Legal Remedies Available to Hijack Victims of TWA Flight 847 - Part 1 Chapter 7 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Unholy terrorists. Foreign jurisdictions. International blackmail. In the wake of the hijacking of TWA Flight 847, one might consider what legal issues could arise in any litigation for compensation which might be brought by the hostages for injuries suffered in their ordeal. The prospects of successfully bringing suit against an elusive band of terrorists are, of course, not good. This chapter, therefore, explores the issues surrounding other legal remedies which the hostages might pursue.
Liability of Airport Authority: Sovereign Immunity
On June 14, 1985, the beginning of a seventeen-day crisis which ended with the eventual release of thirty-nine Americans in Damascus on June 30, Arab terrorists smuggled two hand grenades and two automatic pistols by X-ray machines and security guards at Athens International Airport in Athens, Greece. This apparent lapse in security could be grounds for a negligence suit against the airport’s Security Authority for Civil Aviation (“Airport Authority”). What issues would arise in connection with such a suit?
The Athens International Airport is owned and controlled by the government of Greece, and the Airport Authority, in charge of security at the airport, is an agent of that government. Any suit against the Airport Authority, therefore, is a suit against a foreign sovereign and, if it is to be brought in U.S. courts, is governed exclusively by the Foreign Sovereign Immunities Act of 1976 (“FSIA”).
Under the FSIA, foreign states are immune from suits brought by private litigants in jurisdictions outside the defendant country. Such immunity, however, is subject to a number of general exceptions contained in section 1605 of the FSIA.
Section 1605(a)(1) Exception
One of the exceptions, section 1605(a)(1), provides, “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the foreign state has waived its immunity either explicitly or by implication . . . ” (emphasis added). The FSIA’s legislative history indicates that an explicit or implicit waiver of immunity may be found to exist by contract or in a treaty. Article 28 of the international treaty known as the Warsaw Convention of 1929, signed by representatives of most countries (including the “President of the Hellenic Republic”), might be argued to constitute an implicit waiver by the Airport Authority.
The Warsaw Convention was an attempt by several countries gathered in 1929 both to provide a means of recovery for passengers injured in international travel, and to foster the growth of an infant airline industry. The treaty created a presumption of liability on the part of the carrier for deaths and injuries arising out of international air travel (subject to certain defenses), but set a limitation of carrier liability of 125,000 Poincaré francs (worth about $8,300 in 1934 U.S. dollars) per passenger. Article 17 of the Convention specifies that the presumption of liability applies if the accident which caused the damage took place on board the aircraft or in the course of embarking or disembarking.