                                                                               September 29, 1978


78-54         MEMORANDUM OPINION FOR THE ASSISTANT
              ATTORNEY GENERAL, CRIMINAL DIVISION

              Federal Aviation Administration— Federal Bureau of
              Investigation— Air Transportation Security (49
              U .S.C . § 1357(e))— Management of Aircraft
              Hijacking (49 U .S.C . § 1472(o))


   This is in response to your inquiry for our views on several questions in
connection with the management of a commercial aircraft hijacking. You
informed us that the Federal Aviation Administration (FAA) is authorized to
direct the management of a hijacking situation while an aircraft is in flight. 49
U.S.C. § 1357(e).1 The Federal Bureau of Investigation (FBI) is responsible
under 49 U.S.C. § I472(o) for the remaining aspects of the management of a
hijacking by the Federal Government. You ask the following specific questions
about the tort liability of the United States and a commercial air carrier arising
from the activity of these Federal agencies once an aircraft has been hijacked.
   1. Assuming either some specific legislative authority or inherent power
exists—
     (a) is an air carrier liable for the actions of the U. S. Government
          taken with the consent and/or cooperation of an air carrier during
          an aircraft hijacking in progress?
     (b) is an air carrier liable for the actions taken by the U.S.
          Government without the consent and/or cooperation of an air
          carrier during an aircraft hijacking in progress?
   2. Does the FBI and/or the FAA, either under question 1(a) or 1(b) above,
have any authority to enter into a hold harmless agreement or otherwise make
certain commitments which may legally bind the U.S. Government?
   3. Is the U.S. Government liable for governmental action taken—
     (a) with the consent and/or cooperation of the air carrier during an
          aircraft hijacking in progress?
     (b) without the consent and/or cooperation of the air carrier during an
          aircraft hijacking in progress?
We answer in sequence.
  'A n aircraft is “ in flig h t" from the tim e the last door is closed after em barkation until the first
door is opened for disem barkation. 49 U .S .C . § 1357(e)(3). U nder the FAA/FBI M em orandum o f
Understanding, the FAA determ ines w hether or not an aircraft is " in flight” under this definition.

                                                  219
                                      I. Carrier Liability
    The initial issue concerns the liability of the carrier for actions of the United
 States in the management of a hijacking, whether taken with or without the
 consent of the carrier. Significant difference exists in the liability of the carrier
 for domestic and international air transportation.
    A carrier’s liability for personal injury occurring in international air
 transportation to, from, or through the United States is governed by the Warsaw
 Convention,2 as modified by the Montreal Agreement.3 In essence, these two
 international agreements provide that the carrier is liable up to $75,000 per
 person, absent negligence, for death or bodily injury on board an aircraft or in
 the process of embarking or disembarking.4 It has been uniformly held that an
 “ accident” imposing liability within the meaning of the Warsaw Convention
 extends to the intentional acts of third parties, including hijacking and
 sabotage.5 While the courts have split on the issue, district courts in New York
•and California have held that the Convention permits recovery for mental
 distress caused by a hijacking regardless of physical injury.6 Thus, a carrier
 would be strictly liable to a passenger covered by the Warsaw Convention7 for
 no more than $75,000, irrespective of fault. Its consent or lack of consent to
 acts of Federal employees would not affect this liability.
    The liability of a carrier to a passenger not covered by the Warsaw
 Convention is a matter of State tort law.8 Because we are aware of no reported
 cases involving the management of a domestic hijacking,9 we can only state
 those general principles of tort law that would apply to a carrier in responding
 to the criminal act of a third person. As a general rule, a common carrier,
 including an air carrier, has a common law duty to use the highest degree of




   249 Stat. 3000, 49 U .S .C . § 1502 note.
   3Agreem ent CAB 18900 (M ay 13, 1966), 49 U .S .C . § 1502 note.
   i See, Husserl v. Swiss Air Transport C o ., 351 F. Supp. 702 (S .D .N .Y . 1972), o ff d, 485 F. (2d)
1240 (2d Cir. 1974); Rosman v. TWA. 34 N .Y . 2d 385, 314 N .E . 2d 848 (1974).
   ’E.g., Reed v. Wiser. 555 F. (2d) 1079 (2d Cir. 1977); Krystal v. BO AC. 403 F. Supp. 1322
(C .D . Cal. 1975); Evangelinos v. TWA. 396 F. Supp. 95 (E .D .P a. 1975); Husserl v. Swiss Air
Transport Co., 351 F. Supp. 702 (S.D . N .Y . 1972), a ffd , 485 F. (2d) 1240 (2d Cir. 1973).
   6Krystal v. BOAC. 403 F. Supp. 1322 (C .D . Cal. 1975); Husserl v. Swiss A ir Transport Co.,
388 F. Supp. 1238 (S .D .N .Y . 1975); Contra, Burnett v. TWA, 368 F. Supp. 1152 (D .N .M . 1973);
Rosman v. TWA, 34 N .Y . 2d 385, 314 N .E . 2d 848 (1974).
   7W e note that under A rticle 1(3) o f the W arsaw Convention, a flight entirely within the United
States m ay be subject to the C onvention if the carrier and passenger regard it as part of a single,
undivided international transportation. A passenger on a dom estic flight with a through ticket
connecting w ith an international flight would com e under the Convention while other passengers on
the flight w ould be covered by dom estic law. See generally 1 K reindler, Aircraft Accident Law
361-63.
   6See. e.g., Gatenby v. Altoona Aviation Corp., 407 F. (2d) 443 (3d Cir. 1968); United A ir Lines
v. Wiener, 335 F. (2d) 379 (9th Cir. 1964); Garrett v. American A ir Lines, 332 F. (2d) 939 (5th
Cir. 1964).
   ’ W e have identified only one case concerning a hijacking not covered by the W arsaw Convention
which involved the carrier’s alleged negligence in preventing the incident. The case was dism issed
on the ground that p la in tiffs injuries were not proxim ately caused by the hijacking. Edwards v.
National A ir Lines, 336 So. 2d 545 (Fla. 1976).

                                                  220
care in protecting its passengers from injury,10 such as the duty to take
reasonable action to defend passengers after it has been notified that an assault
is occurring.11 What would be reasonable action in response to such an assault
depends on the particular facts of the case, and at least one commentator
indicated that the carrier’s employees have a duty to refrain from any action that
reasonably may provoke greater violence or expose passengers to greater risk of
harm.12 In the light of the high standard of prescribed care imposed upon
common carriers, we may argue that an air carrier could be liable for those of
its actions during a hijacking which unreasonably increased the risk of harm to
the passengers.
   Assuming that the carrier is liable for negligent mishandling of a hijacking,
the question presented is how the actions of the United States would affect that
liability. As a rule, the carrier would not be liable for independent Government
action which it did not request and has no power to prevent.13 When the
Government acts in conjunction with the carrier, however, the matter is more
complex.
   Several cases involve the negligence of a person acting under the command
of a law enforcement officer to render assistance in apprehending a criminal. At
common law, and by statute in many States, an individual is obliged to obey a
law enforcement officer’s request for assistance.14 However, it appears that an
individual assisting a law enforcement officer is still required to exercise the
due care appropriate to the circumstances.15 Thus, in Jones v. Melvin, it was
held that a driver engaged in pursuit under the direction of a police officer was

    l0See, e.g.. Catenby v. Altoona Aviation Corp. 407 F. (2d) 443 (3d Cir. 1968); United Air Lines
v. Wiener, 335 F. (2d) 379 (9th C ir. 1964). See generally 8 Am . Jur. “ A viation” § 68, at 689-691;
Abram ovsky, Com pensation for Passengers o f Hijacked A ircraft, 21 Buffalo L. Rev. 339, 344-45
(1972).
    1'See, e.g., Hanback v. Seaboard Coastline Railroad, 396 F. Supp. 80 (D .S .C . 1975). See
generally R estatem ent, T orts 2d § 314A (l)(a); 14 Am . Jur. “ C arriers” § 1067, at 492 n. 8; id.,
§ 1072, at 496-97.
    I25 fe N ote, Aircraft H ijacking; Crim inal and Civil A spects, 22 U. Fla. L. Rev. 72, 96 (1969);
cf., Louisville Ry. Co. v. Don, 161 Ky. 759, 171 S .W . 438 (1914); Miller v. Mills. 257 S .W . 2d
520 (Ky. App. 1953).
   There are a num ber o f cases in the related area o f injury to business invitees in the course o f an
armed robbery. The courts have split on w hether it is reasonable under the circum stances for a
storekeeper to use force against a robber or to sum m on the police when the m erchant’s action
results in injury to a custom er. Compare, Genovay v. Fox, 29 N .J. 436, 149 A. 2d 212 (1959);
Yingst v. Pratt. 139 Ind. App. 695, 220 N .E . 2d 276 (1966); Helms v. Harris, 281 S.W . 2d 770
(Tex. Civ. App. 1955) with Kelly v. Kroger Co.. 484 F. (2d) 1362 (10 Cir. 1973). In the Kelly
case, the court held that it was a question for a jury to decide w hether a .stare m anager was negligent
in sum m oning the police by a silent alarm , resulting in a gun battle that killed a customer.
   W e also note a few cases where bank custom ers have been injured when em ployees refuse to
obey a robber’s instructions. T hese have held that the em ployees acted reasonably in not obeying a
crim inal dem and, even when the robber directly threatened a custom er. Boyd v. Racine Currency
Exchange, Inc., 56 III. 2d 95, 306 N .E . 2d 39 (1974); Noll v. Marian, 347 Pa. 213 (1943).
    13Northern Railway Co. v. Page, 274 U .S . 65, 74-75 (1927); England v. Kinney, 272 Ky. 33,
113 S.W . 2d 838 (1938).
   l4See, generally. United States v. New York Telephone Co., 434 U .S . 159, 175 N. 24 (1977);
Babington v. Yellow Taxi C orp. , 250 N .Y . 14, 164 N .E . 726 (1928).
   ,sJones v. Melvin, 199 N .E . 392 (M ass. 1936). See also, Balinovic v. Star Evening Newspaper
Co., 133 F. (2d) 505, 507 (Rutledge, J. dissenting); Babington v. Yellow Taxi Corp., 250 N .Y . 14,
16, 164 N .E . 726, 727 (1928) (dictum ).

                                                  221
negligent because he operated the vehicle at a faster speed than his ability to
maintain control. We are aware of no common law authority excusing an
individual’s negligence, even when acting under the direction of law enforce­
ment officers.16
   Federal law governing the operation of aircraft has reaffirmed this principle.
As a general rule, the pilot in command of an aircraft is the final authority for
its operation, and instructions from Government air traffic controllers do not
relieve him of his responsibility.17 In 1974, Congress enacted 49 U.S.C.
§ 1357(e)(2), which provides that the FAA “ shall have exclusive responsibility
for the direction of any law enforcement activity affecting the safety of persons
aboard aircraft in flight” involved in a hijacking.18 The legislative history
expressly allocates responsibility between the FAA and FBI but does not
change the paramount authority of the pilot. Representative Kuykendall, the
manager of the bill in the House, explained it to the House as follows:
      The gentleman . . . has asked possibly one of the most important
      questions we have discussed in this bill. That is actually, not so much
      what the jurisdiction of the FBI and FAA may be, but what the
     jurisdiction of the air crew is . . . . [W]e decided that the pilot— from
      the moment he boards the aircraft until the moment he departs, is in
      charge. The passengers or the crew may be gone during this period.
      This is in the report, it is not in the law, but unless the ground forces
      have reason to know that this pilot is disabled and is unable to operate
      the aircraft, then he is in charge and the aircraft cannot be disabled
      from outside unless permission is given.19
Similarly, the Senate committee report states:
      Finally, of course, the aircraft commander is the person who must
      acquiesce to the hijacker in the execution of his demands. We are
      concerned that in some instances the aircraft commander has not been
      consulted or been given an opportunity to make input into decisions
      being made on how to deal with a hijacking in progress . . . . The
      aircraft commander must not be ignored because, as is usually the
      case, the ultimate safety of all aboard during a hijacking incident is
     dependent upon the skill, courage, and decisions of the aircraft
     commander.20
Thus, Federal law enforcement officials were not authorized to direct the pilot
in command in the management of a hijacking. While they may request or
   ‘‘ A ctions w hich could ordinarily be considered negligence m ay be found to be consistent with
due care in assisting law enforcem ent officers. See, Babington v. Yellow Taxi Corp., 250 N .Y . 14,
16, 164 N .E. 726, 727 (1928) (dictum ), depending on the facts o f the particular case.
   I714 C FR § 9 1 .3 (a), see, e.g., American Airlines v. United States, 418 F. (2d) 180 (5th Cir.
1969); Spaulding v. United States, 455 F. (2d) 222 (9th C ir. 1972); In re Air Crash Disaster at New
Orleans (Moisant Field), 422 F. Supp. 1166 (M .D . T enn. 1975), o ff d, 544 F. (2d) 270 (6th Cir.
1976).
  l8An aircraft is “ in flight” from the tim e when all external doors are closed after em barkation
until “ one such door is opened for disem barkation.” 49 U .S .C . § 1357(e)(3). See note I , supra.
  ,9120 Cong. Rec. 6521 (1974), see H. Rept. 93-885, 93rd C o n g ., 2d sess., at 23.
  “ S. Rept. 93-13, 93rd C o n g ., 1st sess., at 20.

                                               222
advise that he should take action, final decisionmaking remains with him.
Under general principles of respondeat superior, the carrier would be liable for
any negligent decision he makes.
   A carrier, therefore, would be strictly liable for up to $75,000 in damages per
person for injuries in a hijacking, covered by the Warsaw Convention,
regardless of the actions of the United States. To persons not covered by the
Warsaw Convention, the carrier would be liable for its own negligence in the
handling of a hijacking. While the carrier and its employees may have a legal
duty to cooperate with Federal law enforcement officials in managing a
hijacking, the available case law indicates that the carrier would nevertheless be
liable for negligence in the course of such cooperation. The legislative history
of 49 U.S.C. § 1357(e)(2) clearly reserves final authority to the pilot in
command, and the advice or suggestions of Federal law enforcement officials
would not relieve the carrier of liability for the pilot’s negligence.

                                II. Indemnity Agreements
   You further inquire whether the FAA or the FBI has authority to indemnify a
carrier for its liability in connection with the management of a hijacking
incident. We conclude that, with certain limited exceptions, they do not.
   While the Constitution does not preclude the Government from entering into
an indemnity contract, the Anti-Deficiency Act, R.S. § 3732, 41 U.S.C. §11,
prohibits a contractual arrangement by the Government “ unless the same is
authorized by law or is under an appropriation adequate to its fulfillment.” A
general contract of indemnity, by its nature, would obligate the Government to
pay an indefinite sum in the event that a hijacking incident resulted in
widespread personal injury or property damage. The Comptroller General has
ruled that indemnity agreements of this type are void21 unless authorized by an
express statute. We have been unable to find any statute that would specifically
authorize the FBI or FAA to enter into an open-ended indemnity agreement.
   However, an indemnity agreement for a specific sum may be authorized by
an agency’s general appropriation. The Comptroller General upheld the validity
of indemnity clauses in which the potential liability of the United States was
limited to a specific amount not exceeding the available appropriation.22 The
rationale is that a general appropriation is available for any expense reasonably
necessary to accomplish its purpose, unless prohibited by law. Since the
indemnity in question would be for a definite sum not exceeding the
appropriation, it is permitted by 41 U.S.C. § 11 as being under “ an appropria­
tion adequate for its fulfillment.” 23 The general appropriations for the FAA and
FBI would be available if it were necessary to obtain the cooperation of a
carrier in the management of a hijacking.24

  2i35 Comp. Gen. 85; 16 Com p. G en. 803; 8 Com p. G en. 647; 7 Com p. G en. 507.
  22See 54 Comp. G en. 824; 42 Com p. G en. 708.
  23See 42 Com p. G e n .'708, 709.
  2iSee 49 U .S .C . §§ 1357(e), 1472(o); Departm ent o f Transportation Appropriation A ct, 1978,
91 Stat. 404; Departm ent o f Justice Appropriation A ct, 1978, 91 Stat. 425; cf. 42 Com p. G en. 708,
709.

                                                223
   We note, however, that 31 U.S.C. § 665(a) places two further restrictions on
a permissible indemnity agreement. The agreement, in addition to being limited
to a definite maximum, must provide (1) that only the amount of appropriated
funds actually available at the time of loss will be paid, and (2) that it creates no
obligation to appropriate additional funds.25 Therefore, the FAA or FBI may
indemnify a carrier only for the lesser of a definite amount within their general
appropriations or the funds actually on hand at the time of a loss.

                          III. Liability of the United States
   Your third question is whether the United States would be liable for any
Government action taken in the management of a hijacking, either with or
without the concurrence of the carrier. This resolves itself into two separate
problems: direct tort liability for personal injury or property damage and
liability to the carrier for contribution or indemnity as a joint tortfeasor.
   Absent any agreement with the carrier, liability of the United States would be
governed by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80.
Under the Act, the United States is liable for the negligence of its employees in
the same manner as a private person according to the law of the State where the
negligent act or omission occurred, unless it has retained its sovereign
immunity under one of the exceptions in 28 U.S.C. § 2680. See, Laird v.
Nelms, 406 U.S. 797 (1972); Richards v. United States, 369 U.S. 1,11 (1962);
Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957). Thus, the issues in
any tort claim against the United States arising from managing a hijacking
would be, first, has the Government retained its sovereign immunity and, if
not, did it show due care in the handling of the incident?
   Sovereign immunity is retained by 28 U.S.C. § 2680(a) for:
      Any claim . . . based upon the exercise or performance or the failure
      to exercise or perform a discretionary function or duty on the part of a
      federal agency or an employee of the Government, whether or not the
      discretion involved be abused.
In Dalehite v. United States, 346 U.S. 15, 35 (1953), the Supreme Court
defined the “ discretionary function” exception to include “ initiation of
programs or activities” and also “ determinations made by executives or
administrators in establishing plans, specifications, or schedules of operation.”
The boundary drawn by the exception is between “ decisions made at a
planning rather than at an operational level.” Id., at 42. The Court clarified this
decision in Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955), and
Rayonier, Inc. v. United States, 352 U.S. 315, 318 (1957), by holding the
Government liable for its negligent conduct. However, the line between the
“ policy” and “ operational” levels of decisionmaking is not clear, and the
courts tend to resolve doubts in favor of liability.26


   2554 C om p. G en. 824.
   2<’See, e.g., Driscoll v. United States, 525 F. (2d) 136, 139 (9th Cir. 1975); Downs v. United
States, 522 F. (2d) 990, (6th Cir. 1975).

                                              224
   In the conduct of law enforcement activities, the mere exercise of judgment
by a Federal officer does not invoke the discretionary-function exception. The
courts have distinguished between policy and operational decisions in law
enforcement on the basis of several related factors: the status and authority of
the individual making the decision, the existence of regulations or guidelines
governing his actions, and the precedential effect his decision would have for
other law enforcement officers. Thus, decisions made by Cabinet and sub-
Cabinet level officers that a particular situation warranted the use of force to
suppress disorder have been held to be matters of policy.27 Similarly, a decision
by subordinate officials to use force in accordance with policy determined at a
higher level is within the discretionary-function exception.28 In contrast,
Downs v. United States, 522 F. (2d) 990, 998 (6th Cir. 1975), held that a
decision by an FBI Assistant Special Agent in Charge to use force rather than
outwait a hijacker was operational in nature. The court found it significant that
the agent acted contrary to written FBI policy. It distinguished the cases arising
out of the disorders at the University of Mississippi29 on the ground that the
decision to use force there was an “ exemplary” one made by the Deputy
Attorney General in a relatively unprecedented situation that “ was meant to
influence and did inevitably guide the actions of other government officials
faced with similar situations.” 522 F. (2d) at 998.
   Based on these decisions, we believe that the United States would not be
liable for negligence in the formulation of general policy for the management of
hijackings, including, for example, the circumstances in which force may be
used, the circumstances in which a hijacker’s demands should be met, and the
relative importance of capturing the hijacker and protecting the safety of
innocent persons. Written instructions for general guidance fall clearly within
the discretionary-function exception. Ad hoc decisions and interpretation of
written policy made by senior FAA or FBI officials generally responsible for
hijackings or by their superiors would most likely be considered policy matters.
Decisionmaking 'by subordinate officials, however, would more likely be
considered operational so that the United States would be responsible for the
negligence of these officials in their decisions in the management of a
hijacking. In any case, this distinction has not been clearly established and the
facts of each case would determine whether decisions were considered policy
matters or were made on an operational level.



   21United Slates v. Faneca, 332 F. (2d) 872, 874 (5th Cir. 1964) (Deputy Attorney G eneral’s
decision to use tear gas to disperse a m ob that was obstructing admission to the U niversity of
Mississippi); Smith v. United States, 330 F. Supp. 867, 868 (E .D . M ich. 1971) (decision by
Secretaries o f Defense and Arm y to federalize the M ichigan National Guard for the 1967 Detroit
riots); cf.. Monarch Ins. Co. v. United Slates, 353 F. Supp. 1249, 1256-60 (D .D .C . 1973), o ff d
497 F. (2d) 684 (D .C . Cir. 1974) (decision by Secretary of the A rm y not to use deadly force in the
1968 District o f C olum bia riots).
   2sNichols v. United States, 236 F. Supp. 60 (N .D . M iss. 1964) (use o f tear gas at the U niversity
of M ississippi).
   29United States v. Faneca, 332 F. (2d) 872 (5th Cir. 1964); Nichols v. United States, 236 F.
Supp. 260 (N .D . M iss. 1964).

                                                225
   In a case involving “ operational” decisions, the standard level of required
care by FAA or FBI agents will be governed by the law of the State where the
incident occurred. However, there are several elements of the opinion in Downs
v. United States, 522 F. (2d) 990, 999-1003 (6th Cir. 1975), which applied
Florida law in a way that may govern the application of the law in other States.
The first element is that law enforcement personnel will be required to exercise
the prudent judgment that an individual with the requisite special training
should have.30 Failure to follow written FBI or FAA procedures for handling
these incidents will likely be considered strong evidence of negligence. Finally,
the Government will be expected to maximize the safety of passengers to the
extent consistent with the aim of apprehending the hijacker and resisting his
unreasonable demands.31 As the Sixth Circuit summarized the standard of care,
522 F. (2d) at 1003:
      Where one trained in the field of law enforcement is called upon to
      make a judgment which may result in the death of innocent persons,
      he is required to exercise the highest degree of care commensurate
      with all facts within his knowledge. Such care must be exercised in
      order to ensure that undue loss of life does not occur. [Emphasis
      added.]
This, we believe, means that when the life of a third party is at stake, due care
will consist of trying to outwait a hijacker until he presents an imminent threat
to the passengers. The facts of the particular case would determine the point at
which intervention would be appropriate.
   Finally, we note the possibility that both the carrier and the United States
would be found negligent with respect to passengers or third persons.32 In that
event, liability for contribution or indemnity between the United States and the
carrier would depend on the substantive law of the State where the negligence
occurred.33

                                                            L eon U   lm an

                                               Deputy Assistant Attorney General
                                                             Office o f Legal Counsel




  30See generally Restatem ent, T orts 2d § 289(b), com m ent m .; § 299, com m ent f.
  2'See generally Restatem ent, T orts 2d § 292, com m ent c.; § 302B , com m ent e.
  32C /., Ingham v. Eastern A ir Lines, Inc., 373 F. (2d) 227 (2d Cir. 1967); United Air Lines v.
Wiener, 335 F. (2d) 379 (9th Cir. 1964).
  33See, e.g.. United States v. Yellow Cab Co., 340 U .S. 543 (1951); Certain Underwriters at
Lloyd’s v. United States, 511 F. (2d) 159 (5th C ir. 1975); Ingham v. Eastern A ir Lines, Inc., 373
F. (2d) 227 (2d Cir. 1967).

                                              226
