Defendant MEA contends that it is entitled to judgment as a matter of law because on the record at trial, there was insufficient evidence for the jury to find that defendant owed plaintiffs on a subsequent Kuwait flight any duty. Moreover, defendant argues that even if some duty were owed, there was insufficient evidence showing that defendants breached the duty or that such breach was the proximate cause of the tragedy. At trial, plaintiffs sought to establish that defendant owed them a duty of due care to avoid the risk of carrying potential hijackers and their weaponry to a subsequent targeted airline with resulting injury. Since plaintiffs were not passengers on any MEA flight, the evidence they presented as to MEA focused on two things: first, whether the tickets presented in Beirut should have caused MEA's ticket takers to be suspicious and alert the army which was responsible for passenger and baggage screening; and second, whether MEA should itself have conducted "secondary screening", that is, its own screening of passengers before boarding where by all accounts the army screening was "inadequate".
Plaintiffs argue that the following should have made the Beirut MEA ticket-takers suspicious of the four said passengers requiring some action:
their tickets were issued on Avianca stock, although they were not flying Avianca; the tickets included a Kuwait Airline connection, while the other Karachi-bound passengers on the MEA flight would normally connect to Pakistani International Airlines; and, the final destination listed on the tickets was Bangkok, a long way from Beirut, but they did not check any luggage, having only hand luggage.
But, under the circumstances, these were not that unusual. Indeed, plaintiffs' own aviation security expert, Charles Carrington, testified that a ticket agent noticing a trip from Beirut to Bangkok with no checked luggage might take a closer look at the ticket, but would probably be looking for signs of fraud: "The ticket agent at Beirut, I would think that the ticket agent would take a second look at the ticket, at least, because it is odd and if not even for potential terrorists on board, for potential fraud; fraudulent ticket." On the issue of fraud, Carrington testified: "It is a valid ticket, apparently. There is nothing that indicates that it isn't."
Similarly, plaintiffs failed to present evidence sufficient for a jury to find that MEA had a duty to conduct secondary screening, or even could have. Screening of passengers before boarding at Beirut was conducted by police under the control of the Lebanese army which controlled the airport itself. Plaintiffs' expert Carrington defined secondary screening as an "air carrier performing its own screening of passengers and carry-on luggage after the official or government screening has been conducted." Beirut, was at that time, notorious for poor security.
While Carrington testified that secondary screening procedures were in place at Cairo and Istanbul, also with poor security, he also testified that he had not visited the Beirut airport and did not know, apart from depositions read into the record, what the relationship was between MEA's security duties and those of the Lebanese army. Those depositions were from Sami Boueri, MEA Assistant Vice President for Traffic Services, and Adel Hout, MEA Assistant Vice President Beirut Station. Their testimony was that security screening and carry-on luggage searching was conducted by the army at Beirut. Boueri stated that MEA was not allowed to have secondary screening security personnel, characterizing security as the "sole responsibility" of government authorities. I, accordingly, conclude that since plaintiffs failed to adduce sufficient proof that MEA could have conducted secondary screening, plaintiffs therefore necessarily failed to present sufficient evidence to permit a jury to conclude that it should have done so.
Other flaws in plaintiffs' theory of MEA's duty to them as passengers on Kuwait 221 appear when the issue of proximate cause is examined. Even assuming that MEA had a duty to another airline's passengers to conduct secondary screening, or, having examined a ticket or tickets and become suspicious, to alert the army to be especially thorough in its screening, and assuming further that defendant breached those duties, except for a "but for" argument, one could not reach the conclusion that such a breach was the proximate cause of the tragedy to plaintiffs aboard the later flight Kuwait 221. If the MEA ticket-takers had scrutinized the tickets presented, then, according to plaintiffs' own expert, they would have found those tickets, while unusual, to be validly-issued tickets. Going one step further, even if the ticket-takers had become suspicious and alerted the army, there is no evidence of what, if anything, the army would have done with the information, or what it would have found had it searched such passengers or hand luggage. Similarly, even if MEA had done secondary screening prior to boarding, there is no evidence as to what, if anything, would have been discovered, since on this record, the weaponry did not emerge until aboard Kuwait 221. On this record, it is entirely possible that the hijackers were supplied their guns and grenades at the Dubai airport from some other source. Plaintiffs' own witnesses testified that at the Dubai airport, arriving and departing passengers commingled in the transit lounge, thereafter passing through security from the departure lounge into busses on the tarmac to their planes.
Finally, the failure of Dubai's security and Kuwait Airway's own secondary screening to detect the arms going aboard its flight 221 is an independent intervening act precluding a finding of proximate cause in this case. Testimony at trial indicated that the tarmac was dark and only lightly guarded, and a British dignitary was occupying a large part of the attention of airport security agents. Kuwait Airways did conduct its own secondary screening of passengers at the top of the boarding steps to flight 221, but obviously failed to detect the guns, grenades and explosives brought on by the hijackers. Plaintiffs argue that since the negligence of Kuwait Airways was reasonably foreseeable by MEA, MEA is not absolved. I conclude, however, that under these circumstances MEA's responsibility for negligence, if any, did not carry beyond Kuwait's subsequent clear negligence. If any duty was owed by MEA to plaintiffs, Kuwait Airways' failure to detect the weapons coming on its own plane was an independent intervening act that severed MEA from the chain of causation. See Aboujdid v. Singapore Airlines, Ltd., N.Y.L.J., Oct. 27, 1989, at 21 (N.Y. Sup. Ct. Oct. 21, 1989).
MEA's motion for judgment as a matter of law is accordingly granted and plaintiffs' amended complaints against MEA are dismissed with prejudice.
The foregoing is so ordered. Submit judgments accordingly.
Dated: New York, New York
July 6, 1995
Hon. Richard Owen
United States District Judge