The opinion of the court was delivered by: LOUIS L. STANTON
The Klinghoffer and Chasser cases were brought in late 1985, following the piratical hijacking of the vessel "Achille Lauro" in the Mediterranean Sea and the murder of Leon Klinghoffer by (plaintiffs claim) members of the Palestine Liberation Organization ("PLO") that October.
The vessel's owner moved for dismissal on the basis of forum-selection clauses in the tickets of passage, which provided that passengers' suits against the vessel's owner must be brought in Naples, Italy. This court denied the motion, concluding that:
As a whole . . . the ticket does not give fair warning to the American citizen passenger that he or she is renouncing and waiving his or her opportunity to sue in a domestic forum over a contract made and delivered in the United States. (Transcript 10/21/87, p. 5).
Defendants' appeal was dismissed on the ground that it was taken from a non-final interlocutory order. Chasser v. Achille Lauro Lines, 844 F.2d 50 (2d Cir. 1988), aff'd, 490 U.S. 495, 109 S. Ct. 1976, 104 L. Ed. 2d 548 (1989).
In the meantime, additional plaintiffs had sued (the 1986 Meskin and Saire cases and the 1988 Hodes and Saire cases) and the original defendants had asserted third-party claims against the PLO. After discovery, the PLO moved to dismiss for lack of subject matter or personal jurisdiction, insufficiency of service of process, failure to state a claim upon which relief can be granted and lack of capacity to be sued. This court denied that relief. Klinghoffer v. S.N.C. Achille Lauro, etc., 739 F. Supp. 854 (S.D.N.Y. 1990). It held, among other things, that the PLO could not claim immunity on the ground that its presence in New York arose from its function as a permanent observer at the United Nations, since the Headquarters Agreement gives it no such immunity and there is no charter in the federal courts for expanding that carefully drafted agreement, id. at 865, and that since the action was brought under federal law, the PLO had been properly served under Fed. R. Civ. P. 4 and 17(b)(1). Id. at 867.
The Court of Appeals accepted certification and the PLO's petition for appeal under 18 U.S.C. § 1292(b). 921 F.2d 21 (2d Cir. 1990). Thereafter, it affirmed various rulings below, but vacated and remanded for further findings with respect to the question of personal jurisdiction over the PLO. 937 F.2d 44 (2d Cir. 1991). It stated that but for the PLO's UN observer status its presence would not be allowed in New York at all ( id. at 51):
It is allowed to come to New York only because the Headquarters Agreement effectively removes control over the UN Headquarters and related areas from the jurisdiction of the United States. In other words, the PLO's participation in the UN is dependent on the legal fiction that the UN Headquarters is not really United States territory at all, but is rather neutral ground over which the United States has ceded control.
With respect to the service of process on the PLO, the Court of Appeals directed the district court to determine whether, under Lauritzen v. Larsen, 345 U.S. 571, 97 L. Ed. 1254, 73 S. Ct. 921 (1953), the plaintiffs' substantive rights are those granted by Italian law, in which case Fed. R. Civ. P. 17(b)(1)'s provision allowing suits against unincorporated associations in their common names for the purpose of enforcing a United States federal substantive right would not apply, or whether United States maritime law governs, under which the service already effected is valid. In the former event, the service so far effected is invalid under the applicable New York rule, and the claims against the PLO must be dismissed without prejudice. 937 F.2d at 52-54.
The parties have briefed these points on remand. They have analyzed, but not supplemented, the record which was before this court on the original motion.
On the present record I make the following findings:
1. Following the standard set by the Court of Appeals, I reject the argument that these activities should be counted in determining whether the PLO's presence in New York suffices for jurisdictional purposes:
The actions of Dr. Edward Said, because they were not taken by him as a member of, or as acting on behalf of the PLO.
The PLO's taxation of the salaries of its employees in New' York, because those salaries did not derive from non-UN activities.
The receipt of contributions to the PLO by the New York office, because it returned those contributions to the donors and there is no evidence the donors thereafter contributed directly to the suggested PLO charities.
The PLO's participation from 1981 to 1984 in civil litigation to obtain a bequest, because that activity was too episodic and too distant in time from the service of process to be counted as doing business in New York for the purpose of this case.
2. There remain other PLO activities within New York, sufficiently-separate from its UN activities that they may be considered in determining whether it was "doing business" in New York within the meaning of New York Civil Practice Law and Rules § 301: Mr. Terzi and others in the PLO's New York office gave speeches and interviews every month or so, to live audiences and in media appearances in New York. The PLO's New York office purchased informational pamphlets from various organizations, and generated their own informational materials and distributed them to those seeking information about the PLO. The Palestinian National Council (the legislative body of the PLO) solicited and secured Dr. Said's membership in the Council and mailed to him in New York information and airline tickets for the Council's annual meetings. These activities demonstrate a presence in New York that is not occasional or casual, but has a fair measure of permanence and continuity. Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 458, 434 N.E.2d 692, 694 (1982). To some extent, which cannot be estimated on this record, the assets, facilities and personnel of the PLO in New York assisted in those activities. These activities suffice to meet the "doing business" standard for the period until passage of the Anti-Terrorism Act in 1988.