Koirala v. Thai Airways International, Ltd.

Citations: 126 F.3d 1205; 1997 WL 590072Docket: Nos. 96-16598, 96-16712

Court: Court of Appeals for the Ninth Circuit; September 25, 1997; Federal Appellate Court

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On July 31, 1992, Thai Airways Flight TG-311 crashed into a mountainside while attempting to land at Tribhuvan International Airport in Kathmandu, resulting in the deaths of all 113 people on board. The case examines whether the crash was due to “wilful misconduct” by the flight crew, which would remove the $75,000 damage cap under the Warsaw Convention. The court agrees with the district court's conclusion that it was indeed wilful misconduct.

Flight TG-311 was a scheduled flight from Bangkok to Kathmandu, an airport known for its challenging landing conditions due to its mountainous surroundings and lack of radar for air traffic control. The flight crew, consisting of Captain Preeda Suttimai and First Officer Phunthat Boonyayej, were licensed and experienced in flying into Kathmandu. On the night of the crash, poor weather conditions resulted in low visibility, necessitating reliance on navigational instruments.

At 06:46:07 UTC, air traffic control cleared the captain for a landing approach, but the crew later discovered that the wing flaps failed to extend properly, making a landing too risky. After requesting to divert to Calcutta, the flaps eventually extended correctly at 06:49:05. However, by then, the aircraft was too high and far north to land safely.

Despite air traffic control's approval for the crew to turn south toward point "Romeo" for another approach, the flight crew initiated a climbing right turn without clearance at 06:50:50. Following air traffic control's instruction to descend, the crew mistakenly executed a full 360-degree turn instead of the intended 180-degree turn, continuing north towards the mountains. They were unaware of this error due to their preoccupation with navigation tasks, believing they were heading south, despite navigational instruments indicating otherwise.

The Flight Management System (FMS) failed to display point Romeo, located south of the aircraft, because the aircraft was heading north. The crew mistakenly believed they were heading south and spent approximately six minutes trying to program the FMS, leading to confusion about their heading. At 06:59:58, the first officer recognized the aircraft's actual northward direction and attempted to alert the captain, who misunderstood the warning. The aircraft crashed into a mountain twenty-three miles north of Kathmandu at 07:00:26, resulting in the deaths of all 113 individuals on board.

Relatives of seven passengers filed a lawsuit against Thai Airways under the Warsaw Convention, with another action from the relatives of Kandaswamy Ramachandran later consolidated. The trial was bifurcated into liability and damages phases. Thai Airways sought a ruling on applicable law, and the district court determined that U.S. maritime law would govern. It ruled that only a decedent’s spouse and dependents could pursue wrongful death claims.

During the liability phase, the court found the crash resulted from the crew's willful misconduct due to their failure to monitor navigational instruments. Thai Airways subsequently filed for summary judgment on claims from the surviving relatives of Thomas Hill and Thomas Guta, asserting that neither had dependents. The court granted the motion for all claims except for Anne Guta's, due to a disputed dependency issue. It also held that if no wrongful death beneficiaries exist, a decedent's estate could pursue a survival claim for loss of future earnings, allowing Thomas Hill's estate to assert such a claim since he had no dependents.

On June 17, 1996, the court permitted the plaintiffs to amend their complaint to include a survival claim for loss of future earnings for Hill’s estate and denied Thai Airways’ motion for reconsideration regarding the recovery of future earnings by a decedent's estate in the absence of wrongful death beneficiaries. The court dismissed Thai Airways' argument that instantaneous death precludes the estate from pursuing survival actions. Following a bench trial, the court awarded damages on July 10, 1996, determining that decedent Santosh Koirala intended to return to Nepal post-1998, resulting in damages calculated only until that year. Additionally, Anne Guta was found not to be financially dependent on her son Thomas, leading to a judgment against her in her wrongful death claim. The district court issued its final judgment on August 1, 1996, which was appealed by Thai Airways, with a timely cross-appeal from the plaintiffs.

Under the Warsaw Convention, air carriers are liable for damages resulting from the death or injury of passengers during flight or boarding/disembarking operations, with a liability limit of $75,000, unless the carrier's actions constitute "wilful misconduct." Wilful misconduct involves intentional actions taken with knowledge of potential harm, or reckless disregard for the consequences, including intentional omissions. The standard of review for findings of wilful misconduct is not clearly defined, potentially involving either clear error or de novo review based on judicial administration concerns.

Concerns related to judicial administration advocate for applying a clearly erroneous standard when determining wilful misconduct, as it relies on practical human experience. Evaluating a party's state of mind is a factual inquiry better suited for district courts, which possess a superior vantage point to the evidence. This case presents an exception to the typical de novo review of mixed questions of fact and law. Precedent supports this approach, as seen in various cases where district court findings of wilful misconduct under the Warsaw Convention are upheld unless clearly erroneous.

The case at hand examines whether the flight crew's failure to recognize their aircraft was heading into dangerous terrain constitutes wilful misconduct. The district court's finding is subject to clear error review, which requires upholding the decision unless there is a firm conviction that a mistake was made. Thai Airways contends that a subjective standard should be applied to assess the crew's actions, while plaintiffs argue for an objective standard. According to the Ninth Circuit's interpretation, wilful misconduct involves intentional actions taken with awareness of potential harm or reckless disregard for consequences.

Thai Airways relies on the Berner case to argue that confusion in flight operations does not equate to wilful misconduct. It asserts that there is no evidence of intentional misconduct by the crew, attributing their failure to recognize their heading to stress, workload, and equipment failure. Despite these arguments, the resolution of this case relies on circumstantial evidence and inferences drawn therefrom, aligning with the precedents established in Berner.

Subjective standards can be satisfied by circumstantial evidence, as established in *Eastwood v. National Enquirer, Inc.* The district court found that the flight crew's failure to frequently check navigational instruments—a fundamental safety duty—indicated a conscious disregard for this responsibility, especially while flying in a mountainous area, suggesting reckless conduct. Expert testimony from Captain Lykins noted that the crew's actions were below the standards expected of any scheduled airline, as they ignored visible compass readings for an extended period. Captain Sehiff emphasized that it is incomprehensible for a professional crew to be unaware of their direction for six minutes, highlighting that pilots are trained to continuously scan their instruments. Although Captain Supachoke could not confirm whether the crew checked their instruments during this time, the Nepal government’s accident report indicated that stress and workload may have impaired the crew's ability to monitor the flight, but did not absolve them of their responsibilities. The report suggested that reliance on autopilot systems may have reduced instrument cross-checking. Ultimately, the cumulative evidence led to the conclusion that the district court did not err in determining that the crew's actions constituted wilful misconduct under the Warsaw Convention.

The jury in the In re Korean Air Lines Disaster case found willful misconduct due to the crew’s significant deviation from mandated navigational procedures, suggesting either intentional entry into Soviet airspace or repeated disregard for safety protocols. The district court did not err in allowing the plaintiffs to amend their complaint to include a survival claim for lost future earnings on behalf of Thomas Hill’s estate, despite the absence of wrongful death beneficiaries. The court referenced Evich v. Morris and Sutton v. Earles to support that an estate can claim lost future earnings in survival actions even when the death is instantaneous, emphasizing that such awards align with the humane nature of admiralty law and prevent unjust enrichment to wrongdoers. Furthermore, the court confirmed that the precedent set by Miles v. Apex Marine Corp. does not apply to non-seamen like Hill, allowing for the survival action. Additionally, the district court ruled against Anne Guta’s wrongful death claim, finding insufficient evidence of financial dependency on her son Thomas, as she admitted he never promised to provide for her. The court deemed the exclusion of certain testimonies appropriate due to lack of foundation, despite evidence of family financial support patterns.

Substantial evidence supports the jury's verdict that the decedent's parents had a reasonable expectation of future financial support, influenced by cultural norms in Japanese society. The district court's findings regarding damages are reviewed for clear error. It found that Anne Guta was not dependent on her son, thereby justifying the judgment against her in her wrongful death claim. The court also denied the plaintiffs' request to amend their complaint to include a survival action on behalf of Thomas Guta's estate after they had rested their case, which is reviewed for abuse of discretion; the denial was not deemed an abuse of discretion as the amendment was considered untimely.

The court further limited the damage award to Santosh Koirala, who was living in California and working to support her family while intending to return to Nepal after her children completed their education. The district court based its decision on deposition testimony indicating Koirala's intention to eventually return to Nepal, which included her desire to stay in the U.S. until her sons graduated. Despite plaintiffs presenting evidence suggesting Koirala intended to remain in the U.S. until retirement, the district court's findings, based on witness credibility and testimony, were upheld as not clearly erroneous.

The district court's decision to limit damages in the case of Santosh Koirala was upheld, with no reversible error found. The court correctly determined that the crash of Flight TG-311 resulted from the “wilful misconduct” of the crew. It permitted the estate of Thomas Hill to pursue a survival claim, as Hill had no wrongful death beneficiaries. The court also dismissed Anne Guta's wrongful death suit, concluding she was not financially dependent on her son, Thomas, and denied the estate of Thomas Guta the opportunity to amend its complaint to include a survival claim. The calculation of Koirala's future earnings assumed a return to Nepal in 1998 was deemed appropriate. The ruling is affirmed despite the Supreme Court's later overruling of Zicherman, as neither party raised this issue on appeal, and both parties accepted U.S. maritime law as applicable. Under the Foreign Sovereign Immunities Act (FSIA), Thai Airways is classified as a foreign sovereign due to government ownership, with jurisdiction established under the commercial activity exception. The plaintiffs allege that Niranjan intended to return to the U.S. after his uncle's term as Prime Minister ended in 1993.