The opinion of the court was delivered by: Gladys Kessler United States District Judge
Egypt Air Flight 648, a Boeing 737 airliner, was hijacked by Palestinian terrorists on November 23, 1985. The aircraft was completely destroyed the following day after Egyptian Army commandos attempted a rescue mission. Plaintiffs, insurers that compensated Egypt Air for the loss of the aircraft, bring conversion, trespass, air piracy, and Anti Terrorism Act claims for loss of the aircraft against the governments of Libya and Syria; against three Libyan and Syrian intelligence agencies: Libyan Internal Security, Libyan External Security, and Syrian Air Force Intelligence; and against the following individuals: Mu'ammar alQadhafi, Libya's head of state, Major Abdallah al-Sanusi, Chief of Libyan Internal Security, Ibrahim al-Bishari, Chief of Libyan External Security, and General Muhammed Al Khuli, Chief of Syrian Air Force Intelligence.*fn1
This matter is before the Court on the Motion of Defendants Libya, Libyan Internal Security, Libyan External Security, alQadhafi, al-Sanusi, and al-Bishari (hereinafter referred to as "Libya") to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. [Dkt. No. 32]. Upon consideration of the Motion, Opposition, Reply, the parties' arguments at the motions hearing held before the Court on June 12, 2007, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss is granted.
Egypt Air Flight 648 was scheduled to fly from Athens, Greece to Cairo, Egypt on November 23, 1985.*fn3 The aircraft, a Boeing 737, was highjacked by terrorists associated with the Abu Nidal Organization approximately twenty minutes after takeoff. The aircraft was diverted to Malta, where the local authorities denied the hijackers' demands that the airplane be refueled. A tense standoff ensued and the terrorists shot a number of hostages. After approximately twenty-four hours, commandos from the Egyptian Army launched a rescue operation. The commandos used explosives to blow open passenger and cargo doors in order to gain access to the interior of the aircraft. The use of these explosives, along with grenades thrown by the hijackers into the passenger cabin in response, led to a fire that caused the complete destruction of the aircraft. Libya allegedly provided material support for this terrorist attack.
In challenging a court's subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), the defendant bears the burden of establishing that none of the exceptions to sovereign immunity under the FSIA apply. Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1171 (D.C. Cir. 1994). "If the defendant challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, then the district court should take the plaintiff's factual allegations as true and determine whether they bring the case within any of the exceptions to immunity invoked by the plaintiff." Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000).
III. THE COURT LACKS SUBJECT MATTER JURISDICTION UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT
Foreign states are generally immune from suit in the United States unless one of the exceptions of the FSIA applies. 28 U.S.C. § 1604; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989).
A foreign state may explicitly or implicitly waive its immunity. The parties agree that Libya has not explicitly waived its sovereign immunity under any of the exceptions to the FSIA. See 28 U.S.C. § 1605(a)(1)-(a)(7).
Instead, Plaintiffs argue that Libya has implicitly waived its sovereign immunity. 28 U.S.C. § 1605(a)(1). In essence, they contend that state support for a terrorist act that caused personal injury and death, and thus, is an explicit waiver of immunity under 28 U.S.C. § 1605(a)(7), also constitutes an implied waiver when that act of terrorism results in property damage. Having engaged in conduct that is not immune under the FSIA, Plaintiffs argue that Libya could reasonably expect to be called to account for its actions in a United States court.
The implied waiver exception contained in Section 1605(a)(1) is to be construed narrowly.*fn4 Creighton Ltd. v. Gov't of the State of Qatar, 181 F.3d 118, 122 (D.C. Cir. 1999). Our Court of Appeals made it clear, in Princz, that an implied waiver requires a foreign government to have previously "indicated its amenability to suit" because Section 1605(a)(1) contains an implicit intentionality requirement. Princz, 26 F.3d at 1174.
The legislative history of Section 1605(a)(1) provides three examples of how a foreign state can impliedly waive its sovereign immunity: (1) by agreeing to arbitrate a dispute; (2) by agreeing to have a contract governed by another state's substantive law; or (3) by filing a responsive pleading without raising the defense of sovereign immunity. Id. In each case, the foreign nation can be said to have willingly consented to the exercise of jurisdiction by another nation's courts. The "'courts have been reluctant to stray beyond these examples when considering claims that a nation has implicitly waived its defense of sovereign immunity.'" Id. (citing Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985).
Our Court of Appeals has previously rejected plaintiffs' argument that a violation of jus cogens norms*fn5 would constitute an implied waiver. Princz, 26 F.3d at 1174; Hwang Geum Joo v. Japan, 332 F.3d 679, 686-87 (D.C. Cir. 2003), cert. granted and judgment vacated on other grounds, 542 U.S. 901 (2004). Although Plaintiffs do not repeat the precise arguments advanced in Princz and Hwang Geum Joo, "the fundamental premise" of Princz, "that a court cannot create a new exception to the general rule of immunity under the guise ...