Metropolitan News-Enterprise


Tuesday, April 13, 2004


Page 1


Ninth Circuit: Indonesian Carrier Immune in Sumatran Air Crash

Waiver Did Not Cover Domestic Side Trip by International Tourists, Judges Say


By KENNETH OFGANG, Staff Writer/Appellate Courts


A government-owned foreign airline cannot be held liable in a U.S. court for the deaths of passengers on a domestic flight, even if they were visiting the country as part of an international journey, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel overturned a district judge’s ruling that would have allowed Joyce Coyle to proceed with her suit against the Indonesian government subsidiary that operates Garuda Indonesia Airlines.

Coyle’s parents, Fritz and Djoeminah Baden, died in the crash of Garuda’s Flight 152 from Jakarta to Medan, the largest city on the island of Sumatra, September 1997. All aboard, more than 230 people, were killed; the Badens were the only Americans. 

The plane struck the side of a mountain about 15 minutes before it was to land in Medan.

The crash was blamed on an air traffic control error in directing the plane in the wrong direction into mountainous terrain obscured by smoke and haze due to forest fires in the area. Survivors of some of the victims sued the American firm that manufactured the Airbus 300’s ground-proximity warning system, alleging design flaws, and received settlements without admissions of fault.

Connecting Flight

The Badens, who lived in the Portland, Ore. suburb of Lake Oswego, flew from Portland to Jakarta via Seattle and Taipei, on a routing that did not include a Garuda flight. They were, however, scheduled to begin their return journey by flying Garuda from Jakarta to Singapore on Sept. 30, continuing on to Taipei, Seattle, and Portland on other carriers.

Their tickets for the ill-fated Sept. 26 flight were purchased the day before, in Jakarta, and paid for in Indonesian rupiah.

Coyle alleged in her complaint that Garuda was liable for wrongful death under the Warsaw Convention. She also claimed that Garuda, which is wholly owned by the Indonesian government, could be held liable under two exceptions to the Foreign Sovereign Immunities Act.

She contended that because Garuda was authorized to operate in the United States at the time, the immunity had been explicitly waived under the rules of the Department of Transportation, which requires foreign air carriers to open themselves to suit in the United States as a condition of being allowed to fly to, from, or within this country. The waiver is limited to actions arising under treaties.

Coyle also claimed that by selling tickets in the United States, Garuda  waived immunity under the “commercial activity” exception to the FSIA.

U.S. District Judge Robert E. Jones of the District of Oregon denied Garuda’s motion to dismiss, adopting a magistrate judge’s conclusion that the trip to Medan was “one leg of an international journey” and thus subject to the Warsaw Convention and the explicit waiver of immunity.

Circumstances Cited

Judge Diarmuid F. O’Scannlain, writing for the Ninth Circuit, rejected Garuda’s claim that a flight between two points in the same country will always fall outside the scope of the waiver. But he agreed with the defendant that under the circumstances, the Badens’ trip to Medan did not constitute ”international air transportation” within the meaning of the Warsaw Convention.

The facts that the tickets did not reference any international travel, were purchased in Indonesia from a source independent of the travel agent who sold them the U.S.-Indonesia tickets, and were labeled “DOMESTIK” unambiguously established that the flight was not part of their international journey as contemplated by the treaty, O’Scannlain said.

The judge explained:

“[T]he crux of this litigation is whether Flight 152 was a part of [the] larger international trip for purposes of the Warsaw Convention...whether it was a component of ‘one undivided transportation...regarded by the parties as a single operation’...or just a late-added, purely domestic side trip apart from their international itinerary with its own final destination. The Badens’ tickets for Flight 152 are powerful, unambiguous evidence of the latter.”

Nor was the judge persuaded by the “commercial activity” argument. For the exception to apply, O’Scannlain noted, the statute requires that the action arise from “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 [when such] act causes a direct effect in the United States.”

The fact that Garuda sold tickets in the United States did not furnish a sufficient nexus to subject its domestic flights to the exception, the judge wrote.

Senior Judge Ferdinand F. Fernandez and Judge Raymond C. Fisher concurred in the opinion.

The case is Coyle v. P.T. Garuda Indonesia, 01-35784.


Copyright 2004, Metropolitan News Company