Tarar v. Pakistan Intern. Airlines

• Decision Date: 18 January 1982
• Docket Number: Civ. A. No. H-80-639,H-81-1311.
• Citation: 554 F. Supp. 471
• Parties: Nazir B. TARAR, Chingez Tarar, Dilbez Tarar, Akhtar V. Tarar, Jamila Tarar Shami, Farkhanda Tarar, and Seb V. Tarar Jan Mohammad, Plaintiffs, v. PAKISTAN INTERNATIONAL AIRLINES, Defendant.
• Court: U.S. District Court — Southern District of Texas

554 F. Supp. 471

Nazir B. TARAR, Chingez Tarar, Dilbez Tarar, Akhtar V. Tarar, Jamila Tarar Shami, Farkhanda Tarar, and Seb V. Tarar Jan Mohammad, Plaintiffs, v. PAKISTAN INTERNATIONAL AIRLINES, Defendant.

Civ. A. Nos. H-80-639, H-81-1311.

United States District Court, S.D. Texas, Houston Division.

January 18, 1982.

Robert Hohenberger, Houston, Tex., Broadus A. Spivey, Spivey & Grigg, Austin, Tex., for plaintiffs.

JoAnn M. Dahl, Eastham, Watson, Dale & Forney, Houston, Tex., Michael J. Holland, Condon & Forsyth, New York City, for defendant.

MEMORANDUM AND OPINION:

HANNAY, Senior District Judge.

This consolidated suit in international diversity is before this Court under its removal jurisdiction, 28 U.S.C.A. § 1441, by force of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C.A. § 1602 et seq., and under 28 U.S.C.A. § 1330 which authorizes a bench trial in this forum in an action for civil damages against a foreign sovereign.

The defendant Pakistan International Airlines is an agency or instrumentality of the Pakistan national government, the Islamic Republic of Pakistan, a foreign state within the meaning of 28 U.S.C.A. § 1603(a) and (b), and is engaged in a commercial activity carried on in the United States within the meaning of 28 U.S.C.A. § 1605(a)(2). Thus it is suable for civil damages under the Act by that codified statutory waiver of sovereign immunity.

While there is citizenship by most of the parties plaintiffs in Houston, Texas, they are of one family and are natives of the Islamic Republic of Pakistan and intensely devout members of the Islamic religious belief.

The tort action herein is for multi-plaintiff mental pain and anguish caused by the allegedly negligent intercontinental transportation by jet-aircraft of human remains.

The deceased, Feroze Tarar, who died in Houston, Texas, at the age of 72, was long famed in his native land in the field of letters: journalist, author, poet, linguist, historian, withal "father of the Punjabi language." Before his death in Houston, Feroze Tarar, made known to his closest survivors his wish to be buried in his native village in Pakistan.

The gravamen of this complaint is that under the controlling tenet of the Islamic religious belief, and no evidence has been brought on here to controvert this, any prolonged delay anterior to the burial of a deceased is abhorrent and calculated to disgrace the responsible survivors before the Islamic faithful.

I.

The Plaintiffs are Nazir B. Tarar, Chingez Tarar, Dilbez Tarar, Akhtar V. Tarar, Jamila Tarar Shami, and Farkhanda Tarar who are residents of Houston, Texas. Plaintiff Zeb U. Tarar Jan Mohammad is a resident of Pakistan.

On May 20, 1979, Feroze Tarar died in Houston, Texas. Feroze Tarar was the husband of Farkhanda Tarar and the father of Chingez Tarar, Dilbez Tarar, Akhtar V. Tarar, Jamila Tarar Shami, Nazir B. Tarar and Zeb U. Tarar Jan Mohammad. The widow and children of Feroze Tarar resolved to respect and carry out his wishes to be buried in Pakistan.

Pakistan International Airlines Corporation (PIA) is an international air carrier, incorporated under the laws of the Islamic Republic of Pakistan. PIA is engaged in the business of transporting persons, cargo, and mail on international routes.

On May 21, 1979, Chingez Tarar, the oldest son of Feroze Tarar, contacted an agent of PIA in Houston, Texas to make arrangements for the transportation of Nazir B. Tarar, Chingez Tarar, Dilbez Tarar, and the casket bearing the remains of Feroze Tarar from Houston, Texas to Lahore, Pakistan. Chingez Tarar informed the agent for PIA that the passengers were the widow and two sons of the deceased, that the Tarar family were members of the Islamic faith and that, according to their religion, it was imperative that the remains of Feroze Tarar be delivered promptly to Pakistan for burial. The Houston agent for PIA represented to Chingez Tarar that PIA was aware of the Tarar family's concern for the prompt delivery of the casket to Pakistan and that every effort would be made to assure prompt, immediate delivery. The record reflects although the Tarars could alternatively have flown by a direct overseas route from Houston to Pakistan on KLM, a Dutch airline, the PIA agent affirmatively persuaded Chingez Tarar that they would receive better service from PIA because it was the Pakistani national airline. Thereupon the Houston PIA agent made reservations for the Tarars on a PIA flight from New York to Pakistan.

In reliance upon the PIA agent's representations, Chingez Tarar, Nazir Tarar and Dilbez Tarar made reservations with PIA to travel on PIA Passenger Flight No. PK 704, scheduled to depart from John F. Kennedy International Airport in New York at approximately 7:45 p.m. local time on May 22, 1979, and to arrive at Karachi, Pakistan at approximately 3:00 a.m. local time on May 24, 1979. The casket bearing the remains of Feroze Tarar also was to be placed in the cargo section onboard PIA Flight No. PK 704.

Chingez Tarar and Nazir B. Tarar in fact missed their scheduled flight from Houston to JFK. They took a later flight on May 22 from Houston to La Guardia Airport in New York. While Chingez and Nazir Tarar were in route to New York, Jamila Tarar Shami called from her home in Houston to PIA's JFK office and spoke to the witness Rafiq Ahmad. The Court is persuaded by the testimony that Ahmad represented to her that PIA would make arrangements for an ambulance to pick up the casket bearing the remains of Feroze Tarar at La Guardia Airport and transport it to JFK in order that it could be placed onboard Flight No. PK 704. When in fact Chingez and Nazir Tarar arrived at La Guardia, no ambulance was to be found. After waiting a reasonable period of time for the ambulance to arrive, Chingez Tarar hired a truck to transport the casket to JFK.

Chingez and Nazir Tarar arrived at JFK with the casket at approximately 7:00 p.m. and there rejoined Dilbez Tarar. Chingez Tarar then proceeded to PIA's cargo office to arrange for the loading of the casket onto Flight No. PK 704. When Chingez Tarar arrived at PIA's cargo office, Rafiq Ahmad represented to him that Flight No. PK 704 had not yet left JFK and that PIA would hold the flight until the Tarars and the casket were onboard the aircraft. At 8:49 p.m., Chingez Tarar and PIA's agent, Rafiq Ahmad, executed PIA Air Way bill No. 214-30928054, evidencing PIA's contract with Chingez Tarar for the transportation of the remains of Feroze Tarar from JFK to Lahore, Pakistan. Chingez Tarar was named shipper and consignee on the air waybill.

Flight No. PK 704 of May 22, 1979, was delayed in its departure time from JFK for reasons unrelated to the Tarars' situation. Flight No. PK 704 would not depart JFK until approximately 9:35 p.m. local time on May 22. Prior to the departure of Flight No. PK 704, PIA's agents told Chingez Tarar that the cargo section of the aircraft was closed and that it was too late to load the casket onto the aircraft.

I find and hold that PIA's agents willfully and intentionally refused to load the remains of Feroze Tarar onto Flight No. PK 704 at a time when they could readily have done so. Such refusal was purely a business decision by PIA to avoid the trouble and expense to PIA to load the casket on the aircraft. Such refusal was deliberate and a breach of PIA's previous representation to Plaintiffs that PIA would load the casket onboard the aircraft. This refusal to place the casket onboard Flight No. PK 704 was made with full awareness that it would delay the transportation of the casket to Pakistan by at least 24 hours, because the next available PIA flight was Flight No. PK 804, a cargo flight scheduled to depart JFK in the evening of May 23, 1979, and scheduled to arrive at Karachi, Pakistan in the morning of May 25, 1979.

Due to this willful decision by PIA to delay the transportation of the casket, Chingez, Dilbez and Nazir Tarar were forced to change their reservations and delay their own departure from New York until the evening of May 23, 1979, when they departed on a KLM flight from JFK to Karachi. They eventually arrived in Karachi sometime in the morning of May 25. The casket was placed onboard PIA Cargo Flight No. PK 804 which departed from JFK at approximately 9:30 p.m. local time on May 23, 1979. Flight No. PK 804 had scheduled stops at Amsterdam, Frankfurt, Zurich, Dubai, and Karachi. The flight was scheduled to arrive in Karachi at 12:30 a.m. local time on May 25, 1979.

When Flight No. PK 804 departed from JFK on May 23, 1979, Rafig Ahmad sent a telex message known as a Flight Load Signal (FLS) to all of PIA's offices at the scheduled stops of Flight No. PK 804, describing the various types of cargo onboard the aircraft and their destinations. The telex specifically notified the PIA offices that the human remains of Feroze Tarar were onboard and destined for Karachi.

The aircraft used for Flight No. PK 804 was a Boeing 707 aircraft owned by British Midland Airways and operated by a crew employed by British Midland Airways. The aircraft was leased to PIA. As opposed to British Midland Airways, PIA at all times had exclusive right to the possession, control, and disposition of the cargo onboard Flight No. PK 804.

Most of the cargo onboard Flight No. PK 804 was ordinary commercial goods. Human remains, however, are not ordinary cargo, and PIA does not treat human remains as commercial goods. PIA, by its own admissions, considers human remains to be an extraordinary shipment which is to be accorded special care and dignity in handling and to be transported in the most prompt and expeditious manner possible. It was PIA's announced policy and herein it was their non-delegable duty to exercise the highest degree of care and to take every measure to ensure that human remains are not lost, mishandled, misrouted, or otherwise unnecessarily delayed in transportation.

PIA Flight No. PK 804 arrived as scheduled at Schiphol Airport...