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
aaa, ena ee
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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