By Carol Lundberg
Michigan Lawyers Weekly
Payments end saga on 20th anniversary of Lockerbie bombing
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Jim Graves went just once to Lockerbie, Scotland. But for 20 years, he has lived a good part of his legal life there.
Sitting in his comfortable law office in a one-story brick building on the outskirts of Lansing, surrounded by snow-covered fields and nondescript strip malls, Graves thinks about that trip to Scotland and why he traveled there: to visit the memorial to the victims of a jetliner-bombing that 20 years ago Sunday killed his client’s 19-year-old daughter, Pamela Herbert.
Graves is far from Libya, which conspired in the ruthless terrorist act; he is far, too, from Washington D.C., where it literally took an act of Congress to bring the killers of Shirley Herbert’s daughter to justice.
The final chapter in the story was written this month when Shirley Herbert, now of Battle Creek, received the last payment, $2 million of her total of $10 million, from the Libyan government.
The United Nations and U.S. government pressured Libya to take responsibility for the Dec. 21, 1988, Pan Am flight 103 bombing that killed 259 passengers and crew members, and 11 people on the ground in Lockerbie. (See “Payments end saga on 20th anniversary of Lockerbie bombing” on page 23).
In February 1989, Pamela Herbert’s family hired Graves, the only Michigan lawyer to represent a claimant following the bombing.
The family chose Graves because he had represented the family of a victim of a 1979 DC-10 crash. The DC-10 had left Chicago for Los Angeles, and literally blew apart in the air, the result of a stress fracture. The crash killed all 271 passengers and two people on the ground.
The Lockerbie bombing case was much different, though.
For one thing, its site in Scotland brought into play the Warsaw Convention, a treaty enacted in the late 1920s, which governs compensation for injuries or deaths on international flights
The treaty was to protect the fledgling airline industry from having to pay unlimited claims, but by 1988, the $75,000 limit on compensation was insultingly low, Graves said.
In addition, the bombing was not a case in which investigation would be limited to local police agencies and a handful of lawyers taking depositions.
Ultimately, it drew in national and international police agencies, Scotland Yard, the FBI, the CIA, the National Transportation Safety Board, the U.S. Congress and even two U.S. presidents.
When Graves filed suit against Pan Am in July 1989, he had no idea which direction the case would go. It was a far bigger case than any one lawyer could handle, and the prospect of 270 lawyers’ filing individual suits against the airline was not going to work, he said.
So a plaintiff steering committee comprising lawyers representing a half-dozen of the victims’ families led the legal action against the airline, and Judge Thomas C. Platt in the Eastern District of New York presided over the case.
Graves was not on that steering committee. His focus, from that point forward, was to be sure Shirley Herbert’s voice was heard, to make sure she was represented and compensated.
Because Pan Am flight 103’s ultimate destination was Detroit, the explosion killed dozens of Michigan residents. Most of them chose East Coast attorneys, Graves said.
The Herberts stuck with Graves.
The early results of the legal battles were mixed.
To lift the Warsaw Convention limits, the families sued Pan Am and two of its subsidiaries for willful misconduct. The three-month trial ended with a jury finding the airline liable and awarded $9 million to $10 million to some of the victims’ families, but for the Herberts, the victory was hollow.
The money went to only the dependents of those killed, and Pamela Herbert had no dependents.
So her family could claim only loss of society and companionship, and under the Warsaw Convention, there is no right for non-dependent claimants to seek compensation for such losses, Graves said.
At first, the airline’s insurance carrier, United States Aviation Underwriters offered $100,000 per claimant to settle the cases, then raised the offer to $275,000.
Graves said: “Every attorney in this situation had to weigh the likelihood of going to trial on a non-dependency case, knowing that the law is not favorable to the claim, or going ahead to trial with an unsettled law, or delaying a trial and waiting for a Supreme Court decision which was coming down in the Korean Airlines case (after a plane headed from Alaska to Korea was shot down by a Russian missile).
“Or,” he said, “do you settle?”.
The insurance carrier settled with the Herbert family for $575,000, which Graves said at the time was the best decision they could have made, considering the laws affecting the case.
But it was nowhere near what the family was seeking after losing Pamela.
“Shirley Herbert was looking for justice,” Graves said. Accountability didn’t end with the airline.
International trial courts found that two Libyan nationals placed the bomb. The courts also ruled the two were aided by, and were in a conspiracy with, the Libyan government.
After the Pan Am cases were settled, one by one, attorneys for the claimants began coming forward to file suit against the Libyan government.
At the time Graves filed the suit in April 1998, 25 other lawyers of record were handling the case against Libya.
The plan: Sue the republic of Libya, the Libyan External Security Organization, Libyan Arab Airlines and a handful of government officials, all who were named in a U.S. presidential commission report on airline safety and terrorism.
“I had no idea how to even serve the complaint,” Graves said. “How do you serve the government of a country with which the United States didn’t even have diplomatic relations?”
He hired a translator from Michigan State University to translate the complaint into Arabic. He served the defendants by way of the Belgian Embassy in Tripoli, Libya.
Next, the Libyan government, the plaintiff steering committee and the U.S. government started negotiating.
And Graves was left to wait, far removed from the meetings in Paris, London and Washington, where the fate of the case would ultimately be decided.
He had no control over the federal Foreign Sovereign Immunities Act, which at the time did not permit any action for death claims in a terrorist attack. Congress, under then-President Bill Clinton, passed an anti-terrorism statute that made an exception to the Act, allowing for causes of action for deaths due to sabotage.
And it wasn’t up to Graves to decide whether the U.S. government or the United Nations would allow for certain Libyan demands to be met so the victims’ families could be compensated.
But it was up to him to keep the Herbert family informed of developments, and to make sure Shirley Herbert continued to be named among those seeking justice.
Ultimately, the Libyan government admitted to its role in the bombing.
Libya agreed to a $2.7 billion settlement, $10 million for each of the families of the 270 who died.
The agreement had conditions. The first $4 million was paid to each claimant once the United Nations lifted weapons and travel sanctions against Libya. That happened late in 2003.
Within months, the second payment was made to families, $4 million each once the U.S. State Department lifted trade sanctions, allowing American companies to buy or invest in Libyan oil and oil products. But the final $2 million payment to the Herbert family came close to evaporating.
Before it would pay, Libya was requiring that it be removed from the U.S. State Department’s list of states that sponsor terrorists.
When that didn’t happen, Graves said, Libya in 2006 insisted it no longer was responsible for paying the victims’ families, and it pulled its money out of the Swiss escrow account set up to make those payments.
Graves’ colleague, George Sinas, partner at the Lansing-based Sinas Dramis law firm, remembers that day.
“That was disappointing,” Sinas said. “It was like the last chapter wasn’t going to be written the way it should be. It was the period at the end of the sentence. “
Graves, known among his peers for his understated and cool manner, acknowledged that he feared his quest would have been left unfinished.
It was out of his hands. So he waited as the United States negotiated with Libya, and this summer Congress passed the Libyan Claims Resolution Act.
Under the act, signed by President Bush in October, Libya would pay up; in exchange, Libya was removed from the list of terrorist nations and granted immunity from future claims arising from the bombing, Graves said.
The payments came this month.
“This case was very historic. Nothing even comes close to this,” Graves said, but adds that he takes no credit for the way it worked out.
“No one person can claim any credit, and there was involvement by the government, and the steering committee members who dedicated years and years of effort,” he said.
“There were the families of the victims who never let up, and who stuck together to pursue justice to the very end. I’ve had some unusual cases but nothing that can compare to this one. “
Copyright 2008 Dolan Media Newswires