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.
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
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
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
(Affidavit of Ramsey Clark sworn to April 27, 1987 ("Clark
Aff.") ¶ 6).
The United States does not give diplomatic recognition to the
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 ¶
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
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
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 within admiralty jurisdiction
under Executive Jet), cert. denied, 416 U.S. 969, 94 S.Ct.
1991, 40 L.Ed.2d 558 (1974).
In addition, a plaintiff may bring an action for a maritime
tort in state court or federal court under diversity
jurisdiction under the "savings to suitors" clause of section
1333. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321
(11th Cir. 1989); Neal v. McGinnis, Inc., 716 F. Supp. 996, 998
(E.D.Ky. 1989); 14 Wright & Miller § 3672, at 431-433 (1985).
Therefore, plaintiffs may bring these actions under diversity
Moreover, there is subject-matter jurisdiction over the
Klinghoffer action's claims for the death of Mr. Klinghoffer
under the DOHSA, which provides jurisdiction in federal
district courts over claims for wrongful death on the high
seas. 46 U.S.C. App. § 761 (1982).
B. The Political Question Doctrine
The PLO argues that the issues of its liability for a
terrorist attack are foreign policy questions not properly
subject to judicial determination and that a court's resolution
of them would infringe the foreign policy authority committed
to other branches of government.
For a case to be considered to present such a political
question, it must involve
a textually demonstrable constitutional commitment
of the issue to a coordinate political department;
or lack of judicially discoverable and manageable
standards for resolving it; or the impossibility
of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
from multifarious pronouncements by various
departments on one question.
Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d
The doctrine "excludes from judicial review those
controversies which revolve around policy choices and value
determinations constitutionally committed for resolution to the
halls of Congress or the confines of the Executive Branch."
Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221,
230, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166 (1986).
It does not apply simply because a case has political
implications. "The doctrine of
which we treat is one of `political questions,' not one of
`political cases.'" Baker, 369 U.S. at 217, 82 S.Ct. at 710.
Nor is an issue a political question merely because it involves
foreign affairs. Id. at 211, 82 S.Ct. at 706; Japan Whaling,
478 U.S. at 229-30, 106 S.Ct. at 2865-66; Planned Parenthood
Federation, Inc. v. Agency for Int'l Development, 838 F.2d 649,
655 (2d Cir. 1988).
The PLO relies on Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C. Cir. 1984) (per curiam), cert. denied, 470 U.S. 1003,
105 S.Ct. 1354, 84 L.Ed.2d 377 (1985), where plaintiffs sued
the Libyan Arab Republic, the PLO and other Palestinian
organizations for damages resulting from an attack on a
civilian bus in Israel. Id. at 775.*fn5 Briefly and per
curiam, the court dismissed the action. Each of the panel
judges concurred, but with differing rationales. Ibid.
Judge Robb reasoned that the case presented a political
question because it required "consideration of terrorism's
place in the international order." Id. at 823. He stated that
such claims might frustrate secret but necessary diplomatic
contacts between the United States and terrorist or otherwise
disreputable groups, and that judicial inquiry into terrorist
attacks risked interference in affairs of state of the United
States and foreign nations, the exclusive domain of Congress
and the President. Id. at 824-25. Trial of such cases would
result in "embarrassment to the nation, the transformation of
trials into forums for the exposition of political propaganda,
and debasement of commonly accepted notions of civilized
conduct." Id. at 826. Finally, "Courts ought not to serve as
debating clubs for professors willing to argue what is or what
is not an accepted violation of the law of nations." Id. at
None of those considerations is present here. The PLO has
condemned the Achille Lauro seizure and stated that it was an
act of piracy. It is not at war with either Italy or the United
States. No party asserts that the Achille Lauro seizure was
The seizure of a ship on the high seas poses no value
judgments or debatable issues of the law of nations. Acts of
piracy are clear violations of international law. "In short, it
is beyond controversy that attacking a neutral ship in
international waters, without proper cause for suspicion or
investigation, violates international law." Amerada Hess
Shipping Corp. v. Argentine Republic, 830 F.2d 421, 424 (2d
Cir. 1987) (rights of neutral ships in time of war), rev'd on
other grounds, 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818
(1989). See also Tel-Oren, 726 F.2d at 779, 781 (Edwards, J.,
concurring) (piracy is violation of law of nations); United
States v. Yunis, 681 F. Supp. 896, 901 (D.D.C. 1988) (hostage
taking and aircraft piracy are violations of international
law); In re Extradition of Demjanjuk, 612 F. Supp. 544, 556
(N.D. Ohio) (piracy is "paradigm" of offense against law of
nations), aff'd sub nom. Demjanjuk v. Petrovsky, 776 F.2d 571
(6th Cir. 1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198,
89 L.Ed.2d 312 (1986).
These are tort claims. They do not involve "policy choices
and value determinations constitutionally committed for
resolution to the halls of Congress or the confines of the
Executive Branch," Japan Whaling, 478 U.S. at 230, 106 S.Ct. at
2865-66 (1986), but familiar questions of responsibility for
personal and property injuries. Indeed, there is no issue
whether a tort was committed, but merely who committed it. The
political question doctrine does not apply.
III. Personal Jurisdiction
The PLO claims New York law furnishes no basis for
jurisdiction over it. It also argues that basing jurisdiction
on its United
Nations-related activities would impair both the operation of
the United Nations and treaty obligations of the United States.
A. Personal Jurisdiction Under Section 301
Personal jurisdiction over these actions is determined
according to New York law. It is clear that personal
jurisdiction over nonresident defendants in diversity cases is
determined by the law of the state in which the district court
sits. Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d
Cir. 1986); Bachrach v. Keaty, 698 F. Supp. 461, 463 (S.D.N Y
1988). The Second Circuit has not yet determined whether
personal jurisdiction over defendants in admiralty actions is
determined by federal law or by the long-arm statutes of the
state in which the district court is located. See Koupetoris v.
Konkar Intrepid Corp., 535 F.2d 1392, 1395 n. 13 (2d Cir. 1976)
(expressly declining to resolve issue); Aquascutum of London
Inc. v. S.S. American Champion, 426 F.2d 205, 211 n. 4 (2d Cir.
1970) (same). However, the rule prevailing in this district is
that personal jurisdiction of an admiralty claim is determined
pursuant to state law. See, e.g., New York Marine Managers,
Inc. v. M.V. Topor-1, 716 F. Supp. 783, 785 (S.D.N.Y. 1989);
Andros Compania Maritima S.A. v. Intertanker Ltd., 714 F. Supp. 669,
673-74 (S.D.N.Y. 1989); Volkart Bros., Inc. v. M./V. "Palm
Trader", Nos. 88 Civ. 7527, 9094 and 0380 (S.D.N.Y. April 6,
1989) (available on WESTLAW, 1989 WL 34094).
Section 301 of New York's Civil Practice Law and Rules, which
is the only section that might grant jurisdiction over the PLO,
allows a court to exercise jurisdiction over defendant
corporations that are "doing business" in New York.*fn7
Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 458,
434 N.E.2d 692, 694 (Ct.App. 1982).
1. Applicability of Section 301's "Doing Business" Basis
for Jurisdiction to an Unincorporated Association
The PLO contends that section 301 does not authorize
jurisdiction over noncorporate defendants doing business in New
York. The New York Court of Appeals has not yet decided that
issue. See Laufer, 449 N.Y.S.2d at 460, 434 N.E.2d at 697 ("We
may assume, without deciding, that an individual who is in fact
doing business so as to be present within the State is subject
to jurisdiction"); Hoffritz for Cutlery, Inc. v. Amajac, Ltd.,
763 F.2d 55, 58 (2d Cir. 1985) (stating that New York State
Court of Appeals has not yet decided this issue).
Lower New York courts are split on whether section 301
applies to individuals. Compare ABKCO Indus., Inc. v. Lennon,
52 A.D.2d 435, 384 N.Y.S.2d 781, 784 (1st Dep't 1976) (section
301 provides for personal jurisdiction over individuals doing
business in New York) with Nilsa B.B. v. Clyde Blackwell H.,
84 A.D.2d 295, 445 N.Y.S.2d 579, 583-84 (2d Dep't 1981) ("In our
view, that section does not provide for jurisdiction in a
paternity proceeding over a nondomiciliary who is served
outside the State, regardless of whether the cause of action
asserted in the petition is regarded as related to his personal
contacts with New York." (footnote omitted)). A federal
district court in New York has held that a non-resident
individual doing business in New York is subject to
jurisdiction pursuant to section 301. Diskin v. Starck,
538 F. Supp. 877, 880 (E.D.N.Y. 1982).
Apparently, no court has yet decided whether section 301
applies to unincorporated associations. However, under New York
law such jurisdiction is appropriate. In Nilsa, the Second
Department declined to extend section 301 to reach individuals
because "it is more appropriate for the Legislature than the
courts to formulate previously unrecognized bases for
jurisdiction." Nilsa, 445 N.Y.S.2d at 584. It stated
that courts had earlier expanded New York's jurisdiction to
cover corporations doing business in New York because of the
"principle that a corporation, which can act only through its
agents, is actually present in a state when it is engaged in
business there through them." Id. at 585 (analyzing Tauza v.
Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915 (1917)).
The reasoning that led to the exercise of jurisdiction over
corporations is applicable here. It is true that New York does
not consider an unincorporated association to be an entity
separate from its members. Martin v. Curran, 303 N.Y. 276, 280,
101 N.E.2d 683, 685 (Ct.App. 1951). However, New York permits
actions against an unincorporated association by naming and
serving either its president or treasurer. N.Y. Gen.Ass'ns Law
§ 13 (McKinney 1942 & Supp. 1990). "Article 3 of the General
Associations Law [providing for proceedings by or against
unincorporated associations) in effect changed the procedure in
an action against an unincorporated association for convenience
purposes with the result that the procedure in such actions is
similar to an action against a corporation." Smith v.
Robilotto, 27 A.D.2d 684, 276 N.Y.S.2d 323, 325 (3d Dep't 1967)
(procedure for examinations before trial of corporate officers
apply to unincorporated associations).
Accordingly, even if section 301 does not extend to
individuals, Nilsa's concerns of unauthorized judicial
expansion of jurisdiction over individuals do not apply to
unincorporated associations. New York has recognized the
collective character of unincorporated associations for some
procedural purposes, and section 301's "doing business" basis
for jurisdiction applies to the PLO. The rationale underlying
section 301 supports this conclusion:
While ordinarily it is a corporate defendant
that will be subject to general jurisdiction for
"doing business" under CPLR 301, the "doing
business" test can be legitimately applied to all
business entities, such as partnerships and
unincorporated associations, and can even be
applied to non-resident individuals. There is
certainly no due process problem in subjecting all
business entities and individuals to general
jurisdiction on the basis of substantial and
continuous contact with the forum. Moreover, equal
treatment of defendants is desirable since the
form of organization by which a defendant does
business is irrelevant to any policy governing
acquisition of jurisdiction.
Before adoption of the CPLR, non-corporate
defendants were not subject to general
jurisdiction; even if doing business, they were
subject only to specific jurisdiction for causes
of action arising from New York activity. It could
be argued that the language of CPLR 301 carries
forward these limitations. Yet it is established
that CPLR 301 does not freeze the "doing business"
basis of jurisdiction as it existed before the
CPLR, but rather allows the courts to develop and
expand the doctrine of "doing business" to accord
with appropriate policy and modern principles.
Accordingly, recent well-reasoned authority has
imposed general jurisdiction in New York even as
to non-corporate defendants "doing business" in
1 Weinstein, Korn & Miller, New York Civil Practice ¶ 301.15,
at 3-30 to 31 (footnotes omitted; citing ABKCO and Laufer).
2. Application of Section 301 to the PLO
A defendant is "doing business" under section 301 when it is
engaged in such a continuous and systematic course of conduct
here that it is "present" in New York. Laufer, 449 N.Y.S.2d at
458, 434 N.E.2d at 694 (citing McGowan v. Smith, 52 N.Y.2d 268,
437 N.Y.S.2d 643, 419 N.E.2d 321 (Ct.App. 1981)). The test is
whether the sum of the defendant's activities in New York is
"such that it may be said to be `present' in the State `not
occasionally or casually, but with a fair measure of permanence
and continuity.'" Ibid. (quoting Tauza). If a defendant is
doing business in New York within the meaning of section 301,
it may be sued on any claim, whether or not related to its New
York activities. Andrulonis v. United States, 526 F. Supp. 183,
(N.D.N.Y. 1981); McGowan, 437 N.Y.S.2d at 645, 419 N.E.2d at
The inquiry looks to "the existence of an office in New York;
the solicitation of business in the state; the presence of bank
accounts and other property in the state; and the presence of
employees of the foreign defendant in the state."
Hoffritz, 763 F.2d at 58. See also Ball v. Metallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 198-199 (2d Cir. 1990)
(office, real estate and personnel regularly working in state
are "traditional signs of an entity doing business in the state
in its own right.").
Here, the PLO's contacts with New York suffice for
jurisdiction under section 301. The PLO owns a building in
Manhattan, which it uses as a residence for Mr. Terzi and as an
office. It maintains a telephone listing, a bank account and a
number of permanent employees (a deputy, an executive
secretary, two typists, a researcher, a doorman, a driver and
a maintenance worker) in New York at an annual cost of
approximately $360,000 exclusive of capital expenditures such
as automobiles and furniture. Every month or two, Mr. Terzi
speaks in public and to the media in New York in support of the
Thus, the PLO has purposefully established a permanent and
extensive presence in New York. While the United States
strictly limits the PLO's activities, it still has constant and
substantial contacts here. Courts have sustained jurisdiction
pursuant to section 301 over defendants with similar or fewer
contacts with New York. See, e.g., Oral-B Laboratories, Inc. v.
Mi-Lor Corp., 611 F. Supp. 460, 462 (S.D.N.Y. 1985) (employee
and principal shareholder maintained permanent office in New
York and sales of $300,000 in Southern District of New York);
Ally & Gargano, Inc. v. Comprehensive Accounting, Corp.,
603 F. Supp. 923, 924-25 (S.D.N.Y. 1985) (extensive advertising,
direct solicitation, trips to and conducting seminars in New
York, participation in trade shows twice each year and
servicing franchisees); Bryant v. Finnish Nat'l Airline, 15
N Y2d 426, 260 N.Y.S.2d 625, 629, 208 N.E.2d 439, 443 (Ct.App.
1965) (corporation leased office, employed several people,
maintained bank account and conducted public relations in New
York and transmitted ticket requests overseas from New York);
Grunder v. Premier Indus. Corp., 12 A.D.2d 998, 211 N.Y.S.2d
421, 422 (4th Dep't 1961) (regular maintenance of organized
sales force may amount to doing business if sufficiently large;
defendant had no office, bank account or telephone listing in
It is immaterial that the PLO's contacts with New York are
not commercial in nature. Section 301 extends to nonprofit
organizations and activities. New York City Jaycees, Inc. v.
United States Jaycees, Inc., 377 F. Supp. 481, 486 (S.D.N Y
1974), rev'd on other grounds, 512 F.2d 856 (2d Cir. 1975);
Weinberg v. Colonial Williamsburg, Inc., 215 F. Supp. 633, 639
B. The PLO's Claim to Immunity
The PLO argues that parties with claims against it
cannot jeopardize the functions of the United
Nations and organizations as diverse as the
International Red Cross and the African National
Congress by seeking to establish jurisdiction over
representatives to the U.N. solely on the basis of
their presence here, for acts which occured [sic]
half a world away, totally unrelated to U.N.
activities and which in this case were directed by
others the PLO says intended to injure it by their
(PLO Memorandum of Law Following Oral Argument at 7).
In support of this argument, the PLO submits a letter dated
June 11, 1986 from the Legal Counsel to the United Nations,
Carl-August Fleischhauer, Esq., to counsel for the PLO. The
letter states that —
it is widely accepted that certain functional
privileges and immunities flow by necessary
intendment from the Headquarters Agreement and
General Assembly resolution 3237 without which the
invited entity would not be in a position to carry
out its functions. Such functional
privileges and immunities certainly extend to
immunity from legal process in respect of words
spoken or written or any act performed in the
exercise of the observer function.
Furthermore, since the permanent presence of the
Palestine Liberation Organization in New York is a
direct result of General Assembly resolution 3237
and is restricted to United Nations matters, that
presence could appropriately be considered as not
covering the receipt of service of legal process
both personally and in rem in regard to matters
completely unrelated to that presence.
It has also to be noted that the United States
has never conferred recognition on the Palestine
Liberation Organization Observer Mission and has
certainly neither explicitly nor tacitly agreed to
the performance on American soil of such official
acts as the acceptance of process with effect for
or against the Palestine Liberation Organization.
(PLO Reply Memorandum of Law, Exhibit A at 3).