What Is a War?

The suspicious pilot had personally searched the two men before the takeoff from Amsterdam, but once the Pan American 747 was aloft they pulled pistols from crotch holsters and announced that they were hijacking the plane on behalf of the Popular Front for the Liberation of Palestine. They ordered the plane to Cairo and eventually blew it up. That was in September 1970. While worrying about the series of Arab hijackings, Pan American also had a more mundane problem: Who was going to pay for its $24,288,759 plane? Was the 747 covered by the regular "all-risk" insurance issued by a group of 30 companies? Or were the Palestinians at war --and if so, was the plane covered by special war-risk insurance (in which case the U.S. Government would have to pay 40%)?

Nothing so concentrates the attention of lawyers as large sums in dispute.

No fewer than five top law firms argued the case in a New York federal court because of the variety of insurers involved. Wall Street lawyers flew off to the Middle East to interview Israelis, Palestinians and other Arabs. Witnesses included not only the pilot of the 747 but a former commanding general of the Palestine Liberation Army, who was quietly flown into New York from Syria. "We have learned probably a good deal more than was necessary," sighed Judge Marvin Frankel last week as he announced his decision.

The central question was whether the hijacking represented "war" or "warlike operations," and thus was excluded from general or all-risk insurance. Frankel concluded that even the term "warlike operations" does not "encompass the infliction of intentional violence" by nongovernmental political groups upon civilians far from the scene of any regular fighting. Even if the semi-organized armed clashes with Israeli forces were "warlike," that would scarcely extend "the adjective to all bombings, killings and destruction anywhere under P.F.L.P. auspices." The judge went on to state that the relatively tiny group's activities were also not part of any "civil war," "insurrection," "riot," or "civil commotion."

Frankel was moved by the general legal maxim for all-risk insurance: whatever is not clearly excluded is covered. Still, as the jurist wryly admitted, "judges are commissioned to be fallible." Especially in $24,288,759 cases. The guerrilla army of lawyers, who by now have charged an estimated $1,000,000 in fees, have already begun sorting through Frankel's 128 pages of opinion and 56 footnotes as they prepare to fight anew in the appeals court.

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