2008 International Law Update, Volume 14, Number 12 (December)

2008 International Law Update, Volume 14, Number 12 (December)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

ALIEN TORT CLAIMS ACT

As matter of first impression in Ninth Circuit, in long‑pending class action against mining company in Papua New Guinea charging, inter alia, crimes against humanity, starvation and slavery, court plurality holds that district courts should decide in Alien Tort Claims Act cases preliminary issue of whether Plaintiffs should have and did exhaust available local remedies

The following class action has been pending since November 2000. See 2007 International Law Update 66. Native residents of Bougainville, Papua New Guinea (PNG) (Plaintiffs) brought a class action against the mining company Rio Tinto, PLC (Defendant), and other parties, based on the Alien Tort Claims Act (ATCA), a 1789 Act of Congress. They alleged that they suffered serious damages because of war crimes, crimes against humanity, racial discrimination, and environmental torts. Bougainville is the largest of the Solomon Islands in the South Pacific, near the main island of PNG. It is rich in copper, gold and other minerals.

Defendant is part of a large international mining group – with links to Australia and the U.K. – that began operating on Bougainville beginning in the 1960s. With Government support, Defendant allegedly displaced entire villages, razed large tracts of rain forest, polluted the environment, and treated local workers like slaves. In 1988 a peasant revolt took place that led to the closure of the mine, and the dispute eventually grew into a civil war. It is alleged that, to prevent Defendant from investing and operating elsewhere, the government mounted a blockade that prevented medical and other necessities from reaching the rebels for almost 10 years ending in March 2002. The complaint in this case describes Defendant as the instigator. The violence is said to have caused the deaths of about 15,000 local citizens, including children.

The district court found that there were cognizable ATCA claims, but dismissed the matter because of its non‑justiciable political questions. Then the U.S. Supreme Court decided Sosa v. Alvarez‑Machain, 542 U.S. 692 ( 2004); it clarified that the ATCA is a jurisdictional statute, but also indicated federal courts may impose a preliminary exhaustion requirement in a proper ATCA case.

The ATCA grants U.S. courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. Section 1350. The ATCA itself does not expressly require an exhaustion of local remedies, but the Supreme Court suggested that the lower courts should invoke an exhaustion requirement when appropriate. See Sosa, supra, at 733 n. 21.

On appeal to the Ninth Circuit, a majority upheld the dismissal on political question grounds. Most important for the present case, the panel majority held that the ATCA does not require exhaustion of local remedies. The whole Court then decided to rehear the matter en banc.

In its eleven judge en banc opinions, six judges of the U.S. Court of Appeals for the Ninth Circuit agreed to focus the appeal on issues of exhaustion under the ATCA.

The Court summarizes its holdings as follows. “Although we decline to impose an absolute requirement of exhaustion in ATCA cases, we conclude that, as a threshold matter, certain ATCA claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Where the ‘nexus’ to the United States is weak, courts should carefully consider the question of exhaustion, particularly – but not exclusively – with respect to claims that do not involve matters of ‘universal concern.’ Matters of ‘universal concern’ are offenses ‘for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.’ Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995) (citing Restatement (Third) Foreign Relations Law of the United States Section 404 (1987) (‘Restatement ’).” [Slip Op. 1]

The district courts should treat exhaustion as a prudential principle. It is not a pre‑requisite to the exercise of jurisdiction, but rather governs the timing of federal court action. Under international law, one state usually does not consider a claim by another state for an injury to its national until that person has exhausted available domestic remedies. Sovereigns are co‑equal, and one sovereign can exercise power over another only through consent.

The Court then proceeds to develop a framework for evaluating the appropriateness of requiring exhaustion. “To begin, exhaustion under the ATCA should be approached consistently with exhaustion principles in other domestic contexts. The defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies. .... Although the plaintiff may rebut this showing with a demonstration of the futility of exhaustion, the ultimate burden remains with the defendant. See, e.g., Honig v. Doe, 484 U.S. 305, 325‑29 (1988) (allowing plaintiffs to by‑pass administrative process where exhaustion would be futile or inadequate). This same burden‑shifting analysis is invoked under the TVPA:”

“[O]nce the defendant makes a showing of remedies abroad which have not been exhausted, the burden shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. The ultimate burden of proof and persuasion on the issue of exhaustion of remedies, however, lies with the defendant. S.Rep. No. 102‑249, at 9 (1991) ... While the Torture Victim Protection Act (TVPA) [which does have an exhaustion clause] is not dispositive of the question of whether exhaustion is required by the ATCA, the TVPA nonetheless provides a useful, congressionally‑crafted template to guide our adoption of an exhaustion principle for the ATCA. ....”

“As a preliminary matter, to ‘exhaust,’ it is not sufficient that a plaintiff merely initiate a suit, but rather, the plaintiff must obtain a final decision of the highest court in the hierarchy of courts in the legal system at issue, or show that the state of the law or availability of remedies would make further appeal futile. .... Another basic element is that the remedy must be available, effective, and not futile.” Restatement Sections 703 cmt. d, 713 cmt. f ...”

“To measure effectiveness, a court must look at the circumstances surrounding the access to a remedy and the ultimate utility of the remedy to the petitioner. Restatement Sections 703 cmt. d, 713 cmt. f. In addition, ‘[w]hen a person has obtained a favorable decision in a domestic court, but that decision has not been complied with, no further remedies need be exhausted.’ Id. Section 713 cmt. f. A judgment that cannot be enforced is an incomplete, and thus ineffective, remedy. The adequacy determination will also necessarily include an assessment of any delay in the delivery of a decision. ...” [832] A bare plurality of six judges agree that the Court remand for the limited purpose of determining whether the Plaintiffs should first exhaust local remedies in an ATCA case.

Two concurring judges interpret the ATCA itself to require exhaustion of local remedies, and not just as a matter of judicial prudence. Two dissenting judges would affirm the dismissal of the case because U.S. courts lack subject matter jurisdiction since this case does not directly concern U.S. territory or the rights of U.S. citizens. A federal court has discretion to choose among the threshold grounds for dismissing a case, and the district court here did not have to consider exhaustion before dismissing on Political Question grounds.

Four other dissenting judges opine that neither the Supreme Court nor any Circuit Court have ever applied an exhaustion requirement to an ATCA case. Congress did not include an exhaustion requirement in the statute. The Supreme Court did not suggest that courts apply such a requirement, and there is nothing that would make this “an appropriate case” to consider doing so.

Citation: Sarei v. Rio Tinto PLC, 550 F.3d 822 (9th Cir. 2008).

ALIEN TORT CLAIMS ACT

In Plaintiffs’ appeal of suit against Colombian mining subsidiary of U.S. company which allegedly hired paramilitaries to torture and kill members of mining union, Eleventh Circuit rules that ATCA grants jurisdiction over Plaintiffs’ claims against corporation for violating law of nations; federal question statute provides for jurisdiction over Plaintiffs’ TVPA claims and supplemental jurisdiction statute provides jurisdiction over Plaintiffs’ claims under state law and Colombian law

This lawsuit alleges that executives of Drummond, Ltd., (Defendant) the Colombian subsidiary of an Alabama coal mining company, instigated paramilitary operatives to torture and kill members of a trade union. The Colombian workers union SINTRAMIENERGETICA and several affiliated persons (Plaintiffs) sued Drummond and related parties under the Alien Tort Claims Act. 28 U.S.C. Section 1350 (ATCA), and the Torture Victims Protection Act of 1991, 106 Stat. 73, codified at 28 U.S.C. 1350, note (TVPA). In particular, Plaintiff claimed that the President of Defendant, Augusto Jimenez, hired paramilitary forces to torture specific union leaders, in violation of Colombian law, Alabama law, and the TVPA.

The ATCA grants federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. Section 1350. The TVPA establishes a separate cause of action for victims of torture and extrajudicial killings. 28 U.S.C. Section 1350, note Section 2(a).

Eventually, a jury found for Defendant. This appeal ensued, with the Plaintiffs challenging partial summary judgment, as well as discovery and evidentiary rulings. Defendant challenges the subject‑matter jurisdiction of the district court. The U.S. Court of Appeals for the Eleventh Circuit affirms.

Defendant presents various arguments to challenge the court’s jurisdiction: (1) that the TVPA and the ATCA do not permit lawsuits against corporations; (2) that these Acts do not provide for claims of aiding and abetting in prohibited acts; and (3) that the TVPA provides the exclusive cause of action for extrajudicial killings in violation of international law.

The Court disagrees. Issues under the TVPA are not jurisdictional, and precedent contradicts the ATCA arguments. The Court then proceeds to explain the relationship between the two statutes.

“The two related statutes that pertain to this appeal perform complementary but distinct roles. The [ATCA] is jurisdictional and does not create an independent cause of action. See Sosa v. Alvarez‑Machain, 542 U.S. 692, 724 (2004). In contrast, the [TVPA] provides a cause of action for torture and extrajudicial killing but does not grant jurisdiction. 28 U.S.C. Section 1350, note, Section 2(a). Federal courts are empowered to entertain [TVPA] complaints when either the [ATCA] or the [general] federal question statute, 28 U.S.C. Section 1331, provides jurisdiction.”

“This distinction between the [ATCA] and the [TVPA] gives rise to a general rule regarding claims under the latter Act: when either the [ATCA] or federal question statute provides jurisdiction, defects in pleading claims under the [TVPA] are not jurisdictional defects. These pleading issues involve stating claims on which relief can be granted and should be raised in motions filed under Fed. R. Civ. Pro. 12(b)(6).”

“The [ATCA] provides jurisdiction over the plaintiffs’ claims for violations of the law of nations; the federal question statute provides jurisdiction over their claims under the [TVPA] and the supplemental jurisdiction statute provides jurisdiction over their claims under state law and Colombian law. 28 U.S.C. Section 1367.” [Slip op. 5].

Thus, the question of corporate liability under the [TVPA] seems more substantive and does not go to federal court jurisdiction. Moreover, the [TVPA] does allow lawsuits against corporate defendants. See Aldana v. Del Monte Fresh Produce, Inc., 416 F.3d 1242 (11th Cir. 2005). However, the Court discusses corporate liability under the [TVPA] which is jurisdictional. The Statute itself does not provide for an exception for corporations. The Eleventh Circuit has ruled that the [TVPA] grants jurisdiction for torture complaints against corporate defendants. Aldana, supra, at 1242.

“[T]he law of this Circuit permits a plaintiff to plead a theory of aiding and abetting liability under the [ATCA] and the [TVPA]. Cabello v. Fernandez‑Larios, 402 F.3d 1148, 1157‑58 (11th Cir. 2005) ... We based our decision in Cabello on the text of the statutes, the decisions of two sister circuits, Hilao v. Estate of Marcos, 103 F.3d 767, 776‑77 (9th Cir. 1996), and Carmichael v. United Technologies Corp., 835 F.2d 109, 113‑14 (5th Cir. 1988), and the legislative history of the [TVPA] ... We are bound by our decision in Cabello.”

“[T]he law of this Circuit suggests that the [TVPA] is not the exclusive cause of action for claims of extrajudicial killing. In Aldana, we held that ‘a plaintiff may bring distinct claims for torture under each statute,’ supra at 1250, and the analysis that supported that conclusion supports the same conclusion for claims of extrajudicial killing. In Aldana, we stated that the statutory texts permit plaintiffs to seek relief for claims of torture under both statutes because both define torture and ‘each statute provides a means to recover for torture as that term separately draws its meaning from each statute.’ Id.”

“The same is true for extrajudicial killing, which is actionable under the [ATCA] if it is ‘committed in violation of the law of nations,’ 28 U.S.C. Section 1350, and under the [TVPA] as that Act expressly defines it, 28 U.S.C. Section 1350, note Section 3(a). For the same reason that we held in Aldana that the [TVPA] does not provide the exclusive remedy for claims of torture, we decline to read the [TVPA] as providing the exclusive remedy for claims of extrajudicial killing.” [Slip op. 6].

Finally, the Court holds that Plaintiffs failed to satisfy the state action requirement of the [TVPA]. Moreover, the district court did not abuse its discretion in refusing to exercise supplemental jurisdiction over Plaintiffs’ wrongful death claim under Colombian law.\

Citation: Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008).

AVIATION LAW (MONTREAL CONVENTION)

While seating self on board British Airways flight from Arizona to London, Plaintiff slipped on standard floor track injuring her knee, U.K. Court of Appeal (Civil Division) dismisses her appeal from adverse judgment on grounds that event did not come within autonomous term “accident” as used either in 1998 Montreal Convention or in 1929 Warsaw Convention

British Airways (Defendant) is, inter alia, an international commercial air carrier. On Sunday October 17, 2004, Beverley Anne Barclay, the Plaintiff, was the Defendant’s passenger for reward on international flight number BA288 from Phoenix, Arizona in the United States to London Heathrow in the United Kingdom.

The crew showed Plaintiff down the port aisle of the aircraft to her seat #26E, the second seat in a row of four seats (26D‑G). The four seats were in the center of the aircraft with an aisle at either end. The Plaintiff’s seat was immediately to the port of the aircraft’s midline. Immediately ahead of Plaintiff’s row of four seats was another row of four seats. The first two seats of that row ahead (25D‑E) were in a reclined position. To reach her seat, the Plaintiff passed sideways to her right between the reclined seats ahead and the first seat in her row (26D). To do so, she had to lean slightly backwards.

As she lowered herself into her seat, with her body weight towards the right, the Plaintiff’s right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left. Upon slipping the Plaintiff heard and felt her knee “pop” and as it gave way it struck the arm rest injuring the Plaintiff.

The layout of the passenger cabin, the seating space available to each passenger, the type of passenger seats and the strips installed on the aircraft covering the seating tracks all conformed to the Defendant’s usual standard for an aircraft of that type, a Boeing 747, flying on the route in question. They were not defective and were in full working order. All of the aircraft’s seating and all of its systems affecting the passenger cabin environment and floor were in their normal working order. The aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations.

The provisions of the Montreal Convention of 1998 applied to the flight. “This Convention provides the exclusive cause of action and sole remedy available against an international air carrier in respect of loss, damage or delay suffered by passengers, or their baggage, in the course of, or arising out of, their international carriage by air.”

The strip referred to was a narrow plastic strip running under the seats and covering what the airline refers to as the “seat fix tracking.” This was entirely standard equipment on a BA Boeing 747. After considering the arguments of learned counsel, the Court of Appeal (Civil Division) unanimously dismisses Plaintiff’s appeal.

“So far as is shown by counsel’s researches, however, this is the first case in this court on Article 17.1 of the 1998 Montreal Convention. Both parties accept that authorities on the meaning of the 1929 Warsaw Convention measure are just as valuable in relation to the current legislation.”

“By common consent, the leading case on Article 17 of the Warsaw Convention, no less applicable to Montreal Article 17.1, is Air France v. Saks, 470 U.S. 392 (Sup. Ct. 1985). There the plaintiff, a passenger aboard an aircraft coming in to land, suffered pressure and pain in her left ear and doctors later diagnosed her as permanently deaf in that ear. The aircraft’s pressurisation system was working normally. The airline moved for summary judgment against the plaintiff on the ground that she could not prove that her injury had been caused by an ‘accident’ within Article 17 of the Warsaw Convention.”

“O’Connor J, delivering the opinion of the Supreme Court, analysed the text of the Convention (in both English and French), the negotiating history of the Convention and the travaux preparatories (sic), along with existing authority of courts in the United States and elsewhere. She identified two ‘clues’, as she described them, to the meaning of the term ‘accident’. The first points to the contrast between the word ‘accident’ in Article 17 and ‘occurrence’ in Article 18 (dealing with liability for the destruction or loss of baggage) ‑‑ ‘accident’ thus means something different from ‘occurrence’. (N.B. that Article 18.1 of the Montreal Convention has the word ‘event’ in place of ‘occurrence’, but the force of the contrast remains the same). The second clue was that Article 17 refers to an accident which caused the passenger’s injury, not an accident which was the passenger’s injury. So the accident and the injury are clearly separated.

“After considering the applicable authorities at length Justice Sandra Day O’Connor (now retired) stated [at p. 405]: ‘We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries. ... [W]hen the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply.’ [405‑406]

“It is convenient at this stage to identify precisely the issue we have to decide. [T]he Plaintiff must show that her injuries were caused by an accident within the meaning of Article 17.1. Thus the scope of the term ‘accident’ is critical. It is clear ... that proof of fault on the part of the carrier is not required. But ‘accident’ cannot mean any occurrence on the aircraft which causes injury. So much at least is clear from Saks.”

“To elucidate its scope in a thumbnail sketch, we may postulate three situations: first, a member of the cabin staff loses his footing in the gangway and spills hot coffee, burning a passenger’s hand. Plainly there is an accident; in the language of the Saks decision, ‘an unexpected or unusual event or happening that is external to the passenger’. ...” [Situation (2) is the deafened passenger incident. The third is the present case. ‑ The Editors]

“On the one hand, there is no event entirely unconnected with the passenger, such as the crew member losing his footing in situation (1). On the other, the injury is not caused by an autonomous collapse in the passenger’s health with which the aircraft environment had nothing to do, as in situation (2). [Plaintiff’s] case is that there was an accident causative of his client’s injury ‑ her slipping on the plastic strip. ... [T]he respondent submits by contrast that there was no accident – the slip was not an untoward event external to the passenger: the plastic strip was inert in its ordinary condition; nothing happened save for the Plaintiff’s coming into contact with it. The issue in the appeal can accordingly be stated in this way: where injury is caused by an event (here the slip) constituted by some contact or interaction between the passenger and the aeroplane in its normal state, is such an event an ‘accident’ within Article 17.1?”[¶¶ 8‑10].

“The Warsaw Convention is an exclusive code of limited liability of carriers to passengers. On the other hand, it enables passengers to recover damages even though, in the absence of the Convention and the Act, they might have no cause of action which would entitle them to succeed [Cite] It is therefore not necessarily right to approach the meaning of the phrase ‘bodily injury’ in Article 17 of the Convention through the spectacles of full corrective justice.”

“It follows from the scheme of the Convention, and indeed from its very nature as an international trade law convention, that the basic concepts it employs to achieve its purpose are autonomous concepts. It is irrelevant what bodily injury means in other contexts in national legal systems. The correct inquiry is to determine the autonomous or independent meaning of ‘bodily injury’ in the Convention. [Cite]. And the premise is that something that does not qualify as a ‘bodily injury’ in the Convention sense does not meet the relevant threshold for recovery under it.”

“From the point of view of the passenger or the owner of baggage or cargo, the imposition of liability without proof of fault on the carrier and the modification of provisions relieving him of liability or restricting the amount of his liability are very significant advantages. From the point of view of the carrier too, however, there are significant advantages in the system laid down by the Convention. A principal consequence of that system is the exposure of the carrier to liabilities without the freedom to contract out of them. But it defines those situations in which compensation is to be available, and it sets out the limits of liability and the conditions under which claims to establish liability, if disputed, are to be made. A balance has been struck between these competing interests in the interests of certainty and uniformity.”

As Lord Hobhouse has said elsewhere: “The substantive provisions provide a division of risk between the carrier on the one hand and the goods or baggage owner or passenger on the other. In relation to carriage by sea, the salient features of this division of risk are provisions which impose evidential burdens on the carrier, give him limited exceptions which he can rely on and which give him either an absolute or qualified right to limit his liability. In the 1929 Warsaw Convention effectively the same scheme is followed for the carriage of passengers, their baggage and commercial cargo. In each case an agreed code divides the risk between the carrier and his customer. It provides uniformity and certainty; conflicts of laws problems are avoided as far as possible; the incidents of where any accident or litigation may occur are sought to be removed as far as possible; the negotiation and acceptance of the ‘five freedoms’ of international air transport were facilitated.”

“It follows from this that considerations of national or local law should not be allowed to intrude upon, let alone govern, any question of construction that may arise on the provisions for division of risk. The code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law. It is not right to attempt to construe the words of the Convention by reference to the rules of any domestic law, English, American, German or even French. We know that those rules were, and are, not all identical. The purpose of uniformity means that it is the duty of the national court to put to one side its views about its own law and other countries’ laws. Quite apart from defeating uniformity, such a course can only lead to the complication of simple issues, the inadequately informed investigation of other legal systems and, most importantly, to uncertainty.”

“It is not the function of any court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to Article 17 liability, or any of those conditions. The language of the Convention itself must always be the starting point. The function of the court is to apply that language to the facts of the case in issue. In order to do so and to explain its decision, and to provide a guide to other courts that may subsequently be faced with similar facts, the court may well need to try to express in its own language the idea inherent in the language used in the Convention.”

“So a judge faced with deciding whether particular facts do or do not constitute an Article 17 accident will often describe in his or her own language the characteristics that an event or happening must have in order to qualify as an Article 17 accident. But a judicial formulation of the characteristics of an Article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention. It should be treated for what it is, namely, an exposition of the reasons for the decision reached and a guide to the application of the Convention language to facts of a type similar to those of the case in question.”

“There is, ...something of a contrast, if not a tension, in these passages which it is important to notice. On the one hand, for reasons in particular made clear by Lord Steyn ..., the concepts deployed in the Convention are autonomous: ‘[i]t is irrelevant what bodily injury means in other contexts in national legal systems’. The same must apply to ‘accident’. On the other hand, ... the starting point is to consider the natural meaning of the language of article 17.”

“These propositions are not, of course, contradictory: the ordinary meaning of the language (in the Montreal Convention, English) is the starting‑point, but given the autonomy of the Convention’s terms and the need to give effect to the balance which it strikes, the definitive interpretation may lie elsewhere. However, the fact that the ordinary meaning is no more than the starting‑point, which on substantial grounds may need to be departed from, may counsel caution in evaluating [counsel’s] argument as to the scope of ‘accident’. Before I confront that I should turn to the principal English authorities on the meaning of the term “accident” in Article 17.1 (or, more strictly, its predecessor).”

“The U.S. Supreme Court’s conclusion in Saks has been affirmed for the purposes of English law in the House of Lords in Morris and in DVT. Morris is a striking case because as a matter of ordinary language, as it seems to me, the event giving rise to the claimed injury can hardly be described as an accident at all; yet this court ( [2002] Q. B. 100) and the House of Lords held that it qualified as such within Article 17. The Plaintiff was a fifteen year old girl travelling alone; she awoke from a nap to find the man sitting next to her caressing her thigh, making a case of indecent assault . One might have thought it a plain point in the carrier’s favour that what happened, far from being an accident, was deliberate.”

“At all events the focus of the reasoning in the judgment of the court given by Lord Phillips of Worth Matravers MR as he then was, addressing the meaning of ‘accident’, is on a different point: whether the ‘accident’ had to relate to the operation of the aircraft or be a characteristic of air travel. The court held that it did not, but was prepared to conclude on the facts that the assault was facilitated by a special feature of air travel, namely the cramped seating conditions which placed the young girl in close proximity to a strange man for an extended period of time.”

“The proposition that an assault can constitute an accident offers, I think, a strong example of the adoption of an autonomous meaning of a concept in the Convention, so as to give concrete effect to the balance which the Convention strikes. In ruling as it did, this court in Morris expressly applied the definition of ‘accident’ given in Saks. Lord Phillips referred to the Supreme Court’s ‘inclusion in the definition of ‘accident’ of torts committed by fellow passengers.” [¶¶ 15‑19].

“If the Plaintiff’s case is good, then Article 17.1 would appear to impose liability for a very wide range of injuries suffered on board aircraft. Any slip or fall resulting merely from contact with an inert piece of equipment, installed and operating as intended, would constitute an accident. Indeed, it is hard to see how any injury, save only one caused by an autonomous collapse or deterioration in the passenger’s state of health having nothing to do with conditions on the aircraft, would be excluded: there would presumably always be some event causing the injury, which could be categorised as an ‘accident’ just as [counsel] has sought to categorise his client’s slip. But even if that goes too far, the multitude of instances where on [counsel’s] case there would certainly be an ‘accident’ discloses, in my judgment, a scenario which is far distant from the careful balance of interests struck by the Convention. ...”

“I conclude that Article 17.1 contemplates, by the term ‘accident’, a distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger. This gives the term a reasonable scope which sits easily in the balance the Convention strikes. It is, I conceive, in line with all the leading authorities from Saks onwards ..., uniformly emphasise the importance of the causative event’s being ‘external’ to the passenger.”

“There are some particular formulations in the cases which ... especially point, ... towards this approach. I have already cited ... Lord Phillips’ ... where he referred to ‘an untoward event which impacts on the body...’. This suggests to my mind the happening of an event which is anterior to, and separate from, any involvement of the passenger. ... Assistance is also to be had from O’Connor J’s observation at p. 406 of Saks itself: ... ‘[W]hen the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the [1929] Warsaw Convention cannot apply.”

“There was no accident here that was external to the Plaintiff, no event which happened independently of anything done or omitted by her. All that happened was that the Plaintiff’s foot came into contact with the inert strip and she fell. It was an instance of the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft’. I would dismiss the appeal [the other two justices agree.].” [¶¶ 35‑37]

Citation: Barclay v. British Airways Plc, [2008] E.W.C.A. Civ. 1419; 2008 WL 5240582 (C.A. (Civ. Div.))

IMMIGRATION (CERTIFICATE OF ENTRY)

Where U.S. professional singer with prior U.S. criminal record and entourage seemed involved in apparent ruckus at Heathrow Airport, leading to denial of entry into U.K., English Court of Appeal, Civil Division allows singer’s appeal from ruling by Entry Clearance Officer that singer not be allowed into U.K.

CB, the Respondent, is a citizen of the United States born on October 20, 1971. He is a professional singer. On February 27, 2007 he obtained a work permit for work in the United Kingdom. On March 3, 2007 he applied for an entry clearance, relying on his work permit to come to the U.K. for two weeks to perform at some six concerts.

He forwarded a reasoned letter supporting the application; inter alia, it indicated that he proposed to bring an entourage of thirty supporting staff. The letter also referred to the very large ticket revenue that might be expected from the concerts, and other benefits including employment in the relevant localities and the sale of compact discs.

Finally, the letter alluded to an incident which had taken place at Heathrow in April 2006 when the Respondent had been on his way to Johannesburg. He had been involved in Public Disorder offences and had received what is called an “adult caution.”

The Respondent has previous U.S. convictions in 1990 and 1991 for offenses that included theft and possession of firearms, though those convictions may have been “spent” under legislation equivalent to the provisions of English law dealing with spent convictions. On September 19, 2007 an American court convicted him of possessing a deadly weapon – a police baton – in September and October of 2006 plus other offenses.

On March 23, 2007 the Entry Clearance Officer (ECO) turned down his entry clearance at Los Angeles. The refusal notice stated: “I have considered your application carefully based on the information on the application form and the documentation submitted. But in the light of your character/conduct/associations, I consider it undesirable to issue you an entry clearance and I am not prepared to exercise discretion in your favour. You have applied for an entry clearance to enter the United Kingdom in line with the work permit issued to you as a performing artist.”

“However, your presence is considered to be non‑conducive to the public good in view of your previous convictions that are unspent; that, following a fracas in Heathrow last year, you were allowed to leave the UK on bail, but, on return, were refused leave to enter on non‑conducive grounds, cautioned by the police for public order offences and later removed from the UK ; that there are outstanding charges against you for drugs and firearm offences both in the USA and elsewhere and that your presence in the UK could lead to further public order offences of violent crime. Accordingly your application is refused.”

Immigration Rule ¶ 320(19) has the heading: “Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused.” Then this follows: “(19) where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the UK is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.”

On January 21, 2008, Immigration Judge Bird allowed the Respondent’s appeal against the refusal of entry clearance. The ECO sought a reconsideration which was ordered on February 6, 2008. Senior Immigration Judge (SIJ) Warr, making the order, stated: “The Secretary of State criticises the immigration judge for misdirecting herself on the issue of future risk and on her reasoning and for giving directions in this case. The grounds of application constitute arguable legal challenges. All the grounds of application may be argued.”

SIJ Warr also held the reconsideration heard on April 7, 2008, and the SIJ published the determination on April 16, 2008. The SIJ held that Immigration Judge Bird had not materially erred, and upheld her decision allowing the Respondent’s appeal.

The basic facts of the Heathrow incident in April 2006 on which the ECO particularly relied before Immigration Judge Bird are as follows. The Respondent was on his way to Johannesburg and had to change planes at Heathrow. A disorderly incident took place, involving a number of the Respondent’s entourage. It started after members of that entourage were asked to leave the British Airways (BA) lounge. The group failed to follow instructions given by the police. CCTV captured part, but not all, of the incident. The ECO put in evidence before Judge Bird a number of witness statements.

Mike Goedeker was an American who happened to be traveling through Heathrow at the time. His statement reads in part as follows: “The group as a whole appeared to be friends of CB and as the group walked about they were more like ‘a gang’ with CB as the leader... I would even go so far as to say that CB was showing off. ... The behaviour of CB and his entourage was giving me cause for concern. ... I have had training in risk assessment and conflict training. As a result of experience and training, I felt a potential for a problem to occur. The group came back downstairs and CB proceeded to the bar saying that ‘he wanted to rouse things up at the bar and see how many people take pictures of him.’”

“Having been in the bar they made their way to the BA lounge with the laptop still playing. ... I saw that there were several business people exiting the BA lounge soon after the group had entered. [Some] looked annoyed and shocked. ... I then heard a smashing of glass and saw that someone had knocked over the whisky stand at the World Duty Free shop. The Police were struggling with members of CB’s group. ... I even noted that several of the Police officers seemed scared and they tried to contain the group. ...”

“It was my opinion that this incident was [entirely] due to the arrogant behaviour of CB and his group.... The Police did not start it... He [the Respondent] was arrogant and his demeanour, I felt, encouraged bad behaviour from the other members of his group.”

There was also a statement from Police Sergeant Fiona Duggan. She [inter multa alia] said this: ‘ ...CB was shouting extredmis [sic], his face was angry, he was waving his arms.’ The Respondent himself was [later] to admit that he had committed a public order offense contrary to Section 4 of the Public Order Act 1986. The police judged (it appears) that there was enough evidence to prosecute him for the offence, and Respondent received an “adult caution” on May 11, 2006.

The ECO does not suggest that the Appellant himself used any actual physical violence in the course of the incident. Five members of the Respondent’s group also admitted offences contrary to Section 4. Three were cautioned; two were ... convicted on their guilty pleas. In his sentencing remarks, the district judge observed that the difficulties followed an argument in the BA lounge, that the group failed to follow the instructions of the police and that decisions made by the BA staff and the police had caused the disorder.

The immigration judge mentioned Respondent’s community service work done in the U.S. with young black teenagers and the establishment of a football league in inner city areas, the aim being to stop these young people from, as it was put, “joining gangs or doing drugs”. Further, the Respondent had performed in a number of European countries during 2007 and there had been no evidence of any violent incident.

This is what the immigration judge said about the Heathrow incident: “34. [...] What the ECO relies on is the incident at Heathrow and, having viewed the DVD video footage and considered the witness statements, I would tend to agree with District Judge Marshall that the disorder was precipitated by decisions made by BA staff and the police. Certainly, the Appellant was pushed twice by a police officer and he did not retaliate.”

There is no evidence in witness statements that the Appellant was responsible for any public disorder or initiated it. The Appellant’s behavior on the DVD did show him interacting with the public – in particular children – in a non‑threatening way. The children were laughing and generally enjoying either dancing or singing or playing music.

Before SIJ Warr it was argued for the ECO, inter alia, that the immigration judge had “played down” the Heathrow incident, had failed to pay due deference to the ECO as the primary original decision maker, and had applied the wrong test in assessing whether the refusal of entry clearance to the Respondent would be conducive to the public good. The SIJ concluded, however, that the immigration judge had made none of these errors nor any other.

In a two to one vote, the U.K. Court of Appeal (Civil Division) allows the appeal. The lead opinion explains as follows. “It is convenient first to consider the test to be applied under ¶ 320(19). It is common ground that it is for the ECO to prove any primary facts that need to be established if the question whether refusal of entry clearance is conducive to the public good is to arise or not. ... But at all events, in this case, there was really no dispute as to any relevant primary fact; in particular, the Heathrow incident was, as I have said, partly shown on CCTV recording and there was ample witness evidence about it. Neither the Respondent nor, so far as I am aware, any of the members of his entourage, as it has been called, really disputed what had happened.”

“Once the relevant facts are shown, there is then an evaluation to be made as to whether exclusion on those facts would conduce to the public good. In a case such as this, it seems to be common ground that the decision maker is essentially to form a view as to whether the Applicant’s presence here could or might lead to disorder or the commission of crime. The immigration judge correctly recorded the ECO’s submission that the Respondent’s presence in the UK could lead to further disorder, but she proceeded on the basis that the ECO had to prove that the Respondent’s presence would in fact lead to such disorder. Here are the relevant passages in her determination: ‘I therefore have to consider whether or not the evidence provided by the Respondent [that is the ECO] shows that the Appellant’s exclusion is desirable and that his entry to the U.K. would give rise to public disorder offences and or give rise to violent crime.’”

“What I have to decide is whether the Appellant’s presence in the U.K. will lead to commission of offences and for that reason his exclusion is justified for the public good.”

“I find that it has not been shown on a balance of probabilities that the Appellant’s presence in the U.K. will give rise to violence or public disorder.”

“What is involved is an evaluation of risk to the public. The question is: is there a substantial risk of disorder? That was not the question which the immigration judge asked herself. Accordingly, as it seems to me, she fell into an error of law that was plainly material to the decision she had to make. At the very least, it was her duty to give weight to the Secretary of State’s approach to the non‑conducive rule and that approach certainly involved an evaluation of risk.” [¶¶ 12‑13].

“In this particular area, unlike some other areas of immigration and asylum law, a degree of deference is due to the original decision maker. The subject matter is the good of the U.K. generally. That, it may be said, has strategic or overarching elements where the Secretary of State and indeed his ECOs have special responsibility. So much is shown by the decision of this court in N (Kenya) v SSHD [2004] E.W.C.A. Civ. 1094. ‘Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society’s revulsion at the seriousness of the criminality. It is for the adjudicator in the exercise of his discretion to weigh all relevant factors, but an individual adjudicator is no better able to judge the critical public interest factor than is the court. In the first instance, that is a matter for the Secretary of State. The adjudicator should then take proper account of the Secretary of State’s public interest view.’”

“Now it is not suggested that the Heathrow incident itself constituted an example of serious or very serious crime. These passages in the judgments in N show, however, that, where the question is whether a person should be excluded from or removed from the U.K. because to do so would be conducive to the public good, the Secretary of State’s view has a particular force to which the immigration judge has to have regard.

“ In particular, there is nothing to show that the immigration judge considered whether some different test as to what was conducive to the public good might properly be adopted – different, that is, from the contention being advanced by the Secretary of State which was, as I have already explained, in terms of risk evaluation. To that extent these two first grounds of appeal run together, and it seems to me that, whether separately or cumulatively regarded, the immigration judge has fallen into error in respect of them.”

“Lastly, it is said that Immigration Judge Bird erred in considering that the part played by the police in the Heathrow incident in some way reduced the Respondent’s responsibility for the disorder, and further erred in concluding that there was ‘no evidence’ that the Respondent was responsible for any public disorder on that occasion. Now I would wish to emphasise that, in the ordinary way, I would hesitate long before interfering with an immigration judge’s assessment of a purely factual matter, especially if she had, as here, viewed a CCTV recording of the relevant interest.”

“But it seems to me simply wrong to say that there was no evidence of the Respondent’s responsibility. There plainly was such evidence, in particular from Mr. Goedeker and Police Sergeant Duggan. [Counsel] has submitted that Mr. Goedeker’s strictures arise from conduct by the Respondent witnessed by Mr. Goedeker before the actual incident of disorder. It is certainly true, reading the whole of Mr. Goedeker’s statement, that he does rely on aspects of the Respondent’s behavior taking place before the particular incident of disorder happened.”

“In all those circumstances and for all those reasons, I have concluded that there were with respect plain errors of law perpetrated by Immigration Judge Bird. SIJ Warr should have acknowledged those errors in his conduct of a statutory reconsideration. He did not do so. [Counsel] has submitted that SIJ Warr correctly characterised the immigration judge’s decision as: ‘...nuanced and subtle, balancing competing factors and reaching an appropriate, reasoned conclusion.’ [¶¶ 15‑19]. For all these reasons, in my judgment this appeal falls to be allowed. If my Lords were to agree, the right order to make would no doubt be that the matter be remitted for the reconsideration to be re‑opened.” [¶ 21]

Citation: CB (United States of America) v. Entry Clearance Officer (Los Angeles), [2008] E.W.C.A. Civ. 1539 (Nov. 13, 2008; Ct. App. (Civ. Div.)).

NEGLIGENCE (RAIL CROSSING)

Where motorcyclist at night approached familiar rural railroad passive crossing on sharply angled road at speed just under limit and crashed into moving unlighted, freight train losing three of his limbs, Ontario Court of Appeal affirms damage judgment pointing out, inter alia, that railroad had never done safety inspection during night hours and evidence showed that when train became visible it would be too late to stop

On August 26, 1994, at about 9:15 p.m., the Plaintiff, Jason Zsoldos, was riding his motorcycle home when he collided with a Canadian Pacific (Defendant) freight train. While the Plaintiff has no memory of the collision, it is apparent that he did not see or hear the cars of the train until it was too late to avoid a collision. He slid under the train and as a result lost both arms and a leg. At the trial, the only issue was liability. The trial judge found the Appellants Defendant and Gordon Gosnell, the engineer, 75% negligent and assessed the Plaintiff’s contributory negligence at 25 % by analogy to when an injured party had failed to wear a seat belt.

The Plaintiff was 22 years old at the time of the collision. He lived with his family in a rural area near the village of Bothwell in Lambton County, Ontario, about 62 yards from the Defendant rail line. He was quite familiar with the line, since he crossed it daily during the day and at night where it crossed McCready Road, a north‑south gravel road. McCready Road is straight and flat with farm fields along it. There was a maturing cornfield on the east side of the road and another unknown crop on the west side. The speed limit on McCready Road is 80 kilometres per hour.[49.6 mph]. The Defendant level crossing on McCready Road is like thousands of rural crossings in Ontario and throughout Canada.

The two cross bucks mark the crossing that bear reflectorized tape only on the front. The cross buck on the south side, the direction from which the Plaintiff was approaching, is 15 feet south of the south rail. There is also an advance warning sign 290 feet before the crossing. This sign, built by the town , alerts motorists to the upcoming railway crossing and warns motorists to reduce their speed to 20 kilometres per hour [12.4 mph] as they approach the crossing. This is a so‑called “passive” system. There are no active warning systems such as lights, bells or gates to warn a motorist that a train is in the crossing. No street lights shine onto the crossing.

At the time of the collision, Defendant was running 6 to 10 trains a day on this line with 4 or 5 running at night, none on a fixed schedule. The train which the Plaintiff hit consisted of three engines and 58 freight cars. Most of the cars were of United States origin and did not have reflectorized markings on them. The train was over a kilometre [.62 miles] long and the Plaintiff collided with the 35th car. Thus, the lead engine with its headlights and whistle had long since passed through the crossing at the time of the collision. The train had just left a siding and was only getting up to speed as it reached the crossing. The 35th car was moving at about 20‑25 m.p.h. at the time.

The Plaintiff had been drinking beer with some friends before he set off for home at about 9:10 p.m. The trial judge found that the Plaintiff had a blood alcohol level just below the legal limit at the collision. He was travelling at the 80 km/hr [49.6 mph] speed limit and did not reduce his speed as he got near the crossing. The night was moonless, dark, clear and warm . The Plaintiff probably had his headlight set on high beams.

The Bothwell crossing is a typical rural crossing but its somewhat unusual feature is that the road comes up to the crossing at an acute angle of 45 degrees. That was why the sign advised ( but did not require) motorists to slow down to 20km/hr [12.4 mph]. Another problem at this time of year was the presence of corn crops, that can obscure the sight lines.

The Plaintiff introduced important evidence through Curtis Scherer, an expert in accident reconstruction, as to when a person driving a motorcycle would be able to see a freight train travelling through the Bothwell crossing at night. The Plaintiff also relied upon the evidence of Professor Alison Smiley, an expert in ergonomics, the study of human factors to reduce errors and accidents.

There was also evidence, using a Perception Reaction Time (PRT) of 2.5 seconds , which is the standard used by highway designers, that the vehicle would have to be travelling at 57.9 kph [36 mph] or less to be able to stop in time. The trial judge found that the Plaintiff’s PRT was 2.5 seconds given his consumption of alcohol. Defendant conceded that it owed the Plaintiff a duty of care. The principal issue was whether Defendant fell below that standard in the manner in which it maintained this particular crossing.

The Defendant opened this crossing to rail traffic in 1889 and it is located on a single‑track freight railway line near the village of Bothwell. Prior to Plaintiff’s accident, there were no reported accidents at this crossing. A term of art in the industry is the “cross‑product,” I. e. the number of vehicles travelling over the crossing daily multiplied by the number of passing trains.

As of 1994, the cross‑product at the Bothwell crossing was 300. The trial judge found that there was no regulation or government order that controlled the point at which the Defendant would have to install an active warning system . That decision was up to the discretion of the railway companies and the municipalities with Transport Canada’s input. Transport Canada would not have recommended an active warning system for this type of crossing since the cross‑product was less than 1000.

The trial judge then found that Defendant was negligent in failing to carry out any inspections of the Bothwell crossing at night and in making no attempt to determine whether the passive system was sufficient to protect motorists using the crossing at night. She concluded that “it is almost impossible to accurately assess the safety of a crossing at night when such an inspection is carried out in the bright light of day”.

She further found that had Defendant conducted the inspections that it should have, it would have concluded that additional warnings were required, “given the steep angle at which the track bisected the roadway, the absence of any ambient lighting and the presence of crops on the side of the roadway, all of which conspired to make the presence of a train in the crossing very difficult to discern”. As well, the municipality had placed its advance warning sign too close to the track to give a motorist enough time to react and slow in time to stop and it was advisory only. Defendant would know that motorists often ignore such signs.

The trial judge apportioned the (unspecified) damages 75% on Defendant and 25% on Plaintiff. Defendant noted an appeal. The Ontario Court of Appeal unanimously dismisses the appeal.

“In Ryan v. Victoria (City) , [1999] 1 S.C.R. 201 (S.C.C.), the Supreme Court of Canada abandoned the special rule that placed railway companies in a privileged position within the law of negligence. The old special rule was that so long as railway companies complied with government regulations and orders, absent extraordinary circumstances, they were under no further obligation to act in an objectively reasonable manner. Henceforth, railway companies were subject to the same standard of care as other similarly situated defendants.”

“That does not mean that the regulatory framework is irrelevant. ‘Where a statute authorizes certain activities and strictly defines the manner of performance and the precautions to be taken, it is more likely to be found that compliance with the statute constitutes reasonable care and that no additional measures are required.’ He also held, however, that where the regulatory framework is general or permits discretion as to the manner of performance, mere compliance with the statutory framework ‘is unlikely to exhaust the standard of care’.”

“The trial judge found that Defendant had a broad discretion when it came to determining the safety measures at level crossings. This finding was amply supported by the evidence, especially Defendant’s own witnesses who testified that the thrust of pre‑1994 deregulation amendments to the statutory framework were to shift responsibility to the railway companies. Defendant’s compliance with the statutory framework did not exhaust the standard of care.”

“Defendant, however, also relies upon industry standards. It notes the trial judge’s finding that industry standards did not require anything more than passive measures for a rural crossing like the Bothwell crossing, one of 16,000 similar crossings throughout the country. In my view, the evidence of industry standards and its application to this case must be approached with caution. While there was some evidence of studies and reports from Transport Canada and from the United States, industry standard on this record was little more than an assertion by Defendant, supported by the Transport Canada witnesses, that, given the cross‑product and the conditions at rural crossings, passive measures were an adequate response to the risk.”

“There are two aspects to the finding of negligence in this case: the failure to inspect the crossing at night and the failure to take some steps to warn motorists travelling at night that a train is in the crossing. It seems to me that these two issues need to be addressed separately.”

“I can find nothing in the trial judge’s reasons to indicate that she found that Defendant fell below industry standards. I will therefore address the two issues on that basis.[ ¶¶ 25‑29].

“In my view, it was open to the trial judge to find that Defendant’s failure to carry out night‑time inspections of this rural crossing was negligent. While the trial judge did not put it in these terms, her findings are reasonably open to the conclusion that failure to carry out night‑time inspections was fraught with obvious risk. This, it seems to me, is the only reasonable inference from ... her reasons.” ‘If Defendant had carried out an inspection of this crossing at night, it would likely have concluded that additional warnings were necessary, given the steep angle at which the track bisected the roadway, the absence of any ambient lighting and the presence of crops on the side of the roadway, all of which conspired to make the presence of a train in the crossing very difficult to discern.” [¶ 31].

“It seems to me that the evidence concerning the cross‑product is central to Defendant’s submission. In effect, it asks the court to endorse its economic analysis of negligence. It has, through the vehicle of the cross‑product, weighed the three factors identified by Major J. in Ryan of [1] the likelihood of a known or foreseeable harm, [2] the gravity of that harm, and [3] the burden or cost which would be incurred to prevent the injury. It has decided that absent exceptional circumstances, with certain low cross‑products, as at the Bothwell rural crossing, the risk of harm was a reasonable one to take.”

“However, the trial judge was not bound by Defendant’s economic analysis. The trial judge was obliged to consider this particular crossing and decide whether because of the conditions at this particular crossing it was unreasonable for Defendant to only use a passive warning system at this un‑illuminated crossing. She was also entitled to take into account other evidence adduced by the Plaintiffs, especially the uncontradicted evidence from Professor Smiley, as to the efficacy of speed advisory signs.” [¶ 36].

“The Appellants submit that this was not sufficient, that the trial judge had to deal with each proposed measure individually, and consider the feasibility, including cost, of each measure. I do not agree. In my view, it was sufficient that the trial judge found that measures were available in 1994 that a reasonable railway operator could have employed to meet the standard of care. It was not for the trial judge to dictate which of the proposed measures Defendant should adopt. It seems to me that for the Appellants to succeed on this aspect of the case, they must show that the trial judge’s finding was unreasonable; that no jury properly instructed could find that any of the measures were reasonable in the circumstances.”

“The central problem identified by the trial judge, which is fully supported by the evidence, is that at night it was impossible for a motorist to know that a freight train was in the crossing until it was too late to stop. The evidence accepted by the trial judge was that the measures taken by Defendant, at this crossing, were not sufficient. There would be a major benefit if freight cars bore reflective tape, but many freight cars come from the United States where there is no requirement for reflectorization.”

“The cross bucks, with reflecting tape or paint only on the front, warned of the presence of a railway crossing, but did not warn that there was a train in the crossing. The advisory sign erected by the municipality was similarly insufficient. The expert evidence adduced by the Plaintiffs and accepted by the trial judge was that an experienced railway operator would know that motorists, especially those familiar with the crossing, do not reduce their speed in response to such advisory signage. The trial judge also found that the sign was placed too close to the tracks to allow the motorist sufficient time to react and slow in order to stop before the crossing.” [¶ 39].

“Overhead lighting ( referred to at trial as ‘luminaries’) was not in use anywhere in Canada at rural crossings. The Appellants therefore seemed to have met industry standards in that respect. But, failure to illuminate this crossing was fraught with danger. Conformity with standard practice does not insulate Defendant from negligence when that practice itself is negligent. The Appellants’ own witness, Clarke Stephens, an employee of Transport Canada, testified that even back in 1993 ‘illumination of night time trains should be considered for existing crossings where a train visibility is a problem’. Mr. Stephens’ evidence focused on problems associated with highway approach gradients or curvature that ‘do not allow a vehicle or headlights to illuminate the grade crossing before the stopping distance’.”

“However, on the trial judge’s findings, in the absence of any other measure, failure to illuminate the Bothwell crossing was negligent because a motorist travelling at the expected speed would not have been able to stop in time. Defendant did not recognize the problem because they were negligent in failing to carry out any night time inspections of the Bothwell crossing. A trier of fact could draw the conclusion that failure to illuminate the crossing in some fashion fell below a reasonable standard of care even without expert evidence since ‘the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise’. [Cite]”

“The evidence concerning the reflectorization of the backs of the cross bucks is less satisfactory. The point of putting reflector tape on the back of the cross bucks is that it produces a strobe effect as a vehicle’s headlights approach a crossing occupied by a moving train. The Plaintiffs adduced evidence that reflectorization was in use in some states in the United States. On the other hand, the evidence was also relatively clear that this technology was not in use in Canada and the Plaintiffs did not adduce any evidence to the contrary. In view of the feasibility of overhead lighting, I need not pursue this issue further.” [¶¶ 43‑45].

“Thus, the only conduct by the Plaintiff that contributed to the accident was excessive speed or, as it was put by the trial judge, that the Plaintiff ‘was driving too quickly in the circumstances, given the very dark conditions of that evening’. In those circumstances, the 25% assessment of responsibility to the Plaintiff may have been somewhat excessive, but there was no cross‑appeal by the Plaintiff. It follows that I would not give effect to this ground of appeal.” [¶ 59].

Citation: Zsoldos v. Canadian Pacific Railway Co., 2009 Carswell Ont. 253, 2009 O.N.C.A. 55, 93 O. R.(3d) 321 (2009).

TERRORISM (CONFIDENTIAL INFORMATION)

In criminal case involving 1998 bombings of U.S. Embassies in East Africa, Second Circuit rules that Classified Information Procedures Act (CIPA) ruling which allowed Defendant’s attorneys with clearance to review classified terrorism information to exclusion of Defendant was not error

In May 2001, a New York federal court convicted Mohamed Sadeek Odeh and several other defendants for their involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The bombings killed more than 200 people and wounded thousands. The U.S. charged Defendants with various offenses resulting from their taking part in a conspiracy of Osama bin Ladin and the al Qaeda network.

The district court imposed life sentences, and this appeal ensued. The Defendants now claim that their convictions should be vacated and present a litany of arguments. The U.S. Court of Appeals for the Second Circuit affirms the convictions except for one of the defendants, whose case is remanded for re‑sentencing.

Among the issues presented on appeal, one involves the use of classified information. Wadih El‑Hage, a naturalized U.S. citizen, was a close associate of Osama bin Laden and the head of the Nairobi al Qaeda cell until the time of the bombings at issue. The government subpoenaed El‑Hage in September 1997 to testify in an al Qaeda investigation, and arrested him shortly thereafter.

At trial, the government introduced documents and testimony of other al Qaeda members to prove, inter alia, (1) that El‑Hage had been present at meetings where terrorists discussed the attacks on U.S. targets (2) that he had served as a financial controller for al Qaeda, (3) that he took part in the obtaining of fraudulent travel documents for al Qaeda members, and (4) that he had belonged to the Nairobi al Qaeda cell.

El‑Hage contends that the protective order entered by the District Court pursuant to the Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3, violated his Sixth Amendment right to counsel, his Fifth and Sixth Amendment rights to present a defense, and/or his Fifth and Sixth Amendment rights to be present during a crucial stage of his trial. Here, CIPA authorized the District Court to restrict access to classified information to persons with a security clearance. El‑Hages’s attorneys did receive such security clearance, but El‑Hags himself did not. On this appeal, Defendant challenges that aspect of the District Court’s order.

“Where the government seeks to restrict a criminal defendant’s ‘discovery of evidence in the interest of national security,’ [Cite], a district court must determine whether the criminal defendant’s interest in the information at issue outweighs the government’s interest in withholding it.

“As we recently explained ‘[T]he district court must first decide whether the classified information the [g]overnment possesses is discoverable. If it is, the district court must then determine whether the state‑secrets privilege applies because . . . there is a reasonable danger that compulsion of the evidence will expose matters which, in the interest of national security, should not be divulged .. . . If the evidence is discoverable but the information is privileged, the court must next decide whether the information is helpful or material to the defense, i.e., useful to counter the government’s case or to bolster a defense. . .’”

“‘... If the information in question is ‘useful `to counter the government’s case or to bolster a defense,’ ... , the government’s privilege ‘must give way . . . to [the] criminal defendant’s right to present a meaningful defense,’ ... If, however, the information in question is not material under the standards set forth in [Criminal] Rule 16(a), the government may properly withhold it from the defendant. ...’” [Slip op. 14] And even if the classified information were subject to discovery, El‑Hags would not been entitled to inspect it personally.

“[I]t is clear that any interest El‑Hags had in personally inspecting the material was insufficient to outweigh the government’s interest in avoiding unauthorized disclosures of classified information. Our review of the record indicates that unauthorized disclosure of any of the four items of classified information discussed by the parties at the CIPA hearing would, most certainly, ‘expose matters which, in the interest of national security, should not be divulged.’”

“El‑Hage’s countervailing interest, in comparison, appears slight at best. For the reasons set forth above, we detect no error – let alone abuse of discretion ... (‘Whether evidence is `helpful’ or `material to the defense’’ is a matter ‘within the district court’s discretion.’) – in the District Court’s conclusion that it is ‘difficult to envision a circumstance in which [El‑Hage’s counsel] would ask any of the [questions that counsel proposed to ask] and get a reply . . . which would require resort to the specific language of [any classified] documents.’” [Slip op. 15]. Therefore, the District Court properly restricted El‑Hage’s access to the classified information.

Citation: In re Terrorist Bombings of U.S. Embassies in East Africa. United States v. Odeh, No 01‑1535‑cr (L) (2d Cir. November 24, 2008).

WORLD TRADE ORGANIZATION

WTO Appellate Body issues Reports in Dispute over China’s discriminatory Taxation of imported Auto Parts, largely affirming Panel Report that such taxation infringes provisions of WTO regulations and policies

On December 15, 2008, the Appellate Body of the World Trade Organization (WTO) issued its reports in the dispute over China’s taxation of auto parts, and largely affirmed the prior Panel Report. The complaints allege that China’s taxes unfairly discriminate against the use of imported auto parts, and discourage auto manufacturers in China from using imported parts. They also put pressure on auto parts manufacturers to relocate manufacturing facilities to China.

The dispute began with complaints by the U.S., Canada and the European Communities. They requested WTO consultations in March and April of 2006, claiming that China’s tax measures affected their exports. The disputed tax measures included: (a) China’s Policy on Development of Automotive Industry (Order No. 8 of the National Development and Reform Commission, May 21, 2004); (b) Measures for the Administration of Importation of Automotive Parts and Components for Complete Vehicles (Decree No. 125), which entered into force on April 1, 2005); and [C]) Rules for Determining Whether Imported Automotive Parts and Components Constitute Complete Vehicles (General Administration of Customs Public Announcement No. 4, which entered into force on April 1, 2005, as well as their respective amendments and revisions.

The U.S. argued that the Chinese measures penalize manufacturers for using imported auto parts in the manufacture of vehicles for sale in China. Although China’s tariffs for auto parts are lower than those for complete vehicles, China assesses charges on imported auto parts that are effectively equal to the tariff on complete vehicles, if the imported parts exceed certain thresholds. These measures are inconsistent with the following WTO provisions: (1) Article 2 of the TRIMs Agreement; (2) Articles II (including ¶ 1) and III (including ¶¶ 2, 4 and 5) of the GATT 1994; and (3) Article 3 (including ¶¶ 1 and 2) of the SCM Agreement. Further, these tax measures nullify or impair the benefits accruing to the U.S.

Various other countries, including Japan and Mexico, joined the consultations. The consultations failed to produce a resolution, and in October 2006 the WTO Dispute Settlement Body established a single Panel to decide the matter. The Reports of the Panel were issued in July 2008.

As to the U.S. Complaint (WT/DS340), the Panel concluded that: (I) Policy Order 8, Decree 125 and Announcement 4 are inconsistent with Article III:2, first sentence of the GATT 1994 in that they subject imported auto parts to an internal charge in excess of that applied to like domestic auto parts; (ii) Policy Order 8, Decree 125 and Announcement 4 are inconsistent with Article III:4 of the GATT 1994 in that they accord imported auto parts less favorable treatment than like domestic auto parts; and (iii) Policy Order 8, Decree 125 and Announcement 4 are not justified under Article XX(d) of the GATT 1994 as measures that are necessary to secure compliance with laws or regulations which are not inconsistent with the GATT 1994.

In the alternative, assuming that the measures do fall within the scope of the first sentence of Article II:1(b) of the GATT 1994; Policy Order 8, Decree 125 and Announcement 4 are inconsistent with Article II:1(a) and Article II:1(b), first sentence of the GATT 1994 in that they accord imported auto parts treatment less favorable treatment than that provided for in the appropriate Part of China’s Schedule of Concessions; and (ii) Policy Order 8, Decree 125 and Announcement 4 are not justified under Article XX(d) of the GATT 1994 as measures that are necessary to secure compliance with laws or regulations which are not inconsistent with the GATT 1994.

With respect to CKD and SKD kits: Policy Order 8, Decree 125 and Announcement 4 are not inconsistent with Article II:1(b) of the GATT 1994; and (ii) Policy Order 8, Decree 125 and Announcement 4 are inconsistent with China’s commitment under ¶ 93 of China’s Working Party Report, which is an integral part of the WTO Agreement. The Panel recommended that China bring these inconsistent measures as listed above into conformity with its obligations under the GATT 1994 and the WTO Agreement.

In September 2008, China appealed to the Appellate Body, and the Appellate Body reports of December 15, 2008 largely affirm the Panel Reports.

As to the U.S. claims, the Appellate Body: (A) upheld the Panel’s finding that the charge imposed under the measures at issue is an internal charge within the meaning of Article III:2 of the GATT 1994, and not an ordinary customs duty within the meaning of Article II:1(b);

(B) upheld the Panel’s finding that with respect to imported auto parts in general, the measures at issue are inconsistent with Article III:2, first sentence, of the GATT 1994 in that they subject imported auto parts to an internal charge that is not applied to like domestic auto parts;

(C) upheld the Panel’s finding that with respect to imported auto parts in general, the measures at issue are inconsistent with Article III:4 of the GATT 1994 in that they accord imported auto parts less favourable treatment than like domestic auto parts;

(D) found that the Panel erred in construing the measures at issue as imposing a charge on completely knocked down (CKD) and semi‑knocked down (SKD) kits imported under Article 2(2) of Decree 125, and consequently reversed the Panel’s finding that, with respect to their treatment of imports of CKD and SKD kits, the measures at issue are inconsistent with the commitment in ¶ 93 of China’s Accession Working Party Report.

Citation: China—Measures Affecting Imports of Automobile Parts (AB‑2008‑10) (WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R), Reports of the Appellate Body ( December 15, 2008). The Reports are available at www.wto.org. The U.S. Trade Representative issued a press release dated December 15, 2008, which is available at www.ustr.gov.

United States ratifies Amendment and three Protocols to Conventional Weapons Convention. On January 21, the United States deposited with the United Nations its instruments of ratification for Protocols III, IV, and V to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed Excessively Injurious or to have Indiscriminate Effects [in force for U.S. Sept. 24, 1995 with declarations, reservations, and understandings] (CCW) and for an amendment to that Convention. Protocol III covers incendiary weapons, Protocol IV deals with blinding laser weapons, and Protocol V has to do with explosive remnants of war. Significantly, the Amendment expands the scope of the Convention so as to apply to non‑international armed conflicts. The U.S. took a leading role in negotiating these Protocols and the Amendment. Moreover, it has long conformed with the norms contained in them, and is pleased to become a party to each of them. This action reaffirms the U.S. commitment to the development and implementation of international humanitarian law. The CCW and its Protocols are part of a legal regime that regulates the use of particular types of conventional weapons that may be deemed to pose special risks of having indiscriminate effects or causing unnecessary suffering, especially to noncombatants. The CCW is a “framework” convention. States Parties to the CCW negotiate protocols within this framework to regulate specific types of weapons. States ratify each protocol separately. Citation: U.S. State Department Media Note #2009/072, Office of Spokesman, Washington, D.C., Friday, January 23, 2009.

Canada and United States have signed updated agreement on emergency management. The Canadian Foreign Minister came to Washington on December 12 on his first official visit. In addition to discussing the many important issues on the bilateral agenda, the two Secretaries signed an updated U.S.‑Canada Memorandum of Agreement on Emergency Management Cooperation. The Agreement provides a framework for the two countries to cooperate in planning for, and responding to, natural and man‑made incidents, emergencies, and disasters. This new Agreement supersedes a 1986 agreement and reflects changes in agency responsibilities, stakeholders, and terminology, among many other features. In signing the new Agreement, the two Secretaries addressed a Security and Prosperity Partnership goal of coordinating appropriate responses to catastrophic incidents in North America, a goal reiterated at the 2007 and 2008 North American Leaders’ Summits. The U.S. had signed a similarly updated U.S.–Mexico Agreement on Emergency Management with Mexican Foreign Minister Espinosa during the U.S. Secretary’s visit to Mexico on October 23, 2008. Citation: Statement # 2008/1047 by (then) Secretary of State Condoleezza Rice, Washington, D.C., Friday, December 12, 2008.