MEMORIALSUBMITTEDBY THE GOVERNMENT
OF THE UNITED KINGDOMOF GREAT BRITAIN
AND NORTHERNIRELAND1
PART I
Introductory
I. This Memorial is submitted to the Court upon the Application
dated November 19, 1957, addressed by the Agent of the Govern-
ment of the United Kingdom to the Registrar of the Court.
z. By an Order made on November 26, 1957, the President of
the Court fixed June 2, 1958, as the time limit for the filing of
the United Kingdom Memorial. By an Order dated May 19, 1958,
this time limit was extended to September z, 1958.By an Order
made on January 27. 1958, the President of the Court fixed
December z, 1958, as the time limit for the filing of the Bulgarian
Counter-Memorial. This time limit was extended to June 9, 1959,
by the Order dated May 19, 1958.
3. As shown in their Application, the Government of the United
Kingdom submit that the Court has jurisdiction in the present
dispute under Article 36 (I) of its Statutebecause both the United
Kingdom and Bulgaria have accepted the compulsory jurisdiction
of the Court. The United Kingdom acceptance of the compulsory
jurisdiction of the Court is contained in the Declaration dated
April 18, 1957, replacing the previous Declaration of October 31,
1955, and covering disputes arising after February 5, 1930, with
regard to situations and facts subsequent to that date. Bulgaria's
acceptance of the compulsory jurisdiction of the Court is uncon-
ditional, and was made on July 29, rgzx, when the instrument
of Bulgaria's ratification of the Protocol of Signature of the Per-
manent Court of International Justice was deposited, and became
effective as to the jurisdiction of the International Court of Justice
by virtue of Article 93 (I) of the Charter of the United Nations
and Article 36 (5) of the Statute of the Court, on the date of
Bulgaria's admission to membership of the United Nations.
4. Alternatively, the Government of the United Kingdom in its
Application of November 19, 1957. submitted specifically and
unconditionally to the jurisdiction of the Court for all the purposes
of the present dispute and, in this connection also, invoked Bul-
garia's unconditional acceptance of the Court's compulsory juris-
diction, effective in the manner described in the preceding para-
graph.
SeePart I\', Correrpondencc, SecC.oNo.jg MEMORIAL OF UNITED KINGDOM (28 VIII58)
PARTI1
The Facts
5. This claim arises out of an incident which occurred on July 27,
1955. A Constellation aircraft, registered number 4X-AKC (herein-
after referred to as 4X-AKC), owned and operated by El A1Israel
Airlines Limited (a company incorporated in Israel) which was
on a scheduled passenger flight (Flight Number 402126) from
London to Tel-Aviv was shot down by Bulgarian fighter aircraft
at about oj4o hours G.M.T. on July 27, 1955 4X-AKC broke
up at an altitude of approximately 2,000 ft. at a point in the
region of Petrich, Bulgaria, 31 km. south-west of the junction
of the Rivers Strumica and Strumon in Bulgarian territory, and
near the meeting point of the Bulgarian, Greek and Yugoslav
frontiers. There were on board 4X-AKC, at the time at which
it was shot down, 51 passengers, and 7 members of the crew,
and there were no survivors. The Captain of 4X-AKC, Wing
Commander Stanley Reginald Hinks, was a citizen of the United
Kingdom and Colonies, and three of the passengers, Mr. Jack
Brass, Mr. Herbert Laster and Master Charles Douglas Foxworthy-
Windsor, were also citizens of the United Kingdom and Colonies.
Mrs. Gunvor Sofia Morgan, another passenger carried on board
4X-AKC, who was herself a Swedish citizen, was the wife of
Mr. GeoffreyMorgan, a citizen of the United Kingdom and Colonies.
There was carried on board 4X-AKC freight owned by nationals
of the United Kingdom. There are attached to this Memorial:
(a) Particulars of the citizens of the United Kingdom and
Colonies killed (Annex I).
(b) Particulars of the claimants who are citizens of the United
Kingdom and Colonies and details of their claims (Annex 2).
(c) Particulars of freight (Annex 3).
6. Her Majesty's Government in the United Kingdom contend:
(i) that the admitted shooting down and destruction of 4X-
AKC by Bulgarian armed forces was contrary to inter-
national law;
(ii) that theBulgarian Government is internationally respon-
sible for the deaths, injury and damage caused thereby;
(iii) that the Bulgarian Government is under an obligation in
respect of the losses sustained by citizens of the United
Kingdom and Colonies by reason of the deaths of persons
on board that aircraft, as well as the loss of personal effects
and freight owned by citizens of the United Kingdom and
Colonies which were carried on the aircraft. MEMORIAL OF UNITED KINGDOM (28VIII58) 333
THEAIRCRAFT
7. 4X-AKC was owned and operated by El A1 Israel Airlines
Limited of 76, Maze Street, Tel-Aviv, Israel, a company incor-
porated in Israel. Its current certificate of registration (No. 2/53)
was dated July 15, 1951. and was issued by the Ministry of
Transport and Communications, Department of Civil Aviation,
State of Israel. A certificate of airworthiness (No. 5/53) which
was valid until May 18, 1956, had been issued in respect of it,
and it carriedacertificate of safety dated July 25, 1955. 4X-AKC,
when purchased, was a Lockheed Type 049 bearing United States
registration Ngo8zg. It was modified by El A1 Israel Airlines
Limited to a Type 149, generally conforming to Lockheed specifi-
cations except that there were additional modifications including
two additional emergency exit stations, 480 and 685 on the right-
hand side, which comprised the only significant structural altera-
tions, and improved oxygen and water systems. The radio and
instrument navigational equipment were those usual for a civilian
airliner Lockheed Type 149. 4X-AKC was equipped with two
serviceable radio compasses (Bendix). Two independentVOR units
(Bendix) were also installed, and there were in addition one mag-
netic compass and one Flux-gate compass, both of which had
been swung and adjusted on May 18, 1955. Both pilot positions
were equipped with full instrument panels, including three opera-
tional gyros. At the navigator's position there was one Radar
altimeter and a Loran set. There are attached to this Memorial,
as Annex 4, five photographs of 4X-AKC in its undamaged con-
dition, showing clearly its markings. Photograph No. E was taken
at Lod on July 26, 1955, shortly before the departure of 4X-AKC
on its outgoing flight from that airport.
THECAPTAIN OF THE AIRCRAFT
8. 4X-AKC was, at the time of the incident on July 27, 1955,
under the command of Wing Commander Stanley Reginald Hinks.
He was commissioned in the Royal Air Force in 1938 and demo-
bilized in 1946. He served in the Royal Air Force Transport
Command, and flew a total of 3.202 hours, of which 2.877 were
by day. Most of these hours were on multi-engined aircraft. His
Service record shows him to have been a reliable officer and an
above-average pilot with a high sense of duty.
g. In July 1955 and for some time previously, El A1 Israel
Airlines Limited had operated: according to a published schedule
two flights a week-one westbound and the other eastbound-
between London and Tel Aviv. The eastbound flight was from
London to Tel Aviv (Lod) with stops at Paris, Vienna and Istanbul.334 IEXORIAL OF UNITED KINGDOM (28VIII58)
The scheduled passenger flight (Flight Number 402/26) on which
4X-AKC left London on July 26,1955, was, however, in accordance
with instructions received from the Head Office of El A1 Israel
Airlines Limited, re-scheduled and re-routed so as not to land at
Istanbul. By a Note Verbale No. 84058 dated May 3, 1955. from
the Yugoslav Secretariat of State for Foreign Affairs to the Israeli
Legation in Belgrade authority was granted forEl A1Israel Airline
Limited Flights Nos. 401 and 402 to overfly Yugoslav territory
during the period May 15, 1955, to October I, 1955. The course
of the scheduled route London/Tel Aviv (Lod) to be followed
by qX-AKC on July 26-27, 1955. is shown on the map attached
to this hlemorial as Annex 5.
COURSE OF AIRCRAFT--LONDO TO DEPARTURE FROM VIENNA
10. 4X-AKC completed its previous incoming flight to London
Airport at 1800 hours on July 26, 1955. Wing Commander Hinks
assumed command of 4X-AKC at London Airport. 4X-AKC left
London Airport at 2013 hours on July 26 on the scheduled pas-
senger flight (No. 402/26) from London to Tel Aviv. The aircraft
landed at Paris at 2122 hours, and left there at 2246 hours. From
Paris 4X-AKC flew onwards to Vienna, arriving at Schwechat
Airport, Vienna, at 0139 hours on July 27, 1955.
11. (a) On arrival at Schwechat Airport, Vienna, the crew of
4X-AKC were met by Mr. Hans Weissbrod, who at that time
was the Commercial Manager. Station Manager and Despatcher
at Vienna of El A1 Israel Airlines Limited. He held a United
States (Civil Aeronautic Administration) Aircraft Despatcher's
licence which had been issued to him in April 1951, and renewed
every year since that date. As part of his dutiesasFlight Despat-
cher, Mr. Weissbrod had received from the Meteorological Office
at Schwechat Airport, Vienna, at about 0030 hours on July 27,
1955, a weather forecast. Mr. Weissbrod used this document in
preparing, before the arrival of 4X-AKC at Vienna, the Company's
Short-Range Flight Plan which would be used as the basis for
the navigation of 4X-AKC at the next stage of its journey. A
copy of this Flight Plan is attached to this hlemorial as Annex 7.
(bJ Mr. Weissbrod met 4X-AKC on its arrival, and was informed
by the Flight Engineer of 4X-AKC that no repairs or maintenance
work were required. Mr. CVeissbrodthen immediately accompanied
Captain Hinks, and hfr. Porat, the First Officer of 4X-AKC, to
the Rleteorological Office for the "Captain's briefing". Captain
Hinks and Mr. Porat discussed the proposed flight with the Meteo-
rological Forecaster, and studied the surface chart and the 500
millibar prognostic chart from which the Forecaster had prepared
his forecast. A copy of this forecast is attached to this Memorial
'In thk Memorial times are givinG.M.T.except whereotherwise stated. ME~IORIAL OF UNITED KINGDOM (28 VIII58)
335
as Annex 6. The weather conditions prevailing over the proposed
route were explained to Captain Hinks and Mr. Porat, and Captain
Hinks put questions, especially about the cumulo-nimbus clouds
in the area between Belgrade and Skoplje. In these ways Captain
Hinks satisfied himself that the forecast was in accordance with
the information available to the Forecaster before he signed, as
he did, the Forecaster's copy of the flight forecast.
(c) Mr. Weissbrod then accompanied Captain Hinks and Mr.
Porat to the Notam Office1 where Captain Hinks considered and
approved the route and altitude proposed by Mr. Weissbrod and
set out in the Company's Flight Plan. Captain Hinks also checked
with a computor calculations o,fground speeds and true headings,
having regard to the winds shown in the flight forecast. The
Company's Flight Plan was then approved by Captain Hinks and
signed by First Officer Porat. First Officer Porat also examined
and checked the Air Traffic Control Flight Plan and signed it.
A copy of this Flight Plan is attached to this Memorial as Annex 8.
NAVIGATIONAL PLAN FOR THE FLIGHTVIENNA-TEL AVIV
12. (a) The Air Traffic Control Flight Plan (Annex 8) indicates
that the entire flight was to be flown at a cruising altitude of
17,500 it. The route would be via Zagreb, at which point the
flight would join Airway Amber 10 and thereafter follow this
airway as far as Athens, from whence the flight would be via
Rhodes to Tel Aviv. The course of 4X-AKC for this section of
the route is shown on the map attached to this Memorial as
Annex 9.
(b) From Belgrade to Kraljevo Airway Amber 10 lies on a track
of 167' and from thence to Skoplje on a track of 161". The next
reporting point shown on the flight plan after Belgrade was Kral-
jevo with a further reporting point, Skoplje, before the reporting
point at Gevgelia on the Yugoslav-Greek border. At Skoplje
Airway Amber 10 changed direction from 161" to 142".
(c) The Air Traffic Control Flight Plan also indicates the time
of flight expected to elapse between each of the Air Traffic Control
reporting points en roz~te,computed by using the forecast wind
speeds and directions as shown in the weather forecast prepared
by the Vienna Meteorological Officer (Annex 5).
NAVIGATIOSA ALIDS
13.(a) For the purposes of the present Memorial it is necessary
to consider what aids to navigation were available to 4X-AKC
The Notam Office receives and makes avato aircrew, current information
routes, prohibited and danareas,i&c.).igational facilities, airways, advisory
' An airway is an aerial corridor within which specific air tranlc control proce-
dures for the safety of aircraft are in farce. Airwa10Awasr10 nautical
miles in width.336 MEMORIAI. OF UNITED KINGDO~I (28VIII56)
between Belgrade and Salonika. Medium frequency non-directional
beacons (NDB) were sited at Belgrade, Skoplje and Salonika, and
a very high frequency omni range beacon (VOR) at Belgrade.
There was a distance of 107 nautical miles between Skoplje and
Salonika, without any intervening navigational aids. A NDB and
similarly a VOR, will enable a pilot, when within effective range,
to determine his bearing in azimuth from the ground installation,
but it does not enable him to fix his position. The effective range
of these NDBs would of course vary with the normal power, siting
and technical condition of the beacon. In the case of Skoplje the
power of the beacon was published at the time of the incident
as 1,200 watts, and tends to indicate that a range of something
over loo miles was planned by the Yugoslav authorities. It is,
however, a characteristic of beacons in the medium-frequency band
that their effectiveness is reduced when static electricity is present
in the atmosphere. This can be so to the extent that in severe
static conditions such as exist during heavy thunderstorms, it may
be impossible to receive any guidance from the beacon even when
the aircraft is quite close to it. It is not possible to state accurately
the effective range of the Belgrade VOR, but it would be reasonable
to expect something of the order of 80-100 miles at a height of
17,500 ft. A VOR is not affected by static conditions.
(b) Recommendations regarding navigational aids for this region
were made at the Third European/Rlediterranean Regional Air
Navigation Meeting of the International CivilAviation Organisation
held in 1952. These included recommendations that there should
be accurate all-weather navigational aids at Belgrade, Skoplje and
Salonika to enable aircraft to remain within compulsory corridors.
On July 27, 1955, only the VOR at Belgrade met this standard.
WEATHER ON THE SECTOR BELGRADE-SALONIKA
14. The forecast of weather conditions on this sector provided
by the hleteorological Office, Vienna (see paragraph 11 of this
Memorial) is shown in Annex 6.
From the record of regular international broadcastsof meteoro-
logical observations (recorded in code on the charts reproduced
as Annexes 10 and 11 to this Memorial) it is possible to describe
weather conditions on this sector at the time qX-AXC should have
been on this route, and to make an assessment of the winds at
17.500 ft.
Weather
A. SurfaceSynofitic Situation and Associated Weatlzer
(i) A weak slow moving low pressure area covered the Balkans
with a central pressure about 1,004 mb., the centre being
situated over the Adriatic Sea about 42" N., 18" E. Due to
the westerly upper air flow and the lifting of moist air IIEMORIAL OF UNITED KINGDOM (28 VIII58) 337
over the western Yugoslav mountains in association with
a diffuse frontal zonebetween.43' N. and 45" N. (i.e., over
some 120 miles of 4X-AKC's route south from Belgrade)
outbreaks of thunderstorms were occurring north of 43" N.
(i.e., north of a line some 60 miles north of Skoplje). A
thunderstorm was reported at 0300 G.M.T. at Belgrade and
another between 0500 and 0600 G.M.T. at Nis (approxima-
tely midway between Belgrade and Skoplje and 20 miles
east of Airway Amber 10).
(ii) From Belgrade to 43" N. the flight of the aircraft is likely
to have taken place in or above thick layered cloud with
vertically deep thunderstorms embedded in the layers. The
cumulo-nimbus clouds associated with thunderstorms ex-
tended to zo,ooo-25,000 ft. in places. There would have
been moderate icing and severe turbulence in thunderstorms.
Air temperatures at 17,500 ft. were minus g deg. C. to
minus 10 deg. C. South of 43" N. to the Greek border the
lowest layer of cloud would tend to decrease to little or
none, leaving only well broken layers of cloud at heights
between 10,ooo and zo.600 ft. Air temperature in this sector
was about minus 8 deg. C. at 17,500 ft. Surface visibility
south of 43" N. was good and the ground is likely to have
been visible from 17,500 ft. for all or most of the time
south of about 4210 N. The conditions south of 43" N.
would also be applicable to the sector Kynstendil-Petrich.
(iii) From the Greek border to Salonika the weather was mainly
cloudless with good visibility.
B. Upper Winds
(i) Upper winds at about 17,500 ft. on the route Belgrade to
Salonika would probably be about 260 deg. true 30 knots
Belgrade to about 42g N., 265 deg. true 50 knots 421' N.
to 42' N., and 270 deg. true 70175knots 42' N. to Salonika.
Similar conditions would apply according to latitude in the
sector Kynstendil-Petrich.
(ii) The upper winds may have been stronger temporarily over
the last sector reaching a speed of IOO knots or more at
lower heights of 13,000 to 15,000 ft. while retaining the
same direction. The 0300 G.M.T. upper air ascent from
Brindisi gave a recorded wind of 260 deg. true 120 knots
at 13,300 ft. and 270deg. true 70 knots at 18,000 ft.
C. Contemporaneons Aircraft Re$ort
The Captain of an aircraft flying at 16,500 ft. from
Salonika (ETD 1500 G.M.T.) to Belgrade via Skoplje during
the afternoon of July 27, 1955. reported that the weather
was clear over Salonika and the Greek-Yugoslav border
where scattered low cloud began to appear. The town of338 .IIEMORIAL OF UTITED KINGDO>I (28 VIII56)
Skoplje was clearly visible. The aircraft began to fly into
cloud about halfway (434' N.) between Skoplje and Bel-
grade and nearer Belgrade there were large thunderstorm
clouds across the track. The pilot reported that winds aloft
changed radically between the Greek border and Belgrade
and commented that a southbound aircraft might have
found course-keeping difficult unless a large drift correction
had been made.
15. Meteorological data for July 27, 1955, was supplied to the
British Legation at Sofia by the Ministry for Foreign Affairs of
the People's Republic of Bulgaria on April XI,1958. The document
containing this data, and an English translation thereof, are
attached to this Memorial as Annex 12.
16. From the navigational standpoint the most important
difference between the forecast weather and the actual weather
is to be found in the upper winds. Captain Hinks had been briefed
to expect a wind at 17,500 ft. from 270 degrees with a speed of
20 knots over the entire sector, Belgrade-Salonika. The description
in paragraph 14 of this Memorial points to a sudden increase in
wind speed to 50 knots in the area midway between Belgrade
and Salonika, increasing to 70-75 knots in the vicinity of Skoplje,
and maintaining this velocity for the remainder of the route to
Sdonika.
Progress of theFlight of4X-AKC otter leaving Vienna
17. 4X-AKC left Vienna at 0253 hours on July 27, 1955, and
the progress of the flight, as reported from the aircraft, is shown
in the record of Air Traffic Control Communications which is
attached to this Memorial as Annex 13. 4X-AKC reported to
Belgrade Air Traffic Control that it was overhead the Belgrade
non-directional beacon (BD) at 0433 hours and gave its estimated
time of arrival at SkopIje as 0517 hours. After Belgrade, the next
report received from 4X-AKC was at 0513 hours when the aircraft
reported its position as at Skoplje at 0510 hours. This time was
seven minutes earlier than the estimate given for Skoplje when
4X-.4KC was over Belgrade. When reporting its position at Skoplje
4X-AKC gave its estimated time for passing over Gevgelia, on
the Yugoslav-Greek border, as 0528 hours.
IS. At 0528 hours Belgrade Air Traffic Control received the
following message from the aircraft:
"Belgrade. This is 4KC. Passed the border at 0j28 at altitude
18,ooo. Changing to Athens frequency.-Goodbye."
This message was acknowledged by Belgrade.
The next recorded message from the aircraft was at 0537 hours
when Air Traffic Control, Athens, received the following:
"SOS this is 4X-AKC." MEMORIAL OF UNITED KINGDOM (28 VIII58) 339
The same message was heard repeatedly during the next two
niinutes after which no further messages were received from the
aircraft.
Statements by Eye Witnesses ofthe Incident
19. There are attached to this Memorial as Annex 14 photostat
copies (with English translations) of the originals of statements
made to the Israeli Commission of Inquiry (see paragraphs 30
and 31 of this Memorial) by persons who, in the early hours of
July 27, 1955, were at various points on the Yugoslav-Greek
frontier adjacent to the frontier of Bulgaria. A map showing this
area is attached to this Memorial as Annex 15. Five of the state-
ments in Annex 14 were made by Yugoslav soldiers on duty at
frontier posts, the position of which is indicated by the letters
A, B and C on the map at Annex 15. Four of these statements
record what the witnesses themselves saw. The fifth (made by
Captain (First Grade) Ivan Stancic) records statements made to
him on August 3, 1955.by two Yugoslav soldiers who then reported
what they had themselves seen in the early hours of July 27,
1955. The other eleven statements contained in Annex 14 were
made to the Israeli Commission of Inquiry by persons, the majority
of whom were Greek soldiers, who were, at the time of the incident,
present at various points on or near the Greek frontier adjacent
to Bulgaria. The position of these points is indicateby the figures
o, I, z, 3 and 4 on the map at Annex 15.
zo. The statements by the Yugoslav soldiers, Private Ilija
Kukolj, Bogoslav Miloshevic, and Private Milos Vukic, described
what was seen at a time estimated as approximately 0630 hours
(local time) by persons on duty at the two frontier posts, indicated
by the lettersB and Con the map at Annex 15. Kukolj, at point B,
heard from the north-east, and from the direction of Bulgarian
territory, the sound of an aeroplane engine followed by machine-
gun fire which came in two long bursts and then a short one,
with an interval between them. About ten minutes after Kukolj
saw a white vapour trail and then an aeroplane flying at a low
speed, and at a height of about IOO metres, to the south-east
towards Greek territory. When the aeroplane flew southwards
Kukolj again heard firing "but this time in single shots and the
fire lasted longer". Two or three short bursts of fire, followed
three to five minutes later by two or three more bursts, were
also heard at approximately the same time by Miloshevic, who
was stationed at the same frontier post as Kukolj (point B) and
who alsosaw, about ten minutes after hearing the sound of aeroplane
engines, an aeroplane which flew low and had behind it a white
vapour trail. Both Kukolj and Miloshevic described the sky as
clear and cloudless. Similar observations were made by Vukic who
was on duty at an adjacent frontier post which is indicated by
the letter C on the map at Annex 15. He saw, at approximately340 MEMORIAL OF UNITED KINGDOM (28 VIII58)
0630 hours (local time) an aeroplane over Bulgarian territory
flying north-eastwards and afterwards turning southward, hut did
not notice any vapour trail coming from it. Two or three minutes
after he had seen this aeroplane turn, Vukic heard two or three
fire bursts, and, when the aeroplane turned southwards, noticed
that it began to fly lower, and then heard three short machine
gun bursts.
21. Captain Stancic's statement reports the statements made to
him on August 3, 1955. by Sergeant Nikola Dakic and Private
Filip Petrovic. All these persons were stationed at the point
indicated by the letter A on the map at Annex 15. Dakic stated
that he had seen "at 6 a.m." on July 27, 1955, a civil aeroplane
flying southwards over Bulgarian territory, and that at the same
time as he saw this aircraft he had noticed the arrival of two jet
planes from the east from Bulgarian territory. Dakic also stated
that one of the jet planes prevented the civil aeroplane from flying
towards Yugoslavia "compelling him to fly over Bulgarian terri-
tory", and noticed that one of the jet aeroplanes circled round
the civil aeroplane while the other manoeuvred over the interior
of Bulgarian territory. Dakic heard machine gun fire which he
presumed came from the jet aeroplane. Petrovic reported that on
July 27, 1955, he had seen a big aeroplane, which he presumed
was a passenger aircraft, and that this aeroplane had been pursued
by two "hunters" who had driven it into the interior of Bulgarian
territory. Both soldiers stated to Captain Stancic that they had
heard machine gun fire and rifle shots from the ground and from
the air, and also the sound of cannon fire from the interior of
Bulgarian territory.
22. At approximately the time (corresponding to 0530 hours
G.M.T.) that machine gun fire was heard by soldiers on duty at
points along the Yugoslav border, a noise resembling thunder
which was identified by some of the witnesses as heavy gun fire
and which lasted about ten minutes, was heard by persons present
at points along the Greek border indicated as points o, 2 and 3
on the map at Annex 15. These persons also heard the droning
of three aeroplanes. Several of these Greek witnesses state that,
following this noise, they saw a large aeroplane flying at a low
height from the west towards the south and travelling towards
the south-west, i.e. towards Greece, and that this aeroplane then
abruptly changed course. It was then observed by several of the
witnesses to turn north towards Petrich. Several of the Greek
witnesses also stated that they saw smoke and flames coming from
this large aeroplane "out of the right side of its fuselage where
the fuselage joined the right wing".
23. Private Christophoros Anastasiou stated that "before it
reached the River Strumon the aeroplane began to lean over and
it gave ..the impression that it was trying to land... At the village MEMORIAL OF UNITED KINGDOM (28 VIII58) 341
of Dragenova it began to make a turn westwards towards Koila."
The aeroplane then became completely enveloped in flames and
smoke and fell between two neighbouring heights. As it fell, it
was broken into two pieces: one of the pieces fell to the west side
of the ridge constituted by the neighbouring heights and the other
fell to the east. The aeroplane was also seen to fall in flames by
five other witnesses. Sub-Lieutenant Lekhovitis estimated, how-
ever, that the aeroplane broke into three pieces-ne large and
two small-and that one of the small pieces burst into flames
as it fell.
24. Private Aristides Samaras stated that he saw three aero-
planes together, and the biggest of those was flying lower than
the others and parallel to the Greek border, whilst the other two
aeroplanes were flying on either side of the big one and considerably
higher. Both Samaras and another witness, Athanasios Nakos, who
was on duty at the same frontier post, state that when the large
aeroplane crash-dived one of the two smaller aeroplanes was flying
above it, but subsequently turned and followed the other which
had disappeared earlier towards Bulgaria. Samaras's statement is
corroborated by that made by Nakos, who saw two aeroplanes
flying in the direction of Petrich, and then turning towards the
valley of the Strumon and circling above Koila. Three minutes
after the appearance of these two aeroplanes he saw a large aero-
plane flying at about the height of the other two with flames
coming from it. Sub-Lieutenant Demetrios Lekhovitis heard the
droning of three aeroplanes, but only saw one smaller aircraft in
pursuit of the big one. Lekhovitis observed, through glasses, that
this smaller aeroplane was flying to the right of the big aeroplane
and at a height considerably above it.
25. One Greek witness, Petros Kotselis, stated that at the time
of the incident the sky was cloudless but that there was a strong
wind blowing from west to east, which he estimated had begun
to blow the previous evening "at 10 p.m." This witness was at
the point marked I on the map at Annex 15.
Photographic evidenceof damage to a-AKC
26. Photographs taken at the scene of the disaster (see para-
graphs 32 and 35 of this Memorial) and which are attached to
this Memorial as Annex 16, indicate that 4X-AKC was struck by
at least one explosive shell. The hole in the rear fuselage (shown
in the photographs numbered I,z, 3, 4 and 5) is similar in size
and form to the wound a 37-mm. shell would make on entering
from a direction about 10" to starboard of dead astern. Absence
of blast or fragment damage in the immediate vicinity of this
hole indicates that the shell did not detonate on first impact.
The damage to the rear pressure bulkhead and to the fuselage
skinning aft of this bulkhead shown in the photographs numbered342 MEMORIAL OF UNITED KINGDON (28 VIII58)
I, 6 and 7 is consistent with an explosive shell detonating about
two feet aft of the pressure bulkhead main frame. This implies
a shell fitted with a fuse having a post-impact delay of about
30 ins. or an insensitive fuse which did not function on first impact.
It is almost certain that the damage referred to above would
result in considerable hydraulic leaks in the suppIy lines to the
elevator and rudder control boosters. It is possible that elevator
and/or rudder control was lost by severance of cables or that
one or both were jammed.
hlotificationof disasterto4X-.4KC
27. The SOS message from 4X-AKC received at 0537 by Air
Traffic Control, Athens (see paragraph 18 of this Memorial) was
immediately relayed to Air Traffic Control, Lod. Athens Flight
Information Centre declared an emergency and search and rescue
services were alerted. At 0842 hours Air Traffic Control, Athens,
originated a further message to the effect that 4X-AKC had come
down in flames at Tsirbanova, a place in Bulgaria near the Greek-
Bulgarian border.
28. At 1100 hours on July 28, 1955, the Bulgarian Telegraph
Agency put out a communiqui., of which the following is an
English translation:
"Yesterday, July 27, at 7.35 hours Bulgarian time an Israeli
passenger aircraft, as it was later found out, deviated from its
course and in the area of the town of Trn entered, without preli-
minary notification, the Bulgarian airspace passing over the towns
of Stanke Dimitrov and Blagoevrad, in a southward direction
towards the town of Petrich. The anti-aircraft defence, having
not been able to recognise the aircraft, and after the appropriate
several warnings, opened fire, as a result of which the aircraft fell
and crashed in the area north of the town of Petrich. All people
who were in the aircraft were killed. In connection with this, the
Bulgarian Telegraph Agency is authorised to announce that the
Bulgarian Government and the whole Bulgarian public express
their deep regret for the tragedy which took place.
The Council of Ministers of the People's Republic of Bulgaria
has appointed a Government commission consisting of: the Minister
of Foreign Affairs-Dr. Mincho Neichev, the Minister of the Interior
-Georgi Tsankov, the Minister of National Defence-Army General
Peter Panchevski, the Minister of National Health-Dr. Peter
Koltrov, and the Chief Prosecutor of the Republic-Yordan
Chobanov, to establish in a more detailed way the circumstances
under which the accident took place." Investigations
29. (a) At 1200 hours on July 27, 1955, the Israeli Minister of
Communications appointed by'means of the Israeli Air Navigation
Regulations (Commission of Inquiry No. 2) 5715-1955. a Com-
mission "to enquire into the circumstances of the bringing down
of the aircraft,4X-AKC of the El Al Company within Bulgarian
territory" on July 27, 1955.
The members of the Commission were:
Emmanuel Zurr: Director of Aeronautical Service, Department
of Civil Aviation-Chairman.
Mordecai Laufer: Chief Inspector of Airworthiness, Department
of Civil Aviation-Member.
Seren (Captain) Asher Vogel: Air Force-Member.
Joel Palgi: Deputy Director General, El A1Company-Member.
Michael Englard: Assistant .Director of Maintenance Depart-
ment, El A1 Company-Member.
Zvi Tohar: Captain, El Al Company-Member.
(6) The Commission immediately on appointment applied to the
Bulgarian Legation in Tel Aviv for visas to enter Bulgaria in
order to carry out investigations on the site of the disaster. The
Bulgarian Legation was also asked by the Israeli Foreign Ministry
to allow the Israeli Commission of Inquiry to act in conjunction
with the Investigation Committee appointed by the Bulgarian
Government, in accordance with international practice. The answer
to the application for visas was that the matter had been referred
to Sofia with the request that visas be issued by the Bulgarian
Legation in Athens. No answer was received to the request to
participate in a joint investigation. On arrival at Athens, the
Commission were informed that the Bulgarian Legation had not
yet received instructions to issue the necessary visas, but they
agreed to endeavour to do so.at the frontier. In order to save
time the Commission proceeded to a Greek border village called
Kula, 14 km. from the site of the wreckage.
30. The Commission remained at Kula for two days-July 28
and 29. The Greek Authorities.afforded the Commission facilities
to interview any persons who had seen the aircraft or had heard
something about it. The Commission visited two military frontier
posts, where they took evidence from officers and soldiers; they
also took evidence from civilian workers in a nearby village. hfr.
Emanuel Zurr, Director of Aeronautical Service of the Israeli
Department of Civil Aviation in 1955. who was the Chairman of344 MEXORIAL OF UNITED KINGDOM (28VIII 58)
the Commission of Inquiry, put questions to the witnesses. These
questions were translated by an interpreter provided by the Greek
Authorities in Salonika,
who wrote down in Greek the answers
received. The answers given were then translated to Mr. Zurr in
French. The witnesses read over their statements in Greek and
signed them. In order to assist the witnesses, drawings of various
types of aircraft, including a Constellation aircraft, were shown
to them, and the witnesses identified what they had described as
a "large aircraft" as a Constellation. The statements made by
these witnesses have been summarized in paragraphs 20 and 21
of this Memorial and, together with English translations thereof
made at the Foreign Office, London, form part of Annex 14 to
this Memorial.
31. After their visit to the site of the disaster (see paragraphs 34
to 38 of this Memorial) four members of the Israeli Commission
of Inquiry crossed the Greek/Yugoslav frontier at Gevgelia and
interviewed military personnel who, on July 27, 1955, had been
stationed at points along the Yugoslav,lBulgarian border. State-
ments were taken from these witnesses, in a manner similar to
that described in paragraph 30. The statements made by a number
of those witnesses have been summarized in paragraphs 22-25 of
this Memorial and, together with English translations thereof made
at the Foreign Office, London, form part of Annex 14 to this
Memorial.
32. On July 28, 1955, Mr. Nir Baruch. who was Attach6 in the
Israeli Legation at Sofia and who was then acting as Chargk
d'Affaires, was given permission by the Bulgarian authorities to
visit the scene of the disaster. He proceeded there shortly after
mid-day with a driver and Mr. Molerov from the Bulgarian Ministry
for Foreign Affairs. Two representatives of the British Legation
in Sofia, Mr. Colin Thomas McGurk, Vice-Consul, and Mr. Peter
Dunn Gardner, Attach&, to whom the same permission had been
given by the Bulgarian authorities (see paragraph 53 of this
Memorial), also proceeded to the site in another vehicle. At the
site of the disaster, which was about five miles away from the
village of Petrich, the party were joined by another Bulgarian
named Yonkoff. The wreckage of 4X-AKC was scattered on the
south-east and north-west descents of a hill on the western bank
of the river Strumon over an area of approximately 35,000 square
metres. A part of 4X-AKC, identified as one of its engines, was
lying in the river which ran at the foot of the hill. In the first
place visited, that on the south-east side of the hill, where the
major part of the wreckage lay, there were many papers, mainly
personal papers, scattered about as well as portions of clothing
and burnt-out handbags; a smell of burning was noticeable. The
party then proceeded in the British Legation's vehicle to a second
place, on the north-west side of the hill, where more wreckage, MEMORIAL OF UNITED KINGDOM (28 VIII58)
345
including the rear fuselage of 4X-AKC, and a wing span, was
more widely scattered about. There were also more personal
belongings, suit cases, blankets, some of the galley equipment of
the aircraft, and also indications of a consignment of paint. With
the permission of the Bulgarian authorities, which was obtained
by telephoning Sofia from a frontier post, photographs of the
wreckage (see paragraph 26 of this Memorial) were taken by
Mr. Gardner. Mr. Baruch had a conversation in Bulgarian with
a Bulgarian farmer who had been in the early hours of July 27,
1955, at Tsirbanova. The farmer told him that he had seen an
aircraft "a big one, a white one and a beautiful one" approaching
him from the direction of Petrich and circling about as if it wanted
to land. As the aircraft approached him, however, he saw smoke
coming from what he described asthe right side. He also saw two
small aeroplanes flying after it and these had swept-back wings.
The farmer told Mr. Baruch that when the bigger aircraft was
immediately above Petrich, he had heard a loud noise resembling
thunder. Very shortly aftenvards, when the aircraft was imme-
diately above the place where the wreckage fell, the farmer heard
the noise of an explosion. The aircraft then broke up and fell.
33. The members of the Israeli Commission whilst at Kula were
able to see the site of the wreckage through long-distance bino-
culars. One member of the Commission of Inquiry, Mr. Mordechai
Laufer, saw a large number of people "milling round", but the
other members of the Commission were unable to see anything
more than that people were present on the site, and that there
was some movement of wreckage. They could not, however, tell
whether the wreckage was being moved by hand or whether some
of it had merely rolled a small distance away.
34. On July 30, 1955, permission was given to three members
of the Israeli Commission of Inquiry to enter Bulgaria. The mem-
bers of the Commission who entered were Mr. Laufer, Mr. Joel
Palgi and Mr. Zvi Tohar. Mr. Baruch revisited the site on that
day accompanied by Mr. Nall, the Israeli Chargi: d'Affaires, and
Lieutenant-Colonel Stephenson; the Military Attach6 at the British
Legation in Sofia. Mr.Nall proceeded to the frontier with an officer
from the Bulgarian Frontier police and Mr. Molerov of the Bulgarian
Ministry for Foreign Affairs, to meet the three members of the
Israeli Commission of Inquiry.
35. The party spent about six hours on the site of the disaster.
Photographs were taken on the site by Lieutenant-Colonel Stephen-
son. The wreckage of 4X-AKC was, as described in paragraph 32
of this Memorial, in two distinct places on two sides of a hill. It
was impossible, because of the crest of the ridge, to see one place
from the other.
36. Both wings of 4X-AKC were broken off, and the fuselage
was broken off and broken open. Mr. Baruch noticed that one
24346 MEMORIAL OF UNITED KINGDOM (28 VIII58)
portion of 4X-AKC (that part of the empennage shown in the
photograph attached to this Memorial as Annex 17) was in a
different condition from that in which it had been on his former
visit on July28. On July 30 there were indications that something
had been cut away from this portion; there was a perforation
like that to be found on a postage stamp and there were also
signs that a deep incision had been made in it. These indications
were observed by Mr. Nall and Lieutenant-Colonel Stephenson as
well as by Mr. Baruch. Mr. Baruch also considered that this portion
of 4X-AKC had been moved a short distance-something between
8 and 15 metres-between the occasion of his two visits. On the
first occasion it had been on a slight rise; on the second occasion
it was at a lower elevation. He also noticed that on the south-east
side of the hill most of the papers formerly lying there had been
removed, and that remains of clothing, and suit cases which had
been on the north-west side of the hill at the time of his first visit
had also been removed. The members of the Israeli Commission
of Inquiry, together with Mr. Baruch and Lieutenant-Colonel
Stephenson, searched the wreckage to see if they could find any
traces of the instruments normally to be found on board an aircraft.
They were only able to find part of the dial of a radio compass
which was in too battered a state to enable any reading to be
taken from it. They also found the frames of instruments, but
no traces of the instruments themselves. They were also unable
to find any trace of the steering column or of the steering wheel.
37. Examination of the wreckage of 4X-AKC by the three
members of the Israeli Commission of Inquiry, and by Mr. Nall
and Lieutenant-Colonel Stephenson, disclosed a number of holes
of varying sizes, some of which, particularly those in the rear
part of the fuselage, appeared to have been caused by some object
entering the rear of the aircraft at high velocity. In a portion
of the wreckage lying on its side, in what appeared to be the
rear portion of the fuselage, there was a large hole into which
Mr. Baruch and Lieutenant-Colonel Stephenson crawled. There
were other groups of holes which might have been caused by an
explosion within the aircraft. On the part of the site to the south-
east side of the hill, fastenedseat belts were found and on another
part of the site charred blankets which looked as if they might
have been used as plugs.
38. After remaining on the site for a time estimated at the
most as six hours, the Israeli members of the Commission of
Inquiry were told that they must leave Bulgaria that night. They
asked to be allowed to interview the person who was responsible
for shooting down 4X-AKC, and to return, accompanied by
experts, including armament experts, hut both these requests
were refused. MEMORIAL OF UNITED KINGDOM (28 VIII58) 347
39. On the evening of July 28, 1955, and subsequently, Mr. Nall,
the Israeli Chargh d'Affaires, asked the Bulgarian authorities for
the return of all the papers, documents, identity papers and "toute
autre chose" relating to the persons on board the aircraft and
to the aircraft of whatever kind which had been found amongst
the wreckage. The Bulgarian authorities replied that they were
quite ready to return anything which was found. On August z,
1955, there were handed to the Israeli Legation in Sofia a few
personal identity papers, some unimportant personal effects and
some mail. The items handed over were recorded in a series of
Protocols drawrl up by the Bulgarian authorities in the Bulgarian
language. Several days later some documents relating to the cargo
were handed to the Israeli Legation in Sofia. No other aircraft
papers of any kind (e.g.operational documents or log-books) were
handed over nor were any of the instruments and removable
fittings in 4X-AKC produced by the Bulgarian authorities.
40. The Bulgarian authorities issued death certificates giving
the cause of death as "par la suite d'un accident akrien". The
bodies of the victims had been removed to a mortuary in Sofia
and were subsequently sent to Israel for burial.
41. On July 28, Igjj, the Bulgarian Ministry for Foreign Affairs
presented to the Israeli Legation in Sofia a Note (Annex 19). In
this Note the Bulgarian Government informed the Israeli Legation
that a special governmental Commission had been appointed,
charged with inquiring into the accident and establishing the
circumstances in which it had taken place. In a Note dated
August 4, 1955 (Annex zo) addressed by the Bulgarian Ministry
for Foreign Affairs to the British Legation in Sofia, the Bulgarian
Ministry for Foreign Affairs stated that, adopting the conclusions
reached by a special governmental Commission appointed to
inquire into the case, the Bulgarian Government summed up the
causes of the accident as follows:
"I. L'avion s'est kcartk de son itinhaire, il a viol6 la frontiere
d'Etat de Iiulgarie et, sans aucun prkavis, a pkn6trh profondement
a l'intkrieur de l'espace akrien bulgare. Muni d'outillages de navi-
gation ahienne parfaits, il n'a pas pu ne pas voir qu'il avait viol6
la frontiere d'Etat bulgare. M&meaprb avoir 6th averti, il ne s'est
pas soumis, mais a continue B voler vers le sud dans la direction
de la frontiere bulgaro-grecque;
z.Les forces de la dkfense anti-abienne bulgare ont fait preuve
d'une certaine hite et n'ont pas pris toutes les mesures necessaires
pour contraindre l'avion B se soumettre et B atterrir.
3. Le Gouvemement bulgare croit necessaire de faire observer
kgalement la circonstance que, nu cours de nombreuses annkes,
n'observant pas la souverajneti: de la Rkpublique populaire de
Bulgarie, certains milieux sepermettaient de violer systbmatique-
ment les frontieres bulgares. Pendant les demihes annkes en
Bulgarie ont btk enregistres maints survols illbgauuxdes frontieres bulgares de la part d'avions "de nationalit6 inconnue". Lors de
ces survols illkgaux, en territoire bulgare btaient parachutes des
diversionnistes, munis d'armes, de stations de radio et d'autres
materiaux. Le Gouvernement de la. Kepublique populaire de
Bulgarie a protest6 B plusieurs reprises auprb du Secretariat de
1'0rganisation des Nations Unies, ce qui, malheureusement, n'a
donne aucun resultat. Tout cela crkait une atmosphPre tcndue qui
imposait la prise de mesures pour la sauvegarde de la securite de
l'Etat. C'est dans une pareille atmosphtire tendue qu'est devenu
possible le malheureux accident avec l'avion israelien."
Observations on the facts and investigations
42. In the Note Verbale of July 28. 1955. which the Bulgarian
Ministry for Foreign Affairs transmitted to the Israeli Legation
in Sofia (Annex ~g), and which is referred to in paragraph 41 of
this Memorial, the Bulgarian Government gave the following
version of what had occurred:
... "Le 27 juillet a.c. verh.30' un avion de voyageurs israelien
a penetr8 sans preavis dans l'espace aerien bulgare dans la region
de la ville de Trn, il a survole les villes de Stank6 Dimitrov et de
Blagoevgrad et ils'est ding6 vers le sud dans la direction de la
ville de Pktritch. Aper~u par la defense anti-akrienne bulgare,
l'avion, qui volaitune trb grande altitude, a et6 avertB plusieurs
reprises, conform6ment aux r6glements internationaux, d'atterrir.
L'avion ne l'a pas fait et la defense anti-aerienne bulgaaeouvert
le feuBla suitede quoi, l'avion a 6t6 atteint et il est tombe au nord
de la ville Pktritch.
l'kquipage de l'avion ont p61i."usque tous les voyageurs et tout
43. In their subsequent Note Verbale of August 4, 1955 (Annex
ZI), which is also referred to in paragraph 41 of this Memorial,
the Bulgarian Government gave a slightly different version of
the facts:
" ... Le 27 juillet a.B. 7 h. 10 temps local, l'avion dela Com-
pagnie de navigation aerienne #Israel 'El Al' a pen6tr6 dans
l'espace aerien bulgare dans la region de la ville de Tm, sans
aucun preavis. Apres avoir penetr8 B40 km. en profondeur. I'avion
a survole les villes de Rreznik, Radomir, Stankk-Dimitrov, Blagoev-
grad et il a continu6 au sud. I1 a vol6 au-dessus du territoire
bulgare environ zoo km.
Au sud de la ville de Stank&-Dimitrov, I'avion a kt6 intercept6
par deux cbasseurs bulgares qui ont reGul'ordre de le contraindre
B atterrir dans quelque aboport bulgare..."
The time given here was local time S~EMORIAL OF UNITED KINGDOM (28 VIII 58) 349
44. In the Report of the Commission of Inquiry on the Shooting
Down of El A1 Aircraft 4X-AKC on 27th July, 1955. published
by the Government Printers, Jerusalem, the conclusion is recorded
(at page 18) that: "The aircraft entered Bulgarian air space being
approximately 35 nautical miles off track on a course which would
have brought it to the Bulgarian-Greek border after traversing
approximately 26 nautical miles (6-7 minutes flying) of the south-
western comer of Bulgaria." The Report also records (loc. cit.)the
opinion that "The Bulgarian statement as to the course and track
of the aircraft is inconsistent with the facts as proved."
45. Any reconstruction of the flight of 4X-AKC, in the absence
of any information from the Bulgarian authorities as to the cir-
cumstances of the interception of the aircraft, is necessarily a
hypothetical one. All that can be stated with certainty is that
4X-AKC crashed at about 0540 hours in the vicinity of Petrich,
in the south-west comer of Bulgaria and some fifty miles east of
Ainvay Amber 10. How the aircraft came to be in that position
is not known. The possibility that the pilot of 4X-AKC deviated
radically from his predetermined route after reporting at the
border at 0528 hours and then, flew the aircraft in a north-easterly
direction into Bulgarian territory is so unlikely that it may be
discarded '.A second possibility is that at some earlier stage of
the route 4X-AKC deviated east of Amber 10, but that this was
not recognised by the pilot. The factors which need to be taken
into account in assessing the likelihood of this possibility are the
weather conditions on this section of the route; in particular, any
which could have caused inadvertent navigational errors. Two such
conditions existed. Firstly, heavy static conditions would have
been associated with the thunder storms north of Skoplje, and
as a result the non-directional beacons at Belgrade and Skoplje
may have been of little or no assistance to navigation. Thus, for
'a distance of some hundred miles or more after leaving the coverage
of the Belgrade VOR, it is possible that the aircraft was receiving
no reliable indications from any navigational aids. The heavy static
conditions might also have caused indications to appear on the
radio compass similar to those which would be shown by passing
astern of a reporting point; this might have caused the pilot to
believe that he had reached the point at which the track of Ainvay
Amber 10 changed direction. Secondly, during the time when no
reliable navigational aid may have been available, 4X-AKC came
under the influence of a westerly wind of much greater force than
had been predicted in the weather forecast on which the flight
plan given to Captain Hinks in Vienna had been drawn up. This
westerly wind would have carried the aircraft progressively further
'In accordance with normal practice,which would he well known to him.
to Air Traffic Control, Belgrade.any intentionaldeviationfrom his course 350 MEMORIAL OF UNITED KINGDOM (28 VIII58)
east of Airway Amber 10 unless the pilot had recognised the
increasing drift and had made appropriate adjustments to the
aircraft's course. Such recognition would be made very difficult
if the pilot was unable to check his track by means of a bearing
on a non-directional beacon or by visual reference to the ground.
The combined effect of heavy static conditions and a much greater
wind velocity than that which had been predicted could therefore
have caused 4X-AKC to deviate to the eastwards of Airway Am-
ber 10 in the direction of the Bulgarian frontier. If the increasing
drift was not recognised by the pilot, for the reasons indicated
above, he may well have believed himself to have crossed the
Greek-Yugoslav border at the time of his estimated arrival at this
reporting point which, in reporting himself over Skoplje at 0510
hours, he gave as 0528 hours.
46. The impossibility of any accurate reconstruction of what
occurred between the time 0528 hours on July 27, 1955. when
the aircraft reported itselfas having passed the border (i.e. t,e
Greek-Yugoslav border) and the time 0537 hours on the same
day, when the SOS from 4X-AKC was received by Air Traffic
Control, Athens, is accentuated by the fact that apart from a
portion of the dial of the radio compass, no instruments of any
kind were found on the site of the wreckage by the Israeli Com-
mission of Inquiry, or by members of Her Majesty's Legation in
Sofia who visited the site, nor were any such instruments returned
by the Bulgarian authorities. Similarly, there was no trace amongst
the wreckage of the documents normally found on an aircraft,
and none of these documents were returned by the Bulgarian
authorities. In particular, the log book was missing.
47. There is therefore no evidence as to what happened on board
the aircraft between 0528 hours and 0537 hours. It is possible
- that some object entering the aircraft from outside caused a loss
of pressurization, and that the procedure to be followed in case
of "Uncontrollahle Decompression" laid down in the El A1 Israel
Airlines Limited Operations Manual, Part 4, Section 14, page 9
(a copy of which is attached to this Memorial as Annex 18) was
followed. If this were the case, the duties which, under that proce-
dure, would fall on the radio operator might account for the
absence of any message from the aircraft until the SOS received
by Air Traffic Control, Athens, at 0537 hours.
48. The evidence of eye witnesses on the Greek and Yugoslav
sides of the border is sufficient to show that a large aircraft which
the witnesses were able to identify from drawings shown to them
as a Constellation was, after a series of shots had been heard.
observed to be followed at its rear by a line of white smoke and
almost immediately after the shots to lose height. The evidence
of the witnesses on the Greek side of the border leaves no doubt
that the aircraft burst into flames and shortly afterwards disinte- >IEhlORIAL OF UNITED KINGDOhl (28 VIII58) 35I
grated in the air, falling to the ground near Petrich in several
places. An examination of the photographs of the wreckage (see
paragraph 26 of this Memorial) indicates that some of the holes
in the wreckage were caused by the entry of a 37-mm. shell. Had
this evidence not existed, however, the communications of July 28,
1955 and August 4, 1955, from the Bulgarian Ministry of Foreign
Affairs (see Annexes 19 and 21) leave no doubt that the aircraft
was brought down by fire directed at it by Bulgarian fighters.
The sequence of events as described by the witnesses on the
Yugoslav and Greek borders (seeparagraphs 19-25of this Memorial)
gives no indication that any warning at all was given by the
Bulgarian fighters to the aircraft before fire was opened upon it.
This is borne out by the statement said to be based on the con-
clusions of the Bulgarian Governmental Commission and recorded
in the Bulgarian Ministry for Foreign Affairs' Note of August 4.
1955, that "les forces de la dkfense anti-akrienne bulgare ont fait
preuve d'une certaine hite et n'ont pas pris toutes les mesures
nkcessaires pour contraindre l'avion se soumettre et B atterrir".
(Annex 21.)
49. Beyond the admission of the Bulgarian Government that
its anned forces acted in haste, and did not take all the necessary
measures to compel 4X-AKC to land, there is little evidence as
to the circumstances of the interception of 4X-AKC by the Bul-
garian armed forces. 4X-AI<C is stated by the Bulgarian Govern-
ment to have been warned to land "in accordance with established
international regulations". If the Bulgarian Government intended
to refer to the provisions of Annex 2 ("International Standards-
Rules of the Air") tothe Convention on International Civil Aviation
signed at Chicago on December 7, 1944~ it is pointed out that
the provisions of this Annex are not mandatory even as between
the parties to that Convention, and consist only of recommended
standards, and that the investigation carried out by the Inter-
national Civil Aviation Organisation in 1956 established that
there was a wide diversity of practice amongst States as to the
signals to be given to aircraft approaching or flying over restricted
or prohibited areas. Whether or not any warning was given to
4X-AKC, and whether, if any warning was given, it complied
with that for which the Bulgarian Regulations for the Supervision
of Air Traffic (published in the Bulgarian State Gazette on Feb-
ruary 14, 1958) themselves provided was presumably established
by the Commission of Inquiry stated to have been set up by the
Bulgarian Government. The Government of the United Kingdom
must, however, emphasise that, in spite of a specific request that
(1952)No. 8. Bulgaria is not a party to the Chicago Convention. Treaty Series
The results of this investigare recorded in the Civil Aviation Organi-
sation's doculnent AN-WPlr614.352 hlEhfORIAL OF UNITED KINGDOM (28 VIII58)
the report of the Bulgarian Commission of Inquiry be commu-
nicated to the British Legation in Sofia (see paragraph 55 of this
Memorial), at no time has the report of the Bulgarian Commission
of Inquiry been made available to Her Majesty's Legation in Sofia
or to Her Majesty's Government.
50. The Government of the United Kingdom must also empha-
sise that any evidence as to the circumstances of the interception
of 4X-AKC which might have been furnished by the log-6ook of
the aircraft, or an examination of the instruments carried on board
4X-AKC, has not been available to the Government of the United
Kingdom. Despite requests from the Israeli Legation in Sofia (see
paragraph 39 of this Memorial) for the return of all documents
normally to be found on board an aircraft, neither the log-book
of 4X-AKC, nor any other documents which might have indicated
the course of the aircraft, were handed over to the Israeli Legation.
Furthermore, with the exception of a radio compass, no instruments
of any kind were found amongst the wreckage of the aircraft
when representatives of Her Majesty's Legation at Sofia visited
the site of the disaster on July 28 and July 30, 1955, although
the empty frames of instrument panels were noticed. (See para-
graphs 32 and 36 of this Memorial; also paragraph 46 in which
the absence of documents and instruments is also referred to.)
51. In drawing attention to the failure of the Bulgarian Govern-
ment to make available to the Government of the United Kingdom
the evidence upon which the Bulgarian Government must be taken
to have based its own conclusions as to the circumstances of the
interception of 4X-AKC, the Government of the United Kingdom
would refer to the principle established in the Corfu Channel case
in the following terms:
,It is true, as international practiceshows, that a State on
whose territory or in whosewaters an act contrary to international
law has occurred, may be called upon to give an explanation. It
is also true that that State cannot evade such a request by limiting
itself to a reply that it is ignorant of the circumstances of the
act and of its authors. The State may, up to a certain point, be
bound to supply particulars of the use made by it of the means
of information and inquiry at its disposal. But it cannot be con-
cluded from the mere fact of the control exercised by a State
over its territory and waters that that State necessarily knew,
or ought to have known, of any unlawful act perpetrated therein,
nor yet that it necessarily knew, or should have known, the authors.
This fact, by itself and apart from other circumstances neither
involves @ima facie responsibility nor shifts the burden of proof.
"On the other hand, the fact of this exclusive territorial control
exercised by a State within its frontiers has a bearing upon the
methods of proof available to establish the knowledge of that
State as to such events. By reason of this exclusive control, the
other State, the victim of a breach of international law, is often
unable to furnish direct proof of facts giving rise to responsibility. MEllORIAL OF UNITED KINGDOM (28 VIlI58) 353
Such a State should be alloweda more liberal recourseto inferences
of fact and circumstantial evidence. This indirect evidence is
admitted in all systems of law, and its use is recognised byinter-
national decisions. It must be regarded as of special weight when
to a single conclusion."o(I.C.J.Re$ori.s1949, p. 4 (at p. 18).)gically
Enquiries and negotiations,through the diplomatic channel
52. (a) The British Legation at Sofia first heard of the disaster
to 4X-AKC from the news bulletin issued at 2100 hours on July 27
by the British Broadcasting Corporation. This stated that the pilot
and some of the passengers were British.
(b) On the morning of July 28, 1955, the Bulgarian Ministry for
Foreign Affairs admitted to the British Legation that 4X-AKC
had crashed near Petrich and was damaged. They stated that they
had not received any information about the circumstances of the
crash, the extent of damage, or the fate of the crew and passengers.
They stated, however, that a, Bulgarian Commission of Inquiry
and five doctors had been sent from Sofia. The British Legation
requested that the British Vice-Consul, Mr. McGurk, should be
permitted to go to the scene of the disaster.
53. At about 1100 hours (local time) on July 28, the Bulgarian
Ministry for Foreign Affairs informed the British Legation that
there were no survivors from the disaster. They stated that the
Bulgarian Commission of Inquiry was returning to Sofia, and that
a statement, which they declined to anticipate, would be made.
Later the same afternoon the British Legation were informed that
all the bodies had been recovered and were being brought to Sofia.
Permission was also given for the Vice-Consul, Mr. McGurk, and
Mr. Gardner, to visit the site of the disaster. (See paragraph 32
of this Memorial.)
54. Four hours after it was broadcast on July 28, 1955, the
British Legation received a copy of the statement issued by the
Bulgarian Telegraph Agency at 1100 hours (G.N.T.), the text of
which is given in paragraph 28 of this Memorial. This did not
appear to be the statement anticipated by the Bulgarian Ministry
for Foreign Affairs which they expected to include the findings
of the Bulgarian Commission. The British Chargk d'Affaires
protested to the Bulgarian Ministry for Foreign Affairs against the
discourtesy of informing the British Legation of the circumstances
of the disaster by means of a copy of a Press communiquk delivered
to the British Legation four hours afterit wasissued. The Bulgarian
Rliuistry for Foreign Affairs stated that the communiqu& had been
issued bythe Council of Ministers direct,and without the knowledge354 MEaIORlAL OF USITED KINGDOM (28 VIII58)
of the Ministry for Foreign Affairs. Itwas added that the Minister
for Foreign Affairs was absent as a member of the Commission.
55. On July 30, 1955. the British Chargi: d'Affaires in Sofia,
Mr. John McKenzic, addressed to the Bulgarian Minister for
Foreign Affairs a Note, the text of which is attached to this
Memorial as Annex zo. This Note protested on behalf of Her
Majesty's Government in the United Kingdom against the unjus-
tifiableaction of the Bulgarian forces in shooting down an unarmed
civil aircraft, and stated that "Her Majesty's Government cannot
accept that any Government is within its rights in shooting down
a civil aircraft in time of peace, and demand punishment of those
responsible". The Note also referred to the Commission of Inquiry
stated to have been set up by the Bulgarian Government, and
expressed the hope that the Commission's report would be produced
without delay and that a copy would be furnished. The Note
finally reserved "all rights on behalf of Her Majesty's Government
in the United Kingdom, Canada and the Union of South Africa
in the matter of compensation for the loss of British, Canadian
and South African lives".
56. On August 3 a further announcement was made by the
Bulgarian Telegraph Agency. With the exception of an introductory
paragraph the language of that announcement was identical to
that used in a Note Verbale of August 4, 1955, from the Bulgarian
Ministry for Foreign Affairs to the British Legation in Sofia, which
is attached to this Memorial as Annex zx. After reciting its version
of the course followed by 4X-AKC (see paragraph 43 of this
Memorial) the Note continued as follows:
',
Les chasseurs ont averti I'avion, conformement aux rhglements
internationaux etablis,d'atterrir. Malgr6 ce fait, il ne s'est pas
soumis, mais a continut! B voler vers le sud, essayant de s'enfuir
B travers la frontibe bulgaro-grecque. Dans ces circonstances, les
deux chasseurs des forces de la dkfense anti-aerienne bulgare dans
cette rt!~ion, ktonnQ Dar la conduite de I'avion. ont ouvert le feu.
en raisoide quoi un peu plus tard, il a pris fe; et est tomb6 dans
la r4gion de la ville de Petritch",
and ended as follows:
"Le Gouvernement et le peuple expriment une fois de plus leurs
profonds regrets pour ce grand malheur qui a caust! la mort de
personnes compl&tement innocentes. Le Gouvernement bulgare
dbire ardemment que de pareils malheurs ne se r6petent jamais
plus. I1 fera etahlir et punir les personnes coupables de la cata-
strophe survenue avec l'avion israelien et il prendra toutes les
mesures nkcessaires pour que de pareilles catastrophes ne se rt!p&tent
plus en territoire bulgare.
Le Gouvernement bulgare compatit profondkment aux parents
des victimes et il est pr&t Bassurer le dbdommagement dG B leurs
families,ainsi que sa part de l'indemnite des dt!gBts matt!riels." ~~EMORIAL OF UNITED KINGDOM (28 VIII58) 355
57. On March 12, 1956, the British Minister in Sofia addressed
to the Bulgarian Minister for Foreign Affairs a Note which is
attached to this Memorial as Annex 22.After referring to the Note
of Her Majesty's Chargb d'Affaires of July 30, 1955 (Annex 20).
and to the Bulgarian Ministry for Foreign Affairs' Note of August 4,
1955 (Annex 21) in which it was stated that the Bulgarian Govern-
ment "est pr&t & assumer le dbdommagement d3 & leurs familles
ainsi que sa part de I'indemnitb des dkgits matbriels", the following
claim, of which a full and early settlement was requested from
the Bulgarian Government, was presented:
"'a) For pecuniary loss suffered by the families of Mr. J. Brass,
Wing Commander S. Hinks, Master C. Foxworthy-Windsor, Mr.
H. Laster and Mrs. Morgan, which families are all citizens of the
United Kingdom and Colonies, the sum of S58,ooo. This sum does
not include any amount in respect of any dependents who may
have been left by htrs. Morgan who are not British subjects.
with the exception of Mrs. G. Morgan, the sum of 5810.above victims,
(c) For loss of cargo owncd by citizens of the United Kingdom
and Colonies the sum of Tgg 11s. 5d. Total 558,869 11s. 5d."
and payment of the claim in sterling was requested. Details of the
claim presented were included and are attached to this Memorial
as part of Annex 22.
58. No reply was received from the Bulgarian Minister for
Foreign Affairs to the Note of March 12, 1956, from the British
Minister in Sofia. On January 31, 1957, the British Minister in
Sofia addressed to M. Karlo Lukanov a Note which is attached
to this Memorial as Annex 23. This Note referred to the Note of
March 12, 1956 (Annex zz), and then continued as follows:
"It is almost one and a half years since the incident occurred
which gave rise to these claims and, although it inevitably took
some months to prepare and submit them the Bulgarian Govern-
ment have by now had ample time in which to consider their
reply. Despite the further representations which I made on the
~1st of August last to the Vice-Minister of Foreign Affairs, Monsieur
Tarabanov, no reply has, however, been received to any of the
Notes under reference, and it does not appear that any steps have
yet been taken to meet the claims. The failure of the Bulgarian
Government to take any action in this matter is the more difficult
to understand in view of the statement in its Note of 4th August,
1955, that it was ready to assume responsibility for compensation
to the families of thosewho were killed. It has thus taken over
eight months to consider no more than the question whether the
amounts claimed represent a fair estimate of the losses sustained."
59. No reply was received to the British Note of January 31,
1957, and attempts by the British Minister in Sofia to see the
Bulgarian Minister for Foreign Affairs met with no success until336 aEaroRIAL OF UNITED KINGDOM (28 VIII58)
March 15, 1957, when the British Minister, Mr. Richard Langford
Speaight, was able to see M. Tarabanov. M. Tarabanov enquired
whether the families of the victims had not already received
compensation from El A1 Israel Airlines Limited on the basis of
the latter's passenger insurance policy. Mr. Speaight stated that
this was a separate issue which did not affect the validity of the
claims presented to the Bulgarian Government. He also maintained
that nothing could possibly justify the shooting down of a civil
airliner in peacetime.
60. At the beginning of July 1957 the French and Belgian
diplomatic representatives in Sofia were informed that the Bul-
garian Government were prepared to settle the claims arising out
of the disaster to 4X-AKC by an ex gratia payment of 56,000
transferable leva per victim without prejudice to the question of
responsibility.
61. On July 19, 1957, the British Minister, Mr. Speaight, called
on the Bulgarian Vice-Minister for Foreign Affairs. He was imme-
diately informed that the Bulgarian Government had decided to
make the same offer in respect of.the British victims of the disaster
as had been made in respect of the French and Belgian victims.
The Bulgarian Government were therefore ready to pay 56,000
transferable leva for each of the eleven victims who were citizens
of Commonwealth countries. The British Minister informed the
Bulgarian Vice-Minister that it was unlikely that the Common-
wealth Governments concerned, the United Kingdom, Canada and
South Africa, would consider his proposal to be adequate. The
Bulgarian Vice-Minister replied that the ex gratia payment was
being offered as a gesture of goodwill; if it was considered to be
inadequate, the Governments concerned must look to El A1Israel
Airlines Limited or to other sources for the balance.
62. On September 14, 1957, the British Minister in Sofia saw
M. Zhiko Zhikov, the Second Vice-Minister for Foreign Affairs,
and informed him that the Bulgarian offer represented a retreat
from the earlier position adopted by the Bulgarian Government
who had previously assumed responsibility for compensating the
families of the victims. M. Zhikov 'was also informed that, as the
offer left open the question of responsibility, it could be seriously 1
considered only if the amounts involved were to be treated as
payments on account, and that no complete discharge could be
given. M. Zhikov replied to these representations by stating that
the Bulgarian Government was not prepared to accept responsi-
bility for the accident, and that the shooting down of the aeroplane
was in accordance with the law. It was possible that the Bulgarian
forces had acted "perhaps a little hastily", and it was with this
in mind that the Bulgarian Government had made the offer of
56,000 leva per victim as an act of goodwill, and in order to close
the question. The Bulgarian offer was made on the understanding 3lEMORIAL OF UiVITED KINGDO.\I (2sVIII 58) 357
that once the amount was handed over the matter would be
considered fullysettled and closed as faras the Bulgarian Govern-
ment was concerned. He added that 56,000 leva had already been
set aside in the Bulgarian National Bank for each victim.
63. On October 29, 1957, the British Minister in Sofia, Mr.
Speaight, had a further interview with M. Zhikov. He reminded
h1. Zhikov of the inadequacy of the Bulgarian offer. BI.Zhikov
first repeated his previous arguments about the offer being final,
and justified it by reference to the "Warsaw Convention" (the
International Convention for the Unification of certain Rules
relating to lnternational Carriage by Air signed at Warsau., on
October 12, 1929)1, an instrument which the Government of the
United Kingdom cannot consider as relevant in connection with
a claim for the shooting down of an unarmed civil aircraft, and
which had not been referred to before by the Bulgarian Government
in connection with the claim. When pressed, M. Zhikov said that
if any of the claimants felt they had a strong case for extra com-
pensation, it might be possible for the Bulgarian Government to
look into the matter again. He made it clear, however, that any
negotiations regarding this must come from the claimants them-
selves and not from Her Majesty's Government, and even suggested
that the Bulgarian Government would be glad to deal with the
claimants direct if they could have their addresses. Mr. Speaight
also mentioned the question of compensation for losses of freight,
and M. Zhikov said he would look into this.
64. On November 21, 1957, the British Minister in Sofia, on
instructions from Her Majesty's Government, informed the Bul-
garian Ministry for Foreign Affairs that Her Majesty's Government
had decided to reject the Bulgarian offer of compensation on an
ex gralia basis, and had decided to institute proceedings before
the International Court of Justice forthwith. The British Minister
informed the Bulgarian Minister for Foreign Affairs that Her
Majesty's Government could not regard compensation on the basis
offered as satisfactory, and therefore had no alternative but to
reject it, and to submit the case to an independent tribunal.
The Law
65. There is no dispute as to the basic facts of this case, namely,
that on July 27. 1955, 4X-AKC, a civil airliner, was shot down
over Bulgarian territory by members of the Bulgarian armed
forces. The Bulgarian Government admitted these facts in their
Note Verbale of July 28, 1955, to the Israeli Legation in Sofia
'Leagueof Nations Treaty Series. Vol. 137. p. rr; United Kingdom Treaty
Series(1933) No.12.358 ~IE~$ORIAL OF USITED KISGDOAI (28VIII 58)
(Annex 19)and in their Note Verhale of August 4, 1955, addressed
by the Bulgarian Minister for Foreign Affairs to Her Britannic
Majesty's Legation in Sofia (Annex 21). In the latter Note, the
Bulgarian Ministry for Foreign Affairs also admitted that:
"Les forces de la defense anti-aerienne hulgare ont fait preuve
d'une certainehite et n'ont pas pris toutes les mesures n6cessaires
pour contraindre l'avion A se soumettre et a atterrir."
66. The Government of the United Kingdom submit that the
shooting down of 4X-AKC on July 27, 1955. by members of the
Bulgarian armed forces was wrongful and contrary to international
law. In general, the use of armed force against foreign ships or
aircraft is not justified in international law unless it is used in
the legitimate exercise of the right of self-defence. This basic
principle is reflected in the Charter of the United Nations, under
paragraph 4 of Article 2 of which all members of the United Nations
have undertaken to refrain in their international relations from
the threat or use of force against the territorial integrior political
independence of any State, or in any other manner inconsistent
with the purposes of the United Nations. The Government of the
United Kingdom submit that there can he no justification in
international law for the destruction, by a State using armed force,
of a foreign civil aircraft, clearly identifiable as such, which is on
a scheduled passenger flight, even if that aircraft enters without
previous authorization the airspace above the territory of that
State.
67. The principles on which the Government of the United
Kingdom rely are illustrated by the judgment of the International
Court of Justice in the Corfu Channel case (I.C.J. Reports 1949).
That judgment shows that international law condemns actions by
States which in time of peace unnecessarily or recklessly involve
risk to the lives of the nationals of other States or destruction
of their property. In the Corfz~Channel case (at page 2%) the
International Court of Justice based Albania's duty to warn
shipping of the presence of a minefield in its territorial waters
on "general and well-recognized principles", one of which was
"elementary considerations of humanity even more exacting in
peace than in urar".
68. So far from permitting the use of force in circumstances
such as those of the present case, international law, on grounds
of humanity, recognizes for ships a right of entry into the territory
of a foreign State in cases of overriding necessity.It has also been
maintained that a similar right arises in respect of the entry of
aircraft into the airspace above the territory of a foreign State.
69. It is a rule of the law of the sea that ships which are driven
to take refuge in a foreign port by stress of weather, or are com-
pelled to do so by force majeure or any other overruling necessity, MEMORIAL OF USITED KISGDOM (28 VIII 56) 359
are not subject to the local regulations of the port with regard
to any incapacity, penalty, prohibition, duties or taxes in force
at that port (Colombos, International Law of the Sea (3rd edition,
page 249)). This rule was affirmed by Lord Stowell in The Eleanor
(Edw. 135) where it was held that "real and irresistible distress"
proved by clear and satisfactory evidence "must be at all times
a sufficient passport for human beings" entitling them to the
rights of hospitality in a British port. The French Court of Cassation
also decided in the Carlo-Alberto ((1832) Sirey, part i, page 577)
that a ship in distress "is placed, among civilized nations, under
the protection of good faith, humanity and generosity". The same
principle has been followed in the United States. It was, for
instance, held in The ljrig Concord ((1815) 9 Cranch, 387), that
"where cargoes are brought by superior force, or by inevitable
neccssity, into the United States, they are not deemed to be so
imported, in the sense of the law, as necessarily to attach the right
of duties becoming payable". The rule based on circumstances of
force nzajezweextends to ships seeking refuge in a foreign port for
vital repairs or a strict necessity of provisioning. In such a case,
international customary law declares "that the local State shall
not take advantage of ships' necessity" (Jessup, The Law of
Territorial Waters and Maritime Jurisdiction, page 194).
70. It has been maintained that there is, on the analogy of the
right of entry to foreign ports for ships in distress, a right of entry
into the airspace of a foreign State for aircraft in distress. This
right is not specifically recognized in either the Convention for
the Regulation of Aerial Navigation signed at Paris on October 13,
1919 I, or the Convention on Civil Aviation signed at Chicago on
December 7, 19442, but Article 22 of the Paris Convention
provided that:
"Aircraft of the contracting States shall be entitled to the same
measures of assistance for landing, particularly in case of distress,
as national aircraft."
Articlc 25 of the Chicago Convention is headed "Aircraft in Distress"
and reads as follows:
"Each contracting State undertakes to provide such measures
of assistance to aircraft in distress in its territory as it may find
practicable, and to permit, subject to control by its own authorities,
the owners of the aircraft or authorities of the State in,whlch
the aircraft is registered to provide such measures of assistance
as may be necessitated by the circumstances..."
71. In both World Wars there was some recognition by neutral
States that belligerent aircraft in distress should be given favourable
' League of Nations Treaty Series. Vo11, p. 174.United Kingdom Treaty
Series(1922).NO. 2.
United Xations TreatySeriesVol.'5, p. 296United Kingdom Treaty Series
(19531N,o. 8.360 MEMORIAL OF UNITED KINGDOM (28 VIII 58)
treatment. In the First World War certain neutral States agreed
that such aircraft should not be fired upon if they gave a distress
signal and landed. This practice was supported by the Commission
who drew up the draft Rules of Aerial Warfare in 1923, and is
given some recognition in Articles 41 and 42 of the draft Rules
(32 American Journal of International Law (1938) Supplement,
pages 35-37). At the Paris Conference of 1910 on Aerial Navigation,
the position of military aircraft crossing a frontier without per-
mission in the case of distress or force majezare was considered.
and it appears to have been the general opinion that such aircraft
should land and submit to an inspection and, if the distress was
real, should he accorded the privileges of extraterritoriality
(Procb-verbaux des Siances: Confkrence Internationale de Navi-
gation AArienne, pages IIO and 288 et seq.).
72. On the basis of the considerations referred to above, and
the somewhat inconclusive evidence of the practice of States,
Mr. Oliver J. Lissitzyn, in an article entitled "The Treatment of
Aerial Intruders in Recent Practice and International Law" (47
American Journal of International Law (1953) 559). reached the
following conclusion :
"Despite the unqualified assertions of the sovereignty of the
subjacent states over the airspace and the express prohibitions of
unauthorized entry of foreign state aircraft which are found in
international conventions, there is a right of entry for all foreign
aircraft, state or civil, when such entry is due to distress not
deliberately caused by persons in control of the aircraft and there
is no reasonably safe alternative. In such cases the entry may
be 'intentional' in the sense that the pilot knows he is entering
foreign airspace without express permission, but the probable
alternatives, such as crash landing or ditching, expose the aircraft
and its occupants to such unreasonably great risk that the entry
must be regarded as forced by circumstances beyond the pilot's
control (force majeure). Foreign aircraft and their occupants may
not be subjected to penalties or to unnecessary detention by the
territorial sovereign for entry under such circumstances, or for
entry caused by a mistake, at least when the distress or mistake
have not been due to negligence chargeable to the persons in
control of the aircraft. The full acceptance of this standard in
practice may be impeded by security considerations, since simulated
and installations, butit may be possible to reduce this risk to aeas
minimum by properly planned precautions on the part of the
territorial sovereign, which, of course, is entitled to conduct a
full investigation into the circumstances of the intrusion, to inspect
and search the aircraft and its contents, and to search and question
lts occupants."
M. de La Pradelle in a study entitled "Les incidents de frontikre
abrienne et leur rkglement" (Acadkmie de Droit International-
Recueil des Cours, 1954, Volume 11, page 180) supports the view MEMORIAL OF U~ITED KINGDOM (28 v11.58) 361
that the subjacent State is under a duty to give help toan intruding
aircraft which signals that it is in distress, although he does not
expressly accord to such aircraft a right of entry.M.de La Pradelle
cites, with apparent approval, Article 344 of Cosentini's Code
on the Law of theAir which provides that:
aLes aeronefs qui arrivent sur le territoire d'un Etat, sans
autorisation de circuler dans I'espacekrien, doivent atterrir dans
un des lieux dksignkspar I'autoritk aironautique et se soumettre
au contrble de cette autoriti.. Ils restent sous saisie jusqu'a ce
qu'ils aientep l'autorisation de circulerx
Commenting on this de La Pradelle (op. cit.at page 191) says:
s I1 n'est question, on le voit, ni d'attaque, ni de confiscation, ni
de dktention. a
73. That international law condemns action by States which
in time of peace unnecessarily or recklessly involves risk to the
lives of the nationals of other States or destruction of their property
is shown by the following examples. In the Valencia incident in
1897 (Moore's Digest 11, pages 280-282) a Spanish warship fired
on an American merchant ship in Spanish territorial waters because
she failed to show her flag. The United States Secretary of State
addressed a strong protest to the Spanish Government. "The fact
remains", he wrote, "that the falling of a solid shot near the stem
of an American ship under such circumstances imports wanton and
unjustifiable peril to the citizens and property of a friendly State.
This Government has never admitted that life and property may
be unnecessarily jeopardized by superior force, even when an
offence against the revenue or other formal laws may have been
committed by an American ship within a foreign jurisdiction, and
it cannot be expected to admit that one of its ships or those on
board may be endangered because of a friendly foreign commander's
ideas as to maritime punctilio." Again, in the case of Dr. Bonilla
(Moore's Digest 11, page 880) an American ship had been called
upon, when in a port within the jurisdiction of Honduras, to
hand over to the authorities one of its passengers for an alleged
offence. Instead of complying with the demand the captain of the
ship set sail. Cannon shots were then directed at the ship. The
United States protested against "the reckless and offensiveresort
to arbitrary force against an unarmed ship", and the Government
of Honduras apologized.
74. Limitations on the use of force in exercising the right of
hot pursuit are also recognized by customary international law.
In the case of The I'm Alone (3 United Nations Reports of Inter-
national Arbitral Awards, 1609) which was referred to an arbitral
Commission set up by the United Kingdom and United States
Governments under the Anglo-American Liquor Treaty of 1924
1 United KingdomTreaty Series (192NO. 22.
25362 MEMORIAL OF UXITED KISGDOII (281'11158)
a British vessel of Canadian registry was intentionally sunk by a
United States coastguard vessel, because it had refused to stop
and to allow itself to be boarded and searched. The Commissioners
decided that the intentional sinking of the suspected vessel could
not he justified by any principle of international law, even if the
vessel had been within the limits recognized by the Convention
and its subsequent pursuit were justified. The decision of the
Commissioners appears to have been on the basis that inter-
national law condemns the deliberate use of force to sink a ship
by a State exercising the right of hot pursuit.
75. The exercise of jurisdiction on the high seas by a naval
vessel of a State for the purposes of verifying the flags of mer-
chantmen of other States also illustrates the limitations which
international law places on the use of force in peacetime. It is
recognized that the warship shall first call on the merchant vessel
to show her flag. The warship does this by hoisting her own flag,
and firing a blank cartridge. If the other ship takes no notice,
the naval vessel may not resort to force without first giving warning
by firing a shot across the bows of the other ship. If the merchant
vessel still does not hoist its flag "the suspicion becomes so grave
that the man-of-war may compel her to bring to for the purposes
of visiting her and thereby verifying her nationality". (Oppenheim,
International Law, 8th Edition, Volume I, page 605.)
76. Further examples of the principle stated in paragraph 67
above are afforded by cases in which action has been taken against
foreign nationals illegally crossing the frontier of another State.
In the case of Garcia v. theU.S.A., 1928(4 United Xations Reports
of International Arbitral Awards, 119) which was decided by the
Mexico-United States General Claims Commission, an American
officer opened fire with a rifle on a raft which had crossed the
Rio Grande from the Mexican to the American side and was just
setting out on the return journey. The officer stated that he fired
at a distance of about 1,500 yards to 2,400 yards, not with the
intent of hitting anybody but with the object of frightening the
persons on the raft. One of the persons on the raft was killed.
The majority of the Commission held that the action by the
American officer was illegal, and in particular that the act of
firing in such circumstances should not be indulged in "unless
the importance of preventing or repressing the delinquency by
firing is in reasonable proportion to the danger arising from it
to the lives of the culprits and other persons in their neighbour-
hood", nor should it be used "when other practicable ways of
preventing or repressing the delinquency might be available".
77. The general principle of international law that force may
not be used in reckless disregard of human life and safety against
intruders in time of peace, has been asserted,explicitlyor implicitly,
in protests made on several occasions since the Second \I1orld hlE.\lORIALOF UXITED KIh'GDOhI (28 VIII58) 363
War against the shooting down of aircraft which overflew the
territory of certain European States. Those incidents are enume-
rated by Lissitzyn and de La Pradelle (op. cit.). The protest made
by the Government of the United States to the Yugoslav Govern-
ment in respect of two incidents, in the second of which an unarmed
United Statcs military air transport was shot down over Yugo-
slavia on August 19, 1946, and its occupants killed, asserted that
"the deliberate firing without warning on the unarmed passenger
planes of a friendly nation is in the judgment of the United States
an offence against the lavr.of nations and the principles of huma-
nity". The Yugosla\~ Government, although offering compensation
on an ex gratia basis only, stated that orders had been given that
in future transport aircraft should not be fired at even in cases of
intentional over-flight, but should be invited to land. If they
refused, their identity would be noted and the necessary steps
taken through diplomatic channels (15Department of State Bulletin
(1946) 415-419, 501.505, 544 and 725). The principle that the
appropriate remedy, in the case of an alleged violation of airspace,
is for the State which alleges such violation first to attempt to
obtain satisfaction from the owner of the aircraft, and, failing
this, to take the matter up through the diplomatic channel with
the State \\,hose nationality the aircraft bears was affirmed, on
behalf of the Government of the United Kingdom, on December 5,
1955, at the 682nd meeting of the Third Committee of the General
Assembly of the United Nations (10th Session).
78. No justification for the use of force against civil aircraft on
a scheduled flight which enters, without authorization, the airspace
of another State, can be derived from the Convention for the
Regulation of Aerial Navigation signed at Paris on October 13,
1919, or the Convention on International Civil Aviation, signed at
Chicago on December 7, 1944. Both Conventions1 provide that
Contracting States may establish areas in which, for military reasons
or in the interests of public safety, the entry of aircraft of the other
Contracting States may be prohibited (Article 3 of the Paris Con-
vention and Article 9 of the Chicago Convention). Under Article 4
of the Paris Convention, an aircraft finding itself above a prohibited
area established under Article 3 of that Convention must, as soon
asit is aware of the fact, give the signal of distress provided for in
paragraph 17 of Annex (D) to the I'aris Convention, and land as
soon as possible outside the prohibited area at one of the nearest
aerodromes of the State whose territory it has entered. Under
paragraph (c) of Article 9 of the Chicago Convention, each Con-
tracting State, under such Regulations as it may prescribe, may
require any aircraft entering one of the restricted or prohibited
' Bulgaria is not,anwas not on July 27.1955,a party to the Chicago Con-
asnnoolonger inforce.er,a party to the ParConvention which inow regardedareas for the establishment of which paragraph (a) of Article 9
provides "to effect a landing as soon as practicable thereafter at
some designated airport within its territory". The Government of
the United Kingdom submit that, since the Conventions on Aerial
Navigation do not sanction the use of force against aircraft flying
above prohibited or restricted areas, no Contracting State can be
in any stronger position against civil aircraft on scheduled flights
which overfly other areas of their territory without permission.
PART VII
Measure of Reparation
79. As to the measure of reparation or compensation, the Govern-
ment of the United Kingdom submits that this should be based
upon the losses sustained by citizens of the United Kingdom and
Colonies (as set out in Annexes 2 and 3), by reason of the deaths
of the citizens of the United Kingdom and Colonies on board
4X-AKC and the loss of personal effects and freight, owned by
citizens of the United Kingdom and Colonies and carried on that
aircraft. The Government of the United Kingdom accepts as
applicable to the present case the principles laid down by the
Permanent Court of International Justice in the case concerning
the Factory at Cltorzdrm(,Judgment Xo. 13, Series A, No. 17, p. 47)
in which the judgment contained this passage:
"The essential principle contained in the actual notion of an
illegal act-a principle which seems to be established by inter-
national practice, and in particular by the decisions of arbitral
tribunals-is that reparation must, as far as possible, wipe out
all the consequencesof the illegal act and re-establish the situation
been committed. Restitution in kind, or if this is not possible,t
payment of a sum corresponding to the value which a restitution
in kind would bear; the award, if need be, of damages for loss
sustained which would not be covered by restitution in kind or
payment in place of it-such are the principles which should serve
to determine the amount of compensation due for an act contrary
to international law."
These principles were also regarded as applicable by the Govern-
ment of the United Kingdom in the Corfz~Channel case and were
upheld by the International Court of Justice in its assessment on
December 15, 1949. of the amount of compensation due in that
case from the People's Republic of Albania to the United Kingdom
of Great Britain and Northern Ireland. (I.CJ. Refiorts Iyqg, pp.
244-250.) The Government of the United Kingdom cannot regard
the compensation offered by the Bulgarian Government to the
Government of the United Kingdom on July 19, 1957, in respect
of the citizens of the United Kingdom who were killed when MEHORIAL OF UNITED KINGDODI (28VIII 58) 365
4X-AKC was shot down on July 27, 1955 (see paragraph 61 of this
Memorial), as being in conformity with the principles stated above
or as fulfilling the Bulgarian Government assurance in the last
paragraph of their Note Verbale of August 4, 1955 (Annex ZI),
that they were ready "B assurer le dkdommagement dfi A leurs
familles [i.e.the families of the victims], ainsi que sa part de
l'indemnitb des dbgits matkriels".
80. The Bulgarian Government's offer of compensation, that is,
56,000 transferable leva in respect of each victim of the incident,
bears no relation to the amount of the losses suffered by citizens
of the United Kingdom and Colonies through the deaths of other
citizens of the United Kingdom and Colonies who were aboard
4X-AKC on Jul 27, 1955. The amount of these losses is set out
in Annex 2 to this Memorial.
PART VIII
Conclusions
81. The Government of the United Kingdom asks the Court to
adjudge and declare as follows:
(I) That on July 27, 1955, the death of four citizens of the
United Kingdom and Colonies was caused by the shooting
down near Petrich in Bulgaria of 4X-AKC.
(2) That 4X-AKC was shot down by members of the Bulgarian
armed forces.
(3) That 4X-AKC was an unarmed civil aircraft bearing the
proper visible markings.
(4) That no warning, or in the alternative, insufficient warning,
was given to 4X-AKC that it was flying over Bulgarian
territory.
(5) That no, or in the alternative, insufficient attempt was made
by the Bulgarian forces to request 4X-AKC to land before
fire was opened upon the aircraft.
(6) That 4X-AKC entered the airspace above the territory of
Bulgaria either in distress or inadvertently.
(7) That even if for any reason it is held that Conclusions
Xos. 4.5 or 6 are not established the action of the Bulgarian
forces in firing at 4X-AKC and so causing its destruction
and the loss of lives and property was unjustified in inter-
national law.
(8) The facts on which the Government of the United Kingdom
relies in support of the findings in conclusions (I) to (7)
are set out in Part I1 of this Memorial and the Annexes
thereto.366 MEMORIAL OF UNITED KINGDON (28VIII58)
(9) That in the circumstances set forth in this Memorial as
summarized in the preceding paragraphs of these Conclu-
sions, the Bulgarian Government has committed a breach
of its obligations under international law and is inter-
nationally responsible to Her Majesty's Government in the
United Kingdom for the losses sustained by citizens of the
United Kingdom and Colonies by reason of the death of
persons on board 4X-AKC on July 27, 1955; and for the
loss of personal effects and freight owned by citizens of
the United Kingdom and Colonies which were carried on
that aircraft.
(10) That the Bulgarian Government is under an obligation to
the United Kingdom Government to make reparation in
respect of the breach of its international obligations.
(11) That Her Majesty's Government has as the result of the
breach by the Bulgarian Government of its obligations
under international law sustained the following damage:
s. a.
Compensation for deaths of citizens of
the United Kingdom and Colonies
(Annex I) ........... 58,000 o o
Compensation for loss of personal bag-
gage owned by citizens of the United
Kingdom and Colonies (Annex 2) . 810 o o
Compensation for loss of freight owned
by citizens of the United Kingdom
and Colonies (Annex 3) ...... 59" 5
Total . 58,869 11 5
Dated this twenty-eighth day of August, 1958.
(Signed J.A. C. GUTTERIDGE.
Agent for the Government of the United Kingdom. Annexes to the Memorialof the Government
of the United Kingdom
Annex I
PARTICULARS OF THE CITIZENS OF THE UNITED KINGDOM
AND COLONIES KILLED
[Not refirodnced]
Annex z
PARTICULARS OF THE CLAIMANTS WHO ARE CITIZENS OF
THE UNITED KINGDOM AND COLONIES AND DETAILS OF
THEIR CLAIMS
[Not reproduced]
Annex 3
PARTICULARS OF FREIGHT OWNED BY JURIDICAL PERSONS
INCORPORATED OR CONSTITUTEDIN THE UNITED KINGDOM
[Not reproduced]
Annex 4
PHOTOGRAPHSOF 4X-AKCIN ITS UNDAMAGEDSTATETAKEN
AT CIAMPINO AIRPORT, ITALY, AND LOD AIRPORT, ISRAEL
[Not refiroduced]
Annex 5
MAP OF ROUTE OF THE SCHEDU1.ED FLIGHT LONDONITEL
AVIV (LOD) OF 4X-AKC ON JULY 26-27, 1955
[Not re$roduced]
Annex 6
WEATHER FORECAST PROVIDED BY METEOROLOGICAL
OFFICE, VIENNA, TO CAPTAIN OF qX-AKC
[Not reproduced]368 LIST OF ANNEXES TO U.K. MEMORIAL
Annez 7
EL AL'S SHORT RANGE FLIGHT PLAN FOR THE FLIGHT OF
4X-AKC FROM VIENNA TO TEL A~fi (FLIGHT 402/26)
[Not reproduced]
I
Annex 8
AIR TRAFFIC CONTROL,VIENNA, FLIGHT PLAN FOR 4X-AKC
[Not reproduced]
Annex 9
MAP SHOWING AIRWAY AMBER 10
[Not reproduced]
Annex 10
UPPER AIR CHART FOR 500 MILLIBARS RECORDING
OBSERVATIONS AT 0300 HOURS AND 1500 HOURS G.M.T. ON
JULY 27, 1955
[Not reproduced]
Annex 11 :
SURFACE SYNOPTIC CHART FOR 0600 HOURS G.M.T. ON
JULY 27, 1955
[Not reproduced]
Annex 12 ,
METEOROLOGICAL DATA PROVIDED BY THE BULGARIAN
GOVERNMENT WITH ENGLISH TRANSLATION
[Not reproduced]
Annex 13
RECORD OF AIR TRAFFIC CONTROL COMMUNICATIONS
CONCERNING 4X-AKC
[Not reproduced] ' LIST OF ANNEXES TO U.K. MEMORIAL
369
Annex 14
PHOTOSTAT COPIES OF ORIGINALS OF STATEMENTS MADE
BY YUGOSLAVAND GREEK WITNESSES WITH ENGLISH
TRANSLATIONS
[Not reproduced]
Annex 15
AERONAUTICAL CHART, SCALE ~:~.ooo,ooo,SHOWING AREA
NEAR YUGOSLAV/GREEK/BULGARIAN FRONTIERS
[Not reproduced]
Annex 16
PHOTOGRAPHS OF PARTS OF THE WRECKAGE OF 4);-AKC
[Not reprodrrced]
Annex 17
PHOTOGRAPH OF PART OF TAIL UNIT OF 4X-AKC, SHOWING
PERFORATION
[Not ~eproduced]
Annex 18
PART 4, SECTION 14,PAGE g OF EL AL ISRAELI AIRLINES LTD.
OPERATIONS MANUAL ("UNCONTROLLABLE
DECOMPRESSION")
[Not reproduced]
Annex 19
NOTE VERBALE OF JULY 28,1955, FROM THE BULGARIAN
MINISTRY FOR FOREIGN AFFAIRS TO THE ISRAELI
LEGATION IN SOFIA
[See Anire3 lo Application of Isrp.lrz]
Annex zo
NOTE OF JULY 30, ~gjj, FROM HER BRITANNIC MAJESTY'S
CHARGE D'AFFAIRES IN SOFIA TO THE h1INISTER FOR
FOREIGN AFFAIRS OF THE PEOPLE'S REPUBLIC OF
BULGARIA
[See Annex Ito Application of United Kingdpp. 9-11]370 LIST OF AXSEXES TO U.K. IlEBlORIAL
Annex 21
NOTE VERBALE OF AUGUST 4, 1955, FROM THE BULGARIAN
MINISTRY FOR FOREIGN AFFAIRS TO HER BRITANNIC
MAJESTY'S LEGATION IN SOFIA
[See Annex z to Application of United Kingdpp. 11-121
Annex 22
NOTE OF MARCH 12, 1956, FROM HER BRITANNIC MAJESTY'S
MINISTER IN SOFIA TO THE MINISTER FOR FOREIGN
AFFAIRS OF THE PEOPLE'S REPUBLIC OF BULGARIA
[See Annex3 to Application of United Kingdop.121
Annex 23
NOTE OF JANUARY 31, 1957, FROM HER BRITANNIC
MAJESTY'S MINISTER IN SOFIA TO THE MINISTER FOR
FOREIGN AFFAIRS OF THE PEOPLE'S REPUBLIC OF
BULGARIA
[Not reproduced7
Memorial submitted by the Government of the United Kingdom of Great Britain and Northern Ireland