Petition — Giliberto v. Compagnie Nationale Air France

Supreme Court brief1979

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NM Supreme Court, U.S, 79

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Supreme Court of the Anited States

Octoser Term, 1978

THE HONORABLE LOUIS J. GILIBERTO, Judge of

the Circuit Court of Cook County, Illinois, et al., EITAN

ARONOWITCH, et al.,

Petitioners,

vs.

COMPAGNIE NATIONALE, AIR FRANCE and

SINGAPORE AIRLINES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Sruart M. Speiser

Cuartes F. Krause

200 Park Avenue

New York, New York 10017

Joon J. KENNELLY

Kevin M. Forpe

111 West Washington Street

Chicago, Illinois 60602

Attorneys for Petitioners

(see flyleaf for additional counsel)

The Scheffer Press, Inc.—(312) 263-6850

Of Counsel:

Srvuargt M. Speiser

Howarp S. CHapmMan

Chicago Kent College of Law

77 S. Wacker Drive

Chi Tlinoi

Mary Morrgissy

Kevin M. Forpe

Jonny J. KENNELLY

111 W. Washington St.

Chi Tlinoi

INDEX

PAGE

IID: SIIITII acs cack atienbinscdeteenngiacidenibticembenrietpbeaaitipiliiadaies 1

I aiid decansdcstnacapsoninsnicseginliblieeiisitit 1

CROTTARID FOROIIOG ca scccecssssescssevinesciesssesedtiiaterccsteineseciennases 2

Constitutional Provisions and Treaties 2.0.0... 5

UE A i. can emaaenientitpandinavedicnn 8

Reasons for Granting Wit ...........ccccscsssssssessseseeeseees 17

I Sashihara tek cineca cls ach caps winieahenihncusinmanabiidagtion 75

Appendix A - Opinion of the Illinois Supreme Court... la

Appendix B- Motion to Dismiss Filed by Singapore

SRT, “Giindenenseerleddineniieccabbatylinastsscshenptpraninnneinlionsininnstnnges 21a

wy

Appendix C - Affidavit of Andre Garnault Filed by

Compagnie Nationale Air France’ .............cccccsee 29a

AUTHORITIES

Cases

Adkins v. Chicago, Rock Is. & Pac. R R. Co., 54 Tll.2d

GER (RNS et abbetitieededdidiinnneas>-baveninneiern 65

Alan Wood Steel Co. v. Capital Eauip. Enter., Inc.,

39 Til. App. 3d 48, 349 N.E.2d 627 (1976) ...........00 20

All States Freight, Inc. v. Modarelli, 196 F.2d 1010

(3d Cir. 1932) ........ iinccehditeaiatiteptasianalannieg a Diapbnaenitelhaee 71

American Motorcycle Ass’n. v. Superior Ct., 20 Cal.3d

578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978) .......s00 32

Angle v. Chicago, St. P. M. @ O. Ry., 151 US.

I SUE: cehiieecintbnshiccnsteeiaiuiaseistneshancnnipmabntineeinlacnendiaticnaitechlsenbinn 56

li

a

PAGE

Argento v. Liorn, 241 F.2d 258 (6th Cir. 1957), cert.

Game TET. GED CII ivcccncccnesgretiensstsctnsssvcicssones 41

Bacardi Corp. v. Domenich, 311 U.S. 150 (1941) ........ 62

Becker Steel Co. v. Cumming, 296 U.S. 74 (1935) ........ 43

Benjamins v. British European Airways, 572 F.2d

SES Cae Gee, OU chehmetaieclnabeehenaticcechcehcenennnninbiomenteecleke 40

Biggs v. Easterly, 62 Barb. (N.Y.) 51 (1872) ............... 42

Board of County Comm’rs. v. Aerolinas Peruanasa,

S.A., 307 F.2d 802 (5th Cir. 1962) cert. denied 371

See I CIR OME - carnciniannindinsesschsitinnsistnigninciiaimmbiiaingatinbietbii 41

Breslin v. National Surety Co., 114 F.2d 65 (3rd Cir.

| EASELS ERIS OE LRT TT eae eH UI 20

Burdell v. Canadian Pacific Airlines, Ltd., 10 Av. L.

Rep. (CCH) 18,151 (Til. Cir. Ct., Cook Cty., Nov. 7,

1968); 11 Av. L. Rep. (CCH) 17,351 (Ill. Cir. Ct.,

Catamaran hicrecinisitintinsitbais 55

Bush v. Hanson, 70 Ill. 480 (1873) ........c.cccccsecceesessseeseeeses 36

Carey v. Donohue, 240 U.S. 430 (1916) ....ccccecseseceeeeeee 42

Charlton v. Kelly, 229 U.S. 447 (1913) ....cccccccceccccecsseeees 41

Cherokee v. United States, 78 U.S. 616 (1870) ............. 57

Choctaw Nation v. United States, 318 U.S. 423 (1943) mn

Continental Ill. Nat’l Bank v. Chicago, RI. d P. Ry.,

ye Rk ee SEES tT ARAE 42

Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d

Cir. 1975) cert. denied 429 U.S. 890 (1976) «0... 22

DeGeoffrey v. Riggs, 133 U.S. 258 (1890) ......ssessesereseeees 41

DeBois v. Hepburn, 25 U.S. (10 Pet.) 1 (1836) ........ 43

Eck v. United Arab Airlines, 15 N.Y.2d 53, 255 N.Y.S.

2d 249, 203 N.B.2d 649 (1964) .......cccccomsscccessscssssseseoenes 43

PAGE

Ex Parte Milligan, 71 U.S. (4 Wail.) 2 (1866) .u........... 54

Factor v. Laubenheimer, 290 U.S. 276 (1933) ..........0000 41

Faris v. Faris, 35 Tll.2d 305, 220 N.E.2d 210 (1966)

SHES EEE E REET EERE HEHEHE EEE EEEE EE TEESE EEE ESSE E ESE SEEE HSER ESE EERE REE EHEC HORSE EE EEE Se

Farmanfarmaian v. Gulf Oil Corp., Docket No. 77-7507

I TU PE I hcssicienchincleinstiaiiaiesamennpectenemese 72, 73

Fleischman Construction Co. v. United States, 270

ea ae: LES Ee ae

Founding Church of Scientology v. Verlag, 536 F.2d

GE Tas SEs BOE cnssscscscsslacstcdestorcivienrecncte ii dunetitatendiisl 71

Galvan v. Press, 347 U.S. 522 (1954) rehearing den.

Se eee IE I yA dehcdcecnsscncvosepsthitniseredessiniaineibiaanibinins 57

Gannon v. Chicago, M., St. P. & P. Ry., 22 Til.2d 305,

SE ee POE MME isis sate eisstsisnrtstinsccneisameeninintaaiinit 43

Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445

(N.Y. 1817) ....... CANCE SOR TWN rete OOOO OT Oe em ION 56

Grammenos v. Lemos, 457 F.2d 1067 (2d Cir. 1972) _

Gregg Dyeing Co. v. Query, 286 U.S. 472 (1932)

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ......63, 66, 70

Haddad v. Air France, Tribunal de Instance, Paris

Index No. 4.241/77 ...0.:0:00+ indhciahadetsitnaiasasmmubaninaidpajenien 19, 20

Hamilton v. Erie R.R. Co., 219 N.Y. 343, 114 N.E.

BOD (191G) ..rccrcscccscccssversersscesscssscnenessssoreccssscsrecssnsscesorneseorers 61

Harrison v. United Fruit Co., 141 F.Supp. 35 (S.D.

WY, 20GB) cciieicseciecessssssopvecnsccnssesecnscesvronsssicesnsescesasesonescooence 70

iv

PAGE

Hee Chan v. Pilliod, 178 F.Supp. 793 (D.C. Ill. 1959)

Hernandez v. Air Framce, 545 F.2d 279 (1st Cir. 1976)

cert, dented 430 U.S. 950 (1977) ....cccccscccsssssssssssseees 21

Hidalgo County Water Control & Improvement Dist.

v. Hedrick, 226 F.2d 1 (5th Cir. 1955) cert. dented

i ia 8 iL he 41

Hoyne v. Danisch, 264 Ill. 467, 106 N.E. 341 (1914)

Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238

Te TEED cocuhinesnbabitpsiteondstciansidesabigeliieaminsegeeivaiekits 21, 40

In Interest of Carson, 10 Ill.App.3d 384, 295 N.E.

NG NT PIE Narasnolicbidirciiic.cadasek stalpasnapsh eciciclidaadGoeisenenivaosses 42

International Mercantile Marine Co. v. Lowe, 93 F.2d

I I i aaa iakenianinciniemraioblacbonsan 43

International Shoe v. Washington, 326 U.S. 310 (1945)

CRIT -chevidues spends tiiicabeeclilinldgabiaibinlatesevhossininstnnventntenncisi’ 25, 59, 60

James v. Strange, 407 U.S. 128 (1928) ....cccccsssceccssseees 57

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

RB _| RE PSNR ae eerie Sagano doar ipaleoniiiitibabis 62

Karfunkel v. Compagnie Nationale Air France, 427

Pape. BIR. CBD Fi MOTE) ccccisinsisvererrincscrnemcisraivs 22

Kolovrat v. Oregon, 366 U.S. 187 (1961) .......csecseeseeeee 41, 42

Lisi v. Alitalia Airlines, 253 F.Supp. 237 (S.D.N.Y.

1966) aff’d 370 F.2d 508 (2d Cir. 1966), aff’d 310

RE aicdiincennasinindnneiiibcadanbinillavoniscieanienes 43

Loucks v. Standard Oil Co., 224 N.Y, 99 (1918) ccs 71

ee ee

Vv

PAGE

MacDonald v. Air Canada, 439 F.2d 1042 (1st Cir.

QED sian siscmisticiblidisekpnc cies tieacctavigheabeaeaenpeenbetbestes

Marchlik v. Coronet Ins. Co., 40 Tll.2d 329, 329 N.E.2d

799 (1968) .......0004. Wicsiedhuiseclvedbeanteshsulnabandiivevesdiiiiiauipeniertadeth 71

Mason v. B.O.A.C., 5 Av. L. Rep. (CCH) 17,121

CER TI TEs Ks TOMMOOR civecknannesddvcsacivsaseusiitlichtgnentantnentaisaisiblenbetin 40

Maugnie v. Compagnie Nationale Air France, 549 F.2d

1256 (9th Cir. 1977) cert. denied 431 U.S. 974 (1977)

Mawimov v. United States, 373 U.S. 49 (1963) «0... 41

McNelly v. McNelly, 38 Ill. App. 3d 637, 348 N.E.2d

BOO (1976) ..ccrcccscccsrcsccreccecscssecesesccvoresscecseseresecssssessasssssssesees 24

Mid-South Chemical Corp. v. Carpentier, 14 Tll.2d 514,

WES WETEDa TE CHBGB) oicscceceveccesecescccssssesesenseeseescnvaseccneests 43

Missouri v. Holland, 25 U.S. 416 (1920) ....ccsseceseeereees 53

Morey v. Dowd, 354 U.S. 457 (1957) ....ccneeeseseesenseenneeees 57

Neilsen v. Johnson, 279 U.S. 47 (1928) ....cccccccecseeees 61, 62

Oakman v. Small, 282 Ill. 198, 118 N.E. 466 (1918)

PPPUTTTITITIITI Tt

Olympic Corp. v. Societe Generale, 462 F.2d 376 (2d

Cr. 1972) scccocscrserrysresosonecosccosesseesscesecsoessesovesensenseressenessontees 73

Pardonnet v. Flying Tiger Line, Inc., 233 F.Supp. 683

(N.D.Tl]. 1964) ccccccscscssccccscssssssersssceseerecnssnessncsssonssnenosenees 39

People v. Prystalski, 858 Ill. 198, 192 N.%. 908 (1934)

eeeeere PPTTTTTTTTTTTT TTT TTT el

PPPTTTTTTTTT TTT TTT LD dee

People ex rel. Compagnie Nationale Air France v.

Giliberto, 74 Tll,2d 90, 383 N.E.2d 977 (1978) ........ 1

vi

PAGE

People ex rel. Phillips Petroleum v. Gitchoff, 357 N.E.

ae, OO CUI BE; sectienstecthvssistessesssoeseeiinvintsianianisninnsand 69, 70

Pitman v. Pan American World Airways, 223 F.Supp.

GT, PaO; BOPUE. ssschesscciisinasbeniabiovisatindseicnbasapumtornensntid

Re Fattosini, 33 Mise. 18, 67 N.Y.S. 1119 (1900)

+ dander tien ailimiiiead lila astlieeaastgustesss babemelasitianibe oie: 61

Reed v. Reed, 404 U.S. 71 (1971) ....cscscccscssssssscseseesseeeees 59

Reid v. Covert, 354 U.S. 1 (1957) ....ssssscccssssssssscessessereee 57

Rinaldi v. Yaeger, 384 U.S. 305 (1966)... 56, 57

Rocca v. Thompson, 223 U.S. 317 (1912) ......sssssssmereeee 41

Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385,

SEA FETE (OER CHIE) cnviversssescsrtssvitersstviasientenisiatenciies 51

Russian Volunteer Fleet v. United States, 282 U.S.

GER CEIA) secre Nisin cinsitdnieenttincalasienecihlltaicaliaeaeeniaciaasaiins 57

Schertenletb v. Traum, Docket No. 78-7049 (Dec. 1978)

eich aninsacvesanieeteliintinenieddinesttageidlibtiiicinandschndeaiatiaibadadeaiii as 7

Smith v. Canadian Pacific Airways, Ltd., 452 F.2d

FO CI RIED si centtcstatonranimnsineestens 27, 28, 30, 36, 49

Sorrells v. United States, 287 U.S. 435 (1932) ............ 42

Spencer v. Northwest Orient Airlines, 201 F.Supp.

SE. CTA BEA: SGD wectnindnchttsnchinihecctnataenitliichiasthiiaintniates

Spiller v. Atchison, T. € S.F.R., 253 U.S. 117 (1920)

svnaticdbidecios ilbalabghacsanslsttantsenetddibehensilsiisbieghiahnaediaeitittesinidibiacaphantisets 43

Standard Industrial Ins. Co. v. Industrial Comm’n.,

39 Tl.2d 172, 233 N.B.2d 362 (1968) ........cecscssesesessess 36

Sullivan v. Kidd, 254 U.S. 483 (1921) ...csecsescscsseseseees 41

The Sapphire, 78 U.S. (11 Wall.) 164 (1870) 0.0.0... 54

The Sophie Rickmers, 45 F.2d 413 (S.D.N.Y. 1930)

skies nnnnintnnnennbalaimiamamaataa Ta

OPN PT en we,

Vii

PAGE

Tivoli Realty v. Interstate Circuit, 167 F.2d 155 (5th

Cir. 1948) cert. den. 344 U.S. 837 (1948) ......ssssee 70

United Biscuit Co. v. Voss Truck Lines, 407 Ill. 488,

Ee Dee eC wschtt inci cicennscivtsnitenssscssnvintecviseensts 36

United States v. Champlin Refining Co., 341 U.S. 290

PAD: = cestsneedishscestabinsshiaedersnan haan itaasiaiicsiesitemsedbiaiibinncaibiiannsiiandaes 43

United States v. Freeman, 44 U.S. 556 (1845) ............ 42

United States v. Minnesota, 270 U.S. 180 (1926) ......... 57

United States v. Pink, 315 U.S. 203 (1942) we. 57

United States v. Rauscher, 119 U.S. 407 (1886) ............ 61

United States v. Reid, 73 F.2d 153 (9th Cir. 1934)

COTE. Bom. ZOD US. GEA (1DBGC) cccccccecscscessecsevcsssccseeceees 42

U.S. ex rel. Castro Louzan v. Zimmerman, 94 F.Supp.

SB CIR he, TD i cateeescreinaiseanechenesentneveisiisdenen 57

U.S. ex rel. Martinez-Angosto v. Mason, 232 F.Supp.

WS LE ee SESE Waiceadtiendchaaidanenen 57

Universal Adjustment, Corp. v. Midland Bank, 281

Maas. 308, 184 N.B. 152 (1983) ...ccccccrscssccsssccssssseseree 52

Van Straten v. Continental Ill. Nat. Bank @ Trust

Co., 8 Tll.App.2d 100, 130 N.E.2d 224 (1955) ........ 20

Varkonyi v. S. A. Empressa De Viaco Aurea B. G.

(Varig), 22 N.Y.2d 333 329 N.E.2d 542, 292 N.Y.S.

Se TEE CID vighalicicesesdeinssttncetcgietonintypaliiatineotivnied 68, 69

Weber v. Aetna Casualty é Surety Co., 406 U.S. 164

1: ee seen a ielinaaaicanoeatio auld uabineibaiee PES EIN 2) TEE 56

Wells v. Webb Machinery, 20 Ill.App.3d 545, 315 N.E.

Be Te TUE) ccrstns ete ietinrecacrecceenibcecdipiltiatinintcclagpeins 20

Wigend v. Hulsh, 315 Ill. App. 116, 42 N.E.2d 146

(CTU :cvicestvinpvsnisasbinncansbcagnintetenctae viaheaoenanioeanmagtbnciameniatcnatct 42

PAGE

Williamson v. Lee Optical Co., 348 U.S. 483 (1955)

Liiceiikaslees iddedirbainleakaaaptadvesaaacataaaenniimamnbniatiicameneteelise 57

Wright v. Henkel, 190 U.S. 40 (1903) ....ccccccccsseseseeees 41

Yick Wo v. Hopkins, 118 U.S. 356 (1886) «00... 57

OrHeER Sources

ie ee a pe a ennee 42

Oe a ak I alta ccicdactn casenecbosenomnanbatietaen 58

Braden & Cohn, The Illinois Constitution, (1969) .... 35

Brief for Justice Dept., In re: Paris Aircrash, 399

By FM EEE edectnisteadsesinctaagistciorapsbevovbiattannsnosnste’ 28

Brief for McDonnell Douglas, Jn re: Paris Aircrash,

NS POURED snssscsitiscccreistinnsinecicencenserscotsisscede 30, 59

Business Insurance, May 28, 1978 ....scssecssssssssseeeeees 25

pS eS a ee ron 52

a tas Ae ROR bicstscis -cdntinns nsnepiatniainsiaemeirnnnniies 36

Competence Jurisdictionelle et lex Fori Dans la Con-

vention de Varsovie, 8 McGill. L.J. 284 (1962) ........ 52

Cooley, Principles of Constitutional Law ........... a 58

Dorsey, Subject Matter Limitations on the Treaty

Power, 4 Int. Lawyer 209 (1970) ......scssccssssesesseees 58

1 Freeman, Judgments § 337 (1925) ..ccccsscsssscseseseesees 36

D. Goedhuis, National Airlegislations and the Warsaw

ID MF Matessiccptnccninriicisititsiieieiiangemanniignin 40, 45, 52

Gunther, In Search of Evolving Doctrine on a Chang-

ing Court, 86 Harv. L. Rev. 1 (1972) ......ccssssseseseees 59

Hayes, Supernational Organizations and the United

States Constitutional Law, 6 Va. J. Int'l. L. 195

PRIIITTT Gisehusiacattasoscccsencensdiinspcaaqidceliatadlhenisbitiplitesecentdeiaeeisehaiies 58

ix

PAGE

Hazard, Requisites of a Valid Judgment, 24 Practical

Lawyer 35 (April 15, 1978) .u......cccccscscccccssssccsseceees 18, 36

Jurisdiction Under Article 28 of The Warsaw Conven-

Bion, 9 McGill L.J. 352 (1963) ...........cscsecsescsseesenssseesesees 51

Keefe, In Praise of Joseph Story, Swift v. Tyson

and “The” True National Common Law, 18 Am.

ey I CIID cnciladinsichitenncintterngtibthinncisnemenmeviintey 55

Leighton, The Rights of Man in the World Com-

munity, 14 L. & Contemp. Prob. 490 (1949) ............ 54

McKenry, Judicial Jurisdiction Under The Warsaw

Convention, 29 J. Air L. & Com. 205 (1963) ............ 39

Minutes of the Second International Conference for

Private Air Law, (Warsaw, Poland, Oct. 4-17, 1929)

Pr A Oe REE OEE ATE Oe, UES PRN aT 53

Puente, International Law (1928) ...ccccccsessesseeessees 57

Report to the Multi-District Litigation Panel, Jn re:

Paris Aircrash, M.D.L. No. 172, 4/28/72 ............. 25

Restatement, Second, Torts, §402A c.cccccccscccsscsessesesseeees 58

Robbins, Jurisdiction Under Article 28 of the Warsaw

Convention, 9 McGill L. J. 352 ( 963) wc eeesesesesees 39

Sincoff, Absolute Liability & Increased Damages in

International Aviation Accidents, 33 J. Air L. &

oie) NASA RIPREEN ARR ES SRE RL AO 55

Statement of Mr. Clarke of Britain, Translation of

Minutes of Warsaw Conventt0n ......cccccccceseeeseeretensees 40, 45

2 Story, Commentaries on the Constitution of the

I HINT: sinctcniicenta ccvenateittacieiiidetunamagiaticigedenectiiponestbictaniehinnn 58

Tompkins, Limitation of Liability By Treaty and By

Statute, 36 J. Air. L. & Com. 421 (1970) ........... 38

PAGE

CoNnsTITUTIONS

TBR, Clematis, Art, WE 4B ceceesicesensscrecscoserrscrassorsstensorn 35

U.S. Constitution, Art. VI Ch. 20 ccsccsssssssssssssssssessseees 5, 61

U.S. Constitution, Amend. XIV § 1 cccsccscssssssssssssesseen 5, 54

STATUTES

WO, ee Wine Ci BON GD iinet csececesenciesissisccnssencns 24

a a asiassenenieend 1

a emenininesenonenenn 70

TREATIES

Convention for Unification of Certain Rules Relating

to International Transportation By Air (Warsaw

Convention) 49 Stat. 3000 et seq. ....csccserersesenceres

secnndionsieaneninintsiibssitiatientudaibapabioabianiapa 3-7, 13-14, 20, 22, 23, 39, 45

Convention of Establishment Between the U.S. and

France, 11 U.S.T. 2398, T.LA.S. 4625 ...ccceseees

Montreal Interim Agreement, C.A.B. Order E23680

Docket 17325, 44 C.A.B. Rep. 819 (1966)... 55

Treaty of Friendship, Commerce and Navigation Be-

tween the U.S. and Israel, 5 U.S.T. 550, T.LA\S.

SPE ccsssssensensentnniinsssinensen canedeipaiiniiaiabteaconataDenpipessialanid 4-17,17, 60

In Tue

SUPREME COURT OF THE UNITED STATES

Octoser Tzrm, 1978

No. 78-1337

THE HONORABLE LOUIS J. GILIBERTO, Judge of

the Circuit Court of Cook County, Illinois, et al., EITAN

ARONOWITCH, et al.,

Petitioners,

vs.

COMPAGNIE NATIONALE AIR FRANCE and

SINGAPORE AIRLINES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Petitioners, Honorable Louis J. Giliberto, Judge of ‘the

Circuit Court of Cook County, Illinois, Eitan Aronowitch,

et al. (80 other named plaintiffs), respectfully pray that

a writ of certiorari be issued to review the judgment of

the Supreme Court of Illinois entered in this case.

OPINION BELOW

The opinion of the Illincis Supreme Court is reported

at 74 Ill.2d 90, 383 N.E. 2d 977 (1978), and is printed in

Appendix A hereto.

JURISDICTION

The opinion of the [linois Supreme Court was filed

and entered of record December 4, 1978, Mandate was

=

issued by the Illinois Supreme Court December 29, 1978.

The Judgment of the Illinois Supreme Court became final

on December 29, 1978, or in the alternative, on December

4, 1978. This Petition is filed within 90 days from Decem-

ber 4, 1978. The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3). In particular, petitioners state

that they, although aliens, principally citizens of Israel,

have rights, privileges and immunities which have been

especially set up and which are claimed under the Con-

stitution of the United States and treaties between the

United States and Israel and France, which rights, privi-

leges and immunities were denied to them by the Illinois

Supreme Court.

QUESTIONS PRESENTED

This case invelves an action in the Circuit Court of

Cook County, Illinois against the defendants, Compagnie

Nationale Air France (Air France), Singapore Airlines,

Ltd. (Singapore) and Gulf Air Lines (Gulf), brought by

plaintiff Eitan Aronowitch and some 80 other named

plaintiffs, principally citizens of Israel, to recover

damages for injuries suffered by the plaintiffs or

for the deaths of four of the decedents. Plaintiffs alleged

their injuries and deaths resulted from the hijacking of

an Air France plane, known as Flight 139, which was

scheduled to fly from Tel Aviv to Paris, with a stopover

in Athens. The aircraft was hijacked by four terrorists

shortly after leaving Athens.

The plaintiffs charge that the hijackers had succces-

sively traveled aboard commercial aircraft operated by

Gulf, from Abu Dhabi to Bahrain, by Singapore, from

Bahrain to Athens, and by Air France, from Athens

destined for Paris, but which latter flight was hijacked

initially to Benghazi, Libya and thereafter to Entebbe,

—§—

Uganda. The suits were filed in such court on the basis

that all three airlines carried on significant business in

that jurisdiction and were subject to in personam juris-

diction of that court.

Air France moved to dismiss the action on the ground

that the Court lacked subject matter jurisdiction of the

action by virtue of Article 28 of the Convention for Unifi-

cation of Certain Rules Relating tv International Trans-

portation by Air, commonly known as the Warsaw Con-

vention (49 Stat. 3000 et seq.), and also moved that the

suit should be dismissed under the doctrine of forum non

conveniens. Singapore moved to dismiss the action on

the latter ground only.

Plaintiffs alleged, in substance, that the State Court of

Cook Count;, Chicago, Illinois, was uniquely situated to

render justice to plaintiffs and to the three airline defen-

dants because it had im personam and subject matter

jurisdiction as to all defendants and that all issues could

be resolved in that one court; that otherwise, plaintiffs

would have to sue different defendants in different courts

in different countries with different lawyers, different lan-

gauges, different rules. The questions presented for re-

view are:

1. Whether the Warsaw Convention is applicable to

all of the claims of the plaintiffs against Air France, their

common carrier.

2. If all of the claims of the plaintiffs are governed

by the Warsaw Convention, does Article 28(1) bar the

action of the plaintiffs against Air France in the State

Courts of Illinois. This question involves:

A. Whether any jurisdictional defense, if any, of

Air France was waived, by reason of its generally

appearing in the Illinois State Court, This in turn

glee

involves whether Article 28(1) involves “subject

matter” jurisdiction.

B. Whether Air France was “domiciled” within the

United States within the meaning of Article 28(1)

in that it carried on substantial business on a

regular basis in the United States and in Illinois,

so that suit was properly instituted in the Circuit

Court in that state.

3. Whether the Warsaw Convention, if applicable, is

unconstitutional insofar as it purports to deprive the

alien plaintiffs of their right to file suit in the Circuit

Court of Cook County, Illinois.

4, Whether the Illinois Supreme Court denied due pro-

cess and equal protection to the alien plaintiffs in dismiss-

ing their suits. This question in turn involves:

A. Whether the Illinois Supreme Court discriminated

against the plaintiffs because they were citizens of

foreign countries, principally Israel, and in doing

so violated the Treaty of Friendship, Commerce

and Navigation Between the U.S. and Israel, 5

U.S.T. 550, T.I.A.S. 2948, and the Convention of

Establishment Between the U.S. and France, 11

U.S.T. 2398, T.I.A.S. 4625, and in doing so denied

plaintiffs due process and equal protection of the

law.

5. Whether the Illinois Supreme Court unconstitu-

tionally violated rules established by this Court pertaining

to the doctrine of forum non conveniens, in unconditionally

dismissing the plaintiffs’ suit, particularly the rule that

an alternative, viable forum must be properly pleaded,

and that a court may not unconditionally dismiss a suit

ae

based upon the existence of mere “potential forums”; and

in doing so the Illinois Supreme Court, as an arm of the

State of Illinois, violated provisions of the Fourteenth

Amendment of the Constitution of the United States, and

discriminated against the plaintiffs because they were

aliens and thereby denied them due process and equal

protection of the laws.

CONSTITUTIONAL PROVISIONS INVOLVED

Article VI, Clause 2 of the Constitution of the United

States:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

Amendment XIV, Section 1 of the Constitution of the

United States:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its juris-

diction the equal protection of the laws. (Italics sup-

plied)

TREATY PROVISIONS INVOLVED

The Treaty of Friendship, Commerce and Navigation

Between the U.S. and Israel, 5 U.S.T. 550, T.LAS 2948,

provides in part:

<n

ARTICLE V

1. Nationals and companies of either Party shall

be accorded national treatment and most-favored-

nation treatment with respect to access to the courts

of justice and to administrative tribunals and agencies

within the territories of the other Party, im all de-

grees of jurisdiction, both in pursuit and in defense

of their rights. (Italics supplied).

The Treaty of Establishment between the U.S. and

France, 11 U.S.T. 2398, T.1.A.S. 4625, containing similar

provisions.

Article 1(2) of the Warsaw Convention:

For the purposes of this convention the expression

‘*international transportation’’ shall mean any trans-

portation in which, according to the contract made by

the parties, the place of departure and the place of

destination, whether or not there be a break in the

transportation or a transshipment, are situated either

within the territories of two High Contracting Par-

ties, or within the territory of a single High Contract-

ing Party, if there is an agreed stopping place within

a territory subject to the sovereignty, suzerainty,

mandate or authority of another power, even though

that power is not a party to this convention.

Article 17 of the Warsaw Convention:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger

or any other bodily injury sutfered by a passenger,

if the accident which caused the damage so sustained

took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.

Article 28(1) of the Warsaw Convention in the French

text, as officially adopted by the United States of America:

(1) L’action en responsabilité devra étre portée au

chois demandeur, dans le territoire d’une des Hautes

a oe

Parties Contractantes soit devant le tribunal du domi-

cile du transporteur, du siége principal de son exploi-

tation ou du ou il posséde un 4stablissement par le soin

duquel le contrat a été conclu, soit devant le tribunal

du lieu de destination. (Shawcross, App. A, Pt. II,

Issue QO.)

Article 28(1) as it appears in the Statutes at Large,

49 Stat. 3000 et seq.:

An action for damages must be brought, at the

option of the plaintiff, in the territory of one of the

High Contracting Parties, either before the court of

the domicile of the carrier or of his principal place

of business, or where he has a place of business

through which the contract has been made, or before

the court at the place of destination.

FEDERAL QUESTIONS PRESENTED

This case involves:

A. The interpretation and application of the Conven-

tion for Unification of Certain Rules Relating to Inter-

national Transportation by Air, commonly known as the

Warsaw Convention (49 Stat. 3000 et seq.).

B. The interpretation and application of the Treaty

of Friendship, Commerce and Navigation Between the U.S.

and Israel, 5 U.S.T. 550, T.I.A.S. 2948, and the Convention

of Establishment Between the U.S. and France, 11 U.S.T.

2398, T.I.A.S. 4625.

C. The interpretation and application of Article VI,

Clause 2 of the Constitution of the United States.

D. The interpretation and application of the Four-

teenth Amendment to the Constitution of the United

States.

= ae

STATEMENT OF THE CASE

- All of the plaintiffs or their decedents were passengers

aboard an Air France aircraft scheduled as Flight No.

139. between Athens, Greece and Paris, France on June 27,

1976. Shortly after takecff from Athens, the aircraft was

hijacked by four terrorists and ordered to be flown to

Benghazi, Libya for refueling and then to Entebbe,

Uganda, after which such passengers were imprisoned in

Uganda.

By their suits, plaintiffs sought justice in the Circuit

Court of Cook County, Illinois where all three defendants,

Air France, Singapore Airlines and Gulf Air, carry on

business on a regular and substantial basis and were

subject to the jurisdiction of that Court. Agents of each

of the defendant airlines were personally served with

summons in Cook County, Illinois, Suit could not be filed

in federal court by the plaintiffs because requisite diversity

of citizenship is lacking. Aliens may not sue aliens in the

Federal Courts of the United States. Plaintiffs had to sue

defendants in state court because all three defendants

are aliens, i.e., foreign corporations in the sense that they

were incorporated and carry on their principal places

of business in other countries. Plaintiffs alleged that the

reasons they brought suit in the Circuit Court of Cook

County were: that coincidentally, but significantly, all three

defendants carried on substantial business in Chicago,

Illinois and were subject to in personam jurisdiction;

that the discovery rules of the Circuit Court of Cook

County would enable all parties to obtain economical,

expeditious and effective redress in one court; that the

carrying out of the litigation before one court was re-

quired if justice were to be rendered; that otherwise, if

plaintiffs were compelled to file their suits against dif-

ferent defendants in different courts in different coun-

Se ey rar

(

— ; -

tries with different languages and different rules, plain-

tiffs would be effectively and realistically deprived of

justice; that there was no ‘‘World Court’’ where plain-

tiffs could seek effective redress; that this case involved

international transitory tort litigation; that the courts

of Illinois were uniquely situated in that Air France,

Singapore Airlines and Gulf Airlines were subject to

im personam jurisdiction in Cook County, and that the

courts of Illinois had an obligation to the plaintiffs, al-

though aliens and principally citizens of Israel, both con-

stitutionally and by virtue of “treaties of friendship” to

hear and resolve their claims and to permit the same

access to such courts as would be granted to citizens

of Illinois, and not to discriminate against the plaintiffs

because they were aliens; that there was no other

“convenient court” which would have jurisdiction of

all defendant airlines which could provide justice

and effective redress as to all parties; that the

facts pertaining to the case would have to be proved

by multiple depositions herein taken in Singapore, Abu

Dhabi, Bahrain, Tel Aviv, Athens, Paris, London, Canada,

the United States and other places throughout the world;

that such depositions could be taken economically and

expeditiously, if taken pursuant to the laws of one court,

namely, the Circuit Court of Cook County; that judicial

efficiency, as well as economy of the litigation, dictated

that one set of depositions constitute’ the discovery and

proof; that because the State Court of Illinois had such

jurisdiction of all defendants, and because there was not

requisite diversity of citizenship, plaintiffs had no choice

but to bring this action against the three air carriers upon

whose aircraft the four hijackers were passengers, in the

State Court of Illinois; that there was no court anywhere

in the world which could issue subpoenas compelling wit-

a, oe

nesses from such far-flung places of the world to come

into such court; that plaintiffs had the legal right to bring

their suit in the State Court of Illinois; that the courts

of the State of Illinois had the duty to hear and resolve

this suit and the duty not to deny to plaintiffs due process

and equal protection of the laws merely because they were

aliens.

Plaintiffs are, for the most part, Israeli citizens and

persons with Jewish names.

They alleged that they were passengers on the Air

France jetliner, Flight 139, which was hijacked shortly

after noon on Sunday, June 27, 1976.

On Sunday, June 27, at 11:35 A.M., Flight 139 from

Tel Aviv to Paris, with a scheduled stop at Athens, touched

down at Athens Airport without incident. This flight was

due at Paris at 2:35 P.M.

Singapore Airlines Flight 763 from Bahrain had landed

at Athens at about 6:45 A.M. on this same Sunday. Among

those passengers who disembarked from the Singapore

Airlines jetliner were four passengers who later boarded

Air France Flight 139. These were the hijackers.

Previously these hijackers had arrived in Bahrain aboard

commercial jetliners operated by the third defendant, Gulf

Airlines.

All four hijackers had been permitted to board

the Gulf Air aircraft enroute to Bahrain, the Singapore

Airlines aircraft enroute from Bahrain to Athens,

and the Air France aircraft enroute from Athens to

Paris, while carrying revolvers, hand grenades, dyna«

mite and other lethal weapons.

The plaintiffs alleged the violation by all three airlines

of nondelegable duties to see to it that security pre-

—i11—

cautions were carried out to prevent passengers from

boarding their respective jetliners while carrying such

weapons, which were easily detectable by the use of routine

security measures. Air France was also charged with

negligence in respect to its duties to plaintiffs, including

the conduct of its flight after takeoff, in failing to keep

the cockpit doors locked and in otherwise failing to exer-

cise necessary security precautions during the operation

of Flight 139.

At 12:25 P.M., Air France Flight 139 was airborne

out of Athens. Eight minutes later, at 12:33 P.M., the four

hijackers stood up. One was clutching a revolver in one

hand and a grenade in the other. Two of the hijackers

placed canisters by the emergency exits.

The aircraft was hijacked and flown to Benghazi, Libya,

where it was parked on a remote runway for six hours

and took on forty-two tons of fuel. Thereafter, at 9:35

P.M. on the same Sunday, the aircraft took off from

Benghazi. The aircraft then was flown for five more hours

into East Africa.

On Monday, June 28, 1976, at 3:15 A.M. the Air France

aircraft landed at Entebbe Airport, in Uganda. The pas-

sengers were kept on the plane for about six hours. Then

they were packed into the Old Terminal, a long disused

building.

Thereafter, Idi Amin, the President of Uganda,

stood in the doorway of the Old Terminal. What thereafter

occurred is chillingly reminiscent of the holocaust of World

War II that claimed millions of Jewish lives.

One of the hijackers, Wilfried Bose, commenced the

process of selection and separation of passengers with

Jewish names from those who did not have Jewish names,

sis Sih

After the first few names were called out, there was no

question but that he and the other terrorists were

employing the same method of selection which had been

carried out at Auschwitz. Some of the plaintiffs herein

have first-hand knowledge of the Nazi gas chambers, mass

graves, ovens, and the Third Reich’s concept of “selection.”

Approximately 100 Jewish passengers were held as

prisoners and hostages for blackmail.

The other approximately 150 passengers who did

not have Jewish names were released unharmed and were

flown to France.

The hijackers demanded the release of terrorist prison-

ers in Israel in return for the lives of the hostages. Thurs-

day, July 1, at 1:00 P.M. Israeli time, was the initially set

deadline at which the Entebbe terrorists’ ultimatum would

expire. If the terrorist prisoners in Israel were not re-

leased, the Jewish passengers, who were imprisoned in

Entebbe, were to be murdered. The deadline was extended.

Meanwhile a rescue mission, carried out by Israeli com-

mandos, known as Operation Thunderbolt, culminated in

the rescue of 104 passengers on July 4, 1976, coincidentally

the 200th anniversary of the Declaration of Independence.

During their imprisonment, some plaintiffs were tor-

tured and otherwise abused for a period of seven days.

Four passengers were killed. Others were seriously in-

jured. Some suffered serious psychic sequellae, particu-

larly those who had previously been subjected to imprison-

ment or torture in Nazi concentration camps.

Commandos from Israel carried out the unprecedented

military operation, Operation Thunderbolt, thereby prob-

ably preventing another holocaust, and possibly World

War III, when no other government had the courage to

confront Idi Amin, the President for Life of the “Republic

— g S

a on

of Uganda,” although for the first time, a nation and its

leader became the protector, and even the spokesman, for

international anti-Semitic terrorists.*

Proceedings in the Courts Below

The Circuit Court of Cook County

Air France first generally appeared in this suit. There-

after it filed its Motion to Dismiss, based upon Article

28(1) of the Warsaw Convention and based upon the doc-

trine of forum non conveniens.

Singapore Airlines filed a Motion to Dismiss based

upon the doctrine of forum non conveniens.

On June 14, 1977, the Cireuit Court stayed discovery,

pending resolution of the motions to dismiss. Thereafter,

an important witness, Henry Kyemba, former Minister of

Health of the Uganda Government, defected from Uganda

and sought asylum in London, England, where he went into

hiding for reasons of security for himself and his family.

He had knowledge concerning the death of one of the

passengers, Dora Bloch. Plaintiffs requested that the stay

order be vacated so as to permit plaintiffs to take the

* Plaintiffs review the facts because one of the issues is

whether the plaintiffs retained the status of “passen-

gers” within the meaning of the Warsaw Convention

after the hijacking occurred, and during the period

while they were imprisoned for seven days in Uganda.

It is the position of the plaintiffs that Air Fiance is

precluded from contending that they retained their pas-

senger status because Air France, in other litigation

in France against Air France has taken the opposite

position, i.e., that the claims of other Jewish passengers

on this same aircraft who were also segregated and

imprisoned did not arise out of an accident within the

meaning of the Warsaw Convention.

wis Se

deposition of Kyemba in London, England. The Circuit

Court modified its prior order accordingly. The evidence

deposition of Mr. Kyemba was taken in London on July

28, 1977.

The third defendant, Gulf Air, also known as Gulf Air-

lines, also filed a motion to dismiss which is pending in the

Cireuit Court of Cook County. By agreement of the par-

ties, this motion has been held in abeyance pending the

outcome of the appeal to the Illinois Supreme Court and

this Petition for certiorari to this Court.

The Ruling of the Circuit Court of Cook County

On March 16, 1978, the Honorable Louis J. Giliberto,

Judge of the Cireuit Court of Cook County, denied the

motions to dismiss of Air France and Singapore Airlines,

holding, in substance, that Article 28(1) does not involve

subject matter jurisdiction and that Air France had waived

any jurisdictional defense under Article 28(1) by reason of

its having generally appeared in the State Courts of Illi-

nois that the Warsaw Convention was adopted by the

United States in its French text; that the history of the

Warsaw Convention demonstrates that the word “domi-

cile”’ appearing in Article 28(1) was never intended to

mean solely the country of incorporation of an incorpo-

rated air carrier; that the word “domicile” in Article 28

(1) was never intended to be given the restrictive mean-

ing given to that word in opinions of various United

States courts in which opinions relate primarily to tax and

corporate litigation; that in addition an affidavit of a

French language expert was filed on behalf of plaintiffs,

which stated that the word “domicile” in the French text

of Article 28(1) means those places within countries where

the air carrier regularly carries on business on a sub-

—15 —

stantial basis; that that affidavit was mot contra-

dicted by Air France; that Air France was

“domiciled” in the United States of America and in the

State of Illinois within the meaning of Article 28(1);

that the basis for the bringing of suit by plaintiffs in the

State Court of Illinois was because Air France, Singapore

Airlines and Gulf Airlines carried on business activities

in the State of Illinois; that none of the defendants

properly pleaded any viable alternative forum anywhere

in any country where effective redress could be obtained

by the plaintiffs; that despite inquiry by Judge Giliberto in

open court, the defendants would not agree upon any al-

ternative forum anywhere in the world where all of them

would consent to jurisdiction; that the fact that plaintiffs

were aliens did not permit discriminatory treatment of the

plaintiffs; that contrariwise, the State Courts of Illinois

had an obligation to grant to the plaintiffs the same

access to the courts of Illinois which the courts would

grant to Illinois citizens; that if the courts of Illinois

did otherwise, the courts of Illinois would be violating

the rights of the plaintiffs to equal protection and due

process; that if the courts of Illinois dismissed this suit,

they realistically would be denying to the plaintiffs due

process and equal protection of the laws; that to force

plaintiffs to sue different defendants in different courts

of different nations with different rules and different

languages would be violating the duty of the State Court

of Illinois to grant equal access to the plaintiffs to the

courts of Illinois, that is, access equal to that of United

States citizens; that if Article 28(1) were to be construed

so as to deny to the plaintiffs the right to sue Air France

in the State of Illinois, even though Air France carries

on business in the State of Illinois on a regular and sub-

stantial basis, that would be tantamount: to the denial

—6—

to, the plaintiffs of due process and equal protection;

that there is no “World Court” which has jurisdiction of

this type of suit; that the courts of civilized nations (in

this instance the Circuit Court of Cook County) had the

obligation to the plaintiffs as well as to the defendants to

hear and resolve this case; that the doctrine of forum non

conveniens was inapplicable because of the failure of the

defendants to plead or agree upon any viable alternative

forum, where all defendants would be subject to jurisdic-

tion in a single court.

The Appellate Court of Illinois and the

Supreme Court of Illinois

Air France filed an original petition for the issuance

of Writs of Mandamus and Prohibition to the Circuit

Court of Cook County to order that Court to grant de-

fendant’s motion to dismiss and to prohibit it from con-

tinuing to exercise and to assume jurisdiction over this

suit because Air France contended that the provisions of

Article 28(1) of the Warsaw Convention prohibited main-

tenance of the suit in any court of the United States, and

because of the principles of forum non conveniens.

Singapore Airlines appealed to the Appellate Court of

Illinois. This appeal was transferred to the Illinois Su-

preme Court.

Discovery was stayed during the appeals to the Lllinois

Supreme Court. Plaintiffs were prohibited from taking

any depositions or otherwise proceeding with normal pre-

trial procedures.

The Illinois Supreme Court granted leave to Air France

to file its original petition for a writ of mandamus and

prohibition on March 30, 1978. On June 28, 1978

the Illinois Supreme Court heard oral arguments.

ic oan

On December 4, 1978, the Illinois Supreme Court ren-

dered its opinion by which the order of the Circuit Court

denying the motions of Air France and Singapore to dis-

miss was vacated and the cause was remanded to the

Cirenit Court of Cook County with directions to dismiss

the action as to Air France and Singapore.

REASONS FOR GRANTING THE WRIT

I.

The Illinois Supreme Court Misinterpreted Article 17

of the Warsaw Convention and Failed to Comply With

Well-Established Law Pertaining to Judicial Admissions.

The Illinois Supreme Court refused to permit the

Circuit Court of Cook County to hear the case.

In doing so it misinterpreted and misapplied the Warsaw

Convention, discriminated against and denied due process

and equal protection to the plaintiffs, because they were

aliens, and in doing so, violated the Treaty of Friendship,

Commerce and Navigation Between the U.S. and Israel,

5 U.S.T. 550, T.1.A.S. 2948 and the Convention of Estab-

lishment Between the U.S. and France, 11 U.S.T. 2398,

T.LA.S. 4625.

The Supreme Court of the United States has not seen

fit to grant certiorari in any case involving the Warsaw

Convention, although this treaty is a half century old and

decisions construing it are in irreconcilable conflict. This

treaty purports not only to limit damages recoverable

against negligent airlines for injury or death, regardless

of the extent of the injuries or damages (approximately

$10,000), unless wilful misconduct is shown, but also

to restrict the rights of innocent passengers as to where

they may file their suits against their negligent air car-

riers,

a

In this case, the plaintiffs have been subjected to

unconstitutional discriminatory treatment, and, in addi-

tion, to violations of their treaty rights, pursuant to

Treaties of Friendship with France and Israel.

This case supplies an excellent vehicle for review by

this Court because much lip service is paid to the preser-

vation of civil and human rights. The essence of the

problem which confronts plaintiffs in this type of litiga-

tion is that no “World Court” has been created to meet

the societal need for a court which will have jurisdiction

to resolve this type of transitory tort litigation.

Geoffrey C. Hazard, Professor of Law, Yale Law School,

in Requisites of a Valid Judgment, (24 Practical Lawyer

35, 40 (April 15, 1978)) states: “Governments share the

purpose of assuring that a party with a valid legal claim

can find some forum in which to obtain effective redress.

Failure to provide legal remedies for wholly domestic

disputes can lead to civic demoralization and disturbance

of the peace through resort to self-help; the same can

happen concerning disputes whose incidents occur in the

territory of more than one government. Broadly speak-

ing, it is therefore a concern of every government to pro-

vide a forum for redress if no better forum can be found,

Le. a forum of last resort.” (Italics added)

Air France took the position in this suit that there

was no question but that all the claims of all the plaintiffs

were the result of an “accident” within the meaning of

Article 17 of the Warsaw Convention and that plaintiffs

were and remained “passengers” of Air France at all

times, including the seven-day period while they were im-

prisoned in Entebbe, Uganda.

In another suit instituted against Air France in France

by two other passengers on the same plane as the plain-

—19—

tiffs herein, Air France took the position that those passen-

gers were not entitled to recover anything from Air

France based upon either the Warsaw Convention or

the Hague Protocol because their claims did not arise

out of an “accident” within the meaning of Article 17 of

the Warsaw Convention. The title of that case is Haddad

v. Air France, Tribunal de Instance, Paris, Index No.

4.241/77.

Plaintiffs were unaware of this diametrically opposite

position of Air France until after Air France filed its

Petition for Writs of Mandamus and Prohibition. Plain-

tiffs filed authenticated English translations of such

French court pleadings with the Illinois Supreme Court.

The Haddads alleged substantially the same factual

allegations as the plaintiffs in the case at bar, name-

ly that they, after the airplane landed in Entebbe, “were

made the object of discrimination because of their Jewish

origin or their Israeli nationality, and were only liberated

by an Israeli military intervention (Operation Thunder-

bolt) during the July 3/4 1976 night.”

The opinion of the French court unequivocally stated

that the primary defense of Air France is that the pro-

visions of the Warsaw Convention or Hague Protocol do

not apply to the claims of those plaintiffs. The Court’s

opinion points out “that the company (Air France) replies

first that Article 17 applies only when the damage is caused

by an accident and maintains that the notion of accident

couldm’t be extended to an act of air piracy.”

The legal significance of the French case to this litiga-

tion, however, is not how the French lower court ruled.

It is that Air France took a position and made a judicial

admission in the courts of France which is the exact op-

—>—-

posite of its pleadings and affidavits filed in the Circuit

Court of Cook County and in the Illinois Supreme Court.

Article 28(2) of the Warsaw Convention requires the

Illinois Courts to apply Illinois procedural law.

The Illinois Supreme Court failed to apply its own law

to this case.

The Illinois Supreme Court did not even refer in tts

opinton to the salient, uncontroverted fact that the record

in this suit, supported by sworn affidavits, showed that Air

France had pleaded an exact opposite position to that which

it took in the courts of Illinois.

Under [Illinois law, pleadings are designed to

put an opposite party on notice as to the is-

sues involved and to in good faith state the pleader’s

position. Breslin v. National Surety Co., 114 F. 2d 65, 68

(8rd Cir. 1930); Van Straten v. Continental Ill. Nat.

Bank & Trust Co., 8 Til.App.2d 100, 130 N.E.2d 224 (1955).

Where statements in pleadings are not expressed in the

alternative, they must be considered as admissions of

such pleader in cases concerning the subject matter,

even if parties are not the same. Wells v. Web Machinery

Company, 20 Tll.App.3d 545, 315 N.E. 2d 301 (1974).

The pleadings by Air France filed in France in Haddad

v. Air France “fall precisely within the judicial admission

category * * * because they were neither amended nor

withdrawn * * *” Wells v. Web Machinery Company, 20

Ill. App. 3d 545, 315 N.E. 2d 301 (1974), at 312. See also

Alan Wood Steel Co. v. Capital Equip. Enter. Inc., 39 Tl.

App.3d 48, 349 N.E.2d 627 (1976), which held that a plead-

ing in another similar cause of action constitutes an ad-

mission against the pleader.

=

Apart from such judicial admissions which bind Air

France as a matter of law, the Illinois Supreme Court

misinterpreted Article 17 of the Warsaw Convention.

The obvious “strategy” of Air France was to induce

the Supreme Court of Illinois to find that plaintiffs here-

im were at all times passengers within the meaning of

the Warsaw Convention, and, therefore, their suit should

be dismissed by reason of Article 28(1), which it con-

tended precludes the bringing of this suit in the Circuit

Court of Cook County.

The basis of the motion of Air France was

that all of the plaintiffs are aliens; that none of

the plaintiffs purchased their tickets in the United

States; that none of the tickets issued to the plaintiffs

included an agreed stopping place or ultimate destination

in the United States; that Air France is not “domiciled”

in the United States (equating erroneously, as hereinafter

shown, that the word “domicile” means solely the nation

of incorporation of an air carrier) and finally because

the principal place of business of Air France is in France.

Air France’s ploy was to get the cases of the plaintiffs,

including Israeli plaintiffs, into France where it will con-

tend the opposite of what it pleaded in the Illinois courts.

Air France pleaded in the French courts that plaintiffs

were not passengers whose claims arose out of an “acci-

dent” within the meaning of Article 17, and that plaintiffs

should get nothing.

The Illinois Supreme Court cited various decisions, in-

cluding Husserl v. Swiss Air Tramsport Co., 388 F.Supp.

1238, 124546 (S.D.N.Y. 1975) ; MacDonald v. Air Canada,

439 F.2d 1042 (1st Cir. 1971); Hernandez v. Air France,

545 F.2d 279 (ist Cir. 1976). cert. denied, 430 U.S.

=

950, 51 L. Ed. 2d 800, 997 S. Ct. 1592 (1977); Maugme

v. Compagnie Nationale Air France, 549 F.2d 1256 (9th

Cir. 1977), cert. denied, 431 U.S. 974, 53 L. Ed. 2d 1072, 97

S. Ct. 2939 (1977); Day v. Trans World Airlines, Inc., 528

F.2d 31, 33, 37-38 (2d Cir. 1975), cert. denied, 429 U.S.

890, 50 L. Ed. 2d 172, 97 S. Ct. 246 (1976); Karfunkel v.

Compagnie Nationale Air France, 427 F. Supp. 971 (S8.D.

N.Y. 1977), as authority for its ruling that plaintiffs re-

tained the status of passengers in the sense that their

claims were governed by the Warsaw Convention, pur-

suant to Article 17.

The facts in this case are materially different from the

facts in any of the decisions cited by the Illinois Supreme

Court. This case involves the segregation of passengers

on the basis of their ethnic origin and their subsequent

imprisonment for one week in Entebbe, Uganda.

In any event, the Illinois court’s ruling concerning

Article 17 of the Warsaw Convention violated Article

28(2) which requires the forum to apply its own procedural

laws. Under Illinois law, Air France was and is pre-

cluded and estopped from attempting to have the IIli-

nois courts apply Article 17 differently than the position

unequivocally taken by Air France in the courts of France.

Il,

Article 28 of the Warsaw Convention Was Misinterpreted

and Misapplied by the Illinois Supreme Court.

A. Article 28(1) Refers to Treaty Jurisdiction which is

Waived by the Filing of a General Appearance.

Assuming, however, that all of the claims of all of the

plaintiffs are governed by the Warsaw Convention as to

their air carrier, Air France, the court below again

failed to comply with its own law pertaining to the effect

ee PR “a

~

of general appearances, and thereby again discriminated

against plaintiffs.

Article 28(2) of the Warsaw Convention provides:

(2) Questions of procedure shall be governed by

the law of the court to which the case is submitted.

Air France waived any jurisdictional defense by gen-

erally appearing in the State Court of Illinois, except

“subject matter” jurisdiction.

Air France concedes this but contends that Article -

28(1) involves subject matter jurisdiction.

Plaintiffs have never disputed that subject matter juris-

diction cannot be waived.

The issue, therefore, is whether Article 28(1) involves

subject matter jurisdiction.

The decision of the Supreme Court of Illinois clearly

is the exact opposite of the position which has been taken

by the Justice Department of the United States in refer-

ence to whether Article 28(1) involves subject matter

jurisdiction.

The Justice Department of the United States has taken

the position that Article 28(1) does not involve subject

matter jurisdiction, and is waived by any air carrier

which generally appears in a court which would have

im personam jurisdiction and subject matter jurisdiction,

except for Article 28(1).

If the Justice Department’s interpretation is correct,

that of the Illinois Supreme Court is wrong; and Air

France, by generally appearing in a court of general

jurisdiction, waived any jurisdictional defense under

Article 28(1).

eee

It is the long-settled law of Illinois that any action

taken by the litigant which recognizes the case as in

Court will amount to a general appearance. McNelly v.

McNelly, 38 Ill. App.3d 637, 348 N.E. 2d 500 (1976).

Under Illinois law Air France was required to ob-

ject to the “jurisdiction of the court over the person” of

such defendant as to these particular cases by filing a

Special Appearance accompanied by affidavits. The statute

(Ill. Rev. Stat. Ch. 110 $20) is specific in stating that, “A

special appearance may be made as to an entire proceeding

or as to any cause of action involved thereim. Every ap-

pearance, prior to judgment, not in compliance with the

foregoing is a general appearance.”

Ill. Rev. Stat. Ch. 110 $20 also states: “If the reasons for

objection are not apparent from the papers on file in the

case, the special appearance shall be supported by affidavit

setting forth the reasons.”

The United States of America and its taxpayers have

a vital interest in a realistic construction of Article 28(1),

pertaining to jurisdiction, because, otherwise, the United

States of America and its taxpayers may be forced to

pay substantial damages in litigation arising out of in-

ternational commercial aircraft disasters, merely because

Article 28(1) purports to forbid suits against interna-

tional air carriers to be brought in the United States, even

though concededly they carry on substantial business in

the United States.

Suits were brought on behalf of over 1,000 alien heirs ,

of over three hundred deceased alien passengers against

various defendants, including Turkish Airlines, an alien

corporation, in the United States District Court in Los

Eero ER open

—_

Ang-les, arising out of the crash of a McDonnell Douglas

DC 10 jetliner which occurred in Paris, France. See Report

to the Multi-District Litigation Panel of Federal Court, In

Re Paris, M.D.L. No. 172, dated April 28, 1978. Most of the

passengers were aliens from thirty-six different coun-

tries. In Re Paris Aircrash, 399 F. Supp. 732; 69 F.R.D.

310 (1975).

Turkish Airlines, an alien defendant, after first gen-

erally appearing, by filing a hull damage suit in the Federal

Court in California thereafter filed the same Article 28(1)

motion to dismiss that Air France filed herein in the Cir-

cuit Court of Cook County, and raised precisely the same

contentions regarding jurisdiction as to the alien plaintiffs

in that litigation that Air France asserts in the suit at bar.

Turkish Airlines does not fly into the United States and

does not carry on business on a regular and substantial

basis in the United States, as does Air France. Turkish

Airlines had a much stronger basis for asserting an Ar-

ticle 28(1) defense as to the alien plaintiffs in that liti-

gation than Air France has in the suit at bar.

The legal issue as to the waivability of Article 28(1)

by the filing of a general appearance, presented to the

Supreme Court of Illinois, therefore, was the same issue

argued and presented to the Federal Court in Los An-

geles.

The Justice Department of the United States took the

position in that litigation that a jurisdictional defense

based on Article 28(1) of the Warsaw Convention does

not involve true subject matter jurisdiction and such a

defense is waivable; that Turkish Airlines by filing a hull

suit in the Federal Court in California had generally ap-

peared in that court before filing its Motion to Dismiss

based upon Article 28(1), and that, therefore, Turkish

—

Airlines had waived any defense as to jurisdiction un-

der Article 28(1).

This Court is well aware that in cases involving foreign

defendants, as well as the United States of America, es-

pecially of the magnitude of that Paris aircrash litigation,

the position of the Justice Department of the United States

is taken only after careful review and consideration.

There is no case which has held that an international

air carrier may not waive Article 28 by generally appear-

ing in a Court which would otherwise have jurisdiction.

Turkish Airlines paid multi-millions of dollars in settle-

ments, all of which were specifically approved by orders

of the Federal Court in California.

The orders approving settlements, entered by the

United States District Court stated on their face that they

applied specifically to such alien airline, and were signed

and approved by counsel for Turkish Airlines.

Business Insurance, May 28, 1978, which reviewed the

report issued by United States District Court Judge

Pierson M. Hall to the Multi District Panel of the United

States District Courts stated: “An exact total of

$62,268,750 in settlements has been paid to 1,123 claimants

worldwide from the lawsuits in United States District

Court here [Los Angeles] for the deaths of 340 persons

in the 1974 crash of a Turkish Airlines DC10 near Paris.’’

It is inane to contend United States District Court

Judge Pierson M. Hall, one of the most experienced judges

in this country concerning international aviation litigation,

would sign numerous orders approving settlements involv-

ing the claims of alien plaintiffs against Turkish Airlines,

which previously had filed Motions to Dismiss based on

oo

Article 28, if the Court considered that there was any doubt

whatever but that it had both in personam and subject

matter jurisdiction of the claims of all plaintiffs, includiny

the numerous alien plaintiffs, against Turkish Air-

lines, including those claims as to which such airline had

previously filed motions to dismiss based upon Article

28(1) of the Warsaw Convention.

Otherwise the orders would be a complete nullity as to

both such plaintiffs and the airline, and would provide

no protection to the airline or its insurers.

The Turkish Airlines case involved precisely the same

legal issue as is involved in the case at bar: (a) alien

passengers, who purchased their tickets in various foreign

countries; (b) their tickets did not provide for ultimate

destinations in the United States; (c) the principal place

of business of Turkish Airlines is Turkey; (d) Turkish

Airlines was incorporated in Turkey.

In the case at bar, the Article 28(1) defense of Air

France raised as to the plaintiffs herein is exactly the

same as that raised by Turkish Airlines as to the alien

plaintiffs in that case.

The United States Justice Department in the Turkish

Airlines case emphasized the distinction between genuine

subject matter jurisdiction, which involves the power of a

court to hear the type of case which has been filed, and

‘‘treaty jurisdiction’? (the phrase coined in Smith v. Cana-

dian Pacific Airways, Ltd., 452 F.2d 798 (2d Cir. 1971)).

The Justice Department of the United States of Amer-

ica took the unequivocal position that the United States

District Court in Los Angeles had jurisdiction of both the

subject matter and the person of Turkish Airlines, and

that such foreign air carrier, by generally appearing in

eae Fee

such court before filing its motion to dismiss based upon

Article 28 of the Warsaw Convention, waived any objec-

tions to the jurisdiction of such Court to hear and resolve

those suits as to such foreign airline. The Justice Depart-

ment’s position as to the meaning of Article 28(1) is the

opposite of that of the Illinois Supreme Court:

While referring to jurisdiction the Warsaw Con-

vention does not speak of “subject matter jurisdic-

tion” and the provisions of Article 28(1) can be, and

have been, waived by THY (Turkish Airlines). * * *

Defendant THY, in its Memorandum on Jurisdic-

tional Issues, relies heavily on the decision of the

Court in Smith v. Canadian Pacific Airways, Ltd.,

452 F.2d 798 (2nd Cir., 1971). THY derives from its

reading of Smith the proposition that since ‘‘. . . none

of the places specified in Article 28(1) of the Warsaw

Convention is in the United States, the courts of the

United States lack subject matter jurisdiction of an

action for damages subject to the provisions of the

Warsaw Convention.’? Memorandum of THY, A.O. of

Jurisdiction page 43. Yet even in the excerpt chosen

by THY the Smith eourt speaks not of ‘‘subject

matter jurisdiction,’’ but of ‘‘treaty jurisdiction’’.

The defendant THY does not, and in fact cannot

show that ‘‘treaty jurisdiction’’ is equivalent to ‘‘sub-

ject matter jurisdiction.’’ * * *

The Smith case does not equate treaty jurisdic-

tion and subject matter jurisdiction. * * *

Without the limiting aspects of Article 28(1), this

Court undoubtedly would have jurisdiction in this

action.

The United States believes that under certain cir-

cumstances the air carrier can, after the damage

occurs, waive the limitations in Article 28, which

should not be construed as restricted to “subject

matter jurisdiction” as used in the Federal Rules of

Civil Procedure, The United States believes that in

a om

this case THY (Turkish Airlines) has waived the

provisions of Article 28. (Italics supplied)

Brief for Justice Dept., In re: Paris Aircrash, 399 F.Supp.

732 (1975).

Plaintiffs filed the entire brief of the Justice Depart-

ment in the case at bar, and quoted from it in their Briefs

filed in the Cireuit Court and in the Illinois Supreme

Court.

The Illinois‘Supreme Court did not refer to the con-

trary position of the Justice Department.

It would seem clear that this treatment of plaintiffs

herein was hardly consonant with the Treaties of Friend-

ship between the United States and Israel and France,

which require equal access and consequent equal treatment

of citizens of Israel and France.

The opinion of the Supreme Court of Illinois is dia-

metrically opposite the position of the Justice Depart-

ment of the United States concerning Article 28(1) of

the Warsaw Convention.

In the Turkish Airlines litigation, if Article 28(1) were

construed the way the Supreme Court of Illinois construed

it, as involving ‘‘subject matter jurisdiction”’ in the legal

sense of nonwaivability, the practical effect of such a hold-

ing would be to compel the United States of America to

pay all damages of plaintiffs in a great many cases involv-

ing international air crashes.

In addition to the position of the Justice Department,

a United States aircraft manufacturer, McDonnell Doug-

las Corporation, also a defendant in the Paris Aircrash

cases, took the same position as the Justice Department,

namely, that Article 28 does not involve subject matter

jurisdiction and that an airline which generally appears

in a court otherwise having jurisdiction is precluded from

a

thereafter raising a defense as to jurisdiction based upon

Article 28 of the Warsaw Convention. Its brief stated:

Contrary to THY’s (Turkish Airlines) assertion

that the court in Smith found Article 28(1) related

to “subject matter jurisdiction,” the Second Circuit

carefully avoided such a holding. After noting that

prior cases had “divided about evenly into decisions

that view Article 28(1) as a clause dealing with sub-

ject matter jurisdiction and those that characterize

it as a venue provision,” 452 F.2d at 800 and n. 5,

the decision does not again refer to “subject matter

jurisdiction.”

Instead, it concludes Article 28(1) relates to

‘treaty jurisdiction,’’ which it treats as separate

from “domestic jurisdiction and venue questions.” Jd.

at 802. The opinion does find that Article 28(1) goes

to the court’s ‘‘basic jurisdiction,’’ but never implies

that all concepts attendant to ‘‘subject matter juris-

diction’’ apply to ‘‘treaty jurisdiction’’ as well. In

particular Smith decided nothing about the waiv-

ability of Article 28(1).

. * *

To characterize Article 28(1) as ‘‘subject matter

jurisdiction’’ is to apply a term with a conceptual

basis and history entirely different from the Warsaw

Convention.

Brief for McDonnell Douglas, In re: Paris Aircrash, 399

F.Supp. 732 (1975).

The Smith court recognized that decisions as to whether

Article 28(1) involve subject matter jurisdiction or venue

are about evenly divided.

Clarification of this issue by this Court is required not

only from the standpoint of passengers but also the fed-

eral government and the thousands of United States

manufacturers of aircraft and their component parts.

There are innumerable cases in which the United States

of America and its taxpayers (as weil as in many instances

oh OE

United States aircraft manufacturers) could be required

to pay all damages in respect to international air ac-

cidents, even though their negligence might be minimal

compared to that of the commercial international airline

upon whose aircraft the plaintiffs were injured or killed.

Suppose 300 United States lawyers attend a convention

in England. While in England, due to bad weather, they

decide to fly to Paris for a few days. They purchase new

tickets in England to fly aboard an Air France DC 10 air-

plane from England to Paris and back to England. They

are killed enroute from England to Paris. Their families

institute suit against Air France in a court in a jurisdic-

tion in the United States where Air France carries on sub-

stantial business. The United States of America is also

named as defendant.

Air France is charged with wilful misconduct in flying

an aircraft with a known serious structural defect which

caused the plane to disintegrate during normal flight.

The United States of America is charged with negligence

in improperly certifying the aircraft when it knew or

should have known of the structural defect.

The residences of the plaintiffs have nothing to do with

Article 28(1). Air France under the authority of the opin-

ion of the Illinois Supreme Court in the case at bar would

contend exactly the same as it contends in the case at bar,

namely that the plaintiffs could not sue Air France in the

United States because of Article 28(1) because: (a) the

plaintiffs did not purchase their tickets in the United

States, for the London-Paris-London flights; (b) their

ticketed destination was England; (c) the principal place

of business of Air France is in France; and (d) Air -

France has its “sole domicile” in France.

—32—

Air France would contend that this Court, by denying

the Petition for Certiorari, if this Court does so without

comment, acquiesced in the ruling of the Illinois Supreme

Court.

The decision of the Illinois Supreme Court is im-

portant. Its importance even transcends the rights of

the plaintiffs, although their rights alone should be suffi-

cient to warrant correction of the opinion of the Illinois

Supreme Court.

The above example involving the 300 United States

citizens demonstrates this. Presumably Air France would

be dismissed as a defendant because of Article 28(1),

pursuant to the decision of the Illinois Supreme Court.

Therefore, the United States of America would re-

main as the sole defendant in the federal court of the

United States. Despite the fact that the accident occurred

either in France or in England, the United States could

be held liable because its negligent conduct in respect

to certification occurred in the United States.

If the United States of America were held 20% at fault

and if the absent defendant, Air France, were held 80% at

fault (equivalent to wilful misconduct) and if the families

of the 300 American deceased lawyers-passengers recov-

ered an average of $500,000 each, the United States tav-

payers would be required to pay $150,000,000. Plaintiffs

would have the legal right to collect all damages from

the federal government.

Air France, although decreed 80% negligent, would pay

nothing. See, e.g., American Motorcycle Ass’n v. Superior

Ct., 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978).

It would be wholly unattuned to reality to expect the

families of the American passengers to sue Air France

a

in England or France when they would have the right

to collect the full amount of their damages (one hundred

and fifty million dollars) from the federal government.

On the other hand, assume that in the above example,

McDonnell-Douglas and Air France were sued in the

United States; that Air France was dismissed as a defen-

dant because of Article 28(1); that McDonnell Douglas,

therefore, remained as the sole defendant in the United

States; that McDonnell Douglas was held liable by a

court of the United States, even though the court ruled

that the negligence of McDonnell Douglas was minimal in

comparison to that of A‘r France; that the total dam-

ages of the families cf the 300 American lawyers were

150 million dollars.

Who would pay?

McDonnell Douglas would pay one hundred and fifty

million dollars.

Air France would not pay.

We have previously shown that McDonnell Douglas in

other litigation which involved precisely the same issue

as is involved in the case at bar, namely, whether Article

28(1) involves subject matter jurisdiction, took the same

position of that of the Justice Department of the United

States.

The bottom line is that the decision of the Illinois

Supreme Court in the case at bar not only denied equal

protection and due process of the law to the plaintiffs

herein, but it purports to establish a precedent which wi!l

deny due process of the law and equal protection of the

law in the future to (a) the United States of America,

(b) United States manufacturers of aircraft, and (c)

a

thousands of United States makers of component parts

of aircraft.

Innumerable other similar examples of the erroneous

interpretation of Article 28(1) by the Illinois Supreme

Court could be given.

Suppose a Chicago husband and wife, Mr. and

Mrs. Jones, are traveling to England with a planned one-

day side visit to Paris via Air France. The couple pur-

chase separate tickets from Air France in its Chicago

office providing for carriage from Chicago to London to

Paris to London to Chicago. They board an Air France

flight in Chicago, Illinois for the trip to London. In

the middle of their stay in London they plan to take their

one-day visit to Paris. When they arrive at the London

airport for their Air France flight, Mrs. Jones discovers

that she inadvertently left her ticket in her hotel room.

She thus purchases a new separate ticket at the London

airport to fly from London to Paris and return to London.

An accident occurs in France on this Air France London-

Paris flight and both husband and wife are killed.

As a result, the children file suit against Air France

in the Cireuit Court of Cook County for damages by rea-

son of the deaths of their parents.

According to Air France, the Cirevit Court would have

jurisdiction as to Air France concerning the suit for the

death of the husband because the husband purchased his

ticket in Chicago in the United States.

According to Air France, the Circuit Court would not

have jurisdiction as to Air France for the death of the

wife, because the wife purchased a new ticket in London

to fly from London to Paris.

~

Undoubtedly the family of this deceased Chicago couple

would be totally unaware that Mrs. Jones purchased a

new ticket in London to fly from London to Paris.

Naturally, they would assume that Mrs. Jones, as well

as her husband, Mr. Jones, had used the same tickets which

they purchased before departure in the Chicago Office

of Air France, which included the London-Paris flight.

This example again demonstrates the error of the

interpretation of Article 28(1) by the Illinois Supreme

Court. If the Illinois Supreme Court is correct that

Article 28(1) involves “subject matter jurisdiction” which

can never be waived, the Jones plaintiffs could go through

long and costly litigation and a trial only to have Air

France, after five years of litigation and appeals, collater-

ally attack the judgment for the wrongful death of the

wife, Mrs. Jones, simply because she had purchased her

ticket in London, and that therefore the Illinois courts

did not have ‘‘subject matter jurisdiction,’? and that

nothing that Air France did could constitute a waiver

regarding jurisdiction.

In Illinois, the investiture of jurisdiction to the circuit

courts derives from Article VI, Section 9, of the Illinois

Constitution, which grants to circuit courts “original jur-

isdiction of all justiciable matters,” except where the Su-

preme Court has exclusive and original jurisdiction. Ill.

Const. Art. VI, §9 (1970). Under this provision, circuit

courts have general jurisdiction over all cases involving

personal and property rights including the type of suit at

bar. See Braden & Cohn, The Illinois Constitution, 330

(1969).

pa

The “subject matter jurisdiction” of a court is the

power of that court to hear the type of case presently

before it. Faris v. Faris, 35 Ill.2d 305, 309, 220 N.E.2d

210 (1966) ; Bush v. Hanson, 70 Tl. 480 (1873). Specifically,

it defines the authority of the court to hear ‘‘the class of

cases to which the particular case in question belongs.’’

People v. Shurtleff, 353 Ill. 248, 261, 187 N.E.2d 271

(1933); accord, Standard Industrial Ins. Co. v. Industrial

Comm’n, 39 Ill. 2d 172, 233 N.E.2d 362 (1968).

Subject matter jurisdiction may therefore be viewed as

the preconceived power of the court to entertain a certain

variety of case. As such, it does not address the place of

the occurrence or the power over the person, United Bis-

cuit Co. v. Voss Truck Lines, 407 Ill. 488, 95 N.E.2d 439

(1950), but is conferred to the court by law. People v.

Prystalski, 358 Til. 198, 192 N.E. 908 (1934); Oakman v.

Small, 282 Til. 198, 118 N.E. 466 (1918).

The four contacts enumerated in Article 28(1) by their

terms do not relate to a present day conception of subject

matter jurisdiction. Subject matter jurisdiction “has refer-

ence to the nature of the cause of action or the relief

sought,” 1 Freeman, Judgments §337 (1925), and defines

“the power [of the court] to deal with the general subject

matter involved in the action.’’ 21 C.J.S. §35 (1940).

The relationship of the Circuit Court°of Cook County

to this litigation consists of ‘‘territorial’’ jurisdiction,

which refers to the connection between the territorial

authority of the court and the action brought before it

(see Hazard, Requisites of a Valid Judgment, 24 Practical

Lawyer, 35, 39 (1978)), or “treaty” jurisdiction (Smith v.

Canadian Pacific Airways, Lid., 452 F.2d 798 (2nd Cir.

1971)).

—

This Court has never reviewed a case involving the

Warsaw Convention. The case at bar involves many sig-

nificant issues concerning its construction, Review by this

Court of the case at bar will result in clarification of the

Warsaw Convention, particularly Article 28(1). Other-

wise, manifest injustice will result, not only to innocent

victims of international air crash accidents and hijack-

ing, but also to the taxpayers of the United States and

to United States aircraft and component part manufac-

turers.

This world has become a _ shrinking planet. 4.1

billion people occupy it. They are citizens of over 200

nations, many of which are not adherents to the Warsaw

Convention. Nonetheless, the 4.1 billion people on this

earth are bound by the Warsaw Convention, depending

upon such implausible, unrealistic determinants as where

they bought their tickets, or where they are ultimately

going to, or where some musty papers of incorporation

were filed by an international airline perhaps 50 years

ago, or where the principal place of business is of such

international airlines.

It would seem that this Court has before it a unique

opportunity to do something so that a fifty-year-old treaty

no longer destroys the rights of innocent victims, as well

as United States taxpayers and United States manufac-

turers, in respect to subsonic, supersonic and hypersonic

travel. The Warsaw Convention even literally applies to

outer space travel.

The fact that plaintiffs are aliens (as the Illinois Su-

preme Court repeatedly emphasized as though their

citizenship makes a difference in the way they should he

judicially treated) is not only of no consequence, but the

Treaties of Friendship between the United States and

Israel and France require that plaintiffs be accorded the

at cies

same rights as Illinois citizens would have received at the

hands of the Illinois court.

The world has been transformed in little more than a

generation, catapulted from the horse-and-buggy era to

conventional jetliners, and soon to extensive supersonic

transports, hypersonic airliners and the space age. The

legal profession throughout the world simply has not kept

up with these massive changes.

Judges and lawyers have painted themselves into a

corner. Society views lawyers as technicians, practicing

a rather esoteric craft of small value. Others state that

some lawyers are irrelevant, even obsolescent. Certainly

the legal profession throughout the world can hardly jus-

tify a state of the law in which a computer has to be

used to try to figure out whether a treaty is applicable

to a particular flight. See Tompkins, Limitation of Lia-

bility of Treaty and Statutes, 36 J. Air L. & Comm. 421

(1970).

This Court may conclude that the problem is that of

the President and the Senate of the United States. It is

not. Denunciation of the Warsaw Convention by the United

States Senate will not solve the problem. United States

citizens would still be bound by the Warsaw Convention,

depending upon where they purchased their tickets and

their ticketed ultimate destinations.

Article 28(1) has never been construed by this Court as

to whether it involves “subject matter jurisdiction.” The

position taken by the Justice Department of the United

States in reference to the meaning of Article 28(1) is

the opposite of that taken by the Illinois Supreme Court.

It is respectfully submitted that this Court should grant

certiorari on this basis alone to review the opinion

of the Illinois Supreme Court.

— 39 —

B. The Circuit Court of Cook County Had Jurisdiction

as to Air France By Reason of the Fact That it Car-

ries on Substantial Business on a Regular Basis

Within the United States and Within the Jurisdic-

tion of the Forum Court and is, Therefore, “Domiciled”

Within the United States Within the Meaning of

Article 28 of the Warsaw Convention.

This point is academic if this Court grants certiorari

and rules that the Warsaw Convention does not apply

to the claims of the plaintiffs or that, if it does apply, Air

France waived any defense relating to jurisdiction based

upon Article 28(1) by reason of its general appearance in

the Circuit Court of Illinois, a court of general juris-

diction.

Assuming, however, that Article 28(1) applies, it is

clear that an action may be brought at the option of the

plaintiffs in any Court within any nation which constitutes

one of the places described in Article 28(1). Plaintiffs’

choice of forum within that nation is governed by the in-

ternal law of that country, not by the Warsaw Convention.

Pardonnet v. The Flying Tiger Line, Inc., 233 F.Supp.

683 (N.D. Ill. 1964); Pitman v. Pan American World Air-

ways, Inc., 223 F. Supp. 887 (E.D. Pa. 1963); Spencer v.

Northwest Orient Airlimes, Inc., 201 F.Supp. 504 (S.D.

N.Y. 1962) ; see McKenry, Judicial Jurisdiction Under the

Warsaw Convention, 29 J. Air L. & Com. 205 (1963);

Robbins, Jurisdiction Under Article 28 of the Warsaw

Convention, 9 McGill L. J. 352 (1963).

Article 28 refers to nations as distinguished from states.

Therefore, if the United States of America constitutes

any of the nations where suit could be brought against Air

France within the meaning of Article 28(1), suit properly

was brought in Illinois, insofar as jurisdictional questions

are concerned, because Cook County, Illinois is one of the

— 40 —

places where Air France concededly carries on business

on a regular basis.

The Warsaw Convention was drafted in the French lan-

guage. The French text is controlling. Husserl v. Swiss

Air Transport Company, 388 F. Supp. 1238 (S.D.N.Y.

1975), held that ‘‘this country adhered to the French

text of the Convention.’’ The Warsaw Convention treaty

was adopted by the United States in the French language

(49 Stat. 3000). See also Benjamins v. British European

Airways, 572 F.2d 913 (2nd Cir. 1978), which held that

the English language translation contained in the Statutes

at Large is “unofficial.” 572 F.2d 913 (2d Cir. 1978).

Article 28(1) was designed more than a half century

ago to prevent suits in courts of nations where aircraft

crashed because the Courts of such places might have un-

developed judicial systems. D. Goedhuis, National Airlegis-

lations and the Warsaw Convention, 286-89 (1937); Mason

v. B.0.A.C., 5 Av. L. Rep. (CCH) 17,121 (S.D.N.Y. 1956).

See also Statement of Mr. Clarke of Britain, Translation

of Minutes of Warsaw Convention, at 187.

The question is what do the words of Article 28(1) ‘‘le

tribunal du domicile du transporteur,’? mean as applied

to international airlines such as Air France?

Air France contends such words limit suit to the courts

of the nation where the airline was formally incorporated,

i.e. in the country where its articles of incorporation were

filed.

It is the position of the plaintiffs that these words mean

the courts of a nation where such an airline is ordinarily

resident in the sense of where it regularly and substantially

carries on business.

es

We respectfully submit that the Illinois Supreme Court

adopted an erroneous interpretation of Article 28(1),

without consideration of the history of the Warsaw Con-

vention or basic rules of construction of a treaty. Fur-

thermore, the interpretation by the Illinois Supreme Court

is not consonant with the reality of multinational corpora-

tions, including international airlines, and the fact that

realistically they are “domiciled” in multiple nations

of the world.

The same principles which apply to the construction of

a statute govern the interpretation of a treaty. Sullivan

v. Kidd, 254 U.S. 433, 439, 41 S. Ct. 158, 160-161 (1921);

Rocca v. Thompson, 223 U.S. 317, 331-332, 32 S. Ct. 207,

210 (1912); Board of County Comm’rs vy. Aerolineas

Peruanasa, S. A. 307 F.2d 802, 806 (5th Cir. 1962), cert.

den., 371 U.S. 961, 83 S. Ct. 543 (1963); Hidalgo County

Water Control and Improvement District v. Hedrick, 226

F.2d 1, 7 (5th Cir. 1955), cert. den., 350 U.S. 983, 76 S. Ct.

469 (1956); (looking to the intent of *’e parties and the

purpose to be achieved); Maximov v. United States, 373

U.S. 49, 54, 83 S. Ct. 1054, 1057 (1963), aff’g 299 F.2d 565,

568 (2nd Cir. 1962); Factor v. Laubenheimer, 290 U.S. 276,

293-294, 54 S. Ct. 191, 195-196 (1933); Wright v. Henkel,

190 U.S. 40, 57, 23 S. Ct. 781, 785 (1903); (as evidenced by

the treaty itself); Factor v. Laubenheimer, supra (so as

to give a sensible meaning to all of the provisions thereof,

if that be practicable) Sullivan v. Kidd, supra; De Goef-

frey v. Riggs, 133 U.S. 258, 270, 10 S. Ct. 295, 298 (1890).

In so doing, the Courts are not required to abdicate what

is basically a judicial function. Kolovrat v. Oregon, 366

U.S. 187, 194, 81 S. Ct. 922, 926 (1961); Factor v. Lauben-

heimer, supra; Sullivan v. Kidd, supra; Charlion v. Kelly,

229 U.S. 447, 468, 33 S. Ct. 945, 952 (1913); Argento v.

Horn, 241 F.2d 258, 263 (6th Cir. 1957), cert. den., 355

ee

US. 818, 78 S.Ct. 23 (1957); United States v. Reid, 73

F.2d 153, 156 (9th Cir. 1934), cert. den., 299 U.S. 544, 57

S. Ct. 44 (1936); The Sophie Rickmers, 45 F.2d 413, 418

(S.D.N.Y. 1930).

It is well established that even though an interpretation

of legislation has been affirmed by former adjudication it

remains open to inquiry and investigation in the light of

ay ae tas 1i Am. Jur., Const. Law, § 102, p. 738,

nn 11-16.

In construing a treaty between the United States and

Yugoslavia, the Court in Kolovrat v. Oregon, 366 U.S. 187

(1961) said that a treaty should be interpreted ‘‘in the

light of its entire language and history.’’ In resolving any

apparent ambiguity, the Court should be guided by prin-

ciples of moral conscience and justice. Biggs v. Easterly,

62 Barb. (N.Y.) 51 (1872).

In interpreting Article 28(1), this Court is entitled to

employ basic rules of statutory construction. In this con-

nection, one rule is that the Court should consider the

spirit of the statute. Fleischman Const. Co. v. United

States, 270 U.S. 349, 70 L.Ed. 624, 46 S. Ct. 284 (1926) ;

Carey v. Donohue, 240 U.S. 430, 60 L.Ed. 726, 36 S. Ct.

386 (1916); Hoyne v. Danisch, 264 Il. 467, 106 N.E. 341

(1914); In Interest of Carson, 10 Ill. App. 3d 384, 295

N.E.2d 740 (1973); Wigend v. Hulsh, 315 I. App. 116, 42

N.E.2d 146 (1942).

Another basic tenet of construction is that the Court is

privileged to consider the reasons for the statute. Conti-

nental Illinois Nat’l. Bank v. Chicago, R. I. & P. Ry., 294

U.S. 648, 791 L.Ed. 1110, 55 S. Ct. 595 (1935); Sorrells

v. Umited States, 287 U.S. 435, 77 L.Ed. 413, 53 8. Ct. 210

(1932); Umited States v, Freeman, 44 U.S, 556, 11 L.Ed.

rhe

724 (1845), as well as the objective of the statute. Untted

States v. Champlin Refining Co., 341 U.S. 290, 95 L.Ed.

949, 71 S. Ct. 715 (1951); Apex Hosiery Co. v. Leader,

310 U.S. 469 84 L.Ed. 1311, 60 S. Ct. 982 (1940); Gannon

v. Chicago, M., St. P. d P. Ry., 22 Tl. 24.305, 175 N.E.2d

785 (1961); Mid-South Chemical Corp. v. Carpentier, 14

Ill. 2d 514, 153 N.E.2d 72 (1958).

A liberal construction is one which places emphasis upon

the purposes and spirit of the law over the strict letter.

DuBois v. Hepburn, 25 U.S. (10 Pet.) 1, 9 L.Ed. 325 (1836).

Such an interpretation seeks to avoid results at variance

with the intent of the law. International Mercantile Marine

Co. v. Lowe, 93 F.2d 633 (2d Cir. 1938); Becker Steel Co.

v. Cumming, 296 U.S. 74, 80 L.Ed. 54, 56 S. Ct. 15 (1935) ;

Spiller v. Atchison, T. & S.F.R., 253 U.S. 117, 64 L.Ed.

810, 40 S. Ct. 466 (1920).

In interpreting the Warsaw Convention, Judge Kauf-

man in Lisi v. Alitalia Airlines, 370 F.2d 508, 511-12 (2d

Cir. 1966), aff’d 390 U.S. 455 (1968), stated: ‘‘The task

of ascertaining the meaning of words is difficult, and one

certain way of misinterpreting them is by a literal read-

ing. As Learned Hand put it, ‘words are such temper-

mental beings that the surest way to lose their essence is

to take them at their face.’ ’’

A literal reading of the word ‘‘domicile’’ in Article 28

as meaning solely and only the country of incorporation

loses the essence of that word. The word ‘‘domicile,’’ in

the French language is not equatable with the legal mean-

ing of the word, ‘‘domicile,”’ in the English language. As

pointed out in Eck v. United Arab Airles, Inc., 15 N.Y. 2d

53, 59 n. 2, 255 N.Y.S. 2d 249, 251, 203 N.E.2d 640, 641

n. 2 (1964): ‘*When the Convention was originally drafted

in 1926, Charles Lindbergh had not flown to Paris. When

it was first adopted, Air France had two overseas flights,

PPS EE I 2 Fae —/}, =

ee

one from Paris to London and the other from Marseilles

to Tunis. Pan American flew from Key West to Havana.’’

It is inane to say that delegates from Spain, Brazil,

Yugoslavia, Rumania, France, Poland, and Latvia, who

met in Warsaw, Poland, between 1925 and 1929 had the

prescience to employ a French word, “domicile,” which

also happened to be an English word, in the context of

its meaning in United States corporation law i.e., as mean-

ing the state within the United States where a corporate

airline was incorporated. Such an interpretation is so

inconsistent with reality and the history of and minutes

pertaining to the Warsaw Convention that it is the

province of the United States Supreme Court to clarify

the meaning of Article 28 in the light of modern condi-

tions, including the existence of many multinational inter-

national airlines such as Air France, which are “domiciled”

in various nations.

The Illinois Supreme Court adopted an erroneous inter-

pretation of Article 28(1) in regard to this litigation

which involves plaintiffs principally from Israel, some

from France, others from Canada, Spain and Morocco.

The defendants are multinational airlines, having their

principal places of business respectively in Paris, Singa-

pore, and Abu Dhabi. The hijacking took place over Greece

and the Ionian Sea. The plane was forced to land at Ben-

ghazi, Libya, and then flown to Uganda. The imprisonment

of plaintiffs took place in Entebbe, Uganda. The injuries

to most of them and the deaths of four of them took

place in Uganda.

The constricted interpretation of Article 28(1) by the

Illinois Superme Court would mean that some plaintiffs

might have to sue some defendants in different courts

throughout the world,

— 45 —

It is difficult to believe that more than fifty years

ago, when Article 28(1) was drafted in Poland, utilizing

the French language, the drafters intended that the word

**domicile’’ should be interpreted and applied so as to pre-

clude suits, such as that of the case at bar, against airlines

which carry on a substantial amount of business within a

nation. .

The history of the Warsaw Convention is the op-

posite. Article 28(1) was never intended to thus restrict

the filing of suits. Rather, it was intended to prevent suits

where the aircraft may have crashed because the courts

of such a country might not be suitable. Translation of

Minutes of Warsaw Convention, Clarke, pg. 187; Goed-

huis, National Airlegislations and the Warsaw Convention,

286-289.

There is no ‘“‘World Court’’ which has jurisdiction to

resolve this type of case. Within the framework of the

outmoded existing law, the Circuit Court of Cook County

constitutes a proper forum where this suit properly has

been brought against all three airlines. All that the plain-

tiffs seek is the presentment of their cause to a jury of

twelve disinterested persons.

Normally, as has been indicated, suits such as this are

not filed in the state courts of this country, but in federal

courts.

By force of circumstances, the Circuit Court of Cook

County had presented to it a case of international sig-

nificance and a case which is upon the world stage.

There is an excess of platitudinism about human rights

and civil rights. The plaintiffs have human and civil rights

to have their case heard by a court which can resolve all

their claims against all the defendants in a single tribunal.

a

It so happens that the Circuit Court of Cook County is the

court where the plaintiffs were virtually forced to seek

redress because of the archaic status of the law pertain-

ing in personam jurisdiction. Significantly, the defendants,

Air France, Singapore Airlines and Gulf Air at no time

agreed upon any forum in any country anywhere, where

ali of them could agree to submit to jurisdiction. The

Circuit Court Judge, Honorable Louis Giliberto, specifi-

cally invited the defendants to specify any such forum.

They did not do so.

Judge Giliberto adopted a realistic, sound view, namely,

that the meaning of the word “domicile” in the Warsaw

Convention, as applied to incorporated international air-

lines, should not be inflexibly interpreted so as to mean sole-

ly the country where the airline is incorporated. Otherwise,

that country would always be the country of the principal

place of business of the carrier. Such an interpretation

would result in the words, ‘‘le tribunal du domicile du

transporteur” having no meaning or effect whatever,

because they would not provide for suit by a passenger in

a fourth place.

Article 28 was intended to provide for four places

where passengers could bring suit: (1) the country

where they make their contract of carriage (purchase their

tickets); (2) the country where the airport constituting

their final ticketed destination is located; (3) the country

constituting the principal place of business of the airline;

(4) the country constituting ‘‘domicile’’ of the airline.

The Illinois Supreme Court did not even refer to the

French text. Instead, it quoted an English language trans-

lation contained in the Statutes at Large, which is ‘‘unoffi-

cial.’’ In reference to the contention of the plaintiffs re-

garding the word ‘‘domicile,’’ the Illinois Supreme Court

am 47

indulged in a construction of Article 28(1) which is con-

trary to the recorded history of the Convention. That court

apparently recognized the incongruity of construing the

word “domicile” as meaning solely the country of incor-

poration because that country would inevitably be the

country where the principal place of business was located,

thus reducing the number of nations where suit could be

brought to three nations rather than four nations, as

Article 28(1) was intended to provide. However, the Illi-

nois Court said:

Adopting the plaintiffs’ theory would at a minimum

blur these carefully drawn distinctions by creating

a third intermediate category. It would obviously in-

troduce uncertainty into litigation under the article

because of the necessity of having to determine, and

without standards or criteria, whether the amount of

business done by a carrier in a particular country

was ‘‘regular’’ and ‘‘substantial.’’ The plaintiffs’ re-

quest to adopt this basis of jurisdiction is in effect

a request to create a new jurisdictional standard for

the Convention.

The same uncertainty could be said for the determina-

tion of in personam jurisdiction in any case initiated in any

forum, based upon International Shoe Co. v. State of

Washington, 326 U.S. 310 (1945), which holds:

. .. Due process requires only that in order to subject

a defendant to a judgment in personam, if he be not

present within the territory of the forum, he have

certain minimum contacts with it such that the main-

tenance of the suit does not offend ‘‘traditional no-

tione of fair play and substantial justice.’’

The Illinois court referred to ‘‘carefully drawn distinc-

tions’’—as though in 1925 when the Warsaw Convention

was first drafted, countries such as Latvia, Yugoslavia, Ru-

— 46—

mania and Brazil intended to specify “carefully drawn dis-

tinctions”—including the use of the French word, the word

“domicile”—which fifty years later was to mean the coun-

try where an airiine happened to file its incorporation

papers—because the law of the United States of America

(which did not even participate in the drafting of the

treaty) holds that the word “domicile” in the English

language, as applied to a corporation, means the country

where it was incorporated. Of course, in 1925, well before

Lindbergh flew the Atlantic ocean, “international” flights

were but a few hundred miles. Air carriers were owned

by individuals. The word “domicile” was intended to apply

to all persons, firms or corporations which operated air-

lines. It is incongruous to hold that the drafters of the

Warsaw Convention intended to employ a French word,

“domicile,” in the United States law’s connotation of that

word in reference to corporations.

Rather than permitting such an unsupported interpre-

tation of a treaty of the United States to stand uncor-

rected, it is respectfully submitted that this Court should

accept this opportunity to bring some common sense and

recognition of the history of the Warsaw Convention to

its interpretation.

Multinational corporations, such as international air-

lines, were unknown in 1925, when the Warsaw Conven-

tion was drafted. Corporations in that era were incor-

porated in the same country that they carried on their

principal place of business. This remains true today. Air

France is incorporated in France and carries on its prin-

cipal place of business in France. Trans World Airlines is

incorporated in the United States and carries on its prin-

cipal place of business in the United States. We could

_—

name all international airlines and point out that in: vir-

tually each instance the airline is incorporated in the same

country where it carries on its principal place of business.

However, many of these airlines are multinational corpo-

rations which carry on substantial business on a regular

basis in various nations.

The Illinois Supreme Court cited Smith v. Canadian

Pacific Airways, Ltd., 452 F.2d 798 (2nd Cir. 1971). In

that case, however, the issue here presented was not

argued. The plaintiff in Smith did not file Affidavits eon-

cerning the meaning of Article 28 or Affidavits concern-

ing the fact that the defendant in that case was in fact

‘*domiciled’’ within the United States within the meaning

of Article 28, as was done in this case. The parties and

‘the Smith Court merely assumed that the word ‘‘domi-

ciled’’ should be given the technical meaning given by

United States law, as applied to corporations.

In Smith, the plaintiff contended that merely because

Canadian Pacific Airways had a place of business within

the jurisdiction of the Court, there was sufficient contact

to confer jurisdiction of that airline under the provisions

of Article 28(1) relating to the principal place of business.

Plaintiffs herein refer to the word “domicile” as the

as to Air France.

Plaintiffs herein filed the affidavit of a French language

expert as to the meaning of “domicile” in Article 28, and

also affidavits as to the extent of the activities of Air

France not only in Illinois but throughout the United

States to show that it is in fact domiciled in the United

States, in the sense that as a multinational corporation

it carries on business in the United States on a regular

and substantial basis.

Air France filed no counter-affidavit of any kind to con-

tradict the affidavit of the French language expert, filed

by the plaintiffs.

If Air France seriously disputed the accuracy of this

affidavit, surely it could have obtained and filed a counter-

affidavit.

The affidavit filed by plaintiffs stands completely wndis-

puted in this record.

It states without contradiction that “the words

‘du domicile du transporteur’ as stated in Article

28(1) of the Warsaw Convention meant, when adopted

in 1929, and now mean the place or places where

a person (whether an individual, partnership, unincorpo-

rated company or corporation) is or are ordinarily resi-

dent, that is, where any such entity can be reasonably

stated to carry on a reasonably substantial amount of

activities on a reasonably continuous basis’’; that ‘‘such

words were never intended to mean and do not mean, as

applied to an airline operation, that the sole and only

place where suit may be instituted against an airline cor-

poration, within the meaning of those words, is the state

or nation in which such airline was incorporated’’; that

“such words meant and mean any place where an air car-

rier carries on the business of an air carrier on a regular

and substantial basis’’; and that the ‘‘word ‘domicile’ in

the French language has a general meaning which includes

places where persons are resident and as to corporations

where they are resident, that is, where they carry on busi-

ness in a substantial manner and a reasonably continuous

basis.’’

The language of Article 28 is not ambiguous and well

established rules of statutory construction warrant a rul-

ing that the word, ‘‘domicile,’’ should not be given a inter-

ee ER ee.

— §1 —

pretation which would, in practical terms, equate it with

principal place of business, and thus render it redundant,

superfluous and meaningless.

The Illinois Supreme Court did not even mention this

uncontradicted affidavit, filed on behalf of the plaintiffs.

At the very least, the meaning of the word “domicile,” is

ambiguous. Under the authority of Rosman v.-Trans World

Airlines, Inc., 34 N.Y.2d 385, 314 N.E.2d 848 (1974), Judge

Giliberto properly ruled that the uncontradicted affidavit

filed by plaintiffs concerning the meaning of the word

“domicile” in Article 28(1) was consistent with a realistic

interpretation of that French word, as employed in Article

28(1).

The holding of the Circuit Court regarding the meaning

of Article 28(1) of the Warsaw Convention is reinforced

by an article entitled, Jurisdiction Under Article 28 of

the Warsaw Convention, 9 McGill L. J. 352 at 354 (1963)

in which the author stated: “. . . it would seem that under

Article 28 the idea of the court of the domicile of the car-

rier, or of the main office of its business, is a divisible notion

which recurs in each country where the enterprise has im-

portant business. . . .’’? (Emphasis added.) Furthermore,

at page 355, the following was stated:

Finally, in construing words used in a treaty, too

great weight should not be given to the local definition

and use of particular words, as seems to be the case

in the interpretation of ‘‘domicile’’ and ‘‘prineipal

place of business’’ * * * Treaties should be construed

to tend toward placing contracting parties on an equal-

ity. And where a treaty admits to two constructions,

one restrictive as to the rights which may be claimed

under it, and the other favorable. to suck _— the

latter is preferred.

It is suggested that Article 28(1) should, in mini-

mum terms of liberality, be construed to mean that

where the domicile or an important place of business

of the carrier is within the territory of one of the

high contracting parties, then suit may be brought

by a plaintiff in that country as permitted by its laws.

(Emphasis added).

It is undisputed that the United States of America is

an “important place of business” of Air France. Plaintiff

filed an affidavit which verified that fact. That affidavit

also stands undisputed by Air France.

In another article entitled, Competence Jurisdictionnelle

et lex Fort Dans la Convention de Varsovie, appearing in

8 McGill L. J. at 284 (1962), the author states that the

words in Article 28(1) as they appear in the original

French text, ‘‘du domicile du transporteur,’’ referred

mean ‘‘(T jhe Court having jurisdiction where the carrier

is ordinarily resident.’’

If alternative meanings can be placed upon legislation,

the one adopted should be that which is least restrictive of

the rights of individuals. Universal Adjustment Corpora-

tion v. Midland Bank, 281 Mass. 303, 184 N.E. 152 (1933).

The rule which invalidates contract provisions which re-

strict the rights of passengers has persuasive bearing on

this point. 13 C.J.S. Carriers § 629 at 1182.

Goedhuis, National Airlegislations and the Warsaw Con-

vention (1937) states at page 286:

Courts declared competent

Article 28.

1) An action for damages must be brought, at

the option of the plaintiff, in the territory of one

of the High Contracting Parties, either before

the Court having jurisdiction where the carrier is

ordinarily resident, or has his principal place of

—53—

business, or has an establishment by which the

contract has been made or before the Court hav-

ing jurisdiction at the place of destination. (Ital-

ics supplied)

Goedhuis emphasized that the purpose of Article 28(1)

was to prevent the filing of suits in Courts of countries

where planes crashed. See also Minutes of the Second

International Conference for Private Air Law (Warsaw,

Poland, Oct. 4-17, 1929) at 78. It is important to note

Goedhuis’ employment of the words ‘‘where the carrier is

ordinarily resident’’ as a proper forum in addition to a

forum in a nation where the carrier ‘‘has his principal

place of business.”’

For this Court to sanction the interpretation of Article

28(1) in the narrow, constricted manner adopted by the

Illinois Supreme Court, so as to mean solely the nation

of incorporation of an incorporated airline, would not be

in accord with the counsel of Justice Holmes in Missourt

v. Holland, 25 U.S. 416, 40 S.Ct. 383, 64 L.Ed. 641 (1920) :

[W]hen we are dealing with words that also are a

constituent act .. . we must realize that they have

called into life a being the development of which could

not have been foreseen completely by the most gifted

of its begetters,

II.

THE WARSAW CONVENTION, IF APPLICABLE, I8

UNCONSTITUTIONAL.

It Is Unconstitutional Insofar As It Purports To Deprive

Plaintiffs, Although Aliens, of the Right To File Suit In

The Circuit Court of Cook County, Illinois.

Plaintiffs are aliens. They brought suit in the Circuit

Court of Cook County because the three defendant airlines

carry on business in the jurisdiction of that Court.

—h4—

The Fourteenth Amendment states: ‘‘No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States.’’

The ‘‘due process’? provision, however, does not refer

to and is not limited to “citizens.”

A “State” may not deprive any person of “life, liberty,

or property, without due process of law.”

The Supreme Court of Illinois is an arm of the State

of Illinois. Defendants by doing business in Illinois and

the United States, are subject to the due process clauses

of the United States Constitution. In The Sapphire, 78

U. S. (11 Wall.) 164, 20 L.Ed. 127 (1870), the Court said:

The first question raised is as to the right of the

French Emperor to sue in our courts. On this point

not the slightest difficulty exists. A foreign sovereign,

as well as any other foreign person, who has a demand

of a civil nature against any person here, may prose-

cute it in our courts. [387 Supp. at 191.] (Emphasis

added.)

Defendants are multinational corporations, which carry

on substantial business in the United States. Such defen-

dants are subject to the due process and equal protection

clauses of the Constitution of the United States, in the

sense that if they are subject to the jurisdiction of a state

court within the United States, then that state court,

as an arm of the state, may not deprive any party to the

suit, whether an ‘‘alien’’ plaintiff, or not, of due process

and equal protection. Ex Parte Milligan, 71 U.S. (4 Wall.)

2, 120 (1866); Leighton, The Rights of Man in the World

Community, 14 L. & Contemp. Prob. 490, 527 (1949).

Despite the fact that the Warsaw Convention was adopted

by the United States in 1934, no appellate court has to

date passed upon the constitutionality of the treaty.

"

—— _

- 55

‘

Sincoff, Absolute Liability and Increased Damages in In-

ternational Aviation Accidents, 33 J. Air L. & Com. 137,

149 (1967).

The Illinois Supreme Court by construing Article 28 so

as to take away the otherwise existing right of the plain-

tiffs to bring their action in the Circuit Court of Cook

County denied to the plaintiffs due process and equal pro-

tection of the laws.

In Burdell vy. Canadian Pacific Airlines, 10 Av.L.Rep.

(CCH) 18,151 (1968), then Illinois Circuit Judge Nicholas

J. Bua initially declared that not only the monetary dam-

age limitation provisions but also the provisions of Article

28(1) in reference to where suit can be brought also are

unconstitutional. In a second opinion (11 Av.L.Rep.

(CCH) 17,351 at 17,354 (1969)), Judge Bua stated that

he had determined it was not necessary to pass upon the

constitutionality of the Warsaw Convention because plain-

tiffs were entitled to recover on other grounds principally

that the tickets were deficient. F »wever, Judge Bua re-

affirmed his belief concerning the .constitutionality of the

damage limitations and place of suit restrictions. We rec-

ognize that this decision is that of a lower court. Nonethe-

less, the first opinion received favorable reviews from

leading constitutional law scholars.

In commenting on the Burdell decision, Professor Arthur

John Keeffe, said: '

It is a dreadful thing to have to say, but, in truth,

decisions such as Kilberg, Pearsons, Long and Scott

lack the simplicity and honesty of Judge Bua’s ruling

in Burdell. Here at last is a Judge who faces up to

the real problem, the constitutionality of outrageous,

discriminatory, out of date, rotten laws. Keeffe, In

Praise of Joseph Story, Swift v. Tyson and ‘‘The’’

True National Common Law, 18 Am. U.L. Rev. 316,

356 (1969). (Emphasis added.)

An alien may maintain a cause of action against an-

other alien for a tort committed outside the jurisdiction.

Gardner v. Thomas 14 Johns. 134, 7 Am. Dec. 445 (N.Y.

1817). A cause of action is a property right, and a person

may not be deprived of his cause of action without due

process of law. Angle v. Chicago, St. P.M. & O.Ry., 151

U.S. 1 (1894).

Plaintiffs are “persons”. Once they instituted litigation

in a court which had the power to hear the type of case

which was filed, they may not be deprived of due process or

equal protection, including equal access with that of United

States citizens to the courts of the United States which

would otherwise have jurisdiction, simply because they are

aliens. The Treaties of Friendship between the United

States and Israel, as well as France and other countries,

contain explicit provisions in this respect; e.g., “Nationals

* * * shall be accorded * * * most favored treatment with

respect to access to the courts of justice * * * within the

territories of the other party.”

Plaintiffs paid the same fare as such American pas-

sengers and occupied the same aircraft. The place of

purchase of tickets hardly supplies a “rational basis” for

unequal treatment of the plaintiffs by the Illinois court.

That court repeatedly emphasized that the plaintiffs were

not citizens of the United States, as though that fact

warranted discriminatory treatment. Rinaldi v. Yaeger, 384

U.S. 305, 308-09 (1966).

A treaty discrimination or classification must, at a mini-

mum, bear some rational relationship to a legitimate pur-

pose. Weber v. Aetna Casualty & Surety Co., 406 U.S.

=i

164 (1972); Morey v. Doud, 354 U.S. 457 (1957); William-

son v. Lee Optical Co., 348 U.S. 483 (1955); Gulf, Colo.

and S. Fe R. R. v Ellis, 165 U.S. 150 (1897); Yick Wo v.

Hopkins, 118 U.S. 356 (1886); James v. Strange, 407 U.S.

128 (1972); Gregg Dyeing Co. v. Query, 286 U.S. 472

(1932); Rinaldi v. Yaeger, 384 U.S. 305 (1966).

The United States Supreme Court has held that non-

resident aliens are protected by the due process clause.

Indeed, non-resident aliens, where defendants, have fre-

quently urged that they are protected by the due process

clause. Russian Volunteer Fleet v. United States, 282 U.S.

481, 51 S.Ct. 229, 75 L.Ed. 473 (1931); United States v.

Pink, 315 U.S. 203, 228 (1942).

An “alien” is a “person” entitled to the same protec-

tion for his life, liberty and property as is afforded to a

citizen. Galvan v. Press, 347 U.S. 522 (1954), rehearing

denied, 348 U.S. 852 (1954), 99 L.Ed. 671. See also, U.S.

v. Pink, 315 U.S. 203, 86 L.Ed. 796 (1942); U.S. ex rel.

Martinez-Angosto v. Mason, 232 F.Supp. 102 (D.C.N.Y.

1964), reversed on other grounds, 344 F.2d 673; Hee Chan

v. Pillior, 178 F.Supp. 793 (D.C.Il. 1959); U.S. ex rel.

Castro Louzan v. Zimmerman, 94 F.Supp. 22 (D.C.Pa.

1950).

Air France may not have the benefit of carrying on

business in the United States and at the same time have

the benefit of the unconstitutional denial to the plaintiffs

of their fundamental human rights, to due process and

equal protection of the laws.

Courts have the power and duty to declare treaties

which violate basic constitutional rights invalid. Reid v.

Covert, 354 U.S. 1, 17-18 (1957); United States v. Minne-

sota, 270 U.S. 180, 208 (1926); Cherokee v. United Stutes,

78 U.S. 616 (1870); Puente, International Law 198 (1928) ;

— 58 —

52 Am.Jur. Treaties, at 809; 2 Story, Commentaries on

the Constitution of the United States 1508; Cooley, Prin-

ciples of Constitutional Law, at 117; Hayes, Supernational

Organizations and United States Constitutional Law, 6

Va. J. Int’l. L. 195, 197-209 (1966) ; Dorsey, Subject Matter

Limitations on the Treaty Power, 4 Int. Lawyer 209

(1970).

The Warsaw Convention is a private international

treaty, involving the rights and responsibilities of only

private individuals. It is not a public treaty. The distinc-

tion between public and private treaties was pointed out

by the Supreme Court in Haver v. Yaker, 76 U.S. (9

Wall.) 32, 34 (1869).

The Warsaw Convention is unconstitutional in so far

as it provides for (1) an arbitrary monetary limitation,

applicable only to airlines, which insulates airlines, as op-

posed to the United States of America and United States

aircraft and component part manufacturers, (2) an arti-

ficial standard of proof to recover in excess of such limi-

tations, i.e. proof of wilful misconduct, whereas the United

States of America, aircraft manufacturers and all other

defendants are liable without limitation for their mere

negligence, or, in the case of maiufacturers, regardless of

their lack of negligence (Restatement, Second, Torts

§402(A).); and (3) arbitrary limitations concerning places

to sue, which are contrary to well-established legal princi-

ples concerning the rights of persons, whether citizens or

aliens, to bring suits against persons, firms, or corporations

whether citizens or aliens, who would otherwise be subject

to jurisdiction in a particular court.

These provisions were designed solely to extend grossly

unequal preferential benefits to airlimes in respect to inter-

national transportation. They involve purely private

interests. The provisions discriminate not only against

plaintiffs, but against aircraft manufacturers and even

the United States government.

McDonnell Douglas Corporation filed a brief in respect

to litigation growing out the the DC10 Paris aircrash, pre-

viously referred to herein (Im Re Paris Aircrash, 399 F.

Supp. 732 (1975). It argued the same position advanced

by plaintiffs herein:

The Warsaw Convention, particularly Article 28(1),

creates two irrational distinctions between categories

of individuals which deny them equal protection un-

der the law. These distinctions are: (1) the distinc-

tion drawn between passengers traveling between

High Contracting Parties (in which case they .are

covered by the Warsaw Convention), and those inter-

national travelers traveling between a High Contrac-

ting Party and a non-signatory like Turkey (in which

case they are not covered); and (2) the particular

benefit conferred upon airlines by Article 28(1) pro-

tecting them from suits in all but four specified jur-

isdictions while aircraft manufacturers and other po-

tential defendants are subject to suit wherever juris-

diction may be obtained over them. Because these

distinctions are not rationally related to permissible

legislative goals, they cannot be sustained. Reed v.

Reed, 404 U.S. 71, 75-76 (1971). See also Gunther,

In Search of Evolving Doctrine on a Changing Court:

A Model for a Newer Equal Protection, 86 Harv. L.

Rev. 1, 18-37 (1972). (Italics supplied)

Brief for McDonnell Douglas, In re: Paris Atrcrash, 399

F.Supp. 732 (1975)

Although neither any aircraft manufacturers or the

United States of America is named as a defendant herein,

the analogy remains. If instead of a hijacking, these same

plaintiffs were involved in an airerash at Entebbe, Uganda,

and if the aircraft had been manufactured: in the United

States (such as a McDonnell Douglas DC10 or Boeing

—60 —

747), and if the manufacturer was named as a defendant

along with the air carrier, Air France, plaintiffs clearly

would have the right to sue such American manufacturer

in the American courts, but not Air France—if Article

28(1) is to be construed in the way the Illinois Supreme

Court construed it. Similarly, .the United States of

America could be sued in the federal court of the United

States, if it were charged with negligent certification with-

in the United States. In Re Paris Aircrash, 399 F. Supp.

732 (1975)).

Thus, it is clear that Article 28(1) is unconstitutional

not only as to plaintiffs herein, but it is should be declared

unconstitutional because it discriminates against United

States aircraft manfacturers and the United States of

America.

This case presents a unique opportunity for this Court

to review this fifty year old treaty, which, if it ever had

any validity, no longer has any semblance of a rational

basis for such preferential treatment of airlines, which

results in such discriminatory treatment of all others.

IV

THE ILLINOIS SUPREME COURT DENIED DUE

PROCESS AND EQUAL PROTECTION TO THE

PLAINTIFFS IN DISMISSING THEIR SUIT.

The Illinois Supreme Court in emphasizing the fact

that plaintiffs were citizens of foreign countries, princi-

pally Israel, violated the Treaty of Friendship, Commerce

and Navigation between the U.S. and Israel, 5 U.S.T. 550,

T.LA:S. 2948, and the Convention of Establishment Be-

tween the U.S. and France, 11 U.S.T. 2398, T.I.A.S. 4625.

Those treaties, previously quoted herein, explicitly gua-

rantee the constitutional rights of aliens or foreigners

to equal access to the courts of the United States of

— ¢t—

America. The treaty with Israel required the Circuit

Court to provide the Israeli plaintiffs with most-favored-

nation treatment with respect to access to the courts of

justice within the territories of the other Party, in all

degrees of jurisdiction, both in pursuit and in defense of

their rights.

Instead, the Court below repeatedly emphasized that

plaintiffs were aliens. ©

Article VI, clause 2 of the Federal Constitution pro-

vides:

This Constitution, and the laws of the United States

which shall be made in pursuance thereof, and all

treaties made, or which shall be made, under the

authority of the United States, shali be the supreme

law of the land; and the judges in every state shall

be bound thereby, anything in the Constitution or laws

of the state to the contrary notwithstanding.

A treaty, which affects the rights of litigants, should

be regarded as an act of Congress. Hamilton v. Erie R.R.

Co., 219 N.Y. 343, 114 N.E. 399 (1916). The courts are

bound to take judicial notice of treaties and to enforce the

rights of persons established by treaties. United States v.

Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Bd. 425 (1886).

Words used in treaties are to be given in the broadest

meaning, in order to effectuate the liberal intentions of the

nations which are contracting parties: Re Fattosini, 33

Miso 18, 67 N.Y. S. 1119 (1900). Where a treaty is sus-

ceptible to two constructions, one restrictive as to the

rights that may be claimed under it, and the other liberal,

the liberal reading is to be preferred. Nielsen v. Johnson,

279 U.S. 47, 49 S. Ct. 233, 73 L. Ed. 607 (1928). Treaties

are construed more liberally than private agreements, See

—62—

Choctaw Nation v. U.S., 318 U.S. 423 (1943). Where a

treaty admits of two constructions, one restrictive of the

rights claimed under it, and the other favorable to them,

the latter is to be preferred. Bacardi Corp. v. Domenich,

311 U.S. 150 (1941); Nielsen v. Johnson, 279 U.S. 47

(1928).

In Joint Anti-Fascist Refugee Committee v. McGrath

341 U.S. 123, 71 S. Ct. 624 (1950), Mr. Justice Frankfurter

emphasized that due process applies to aliens as well as

citizens:

Fairness of procedure is “due process in the primary

sense.” * * * The requirement of “due process” is not

a fair weather or timid assurance. It must be re-

spected in periods of calm and in times of trouble;

it protects aliens as well as citizens. But “due pro-

cess,” unlike some legal rules, is not a technical con-

ception with a fixed content unrelated to time, place

and circumstances. (Emphasis supplied).

The opinion of the Illinois Supreme Court denies to

the plaintiffs rights to which they are entitled under the

Constitution of the United States and pursuant to treaties.

The Illinois Supreme Court emphasized “all of the parties

are non-resident aliens.” In doing so, that Court failed

to recognize that aliens should not be the subject of dis-

crimination, unequal treatment and denial of due process.

VI

THE ILLINOIS SUPREME COURT IN UNCONDI.

TIONALLY DISMISSING THE PLAINTIFFS’ SvUIT

UPON THE BASIS OF THE DOCTRINE OF FORUM

NON CONVENIENS DENIED DUE PROCESS AND

EQUAL PROTECTION TO THE PLAINTIFFS.

In dismissing the case unconditionally on the basis of

forum non conveniens, the opinion of the Illinois Court

— 63 —

denies due process and equal protection of the laws to

the plaintiffs. The Court failed to comply with fun-

damental principles established by this Court beginning

with Gulf Oi Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947).

In Gulf Ou Corp., this Court said, “In all cases in which

the doctrine of forum non conventens comes into play, it

presupposes at least two forums in which the defendant

is amenable to process; the doctrine fcrnishes criteria

for choice between them.” 330 U.S. 501, 506-07 (1947).

There was no pleading of any defendant which pleaded

the existence of any alternative forum, supported

by any affidavit or any proof whatever that any other

court anywhere would have jurisdiction of the three de-

fendant airlines, Air France, Singapore Airlines and Gulf

Air, much less that they would accept and retain their

suits.

There was no question but that the Circuit Court of

Cook County had im personam and subject matter juris-

diction as to Air France and Singapore Airlines.

None of Air France’s pleadings properly specified any

alternative forum. Air France’s Brief in the [Illinois

Supreme Court (not its pleadings) merely suggested that

the World Aviation Directory showed that certain of the

defendant airlines flew into various cities. Even assuming

that the unverified, gratuitous statement in Air France’s

Brief constituted a pleading, there was no affidavit as to

the foreign law of any of those suggested countries to the

effect that such activities authorized in personam jurisdic-

tion of those airlines by the courts of those countries.

Nor were any affidavits filed that the courts of those

countries would accept and keep the suits of plaintiffs.

tees ot as? i oe i

Singapore’s motion to Dismiss (Appendix B) pleaded

only one alternative forum, the courts of England. No-

where did that motion plead that the law of England

would permit suit in England against Singapore, Gulf

Air or Air France.

Indeed, the same arguments could be made in Engl-

land, Greece or the Netherlands in respect to forum non

conveniens as were made in the Circuit Court of Cook

County, i.e. that none of the plaintiffs lived in Eng-

land, that none of the defendants carried on its prin-

cipal place of business in England, that none of the wit-

nesses (except one who temporarily was in England and

whose deposition was taken) lived in England, that none

of the occurrences took place in England and that none

of the substantive laws of England applied.

Indeed, the only pleading of any kind filed by Air France

consisted of an affidavit of its French counsel which

stated his opinion that only fifteen of the eighty-one plain-

tiffs might be able to sue the three defendants in France,

because such fifteen plaintiffs are French nationals. The

affidavit states that Article 14 of the French Civil Code

would permit such a suit.

The distinguirhed counsel for Air France, Mr. Andre

Garnault, and the respected United States counsel for Air

France, are too lawyerlike to file an affidavit that the

laws of England, Greece, The Netherlands or France,

authorize jurisdiction of the suit of the plaintiffs herein

as to Air France, Singapore Airlines and Gulf Airlines.

The opinion of the Illinois Supreme Court relegated

plaintiffs to “potential forums” and improperly wncon-

ditionally dismissed plaintiffs’ suit.

Singapore’s distinguished counsel likewise filed no such

affidavit.

No affidavit was filed by Air France or Singapore Air-

lines stating that the defendant airlines could be sued by

all plaintiffs in any single forum. A basis of the motion

of Singapore Airlines peculiarly and somewhat conde-

scendingly is that “British judges would be better quali-

fied to interpret and apply the laws of that country

(Uganda).”

The motion of Singapore Airlines on its face required

its denial.

The me‘ion of Singapore Airlines states:

(a) that such defendant does mot suggest that this

Honorable Court would not afford all parties an im-

partial trial;

(b) no single forum can be immediately convenient

to all parties and potential witnesses in this geo-

graphically extensive litigation.

The opinion of the Illinois Supreme Court is not in

compliance with the requirement that there be an alter-

native forum which (1) has jurisdiction of the subject

matter and of the parties, (2) which will accept and keep

the case and (3) which can provide effective redress. The

Illinois Supreme Court said:

_ A motion to dismiss on the ground of forum non

conveniens presupposes that more than one court can

be used as a forum. (Adkins v. Chicago, Rock Island

é Pacific R.R. Co. (1973), 54 Ill. 2d 511, 515.) Singa-

pore has suggested the United Kingdom as an alter-

native forum; all of the defendants operate commer-

cial flights into London and are amenable to service

of process there. Singapore also points out that the

courts of the United Kingdom are thousands of miles

closer to all sources of proof; discovery has already

commenced in London, Singapore states, and at least

ome so-called protective suit has been filed in England

_

by one of the plaintiffs in this suit. Of course, Singa-

pore and Air France operate flights into and out of

Greece, where the hijackers alighted from one car-

rier’s plane and boarded the other’s; and Singapore,

Air France and Gulf all operate flights into and out

of France and the Netherlands. Any of these poten-

tial forums would provide, in varying degrees, greater

“relative ease of access to sources of proof,” and

lesser “cost of obtaining attendance of willing wit-

nesses” than a forum in the center of the United

States. Gulf Oil Corp, v. Gilbert (1947), 330 U.S. 501,

Niet. L. Ed. 1055, 67 S. Ct. 839, 843. (Italics sup-

plied).

The opinion of the Illinois Supreme Court violates basic

rights of these plaintiffs in unconstitutionally dismissing

their suit, on the basis they could file suits in other

“potential” forums.

Webster defines “potential” as “existing in possibility.’’

The Illinois Court clearly did not comply with the

mandate of this Court, expressed in Gulf Oi Corp. v.

Gilbert, 330 U.S. 501 (1947) and its progeny.

‘*Potential forums,’’ not even pleaded by defendants,

hardly constitute a basis to throw these plaintiffs out of

court.

Furthermore, the court misapprehended the record. The

only “discovery” which was carried out in London was the

deposition of Henry Kyemba, former Minister of Health

in Uganda who had temporarily sought refuge in London.

There is no pleading of any kind indicating there is any

other discovery whatever to be carried out in England.

There is none.

There was not a ‘‘so-called protective suit filed in Eng-

land.’’ That suit was a quasi-criminal action against Idi

cia Ot ann

Amin, President of Uganda, which did not even hame

any of the three airlines as defendants. See Appendix B.

There are no witnesses in England. No plaintiffs reside

in England. The English courts cannot compel the atten-

dance of any witnesses.

The gross misrepresentation of the record by the court

below in a suit of this importance is tantamount to an

unconstitutional denial of due process and er protec-

tion to the plaintiffs.

Furthermore, the use of the words ‘‘at least one so-

called protective suit” infers that other suits were filed

in England. This is not true. That is a further misrepre-

sentation of the record.

The opinion of the Illinois Supreme Court states that

‘‘all of the defendants operate commercial flights into Lon-

don and are amenable to service of process there.” Even

assuming this is so, there is nothing in the record to

state that the fact that commercial airlines fly into London

is equatable with in personam jurisdiction in London.

Nothing was filed by any defendant which purported to

state the law of England in this respect. Besides, there is

nothing in the record which even remotely purports to

state that the Courts of England would accept this liti-

gation. They also have their backlog of cases. They also

are concerned with their residents.

The Illinois Supreme Court also stated: “Singapore,

Air France and Gulf all operate flights into and out of

France and the Netherlands.” There is nothimg in the

record, affidavits or otherwise, which supports any hold-

ing that the courts of France or The Netherlands would

have jurisdiction of such airlines in this case..

The mere fact that the defendants might operate flights

into those countries does not mean that the courts of those

— $8 —

countries would have jurisdiction of the defendants or of

this litigation—or if they did, that they would retain the

ease. There is nothing in the record to support the Court’s

conclusion that such “potential forums” either have juris-

diction of the defendant airlines, or that they would ac-

cept these cases. There is nothing in the record concern-

ing the jurisdiction requirements of such other countries.

_ A motion to dismiss on the ground of forum non con-

veniens presupposes that there definitely is a more con-

venient forum available, which clearly has jurisdiction of

the parties and the subject matter, and which will accept

and retain the case.

The record shows that the trial judge specifically

asked the defendants if they could agree upon or point

out the existence of any viable alternative forum where

all defendant airlines could be sued and where the defen-

dant airlines would agree to litigate the claims of the

plaintiffs.

The defendants would not agree upon any alternative

forum where they would agree to litigate the claims of

the plaintiffs,

There is no basis in the record for the statement of the

Illinois Supreme Court that the courts of The Netherlands,

England or France or Greece would have jurisdiction of

the claims of the plaintiffs against the three defendant air-

lines.

In emphasizing the calendar conditions of the Circuit

Court of Illinois, and that plaintiffs were not citizens of

Illinois, the opinion of the court below discriminates

against the plaintiffs because they are aliens.

In Varkonyi v. 8S. A. Empressa De Viaco Aurea B.G.

(Varig), 22 N.Y. 2d 333, 329 N.E. 2d 542, 292 N.Y.S. 2d

— 69 — |

670 (1968), Judge Keating, in discussing the alleged bur-

den upon the New York courts answered this contention:

(I]f the controlling consideration in each case were

the convenience of the court, as that term was em-

ployed in the case at bar, then it would be difficult to

conceive of a case which justifies retention jurisdic-

tion, as our courts are always inconvenienced by the

trial of actions having no relation to this State and

its residents. (Italics supplied.)

Judge Keating also aptly observed that to require plain-

tiffs to litigate in different jurisdictions agamst different

defendants, “would not only work great hardship and

expense upon the widow, children and other survivors of

those killed, but would also interfere with the orderly ad-

judication of the actions;” * * * that if plaintiffs have to

bring suits against different defendants in different juris-

dictions “each defendant may point to the other as being

responsible for the accident; and the plaintiff, a widow

residing in Europe, with limited means, would have the

burden of pursuing her proof against one defendant in

North America and against the other defendant in South

America.”

The opinion below, however, seems to hold that the

mere fact that the plaintiffs would have to sne the de-

fendants in different jurisdictions was of no significance.

In doing so, the Court noted that it could perceive no

problems to the plaintiffs, if various of the plaintiffs

were required to sue different defendants in different

courts. This suggestion is not only not consonant with

reality, but is contrary to the express holding of the

Illinois Supreme Court. In People ex rel. Phillips Petro-

leum Co. v. Gitchoff, 357 N.E. 2d 534 (TIL x setae that

same court said;

we

It is entirely clear that the pendency before different

judges of separate suits involving identical parties

and issues is incompatible with the orderly and effi-

eient administration of justice. 357 N.E. 2d at 538.

It is fundamental that the defendants must plead an

alternative forum in which the plaintiff may obtain effec-

tive redress. Mere suggestions, unsupported by proof of

the jurisdiction of potential alternative courts, does not

begin to warrant wnconditional dismissal. In Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947), the Supreme

Court categorically stated two basic rules: (a) ‘‘{U]nless

the balance is strongly in favor of the defendant, the plain-

tiff’s choice of forum should rarely be disturbed.’’ (b)

‘‘Tn all cases in which the doctrine of forwm non conventens

comes into play, it pre-supposes at least two forums in

which the defendant is amenable to process. .. .’’ (Italics

supplied).

Before the doctrine comes into play, jurisdiction in such

alternative forum “shall not be dependent merely upon

the will or grace of the defendant, but must be provided

by law.” Tivoli Realty v. Interstate Circutt, 167 F.2d 155

(5th Cir. 1948), cert. denied, 334 U.S. 837 (1948).

There is nothing in the record to show that the law of

England, France, The Netherlands or Greece would au-

thorize in personam jurisdiction of the three defendants.

Dismissal of a case on the basis of forum non conveniens

is an extremely harsh remedy, and much harsher than

transfer under 28 USC §1404(a). Defendant’s burden in

proving ‘‘inconvenience’’ and the definite availability of a

viable alternative forum is much heavier for dismissal than

for a mere transfer to another federal court. Section

1404(a) was enacted in 1948 in an attempt to ameliorate

the harshness of the doctrine of forum non conveniens.

Harrison v. United Fruit Compony, 141 F. Supp. 35 (8.D.

—1—

N.Y. 1956). See also All States Freight, Inc. v. Modarelli,

196 F.2d 1010 (3rd Cir. 1952).

Previously, the Illinois Supreme Court had stated that

dismissal on the basis of forum non conveniens is author-

ized only upon a showing that the case can be tried in

another court, “at no sacrifice of full justice.” Marchlik

v. Coronet Ins. Co., 40 Ill. 2d 329, 335, 329 N.E.2d 799

at 803 (1968). Nothing was stated in the opinion in this

case even inferring such concern for the plaintiffs herein.

Instead, the Illinois Supreme Court reiterated the fact

that this litigation involves foreign plaintiffs and foreign

law. That is not a basis for dismissal. In Founding Church

of Scientology v. Verlag, 536 F.2d 429 (D.C. Cir. 1976),

the court said: “The risk that foreign evidence cannot be

obtained is no greater in federal court in the District of

Columbia than it would be in a West German court.”

In Grammenos v. Lemos, 457 F.2d 1067, 1074 n.5 (2d

Cir. 1972), the court said that a prerequisite of dismissal

is that ‘‘the defendant agrees on the record to submit to

jurisdiction elsewhere and to post security for any judg-

ment awarded there.’’ (Italics supplied).

Not only was that not done in this case, but the defen-

dants at no time agreed upon any single jurisdiction where

they would submit to jurisdiction, even though specifi-

cally asked by the Circuit Court to do so.

Justice Cardozo stated in Loucks v. Standard Oi Co.,

224 N.Y. 99, 110 and 111 (1918): “The courts are not free

to refuse to enforce a foreign right at the pleasure of the

judges, to suit the individual notion of expediency or fair-

ness. They do not close their doors unless help would vio-

late some fundamental principle of justice, some preva-

lent conception of good morals, some deep-rooted tradi-

tion of the common weal.” (Italics supplied)

Eel ded, Cet area.

-_

‘ation

In Schertenletb v. Traum, Doc. No. 78-7049 (2nd Cir.

Dec. 15, 1978), the Second Cireuit Court of Appeals em-

phasized the necessity for a court, in dismissing a suit

based upon forwm non conveniens, to dismiss the suit

conditionally, stating:

To insure that plaintiff is not Jeft remediless, how-

ever, we need to add another condition to the dts-

missal. When Judge Metzner (the District Judge)

dismissed the action he stated that “[s]hould the Swiss

court refuse to exercise jurisdiction, or the defendant

refuse to submit to jurisdiction, plaintiff may move

in this court to restore this action.” We add the con-

dition that defendant must waive any statute of limi-

tations defense that has arisen since the commence-

..ment of this action in the Southern District. (Italics

supplied). Slip opinion at 706.

Similarly, in Farmanfarmaian v. Gulf Oil Corporation,

Docket No, 77-7507 (2nd Cir. Dee. 18, 1978) (not yet re-

ported), the court again emphasized that dismissal must

be conditional, stating:

([T]hat the defendants waive any defense that they

might have relating to any statute of limitations that

did not exist prior to the initiation of suit in this

district; (2) that the defendants consent to the juris-

diction ‘of the Iranian courts, and that they subm*’

to service of process in Iran, which shall take place

within 90 days from the filing of this opinion. (Ital-

ics Supplied)

In Farmanfarmaian, the court also emphasized that a

foreign plaintiff must not be an object of discrimination,

stating:

We feel constrained to comment, however, on state-

ments in the judge’s opinion to the effect that a for-

eign plaintiff's “right to sue in the United States is

clearly of a Ireser magnitude than that of an American

citizen.” 437 F Supp at 923, 927. Whatever the merits

—93—

of that proposition generally, which does find some

support im cases suggesting that our courts should

be quite cautious in dismissing on forum non con-

veniens grounds when suit is brought by an American

citizen, see, e.g., Olympic Corp. v. Societe Generale,

462 F2d 376, 378 (2d Cir 1972), we think it has no

application where, as here, a treaty between the United

States and the foreign plaintiff’s country allows na-

tionals of both countries access to each country’s

courts on terms no less favorable than those applica-

ble to nationals of the court’s country. 8 United States

Treaties and Other International Agreements, 900,

902-03 (1957). (Italics Supplied)

The Illinois Supreme Court, in clear violation of the

law pertaining to forum non conveniens espoused by this

Court, unconditionally dismissed the suit at bar stating,

with nothing in the record to support it, that plaintiffs

could bring their suits in “potential forums,” i.e. The

Netherlands, France, Greece or England. Even if proper

pleadings had been filed by the defendants verifying that

under the laws of such proposed alternative forums the

defendants were subject to suit by the plaintiffs herein,

the order of dismissal would still have to be conditional

—i.e. conditioned upon the acceptance and retention of

the suit of the plaintiffs by such alternative forums.

The courts of any of the “potential forums” gratuitously

referred to by the Illinois Supreme Court (even if suit

could be brought in any of such countries) could state the

same reasons for refusing to hear these cases as did the

Illinois Court: (1) They are too busy because they have

their own backlog of cases; (2) plaintiffs are aliens; (3)

England could say all defendants are aliens; (4) The

Netherlands could say all defendants are aliens; (5)

Greece could say all defendants are aliens; (6) The Nether-

lands, Greece and England could say there are no wit-

nesses in their jurisdiction and none of the plaintiffs live

—

— 74—

in their jurisdiction; (7) the French courts hardly con-

stitute a suitable alternative forum which could provide

“effective redress”; (8) there is nothing in the record

filed by Singapore Airlines or Gulf Air that either of them

would accede to jurisdiction in France; (9) there is nothing

in the record filed by Air France that it would concede to

jurisdiction in England, Greece or The Netherlands;

(10) in fact, Air France contends that Article 28(1) is

not waivable, and, therefore, it could not agree to juris-

diction of it in England, Greece or The Netherlands even

if it wanted to; (11) the mere fact that some of the de-

fendant airlines fly into the Netherlands, Greece, England

or France in no way establishes that the courts of those

countries have jurisdiction of those airlines as to the

claims of the plaintiffs, or if they do that they would

retain the case.

The Illinois Supreme Court’s opinion, in relegating

plaintiffs to instituting suits in those “potential forums,”

the Netherlands, Greece, England or France, has vio-

lated the precepts pertaining the doctrine of forum non

conveniens which have been established by the Supreme

Court of the United States.

The net effect of the opinion of the Illinois Supreme

Court is to divide and attempt to conquer the plaintiffs.

These plaintiffs should hardly be relegated by the courts

of the United States to a lost tribe trying to find some

court somewhere which will hear their case. They had a

legal right to file their suit in the Circuit Court of IIli-

nois, a court of general jurisdiction, where all defendants

carry on business activities.

To compel plaintiffs to litigate their claims in various

far-flung jurisdictions on different continents against

different defendants in different courts with different

languages, different procedural rules, different judges and

—_ 75 —

different lawyers, would impose upon the plaintiffs an

intolerable and unreasonable burden which denies them

due process and equal protection of the law.

CONCLUSION

The Illinois court misinterpreted and misapplied various

treaties, ic., The Warsaw Convention, Treaty of Friend-

ship, Commerce and Navigation Between the U.S. and

Israel, Convention of Establishment Between the U.S.

and France, as weli as the Constitution of the United

States, and disregarded fundamental law pertaining to

the rights of litigants, whether they are aliens or not.

There is no “World Court’ which has jurisdiction to

resolve this type of case. Within the framework of the

outmoded existing law, the Circuit Court of Cook County

constitutes a proper forum where this suit has properly

was brought against all three airlines. All that the

plaintiffs seek is the presentment of their cause to a jury

of twelve disinterested persons.

_ Defendants did not plead and agree upon any other

forum which would have jurisdiction of the defendants

and the subject matter of this suit and which would hear

and resolve this case and provide fair and effective red-

ress to all parties. Plaintiffs sued in a jurisdiction where

they could legally, according to the law of the forum,

bring suit against all necessary airlines, aboard whose

aircraft the hijackers carried weapons. That Court was

the Circuit Court of Cook County.

The Illinois Supreme Court has created a precedent

which may destroy the rights of future similar innocent

passengers of international airlines who are the victims

of hijacking, or other types of international airline acci-

dents.

—%—

The courts of civilized nations have a duty to hear

eases such as this. In denying the plaintiffs this legal

right, the Dlimois Supreme Court denied redress to the

plaintiffs. The plaintiffs are not second-class citizens,

because they are foreigners. The United States of

America is saying a great deal about human rights.

It is respectfully submitted that the multiple complex

issues involved herein necessitated the length of this pe-

tition. Plaintiffs submit that it was necessary to demon-

strate, chapter and verse, the extent of the denial to them

of their fundamental human rights, to which they are

entitled in the courts of the United States.

This Court has an opportunity to demonstrate that the

Courts of the United States are humane and compassion-

ate and that the Supreme Court of the United States will

require all courts within the United States, state and fed-

eral, to comply with the United States Constitution, treaties

and well-established law, and not to discriminate against

persons who are citizens of other countries when they

bring suits in courts in the United States which have

jurisdiction of the subject matter and the parties.

Respectfully submitted,

Sruart F, Spsiser

Cuartes F. Krause

200. Park Avenue

New York, New York 10017

Jonn J. KENNELLY

Kevin M. Forpe

111 West Washington Street

Chicago, Illinois 60602

Attorneys for Petitioners

-< -

Of Counsel:

Sruart M, Spriser

200 Park Avenue

New York, New York 10017

Howarp 8S. Cuapman, Professor,

Chicago Kent College of Law

77 S. Wacker Drive

Chicago, Illinois

Mary Morrissy

Joon J. KENNELLY

Kev n M. Forps

111 W. Washington St.

Chicago, Illinois

Pau H. Baris, Eso.

169 Hayarkon Street

Tel Aviv, Israel

THroporE Kien

Avocat A La Cour

44 Champs Elysees

75008, Paris, France

Davi M. Lack, Q.C.

Shell Tower Building

Montreal, Quebec, Canada

indie

APPENDIX A

Docket Nos. 50584, 50769 cons.— Agenda 60—May 1978.

THE PEOPLE ez rel. COMPAGNIE NATIONALE AIR

FRANCE, Petitioner, v. LOUIS J. GILIBERTO, Judge,

et al., Respondents—EITAN ARONOWITCH et al., Ap-

pellees, v. COMPAGNIE NATIONALE AIR FRANCE

et al., Appellants, reported in 74 Ill. 2d 90, 383 N.E. 2d

977 (1978), filed of record on December 4, 1978.

Mr. Curer Justice Warp delivered the opinion of the

court:

Plaintiff Eitan Aronowitch and some 80 other named

plaintiffs brought an action in the circuit court of Cook

County against the defendants, Compagnie Nationale Air

France (Air France), Singapore Airlines, Ltd. (Singa-

pore), and Gulf Air Lines (Gulf), to recover damages for

injuries suffered by the plaintiffs or for the deaths of the

decedents of some of the plaintiffs at the hands of four

terrorists who hijacked an Air France plane in which the

plaintiffs or their decedents were traveling as passengers.

For brevity we will use the term ‘‘plaintiffs’’ hereafter to

include those plaintiffs’ decedents.

Air France moved to dismiss the action on the ground

that the court lacked jurisdiction of the action by virtue

of article 28 of the Convention for Unification of Certain

Rules Relating to International Transportation by Air,

commonly known as the Warsaw Convention (49 Stat.

3000 et seq.; 49 U.S.C.A. note following section 1502; 3

Av. L. Rep. par. 27,012 e¢ seg.) and on the further ground

that the suit should be dismissed under the doctrine of

forum non conveniens. Singapore moved to dismiss the

action on the latter ground only.

‘

pees o'r rn.

SS —

en

The circuit court denied the motions to dismiss, and

Air France and Singapore prosecuted an interlocutory

appeal to the appellate court under Rule 308 (58 Ill. 2d R.

308). Air France was granted leave by this court to file a

petition for a writ of mandamus directing the trial judge

to dismiss Air France from the case. Thereafter we also

allowed motions by each defendant to transfer the appeals

to the appellate court to this court under Rule 302(b) and

to consolidate them with the action for mandamus.

The circumstances out of which the present action arose,

as alleged in the complaint and in affidavits filed by the

parties, are as follows: On the morning of June 27, 1976,

the plaintiffs, along with other passengers, boarded an

Air France plane at Tel Aviv, Israel. The plane was on a

regularly scheduled flight to Paris, France, with an interme-

diate stop at Athens, Greece. The four persons who later

hijacked the place boarded it when it landed at Athens.

A few minutes after the plane took off, the hijackers, who

were heavily armed, entered the cockpit, commandeered

the plane, and forced it to fly to Benghazi, Libya, where

it remained about six hours for refueling. During this time

the passengers, including the plaintiffs, were compelled to

remain aboard. The plane was then forced to fly to En-

tebbe Airport in Uganda, where it landed at about 3:15

a.m. on June 28, After being kept on the plane for some

six hours, the plaintiffs were placed in a vacant terminal

building where they remained confined until July 4, when

they were rescued by a force of Israeli commandos. The

purpose of the hijackers was to hold the plaintiffs and

other Jewish passengers as hostages against the release

of terrorists being held prisoner in Israel.

None of the plaintiffs are citizens of the United States

and none of them reside in the United States.

The complaint alleges that both during the time when

they were airborne and also while they were held captive

by the hijackers in Entebbe the plaintiffs suffered physical

injuries and were threatened with death by the hijackers,

and thus experienced nervous shock and mental distress,

om

jcail ase

The complaint charged Air France with negligence in

failing to inspect passengers who boarded the plane at

Athens and their luggage. It alleged that, if such an in-

spection had been made, the arms being carried by the

hijackers would have been discovered, the hijackers would

have been thwarted, and the injuries inflicted on the plain-

tiffs would not hawe occurred, The complaint alleged that

the four hijackers had reached Athens airport on a Singa-

pore plane from Bahrain, to which they had been flown on

a plane from Abu Dhabi operated by Gulf. Similar alle-

gations of negligence in failing to conduct an inspection of

passengers when they boarded were made against Singa-

pore and Gulf. Gulf moved: to dismiss the suit as to it on

the ground that it had not been properly served with

process. That motion is stil! pending in the circuit court,

and Gulf is not a party to the present proceeding.

We consider first the contention made by Air France

that suit against it was barred by the Warsaw Convention.

Since the present proceeding appears to be the first in

which a case of this character has been before this court,

some background explanation. is appropriate.

The Warsaw Convention became effective February 13,

1933, and was recognized and adhered to by the United

States in 1934, In essence the Convention relates to the

liability of air carriers for death and damages suffered

by passengers in the course of ‘‘international transporta-

tion,’’ a term which is defined by article 1(2) of the Con-

vention as follows:

‘*For the purposes of this convention the expression

‘international transportation’ shall mean any trans-

portation in which, according to the contract made by

the parties, the place of departure and the place of

destination, whether or not there be a break in the

transportation or a transshipment, are situated either

within the territories of two High Contracting Parties,

or within the territory of a single High Contracting

Party, if there is an agreed stopping place within a

territory subject to the sovereignty, suzerainty, man-

date or authority of another power, even though that

power is not a party to this convention.”’

ay Sane

Article 17 of the Convention imposes liability without

proof by a plaintiff of negligence or other fault on the part

of the defendant:

‘*The carrier shall be liable for damage sustained

in the event of the death or wounding of a passenger

or any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the airc ft or in the course of

any of the operations of embarxing or disembarking.”’

Article 20(1) provides a complete defense to the carrier,

however, upon proof that it and its ‘‘agents have taken

all necessary measures to avoid the damage or that it was

impossible for him or them to take such measures.’’

Unless the death or damages was caused by what is

termed the defendant’s ‘‘wilful misconduct’’ (art. 25), the

defendant’s liability cannot exceed a monetary ceiling

which is set by article 22. The original dollar equivalent

of the ceiling was approximately $8,300. That ceiling was

subsequently increased to about $16,000 by the so-called

Hague Protocol of 1955 (3 Av. L. Rep. par. 27,101). The

Protocol was signed by the executive branch of the United

States government, but was never ratified by the Senate.

With respect to international transportation in which

the United States is either the point of origin or of desti-

nation or is an agreed stopping place, the Convention and

the Protocol were superseded in 1966 by an agreement

between the United States and numerous carriers called

the ‘‘Montreal Agreement’’ (3 Av. L. Rep. par. 27,130).

Under that agreement the maximum damages recoverable

were increased to $75,000 (inclusive of legal fees), and the

carriers also agreed not to avail themselves of the due

care defense contained in article 20(1) of the Convention.

The Montreal Agreement was approved by the Civil Aero-

11908) Board in Order No. 18900 (31 Fed. Reg. 7302

1966) ). |

= Sh

For purposes of the present case neither the Hague

Protocol nor the Montreal Agreement need be considered

further. For accounts of the developments summarized

above see 49 U.S.C.A., note following sec. 1502; Lowen-

feld & Mendelsohn, The United States and the Warsaw

Convention, 80 Harv. L. Rev. 497 (1967); Husserl v. Swiss

Air Transport Co. (S.D.N.Y. 1972), 351 F.Supp. 702, 703

n.1; Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1975),

388 F.Supp. 1238, 1241 nn. 1 & 2, 1244, ©

The concerned provision in this case is article 28(1),

which provides as foliows:

‘‘An action for damages imust be brought, at the

option of the plaintiff, in the territory of one of the

High Contracting Parties, either before the court of

the domicile of the carrier or of his principal place

of business, or where he has a place of business

through which the contract has been made, or before

the court of the place of destination.”’

It is Air France’s position that its domicile is not the

United States but France, since the latter is the nation in

which the defendant is incorporated, and that Paris,

France, is its principal place of business. While Air France

does business in Cook County, the plaintiff’s contracts for

passage were not made in this country; that is to say,

their tickets were not purchased here. The place of desti-

nation of the Air France flight as specified on the plain-

tiff’s tickets was not the United States. Air France thus

contends that the circuit court of Cook County does not

fall within any of the alternative forums specified by

article 28(1).

The plaintiffs, on the other hand, contend that Air

France is domiciled in the United States because it con-

ducts a ‘‘substantial’’ amount of ‘‘business’’ here, that

article 28(1) of the Convention is inapplicable because the

tickets purchased by the plaintiffs did not contain a notice

of the limitation contained in that article of the places

where suit might be brought; and that Air France waived

any right to challenge the jurisdiction of the circuit court

onde

by having entered a general rather than a special appear-

ance. To the extent that the Convention might be applica-

ble, the plaintiffs also contend that it is unconstitutional.

Before discussing the issues made between the parties

we note inarily that it is now apr yess that the

hijacking of an airplane, and other acts of terrorism com-

mitted in the course of international flights, are ‘‘acci-

dents’’ within the meaning of article 17. Husserl v. Swiss

Air Transport Co. (8.D.N.Y. 1972), 351 F. Supp. 702, aff’d

mem. (2d Cir. 1973), 485 F.2d 1240; Day v. Trans World

Airlines, Inc. (2d Cir. 1975), 528 F.2d 31, 33, 37-38, cert.

denied (1976), 429 U.S. 890, 50 L. Ed. 2d 172, 97 8S. Ct.

246; Karfunkel v. Compagnie Nationale Air France

(S.D.N.Y. 1977), 427 F. Supp. 971.

The complaint alleges:

‘“‘During the said seizure and diversion of said flight

to Uganda and during detention from June 27, 1976

until their relea

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