ALEJANDRE v. REPUBLIC OF CUBA
996 F.Supp. 1239 (1997)
Marlene ALEJANDRE, individually and as personal representative of the Estate of Armando Alejandre, deceased, Plaintiff, v. The REPUBLIC OF CUBA; the Cuban Air Force, Defendants. Mirta MENDEZ, as personal representative of the Estate of Carlos Alberto Costa, deceased, Plaintiff, v. The REPUBLIC OF CUBA; the Cuban Air Force, Defendants. Mario T. DE LA PEÑA and Miriam de la Peña, individually and as personal representatives of the Estate of Mario M. de la Peña, deceased, Plaintiff, v. The REPUBLIC OF CUBA; the Cuban Air Force, Defendants.
Nos. 96-10127-CIV, 96-10128-CIV.
United States District Court, S.D. Florida.
December 17, 1997.
Roberto Martinez, Greenberg Traurig HoffmanLipoff Rosen & Quentel, Miami, FL, Aaron Samuel Podhurst, Victor Manuel Diaz, Jr., Xavier Martinez, Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin, Miami, FL, for Plaintiff.
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II. Findings of Fact
While the two planes were still north of the 24th parallel, the Cuban Air Force launched two military aircraft, a MiG-29 and a MiG-23, operating under the control of
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Cuba’s military ground station. The MiGs carried guns, close range missiles, bombs, and rockets and were piloted by members of the Cuban Air Force experienced in combat. Excerpts from radio communications between the MiG-29 and Havana Military Control detail what transpired next:
MiG-29 OK, the target is in sight; the target is in sight. It's a small aircraft. Copied, small aircraft in sight. MiG-29 OK, we have it in sight, we have it in sight. MiG-29 The target is in sight. Military Control Go ahead. MiG-29 The target is in sight. Military Control Aircraft in sight. MiG-29 Come again? MiG-29 It's a small aircraft, a small aircraft. MiG-29 It's white, white. Military Control Color and registration of the aircraft? Military Control Buddy. MiG-29 Listen, the registration also? Military Control What kind and colour? MiG-29 It is white and blue. MiG-29 White and blue, at a low altitude, a small aircraft. MiG-29 Give me instructions. MiG-29 Instructions! MiG-29 Listen, authorize me ... MiG-29 If we give it a pass, it will complicate things. We are going to give it a pass. Because some vessels are approaching there, I am going to give it a pass. MiG-29 Talk, talk. MiG-29 I have it in lock-on, I have it in lock-on. MiG-29 We have it in lock-on. Give us authorization. MiG-29 It is a Cessna 337. That one. Give us authorization, damn it! Military Control Fire. MiG-29 Give us authorization, damn it, we have it. Military Control Authorized to destroy. MiG-29 I'm going to pass it.
Military Control Authorized to destroy. MiG-29 We already copied. We already copied. Military Control Authorized to destroy. MiG-29 Understood, already received. Already received. Leave us alone for now. Military Control Don't lose it. MiG-29 First launch. MiG-29 We hit him! Damn! We hit him! We hit him! We retired him! MiG-29 Wait to see where it fell. MiG-29 Come on in, come on in! Damn, we hit. F____s! MiG-29 Mark the place where we took it out. MiG-29 We are over it. This one won't mess around anymore. Military Control Congratulations to the two of you. MiG-29 Mark the spot. .... MiG-29 We're climbing and returning home. Military Control Stand by there circling above. MiG-29 Over the target? Military Control Correct. MiG-29 S — t, we did tell you, Buddy. Military Control Correct, the target is marked. MiG-29 Go ahead. Military OK, climb to 3200, 4000 meters above the destroyed target and maintain economical speed. MiG-29 Go ahead. Military Control I need you to stand by ... there. What heading did the launch have? MiG-29 I have another aircraft in sight. MiG-29 We have another aircraft. Military Control Follow it. Don't lose the other small aircraft. MiG-29 We have another aircraft in sight. It's in the area where (the first aircraft) fell. It's in the area where it fell. MiG-29 We have the aircraft in sight.
Military Control Stand by. MiG-29 Comrade, it's in the area of the event. MiG-29 Did you copy? MiG-29 OK, this aircraft is headed 90 degrees now. MiG-29 It's in the area of the event, where the target fell. They're going to have to authorize us. MiG-29 Hey, the SAR isn't needed. Nothing remains, nothing. Military Control Correct, keep following the aircraft. You're going to stay above it. MiG-29 We're above it. Military Control Correct ... MiG-29 For what? MiG-29 Is the other authorized? Military Control Correct. MiG-29 Great. Let's go Alberto. MiG-29 Understood; we are now going to destroy it. Military Control Do you still have it in sight? MiG-29 We have it, we have it, we're working. Let us work. MiG-29 The other is destroyed; the other is destroyed. Fatherland or death, s — t! The other is down also.
The international community moved quickly and in unison to condemn the murders. The United Nations Security Council, the
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European Union, and the International Civil Aviation Organization (“ICAO”) were among the many to issue statements deploring Cuba’s excessive use of force. The French Ministry of Foreign Affairs stated that “France regrets the use of such brutal methods which nothing can justify, regardless of the circumstances, toward aircraft presenting no threat to the safety of the population.” Statement of the Spokesperson of the French Ministry of Foreign Affairs (Feb. 26, 1996) (Pls.’ Ex. 26(b)). Following an extensive investigation, the ICAO issued a report in June 1996 concluding that the planes were shot down over international waters. The ICAO also adopted a resolution reaffirming the prohibition of the use of weapons against civilian aircraft in flight and declaring such practices incompatible with elementary considerations of humanity and the dictates of customary international law.
28 U.S.C.A. § 1605(a)(7).4In addition, section 1605(a)(7) imposes the following requirements:
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(1) the U.S. must have designated the foreign state as a state sponsor of terrorism pursuant to section 6(j) of the Export Administration Act of 1979; (2) the act must have occurred outside the foreign state; and (3) the claimants and victims must have been U.S. nationals at the time the acts occurred.5Id. § 1605(a)(7)(A)-(B).
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Having established an exception to foreign sovereign immunity, Plaintiffs base their substantive cause of action on a different statute, also enacted in 1996, entitled Civil Liability for Acts of State Sponsored Terrorism, Pub.L. 104-208, § 589, 110 Stat. 3009 (codified at 28 U.S.C.A. § 1605 note (West.Supp.1997)) (“Civil Liability Act”). The Civil Liability Act creates a cause of action against agents of a foreign state that act under the conditions specified in FSIA section 1605(a)(7). It thus serves as an enforcement provision for acts described in section 1605(a)(7). If Plaintiffs prove an agent’s liability under this Act, the foreign state employing the agent would also incur liability under the theory of respondeat superior. See Skeen v. Federative Republic of Brazil,566 F.Supp. 1414, 1417 (D.D.C.1983) (explaining that section 1605(a)(5) “is essentially a respondeat superior statute, providing an employer (the foreign state) with liability for certain tortious acts of its employees.”). Because, as detailed above, Plaintiffs have presented compelling evidence that all of the relevant statutory requirements have been met, the Court finds that both the Cuban Air Force and Cuba are liable for the murders of Alejandre, Costa, and De la Peña. Cf. Rafidain, 15 F.3d at 242-43 (finding evidence sufficient to justify default judgment against foreign governmental entities); De Letelier v. Republic of Chile,502 F.Supp. 259, 266 (D.D.C.1980) (finding evidence sufficient to justify default judgment against Republic of Chile for murder of Chilean ambassador).
To the Estate of ARMANDO ALEJANDRE: for loss of future income earning potential $1,326,525 for loss of household services 206,388 Estate of ARMANDO ALEJANDRE: Marlene Alejandre (Wife) for mental pain and suffering 7,500,000
for loss of companionship and protection 500,000 Marlene Victoria Alejandre (Daughter) for mental pain and suffering 7,500,000 for loss of parental companionship and guidance 500,000 ___________ Total $17,532,913 To the Estate of CARLOS ALBERTO COSTA: for loss of future income earning potential $ 5,130,704 Estate of CARLOS ALBERTO COSTA: Osvaldo Costa (Father) for mental pain and suffering 5,000,000 for loss of society and companionship 500,000 Mirta Costa (Mother) for mental pain and suffering 5,000,000 for loss of society and companionship 500,000 ___________ Total $16,130,704 To the Estate of MARIO M. DE LA PEÑA: for loss of future income earning potential $5,264,294 Estate of MARIO M. DE LA PEÑA: Mario de la Peña (Father) for mental pain and suffering 5,000,000 for loss of society and companionship 500,000 Miriam de la Peña (Mother) for mental pain and suffering 5,000,000 for loss of society and companionship 500,000 ___________ Total 16,264,294
The purpose of punitive, or exemplary, damages has traditionally been twofold. First, they may serve as a tool to punish truly reprehensible conduct. See Paul v. Avril,901 F.Supp. 330, 336 (S.D.Fla. 1994) (observing that exemplary damages are appropriate when defendant’s actions are “malicious, wanton, and oppressive”); Michael L. Rustad, How the Common Good Is Served by the Remedy of Punitive Damages, 64 Tenn. L.Rev. 793, 799 (1997) (noting that punitive damages combat “willful and gross disregard of public safety”). In this way, the aggrieved plaintiff is given a socially acceptable avenue of retaliation, and, perhaps more importantly, the “punitive nature of exemplary awards also affords society a means of retribution for wrongs against the community interest.” Judith Camile Glasscock, Emptying the Deep Pocket in Mass Tort Litigation,18 St. Mary’s L.J. 977, 982 (1987). Punitive damages are also an appropriate remedy in international law. As the Supreme Court has observed, “[A]n attack from revenge and malignity, from gross
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abuse of power, and a settled purpose of mischief … may be punished by all the penalties which the law of nations can properly administer.” The Marianna Flora, 24 U.S. (11 Wheat.) 1, 41, 6 L.Ed. 405 (1825).
Id. at 866 (internal citation omitted). These considerations led the court to assess $5 million in punitive damages against the individual general for each plaintiff. Courts facing similar claims under the ATCA have followed Filartiga’s lead and awarded sizeable punitive damages.10See Beth Stephens & Michael Ratner, International Human Rights Litigation in U.S. Courts213-14 (1996). The TVPA, which was enacted to enhance the remedies available under the ATCA, also seems to contemplate punitive damages
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awards. See Xuncax, 886 F.Supp. at 199-200.
Cuba’s extrajudicial killings of Mario T. De la Peña, Carlos Alberto Costa, and Armando Alejandre violated clearly established principles of international law. More importantly, they were inhumane acts against innocent civilians. The fact that the killings were premeditated and intentional, outside of Cuban territory, wholly disproportionate, and executed without warning or process makes this act unique in its brazen flouting of international norms. There appears to be no precedent for a military aircraft intentionally shooting down an unarmed, civilian plane.13
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The Court must therefore fashion a remedy consistent with the unprecedented nature of this act. See Filartiga, 577 F.Supp. at 865 (“The nature of the acts is plainly important.”). The Court finds that Plaintiffs have proven their clear entitlement to punitive damages. Based upon this record, the Court would be shirking its duty were it to refrain from entering a substantial punitive damage award for the dual purpose of (1) expressing the strongest possible condemnation of the Cuban government for its responsibility for commission of this monstrous act, and (2) deterring Defendants from ever again committing other crimes of terrorism.
The total compensatory and punitive damages herewith awarded to Plaintiffs are $187,627,911, for which sum execution may issue forthwith against the Defendants Cuba
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and the Cuban Air Force and against any of their assets wherever situated.
13. The only conceivable parallel may be the shootdown of KAL Flight 007 by the former Soviet Union in 1983. That incident can be distinguished, however, by two keys facts: First, the Soviets were arguably under the impression that the KAL plane was a military aircraft, and, second, the plane had strayed into Soviet airspace. Neither of these facts is true in this case. Despite the fact that the KAL plane was in Soviet airspace, a commentator studying the incident concluded that the lethal use of force was completely inappropriate: “`Exclusive sovereignty’ over airspace above a state was not enough to justify employing force.” Craig A. Morgan, The Shooting of Korean Air Lines Flight 007: Responses to Unauthorized Aerial Incursions, in International Incidents: The Law that Counts in World Politics,202, 210 (W. Michael Reisman & Andrew R. Willard eds., 1988). International consensus is clear:[W]hen measures of force are employed to protect territorial sovereignty, whether on land, on sea, or in the air, their employment is subject to the duty to take into consideration the elementary obligations of humanity, and not to use a degree of force in excess of what is commensurate with the reality and gravity of the threat (if any).
Id. at 212-13.