Aboujdid v. Gulf Aviation Co., Ltd.

• Decision Date: 31 December 1980
• Citation: 437 N.Y.S.2d 219,108 Misc.2d 175
• Parties: Joseph ABOUJDID et al., Plaintiffs, v. GULF AVIATION COMPANY, LTD., a/k/a Gulf Air and Singapore Airlines, Ltd., a/k/a Singapore Airlines, Defendants.
• Court: New York Supreme Court

Page 219

437 N.Y.S.2d 219

108 Misc.2d 175

Joseph ABOUJDID et al., Plaintiffs, v. GULF AVIATION COMPANY, LTD., a/k/a Gulf Air and Singapore

Airlines, Ltd., a/k/a Singapore Airlines, Defendants.

Supreme Court, Special Term, New York County, Part I.

Dec. 31, 1980.

Speiser & Krause, P.C., New York City, for plaintiffs.

Condon & Forsyth, New York City, for defendant Gulf Aviation Co.

Mendes & Mount, New York City, for Singapore Airlines, Ltd.

EDWARD J. GREENFIELD, Justice:

Is New York an appropriate forum for a lawsuit against Singapore Airlines in which it is alleged that that Malaysian corporation negligently permitted Palestinian armed terrorists to embark on its flight from Bahrein to Athens, without proper search, so that they were able without further search to board an Air France plane which was making an intermediate stop in Athens on a flight from Tel Aviv to Paris, which plane the terrorists hijacked to Libya and then to Entebbe Airport in Uganda, the locale of the celebrated Israeli rescue mission of July 4, 1976? Although New York has no readily apparent nexus with these operative facts, under the circumstances here presented, this court concludes that it is a proper forum, and will deny the motion by defendant Singapore Airlines, in which defendant Gulf Air has joined, to dismiss the action pursuant to CPLR 327 on grounds of forum non conveniens.

While the defendant airlines had no direct relationship with the plaintiffs, who were not passengers on their planes, it does not follow that defendants could not be found liable for breach of any duty to them. The world of air travel is a world of interconnections, and demonstrated negligence in one part of the world may well result in consequences elsewhere that are well within the ambit of foreseeability. It is alleged that the failure of the defendants to conduct a proper preembarkation search in Bahrein enabled a group of terrorists to board their planes fully armed and to change planes in Athens, boarding the Air France plane without any further check. Thus, it is alleged, the terrorists were enabled to hijack the Air France plane in Europe and force it to land first in Libya and then in Entebbe Airport in Uganda. The passengers were then held hostage until liberated in a dramatic commando raid and flown to Israel. Such injuries as were allegedly sustained by the passengers were incurred in Libya and Uganda.

The passengers on the Air France plane were a mixed group of French, English, Israelis, Canadians and Americans. Of the 95 passengers, two sued Air France in Paris and their cases were dismissed on the grounds that Air France had violated no duty owing to them. The other 93 claimants originally brought their suit in Illinois, but when their case was dismissed against Air France (People ex rel. Air France v. Gilberto, 74 Ill.2d 90, 23 Ill.Dec. 106, 383 N.E.2d 977) they chose to pursue their claims against Singapore Airlines and Gulf Air in New York. Six of the plaintiffs are American, four of whom reside in New York, one in Connecticut and one in California. Each of them will be witnesses in the case, and other witnesses will have to come from Bahrein, Israel, Greece and Uganda. Extensive discovery proceedings have already taken place in New York in several of these cases.

Defendants Singapore Airlines and Gulf Air have argued that New York is not the appropriate forum and have suggested as an alternative a trial in the United Kingdom. This court is not persuaded that that is a better forum for determining the responsibility of the defendants.

While four of the plaintiffs are New York residents, the earlier rule as enunciated in de la Bouillerie v. de Vienne, 300 N.Y. 60, 62, 89 N.E.2d 15, that forum non conveniens could be invoked only as between non-resident litigants has been relaxed by the decision of the Court of Appeals in Silver v. Great American Insurance Company, 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619. The controlling considerations, declared the court, should be justice, fairness and convenience, in which case, the court is to consider not only residence, but "all the pertinent competing situations", as set forth in Varkonyi v. Varig, 22 N.Y.2d 333, 337, 292 N.Y.S.2d 670, 239 N.E.2d 542. These criteria include the burden of imposing the particular litigation on the New York courts, the requirement of the application of foreign law, the possible hardship on the defendant of litigating in this forum, the extent to which the plaintiffs' interests might be served by pursuing the claim in this State, the convenience of witnesses and the existence of special and unusual circumstances such as the unavailability of any other forum in which the plaintiff might obtain effective redress. All these factors are to be considered in addition to the question of whether or not any of the plaintiffs are residents of New York. As noted by Judge Keating in his concurring opinion: "* * * the doctrine of forum non conveniens presupposes the existence of a second more convenient forum * * *." He declared:

"Essentially two questions present themselves in every case involving suits between nonresidents on causes of action having no significant nexus with this State. The first is whether, despite the general policy considerations which militate against burdening the courts of this State with such actions, the circumstances are such that the interests of justice or other significant policy considerations warrant the retention of jurisdiction. The...