Petition — Giliberto v. Compagnie Nationale Air France
Supreme Court brief1979
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NM Supreme Court, U.S, 79
¥iLi, BD
Jn the
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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