Aboujdid v. Singapore Airlines, Ltd.

• Decision Date: 14 May 1985
• Docket Number: EL-MAN,P
• Citation: 489 N.Y.S.2d 171,108 A.D.2d 330
• Parties: Joseph ABOUJDID, et al., Plaintiffs-Respondents, v. SINGAPORE AIRLINES, LTD. and Gulf Aviation, Ltd., Defendants-Appellants. Naimlaintiff-Respondent, v. GULF AVIATION, LTD. and Singapore Airlines, Ltd., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 171

489 N.Y.S.2d 171

108 A.D.2d 330

Joseph ABOUJDID, et al., Plaintiffs-Respondents, v. SINGAPORE AIRLINES, LTD. and Gulf Aviation, Ltd.,

Defendants-Appellants.

Naim EL-MANI, Plaintiff-Respondent, v. GULF AVIATION, LTD. and Singapore Airlines, Ltd.,

Defendants-Appellants.

Supreme Court, Appellate Division First Department.

May 14, 1985.

Eugene Massamillo, New York City, of counsel (Desmond T. Barry, Jr., and Edward C. DeVivo with him on the brief; Condon & Forsyth, New York City, attorneys) for defendant-appellant Gulf Aviation, Ltd.

Kevin F. Cook, New York City, of counsel (Matthew J. Corrigan, New York City, with him on the brief; Mendes & Mount, New York City, attorneys), for defendant-appellant Singapore Airlines, Ltd.

Lawrence B. Goldhirsch, New York City, of counsel (Sally L. Schneider, Brooklyn, with him on the brief; Speiser & Krause, P.C., New York City, attorneys), for the plaintiffs-respondents.

Before KUPFERMAN, J.P., and ASCH, FEIN and LYNCH, JJ.

LYNCH, Justice.

Under the Federal Sovereign Immunities Act (28 U.S.C., ch. 97), foreign states and their instrumentalities may, subject to certain exceptions, raise a defense of the lack of subject matter jurisdiction of actions brought against them in this country. (See, in general, Proposed Amendments to Foreign Sovereign Immunities Act of 1976 by Newman & Burrows, NYLJ 3/22/85, p. 1, col. 1.) The defendants Gulf Aviation and Singapore Airlines, claiming immunity under the act (FSIA), moved for dismissal of the complaints. Special Term denied the motion finding applicable three of the exceptions stated in the act. We find but one exception applicable and that one applicable only to Gulf Aviation. Consequently we dismiss the complaints against Singapore Airlines.

These consolidated actions are the claims of 93 plaintiffs arising out of the 1976 hijacking in Athens of an Air France plane on a flight from Tel Aviv to Paris. The complaints allege that the hijackers were able to board the plane in Athens because the defendant airlines failed to search them at the points where their flights originated, Singapore Airlines in Bahrain and Gulf Aviation in Abu Dhabi.

The Aboujdid action was commenced in June 1978. (The El-Mani action was commenced about six months later. The record on appeal omits this action, the parties having stipulated that its issues are common with those of Aboujdid.) The action was a protective device in the event that a previously commenced Illinois action against Air France and Singapore Airlines were dismissed. Gulf Aviation answered the Aboujdid complaint in July 1978, raising no defense of sovereign immunity. In August 1978, proceedings in the Aboujdid action were stayed pending the resolution of the Illinois action. That action was dismissed on motion on the ground, inter alia, of forum non conveniens. Singapore Airlines then moved to dismiss the Aboujdid action in New York on the ground of inconvenient forum. Special Term denied the motion. Singapore Airlines sought reargument, suggesting to the court that it had a defense of sovereign immunity. Special Term adhered to its denial. Its order was affirmed by this court (see 86 A.D.2d 564, 448 N.Y.S.2d 427). In the interim between the order and its affirmance, Singapore Airlines answered the Aboujdid complaint. It alleged an affirmative defense of the bar of the FSIA.

It is unchallenged that the defendants, as instrumentalities of their respective governments, are within the scope of the FSIA (see 28 U.S.C. § 1603). Thus, they are entitled to its immunity if they do not fall within its exceptions (see 28 U.S.C. § 1604). One exception lies when immunity has been waived, either explicitly or by implication (see 28 U.S.C. 1605). There has been no explicit waiver. The statute's expression of the availability of a waiver by implication must be construed as a limitation imposed on the usual rule permitting a defense of lack of subject matter jurisdiction to be raised at any time (see, e.g.: Fed Rules Civ.Pro., rule 12 CPLR 3211).

The FSIA has left it to case law to determine the point at which the defense will be deemed implicitly waived and can no longer be asserted. Canadian Overseas Ores Limited v. Companion de Acero del Pacifico, 727 F.2d 274 (2nd Cir.) holds that the defense of sovereign immunity is waived if not asserted in the first responsive pleading, and that the filing of a motion prior to the responsive pleading, does not, of itself, waive the defense. This holding accords with decisional law prior to the enactment of the FSIA in 1976 (see: Flota Maritima Browning de Cuba v. Motor Vessel Ciudad, 335 F.2d 619, 625 (4th Cir.); 48 C.J.S., International Law, § 51). Using this standard, we hold that Gulf Aviation must be deemed to have waived the defense of sovereign immunity by not having raised it in its first responsive pleading. By having so raised it, Singapore Airlines preserved the defense.

Other exceptions to the sovereign immunity granted by the FSIA are triggered when the action is "based upon a commercial activity carried on in the United States by the foreign state ... or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct...