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January 25, 1974


Levet, District Judge.

The opinion of the court was delivered by: LEVET

LEVET, District Judge:

This is a diversity action brought by plaintiff, Robert F. Williams (hereinafter "Williams") against Trans World Airlines, Inc. (hereinafter "TWA"), defendant. Plaintiff alleges citizenship in the State of Michigan; defendant has its principal place of business in New York City, New York. Jurisdiction is also claimed by virtue of 28 USC § 1331, in that the action is said to arise under the statutes and the Constitution of the United States. Defendant is a common carrier engaged in the business of transporting passengers for hire between various points, including London, England and Detroit, Michigan. The complaint alleges that plaintiff is a black man, who was unjustly and unreasonably discriminated against for his racial and political activities. The Third and Fifth Causes of Action were withdrawn.

 The Sixth Cause of Action was a libel action. As a result of the inverted order of trial, defendant adduced evidence with respect to the defense of truth raised in the answer. It was not until well along in the trial that plaintiff's counsel decided to withdraw the Sixth Cause of Action. (183.) However, as a result of the withdrawal, the evidence submitted by defendant as to the libel action was not considered by this court since it was irrelevant to the remaining actions.

 At the request of counsel for plaintiff, an unusual order of trial was followed by reason of the fact that plaintiff had not come on from Detroit and would not have been available until the second day of the trial. This unfortunate situation was not conducive to a logical approach since under this arrangement defense witnesses were heard prior to those of plaintiff.

 The basic issue in this case now remaining for decision is whether, under Title 49 USC § 1511, defendant TWA was authorized to refuse the transportation of plaintiff from London to Detroit. Plaintiff's counsel conceded that if defendant was authorized to refuse flight of plaintiff from London to Detroit there would be no cause of action for damages by reason of imprisonment in London. (272, 273.) *fn1" Consequently, the First Cause of Action as well as the Second Cause of Action depend upon the application of the above statute. Moreover, since there was no direct action on the part of defendant by which plaintiff suffered imprisonment in Pentonville Prison in London, no cause of action for the imprisonment could be maintained without proof of a causal relation between the refusal to fly plaintiff to Detroit and his incarceration in the London prison.

 After hearing the testimony of the parties, examining the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

 Findings of Fact

 1. Jurisdiction exists by virtue of 28 USC § 1332 since there is a diversity of citizenship.

 2. Plaintiff, Williams, was born and lived in Monroe, North Carolina until August 27, 1961. (101.) He is now 48 years old. He had three years of college level education and is presently a lecturer and author. (263, 289.)

 3. On August 27, 1961 plaintiff left his home in Monroe, North Carolina. On August 28 he was indicted for alleged kidnapping in North Carolina. At that time plaintiff was in New York City and learned by radio that he had been indicted and that there was an FBI warrant out for his arrest. (101, 102, 108.)

 4. Subsequent to plaintiff learning of the aforementioned indictment and warrant, on or about September 7 or 8, 1961 he fled the United States, living in Toronto, Canada for six weeks. In a roundabout journey by rail, ship and airplane Williams arrived in Havana, Cuba in November 1961. In 1965 plaintiff decided to return to the United States, but was unable to obtain a passport. (109.) He remained in Cuba until 1966. (102, 103, 104, 106.)

 5. In September 1966 plaintiff left Cuba for Peking, China by airplane, via Moscow. He lived in Peking with his family for approximately two years. (106, 107.)

 6. In 1968 plaintiff again decided to return to the United States to live and surrender to the FBI under the federal warrant. (118.) Subsequent to his decision to return to the United States, Williams traveled from Peking, China to Tanzania, Africa. While in Tanzania plaintiff attempted to procure a United States passport but was issued only a travel document. He returned to China. Plaintiff then returned to Tanzania in August 1969 with his two sons and wife, who were traveling with him. (110, 111, 112, 114.) Plaintiff's family flew to Detroit, Michigan in late August 1969 without plaintiff. (115.) Upon plaintiff's wife's arrival in Detroit, there was a large demonstration at the airport. (58.)

 7. On or about September 4, 1969, in Dar es Salaam, Tanzania, plaintiff purchased a ticket from United Arab Airlines providing for air passage from Dar es Salaam, Tanzania to London, England via United Arab Airlines, and thereafter from London, England to Detroit, Michigan on TWA, defendant. The ticket was issued in the name of "R. Franklin." (116; Ex. 1.) Plaintiff arrived in London aboard a United Arab Airlines plane on September 5, 1968 between 4:00 and 5:00 o'clock in the afternoon. (118, 119.)

 8. At all times pertinent hereto, defendant TWA was a common carrier engaged in the business of transporting passengers for hire between various points, including London, England and Detroit, Michigan.

 9. Joseph E. Flaherty was Security Representative for TWA. (47.) His responsibilities included conducting investigations such as stolen cargo, bad checks, credit cards, anti-hijack procedures, etc. Williams' name first came to his attention because of a telephone call on August 28, 1969 from Special Agent John Sullivan of the FBI in New York (48) who told him that Williams, a fugitive and for whom a warrant was outstanding, was arriving at the air field in Detroit on a TWA flight from London; that there was a possibility of a demonstration when he arrived and asked if it would be possible for TWA to have the aircraft parked elsewhere than at the passenger terminal or re-routed to land at a different station than Detroit. (49.)

 Exhibit 2 (50) is a report from Flaherty's office at TWA Security at Kennedy Airport. In the absence of Flaherty's immediate superior, Steels, Flaherty contacted TWA's staff Vice President, Newman, and advised him of the request made by the FBI. (51.) Newman asked Flaherty to get additional information about Williams and he, Flaherty, obtained the information contained in Exhibit A (52), making copies for Newman in New York and sending the photos on an aircraft to London. (53.)

 10. Richard E. Newman was Staff Vice President of TWA in charge of Audit and Security in August and September 1969. (56.) On August 30, 1969 he received a call from Flaherty indicating that he, Flaherty, had received a call from Sullivan, FBI agent in New York, in reference to Williams, who was to be carried on a TWA flight from London to Detroit. Flaherty told Newman that the FBI was expecting a demonstration in Detroit and that four weeks before, when Williams' wife came over, there had been a demonstration, at which time it appeared that there were some 300 people behind a barrier who eventually went through the barrier onto the field at Detroit. (57, 58.) Newman had a conversation with Wiser, President of TWA, about Williams and passed on the information from Flaherty. He also gave Wiser a copy of the bulletin. (60, 61.) There was also a discussion about Williams between TWA Vice President and Fletcher, General Counsel, at a meeting attended by Newman. Fletcher advised the Vice President and Newman that the airline could refuse Williams passage if Williams could or might be dangerous to the safety of the flight. (62.) Fletcher may well have been considering the general principle that conduct of the accused, as a fugitive from justice, indicates an inference of guilt as charged in the indictment dated August 28, 1961. According to Newman, the decision not to fly Williams on flight 791 was made on August 28, or 29. (64.) According to Newman, and I so find, there was no rule at that time with respect to searching passengers. (65.)

 Some time before September 6, 1969, Newman called President Wiser's attention to a circular or poster which he had received from the FBI describing Williams and referring to certain facts. (12, 13, 14; see also Deft. Ex. A.) This poster bore a photograph of Williams and stated:

 " Caution

 " Williams Allegedly has Possessed a Large Quantity of Firearms, Including a.45 Caliber Pistol which He Carries in His Car. He has Previously Been Diagnosed as Schizophrenic and has Advocated and Threatened Violence. Williams Should Be Considered Armed and Extremely Dangerous."

 11. Wiser knew that prior to August 1969 TWA had had four hijackings. Wiser was informed that the FBI had requested that if it flew Williams to the United States, TWA should be prepared to find a place to unload the airplane other than at the regular gate because of a possible demonstration and possible violence. (11, 12.) Prior to August 1969 Wiser had never heard of Williams. (22, 23.)

 Wiser conceded that before September 6 he knew that Williams was said to be coming back to the United States to surrender on a fugitive warrant. (28, 29.) Wiser conceded that on September 6, prior to the decision not to carry Williams from London to Detroit, he knew that Williams might be taken into custody by the British authorities. (23, 24.)

 Wiser decided that if Williams presented himself for passage at London the company would refuse to accept him for the following reasons, as stated by Wiser:

 (1) Concern about what was read on the FBI circular (15);

 (2) Concern expressed in Detroit about a demonstration on the arrival of the airplane which had originated from a conversation with the Detroit manager of TWA via Mr. Huntington and Mr. Newman (15);

 (3) The warning on the circular about Williams being armed and dangerous (16);

 (4) Wiser further stated that his concern was heightened by hijackings which the company was then experiencing, at the end of August and through Labor Day Weekend, in which there was a different kind of hijacking than previously, particularly in that one of TWA's airplanes was blown up on the ground in Damascus and that sanctuary had been sought in a friendly country and some of the passengers held as hostages. (18, 19.)

 (5) This decision by Wiser was made on Thursday September 4, 1969, after communication between New York and London ...

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