FSIA, which was not in effect in 1972 when the Executive Jet decision was rendered. 28 U.S.C. § 1605(b); Amerada Hess, 488 U.S. at 438.
The remainder of the cases relied upon by the plaintiffs relate to issues of conflicts of law which arise from domestic aviation disasters. See, In Re Air Crash at Washington, D.C., 559 F. Supp. 333, 340-42 (D.C. Cir. 1983) (which state's law should apply when residents of various states are involved in the same disaster); O'Keefe v. Boeing Company, 335 F. Supp. 1104, 1110-11 (S.D.N.Y. 1971) (which state's conflicts law should apply when an Air Force plane stationed in Massachusetts crashed in Maine and the wrongful death action was brought in New York). In accordance with plaintiffs' use of conflicts of law principles they claim that because the plane was destined for the United States, Pan Am was an American airline and the majority of passengers were citizens of the United States the situs of the tort was actually the United States.
This Court finds plaintiffs' call for a flexible approach for determining the location of an international aviation tort for the purposes of determining jurisdiction unpersuasive as the law to be applied in this action is the FSIA, not federal maritime law or conflicts law. The plain language of § 1605(a)(5) states that foreign immunity is excepted only when the tort occurs in the United States. The Supreme Court restricts the definition the "United States" for the purposes of this statute to "the continental United States and those islands that are part of the United States or its possessions. . . ." Amerada Hess, 488 U.S. at 440. As this flight exploded above Lockerbie, Scotland and crashed into Scottish soil, and there is no authority which stands for the proposition that the locality test should not be used, this Court finds this tortious injury was inflicted in Scotland, not the United States.
b. Pan Am Flight 103 as "Territory" of the United States
Plaintiffs seek to expand the maritime law principle that ships are the territory of their flag nation to include commercial airplanes. See, e.g., United States v. Flores, 289 U.S. 137, 155, 77 L. Ed. 1086, 53 S. Ct. 580 (1933) ("a merchant vessel . . . is deemed to be a part of the territory" of "the sovereignty whose flag it flies."); United States v. Cordova, 89 F. Supp. 298, 302 (E.D.N.Y. 1950) ("American flag vessel is itself territory of the United States"). Applying this territorial approach, the plaintiffs argue that Pan Am Flight 103 was American territory so that the tortious activity injury inflicted on Mrs. Hudson and Mrs. Smith "occurred in the United States."
Adopting plaintiffs' approach would require this Court to expand Supreme Court precedent and overstep the bounds of judicial authority. As noted above, for the purpose of enforcing the FSIA the Supreme Court has defined the United States as "the continental United States and those islands that are part of the United States or its possessions. . ." Amerada Hess, 488 U.S. at 440. This Court has no authority to broaden that clear definition to include American commercial aircraft. If this Court were to rule in plaintiffs' favor it would be interfering with foreign relations as each nation has the right to regulate the land on which a distressed plane might crash and its own air space. See, e.g., 49 U.S.C. § 1348 (1988) (authorizing Secretary of Transportation to regulate use of navigable air space). This Court reiterates that the tortious injury suffered in this case occurred on foreign soil and therefore does not fall within the non-commercial tort exception to the FSIA.
4. Subject Matter Jurisdiction Based on an Implied Waiver Pursuant to 28 U.S.C. § 1605(a)(1).
According to § 1605(a)(1), a foreign state can waive immunity "either explicitly or by implication . . . ." In interpreting the FSIA "federal courts have been virtually unanimous in holding that the implied waiver provision of Section 1605(a)(1) . . . is to be construed narrowly. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2nd Cir. 1991). Plaintiffs claim that Libya impliedly waived immunity when (1) Libya agreed to guaranty satisfaction of any civil damage awards against its operatives as a result of the bombing of Pan Am Flight 103 and (2) when Libya acted in a "non-sovereign" manner.
a. The Guaranty
On February 27, 1992, Ibrahim M. Bishari, Secretary of the Libyan government's "People's Committee for Foreign Liaison and International Cooperation", sent a letter to the Secretary of the United Nations which stated:
Despite the fact that discussion of the question of compensation is premature, since it would only follow from a civil judgment based on a criminal judgment, Libya guarantees the payment of any compensation that might be incurred by the responsibility of the two suspects who are its nationals in the event that they are unable to pay. S/23672, Report of Secretary-General (1992).
The plaintiffs contend this guaranty necessarily means that Libya contemplated the possibility of being haled into an United States court and therefore impliedly waived its right to sovereign immunity.
This Court disagrees with plaintiffs' self-serving interpretation of Mr. Bishari's letter. The above quoted clause indicates the Libyan government only agrees to guaranty civil damages which the Libyan criminal suspects cannot afford to pay when and if those suspects are convicted of criminal activity. The letter, read in totality, makes it clear that Libya does not intend to activate the provisions of that letter unless and until certain conditions are met. Specifically, the correspondence states "the proposals contained in this draft shall be binding [when] . . . State terrorism against Libya shall end, there shall be a halt to threats and provocations against it . . . the economic boycott shall be ended . . . and its name shall finally be removed from the roster of terrorism." S/23672. As those conditions have not been met, this letter does not represent a true "international agreement" and therefore no provision therein can create an implied waiver of sovereign immunity.
Even if the Libyan government had guaranteed civil damages it does not necessarily follow that this Court would find Libya had impliedly waived its right to sovereign immunity pursuant to FSIA. "By signing an international agreement that contains no mention of a waiver of immunity to suit in United States courts or even the availability of a cause of action in the United States" a foreign nation may not waive its immunity pursuant to § 1605(a)(1). Amerada Hess, 488 U.S. at 442-43. As the letter makes no reference to our judicial system or the creation of a private right of action to be adjudicated in the United States, it does not necessarily impliedly waive Libya's right to immunity.
b. Violations of the Jus Cogens Norm
To interpret the language of § 1605(a)(1) plaintiffs argue that the implied waiver of immunity provision codified pre-FSIA case law which held a state is divested of its sovereign character, including immunity, when it participates in non-sovereign acts. See, United States v. Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199, 203 (S.D.N.Y. 1929) (The Government of France's role as a shareholder in a private French corporation was not sovereign activity so that the corporation was not immune from suit in the United States). To define those acts which amount to an implied waiver plaintiffs look to "standards recognized under international law." H.R. Rep. No. 1487, 94th Cong., 2d Sec. 18, reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6617. Particularly, plaintiffs assert that Libya's alleged involvement in this bombing impliedly waived immunity as it was a non-sovereign action in the form of a violation of the jus cogens norm.
Jus cogens norm is an international law principle which is "accepted by the international community of States as a whole as a norm from which no derogation is permitted . . ." Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C.Cir. 1988) (quoting Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, U.N.Doc. A/Conf. 39/27, 8 I.L.M. 679). Jus cogens violations include "a handful of heinous activities - each of which violates definable, universal and obligatory norms." Tel-Oren, 726 F.2d at 781 (Edwards, J., concurring).
There is no authority which provides federal courts with the discretion to determine whether a nation has impliedly waived immunity by examining if that nation was acting in a "sovereign" or "non-sovereign" manner. The legislative history indicates that to decide whether immunity is impliedly waived courts are to inquire as to the foreign government's subjective intent to avail itself to American jurisdiction. Shapiro, 930 F.2d at 1017. Congress provided three examples of activity which would warrant the finding of an implied waiver: (1) an agreement to arbitrate in another country, (2) an agreement that the laws of another nation will govern a contract, and (3) the filing of a responsive pleading without raising the sovereign immunity defense. Id. (citing H.R. Rep. No. 1487, 94th Cong., 2d Sec. 18, reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6617). As the instant case is not analogous to these three examples and because participating in "terrorist" activity does not indicate a foreign sovereign's amenability to suit, Libya has not impliedly waive its immunity pursuant to § 1065(a)(1).
The District of Colombia Circuit recently determined that the violation of the jus cogens norm is not an implied waiver of sovereign immunity. Princz v. Federal Republic of Germany, 307 U.S. App. D.C. 102, 26 F.3d 1166, 1174 (D.C. Cir.), cert. denied, 130 L. Ed. 2d 803, 115 S. Ct. 923 (1995). That case concerned an American Jewish Holocaust survivor who was seeking to sue Germany for war reparations. 26 F.3d at 1168. The Circuit Court found the atrocities inflicted in the Nazi concentration camps were definitely horrendous violations of the jus cogens norm, but that such actions did not create an implied waiver of sovereign immunity as neither the Third Reich nor the modern German government ever indicated "its amenability to suit." Id. at 1168-69, 1174. This Court adopts the reasoning in Princz. Libya's alleged behavior was inhumane and violative of the jus cogens principle, but such actions do not demonstrate that Libya purposefully availed itself to our courts.
Although Libya's alleged participation, if true, in this tragedy is outrageous and reprehensible and the human suffering involved is heartbreaking, this Court may not rightly obtain jurisdiction over Libya for the purposes of these private rights of action. Libya's alleged terrorist actions do not fall within the enumerated exceptions to the Foreign Sovereign Immunity Act and therefore Libya must be accorded sovereign immunity from suit.
Thomas C. Platt
District Judge, U.S.D.C.
Dated: Uniondale, New York
May 17, 1995