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KLINGHOFFER v. S.N.C. ACHILLE LAURO

June 7, 1990

ILSA KLINGHOFFER AND LISA KLINGHOFFER ARBITTER, AS CO-EXECUTRIXES OF THE ESTATES OF LEON AND MARILYN KLINGHOFFER, PLAINTIFFS,
v.
S.N.C. ACHILLE LAURO ED ALTRI-GESTIONE MOTONAVE ACHILLE LAURO IN AMMINISTRAZIONE STRAORDINARIA; COMMISSARIO OF THE FLOTA ACHILLE LAURO IN AMMINISTRAZIONE STRAORDINARIA; CHANDRIS (ITALY) INC.; PORT OF GENOA, ITALY; CLUB A.B.C. TOURS, INC.; AND CROWN TRAVEL SERVICE, INC., D/B/A RONA TRAVEL AND/OR, CLUB A.B.C. TOURS, DEFENDANTS. SOPHIE CHASSER, ET AL., PLAINTIFFS, V. ACHILLE LAURO LINES, ET AL., DEFENDANTS. VIOLA MESKIN, ET AL., PLAINTIFFS, V. ACHILLE LAURO LINES, ET AL., DEFENDANTS. DONALD SAIRE, ET AL., PLAINTIFFS, V. ACHILLE LAURO ED ALTRI-GESTIONE M/N ACHILLE LAURO S.N.C., ET AL., DEFENDANTS. FRANK R. HODES AND MILDRED HODES, PLAINTIFFS, V. PALESTINE LIBERATION ORGANIZATION, AN UNINCORPORATED ASSOCIATION, JOHN DOE, PRESIDENT, P.L.O, AND RICHARD ROE, TREASURER, P.L.O., DEFENDANTS. DONALD E. SAIRE AND ANNA G. SAIRE, PLAINTIFFS, V. PALESTINE LIBERATION ORGANIZATION, AND JOHN DOE AS PRESIDENT AND DON ROE AS TREASURER OF THE PALESTINE LIBERATION ORGANIZATION, DEFENDANTS.



The opinion of the court was delivered by: Stanton, District Judge.

  OPINION AND ORDER

The Palestine Liberation Organization (the "PLO") moves pursuant to Fed.R.Civ.P. 12(b)(1), (2), (5), (6) and 17(b) to dismiss the complaints and third-party complaints against it on the grounds of lack of subject matter or personal jurisdiction, insufficiency of service of process, failure to state a claim and lack of capacity to be sued. The motion was argued on March 8, 1989 but its consideration was deferred until April 1990 at the request of the parties, while they discussed other matters concerning these suits.

BACKGROUND

Plaintiffs were passengers, or are the personal representatives of passengers, on the Italian passenger liner Achille Lauro, which was forcibly seized in the Mediterranean Sea in October 1985. During the course of the seizure, Leon Klinghoffer*fn1 was shot and his body thrown into the Mediterranean.

Plaintiffs assert that the seizure and murder were done by members of the PLO. The PLO denies responsibility for those acts, which it claims were done by its opponents in an effort to discredit it; and it asserts that its Chairman Arafat mediated a peaceful resolution of the piracy. (Transcript of Oral Argument held March 28, 1989 at 29-30).

A. The Parties and Jurisdictional Allegations

Plaintiffs sued the owner and charterer of the Achille Lauro, travel agencies and various other entities they claim failed to take sufficient steps to prevent, or warn of the risk of, the piracy. These complaints base jurisdiction on diversity of citizenship, 28 U.S.C. § 1332 (1988), admiralty, id. § 1333, or both. The Klinghoffer action alleges jurisdiction pursuant to diversity of citizenship, and asserts claims under state law, general maritime law and the Death on the High Seas Act ("DOHSA"), 46 U.S.C. App. §§ 761-767 (1982).

Defendants Chandris, Inc. and Crown Service Travel, Inc. impleaded the PLO, seeking indemnification or contribution. for any damages awarded against them on plaintiffs' claims and compensatory and punitive damages against the PLO for tortious interference with their businesses. The third-party complaints allege diversity of citizenship, admiralty, federal question, 28 U.S.C. § 1331, and ancillary jurisdiction.

Later, other Achille Lauro passengers filed two actions directly against the PLO alleging diversity of citizenship jurisdiction.

B. The PLO and Its Activities in New York

  The PLO describes itself as the internationally
  recognized representative of a sovereign people
  who are seeking to exercise their rights to
  self-determination, national independence, and
  territorial integrity. The PLO is the
  internationally recognized embodiment of the
  nationhood and sovereignty of the Palestinian
  people while they await the restoration of their
  rights through the establishment of a
  comprehensive [sic], just and lasting peace in the
  Middle East.

(Affidavit of Ramsey Clark sworn to April 27, 1987 ("Clark Aff.") ¶ 6).

The United States does not give diplomatic recognition to the PLO.

The General Assembly of the United Nations invited the PLO to participate in its sessions as an observer in 1974. G.A.Res. 3237, 29 U.N. GAOR Supp. 31 (Agenda Item 108) 4, U.N. Doc. A/9631 (1974). The Secretary-General of the United Nations accredited Zuhdi Labib Terzi as the PLO's Permanent Observer at the United Nations in New York. (Clark Aff. ¶ 2).

The United Nations established its headquarters in New York in the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (the "Headquarters Agreement"). See 22 U.S.C. § 287 note (1988) (setting forth the Headquarters Agreement). This agreement provides that United States federal, state and local authorities "shall not impose any impediments to transit to or from the headquarters district" by designated persons affiliated with the United Nations. Headquarters Agreement ¶ 11.

The PLO, which has its own headquarters in Tunis, Tunisia, owns a building in Manhattan which it uses as its United Nations Mission (the "Mission").*fn2 (Affidavit of Zuhdi Labib Terzi sworn to May 5, 1986 ("Terzi Aff.") ¶ 2). Mr. Terzi and his family reside there, and the PLO has eight other employees at the Mission. (Id.; Crown Travel's Memorandum of Law in Opposition to PLO's Motion to Dismiss at 13). The PLO owns an automobile and maintains a bank account in New York, and has a telephone listing in the NYNEX Telephone Company directory ("white pages"). (Id. at 14).

Other high-ranking officers of the PLO have used the Mission, including Mr. Arafat and the PLO's information officer, Hatem Husseini. (Certification of Jay D. Fischer ¶ 3b).

The PLO asserts that the only work done at the Mission is related to the United Nations. (Terzi Aff. ¶ 2). Nonetheless, Mr. Terzi states: "As a part of my duties as Permanent Observer I must not only present the views of the PLO to the U.N., but present those same views to the interested public." (Id. ¶ 4). He asserts that he generally accepts all invitations to speak on radio or television within the headquarters district, and does so between six and eight times each year. (Ibid.). Mr. Terzi has not been given express authority to accept service of process on behalf of the PLO. (Id. ¶ 7).

The PLO contends that the United States carefully circumscribes the activities of Mr. Terzi and his staff to the headquarters district. The Anti-Terrorism Act of 1987, 22 U.S.C. § 5201-03 (1988) (the "ATA"), makes it unlawful to "receive anything of value except informational material from the PLO" or to "expend PLO funds from the PLO" if the purpose be to further the PLO's interests. Id. § 5202(1)-(2). The ATA also forbids establishing or maintaining "an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof." Id. § 5202(3). Since the ATA does not override the Headquarters Agreement, it does not affect the Mission. United States v. Palestine Liberation Org., 695 F. Supp. 1456, 1464-71 (S.D.N Y 1988).

DISCUSSION

The PLO asserts several grounds for its motion for dismissal: (1) there is no subject matter jurisdiction because this case presents a nonjusticiable political question; (2) there is no personal jurisdiction over the PLO; (3) the PLO, assuming that it is an unincorporated association, lacks the capacity to be sued; and (4) service of process on Mr. Terzi in New York was insufficient.

I. The Nature of the PLO

The PLO asserts that it cannot be sued as an unincorporated association because it is the embodiment of the Palestinian people and is structured and operates as a state.

"An unincorporated association is defined as a body of persons acting together and using certain methods for prosecuting a special purpose or common enterprise." Motta v. Samuel Weiser, Inc., 768 F.2d 481, 485 (1st Cir.) (citing Black's Law Dictionary 111 (5th ed. 1979)), cert. denied, 474 U.S. 1033, 106 S.Ct. 596, 88 L.Ed.2d 575 (1985). Another formulation of this definition is "a group of persons formed voluntarily without a charter for the purpose of promoting a common enterprise or objective." Health Care Equalization Comm. of Iowa Chiropractic Soc'y v. Iowa Medical Soc'y, 501 F. Supp. 970, 976 (S.D.Iowa 1980), aff'd, 851 F.2d 1020 (8th Cir. 1988).

The PLO's purpose is to restore what its members and leadership believe to be the rights of the Palestinian people. Although it claims the attributes of a state, it controls no defined territory or populace and is not recognized by the United States. International law generally regards a "state" as "`(an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.'" National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir. 1988) (quoting Restatement (Third) of the Foreign Relations Law of the United States § 201 (1987)), cert. denied, ___ U.S. ___, 109 S.Ct. 1535, 103 L.Ed.2d 840 (1989). That definition does not fit the PLO closely enough to justify treating it as a foreign sovereign or state in this litigation.

Rather, as its name indicates, the PLO is an organization. It is composed of individuals, without a legal identity apart from its membership, formed for specific objectives. For present purposes, it may be treated as an unincorporated association.

II. Subject-Matter Jurisdiction

A. The Bases for Subject-Matter Jurisdiction

The complaints and third-party complaints allege various grounds for subject-matter jurisdiction.

These cases come within the admiralty jurisdiction of the federal courts. See 28 U.S.C. § 1333.*fn3 Admiralty jurisdiction exists where a tort occurs in navigable waters and the wrong has "a significant relationship to traditional maritime activity." Executive Jet Aviation Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). See also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673-74, 102 S.Ct. 2654, 2657-58, 73 L.Ed.2d 300 (1982) (holding Executive Jet analysis applies outside aviation torts); Keene Corp. v. United States, 700 F.2d 836, 843 (2d Cir. 1983).

The seizure of a ship in navigable waters is a traditional maritime wrong, and therefore these cases lie within admiralty jurisdiction. See American Hawaiian Ventures, Inc. v. M.V.J. Latuharhary, 257 F. Supp. 622, 627 (D.N.J. 1966) ("every seizure by force on the high seas is prima facie piracy, and hence a maritime tort"). See also Kelly v. Smith, 485 F.2d 520, 523-26 (5th Cir. 1973) (action for injury from rifle fire on small boat in Mississippi River is ...


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