Smith v Libya

• Date: 10 February 1997
• Court: U.S. Court of Appeals — Second Circuit

United States Court of Appeals, Second Circuit

(Newman, Chief Judge; Oakes and Parker, Circuit Judges)

Smith

and

Socialist People's Libyan Arab Jamahiriya1

Air Terrorist attacks upon aircraft State believed to have been involved in attack Remedies Civil action against State suspected of involvement Whether State immune from suit

State immunity Jurisdictional immunity Claim for damages against State suspected of involvement in terrorist attack upon aircraft Waiver Whether State deemed to have waived immunity in respect of acts contrary to jus cogens Express waiver Exception to immunity for tort committed within the territory of the forum Whether explosion on United States aircraft over United Kingdom deemed to have occurred in the territory of the United States Effect of United Nations Charter and Security Council resolution Whether depriving State of immunity under United States Foreign Sovereign Immunities Act 1976

International organizations United Nations Chapter VII of the United Nations Charter Security Council Binding decision of Security Council Effect in municipal law Resolution 748 (1992) Lockerbie bombing Whether resolution removing immunity from jurisdiction of Libyan State before United States courts

Relationship of international law and municipal law Resolutions of the United Nations Security Council Chapter VII of the United Nations Charter Whether vesting private right of action in individuals The law of the United States

Summary: The facts:The plaintiffs, relatives of two of those killed when a bomb destroyed Pan Am Flight 103 over Lockerbie, Scotland, in 1988, and a

group of former Pan Am employees, brought an action against the Socialist People's Libyan Arab Jamahiriya (Libya) alleging that the Government of Libya, acting through its agents, had deliberately caused the explosion which destroyed the aeroplane. The District Court dismissed the actions brought by the relatives on the ground that the Court lacked jurisdiction (107 ILR 382 (1995))

The plaintiffs appealed. They maintained that the terrorist attack upon the aeroplane was a violation of jus cogens and that there was accordingly an implied waiver of sovereign immunity within the meaning of Section 1605(a)(1) of the Foreign Sovereign Immunities Act 1976 (FSIA). They also maintained that Libya's alleged undertaking to pay compensation in the event that two Libyan nationals accused of the attack were convicted constituted an implied waiver of sovereign immunity. The plaintiffs further contended that, the explosion having occurred on a United States aircraft, the cause of action had arisen on the territory of the United States, thus removing Libya's immunity under Section 1605(a)(5) of the FSIA. Finally, the plaintiffs submitted that Libya's immunity had been displaced by reason of a conflict between the United Nations Charter and Section 1604 of the FSIA.

Held:The appeal was dismissed and the judgment of the District Court affirmed. The case was remanded to the District Court with directions to entertain a motion to amend the complaint.

(1) A foreign State was not deemed to have waived its immunity from suit in respect of conduct constituting a violation of jus cogens. Congress had not intended the implied waiver exception of Section 1605(a)(1) to extend so far (pp. 53740).

(2) Even if the letter from a Libyan official regarding the payment of compensation had given rise to a binding undertaking that Libya would pay compensation in the event that a criminal court convicted the two accused, there had been no waiver of sovereign immunity in the courts of the United States to enforce such an obligation. A generalized undertaking to pay the debt of a national did not imply that the guaranteeing State agreed to be sued on such an undertaking in a United States court (pp. 5401).

(3) The fact that United States jurisdiction existed in respect of a United States aircraft did not mean that the aircraft was to be regarded as forming part of the territory of the United States for the purposes of the FSIA. The destruction of the aircraft over the United Kingdom could not be deemed to have occurred in the territory of the United States (p. 541).

(4) Although the United Nations Charter bound all Member States to abide by decisions of the Security Council and Security Council Resolution 748 had required Libya to pay compensation in respect of the destruction of Pan Am 103, the resolution did not remove sovereign immunity under the FSIA. The resolution had not been in effect at the time the FSIA was

adopted. Section 1604 of the FSIA did not contemplate a dynamic expansion whereby FSIA immunity could be removed by action of the United Nations taken after the enactment of the FSIA (pp. 5412)

The following is the text of the judgment of the Court, delivered by Chief Judge Newman:

In Kadic v. KaradzicINTL,[2] 70 F.3d 232 (2d Cir.1995), this Court ruled that a violation of certain fundamental norms of international law can be redressed by a civil suit brought in a United States district court against private citizens under the Alien Tort Claims Act, 28 U.S.C. 1350 (1994). The pending appeal presents the issue of whether such violations can be redressed by a civil suit brought in a United States district court against a foreign state. The more precise issue is whether such a suitbrought primarily on behalf of victims of an aircraft bombingis prohibited by the Foreign Sovereign Immunities Act, 28 U.S.C. 16021611 (1994), as it read prior to the recent amendment that explicitly permits suits against foreign states in some circumstances for acts in violation of fundamental international norms such as aircraft sabotage, see Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104132, 221(a), 110 Stat. 1214, 1241 (1996) (to be codified at 28 U.S.C. 1605(a)(7)).

The representatives of two persons who died as a result of the bombing of Pan American (Pan Am) Flight 103 over Lockerbie, Scotland, in 1988 and a group of former Pan Am employees appeal, pursuant to Fed. R.Civ.P. 54(b), from judgments of the District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge), dismissing their suits against The Socialist People's Libyan Arab Jamahiriya, Libyan Arab Airlines, and The Libyan External Security Organization (collectively Libya) for lack of subject matter jurisdiction. We affirm.

Background

[241] We have previously considered lawsuits by the families of victims of the bombing of Pan Am Flight 103 brought against Pan Am for the carrier's role in permitting a suitcase containing a bomb to be loaded onto the aircraft. SeeIn re Air Disaster at Lockerbie Scotlandon December 21, 1988, 37 F.3d 804 (2d Cir.1994). This appeal concerns three lawsuits alleging that the government of Libya, acting through its agents, deliberately caused the bombing. The plaintiffs are Bruce Smith, suing as representative of In-grid Smith, his deceased wife (No. 957930), Paul S. Hudson, suing as representative of Melina K. Hudson, his deceased daughter (No. 957931), and Bruce D. Abbott and other former pilots, co-pilots, flight engineers, and flight attendants of Pan Am (No. 957942). Smith, Hudson, and the former Pan Am employees are all citizens of the United States. Smith brings his lawsuit on behalf of a class of family members of all passengers and crew members killed in the bombing.

The complaints allege that the Libyan governmental defendants, acting principally through two Libyan agents, Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah, planned and carried out the bombing of Pan Am Flight 103. Al-Megrahi and Fhimah have been indicted in the District of Columbia for their roles in the bombing.

The three lawsuits were originally filed in the District Court for the District of Columbia and transferred to the Eastern District of New York. On motions by the three Libyan state defendants to dismiss pursuant to Fed. R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, the Smith and Hudson suits were dismissed. Smith v. Socialist People's Libyan Arab Jamahiriya,[3] 886 F.Supp. 306 (E.D.N.Y.1995). This ruling was made applicable by stipulation to the Abbott suit. The three dismissals were certified for entry of final judgment pursuant to Fed.R.Civ.P. 54(b) because the suits remain pending against Al-Megrahi and Fhimah.

Discussion

The parties are in agreement that the issue of Libya's amenability to suit in a United

States court is governed by the Foreign Sovereign Immunities Act (FSIA). The FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.Argentine Republic v. Amerada Hess Shipping Corp.INTL,[4] 488 U.S. 428, 443, 109 S.Ct. 683, 693, 102 L.Ed.2d 818 (1989). The FSIA recognizes the immunity of foreign states, 28 U.S.C. 1604, subject to specified exceptions. The appellants advance four bases for asserting jurisdiction over Libya(1) implied waiver, id. 1605(a)(1), arising from Libya's...