Petition — Trans World Airlines, Inc. v. Day

_ Court u& |

FickeD

MAK 20 1976

IN THE {

Supreme Court of the United Seger JR, CLERK

OCTOBER TERM, 1975.

No. 95 ' ] 3 o 4

vv

TRANS WORLD AIRLINES, INC.,

Petitioner,

Vv.

ARISTEDES A. DAY, et al.,

Respondents.

_—_—_—_—X—X—_—_—_—_— Ee

PETITION FOR A WRIT OF CERTIORARI TO THE i

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—__ rrr ee

Pau G. Pennoyer, Jr.

Joun N. Romans

30 Rockefeller Plaza

New York, New York 10020

Counsel for Petitioner

Cartes K. O’Nem.

Hiuzton H. Srormers, Jr.

CHADBOURNE, Parke, Wurresipe & WoLrr

New York, New York

Of Cownsel

TABLE OF CONTENTS

Opinions Below ......cccccccccsccccccewcvcccveces

Ee i ce eneenesaneen

Questions Presented ........:.ceeceeeeecereeneees

Treaty Involved ..........seeeeeceeceseeeeseseees

a eee benkewene eed

Development of the Warsaw Convention ......

The Proceedings Below ..........c.seeeeeeees

Reasons FOR GRANTING THE WRIT ..........00- 0005

I. The Decision Below Conflicts With Decisions of

Il.

ILI.

the First Cireuit Court of Appeals and the Su-

preme Court of France ...........6.60seee ees

The Decision Below Interjects Considerations

Not Proper to Treaty Interpretation and

Ignores the Intent of the Drafters ...........

The Woarenw Mimates ...cccccccccccccccccees

Subsequent Discussion of Article 17 ..........

This Case Involves Important Issues of Treaty

Interpretation Requiring Resolution by This

SND 66040405606 00 655005500060066655506606¢

I a el i oe

es i ehduekueeees

ii TABLE OF CONTENTS

CITATIONS

Cases: PAGE

American Trust Co. v. Smyth, 247 F. 2a 149 (9h Cir.

1957). ...... i nimeeaaeda duauceaus side eae A Ganda 13

The Amiable Isabella, 19 U.S. [6 Wheat.] 1 (1821) 18

Block v. Compagnie Nationale Air France, 386 F.2d

823 (Sth Cir. 1967), cert, denied, 392 U.S. 905

MT Sinan kncueeuseceued teen ce eweudenes 4,8, 11

Blumenfeld v. BEA, [1962] Z. Luft. R. 78 (Berlin

Court of Appeals 1961) 2.0.00... 0. cece cceen 10, 17

Choctaw Nation vy. United States, 318 U.S, 423 (1943) 13

Evangelinos vy. Trans World Airlines, Inc., 396

F’. Supp. 95 (W.D. Pa. 1975) ............-. 7,8, 9, 12

Factor v. Laubenheimer, 290 U.S. 276 Se vvusses 13

Felismina vy. Trans World Airlines, Inc., 13 Avi.

ERG GUM he BOWED cc cccccccsccncccececeee 9

Forsius v. Air France, [1973] Revue Francaise de

Droit Aérien 216 (Tribunal de Grande Instance

ED biidweld coc ce GUE) culedan sk 10

Alem vy, KLM Royal Dutch Airlines, 46 App. Div. 2d

679, 360 N.Y.S.2d 60 (2d Dep’t 1974) .......... 9

Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F. 2d

908 (2d Cir. 1966), aff'd by an equally divided

court, 390 U.S. 455 (1968)

MacDonald v. Air Canada, 439 F.2d 1402 (ist Cir.

ME Wit-wdsudekes dadieas aeacunledcees tke. oc 8, 9, 12

Maché v. Air France, [1967] Revue Francaise de

Droit Aérien 343 (Cour d’Appel de Rouen 1967),

aff'd, (1970) Revue Francaise de Droit Aérien 311

(Cour de Cassation 1970) .......... 6, 7, 8, 9, 10, 12, 17

TABLE OF CONTENTS iii

PAGE

Pigeon River Improvement, Slide & Boom Co. vy.

Charles W. Cox, Lid., 291 U.S. 138 (1934) ...... 11

Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798

8 RT ee re he ae ee ee 8

In Re Tel Aviv, 13 Avi. 18,166 (D.P.R. 1975)

8, 11, 12, 19

Treaty:

Warsaw Convention [Convention for the Unifica-

tion of Certain Rules Relating to International

Transportation by Air], 49 Stat. 3000 et seq.

GES NS es ee ee passim

Other Authorities:

Montreal Agreement, C.A.B. Agreement 18900, Order

maeeee, May 18, 1066 2.2... ccccccnccesscces passim

Bonet Correa, La Responsabilidad en al Derecho

I Gg UUdu bse eeeiudkkedeees veces 17

Chauveau, Note, [1968] D.S. Jur. 517 .............. 18

Chauveau, Note, D.S. Jur. 82, (1970) J.C.P. IT 16353

I eee er. 18

Drion, Limitation of Liabilities in International Air

RE ele aaa ae 17

Giannini, Saggi di Diritto Aeronautico (1932) ..... 16

Goedhuis, National Airlegislations and the Warsaw

ER A ee 16,17

Goedhuis, Observations Concerning Chapter 3 of the

Convention of Warschau 1929, Cinquiéme Con-

grés International de la Navigation Aérienne,

1-6 Septembre 1930 (19381) .............eeceee 15

iv TABLE OF CONTENTS

PAGE

Heller, Notes on the Proposed Revision of Article 17

of the Warsaw Convention, 20 Int’l. & Comp. L. if

BB (204) ..coccccvccevescannennnee 17

Hull, Report of the Secretary of State, 1934 U.S.

Aviation Reports 240 ...........cccecccceeecs .- dll

de Juglart, Traité Elémentaire du Droit Aérien

(ESSE) . 0000000660505 5e eile eee .- 8

Lemoine, Traité de Droit Aérien (1947) .......... >

Lowenfeld, Aviation Law (1972) .............006. . 5,8

Lowenfeld and Mendelsohn, The United States and

the Warsaw Convention, 80 Harv. L. Rev. 497

(RUGT) ..ccvcvesseesne ene een » &

Lureau, La Responsabilité du Transporteur Aérien

(J5GR) ..00000c8e000ee ee ne eee . (iW

Matte, Traité de Droit Aérien-Aéronantique (1964) 17

Milde, The Problems of Liabilities in International

Carriage by Air (1963) ...........cccccecces .

Minutes, Second International Confereace on Pri-

vate Aeronautical Law, October 4-12, 1929, War-

saw (R. Horner & 1), Legrez transl. 1975) ..10, 11, 13,

14, 15

Riese and Lacour, Précis « Droit Aérien (1951) .... 17

Shaweross and Beaumont on Air Law (3rd ed. 1966) 17

Van Houtte, La Responsabilité Civile dans les

Transports Aériens, Intérieurs et Internation-

a a) «1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. —_———

»

vv

Trans Wortp Araines, INc.,

F etitioner,

v.

Aristepes A. Day, et al.,

Respondents.

>=

vv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Trans World Airlines, Inc. (“‘TWA’’), prays

for a writ of certiorari to review the judgments of the

United States Court of Appeals for the Second Circuit

entered in these proceedings on December 22, 1975.’

Opinions Below

The opinion of the court of appeals appears at pages

3-18 of the separate appendix (“App.’’) and is reported

at 13 Avi. 18,144. The opinion of the district court ap-

pears at App. 21-32 and is officially reported at 393 F. Supp.

218.

+ Additional respondents are Theodora Day and Constantine

Day, in 73 Civ. 4105 (CLB) ; Kate Kersen, in 74 Civ. 3355 (CLB) ;

and John Spiridakis, Bessie Spiridakis, Leonard Lazarus and Shirley

Lazarus, in 74 Civ. 4191 (CLB).

Jurisdiction

The judgments of the court of appeals were entered

on December 22, 1975. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. Does the Warsaw Convention,? a Treaty of the

United States relating to international transportation by

air, as modified by the Montreal Agreement,’ impose abso-

lute liability on an air carrier for injuries to persons in-

side a termina] building, far removed from the operation of

aircraft?

2. In interpreting a multilateral treaty debated and

drafted in French, one of the stated purposes of which is

to achieve uniformity of law, should a court give great

weight to a recent French decision affirmed by the Su-

preme Court of France interpreting the same phrase of

the treaty in issue, as well as to decisions of American

courts?

3. Where the legislative history of a treaty drafted in

1929, and redrafted in 1971 with no change in the language

in issue, evidences the intent of the parties, may a court

frustrate that intent by invoking a policy of its own predi-

lection?

* Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Concluded at Warsaw, Octo-

ber 12, 1929. Adherence by the United States was declared June

27, 1934, and became effective October 29, 1934. 49 Stat. 3000;

T.S. 876 (“Warsaw Convention”, “Convention”, or “Treaty”).

_* An agreement of air carriers made with the approval of the

Civil Aeronauties Board. C.A.B. Agreement 18900, Order E-23680,

May 13, 1966.

3

Treaty Involved

Article 17, the provision of the Warsaw Convention in-

volved, is set forth in the separate Appendix (App. 1),

in both the official French and the U.S. government trans-

lation. Article 17 provides:

“The carrier shall be liable for damage sustained

in the event of the death or wounding of a passenger

or any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or im the course of

any of the operations of embarking or disembarking”

(emphasis added).

Statement

Respondents sued to recover damages for wrongful death

and personal injuries sustained when on August 5, 1973,

two Palestinian terrorists, who were not prospective TWA

passengers, threw hand grenades and shot at prospective

passengers waiting inside the International Transit Lounge

of Hellenikon Airport in Athens, Greece. While most of

the persons injured were prospective passengers of peti-

tioner TWA, a prospective passenger of at least one other

airline was killed and an undetermined number of prospec-

tive passengers and employees of other airlines were in-

jured (R-73a, 85).*

Respondents had submitted their tickets, checked their

baggage and passed through Greek passport inspection.

They then descended into the International Transit Lounge

where they could patronize a bar or duty-free shops or sit

in any part of this large room shared by 40 international

* References preceded by “R” refer to pages of the record con-

tained in the appendix submitted to the Second Circuit.

4

airlines.® No area within the Transit Lounge is reserved

for the exclusive use of prospective passengers of any par-

ticular airline (R-86). When their flight was called, they

lined up in front of Gate 4 to participate in a carry-on

baggage and physical search by Greek authorities (R-

84). It was at this place in the terminal that the terrorist

attack took place.

Had the attack not occurred, respondents would have pro-

ceeded through the Greek carry-on baggage and physical

search and then walked to a double set of exit doors open-

ing orto a raised terrace. They would have walked out

“onto the terrace and down a set of stairs onto a roadway

at the level of the traffic apron® and runway. From there,

an Olympie Airways bus would have taken them to the

plane, a distance of approximately 250 meters (R-79, 87c).

When the bus stopped near the aircraft, respondents would

have left the bus, walked to the plane and up the boarding

ladder.

Development of the Warsaw Convention

The Warsaw Convention, debated and drafted in French,

was written in 1929 and adhered to by the United States in

1934. The purposes of the Convention were to provide

uniform rules of recovery for passengers and shippers

throughout the world and to limit the liability of air car-

riers for international transportation. Block v. Compagnie

Nationale Air France, 386 F.2d 323, 327 (5th Cir. 1967),

cert. denied, 392 U.S. 905 (1968). It created a presump-

tion that the airline was liable, shifting the burden of

proof onto the airline to prove freedom from fault, and

limited liability to passengers to approximately $8,300.

* The floor plan of the International Transit Lounge, shared by

+0 airlines, is set forth in App. 94.

* The traffic apron or tarmac is the paved roadway on which

aircraft are parked or taxi to the runways.

5

A diplomatic conference was held at ioe Degee in 8

to formally amend the Warsaw Convention. “""'*-tur-

amendments the resulting Hague Protocol raised the limit

of liability to $16,600. While the Hague Protocol is in

effect in over 45 nations, including Canada, France and the

Soviet Union, it was never ratified by the United States.

Dissatisfied with the low limit of liability, the United

States formally denounced the Warsaw Convention in 1965

with cancellation to take effect in six months. Prior to the

scheduled cancellation date most international airlines

entered into the Montreal Agreement which was approved

by the Civil Aeronautics Board. The carriers were, of

course, aware that they could not change by private agree-

ment the applicability of the Convention, but pur-

suant to Article 22(1) of the Convention which permitted

special agreements of ‘‘a higher limit of liability,” the air-

lines agreed to increase the monetary limit to $75,000 and

to waive the defense of due care, thereby accepting the con-

cept of absolute liability for accidents falling within the

scope of the Treaty. The United States thereupon with-

drew its denunciation of the Warsaw Convention which thus

continued in all other respects to bind this nation.

The latest development of the Warsaw Convention is

the Guatemala Protocol of 1971. Representatives of 55

countries formally amended the Warsaw Convention and

the Hague Protocol. They adopted from the Montreal

Agreement the concept of absolute liability, raised the

limit of liability to $100,000, and added an escalator clause.

In addiiion, a Supplemental Compensation Plan of an

additional $200,000 was added allowing for recovery, in

absolute liability, for a total of $300,000 per passenger.

The drafters of the Guatemala Protocol did make changes

to the language of Article 17 of the Warsaw Convention,

but they kept the identical phrase at issue here, “any of

the operations of embarking or disembarking” (Lowen-

feld, Aviation Law §6.2, and Documents Supplement,

6

p. 438 (1972)). The Guatemala Protocol has been signed

by the United States and the Executive plans to send it to

the Senate for their advice and consent. The interpretation

of this clause of the Treaty, therefore, is timely and

important.

The Proceedings Below

Respondents brought their actions in the United States

District Court for the Southern District of New York in-

voking the federal question and/or diversity jurisdiction

of tie court. 28 U.S.C. §§ 1331, 1332. The complaints al-

leged that TWA was negligent and, alternatively, that

TWA was absolutely liable, regardless of fault, pursuant

to the Convention as modified by the Montreal Agreement.

Moving for partial summary judgment on the issue of

absolute liability, respondents claimed that TWA was

absolutely liable for their injuries even though they were

still inside of the Greek government owned and operated

terminal building at the time of the terrorist attack

(R-82).

TWA also moved for partial summary judgment.’ TWA

cited the legislative history of the treaty including the

minutes, the later stated views of three delegates to the

convention, as well as the writings of many other authori-

ties in the field. Domestic and foreign cases were cited

including one directly in point affirmed by the highest court

in France, Maché v. Air France (App. 59-64).

The district court held, however, that “the plain mean-

ing of the words in the course of any of the operations

of embarking produces a single conclusion’’ (393 F. Supp.

at 221, App. 27). It candidly based its decision on its own

*The motions for partial summary judgment were confined to

the scope of Article 17 of the Warsaw Convention. Plaintiffs’

claims in negligence were not involved.

7

economic pailosophy that the costs of this terrorist inci-

dent could best be borne by the airline, particularly since

the carrier could buy insurance (App. 25). The district

court ‘‘readily’”’ distinguished the American precedents as

involving disembarking as opposed to embarking, and did

not mention the Maché case (App. 30). It issued a certifi-

cate pursuant to 28 U.S.C. § 1292(b), and an interlocutory

appeal followed.

While the certified appeal in Day was pending in New

York, the United States District Court for the Western

District of Pennsylvania decided Evangelinos v. Trans

World Airlines, Inc., 396 F. Supp. 95 (W.D. Pa. 1975)

{ App. 33-49). Evangelinos arose out of the same terrorist

incident as Day and was decided on substantially similar

papers. Judge Snyder, in Evangelinos, discussing the dis-

trict ecourt’s opinion in Day stated:

“The great difficulty with Judge Brieant’s opinion

. is that it extends the liability of the signatories

to the Montreal Agreement under the Warsaw Con-

vention far beyond anything that was within the

contemplation of the parties. This the Court does

not feel justified in doing” (396 F. Supp. at 192, App.

46-47).

Without mentioning Evangelinos, which was briefed and

argued on the appeal, the United States Court of Appeals

for the Second Circuit affirmed the district court's order

in Day. While paying lip service to a court’s duty to

‘* ‘give the specific words of a treaty a meaning consistent

with the genuine shared expectations of the contracting

parties’ ’’ (App. 12), its decision was, in fact, based on the

“deep pocket’’ theory, finding that TWA could more easily

bear the expenses of the “accident.” It found that its

construction was “in harmony with modern theories of

accident cost allocation” (App. 9). The court of appeals

did not refer to Maché, affirmed by the Supreme Court of

8

France. Although it found the Montreal Agreement of

1966 (App. 13) and the Guatemala Protocol of 1971 (App.

15, n. 15) significant, the court of appeals did not discuss

the fact that the Guatemala Protocol made no change in

the language of Article 17 at issue here.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Conflicts With Decisions of

the First Circuit Court of Appeals and the Su-

preme Court of France.

The “Warsaw Convention is by far the most widely

adopted treaty concerning private international law and

after the United Nations Charter one of the most widely

adopted of all treaties . . .” (Lowenfeld, Aviation Law

$4.1). As Judge Wisdom described the Convention, it is

“rather like a ‘uniform law’ within the United States. The

Court has an obligation to keep interpretation as uniform

as possible” (Block v. Compagnie Nationale Air France,

386 F.2d 323, 337-38 (5th Cir. 1967), cert. denied, 392 U.S.

905 (1968)). It should be given its “‘proper status as a

treaty obligation of our nation without equivocation’ ”

(Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798,

801 (2d Cir, 1971)).°

Chief Judge Kaufman’s decision in Day is substantially

in conflict with the decision of the First Cireuit in Mac-

Donald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971); in

direct conflict with the decision of the French Supreme

Court in Maché v. Atr France (App. 59-64) and the deci-

sion of Judge Gignoux, Jn Re Tel Aviv (D.P.R. 1975)

(App. 50-57); and indistinguishably in conflict with Evan-

gelinos v. Trans World Airlines, Inc., 396 F.Supp. 95

(W.D. Pa. 1975) (App. 33-49), which arose out of the

same terrorist incident as Day and which was decided on

substantially similar papers. Oral argument was heard by

9

the Third Cireuit in Evangelinos on February 3, 1976, and

the parties are awaiting a decision."

In MacDonald v. Air Canada, 439 F.2d 1402 (ist Cir.

1971), the plaintiff had mysteriously fallen inside the ter-

minal building after getting off her plane but before her

daughter had picked up their baggage or before they had

gone through customs. Chief Judge Aldrich held that any

of the operations of disembarking has

“terminated by the time the passenger has descended

from the plane by the use of whatever mechanical

means have been supplied and has reached a safe

point inside the terminal . . .” (439 F.2d at 1405).

In addition, Chief Judge Kaufman’s decision in Day is

directly in conflict with Maché v. Air France’ affirmed by

the Supreme Court of France. In Maché, plaintiff was

being led by two Air France stewardesses from the plane

to the terminal building. They crossed the traffic apron

and continued on to an area called the customs garden on

* Other decisions in conflict with that of Judge Kaufman are:

Felismina vy. Trans World Airlines, Inc., 13 Avi. 17,145 (S.D.N.Y.

1974) (App. 58) (Embarking or disembarking terminates when

a passenger walks through an expandable, horizontal jetway which

leads from the airplane door to the terminal proper); Klein v.

KLM Royal Dutch Airlines, 46 App. Div.2d 679, 360 N.Y.S.2d

60 (2d Dep’t 1974) (Embarking or disembarking terminates when

a passenger “arrives safely within the terminal . . .”’),

*Maché v. Air France, |1967] Revue Francaise de Droit

Aérien 343 (Cour d’Appel de Rouen 1967), aff’d, [1970; Revue

Francaise de Droit Aérien 311 (Cour de Cassation 1970). The

trial court had held the Warsaw Convention applied, [1961]

Revue Francaise de Droit Aérien 283 (Tribunal de Grande In-

stance de la Seine 1961). The Court of Appeals of Paris af-

firmed, [1963] Revue Francaise de Droit Aérien 353 (1965); the

Court of Cassation, France’s highest court, reversed and re-

manded to a different court of appeals as is their custom, [1966]

Revue Frangaise de Droit Aérien 228 (Cour de Cassation i966).

The Court of Appeals of Rouen, sitting en banc, rendered the deci-

sion discussed above which was then affirmed by the Court of

Cassation in 1970.

10

their way to the terminal building. Before reaching the

terminal building plaintiff was injured. Examining the

travaux préparatoires, or legislative history, of this treaty

debated and drafted in French, the Court of Appeals of

Rouen held that the Warsaw Convention applies to acci-

dents on the ground during operations of embarking or

disembarking “only to the extent that these operations

are taking place on the traffic apron . . .” (App. 62). On

appeal the French Supreme Court affirmed. Once a pas-

senger leaves the traffic apron, even though he has not yet

entered the terminal bnilding and even though he is being

led by two Air France stewardesses, he has completed the

operations of embarking or disembarking.”

Where uniformity of internationol law is a primary

purpose of a multilateral treaty" a court should give great

* See also a lower court decision, Forsius vy. Air France, [1973]

Revue Francaise de Droit Aérien 216 (Tribunal de Grande In-

stance de Paris 1973) (App. 65-67) where plaintiff, just like re-

spondents, was injured in the International Transit Lounge of

Orly Airport after checking in and having passed through cus-

toms. The court held that she had not yet commenced any of

the operations of embarking. But see Blumenfeld vy. BEA, [1962]

Z. Luft. R. 78 (Berlin Court of Appeals 1961) (App. 68-72),

where plaintiff was injured outside of the terminal building on

steps leading from the terminal to the traffic apron. The court

held Warsaw applied but in dicta stated that “the air carrier

already commits the flight passengers under his care when he

requests them to go from the waiting room to the aireraft. .. .

As there exists no absolute liability to the disadvantage of the

air carrier according to the law, it cannot be unequitable to interpret

the notion of ‘embarking’ in an expansive sense” (App. 70). In

the case at bar, TWA is absolutely liable and so even on the basis

of the German lower court's decision, Warsaw would not apply.

‘That uniformity of international air law was the intention of

the drafters of the Warsaw Convention cannot be denied. The

minutes of the Convention are replete with statements of the

various framers describing this goal. Minutes, Second Interna-

tional Conference on Private Aeronautical Law, October 4-12,

— Warsaw (R. Horner & D. Legrez transl. 1975) (“Warsaw

iinvtes”).

(footnote continued on following page)

11

weight to interpretations of the highest courts of other

adherents. See Pigeor River Improvement, Slide & Boom

Co. v. Charles W. Coz, Ltd., 291 U.S. 138 (1934), where this

Court looked to the interpretation of a treaty given by the

Supreme Court of Canada.

The Day decision directly conflicts with recent decisions

interpreting the identical legislative history in the context

of terrorist incidents. On December 9, 1975, Judge Edward

Gignoux, sitting in the District of Puerto Rico, decided

In Re Tel Aviv (App. 50-57). The plaintiffs in that case

flew into Lod Airport, Israel, descended the movable stairs

and then walked or rode a bus to the terminal. Passing

through Immigration they were in the baggage area await-

ing the arrival of their baggage when two Japanese terror-

ists in the service of a Palestinian terrorist organization

opened fire with hand grenades and submachine guns.

(footnote continued from preceding page)

Sir Alfred Dennis of Great Britain stated: “As regards the

British Government, the sole reason which it has for entering into

this Convention is the desire to achieve uniformity” (Warsaw

Minutes at 35). “The draft of the Convention is contrary, on

several points, to our laws and to our customs, but we have de-

cided to make savrifices to obtain this uniformity” (Warsaw Min-

utes at 35-36). Mr. Pittard of Switzerland stated: “That which

we want to obtain is the harmony of laws” (Warsaw Minutes at

87). Mr. Ripert of France pointed out that “[w]e, want to arrive

at a unity of law in the interest of commercial transport” (War-

saw Minutes at 87). It was only in certain specified areas, where

the use of local laws was specifically authorized, such as standing

to sue and venue, Articles 21, 24(2), 25(1), 28(2) and 29(2),

that the Convention allows any deviation from the rule of uni-

formity. In each such instance, however, specific reference is

made authorizing the use of national law (Warsaw Minutes at

208-212). See Secretary of State Hull’s letter to the President,

recommending adherence to the Convention ( [1934] U.S. Aviation

Reports at 243). The Convention represents the only “wide-

spread substantive achievement in the unification of private law

by international agreement” (Lowenfeld and Mendelsohn, The

United States and the Warsaw Convention, 80 Harv, L. Rev. 497

(1967). See also Block v. Compagnie Nationale Air France, 386

F.2d 323, 337-38 (5th Cir. 1967), cert. denied, 392 U.S. 905 (1968).

No nation should put itself above this international rule of law.

12

“From the time the passengers stepped out onto the mov-

able stairs leading from the plane, all the facilities they

used were owned and operated by the State of Israel or

El Al, the Israeli National Airline, not by Air France’’

(App. 51). The 7'cl Aviv passengers’ path, therefore, was

precisely the same as respondents’ in reverse. In Athens,

all the facilities which respondents were using or would

have used, the Athens terminal and the Olympic Airways

bus, were owned and operated by the Greek government

or Olympie Airways (R 82). Discussing the legislative

history of the Warsaw Convention as well as the district

court decisions in Day and Evangelinos, Judge Gignoux

concluded:

“The legislative history, however, makes clear that in

drafting Article 17 the delegates to the Convention

specifically intended to exclude from coverage acci-

dents occurring to passengers inside an airport ter-

minal building” (App. 54).*

The interpretation of the same treaty language has been

or will be decided by three different circuits as well as by

a number of foreign courts including the Supreme Court

of France. The French Supreme Court has affirmed

Maché which was decided in 1967. The First Cireuit de-

cided MacDonald in 1971 and will soon deal with the ques-

tion again when it decides the interlocutory appeal from

Judge Gignoux’s decision, Jn Re Tel Aviv. In Day, the case

at bar, the Second Circuit conflicted with the First and

with the overwhelming worldwide authority on point. The

Third Cireuit heard oral argument in an identical case,

Evangelinos, on February 3, 1976. Where uniformity of

law is the purpose of the treaty, the departure of the Sec-

ond Cireuit from the previously established interpretation

of the treaty language should not go uncorrected, if only

to prevent inconsistent decisions within the United States.

Judge Kaufman came to a very different conclusion from his

review of the Warsaw Minutes.

13

II. The Decision Below Interjects Considerations Not

Proper to Treaty Interpretation and Ignores the

Intent of the Drafters.

The decision of the court below was in large part based

on the court’s own economic theories of accident cost allo-

cation including the airline’s ability to pay and spread the

risk (App. 9-10). Such interpretation ignores the duty of

courts to look ‘‘ ‘within the four corners of the Treaty’

keeping in mind the purpose of the contracting parties.’’

American Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir.

1957). It is not the function of a court to change a treaty

which it dislikes by the interjection of concepts foreign to

the treaty. The Amiable Isabella, 19 U.S. [6 Wheat. 1,

7 (1821).

Rather the court must fully examine the legislative his-

tory of the treaty to ascertain the intent of the parties.

Choctaw Nation v. United States, 318 U.S. 423, 431-32

(1943); Factor v. Laubenheimer, 290 U.S. 276, 294-95

(1933).

The Warsaw Minutes

The draft article presented to the delegates at Warsaw

in 1929 would have extended liability “from the moment

when travelers, goods or baggage enter in the aerodrome

of departure to the moment when they leave the aero-

drome of destination . . .” (Warsaw Minutes at 264). It

became evident that the draft article would have to be

split and that passengers would have to be treated dif-

ferently from goods and baggage. Mr. Pecanha, the

In a prior Second Circuit decision involving the Warsaw

Convention the dissenting judge stated: “The majority do not

approve of the terms of the treaty and, therefore, by judicial fiat

they rewrite it” (Lisi v. Alitalia-Linee Aeree Italiane, 8. p. A., 370

F.2d 508, 515 (2d Cir. 1966), aff’d by an equally divided court, 390

U.S. 455 (1968) ).

14

Brazilian delegate, asked “Can one make the carrier liable

for the life of the passenger before he has boarded the

aircraft? How many accidents can occur within the

boundaries of the aerodrome before the departure takes

place?” (Warsaw Minutes at 71, App. 78).

Mr. Sabanin, a delegate of the U.S.S.R., asked:

“If a passenger is injured in the aerodrome before

entering the aircraft, for example, while he is in the

restaurant of the aerodrome, it does not seem logi-

cal . . . to say that the carrier would be liable. I

admit that the proposal of the Delegation from Brazil

is more explicit and better drawn than ours” (War-

saw Minutes at 72, App. 79).

The Italian delegate, Mr. Ambrosini, stated:

“In sum, it is necessary, in my opinion, to have

expressly in mind the case of a passenger killed or

wounded by a third party in an aerodrome, because

this case is not provided for in the present text.

“| will add that should the conference adopt the

proposal of the Delegation from Brazil, things will

become much easier, because, according to this pro-

posal, the system of liability of the Convention applies

only when the passenger is on board the aircraft”

(Warsaw Minutes at 70-71, App. 77-78).

The Brazilian delegate summarized the positions:

“IT draw the attention of the Assembly to that upon

which we are going to vote. It’s a question of saying,

whether the liability of the carrier begins as soon as

the traveler enters into the aerodrome, which is a

public place, or when he embarks on the aircraft”

(Warsaw Minutes at 82, App. 89).

The Brazilian proposal was aecepted by the delegates

and the article was sent back to the drafting committee

15

from which the present language emerged and was adopted

(Warsaw Minutes at 82-83, 205-20€, App. 89-90, 92-93).

Subsequent Discussion of Article 17

Subsequent discussion at the Fifth International Con-

gress on Air Navigation held at The Hague in 1930, only

one year after the Convention was drafted, evidences be-

yond doubt that the drafters never intended the Convention

to apply to passengers inside an air terminal. The debate

concerned the precise meaning of the words “any of the

operations of embarking or disembarking.” ‘he disagree-

ment, however, centered only on whetier Article 17 in-

cluded only a passenger’s actual climbing into or out of the

aircraft or whether it also extended to accidents taking

place out on the traffic apron. D. Goedhuis, later presi-

dent of the Hague Convention, presented the two views:

‘*Further, art. 17 mentions ‘embarquement’ and ‘dé-

barquement’. The question is how to explain these

words? There are two views viz: a) in a broad sense:

i.e. the embarking begins when the passenger leaves

the station-building on his way to the aeroplane, stand-

ing in the flying-field; the disembarking ends when

the passenger, arrived at destination, enters the sta-

tion-building; b) in a narrow sense, i.e.: the getting on

board and the alightment only comprise the actual

getting in and out of the aeroplane.’’

* The adopted Article 18(2) holds a carrier liable for damage

to baggage or goods from ‘‘the period during which the baggage

or goods are found in the custody of the carrier, whether in an

airport or on board an aircraft . . .” (App. 93). Article 17, how-

ever, was specifically drafted to reflect the more limited applica-

tion of the treaty to passengers, with the words “operations of”

apparently being added in response to the question raised by Mr.

DeVos with regard to someone actually on the boarding ladder of

the aircraft (App. 88).

*® Goedhuis, Observations Concerning Chapter 3 of the Con-

vention of Warschau 1929, Cinquiéme Congrés International de la

Navigation Aérienne, 1-6 Septembre 1930 (1931) at 1163-4.

16

Mr. Goedhuis also explained that the drafters inserted

the phrase ‘‘any of the operations of’’ to insure that the

Convention would cover a trip involving more than one

stop.

‘*(T |he minutes of the meetings of the C.I.T.E.J.A.

bring out that one did not want to consider only em-

barking or disembarking at the aerodrome of de-

parture and of destination, but also the operation

during a stop en cours de route. For that reason

‘during any operations’ was used in article 17.”

(Goedhuis, National Airlegislations and the Warsaw

Convention, p. 196 (1937)).

The broadest possible interpretation one can legitimately

give to Article 17, therefore, is one which would extend the

period of liability to include those accidents occurring out

on the traffic apron after the passenger has left the ter-

minal building. In any event, this Court is not asked to

make a choice here between the ‘‘broad’’ or ‘‘narrow”’

interpretation of Article 17. Under either interpretation,

the airport buildings are excluded from coverage under

Warsaw, as was the expressed intention of the Conven-

tion’s drafters.

The overwhelming authority evidencing the intent of

the parties to have local law rather than the Warsaw Con-

vention govern accidents occurring inside airport buildings

includes a statement by Mr. Gianiuini, the Italian delegate

to the Warsaw Convention, that the ‘‘grave and unjusti-

fiable rule . . . to have liability commence at the moment

of entry into or exit from, respectively, the airport of

departure or arrival, is eliminated’’ (Giannini, Saggi di

Diritto Aeronautico, p. 233 (1932)). Dr. Otto Riese, Ger-

man delegate to the Warsaw Convention stated unequiv-

ocally that the Convention excludes those accidents having

17

taken place while the passenger ‘‘is in the airport terminal

buildings.’”*

** Riese and Lacour, Précis de Droit Aérien, p. 265 (1951). See

Goedhuis, National Airlegislations and the Warsaw Convention,

p. 193 (1937) (“when the passenger goes from the airport build-

ings to the aireraft on the tarmac [traffic apron]”); Van Houtte,

La Responsabilité Civile dans les Transports Aériens, Intérieurs

et Internationaux, p. 80 (1940) (“goes out on the runway to get

to his plane or embark on it”); Lemoine, Traité de Droit Aérien,

p. 540 (1947) (“from the time when the passenger goes out onto

the departure apron”); Lureau, La Responsabilité du Trans-

porteur Aérien, p. 90 (1961) (“from the time when the passenger

leaves the terminal building of the airport”); Bonet Correa, La

Responsabilidad en el Derecho Aereo, p. 68 (1963) (“the period

of air carriage begins when the traveller steps onto the runway”) ;

Milde, The Problems of Liabilities in International Carriage by

Air, p. 57 (1963) (“when the passenger . . . leaves the airport

building’”’) ; H. Drion, Limitation of Liabilities in International Air

Law, p. 83 (1954) (“from the final gate to the aircraft and vice

versa’”’).

See also de Juglart, Traité Elémentaire du Droit Acrien, p.

330 (1952) (“the language of Article 17 by itself does not

precisely define what is meant by ‘operations of embarking or

disembarking.’”’); Heller, Notes on the Proposed Revision of

Article 17 of the Warsaw Convention, 20 Int'l & Comp. L. Q. 142,

146 (1971) (“it would seem advisable to define clearly and un-

equivoeally when and where embarkation begins and disembarka-

tion ends.” Mr. Heller suggests that the Guatemala Protocol

draft be amended so that “|t}he rule of absolute liability would

then apply only . . . on board an aircraft in flight.”); and Shaw-

cross and Beaumont on Air Law, pp. 441-442 (3rd ed. 1966) (“the

exact meaning . . . is a question of some difficulty. Clearly the

phrase includes the time during which the passenger is ascending

or descending the steps of the aircraft. However, the words ‘In

the course of any of the operations’ of embarking or disembark-

ing appear to envision a wider period of liability and probably

include the time during which the passenger’s movements are

under the control of the carrier for the purpose of embarking and

disembarking.”

But see Matte, Traité de Droit Aérien-Aéronautique, p. 405

(1964), where, citing the dicta in Blumenfeld and the 1961 trial

cov~t decision in Maché which was later reversed, Matte states

his view that embarking commences “from the time when the

passengers are taken in charge by the employees of the airline

to be led to the plane.”

18

Paul Chauveau, Honorary Dean and Professor of Law at

the University of Bordeaux, has also addressed the question

of when liability attaches under Article 17 and has specif-

ically stated that the terminal building was excluded by the

drafters of the Convention:

“The period during which the passenger is in the

buildings of the airport was eliminated . . .” (Note by

P. Chauveau [1968], D. S. Jur. 517.)

Dean Chauveau has also noted that

“In the case of conventions such as that of Warsaw

whose purpose is to formulate uniform international

rules, one cannot justify a free interpretation which

judges of the so-called scientific school permit them-

selves in the application of internal law. A stricter

interpretation, more or less exegetic, following the

words of the text and the common intention of the

high contracting parties, is called for.” (Note by

P. Chauveau, D. S. Jur. 82 (1970), J.C.P. IL 16353)

(Cass. Crim.) ).

The recitation of this long line of authority is necessary

due to the conclusion of the court below that the legislative

history and subsequent development supported its con-

clusion (App. 11). The failure of courts to apply proper

rules of interpretation, as did the court below, can only

result in the frustration of the purposes of all treaties. In

accordance with Article 41 of the Warsaw Convention,

delegates met at The Hague in 1955 and in Guatemala in

1971 and officially made changes in the Treaty. In both in-

stances, although other provisions of the Treaty were

changed, the scope of the Treaty, as expressed in Article 17,

was not. The court below, however, substituted its own

notions of policy for the expressed intent of the over 100

signatory states.

19

Ill. This Case Involves Important Issues of Treaty

Interpretation Requiring Resolution by this

Court.

Since vast numbers of people travel on international

flights each day, it is important that both the traveling

publie and the airlines be given uniform guidance as to the

applicability of this Treaty. The decision below, conflict-

ing with the drafters’ intent and prior judicial precedent,

has the effect of unilaterally amending the Treaty so that

it would now apply to persons inside the airport buildings.

The compelling need for this Court to exercise its cer-

tiorari jurisdiction in a case such as this is self-evident.

That the issues presented by this case are of widespread

concern is demonstrated by substantial litigation involving

the identical issues in at least twelve other pending cases.”

Furthermore, this issue will have continuing significance

since the Guatemala Protocol, which will amend certain

provisions of the Warsaw Convention, contains the iden-

tical language at issue here.

If extending the concept of absolute liability to a situa-

tion which the adhering States specifically excluded be “in

harmony with modern theories of accident cost allocation,”

then it is for the adhering States, not the court below, to

change the Treaty, which as recently as 1971 these States

chose not to do.

* There are six cases in the Southern District of New York,

two in the New York State courts, two in the District of New

Jersey, and two in the Western District of Pennsylvania. Addi-

tionally, a multi-districted action, In Re Tel Aviv, involves ap-

proximately 48 cases of which three are being brought under the

absolute liability provisions of the Convention.

20

CONCLUSION

For the foregoing reasons this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Paut G. Pennoyer, Jr.

Joun N. Romans

30 Rockefeller Plaza

New York, New York 10020

Counsel for Petitioners

Cuartes K. O’Nemu

Hiton H. Sroruers, Jr.

CHADBOURNE, Parke, WuitTesipe & WoLFF

Of Coumsel

March, 1976

21

Certificate of Service.

Joun N. Romans, an attorney for petitioner and a mem-

ber of the Bar of this Court certifies that on March 19,

1976, three copies of the foregoing Petition for a Writ of

Certiorari and separate Appendix were served by mail

upon all parties required to be served as follows:

Nicno.as Liakas, Esq.

Maitman & Vo ttn, P.C.

Attorneys for Respondents Day

12%) Avenue of the Americas

New York, New York 10019

Metvin I. FriepMan, Esq.

KRe!NDLER & KREINDLER

Attorneys for Respondent Kersen

99 Park Avenue

New York, New York 10017

Frep Eruicn, Esq.

Attorney for Respondents Spiridakis

8 West 40th Street

New York, New York 10018

Dated: March 19, 1976

Joun N. Romans