Appendix — Trans World Airlines, Inc. v. Day

Supreme Court brief1976

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In THE

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Supreme Court of the United States ~

OCTOBER TERM, 1975

No. wi ] 3 54

TRANS WORLD AIRLINES, INC.,

Petitioner,

V.

ARISTEDES A. DAY, et al.,

Respondents.

SS A SSA

APPENDIX TO PETITION F OR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Sl

Pau G. Pennoyer, Jr.

Joun N. Romans

30 Rockefeller Plaza

New York, New York 10020

Counsel for Petitioner

Cuartes K. O’NEILL

Hitton H. Sroruers, Jr.

CHaDBOURNE, Parke, Wuitesipe & Wotrr,

New York, New York 10020

Of Counsel

MAR 20 1076

fj amy

TABLE OF CONTENTS TO APPENDIX

Appenprx A PAGE

Convention for the Unification of Certain

Rules Relating to International Transporta-

tion by Air, Concluded at Warsaw, October 12,

1929. 49 Stat. 3000, et seq.; T. S. 876, Articles

Oe EE Wacicdnteenkeeekencacdseuennoesnue App.

Appenpix B

Opinion of U.S. Court of Appeals .......... App.

Judgment of U.S. Court of Appeals .......... App.

Opiniou of the U.S. District Court .......... App.

AppEenpix C

Evangelinos, et al. v. TWA (W.D. Pa. 1975). . App.

In Re Tel Aviv (D. P.R. 1975) .............. App.

Felismina v. TWA (S.D.N.Y. 1974) ......... App.

Appenpix D

Maché vy. Air France (Court of Appeals of

SME cccuutesgucushankeds0audeseces App.

Forswus v. Atr France (Tribunal de Grande

Instance de Paris 1973) .................6.- App.

Blumenfeld v. BEA (Court of Appeals of Ber-

FSET CCT TTT TTTTerrrrTTrr rr App.

Aprzenpix E

Warsaw Convention Minutes ............... App.

AprenDixx F

Transit Lounge Floor Plan ................. App.

19

21

%

59

73

App. 1

APPENDIX A

Convention for the Unification of Certain Rules Re-

lating to International Transportation by Air,

Concluded at Warsaw, October 12, 1929, 49 Stat.

3000, et seq.; T. S. 876.

Official French, 49 Stat. at 3005

Article 17.

Le transporteur est responsable du dommage survenu en

cas de mort, de blessure ou de toute autre lésion corporelle

subie par un voyageur lorsque l’accident qui a causé le

dommage s’est produit a bord de l’aéronef ou au cours de

toutes opérations d’embarquement et de débarquement.

Article 18.

(1) Le transporteur est responsable du dommage sur-

venu en cas de destruction, perte ou avarie de bagages

enregistrés ou de marchandises lorsque |’événement qui a

causé le dommage s’est produit pendant le transport

aérien.

(2) Le transport aérien, au sens de l’alinéa précédent,

comprend la période pendant laquelle les bagages ou mar-

chandises se trouvent sous la garde du transporteur, que

ce soit dans un aérodrome ou a bord d’un aéronef ou dans

un lieu queleonque en cas d’atterrissage en dehors d’un

aérodrome,

(3) La période du transport aérien ne couvre aucun

transport terrestre, maritime ou fluvial effectué en dehors

d’un aérodrome. Toutefois lorsqu’un tel transport est

effectué dans |’exécution du contrat de transport aérien en

vue du chargement, de la livraison ou du transbordement,

tout dommage est présumé, sauf preuve contraire, résulter

d’un événement survenu pendant le transport aérien.

App. 2

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Concluded at

Warsaw, October 12, 1929, 49 Stat. 3000, et seq.; T. 8.

876. .

U.S. Translation, 49 Stat. at 3018-3019

Article 17

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 in the course of any of the operations of

embarking or disembarking.

Article 18

(1) The carrier shall be liable for damage sustained in

the event of the destruction or loss of, or of damage to,

any checked baggage or any goods, if the occurrence which

caused the damage so sustained took place during the

transportation by air.

(2) The transportation by air within the meaning of the

preceding paragraph shall comprise the period during

which the baggage or goods are in charge of the carrier,

whether in an airport or on board an aircraft, or, in the

case of a landing outside an airport, in any place what-

soever.

(3) The period of the transportation by air shall not

extend to any transportation by land, by sea, or by river

performed, outside an airport. If, however, such trans-

portation takes place in the performance of a contract for

transportation by air, for the purpose of loading, delivery

or transshipment, any damage is presumed, subject to

proof to the contrary, to have been the result of an event

which took place during the transportation by air.

App. 3

APPENDIX B

OPINION OF U. S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

For tue Seconp Circuit

No. 279—September Term, 1975.

(Argued December 3, 1975 Decided December 22, 1975.)

Docket No. 75-7341

-_—_ =

i ee

Aristepes A. Day, Trropora Day and ConstanTINE Day

individually and Aristenes A. Day and THeopora Day

parents of Constantine Day,

Plantiffs-Appellees,

Vv.

Trans Wortp Ar:iines, Inc.,

Defendant-Appellant.

a ee

Kate Kersen, individually and as Administratrix Ad

Prosequendum of the Estate of Elbert Kersen,

deceased,

Plaintiff-A ppellce,

v.

Trans Wortp Arauines, Inc.,

Defendant-Appellant.

i

Jonn Spiripakis, Bessir Spiripaxis, Leonarp Lazarus,

Suiruey Lazarus,

Plaintiff s-A ppellees.

v.

Trans Worup Arruines, Inc.,

Defendant-A ppellant.

So!

1221

App. 4

Optnton of U. S. Court of Appeals

Before:

KaurmMan, Chief Judge,

SamirH and Fernsera, Circuit Judges.

-_ =

Se

Trans World Airlines, Ine. appeals, pursuant to 28

U.S.C. §1292(b), from summary judgment by the United

States District Court, Southern District of New York,

Charles L. Brieant, Jr., Judge, 393 F.Supp. 217 (1975)

deciding that the airline was liable under the Warsaw

Convention, 49 Stat. 3000 (1934). The District Judge

was correct in holding that a terrorist attack was com-

mitted “in the course of ... the operations of embark-

ing ...”, Article 17, Warsaw Convention, 49 Stat. 3000

(1934).

Affirmed.

ene

Jonn N. Romans, Esq., New York, N.Y. (Chad-

bourne, Parke, Whiteside & Wolff, New

York, N.Y., P. G. Pennoyer, Jr., Esq.,

Charles K. O’Neill, Esq., Hilton H. Stothers,

Jr., Esq., of counsel), for Appellant Trans

World Airlines, Inc.

Nicotas Liakas, Esq., New York, N.Y. (Mailman

& Volin, New York, N.Y., of counsel), for

Appellees Aristedes A. Day and Constan-

tine Day.

Metvin I. Frrepman, Esq., New York, N.Y.

(Kriendler & Kriendler, New York, N.Y.,

Milton G. Sincoff, Esq., and Aian J. K onigs-

berg, Esq., of counsel), for Appellee Kate

Kersen,

, . a a a ee er

App. 5

Opinion of U. S. Court of Appeals

Kaurman, Chief Judge:

On August 5, 1973, at Hellenikon Airport in Athens,

Greece, two Palestinian terrorists hurled three grenades

and unleashed a salvo of small-arms fire into a line of

passengers preparing to board TWA Flight 881 to New

York. Three people died and more than forty others

were injured by this senseless act of. violence.

The Warsaw Convention,’ as modified by the Montreal

Agreement,’ provides, among other things, that an air-

line is absolutely liable,’ to the extent of a maximum

$75,000, for bodily injury sustained “in the course of any

of the operations of embarking.”‘ We are called upon

to decide whether, under these provisions, TWA must

provide indemnification for the deaths and injuries sus-

tained at Athens. Our conclusion is that TWA must be

held liable and that this determination accords with the

plain meaning and the underlying purpose of the Warsaw

provisions.

1,

It is necessary that we briefly describe the boarding

procedures for international flights at Hellenikon Airport

in August, 1973 as an aid to the resolution of the con-

troversy before us. The prospective passenger, after en-

tering the terminal, proceeded to the check-in counter of

the airline whose aircraft he was to utilize.. There, he

] The Warsaw Convention is officially denominated “Convention for

the Unification of Certain Rules Relating to International Transporta-

tion by Air.” Concluded at Warsaw, Poland on October 12, 1929, the

Convention is reproduced (in an English translation of the official

French version) ut 49 Stat. 3000 (1934).

2 Agreement CAB 18900 (1966).

3 There is an exception, not relevant in this case, for contributory

negligence.

4 Warsaw Convention, Art. 17.

1223

App. 6

Opinion of U. S. Court of Appeals

presented his ticket, deposited his luggage, and paid the

departure tax. In return, he was given a boarding pass

and baggage check. The passenger then passed through

Greek passport and currency control after which he de-

scended a flight of stairs into the Transit Lounge. Only

passengers waiting to board international flights were al-

lowed inside the lounge area where they were required

to remain until boarding. While the traveler waited for

his flight to be called, he secured his seat assignment at the

transfer desk loeated inside the lounge. When his flight

was announced, he proceeded to the designated departure

gate, where he and his hand baggage were searched by-

Greek policemen. The passenger then walked through the

doors of the terminal building and crossed a short ter-

race outside. Finally, he boarded a bus which transported

him to the waiting airplane.

The attack on the passengers of TWA Flight 881 oc-

curred after they had gone through several of the required

steps recited above and while they were standing in line

at the departure gate, to which a TWA representative

had summoned them, waiting to be searched. After seven

passengers had been searched, the terrorists made their

assault upon those standing in line.

As a result of this tragedy, several of the injured pas-

sengers and the executrix of a passenger who had died,

brought suit against TWA in the Southern District of New

York.’ 28 U.S.C. $§1331, 1332. They claimed that the air-

line was liable under the Warsaw Convention for the in-

juries sustained and the death. After several cases were

consolidated, the plaintiffs and the defendant moved for

5 At the time of the attack, plaintiffs Aristedes and Constantine Day

were being escorted by a TWA passeuger relations agent to the de-

parture gate. All the other plaintiffs were standing in line waiting to

he searched. We agree with Judge Brieant that these differences in

locations have no significance to the outeome of this case.

1224

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App. 7

Opinton of U. S. Court of Appeals

summary judgment on the issue of liability. Judge Brieant,

in a thoughtful and thorough opinion, 393 F.Supp. 217

(S.D.N.Y. 1975), granted the plaintiffs’ motion. He also

issued a certificate pursuant to 28 U.S.C. §1292(b), and

this interlocutory appeal followed.

IT.

Article 17 of the Warsaw Convention 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 in the course of

any of the operations of embarking or disembarking.‘

Under the Montreal Agreement, liability for injuries de-

scribed by Article 17 of the Warsaw Convention became

absolute and the maximum damages were increased to

$75,000. It is undisputed, moreover, that a terrorist attack

is considered an “accident” withir the purview of these

provisions, See Husserl v. Swiss Air Transport Co., 351

F.Supp. 702 (S.D.N.Y. 1972), aff'd 485 F.2d 1240 (2d Cir.

1973 (per curiam). Thus, the sole issue we must resolve is

whether the passengers sustained their injuries “in the

course of any of the operations of embarking or disem-

barking.”

TWA contended, both before Judge Brieant and on this

appeal, that the application of Article 17 should ‘be deter-

mined by reference only to the area where the accident

occurred. Liability under the Convention should not at-

tach, it urges, while the passenger is inside the terminal

building. The very earliest time at which liability can

6 The official version in French, is reproduced at Il Conférence In-

ternationale de Droit Privé Aérien (1930) [hereinafter “Warsaw Min-

utes”.

1225

O_O

ee ee

App. 8

Optnton of U. S. Court of Appeals

commence, the appellant argues, is when the passenger

steps through the terminal gate. Judge Brieant, however,

believed that “the issue ... is not where [the plaintiff's]

feet were planted when the killing began, but, rather, in

what activity was he engaged.” 393 F.Supp. at 220. Apply-

ing a tripartite test based on activity (what the plaintiffs

were doing), control (at whose direction) and location, the

district judge determined that Article 17 covered the

attack at the departure gate. We agree with this conclusion.

It seems clementary to us that the language employed

in Article 17 must be the logical starting point. See Article

31(1), Vienna Convention on the Law of Treaties {here-

inafter ‘Vienna Convention”). We are of the view that

the words “in the course of any of the operations of em-

barking” do not exclude events transpiring within a ter-

minal building. Nor, do these words set forth any strictures

on location. Rather, the drafters of the Convention looked

to whether the passenger’s actions were a part of the

operation or process of embarkation, as did Judge Brieant.’

It is clear that Article 17 does not define the period of

time before passengers enter the interior of the airplane

when the “operations of embarking” commence. It is,

nevertheless, appropriate to consider the activities of

the plaintiffs in this case as falling within the purview of

this somewhat cryptic phrase. The facts disclose that at

the time of the terrorist attack, the plaintiffs had already

surrendered their tickets, passed through passport control,

and entered the area reserved exclusively for those about to

depart on international flights. They were assembled at

the departure gate, virtually ready to proceed to the air-

7 The French word “opération” contained in the official version of

the Warsaw Convention connotes a process composed of many acts.

It is defined in the Nouveau Petit Larousse (1950) as “Ensemble de

moyens que l'on combine pour en obtenir un resultat,” or “a group of

procedures combined to achieve a result.”

1226

App. 9

Optnion of U. S. Court of Appeals

craft. The passengers were not free agents roaming at

will through the terminal. They were required to stand

in line at the direction of TWA’s agents for the purpose

of undergoing a weapons search which was a prerequisite

to boarding. Whether one looks to the passengers’ activity

(which was a condition to embarkation), to the restriction

of their movements, to the imminence of boarding, or even

to their position adjacent to the terminal gate, we are

driven to the conclusion that the plaintiffs were “in the

course of embarking.” *

Moreover, a relatively broad construction of Article 17,

affording protection to the plaintiffs under the Warsaw lia-

bility umbrella, is in harmony with modern theories of ac-

cident cost allocation. The airlines are in a position to

distribute among all passengers what would otherwise be a

crushing burden upon those few unfortunate enough to be-

come “accident” victims. See G. Calabresi, The Costs of

Accidents at 39-45 (1970) [hereinafter “Calabresi’”’}.

Equally important, this interpretation fosters the goal of

accident prevention. Cf. Union Oil Co. v. Oppen, 501 F.2d

958, 569-70 (9th Cir. 1974). The airlines, in marked con-

trast to individual passengers, are in a better posture to

persuade, pressure or, if need be, compensate airport man-

agers to adopt more stringent security measures against

terrorist attacks. Cf. Calabresi at 150-52. If necessary,

the airlines can hire their own security guards. And, the

8 We find MacDonald v. Air Canada, 439 F.2d 1402 (Ist Cir. 1971),

cited to us by the appellant, clearly distinguishable. In MacDonald,

the court declined to construe Article 17 as covering an elderly pas-

senger who fell after disembarking. Mrs. MacDonald was, at the time

of her accident, standing near the baggage “pickup” area, waiting for

her daughter to recover her luggage. Mrs. MacDonald was, therefore,

not acting, as were the passengers in the case at bar, at the direction

of the airlines, but was free to move about the terminal. Furthermore,

she was not, as were the plaintiffs here, performing an act required for

embarkation or disembarkation. We do not, of course, indicate any

views on the correctness of the MacDonald decision.

1227

App. 10

Optnton of U. S. Court of Appeals

companies operate under circumstanées more conducive to

investigating the condjtions at the airports they regularly

serve than do their passengers. Moreover, they can better

assess the probabilities of accidents, and balance the re-

duction in risk to be gained by any given preventive mea-

sure against its cost.

Finally, the administrative costs of the absolute liability

system embodied in the Warsaw Convention, as modified

by the Montreal Agreement, are dramatically lower than

available alternatives. If Article 17 were not applicable,

the passengers could recover—if at all—only by maintain-

ing a costly suit in a foreign land against the operator of

the airport. The expense and inconvenience of such litiga-

tion wonld be compounded by the need to prove fault and

the requirements of extensive pretrial investigation, travel,

and other factors too difficult to anticipate. Such litigation,

moreover, would often unduly postpone payments urgently

needed by the seriously injured victim or his surviving de-

pendents. See Rosenberg and Sovern, Delay and Dynamics

of Personal Injury Litigation, 59 Colum. L.Rev. 1115

(1959).

ITI.

TWA does not seriously challenge the validity of these

textual and policy arguments in favor of extending cover-

age under the Warsaw Convention tc the victims of the

Athens attack. It contends, however, that this result is

foreclosed by the legislative history of the Convention. This

history, the airline claims, establishes that the framers

intended to exclude from coverage all accidents occurring

anywhere inside a terminal building. TWA correctly states

that in interpreting a treaty we may look to its legislative

history. See, €.g., Cook v. United States, 288 U.S. 102

(1933); Block v. Compagnie Nationale Air France, 386

F.2d 323, 336-38 (5th Cir. 1967); cf. Harvard Research in

1228

a i ae i

App. 11

Opinton of U. S. Court of Appeals

International Law, Law of Treaties: Draft Convention

with Comment, Article 19 (1935) [hereinafter “Harvard

Research”’] ; McNair, Law of Treaties at 411-23 (1961). We

find, however, that, rather than undermining Judge Brie-

ant’s conclusions, the history of the W rsaw treaty bolsters

them.

The Warsaw Convention was the product of two inter-

national conferences, one held in Paris in 1925, and another

in Warsaw in 1929." The Paris conference appointed a

small committee of experts, the Comité Internationale Tech-

nique d’Experts Juridique Aériens (CITEJA), to prepare

a draft convention for consideration by the delegates at

Warsaw. The version proposed by CITEJA would have

extended accident coverage to passengers

from the time when [they] enter the airport of depar-

ture until the time when they exit from the airport of

arrival.

Warsaw Minutes at 171.’

At the Warsaw conference, several of the delegates

criticized this draft. Alcibiades Pecanha, the Brazilian

delegate, proposed that Convention liability not attach un-

til the passengers were actually inside the aircraft. War-

saw Minutes at 49. Prof. Georges Ripert, the French

delegate, however, forcefully argued against both the

CITEJA and the Brazilian proposals. It was, he observed,

virtually impossible to draft a precise formula that would

9 The history of the Warsaw Convention is discussed in Lowenfeld and

Mendelsohn, The United States and the Warsaw Convention, 80 Harv.

L. Rev. 497 (1967) [hereinafter “Lowenfeld and Mendelsohn”); and

in Ide, The History and Accomplishments of the CITEJA, 3 J. Air

L. 27 (1932).

10 ‘The original minutes are in French; we quote this clause in the

_ translation provided in TWA's brief and certified by Prof. M. Riffa-

terre of Columbia University.

1229

App. 12

Opinton of U. S. Court of Appeals

satisfactorily cover the myriad of cases that could arise.

Prof. Ripert proposed that the article be recast in terms

broad enough to allow the courts to take into account the

facts of each case. See Warsaw Minutes at 49-50, 53-54.

The delegates voted to reject the CITEJA draft™ and to

accept the French suggestion. Id. at 57. The drafting

committee then rewrote the CITEJA proposal in the form

now set forth in Article 17.

The minutes of the Warsaw proceedings thus under-

mine TWA’s contention that the delegates wished to im-

plement a rigid rule based solely on location of the acci-

dent. Rather, we believe they preferred to provide lati-

tude for the courts to consider the factual setting of each

case by considering the elements we have referred to above.

IV.

Those called upon to construe a treaty should, in the

words of Judge Clark, strive to “give the specific words

of a treaty a meaning consistent with the genuine shared

expectations of the contracting parties.” Mazimov v.

United States, 299 F.2d 565, 568 (2d Cir. 1962), aff’d

373 U.S. 49 (1963). These expectations ean, of course,

change over time. Conditions and new methods may arise

not present at the precise moment of drafting. For a

court to view a treaty as frozen in the year of its crea-

11 Prof. Ripert has been referred to as “the dean of French writers

on civil law.” Lowenfeld, Aviation Law, VI-16 (1972).

12 TWA argues that the rejection of the CITEJA draft manifested an

intent to exclude from Warsaw coverage all accidents occurring within

a terminal building. We disagree. It is our view that the delegates’

action constituted a rejection of a rigid location-based test in favor

of the more flexible approach espoused by Prof. Ripert.

Even if we were to disregard this legislative history, the most we

could infer from the rejection of the CITEJA formula would be a re-

luctance to cover all accidents occurring inside a terminal, not a deter-

mination that no such accidents should be covered. ;

1230

App. 13

Opinton of U. S. Court of Appeals

tion is scarcely more justifiable than to regard the Con-

stitutional clock as forever stopped in 1787. Justice

Holmes’s counsel concerning’ Constitutional construction,

set forth in his opinion in Missouri v. Holland, 252 U.S.

416, 433 (1920), applies with equal force to the task of

treaty interpretation:

[When we are dealing with words that also are a

constituent act ... we must realize that they have

called into life a being the development of which

could not have been foreseen completely by the most

gifted of its begetters.

The conduct of the parties subsequent to ratification of a

treaty may, thus, be relevant in ascertaining the proper

construction to accord the treaty’s various provisions. See

Pigeon River Improvement Slide € Boom Co. v. Coz, 291

U.S. 138, 158-63 (1934); Husserl v. Swiss Air Transport

Co., supra; Harvard Research, Article 19; M. McDougal,

H. Lasswell and J. Miller, The Interpretation of Agree-

ments and World Public Order 56, 58 (1967); II. C. Hyde,

International Law 72 (1922); Vienna Convention Art.

31(3).33

In divining the purposes of the Warsaw treaty, we find

the adoption in 1966 of the Montreal Agreement particu-

larly instructive. This Agreement did not alter the lan-

guage of Article 17 of the Warsaw Convention. But it

provides decisive evidence of the goals and expectations

currently shared by the parties to the Warsaw Convention.

13 We find Prof. Hyde's words especially relevant:

A court might even feel obliged to sustain [the parties’ later] con-

struction of a treaty differing widely from that which it was in

fact possible to prove to have been the design of the parties at

the time when the agreement was concluded.

II Hyde, supra, at 72. In so acting, the court does not, of course, im-

pose its own values upon the parties. Rather, the court doses no more

than respect and implement the goals and intentions of the parties.

1231

App. 14

Optnion of U. S. Court of Appeals

The Montreal Agreement was adopted in response to

a torrent of criticism of the stringent Warsaw limitations

of liability.** For example, in August, 1965, Senator Rob-

ert Kennedy suggested on the Senate floor that the United

States should consider denouncing (i.e. withdrawing from)

the Warsaw convention. “Over 2 million Americans travel

annually on international flights,” he stated.

Assuring that they and their families are adequately

protected in case of accident is, consequently, a matter

of widespread importance . . . No one questions the

fact that the protection now afforded international

travelers is woefully inadequate.

111 Cong. Rec. 20164 (1965).

On November 15, 1965, the State Department filed for-

mal notice of denunciation of the Warsaw treaty, to take

effect six months later. An accompanying press release

stated that the United States would be prepared to with-

draw its denunciation if the principal international air

carriers agreed to raise the liability ceiling to $75,000 and

if there was a reasonable prospect that the Convention

would be formally amended to incorporate this modifica-

tion. 50 Dept. State Bull 923 (1965).

The Warsaw signatories were, needless to say, not un-

duly sanguine about the vitality of the Warsaw treaty ab-

sent the world’s largest aviation power. Accordingly, on

May 15, 1966, after months of intense negotiation, the

world’s major airlines, virtually without exception, signed

what became known as the Montreal] Agreement. Under

the terms of this agreement, each airline filed a special

contract with the Civil Aeronautics Board raising the lia-

l4 See generally Lowenfeld and Mendelsohn; Lowenfeld, supra note 11,

Chapter 6; and 1. L, Kriendler, Aviation Accident Law, Chs. 11-12A

(1971). The Warsaw convention limited liability to $8300 and pro-

vided the airline with a defense of due care.

1232

oo

App. 15

Opinion of U. S. Court of Appeals

bility limit to $75,000 on all flights to, from, or stopping

over in the United States. It is important to note, in addi-

tion, that the carriers also agreed to waive the defense

of due care, Liability was to become absolute unless the

passenger himself were at fault.

It cannot be doubted, therefore, that the Warsaw Con-

vention now functions to protect the passenger from the

many present-day hazards of air travel and also spreads

the accident cost of air transportation among all passen-

gers..* Husserl v. Swiss Air Transport Company, Ltd.,

351 F.Supp. 702 (S.D.N.Y. 1972), aff'd, 485 F.2d 1240 (2d

Cir, 1973) (per curiam). This is amply demonstrated by the

imposition of absolute liability and the establishment of

greatly increased limits of liability. The official statements

made by the State Department, the prime mover behind

the Montreal modifications, reinforce this conclusion."*

Thus, the official notification of withdrawal of denunciation

stated that

the conditions which led the United States to serve

its notice of November 15 have substantially changed.

Accordingly, the United States of America believes

15 Although it was the foreign airlines, and not their respective govern-

ments, who signed the agreement implementing these modifications, the

governments whose carriers were to participate in the plan formally

assured the United States, at the request of the State Department, that

they would permit the new plan to go into effect. Lowenfeld and Mendel-

sohn at 594, 595. In assessing the expectations of these foreign gov-

ernments, we also find the 1971 Guatemala Protocol significant. That

protocol, adopted by a diplomatic conference at which 55 countries

were represented, has been signed to date by more than 20. The protocol

will formally amend the Warsaw treaty im @ manner similar to the

Montreal Agreement to provide for absolute liability up to $100,000.

See Lowenfeld, supra, at $6.2; Mankiewicz, The v971 Protocol of Gua-

temala City, 38 J. Air. L. 519 (1972).

16 Indeed, our government's concept of the goals of a treaty must be

given great weight even if the other parties hold a different view of

its meaning. See Factor v. Laubenheimer, 290 U.8. 276, 298 (1933).

1233

App. 16

Opinton of U. S. Court of Appeals

that its continuing objectives of . . . adequate protec-

tion for international air travelers will best be assured

within the framework of the Warsaw Convention.

Quoted in Dept. of State Press Release No. 111, 54 Dept.

of State Bull 955-57 (1966).

We conclude, in sum, that the protection of the passen-

ger ranks high among the goals which the Warsaw signa-

tories now look to the Convention to serve.’ We would

17 TWA, citing several treatises and articles, e.g., Sullivan, The Codifica-

tion of Air Carrier Liability by International Convention, 7 J. Air L. 1,

20 (1936), contends that “authorities the world over” hold that Warsaw

coverage is defined by location and does not extend to accidents occuring

inside a terminal building. The simple answer to this argument is that

the commentators are far from uniform. Shawcross and Beaumont, in

their treatise on Air Law (3rd od. 1966), state that coverage extends

throughout “the time during which the passenger's movements are under

the contro] of the carrier for the purposes of embarking” and suggest

that this includes “injury ... while leaving the passenger building.” Id.

at 441-42. Mateesco Matte, similarly, states that coverage begins when

the passengers are taken in charge by the airline. N. Mateesco Matte,

Traité de Droit Aérien-Aeronautique at 404-05 (1964). De Juglart re-

gard» Article 17 as possibly providing coverage for at least some events

occuring within the termina! building. M. de Juglart, Traité Blemen-

taire du Droit Aérien at 320 (1952) (Preface by G. Ripert). Accord,

Heller, Proposed Revision of Article 17 of the Warsaw Convention, 20

Int & Comp. L.Q. 142, 146 (1971). And, the Court of Appea! of Berlin,

in Blumenfeld v. BEA, 11 ZLW 78 (1962), has held that Article 17

covers a passenger who falls down a staircase leading from the terminal

to the traffic apron. The court, significantly, stated that the Convcution

applies because

the air carrie~ already commits the flight passengers under his care

when he requests them to go from the waiting room to the aircraft.

{Emphasis added}

We note, moreover, that most of the texts and commentaries cited

by TWA date from the 1930's; virtualiy all were written before 1965.

They thus antedate the 1965 United States denunciation and the subse-

quent Montreal Agreemeut. The writers of these early treatises, more.

over, could foresee neither the advent of air terrorism nor the radical

changes in boarding procedures that the ensuing years would bring.

Additionally, the purported goal of worldwide uniformity could not bave

been paramount in the minds of the framers of Article 17, for they

contemplated 8 case-by-case application by the courts that would, to

some extent at least, rely on loca! law.

1234

App. 17

Opinion of U. S. Court of Appeals

—_——

add, however, that, even if we restricted our interpretation

to the intent and purposes of the Warsaw treaty as of

1929, we would reach the same result.

Since 1929, the risks of aviation have changed dramat-

ically in ways unforeseeable by the Warsaw framers."* Air

travel hazards, once limited to aerial disasters, have un-

happily come to include the sort of terrorism exemplified

by the Athens attack. As that incident graphically dem-

onstrates, these new perils often spill over into the airline

terminal.

The Warsaw drafters wished to create a system of li-

ability rules that would cover a!l the hazards of air travel.

Cf. Sullivan, The Codification of Air Carrier Liability by

International Convention, 7 J. Air L. 1, 20 (1936) ; Calkins,

The Cause of Action under the Warsaw Convention, 26 J.

Air L. 217 (1959). The rigid location-based rule suggested

by the appellant would ill serve that goal. Under TWA’s

test, many claims relating to liability for the hazards of

flying would be excluded from the Warsaw system and

would be governed by local law. Rather than serving the

drafters’ intent of creating an inclusive system, appellant’s

proposal would frustrate it.

We believe, moreover, that the result we have reached

furthers the intent of the Warsaw drafters in a broader

sense. The Warsaw delegates knew that, in the years

to come, civil aviation would change in ways that they

18 Some commentators have suggested that when confronted with such

genuine gaps in the parties’ expectations, the interpreter should consider

accepted policy goals, such as accident prevention, in filling them. See,

e.g., McDougal, supra, at 260-61.

It is relevant in this connection that the technology of embarkation

has also changed in ways unforeseeable to the Warsaw deleyates. More-

over, airports are today far larger and boarding procedures substantially

more complex than forty-six years ago. And, many of the operations

of embarking have been moved inside the terminal building. Indeed,

even the boarding ladder, now being increasingly replaced by the jetway,

may soon become an anachronism.

1235

App. 18

Optnton of U. S. Court of Appeals

could not foresee. They wished to design a system of air

law that would be both durable and flexible enough to keep

pace with these changes. Our holding today confirms the

framers’ belief that the ever-changing needs of the system

of civil aviation can be served within the framework they

created.

Accordingly, we affirm.

1236

App. 19

Judgment of U. S. Court of Apyeais.

UNITED STATES COURT OF APPEALS

FOR THE

Seconp Cracrrr

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the

United States Courthouse in the City of New

York, on the twenty-second day of Decem-

ber, one thousand nine huvwired and seventy-

five.

Present:

Hon. Irvine R. Kavrman

Chief Judge

Hon. J. Josern Smirx

Hon. WiLFrep Fermsero

Cireuit Judges,

Aristedes A. Day, Theodora Day and Constantine Day, in

dividually and Aristedes A. Day and Theodora Day

parents of Constantine Day,

Plaintiffs-Appellees,

vy.

Trans World Airlines Inc.,

Defendant- Appellant.

—

a

Kate Kersen, individually and as Administratrix and Ad-

ministratrix Ad Prosequendam of the Estate of Elbert

Kersen, deceased,

Plaintiff-Appellee,

v.

Trans World Airlimes Inc..

Defendamt-A ppellant.

App. 20

Judgment of U. 8S. Court of Appeals.

John Spiridakis, Bessie Spiridakis, Leonard Lazarus,

Shirley Lazarus, Arnold Rose and Helen Rose,

Plaintiff-Appellee,

v.

Trans World Airlines Inc.,

Defendant-Appellant.

+

vv

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of ree-

ord from the United States District Court for the South-

ern District of New York, and was argued by counsel.

On ConsmeraTion Wuereor, it is now hereby ordered,

adjudged, and decreed that the order of said District Court

be and it hereby is affirmed in accordance with the opinion

of this court with costs to be taxed against the appellant.

JUDGMENT ENTERED—

1/21/76

Raymonp F. BurecHarpt

Clerk

A. Dante, Fvusaro

Clerk

By Vincent A. Carin

Chief Deputy Clerk

App. 21

Opinion of the U. S. District Court

Day v. Trans Wortp Arrives, Inc.

Cite as 393 F.Supp. 217 (1975)

MEMORANDUM Dectsion

Brrgant, District Judge.

These actions are brought by plaintiffs, international

passengers on defendant airline (“TWA”) to recover dam-

ages for personal injuries sustained during a terrorist

attack in the transit lounge at Hellenikon Airport, Athens,

Greece on August 5, 1973. Plaintiffs allege, inter alia, lia-

bility without fault under the provisions of the Warsaw

Convention, 49 Stat. 3000 et seq. (1934), as modified in

accordance with the Montreal Agreement (1966). Plain-

tiffs moved pursuant to Rule 56, F.R.Civ.P. for summary

judgment on the issue of absolute liability. Defendants

also moved for summary judgment on that issue of liabil-

ity, and oppose plaintiffs’ motion.

This Ccurt has subject matter jurisdiction pursuant to

28 U.S.C. § 1331.

There is no genuine issue with respect to the following

facts. The United States and Greece are adherents to the

Warsaw Convention, and TWA is a signatory to the Mon-

treal Agreement. TWA is a common carrier engaged in

transporting passengers between New York, New York

and Athens, Greece. |

Plaintiffs, or those in whose right they sue, were pas-

sengers in international transportation as defined by War-

saw [Article 1(2)] and ticketholders on TWA’s Flight

* There are pendent claims pleaded charging negligence or simi-

lar theories, apparently having little factual basis. The airport was

not owned or controlled by TWA, but by the Greek Government,

which made it available to other airlines equally.

App. 22

Opinion of the U.S. District Court.

881/5, scheduled to depart Athens at 3:30 P.M. Athens

time.’

On August 5, 1973, at approximately 3:00 P.M. Athens

time, passengers for TWA Flight 881/5, bound for New

York, were assembled in the transit lounge of Hellenikon

Airport in the vicinity of Gate 4 and were lining up for

the hand baggage check and physical search conducted by

the local Greek police prior to boarding. At 3:10 P.M.,

after approximately seven passengers had been screened

and had passed through Gate 4 to buses which would trans-

port passengers for this flight to the TWA airplare that

was parked on the traffic apron, two or more terrorists

commenced a violent attack on the passengers and others

in the transit lounge. The terrorists threw three grenades

in rapid succession which exploded in the vicinity of the

lines of passengers which had formed for final processing

for boarding the TWA flight. They followed this with sev-

eral gunshots fired into the crowd at random. The terror-

ists took up a position behind a bar in the transit lounge

and held 32 people as hostages. At approximately 5:20

P.M., after lengthy, tense and strident negotiations with

the local officials, the terrorists surrendered and were ar-

rested. The toll of this afternoon of terror: approximately

40 TWA passengers wounded; two TWA passengers died

immediately and a third died several days later; a passen-

ger of another airline died immediately; four TWA em-

ployees were injured; and an undetermined number of

passengers and employees of other airlines were wounded.

Subsequent investigations revealed that the perpetra-

tors were two members of the “Black September” organi-

zation, Shafik El Arid, also known as Mohamed Zehod,

age 21, a native of Jordan, and Talaat Khantouran, also

known as Hussein Talaat, age 21, also a native of Jordan.

—

s Hereinafter, for convenience, we use the term “plaintiffs” to

mean “injured passengers” in the context of this case.

App. 23

Opinion of the U. 8. District Court.

They were not TWA passengers. Following the all too

common scenario for such incidents, in their negotiations

following the attack the terrorists sought an aircraft to

take them to a “friendly country” and threatened to kill

the hostages absent instant gratification. In later state-

ments to the police and at their arraignment, the terrorists

admitted that they planned to attack “Israel immigrant

passengers on TWA flights going to Tel Aviv but by mis-

take struck when [these other] passengers were actually

boarding the New York bound flight.” They conceded their

membership in the Black September terrorist organization

and that they were acting pursuant to the instructions of

that group.

Regardless of their stated purpose, an obvious goal of

this frightful conduct is to seek international publicity at

the expense of innocent victims unknown to the organiza-

tion. The passengers on Flight 881/5 were for the most

part United States citizens who had been vacationing in

Greece.

The flight ultimately departed carrying only seven pas-

sengers who had completed their clearance before the inci-

dent, and were available, when the local police released the

aircraft at 5:30 P.M. Athens time; this out of 82 passen-

gers, including the plaintiffs, who had checked in for the

flight.

Prior to the incident, plaintiffs, individually, had pre-

sented their tickets at the TWA checking desk located on

the upper level of Hellenikon Airport. There, a TWA

agent processed their tickets, issued boarding passes, as-

signed seats by number and issued baggage checks. Pur-

suant to TWA’s instructions, plaintiffs proceeded through

passport and currency control, also on the upper level, and

thereafter to the transit lounge on the lower or field level

to await the search of their persons and carry-on luggage.

Once a passenger is in the lounge he may not leave that

Wee.

App. 24

Opinion of the U. 8. District Court.

area unless he again clears passport and currency control

on the upper level.

Before the incident, TWA announced that Flight 881/5,

was ready for departure. Plaintiffs were told by TWA

personnel to form a line at Gate 4 for the searches above-

mentioned. Plaintiffs along with the other passengers

were then to proceed through the lounge to a bus, owned

and operated by Olympic Airways, which was to take them

approximately 100 yards across the traffic apron to their

plane.*

Plaintiff Helen Rose had passed through the search area

when the attack occurred. Aristedes and Constantine Day,

escorted by a TWA passenger relations agent were told

to proceed with this agent to the plane just before the in-

cident took piace. All other plaintiffs at Gate 4 were

standing in line to be searched. In the Court’s view of

the case, these minor differences are not outeome deter-

minative. The issue as to any plaintiff is not where his

feet were planted when the killing began, but rather in

what activity was he engaged.

Article 17 of the Warsaw Convention provides that:

“(t]he 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 in the course of

any of the operations of embarking or disembarking.”

- (Kimphasis added)

TWA’s position on this motion is that when the attack

occurred plaintiffs were not “in the course of any of the

operations of embarking’’, as that phrase is understood

under the Convention, and therefore, as a matter of law,

* The bus served all airlines, and its operation and control was

not that of TWA.

App. 25

Opinion of the U. 8. District Court.

TWA is not liable. That the terrorist activities in the

circumstances of this case constituted an “accident” is not

disputed. The precise meaning of the terms of a statute

or treaty is a question of law. See generally Rosman v.

Trans World Airlines, Inc., 34 N.Y.2d 385, 392, 358 N.Y.S.2d

97, 314 N.E.2d 848 (1974) (Warsaw Convention).

The Warsaw Convention, formally known as the Con-

vention for the Unification of Certain Rules Relating to

International Transportation by Air, 49 Stat. 3000, T.S.

No. 876 (1934), was adopted in 1929 following several

international conferences among the aeronautical powers.

The industry was in infancy; Lindberg had flown the At-

lantic in 1927 and Earhart in 1928. Substantial perils of

al! kinds were envisioned. Accordingly, capital was diffi-

cult to secure for this infant industry, because of the risks

of loss attendant upon unlimited tort liability. To remedy

this perceived difficulty, a pian to limit liability imposed

on an airline for accidents was adopted, at the Warsaw

Convention.

The Warsaw Convention “fnnetions te redistribute the

costs involved in air transportation.” Husserl v. Swiss

Air Transport Company, Ltd., 351 F.Supp. 702, 707 (S.D.

N.Y.1972), aff'd per curiam, 485 F.2d 1240 (2d Cir. 1973).

The carrier is in a position to negotiate with the owner

or operator of an international air terminal to develop

security mechanisms io protect air travellers from terrorist

attack. Airport cperators have demonstrated their ability

and willingness to adapt to technological innovations made

necessary by the high incidence of “skyjackings”, and in

cooperation with the airlines, similar protections might be

developed to protect air passengers while they are on the

ground, Airlines are also in a better position to be able

to bear the losses incurred as a result of airport violence.

Carriers might seek insurance coverage that would dis-

tribute the cost over a great number of carriers and, con-

sequently, their passengers. See Pan American World

App. 26

Opinion of the U. 8S. District Court.

Airways, Ine. v. Aetna Casualty & Surety Co., 368 F.Supp.

1098 (S.D.N.Y.1973), aff'd, 505 F.2d 989 (2d Cir. 1974).

The airline industry in the United States is a regulated

industry which has relatively uniform tariffs and fares,

and, assuredly, such additional costs would be passed along

to air passengers. Although the problem of terrorist attack

was not anticipated by the drafters of the Convention, it

is to be assumed that a treaty designed to deal with the

hazards of modern air travel would be sufficiently flexible

to encompass this most recent hazard.

The Convention essentially created a presumption of

liability on the part of the air carrier for injury or death

arising out of international transportation, without proof

of fault, subject to certain defenses, and a concomitant limi-

tation of liability to $8,300.00 per passenger. The United

States, although not a signatory to the Convention, com-

menced adherence in 1934 pursnant to presidential procla-

mation. 1 L. Kreindler, Aviation Accident Law, § 11 (1971

ed.)*

The Warsaw Convention does not expressly define the

terms used in Article 17. The court must look to the

*The Hague Protocol proposed and signed in 1955 which

amended the Warsaw Convention was never ratified by the United

States. The United States determined later that the $8,300.00

limit imposed by the Convention was insufficient, and on Novem-

ber 15, 1965 the United States filed articles of denunciation of the

Convention to become effective within six months, On May 14,

1966, the United States withdrew its notice of denunciation and

announced its approval of an interim agreement, known as the

“Montreal Agreement.” Under this agreement, parties thereto

would inelude in their tariffs to be filed with the Civil Aeronautics

Board a special contract by which the carrier would waive those

defenses provided by Article 20(1) of Warsaw and increase its

limitation of liability under Warsaw to $75,000.00. It is important

to emphasize that the Montreal Agreement did not in any way

change the text of the Warsaw Convention. See generally, Lowen-

feld & Mendelsohn, The United States and the Warsaw Convention,

80 Harv.L.Rev. 497 (1967).

App. 27

Opinion of the U. 8. District Court.

ordinary meaning of the treaty’s terms. For the ordinary

meaning of the relevant phrase “in the course of any of the

operations of embarking’? we begin with Funk & Wagnalls

New Standard Dictionary of the English Language (1949).

“Course” is defined as “the act of moving onward or

forward in a certain direction;” “operation”, as “a course

or series of acts to effect a certain purpose ;” and “embark-

ing,” as “to go aboard a vessel or a boat.”

A consideration of the plain meaning of the words ‘‘in

the course of any of the operations of embarking” produces

a single conclusion. These passengers could not board the

aircraft unless they:

1. presented their tickets to TWA at the checking desk

on the upper level;

2. obtained boarding passes from TWA;

ad

obtained baggage checks from TWA;

obtained an assigned seat number from TWA;

>

5. passed through passport and currency control im- °

posed by the Greek Government;

6. submitted to a search of their persons for explosives

and weapons by Greek police;

7. submitted their carry-on baggage for similar inspec-

tion by Greek police;

8. Walked through Gate 4 to Olympic’s bus;

9, boarded the bus;

10. rode in the bus a distance of 100 yards; and

11. walked off the bus and onto the aircraft.

There is simply no other way to ‘‘embark,’’ except by these

eleven steps. None of these pursuits above-named were

being conducted for the personal convenience of the pas-

App. 28

Opinion of the U. 8. District Court.

sengers, nor did any of them constitute frolic and detour.

When they were injured they had completed five out of

eleven steps, each absolutely essential. Without any one, a

passenger could not “embark’’ upon the aireraft.

Of course, when the Convention was drafted, we lived in

a simpler day. Many airlines required nothing more than

to weigh the passenger and his luggage, take his ticket and

allow him to place his foot on the boarding ladder, The

plain meaning of the treaty must be adaptable to the

practical exigencies of air travel in these parlous times.

Regardless of whose real estate he was standing on at the

time of the terrorist attack, under the circumstances of this

case, any person who had accomplished as many as five out

of the above mentioned eleven essential acts without which

it would be impossible to travel on the flight, within an

uninterrupted time sequence, and was perforce lined up

to perform the balance of the required acts sequentially, is

within the plain meaning of the clause above quoted. TWA

would have refused to carry any passenger until he com-

pleted substantially all of the above-enumerated acts in the

order listed.

Apart from the “plain meaning’’ test, it is helpful to

examine the underlying purpose of the Convention and to

interpret its provisions to effectuate that purpose. For

this, we may look to the diplomatic and legislative history

of a treaty to determine its correct interpretation. Choctaw

Nation v. United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed.

877 (1943); Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct.

191, 78 L.Ed. 315 (1933); MaeDonald v. Air Canada, 439

F.2d 1402 (1st Cir. 1971). Treaties are to be liberally con-

strued so as to carry out the intention and purpose of the

parties. See DeTenorio v. MeGowan, 364 F.Supp. 1051

(S.D.Miss. 1973).

The original draft of the Convention contained a single

provision concerning carrier liability for passengers, goods

App. 29

Opinion of the U. 8. District Court.

and baggage. As initially drafted, carrier liability =

tended from the time the passengers, goods and baggage

entered the airport of departure until they departed from

the airport of arrival. There was no disagreement con-

cerning these proposals insofar as they related to goods

and baggage; however, the delegates declined to impose

such extensive carrier liability for passengers. Thus 4

logical distinction appeared between passengers and prop-

erty. Article 17 was drafted to reflect a more limited ap-

proach to the protection of passengers. Because passengers

have volition, and can get themselves into situations of

peril which inanimate articles such as goods and baggage

cannot do, liability should be limited to those times when a

passenger is exposed to the dangers of aviation. Althongh

most accidents occur while passengers are on board the

aircraft, it is obvious that a passenger may be exposed to

certain risks inherent in aviation before he actually boards

the plane, and after he has left the plane. It was a reason-

able structure to provide by Article 17 that carrier liability

be extended to accidents which take ‘‘place on board the

aircraft or in the course of any of the operations of em-

barking or disembarking.’’ Sullivan, Codification of Air

Carrier Liability by International Convention, 7 J. of Air

Law 1, 18-22 (1936).

Under modern conditions of international air travel, the

period between the moment a passenger enters the airport

until he is safely aboard the aircraft often comprises a

substantial amount of time and effort, much of which may

be said reasonably to constitute embarking. The Conven-

tion rejected liability for passenger injury during this

entire period. Instead, it established a test, based on a

purposeful activity, ‘‘embarking”. Occasionally, it may be

unclear when liability was to attach; no clear line was

drawn, as could have, perhaps been done. However, ‘‘the

great body of law consists in drawing such lines, yet when

App. 30

Opinion of the U. S. District Court.

you realize that you are dealing with a matter of degree you

must realize that reasonable men may differ widely as to

the place where the line should fall.’’ Schlesinger v.

Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 262, 70 L.Ed. 557

(1926) (Holmes, J. dissenting).

This Court should not attempt to draw such a line or

formulate an inflexible rule regarding air carrier liability

which will apply every time an airport is bombed by

criminals. We restrict ourselves to the totality of the cir-

cumstances affecting these plaintiffs, viewed against the

background of the plain meaning of the Convention, cou-

pled with a consideration of its historical purpose.

We distinguish readily the case of Felismina v. Trans

World Airlines, Inc., 18 Av.Cas. 17,145 (S.D.N.Y. June 28,

1974), which involves a claimed disembarking. A passenger

who has left the aircraft, unlike plaintiffs is not herded

in lines, and has few activities if any, which the air carrier

requires him to perform at all, or in any specific sequence

as a condition of completing his journey. The plaintiff in

Felismina, supra, was not standing in line in connection

with disembarking, and was not performing any acts re-

quired by the airline as a condition of travel. She was

injured on equipment negligently maintained by third

parties.

Although the instant motion is directed at the liability

imposed by international treaty, principles of common law

tort liability are instructive for purposes of comparison.

Stated broadly, “[a] common carrier of passengers is not

an insurer of the safety of its passengers though it is bound

to use a high degree of care for their safety.” Nieves v.

Manhattan and Bronx Surface Transit Operating Au-

thority, 31 A.D.2d 359, 297 N.Y.S.2d 743 (1st Dept. 1969).

Under common law principles, the duty of care owed by a

common carrier was not limited to the time in which the

passenger was actually on board the carrier, and extended

App. 31

Upinion of the U. 8. District Court.

to the time spent by the passenger in the carrier’s terminal.

Furthermore, :

“(t]he duty of a carrier to keep in a safe condition all

portions of its platforms and the approaches leading

thereto to which the public is reasonably likely to go is

extended to impose a similar duty upon a carrier using

the station facilities or approaches of another for its

own passengers. So imperative is the duty of a carrier

to provide a safe means of access to and exit from its

terminal grounds that such duty, it is generally held,

cannot be delegated to another. In some instances,

however, the carrier’s lack of control over the defective

premises has been held to preclude liability on its part,

the accident resulting in injuries not being one which

could have been reasonably foreseen by such carrier.”

7 New York Jurisprudence, Carriers § 333 at 291-92.

The carrier’s duty to a passenger waiting at his station

is not limited to providing a safe structure, ‘‘but also re-

quires the exercise of reasonable care to prevent danger

from vicious practices of third parties, of which the carrier

has knowledge or a reasonable opportunity for knowledge if

reasonable care is taken.” Jd. § 332 at 291.

The Court concludes as a matter of law that the afore-

mentioned injuries were incurred as a result of an accident

during the course of embarking and are actionable under

the Warsaw Convention as supplemented by the Montreal

Agreement.

Plaintiffs’ motion for summary judgment on the issue of

liability is granted; defendant’s motion for summary judg-

ment dismissing the claim is denied.

This Court recognizes that the issue of liability in these

cases is one of first impression. It seems wasteful of the

resources of plaintiffs, defendant, and the Court to proceed

immediately to a trial of the issues of damages, which un-

App. 32

Opinion of the U. S. District Court.

doubtedly could be adjusted by settlement and compromise

if the question of liability were resolved with finality. An

immediate appeal from the order to be entered may advance

materially the ultimate termination of all of the cases above

entitled, and three additional cases [Maropis, et al. v. TWA,

73 Civ. 4297-CLB, Koutsovitis, et al. v. TWA, 74 Civ. 612-

CLB and Arapolgiannis, et al. v. TWA, 74 Civ. 716-CLB]

also arising out of the same accident.

If requested by the defendant to do so, the Court will

stay = oe proceedings in these cases and certify the

question for purposes of an interlocutory

50. 4 ine y appeal under 28

Counsel for any party, if so advised, may submit a

proposed statement of the question to be certified pursuant

to Rule 5, F.R.App.P., which may be set forth in the order

determining the motion.

App. 33

APPENDIX C

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

Constantine EvanceLinos et al.,

Plaintiffs,

Vv.

Trans Worip Arrives, Inc.,

a corporation, Defendant.

Civ. A. No. 74-165.

United States District Court,

W. D. Pennsylvania.

June 12, 1975.

OPprINnIon AND ORDER

Snyper, District Judge.

Callioppi Evangelinos and her children, Constantine,

Erma, Stella, and Mary Julia (Plaintiffs) purchased round

trip air transportation reservations from Trans World

Airlines, Inc, (TWA) from Pittsburgh, Pennsylvania

through New York City to Athens, Greece, and return.

While the Plaintiffs were awaiting to board return TWA

Flight 881' in Athens in the boarding area, the peace and

quiet of the scene was broken by a terrorist attack when

two armed men threw hand grenades, followed by gun-

shots fired at random into the crowd. Then the attackers

took up a position behind a bar in the Transit Lounge and

held thirty-two people as hostages. At approximately 5:20

P.M., after nearly two hours of negotiation with local offi-

“On August 5, 1973, the security procedures with respect to

inspection of passengers and for Flight 881 were admin-

istered by the Greek authorities. * * © Two TWA security guards

were also present.” (Defendant’s Answer to Interrogatory No. 19).

App. 34

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

cials, the terrorists surrendered and were arrested. The

toll that afternoon included forty TWA _ passengers

wounded; two TWA passengers died immediately and a

third several days later; a passenger of another airline

died immediately ; four TWA employees were injured; and

an undetermined number of passengers and employees of

other airlines were wounded. The Plaintiffs herein were

severely wounded by shrapnel or bullets.

Suit was brought against TWA on absolute liability

based upon the Warsaw Convention as modified by the

Montreal Agreement, and alternatively for negligence.

The Plaintiffs have filed a Motion for Partial Summary

Judgment on the issue of absolute liability. Defendant has

also moved for Summary Judgment on that issue of lia-

bility and opposes Plaintiffs’ Motion.’

This Court has subject matter jurisdiction pursuant to

28 U.S.C. § 1331.°

There is no genuine issue with respect to the basic facts

which underlie the incident. TWA was engaged in the

international air transportation of passengers and per-

sonal property between New York City, New York, and

Athens, Greece. Both the United States and Greece are

* The cause of action based on negligence is not in issue on the

instant Motions for Summary Judgment.

* 28 U.S.C. § 1331 provides as follows:

“(a) The district courts shall have original jurisdiction of all

civil actions wherein the matter in controversy exceeds the sum or

value of $10,000, exclusive of interest and costs, and arises under

the Constitution, laws, or treaties of the United States.

(b) Except when express provision therefor is otherwise made

in a statute of the United States, where the plain‘ iff is finally ad-

judged to be entitled to recover less than the sum or value of

$10,000, computed without regard to any setoff or counterclaim to

which the defendant may be adjudged to be entitled, and exclu-

sive of interests and costs, the district court may deny costs to the

plaintiff and, in addition, may impose costs on the plaintiff.”

a re en one

App. 35

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

signatories to the Warsaw Convention, more formally

known as ‘‘A Convention for the Unification of Certain

Rules Relating to International Transportation by Air’’,*

and TWA is signatory to the Montreal Agreement,’ more

particularly discussed hereinafter.

On August 5, 1973, the Plaintiffs were driven to the

Athens Airport by a relative and arrived at about 2:00

P.M. They reported to the check-in counter in the de-

parture hall on the upper level, where their luggage was

checked, ticket coupons were submitted and boarding passes

were issued by TWA employees. They then proceeded to

an area on the same level where their boarding passes

and tickets* were checked and examined by the police and

then they reported to passport and currency control where

their passports were examined and stamped. They then

proceeded down a set of stairs into the Transit Lounge

on the lower level, entrance to which is restricted to

passengers ticketed and scheduled to depart on interna-

tional flights of the forty scheduled carriers operating out

of the terminal and to other personnel, who are not pas-

sengers, needed to service the area. Gates 4 and 5 were

normally used by TWA for their outgoing flights. The

* For a thorough review of the Convention see the excellent dis-

eussion by Judge Wisdom in Block v. Compagnie Nationale Air

France, 386 F.2d 323 (5th Cir. 1967), cert. denied 392 U.S. 905,

88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968).

5 Civil Aeronautics Board Agreement 18900, Order Serial No.

E-23680, May 13, 1966.

® The tickets contained the “Advice To International Passengers

on Limitation of Liability” and the “Notice” which read in perti-

nent part as follows: “If the passenger’s journey involves an ulti-

mate destination or stop in a country other than the country of

departure the Warsaw Convention may be applicable and the

Convention governs and in most cases limits the liability of car-

riers for death or personal injury and in respect of loss of or

damage to baggage... .”

App. 36

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

Transit Lounge was not partitioned into exclusive areas.

The Plaintiffs went to the Transfer Desk in the Transit

Lounge area where they obtained a seat assignment and

then awaited the announcement of the boarding of their

flight in order to report to Gate 4. At this Gate, there

are two separate lines, one for males and one for females,

where there is a handbag search and a physical search made

by the Greek Police. There are tables for examination

of hand luggage and behind the tables were located two

booths for physical search of all persons intending to de-

part. After the search, passengers would proceed through

double doors out of the Transit Lounge where they boarded

buses for transportation to the aircraft stationed at some

distance from Gate 4.

The Transfer Desk (where the seat assignments were

handed out) was manned by TWA personnel, as well as

employees of the other airlines that used the terminal.

Two TWA Security Guards were stationed at Gate 4 as

well as at least two passenger service personnel of TWA.

After being physically searched, the passengers would have

walked to two sets of exit doors which led from the Transit

Lounge to a raised terrace attached to the terminal build-

ing. Two sets of stairs were located on the east side of

the terrace leading to a waiting area where there was a

bus operated by Olympic Airlines and intended to carry

persons across the traffic apron a distance of approximately

250 meters to where the airplanes were parked for loading.

At the time of the attack, all eighty-nine passengers

scheduled to board TWA Flight 881 had checked in and

received their boarding passes. The Plaintiffs had com-

pleted the various steps required and began to queue up in

two lines preparatory to proceeding through the hand

baggage and physical searches. At the same time, there

was being prepared, Flight 806 destined for Tel Aviv, and

the Tel Aviv passengers were taken out of the Gate 4

ea

Oe oe ee eT

App. 37

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

lineup (the electrically controlled sign having erroneously

shown Flight 806-Tel Aviv instead of Flight 881-New

York).’ These passengers were then taken through Gate

™“At approximately 2:55 P.M., Athens local time, the boarding

of TWA Flight 840, a flight through Athens to Tel Aviv had been

completed with 121 passengers joining the flight at Athens and 21

through passengers on board. Due to the late arrival of the in-

bound aircraft, Flight 840 was in a multiple landing operation

with Flight 806, another TWA flight through Athens to Tel Aviv,

and also with the originating flight 881, a flight originating in

Athens to New York. All three vehicles were parked on the traffic

apron as shown at no. 19, Diagram A to the Enright Report.

15 passengers were then boarded on Flight 806 including a

party of ten connecting passengers originally booked on Flight 840

who had arrived late and were being protected on Flight 806, that

is, placed on a substitute flight going to the same destination. At

approximately 3:00 P.M., a TWA ground hostess made an an-

nouncement over the loud speaker system that all persons awaiting

Flight 881 were to proceed to Gate 4 which was located as shown

on Exhibit B to the Stipulation. After this announcement, pas-

sengers, including piaintiffs, scheduled to board Flight 881 began

to queue up in two lines, preparatory to proceeding through hand

baggage and physical search. Upon hearing this announcement,

Greek Airport personnel in another part of the building elec-

tronically changed the sign board over Gate 4 from ‘TWA Flight

806 Tel Aviv’ to ‘TWA Fight 881-New York’. At that point,

Marina Mastroyanni, a TWA customer service agent, who had

been told that there were two transit passengers missing from

Flight 806, bound for Tel Aviv, came to the transfer desk and

made the announcement over the loud speaking system, ‘imme-

diate boarding of TWA Flight 806 to Tel Aviv at Gate 4.’ Upon

hearing this announcement, the airport personnel changed the sign

over Gate 4 to read ‘TWA Flight 806-Tel Aviv.’ Miss Mas-

troyanni indicated at the time she made this announcement that

the wee minting tae Gane pumengee Sen Pgs SS wee oe

deplaned, apparently to go to the duty free shop. After making

the announcement at the transit desk, Miss Mastroyanni returned

to Gate 4 and asked the passengers who had been queued up there

for Flight 881 if any of them were Tel Aviv passengers. She took

three passengers out of line who were bound for Tel Aviv and took

them to Gate 5 where Swiss Air had just completed boarding of

a flight and she checked these Flight 806 passengers through Gate

5.” (Memorandum of Plaintiffs in Support of Motion for Partial

Summary Judgment, pp. 7 and 8).

App. 38

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

a a Swiss Air had just completed boarding of another

ight.

Approximately seven Flight 881 passengers had departed

through Gate 4, exited the Transit Lounge, and had either

boarded or were about to board the bus previously re-

ferred to. The great maority of the eighty-nine scheduled

passengers for Flight 881 were in line in front of the

tables at Gate 4 at the time of the incident. The Plaintiffs

were injured while being queued up in line in front of

Gate 4 while waiting to be searched.

In statements made later to the police, the terrorists ad-

mitte’ that they had planned to attack “Israel immigrant

passengers on TWA Flights going to Tel Aviv, but by

mistake struck when the passengers were actually board-

ing the New York bound flight.” They acknowledged mem-

bership in a Black September Terrorist Organization and

were seeking international publicity.

The flight finally departed for New York carrying only

the seven passengers who had completed clearance before

the incident and were available when the local police re-

leased the aircraft at 5:30 P.M. Athens time.

Tue Warsaw ConveNTION

(49 Stat. 3000, 49 U.S.C.

§ 1502 (Note))

Tn 1934, the United States became a party to the War-

saw Convention, a treaty subsequently signed by one hun-

dred and seven nations, applying to “all international

transportation of persons . . . performed by aircraft for

hire. . . * (Article 1(1)).

*The Warsaw Convention was signed by the representatives of

23 countries at Warsaw, Poland on October 12, 1929, and on Octo-

ber 29, 1934 President Roosevelt proclaimed adherence after the

United States Senate had advised adherence on June 15, 1934.

a ee

App. 39

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

It is clear that the overall obective of the Warsaw Con-

vention was «o provide uniform rules relating to air trans-

portation documents such as tickets, baggage checks and

air way bills, and to limit the air carrier’s liability for an

airplane accident. Article 17 of the Convention 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 in the course of any of

the operations of embarking or disembarking.” (Em-

phasis supplied).

Article 22 of the Warsaw Convention limited damages

to the maximum amount of $8,300 per passenger, thus lim-

iting the amount of recovery that an injured or wounded

passenger could secure on an international flight.

On November 15, 1965, the United States formally de-

nounced the Warsaw Convention because of its dissatis-

faction with the damage limitation of $8,300, feeling this

was unduly prejudicial to American citizens travelling

abroad on international flights.’ Cancellation of United

States’ participation was to take effect May 15, 1966, but

one day before that time the United States withdrew its

notice of cancellation as a result of numerous meetings

which resulted in an increased limit of liability and was

known as the Montreal Agreement. This Agreement be-

tween the air carriers, which was signed by TWA and

approved by various governmental bodies, including the

* Department of State Press Release No. 268, November 15,

1965; See New York Times, November 16, 1965 (City Edition), p.

82, column 1

Anp. 40

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

United States through its Civil Aeronautics Board,” pro-

vides:

“(1) The limit of liability for each passenger for

death, wounding or other bodily injuries shall

be the sum of U.S. $75,000. . .”

“(2) The carrier shall not . . . avail itself of any

defense under Article 20(1) . . .”

>

Previously Article 20(1) had provided that a carrier

could have a defense that it:

“. . . hafd] taken all necessary measures to avoid

the damage or that it was impossible for him or them

to take such measures.”

Thus, the Montreal Agreement, as here applicable,

waived limitations in the Warsaw Convention and agreed

to the increased liability of $75,000 for each passenger,

waived the defense it might have under Article 20(1) and

accepted absolute liability, provided the transportation

was international in scope and involved a location within

the United States. (See 32 Journal of Air Law and Com-

merce 243 (1966)). Clearly, the Montreal Agreement im-

posed liability on carriers for damages caused under cir-

cumstances beyond their control such as sabotage and

hijacking. See 80 Harvard Law Review 497, 560 (1967)

and Husserl vy. Swiss Air Transport Co., Ltd., 351 F.Supp.

702 (S.D.N.Y.1972), aff’d, 485 F.2d 1240 (2d Cir. 1973).

Discussion

Defendant TWA contends that the Warsaw Convention

does not apply for the Plaintiffs here because they were

* Approved by the Civil Aeronautics Board, May 13, 1966,

Order E-23680, 31 Fed.Reg. 7302 (1966).

a

App. 41

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

not injured while “on board the aircraft or in the course

of any of the operations of embarking or disembarking”,

because they were inside the terminal building.

The precise meaning of the terms of any statute or

treaty is a question of law. Todok v. Union State Bank,

281 U.S. 449, 50 S.Ct. 363, 74 L.Ed. 956 (1930) ; McDonald

v. Air Camada, 439 F.2d 1401 (1st Cir. 1971): Rosman vy.

Trans World Airlines, Inc., 34 N.Y.2d 385, 392, 358

N.Y.8.2d 97, 314 N.E.2d 848 (1974). The scope or sub-

stance of the carrier’s liability under the treaty must be

determined from an examination of the “four corners of

the treaty” (American Trust Company v. Smyth, 247 F.2d

149, 153 (9th Cir. 1957)), keeping in mind the purpose of

the contracting parties. Noel v. Linea Aeropostal Venezo-

lana, 247 F.2d 677, 679 (2d Cir. 1957); Rosman vy. Trans

World Airlines, Inc., swpra. Cf. United States v. Belmont,

301 U.S. 324, 331-332, 57 S.Ct. 758, 81 L.Ed. 1134 (1937).

This is further brought out by Article 23 of the Warsaw

Convention which states:

‘*Any provision tending to relieve the carrier of

liability or to fix a lower limit than that which is laid

down in this convention shall be null and void, but the

nullity of any such provision shall not involve the

nullity of the whole contract, which shall remain sub-

ject to the provisions of this convention.’’

It is not helpful to look at whether or not the airline

would have been liable at common law for injuries or acci-

dents occurring under the circumstances here, as contended

for by the Plaintiffs. To the contrary, we look to the Con-

vention. As stated by both parties, the Montrea] Agree-

ment did not and could not change the terms of the Con-

vention. The latter agreement among several airlines

raised the liability limit in accordance with Article 22(1)

of the Convention and waived the defense of due care as

App. 42

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

provided for in Article 20(1). Rosman v. Trans World

Airlines, Inc., supra; McDonald vy. Air Canada, supra. Nor

was there any attempt by the Montreal Agreement to limit

the application of ‘‘an accident’’ as defined in Article 17

of the Convention to exclude the criminal act of a third

party. See Husserl v. Swiss Air Transport, supra.

It is the well established practice of the courts in this

country Yo look to the legislative history of a treaty.

Choctaw Nation v. United States, 318 U.S. 423, 63 S.Ct.

672, 87 L.Ed 877 (1943); Factor v. Laubenheimer, 290

U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933); Cook v.

United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641

(1933). And specifically with respect to the Warsaw

Convention, a federal court has stated “the determination

in an American court of the meaning of an international

convention drawn by continental jurists is hardly possible

without considering the conception, parturition, and

growth of the convention.” Block v. Compagnie Nationale

Air France, supra, 386 F.2d at p. 336,

As we do so, we note that in the working draft that was

before the delegates as they met in Warsaw in October of

1929, it was provided:

‘The period of carriage for the application of the

provisions of the present chapter, extend from the

time when the passengers, goods or baggage enter the

airport of departure until the time when they exit

from the airport of arrival; it does not cover any car-

riage whatsoever outside the limits of an airport, other

than by aireraft.’’ (Translation from the French;

Michael Riffaterre, Professor and Chairman of the

Department of French and Romance Philology at

Columbia University; Article 20, Paragraph 1 of the

Comite International Technique d’Experts Juridiques

Aériens).

ee a ee

App. 43

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

Apparently, the delegates had little trouble agreeing

that liability should attach inside the terminal building in

the case of goods and baygage, but there was extensive

debate on that principle as regards passengers. Rosman

v. Trans World Airlines, Inc., supra. The New York State

Court of Appeals noted that ‘‘[t]he minutes of the Con-

vention indicate that the debate over this article [17] cen-

tered around the issue of when the air carrier’s liability

for damage to passengers should begin and end rather than

the scope of compensable injuries.’’ Rosman vy. Trans

World Airlines, Inc., 34 N.Y.2d 385, 395 n. 10, 358 N.Y.S.2d

97, 105 n. 10, 314 N.E.2d 848, 854 n. 10 (1974).’ When the

Draft Article was voted upon, it was rejected by the dele-

gates. (Warsaw Minutes at p. 57). The Article was then

sent back to the drafting committee and apparently at the

suggestion of the French delegate, Mr. Ripert, Draft Ar-

ticle 20 was split into two separate articles; Article 17 for

passengers and Article 18 for goods and baggage. (Warsaw

Minutes at p. 136).

Article 18, relating to goods and baggage, contained the

basic system originally provided for in Draft Article 20;

it provided for liability ‘‘if the occurrence which caused

the damage so sustained took place during the transporta-

tion by air.’’ ‘‘Transportation by air’? was defined as

comprising ‘‘the period during which the baggage and

goods are in charge of the carrier, whether in an airport

or on board an aircraft, or, in the case of landing outside

an airport, in any place whatsoever.”’

Article 17, as we have seen, related only to passengers

and covered the damages, ‘‘if the accident which caused

the damage so sustained took place on board the aircraft

or in the course of any of the opeartions of embarking or

disembarking.’’ (Emphasis added).

Amadeo Giannini, the Italian Delegate to the Confer-

ence, later wrote, concerning the change in language, that

App. 44

Evamgelinos et al. v, Trans World Airlines, Inc.

(W.D. Pa. 1975).

‘tin this way, the grave and unjustifiable rule proposed by

C.1.T.E.J.A." to have liability commence at the moment of

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

parture or arrival, is eliminated.’’ (Translation from the

Italian; Giannini, Saggi di Diritto Aeronautico, p. 233

(1932) ).

At the Fifth International Conference on Air Naviga-

tion held at The Hague in 1930, D. Goedhuis (later Presi-

dent of The Hague Convention) presented a paper in which

he stated:

‘*. , . [A]rt. 17 mentions ‘embarquement’ and ‘de-

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 station-

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

board and the alightment only comprise the actual get-

ting in and out of the aeroplane.”’

Mr. Goedhuis, during the discussion which followed,

stated that he favored ‘‘a broad interpretation . . . to

cover passengers going from the terminal building to the

plane and vice versa.’’ Others, including Dr. W. Muller,

President of the Congress Legal Section and the Dutch

Delegate to the Warsaw Conference, supported a narrow

view which covered the time when the passengers were

actually boarding the aircraft. (Fifth Congress, at p.

1173).

From these discussions it is apparent to the Court that

the delegates were defining geographical limits rather than

"* Comite International Technique d’Experts Juridiques Aériens,

App. 45

Evangelinos et al. v. Trams World Airlines, Inc.

(W.D. Pa. 1975).

an activity when they used the words, ‘‘any operations of

embarkation’’. In any event, even under the broadest of

the two positions outlined by Mr. Goedhuis, the Plaintiffs

in this case were not within the ‘‘operations of embarka-

tion’’.

We are confronted immediately with Judge Brieant’s

decision in Day v. Trans World Airlines, /nc., 393 F.Supp.

217 (S.D.N.Y. 1975), in an opinion entered March 31, 1975

in which he allowed recovery in suits involving two sur-

vivors and one decedent from this same incident who were

in the same waiting line to board Flight 881. He very

incisively sets forth his interpretation of the ‘‘operations

of embarkation’’ as follows (at p. 221):

‘*A consideration of the plain meaning of the words

‘in the course of any of the operations of embarking’

produces a single conclusion. These pasengers could

not board the aircraft unless they:

1. presented their tickets to TWA at the checking

desk on the upper level;

obtained boarding passes from TWA;

obtained baggage checks from TWA;

obtained an assigned seat number from TWA;

oF fe

passed through passport and currency control

imposed by the Greek Government ;

6. submitted to a search of their persons for ex-

plosives and weapons by Greek police ;

7. submitted their carry-on baggage for similar in-

spection by Greek police ;

8. walked through Gate 4 to Olympic’s bus;

9. boarded the bus;

App. 46

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

10. rode in the bus a distance of 100 yards; and

11. walked off the bus and onto the aircraft.

There is simply no other way to ‘embark,’ except by

these eleven steps. None of these pursuits above-

named were being conducted for the personal con-

venience of the passengers, nor did any of them consti-

tute frolic and detour. When they were injured they

had completed five out of eleven steps, each absolutely

essential. Without any one, a passenger could not

‘embark’ upon the aircraft.

Of course, when the Convention was drafted, we

lived in a simpler day. Many airlines required nothing

more than to weigh the passenger and his luggage,

take his ticket and allow him to place his foot on the

boarding ladder. The plain meaning of the treaty

must be adaptable to the practical exigencies of air

travel in these parlous times. Regardless of whose

real estate he was standing on at the time of the ter-

rorist attack, under the circumstances of this case, any

person who had accomplished as many as five out of

the above mentioned eleven essential acts without

which it would be impossible to travel on the flight,

within an uninterrupted time sequence, and was per-

force lined up to perform the balance of the required

acts sequentially, is within the plain meaning of the

clause above quoted. TWA would have refused to

carry any passenger until he completed substantially

all of the above-enumerated acts in the order listed.’’

The great difficulty with Judge Brieant’s opinion, as this

Court views the matter, is that it extends the liability of

the signatories to the Montreal Agreement under the War-

saw Convention far beyond anything that was within the

App. 47

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

contemplation of the parties. This, the Court does not feel

justified in doing.

The Defendant has cited in support of its position here,

the same cases that were cited to Judge Brieant and which

Judge Brieant primarily distinguished on the basis that

they involved disembarkation. McDonald v. Air Canada,

supra; Felismina v. Trans World Airlines, Inc., 13 Avia-

tion Law Reporter 17-145 (S.D.N.Y.1974); Klein v. KLM

Royal Dutch Airlines, 46 A.D.2d 679, 360 N.Y.S.2d 60 (2d

Dept. 1974), New York Legal Journal, October 23, 1974 at

p. 21, col. 4; Maché v. Air France [1967] Revue Francaise

de Droit Aérien 343, 345 (Cour d’Appel de Rouen 1967) ;

aff’d [1970]. It wiil be noted, however, that many of the

steps involved in embarkation, as outlined by Judge Brieant

in Day, are just as essential, although in reverse, to the

steps one must take in disembarking. Thus, it is obvious

that in disembarking from the plane, passengers must

either come down the steps from the plane or go on the

jetway to the terminal building. They may then, as was

the situation in the instant case, be required to board a bus,

but in any event, they would then enter the terminal build-

ing and be subjected to inspection by the government of

entry. At this point, we believe, they must be deemed to

be beyond the scope of the carrier’s liability.

In McDonald, supra, a disembarking passenger had left

the airplane, left the carrier’s area and had arrived in the

common terminal baggage area. Subsequently, she was

found on the floor, but no testimony was presented to

describe the cause of her fall. The First Cirenit found the

airline was not liable because negligence had not been

proven, nor was an ‘‘accident’’ proven, but rather a fall

from some internal condition. By way of dicta, the Court

stated it would seem that a passenger could not recover for

events occurring after he ‘‘has reached a safe point inside

App. 48

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

of the terminal, even though he may remain in the status

of a passenger of the carrier while inside the building.”’

(Emphasis added). The Court went on to say, ‘‘without

determining where the exact line occurs, it had been crossed

in the case at bar.’’ (439 F.2d at p. 1405). The rationale

of the Court had to do with the operation of disembarking

(activity) as being terminated by the time the passenger

descended from the plane and reached a safe point inside

the terminal, ‘‘far removed from the operation of the air-

craft’’; not just that she had reached the terminal building.

In Felismina, supra, plaintiff was disembarking and had

walked through an expandable horizontal jetway which led

from the airplane door to the “terminal proper’, and

walked through the long approach ramps at Kennedy Air-

port into a small room on the upper floor of the terminal.

She was injured as she stepped onto the down escalator

leading to the lower levelof the terminal where health, im-

migration, baggage claim, and customs were situated.

TWA attempted to apply the Convention to that situation

because of a shorter statute of limitations. The Court found

that the Warsaw Convention did not apply as, ‘‘that by the

time plaintiff boarded the down escalator, she had disem-

barked from defendant’s aircraft.” It was clear that

Felismina was not in the act of disembarking, since she had

entered on the down escalator leading to the lower level

where the baggage claim and customs were situated. She

was well beyond the scope of disembarkation.

In Klein, supra, again the plaintiffs had gotten off the

aircraft and had arrived safely within the terminal building

at Lod Airport, Israel. The Court simply held that they

had disembarked “within the meaning of Article 17 of the

Warsaw Convention.” (Cf. McDonald v. Air Canada,

supra.)

In Maché, supra, the plaintiff was led by two stewardesses

across the traffic apron from the plane toward the terminal

App. 49

Evangelinos et al. v. Trans World Airlines, Inc.

(W.D. Pa. 1975).

building. Because of construction work, he had to take a

shortcut through the customs garden which was not on the

traffic apron proper but off to the side and outside of the

terminal building. While crossing the customs garden,

which while not part of the traffic apron was on the same

level, plaintiff sustained an accident. The Court held that

the Warsaw Convention did not apply; as disembarking had

been accomplished: “it is only to the extent that these

operations are taking place on the traffic apron” that the

Convention would apply.

Here as well, we believe, when the passengers were wait-

ing in line to proceed to the last gate of the terminal, they

were not within the “operations of embarkation”, and that

as a matter of law, the Plaintiffs’ injuries in the matter

sub judice were not incurred as a result of an accident

actionable under the Warsaw Convention as supplemented

by the Montreal Agreement.

The Plaintiffs’ Motion for Summary Judgment on the

issue of liability is denied; Defendant’s Motion for Sum-

mary Judgment dismissing the claim is granted.

This Court recognizes that the issue of liability is one

of first impression as far as our Circuit and the Supreme

Court of the United States are concerned. An immediate

appeal from the Order to be entered herein can materially

advance the termination of this case and will be granted if

so requested.

An appropriate Order will be entered.

App. 50

In Re Tel Aviv (D. P.R. 1975).

United States District Court, District of Puerto Rico,

December 9, 1975.

[Statement of case]

Gicnovux, District Judge: These three actions seek to

recover damages for deaths and personal injuries sustained

by arriving international passengers on defendant airline

as the result of a terrorist attack in the baggage area of

the Terminal Building of Lod International Airport near

Tel Aviv, Israel, on May 30, 1972. Plaintiffs claim liability

without fault under the provisions of the Warsaw Con-

vention, 49 Stat. 3000 (1934), as modified by the Montreal

Agreement, 31 Fed. Reg. 7302 (1966), both reprinted at

49 U.S.C.A. § 1502 note (Supp. 1975.)' Defendant has

moved for summary judgment on the ground that the

Warsaw Convention, as modified by the Montreal Agree-

ment, is inapplicable to these actions, and plaintiffs have

filed cross-motions for partial summary judgment on the

issue of liability, asserting that the Convention does apply.

[Facts]

The material facts are undisputed. Plaintiff in Nop. 174-

73 and plaintiffs’ decedents in Nos. 313-73 and 481-73 weve

members of a large group of Puerto Rico tourists travel-

ing on defendant Air France’s Flight No. 132 to Tel Aviv.

Flight No. 132 originated in New York, with intermediate

stops at Paris and Rome. Three Japanese, in the service

of a Palestinian terrorist organization boarded the plane

at Rome. On arrival at Lod Airport, the plane came to

a halt about one-third to one-half mile from the Terminal

Building. The passengers descended movable stairs to

the ground and then walked or rode on a bus to the termi

nal. There, they presented their passports for inspection

by Israeli immigration officials and then passed into the

App. 51

In Re Tel Aviv (D. P.R. 1975).

main baggage area of the terminal. While the passengers

were awaiting the arrival of the last baggage from the

plane, the three Japanese terrorists removed their luggage

from the conveyor belt, produced submachine guns and

hand grenades, and opened fire upon persons in the baggage

area, killing or wounding many, including plaintiff and

plaintiffs’ decedents. From the time the passengers stepped

out onto the movable 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.

{Warsaw Convention]

The Warsaw Convention, which was concededly appli-

cable to plaintiffs’ flight, provides uniform rules for inter-

national air travel. As modified by the Montreal Agree-

ment, the Convention limits the carrier’s liability for death

or injury to $75,000 per passenger and imposes liability

without fault.2. The scope of the carrier’s liability under

the Convention is determined by Article 17, which provides:

“The earrier 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 in the course of any of the operations of

embarking or disembarking.” (Italics supplied.)

Defendant concedes that the terrorist attack at Lod Air-

port was an “accident” within the meaning of Article 17.

See Husserl vy. Swiss Air Transport Co. [12 Avi. 17,637],

351 F.Supp. 702, 706-07 (S.D.N.Y. 1972), aff’d mem., 485

F.2d 1240 (2d Cir. 1973). Defendant’s contention is that

when the attack occurred, the passengers, all of whom had

exited from the aircraft and entered the Terminal Build-

ing, were no longer ‘‘in the course of any of the operations

of . . . disembarking,’’ and hence that the Convention

App. 52

In Re Tel Aviv (D. P.R. 1975).

does not apply to plaintiffs’ claims. For the reasons to

be stated, the Court concludes that the Convention is not

applicable to these cases.

[Disembarking operations]

The disposition of the motions presently before the Court

is clearly controlled by the recent decision of the Court

of Appeals for this cireuit in MacDonald y. Air Carada

[11 Avi. 18,029], 439 F.2d 1402 (1st Cir. 1971), a case

substantially on all fours with the present actions. The

plaintiff in MacDonald, an arriving international passenger

on the defendant airline, suffered a fall while awaiting

delivery of her suitcase in the baggage area at Logan

International Airport in Boston. She claimed negligence

of the airline, or, in the alternative, its liability without

fault under the provisions of the Warsaw Convention, as

modified by the Montreal Agreement. The Court of Ap-

peals unanimously upheld a directed verdict dismissing

her complaint, both upon the ground that she had not

proved any negligence and also upon the ground that the

provisions of the Warsaw Convention were not applicable

to her case. As to the latter ground, the court held, first

that the plaintiff had not shown there was an ‘accident ”

within the meaning of Article 17. As an alternative basis

for its decision that the Warsaw Convention was not

applicable, the court held that plaintiff’s fall had not oe-

eta y course of disembarking operations. In this

connection, Chief Judge Aldri iti

rea gen g drich, writing for the court,

“(T]he Convention requires that the aceident occur in

the course of disembarking operations. If these words are

given their ordinary meaning, it would seem that the op-

eration of disembarking has terminated by the time the

passenger has descended from the plane by the use of

App. 53

In Re Tel Aviv (D. P.R. 1975).

whatever mechanical means have been supplied and has

reached a safe point inside of the terminal, even though

he may remain in the status of a passenger of the carrier

while inside the building. Examination of the Conven-

tion’s original purposes reinforces this view. The most

important purpose of the Warsaw Conference was the

protection of air carriers from the crushing consequences

of a catastrophic accident, a protection thought necessary

for the economic health of the then emerging industry.

Partially in return for the imposition of recovery limits,

and partially out of recognition of the diffieuty of estab-

lishing the cause of an air transportation accident, the

Conference also placed the burden on the cashier [sic] of

disproving negligence when an accident occurred. IT Con-

ference International De Droit Prive Aerien, 4-12 Octobre

1929, at 135-36 (1930); Message from the President of the

United States Transmitting a Convention for the Unifica-

tion of Certain Rules, Sen. Exec. Doe. No. G, 73rd Cong..

2d Sess. 3-4 (1934). Neither the economic rationale for

liability limits, nor the rationale for the shift in the burden

of proof, applies to accidents which are far removed from

the operation of aircraft.* Without determining where the

exact line occurs, it had been crossed in the case at bar.

“*Neither does the imposition of liability without fault,

as was effected, with respect to United States connected

carriage, by the Montreal Agreement. The Agreement, as

such, could not change the meaning of Article 17 of the

Convention, but we believe its framers assumed the same

restricted meaning of that article that we do.”

Subsequent to MacDonald, at least two other American

courts have similarly dismissed Warsaw Convention

claims for injuries suffered after the plaintiff passengers

had reached the airport terminal building. Felismina v.

Trans World Airlines, Inc., 13 Av. Cas. 17,145 (S.D.N.Y.

1974) (injury on escalator inside terminal) ; K lein v. KLM

Royal Dutch Airlines, 46 App. Div. 2d 679, 360 N.Y.S.2d 60

App. 54

In Re Tel Aviv (D. P.R. 1975).

(2d Dep’t 1974) (injury on baggage conveyor belt in ter-

minal at Lod International Airport). See also Mache v.

CIE Air France, (1967) Revue Francaise De Droit Aerien

343 (Cour d’appel, Rouen) (injury in fall in airport cus-

toms yard). Cf. Evangelinos v. Trans World Airlines [13

Avi. 18,051], 396 F. Supp. 95, 101-02 (W.D. Pa. 1975) (pre-

flight terrorist attack in terminal). But cf. Day v. Trans

World Airlines, Inc. [13 Avi. 17,647], 393 F.Supp. 217

(S.D.N.Y. 1975) (same).*

| Legislative history]

Plaintiffs in the instant actions argue tha! MacDonald

was incorrectly decided because the court failed to give

adequate consideration to the legislative history of the

Warsaw Convention, which, they say, was not called to the

court’s attention. The legislative history, however, makes

clear that in drafting Article 17 the delegates to the Con-

vention specifically intended to exclude from coverage ac-

cidents occurring to passengers inside an airport terminal

building. Minutes, Second International Conference on

Private Acronautical Law, October 4-12, 1929, Warsaw

67-84, 205-06 (R. Horner & D. Legrez transl. 1975) (“War-

saw Minutes”).

The Convention was the ultimate product of two confer-

ences, at Paris in 1925 and at Warsaw in 1929. The Paris

Conference established an interim committee, the Comite

International Technique d’Experts Juridiques Aeriens

(CITEJA), to draft a proposed convention for submission

to the second conference. Article 20 of this draft defined

the scope of the carrier’s liability both as to travelers and

as to goods and baggage. It made the carriers liable “from

the moment when travelers, goods or baggage enter in the

aerodrome of departure to the moment when they leave

the aerodrome of destination.” /d. at 264. This provision

was challenged as to travelers. Jd. at 69-75, 78-81. The

App. 55

In Re Tel Aviv (D. PR. 1975).

Draft Article was rejected by the delegates, id. at 82-83,

and sent back to the drafting committee, where it was split

into two separate articles: Article 17 for passengers and

Article 18 for goods and baggage. /d. at 205-06. In adopt-

ing Article 18, the Conference substantially accepted the

CITEJA proposal with respect to goods and baggage,

agreeing that liability should attach while “the baggage or

goods are in the custody of the carrier, whether in an air-

port or on board an aircraft... .’’ Jd. at 206. With re-

spect to travelers, however, the Conference rejected the

CITEJA draft in favor of the more limited coverage of

Article 17, providing that the carrier is liable for damages

sustained in the event of the injury or death of passengers

only if the accident that caused the damage took place on

board the aircraft or “in the course of any of the opera-

tions of embarking or disembarking.” /d. at 82-84, 205-06.

Whatever uncertainties there may be as to the precise

line drawn by Article 17, the above legislative history in-

dicates plainly that the intent of the Warsaw Conference

in rejecting the CITEJA draft and in declining to impose

in Article 17 the same extent of carrier liability for pas-

sengers as that provided by Article 18 for goods and bag-

gage was clearly to exclude liability as to passengers for

accidents which occur after the passenger “has reached a

safe point inside the terminal,’’ and ‘‘which are far re-

moved from the operation of aircraft.’’ McDonald vy, Atr

Canada, supra at 1405; see Evangelinos v. Trans World

Airlines, supra at 100-01.

Subsequent commentary by Convention delegates and

other aviation law writers confirms this view. Thus, Dr.

Otto Riese, a German delegate, has written:

‘‘La Convention de Varsovie exclut done les accidents

survenus au cours des operations preliminaires a |’em-

barquement et posterieures au debarquement, soit notam-

ment pendant la periode du deplacement du passager de

App. 56

In Re Tel Aviv (D. P.R. 1975).

la gare de ville a l’aerodrome, et lors de sa presence dans

les locaux de l’aerogare.’’ O. Riese & J. La Cour, Precis de

Droit Aerien 265 (1951).

See A. Giannini, Saggi di Diritto Aeronautico, 233 (1982),

and D. Goedhuis, Minutes, Fifth International Congress on

Air Navigation, The Hague, 1930, at 1173 (both as cited in

Evangelinos v. Trans World Airlines, swpra at 101).

[ Conclusion |

The Court holds that when the Lod Airport terrorist at-

tack occurred, the passengers on defendant’s Flight No. 132

had completed their transportation by air and were no

longer ‘‘in the course of any of the operations of . . . dis-

embarking.’’ The Warsaw Convention and the Montreal

Agreement therefore do not apply to the present actions.

Accordingly, plaintiffs’ motions for partial summary judg-

ment are denied; defendant’s motions for summary

judgment are granted; and judgment will be entered dis-

missing plaintiffs’ complaints to the extent that they claim

jurisdiction or liability without fault under the provisions

of the Warsaw Convention, as modified by the Montreal

Agreement.

It Is So Ordered.

—Footnotes—

‘Plaintiffs have waived the additional claims asserted in their

original complaints under the 1955 Hague Protocol and the 1971

Guatamala Protocol, neither of which has beea ratified by the

United States. See 1 L. Kreindler, Aviation Accident Law §§ 12.01,

12B.01 (rev.ed. 1971).

* The Montreal Agreement is not a treaty. Rather, it takes the

form of an agreement among international air carriers, of which

——_——— ee ee Le

App. 57

In Re Tel Aviv (D. P.R. 1975).

Air France is one, by which the signatory airlines agreed to in-

clude in their tariffs to be filed with the Civil Aeronautics Board a

“special contract” by which the carrier would waive its limitation

of liability under the Convention up to $75,000 per passenger and

would concede its liability without fault with respect to flights

—— stopping or terminating in the United States. In re-

turn, the United States withdrew a notice of denunciation of the

Convention. The Agreement was negotiated in 1966 between the

United States Government and the International Air Transport

Association, and was approved by the Civil Aeronautics Board.

Agreement CAB 18900, approved, CAB Order No, E-23680, 31

Fed. Reg. 7302 (1966), reprinted at 49 U.S.C.A. § 1502 note

(Supp. 1975). See also 1 L. Kreindler, supra, ch. 12A; Lowenfeld

& Mendelsohn, The United States and the Warsaw Convention, 80

Harv. L. Rev. 497 (1967).

The Montreal Agreement did not modify in any way the mean-

ing of Article 17 of the Convention, the issue presented by the in-

stant motions, See MacDonald v. Air Canada [11 Avi. 18,029},

439 F.2d 1402, 1405n. (1st Cir. 1971); Evangelinos v. Trans World

Airlines, Inc. [13 Avi. 18,051], 396 F. Supp. 95, 100 (W.D. Pa.

1975); 1 L. Kriendler, supra, § 12A-2.

*The District Courts in Day and Evangelinos divided over

whether Banna se injured in a terrorist attack at Hellenikon Air-

port, Athens, Greece, in August 1973 were “in the course of any

of the operations of embarking” within the meaning of Article 17.

When this attack occurred, plaintiffs were in the transit lounge,

just about to board a flight to New York, The Day court held

they were embarking and hence that the Convention applied; the

Evangelinos court disagreed and held the Convention not applica-

ble. The Day court, however, expressly distinguished the question

of disembarkation, 393 F. Supp. at 222-23 (Italics in original) :

“We distinguish readily the case of Felismina vy. Trans

World Airlines, Inc., 13 Av.Cas. 17,145 (S.D.N.Y. June 28,

1974), which involves a claimed disembarking. A passenger

who has left the aircraft, unlike plaintiffs is not herded in

lines, and has few activities if any, which the air carrier re-

quires him to perform at all, or in any specific sequence as a

condition of completing his journey... .”

App. 58

Felismina v. T.W.A. (S.D.N.Y. 1974).

Doritia Fevismina v. Trans Worip Airings, Inc.

United States District Court,

Southern District of New York,

June 28, 1974

Warp, District Judge: Defendant Trans World Airlines,

Inc. (‘*TWA’’) moves for summary judgment pursuant to

Rule 56, Fed. R. Civ. P., on the ground that the complaint

is time-barred.

Plaintiff was a passenger aboard TWA Flight #901

from Lisbon, Portugal to JFK International Airport, New

York. On September 4, 1970, upon arrival at New York,

she left the aireraft, walked through an expandable,

horizontal jetway which led from the airplane door to the

terminal proper, continued across the upper floor of the

terminal and boarded a ‘‘down escalator’ leading to a

lower level of the terminal where Health and Immigration,

haggage claim, and Customs are situated,

While on the down escalator, plaintiff was allegedly

pushed and fell, fracturing her right knee. This action,

which was commenced on March 27, 1973, seeks damages

resulting from the injury. TWA, relying on Article 29 of

the Warsaw Convention, which contains a two-year period

of limitations in which to bring suit, moves for summary

judgment dismissing the complaint as time-barred,

The question presented is this accident took place in the

course of “disembarking” as that term is used in Article 17

of the Warsaw Convention and is therefore covered by the

Convention. At oral argument, the parties agreed that this

case is one of first impression. »

This Court concludes that by the time plaintiff boarded

the down escalator, she had disembarked from defendant's

aircraft and that the two-year period of limitations con-

tained in Article 29 of the Warsaw Convention is inap-

plicable. Accordingly, defendant’s motion for summary

judgment is denied.

It is so ordered.

App. 59

APPENDIX D

Maché v. Air France (Court of Appeals

of Rouen 1967).

Translation from the French

Maché v. Air France, [1967] Rev. Fr. Droit Aérien 343

(Appeals Court of Rouen, April 12, 1967), aff'd, [1970]

Rev. Fr. Droit Aérien 311 (Court of Cassation, lst Civil

Chamber, June 3, 1970)

The Court, . _

Having seen the decision of the Court of Cassation, Civil

Chamber, of January 18, 1966, which reversed and an-

nulled the decision rendered on June 29, 1963 by the Ap-

peals Court of Paris, in the instant case for personal

injury damages brought by Augustin Maché against the

Company Air France, on the basis of Article 1147 of the

Civil Code, following the personal injury accident of which

he was the victim on March 29, 1958;

Having seen the judgment of the Tribunal of the Seine

of June 2, 1961 which decided that the Company Air France

was liable for the said accident, but only within the limits

provided for in Article 22 of the International Convention

of Warsaw of October 12, 1939 [sic] for the unification of

certain rules relative to international air transportation

and condemned it [Air France] to pay to Maché the value

of the sum of 125,000 francs, as such are defined by said

Article 22;

Considering that it is settled that on March 29, 1958,

Maché took a seat at Orly in a plane of the Company Air

France;

That on his descending from the aircraft at the San

Bonet Airport, at Palma de Majorca (Spain) Maché and

the other passengers were taken in charge by two steward-

esses, agents of Air France, to be led to the buildings of

the airport where the operations of customs and police

were to take place;

App. 60

Maché v. Air France (Court of Appeals

of Rouen 1967).

That the normal itinerary which ended at the principal

entrance of the terminal being impracticable because of

construction work, there had been envisaged a replacement

itinerary which passed around the ‘‘customs area”’ [‘*jar-

din de la douane’’} and using a path marked by the letter

B of the map drawn up by the Spanish authorities;

That the first agent of Air France who was walking at

the head of the group of passengers did not take this re-

placement itinerary but a short cut crossing the ‘customs

area’’ (letter A of the same map) where construction work

was also in progress;

That the second agent of Air France, the young lady

Ginot Belles, as she has moreover declared to the Spanish

authorities on March 14, 1958, in the course of a criminal

proceeding opened before the permanent military tribunal

of Majorca, followed this last itinerary with the second

group of passengers among whom could be found Maché;

That this latter one [Maché], in crossing the customs

area, put his foot on a metal covered man-hole cover which

was in very bad condition;

That under his weight, the man-hole cover rocked, result-

ing in his fall in a water drain four feet deep containing

a casing of tubes and faucets;

That Maché thus suffered serious wounds with open

multiple fractures of the tibia and the fibula, fractures of

the coceyx which brought about lombar and sciatic pains

and difficulties in walking, rendering necessary the inter-

vention of a third person;

Considering that in the debates having resulted in the

decision below, Maché claimed, as he does in this appeal,

that the accident was without relation to aviation risk, that

it was therefore not regulated by the Warsaw Convention,

but that it stemmed solely from the common law of land

transportation ;

App. 61

Maché v. Air France (Court of Appeals

of Rouen 1967).

That the Company Air France was thus held strictly

liable on the basis of Article 1147 of the Civil Code, lia-

bility which placed it under a duty to compensate for all

the damages sustained by him from the time of his enter-

ing Orly Airport where he had embarked until his exit

from San Bonet Airport where he had landed;

That a medical investigation had to be ordered to deter-

mine the extent of his wounds and that it was decided to

grant him provisional compensation of 40 million gold

francs by reason of the considerable expenses that he had

to incur to be treated ; .

Considering that according to Maché, the Company Air

France replied that the accident having occurred in the

course of the operations of disembarking, the Warsaw Con-

vention applied, that it [Air France} claimed that its

agents had committed no fault and that it reproached the

victim for his inattention ; .

Considering that the defendait [Air France] reiterates

before the Court its pleadings, but raising secondary appeal

in what concerns the decision of the judges below ; insofar

as this [decision] set aside application of the provisions of

Articles 20 and 21 of the Convention, requests in addition

that Maché be denied recovery ; ae

Considering that, secondly, it [Air Frauce} maintains

that its liability is limited to 125,000 franes, by virtue of the

general conditions of the contract of carriage to which the

Air France ticket used by Maché the day of the accident

refers;

That it claims, moreover, that the breaking of the man-

hole cover engaged the liability solely of the Spanish

Aviation Authority, manager of the airport;

Considering that in law, on application of the Warsaw

Convention, that this text [W.C.] provides, in its Article 17,

that the carrier is liable for damage . . . when the accident

which has caused it has occurred on board the aircraft or in

the course of the operations of embarking or disembarking ;

App. 62

Maché v. Air France (Court of Appeals

of Rouen 1967).

Considering that the Convention not specifying what is

the meaning of these operations, it is fitting to give it a

definition in referring essentially to the basis of the régime

of liability established by the Convention;

Considering that it follows from the legislative history

that the limitation of liability provided for in this text has

for raison d’étre the particular nature of aviation risk and

the impossibility in which air carriers found themselves at

the time [of signing the W.C.] to insure their unlimited

liability, without practicing excessively high carriage prices

which would have driven away their clientele;

That it follows from there, that if the Warsaw Conven-

tion regulates, in effect, accidents arising on the ground,

in the course of the operations of embarking or of dis-

embarking, it is only to the extent that these operations

are taking place on the traffic apron, that is to say at a

place of the airport where passengers are exposed to avia-

tion risks;

That the Convention ceases, therefore, to apply when

these risks have disappeared, to be replaced by the common

law of land transportation which comes back into effect;

Considering in fact that it results, from the information

and documents produced, that the accident in this litigation

occurred, as it has thus been said, not on the traffic apron

of the airport, but inside the customs area, separated from

said apron by a continuation of the facade of the buildings

of the airport; ,

That it is settled also that at that moment Maché was

guided and directed by the agents of Air France who were

leading from the airplane into the buildings of the air

port where were to be accomplished the formalities of police

and customs;

That he was therefore not free to choose his itinerary,

but had to, in this regard, obey the instructions of the

agents of the Company Air France.

App. 63

Maché v. Air France (Court of Appeals

of Rouen 1967).

Considering, therefore, that the accident does not enter

into the scope of the Warsaw Convention, but arises out

of the common law of land transportation which, by virtue

of the presumption of liability set against the carrier,

obliges this latter to lead the passenger safe and sound to

his destination, and to compensate entirely, should the case

arise, for the damages of which he could be the victim to

the extent that the contract of passage itself does not

exonerate it [the carrier] or does not limit its liability;

{ Discussion of exoneration clause in contract of carriage

omitted ]

Considering that on the respective faults of the parties

hereto that the inattention for which Maché is reproached,

for the reasons above described, is in no way established,

while the imprudence of the agent of Air France who acted

against the instructions of the Company, in taking a short

cut which she had not previously reconnoitred, is certain,

and is in direct relation to the damage suffered by the

appellant;

Considering that it is therefore without interest to stop

at the question of knowing if he should or not have brought

a liability claim against the Spanish Aviation Authority,

manager of the airport, because also the latter had planned

for, in conjunction with the aviation companies, a replace-

ment itinerary which the stewardess did not follow, and

that, moreover, the Company Air France had never been

reproached for the bad condition of the man-hole cover ;

Considering that definitely, it is fitting to decide that

Maché is in a position to take advantage of the provisions

of Article 1147 of the Civil Code, with this detail however

that it is with good right also that the Company Air France

ean invoke the clause of limitation of liability provided for

in the general conditions of carriage of passengers;

Considering that the amount of the damage sustained by

Maché is superior to the sum of 125,000 gold frances; that

this fact is not contested by the appellant Company ;

App. 64

Maché v. Atv France (Court of Appeals

of Rouen 1967).

That it is fitting, therefore, notwithstanding the inexact

reasons of the first judges, to affirm the decision below:

For these reasons;

The Court:

Having heard counsel for the plaintiff in their pleadings,

Mr. Inselin in his report, counsel for the parties in their

oral arguments, Mr. District Attorney having been heard,

and after having deliberated in conformity with the law;

Receives in its form both the principal appeal of Maché

and the secondary appeal of the Company Air France;

On the substantive issue states that the customs area in

which the personal injury accident was sustained by Maché

on March 29, 1958, was not exposed to risks of air naviga-

tion ;

States that consequently the International Convention of

Warsaw of October 12, 1929 does not apply to this accident ;

States that the Company Air France is liable on the

basis of Article 1147 of the Civil Code;

States however that this Company may rightfully take

advantage of the limitation of liability provided for in the

clauses and conditions regulating the contract of carriage

which limits to 125,000 gold frances compensation for bodily

injury accidents sustained by passengers;

Affirms, consequently, but for different reasons, the judg-

ment below;

Condemns the Company Air France, having seen its

major failure, to all costs of the first action and of the

appeal, including the costs incurred before the Court [of

Appeals] of Paris, with the exception of the costs of the

decision reversed.

President: Mr. Suquet

Counsel: Messrs. Denesle, Pechaud and Garnault

App. 65

Forsius v. Air France (Tribunal de Grande

Instance de Paris 1973).

Translation from the French

Dame Forsius v. Air France, [1973] Revue Frangaise

de Droit Aérien 216 (Tribunal de Grande Instance de

Paris 1973)

The Court,

Considerin that an order of this court dated May 10,

1967 has ordered a double investigation on a claim directed

against Air France by Mrs. Forsius following an accident

in which she was the victim on October 10, 1964 at approxt-

mately 9:50 A.M., at Orly Airport;

Considering that Pierre Cevallier, expert, has filed his

report with the clerk on November 4, 1970 and has ex-

pressed the opinion that the floor of the passageway used

by Mrs. Forsius was covered with comblanchien, a mate-

rial frequently used for this purpose and which did not

present in the area in question and even elsewhere, any

characteristic of either abnormality or defect in upkeep

which, moreover, the tests conducted have confirmed clearly

and show agreement with the impression subjectively felt

that comblanchien is more slippery than the plastic mate-

rials used at other places in the airport; that finally Air

France is not responsible for the condition of the floor and

for the upkeep of the passage in question, both are incum-

bent upon the Paris Airport.

Considering moreover that Professor René Michon has

filed his report with the clerk on December 19, 1967, that

he expressed therein his opinion that Mrs. Forsius suffered

a total temporary incapacity of three months, a partial

temporary incapacity of 25% of nine months, moderate

pain, moderate damage to activities (piano, golf, harpsi-

chord) and a partial permanent incapacity of 17%, all of

which resulted from a traumatism of the right wrist with

App. 66

Forsius v. Air France (Tribunal de Grande

Instance de Paris 1973).

a fracture of the lower extremity of the radius accom-

panied by a suspicious picture of a fracture of the lower

extremity of the cubitus and resulting in certain subsisting

complications ;

Considering that Air France requests that Mrs. Forsius’

claim be dismissed or be found lacking on the merits be-

cause it [Air France] did not at all have responsibility for

the condition of the floor and for the upkeep of the pas-

sage where Mrs. Forsius claims to have fallen and that it

is exonerated either by Article 20, or by Article 21 of the

Warsaw Convention;

Considering that for her part Mrs. Forsius claims that

Air France is liable to her by virtue of the contract of car-

riage and should be ordered to pay her various sums

amounting to a total of 44,995 frances; that more precisely

she requests that the court order and adjudge that the

accident was caused by the condition of the floor and the

default of Air France in not coming forward with proof of

some fault on the part of Mrs. Forsius;

Considering that Mrs. Forsius in the alternative requests

a new investigation; considering that by applicaiton of

Article 17 of the Warsaw Convention of October 12, 1929

promulgated by decree of December 12, 1932, in that which

concerns corporeal damages suffered by passengers, the

execution of the contract of air carriage commences only

from the time when the o»erations of embarking are under-

taken and it [the execution] ceases at the time when the

operations of disembarking have been completed;

Considering that by itself the issuance of travel docu-

ments or the checking them does not have the effect of

activating the carrier’s [contractual] obligations.

Considering that in the instant case Mrs. Forsius who

was preparing to embark on a plane of Air France for

Tunis slipped on the floor of a passageway restricted to

App. 67

Forsius v. Air France (Tribunal de Grande

Instamce de Paris 1973).

those having passed through customs [‘‘sous douane’’] on

the second floor of Orly Airport, that is to say in a place

utilized in common by very numerous travelers, passengers

on several different air carriers;

Considering that, therefore, the contract of carriage en-

tered into between the plaintiff and Air France was not yet

in the course of execution at the time when the accident

took place so that Article 1147 of the Civil Code does not

apply to the instant case;

Considering that the use of such material for manufac-

turing floors or their upkeep is a matter which concerns

only the Paris Airport which is a ‘‘public establishment”’

instituted by Ordinance 45,2400 of October 24, 1945, Article

First, autonomous, and is not in any way the business of

Air France against whom liability can no further be looked

for on the ground of tort liability;

Considering consequently that Mrs. Forsius’ claim must

be dismissed ;

For these reasons,

Deciding in an adversary proceeding,

Dismisses the claims of Mrs. Forsius’ against Air

France;

Holds Mrs. Forsius liable for costs.

President: Mr. Thuriet

Counsel: Messrs. Rault and Garnault, Esqs.

App. 68

Blumenfeld v. BEA (Court of Appeals

of Berlin 1961).

Court of Appeals of Berlin (Kammergericht)

Decision of March 11, 1961 — 10 U 61/60

Warsaw Convention — German Law

Statement of Facts

At the suggestion of the German Embassy in Athens

the plaintiff took part as a witness in a penal suit pending

there in February 1959. The trip from Berlin to Athens

was by air, and she booked the entire flight in advance

through the Hapag-Lloyd Travel Bureau. For the leg of

the flight Berlin-Frankfurt/Main, the plaintiff made use of

a craft of the defendant, an airline. She continued the

flight from Frankfurt/Main with a craft of the “Swissair”

airline. The flight takeoff was to have taken place on

February 18, 1959 at 11:15 a.m. according to plan. How-

ever, as there was a ground fog at the Berlin Tempelhof

airport, the aircraft could not start until about 12:00 Noon.

Shortly before 12:00 Noon the door of the waiting room

in the airport building was opened to clear the way for the

passengers over the traffic apron to the airplane. A stair-

way leads from the waiting room to the traffic apron: it

consists of 20 steps about 2 m. in length and of regular

width. The stair is provided with solid railings on both

sides. On leaving the waiting room the passengers have

to hand over boarding passes which earlier had been dis-

tributed to them at the counter of the defendant. As a rule

there is a lively crowding, most of the flight passengers

being eager to get to the aircraft as soon as possible in

order to secure a good seat.

After leaving the waiting room the plaintiff fell on the

just mentioned staircase and suffered an injury. She

entered the aircraft with injuries to her left tibia and left

ankle.

In the present suit the plaintiff claims damages.

App. 69

Blumenfeld v. BEA (Court of Appeals

of Berlim 1961).

Opinton

To decide the lawsuit we must start with the fact that

the accident took place on the staircase leading from the

waiting room of the airport building to the traffic apron.

Insofar as civil air travel is concerned, the Warsaw

Convention and the Air Traffic Statute (Luftverkehrs-

gesetz) are applicable to the air traffic from and to West

Berlin with respect to civil law relations (cf. Schleicher-

Reymann-Abraham, Das Recht der Luftfahrt—The Law of

Air Travel—, Volume one, 1960, p. 4, note 7), i.e. the War-

saw Convention in the version of October 12, 1929, as

published through the notification of November 30, 1933

(RGB1. —Reichsgesetzblatt-Germar Law Gazette-II, p.

1039). The Hague Protgeol of Septe...oer 28, 1955, amend-

ing the Warsaw Convention of October 12, 1929 has so far

not come into effect as it has not yet been ratified by thirty

contracting states, as provided by its Article XXIJ. The

LVG-Luftverkehrgesetz-Air Travel Statute—is applicable

in its revised version of January 10, 1959 (GVoB1. - Law

Gazette-Berlin 1959, p. 761 et.seq.), in Berlin, however,

only with regard to the BK/O (59) of June 8, 1959

(GVoB1. - Law Gazette-Berlin 1959, p. 728) insofar as

certain provisions not of interest here are concerned.

The legal relationship of the parties herein are subject

to the Warsaw Convention, i.e. to the extent that con-

tractual and tort liability is in question (cf. Abraham: Der

Luftbeforderungsvertrag-The Air Transportation Contract

—1955, p. 8; Schleicher-Reymann-Abraham: op. cit. p. 363).

We must start with the fact that the plaintiff booked the

entire flight from Berlin to Athens, as evidenced by the

flight ticket, through the Hapag-Lloyd Travel Bureau which

to this extent has acted as the agent of the air line com-

panies. The flight for which the plaintiff has concluded the

transportation contract was an interstate flight within the

App. 70

Blumenfeld v. BEA (Court of Appeals

of Berlim 1961).

meaning of Article 1, par. 3 of the Warsaw Convention (see

Abraham, op. cit. p. 11 et seq.).

From this, and particularly from Art. 17, 20, 21, of the

Warsaw Convention it follows that the defendant, as an air

carrier, must make good the damages to the plaintiff caused

by an accident on board of an aircraft or during embark-

ment or disembarkment, unless the defendant succeeds in

exonerating itself. Although there is no absolute liability

on the part of the defendant, in this respect the burden of

proof is passed over to it to its disadvantage (ef. Rinck in

ZLR 1958, No. 3, p. 298 et seq.).

As brought out earlier, the plaintiff fell down on the

staircase leading from the waiting room to the traffic apron.

The question arises whether the plaintiff at that time had

started “embarking” in the sense of Art. 17 of the Warsaw

Convention. This is to be answered in the affirmative. The

doubt may indeed arise whether the Warsaw Convention

and the corresponding LVG, have regulated the air carrier’s

liability more strictly merely with respect to the typical

hazards directly connected with the use of an aircraft.

This, however, would overlook the fact that the air carrier

already commits the flight passengers under his care when

he requests them to go from the waiting room to the air-

craft. Already at that time the air carrier begins to carry

out the transportation contract the essential accessory

obligation of which consists in providing for the safety of

the passengers in every respect and in securing the traffic

which was begun. 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 “embark-

ing” in an expansive sense. The opinion represented in the

literature is to be adhered to (cf. Riese, Luftrecht-Law of

the Air- p. 445; Schleicher-Reymann-Abraham, op. cit. p.

344; Abraham, op. cit. p. 47).

App. 71

Blumenfeld v. BEA (Court of Appeals

of Berlm 1961).

In the present lawsuit, therefore, the liability of the

defendant company is established, particularly as it has

not succeeded in exonerating itself. It may be that it has

to be assumed that an air carrier has exonerated itself as

required under Article 20 of the Warsaw Convention when

it has proven that it and its agents “have taken all meas-

ures reasonably to be expected from a prudent entrepre-

neur and his prudent crew.” This, however, cannot be

gathered from the evidence of the witnesses L. and R. un-

qualifiedly. The plaintiff did not fall down in the presence

of these witnesses. The possibility therefore obtains that

the unknown-employee who at the time of the accident was

on duty on the staircase, did not act with all due care. It

is true that the cause of the accident has not been ascer-

tained, but the “non liquet” here works to the disadvan-

age of the defendant who bears the burden of proof. It is

true and not contested by the parties herein that the stair-

case on which the accident occurred was in proper condi-

tion. But in case of a not established cause of accident this

very circumstance cannot result in a justification of an

assumption of the plaintiff’s own negligence through ap-

plication of the principles of prima facie evidence. (ef.

BGH—Bundesgerichtshof—Federal Supreme Court of

Germany—in 1956 NJW—Neue Juristische Wochenschrift

—New Law Weekly—pages 709, 710). It must first of all

be assumed that the plaintiff, experienced in travel as she

was, was capable of using the staircase without accidents

unless she was prevented from doing so due to an event

occurring from the outside.

The kind of indemnification, not regulated by the War-

saw Convention but left to the legislation of the individual

states, follows from §1 of the Law executing the Warsaw

Convention of December 15, 1933 (RGB1.—German Legal

Gazette—I p. 1079). It is determined for cases under Ad-

ticle 17 of the Warsaw Convention according to §§ 21, 22

App. 72

Blumenfeld v. BEA (Court of Appeals

of Berlin 1961).

and 24—§ 35, 36, 38 of the revised text of the LVG.

Accordingly, i.e. under § 36 LVG, the indemnification that

the plaintiff can demand comprises the medical costs as

well as the detriment to her property that she has thereby

suffered in that her requirements, temporarily or perman-

ently, have increased due to the injury. (There follow

statements as to the extent of the damage).

The plaintiff also demands the payment of damages for

“pain and suffering” of an amount of DM 2,000.00. To

this extent, however, the suit is not justified. The already

cited $§ 35, 36, 38 LVG do not contemplate the payment

for pain and suffering. Only Art. 25 of the Warsaw Con-

vention leads to § 847 BGB—Burgerlinches Gestzebuch—

German Civil Code—over $1 of the already cited Law of

December 15, 1933. According to this last provision, how-

ever, the defendant would be liable only if the plaintiff

had been able to prove that the defendant had caused the

accident intentionally or at least grossly negligently. The

plaintiff overlooks that Art. 25 of the Warsaw Convention

in contrast to Article 17 of the Warsaw Convention, places

the burden of proof on the injured party (cf. Schletcher-

Raymann-Abraham, op. cit. p. 365). However, the plaintiff

did not bring the proof demanded of her. She has been

unable to name any witnesses who had seen the accident.

The cause of the accident has remained unclear. It cannot

be established that the defendant acted with gross’ negli-

gence.

App. 73

APPENDIX E£

WARSAW CONVENTION MINUTES

SECOND

INTERNATIONAL CONFERENCE

on

PRIVATE AERONAUTICAL LAW

October 4-12, 1929

Warsaw

MINUTES

TRANSLATED BY

Robert C. Horner

Dartmouth College A. B.

Faculte des Lettres, Strasbourg

Fr nce

New York University Schoo! of Law

J.D.

Member, New York Bar

Didier Legrez

Licencie es Lettres

Diplome d’etudes superieures de

droit prive

Avocat a la Cour d’Appel de Paris

Fred B. Rothman & Co.

South Hackensack, New Jersey

1975

App. 74

Warsaw Convention Minutes

FOURTH SCSSION

October 7th, Morning

The session is open at 10 o'clock, Mr, Lutostanski

presiding. ,

TIIL PRESIDENT: Sirs, the session is open.

The order of the day for our discussion involves the ques-

tion of the scope of liability. (Heading II).

On this question we have first of all under letter (a), Ger-

man, Italian, British, Brazilian, Hungarian, Swiss and Soviet

amendments - definition of the period of carriage. (Article 20,

paragraph 1).

I give the floor to the Reporter.

MR. DE VOS, Reporter: I must point out, first of all, that

a German amendment has been indicated on this question by

mistake.

Moreover, I point out that the Swiss Delegation has retract-

ed its amendment; I am particularly pleased by this, and I would

like that this example be followed as much as possible.

As regards the amendments which remain, the most impor-

tant is that of the British Delegation which consists, in princi-

ple, in providing for forced landing.

Moreover, the British Delegation has deemed that it would

be better to define the period of carriage, not by the indication

“end and beginning of this carriage” but defining the period of

carriage itself.

The proposal of the USSR, as well as that of Brazil consists,

especially for goods, in making the beginning of the period of

carriage the moment where the goods have been actually received

by the carrier or delivered by the consignor to the forwarder. |

I suggest to you to take first of all the British proposal,

which is the most important. If it were accepted, it would per-

mit us tc sausfy the Hungarian Delegation at the same time.

SIR ALFRED DENNIS (Great Britain): We have proposed an

amendment for Article 20 which seems to us to be one of mere

wording, but the question is so iinportant that the preparatory

committee considered it as a Guestion of substance as regards

the scope of application of the Convention.

Article 20, such as it is presently drafted, in its first para-

graph provides:

The period of carriage, for the application of the

provisions of the present chapter, shall extend from

the moment when travelers, goods or baggage enter in

the aerodrome of departure, up to the moment when

67

App. 75

Warsaw Convention Minutes

they leave the aerodrome of destination; it shall not

include any carriage whatsoever outside the limits of

the aerodrome otherwise than by aircraft.

In our opinion, this does not include all the situations

which the Convention wants to cover; this text envisages simply

the case of a trip from an aerodrome of departure to an aerodrome

of arrival, as from Croyden to Le Bourget, but there are other

cases. For example, there is the case of combined carriage by

railroad, by sea and by air, which becomes more and more

frequent. We have provided in the first article that these com-

bined carriages could exist, since, in the last paragraph of this

first article, we say:

In the case of combined carriage, performed in

part by air and in part by any other means of carriage,

the provisions of the Convention shall apply only to

those portions of the carriage performed by air if they

meet the conditions of paragraph 2.

Now, when there is combined carriage which begins by rail,

which continues by air, then by rail and again perhaps by air

and by sea, the expressions "the aerodrome of departure and

the aerodrome of destination” are perhaps no longer appropriate.

Moreover, there is the case of transshipment, of a layover

during carriage. I have in mind a traveler, who, in the course of

transfer, has a stop of two hours; he profits therefrom to go do

some shopping in town. Is he still under the ambit of the Con-

vention? Naturally not.

It's for this reason, that, in the first part of our amendment,

we propose to stipulate that the scope of application of the Con-

vention be limited uniquely by the nature of the carriage that

one wishes to include, and we give the following wording:

The period of air carriage, for the application of

the present Convention, shall include all periods of

time, during which passengers, goods, or baggage are,

during the performance of international carriage, on

board an aircraft or within the limits of an aerodrome,

under the restriction that in case of landing outside

an aerodrome, the period of air carriage shall be deemed

interrupted as regards passengers, only from the mo-

ment when the latter leaves the immediate proximity of

the landing, and, as regards goods and baggage, only

from the moment when their carriage by means other

68

App. 76

Warsaw Convention Minutes

than aircraft is resumed.

The period of air carriage shall be deemed to in-

clude no means of carriage outside the limits of an

aerodrome, other than by the airways.

In the first part of this amendment we retain the principle

that the Convention shall apply within the limits of the aero-

drome, and it's upon this principle that we propose this amend-

ment. Certain delegates would have preferred that the Conven-

tion be applied only after boarding the aircraft, but this princi-

ple was rejected by the CITEJA. The CITEJA decided that pres-

ence within an aerodrome confers upon passengers or goods the

application of the Convention. According to this principle, we

have drafted our amendment.

The second part of our amendment refers above all to the

question of forced landing outside the limits of an aerodrome.

In this case, naturally, if the aircraft breaks up upon landing,

there will be no question presented, but if the aircraft lands

without breaking up, the question will be raised of knowing if

the passengers who disembark and who wait in a field near the

aircraft, or goods which are unloaded in the field, are still

under the regime of the Convention. It's a question which was

not provided for in Article 20, such as it is drafted, and this is

why we have proposed the last part of the amendment that I have

just read.

MR. GIANNINI (Italy): Mr. President, Sirs, we speak here

of an amendment proposed by the Italian Delegation; in reality,

it is not a question of an amendment but of a suggestion to im-

prove the. formula presented by the CITEJA.

As regards the substance of the problem, I believe that it's

a question above all of considering certain suggestions in prac-

tical order which are developed in other amendments.

We believe that one can take these proposals into consider-

ation and my colleague will perhaps, himself, explain.

But, I would like to make a practica) proposal: I believe

that we can come to an agreement on the principle posed by the

British Delegation. We should thus leave to the drafting commit

tee the duty of finding a better formula, because I believe that

our colleagues from Great Britain are the first to think that this

better formula can be found,

As regards the other formulae, the formula of the Soviet

Union and that of Brazil, I believe that if these Delegations

would fall in with the general will, it will be easy to agree, but

it is necessary that we come to agreement on interpretation; for

the rest, it's a question for the drafting committee.

69

App. 77

Warsaw Convention Minutes

MR. DE VOS, Reporter: The British Delegation has revealed

very clearly the meaning of its proposal. I think that this pro-

posal, as Mr. Giannini said, becomes a question of simple

wording. In effect, this proposal is made quite within the spirit

of the text proposed by the CITEJA.

It is not because the period of carriage will be defined in

leaving aside the notion of the beginning and of the end that

there will be something changed. The only addition is that

which specifies the case of forced landing, and the case of un-

broken travel. There was no difficulty on this point of view

within the CITEJA, and we were in agreement in understanding

the solution of the CITEJA in the sense proposed by the British

Delegation.

I suggest therefore, that we refer this text to the drafting

committee,

The proposal of the USSR and of Brazil is quite different and

brings up again the principle which we discussed before.

MR. AMBROSINI (Italy): Mr. President, Sirs, I take the

floor as a member of the conference and also as Reporter of the

Third Committee of the CITEJA,

It's a question here of knowing what the system under which

passengers will find themselves who enter in an aerodrome is.

There can be different situations - the passenger who enters

in an aerodrome can be injured or killed by an aircraft of the

airline which was to carry him; on the other hand, he can be

killed or wounded by an aircraft belonging to any other carrier

and which is at that moment present in the aerodrome. Now,.

Article 20 says that the period of liability applies from the mo-

ment when the passenger is within the aerodrome,

I wonder if one must allow for the second case above men-

tioned, the liability such as it is instituted by the Convention,

that is to say, subjective and unlimited liability, or rather if

one must apply the principle of risk which was adopted by the

Third Committee, that is to say, liability vis-a-vis third parties

for damages caused even within the limits of an aerodrome.

I wonder again if the passenger or his estate will have the

right to bring two suits: one vis-a-vis the company with which

he had contracted, and the cther vis-a-vis the third party who

caused the injury or the death.

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.

I will add that should the conference adopt the proposal of

the Delegation from Brazil, things will become much easier,

70

App. 78

Warsaw Convention Minutes

because, according to this proposal. the system of liability of

the Convention applies only when the passenger is on board the

aircraft.

MR. PECANHA (Brazil): Mr. President, Sirs, it's nota

question, according to our amendment, of reducing the liability

of the carrier, nor of mitigating it. It's a question merely of

applying to the period of liability in air iaw rules identical to

those which are applied as regards contracts of carriage. The

law in all countries as regards carriage, is subject to precise

rules, as regards the beginning and the end of liability.

I remind you, you know as well as 1, that according to the

commercial interpretations of several countries, the contract of

carriage is only perfected when the employees of the enterprise

have taken possession of the goods to be shipped.

It's an occasional transfer of possession which must be

effective and open, rather than symbolic.

Article 20 establishes that the period of carriage runs from

the moment when the passenger, goods, or baggage enter the

aerodrome of departure, up to the moment when they leave the

aerodrome of destination.

Now, aerodromes and airports as we know, are not always

served by a single air carrier, something which renders Article

20 less precise. ,

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?

Can one make the carrier liable for the preservation of goods

by the simple fact of their entry in the closed space of the aero-

frome ?

In railroad legislation, one allows the entry of the goods

into the station and the shipping of these goods in return for the

receipt which is given to the forwarder; but the present day

aerodrome is not under the same conditions which will govern

perhaps one day, the aerodrome of the future. The Italian Dele-

gate clearly emphasized this point.

Here is the reason for which the Brazilian Delegation pro-

poses the following amendment: to replace “from the moment

when travelers, goods and baggage enter the aerodrome of

departure up to the moment when they leave the aerodrome of

destination” by "from the moment when the travelers have

boarded and the goods or baggage have been delivered to the

forwarder",

MR. DE SZENT ISTVANY (Hungary): Mr. President, Sirs, the

Hungarian Delegation proposed the following amendment con-

71

App. 79

Warsaw Convention Minutes

cerning the period of carriage: Complete the first sentence of

the article by the following addition - “up to the moment when

they leave the aerodrome of destination or when they leave the

aircraft in case of landing en route".

The Hungarian Delegation, in making its proposal, wanted

the definition of the period of carriage to provide for the case of

forced landing. Given that the formula presented by the British

Delegation seems on this point of view to be satisfactory to the

Hungarian Delegation, I think that I must indicate that the

Hungarian Delegation allies itself with the British proposal.

MR. SABANIN (USSR): Mr. President, Sirs, after the words

which have just been delivered by the Delegate from Brazil, the

Delegation from the USSR has not much to say. Our proposals

are absolutely in accord.

I would simply like to say one thing that seems to me im-

portant on the subject of the trends which took shape yesterday

during the course of our work. One of these tended, without

any doubt, to a softening and to a limitation of the liability of

the carrier. Under these conditions, it seems logical that the

liability of the carrier within the limits of the aerodrome be miti-

gated. Let us suppose an aerodrome like that of Koenigsberg

which is very well placed, but where several air carriers have

their planes. 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 logical, if one keeps account

of the trends which took shape and to which I referred a moment

ago, 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. Consequently, I declare that I withdraw our

proposal to ally myself with that of Brazil.

MR. RIPERT (France): Sirs, if I listen to my personal feel-

ings, I would perhaps simply propose to the conference the

complete elimination of Article 20. This article projects us into

a series of difficulties which we will not avoid.

In any case, I think that it is absolutely necessary to re-

shape it. One wanted, inthe same formula, to provide at the

same time for the carriage of goods and the carriage of travelers;

now the two questions are absolutely distinct.

If there is carriage of goods, the contract is formed as soon

as the air carrier has received the goods, and he is responsible

therefore, up to the moment when he has delivered them. If he

does not perform the air carriage, if he ships by another means

of carriage, his liability cannot disappear by the fact that there

exists a contract.

Thus, for goods, one can consider that from the moment

‘ 72

App. 80

Wareaw Convention Minutes

when they are received by the camier up to the moment of their

delivery, the contract applies. Suppose that after having beer

delivered to the air carrier, the goods are damaged during the

period of transport from the hanger of the company to the airport:

The Convention will apply all the same and the air carrier will

benefit from the rules on the limitation of his liability.

There is real difficulty only fer tra rs, and this difficulty

arises from the fact that the trav. “is independence and

that, when he has not yet embark . on ine aircraft, or when the

aircraft has made a stop, he leaves the aircraft, he is no longer

within the performance of the contract of carriage.

What can we do? There are an infinite variety of cases; we

will never succeed in putting them in the same formula; it is

sufficient to say that the air carrier is liable for damages and

accidents sustained during the course of carriage.

The British Delegation has recognized so much of the diffi-

culty in the question that it proposes to refer the definition of

what is meant by aerodrome to local rules; this can be an open

space in flat country, the-bridge of a ship, etc....

As the Delegate from Brazil said, it is a little absurd to say

that an air carrier will be liable before the traveler is on board

the aircraft, when this traveler is on the bridge of a ship, or

when he takes a walk on an airport! :

I will propose to you to separate Article 20, in providing in

a distinct manner for the liability of the carrier of goods. For

goods, the question is very simple and can be easily resolved.

Next, one will look to the liability for the carriage of travelers,

and here one would be content to employ a general formula -

“during air carriage" - in leaving to the courts the duty of

deciding in each case if one is within the contract of carriage.

I believe that we will never arrive at finding a formula indi-

cating when the contract of carriage begins and ends,

MR. PITTARD (Switzerland): The Swiss Delegation had sub-

mitted an amendment, and I advised our sympathetic Reporter

that we withdrawing it provisionally without renouncing, however,

the right to submit it.

What Mr, Ripert has just said corresponds so much to

reality that I do not hesitate, in the name of the Swiss Delega-

tion, to join with the formula that he has presented and to with-

draw our amendment definitively.

MR. GIANNINI (Italy): Following the discussion, I believe

that one ought to ally oneseif with a question of principle which

was raised by the Delegation from Brazil. Certain rules which

were proposed by the British Delegation can perhaps be retained

as well, but, I believe that, very rightly, Mr. Ripert has raised

73

App. 81

Warsaw Convention Minutes

the question, welcomed with much sympathy by the Italian Dele-

gation, of separating as much as possible the carriage of goods

from the carriage of travelers.

In this order of things - to discriminate as much as possible

between the two subjects of the Convention - I would like to pro-

pose that we examine in drafting committee the possibility of

making two distinct articles or of separating the article in two

parts: one for travelers, and the other for goods.

For goods, one could adopt the principle that when goods

enter under the direct responsibility of the carrier, that is to say

that when he takes possession of the goods, up to the moment of

the felivery, the liability of this carrier is engaged.

As regards travelers it is necessary to ally oneself with the

proposal of the Delegation from Brazil and to leave out of the

text the moment when the traveler boards, as long as there will

not be a special Convention, the application of the Convention

being thus regulated by the common law of each country.

MR. PECANHA (Brazil): I would like to add one word only.

The French Delegate proposes that the liability begin when

the carriage takes place - during the carriage. Now, in the case

law of rail accidents, or accidents in maritime navigation, it is

always a question of the accident's occuring when the train or

when the ship has not departed,

MR. RIPERT (France): We are in agreement.

MR. PECANHA (Brazil): When does the carriage take place?

The flying boat is on the apron; it has not yet taken off and the

traveler is inside, has the carriage commenced?

MR. RIPERT (France): Yes.

MR. PECANHA (Brazil): In Italian case law one recognizes

as the beginning of carriage the act of embarkation, before the

take-off. According to the expression employed by the Delegate

from France, take-off is not necessary. Now, in French air case

law, it is often a question of take-off, and it is precisely that

which determined me to employ this expression, “take posses-

sion of the goods", the expression which is found in French

jurisprudence,

French civil lawyers have already raised this question: In

France must we consider that the contract of carriage of goods is

a symbolic or real transfer of possession? It's in taking account

of the Italian criteria, of the Italian legal tradition and case law,

that I came up with the formula that 1 propose, which had been

studied in both countries, but I am irreversibly committed to no

proposal. I recognize highly the capacity of each delegate and

I pay tribute to the prior work of Mr. Ripert and Mr. Ambrosini.

I am of a mind, like Mr. Giannini, to make a new wording of

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Article 20, but I remind you that there is therein a question of

form and at the same time a question of substance.

MR. VIVENT (france): I would like to say a word on this

question which js above all, one of practical order.

In all countries the operation of the airport is distinct from

the operation of the lines. Either it is the State which operates

the port, or - in Germany this is true for a long time, and in

France we have more and more a tendency to do it - It is private’

organizations wl.ich are charged with the operation of the air-

port. So, here and now, we acquire the habit of separating

clearly the two operations, and this separation imposes itself

from the fact that it is not the same organisms which operate

them. Todo so, more and more, is to separate clearly the ad-

ministration of the airport from the operation of the air lines.

Consequently, all damage which can result from accidents

happening prior to the beginning of carriage, during the distance

which passengers can cover in the airport, is the responsibility

of the administration of the airport.

SIR ALFRED DENNIS (Great Britain): The observations of Mr.

Ripert puzzle us a little because they are not written down, and :

I would like to have a written proposal.

There are two observations that I would like to make on the

subject of the proposal! of the Delegate from Brazil.

Mr. Pecanha proposes that:the application of the Convention

begin, as regards goods, from the moment when they are de-

livered into the hands of the carrier. But, we have always seen

the difficulties which can arise from this proposal. For example,

when the goods are delivered in the center of London, they are

transported by truck to the aerodrome. This is an example, but

there are others. The goods are thus in the hands of the carrier

before being in the aerodrome. Let us imagine a truck which

transports goods trom London to Croyden; if it's a question of an

ordinary truck, along the route it is subject to national laws; if

the truck belongs to the air carrier it is coing to be subject to

the Convention. Then, you will have two systems of liability,

because it is well stipulated in that any transport other than air

carriage is placed under the regime of the common law.

As regards the carriage of goods, the IATA discussed the

question long ago and these gentlemen have changed their point

of view. First of all, if my memory is good, they had spoken in

the sense of the proposal of the Delegate from Brazil: The lia-

bility of the carrier begins when the goods are on board. But,

after having consulted, they changed their opinion, and the mem-

bers of the IATA, who are, in reality, the interested parties, be-

lieved that it would be better that the Convention begin to come

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into play as soon as the goods enter into the aerodrome. Con-

sequently, the parties especially interested, that is to say, the

carriers, are favorable to the principle adopted by the CITEJA.

I don't think that we should linger on the question of dam-

age sustained on the ground, because if damage is caused on the

ground in an aerodrome by the aircraft of the carrier, we are

within the ambit of the Convention; but if the damage is caused

by the aircraft of another company, the carrier is not liable by

the terms of the Convention, considering that he offers proof

that he is not at fault.

MR. AMBROSINI (Italy): I must call the attention of the

conference to an eventual consequence of the modification of

Article 20,

We are going to divide Article 20 into two parts, the first

aiming at goods, the second aiming at travelers; we are going

to specify the moment when the system of liability provided for

by the Convention shall apply. But then, it seems to me that it

is necessary to change as well, the wording of Article 21.

In effect, Article 21 said: “The carrier shall be liable for

damage sustained during carriage...".

Now, if we determine in Article 20 the moment when liability

begins to be applied, it seems to me that it is useless to add in

Article 21: “for damage sustained during carriage". I propose

simply to say: “the carrier shall be liable for damage".

I must call the attention of the conferénce to another ques-

tion.

Article 2! provides for the situation of: .

(a) death, injury and any other bodily injury suffered by a

traveler; | . ;

(b) destruction, loss, or damage to goods or baggage;

(c) delay in the carriage of travelers, goods or baggage.

But, the case of non-performance is not provided for. For

example, goods are delivered to the carrier: They are within the

aerodrome, the aircraft did not leave, the contract is not per-

formed. Must one say that the carrier is liable or not? Without

doubt, he is, but it must be so said in the Convention, but

Article 21 says nothing.

In my opinion, since it is necessary to provide for the case

of total non-performance of the contract, it is necessary to add

to letter (c): “in case of non-performance of the contract, or of

delay".

In this case it should be necessary as well to improve the

formula of Article 28, which aims at the period within which the

liability action must be brought.

MR. RIPERT (France): If you have total non-performance,

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there is no interest in having an international convention; the

consignor is in his country, he has all the resources of common

law. How and why do you want to apply here limited liability

and its consequences?

MR. AMBROSINI (Italy): I simply raise the question which

seems doubtful to me, and I bel

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