Seven Years Later, Flight 007 Families Wait For Payment

``THERE is no such thing as justice - in or out of court.''

That observation by Clarence Darrow more than a half-century ago would draw little argument today from the families of 104 victims of the Sept. 1, 1983, shootdown of Korean Air Lines Flight 007.

Nearly 7 1/2 years after the off-course airliner carrying their loved ones and 132 other passengers and crew memberswas blasted out of the sky by the Soviet Union, the families still are awaiting their first nickel in damages.

After almost six years of legal wrangling, the families' lawsuit against KAL went to trial in mid-July 1989 before a federal judge and jury in Washington, D.C. The court previously had dismissed suits against the Soviet Union, the U.S. government, the Boeing Co., Litton Industries (producers of the plane's navigation systems), and Jeppesen Sanderson Inc., makers of the navigation charts used by the KAL crew.

Following a two-week trial, the six-member jury took just five hours to find KAL had committed ``willful misconduct'' and thus was liable. Six ordinary citizens took five hours to decide a case that took the U.S. judicial system six years just to get to trial.

The families were awarded $50 million in punitive damages from the airline - more than $360,000 per victim. During the past 45 years, ``willful misconduct'' in international airline tragedies has been proved in only nine air-crash cases. The KAL trial marked the first award of punitive damages.

The liability issue had to be decided before families could seek compensatory damages through the courts or begin negotiating settlements with KAL's insurance carrier, Lloyd's of London.

But the airline appealed the jury's 1989, verdict. Last month the U.S. Court of Appeals for the District of Columbia Circuit heard the appeal.

Sometime in late spring, the court is expected to render decisions on the liability appeal, on a KAL motion to set aside the punitive-damages award, and on an appeal by the families over dismissal of the United States as a defendant. The United States is accused of failing to warn the plane as it neared the U.S.S.R.

If the jury's verdict against KAL is upheld, the airline is expected to appeal to the U.S. Supreme Court. How many years will it take for the high court to decide the case? Pick a number. Meanwhile, families of the crash victims receive nothing.

Leaders of an association representing those relatives say they are held hostage by an outdated legal system that ignores immediate financial needs of families of air-crash victims.

Families (including many in the KAL case) who lose breadwinners frequently cannot wait for the American legal system to do its job and often are forced to settle out of court for far less money than they might have won at trial.

This is why airlines drag out these cases - in the hope that relatives will opt for cheaper settlements rather than wait years in hopes of gaining higher court awards. Airlines and their insurance carriers can afford long court battles; families often cannot.

The inclination of U.S. courts to take care of defendants first and victims last extends beyond criminal law to civil cases as well.

Charles Herrmann, a Chicago attorney who represents families of 89 Korean victims of the KAL crash, said some weighed their options in 1983 and accepted $100,000 settlement offers from the airline. Others who did not settle later wished they had.

Many attorneys are discouraged from taking these cases on contingency-fee bases because it takes so long to drag them through the system with no guarantee of victory.

The result is a chilling effect on equal application of justice in U.S. civil law. San Francisco attorney Melvin Belli, a co-counsel with Herrmann in the KAL case, blames the world's giant insurance companies:

``It's the old proposition of keeping the money in the insurance-company coffers so they can make interest on your money before they pay you off.''

Litigation arising from a 1974 Pan American Airways crash in Bali was completed in 1989 after a 15-year court battle. The KAL case is approaching eight years, while litigation arising from the 1988 terrorist destruction of a Pan American 747 near Lockerbie, Scotland, has barely begun.

Members of the American victims' association in the KAL case favor streamlining the international airline-liability system, and they back congressional ratification of the Montreal Aviation Protocols as recommended last June by the Senate Foreign Relations Committee.

The agreement would extend liability protection of U.S. citizens to the American court system regardless of where they fly or where they purchase their tickets. Families of American crash victims would be entitled - in a first phase - to receive $130,000 compensation within six months of an incident and - in the second phase - full compensation within nine months, without proving fault.

An international treaty known as the Warsaw Convention limits damage recovery for injury or death on an international flight to just $75,000. Under the Montreal proposal, liability limits would be raised periodically, and relatives would retain the right to sue airlines and third parties if second-phase damage offers were deemed inadequate.

There is much more the United States could do.

To force accountability from airlines worldwide, the United States should extend jurisdiction of the National Transportation Safety Board through agreements with other nations. Licensing requirements could be strengthened for foreign pilots flying in the United States; inspection systems for foreign-flag airlines could be improved, and unified guidelines and standards could be established for personnel training, inspections, security, and disaster procedures.

Richard K. Sypher of Gig Harbor, a former reporter and editor for Tacoma's Morning News Tribune, is writing a book about the shooting down of Korean Air Lines' Flight 007 in 1983.