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Certain Underwriters At Lloyd's v. Great Socialist People's Libyan ) Arab Jamahiriya

September 2, 2011

CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ET AL., PLAINTIFFS,
v.
GREAT SOCIALIST PEOPLE'S LIBYAN ) ARAB JAMAHIRIYA, ET AL., DEFENDANTS.
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ET AL., PLAINTIFFS,
v.
SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.INTRODUCTION

Before me at this time are two actions: Certain Underwriters at Lloyd's London v. Great Socialist People's Libyan Arab Jamahiriya, No. 06-CV-731, which was filed on April 4, 2006 ("Certain Underwriters I"), and Certain Underwriters at Lloyd's London v. Great Socialist People's Libyan Arab Jamahiriya, No. 08-CV-504, which was filed on March 24, 2008 ("Certain Underwriters II"). The named Libyan defendants were dismissed from each of these actions pursuant to the enactment of the Libya Claims Resolution Act, Pub. L. No. 110-301, 122 Stat. 2999 (2008), but the plaintiffs' claims remain pending against the following defendants: the Syrian Arab Republic; the Syrian Air Force Intelligence Agency (Idarat al-Mukhabarat al- Jawiyya); and Syria's Director of Military Intelligence (General Muhammad al-Khuli) (hereinafter collectively the "Syrian defendants" or "Syria"). These actions came before this Court as the subject of an evidentiary hearing held on May 3-7, 2010.*fn1 Pursuant to those hearings and the evidence before me, the Court has made the following findings of fact and conclusions of law.

II. SUMMARY OF FINDINGS

These actions seek judgment and an award of damages for acts of state-sponsored terrorism that resulted in the hijacking of EgyptAir Flight 648 on November 23, 1985, while the aircraft was bound for Cairo, Egypt from Athens, Greece, and the complete destruction of the EgyptAir Flight 648 aircraft, insured by the Certain Underwriters plaintiffs, that resulted from that hijacking.

The Court, having heard and reviewed the evidence, does hereby determine (i) that the hijacking of EgyptAir Flight 648 on November 23, 1985 (the "EgyptAir hijacking") was an act of international terrorism; (ii) that the terrorist shootings of the American victims of the EgyptAir hijacking-Patrick Baker, Jackie Pflug, and Scarlett Rogenkamp-were acts of international terrorism that occurred during and as a result of the November 23, 1985 terrorist hijacking; (iii) the hijacking resulted in the reasonably foreseeable complete destruction of the aircraft owned by EgyptAir and insured by plaintiffs; (iv) that said hijacking was committed by terrorist operatives of the Abu Nidal Organization ("ANO"), which has been designated by the U.S. Department of State as a Foreign Terrorist Organization; (v) that the ANO, at the time of and prior to the EgyptAir hijacking, was sponsored and supported by Syria, which has been designated by the U.S. Department of State as a State Sponsor of Terrorism; and (vi) that the Syrian Arab Republic, the Syrian Air Force Intelligence Agency, Idarat al-Mukhabarat al-Jawiyya, and Syria's Director of Military Intelligence, General Muhammad al-Khuli, conspired with and provided substantial and material support to the ANO terrorist organization, and that the Syrian defendants caused and are liable for the acts of international terrorism against the plaintiffs and the resultant damages, for which the Court will award damages as set forth below.

The Court further finds that the Syrian defendants provided material support and resources and conspired with the ANO in the planning, training, support for, and commission of the EgyptAir hijacking, and that the lead ANO terrorist operative, Omar Ali Rezaq, was trained and supported by the Syrian defendants. The Court finds that the Syrian defendants intended that their support of the ANO would promote and cause extra-judicial killings of American citizens, as well as necessarily result in the property destruction of the EgyptAir airplane incidental to the goals and objectives of the Syrian defendants and the ANO terrorists. The Court finds that Syria's actions could not have occurred without the explicit authorization by then-Syrian President Hafiz al-Asad. Accordingly, the Court will enter judgment and grant an award of damages on behalf of the plaintiffs against the Syrian defendants as set forth below.

III. STATEMENT OF THE CASE

Plaintiffs brought this action pursuant to the provisions of the Foreign Sovereign Immunities Act ("FSIA"), codified at 28 U.S.C. § 1602, et seq.*fn2 The Syrian defendants were served with process on June 28, 2003.*fn3 The Syrian defendants have neither answered nor appeared.

A five-day hearing on liability and damages was held, commencing on May 3, 2010.*fn4

During the hearing, this Court accepted evidence in the form of, inter alia, live testimony, live video-link testimony, affidavit, de bene esse deposition, and original documentary evidence. The Court also accepted credible expert testimony from eight well-qualified experts on various subjects related to the issues pending before the Court in this matter.*fn5 Accordingly, this Court makes the following findings of fact and conclusions of law.

IV. FINDINGS OF FACT

A. The EgyptAir Flight 648 Hijacking

1. On November 23, 1985, plaintiffs Baker, Pflug, and Rogenkamp, each of whom were American nationals, boarded EgyptAir Flight 648, which departed Athens at 9:05 pm Athens time. (Baker, T-2-47; Pflug, T-1-33; Rezaq, Pltf's Exh. 34 at 2741; Pltf's Exh. 35.)

2. EgyptAir Flight 648 was scheduled to fly directly to Cairo from Athens. (Baker, T-2-47; Pltf's Exh. 3.)

3. Approximately 10 minutes after leveling off, the plane was hijacked. (Baker, T-2-47-48.)

4. One of the hijackers began to taunt passengers on board by attempting to pull a pin out of a hand grenade while simultaneously brandishing a firearm. (Baker, T-2-48-51.)

5. During this time, Pflug was struck over the head with a gun by a hijacker. (Pflug, T-1-34.)

6. At 8:28 pm Malta time, three ANO hijackers, including Omar Mohammed Ali Rezaq, took control of the EgyptAir airliner. (Baker, T-2-84; Pflug, T-1-35; Pltf's Exh. 3.)

7. The ANO hijackers directed an EgyptAir flight attendant to go onto the aircraft intercom and say, "[w]e're being hijacked by the Egypt Revolution, and if you do what you are told, you will not get hurt." (Pflug, T-1-36.)

8. After taking control of EgyptAir Flight 648, the ANO hijackers began searching the passengers, collecting their passports and reseating them. (Baker, T-2-5; Pflug, T-1-39.)

9. The hijackers worked their way from the front of the plane to the back of the plane. (Pflug, T-1-39.)

10. Approximately thirty minutes after taking control of the plane, at approximately 9:00 pm Malta time, there was a shootout between an EgyptAir sky marshal (who was onboard the aircraft) and the hijackers. (Baker, T-2-52, 84; Pflug T-1-39; Pltf's Exh.3.)

11. The aircraft's fuselage was punctured by bullets, and the plane rapidly descended. (Baker, T-2-52-53; Pflug, T-1-41.)

12. Because of the need for fuel, EgyptAir Flight 648 landed at Malta's Luqa Airport at 10:16 pm. (Baker, T-2-84; Pltf's Exh. 3; Pflug, T-1-50; Baker, T-2-55.)

13. Shortly after landing in Malta, stairs were brought to the EgyptAir aircraft, and a medic was allowed onboard. (Baker, T-2-56.)

14. The medic certified that one of the hijackers shot during the shootout with the Egyptian air marshal was dead. (Baker, T-2-56.)

15. While the medic was taking the injured Egyptian air marshal off of the aircraft, Rezaq shot the air marshal in the back. (Baker, T-2-56.)

16. The hijackers then demanded fuel, and indicated that they were prepared to execute passengers in order to ensure their demands were met. (Lang, T-2-157.)

17. As the hijackers were waiting for the fuel to arrive, they called forward and released some of the passengers based on their nationalities, as determined from their respective passports. (Baker, T-2-57.)

18. The hijackers threatened to shoot a passenger every fifteen minutes if they did not receive fuel. (Pltf's Exh. 34 at 2783.)

19. Shortly after releasing some of the passengers, Omar Rezaq summoned the first Israeli passenger, Tamar Artzi, and shot her in the head, throwing her body off the aircraft onto the tarmac. It was midnight Malta time on November 24, 1985. (Baker, T-2-84; Pltf's Exh. 3.)

20. Approximately fifteen minutes after Artzi was shot, at 12:15 am, a second Israeli passenger, Nitzan Mendelson, was dragged to the front of the aircraft and shot in the head by Omar Rezaq. (Baker, T-2-85; Pltf's Exh. 3.)

21. Her body was also thrown from the aircraft onto the tarmac. (Baker, T-2-58.)

22. Approximately 15 minutes after shooting the two Israeli passengers, the hijackers called the three American passengers-Baker, Pflug, and Rogenkamp-to the front of the plane. (Pflug, T-1-52; Baker, T-2-59.)

23. The three American passengers' hands were tied behind their backs with neckties, and they were seated in the first row on the starboard side of the plane. (Baker, T-2-59; Pflug, T-1-52.)

24. Shortly before 12:30 am Malta time, Baker was taken to the door of the aircraft. (Baker, T-2-60; Pltf's Exh. 3).

25. While standing at the door, Baker overheard a radio transmission broadcast from the Malta control tower: ""There is to be no more killing. The fuel is on its way." Baker was allowed to sit down again. (Baker, T-2-60.)

26. Four and a half hours after the EgyptAir Flight 648 aircraft departed Athens, and four hours into the hijacking, after having witnessed the execution-style shooting of two other passengers, Baker was again brought to the door of the aircraft. Shortly after 12:30 am Malta time, he was shot point-blank in the head by Rezaq. (Baker, T-2-60-61, 85; Pflug, T-1-53; Pltf's Exh. 3.)

27. Baker's body was thrown down the stairway to the airplane. He landed approximately halfway down the stairs; the hijackers came down the stairs, carried his limp body back up to the aircraft, and threw him down to the tarmac a second time. (Baker, T-2-61.)

28. At 4:30 am Malta time, eight and one-half hours after the EgyptAir flight 648 aircraft had departed Athens and eight hours into the hijacking, and after witnessing the execution-style shooting of three other passengers, a second American passenger, Rogenkamp, was brought to the front of the aircraft, where she was shot in the head and killed by Rezaq. (Pflug, T-1-54, 56-57; Pltf's Exh. 3.)

29. Rogenkamp's body was also thrown onto the tarmac after the shooting. (Pflug, T-1-57.) 30. At 10:00 am Malta time, fourteen hours after the EgyptAir flight 648 aircraft had departed Athens and thirteen and one-half hours into the hijacking, and after witnessing the execution-style shooting of four other passengers, Pflug, the third American passenger onboard, was called forward and shot in the head by Rezaq. (Pflug, T-1-57-60; Pltf's Exh. 3.)

31. Like the other Israeli and American victims who were shot in the head, Pflug was thrown onto the tarmac. (Pflug, T-1-61.)

32. On the second day of the hijacking, at 8:15 pm Malta time, Egyptian commandos stormed the hijacked airplane in an attempt to rescue the remaining passengers and bring about the end of the hijacking. (Lang, T-2-170-71.)

33. As a result of this rescue attempt, the aircraft was almost completely destroyed, and approximately 60 passengers were killed. (Pltf's Exh. 3; Lang, T-2-170-172; Baker, T-2-86.)

B. The Abu Nidal Organization Perpetrated the EgyptAir Flight 648 Hijacking

34. Omar Ali Rezaq, the sole surviving hijacker, was injured in the rescue attempt by Egyptian commandos, and was subsequently treated at a Maltese hospital. (Pltf's Exh. 34 at 2567-2571.)

35. Rezaq was tried and convicted in Malta and served time in prison. (Pltf's Exh. 34 at 2792-2793.)

36. Subsequent to his release from the Malta prison, Rezaq was tried in Washington, DC, before Judge Royce C. Lamberth in the U.S. District Court for the District of Columbia. (Ex 34.)

37. Rezaq's criminal trial was styled United States of America v. Omar Mohammed Ali Rezaq No. 93-CR-284. (Pltf's Exh. 34.)

38. During his criminal trial, Rezaq did not deny the fact that he got on EgyptAir Flight 648, that he went into the cockpit, that he intentionally forced the plane to divert Malta, and that he shot EgyptAir Flight 648 passengers on the ground in Malta. (Pltf's Exh. 34 at 2781.)

39. During his criminal trial, when asked if Rezaq remembers shooting people on EgyptAir Flight 648, Rezaq testified, "[its] [s]omething I cannot forget." (Pltf's Exh. 34 at 2782.)

40. Subsequently, in a signed affidavit, Omar Rezaq admitted that he was convicted of air piracy as the terrorist who hijacked EgyptAir Flight 648. (Pltf's Exh. 35.)

41. Rezaq admitted that the operation had been carried out by the ANO, of which he was a member. (Pltf's Exh. 35, Pltf's Exh. 34.)

42. Rezaq also admitted that he was trained in an ANO training camp in the Syrian-controlled Baaka Valley. (Pltf's Exh. 35, Pltf's Exh. 34.)

43. Rezaq also admitted that this terrorist hijacking took place at the instigation of and with the support of the governments of Syria and Libya. (Pltf's Exh. 34, Pltf's Exh. 35.)

44. Omar Rezaq is currently serving a life sentence at the Federal Maximum Security Prison, ADX, Federal Bureau of Prisons, in Florence, Colorado, having been convicted of air piracy as a result of his involvement as an ANO terrorist in the EgyptAir Flight 648 hijacking on November 23, 1985. (Pltf's Exh. 35.)

C. The Abu Nidal Organization is a Foreign Terrorist Organization

45. The ANO was established and led by Sabri al-Banna, a/k/a Abu ...


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