Stanford v. Kuwait Airways Corp.

• Decision Date: 16 July 1996
• Docket Number: Nos. 1256,D,1505 and 1506,s. 1256
• Parties: Lorraine STANFORD, Executrix of the Estate of William L. Stanford; Edwena R. Hegna, Executrix of the Estate of Charles F. Hegna; and Charles Kapar, Plaintiffs-Appellants, v. KUWAIT AIRWAYS CORPORATION; Pan American World Airways, Inc.; Northwest Airlines, Inc.; and International Air Transport Association, Defendants, Middle East Airlines Airliban, S.A., Defendant-Appellee. ockets 95-7784, 95-7787 and 95-7789.
• Court: U.S. Court of Appeals — Second Circuit

Page 117

89 F.3d 117

Lorraine STANFORD, Executrix of the Estate of William L Stanford; Edwena R. Hegna, Executrix of the Estate of Charles F. Hegna; and Charles Kapar, Plaintiffs-Appellants, v. KUWAIT AIRWAYS CORPORATION; Pan American World Airways Inc.; Northwest Airlines, Inc.; and International Air Transport Association Defendants Middle East Airlines Airliban, S.A., Defendant-Appellee.

Nos. 1256, 1505 and 1506, Dockets 95-7784, 95-7787 and 95-7789.

United States Court of Appeals, Second Circuit.

Argued March 11, 1996.

Decided July 16, 1996.

John P. James, Friedman, Biondi & James, New York City, for Plaintiffs-Appellants Charles Kapar, Lorraine Stanford, and Edwena Hegna.

Ralph P. Dupont, Durant, Nichols, Houston, Mitchell & Sheahan, P.C., Bridgeport, CT, for Plaintiffs-Appellants Lorraine Stanford and Edwena Hegna.

Roger Johnson, Koonz, McKenney, Johnson & Regan, Washington, DC (Katherine Shepard, Koonz, McKenney, Johnson & Regan, Washington, DC, of counsel), for Plaintiff-Appellant Charles Kapar.

James B. McQuillan, Bigham Englar Jones & Houston, New York City, for Defendant-Appellee.

Before: WALKER, McLAUGHLIN, and LEVAL, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Four terrorists boarded Middle Eastern Airlines ("MEA") flight 426 in Beirut, Lebanon. The flight ended in Dubai, United Arab Emirates where the four terrorists disembarked, and connected with Kuwait Airways flight KU221, bound for Karachi, Pakistan. Three American diplomats, William Stanford, Charles Hegna, and Charles Kapar were also on board KU221. Shortly after take-off from Dubai, the terrorists hijacked KU221, forcing the pilot to turn north. The plane landed in Tehran, Iran and sat on the airport tarmac for days while the terrorists tortured the three American diplomats, finally murdering Hegna and Stanford.

Plaintiffs, Charles Kapar and the estates of the two deceased diplomats, brought this suit alleging that MEA's negligence was a proximate cause of the injuries and deaths occurring aboard KU221. After a jury trial in the United States District Court for the Southern District of New York, (Richard Owen, Judge ), the jury deadlocked, and the court declared a mistrial. MEA then filed a motion for judgment as a matter of law, arguing that MEA owed no duty to the three diplomats, and that MEA's actions (in Beirut) were not a proximate cause of the injuries and deaths aboard KU221 (in Tehran). The court granted MEA's motion.

Plaintiffs appeal, arguing that MEA owed them a duty to use due care to avoid the known risk of hijacking, MEA breached that duty by failing to screen passengers adequately in Beirut, and this breach was a

                proximate cause of their injuries.   We reverse and remand for a new trial
                

BACKGROUND

In the Fall of 1983, the Da'Wa, a group of Shiite extremists, was imprisoned in Kuwait for deadly attacks on the United States and French embassies in Beirut. A year later, the Shiite Muslim group Hezbollah, an Islamic terror organization based in Beirut, increased its violent opposition to the incarceration of the Da'Wa prisoners. With the first suicide car bombing of the American embassy in Beirut in 1983, Hezbollah embarked on large scale terrorist activities, kidnaping American journalists, diplomats and academics, and murdering scores of people in suicide car bombings. This Shiite Muslim terror group threatened continued attacks on Kuwaiti, French, and American citizens unless the Da'Wa prisoners were released.

In May, 1983, the International Air Transport Association ("IATA") held its 21st Security Advisory Committee meeting in Montreal, Canada to discuss security measures among member airlines. ¹ At this meeting, IATA discussed new techniques terror groups were using to circumvent airport security measures to infiltrate an airport or airline.

The meeting discussed one particular method for terrorists to capitalize on the lax security at a "dirty" airport and board a plane bound for a more secure airport. Upon arrival at the more secure airport, the terrorists would transfer to a "target" airline and then hijack the target plane: "[T]he would be terrorist may well have travelled on the original Carrier without any intention of committing a terrorist act against that Carrier, but with the object of a transfer to another target Carrier." Minutes of the IATA 21st Security Advisory Committee Meeting, Montreal, May 4-5, 1983. IATA cautioned its members that "the only solution to this situation is to create circumstances where some degree of reliance can be placed on the security measures of other States." Id.

MEA, Kuwait Airways, and other members of IATA, participated in a program of "interline" ticketing, a reciprocal arrangement whereby a single ticket written by one airline for a flight on that airline will also accommodate the same passenger's flight on a second airline with the revenues to be allocated pro tanto between the airlines. Passengers need only one ticket and one baggage check to travel on both airlines.

An MEA official admitted that he knew, in December 1984, that the security measures at Beirut airport were minimal. Specifically, MEA knew that X-ray machines for checking passengers' luggage were not operating and that metal detectors were apparently functioning but "locked" and not in use. In addition, MEA was aware or, in the exercise of reasonable prudence, should have been aware that many airlines had ceased all operations out of Beirut because of the threats of violence coming from Islamic militants in Beirut.

MEA maintained, however, that it was helpless to offer additional security measures because airport security was under the sole control of the Lebanese army. An MEA official testified that the military conducted searches of passengers and luggage by hand, but did not employ any more sophisticated forms of security screening. He also testified that MEA never asked the Lebanese military to strengthen the security measures at the Beirut airport.

MEA's employees at the Beirut airport were responsible for selling and examining passengers' tickets, checking the information on the tickets against visas and passports, and receiving baggage from the passengers. These employees were the first line of defense between hijackers who slipped through the ludicrous security at Beirut Airport and innocent passengers aboard MEA and connecting flights. Nevertheless, they did not perform any other searches, known as "secondary Also in place was a communications network within MEA, allowing MEA employees to relay information between its stations in Beirut and Dubai. There is no evidence, however, that MEA ever used this information network to contact its agents in Dubai to have them relay information to other IATA members about suspicious passengers; and its employees certainly did not do so in this case.

screening," of passengers or their bags.

On December 2, 1984, in the eye of the political hurricane roaring through the Middle East, four Hezbollah hijackers purchased interline tickets for travel from Beirut to Bangkok, Thailand, via Dubai and Karachi. They began their journey by presenting their interline tickets to the MEA agents at the Beirut airport, where they boarded MEA flight 426 to Dubai.

The hijackers' tickets had a stench about them. They had been purchased on very short notice with cash, and the flight traced an outlandish route: the passengers were to fly on MEA from Beirut to Dubai, where they were then to connect with Kuwait Airways to Karachi, and from there continue on to Bangkok. This itinerary was bizarre because: (1) there were regularly scheduled direct flights between Beirut and Bangkok; (2) the four terrorists were the only passengers aboard MEA 426 to connect with a Kuwaiti airline--every other passenger aboard who happened to be travelling to Karachi connected in Dubai with a Pakistani International Airlines flight; and (3) there was another scheduled MEA flight from Beirut directly to Karachi on December 4th, a day after the hijackers' actual departure. If the hijackers had waited for this next flight, they would have avoided (a) the stop at Dubai, and (b) an unnecessary twenty-hour layover in Karachi while waiting for the same December 4th plane that would eventually take them to Bangkok. Still another suspicious feature of the journey was that the men were travelling one-way, a very long distance, without any checked baggage. None of this apparently raised the eyebrow of any MEA employee.

Upon arrival in Dubai, the hijackers alighted MEA flight 426 and headed for their target: Kuwait Airways flight KU221. KU221 had originated in Kuwait City, bound for Karachi with a fateful stop in Dubai. It carried William Stanford, Charles Hegna and Charles Kapar. The three were employed by the United States Department of State, Agency for International Development, and were en route from Kuwait City to their base of operations in Karachi. KU221 stopped in Dubai to refuel and to pick up additional passengers heading for Karachi. Passengers connecting to KU221 from other flights were required to take a bus on the tarmac to KU221 and climb a set of stairs to enter the jet through the forward door of the plane.

A Kuwait Airlines official placed a table at the top of the stairs leading to the forward door of flight KU221, where he checked connecting passengers' carry-on luggage as they boarded. One witness, Neil Beeston, testified that he saw three of the four hijackers standing on the tarmac near the unguarded--and not in use--rear stairs of the airplane during the boarding process. Other testimony established that the tarmac, in general, was poorly lit and not well guarded.

Once KU221 was airborne, and over the Gulf of Oman, two hijackers burst into the cockpit, pressed a grenade against the flight commander's neck and ordered him to fly the plane to Mehrabad Airport in Tehran. The flight crew complied, landing in Tehran in the early morning of December 4th.

The four...