# Appendix — Trans World Airlines, Inc. v. Day > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2210%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 425 U.S. 989 ## Text oe eee supre moa }: ee ? au i) j In THE IR 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- tak [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2210%3A4. Public record. Not legal advice.