$13.5 Million Default Judgment Against Iran for Passenger Tortured in 1984 Kuwait Airways Hijacking

On December 3, 1984, Charles Kapar boarded Kuwait Airways flight 221 at Kuwait City, bound for Karachi, Pakistan. He was an auditor with the Agency for International Development, stationed in Karachi, and was returning from an assignment in Sanaa, Yemen. After a refueling stop in Dubai, hijackers took over the plane and forced it to land in Tehran.

The passengers were held at the Tehran airport for six days. Four Americans were aboard. Two of them were killed. Kapar and one other American were tortured and beaten. Kapar, then 57, told reporters after his release that he was kept tied up and was struck repeatedly in the head, face, ribs and jaw, and that a gun butt opened his eye and his head. UPI reported that he and the other surviving American said they had also been kicked and burned with cigarettes. He came out with a blackened left eye and a bandaged gash on his head, and said he had been having dizzy spells since the first day. The court later described his injuries as serious.

Kapar first sued Kuwait Airways, Pan American World Airways, whose sales agent had sold him the ticket, and Middle East Airlines in federal court in Washington, represented by Roger C. Johnson of Koonz, McKenney & Johnson. In 1987 the district court held that the Warsaw Convention did not allow the claims against Kuwait Airways and Pan Am to be brought in an American court. Marc Fiedler argued the appeal, and in 1988 the D.C. Circuit affirmed that dismissal, sending only a separate claim against Middle East Airlines back to the trial court. The claim against the airline that flew the plane was over, but the hijacking itself was not finished as a legal matter.

On January 16, 2002, Kapar filed a new suit in the U.S. District Court for the District of Columbia, this time against the Islamic Republic of Iran and the Iranian Ministry of Information and Security. He relied on the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act, which then allowed damages claims against countries the State Department had designated as sponsors of terrorism. Andrew Cohen of the firm, by then Koonz, McKenney, Johnson, DePaolis & Lightfoot, appeared for him.

Neither defendant ever entered an appearance. In September 2004 the court entered a default judgment of $13.5 million for Kapar, finding Iran and its ministry responsible for the hijacking.

As of 2015, the court found, Iran had paid no part of it. Kapar did recover almost $2.2 million under a separate federal law that pays part of certain terrorism judgments, which left about $11.3 million of the judgment outstanding.

Congress replaced the old terrorism exception with a new statute in 2008, and the new law made it easier to reach Iranian assets. In 2015 Kapar asked the court to treat his 2004 judgment as though it had been entered under the new provision. Judge Christopher Cooper denied that request, holding that the D.C. Circuit limits the new statute to claims that were still pending when it passed. The same ruling granted Kapar an order under 28 U.S.C. 1610(c) allowing him to attach and execute on Iranian property to collect the unpaid balance, after finding that service had been completed in 2009 and that more than a decade had passed since judgment.