“Get my God damn aircraft back”

This is the story of another lesson I learnt early in my time working as a lawyer in Jakarta in the late 1970’s. Like the pirate story just published, it shows how legal proceedings are not the way to resolve disputes unless it absolutely cannot be avoided. This general principle is even more true if the dispute is tied up with significant cultural or religious issues.

At this time the Indonesian Government did not have enough aircraft to fly its pilgrims to and from Mecca. The solution adopted by the Government was to lease aircraft from the international market. And so, for this particular year, they leased several aircraft from an American businessman whose name is permanently etched into my memory bank but who I will call “Fred Smith”. I was sitting in my office early one morning when the operator put through a call to me from Fred Smith. With a very strong New York accent, Fred proceeded to tell me that the Indonesian Government had impounded two of his aircraft in Jakarta and had refused to pay him the balance of what he was due under the lease agreement. He ended his call telling me in no uncertain terms, “Get my God damn aircraft back”.

Of course I told him we needed to review the lease agreement. In those years there were no faxes or email, so he couriered the agreement to me. A week later I had the agreement and painstakingly read the document and found the clause I had hoped was there. The clause in essence stated that the Indonesian Government took the aircraft “as is where is”. This means that the lessor made no warranties as to the fitness of the aircraft and it was up to the lessee, being the Government, to do all its due diligence before taking possession of the aircraft. I suspect the Government did no checking at all.

The system of getting their pilgrims to and from their haj was meant to work like clockwork. As you would know all Muslims, if they can afford it, are expected to complete one haj in their lives. In a country of over 200 million that means many tens of thousands each year embarked on the haj. Some of them would have even sold the small padi they owned to fund their one and only haj. At that time the pilgrims came from all over Indonesia to wait at Halim, the then main airport in Jakarta, to take their flights. They did not just arrive a few hours before their expected departure time but some arrived a week before and just camped out in and around the airport.

No sooner had they starting using Fred Smith’s aircraft they started to break down all over the route. Some broke down in Sri Lanka, a transit stop en route to Mecca, some broke down in Saudi Arabia itself and some broke down in Jakarta. This posed a huge political problem for the Government. Some of these pilgrims had saved all their lives for this trip and, if it appeared to them, that they risked not making the haj due to no aircraft being available to take them, there could well be riots and attacks on Government officials. Not just this, but with thousands of pilgrims arriving each day in Jakarta overcrowding at the airport posed serious public safety and health issues.

Armed with a copy of the agreement, my good friend (and now one of Indonesia’s best known lawyers) Nono Makarim and I went to meet Mr. Risakota (whose name is also etched in my memory). Mr Risakota was the then Director General of Civil Aviation and the official who had impounded the aircraft. Often an Indonesian’s family name tells you where in the vast archipelago they originally came from. Mr Risakota’s name indicates he most likely came from the island group called the Moluccas (or Maluku in Indonesian) in the far east of Indonesia. Ambon, its capital, is some four hours’ flight from Jakarta which gives you a sense of how vast the archipelago is. Now to an Indonesian, the name not only tells where he or she came from, but it also gives a hint as to their likely personality characteristics. At this time all I knew was that, as a generalisation, the Javanese were very indirect and thus difficult to read as to what they really meant when they told you something. On the other hand I had a general understanding that those from the far east of Indonesia were more direct.

Just before we went into the meeting with Mr. Risakota, Nono turned to me and said “As it is a western client, why dont you lead the discussion from our side?” Nono was ten years my senior and had just returned from the US with a Doctorate of Law from Harvard University so I thought this was an exceedingly generous offer from him. And so, into the meeting we filed. The meeting proceeded in the normal fashion where you chat about general things for some time largely to see if there are any personal or family links or interests between those involved. After about ten minutes Mr Risakota said in English “How can I help you two gentlemen?” I told him we acted for Mr Fred Smith and he was most concerned that his aircraft had been impounded. I then said I would like to draw his attention to the clause in the lease agreement which stated the Indonesian Government took the aircraft “as is, where is” and what that meant in law. Mr Risakota listened patiently and when I finished my pitch he calmly and directly looked me in the eye and said, “Mr Church, this is not a question of law but a question of power and the aircraft will remain impounded.” Everything I had learnt at law school in Australia and England about the “rule of law” was utterly useless in this situation. Our meeting was clearly at an end. Mr Risakota thanked us for coming and we left. As we left the building I turned to Nono and said something to the effect “You knew exactly what would happen, didn’t you and that is why you asked me to lead the meeting?” Nono smiled and we both then laughed. Mr Risakota was clearly in a very difficult situation and would have been under extreme pressure as it was probably his department which failed to do due diligence.

As with my pirate story with the oil rig, the only thing we could do was to negotiate a fee with the Government for the release of the aircraft which claimed (with justification I have to admit) that the aircraft were “dogs”. Fred Smith came to Indonesia to conduct the negotiations and, unknown to us, he did something rather stupid in that he arranged for a couple of his pilots to fly in separately with the idea that they would “steal” back his aircraft and fly them out of Indonesia. We later learnt that the Indonesians already suspected he might try to do this, so they sabotaged the aircraft by taking out parts of the engine which they thought would stop the aircraft from flying. Fred Smith’s pilots never did “steal” back the aircraft as a deal was done with the Government. But on regaining possession of the aircraft they found the Indonesians had removed the “inboard igniters” which I am told would not stop the aircraft becoming airborne but would, not long after that, set the wings on fire and the plane would crash.

Another valuable lesson learnt – you also need to do due diligence on one’s potential clients.