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People Ex Rel. Air France v. Giliberto

OPINION FILED DECEMBER 4, 1978.

THE PEOPLE EX REL. COMPAGNIE NATIONALE AIR FRANCE, PETITIONER,

v.

LOUIS J. GILIBERTO, JUDGE, ET AL., RESPONDENTS. — EITAN ARONOWITCH ET AL., APPELLEES,

v.

COMPAGNIE NATIONALE AIR FRANCE ET AL., APPELLANTS.



No. 50584. — Original petition for mandamus or prohibition.

No. 50769. — Appeal from the Circuit Court of Cook County, the Hon. Louis J. Giliberto, Judge, presiding.

MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Donald M. Haskell and Michael J. Sehr, of Haskell & Perrin, of Chicago (William J. Junkerman, William F. Martin, Jr., and Haight, Gardner, Poor & Havens, of New York, New York, of counsel), for appellant Compagnie Nationale Air France.

Heineke & Schrader, of Chicago (Mendes & Mount, of New York, New York, of counsel), for appellant Singapore Airlines, Ltd.

Stuart M. Speiser, John J. Kennelly, and Kevin M. Forde, of Chicago (Stuart M. Speiser, Charles F. Krause, Lawrence Goldhirsch, Howard S. Chapman, Kevin M. Forde, Mary C. Morrissy, and John J. Kennelly, of Speiser and Krause, of New York, New York, and Paul H. Baris, Esq., of Tel Aviv, Israel, Theordore Klein, of Paris, France, and David M. Lack, Q.C., of Montreal, Canada, of counsel), for appellees.

Plaintiff Eitan Aronowitch and some 80 other named plaintiffs brought an action in the circuit court of Cook County against the defendants, Compagnie Nationale Air France (Air France), Singapore Airlines, Ltd. (Singapore), and Gulf Air Lines (Gulf), to recover damages for injuries suffered by the plaintiffs or for the deaths of the decedents of some of the plaintiffs at the hands of four terrorists who hijacked an Air France plane in which the plaintiffs or their decedents were traveling as passengers. For brevity we will use the term "plaintiffs" hereafter to include those plaintiffs' decedents.

Air France moved to dismiss the action on the ground that the court lacked jurisdiction of the action by virtue of article 28 of the Convention for Unification of Certain Rules Relating to International Transportation by Air, commonly known as the Warsaw Convention (49 Stat. 3000 et seq.; 49 U.S.C.A. note following section 1502; 3 Av. L. Rep. par. 27,012 et seq.) and on the further ground that the suit should be dismissed under the doctrine of forum non conveniens. Singapore moved to dismiss the action on the latter ground only.

The circuit court denied the motions to dismiss, and Air France and Singapore prosecuted an interlocutory appeal to the appellate court under Rule 308 (58 Ill.2d R. 308). Air France was granted leave by this court to file a petition for a writ of mandamus directing the trial judge to dismiss Air France from the case. Thereafter we also allowed motions by each defendant to transfer the appeals to the appellate court to this court under Rule 302(b) and to consolidate them with the action for mandamus.

The circumstances out of which the present action arose, as alleged in the complaint and in affidavits filed by the parties, are as follows: On the morning of June 27, 1976, the plaintiffs, along with other passengers, boarded an Air France plane at Tel Aviv, Israel. The plane was on a regularly scheduled flight to Paris, France, with an intermediate stop at Athens, Greece. The four persons who later hijacked the plane boarded it when it landed at Athens. A few minutes after the plane took off, the hijackers, who were heavily armed, entered the cockpit, commandeered the plane, and forced it to fly to Benghazi, Libya, where it remained about six hours for refueling. During this time the passengers, including the plaintiffs, were compelled to remain aboard. The plane was then forced to fly to Entebbe Airport in Uganda, where it landed at about 3:15 a.m. on June 28. After being kept on the plane for some six hours, the plaintiffs were placed in a vacant terminal building where they remained confined until July 4, when they were rescued by a force of Israeli commandos. The purpose of the hijackers was to hold the plaintiffs and other Jewish passengers as hostages against the release of terrorists being held prisoner in Israel.

None of the plaintiffs are citizens of the United States and none of them reside in the United States.

The complaint alleges that both during the time when they were airborne and also while they were held captive by the hijackers in Entebbe the plaintiffs suffered physical injuries and were threatened with death by the hijackers, and thus experienced nervous shock and mental distress.

The complaint charged Air France with negligence in failing to inspect passengers who boarded the plane at Athens and their luggage. It alleged that, if such an inspection had been made, the arms being carried by the hijackers would have been discovered, the hijacking would have been thwarted, and the injuries inflicted on the plaintiffs would not have occurred. The complaint alleged that the four hijackers had reached Athens airport on a Singapore plane from Bahrain, to which they had been flown on a plane from Abu Dhabi operated by Gulf. Similar allegations of negligence in failing to conduct an inspection of passengers when they boarded were made against Singapore and Gulf. Gulf moved to dismiss the suit as to it on the ground that it had not been properly served with process. That motion is still pending in the circuit court, and Gulf is not a party to the present proceeding.

We consider first the contention made by Air France that suit against it was barred by the Warsaw Convention. Since the present proceeding appears to be the first in which a case of this character has been before this court, some background explanation is appropriate.

The Warsaw Convention became effective February 13, 1933, and was recognized and adhered to by the United States in 1934. In essence the Convention relates to the liability of air carriers for death and damages suffered by passengers in the course of "international transportation," a term which is defined by article 1(2) of the Convention as follows:

"For the purposes of this convention the expression `international transportation' shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention."

Article 17 of the Convention imposes liability without proof by a plaintiff of negligence or other fault on the part of the defendant:

"The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

Article 20(1) provides a complete defense to the carrier, however, upon proof that it and its "agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures."

Unless the death or damage was caused by what is termed the defendant's "wilful misconduct" (art. 25), the defendant's liability cannot exceed a monetary ceiling which is set by article 22. The original dollar equivalent of the ceiling was approximately $8,300. That ceiling was subsequently increased to about $16,000 by the so-called Hague Protocol of 1955 (3 Av. L. Rep. par. 27,101). The Protocol was signed by the executive branch of the United States government, but was never ratified by the Senate.

With respect to international transportation in which the United States is either the point of origin or of destination or is an agreed stopping place, the Convention and the Protocol were superseded in 1966 by an agreement between the United States and numerous carriers called the "Montreal Agreement" (3 Av. L. Rep. par. 27,130). Under that agreement the maximum damages recoverable were increased to $75,000 (inclusive of legal fees), and the carriers also agreed not to avail themselves of the due care defense contained in article 20(1) of the Convention. The Montreal Agreement was approved by the Civil Aeronautics Board in Order No. 18900 (31 Fed. Reg. 7302 (1966)).

For purposes of the present case neither the Hague Protocol nor the Montreal Agreement need be considered further. For accounts of the developments summarized above see 49 U.S.C.A., note following sec. 1502; Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497 (1967); Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1972), 351 F. Supp. 702, 703 n. 1; ...


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