yang Yang, et al. v. SIA CV 01-0783

10. Hung Hsiu Yu Chen Chenv. SIA CV 01-1023

11. Boris Chen, Chris Chen Huang v. SIA CV 01-1022

12. Hector Favela, Martha Favela Favela v. SIA CV 01-1426

13. Helen Broadfoot Broadfoot v. SIA CV 01-5098

14. Akash Volam Est. of Volam. et al. v. SIA CV 01-1756

15. Nan Shann Chuang Est. of Chuang, et al. v. SIA CV 01-1754

16. Neelima Vuppala Est. of Vuppala, et al. v. SIA CV 01-1751

17. Varaprasad Somasekhara Koppaka Koppaka v. SIA CV 01-1750

18. Surya Narayana Marellapudi Est. of Marellapudi, et al. v. SIA CV 01-1755

19. Janardhan Volam Est. of Volam, et al. v. SIA CV 01-1753

20. Ching Ying Wu, Richard Wu Est. of Wu, et al. v. SIA CV 01-1752

21. Christina Reed Reed v. SIA CV 01-1936

22. David Ralph Ralph v. SIA CV 01-1938

Jean Roa-Ching Chen Lee, et al. v. SIA CV 01-2015

24. Lin Kuang Hui Cheng, et al. v. SIA CV 01-2074

25. Charles Moore Morlv v. SIA CV 01-5099

26. Chang Chin Liang, Chang Po Chai Est. of Liang, et al. v. SIA C V 01-2450

27. Rabia Aliniazee Aliniazee v. SIA CV 01-5100

28. Jenny Y. Dwan Est. of Dwan, et al. v. SIA CV 01-2749

Anthony Woo Woo v. SIA CV 01-3316

30. Chan Yu Chau Hsiung, et al. v. SIA CV 01-3356

31. Selina Sung, Yvannie Sung Sung, et al. v. SIA CV 01-3372

32. Raiu Penmatcha Penmatcha. et al. v. SIA CV 01-5298

Charles Moore Moore, et al. v. SIA CV 01-4315

34. Jeffrey Aw Kivrizis v. SIA CV 01-5076

35. Eric Sha Shav. SIA CV 01-4540

36. Jay Spack Spack v. SIA CV 01-5019

37. Vivian Chen Chenv. SIA CV 01-4045

38. John Harrison, Mary Harrison Harrison v. SIA CV 01-5787

Douglas Villermin Villermin v. SIA CV 01-5788

40. Margaret Rabley Rablev v. SIA CV 01-6323

41. Paul Blanchon Blanchon v. SIA CV 01-7255

42. Susana Enriquez Dominguez Dominguez v. SIA CV 01-7256

43. Roberto Iglesias Iglesias v. SIA CV 01-7257

44. Fuad A. Memon Memon v. SIA CV 01-0777

45. Tee SeokChoo Fook, et al. v. SIA CV 01-9048

46. Nguyen Van Hien Van Hien, et al. v. SIA CV 01-10173

47. Lim Lay Har Heng, et al. v. SIA CV 01-9049

48. Lin Hong Wen Lin, et al v. SIA CV 01-9051

49. Neo Lee Keow Chye, et al. v. SIA CV 01-9052

50. Keng Hui Teng Teng, et al. v. SIA CV 01-9053

51. Anh Dung Nguyen Nguyen, et al. v. SIA CV 01-9054

52. Janardhan Volam Est. of Volam v. SIA CV 01-9069

Harald Linke Linke v. SIA CV 01-9104

54. Ladan Mohajerani, Massoud Dabir, An Chi Pang Est. of Mohajerani, et al v. SIA CV 01-9183

55 Cai Von Rumohr Rumohr v. SIA CV 01-9201

56 Chi An Wei Weiv. SIA CV 01-9198

57 Richard Nemeth Nemeth v. SIA CV 01-9197

Sally Walker Walker v. SIA CV 01-9200

59 Steven Courtney, Debra Brosnan Courtney v. SIA CV 01-10171

60 Lin Ming Liang Lin v. SIA CV 01-9236

61 Pramod Poddar Est. of Poddar, et al v. SIA CV 01-10333

62 Mohammed M. Khan, Begum Noor Jehan Khan, et al. v. SIA CV 01-9297

Tan Yip Thong Koon, et at v. SIA CV 01-10330

64 Raju Penmatcha Penmatcha. et al. v. SIA CV 01-10340

65 Tah Hsiang Chen Chen v. SIA CV 01-9350

66.Teng Kuang Hui, Raju Penmatcha, Anh Dung Nguyen, Neo Lee Keow, Tee Seok Choo, Lim Lay Har, Lin Hong Wen, Tan Yip Thong Chang, et al v. United Airlines CV 01-10335

67.Yeh Chi Fua Gin, et al. v. SIA CV 01-9345

68.Roeup Pork Pork, et al. v. SIA CV 01-9347

69.William Randazzo Randazzo, et al. v. SIA CV 02-0526

70. Yong Fen Min, Lee Nyuk Ha, Loida Danner, Lai Chew Yen Fen-Kiok Man, et al. v. SIA CV 02-2263

71. Hendric Leenardo, Anton Gunadi, Lailawati Gunadi, Sigit Suciptoyono Leenardo, et al. v. SIA CV 02-0524

Cases Identified in EVA’s Motion

NO. PASSENGER(S) CASE NAME CASE NUMBER

1. Anthony Woo Woo v. SIA CV 01-11174

2. John Harrison, Mary Harrison Harrison v. SIA CV 02-2267

Douglas Villermin Villermin v. SIA CV 02-2266 4. Paul Blanchon Blanchon v. SIA CV 01-7255

Johannes Van Schijndel, Yue Ying Chuan, Ang Ming Chuang, Ng Siok Chin, Elaine Tan VTiee Ling, Chok Fook Chiong Van Schijndel v. EVA CV 02-2530

Francois Parent Parent, et al. v. EVA CV 02-0277

Susan Enriquez Dominguez Dominguez v. SIA CV 01-7256

8. Roberto Iglesias Iglesias v. SIA CV 01-7257

Teng Kuang Hui, Raju Penmatcha, Anh Dung Nguyen, Neo Lee Keow, Tee Seok Choo, Lim Lay Har, Lin Hong Wen, Tan Yip Thong Chang, et al. v. SIA CV 01-4889

10. Pramod Poddar Est. of Poddar, et al. v. SIA CV 01-10333

11. Yong Fen Min, Lee Nyuk Ha, Loida Danner, Lai Chew Yen Fen-Kiok Man, et al. v. SIA CV 02-2263

12. Hendric Leenardo, Anton Gunadi, Lailawati Gunadi, Sigit Suciptoyono Leenardo, et al. v. SIA CV 02-0624

APPENDIX B

NO. PASSENGER(S) CASE NAME CASE NUMBER

1. John Diaz Diaz v. SIA CV 00-11879

2. Phillip Thomas Thomas v. SIA CV 00-12555

3. Walter Lee Young v. SIA CV 01-5261

4. John Wiggans Wiggans v. SIA CV 01-1471

5. Jamal Obagi Obagi v. SIA CV 01-1472

6. Hector Favela, Martha Favela Favela v. SIA CV 01-1426

7. Chang Chin Liang, Chang Po Chai Est. of Liang, et al. v. SIA CV 01-2450

8. Margaret Rabley Rabley v. SIA CV 01-6323

9. Fuad A. Memon Memon v. SIA CV 01-0777

10. Cai Von Rumohr Rumohr v. SIA CV 01-9201

11. Chi An Wei Wei v. SIA CV 01-9198

12. Richard Nemeth Nemeth v. SIA CV 01-9197

13. Sally Walker Walker v. SIA CV 01-9200

14. Steven Courtney, Debra Brosnan Courtney v. SIA CV 01-10171

15. Mohammed M. Khan, Begum Noor Jehan Khan, et al. v. SIA CV 01-9297

16. Jeffrey Platz Craig v. SIA CV 00-12786 
      
      . Defendants filed these motions in all of the cases listed in Appendix A.
     
      
      . The parties dispute the applicability of the Warsaw Convention in the following cases: 
        Leonardo, et al. v. Singapore Airlines, CV 02-0524; Fen-Kiok Man, et al. v. Singapore Airlines, et al., CV 02-2263; Harrison v. Singapore Airlines, CV 01-5787; Penmatcha, et al. v. Singapore Airlines, CV 01-5298; Heng v. Singapore Airlines, CV 01-9049; Chye, et al. v. Singapore Airlines, CV 01-9052; Bich, et al. v. Singapore Airlines, CV 01-9054; Hein v. Singapore Airlines, CV 01-10173; Fook, et al. v. Singapore Airlines, CV 01-9048; Hui v. Singapore Airlines, CV 01-9053; Koon, et al. v. Singapore Airlines, CV 01-10330; Woo v. Singapore Airlines, CV 01-3316; and Randazzo v. Singapore Airlines, CV 02-0526.
     
      
      . Justice Scalia even noted that, although a jury in the case had awarded punitive damages as part of its verdict, the D.C. Circuit reversed that portion of the judgment — a ruling that was not appealed to the Supreme Court.
     
      
      . Article 25(1) of the Convention provides: "The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct.”
     
      
      . Although Defendants filed motions for partial summary judgment in over seventy cases (without any regards to whether the plaintiff in each action actually asserted a punitive damages claim), the Court will only enter partial summary judgment in the cases identified in Appendix B. Appendix B contains only those Warsaw Convention cases in which a punitive damages claim has been made, and which are not the subject of Defendants' pending motions to dismiss for lack of subject matter jurisdiction.
     