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 flight" from the time the last door is closed after embarkation until the first 

door is opened for disembarkation. 49 U .S.C . § 1357(e)(3). Under the FAA/FBI M emorandum of 

Understanding, the FAA determines whether or not an aircraft is "in flight” under this definition.

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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.

3 Agreement CAB 18900 (M ay 13, 1966), 49 U .S.C . § 1502 note.

iSee, Husserl v. Swiss Air Transport Co., 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 .Pa. 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 Air 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).

7We note that under Article 1(3) o f the W arsaw Convention, a flight entirely within the United 

States may be subject to the Convention if the carrier and passenger regard it as part of a single, 

undivided international transportation. A passenger on a domestic flight with a through ticket 

connecting with an international flight would come under the Convention while other passengers on 

the flight would be covered by domestic law. See generally 1 Kreindler, Aircraft Accident Law

361-63.

6 See. e.g., Gatenby v. Altoona Aviation Corp., 407 F. (2d) 443 (3d Cir. 1968); United Air Lines

v. Wiener, 335 F. (2d) 379 (9th Cir. 1964); Garrett v. American Air Lines, 332 F. (2d) 939 (5th 

Cir. 1964).

’We have identified only one case concerning a hijacking not covered by the Warsaw Convention 

which involved the carrier’s alleged negligence in preventing the incident. The case was dismissed 

on the ground that p lain tiffs injuries were not proximately caused by the hijacking. Edwards v. 

National Air Lines, 336 So. 2d 545 (Fla. 1976).

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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 Cir. 1964). See generally 8 Am. Jur. “ Aviation” § 68, at 689-691; 

Abramovsky, Compensation for Passengers o f Hijacked Aircraft, 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 Restatement, Torts 2d § 314A (l)(a); 14 Am. Jur. “ C arriers” § 1067, at 492 n. 8; id.,

§ 1072, at 496-97.

I25 fe Note, Aircraft Hijacking; Criminal and Civil Aspects, 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 number of cases in the related area of injury to business invitees in the course of an 

armed robbery. The courts have split on whether it is reasonable under the circumstances for a 

storekeeper to use force against a robber or to summon the police when the m erchant’s action 

results in injury to a customer. 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 whether a .stare manager was negligent 

in summoning the police by a silent alarm , resulting in a gun battle that killed a customer.

We also note a few cases where bank customers have been injured when employees refuse to 

obey a robber’s instructions. These have held that the employees acted reasonably in not obeying a 

criminal dem and, even when the robber directly threatened a customer. 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 Corp., 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).

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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 enforcement 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

‘‘ Actions which could ordinarily be considered negligence may 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 of the particular case.

I714 CFR § 91.3(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 Cir. 1972); In re Air Crash Disaster at New

Orleans (Moisant Field), 422 F. Supp. 1166 (M .D . Tenn. 1975), o ff d, 544 F. (2d) 270 (6th Cir.

1976).

l8An aircraft is “ in flight” from the time when all external doors are closed after embarkation 

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 ong., 2d sess., at 23.

“ S. Rept. 93-13, 93rd C ong., 1st sess., at 20.

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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 appropriation 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 Comp. Gen. 803; 8 Comp. Gen. 647; 7 Comp. Gen. 507.

22See 54 Comp. Gen. 824; 42 Comp. Gen. 708.

23See 42 Comp. G e n .'708, 709.

2iSee 49 U .S.C. §§ 1357(e), 1472(o); Department of Transportation Appropriation A ct, 1978, 

91 Stat. 404; Department of Justice Appropriation Act, 1978, 91 Stat. 425; cf. 42 Comp. Gen. 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 Comp. Gen. 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 subCabinet 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 mob that was obstructing admission to the University of

Mississippi); Smith v. United States, 330 F. Supp. 867, 868 (E.D . Mich. 1971) (decision by

Secretaries of Defense and Army 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 Army not to use deadly force in the

1968 District of Columbia riots).

2sNichols v. United States, 236 F. Supp. 60 (N .D . Miss. 1964) (use of tear gas at the University 

of Mississippi).

29United States v. Faneca, 332 F. (2d) 872 (5th Cir. 1964); Nichols v. United States, 236 F. 

Supp. 260 (N.D. Miss. 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 e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

30See generally Restatement, Torts 2d § 289(b), comment m .; § 299, comment f.

2'See generally Restatement, Torts 2d § 292, com m ent c.; § 302B, comment e.

32C /., Ingham v. Eastern Air 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 Cir. 1975); Ingham v. Eastern Air Lines, Inc., 373 

F. (2d) 227 (2d Cir. 1967).

226