Act-of-War Defense Bars Sept. 11 Superfund Claim

A lower Manhattan building owner is barred from recovering the cost of cleaning up dust from the destruction of the World Trade Center because the Sept. 11, 2001, attacks constituted an “act of war,” a federal judge ruled.

Cedar & Washington Associates LLC, owner of a 12-story building near the felled office-tower complex, sued in 2008 to remove pulverized material from the destruction under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, also known as the Superfund law. Superfund defenses bar plaintiffs from recovering damages caused solely by acts of war or acts of God, such as natural disasters.

U.S. District Judge Alvin Hellerstein in Manhattan said today that the “act of war” defense applies to Cedar and Washington Associates’ claim.

“Since the hazardous material plaintiff cleaned, and for which plaintiff sues, arose from the hijacked airplanes’ collisions with the World Trade Center, plaintiff’s damages arise from an act of war,” Hellerstein wrote, applying the defense to the airlines after finding it barred recovery against the other defendants.

Hellerstein had dismissed the lawsuit earlier for reasons including that the suit was filed too late. His ruling today came after a federal appeals court considered the case and sent it back to him.

Defendants’ Victory

The decision is a victory for the defendants, including the Port Authority of New York & New Jersey, which owned the World Trade Center, Silverstein Properties Inc., AMR Corp.’s American Airlines and United Continental Holdings’ United Airlines. Families of people killed or injured in the disaster, nearby business owners and others have sued, claiming the defendants’ negligence caused their losses.

In the attacks, terrorists hijacked airliners and flew them into the two World Trade Center towers and the Pentagon, outside Washington. A fourth hijacked jet crashed into a field in Pennsylvania. The attacks killed about 3,000 people. The collapse of the towers and nearby buildings caused debris to billow through the streets of lower Manhattan, covering everything near the site with a thick layer of dust.

Hellerstein said that his ruling “should be read narrowly, fitting the facts of this case only.”

The case is Cedar & Washington Associates v. Port Authority of New York & New Jersey, 08-cv-09146, U.S. District Court, Southern District of New York (Manhattan).

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