Alejandre v. Republic of Cuba
| Citation | 996 F.Supp. 1239 |
| Decision Date | 17 December 1997 |
| Docket Number | No. 96-10127-CIV.,No. 96-10128-CIV.,96-10127-CIV.,96-10128-CIV. |
| Parties | Marlene ALEJANDRE, individually and as personal representative of the Estate of Armando Alejandre, deceased, Plaintiff, v. The REPUBLIC OF CUBA; the Cuban Air Force, Defendants. Mirta MENDEZ, as personal representative of the Estate of Carlos Alberto Costa, deceased, Plaintiff, v. The REPUBLIC OF CUBA; the Cuban Air Force, Defendants. Mario T. DE LA PEÑA and Miriam de la Peña, individually and as personal representatives of the Estate of Mario M. de la Peña, deceased, Plaintiff, v. The REPUBLIC OF CUBA; the Cuban Air Force, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Roberto Martinez, Greenberg Traurig HoffmanLipoff Rosen & Quentel, Miami, FL, Aaron Samuel Podhurst, Victor Manuel Diaz, Jr., Xavier Martinez, Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin, Miami, FL, for Plaintiff.
FINAL JUDGMENT
The government of Cuba, on February 24, 1996, in outrageous contempt for international law and basic human rights, murdered four human beings in international airspace over the Florida Straits. The victims were Brothers to the Rescue pilots, flying two civilian, unarmed planes on a routine humanitarian mission, searching for rafters in the waters between Cuba and the Florida Keys.
As the civilian planes flew over international waters, a Russian built MiG 29 of the Cuban Air Force, without warning, reason, or provocation, blasted the defenseless planes out of the sky with sophisticated air-to-air missiles in two separate attacks. The pilots and their aircraft disintegrated in the mid-air explosions following the impact of the missiles. The destruction was so complete that the four bodies were never recovered.
The personal representatives of three of the deceased instituted this action against the Republic of Cuba ("Cuba") and the Cuban Air Force to recover monetary damages for the killings. One of the victims was not a U.S. citizen and his family therefore could not join in the suit. This is the first lawsuit to rely on recent legislative enactments that strip foreign states of immunity for certain acts of terrorism. Neither Cuba nor the Cuban Air Force has defended this suit, asserting through a diplomatic note that this Court has no jurisdiction over Cuba or its political subdivisions. A default was thus entered against both Defendants on April 23, 1997 pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Because this is a lawsuit against a foreign state, however, the Court may not enter judgment by default. Rather, the claimants must establish their "claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e) (1994); see Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.1996).1 These three consolidated cases proceeded to trial on November 13, 14, and 20, 1997, on the issues of liability and damages. Because the Court finds that neither Cuba nor the Cuban Air Force is immune from suit for the killings, and because the facts amply prove both Defendants' liability and Plaintiffs' damages, the Court will enter judgment against Defendants.
At trial, Plaintiffs presented extensive testimonial and documentary evidence in support of their claims. Because Cuba has presented no defense, the Court will accept as true Plaintiffs' uncontroverted factual allegations. See Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885); Nishimatsu Const. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975). The pertinent facts are as follows.
Armando Alejandre was forty-five years old at the time of his death. Although born in Cuba, Alejandre made Miami, Florida his home at an early age and became a naturalized U.S. citizen. Alejandre served an active tour of duty for eight months in Vietnam, completed his college education at Florida International University, and worked as a consultant to the Metro-Dade Transit Authority at the time of his death. He is survived by his wife of twenty-one years, Marlene Alejandre, who serves as the Personal Representative of his estate, and his daughter Marlene, a college student. Both are Plaintiffs in this lawsuit.
Carlos Alberto Costa was born in the United States in 1966 and resided in Miami. He was only twenty-nine years old when the Cuban government ended his life. Always interested in aviation and hoping to someday oversee the operations of a major airport, Costa earned his bachelor's degree at Embry-Riddle Aeronautical University and worked as a Training Specialist for the Dade County Aviation Department. He is survived by his parents, Mirta Costa and Osvaldo Costa, and by his sister, Mirta Mendez, all of whom sue on his behalf.
Mario Mañuel De la Peña was also born in the United States and was a mere twenty-four years old at the time of his death. Working toward his goal of being an airline pilot, De la Peña was in his last semester at Embry-Riddle when he was killed. During that semester he had obtained a coveted and highly competitive internship with American Airlines. Embry-Riddle granted De la Peña a bachelor's degree in Professional Aeronautics posthumously. He is survived by a younger brother, Michael De La Peña, and his parents, Mario T. De la Peña and Miriam De la Peña, both of whom are Plaintiffs in this case.
Alejandre, Costa, and De la Peña were all members of a Miami-based humanitarian organization known as Hermanos al Rescate, or Brothers to the Rescue. The organization's principal mission was to search the Florida Straits for rafters, Cuban refugees who had fled the island nation on precarious inner tubes or makeshift rafts, often perishing at sea. Brothers to the Rescue would locate the rafters and provide them with life-saving assistance by informing the U.S. Coast Guard of their location and condition.
On the morning of February 24, 1996, two of Brothers to the Rescue's civilian Cessna 337 aircraft departed from Opa Locka Airport in South Florida.2 Costa piloted one plane, accompanied by Pablo Morales, a Cuban national who had once been a rafter himself. De la Peña piloted the second plane, with Alejandre as his passenger. Before departing, the planes notified both Miami and Havana traffic controllers of their flight plans, which were to take them south of the 24th parallel. The 24th parallel, well north of Cuba's twelve-mile territorial sea, is the northernmost boundary of the Havana Flight Information Region. Commercial and civilian aircraft routinely fly in this area, and aviation practice requires that they notify Havana's traffic controllers when crossing south through the 24th parallel. Both Brothers to the Rescue planes complied with this custom by contacting Havana, identifying themselves, and stating their position and altitude.
While the two planes were still north of the 24th parallel, the Cuban Air Force launched two military aircraft, a MiG-29 and a MiG-23, operating under the control of Cuba's military ground station. The MiGs carried guns, close range missiles, bombs, and rockets and were piloted by members of the Cuban Air Force experienced in combat. Excerpts from radio communications between the MiG-29 and Havana Military Control detail what transpired next:
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