# Petition — Giliberto v. Compagnie Nationale Air France > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2550%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 932 ## Text | | ) “a” ee nyeneemeees Steeda * - — eee 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: —- 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2550%3A1. Public record. Not legal advice.